United States District Court, D. South Dakota, Southern Division
VERONICA L. DUFFY United States Magistrate Judge.
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.
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.
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.
being hired, Ms. Mace informed Mr. Willis that she was a
member of a National Guard unit out of Sioux City, Iowa,
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.
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. At no time did Kickbox ever guarantee Ms.
Mace that she would work a certain number of hours.
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.
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.
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.
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.Mr. Borchardt had the authority to take
employees off the schedule, to add them to the schedule, and
to shift schedules between employees.
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.
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.
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.
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.
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
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.
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. 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.
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.
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 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.
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.
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.
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
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)).
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 ...