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South Dakota Kickboxing Gym Liable for Employment Discrimination Against National Guard Member

August 9th, 2018 by David Minces

Last month, the Eighth Circuit gave a South Dakota kickboxing gym the foot for replacing a gym instructor because she attended mandatory National Guard training. In its ruling on Mace v. Willis, the Eighth Circuit ordered Corey Willis, the owner of Kickbox Dakota LLC, to pay damages to former gym instructor and National Guard member Kieshia Mace. Circuit Judges Roger Wollman, Morris Arnold, and Jane Kelly found that the gym “knew or showed reckless disregard for whether its conduct was prohibited” by the Uniformed Services Employment and Reemployment Rights Act (USERRA).

USERRA was passed by Bill Clinton on October 13, 1994 for the purpose of establishing rights and responsibilities for uniformed service members and their civilian employers. Those who have served our nation often struggle to reintegrate back into civilian life. This phenomenon is a major theme in many famous literary and artistic works, including the novel The Things They Carried by Tim O’Brien, which was dubbed by the New York Times as the “Book of the Century”, and Bruce Springsteen’s popular song ironically named “Born in the U.S.A.” USERRA partially addresses these problems by attempting to reduce the deprivations service members may face in the job market. It seeks to ensure that those in service and those who have served are not disadvantaged or discriminated against in their civilian careers due to past, present, or future service. The law also intends to promote the prompt reemployment of servicemen upon return to civilian life.

Image from Army.mil

Image from Army.mil

The Eighth Circuit found that Kickbox Dakota failed to uphold the standards set by USERRA in failing to reemploy Kieshia Mace after she left to participate in mandatory military training. In addition to serving in the National Guard, Mace spent an average of 13.6 hours a week as a gym instructor for Kickbox Dakota. Mace, like other fitness trainers at Kickbox Dakota, was not guaranteed shifts to work. Instead, she would be scheduled for shifts by her general manager through a mobile app. Sometimes, if a coworker was absent, she would be assigned to cover his or her shift. Mace had to leave her employment at Kickbox Dakota for three weeks due to mandatory military training. Both sides agreed that she gave timely notification that she was a member of the National Guard and that she was departing for mandatory training. When she returned, though, Mace found that she had been deleted from the scheduling app, and that a new instructor had been hired during her absence. The general manager told her that she had been replaced and did not put her back on the scheduling app. Additionally, rather than rehiring her, the manager hired another new instructor two days after she returned. Eventually, Willis offered Mace her job back, but Mace had already decided to look for new employment.

Mace also sued Willis for the actions of Kickbox Dakota. The case was appealed from the U.S. District Court for the District of South Dakota – Sioux Falls to the U.S. Court of Appeals for the Eight Circuit. The Eight Circuit, whose jurisdiction stretches from Arkansas all the way to North Dakota, encompasses seven states, and serves as the level below the Supreme Court. It is supervised by Justice Neil Gorsuch, the newest member of the Supreme Court. The actions of Kickbox Dakota resulted in the Eight Circuit finding Willis liable for willfully failing to reemploy Mace in a prompt manner.

Photo from Vimbly

Photo from Vimbly

Most of the deliberation in Mace v. Willis centered around two issues. Willis argued that he did not violate USERRA willfully. The court found this to be untrue due to both Mace’s and Willis’s own testimony. In addition to Mace testifying that she had warned the general manager that Kickbox Dakota’s actions violated the USERRA, Willis testified that he knew service members had reemployment rights. Willis also argued that, under Kickbox Dakota’s employment structure, its fitness instructors were not guaranteed shifts. Because of this, Willis claimed that Mace was back in the same position that she left, even if she was not being assigned shifts. The Court disagreed, finding that her removal from the scheduling app effectively removed Mace from the pool of eligible workers, thus amounting to termination of employment.

Looking forwards, the most significant effect this ruling has on employers and military employees is the Court’s rejection of Willis’s second argument. The Eighth Circuit’s ruling affirms the notion that the USERRA extends to even temporary, seasonal, and probationary employees. The fact that a company like Kickbox Dakota does not give employees guaranteed shifts does not allow the company to avoid regulation set by the USERRA.

foldsofhonor.org

Image from foldsofhonor.org

Minces PLLC is dedicated to fighting for those who have been wronged, especially for those who have served our country. Minces PLLC is proud to support Folds of Honor, which provides scholarships to children and spouses of our fallen and disabled servicemen. If you have been discriminated against illegally by your employer, do not hesitate to give us a call. Our lawyers have decades of combined experience in protecting employee rights.

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