Tolle v. Pocketsonics, Inc. et al, No. 3:2017cv00074 - Document 61 (W.D. Va. 2018)
Court Description: MEMORANDUM OPINION. Signed by Senior Judge Glen E. Conrad on 10/30/18. (jcj)
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CLERK'S OFFICE U.S.DIST.COUR7 AT ROANOKQ,VA jzjgur 2 '1- 2 2218 IN THE UNITED STXTESDISTRICT COURT FOR THE W ESTERN DISTM CT OF V IRGINIA CH ARLOTTESV ILLE D IV ISION JU BY: ' uD c -ax . RK , JA M ES TO LLE, CivilActionN o.3:17CV00074 Plaintiff, M EM O R AN D UM O PIN IO N POCKETSONICS,INC.,#!gk, . By:Hon.Glen E.Corlrad SeniorUnited StatesDistrictJudge Defendants. Plaintiff Jnm es Tolle filed this employm ent discrimination action tmder the Uniform ServicesEmploymentandReemploymentRightsActof1994 (ççUSER1lA''),38U.S.C.jj4301- 4335,againstPocketsonics,Inc.(sdpocketsonics'),Analogic Corporation,Analogic Limited (collectively,GdAnalogic''),JeffPompeo,Travis Blalock,Farley Peechatka,and Ronald Rios. The defendants previously moved to dism iss the com plaint tmder Federal Rule of Civil Procedme 12(b)(6),arguing thatTolle's claims are barred by a Bonus & GeneralRelease Agreement (QElkelease Agreemenf') thatTolle signed in consideration for certain bonus and severance paym ents, and that Tolle had not suffkiently stated a claim against Blalock, Peechatka,orRios. In response,Tolleconceded thatBlalock and Peechatkaarenotsubjectto individualliability tmderU SER' RA. However,he opposed the defendants'm otion in a11other respects. On M arch 5,2018,the courtissued a mem orandum opinion and order granting in part Tolle v. Pocketsonics, Inc. et al Doc. 61 and denying in partthe defendants'm otion to dism iss. Although the courtfound the Release A greem ent to be clear and tm am biguous,the c' otu't did not believe that the record had been sufficiently developedto determinewhethertheReleaseAjreementprovidedbenefitsthatwere greater than those that. To11e gave up in sipzing the agreem ent,rendering it enforceable tmder j4302 ofUSERRA.In particular,thecourtfotmdthatddlimiteddiscovery into acompmison of Dockets.Justia.com benefits, including whether the other employees received severance agreements, (wasj necessary.'' M ar.5,2018 M em .Op.6,Dkt.N o.24. Because a nlling on the enforceability of the Release Agreem ent could be dispositive of Tolle's claim s,the cotu't declined to decide whetherTolle stated aplausible claim againstItios. Thepartieshave completed the lim ited discoverypennitted by the court. Thedefendants have since filed a renewed m otion to dismiss the complaintor,in the alternative,for sllm mary judgment.Thecourtheld aheming on themotion viateleconferenceonAugust28,2018.The m otion hasbeen fully briefed and isnow ripeforreview. Backzround Tolle is aveteran ofthe Upited StatesNavy Reserve. Compl.! 15,Dkt.No.1. He completed his lastactive duty assignmentin July of2009. J-I. L ! 17. Tolle was honorably dischargedfrom theNavyReservein Septemberof2011.J-1. L! 19. ln February of 2011,Tolle began working as a senior engineer for Pocketsonics,a technology company that developed a handheld ultrasotmd device known as the Gçsortic W indow.''Id.! 18;seealsoDecl.ofJeffreyPompeo(ççpompeoDec1.'')! 10,Dkt.No.47.Tolle rem ained with PocketsonicsuntilSeptem ber 19,2013,the day beforethe company merged with Analogic,anothertechnology company. Compl.!! 77-78. Priorto themerger,Pocketsonics employed eightindividuals,including Tolle. Defs.'Resp.to P1.'s 1stSetofInterrogs.2,Dkt. No.46-1. The other employees were Chief Executive Officer Jeff Pom peo,Travis Blalock, Drake Guenther,M ichaelFuller,Jermaine Headley,Karen Morgan,and Jacob W egman. J. és Tolle allegesthatPompeo failed to appreciate Tolle'sm ilitary experience,exhibited biastoward Tolle forthatservice,and gavepreferentialtreatm enttothe otheremployeesofPocketsorlics,a11 ofwhom werenon-veterans.Compl.!!21-41. In August of 2013, two of Analogic's executive officers, Ronald Rios and Farley Peechatka,m etwith a11ofthePocketsonicsemployeesto discussAnalogic'spending acquisition of Pocketsonics. Id. ! 51. Tolle alleges that lGltios and Peechatka promised that all Pocketsonics employees,including Tolle,would retain their positions and receive permanent positionswith Analogic afterthe mergerwith Pocketsonics.'' Id.! 52. During themeetings, Tolle advised Rios and Peechatka ofhism ilitary backgrotmd and requested thatthey Cçconsider giving him opporttmities to use llis extensive leadership and m anagem ent sldlls from being a seniorNavyOfficer.''1d.!53. On September4,2013,Pocketsonics'Board ofDirectors(E%oard'')held a meeting to discuss mattersrelated to the pending m ergerwith Analogic. Board M eeting M inutes 1,Dkt. No.51-1. TheBoard also discussedtheproposedpaym entofbonusesto certain employees. The m inutes from the meeting indicate that the Board approved the paym ent of GT ransaction Bonuses''to four employees,including Tolle,which would be contingentupon the successful completion of the merger with Analogic and the execution of a release agreem ent by the recipient. J. Z 7. TheBoard also approved the paymentofCCFDA Bonuses''to the snme four em ployees,which would be contingentupon the subm ission ofthe Sonic W indow to the Food andDrugAdministration (dTDA'').J-I. L TheBoardproposedtopayTolleaTransaction Bonusin theamotmtof$13,500 and an FDA Bonusin thesame amount. JZ Thebonusesproposed for theotherthreeemployeesrangedfrom $19,125to$54,000each.J. Z The Board also approved the paym ent of EçspecialPre-closing Bonuses''to a11 eight Pocketsonics employees. Id.8. The Board proposed to pay Tolle and fotlrotheremployeesa SpecialPre-closing Bonusof$2,000. Theremaining bonusesranged om $15,000 to $30,000. JJ.. S TheBoardagreedthattheSpecialPre-closingBonuseswouldbepaid immediately priorto theeffectivenessoftheproposedmerger,LI. J. Analogic ultimately declined to offer Tolle a perm anent position with the company following the m erger. According to the com plaint,this decision was m ade by Rios,upon the recommendation ofPompeoandBlalock. See.e.c.,Comp.jr87 (describing awritten statement from Rios in which he noted that$+0th Pompeo and Blalock affected hisdecision notto hire or retain Tolle asa regularemployee afterAnalogic's acquisition ofPocketsonics was fna1''). Instead,Analogic offered Tolle a three-month consulting arrangement,which Tolle rejected. Decl.ofPatriciaDtlmas(sr llmasDec1.'')!3,Dkt.No.46.Theproposed consulting agreement was contingent upon the company's acquisition of Pocketsonics by September 13, 2013. Consulting Agreement ! 1, Dlct.No.46-2. Under the tenns of the proposed consulting agreement,Tollepould have been paid am axim ttm nm ountof$6,000perweek dtlringthetllree- monthperiodspecifiedintheagreement.Id.!6. A1lofthe otherPocketsonicsemployeeswereoffered and accepted regularemployment with Analogic,eitherbefore or imm ediately after the m erger was ûnalized on September20, 2013. Dllmas Decl.!! 4-10. The documents delineating the tenns and conditionsoftheir employmentwith M alogic,including theirrespective compensation packages,have been filed undersealwith the court. See Sealed Exs.to Dum asDecl.,Dkt.No.50. Folzroftheindividuals who accepted full-time engineering positions with Analogic were offered nnnualbase salaries thatexceeded $100,000. 1d. They were also given the opportunity to participate in Analogic's annualbonus progrnm and its standard benefitprogram thatincluded medical,dental,and life insurance,disabilityprotection,andthecompany's401(k)plan.Id.Twooftheindividualswho accepted full-time engineering positions also received Analogic stock units as a sign-on equity aw ard, as w ell as the opportunity to receive atl additional equity aw ard as partof Analogic's long-tennincentiveprogrnm.Ld.,s 4 On Septem ber 13, 2013, Tolle executed a Bonus & General Release Agreement (EsReleaseAgreemenf),tmderwhich Tolleagreedthatllisemploymentwolzld terminateon the business day priorto the closing ofPocketsonics'm ergerwith Analogic,and thathe desired to tGresolve certain m attersincluding thoserelated to the provision ofcertain bonusopportunitiesto g'Tbllej from Pocketsonics,the release of claims by E'Folleq againstPocketsonics, and the termination of(hisjemployment.''ReleaseAgreement1,Dkt.No.47-3.BysigningtheRelease Agreem ent, Tolle acknowledged that he had been given at least 21 days to consider the agreem ent,andthathehad been advised to consultwith an attorney abouttheagreem ent'sterm s. Ld.a! 8. Under the terms of the Release Agreement,Tolle received a STransaction Bonus Paym ent''of$13,500,a dtseverance Paym ent''of$13,500,and a <tspecialBonus Payment''of $2,000,a1lintlvaltiableconsideration''forhisgeneralrelease ofclaim sagainstPocketsonics. Id. !!1,3.Thereleaseprovisionoftheagreementstatesasfollows: 1 hereby fully and forever generally release and discharge Pocketsonics,its current,former arld ftzture parents,subsidiades, affiliated companies,related entities,em ployee benefitplans,and their fiduciaries, predecessors, successors, ofscers, directors, stockholders, agents, employees and assigns (collectively, the ççcompany'') from any and a1l claims, causès of action, and liabilitiesup through thedateofmy execution ofthisRelease.The claimssubjecttothisreleaseinclude,butarenotlimitedto,those relating to m y employm ent with Pocketsonics and/or any predecessor to Pocketsonics and the termination of such em ploym entwhich willbeeffectiveasofthe Tennination Date.In tmderstanding the termsofthisRelease and my rights,1havebeen advised to consultwith an attorney ofmy choice priorto executing this Release. I tmderstand that nothing in this Release shall prohibitm efrom exercising legalrightsthatare,asalnatteroflaw, notsubjecttowaiver.... Ld=.! 2. In aseparateparagraph,Tollealso agreed asfollows:G$Itmderstand and agreethatby entering into thisRelease 1nm waiving any and allrightsorclaim sIm ighthave underthe Age Discrimination in Employm entAct,as nm ended by the Older W orkersBenefitProtection Act, andthatIhavereceived compensation beyondthattowhich Iwaspreviously entitled.'' Id.! 8. 5 Tollefurtheracknowledgedthathehad seven daysaftersigningtheReleaseAgreem entin wllich to revoke it,and thatthe agreem entwould notbe enforceable tmtilafterthe revocation period expired.Ld-a On September 20,2013,the date on which the merger became effective,three of the Pocketsonicsemployeeswho acceptedenginelringpoqitionswith AnalogicenteredintoaGçside LetterAgreem ent''concenling thepaymentofabonuscontingenton the submission ofthe Sozlic W indow totheFDA forç(510(k)clearance''(ITDA Bonus''). SideLetterAgreement,Dkt No. 50-8. TheamountsoftheFDA Bonusesranged from $19,125to$54,000. JlJ .Sat2. An earlier -. version of Tolle's Release Agreem ent included a contingent FDA Bonus in the am olmt of $13,500. SeePompeo Decl.Ex.D.,DktNo.47-4. Thatbonuswasultim ately replaced with the Severance Payment in the sam e amount. The parties dispute whether Tolle negotiated this particularchange.See2ndTolleDecl.!2,Dkt.No.59-1. A11seven ofthe otherPocketsonics employees received the tçspecialBonusPaym ent'' approved by theBoard. Pompeo Decl.! 12. Fotlrofthe otheremployeesreceived a Special Bonus Pam ent in the am otmt of $2,000, the sam e amotmt paid to Tolle. Board M eeting M inutes5, However,one ofthe employeeswho accepted an engineering position with M alogic receivedaSpecialBonusPaymentintheamountof$25,000.J.Z Additionally,fiveoftheother Pocketsonics employeesreceived a çû-l-ransaction BonusPayment'' Pompeo Decl.! 12. The Transaction Bonus Paym entsm ade to three ofthe em ployeeswho accepted full-tim e engineeling positionswith Analogicranged from $19,125to $54,000. Board M eeting M inutes5. Tolle has filed declarations in response to the pending m otion. In the tsrstdeclaration, Tolle statesthathe signed theRelease Agreem entççillorderto obtain theonly employee benetks ghe)received in connection with the Pocketsonics-Analogic mergery''and thathisEGsubjective aim ...wasnottoobtainbenetkssuperiortothosetmderUSERRA.'' 1stTolleDecl.!(1.Tolle 6 further avers that atthe tim e he signed the Release Agreem ent,he S'was notaware ...ofthe degreetowhichthesimilarlysituatednon-veterancoworkersreceivedbenefitssuperior(tohisl.'' J.4.! 2. Tolle emphasizes thathe did notbecome aware of al1the amotmts paid to other employeestmtil after the instantaction w as filed,and thathe did not isbelieve thatUSER'RA and/or(hisqGveteran'-relatedrightswereatissuein signingthe(Release)Agreement''Id.!!2, 5. Although Tolle was advised to consultwith an attom ey,he did notretain legalcotmselto assisthim in deciding whetherto sign theagreement. Id.! 6. lnstead,hespoketo aSGfonner employer...whom (hejtnlstedtogiveglAimqadviceon contractissues.''1d. In responseto Tolle'sfirstdeclaration,the defendants subm itted an em ailindicating that Tolle lenrned ofthe Side Letter Agreem ent regarding FDA Bonus Paym ents by no later than Septem ber 20,2013,which was within the tim e period in which he could have revoked the Release Agreem ent. In a second declaration subm itted in response, Tolle avers that he inadvertently lenrned aboutthe SideLetterAgreementon September 19,2013,butthatliasofthe afternoon of September 20,2013,the last day of the revocation period for the .. .Release Agreement, gheq still did not have knowledge of the specific payments made to other employees.'' 2d Tolle Decl.!(1. Likewise,Tolle statesthathe had ççno knowledge ofthe particular Transaction Bonuses,SpecialBonuses and stock pam ent am ounts''m ade to other Pocketsonicsemployees.J. Z StandardsofReview Pocketsonics,Analogic,Pompeo,and Rios(collectively,Eçthe defendants'')have filed a renewed motion todismissthecomplaintor,inthealtemative,forsummaryjudgment,arguing thatTolle's USERRA claims are barred by the Release Agreem ent. The defendantshave also renewed their previous azgtlm ent that the complaint does not state a plausible claim for individualliability againstR ios. Because both sides have presented m atters outside the pleadings to support their respective positionson the issue ofwhetherTolle's USERRA claim s are barred by the Release Agreement,thecourtwilltreatthe defendants'motion asamotion forsllmmaryjudgmentwith respectto thatissue. SeeFed.R.Civ.P.12(d)(ç$If,on amotion underRule 12(1 $46)or12(c), m attersoutsidethepleadingsarepresented to and notexcluded by the court,the motion mustbe treated asone forsllmmaz' yjudgmenttmderRule56.''). Rule56'oftheFederalRulesofCivil Procedure providesthatççgtlhe courtshallgrantsllmmary judgmentifthe movantshowsthat there isno genuinedisputeasto any materialfactand themovantisentitled tojudgmentasa matteroflaw.'' Fed.R.Civ.P.56(a). In deciding whetherto granta motion for sllmmary judgment,the courtmustçGviewlqthe facts and reasonable inferencesdrawn therefrom in the lightmostfavorableto thenonmovingparty.'' W oollardv.Gallacher,712 F,3d 865,873 (4th Cir.2013). In lightofthe court'snzling on thefirstissue,itmustalso considerwhetherthe complaint states a plausible claim for individual liability against Rios. Because the defendants solely challenge the suo ciency ofthe allegationsagainstRios,and do notrely on any m atters outside the pleadings to supporttheir position,the courtwillreview this portion of the defendants' motionunderFederalRuleofCivilProcedttre 12(b)(6).Stf' hepuposeofaRule 12(b)6)motion istotestthesufsciencyofacomplaint.''Edwardsv.CitvofGoldsboro,178F.3d231,234 (4th Cir.1999). To survive dismissaltmderthisrule,G1a complaintmustcontain sufficientfactual matter,accepted as true,to çstate a claim for reliefthatis plausible on its face.''' Ashcroftv. lqbal,556 U.S.662,678 (2009) (quoting BellAtl.Com .v.Twomblv,550 U.S.544,570 (2000:. Whenruling on amotiontodismiss,thecourtEGmustassllmea1l(well-pled facts)tobe true''and ttdraw a11reasonableinferencesin favoroftheplaintiff.''Nem etChevrolet Ltd.v. Consumeraffairs.com.Inc.,591F.3d 250,253 (4th Cir.2009)(alteration in original)(intemal quotationmarksomitted). Discussion tCUSERRA was enacted,in part,çto prohibitdiscrimination againstpersons because of theirservicein theunifonned services.'''Hillv.M ichelinN.Am..lnc.,252 F.3d307,311(4th Cir.2001)(quoting 38U.S.C.j 4301(a)(3)). Accordingly,USERRA providesthatany person who isam emberofauniformed service,orhasperfonned service in a llniformed service,(dshall notbe denied initialemployment,reemploym ent,retention in em ploym ent,promotion,or any beneftofemploymentby arlemployeron thebasisofthatmembership ...gorlperformanceof service .... 38U.S.C.j 4311(a). USERRA furtherprovidesthat galn employershallbe deemed to have engaged in actions prohibited . .tmder subsection (a), if the person's membership gor)...servicein thellniformed servicesisamotivatingfactorin the employer's action,tmlessthe employer can prove thatthe action would have been taken in the absence of such membership ...or...service.'' ld.j4311(c). 'TherightsconferredtmderUSERRA as againsta private employermay be enforced by bringing a claim in federaldistrictcourtby the m ilitary person aggrieved.'' M acev.W illis,259F.Supp.3d 1007,1015 (D. S.D.2017)(citing 38U.S.C.j4323(a)(3)). GçRemediesavailableforviolationsofUSERRA ihclude:(1)injtmctive relief,(2)lostwagesorbenefitssuffered asaresultofaUSERRA violation,and (3)liquidated * USERRA definesthetenn Rbenetit''ortlbenefitofemploym çnt''as any advantage,profit,privilege,gain,status,account,orinterest(otherthan wages or salary for work performed) that accrues by re%on of an employmentcontractoragreementoranemployerpolicy,plan,orpractice and includes rights and benefits under a penslon plan, a health plan, an employee stock ownership plan,insurance coverage and awards,bonuses, severance pay,supplem entaland unemploymentbenetks,vacations,and the oppodunity to selectwork hoursorlocation ofemploym ent. 38U.S.C.j4303(2). dnm ages in an nmotmtequalto the am ountoflostwagesorbenefitsifthe em ployer'sviolation waswillful.''Id.(citing38U.S.C.j4323(d)(1)). In theinstantcase,Tolle claim sthatPocketsonics,Analogic,Pompeo,and lkiosviolated his rights under USERRA by,inter alia,providing him with Gçlower awards,bonuses, stock options, and com pensation compared to similarly situated non-veteran employeesy'' and by GGultimately failing to retain and/orhire (himqin aposition with Analogic,''a1lbecause ofhis priormilitm'y service. Compl.! 97. In thepending motion,thedefendantsarguethatTolle's USERRA claim s are barred by the Release Agreem entthatTolle executed on September 13, 2013,and thatthecomplaintfailsto state aclaim forindividualliability againstRios. Thecourt willaddresseach ofthedefendants'argum entsin turn. 1. The Enforceabilitv ofthe R elease A ereem ent Courtshave recognized thatthe text and legislative history ofUSERRA indicate thata ' veteranmaywaivehisrightstmderthestatute.See.e.:.,Wysockiv.Int,1Bus.u ach.Com.,607 F.3d 1102,1108 (6th Cir.2010). To be enforceable,however,a waivermustbe ûiclearand tmambiguous,''anditmustpassmustertmder38U.S.C.j4302.J. l1.at1107-08. Section4302, which addressesUSERRA'Srelation to otherlaws,plans,and agreem ents,providesasfollows: (a)Notlzing inthischaptershallsupersede,nullifyordiminish any Federal or State 1aw (including any local law or ordinance), contract, agreement,policy,plan, practice, or other m atter that establishes a right or benefk that is more beneficialto,or is in addition to,a right or benefit provided for such person in this chapter. (b)Thischaptersupersedesany Statelaw (including any local1aw orordinance),contract,agreement,policy,plan,practice,orother m atterthatreduces,limits,oreliminatesin anym nnnerany rightor benefk provided by thischapter,includingtheestablishmentofany additionalprerequisites to the exercise of any such right or the receiptofany such benefk. 38U.S.C.j4302. 10 Only a few courtshave had the opporttmity to considerwhethera contractualwaiver of rights is enforceable tmderthis çhlnique''statutory provision. Vahey v.Gen.M otors Co.,N o. 1:11-cv-00661,2012U.S.Dist.LEXIS 189423,at#13(D.D.C.M ar.1,2012);seealsoW ysocki, 607 F.3d at1109tM m4in,J.,concuning)(notingthatj4302 lçisanexceedingly strangestatute'' and thathe could notçirecalleverhaving encotmtered anything remotely similarin ghisjmore than thirty yearson the bench''). Those thathave been tasked with applying j 4302 in the contextofcontractualwaivershave recognizedthattheçccriticalinquiry''iswhethertherightsor benefts the veteran received by signing the waiver were m ore benelicialthan the rights or benefitshe agreedto giveup. W ysocki,607 F.3d at1107;see also W ashington v.ShellOi1Co., No.2:17-cv-08825,2018 U.S.Dist.LEXIS 97971,at*5 (E.D.La.Jtme 12,2018)(quoting W ysocki,supra);Vahey,2012 U.S.Dist.LEXIS 189423,at *13 (characterizing j 4302 as ççpermitting awaiverofrightsonlyforamorebenescialagreemenf).Thisreadingisconsistent with theregulationsimplementing j4302,which explain thatCEUSERRA establishesafloor,not a ceiling,for the em ploym ent and reem ploym ent rights and benefits of those it protects.'' 20 C.F.R.j 1002.7. Esln otherwords,an employermay provide greaterrightsand benefitsthan USERRA requires,butno em ployer can refuse to provide any rightor benefitguaranteed by USERRA.'' Id. Tlzisreading isalso consistentwith therecognition thatGCUSERRA'Sprovisions are to be liberally construed in favorofveterans.'' W ysoclci,607 F.3d at1108;seealso Hill,252 F.3d at313 (ffBecause USERRA wasenacted toprotectthe rightsofveteransand membersof theuniformed services,itmustbebroadlyconstruedinfavorofitsmilitarybeneficiaries.'). TheUnited StatesCourtofAppealsfortheSixth Circuit'sopinioninW ysockiappearstd be the only appellate decision squarely addressing whether a release executed by an employee , - , passed muster under j 4302. In that case,the plaintiff àlleged that International Businesi M achines(t&IBM'')terminatedhisemploymentuponhisrettum f' rom militaryservice,in violation 11 of USERRA. W ysoclci, 607 F.3d at 1103. On the same day that his employment was term inated,theplaintiffsigned arelease aspartofaseparation plan thathenegotiated with IBM . Id.at1104.Underthetennsofthe release,theplaintiffagreed to waivea11claimsthathem ight haveagainstIBM ofanylcind,tiEincluding,butnotlimitedto Eclaimsofldiscrimination bmsedon veteran status....''' 1d. Therelease gavetheplaintiffatwentp one-day pedodto consider itpriorto signing,and a seven-day period after signing to revoke hisacceptance. J. I. The plaintiffreceived a gross severance paym entof $6,023.65 in exchange forsigning the release. Id. Therelease speciscally instructed theplaintiffto consultwith an attom ey priorto signing it. Li The plaintiffaccepted the severance paymentand did notexercisehisdghtto revoke his 'after, he fled suitagainst1BM forviolating llisrightstmderUSERRA. acceptance. J#=. There Id.at1103. On appealfrom the districtcourt's decision granting summary judgmentto IBM ,the Sixth Circuitheldthatthereleasewasvalidand enforceablelmderj4302.Id.at1108-09.Prior to reaclling its decision,the Courtnoted thatUSERRA'SSçlegislative history clearly envisioned thatveteranswould be ableto waive theirindividualUSERRA rightsby clearand tmambiguous action.'' Id.at1008. The CourtreasonedthatGdtheability to waivetheirUSERRA rightswithout unnecessary court interference, if they believe that the consideration they will receive for waiving those rights is m ore beneficialthan ptlrsuing their rights through the courts,is both valuableand beneficialtoveterans.'' J#.a TheCourtthenttmledtotherecordin thecasebefore it observing that the release at issue used isclear and tmam biguous language and involved a valuable nmotmtofconsideration.'' JI. J.s The Courtemphasized thatthe release informed the plaintiffthatitGtcoveredclaimsbasedon dveteranstatus.'''Id.TheCourtdeterminedthatçGltlilis clear and unambiguous language informed W ysockithathe Wasw aiving his USEIG A rights and,in exchange for signing the Release,W ysockireceived over $6,000.00.'' Id. Underthe circumstancespresented,theSixth Courtfound that$1itappearled)from therecordthatW ysoclti understood thatthe Release eliminated hisUSERRA rights,thathe signed the Release because he believed thattherightsprovided in theRelease werem orebeneficialthan hisUSERRA rights and,therefore,thattheRelease (wasqexemptedfrom theoperation ofj4302(19 by j4302(a).'' J.Z Notably,theCourtemphasizedthatS%W ysockighad)notpresentedany argumentorevidence tothe contrmy ''and thatitcould notGfnd any such evidence in therecord.'' J.IJ. The Court wenton to notethattherewasno evidence ofincapacity,fraud,m isrepresentation,ordtlress,and thatW ysoclciwasencouragedtoconsultwith an attomey.JZ Based ontherecord beforeit,the Courtheldthat6E54302 (didqnotinvalidatetheRelease.''J. Z In a concuning opinion,Judge Boyce M artin em phasized thatW ysoclcirelied strictly on an tm successf' ullegalargumentin response to IBM 'Sm otion,çEinstead ofcoming forward with evidenceto disputewhetherthe Releaseresulted in a sim ation morebeneticialthan hisUSERRA rights.'' Jd.at 1109 tM artin,J.,concurring). Accordingly,Judge M artin noted thatthe case before itwasS'nottherightvehicleforbroadstatementsabouttie application ofsection 4302,9' and thathe Gçapplaudledqthe majority'sexercise ofrestraintin deciding Ethejcase narrowly instead ofpermitting thesebad factsto resultin bad lam '' Id. ln concuning in themajority's decision,Judge M artin once again emphasized thatW ysockiGldid notpresentany evidencethat w ould suggestthatthe m oney that he received for signing the Release w as less benefk ialthan hisUSERRA dghts,and thusinadequate undersection 4302(a).'' J.Z at 1110. Judge M artin notedthat(Elaln affdavitlikely would havesufficedto createaquestion offact''on thisissue. J.1 . L tiBecauseW ysockipresented nosuch evidencey''JudgeM artin agreedwith themajoritythat 'ttheproperconcluàiop'on thisrecord isthattheRelease resulted in asituation morebeneficialto W ysocld thanhisUSEIG A rightsandwasthusenforceableundersection 4302(b).''Id. Based on certain language in W ysocki, som e district courts have intem reted this provision ofUSERRA ççto require a subjective beliefthatthe consideration provided by the w aiver agreem ent w as m ore beneficial than the rights provided by U SERR A .'' W asllinglon. 2018.U.S.Dist.LEXIS 97971,at*5(citingW ysocki,607 F.3d at1108 tGdclearly,theability to waive their U SERRA rights without unnecessary court interfçrence, if they believe that the consideration they willreceive for waiving those rights is m ore beneficialthan pursuing their rightsthroughthecourts,isboth valuable andbeneficialtoveterans.'l). In W ashinaton,wilich was before the courton a motion to dismiss,the com plaintexpressly alleged thatthe plaintiff Gçcould notdeterm ine whetherthe rights provided in the Release were m ore benefk ialthan the rightsprovided by USERRAO''and thattheplaintifftdsigned theRelease Snotbecausehebelieved that the rightsprovided in the Agreem ent were more beneficialthan his USERRA rights,but ratherbecause ofthe severe fnancialdistress and em otionalduress he continued to suffer'asa result ofthe Defendants'actions.'' 2018 U .S.Dist.LEXIS 97971,at*5. -6. In lightof such allegations,thedistrictcourtconcludedthatthe defendant'saffirmative defenseofwaiverdid not appearfrom the face ofthe complaintand therefore was nota valid ground fordismissaltm der Rule12(b)(6).Id. Sim ilarly, in vahey, the United States District Court for the District of Colllm bia . contrasted the factspresented in the casebeforeitfrom those in W ysocki,and determined thatit could not Gsconfidently conclude that plaintiff unambiguously believed the severance package gthathe acceptedqwasmorebeneticialthan hisrightto bring aclaim tmderUSERRA.'' 2012 U .S.D ist.LEXIS 189423,at*15. The distdctcottrtexplained as follow s: A s provided by U SERRA ,plaintiff w as entitled to reem ploym ent and protection from discharge without cause for one year, but tmderthe severance package he received only six m onths'salary. See38U.S.C.j4316(c)(1). Plaintiffcould havebelievedthatsix months'salary was betterthan nothing,as the plantwas closing and hencehisjob no longerexisted. Butasplaintiffcontends,he 14 was arguably entitled to the opportlmity to transfer,eitherbecause thatopportunity wasoffered to other employeesnotdeployed for m ilitary setvice orby virtue ofU SERRA'S tescalator'principle. Because he was not offered a transfer,it is tmclear thatplaintiff would have chosen the severance package over a transfer opporttmity. Id.(additionalcitations omitted). Accordingly,fKluqnlike in W ysocki,''the districtcourtwas unable to Gdconclude that plaintiff weighed the benetits of his USERRA rights against the severance packageand chosethem orebeneficialarrangem ent.'' Id. Thedistrictcourttherefore denied the defendant's motion to dism iss,once again noting thatitcould notbe said f' rom the existing record thattçplaintiffconsciously waived hisU SERRA rightsin thebeliefthatwhathe wasreceiving undertheReleasewasm ore beneficialtha11hisstatutoryrights.''Id. - Againsttllis backdrop,Tolle and the defendants disagree as to whatstandard of proof should be employed in detennining whether a contractualwaiver ofrights is eatbrceabletmder j4302.ConsistentwithW ashin#on andVahev,Tolleargtle;that1hedefend .K ts'motionmust be denied because they have çdfailed to show,as a m atter of 1aw and/orbased on tmdisputed materialfacts,thatghe)subjectively believed thatthebeneftsofthe (ReleaseAgreementjwere more beneficialthan hisU SER' RA rights.'' Pl.'sBr.in Opp'n 3,Dkt.No.52. The defendants, on the otherhand,maintain thatçta çsubjectivebelief standard isnotrequired in assessingthe validity ofa USERIIA waiver,''and thatthe record conclusively establishes that dithe benefts plaintiffreceived were morebeneficial,orin addition to,ilisUSER' RA rights.'' Defs.'Reply Br. 2,5,Dld.N o.54. Both sides have advanced strong mp lm ents in favor of their respective positions on whether a Gtsubjective belief'standard shotlld be applied.In the court's view,a veteran's subjective tmderstanding or motivation is one of several factors that may bear on the determ ination ofwhetherarelease agreem entresulted in a situation m ore beneficialto a veteratl than hisU SERRA rights. The courtbelievesthatotherpotentially relevantfactors include the 15 particulartennsoftheagreement,the extenttowhich theveteran wasinvolved in negotiatingthe agreem ent,whether the veteran obtained the advice ofcotmsel,and a compatison ofhow the employertreated sim ilarly-sim ated non-veteran employees. Ultim ately,however,the resolution of the instantmotion does not t'urn on whether Toll: subjectively believed that the rights provided in the Release Agreem ent were m ore beneficial than ilis U SER' RA rights. Even asstlming thatTolle'ssubjectivestateofmind isimmaterialorirrelevantto theanalysistmder j 4302,the courtconcludes,forthe following reasons,thatthe defendantsare notentitled to summo judgmentbasedontheReleaseAgreement. First,theterm softhe Release Agreem ent,when viewed in Tolle'sfavor,do notcompel the conclusion thatthe agreem entprovided rights thatwere more benetk ialto Tolle than his U SERRA rights. UnderU SERRA,Tolle had therightnotto be denied çiem ploym ent''orlçany benestofemployment''on thebasisofhismilitaryservice!38U.S.C.j4311(a).Byexecuting the Release Agreem ent,Tolle agreed to receive payments totaling $29,000,in exchange.for releasing thedefendantsfrom ççarly and a11claims...up tluough the dateof(his)execution,'' including claim s relating to his employm ent with Pocketsonics and the term ination of such employment. Release Agreement! 2. The courtpreviously fotmd such broad language to be sufsciently clear to waive Tolle's USERRA rights. However,neither this language,nor the language describing Tolle'spaym entsasEGvaluable consideration,''conclusively establishesthat the Release Agreementpassesmustertmder j 4302. Ldua! 1. As Judge M artin observed in W vsocki,tdgjlustbecause(1)awaiverclearlydeclaresanintenttowaiveUSER' RA rightsand(2) theveteran received substantialconsideration doesnotpennittheie erence thatthe consideration w as m ore benefcial to the veteran than his U SERR A rights.'' W ysocld, 607 F.3d at 1110 tM artin,J.,concuning). Gçstated differently,the face of the Release does notallow for a eonclusion of enforceabilityy'' and,at most, Gisatisfied (the defendants'q initial btlrden 'of production in asserting the Release.'' Id. For this very reason,the courtfotm d that lim ited discoverywasnecessary in theinstantcase. Second,unlike W ysocki,the record in this case includesadditionalevidencethatwould suggest thatthe money Tolle received for signing the Release Agreem entwas less beneficial than hisU SEIG A rights,nnm ely the evidence ofhow Tolle was treated in com parison to his non-veteran coworkers. It is tm disputed thatTolle was the only Pocketsonics employee who was notoffered regularemploym ent with Analogic,and thata11ofhisnon-veteran coworkers received com pensation packagesthatincluded a sizeable base salary,bonus opporhmities,paid vacation time,and otherem ployee benetks. Likewise,the evidenceproduced dtlring discovery, when viewed in Tolle's favor,indicates that his bonus/severance payments were signifkantly lower than the bonus paym ents m ade to similarly-situated, non-veteran em ployees of Pocketsonics.Although the defendantscorrectly notethatU SERRA doesnotrequire (Gidentical'' treatmentofveteran and non-veteran employees,Defs.'Br.in Supp.11-1j,Dkt.No.45,an employee carmotbe denied employment or employmentbenefits on the basis ofhis military service. See 38 U.S.C.j 4311(a). Thatisprecisely whatisalleged here. See Compl.! 97. Based on the current record,the courtis tmable to conclude thatTolle's Release Agreement resulted in a sim ation morebeneficialto Tollethan hisrightstmderU SERRA. Third,it is not enough that Tolle received benefits that were Sidifferent'' from those offered to otherPocketsonics employees. Defs.'Br.in Supp.3' . Forinstance,in their bdefin support of the pending motion, the defendants emphasize that ççgnqo other Pocketsonics em ployeewasoffered tseverance'in cormection with themergerwith Analogic,''and thatcertain otheremployeesinstead received an FDA bonusthatwas contingenton the subm ission ofthe SonicW indow totheFDA forclearance. J#=.at2-3. Thedefendants'argumentsinthisregard do notcarrytheday onsummaryjudgment. Asemphasized above,Tollereceivedthousandsof 17 dollars less than non-veteran coworkers at Pocketsonics and no offer of full-tim e regular employm entfrom M alogic. Thus,while Tolle's severancepackagewas clearly ççdifferent''the courtcarmotsay,as a m atter of law,that itwas m ore beneficialto Tolle than his USERRA rights. Finally, the court is unable to conclude that Tolle's Gireceipt of $29,000 was, by definition,...$in addition to'hisUSERRA rightsy''thereby rendering the Release Agreem ent enforceableunderj 4302(a). Defs.'Br.in Supp.2. Thisisnota case in which a policy or agreem entplainly offered additionalrightsbeyond thoseprovided tm derUSERRA. See.e.2.,20 C.F.R.j 1002.7(c)(:&Forexnmple,although USERRA doesnotrequire an employerto pay ml employeefortime away f' rom work performing service,an employerpolicy,plan,orpracticethat providessuch benefitispermissible underUSERRA.''). lnstead,the defendantsmaintain that Tglle waived his USERRA rights in exchange for the paym ents provided under the Release ' Agreement.Thedefen(tantsha' vefailedto explain 'how the s' everncépackagecould beviewed asbeing Siin addition to''Tolle's USER' RA rights,ifthose rights were elim inated or otherwise rendered tmenforceableby theReleaseAgreement. Forallofthesereasons,the defendantsarenotentitled to summaryjudgmentbased on the ReleaseAgreement. Atthisstage of the proceedings,the courtm ustconstrue the evidence and draw a11reasonable inferencesin favorofTolle. W hen the record isviewed in thatm anner, itcnnnotbe said thatthere isno genuine dispute asto any m aterialfactand thatthe defendants are entitled to judgmentas a matteroflaw on the-issue ofwhetherthe Release Agreement resulted in a sim ation more beneficialto Tolle than his USERRA rights. Accordingly,the enforceabilityoftheReleaseAgreementtmderj4302cannotbedecidedinthedefendants'favor onsummaryjudgment. 18 II. The Suflciencv ofthe A llezationsaaainstRios The defendants have also renewed their m otion to dismiss the claim for individual liability against Rios on the basis that he is not an ttemployer''for pup oses of U SERRA. U SERRA desnes an Cçemployer''as tiany person,institution,organization,or other entity that pays salary or wages for work perfonned or that has control over employm ent opporttmities, including ...a person,institution, organization,or other entity to whom the employer has delegated the performance ofemployment-related responsibilities.'' 38 U.S.C.j4303(4)(A). USERRA'Saccompanying regulationslikewise statethatan em ployer includes iiany person ... thathascontroloveremploymentopportunities....'' 20 C.F.R.j1002.5(d)(1). Based onthis language, courts have held that individuals who have conkol over hiring and firing m. e Stemployers''underUSERRA. Croftv.Vill.ofNewark,35 F.Supp.3d 359,368 (W .D.N.Y. 2014)(collectingcases). Upon review of the complaint,the courtconcludes that itstates a plausible claim for individualliabilityagainstRios.'I'hecomplaintincludesmultipleallegationsindicating thatRios had thepowerto ilireTolleto work forAnalogicand thathe ultim ately decided notto offerTolle a regularposition with the company. See.e.g.,Compl.! 86 (quoting from a M ay 9,2014 1 statem ent from Analogic indicating that û&&M r. Rios decided to accept the earlier recomm endations ofM r.Pompeo and Dr.Blalock and notto offerM r.Tolle aregularposition with Analogic''');J#-,! 87 (referencing allOctober*22,2014 m 'itten statement9om Rios in which heexplained whatCçaffected hisdecision notto llire orretain Tolleasa regularemployee afterAlplogic'sacquisition ofPocketsorlics'')(emphasisadded).Such allegations,accepted as true,allow the courtto draw the reasonable inference thatRios had controlover employment opportunitiesw ith Analogic and therefore w as as an Glem ployer''forpurposesofU SERIIA . See 19 Icbal,556 U.S.at678. Accordingly,thedefendants'motlon to dismisson thisgrotmdwillbe denied. Conclusion Forthereasonsstated,thedefend= ts'renewed motionto dism issthecomplaintor,in the altemative,forsummaryjudgmentwillbedenied. Thepartiesshallproceed withdiscoveryon themeritsoftheplaintiffsclaimsofdiscrimination in violation ofUSERRA. TheClerk isdirected to send copiesofthism emorandllm opinion andtheaccompanying ordertoa1lcounselofrecord. ' DATBD:uus': dayofootober, 2018. SeniorUnited StatesDiskictJudge 20
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