United States District Court, W.D. Virginia, Charlottesville Division
Glen E. Conrad Senior United States District Judge.
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
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.
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.
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.
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
Id. ¶ 2.
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
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.
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 ...