On April 8, 2016, the Sixth Circuit Court of Appeals affirmed a judgment in favor of an employer in Hance v. BNSF Railway Company, a failure-to-hire retaliation case brought under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA).


In January of 2013, Kelly Hance filled out an application for a conductor trainee position with BNSF Railway Company. On his application, cover letter, and resume, Hance indicated that he had previously worked for another railroad, Norfolk Southern Railway Company, from 1999 until 2009. Hance also indicated that he had resigned with notice from Norfolk Southern. After passing a preliminary screening process, Hance was invited to attend a hiring event in Birmingham, Alabama, which included an interview before a two-person panel.

In response to questions during the interview, Hance revealed that Norfolk Southern involuntarily terminated his employment in 2001, that he then sued Norfolk Southern under USERRA, and that the Sixth Circuit ultimately upheld a finding that Norfolk Southern had discriminated against him in violation of USERRA. Hance was not offered the job.

BNSF asserted that it did not offer Hance a job because he had not been truthful on his application or at the outset of the interview regarding his previous experience with Norfolk Southern. Specifically, Hance embellished his length of service with Norfolk Southern and told the interview panel at BNSF that he had resigned with notice from Norfolk Southern.

The Sixth Circuit’s Decision

On August 23, 2013, Hance filed a lawsuit in the U.S. District Court for the Western District of Tennessee against BNSF alleging discrimination and retaliation in violation of USERRA. Hance claimed that BNSF’s decision not to extend him a job offer was because of his military status and in retaliation for his previous lawsuit against Norfolk Southern. At summary judgment, the district court dismissed Hance’s USERRA discrimination claim, but denied summary judgment as to the retaliation claim, which proceeded to trial.  

Prior to trial, Hance submitted a proposed pretrial order, which included a new willful misconduct allegation and a claim for liquidated damages that Hance had not previously pled. BNSF moved to strike the claims. The district court agreed and held that Hance could not amend his complaint with new allegations 15 months after the amendment deadline had passed. Because liquidated damages were not at issue, the court also held that Hance was not entitled to a jury trial.  

Following a two-day bench trial, the district court entered judgment in favor of BNSF, finding that BNSF’s decision had not been motivated by any protected conduct by Hance. Hance appealed the district court’s decision not to allow him to amend his complaint to add a willful claim, and its finding that BNSF had not retaliated against Hance in violation of USERRA.

On April 8, 2016, the Sixth Circuit affirmed the district court’s judgment in favor of BNSF. The appellate court held that Hance had failed to establish good cause for his untimely amendment. It also found that granting Hance leave to amend would have prejudiced BNSF because discovery had not been conducted on the willfulness issue and neither party had filed a single motion (including summary judgment) addressing it. Further, relying on the “honest belief rule,” the Sixth Circuit held that BNSF had proven by a preponderance of the evidence that it had rejected Hance’s application because it thought he was untrustworthy due to the discrepancies between his application materials and the true nature of his work history.

Key Takeaways

There are at least two instructive points to appreciate from this case:

1. Read a complaint carefully to analyze the claims brought by a plaintiff and determine whether those claims provide a right to trial by jury. Here, the plaintiff sought to add new claims on the eve of trial, which could have changed the nature of the trial significantly.  

2. Make sure that there is a legitimate, clearly articulated reason for making an adverse employment decision against an employee who has engaged in protected activity. Those who have engaged in protected activity aren’t immune from adverse decisions, but it is helpful for employers to continue to ensure that their decisions are nondiscriminatory and can be proven.    


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