No. On facts like these, a federal appellate court found sufficient evidence of discriminatory motive to let a military status discrimination case go to a jury. It found that the employee had asserted numerous facts which could serve as evidence of the employer's unlawful motive.

Close proximity between military service and adverse actions. Unlawful discrimination on the basis of military service could reasonably be inferred based on the proximity in time between his military service and the employer's numerous adverse employment actions, said the court:

• In the first instance, on the day he returned from one military leave, he was transferred into a less desirable position, with fewer opportunities for earning bonuses based on individual performance.
• While the employee was on leave, his supervisor made a phone call to the employee's sergeant inquiring whether he was present and whether his presence on base was "imperative." In fact, the employer made two such calls.
• The supervisor also traveled to the base while the employee was on military leave to discuss “performance issues.”
• He was suspended the day he returned from a subsequent three-day military leave, and then discharged several days later.

There were also inconsistencies in the manager’s belief that the employee violated company policy by requesting emergency and vacation leave while on military leave. Human resources policy allowed employees to take accrued emergency leave while on military leave; moreover, a supervisor did not have the authority, under any circumstance, to refuse a request for the leave. The company found itself in the awkward position of trying to explain that all managers were aware of such a policy yet one had acted in direct opposition to it.

Granting numerous leaves didn’t counteract discriminatory motive. Nor did the fact that the company had granted the employee 15 military leaves of absence in three years negate a showing of a discriminatory motive. Indeed, the appeals court suggested that a jury could infer that because it had granted the leaves, many of which were "last minute," the company was looking for a reason to discharge the employee because of the large number of absences from work due to his reserve status. Finally, because USERRA, the law protecting veteran’s leave rights, was enacted to protect the rights of veterans and members of the uniformed services, it must be be liberally construed in favor of those who served their country, reasoned the court.