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Tolle v. Pocketsonics, Inc.

United States District Court, W.D. Virginia, Charlottesville Division

March 5, 2018

JAMES TOLLE, Plaintiff,
POCKETSONICS, INC. et al, Defendants.


          Hon. Glen E. Conrad Senior United States District Judge.

         Plaintiff James Tolle has filed a complaint against defendants Analogic Corporation, Analogic Limited (collectively, "Analogic"), PocketSonics, Inc. ("PocketSonics"), Jeff Pompeo, Travis Blalock, Ronald Rios, and Farley Peechatka, alleging they discriminated against him on the basis of his veteran status, in violation of the Uniformed Services Employment and Reemployment Rights Act ("USERRA"), 38 U.S.C. § 4301, et seq. The case is presently before the court on the defendants' motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the following reasons, the court will grant the motion in part and deny it in part.


         Tolle, a veteran of the United States Navy Reserve, completed his last active duty assignment in July 2009 and was honorably discharged from the Navy Reserve in September 2011. Compl. ¶¶ 15, 17, 19. Meanwhile, in February 2011, Tolle began working as a senior engineer for PocketSonics, a technology company that developed a handheld ultrasound device. Id. ¶ 18. The company employed nine individuals, including Chief Executive Officer Jeff Pompeo and Chief Technical Officer Travis Blalock. Id. ¶¶ 10-11, 20. Tolle alleges that Pompeo failed to appreciate Tolle's military experience, exhibited bias toward Tolle for that service, and gave preferential treatment to the other employees of PocketSonics, all of whom were non-veterans. Id. ¶¶ 21-41.

         By 2013, healthcare technology company Analogic became interested in acquiring PocketSonics. Prior to the completion of the merger, two of Analogic's vice presidents, Ronald Rios and Farley Peechatka, met with each of the PocketSonics employees to discuss the pending acquisition. Id. ¶¶ 12-13, 51. The plaintiff alleges that around this time Pompeo recommended that Rios not hire Tolle. Id. ¶¶ 56, 61.

         On September 6, 2013, all PocketSonics employees, except Tolle, were offered permanent positions at Analogic and substantially the same or better compensation than they had received at PocketSonics. Id. ¶ 66. As for Tolle, Pompeo offered him a temporary three-month contract position, which Tolle declined. Id. ¶ 65.

         PocketSonics then provided Tolle with a severance agreement entitled the "Bonus & General Release Agreement" ("Severance Agreement").[*] Id. ¶ 67. The agreement gave Tolle twenty-one days to consider it. Dkt. No. 12-1, at ¶ 8. On September 13, 2013, Tolle executed a final Severance Agreement, under which he received a transaction payment of $13, 500, a severance payment of $13, 500, and a special bonus payment of $2, 000, all in "valuable consideration" for his general release of claims against PocketSonics. 14. ¶¶ 1, 3. The release provides as follows:

I hereby fully and forever generally release and discharge PocketSonics, its current, former and future parents, subsidiaries, affiliated companies, related entities, employee benefit plans, and their fiduciaries, predecessors, successors, officers, directors, stockholders, agents, employees and assigns (collectively, the "Company") from any and all claims, causes of action, and liabilities up through the date of my execution of this Release. The claims subject to this release include, but are not limited to, those relating to my employment with PocketSonics and/or any predecessor to PocketSonics and the termination of such employment which will be effective as of the Termination Date. In understanding the terms of this Release and my rights, I have been advised to consult with an attorney of my choice prior to executing this Release. I understand that nothing in this Release shall prohibit me from exercising legal rights that are, as a matter of law, not subject to waiver.

Id. ¶ 2.

         On October 17, 2017, the plaintiff filed a complaint against the defendants, alleging discrimination on the basis of his veteran status. The complaint also alleges individual liability against defendants Pompeo, Blalock, Peechatka, and Rios.

         On January 12, 2018, the defendants moved to dismiss the complaint under Rule 12(b)(6), arguing that the Severance Agreement bars all of Tolle's USERRA claims and that Tolle has not sufficiently alleged a claim for individual liability against Blalock, Peechatka, or . Rios. Plaintiff concedes for purposes of this motion that Blalock and Peechatka are not employers under USERRA and are therefore not subject to individual liability in this case. The court held a hearing on the motion on February 21, 2018, and the matter is now ripe for disposition.

         Standard of Review

         A Rule 12(b)(6) motion to dismiss tests the sufficiency of a plaintiff s complaint, which must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a); see also Presley v. City of Charlottesville. 464 F.3d 480, 483 (4th ' Cir. 2006). When deciding a motion to dismiss under this rule, the court must accept as true all well-pleaded allegations and draw all reasonable factual inferences in the plaintiffs favor. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). However, to survive a motion to dismiss, a complaint must "state a claim to relief that is plausible on its face" and that "permit[s] the court to infer more than the mere possibility of misconduct." Id. at 678-79 (internal quotation marks omitted). The plaintiff must rely on "more than labels and conclusions, and a formulaic recitation of the elements of a cause of ...

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