Wysocki v. Int'l Bus. Mach. Corp.

• Decision Date: 16 June 2010
• Docket Number: No. 09-5161.,09-5161.
• Parties: George WYSOCKI, Plaintiff-Appellant,v.INTERNATIONAL BUSINESS MACHINE CORPORATION, dba IBM, Inc., Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

607 F.3d 1102

George WYSOCKI, Plaintiff-Appellant,v.INTERNATIONAL BUSINESS MACHINE CORPORATION, dba IBM, Inc., Defendant-Appellee.

No. 09-5161.

United States Court of Appeals, Sixth Circuit.

Argued: Oct. 9, 2009.

Decided and Filed: June 16, 2010.

Rehearing and Rehearing En Banc Denied Aug. 13, 2010.

ARGUED: Kevin C. Burke, Law Office, Louisville, Kentucky, for Appellant. Richard G. Griffith, Stoll Keenon Ogden PLLC, Lexington, Kentucky, for Appellee. ON BRIEF: Kevin C. Burke, Law Office, Louisville, Kentucky, Lawrence I. Young, Romines, Weis & Young, P.S.C., Louisville, Kentucky, for Appellant. Richard G. Griffith, Elizabeth S. Muyskens, Stoll Keenon Ogden PLLC, Lexington, Kentucky, for Appellee.

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”). Before he was terminated, Wysocki signed a general release (the “Release”) as part of an Individual Separation Allowance Plan he negotiated with IBM. In return, Wysocki received over $6,000. After signing the Release, Wysocki filed suit against IBM for violating his USERRA rights and IBM filed a motion to dismiss. The district court converted IBM's motion to dismiss into a motion for summary judgment and granted it, after determining that Wysocki voluntarily and knowingly released any claims against IBM.

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 38 U.S.C. § 4302(b) of USERRA supercedes the Release. We affirm the district court's decision.

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 any 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.

On the same day that his employment with IBM was terminated, Wysocki signed the Release as part of an Individual Separation Allowance Plan he negotiated with IBM. The language of the Release is broad and, although it did not specifically refer to USERRA by name, it states that Wysocki waives “all claims, demands, actions or liabilities [he] m[ight] have against IBM of whatever kind,” and includes within its scope “any other federal, state or local law dealing with discrimination in employment including, but not limited to, discrimination based on ... veteran status....” (R. 15, Countercl. ¶ 5; R. 14, Ex. A-Release.) The Release gave Wysocki a twenty-one day period to consider it before signing, and a seven day period after signing to revoke his acceptance. Wysocki received $6,023.65 as a gross severance payment for signing the Release. The Release specifically instructed Wysocki to consult with an attorney before signing, and this instruction was displayed prominently in capital letters and underlined at the top of the Release. Wysocki accepted the severance payment, did not exercise his right to revoke his acceptance, and he has not tendered the severance payment to IBM.

Wysocki filed a complaint on May 12, 2008 alleging that IBM discriminated against him in violation of USERRA. On September 3, 2008 IBM answered Wysocki and simultaneously filed a Rule 12(b)(6) motion to dismiss and a counterclaim. Wysocki filed his response to IBM's motion to dismiss on October 10, 2008. 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. This affidavit stated that Wysocki “voluntarily executed the Release ... [and] was given adequate time to read the document and review the terms and conditions that it contained.” (R. 24, Reply-Morris Aff. ¶ 2.)

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 38 U.S.C. § 4302(b) of USERRA did not supercede the Release.

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.” Fed. R. Civ. P. 12(d). We review the district court's decision to convert a 12(b)(6) motion to dismiss into a motion for summary judgment for abuse of discretion. See Salehpour v. Univ. of Tenn., 159 F.3d 199, 203 (6th Cir.1998). A decision will be reversed for abuse of discretion only if we have “a definite and firm conviction that the trial court committed a clear error of judgment.” Barnes v. Owens-Corning Fiberglas Corp., 201 F.3d 815, 820 (6th Cir.2000) (quoting Logan v. Dayton Hudson Corp., 865 F.2d 789, 790 (6th Cir.1989)). Where “one party is likely to be surprised by the proceedings, notice is required,” but generally, “[w]hether notice of conversion of a motion to dismiss to one for summary judgment by the court to the opposing party is necessary depends upon the facts and circumstances of each case.” Salehpour, 159 F.3d at 204; see also Shelby County Health Care Corp. v. Southern Council of Indus. Workers Health & Welfare Trust Fund, 203 F.3d 926, 931 (6th Cir.2000).

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 on 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 covert 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 matters, 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 on 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 here, the district court's decision to convert the motion to dismiss into one for summary judgment was not an abuse of discretion.

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)...