Gеorge WYSOCKI, Plaintiff-Appellant, v. INTERNATIONAL BUSINESS MACHINE CORPORATION, dba IBM, Inc., Defendant-Appellee.
No. 09-5161.
United States Court of Appeals, Sixth Circuit.
Decided and Filed: June 16, 2010.
Rehearing and Rehearing En Banc Denied Aug. 13, 2010.
1102
Argued: Oct. 9, 2009.
Before MARTIN, GUY, and McKEAGUE, Circuit Judges.
McKEAGUE, J., delivered the opinion of the court, in which GUY, J., joined. MARTIN, J. (pp. 1109-10), delivered a separate concurring opinion.
OPINION
McKEAGUE, Circuit Judge.
Plaintiff-Appellant George Wysocki alleges that defendant-appellee International Business Machines (“IBM“) refused to properly reintegrate Wysocki as a data administrator after he returned from military service in Afghanistan, in violation of the Uniformed Services Employment and Reemployment Rights Act (“USERRA“).
On appeal, Wysocki argues that the district court abused its discretion when it converted his motion to dismiss into a motion for summary judgment and that
I. Background
In July 2007, Wysocki returned from military service in Afghanistan and reported back to IBM. Immediately prior to his military service, Wysocki had worked as an IBM database administrator. When he returned, Wysocki notified his supervisor that his skills had diminished while on military service, and that he would need time to update his knowledge of IBM‘s programs, software, and technology. When he had previously returned from military service, IBM had provided shadowing and assistance from other employees which allowed Wysocki to reintegrate; however, this time, IBM refused аny training or assistance. Wysocki alleges that IBM‘s refusal to assist him in reintegrating violated his USERRA rights and that, despite IBM‘s knowledge and understanding of USERRA, that IBM terminated Wysocki‘s employment without cause and in direct violation of USERRA on October 15, 2007.
Wysocki filed a complaint on May 12, 2008 alleging thаt IBM discriminated against him in violation of USERRA. On September 3, 2008 IBM answered Wysocki and simultaneously filed a
Wysocki originally filed the case in the Western District of Kentucky, but sought and was granted transfer to the Eastern District of Kentucky. The order transferring the case to the Eastern District of Kentucky issued on November 12, 2008. On January 26, 2009 District Judge Forester upheld the Release and granted summary judgment to IBM. The district court treated IBM‘s motion to dismiss as a motion for summary judgment and relied on matters outside the pleadings.
Wysocki appeals both the district court‘s decision to convert the motion to dismiss into a motion for summary judgment and its determination that
II. The Motion for Summary Judgment
IBM submitted, and the district court considered, matters outside the pleadings; consequently, the district court converted the motion to dismiss into a motion for summary judgment. The federal rules require that if, in a 12(b)(6) motion to dismiss, “matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.”
We find that it was not an abuse of discretion for the district court to determine that Wysocki had notice that the motion to dismiss might be converted into a motion for summary judgment and that he had a reasonable opportunity to present materials outside the pleadings. Defendant IBM filed its motion to dismiss оn September 3, 2008 and attached a copy of the Release, a document outside the pleadings which, if the district court considered it, would require the district court to convert the motion to dismiss into a motion for summary judgment. IBM specifically mentioned in the memorandum supporting its motion that: “On a motion to dismiss for failure to state a claim upon which relief can be granted, matters outside the pleadings may be presented and considered by the Court.... If the court considers such mаtters, the motion to dismiss should be treated as one for summary judgment under Rule 56.” (R. 14, Mem. at 3) (citation omitted). Thus, IBM‘s motion to dismiss both introduced the actual Release and informed Wysocki that the motion to dismiss could be converted into a motion for summary judgment.
Wysocki filed his response to IBM‘s motion to dismiss on October 10, 2008. In it he discussed case law explaining that, as a general proposition, the non-moving party should receive notice and an opportunity to supplement the record before a district court converted a 12(b)(6) motion into a motion for summary judgment. Wysocki did not, however, even attempt to apply this case law to his situation. He did not state that he needed any additional discovery or an opportunity to supplement the record, and his response clearly indicated that Wysocki understood that the court might grant summary judgment. On November 6, 2008 IBM filed a reply in support of its 12(b)(6) motion which included an affidavit from Dorothy Morris, a partner in IBM‘s Human Resources Department. Morris‘s affidavit constituted additional material clearly outside the pleadings which, if considered by the district court, also required the district court to convert the motion to dismiss into one for summary judgment.
The language in IBM‘s initial memorandum and the fact that it included the Release in its motion to dismiss and attached Morris‘s affidavit to its reply, put Wysocki on notice that the court might consider items outside the pleadings. The district court construed the motion to dismiss as a motion for summary judgment and ruled оn January 26, 2009. Wysocki had nearly five months after IBM filed its initial motion to dismiss, and nearly three months after IBM filed its reply, to request discovery or to file an affidavit or additional materials supporting a denial of summary judgment.1 Under the facts presented
III. The USERRA Claim
We review the district court‘s grant of summary judgment de novo. Ciminillo v. Streicher, 434 F.3d 461, 464 (6th Cir.2006). Whether Wysocki could waive his USERRA claim through the Release is a matter of statutory interpretation, and depends on the meaning of
USERRA has a specific provision,
(a) Nothing in this chapter shall supersede, nullify or diminish any Federal or State law (including any local law or ordinance), contract, agreement, policy, plan, practice, or other matter that establishеs a right or benefit that is more beneficial to, or is in addition to, a right or benefit provided for such person in this chapter.
(b) This chapter supersedes any State law (including any local law or ordinance), contract, agreement, policy, plan, practice, or other matter that reduces, limits, or eliminates in any manner any right or benefit provided by this chapter, including the establishment of additional prerequisites to the exercise of any such right or the receipt of аny such benefit.
A.
Initially, we note that the rights and benefits protected in
(2) The term “benefit“, “benefit of employment“, or “rights and benefits” means any advantage, profit, privilege, gain, status, account, or interest (other than wages or salary for work performed) that accrues by reason of an employment сontract or agreement or an employer policy, plan, or practice and includes rights and benefits under a pension plan, a health plan, an employee stock ownership plan, insurance coverage and awards, bonuses, severance pay, supplemental unemployment benefits, vacations, and the opportunity to select work hours or location of employment.
The rights and benefits listed in
The district court followed this reasoning, and IBM urges it upon us. Mоreover, this conclusion is supported to some degree by prior case law in this circuit, which recognized, along with other circuits, the distinction between procedural and substantive rights for the purposes of
Wysocki distinguished this case in part from Landis by noting that this case involves a “wholesale contractual elimination of all methods to enforce USERRA‘S rights and benefits.” (Appellant Reply Br. 8). We agree. We enforced the arbitration provision at issue in Landis because arbitration still “presents a fair opportunity for a claimant to present and prevail on a claim of a USERRA violation.” 537 F.3d at 563. This is so because “[b]y agreeing to arbitration, a party does not forego the substantive rights provided by the statute, but rather it submits its claims to an arbitral forum instead of a judicial forum.” Id. at 562. Here, however, the Release purports to preclude Wysocki from advancing a USERRA claim in any forum, ever. An agreement that eliminates all of a veteran‘s procedural rights also eliminates, for all practical purposes, all of the veteran‘s substantive rights. Thus, enforcing the Release would provide Wysocki with no opportunity to present and prevail on a USERRA claim, much less the “fair opportunity” required by Landis. The agreements at issue in Garrett and Landis were found not to implicate
B.
However, the fact that
In determining whether the rights Wysocki received in exchange for signing the Release were more beneficial than the rights he gave up, we are cognizant of the
In this case, the Release used clear and unambiguous language and involved a valuable amount of consideration. The Release stated that it covered claims based on “veteran status.” This clear and unambiguous language informеd Wysocki that he was waiving his USERRA rights and, in exchange for signing the Release, Wysocki received over $6,000. Under these circumstances, it appears from the record that Wysocki understood that the Release eliminated his USERRA rights, that he signed the Release because he believed that the rights provided in the Release were more beneficial than his USERRA rights and, therefore, that the Release is exempted from the operation of
As Wysocki had notice that the district court might convert IBM‘s motion to dismiss into a motion for summary judgment, and had a reasonable opportunity to рresent additional material and to request discovery, we find that the district court did not abuse its discretion in converting the motion to dismiss into a motion for summary judgment. Furthermore, we find that the Release is valid because, while we find that
CONCURRENCE
BOYCE F. MARTIN, JR., Circuit Judge, concurring.
This case presents a question of first impression in the federal courts—the construction and application of
But the case is not before us in the right posture. Wysocki brought a USERRA claim without mentioning the Release. Then, when IBM asserted the Release as an affirmative defense, Wysocki argued the law—that section 4302 somehow automatically invalidates the Release—instead of coming forward with evidence to create a dispute over whether the Release resulted in a situation more beneficial than his USERRA rights. This case is, therefore, not the right vehicle for broad statements about the application of section 4302. I applaud the majority‘s exercise of restraint in deciding this case narrowly instead of permitting these bad facts to result in bad law.
I concur without reservation in Part II because IBM‘s pleadings and the Federal Rules of Civil Procedure put Wysocki on notice that IBM‘s motion could be decided under
That leaves part III.B, discussing whether section 4302 renders the Release unenforceable. I concur in Part III.B as I interpret it, so I will explain my under-
The majority properly focuses on three facts in determining that the Release passes section 4302 muster. First, the Release unаmbiguously seeks to waive all of Wysocki‘s USERRA rights, or in the Release‘s words, his rights based on “veteran status.” Second, Wysocki received substantial consideration in return for executing the Release. What I want to make clear is that these two facts, standing alone, are not sufficient to find that the Release satisfies section 4302. Just because (1) a waiver clearly declares an intent to waive USERRA rights and (2) the veteran received substantial consideration does not permit the inferencе that the consideration was more beneficial to the veteran than his USERRA rights. Stated differently, the face of the Release does not allow for a conclusion of enforceability. At the most, it satisfied IBM‘s initial burden of production in asserting the Release. The burden then shifted to Wysocki to come forward with evidence calling into question the Release‘s satisfaction of section 4302. This brings us to the third, and most critical, fact in this case.
In addition to producing the Release, IBM presented evidence that Wysocki signed the Release knowingly, voluntarily, and not under duress. In response, Wysocki presented nothing but an incorrect legal argument that section 4302 invalidated the Release as a matter of law. He presented no evidence indicating that he was under duress or did not knowingly waive his USERRA rights. And more to the point, he did not present any evidence that would suggest that the money that he received for signing the Release was less beneficial than his USERRA rights, and thus inadequate under sеction 4302(a). An affidavit likely would have sufficed to create a question of fact that would have required the district court, and ultimately this Court, to determine what it means for one thing to be “more beneficial” than something else. Because Wysocki presented no such evidence, I agree with the majority that the proper conclusion on this record is that the Release resulted in a situation more beneficial to Wysocki than his USERRA rights and was thus enforceable under section 4302(b). Understanding the majority‘s analysis in this way, I concur.