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

WESLEY A. MCCULLOUGH, Plaintiff,
v. CITY OF INDEPENDENCE, MISSOURI,
Defendant.

Civil No. 05-0946-CV-W-FJG JURY DEMAND

COMPLAINT Plaintiff, Wesley A. McCullough, by his 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)(2) and 28 U.S.C. § 1391(b) because Defendant City of Independence, Missouri (“City”) is located within this judicial district.

PARTIES 4. Plaintiff Wesley A. McCullough (“McCullough”) resides in Independence, Missouri, within the jurisdiction of this Court. 5. Independence, Missouri is within the jurisdiction of this Court.

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CLAIM FOR RELIEF 6. On or about January 29, 2000, Plaintiff McCullough began employment with the City as a firefighter in its Fire Department. 7. McCullough enlisted in the United States Army Reserve (“USAR”) in July 2002, and was assigned to the 325th Medical Corp Hospital Field on or about August 30, 2002. 8. McCullough received the Army Service Award for exemplary service in July 2003. 9. McCullough served in the USAR until he resigned his commission in or about August 2004. 10. In or about July 2003, and again in or about October 2003, McCullough provided his employer with a copy of his official annual military drill schedule, provided to him by the USAR, covering the period of October 2003 through September 2004. On or about October 29, 2003, McCullough provided oral notice of military leave to be taken November 1, 2003. On or about December 4, 2003, he provided oral notice for military leave to be taken December 7, 2003. 11. The actions described in paragraph 10, above, constituted proper advance notice under USERRA. 12. Because McCullough was required to attend military drills on November 1-2, 2003 and on December 6-7, 2003, he was unable to work assigned shifts at the Fire Department on November 1, 2003, and December 7, 2003. 13. After giving proper advance notice to his employer that he was required to attend military drills on November 1, 2003 and December, 7, 2003, McCullough reported for duty and fulfilled his military obligations. 14. Upon the request of the City, on February 1, 2004, McCullough provided an official letter from the USAR stating that he attended monthly military drills on November 1 and December 7, 2003 to

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the City through its Fire Department. 15. On February 11, 2004, McCullough received a letter stating that he would be suspended
without pay for two days and placed on a six month probationary period beginning February 23, 2004, for failing “to provide required documentation of military absences” and for failing to “follow the instruction of Chief Thompson as an order to provide that documentation.”
16. McCullough was suspended without pay on February 17, 2004, and on February 20, 2004, and was placed on probation for six months beginning on February 23, 2004, for failure to provide military orders or appropriate memorandum either before or following his absence for military duty.
17. The City has failed and refused to pay McCullough for the period he was suspended and to clear McCullough’s personnel file of any wrongdoing in this matter.
18. The actions described in paragraphs 15 – 17 constitute violations of USERRA. 19. Specifically, the City has violated Section 4311 of USERRA, among other ways, by:
(a) requiring McCullough to provide official military orders or an official memorandum or letter to indicate that he was absent for military purposes, suspending him from employment, and placing him on a six month probationary period;
(b) failing and refusing to take appropriate action to remedy the effects of the violations described above, including failing and refusing to pay McCullough for the period he was not allowed to work due to his suspension and to clear his personnel file of wrongdoing in this matter.
PRAYER FOR RELIEF WHEREFORE, McCullough prays that the Court enter judgment against the City, its officers,

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agents, employees, successors and all persons in active concert or participation with it, as follows: 20. Declare that the City’s policy or practice requiring official military orders or an official
memorandum or letter for leave taken to fulfill a military obligation is unlawful and in violation of USERRA;
21. Enjoin the City from maintaining a policy or practice requiring notice of military obligation or intention to perform military service that violates USERRA;
22. Declare that the City violated USERRA when it suspended McCullough from employment and placed him on six months probation.
23. Require that the City fully comply with the provisions of USERRA by paying McCullough for his loss of wages and other benefits suffered by reason of the City’s failure or refusal to comply with the provisions of this law and by clearing McCullough’s personnel file of any indication of wrongdoing in this matter;
24. Enjoin the City from taking any action against McCullough that fails to comply with the provisions of USERRA;
25. Award McCullough prejudgment interest on the amount of lost wages found due; and 26. Grant such other and further relief as may be just and proper.
Respectfully submitted, BRADLEY J. SCHLOZMAN Acting Assistant Attorney General Civil Rights Division BY: /s/ David J. Palmer DAVID J. PALMER (DC Bar No. 417834) Chief /s/ Karen D. Woodward

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/s/ David P. Avila KAREN D. WOODARD (Maryland Bar, No Number Issued)
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
Todd P. Graves United States Attorney

BY:

/s/ Charles M. Thomas

Charles M. Thomas, MO # 28522

Assistant United States Attorney

Charles Evans Whittaker Courthouse

400 East Ninth Street, Room 5510

Kansas City, Missouri 64106

Telephone: (816) 426-3130

Facsimile: (816) 426-3165

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 Case 4:05-cv-00946-FJG Document 3 Filed 12/06/2005 Page 1 of 4

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

WESLEY A. MCCULLOUGH,
Plaintiff, vs.
CITY OF INDEPENDENCE, MISSOURI,
Defendant.

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No. 05-0946-CV-W-FJG

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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, Wesley A. McCullough ("McCullough"), commenced the above
entitled action in the United States District Court for the Western District of Missouri, Western Division, alleging that the Defendant City of Independence ("City"), violated the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA") by (a) requiring McCullough to provide official military orders or an official memorandum or letter to indicate that he was absent for military purposes, suspending him from employment, and placing him on a six month probationary period, and (b) failing and refusing to take appropriate action to remedy the effects of those violations, including failing and refusing to pay McCullough for the period he· was not allowed to work due to his suspension, and failing and refusing to clear his personnel file of wrongdoing in this matter.
2. As a result of settlement discussions, McCullough and the City have resolved their differences and have agreed that this action should be settled by entry of this Consent

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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.
FINDINGS 3. 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:
a. The Court has jurisdiction over the subject matter of the action and the parties to this action.
b. The terms and provisions of this Consent Decree are fair, reasonable, and just.
c. 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·RETALIATION 4. The City 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.
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REMEDIAL REQUIREMENTS 5. The City shall compensate McCullough for the loss of monetary compensation that McCullough incurred as a result of his suspension and probationary period. To effectuate this relief, the City shall, within ten (10) days after the date of the entry of this Decree: (a) submit a check made payable to Wesley A. McCullough, in the amount of $735.14, which shall consist of $688.66, for McCullough's lost wages of February 17, 2004, and February 20,2004, and $46.48 in interest on those lost wages; (b) remove from its records any reference to McCullough's above-referenced two day suspension as well as his six month probationary period that commenced February 23, 2004, and ended in August 2004; and (c) provide the United States of America, in care of David P. Avila, Trial Attorney, Room 4030, Patrick Henry Building, 950 Pennsylvania Avenue, N.W.,
(
Washington, DC 20530, written information that it has accomplished the requirements of 5(a) and 5(b) above.
6. The City and McCullough acknowledge and affirm that, pursuantto 38 U.S.C.
§§ 4303(8), 4312(a)(1), any advance written or verbal notification of an obligation or
intention to perform service in the uniformed services provided to an employer by the employee who will perform such service or by the uniformed service in which such service is to be performed constitutes adequate and proper notice of military leave. The City agrees that no employee will be disciplined for failing to provide notice for military leave when these requirements are met.
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MISCELLANEOUS 7. All parties shall bear their own costs and expenses of litigation, including attorneys' fees. 8. 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 Consent Decree shall expire of its own accord. 9. This Consent Decree constitutes the entire agreement and commitments of the parties.
EFFECTIVE DATE 10. The effective date of this Consent Decree shall be the date upon which it is entered by the Court.

IT IS SO ORDERED.

Date: December 6,2005 Kansas City, Missouri

SI FERNANDO J. GAITAN, JR. Fernando J, Gaitan, Jr. United States District Judge

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 U.S. District Court United States District Court for the Western District of Missouri (Kansas
City) CIVIL DOCKET FOR CASE #: 4:05-cv-00946-FJG

McCullough v. Independence, Missouri, City of Assigned to: Chief District Judge Fernando J. Gaitan, Jr Cause: 38:4301 Employment/Reemployment Rights of Members of Uniformed Services

Date Filed: 10/07/2005 Date Terminated: 12/06/2005 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Plaintiff Wesley A. McCullough

represented by Charles M. Thomas Office of the United States Attorney 400 E. 9th St. Room 5510 Kansas City, MO 64106 (816) 426-3130 Fax: (816) 426-3165 Email: charles.thomas@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Avila U.S. Department of Justice Room 4030 Patrick Henry Building 950 Pennsylvania Avenue, N.W. Washington, DC 20530 202-353-3638 LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Independence, Missouri, City of

represented by B Allen Garner 111 East Maple Independence, MO 64050 (816) 325-7216 Email: agarner@indepmo.org

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 10/07/2005 10/07/2005 10/11/2005
10/25/2005 12/06/2005

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Docket Text

1 COMPLAINT against Independence, Missouri, City of (Filing fee $250 receipt number 0000000000) Service due by 2/6/2006, filed by Charles M. Thomas on behalf of Wesley A. McCullough. (Attachments: # 1 Civil Cover Sheet)(Thomas, Charles) (Entered: 10/07/2005)

The document originally filed as Document #2, NOTICE of filing ... Consent Decree, has been deleted per Administrative Procedures regarding Proposed Orders. Modified on 10/11/2005 (Jones, Robin). (Entered: 10/07/2005)

NOTICE OF DOCKET MODIFICATION. A modification has been made to the document filed on October 7, 2005 as Document #2, NOTICE of filing... Consent decree. The document has been deleted. Per Administrative Procedures, proposed orders should be emailed to the Courtroom Deputy in Word Perfect format. This is a text entry only - no document is attached. (Jones, Robin) (Entered: 10/11/2005)

2 MOTION for order Joint Motion for Entry of Consent Decree filed byCharles M. Thomas on behalf of all parties Suggestions in opposition/response due by 11/9/2005 unless otherwise directed by the court (Thomas, Charles) (Entered: 10/25/2005)

3 Consent Decree [granting 2 joint motion for entry of consent decree]. (Enss, Rhonda) (Entered: 12/06/2005)