FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 1, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court PAUL STARR, an individual,
Plaintiff - Appellant,
v. No. 17-5024 (D.C. No. 4:14-CV-00621-GKF-TLW) QUIKTRIP CORPORATION, a domestic (N.D. Okla.) for-profit corporation,
Defendant - Appellee. _________________________________
ORDER AND JUDGMENT* _________________________________
Before BALDOCK, KELLY, and O’BRIEN, Circuit Judges. _________________________________
Paul Starr seeks a new trial on his claim that QuikTrip violated a provision of
the Uniformed Services Employment and Reemployment Rights Act (USERRA) by
firing him shortly after he returned from military deployment. But Starr has not
shown there was any reversible error, so we affirm.
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. I. Background
Starr was a QuikTrip employee who also served in the Oklahoma National
Guard. In the course of his service, Starr left QuikTrip temporarily for two
deployments. Shortly after returning from his second deployment—a nine-month
tour in Afghanistan—QuikTrip fired Starr for repeatedly violating a company
attendance policy.
Starr sued QuikTrip for discriminatory termination under 38 U.S.C. § 4311(a)
and premature termination under 38 U.S.C. § 4316(c)(1). The district court granted
summary judgment in favor of QuikTrip on both claims. Starr appealed the district
court’s ruling and we reversed in part. See Starr v. QuikTrip Corp., 655 F. App’x
642, 643 (10th Cir. 2016) (unpublished). We agreed QuikTrip was entitled to
summary judgment on Starr’s discriminatory termination claim, but concluded his
premature termination claim involved a genuine dispute of material fact. Id. at 645.
On remand, the district court held a trial on Starr’s premature termination
claim. The premature termination provision of the USERRA prohibits employers
from discharging a reemployed service member “except for cause . . . within one year
after the date of such reemployment, if the person’s period of service before the
reemployment was more than 180 days.” § 4316(c)(1). There was no dispute that
QuikTrip fired Starr within a year after returning from a deployment longer than 180
days, so the only question was whether QuikTrip had the requisite cause to terminate
him. This required QuikTrip to show (1) it was reasonable to fire Starr based on his
conduct and (2) Starr had express or implied notice the conduct in question would
2 give QuikTrip cause to fire him. See 20 C.F.R. § 1002.248(a). The jury found that
QuikTrip satisfied both requirements and the district court entered judgment in its
favor. After an unsuccessful motion for a new trial, Starr appealed.
II. Analysis
Starr makes three arguments on appeal. First, he argues the district court erred
by denying his Batson challenge to two of QuikTrip’s peremptory strikes. Second,
he argues the court erred by excluding certain evidence of his military service. And
third, he argues QuikTrip violated the district court’s bifurcation order by referring to
damages in its closing argument. We reject these arguments and affirm.
A. Batson Challenge
During jury selection, QuikTrip used two of its four peremptory strikes to
remove potential jurors with prior military service. Starr objected, arguing the strikes
were “inappropriate.” Aplt. App. at 190. The district court interpreted the objection
as an Equal Protection challenge under Batson v. Kentucky, 476 U.S. 79 (1986), and
overruled Starr’s objection. We see no error.
In Batson, the Supreme Court held that striking potential jurors solely on
account of their race violated the Equal Protection Clause. 476 U.S. at 89. Courts
have applied this rule in civil cases and extended it to prohibit peremptory strikes
based on gender and religious affiliation. See Edmonson v. Leesville Concrete Co.,
500 U.S. 614, 616 (1991) (civil case); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127,
146 (1994) (gender); United States v. Brown, 352 F.3d 654, 668 (2d Cir. 2003)
(religious affiliation).
3 A party raising a Batson challenge must first make a prima facie showing the
strike was based on a protected class. Snyder v. Louisiana, 552 U.S. 472, 476 (2008).
Starr’s challenge fails this first step.1 Unlike classifications based on race, gender,
and religion, classifications based on military service have never received heightened
scrutiny under the Fourteenth Amendment. And Starr has not shown heightened
scrutiny is warranted. Prior military service is not an immutable attribute. See
Hassan v. City of New York, 804 F.3d 277, 301 (3d Cir. 2016) (recognizing courts
“have looked with particular suspicion on discrimination based on immutable human
attributes” (internal quotation marks omitted)). Perhaps more importantly,
“[v]eterans are not a class saddled with such disabilities, or subjected to such a
history of purposeful unequal treatment, or relegated to such a position of political
powerlessness as to command extraordinary protection from the majoritarian political
process.” Sturgell v. Creasy, 640 F.2d 843, 852 (6th Cir. 1981) (internal quotation
marks omitted).
Unless they target groups subject to heightened protection under the
Fourteenth Amendment, parties are generally free to use peremptory strikes to
remove potential jurors belonging to any group they think will favor the other side.
See J.E.B., 511 U.S. at 143 (“Parties may . . . exercise their peremptory challenges to
1 This court has not explicitly stated which standard we apply when reviewing district court rulings at Batson’s first step, but other circuits have applied the clear error standard. See, e.g., United States v. Bergodere, 40 F.3d 512, 516 (1st Cir. 1994); Tolbert v. Page, 182 F.3d 677, 684 (9th Cir. 1999) (collecting cases).
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 1, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court PAUL STARR, an individual,
Plaintiff - Appellant,
v. No. 17-5024 (D.C. No. 4:14-CV-00621-GKF-TLW) QUIKTRIP CORPORATION, a domestic (N.D. Okla.) for-profit corporation,
Defendant - Appellee. _________________________________
ORDER AND JUDGMENT* _________________________________
Before BALDOCK, KELLY, and O’BRIEN, Circuit Judges. _________________________________
Paul Starr seeks a new trial on his claim that QuikTrip violated a provision of
the Uniformed Services Employment and Reemployment Rights Act (USERRA) by
firing him shortly after he returned from military deployment. But Starr has not
shown there was any reversible error, so we affirm.
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. I. Background
Starr was a QuikTrip employee who also served in the Oklahoma National
Guard. In the course of his service, Starr left QuikTrip temporarily for two
deployments. Shortly after returning from his second deployment—a nine-month
tour in Afghanistan—QuikTrip fired Starr for repeatedly violating a company
attendance policy.
Starr sued QuikTrip for discriminatory termination under 38 U.S.C. § 4311(a)
and premature termination under 38 U.S.C. § 4316(c)(1). The district court granted
summary judgment in favor of QuikTrip on both claims. Starr appealed the district
court’s ruling and we reversed in part. See Starr v. QuikTrip Corp., 655 F. App’x
642, 643 (10th Cir. 2016) (unpublished). We agreed QuikTrip was entitled to
summary judgment on Starr’s discriminatory termination claim, but concluded his
premature termination claim involved a genuine dispute of material fact. Id. at 645.
On remand, the district court held a trial on Starr’s premature termination
claim. The premature termination provision of the USERRA prohibits employers
from discharging a reemployed service member “except for cause . . . within one year
after the date of such reemployment, if the person’s period of service before the
reemployment was more than 180 days.” § 4316(c)(1). There was no dispute that
QuikTrip fired Starr within a year after returning from a deployment longer than 180
days, so the only question was whether QuikTrip had the requisite cause to terminate
him. This required QuikTrip to show (1) it was reasonable to fire Starr based on his
conduct and (2) Starr had express or implied notice the conduct in question would
2 give QuikTrip cause to fire him. See 20 C.F.R. § 1002.248(a). The jury found that
QuikTrip satisfied both requirements and the district court entered judgment in its
favor. After an unsuccessful motion for a new trial, Starr appealed.
II. Analysis
Starr makes three arguments on appeal. First, he argues the district court erred
by denying his Batson challenge to two of QuikTrip’s peremptory strikes. Second,
he argues the court erred by excluding certain evidence of his military service. And
third, he argues QuikTrip violated the district court’s bifurcation order by referring to
damages in its closing argument. We reject these arguments and affirm.
A. Batson Challenge
During jury selection, QuikTrip used two of its four peremptory strikes to
remove potential jurors with prior military service. Starr objected, arguing the strikes
were “inappropriate.” Aplt. App. at 190. The district court interpreted the objection
as an Equal Protection challenge under Batson v. Kentucky, 476 U.S. 79 (1986), and
overruled Starr’s objection. We see no error.
In Batson, the Supreme Court held that striking potential jurors solely on
account of their race violated the Equal Protection Clause. 476 U.S. at 89. Courts
have applied this rule in civil cases and extended it to prohibit peremptory strikes
based on gender and religious affiliation. See Edmonson v. Leesville Concrete Co.,
500 U.S. 614, 616 (1991) (civil case); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127,
146 (1994) (gender); United States v. Brown, 352 F.3d 654, 668 (2d Cir. 2003)
(religious affiliation).
3 A party raising a Batson challenge must first make a prima facie showing the
strike was based on a protected class. Snyder v. Louisiana, 552 U.S. 472, 476 (2008).
Starr’s challenge fails this first step.1 Unlike classifications based on race, gender,
and religion, classifications based on military service have never received heightened
scrutiny under the Fourteenth Amendment. And Starr has not shown heightened
scrutiny is warranted. Prior military service is not an immutable attribute. See
Hassan v. City of New York, 804 F.3d 277, 301 (3d Cir. 2016) (recognizing courts
“have looked with particular suspicion on discrimination based on immutable human
attributes” (internal quotation marks omitted)). Perhaps more importantly,
“[v]eterans are not a class saddled with such disabilities, or subjected to such a
history of purposeful unequal treatment, or relegated to such a position of political
powerlessness as to command extraordinary protection from the majoritarian political
process.” Sturgell v. Creasy, 640 F.2d 843, 852 (6th Cir. 1981) (internal quotation
marks omitted).
Unless they target groups subject to heightened protection under the
Fourteenth Amendment, parties are generally free to use peremptory strikes to
remove potential jurors belonging to any group they think will favor the other side.
See J.E.B., 511 U.S. at 143 (“Parties may . . . exercise their peremptory challenges to
1 This court has not explicitly stated which standard we apply when reviewing district court rulings at Batson’s first step, but other circuits have applied the clear error standard. See, e.g., United States v. Bergodere, 40 F.3d 512, 516 (1st Cir. 1994); Tolbert v. Page, 182 F.3d 677, 684 (9th Cir. 1999) (collecting cases). We need not decide which standard applies in this case because Starr’s challenge fails even de novo review. 4 remove from the venire any group or class of individuals normally subject to
‘rational basis’ review.”). We have therefore refused to apply Batson to prohibit
strikes based on prospective jurors’ occupation or beliefs. See United States v.
Davis, 40 F.3d 1069, 1077 (10th Cir. 1994) (rejecting argument that Batson prohibits
striking teachers because a disproportionate share of teachers are women); United
States v. Prince, 647 F.3d 1257, 1261 (10th Cir. 2011) (concluding Batson does not
prohibit excluding prospective jurors based on their views of marijuana legalization).
Starr cites no cases—and we have found none—prohibiting peremptory strikes based
on military service.
We conclude Batson does not prohibit peremptory strikes based on a
prospective juror’s prior military service. Cf. J.E.B., 511 U.S. at 143 n.16 (stating
challenges based on military experience, without a showing of pretext, “may well not
be unconstitutional[] since they are not gender or race based”); Coulter v. Gilmore,
155 F.3d 912, 921 (7th Cir. 1998) (describing prior military service as a facially
neutral reason to strike a prospective juror). The district court did not err by denying
Starr’s Batson challenge.
B. Evidence of Starr’s Military Service
Starr argues the district court erred by excluding evidence of his military
service, including “critical military documents that stated the many decorations and
citations he had received defending this country” and that “provided information as
to what . . . [he] endured while at war.” Opening Br. at 11. We see no abuse of
discretion. See United States v. Jenkins, 313 F.3d 549, 559 (10th Cir. 2002) (“We
5 review questions concerning the admission of evidence under an abuse of discretion
standard.”).
Contrary to Starr’s suggestion, the district court did not exclude all evidence of
his military service. Rather, it allowed him to present evidence of his service to the
extent it caused problems he communicated to QuikTrip. See Aplt. App. at 23-24.
Starr does not explain why additional details of his military service were relevant to
the issues at trial, which were the reasonableness of his termination and whether he
had notice his conduct could result in termination. And Starr points to no clearly
erroneous factual findings, errors of law, or clear errors of judgment on the part of
the district court. As a result, we cannot conclude the district court abused its
discretion. See Jenkins, 313 F.3d at 559 (“Under [the abuse of discretion] standard,
we will not disturb an evidentiary ruling absent a distinct showing that it was based
on a clearly erroneous finding of fact or an erroneous conclusion of law or manifests
a clear error in judgment.”).
C. Reference to Damages in Closing Argument
The district court bifurcated the trial into a liability phase and a damages
phase. Starr argues QuikTrip violated the bifurcation order by referencing damages
during its closing argument in the liability phase of the trial. Starr did not make a
timely objection, so we review for plain error. See Blevins v. Cessna Aircraft Co.,
728 F.2d 1576, 1580 (10th Cir. 1984) (reviewing purportedly improper remarks
during closing argument for plain error when appellant failed to object). To establish
plain error, Starr must show (1) error that: (2) was plain, (3) affected his substantial
6 rights, and (4) seriously affected the fairness, integrity, or public reputation of the
proceedings. Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th Cir. 2011).
During his rebuttal closing, QuikTrip’s attorney argued that
[M]ost folks would like to make life easier for veterans. If they could sign a check and make life better, that would be fine. But you’re not here just to say, “Give this person some money.” You’re here to decide whether QuikTrip did something to warrant giving this person some money. And I suggest to you, if you look at the facts and look at the evidence, you’ll see they didn’t do anything wrong.
Aplt. App. at 295-96. Even if we assume this comment was improper, Starr does not
argue it rose to the level of plain error and makes no effort to show it satisfies the
plain error standard. We therefore reject Starr’s request to reverse on this ground.
See Richison, 634 F.3d at 1131 (the failure to argue for plain error on appeal “surely
marks the end of the road for an argument for reversal not [timely] presented to the
district court”).
III. Conclusion
We affirm the district court’s judgment.
Entered for the Court
Paul J. Kelly, Jr. Circuit Judge