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Mace v. Willis

United States District Court, D. South Dakota, Southern Division

April 21, 2017

KIESHIA MACE, Plaintiff,


          VERONICA L. DUFFY United States Magistrate Judge.


         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]


         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 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 shifts.

         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 handbook.[4]

         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 Exhibit 10.

         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 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 so long.

         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 her shift.

         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 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 later.

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 phone.

         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 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 part-time 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 schedule.

         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.


         A. 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. ยง 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 ...

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