United States of America v. Missouri State Of et al

Filing 57

ORDER granting Plaintiff's motion for partial summary judgment, Doc. 38 ; denying Defendants' motion for summary judgment, Doc. 40 . Signed by Judge Nanette Laughrey on 12/19/2014. (Hatting, Elizabeth)

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
Pending before the Court are the cross motions for summary judgment of Plaintiff
United States of America and Defendants State of Missouri, et al. [Docs. 38 and 40].
For the reasons set forth below, Plaintiff United States’ motion for partial summary
judgment, Doc. 38, is granted in part, and Defendants’ motion for summary judgment,
Doc. 40, is denied.
I.

Undisputed Facts
The Missouri National Guard (“Guard”) employs technicians to provide

administrative, personnel, maintenance, and other support to the Guard’s soldiers. These
employees are referred to as “dual status technicians” because they are both full-time
federal civilian employees and reservists in the Guard. The Guard is also responsible for
staffing a full-time, active duty military program called the Active Guard and Reserve
(“AGR”) program. [Doc. 41, p. 3; Doc. 49, p. 4]. Unlike dual status technicians, AGR
soldiers are on active military duty for the Guard. [Doc. 41, p. 4; Doc. 49, p. 4].

Dual status technicians often apply for and are accepted into full-time positions in
the AGR program. [Doc. 41, p. 5; Doc. 49, p. 4]. Prior to July 2010, dual status
technicians who accepted positions in the AGR program could choose either:
1) Leave Without Pay – Uniformed Services (“LWOP-US”)1: [A]
temporary non-pay status and non-duty status (or absence from a
prescheduled tour of duty) granted at the employee’s request. LWOPUS . . . is a nature of action specifically used to document a leave of
absence to perform duty with the uniformed services. [Doc. 41-10;
Office of Personnel Management definition], or
2) Separation – Uniformed Services (“Separation-US”): [A] separation
action initiated by an agency when the employee enters on duty with the
uniformed services and provides written notice of intent not to return to
a position of employment with the agency or elects to be separated in
lieu of placement in a leave without pay status. Id.
[Doc. 41, p. 6; Doc. 49, p. 4]. Employees on LWOP-US status received up to fifteen
days of military leave each year pursuant to 5 U.S.C. § 6323(a)2, in addition to receiving
their military salary. [Doc. 41, p. 7; Doc. 49, p. 4]. Practically speaking, this leave
allowance entitled them to fifteen days of dual status technician pay from the Guard each
year while they were working full time as an AGR program participant. Those opting
voluntarily for Separation-US status prior to July 2010 did not receive military leave. See
5 U.S.C. § 6323(a); [Doc. 41, p. 7; Doc. 49, p. 4].
After July 2010, Defendants no longer permitted dual status technicians seeking
employment in the AGR program to take LWOP-US status. Instead, the Guard required
1

In March 2010 the Office of Personnel Management discontinued the LWOP-US status
and replaced it with “Absent-US” status, which afforded status holders the same fifteen
days of military leave. “LWOP-US” is used throughout this Order to refer to both
statuses synonymously.
2
This section mandates the fifteen days of military leave for employees listed in 5 U.S.C.
§ 2105 and civilian employees in the National Guard are identified in that statute.
2

them to take Separation-US status. In addition, the dual status technicians who joined the
AGR program after July 2010 are not given fifteen days of military leave pay. [Doc. 41,
p. 9; Doc. 49, p. 4].
After July 2010, the Guard required dual status technicians enlisting as AGR
employees to sign two forms: “Checklist for Technicians Entering AGR Active Duty
Title 32 Military Career Service Program” (“AGR Checklist”) and “Statement of
Understanding.” [Doc. 41, p. 10; Doc. 49, p. 4]. The AGR Checklist contains the
following provisions:
I understand that I am SEPARATING from the technician program
as a condition of my AGR employment.
I understand that, should I leave the AGR program, and the
cumulative time spent as an AGR is less than 5 years, that I have
reemployment rights under USERRA to a like military technician
position with the Missouri National Guard.
I understand that by electing Separation-US, I am not eligible for
military leave accrual or use.
Id. The Statement of Understanding contains the following statement:
As a Dual Status Military Technician, I understand as a condition of
employment for entering the AGR career program, I will be
separated from the Technician program under the provisions of
Separation-US (SEP-US). All military leave accrued as a technician
will be used prior to entering the AGR program. Military leave will
not accrue while I am in a SEP-US status. I further understand that
should I leave the AGR program, and the cumulative time spent as
AGR is less than 5 years, that I have reemployment rights to a like
Military Technician position within the Missouri National Guard.
Also, I understand I will receive a briefing from the Employee
Relations Branch of HRO prior to beginning this AGR tour and I
will attend an AGR Orientation Briefing within one month of
starting on AGR Orders.
I have read and understood this condition of employment.
3

Id. If an applicant refuses to take Separation-US status or sign one of these forms, the
Guard will not employ that person in the AGR program. Id.
II.

Discussion
Congress enacted the Uniformed Services Employment and Reemployment Rights

Act of 1994 (“USERRA”) “to encourage noncareer service in the uniformed services by
eliminating or minimizing the disadvantages to civilian careers and employment which
can result from such service” and “to prohibit discrimination against persons because of
their service in the uniformed services.” 38 U.S.C. §§ 4301, et seq. In order to meet
these goals, USERRA provides various vacation and reemployment guarantees to ensure
that noncareer service members may maintain employment and advancement
opportunities in civilian careers while completing military service and training as
necessary. The Supreme Court has consistently held that USERRA is to be “liberally
construed for the benefit of those who left private life to serve their country.” Fishgold v.
Sullivan Drydock and Repair Corp., 328 U.S. 275, 285 (1946); see also Dorris v. TXD
Services, LP, 753 F.3d 740, 745 (8th Cir. 2014).
The United States contends that it is entitled to summary judgment because the
Guard’s policy of refusing to allow dual status technicians entering the AGR program to
assume LWOP-US status and denying them the fifteen days of military leave afforded to
LWOP-US status-holders violates USERRA. Defendants argue that the Guard’s policy is
permissible in that it does not affect any USERRA-protected rights. The Court finds that
Defendants’ failure to provide military leave to Plaintiffs violates USERRA. Military

4

leave is a benefit mandated by USERRA and the AGR Checklist and Statement of
Understanding are not sufficient to waive that right.
A. USERRA Benefits
USERRA requires that civilian employers3 make accommodations for employees
who are absent due to a period of service in the uniformed services:
. . . [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.
38 U.S.C. § 4316(b)(1).

USERRA also prohibits discrimination against military

personnel. Id. at § 4311(a). The United States contends that Defendants violate these
statutes by forcing AGR participants to take on Separation-US status and denying them
the annual fifteen days of military leave available to LWOP-US status holders.
“Sections 4311(a) and § 4316(b)(1) explicitly protect ‘benefits’ of employment,
which USERRA broadly defines as including ‘any advantage, profit, privilege, gain,
status, account, or interest (other than wages or salary for work performed) that accrues
by reason of an employment contract or agreement or an employer policy, plan, or
3

Defendants argue briefly that as a “military employer,” they cannot discriminate based
on military service. However, in their Answer, Defendants admit that per USERRA the
Guard is a civilian employer of National Guard Technicians employed under Section 709
of Title 32 of the United States Code. As such, Defendants are subject to USERRA.
5

practice.’” Dorris v. TXD Services, LP, 753 F.3d 740, 745 (8th Cir. 2014). Federal law is
well settled that “military leave afforded by 5 U.S.C. § 6323(a) is a benefit of
employment.” Pucilowski v. Dept. of Justice, 498 F.3d 1341, 3144 (Fed. Cir. 2007)
(citing Butterbaugh v. Dept. of Justice, 336 F.3d 1332, 1336 (Fed. Cir. 2003)).
Therefore, eligible military personnel are entitled to military leave from their civilian
employer as a USERRA protected benefit. See 38 U.S.C. § 4316(b)(1).
The United States argues that Defendants violate 38 U.S.C. § 4316(b)(1)(A) when
they classify dual status technicians taking full-time positions in the AGR program as
Separation-US rather than LWOP-US. The United States argues that all absent civilian
employees must be “deemed to be on furlough or leave of absence,” and any
classification to the contrary violates USERRA.

However, the Code of Federal

Regulations, as cited by the Eighth Circuit, makes clear that an employer’s classification
scheme is “of no effect” in the ultimate determination of whether the employer’s actions
violated USERRA. Dorris v. TXD Services, LP, 753 F.3d 740, 744 (8th Cir. 2014).
Individuals on leave to perform military service are entitled to benefits of employment
regardless of how an employer classifies the servicemember’s absence:
During a period of service in the uniformed services, the employee is
deemed to be on furlough or leave of absence from the civilian
employer. In this status, the employee is entitled to the non-seniority
rights and benefits generally provided by the employer to other
employees with similar seniority, status, and pay that are on furlough
or leave of absence. Entitlement to these non-seniority rights and
benefits is not dependent on how the employer characterizes the
employee’s status during a period of service. For example, if the
employer characterizes the employee as “terminated” during the
period of uniformed service, this characterization cannot be used to
avoid USERRA’s requirement that the employee be deemed on
furlough or leave of absence, and therefore entitled to non-seniority
6

rights and benefits generally provided to employees on furlough or
leave of absence.
20 C.F.R. § 1002.149. Likewise, Defendants may not use their characterization of AGR
program participants as Separation-US status to avoid providing military benefits of
employment. Regardless of Defendants’ classification of these individuals, dual status
technicians “absent from [their jobs] by reason of service in the uniformed services” are
entitled to protected USERRA benefits.
Defendants argue, however, that military leave under 5 U.S.C. § 6323(a) is not a
USERRA-protected benefit because USERRA protects only rights which an employer
gives to its non-military employees. Because the fifteen days of military leave is never
given to civilian employees who are not providing military service, it cannot be a right
protected by USERRA according to Defendants. The Court is not persuaded by this
argument, as Defendants admit that USERRA entitles at least some subset of military
employees to leave under 5 U.S.C. § 6323(a), leave which is never afforded to nonmilitary personnel. Furthermore, the cases Defendants cite in support of their contention
address situations in which employers had unilateral policies affording additional benefits
or rights to absent military personnel. While courts have consistently held that employers
do not commit a USERRA violation in revoking these extra benefits, these cases do not
address USERRA rights provided by statute.4 See Crews v. City of Mt. Vernon, 567 F.3d
4

Defendants assert for the first time in their reply brief in support of their Motion for
Summary Judgment that 5 U.S.C. § 6323(a)’s provision according military
servicemembers leave “without loss in pay” means that even if military leave is a
protected USERRA benefit, the AGR participants denied military leave may not recover
damages because they were receiving no paycheck for work as a dual status technician at
the time leave was denied; thus, their salaries were $0 and they suffered no losses. The
7

860, 865 (7th Cir. 2009) (rescission of a flexible work scheduling program did not
constitute a USERRA violation); Gross v. PPG Indus., Inc., 636 F.3d 884, 889 (7th Cir.
2011) (rescission of differential pay policy did not violate USERRA); Welshans v. U.S.
Postal Serv., 550 F.3d 1100, 1104 (Fed. Cir. 2008) (holding that revocation of benefits
provided by the Employee and Labor Relations Manual did not implicate USERRA).
There is simply no plausible argument that military leave benefits are not benefits
specifically provided by 5 U.S.C. 6323(a) and thus protected by USERRA.
Defendants also argue that even if military leave is a benefit guaranteed by
USERRA, it is not a benefit to which a career military person is entitled. According to
Defendants, the AGR job is a career military position and it would make no sense for
someone making a career in the military to continue to get any civilian pay. It is true that
once an individual’s civilian employment is terminated from civilian employment, he or
she is no longer entitled to military leave benefits. But there is evidence that some of the
dual status technicians participating in the AGR program do so only in a temporary active
duty capacity, and not in a career capacity that forever terminates their employment as a
dual status technician. The AGR program specifically 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 duty status.” Army Reg. 135-18, ¶ 1-6(d). Defendants
state that “[o]ver the past four years, approximately 125 former dual technicians have
Court is not persuaded by Defendants’ argument, as individuals absent by reason of
active duty would not generally be receiving a paycheck from their civilian employer in
any circumstance, and the statute still provides that they be compensated for fifteen days
of military leave for active duty service. The cases cited by Defendants do not address
the active duty context.
8

entered the Missouri National Guard’s AGR program, with only about one or two
returning to the dual technician program each year.”

[Doc. 47, p. 2].

It is thus

uncontroverted that Defendants are aware that not all dual status technicians entering the
AGR program intend to or will make their AGR service a career, and that some AGR
program participants will return to their dual status technician position.
Furthermore, the Court previously found in its order denying Defendants’ motion
to dismiss that AGR service does not inherently constitute an abandonment of an
individual’s civilian position in favor of a military career. [Doc. 23, p. 5]; citing 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).
Finally, there is a specific USERRA benefit waiver provision in 38 U.S.C.
4316(b)(2)(A) which is discussed below.

This waiver provision is the mechanism

Congress chose to determine whether a person entering the military intends to remain in
the military indefinitely or intends to return to his or her civilian employment. As stated
in Dorris, an artificial classification, whether it be “career” or “Separation-US,” is not
controlling.
Therefore, the Court concludes as a matter of law that the Guard violated
USERRA by refusing to provide military benefits to AGR employees who did not waive
those benefits pursuant to 38 U.S.C. § 4316(b)(2)(A).5

5

The United States also argues that the Guard violated the anti-discrimination section of
USERRA, 38 U.S.C. § 4311(a). The Court need not address this issue because it has
found a violation of 38 U.S.C. 4316(b)(2).
9

B. Waiver of USERRA Benefits
Defendants contend that to the extent military leave under 5 U.S.C. § 6323(a) is a
protected benefit, AGR program participants waived that right through execution of the
AGR Checklist and Statement of Understanding. USERRA states that individuals who
“knowingly provide[] written notice of intent not to return to a position of employment
after service in the uniformed service, [are] not entitled to rights and benefits” protected
by the statute. 38 U.S.C. § 4316(b)(2)(A). However, in order for the waiver to be
effective, 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.” Id. at § 4316(b)(2)(B).6
Defendants contend that the AGR Checklists and Statements of Understanding
signed by AGR participants are sufficient to constitute statutory waiver of any USERRA
protected military leave benefit. But USERRA does not provide that protected benefits
may be waived through individual waiver of the benefits themselves. Instead, waiver
may only be effectuated when an employee knowingly provides written notice of his or
her “intent not to return” to their civilian position. The Guard’s purported waivers could
have contained a clear statement to that effect.

6

Instead, the Guard used the term

The common law also provides that an employee may waive USERRA rights by
voluntarily resigning from a civilian position and pursuing a career in military service if
they do so “clearly and unequivocally.” Paisley v. City of Minneapolis, 79 F.3d 722, 724
(8th Cir. 1996); [Doc. 23, p. 3]. However, Defendants do not argue in their motion for
summary judgment that Kinata Holt waived her military leave rights under the common
law waiver standard, and therefore it is not addressed by the Court.
10

“SEPARATING,” capitalized to suggest a term of art.

As previously explained,

Separation-US as used by the Guard means:
A separation action initiated by an agency when the employee enters
on duty with the uniformed services and provides written notice of
intent not to return to a position of employment with the agency or
elects to be separated in lieu of placement in a leave without pay
status.
[Doc. 41, p. 6; Doc. 49, p. 4] (emphasis added). Thus, the term encompasses something
other than a statement that the employee does not intend to return to her civilian position.
The AGR Checklist also specifically references the AGR applicant’s understanding that
by “electing Separation-US,” he or she will no longer be eligible for military leave. The
reference to this election clearly distinguishes the AGR participant’s status choice from a
separation action initiated through provision of a written notice of intent not to return.
The failure to use the statutory language is additionally confusing because the AGR
Checklist and Statement of Understanding also discuss the right to reemployment under
USERRA immediately after discussing separation status without explaining how one
could have the present intent to never return to their civilian employment, but still have a
right to do so in the future.
III.

Conclusion

Because AGR participants’ execution of the AGR Checklist and Statement of
Understanding is insufficient for Defendants to successfully invoke waiver of military
leave, the United States’ motion for partial summary judgment is granted to the extent it

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requests a finding that Defendants violated USERRA by denying Holt fifteen days of
military leave.7 Defendants’ motion for summary judgment is denied.

s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: December 19, 2014
Jefferson City, Missouri

7

The Court has not addressed the question of whether the Guard violates USERRA by
requiring dual status technicians, as a condition of their employment in the AGR
program, to terminate their civilian employment and give up their waivable USERRA
rights. Instead, it has resolved this case and controversy on the narrowest grounds.
12