Burgess, J.
¶ 1. Plaintiff Daniel Brown appeals from a superior court decision granting summary judgment in favor of the State on plaintiffs claim of employment discrimination in violation of the [345] Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. § 4311. He contends that summary judgment was improper because genuine material issues of fact remained as to whether his membership in the Vermont National Guard was a motivating factor in the State’s decisions not to promote him, and ultimately to terminate him from his position. We affirm.
¶ 2. The facts may be summarized as follows. In December 2008, the Vermont Department of Corrections (DOC) hired plaintiff as a Temporary Corrections Officer (TCO) at Southern State Correctional Facility in Springfield. In early 2009, plaintiff began formal training at the Vermont Corrections Academy in Rutland, completed his training in late February, and thereafter returned to Southern State to continue on-the-job training.
¶ 3. TCOs are at-will, nonunion employees utilized to fill schedule gaps and reduce overtime for regular DOC employees. By statute, TCOs are not entitled to benefits or to work more than 1520 hours per year, 3 V.S.A. § 331, whereas permanent employees are entitled to the benefits and protections due full-time state employees.
¶ 4. Plaintiff received generally positive performance evaluations while at the Academy, although some critical comments also appeared in his evaluations. Trainers at the Academy noted plaintiff’s leadership potential, motivation, and willingness to learn. He also received reprimands for unprofession.1 conduct and being disruptive.
¶ 5. Shortly after plaintiff completed his Academy training, in late February 2009, Southern State supervisors learned that some correction.1 officers who were members of the Vermont Nation.1 Guard would be deployed to Afghanistan; they compiled a list of such officers, which in.1uded plaintiff. In early March 2009, plaintiff received an email notifying him that he had been selected to be interviewed for three available permanent correction.1-officer positions. Plaintiff was one of eight TCOs selected for the interview; two of the other candidates were also Nation.1 Guard members. All of the candidates submitted a writing sample and resume, and were interviewed. Three pan.1ists — a security and operations supervisor and two shift supervisors — interviewed the eight candidates. The pan.1ists asked all of the candidates the same twelve questions and scored their responses on a scale of 1 (margin.1 response) to 5 (superior response). At the con.1usion of [346] the interview process, they reported their scores to Southern State’s superintendent, who made the fin.1 hiring decision.
¶ 6. Neither plaintiff nor the other two National Guard members was selected for promotion. The positions went to three other TCOs — K.H., S.D., and C.S. — none of whom was a current member of the military! K.H. had attained the highest score during the interviews, had more than three years of experience as a correctional officer in New Hampshire, and had participated in specialized training from the U.S. Department of Justice on inmate behavioral management and classification systems. S.D. received the second highest interview score, had military experience, and demonstrated experience as a team leader in a previous position. C.S. scored fifth in the interview, had six months more corrections experience than plaintiff, previously worked for a police department, and held two associates degrees in related fields. Plaintiff received the lowest interview score of all eight applicants, had no corrections experience prior to becoming a TCO, and had no higher education in a related field.
¶ 7. Upon learning that he was not selected for the promotion, plaintiff had a conversation with the supervisor for training and recruitment, Kyle Beckwith. When plaintiff inquired about the promotion process Beckwith responded that “they’re not going to give me a full-time benefit slot if I’m leaving in eight months.” Later, following an investigation into complaints of employment discrimination, the Southern State superintendent issued a report finding that Beckwith had “overstepped both [his] authority and expertise” in making statements about hiring decisions, that his statements led to “confusing and erroneous information, impressions and implications,” and that “classified hires are based first on competence and expertise.”
¶ 8. Although not promoted, plaintiff continued to work at Southern State as a TCO. Over the next few months, however, he was 'the subject of a number of critical reports and evaluations about his job performance. Complaints were received from inmates about his confrontation.1 manner and profanity. On March 24, 2009, plaintiff’s supervisors issued him a written warning for being late on two separate occasions. In this warning, plaintiff’s supervisors advised him that tardiness was unacceptable and that “continuing . . . failure to meet minimum standards could lead to your termination.” In early April 2009, plaintiff was warned about his failure to file disciplinary reports. As a result of these and [347] other incidents, plaintiff was assigned a field training officer, Travis Rowe, to monitor his performance and provide addition.1 counseling. A few weeks later, Rowe informed supervisor Beckwith that he had observed and spoken with plaintiff about his performance in a number of areas. These in.1uded a greater need to be aware of safety issues, to change his “hard and controlling” manner in order to better relate to inmates, to be more cooperative with supervisors, and to show more compassion with inmates.
¶ 9. On May 4, 2009, plaintiff received written notice from a shift supervisor, Michael Arace, about a report that plaintiff had allowed an inmate to leave his cell during a headcount, in violation of Southern State policy and in direct contravention of a specific order by a senior officer. Arace met with plaintiff to discuss the incident and subsequen.1y informed Southern State management about the meeting, explaining that plaintiff “seem[ed] to think that he was not doing anything wrong,” that plaintiff did not understand why he was issued feedback, and that plaintiff believed he was “not having any problems.” Arace noted that, at one point during the meeting, plaintiff went to the door and said “are we done.” The matter was brought to the attention of Southern State’s superintendent, who con.1uded that plaintiff should be discharged. On May 5, 2009, plaintiff received a letter from the superintendent informing him that that he was discharged from employment.
¶ 10. Several months later, plaintiff filed a complaint against the State, alleging that it violated the USERRA by failing to promote him, and by later terminating him, on the basis of his membership in the Vermont Nation.1 Guard. The State answered and, following discovery, moved for summary judgment. The court held a hearing on the motion in June 2012, and issued a written decision granting the motion in August 2012. This appeal followed.
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Burgess, J.
¶ 1. Plaintiff Daniel Brown appeals from a superior court decision granting summary judgment in favor of the State on plaintiffs claim of employment discrimination in violation of the [345] Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. § 4311. He contends that summary judgment was improper because genuine material issues of fact remained as to whether his membership in the Vermont National Guard was a motivating factor in the State’s decisions not to promote him, and ultimately to terminate him from his position. We affirm.
¶ 2. The facts may be summarized as follows. In December 2008, the Vermont Department of Corrections (DOC) hired plaintiff as a Temporary Corrections Officer (TCO) at Southern State Correctional Facility in Springfield. In early 2009, plaintiff began formal training at the Vermont Corrections Academy in Rutland, completed his training in late February, and thereafter returned to Southern State to continue on-the-job training.
¶ 3. TCOs are at-will, nonunion employees utilized to fill schedule gaps and reduce overtime for regular DOC employees. By statute, TCOs are not entitled to benefits or to work more than 1520 hours per year, 3 V.S.A. § 331, whereas permanent employees are entitled to the benefits and protections due full-time state employees.
¶ 4. Plaintiff received generally positive performance evaluations while at the Academy, although some critical comments also appeared in his evaluations. Trainers at the Academy noted plaintiff’s leadership potential, motivation, and willingness to learn. He also received reprimands for unprofession.1 conduct and being disruptive.
¶ 5. Shortly after plaintiff completed his Academy training, in late February 2009, Southern State supervisors learned that some correction.1 officers who were members of the Vermont Nation.1 Guard would be deployed to Afghanistan; they compiled a list of such officers, which in.1uded plaintiff. In early March 2009, plaintiff received an email notifying him that he had been selected to be interviewed for three available permanent correction.1-officer positions. Plaintiff was one of eight TCOs selected for the interview; two of the other candidates were also Nation.1 Guard members. All of the candidates submitted a writing sample and resume, and were interviewed. Three pan.1ists — a security and operations supervisor and two shift supervisors — interviewed the eight candidates. The pan.1ists asked all of the candidates the same twelve questions and scored their responses on a scale of 1 (margin.1 response) to 5 (superior response). At the con.1usion of [346] the interview process, they reported their scores to Southern State’s superintendent, who made the fin.1 hiring decision.
¶ 6. Neither plaintiff nor the other two National Guard members was selected for promotion. The positions went to three other TCOs — K.H., S.D., and C.S. — none of whom was a current member of the military! K.H. had attained the highest score during the interviews, had more than three years of experience as a correctional officer in New Hampshire, and had participated in specialized training from the U.S. Department of Justice on inmate behavioral management and classification systems. S.D. received the second highest interview score, had military experience, and demonstrated experience as a team leader in a previous position. C.S. scored fifth in the interview, had six months more corrections experience than plaintiff, previously worked for a police department, and held two associates degrees in related fields. Plaintiff received the lowest interview score of all eight applicants, had no corrections experience prior to becoming a TCO, and had no higher education in a related field.
¶ 7. Upon learning that he was not selected for the promotion, plaintiff had a conversation with the supervisor for training and recruitment, Kyle Beckwith. When plaintiff inquired about the promotion process Beckwith responded that “they’re not going to give me a full-time benefit slot if I’m leaving in eight months.” Later, following an investigation into complaints of employment discrimination, the Southern State superintendent issued a report finding that Beckwith had “overstepped both [his] authority and expertise” in making statements about hiring decisions, that his statements led to “confusing and erroneous information, impressions and implications,” and that “classified hires are based first on competence and expertise.”
¶ 8. Although not promoted, plaintiff continued to work at Southern State as a TCO. Over the next few months, however, he was 'the subject of a number of critical reports and evaluations about his job performance. Complaints were received from inmates about his confrontation.1 manner and profanity. On March 24, 2009, plaintiff’s supervisors issued him a written warning for being late on two separate occasions. In this warning, plaintiff’s supervisors advised him that tardiness was unacceptable and that “continuing . . . failure to meet minimum standards could lead to your termination.” In early April 2009, plaintiff was warned about his failure to file disciplinary reports. As a result of these and [347] other incidents, plaintiff was assigned a field training officer, Travis Rowe, to monitor his performance and provide addition.1 counseling. A few weeks later, Rowe informed supervisor Beckwith that he had observed and spoken with plaintiff about his performance in a number of areas. These in.1uded a greater need to be aware of safety issues, to change his “hard and controlling” manner in order to better relate to inmates, to be more cooperative with supervisors, and to show more compassion with inmates.
¶ 9. On May 4, 2009, plaintiff received written notice from a shift supervisor, Michael Arace, about a report that plaintiff had allowed an inmate to leave his cell during a headcount, in violation of Southern State policy and in direct contravention of a specific order by a senior officer. Arace met with plaintiff to discuss the incident and subsequen.1y informed Southern State management about the meeting, explaining that plaintiff “seem[ed] to think that he was not doing anything wrong,” that plaintiff did not understand why he was issued feedback, and that plaintiff believed he was “not having any problems.” Arace noted that, at one point during the meeting, plaintiff went to the door and said “are we done.” The matter was brought to the attention of Southern State’s superintendent, who con.1uded that plaintiff should be discharged. On May 5, 2009, plaintiff received a letter from the superintendent informing him that that he was discharged from employment.
¶ 10. Several months later, plaintiff filed a complaint against the State, alleging that it violated the USERRA by failing to promote him, and by later terminating him, on the basis of his membership in the Vermont Nation.1 Guard. The State answered and, following discovery, moved for summary judgment. The court held a hearing on the motion in June 2012, and issued a written decision granting the motion in August 2012. This appeal followed.
¶ 11. Plaintiff asserts that summary judgment was improper because genuine issues of material fact exist as to whether his membership in the Vermont Nation.1 Guard was a motivating factor in the nonpromotion and termination decisions. He also maintains that the State failed to establish that the decisions would have been taken irrespective of plaintiff’s military' obligations.
¶ 12. We review summary judgment decisions using the same standard as the trial court. Summary judgment orders will be affirmed when there is no genuine issue as to any material fact [348] and the moving party is entitled to judgment as a matter of law. Campbell v. Stafford, 2011 VT 11, ¶ 10, 189 Vt. 567, 15 A.3d 126 (mem.). The moving party bears the burden of establishing the absence of a genuine issue of material fact, satisfied in certain cases by showing the nonexistence of evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); V.R.C.P. 56(c)(1)(B). The nonmoving party is afforded the benefit of all reasonable doubts and inferences. Campbell, 2011 VT 11, ¶ 10.
¶ 13. The USERRA provides: “A person who is a member of ... or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership ... or obligation.” 38 U.S.C. § 4311(a). Under the statute, “[a]n employer shall be considered to have engaged in actions prohibited . . . under subsection (a), if the person’s membership ... is a motivating factor in the employer’s action, unless the employer can prove that the action would have been taken in the absence of such membership.” Id. § 4311(c). “USERRA is to be liberally construed in favor of those who served their country.” McGuire v. United Parcel Serv., 152 F.3d 673, 676 (7th Cir. 1998).
¶ 14. Under the USERRA, an employee alleging discrimination has “the initial burden of showing by a preponderance of the evidence that the employee’s military service was a substantial or motivating factor in the adverse employment action.” Sheehan v. Dep’t of Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001 (quotation omitted)); see also Rademacher v. HBE Corp., 645 F.3d 1005, 1011 (8th Cir. 2011). Military service is a motivating factor in an adverse employment action when an employer relies on, takes into account, considers, or conditions its decision on an employee’s service. Woodard v. New York Health & Hosps. Corp., 554 F. Supp. 2d 329, 348 (E.D.N.Y. 2008). Elements relevant to the determination that military service constitutes a motivating factor in.1ude “proximity in time between the employee’s military activity and the adverse employment action, inconsistencies between the proffered reason and other actions of the employer, an employer’s expressed hostility towards members protected by the statute together with knowledge of the employee’s military activity, and disparate treatment” of military employees as compared to others [349] with comparable employment records or offenses. Sheehan, 240 F.3d at 1014. Direct or circumstantial evidence may establish discriminatory motive. Id.
¶ 15. Plaintiff contends his military obligations were a motivating factor in Southern State’s decision not to promote him, pointing out that none of the three promoted individuals was in the military or designated for deployment. To establish a USERRA claim under a failure-to-promote theory, an employee must show that he or she possesses qualifications similar or superior to the successful applicant. Becker v. Dep’t of Veterans Affairs, 414 F. App’x 274, 277 (Fed. Cir. 2011); cf. Chenette v. Kenneth Cole Prods., Inc., 345 F. App’x 615, 619 (2d Cir. 2009) (rejecting failure-to-promote claim under analogous Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000, because plaintiff presented “merely subjective assessment of her own qualifications for promotion [which] cannot defeat evidence that other individuals were more qualified” (quotation omitted)). The service member alleging military animus is required to “show evidence of discrimination other than the fact of nonselection and membership in the protected class.” Sheehan, 240 F.3d at 1015.
¶ 16. Apart from the fact of his nonselection and service membership, plaintiff adduced no evidence to show that his nonpromotion was motivated by his membership in the Vermont National Guard or his possible deployment. He did not show that his qualifications were similar, equal, or superior to those of the individuals selected for regular positions at Southern State. On the contrary, the evidence showed that plaintiff received the lowest interview score of all interviewees, that he had no corrections experience prior to his temporary position, and that he completed neither supplemental training nor higher education in a related field. His competitors were comparatively better qualified. One achieved the highest interview score, had more than three years of corrections experience, and received specialized training in his field; another attained the second highest interview score, had military experience, and demonstrated leadership capability; while yet another scored fifth in the interview, had more experience than plaintiff, previously worked for a police department, and held two associates degrees in related fields. The fact that these three individuals were not subject to military deployment, by itself, cannot sustain plaintiff’s failure-to-promote claim. See Sheehan, [350] 240 F.3d at 1014; Young v. Dep’t of Army, 115 F. App’x 63, 64 (Fed. Cir. 2004). Similarly, plaintiffs observation that one of the successful applicants scored fifth in the interview and that a different National Guard member scored fourth but was not selected does not create a genuine issue of material fact as to discriminatory motive in the selection process — particularly not as to plaintiff.
¶ 17. Plaintiff also relies on supervisor Beckwith’s statement to support the claim that plaintiffs membership in the Guard was a motivating factor in his nonpromotion. He cites, in addition, an alleged statement by another supervisor, Stanley Woods, to one of the other National Guard members who did not receive a promotion to full-time employment, to the effect that it was “common knowledge” that “[t]he reason you are not getting promoted is because you are getting deployed.” It is undisputed, however, that neither Beckwith nor Woods was among the panalists who conducted the interviews and rated the applicants, and there is no evidence that they took any part in the fin.1 selection, which was the superintendent’s responsibility. Nor did plaintiff present evidence that the superintendent harbored any animus toward military service, or that plaintiff’s military obligation played any part in the superintendent’s decision. Plaintiff thus advances, in effect, a “cat’s paw” theory of discrimination in violation of the USERRA whereby “if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.” Staub v. Proctor Hosp., 562 U.S. 411, _, 131 S. Ct. 1186, 1194 (2011).1 The claim is unavailing, as there was no evidence to raise a genuine factual dispute that either Beckwith or Woods performed an act motivated by antimilitary animus that was intended to deny plaintiff the promotion, and that it was, in fact, a proximate cause of the nonpromotion.
¶ 18. Plaintiff also cites two remarks by officer Mark Potanas, the supervisor in charge of scheduling and one of the three members of the interview pan.1. The first was a comment or question to officer Beckwith, the recruiting officer, to the effect [351] that “You’re bringing me more military?” Potanas explained that the remark was meant as a joke about the scheduling problems sometimes presented by guards who were in the military; he denied that it reflected hostility toward military members and asserted that, in fact, military membership was generally looked upon favorably in hiring by the Department. The second was an alleged remark Potanas made about the participation of military-affiliated guards in the Memorial Day parade, which he supposedly derided as “stupid.” Potanas denied using that word, but acknowledged that he “was probably slightly annoyed” by the guards’ absence in response to a last-minute request to participate in a nonmilitary exercise.
¶ 19. Plaintiffs argument to the contrary notwithstanding, there is no basis to conclude that these stray remarks had any connection to the employment decisions at issue, and their marginal relevance to the officer’s overall attitude toward the military falls well short of raising a genuine dispute that plaintiffs military affiliation was a motivating factor in the decisions. See Rademacher v. HBE Corp., 645 F.3d at 1011 (ruling that employer’s expressed frustration at employee enlisting “without more, is insufficient to support an inference that [the employee’s] membership in the Air Force Reserves was a motivating factor in [the employer’s] decision to discharge him”); Lamay v. State, 2012 VT 49, ¶ 10, 191 Vt. 635, 49 A.3d 559 (mem.) (observing that “ ‘stray’ remarks in the workplace can suggest a stereotyped attitude or hostile environment but do not necessarily demonstrate an illegitimate motive sufficient to require the employer to prove that its decision was based on legitimate criteria”).
¶ 20. Plaintiff also asserts that his several positive and/or satisfactory performance evaluations raise a genuine dispute as to whether his military affiliation was a motivating factor in the decision to terminate his employment. Plaintiff relies primarily on the timeline of his performance evaluations, asserting that “his communication and ability to accept feedback was good before the deployment was announced, and . . . was bad afterwards.” The record does not, however, reflect that plaintiffs training record was uniformly positive before his deployment; he was cited on more than one occasion for being unprofessional and disruptive, and even his positive evaluations contained comments and incidents foreshadowing later, more serious criticisms of his judgment, in.1uding the need to “chann.1 his enthusiasm and experi[352] ence into a positive course of action,” a verbal confrontation with an inmate, and' the need “to work on humanity and rapport building.” Many of the later, more negative incidents and evaluations occurred under circumstances where plaintiff was compelled to work more independently while on the job, rather than in training at the Academy, and were in response to inmate complaints, rather than complaints by supervisors. There were also reports that he was perennially tardy. Thus, the record does not support an inference or raise a genuine dispute that plaintiff’s negative evaluations were unwarranted, pretextual, or invidiously motivated. See Billet v. CIGNA Corp., 940 F.2d 812, 826 (3d Cir. 1991) (“We have stated that prior good evaluations alone cannot establish that later unsatisfactory evaluations are pretextual.”), overruled on other grounds by St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993); Mattera v. JPMorgan Chase Corp., 740 F. Supp. 2d 561, 577 (S.D.N.Y. 2010) (“Even if credited, plaintiff’s claim of prior favorable performance [evaluations] does not, without more, prove his subsequent poor reviews were unwarranted.”); Iverson v. Verizon Commc’ns, 2009 WL 3334796, at *5 (S.D.N.Y. 2009) (“Demonstration of past positive performance is insufficient to raise a genuine issue of disputed fact with respect to pretext.” (quotation omitted)).
¶ 21. Plaintiff lastly cites the testimony of a DOC administrative assistant that she was informed by the Agency of Human Services that TCOs who were deployed were required to resign and then reapply when they returned. The same individual also explained that DOC had little experience initially in dealing with large-scale deployments in 2009, and that she was later informed that such employees would be entitled to their positions when they returned. She also understood that permanent employees who were deployed were not compelled to go through the process of resigning and reapplying. Whatever this evidence might say about the DOC’s differential treatment of temporary and classified employees, it falls well short of creating a genuine issue of material fact that plaintiff’s military affiliation or deployment was a motivating factor in Southern State’s promotion or termination decisions.2
[353] ¶ 22. The dissent’s contention that summary judgment was premature in this case is unpersuasive. The dissent posits as evidence of improper motivation plaintiff’s testimony that supervisor Beckwith told him that promotion to fulltime status was “automatic,” and that plaintiff’s expectations were allegedly “dashed” upon learning otherwise. Post, ¶¶ 30, 35. Absent correlating evidence that Beckwith reflected the policy of Southern State, the probative value of the testimony is not evident. Moreover, this particular argument does not appear to have been raised below, was not addressed by the trial court in its written ruling, and is absent from plaintiff’s brief on appeal. Accordin.1y, we do not find that it supports a contrary holding. '
¶ 23. The dissent would also find the statements by supervisors Beckwith and Potanas, coupled with the fact that none of the soon-to-be-deployed applicants was promoted, to be sufficient to raise a genuine factual dispute as to discriminatory motive. As explained earlier, however, there is no evidence that the officers played any role in the employment decisions at issue. The mere fact of nonpromotion does not support an inference of discrimination.
¶ 24. Finally, the dissent takes issue with the reliance — both by the trial court and by this Court — on evidence that plaintiff was not as qualified for the position as those that were hired. The dissent is concerned that this improperly “collapses” the two-step an.1ytic framework under the USERRA — evaluating motive and then, if necessary, examining the employer’s affirmative defense — into a “sin.1e” step. Post, ¶ 39. As noted, however, a wide “variety of factors” is relevant to the threshold issue of whether the employer acted with discriminatory motivation, in.1uding its “disparate treatment of certain employees compared to other employees” with similar records. Sheehan, 240 F.3d at 1014. “In determining whether the employee has proven that his protected status was part of the motivation for the agency’s conduct, all record evidence may be considered, in.1uding [354] the agency’s explanation for the actions taken.” Id. Thus, plaintiffs low rating by the 'interview panel, which posed the same questions to each of the applicants for promotion, supports the finding that plaintiffs membership in the Guard was not a motivating factor in the employment decision. See Becker v. Dep’t of Veterans Affairs, 373 F. App’x 54, 57 (Fed. Cir. 2010) (relying on declarations by interview pan.1 which posed identical questions to all applicants and gave plaintiff low score in finding that plaintiffs military service was not a motivating factor in nonpromotion).
¶ 25. Accordingly, we discern no basis to disturb the judgment.
Affirmed.