No Second Bite for Employer that Consented to Jury Ruling

Takeaway: The most significant issue in this appeal involved a procedural ruling. But the facts of the case tell a cautionary tale of unchecked discriminatory behavior by an expert director of a highly specialized employee group coupled with the hands-off approach of an inexpert agency chief. The latter, at the employer’s peril, rubber-stamped the director’s tainted disciplinary recommendation. 

​In a case involving the Uniformed Services Employment and Reemployment Rights Act (USERRA), the trial judge who, with the parties’ consent, instructed a jury to decide the issue of willfulness was required to accept the jury’s finding on that issue, according to the 11th U.S. Circuit Court of Appeals.

A jury determined the employer had discriminated and retaliated against a helicopter pilot in violation of USERRA, and it awarded the employee $240,000 in lost wages and benefits. The jury also answered “Yes” to the question of whether the employer “willfully” violated the law, which would entitle the employee to double damages. Nevertheless, the trial judge rejected the jury’s finding of willfulness and denied the employee’s motion to alter the verdict in that regard. The judge also denied the employer’s motions for judgment as a matter of law or a new trial.

The appeals court affirmed the denial of the employer’s motions for judgment as a matter of law or a new trial because there was sufficient evidence supporting the verdict. It also reversed the denial of the employee’s motion to alter the judgment because the parties had consented to have the jury decide the issue of willfulness.


The plaintiff applied to work as a helicopter pilot for a local law enforcement agency. The applicant had sufficient military training and experience to meet the job qualifications. He kept two flight logbooks: an official one and a backup. When asked to share his logbook during an interview, the pilot said he kept it elsewhere and would need FBI clearance to disclose its contents. The pilot instead offered, and the recruiter accepted, his backup logbook, which contained nearly the same information with sensitive details redacted.

The agency hired the pilot and placed him on a year’s probation, during which his employment could be terminated for any nondiscriminatory reason. The employer simultaneously hired four more pilots, all but one of whom had trained as military pilots. The one exception had over a decade of civilian pilot experience and was named chief pilot. Shortly thereafter, she became interim director of operations, reporting to the agency’s chief. The director’s animosity toward the military pilots soon became apparent in myriad ways well documented in the record. Eventually, the plaintiff raised his concerns about the director with another staff member, who shared them with the chief.

During an investigation of all the pilots’ backgrounds, the plaintiff, with the director’s apparent approval, again relied on his backup logbook. The flight hours recorded there differed somewhat from those on his resume. The director recommended, and the chief agreed, to terminate the pilot’s probationary employment due to “major discrepancies” in his flight experience paperwork. The pilot accepted the choice to resign rather than be fired.

The plaintiff alleged that the employer violated USERRA by discriminating against him based on his military service and by retaliating against him when he complained. The trial judge submitted this question to the jury: “Do you find from a preponderance of the evidence … [t]hat [the employer] willfully violated the law?” The jury answered, “Yes.” It awarded the pilot $240,000 in damages for lost wages and benefits on the discrimination count and zero damages on the retaliation count.

Because of the willfulness finding, the employee moved for liquidated damages. The trial judge denied the motion, considering the jury finding to be advisory and not finding the employer’s violation to be willful. Both parties appealed.

An employer violates USERRA when it terminates the employment of a person who has served in a uniformed service, on the basis of that service. An employee proves a violation by establishing that the uniformed service was a motivating factor in the employer’s action, unless the employer can prove that the action would have been taken regardless of the employee’s service.

The 11th Circuit held the employer was not entitled to judgment as a matter of law or a new trial because the evidence supported the jury verdict of discrimination. Even though it wasn’t the ultimate decision-maker, substantial evidence supported the finding that the director was the proximate cause of the pilot’s termination. The appeals court further held it lacked jurisdiction to review denial of the employer’s motion on the retaliation count. Having been assessed no damages for retaliation, the employer suffered no harm and, therefore, lacked standing to appeal that ruling.   

The trial court did err, however, by not granting the employee’s motion to alter the judgment, the 11th Circuit said. A jury’s finding is presumptively binding under Federal Rule of Civil Procedure 39(c)(2) when the parties have consented to a jury trial on an issue, the 11th Circuit held in accord with the 3rd, 5th, 6th and 7th Circuits. Here, the parties did consent via proposed jury instructions. Because the trial court did not specify otherwise, the willfulness finding was binding by default. The judgment should have been altered to reflect the jury finding.

Thomas v. Broward County Sheriff’s Office, 11th Cir., No. 22-11322 (June 22, 2023).

Margaret M. Clark, J.D., SHRM-SCP, is a freelance writer in Arlington, Va.

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