               United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 17-2130
                        ___________________________

                                    Kieshia Mace

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

   Corey Willis, individually; Kickbox Dakota, LLC, a South Dakota Limited
                               Liability Company

                    lllllllllllllllllllllDefendants - Appellants

                                  David Borchardt

                             lllllllllllllllllllllDefendant
                                    ____________

                   Appeal from United States District Court
                 for the District of South Dakota - Sioux Falls
                                 ____________

                             Submitted: June 14, 2018
                               Filed: July 26, 2018
                                  ____________

Before WOLLMAN, ARNOLD, and KELLY, Circuit Judges.
                         ____________

KELLY, Circuit Judge.
       Corey Willis and his kickboxing gym, Kickbox Dakota LLC, appeal from the
district court’s1 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).




      1
       The Honorable Veronica Duffy, United States Magistrate Judge for the
District of South Dakota, to whom the case was submitted by consent of the parties
under 28 U.S.C. § 636(c).

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       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

                                        -3-
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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