Submitted: June 14, 2018
Appeal
from United States District Court for the District of South
Dakota - Sioux Falls
Before
WOLLMAN, ARNOLD, and KELLY, Circuit Judges.
KELLY,
Circuit Judge.
Corey
Willis and his kickboxing gym, Kickbox Dakota LLC, appeal
from the district court's[1] order granting former employee
Kieshia Mace relief under the Uniformed Services Employment
and Reemployment Rights Act (USERRA or the Act).
Mace, a
member of the South Dakota National Guard, was working at
Kickbox Dakota when she left for three weeks of mandatory
military training. In the months leading up to her departure,
Mace was averaging 13.6 hours per week at Kickbox Dakota.
Mace, like the other fitness trainers, was not guaranteed
shifts at the gym. Instead, Kickbox Dakota's owner,
Willis, or his general manager would schedule trainers like
Mace for shifts using a mobile app, and would sometimes call
Mace in to cover shifts for absent coworkers. There is no
dispute that Mace timely notified Willis that she was a
member of the National Guard, and that her departure was for
mandatory military training.
While
Mace was away at training, Willis deleted her from the
scheduling app and hired a new employee to take shifts at the
gym. When Mace returned, she asked why she could not access
the app. Two days after Mace returned, Willis hired another
new employee. Meanwhile, Willis's general manager told
Mace she had been replaced. Although Willis later offered to
put Mace back on the schedule, she decided to find other work
instead. She filed this lawsuit. After a bench trial, the
district court found that Willis had violated USERRA by
failing to promptly reemploy Mace, and that the violation was
willful. On appeal, we review the district court's
fact-finding for clear error and its legal conclusions de
novo. Lisdahl v. Mayo Found., 633 F.3d 712, 717 (8th
Cir. 2011).
USERRA
protects "any person whose absence from a position of
employment is necessitated by reason of service in the
uniformed services . . . ." 38 U.S.C. § 4312(a).
The Act generally "entitle[s]" these service
members, with some limitations not relevant here, to
reemployment "in the position of employment in which
[they] would have been employed if [their] continuous
employment . . . had not been interrupted" by military
service. Id. § 4313(a)(1)(A), (a)(2)(A). And
although "USERRA cannot put the employee in a
better position than if he or she had remained in
the civilian employment position," 20 C.F.R. §
1002.42(c) (emphasis added), the Act "must be broadly
construed in favor of its military beneficiaries."
Maxfield v. Cintas Corp. No. 2, 427 F.3d 544, 551
(8th Cir. 2005) (quoting Hill v. Michelin N. Am.,
Inc., 252 F.3d 307, 312-13 (4th Cir. 2001)).
Willis
argues that he is not liable under USERRA because he
did put Mace back in the same position she left when
she departed for training: an employee whom he had complete
discretion to assign no shifts at all. We disagree. The facts
clearly indicate that Willis replaced Mace and did not later
reemploy her. Willis and his general manager used the app to
schedule employees' shifts, so the effect of removing
Mace from the app was to remove her from the pool of eligible
workers. Willis also hired two additional staff members-one
while Mace was gone, and one shortly after she returned-and
told Mace (through his manager) that she had been replaced.
Because
Willis did not promptly reemploy Mace following her military
service, he and Kickbox Dakota can only avoid USERRA
liability if the Act does not apply to employees who lack
guaranteed shifts. But it does. The Act's implementing
regulations make clear that even temporary, probationary, and
seasonal employees enjoy USERRA protections. 20 C.F.R. §
1002.41 ("USERRA rights are not diminished because an
employee holds a temporary, part-time, probationary, or
seasonal employment position."); see also 38
U.S.C. § 4316(c)(2). And although employers have an
affirmative defense when the job in question "was for a
brief, nonrecurrent period and there is no reasonable
expectation that the employment would have continued
indefinitely or for a significant period," 20 C.F.R.
§ 1002.41, Willis did not raise it in the district court
or on appeal. Nor does Willis invoke any of USERRA's
other exceptions. See, e.g., 38 U.S.C. §
4312(d). Accordingly, Willis and Kickbox Dakota were
obligated to promptly reemploy Mace upon her return from
mandatory military training. Though this requirement may
burden employers like Kickbox Dakota, the Act reflects
Congress's determination that, in the main, this burden
is justified to ensure that members of the armed forces do
not lose their livelihoods because of their service to the
nation. See 38 U.S.C. § 4312(d) (providing
employers with only limited statutory exemptions);
Maxfield, 427 F.3d at 551.
Willis
also briefly contests the district court's finding that
he willfully violated USERRA. This is a factual argument and
Willis has not shown clear error. At trial, Willis testified
that he knew members of the armed forces enjoyed reemployment
rights, and Mace testified that she warned Willis's
general manager that Kickbox Dakota was probably violating
its obligations under the Act. These facts support the
inference that Willis (and by extension, Kickbox Dakota)
"knew or showed reckless disregard for whether its
conduct was prohibited by the Act." 20 C.F.R. §
1002.312(c). Because the district court's finding of
willfulness was not clearly erroneous, Mace is entitled to
liquidated damages. See id.
For
these reasons, we affirm the judgment of the district court.
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