United States v. Indiana Department of Correction

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In the United States District Court for the Southern District of Indiana
Indianapolis Division

United States of America, Plaintiff

Civil Action No. ______________ JURY DEMAND

v.

Indiana Department of Correction, Defendant.

COMPLAINT Plaintiff, the United States, by its undersigned attorneys, makes the following averments: 1. This is a civil action brought pursuant to the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. §§ 4301 - 4333 ("USERRA").
JURISDICTION AND VENUE 2. This Court has jurisdiction over the subject matter of this action pursuant to

38 U.S.C. § 4323(b). 3. Venue is proper in this district under 38 U.S.C. § 4323(c)(1) and 28 U.S.C. § 1391(b). 4. The Indiana Department of Correction maintains a prison facility in Edinburgh, Indiana. Edinburgh is in Johnson County. The Indiana Department of Correction is headquartered in Indianapolis, Indiana. Indianapolis is in Marion County. Both Johnson County and Marion County are within the jurisdiction of this Court.
CLAIM FOR RELIEF 5. James Lowell AmRhein ("AmRhein") enlisted in the United States Army in 1966. He was honorably discharged in 1972. On or about 1980, AmRhein joined the Army Reserve. 6. On or about February 22, 1999, AmRhein commenced employment with the Indiana Department of Correction at its Atterbury Correctional Facility in Edinburgh, Indiana, as a Correctional Officer. 7. AmRhein was a member of the Army Reserve at the time he was hired as a Correctional Officer. 8. AmRhein was notified by the Department of the Army that he was to report to Fort Benning, Georgia,

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on August 1, 2003, for active duty military training.
9. AmRhein gave notice to his employer, the Indiana Department of Correction, that he was going on the active duty military training referred to in paragraph 8, above, before he departed for that training. AmRhein reported for duty at Fort Benning, Georgia, and fulfilled his military obligations.
10. Upon the completion of his active duty military training, AmRhein had his written orders signed by a superior military officer. AmRhein then submitted his signed and written orders to his employer, the Indiana Department of Correction.
11. On August 25, 2003, approximately two or three days after AmRhein reported back to work at the Indiana DOC from his military training, AmRhein was notified in writing that he was being charged with violating the Indiana DOC's leave policy by failing to submit a request for military leave prior to his departure for active military training and with insubordination for disregarding a written request requiring that, prior to military leave, military orders or an official letter stating that duty orders will be forthcoming be presented to the Indiana DOC.
12. On August 27, 2003, the Indiana Department of Correction suspended AmRhein from employment for thirty days, effective immediately, and on August 28, 2003, the Indiana Department of Correction notified AmRhein in writing that he was terminated from employment, effective October 2, 2003.
13. On September 18, 2003, AmRhein filed a USERRA complaint against the Indiana Department of Correction with the United States Department of Labor, Veterans' Employment and Training Service, which opened an investigation of the complaint on October 8, 2003.
14 On November 19, 2003, AmRhein was notified by the Indiana Department of Correction that his previous position as a Correctional Officer at the Atterbury Correctional Facility was being made available to him, effective November 30, 2003. Due to days off for the bracket to which AmRhein was assigned, AmRhein began working again for the Indiana Department of Correction at the Atterbury Correctional Facility on December 2, 2003.
15. The Indiana Department of Correction has failed and refused to pay AmRhein for the period he was not allowed to work due to his termination from on or about October 2, 2003, to on or about December 2, 2003, or to give AmRhein full seniority and related benefits that he lost as a result of his termination.
16. The Indiana Department of Correction has violated USERRA, among other ways, by:
(a) instead of allowing AmRhein, when he returned from active military training, reemployment rights and benefits and other employment benefits protected by USERRA, (i) suspending him from employment, and (ii) terminating him from employment with loss of pay and loss of seniority and related benefits; and
(b) failing and refusing to take appropriate action to remedy the effects of the violations described in 16 (a) above, including failing and refusing to pay AmRhein for the period he was not allowed to work due to his termination, i.e., from on or about October 2, 2003, to on or about December 2, 2003, or to give AmRhein full seniority and related benefits that he lost as a result of his termination.
PRAYER FOR RELIEF
WHEREFORE, AmRhein prays that the Court enter judgment against the Indiana Department of

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Correction, its officers, agents, employees, successors and all persons in active concert or participation with it, as follows:
A. Declare that the Indiana Department of Correction's failure and refusal to allow AmRhein reemployment rights and benefits and other employment benefits protected by USERRA was unlawful and in violation of USERRA;
B. Require that the Indiana Department of Correction fully comply with the provisions of USERRA by giving AmRhein the level of seniority, status and compensation he would have enjoyed had he remained employed continuously with the Indiana Department of Correction, and by paying AmRhein for his loss of wages and other benefits suffered by reason of the Indiana Department of Correction's failure or refusal to comply with the provisions of this law;
C. Enjoin the Indiana Department of Correction from taking any action against AmRhein that fails to comply with the provisions of USERRA;
D. Award AmRhein prejudgment interest on the amount of lost wages found due; and
E. Grant such other and further relief as may be just and proper.
BRADLEY J. SCHOLZMAN Acting Assistant Attorney General Civil Rights Division
BY:
DAVID J. PALMER (DC Bar No. 417834)
Chief
___________________________________________________ WILLIAM B. FENTON (DC Bar No. 414990) Deputy Chief DAVID P. AVILA (CA Bar No. 227913) Trial Attorney U.S. Department of Justice Civil Rights Division Employment Litigation Section 950 Pennsylvania Avenue, NW Patrick Henry Building, Room 4030 Washington, DC 20530 Telephone: (202) 353-3638 Facsimile: (202) 514-1005
Attorneys for Plaintiff

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 United States v. Indiana Department of Correction

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In the United States District Court

for the Southern District of Indiana Indianapolis Division

United States of America,

Civil Action No. ______________

Plaintiff, v.
Indiana Department of Correction, Defendant.

CONSENT DECREE
This matter is before the Court for entry of this judgment by consent of the parties to effectuate a compromise and settlement of all claims. After review and consideration, the Court believes that entry of this judgment is in the interest of justice.
1. Plaintiff, United States of America ("United States"), commenced the above entitled action in the United States District Court for the Southern District of Indiana, Indianapolis Division, alleging that the Defendant Indiana Department of Correction ("Indiana DOC"), violated the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA") by (a) instead of allowing James Lowell AmRhein ("AmRhein") reemployment rights and benefits and other employment benefits protected by USERRA when he returned from active military training in August 2003, suspending him and terminating him, and (b) failing and refusing to take appropriate action to remedy the effects of those violations, including failing and refusing to pay AmRhein for the period he was not allowed to work due to his termination, i.e., from on or about October 2, 2003 to on or about December 2, 2003, or to give AmRhein full seniority and related benefits that he lost as a result of his termination.
2. As a result of settlement discussions, the United States and the Indiana DOC have resolved their differences and have agreed that this action should be settled by entry of this Consent Decree. It is the intent of the parties that this Consent Decree be a final and binding settlement in full disposition of all claims alleged in the Complaint filed in this case.
STIPULATED FACTS
3. Pursuant to USERRA, the parties acknowledge the jurisdiction of the United States District Court for the Southern District of Indiana (Indianapolis Division) over the subject matter of this action and of the parties to this case for the purpose of entering this Decree and, if necessary, enforcing this Decree.
4. Venue is proper in this district for purposes of this Decree and any proceedings related to this Decree only. The Indiana DOC agrees that all statutory conditions precedent to the institution of this lawsuit have been fulfilled.
FINDINGS

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5. Having examined the terms and provisions of the Consent Decree and based on the pleadings, records, and stipulations of the parties, the Court finds the following:
{ The Court has jurisdiction over the subject matter of the action and the parties to this action. { The terms and provisions of this Consent Decree are fair, reasonable, and just. The rights of
the Indiana DOC and the United States are protected adequately by this Decree. { This Consent Decree conforms with the Federal Rules of Civil Procedure and USERRA,
and is not in derogation of the rights and privileges of any person. The entry of this Consent Decree will further the objectives of the USERRA and other applicable law and will be in the best interests of the parties.
NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED AS FOLLOWS:
NON-ADMISSION
6. This Decree, being entered with the consent of the United States and the Indiana DOC, shall not constitute an adjudication or finding on the merits of the case and shall not be construed as an admission by the Indiana DOC of any violations of USERRA, or any other law, rule or regulation, dealing with or in connection with equal employment opportunities.
NON-RETALIATION
7. The Indiana DOC shall not take any action against any person which constitutes retaliation or interference with the exercise of such person's rights under USERRA, or because such person gave testimony or assistance or participated in any manner in any investigation or proceeding in connection with this case.
REMEDIAL REQUIREMENTS
8. The Indiana DOC shall compensate AmRhein for the loss of monetary compensation, seniority and related benefits that AmRhein incurred as a result of not being employed continuously by the Indiana DOC from the time he returned from military training in August 2003 until on or about December 2, 2003, when he was allowed reemployment after his suspension and termination in 2003.
To effectuate this relief, the Indiana DOC shall, within twenty (20) days after the date of the entry of this Decree: (a) submit, via overnight delivery service, to the United States a certified check in care of David P. Avila, Employment Litigation Section, Civil Rights Division, Room 4030, Patrick Henry Building, U.S. Department of Justice, 601 D Street, N.W., Washington, D.C. 20004, made payable to the United States Department of Justice, in the amount of $4,649.31, which shall consist of $4,326.08, for AmRhein's lost wages from October 2, 2003, to December 2, 2003, and $323.23 in interest on those lost wages (the United States will, in turn, pay this amount to AmRhein in accordance with 38 U.S.C. § 4323 (d)(2)(B)); (b) credit AmRhein with any lost seniority and related benefits for the period from August 27, 2003 to December 2, 2003; (c) remove from its records AmRhein's 30 day suspension that commenced August 27, 2003, and AmRhein's subsequent termination of October 2, 2003; and (d) provide the United States, in care of David P. Avila, Room 4030, Patrick Henry Building, 950 Pennsylvania Avenue, N.W., Washington, DC 20530, written information that it has accomplished the requirements of 8(b) and 8(c) above.
MISCELLANEOUS

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9. All parties shall bear their own costs and expenses of litigation, including attorneys' fees.
10. This Consent Decree constitutes the entry of final judgment, within the meaning of Rule 54 of the Federal Rules of Civil Procedure on all claims asserted in this action. This Court retains jurisdiction over this matter for a period of six (6) months for the purpose of interpreting and enforcing this judgment should that become necessary. After six (6) months, this Decree shall expire of its own accord.
11. This Consent Decree constitutes the entire agreement and commitments of the parties.
EFFECTIVE DATE
12. The effective date of this Consent Decree shall be the date upon which it is entered by the Court.
UNITED STATES OF AMERICA
By ______________________ DAVID P. AVILA (CA Bar No. 227913) Trial Attorney U.S. Department of Justice Civil Rights Division Employment Litigation Section 950 Pennsylvania Avenue, NW Patrick Henry Building, Room 4030 Washington, DC 20530 Telephone: (202) 353-3638 Facsimile: (202) 514-1005
INDIANA DEPARTMENT OF CORRECTION
By ______________________ ROBERT D. BUGHER Chief Legal Counsel for the Indiana Department of Correction Indiana Government Center South - Room E334 302 West Washington Street Indianapolis, IN 46204 Telephone: (317) 232-5740 Facsimile: (317) 232-6798
_________________________ RICHARD M. BRAMER (IN Bar No. 15989-77) Deputy Attorney General Indiana Government Center South - Fifth Floor 302 West Washington Street Indianapolis, IN 46204 Telephone: (317) 232-6333 COUNSEL for INDIANA DEPARTMENT OF CORRECTION
IT IS SO ORDERED this _______ day of ______________, 2005.
_____________________________

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United States v. Indiana Department of Correction
JUDGE, United States District Court Southern District of Indiana
Distribution:
DAVID P. AVILA (CA Bar No. 227913) Trial Attorney U.S. Department of Justice Civil Rights Division Employment Litigation Section 950 Pennsylvania Avenue, NW Patrick Henry Building, Room 4030 Washington, DC 20530
ROBERT D. BUGHER Chief Legal Counsel for the Indiana Department of Correction Indiana Government Center South - Room E334 302 West Washington Street Indianapolis, IN 46204
RICHARD M. BRAMER (IN Bar No. 15989-77) Deputy Attorney General Indiana Government Center South - Fifth Floor 302 West Washington Street Indianapolis, IN 46204

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 u
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

UNITED STATES OF AMERICA,
Plaintiff, v.
INDIANA DEPARTMENT OF CORRECTION,
Defendant.

t: 15-0.,.-118 8·JDT·TAB
Civil Action No. - - - - - -

JOINT MOTION BY PLAINTIFF THE UNITED STATES AND DEFENDANT INDIANA DEPARTMENT OF CORRECTION
FOR ORDER ENTERING CONSENT DECREE AND RETAINING JURISDICTION Plaintiff, the United States, and Defendant Indiana Department of Correction jointly
move the Court for the entry of the Consent Decree between the Plaintiff and the Defendant, submitted herewith. The Consent Decree, if entered by the Court, will resolve all issues raised in the complaint. Because the Consent Decree requires the Defendant to perform certain acts in the future, the Plaintiff and the Defendant move this Court to retain jurisdiction over the Plaintiffs action while the Consent Decree remains in effect, although the case shall remain administratively closed.

DAVID J. PALMER (DC Bar No. 417834) Chief WILLIAM B. FENTON (DC Bar No. 414990) Deputy Chief DAVID P. AVILA (CA Bar No. 227913) Trial Attorney U.S. Department of Justice Civil Rights Division Employment Litigation Section 950 Pennsylvania Avenue, NW Patrick Henry Building, Room 4030 Washington, DC 20530 Telephone: (202) 353-3638 Facsimile: (202) 514-1005
~ ~. -try, 6-.~ ~ RICH M. B MER (IN Bar No. 15989-77) Deputy Attorney General Indiana Government Center South - Fifth Floor 302 West Washington Street Indianapolis, IN 46204 Telephone: (317) 232-6333 ON BEHALF OF DEFENDANT INDIANA DEPARTMENT OF CORRECTION
-2-

 
 · IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

UNITED STATES OF AMERlCA,
Plaintiff, v.
,JNDIANA DEPARTMENT OF CORRECTION,
Defendant.

Civil Action No. 1:05-cv-1188-JDTTAB

STIPULATION AND ORDER In regard to Paragraph 8(a) of the Consent Decree, Plaintiff, the United States of America ("United States"), and Defendant Indiana Department of Correction ("IDOC"), through their undersigned counsel, hereby stipulate that IDOC, in lieu of providing a certified check made payable to the Department of Justice in the amount of$4,649.31, shall within ten (10) days after the date of entry of this order, pay from an account for James AmRhein ("AmRhein") the amount of $4,649.31, which consists of $4,326.08 for AmRhein's lost wages from October 2,2003 to December 2,2003, and $323.23 for interest on those lost wages. The IDOC shall withhold appropriate amounts from the lost wages pOliion of the $4,649.31, i.e., from $4,326.08, and send directly to AmRhein payment of the remainder. Said payment to AmRhein by the IDOC may be made by state warrant. The IDOC shall send to the United States, in care of its undersigned attorney, confirmation of this payment.

DAVID J. PALMER (DC BarNo. 417834) Chief WILLIAM B. FENTON (DC BarNo. 414990) Deputy Chief DAVID P. AVILA (CA Bar No. 227913) Trial Attorney U.S. Department of Justice Civil Rights Division Employment Litigation Section 950 Pennsylvania Avenue, NW Patrick Hemy Building, Room 4030 Washington, DC 20530 Telephone: (202) 353-3638 Facsimile: (202) 514-1005
RICHARD M. BRAMER (IN BarNo. 15989-77) Deputy Attorney General Indiana Government Center South - Fifth Floor 302 West Washington Street Indianapolis, IN 46204 Telephone: (317) 232-6333 ON BEHALF OF DEFENDANT INDIANA DEPARTMENT OF CORRECTION
ORDER
The foregoing stipulation is hereby approved and ordered.
IT IS SO ORDERED this _ _ _ day of _ _ _ _ _, 2005.
JUDGE, United States District Court
Southern District of Indiana
-2-

 
 U.S. District Court Southern District of Indiana (Indianapolis) CIVIL DOCKET FOR CASE #: 1:05-cv-01188-JDT-TAB

UNITED STATES OF AMERICA v. INDIANA DEPARTMENT OF CORRECTION Assigned to: Judge John Daniel Tinder Referred to: Magistrate Judge Tim A. Baker Cause: 28:1391 Personal Injury

Date Filed: 08/10/2005 Date Terminated: 08/10/2005 Jury Demand: Plaintiff Nature of Suit: 790 Labor: Other Jurisdiction: U.S. Government Plaintiff

Plaintiff
UNITED STATES OF AMERICA

represented by David Pablo Avila U.S. DEPARTMENT OF JUSTICE 950 Pennsylvania Avenue NW Patrick Henry Building Washington, DC 20530 202-353-3638 Fax: 202-514-1005 Email: david.avila@usdoj.gov ATTORNEY TO BE NOTICED

David Jacob Palmer U.S. DEPARTMENT OF JUSTICE 950 Pennsylvanie Avenue NW Washington, DC 20530 202-353-3631 Fax: 202-514-1005 Email: david.palmer@usdoj.gov ATTORNEY TO BE NOTICED

William B. Fenton U.S. DEPARTMENT OF JUSTICE 10th and Constitutional Avenue North West Civil Rights Division Employment Litigation Section, PHOB 4611 Washington, DC 20035-5968 (202)514-3852 ATTORNEY TO BE NOTICED

V.
Defendant
INDIANA DEPARTMENT OF CORRECTION

represented by Richard M. Bramer INDIANA STATE ATTORNEY GENERAL 302 West Washington Street IGCS - 5th Floor Indianapolis, IN 46204 (317) 232-6201 Fax: (317) 232-7979 Email: Richard.Bramer@atg.in.gov ATTORNEY TO BE NOTICED

Date Filed 08/10/2005
08/10/2005 08/10/2005 08/10/2005 08/10/2005 08/10/2005
08/10/2005

#

Docket Text

1 COMPLAINT against INDIANA DEPARTMENT OF CORRECTION with JURY DEMAND, filed by Plaintiff, UNITED STATES OF AMERICA.(KLS, ) (Entered: 08/10/2005)

2 CIVIL COVER SHEET by UNITED STATES OF AMERICA. (KLS, ) (Entered: 08/10/2005)

3 MAGISTRATE JUDGE's NOTICE of Availability to Exercise Jurisdiction (KLS, ) (Entered: 08/10/2005)

4 NOTICE of Appearance filed by Richard M. Bramer on behalf of Plaintiff, UNITED STATES OF AMERICA. c/s (KLS, ) (Entered: 08/10/2005)

5 NOTICE of Appearance filed by David P. Avila on behalf of Plaintiff, UNITED STATES OF AMERICA. c/s (KLS, ) (Entered: 08/10/2005)

6 MOTION (Joint) for Order entering Consent Decree and Retaining Jurisdiction filed by Plaintiff, UNITED STATES OF AMERICA and Defendant, INDIANA DEPARTMENT OF CORRECTION. (Attachments: # 1 Consent Decree)(KLS, ) (Entered: 08/10/2005)

7 CLOSED JUDGMENT Consent Decree. Signed by Judge John Daniel Tinder on 8/10/05 -cm. (EAH, ) (Entered: 08/11/2005)

08/26/2005 08/29/2005 09/08/2005

8 STIPULATION and Order by UNITED STATES OF AMERICA. (Avila, David) (Entered: 08/26/2005)
9 ORDER APPROVES Stipulation . Signed by Judge John Daniel Tinder on 8/29/05 -cm. (EAH, ) (Entered: 08/29/2005)
10 Mail Returned as Undeliverable. Mail sent to William B. Fenton. (EAH, ) (Entered: 09/13/2005)