Barker v. Office of Adjutant Gen. of State
| Decision Date | 10 June 2009 |
| Docket Number | No. 49A02-0812-CV-1130.,49A02-0812-CV-1130. |
| Citation | 907 N.E.2d 574 |
| Parties | John BARKER, Appellant-Plaintiff, v. OFFICE OF the ADJUTANT GENERAL OF the STATE of Indiana, Appellee-Defendant. |
| Court | Indiana Appellate Court |
Neal F. Eggeson, Jr., Haskin, Lauter & LaRue, Indianapolis, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Frances H. Barrow, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Appellant-plaintiff John Barker appeals the grant of summary judgment in favor of the appellee—defendant Office of the Adjutant General of the State of Indiana (Adjutant General), after the Military Department rejected his request for reemployment and benefits in a civil service position. Specifically, Barker argues that his action against the Adjutant General for reinstatement and for damages was not subject to summary judgment because a genuine issue of material fact exists whether he intended to engage in "career" or "noncareer" military service. Appellant's Br. p. 12. The Adjutant General cross-appeals and argues that Barker's action is barred by the statute of limitations.
Concluding that the trial court properly entered summary judgment in favor of the Adjutant General, we affirm.
Sometime in 1972 or 1973, Barker joined the Indiana National Guard (National Guard). Sometime thereafter, while still a member of the National Guard, Barker was hired as a civil service technician and worked as a maintenance mechanic at Camp Atterbury. To hold that civil service technician position, Barker was required to maintain membership in the National Guard.
In 1980 or 1981, Barker was promoted to the position of Operations and Training Readiness Specialist and was assigned to work in Kokomo. In 1983, Barker applied for a position in the Active Guard Reserve (AGR). The AGR is a program authorized under 10 U.S.C. § 12301(d) and 32 U.S.C. § 502(f) and is designed to provide highly qualified officers and enlisted soldiers to meet the fulltime support requirements for the Army National Guard of the United States (ARNGUS) and United States Army Reserve (USAR) projects and programs.
When Barker initially joined the AGR, the Veterans' Reemployment Rights Act of 1974 (VRRA) was in effect.1 In general, the VRRA provided that a person wishing to perform military service "shall upon request be granted a leave of absence by such person's employer for the period required to perform active duty for training or inactive duty training in the Armed Forces...." 38 U.S.C. § 2024(d). After the employee's release from duty, he or she was permitted to return to the position with seniority, pay and other benefits that the employee would have had "if such employee had not been absent for such purposes." Id. However, in 1994, Congress replaced the VRRA with the Uniformed Services Employment and Reemployment Rights Act (USERRA),2 which broadened the protections that VRRA had afforded, including "prompt reemployment" to those who engage in "noncareer service in the uniformed services." 38 U.S.C. § 4301(a)(1)-(2).
Soldiers who desire to be considered for AGR positions with the National Guard submit application packets pursuant to Army and National Guard regulations. While the AGR includes an initial three-year commitment, Barker could, thereafter, have decided that he did not want to remain in the AGR. In other words, there was no further obligation for Barker to remain in the AGR after the initial three-year signup. Subsequent periods of duty for AGR officers, including warrant officers and commissioned warrant officers, are voluntary and last for an indefinite period of time. Also, when serving under Title 32, ARNGUS soldiers may resign or request release from active duty at any time.
Barker went through the approval process for the AGR program, which included passing an initial entry physical examination and meeting certain educational and training requirements. When Barker was accepted into the AGR, he separated from his civil technician position. He began the AGR service in August 1983.
In February 1987, Barker purportedly asked Major Michael Brinkman for permission to speak to Human Resources "about civil service reemployment rights." Appellant's App. p. 79. Barker then spoke with Colonel Runyon, and expressed that he wanted "out of the AGR program." Id. In response, Colonel Runyon purportedly instructed Barker to Id.
When Barker's civil service employment was terminated, he was paid for unused accrued leave. Barker also withdrew all of the funds from his retirement account through the Civil Service Retirement System. Orders that were issued after Barker's initial three-year tour with the AGR indicate that they were subject to Barker's consent. Barker's orders dated June 1, 1986, stated, "By issuance and acceptance of this order, individual affected and State authorities consent to placing the individual affected automatically on active duty...." Appellant's App. p. 51. Barker's orders dated January 23, 1989, stated "You are ordered to AGR with your consent and the consent of the Governor of Indiana." Id. at 53. Barker's orders dated April 20, 1989, stated "You are ordered to AGR with your consent and the consent of the Governor...." Id. at 55. Orders dated September 29, 1989, stated "You are ordered to AGR with your consent and the consent of the Governor" Id. at 57. Orders dated February 27, 1991, stated "You are ordered to full-time National Guard duty (FTNGD) with your consent and the consent of the Governor ... in Active Guard/Reserve (AGR)...." Id. at 61.
On several occasions between February 1990 and June 1993, Barker spoke with Major Patrick D. Gibson concerning his desire to return to a civil service position as a technician. Id. at 84. Thereafter, in 1992 or 1993, Barker approached General James A. Barney and indicated that he would like to "convert back to a ... civil service position." Id. at 81. General Barney conferred with the Adjutant General, who concurred that Barker's change to a civil service position was appropriate. At that time, however, there were no available slots with a commensurate grade. General Barney then told Barker that the matter would be revisited in sixty to ninety days when a slot became available. However, General Barney eventually apologized to Barker and told him that he had probably "forgotten" about the matter. Id. at 106.
On November 7, 1994, Barker completed a formal application for a civil service technician position as a maintenance supervisor. Although Barker interviewed for that position, he was not selected. In late December 1994, Barker received a written directive from Lieutenant Colonel Leslie Webster informing him that under the newly-passed USERRA, Barker's reemployment rights and benefits would expire on December 14, 1999, unless he reverted back to technician status.
In early 1995, Barker met with Lieutenant Colonel Webster and again requested to return to civil service by reemployment with the National Guard. Barker indicated in his deposition that Lieutenant Colonel Webster responded, "John, you've got five years to ... convert back and then the compatibility issue, you have to be in a compatible grade, we have to find you a vacancy of where we're going to put you at to get that accomplished." Id. at 84-85. Barker and Lieutenant Colonel Webster repeated this conversation on occasion over the next several years.
Barker's orders of September 22, 1995, stated "You are on active duty in Active Guard/Reserve (AGR) status, and with your consent and the consent of the Governor ... will proceed on permanent change of station...." Id. at 64. Barker's orders dated July 16, 1998, stated "You are on active duty in Active Guard/Reserve (AGR) status, and with your consent and the consent of the Governor ... will proceed on permanent change of station...." Id. at 66.
Sometime in 1999, Barker again requested restoration to civil service with the National Guard by way of formal correspondence. In response, Lieutenant Colonel Donald B. Spice authored a November 23, 1999, memorandum denying Barker's request on the grounds that his reemployment rights actually had expired in August 1987.
On December 17, 1999, Barker requested that the United States Department of Labor (Department of Labor) refer his claim to the U.S. Attorney General's office. In a response authored the same day, the Department of Labor acknowledged receipt of Barker's request and indicated that "this office's recommendation will be that litigation be pursued." Id. at 102. However, approximately five years after submitting Barker's request to the Attorney General's office, the Department of Labor notified Barker that the Attorney General's office had declined to accept his case for representation. That letter advised Barker that the Attorney General's decision "does not preclude you from pursuing your claim with private counsel at your own expense." Id. at 104.
The undisputed evidence establishes that Barker held the following assignments in the AGR:
Training officer in Marion, Indiana, from August 1983 to 1998 or 1989.
Senior training officer and then Area Commander in Recruiting and Retention Command in Indianapolis from approximately 1989 to 1995.
Senior fulltime officer in Kokomo from 1995 to 1998
Commander and senior fulltime officer in South Bend from 1998 to 1999.
Barker remained in the AGR until he retired from the military on April 30, 2000. He entered the AGR at the rank of Second Lieutenant and retired from the AGR with the rank of Lieutenant Colonel. Barker was eligible for retirement benefits when he retired from the military and he continues to draw monthly retirement benefits that total $46,000 per year.
In September or October of 1999, Barker submitted a memorandum to...
To continue reading
Request your trial