United States of America v. Missouri State Of et al

Filing 23

ORDER. Defendants State of Missouri, Missouri National Guard, and Major General Stephen L. Danner's motion to dismiss for failure to state a claim, 13 , is DENIED. Signed on 6/9/2014 by District Judge Nanette K. Laughrey. (Weber, Alex)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION

UNITED STATES OF AMERICA,
Plaintiff,
v.
STATE OF MISSOURI, et al.,
Defendants.

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No. 2:14-CV-04036-NKL

ORDER
Defendants State of Missouri, Missouri National Guard, and Major General
Stephen L. Danner move to dismiss the Complaint of Plaintiff United States of America
for failure to state a claim. [Doc. # 13]. For the reasons set forth below, Defendants’
motion is DENIED.
I.

Background
The Missouri National Guard employs civilian National Guard technicians to

perform administrative, personnel, maintenance and other tasks to support the Missouri
National Guard’s soldiers. These civilian employees are commonly referred to as “dual
technicians.” One such dual technician, Kristina Holt, applied for and was accepted into
the Army’s Active Guard and Reserve (“AGR”) program, commencing in November
2011. According to the Complaint, Missouri National Guard policy required Holt to sign
a document in which she agreed to be separated (i.e. terminated) from her civilian
position prior to serving in the AGR program. Holt subsequently filed a complaint about
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this practice with the United States Department of Labor, which was found to be
meritorious.
As a result, the matter was referred to the Department of Justice to initiate this
enforcement action. Plaintiff claims that Defendants’ practice of failing or refusing to
place dual technicians on furlough or leave of absence when they are performing active
military service through the AGR program, and instead requiring them to separate from
their civilian position with the Missouri National Guard, violates the Uniformed Services
Employment and Reemployment Act of 1994 (“USERRA”), 38 U.S.C. §§ 4301, et seq.
Plaintiff further claims that, as a result of this violation, dual technicians such as Holt are
deprived of their entitlement to fifteen days per year of paid military leave under 5 U.S.C.
section 6323.
II.

Discussion
Defendants move to dismiss Plaintiff’s Complaint for failure to state a claim.

Plaintiff argues that the Complaint plausibly alleges a violation of the following
USERRA provision:
Subject to paragraphs (2) through (6), a person who is absent from a
position of employment by reason of service in the uniformed services shall
be—
(A) deemed to be on furlough or leave of absence while performing
such service; and
(B) entitled to such other rights and benefits not determined by seniority
as are generally provided by the employer of the person to employees
having similar seniority, status, and pay who are on furlough or leave of
absence under a contract, agreement, policy, practice, or plan in effect at
the commencement of such service or established while such person
performs such service.
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38 U.S.C. § 4316(b)(1). Plaintiff claims that Defendants’ practice of requiring dual
technicians to terminate their civilian positions before serving in the AGR program,
rather than placing them on furlough or leave of absence, violates subparagraph (A) of
this section, thereby depriving individuals such as Holt of the rights and benefits to which
they are entitled under subparagraph (B).
Defendants argue that section 4316(b)(1) does not apply in this case because the
Complaint alleges that Holt voluntarily enlisted in a career program, agreed to be
separated from her civilian position, and waived her rights under USERRA. An
employee may waive USERRA rights by voluntarily resigning from a civilian position
and pursuing a career in military service. See, e.g., Paisley v. City of Minneapolis, 79
F.3d 722, 724 (8th Cir. 1996). However, the Complaint does not allege that Holt left her
civilian position for a career in the military. Rather, the Complaint alleges that Holt was
accepted into the AGR program “for a three year tour of duty,” with no further indication
as to whether Holt did or did not intend to return to her civilian position after this initial
tour. [Doc. # 1 at 3]. Accepting as true the factual allegations in the Complaint and
drawing all reasonable inferences in favor of Plaintiff, as is required on this motion, see
Freitas v. Wells Fargo Home Mortgage, Inc., 703 F.3d 436, 441 (8th Cir. 2013), the
Complaint plausibly alleges that Defendants violated USERRA.
The primary dispute on this motion is whether Holt necessarily intended to pursue
a career in military service by joining the AGR program. An employee’s intent to
permanently resign from a civilian position in favor of career military service is generally
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a fact-intensive inquiry that entails an analysis of both the employee’s stated intent and
objective indicia of actual intent. See, e.g., Paisley, 79 F.3d at 724; see also Erickson v.
U.S. Postal Serv., 636 F.3d 1353, 1356-58 (Fed. Cir. 2011). Nonetheless, Defendants
maintain that positions in the AGR program are by definition career positions, such that
every individual who participates in this program is necessarily electing to pursue a
career in military service. For support, Defendants cite Army Regulation 135-18, ¶ 16(a), which states that AGR provides for “[a] career program offering opportunities that
encourages retention through promotion, professional development, and assignments or
attachments to positions of increased responsibility.”
The same paragraph of this regulation, however, states that the AGR program also
provides for “[e]ntry into the program of soldiers who may desire to serve only initial or
occasional AGR tours, as well as soldiers who serve in a career status.” Army Reg. 13518, ¶ 1-6(d). Furthermore, although the period of active duty in the AGR program
following the initial, three-year requirement is “for an indefinite period,” this is subject to
the soldier’s voluntary reenlistment. See id. at ¶ 2-6(b). In addition, the checklist form
that Holt completed prior to entering the AGR program specifically acknowledged that if
she left the program prior to serving five years, she would have reemployment rights
under USERRA. [Doc. # 13-1 at 1].
Thus, based on the materials presented on this motion, it appears that an individual
who participates in the AGR program may choose to make it a career, but she may also
choose to serve only the initial, three-year period or occasional tours. Non-career
military service, as defined in the relevant regulations, specifically includes this type of
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one-time or sporadic active duty service. See 32 C.F.R. § 104.3. Consequently, there is
little basis for concluding that, as a matter of law, individuals who participate in the AGR
program are categorically not entitled to the leave of absence protections of USERRA.
In fact, the Supreme Court concluded that the analogous provisions of the
Veterans’ Reemployment Rights Act, the predecessor to USERRA “cover[ed] AGR
participants.” King v. St. Vincent’s Hosp., 502 U.S. 215, 217, n.5 (1991). Likewise,
lower courts have regularly applied USERRA to AGR program participants, subject only
to the fact-intensive inquiry into whether the employee abandoned her civilian position in
favor of a military career. See, e.g., Lindsley v. Office of Pers. Mgmt., 126 F. App’x 959,
960 (Fed. Cir. 2005); Lapine v. Town of Wellesley, 304 F.3d 90, 102 (1st Cir. 2002). This
is consistent with the principal purposes of USERRA, which include encouraging
“noncareer service in the uniformed services by eliminating or minimizing the
disadvantages to civilian careers and employment which can result from such service.” §
4301(a)(1). As discussed above, the AGR program specifically provides for the
enlistment of individuals who intend to serve only once or occasionally. As such, it
would be inconsistent with the stated purpose of USERRA to hold that the statute does
not apply to individuals who voluntarily elect to serve in the AGR program for a limited
time, with no intent to make it a career.
Defendants also argue that soldiers entering the AGR program indicate their intent
to accept a career military position by agreeing in writing to separate from their civilian
employment. The Missouri National Guard’s practice of imposing this requirement,
however, is the very basis of Plaintiff’s Complaint. Although an employee may waive
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her USERRA rights, “an employer cannot circumvent an employee’s right to
reemployment through a policy of denying leaves of absence.” Kiszka v. Office of Pers.
Mgmt., 372 F.3d 1301, 1306 (Fed. Cir. 2004). In this case, the Complaint alleges that the
Missouri National Guard “forc[es] dual technicians to separate from their employment,”
and “required [Holt] to sign a document in which she agreed to be separated (i.e.,
terminated) from her civilian position rather than allowing her to remain a Missouri
National Guard employee and placing her on furlough or leave of absence.” [Doc. # 1 at
3]. This is sufficient to support the plausible inference that the Missouri National Guard
refuses requests for leaves of absence in lieu of termination, thereby circumventing the
USERRA rights of individuals who do not enter the AGR program intending to pursue a
career in military service.
Furthermore, Defendants have “the burden of proving that a person knowingly
provided clear written notice of intent not to return to a position of employment after
service in the uniformed service and, in doing so, was aware of the specific rights and
benefits to be lost.” § 4316(b)(2)(B). The materials cited by Defendant do not show that
Holt knew that she could request a leave of absence in lieu of separating from her civilian
position if she did not intend to pursue career military service. Furthermore, considering
that the checklist form specifically acknowledges the existence of reemployment rights
under USERRA, [Doc. # 13-1 at 1], this form, standing alone, cannot satisfy Defendants’
burden of proving that Holt did not intend to return to civilian employment. Accordingly,
the existence of this waiver defense is not apparent from the face of the pleadings and
dismissal is not appropriate on this ground.
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III.

Conclusion
For the reasons set forth above, Defendants’ motion to dismiss, [Doc. # 13], is

DENIED.

/s Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: June 9, 2014
Jefferson City, Missouri

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