Mace v. Willis et al
MEMORANDUM OPINION re: findings of fact and conclusions of law after court trial held April 11, 2017. Signed by US Magistrate Judge Veronica L. Duffy on 4/21/2017. (CG)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
COREY WILLIS, INDIVIDUALLY;
KICKBOX DAKOTA, LLC, A SOUTH
DAKOTA LIMITED LIABILITY
COMPANY; AND DAVID BORCHARDT,
Plaintiff Kieshia Mace brings suit against Corey Willis; Kickbox Dakota,
LLC; and David Borchardt. Ms. Mace asks for damages for violation of the
Uniformed Services Employment and Reemployment Rights Act ("USERRA"), 38
U.S.C. §§ 4301-4335.1
Ms. Mace originally pleaded two state-law based claims for wages in her
complaint. See Docket No. 1, Counts II and VI [III] at pp. 5-6. However, prior
to trial she voluntarily dismissed these claims. See Docket No. 20. The court
granted the motion. See Docket No. 21.
FINDINGS OF FACT
The following facts have been established by the greater weight of the
evidence. Kieshia Mace first was employed by defendant Kickbox Dakota, LLC
("Kickbox"), on April 25, 2016. See Exhibit 6 at p. 1. Kickbox is a 9Rounds
franchise owned by defendant Corey Willis and his wife. They operate Kickbox
in two locations—Kickbox east and Kickbox west—both in Sioux Falls, South
Dakota. Ms. Mace was hired by Corey Willis on a part-time basis at a rate of
$12.00 per hour. She was not guaranteed specific hours, but she averaged
about 15 hours per week. At the time of her hiring, Ms. Mace also worked
part-time for another Sioux Falls employer. Mr. Willis told Ms. Mace she might
potentially become the manager of one of his locations if she completed some
computer training, some physical testing, and a written test.
Defendant David Borchardt was a general manager employed by Kickbox.
At the end of July and beginning of August, 2016, Mr. Borchardt was in charge
of creating employees' work schedules. Mr. Borchardt was the manager of one
of the Kickbox locations where Ms. Mace worked and acted as her supervisor.
Mr. Borchardt did not have the power to fire employees.
Upon being hired, Ms. Mace informed Mr. Willis that she was a member
of a National Guard unit out of Sioux City, Iowa,2 and that Ms. Mace would
need to attend National Guard training for approximately three weeks in the
summer. Ms. Mace later timely supplied the additional details that she would
be required to leave for Alaska to attend this training on July 15, 2016, and
Sioux City, Iowa, is approximately 90 miles south of Sioux Falls, South
would return from training August 8, 2016. See Exhibit 10. Kickbox and
Mr. Willis knew the reason for Ms. Mace's absence was due to mandatory
military training. Id.
In mid- to late May, Ms. Mace quit her other part-time job in order to
make herself more available to work hours at Kickbox. She informed Mr. Willis
of this fact. She expressed the hope that she could be scheduled for more
hours—perhaps as much as 30 hours--at Kickbox. However, prior to her
departure for military training, she continued to work an average of 15 hours
per week.3 At no time did Kickbox ever guarantee Ms. Mace that she would
work a certain number of hours.
Kickbox uses an application ("app") to schedule its employees to work.
That app is called "When I Work." The app allows employers to set schedules
for its employees and share the schedules over the internet. Employees can
then log onto the schedule using their smart phones or computers and see
what their work schedule is. Although Kickbox created its employee schedules
a month ahead of time, the employees could only access the schedule one week
at a time, approximately two days before the start of that week. Despite the
fact Kickbox created its employee schedules a month ahead of time, Ms. Mace
testified there were numerous times when Corey would call her in to work on
an impromptu basis to fill in for other employees who did not show up for their
Ms. Mace worked 12 weeks for Kickbox from April 25, 2016, to July 15, 2016.
During that time she worked 163.38 hours or approximately 13.6 hours per
week (163.38 ÷ 12 = 13.6).
9Rounds provides its franchisees an employee handbook. That
handbook was supplied to Kickbox. The 9Rounds handbook contains a
provision specifically related to military leave. Mr. Willis admitted he was
expected by 9Rounds to be familiar with the provisions of this employee
Ms. Mace worked at Kickbox on July 15, 2016, and later that same day,
departed for Alaska to fulfill her military obligation. While she was away, Corey
Willis removed Ms. Mace from the When I Work app. He testified he had two
reasons for doing so. First, he would be charged an extra $11.00 for the month
of August if Ms. Mace were kept on the app. He also testified it is easier for his
managers to schedule employees to work if the only employees whose names
appear on the app are those employees available to work. Mr. Willis never told
Ms. Mace he had removed her from the scheduling app. Only one other
employee has ever been removed from the When I Work app by Kickbox. That
employee was Michaela, who was a nurse who worked the night shift and
whose schedule just did not allow her to work at Kickbox during its open
hours. Defendants have all conceded that Ms. Mace's removal from the
scheduling app had nothing to do with her performance at work. See
Mr. Borchardt drew up the employee schedule for August, 2016, at the
beginning of August. That schedule did not include any hours for Ms. Mace
Although Mr. Willis gave this testimony about the handbook, the handbook
itself was not offered or received into evidence and no testimony was
introduced specifically describing the military leave provision in the handbook.
because her name was not available to Mr. Borchardt for scheduling on the
When I Work app. Mr. Willis hired a new part-time employee, Alexandra, on
August 5, 2016. See Exhibit 6 at p. 2. Mr. Borchardt accommodated this
hiring by working Alexandra into the employee schedule. Alexandra's first day
of work for Kickbox (east) was August 10, 2016. See Exhibit 8 at p. 5.5
Mr. Borchardt had the authority to take employees off the schedule, to add
them to the schedule, and to shift schedules between employees.
Ms. Mace returned to Sioux Falls following her military training on
August 8, 2016. She immediately tried to log onto the "When I Work" app, but
the app no longer accepted her sign-on information. While in Alaska, Ms. Mace
had not had access to the internet at all. She assumed her log-in information
to the When I Work app had simply timed out because it had been inactive for
Ms. Mace sent a text to Corey Willis that same day, August 8, inquiring
about the situation with the When I Work app. She was concerned that
because Mr. Willis knew she was returning from National Guard duty on
August 8, she might already be scheduled to work on the 8th and might miss
Mr. Willis did not respond to Ms. Mace's text. So next she telephoned
him on August 9, 2016. He did not answer his phone, so she left him a voice
The double-sided pages of Exhibit 8 are not numbered. The court assigned
numbers for ease of reference with each side of each page receiving a number.
The pages are thus numbered from 1-48, with pages 12,16, 20, 24, 28, 32, 36,
40, 44, and 48 being blank.
mail message explaining that she was unable to access the When I Work app
and that she was wondering when she was next scheduled to work.
Meanwhile, on August 10, 2016, Mr. Willis hired Michael, another new
part-time employee. See Exhibit 6 at p. 2. Mr. Borchardt was able to work
Michael into the pre-existing work schedule for August. Michael's first day on
the job with Kickbox (east) was August 16, 2016. See Exhibit 8 at p. 33. Both
Alexandra and Michael were hired at a lower hourly wage than Ms. Mace.
On the evening of August 9, 2016, Ms. Mace's mother asked Ms. Mace if
she would take an airplane trip to return Caleb, Ms. Mace's five-year-old
nephew, to his father, Ms. Mace's brother, in Colorado. Because Mr. Willis had
not yet responded to her text or voice mail message, Ms. Mace agreed to
perform this service for her mother. The airplane tickets were purchased the
evening of August 9 and Ms. Mace and her nephew flew to Colorado on August
10. Ms. Mace stayed overnight at her brother's house only the evening of
August 10 and returned to Sioux Falls on August 11. Had Kickbox responded
to any of her inquiries to indicate she was scheduled to work, Ms. Mace would
not have gone on this trip to Colorado.
On August 10, 2016, Corey Willis called Ms. Mace and left the following
voice mail message on Ms. Mace's phone.
Hey Kieshia, it's Corey. Um, I'm just calling you back. Uh, but
yeah, um, we had to take you off the scheduler. Um, we, we hired
some new people and we needed some room on, on scheduling
and, so, um, you were gone for three weeks, and by three weeks we
take you off. If you have any questions, just give myself a call back
or, um, call David. David's kind of in that role with taking on the
employees' situation now. So, yeah, give one of us a call. If you
can't reach me either just give David a call. All right. Talk to you
See Exhibit 7.6
After receiving this message from Corey Willis, Ms. Mace telephoned
David Borchardt on August 11, 2016, because she interpreted Mr. Willis'
message to indicate that Mr. Borchardt was in charge of scheduling. At this
time, she left a message asking him to call her. Mr. Borchardt returned
Ms. Mace's phone call on the morning of August 13, 2016.7 Just prior to this
phone call, Ms. Mace had tried again to log onto the When I Work app and was
still unable to do so. Ms. Mace made this phone call to Mr. Borchardt while
riding in a motor vehicle with two of her friends, one of whom was Kendra
Nelsen. Ms. Mace placed the call using the speaker phone function because
she explained the speaker for private conversations was inoperable on her
Ms. Mace and Ms. Nelsen both recounted the conversation with
Mr. Borchardt as follows. Ms. Mace asked about her work schedule.
Mr. Borchardt seemed confused. Mr. Borchardt stated that he had had
conversations with Mr. Willis from which Mr. Borchardt understood Ms. Mace
The exhibit is marked as "August 12," voice mail message, but Ms. Mace
testified Mr. Willis left the message while she was in the airplane with her
phone turned off on either August 10 or 11. As between these three dates—
August 10, 11 or 12—the specific date is immaterial.
Testimony established that the phone call between Ms. Mace and Mr.
Borchardt took place on either August 12 or 13. As between these two days,
the difference is immaterial. Ms. Mace testified Mr. Borchardt called her;
Kendra Nelsen testified Ms. Mace initiated the phone call. This discrepancy,
too, is immaterial.
would not be returning to work at Kickbox. He stated Kickbox did not have
any hours for her. She was gone for a month and Kickbox had to replace her.
Borchardt could not put her on the schedule. Ms. Mace asked to clarify. She
stated: "I had a job before I left for Alaska; now you have no hours for me? I've
been replaced?" Mr. Borchardt confirmed this. Both Ms. Mace and Ms. Nelsen
concluded Kickbox had terminated Ms. Mace's employment based on what
Mr. Borchardt said. Even Mr. Borchardt and Mr. Willis agreed at trial that the
conclusion they had terminated Ms. Mace was not unreasonable, given the
information they relayed to Ms. Mace.
Ms. Mace then advised Mr. Borchardt that Kickbox's action was in
violation of federal law. She informed Mr. Borchardt that she was going to
consult her commanding officer in the National Guard and also an attorney.
Only at this point did Mr. Borchardt suggest perhaps Ms. Mace and he could
have a conversation about this matter with Corey Willis and "work things out."
At no time did Mr. Borchardt indicate he would place Ms. Mace on the
schedule, either in the near future or at any other time. At no time did
Mr. Willis ever tell Ms. Mace he would place her on the Kickbox work schedule,
either in the near future or at any other time.
A short time after the conversation between Ms. Mace and Mr. Borchardt
concluded, Mr. Willis attempted to telephone Ms. Mace. She did not take his
phone call as she wanted to speak with her commanding officer and a lawyer to
clarify what her rights were before talking to Mr. Willis. No other
communications or attempts at communications took place between the parties
until late August, 2016. In approximately the third week of August, a parttime Kickbox employee quit. This prompted Mr. Willis to send Ms. Mace a
letter offering to place her back on the Kickbox schedule. Ms. Mace did not
respond to the letter.
At trial, both Mr. Willis and Mr. Borchardt testified if Ms. Mace had had a
face-to-face meeting with them after she returned from Guard duty, they could
have placed her back on the schedule. Both defendants admitted this
requirement is not in writing anywhere at Kickbox. Both defendants admitted
neither of them advised Ms. Mace of this requirement of a prior meeting when
they had contact with her in August, 2016.
After talking to an attorney, Mr. Willis requested David Borchardt to draft
an email documenting what he then remembered about his phone conversation
with Ms. Mace on August 13. Mr. Borchardt drafted the requested email
October 6, 2016, some two months after the conversation when litigation was
already contemplated. In the email Mr. Borchardt recounted that he told
Ms. Mace he was not sure when or if he could get her back on the work
Ms. Mace was unemployed from August 8, 2016, until she found a
replacement job at $11.50 per hour on September 19, 2016. She is asking for
lost wages for this period of unemployment. She is not seeking lost wages
based on the differential between her $12.00 per hour wage at Kickbox and her
$11.50 per hour wage at her new job.
Overview of USERRA
Congress declared that one of the primary reasons for enacting USERRA
is to provide for the "prompt reemployment" of persons performing service in
the uniformed services upon completion of their military service. See 38 U.S.C.
§ 4301(a)(2). The National Guard is included in the definition of "uniformed
services." See 38 U.S.C. § 4303(16). USERRA is to be broadly construed in
favor of its military beneficiaries. Dorris v. TXD Services, LP, 753 F.3d 740,
745 (8th Cir. 2014). As the latest in a series of laws protecting veterans'
employment and reemployment rights, USERRA is to be interpreted in light of
the large body of case law that had developed under previous iterations of
federal laws protecting veterans' employment rights to the extent prior caselaw
is not inconsistent with USERRA. Vahey v. General Motors Co., 985 F. Supp.
2d 51, 57 (D.D.C. 2013) (quoting Rivera-Melendez v. Pfizer Pharms., LLC, 730
F.3d 49, 54 (1st Cir. 2013); 20 C.F.R. § 4301(a)).
USERRA provides that a person who is a member of a uniformed service
shall not be denied reemployment on the basis of her membership in that
uniformed service. See 38 U.S.C. § 4311(a). An employer is considered to have
engaged in actions prohibited by USERRA where the employee's membership in
a uniformed service "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 . . . or obligation for service." See 38 U.S.C. § 4311(c).
A person who must absent themselves from their job by reason of
military service is entitled to be "promptly reemployed" if they give advance
written or verbal notice of the anticipated absence to their employer and they
are absent for less than five years. See 38 U.S.C. §§ 4312(a), 4313(a). If the
service person was absent from her job for less than 31 days, she must notify
her employer of her intent to return to her job no later than the beginning of
the first full regularly scheduled work period on the first full calendar day
following the completion of the period of military service. See id. at subsection
(e)(1)(A). An employer may not delay its reemployment obligation by demanding
documentation that does not exist or is not readily available. Id. at subsection
(f)(4). There are a number of statutory affirmative defenses to reemployment,
none of which any of the three defendants herein have invoked. Id. at
subsection (d). It is the employer's burden to show the impossibility or
unreasonableness of reemployment. Davis v. Crothall Serv. Grp., Inc., 961 F.
Supp. 2d 716, 727 (W.D. Pa. 2013); Milhauser v. Minco Products, Inc., 855 F.
Supp. 2d 885, 891 (D. Minn. 2012) (citing § 4312(d)(2)).
A military person who obtains reemployment under USERRA is entitled
to the seniority and accompanying benefits they had as of the date their
military service began, plus any additional seniority and benefits they would
have obtained had they remained continuously employed. See 38 U.S.C.
§ 4316(a). Once a military person is reemployed in their former job, their
employment cannot be terminated except for cause for the first 180 days they
are back on the job if, prior to military service, they had been in their job for
between 31 and 180 days. See 38 U.S.C. § 4316(c)(2). The burden is on the
employer to demonstrate "cause" for termination and also to demonstrate that
the employee had express or implied notice that the conduct constituted cause
for discharge. Johnson v. Michigan Claim Service, Inc.. 471 F. Supp. 2d 967,
972-73 (D. Minn. 2007) (citing Hillman v. Arkansas Highway & Transport.
Dept., 39 F.3d 197, 200 (8th Cir. 1994); Francis v. Booz, Allen & Hamilton,
Inc., 452 F.3d 299, 308 (4th Cir. 2006); and 20 C.F.R. § 1002.248(a)). "Cause"
under USERRA is liberally construed and strictly enforced for the benefit of
military beneficiaries of the act. Johnson, 471 F. Supp. 2d at 973.
If the military person who leaves employment to engage in military
service knowingly provides written notice to their employer that they do not
intend to return to their position of employment, the benefits of USERRA do
not apply. See 38 U.S.C. § 4316(b)(2)A). The burden of proof is on the
employer to demonstrate the military person provided clear written notice of
their intent not to return to employment. Id. at subsection (b)(2)(B).
The rights conferred under USERRA as against a private employer may
be enforced by bringing a claim in federal district court by the military person
aggrieved. See 38 U.S.C. § 4323(a)(3). Venue for such an action is proper in
the district where the private employer maintains its business. Id. at
subsection (c). Remedies available for violations of USERRA include:
(1) injunctive relief, (2) lost wages or benefits suffered as a result of the
USERRA violation, and (3) liquidated damages in an amount equal to the
amount of lost wages or benefits if the employer's violation was willful. Id. at
"Willful" means the employer knew it was violating USERRA or acted with
reckless disregard to whether it was doing so. See 20 C.F.R. § 1002.312. Cf.
Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 125 (1985) (interpreting
the term "willful" under the Age Discrimination in Employment Act to mean the
employer knew its conduct was prohibited or it acted with reckless disregard to
whether its conduct was prohibited). The burden is on the plaintiff to show
willfulness. Davis, 961 F. Supp. 2d at 736 (citing Paxton v. City of Montebello,
712 F. Supp. 2d 1017, 1021 (E.D. Cal. 2010) (citing EEOC v. Massey Yardley
Chrysler Plymouth, Inc., 117 F.3d 1244, 1250 (11th Cir. 1997))). Merely
knowing that a military beneficiary was asserting a USERRA claim is not, by
itself, reckless disregard where, for example, the employer's decision was based
on the exercise of business judgment such as the employer's financial
hardship. Duarte v. Agilent Technologies, Inc., 366 F. Supp. 2d 1039, 1048
(D. Colo. 2005). Where the employer failed to respond to the reinstatement
request for over two months, willfulness was found. Serricchio v. Wachovia
Securities LLC, 658 F.3d 169, 191 (2d Cir. 2011). A service member asserting
a failure or refusal by his employer to grant reemployment in violation of
§ 4312 need not prove discrimination. Id.; 20 U.S.C. § 1002.33. A willful
violation of the duty to "promptly reemploy" a returning service member under
§ 4312 gives rise to liability for liquidated damages. Serricchio, 658 F.3d at
A military person who prevails on a claim under USERRA and who
retained a private attorney to bring that claim may also be awarded reasonable
attorney's fees, expert witness costs and litigation expenses. See 38 U.S.C.
§ 4323(h); 20 C.F.R. § 1002.310.
The Secretary of the Department of Labor is empowered to promulgate
regulations implementing USERRA. See 38 U.S.C. § 4331.
Application of the Law to Ms. Mace's Claims
Reemployment Under § 4312
Section 4312 provides for nearly strict liability for failure or refusal to
promptly reemploy a returning service member to his or her former
employment. The only exceptions to liability are (1) if the service member fails
to give proper notice before leaving and upon return or (2) if the employer
demonstrates that the employer's circumstances have changed so that it is
impossible or unreasonable to reemploy the service member. See 38 U.S.C.
§ 4312(a) & (d).
The parties do not dispute that Ms. Mace gave proper notice of her
military service in advance of her leave or that she gave proper notice upon her
return. None of the three defendants pleaded any of USERRA's affirmative
defenses from § 4312(d) in their answers. See Docket Nos. 5-7. The court
considers the rationales they provided at trial through their oral testimony.
Mr. Willis testified he removed Ms. Mace from the When I Work app to
save money ($11 per month) and to make it easier for employees like
Mr. Borchardt to whom scheduling duties were delegated. As Mr. Willis
explained, it is easier to schedule if the only names available to the employee
putting together the schedule are those names of employees who are readily
available to work. Neither of these reasons constitutes a valid defense under
Mr. Willis and Mr. Borchardt also both testified that Ms. Mace had been
replaced by the time she came back and the schedule for August, which was
created at the beginning of August, was full. They testified they had no hours
to give Ms. Mace because those hours had been taken up by other employees,
including employees hired to replace Ms. Mace. This also is not a valid defense
to a § 4312 claim.
"If mere replacement of the employee would exempt an employer from
[USERRA], its protections would be meaningless." Davis, 961 F. Supp. 2d at
727 (quoting Cole v. Swint, 961 F.2d 58, 60 (5th Cir. 1992)). Under USERRA,
"an employer may not 'refuse to reemploy the employee on the basis that
another employee was hired to fill the reemployment position during the
employee's absence, even if reemployment might require the termination of that
replacement employee.' " Davis, 961 F. Supp. 2d at 730 (quoting 20 C.F.R.
§ 1002.139(a)). "A returning veteran will not be denied his rightful position
because the employer will be forced to displace another employee." Id. (quoting
Nichols v. Dept. of Veterans Affairs, 11 F.3d 160, 163 (Fed. Cir. 1993)). An
employer cannot claim as a defense that it will be required to "bump" or demote
one of its present employees. Goggin v. Lincoln St. Louis, 702 F.2d 698, 70304 (8th Cir. 1983). "USERRA requires that 'the employee should be restored to
his position even though he has been temporarily replaced by a substitute who
has been able . . . to make it desirable to make the change permanent.' "
Davis, 961 F. Supp. 2d at 731 (quoting Kay v. Gen. Cable Corp., 144 F.2d 653,
655-56 (3d Cir. 1944)).
Mr. Willis testified he would have refused employment to any employee
who was absent for three weeks, regardless of the reason why they were
absent. But a business decision, even one that is facially neutral, is not a
defense to a claim under § 4312.
The Sixth Circuit in Petty addressed the "neutrality" defense by an
employer in a reemployment claim under § 4312 of USERRA. See Petty v.
Metropolitan Govt. of Nashville-Davidson Co., 538 F.3d 431 (6th Cir. 2008). In
that case, the employer refused to reemploy a returning service member until
he had undergone a complete battery of physical and psychological tests as
well as a military and medical records review. Petty, 538 F.3d at 436. When it
was sued for violating USERRA, the employer defended by asserting that all
employees who were absent from work for an extended period of time,
regardless of the reason, were required to undergo the same evaluation process
to make sure they were still fit to perform their jobs. Id. at 442. The Sixth
Circuit rejected the employer's rationale, noting that USERRA "supersedes any
'policy, plan [or] practice' that 'reduces, limits, or eliminates in any manner any
right or benefit' provided by USERRA." Id. The conclusion that an employer's
procedure or practice is nondiscriminatory is not relevant to a claim brought
under § 4312 because proof of discriminatory intent is not required to sustain
a reemployment claim. Id. (citing 20 C.F.R. § 1002.33; Francis, 452 F.3d at
Another argument raised by defense counsel is that Ms. Mace "jumped
the gun" by not waiting longer for defendants to put her on the schedule.
Ms. Mace notified defendants of her availability and desire to return to work
the first full day after her return from military duty, as USERRA required her to
do. That date was August 8, 2016. Mr. Willis did not respond to her text. The
next day, August 9, 2016, Ms. Mace telephoned and left a voice mail message.
Mr. Willis did not respond to this message until August 10 or 11, 2016. When
he did respond, Mr. Willis did not offer to put Ms. Mace back on the schedule.
His message was she had been replaced because she was gone. The message
was clear enough at this point that defendants had no intention of reemploying
When Ms. Mace spoke to Mr. Borchardt, the message was the same. He
told her the schedule was full, she had been replaced, and they had no hours
for her. Even after Ms. Mace told Mr. Borchardt she believed defendants were
violating the law, Mr. Borchardt only offered to sit down and talk with her and
Mr. Willis. He did not offer to reemploy her or get her back on the schedule.
In late August, 2016, an employee of Kickbox quit their job. This
prompted Mr. Willis to write a letter to Ms. Mace apologizing for the earlier
"miscommunication" and offering—for the first time—to reemploy her.
Although undated, defendants conceded the letter would have been written
approximately three weeks after Ms. Mace returned from military duty.
But defendants were required by USERRA to promptly reemploy
Ms. Mace. The regulations implementing USERRA establish the following
guidance for the phrase "prompt reemployment":
"Prompt reemployment" means as soon as practicable under the
circumstances of each case. Absent unusual circumstances,
reemployment must occur within two weeks of the employee's
application for reemployment. For example, prompt reinstatement
after a weekend of National Guard duty generally means the next
regularly scheduled working day. On the other hand, prompt
reinstatement following several years of active duty may require
more time, because the employer may have to reassign or give
notice to another employee who occupied the returning employee's
See 20 C.F.R. § 1002.181. See also Rogers v. San Antonio, 392 F.3d 758, 763
(5th Cir. 2004) (quoting language from the regulation).
In Serricchio, the Second Circuit found the employer violated USERRA
when it failed to reemploy the employee for over four months following his
request for reemployment and where the employee's military leave had lasted
approximately two years. Serricchio, 658 F.3d at 177, 182. In Petty, the Sixth
Circuit found the employer violated USERRA when it failed to reemploy the
military beneficiary for a period of three weeks where the employee's military
leave lasted approximately 15 months. Petty, 538 F.3d at 435-36, 444. In
Vander Wal, the employer's reemployment of two plaintiffs on the day one said
he was first available, and seven days after the second requested reemployment
satisfied the "prompt reemployment" requirement. Vander Wal v. Sykes
Enterprises, Inc., 377 F. Supp. 2d 738, 746-47 (D.N.D. 2005).
By these standards, defendants' offer to reemploy Ms. Mace some three
weeks after she had notified them she had returned from military service and
was ready, willing, and able to work was not "prompt." The workforce at
Kickbox at the time was approximately 11 employees besides Mr. Borchardt
and Mr. Willis. It appears to have been entirely made up of part-time
employees who worked, like Ms. Mace herself, far fewer than 20 hours per
week. Defendants could and did adjust the schedule on the fly as various
employees failed to show up for work for a designated shift. And although the
defendants knew the schedule for a month in advance, the employees knew the
schedule only a week in advance. Even if defendants had wanted to spare an
employee's feelings by not "bumping" them in favor of Ms. Mace, they could
easily have put her on the schedule for the week following August 8 and no
employee would have been the wiser. Furthermore, Alexandra and Michael
were both hired after the August schedule had been created and both were
easily incorporated into the schedule and rather immediately given hours to
The court rejects unequivocally defendants' post-hoc rationalization that
Ms. Mace needed to sit down with them in a face-to-face meeting and visit
before they put her back to work. This rationale was rejected in Petty.
Additionally, defendants never communicated this "requirement" to Ms. Mace
when she was asking to be reemployed.
The court finds Ms. Mace has demonstrated that defendants failed to
promptly reemploy her pursuant to § 4312 after she provided proper notice of
her military leave both before and after it occurred. Defendants have not put
forth a valid defense to that claim. Accordingly, judgment will enter in favor of
Ms. Mace on this claim.
Discrimination Under § 4311
The Eighth Circuit has stated the following about the interplay between
sections 4311 and 4312 of USERRA:
Section 4312 protects service members at the instant of seeking
employment, entitling the service member to reemployment in
either the position she would have been in had she not left for
military service [or a like position]. Section 4311 applies after
reemployment has occurred and "prohibits discrimination with
respect to any benefit of employment against persons who serve in
the armed services after they return from a deployment and are
See Clegg v. Ark. Dept. of Corr., 496 F.3d 922, 930 (8th Cir. 2007) (citations
omitted). See also Francis, 452 F.3d 304 (holding § 4312 protects service
members up to the instant of reemployment while other sections of USERRA
such as §§ 4311 and 4316 apply post-reemployment).
Some courts have interpreted this statement in Clegg to mean that
section 4311 and section 4312 claims are mutually exclusive, with one statute
applying prior to reemployment and the other statute applying postreemployment. Hays v. Communication Tech., Inc., 753 F. Supp. 2d 891, 90102 (S.D. Iowa 2010). This understanding, however, may be wrong.
Sections 4312 and 4311 are not mutually exclusive in all factual
situations. In the context of the Clegg case itself, holding that sections 4312
and 4311 presented an either-or choice was undeniably correct. Clegg was
reemployed after she returned from a 15-month deployment to Iraq. Clegg, 496
F.3d at 924-25. She was reinstated at the same grade, in the same department
with two cost-of-living adjustments to her salary that had occurred while she
was deployed. Id. Thus, in this context, the court rejected her strict-liability
claim under § 4312, which addresses only failure to obtain reemployment. Id.
The situation in the Francis case was similar—the plaintiff there had
been reemployed, but sought to assert a claim under § 4312's easier rubric,
easier because § 4312 did not require proof of discrimination. Francis, 452
F.3d at 301, 303. However, in the obverse situation from Clegg and Francis,
where an employee is not reemployed, there is nothing textually within
USERRA that would limit a plaintiff to asserting a claim under only § 4312. In
other words, in the case of an employer who is alleged to have violated USERRA
by not reemploying the service member, sections 4312 and 4311 are not
The pertinent text of § 4311 reads: "A person who is a member of . . . a
uniformed service shall not be denied initial employment, [or]
reemployment. . ." See 38 U.S.C. § 4311(a). It also provides that "an employer
shall be considered to have engaged in actions prohibited—under subsection
(a), if the person's . . . service in the uniformed services 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 . . . service." See 38 U.S.C.
§ 4311(c)(1). Thus, contrary to the Hays court's interpretation of Clegg, § 4311
specifically contemplates a claim of discrimination under that provision for a
failure to reemploy. See § 4311(a) & (c)(1).
Contrast the lack of limiting language in § 4311 with the following
language in § 4316: "A person who is reemployed under this chapter is entitled
to the seniority and other rights and benefits determined by seniority that the
person had on the date of the commencement of service in the uniformed
services plus the additional seniority and rights and benefits that such person
would have attained if the person had remained continuously employed." See
38 U.S.C. § 4316(a) (emphasis supplied). Thus, when Congress sought to limit
the application of a provision under USERRA to those circumstances where the
service member is given reemployment, as in § 4316, Congress knew how to so
limit the statute. No such limiting language in present in § 4311.
Thus, the court concludes § 4311 is facially available to a service
member who seeks reemployment and is not given reemployment. There are
probably few cases, however, in which a plaintiff who has not been reemployed
would wish to take on the additional burden of proving discriminatory intent
under § 4311 when she does not have to satisfy that burden under § 4312.
If a discrimination claim is available to Ms. Mace under § 4311, she
would have the burden to show by direct or circumstantial evidence that her
military service was a motivating factor in defendants' refusal to reemploy her.
Rademacher v. HBE Corp., 645 F.3d 1005, 1010 (8th Cir. 2011); Sheehan v.
Dept. of Navy, 240 F.3d 1009, 1014 (Fed. Cir. 2001). The employer's
explanation for the action it took may be considered in deciding whether the
service member has shown her military service was part of the motivation for
the discriminatory action. Sheehan, 240 F.3d at 1014. Other indicia of
discriminatory intent are expressions of hostility toward the military,
knowledge of the employee's military activity, proximity in time between the
employee's military activity and the adverse employment action, and
inconsistencies between the employer's proffered reasons and its actions.
Rademacher, 645 F.3d at 1010. If Ms. Mace successfully showed a prima facie
case, the burden of persuasion would shift to defendant to show it would have
dismissed Ms. Mace or refused to reemploy her even without her military
service. See 38 U.S.C. § 4311(c)(1); Rademacher, 645 F.3d at 1010; Hays, 753
F. Supp. 2d at 902.
An employer may be subject to a claim of discrimination if it fires a
service member while that service member is on military leave. Dorris v. TXD
Services, LP, 753 F.3d 740, 744-45 (8th Cir. 2014). In that case, Dorris had
been employed by TXD when he was activated to serve in the military for
approximately one year. Id. at 741-42. TXD terminated Dorris' employment
because he failed to show up to work. Id. Before Dorris' military service
ended, TXD went out of business, selling its assets to Foxxe Energy Holdings,
LLC. Id. TXD gave Foxxe a list of its employees, their job titles, job
descriptions, and current salaries; Foxxe hired all of TXD's employees. Id.
TXD did not include Dorris' name on the list of employees tendered to Foxxe.
Id. Although Dorris eventually obtained employment with Foxxe about six
months after his military service ended, he brought a USERRA claim against
TXD arguing that TXD had violated his rights by not including his name on the
list of employees tendered to Foxxe. Id.
The Eighth Circuit rejected Dorris' reemployment claim, noting that TXD
could not have reemployed Dorris because it was out of business when Dorris'
military service ended. Id. at 744. But USERRA guarantees a service
member's "rights and benefits" while he is on leave. Id. (citing 38 U.S.C.
§ 4316(b)(1)). "Rights and benefits" includes "any advantage . . . that accrues
by reason of an employment." Id. (citing 38 U.S.C. § 4303(2); Clegg, 496 F.3d
at 930-31)). This right to benefits is not dependent on how the employer
characterizes the service member's status during leave—i.e. whether the
service member is considered "employed," "on furlough" or "unemployed." Id.
(citing 20 C.F.R. § 1002.149). Thus, the court concluded whether being on the
list of employees TXD tendered to Foxxe was a factual issue about which
genuine material disputes existed, preventing summary judgment. Id.
In Maxfield, the court held a genuine issue of material fact was presented
where the proximity between the employer's adverse employment action and
the employee's military leave was close and the proffered reason for the action
was inconsistent with other actions of the employer. Maxfield v. Cintas Corp.
No. 2, 427 F.3d 544, 552 (8th Cir. 2005).8 In that case, the adverse
employment action occurred the very day Maxfield returned from military
service. Id. In addition, someone identifying themselves as Maxfield's "boss"
had twice called Maxfield's commanding officer in different years inquiring
whether Maxfield was indeed on military duty and whether his attendance was
After the Eighth Circuit reversed the district court's grant of summary
judgment to the employer, Maxfield tried his case to a jury and lost. The
Eighth Circuit affirmed the jury's defense verdict. See Maxfield v. Cintas Corp.,
563 F.3d 691 (8th Cir. 2009).
"imperative." Id. The court also held discriminatory animus could be read into
the fact Maxfield's supervisors traveled to the military base while Maxfield was
on leave to discuss his job performance. Id.
Here, the court finds no evidence that Ms. Mace's military service was a
motivating factor in the defendants' failure to rehire her. Mr. Willis testified he
would have replaced and not rehired any employee who was gone for three
weeks, regardless of the reason. This testimony at trial is consistent with
defendants' early communications with Ms. Mace: they told her she was gone,
so she was replaced. Period. Although unlawful, this myopic rationale rings
true to the court. As does defendants' ridiculous explanation that they wanted
to save $11 per month on the When I Work app by keeping the number of
employees enrolled on the app to 11 employees or under.
Unlike claims under § 4312, a facially neutral reason for the employer's
adverse action defeats the claim under § 4311. The statute specifically
provides no liability attaches where the employer proves it would have taken
the same action in the absence of military service.
This case contains no circumstantial or direct evidence that any of the
three defendants expressed any hostility toward the military, those enrolled in
the military, or military service. None of the defendants questioned Ms. Mace's
need or desire to serve her country. None of the defendants called up her
commanding officer and asked whether she was really present and required to
be on leave. No dissatisfaction was expressed by Mr. Willis when Ms. Mace told
him of her National Guard obligations. The record is devoid of any scent of
discriminatory intent. Accordingly, the court finds in favor of defendants on
Ms. Mace's § 4311 claim.
To reiterate from the overview above, "willful" means the employer knew
it was violating USERRA or acted with reckless disregard to whether it was
doing so. See 20 C.F.R. § 1002.312. Cf. Trans World Airlines, Inc., 469 U.S.
125 (interpreting the term "willful" under the Age Discrimination in
Employment Act to mean the employer knew its conduct was prohibited or it
acted with reckless disregard to whether its conduct was prohibited). The
burden is on the plaintiff to show willfulness. Davis, 961 F. Supp. 2d at 736
(citing Paxton, 712 F. Supp. 2d at 1021) (citing Massey Yardley Chrysler
Plymouth, Inc., 117 F.3d at 1250)). Merely knowing that a military beneficiary
was asserting a USERRA claim is not, by itself, reckless disregard where, for
example, the employer's decision was based on the exercise of business
judgment such as the employer's financial hardship. Duarte, 366 F. Supp. 2d
at 1048. Where the employer failed to respond to the reinstatement request for
over two months, willfulness was found. Serricchio, 658 F.3d at 191.
Willfulness is not the same as discrimination. As indicated above,
§ 4312 is a rather strict-liability statute. Section 4311 is not. One could be
willful about one's violation of § 4312 without having a discriminatory
motivation. Here, the court finds Mr. Willis and Kickbox acted willfully. After
Ms. Mace's telephone conversation with Mr. Borchardt, Mr. Willis was on notice
that she was asking not only for reemployment, but that by denying her that
reemployment, she believed defendants were in violation of the law. It is true
that Mr. Willis then attempted to telephone Ms. Mace and she did not answer.
But he did not leave a voice message offering to reemploy her. He did not text
her with that message either. And he did not write her a letter to that effect
either until three weeks later and even then not until after another employee
had quit and he needed to hire a replacement employee. These actions
certainly evidence a reckless disregard for the strict liability reemployment
provisions of USERRA pursuant to § 4312.
Who is a Proper Defendant for Ms. Mace's USERRA Claim?
USERRA defines "employer" in pertinent part as "any person, institution,
organization, or other entity that pays salary or wages for work performed or
that has control over employment opportunities, including—a person [or]
organization . . . to whom the employer has delegated the performance of
employment-related responsibilities." See 38 U.S.C. § 4303(4)(A)(i).
Courts have held an "employer" under USERRA includes individuals who
have the power and authority to hire and fire personnel, even though they may
not be the person or organization whose name appears on the employee's pay
stub. Rivera-Cartagena v. Wal-Mart Puerto Rico, Inc., 767 F. Supp. 2d 310
(D.P.R. 2011) (citing Empress Casino Joliet Corp. v. NLRB, 204 F.3d 719, 721
(7th Cir. 2000); NLRB v. Attleboro Assocs., Ltd., 176 F.3d 154, 164 (3d Cir.
1999); Caremore, Inc. v. NLRB, 129 F.3d 365, 369-70 (6th Cir. 1997)).
In Brandsasse v. City of Suffolk, VA, 72 F. Supp. 2d 608, 617-18 (E.D.
Va. 1999), the court denied a Rule 12(b)(6) motion to dismiss the city's Director
of Personnel who had been sued in his individual capacity under USERRA.
The Director had the power to hire and fire city employees, including the
plaintiff. Id. As such, he could not escape liability under USERRA by claiming
he was not an "employer" within the meaning of the Act as a matter of law. Id.
(citing Satterfield v. Borough of Schuylkill Haven, 12 F. Supp. 2d 423 (E.D. Pa.
1998); and Jones v. Wolf Camera, Inc., 1997 WL 22678 at *1 (N.D. Tex. Jan.
In a decision under the Veterans' Reemployment Rights Act (VRRA),
which contained no definition of the term "employer," this district looked to the
definition of "employer" under USERRA. See Novak v. Mackintosh, 919 F.
Supp. 870, 877 (D.S.D. 1996). The court concluded that individuals as well as
entities could be held liable for failure to reemploy a veteran after a term of
military service. Id. The court noted that USERRA, enacted after the VRRA,
was intended to improve rather than replace the VRRA. Id. The court noted
the legislative history of USERRA indicated Congress intended the definition of
"employer" under USERRA to be the same as the definition of that term under
the Fair Labor Standards Act (FLSA). Id. Supervisors and corporate officers
could be held liable individually under the FLSA. Id. Therefore, the court held
that individual liability was available under VRRA, USERRA and the FSLA. Id.
Applying these principles to the case at hand, the court concludes David
Borchardt is not subject to individual liability for Ms. Mace's USERRA claim.
David Borchardt had no power to fire employees. Additionally, although he
had the power to add, delete and shift around employees on the When I Work
schedule, he could only do so to the extent the employee's name was available
to him on the When I Work app. Mr. Borchardt had no authority to add or
delete employees' names from the When I Work app. Accordingly, he cannot be
held liable for Ms. Mace's claim.
Corey Willis as the owner of Kickbox had the authority to hire and fire
employees as well as to add or delete their names from the When I Work app.
He is subject to individual liability under USERRA. Accordingly, he shares
liability for the verdict in this case jointly and severally with Kickbox.
Ms. Mace requests lost wages for six weeks, from August 8, 2016, until
she found employment elsewhere on September 19, 2016. She requests
reimbursement at the rate of $12 per hour for 30 hours per week. The court
rejects this request because it is not supported by the evidence.
Although Ms. Mace was desirous of working 30 hours per week, she
averaged only 13.6 hours per week for the period of time from the date she was
hired until she left for military service. She never routinely worked 30 hours
per week. Therefore, the court will award $979.20 in lost wages calculated as
follows: 13.6 hours per week x 6 weeks x $12 per hour. The court will award
an identical amount of $979.20 in liquidated damages for Mr. Willis and
Kickbox's willful violation of § 4312.
Ms. Mace is also entitled to an award of reasonable attorney's fees, expert
witness costs, and litigation expenses. See 38 U.S.C. § 4323(h); 20 C.F.R.
§ 1002.310. If Ms. Mace wishes to receive such an award, she is directed to
submit a request for an award of attorney's fees and any other allowable
expenses pursuant to local rules of this court. See DSD LR 54.1.
Based on the foregoing facts, law and analysis, the court finds:
1. Plaintiff Kieshia Mace is entitled to judgment on her claim
under § 4312 of USERRA as against defendant Kickbox and defendant
2. Judgment in favor of David Borchardt will be entered on
Ms. Mace's § 4312 claim as he is not an employer under USERRA.
3. The court finds all three defendants are entitled to judgment
against Ms. Mace on Ms. Mace's claim under § 4311 of USERRA.
DATED April 21, 2017.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge
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