259 F. Supp. 3d 1007
D.S.D.2017Background
- Kieshia Mace worked part‑time for Kickbox Dakota, LLC (a 9Rounds franchise owned by Corey Willis) from April 25, 2016; she averaged ~13.6 hours/week and informed the employer of mandatory National Guard training in Alaska from July 15 to August 8, 2016.
- While Mace was on military leave Willis removed her from the employer’s scheduling app; her name was unavailable to the manager (David Borchardt) when he created the August schedule and she received no hours after returning.
- After returning on August 8 Mace repeatedly attempted to notify and access the schedule; Willis and Borchardt told her she had been replaced and there were no hours for her; they later offered to reinstate her roughly three weeks after her return when another employee quit.
- Mace remained unemployed from August 8 until she found other work on September 19 and sued under USERRA (38 U.S.C. §§ 4301–4335) seeking lost wages, liquidated damages, and fees.
- The court found defendants violated § 4312 (failure to promptly reemploy), declined to find liability under § 4311 (discrimination), found the violation willful (so liquidated damages apply), held Willis and Kickbox jointly and severally liable but dismissed Borchardt individually, and awarded lost wages of $979.20 plus an equal amount in liquidated damages and fees to be petitioned separately.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants failed to promptly reemploy Mace under § 4312 | Mace timely notified before and after leave and was not promptly reemployed; removal from scheduler and refusal to give hours violated § 4312 | Mace had been replaced; schedule was full; removal from app was routine/administrative and to save costs | Court: Violation of § 4312 — defendants failed to promptly reemploy her |
| Whether defendants discriminated in violation of § 4311 | Military service was a motivating factor in refusal to reemploy | Actions were facially neutral business decisions (replacement, scheduling policy) | Court: No § 4311 liability — insufficient evidence of military‑motivated discrimination |
| Whether defendants’ conduct was willful (liquidated damages) | Defendants acted with reckless disregard by ignoring reemployment requests and delaying offer for ~3 weeks | Defendants claim business judgment; no intent to violate law | Court: Violation was willful as to Willis/Kickbox; liquidated damages awarded |
| Whether individual defendants are personally liable under USERRA | Mace sued Willis and Borchardt individually | Willis (owner) had hiring/firing control; Borchardt lacked authority to hire/fire or alter app list | Court: Willis (and Kickbox) liable; Borchardt not individually liable |
Key Cases Cited
- Dorris v. TXD Servs., LP, 753 F.3d 740 (8th Cir. 2014) (USERRA protects rights/benefits while on leave; reemployment context)
- Serricchio v. Wachovia Sec., LLC, 658 F.3d 169 (2d Cir. 2011) (failure to respond for months can support willfulness/liquidated damages)
- Petty v. Metro. Gov’t of Nashville‑Davidson Cnty., 538 F.3d 431 (6th Cir. 2008) (neutral policies cannot defeat § 4312 reemployment obligations)
- Clegg v. Ark. Dep’t of Corr., 496 F.3d 922 (8th Cir. 2007) (distinguishing scope of §§ 4312 and 4311; § 4312 protects up to reemployment)
- Davis v. Crothall Serv. Grp., Inc., 961 F.Supp.2d 716 (W.D. Pa. 2013) (replacement of employee is not a defense to § 4312)
- Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299 (4th Cir. 2006) (§ 4312 limits and interplay with other USERRA provisions)
- Vander Wal v. Sykes Enters., Inc., 377 F.Supp.2d 738 (D.N.D. 2005) (reinstatement within days can satisfy “prompt reemployment”)
- Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (U.S. 1985) (definition of “willful” for liquidated damages context)