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United States v. State

United States District Court, W.D. Missouri, Central Division

December 19, 2014

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

For United States of America, Plaintiff: Charles M. Thomas, United States Attorney's Office, Western District of Missouri, Kansas City, MO; Jeffrey G. Morrison, Dept. of Justice/Civil Rights Division, Washington, DC; Joseph John Sperber, IV, PRO HAC VICE, U.S. Department Of Justice, Civil Rights Division, Employment Litigation Section, Washington, DC.

For State Of Missouri, Missouri Army National Guard, Maj. General Stephen L Danner, in his Official Capacity, as Adjutant General of the State of Missouri National Guard, Defendants: Joanna L.W. Trachtenberg, LEAD ATTORNEY, Missouri Attorney General's Office-JC, Jefferson City, MO.

Page 1048

ORDER

NANETTE K. LAUGHREY, United States District Judge.

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. LWOP-US . . . 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

Page 1049

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 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 ...

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