Gross v. PPG Indus., Inc., 636 F.3d 884, 892 (7th Cir. 2011); see Croft v. Vill. of Newark, 35 F.Supp.3d 359, 370 (W.D.N.Y. 2014). He also “must demonstrate that [his] exercise of [his] USERRA rights was a motivating factor in [the defendant's] action, unless [the defendant] can prove that the action would have been taken in the absence of [the plaintiff's] USERRA complaints.”

Based on the express definitions in the statute, only those individuals who have authority or input over hiring and firing or promotion can have liability as "employers" under USERRA. Croft v. Village of Newark , 35 F.Supp.3d 359, 368 (W.D.N.Y. 2014) (internal quotation marks omitted); see alsoRisner v. Ohio Dep't of Rehab. & Corr. , 577 F.Supp.2d 953, 967 (N.D. Ohio 2008) ; Brandsasse v. City of Suffolk , 72 F.Supp.2d 608, 618 (E.D.Va. 1999). Therefore, Defendants' Motion for Summary Judgment on this claim is granted to the extent of the failure to promote claims brought under USERRA against Defendants Barone, Barber, and Morse.

Gross v. PPG Indus., Inc., 636 F.3d 884, 892 (7th Cir. 2011) (quotation omitted); see Croft v. Village of Newark, 35 F.Supp.3d 359, 370 (W.D.N.Y. 2014). He also “must demonstrate that [his] exercise of [his] USERRA rights was a motivating factor in [the defendant's] action, unless [the defendant] can prove that the action would have been taken in the absence of [the plaintiff's] USERRA complaints.”

See, e.g., Croft v. Village of Newark, 35 F.Supp.3d 359, 368 (W.D.N.Y. 2014) (concluding that police chief could be considered “employer” under USERRA because he made promotional recommendations to the Village Board and was responsible for selecting individuals to be interviewed for the vacant sergeant positions); Angiuoni v. Town of Billerica, 999 F.Supp.2d 318, 322 (D. Mass. 2014) (concluding that police chief could be considered “employer” under USERRA because he “[was] delegated the responsibility of placing Department employees on administrative leave and recommending them for termination even if the Town makes the final decision”); Baldwin v. City of Greensboro, No. 1:09CV742, 2010 WL 3211055 at *4 (M.D. N.C. Aug. 12, 2010), report and recommendation adopted in relevant part, 2010 WL 9904879, at *1-2 (M.D. N.C. Oct. 15, 2010), (concluding that individuals, who were in plaintiff's supervisory chain of command, involved in preparing plaintiff's perform

Multiple courts "have held that individuals who have authority or input over hiring and firing or promotion are 'employers' under USERRA," and the United States Department of Labor has "decline[d] to adopt the position that individual supervisors and managers should be excluded from the regulatory definition of 'employer'". Croft v. Vill. of Newark, 35 F. Supp. 3d 359, 368 (W.D.N.Y. 2014) (emphasis added) (collecting cases). However, an individual defendant may not be liable as an employer where, for example, there is "no basis" for plaintiff's belief that the defendant participated in the employment-related decision, Kassel v. City of Middletown, 272 F. Supp. 3d 516, 531 (S.D.N.Y. 2017), or the defendant had "no individual power" over plaintiff, who did not report directly to him, Satterfield v. Borough of Schuylkill Haven, 12 F. Supp. 2d 423, 438 (E.D. Pa. 1998).

Several courts have found that the most persuasive sign of control is authority to hire, fire, and promote the servicemember. See Garcia v. Spring Indep. Sch. Dist., No. 4:19-CV-1847, 2020 WL 8299810, at *1 (S.D. Tex. Mar. 17, 2020); see also Estes, 658 Fed.Appx. at 1031-32 (accepting that an entity with sufficient coercive power over the termination decision may be a co-employer); O'Connell v. Town of Bedford, No. 21 CIV. 170 (NSR), 2022 WL 4134466, at *8 (S.D.N.Y. Sept. 12, 2022) (input over hiring and firing is sufficient to be an employer); Croft v. Vill. of Newark, 35 F.Supp.3d 359, 368 (W.D.N.Y. 2014) (collecting federal cases from Ohio, Virginia, and North Carolina); Jones v. Wolf Camera, Inc., Civ.A. No. 3:96-CV-2578-D, 1997 WL 22678, at *2 (N.D. Tex. Jan. 10, 1997) (holding that when two individuals “were delegated absolute authority with respect to hiring and firing employees” they meet USERRA's definition of “employer”).

Both parties agree that tuition benefits under the EEP are a "benefit of employment" under USERRA. Filing 44 at 8; see alsoCroft v. Vill. of Newark , 35 F. Supp. 3d 359, 375 (W.D.N.Y. 2014) (assuming that the plaintiff had stated a prima facie case of discrimination under USERRA because his employer initially denied him tuition reimbursement). Therefore, the Court turns to whether OPPD denying Kelly EEP benefits because he was already receiving G.I. Bill benefits constitutes military-based discrimination.

told plaintiff that he was being dismissed because the supervisor could no longer tolerate his military-related absences); Shelton v. Fiskar Brands, Inc., d/b/a Gerber Legendary Blades, 2015 WL 1299241, *4 (D.Or. Mar. 23, 2015)(after learning that plaintiff had an upcoming two-week military duty, supervisor told him "We are too busy this time of year. I don't want you to go on it;" when notified some months later of another military leave, supervisor asked plaintiff for contact information for plaintiff's unit and chain of command, explaining "Certainly, [your chain of command] understands that this a burden to both you and to Gerber as your employer .... Maybe I can help your cause by helping them understand the burden on Gerber;" later, the supervisor called the Command Sergeant Major to inquire about plaintiff's order, and according to the Command Sergeant Major the supervisor was very agitated over plaintiff's having orders for that period and tried to get him out of the orders); Croft v. Village of Newark, 35 F.Supp.3d 359, 368 (W.D. N.Y. 2014)(comments by a chief that the plaintiff was not promoted because he "wasn't around enough," and that "the only place [the plaintiff] had been was military duty," considered as evidence that the defendant was resistant to promoting the plaintiff at least in part because of the plaintiff's military obligations); Robinson, 974 F.Supp. at 574 (plaintiff's supervisor became angry when plaintiff notified him that he had to attend a mandatory physical examination for the army reserve and would therefore miss work at the dealership that day, supervisor called a sergeant at plaintiff's army reserve unit inquiring as to whether plaintiff's physical was mandatory, and when the sergeant informed him that it was, the supervisor became upset and demonstrated hostility toward the idea of plaintiff leaving work to attend the physical). Plaintiff complains of hostility because in 2007, after returning from a military leave of absence in Kessler, Mississippi, Angie Lugo, former Human Resources Director

Based on this language, courts have held that individuals who have control over hiring and firing are "employers" under USERRA. Croft v. Vill. of Newark, 35 F.Supp.3d 359, 368 (W.D.N.Y. 2014) (collecting cases). Upon review of the complaint, the court concludes that it states a plausible claim for individual liability against Rios. The complaint includes multiple allegations indicating that Rios had the power to hire Tolle to work for Analogic and that he ultimately decided not to offer Tolle a regular position with the company.

Uniformed Services Employment and Reemployment Rights Act of 1994, as amended , 70 Fed. Reg. 75,246 –01 (Dec. 19, 2005) (codified at 20 C.F.R. Part 1002). Courts have done the same. See, e.g. , Croft v. Vill. of Newark , 35 F.Supp.3d 359, 367–68 (W.D.N.Y.2014) ; Risner v. Ohio Dep't of Rehab. & Corr. , 577 F.Supp.2d 953, 967 (N.D.Ohio 2008) ; Brandsasse v. City of Suffolk , 72 F.Supp.2d 608, 618 (E.D.Va.1999). Moreover, the remedies available under USERRA may just as easily be applied to individuals acting under color of state law as to entities.