United States District Court, D. Massachusetts
MEMORANDUM & ORDER
TALWANI, UNITED STATES DISTRICT JUDGE.
before this court is Defendants KeyPoint Government
Solutions, Inc. (“KeyPoint”) and James
Elliott's Motion for Summary Judgment [#31],
which seeks summary judgment on the remaining two claims
asserted by Plaintiff Sean Whitaker in the Amended
Complaint [#2]. Plaintiff opposes Defendants' motion
with respect to Count I, violation of the Uniformed Services
Employment and Reemployment Rights Act
(“USERRA”), 38 U.S.C. § 4301 et
seq., but does not oppose the motion with respect to
Count II, violation of the Family Medical Leave Act
(“FMLA”), 29 U.S.C. § 2601 et seq.
For the reasons set forth below, Defendants' Motion
for Summary Judgment [#31] is ALLOWED.
Relevant Material Facts 
February and June 2015, with KeyPoint's approval,
Whitaker took two separate military leaves of absence.
Defs.' SOF ¶¶ 18-19 [#33].
early October 2015, Elliott submitted for review a matter
relating to Whitaker's work to Keypoint's Integrity
Assurance Division (“Division”). Id.
¶¶ 39-40; see also Pl.'s Statement
Material Facts (“Pl.'s SOF”) ¶ 2 [#38].
The Division investigated Plaintiff's work and pursuant
to its contract with the federal Office of Personnel
Management (“OPM”), submitted the results of that
investigation to OPM. Defs.' SOF ¶ 43-45 [#33].
12:30 p.m. on February 26, 2016, the Division advised Elliott
that OPM had completed its review of the Division's
report, that OPM did not request any additional reworking of
Whitaker's investigations, and that Elliott could discuss
the Division's findings with Whitaker and provide
additional training. Id. ¶ 47; Pl.'s SOF
¶ 4 [#38].
12:37 p.m. that same day, Whitaker notified Elliott about
upcoming military leave requests for March 12-24 and April
15-30, 2016. Defs.' SOF ¶ 48 [#33]. Elliott replied
“Ok - just forward me whatever orders you have when you
get them.” Id. ¶ 49.
forty minutes later, Elliott emailed Human Resources stating
that he planned to issue a written final warning and
performance improvement plan (“PIP”). Pl.'s
SOF ¶ 5 [#38].
February 29, 2016, Elliott sent the PIP to his supervisor,
the Division, and Human Resources. Id.; Defs.'
SOF ¶ 53 [#33]. He also scheduled a telephone call with
Whitaker to outline additional training. Id. ¶
March 2, 2016, Elliott and Whitaker spoke by telephone, and
Elliott advised Whitaker that he would receive a PIP.
Id. ¶ 55. KeyPoint management was also present
during this telephone call. Id. At 12:10 p.m. that
same day, shortly after their telephone call, Elliott emailed
Whitaker a copy of the PIP, stating “I am offering to
provide you with my support in correcting these issues,
” and “I will monitor your performance closely
and give you relevant feedback and coaching. I will meet with
you daily to discuss and evaluate your performance and
progress. I will also be available to answer your questions
and provide assistance as needed. I will rely on you to
inform me of your questions and need for assistance.”
Id. ¶¶ 56-57. Elliott and Whitaker did not
have any further conversations after this telephone call.
Id. ¶ 74.
included several check-in dates during the period in which
Whitaker was to complete certain performance improvement
milestones. Id. ¶ 58. The first check-in date,
March 16, 2016, fell within the first military leave of
absence Whitaker had requested. Pl.'s SOF ¶ 6 [#38].
March 3, 2016, Whitaker advised Elliott that he had concerns
with the PIP that he would communicate at a later date.
Defs.' SOF ¶ 59 [#33]. After Elliott notified Human
Resources of Whitaker's concerns, Human Resources told
Whitaker that he could express his concerns both in writing
and during training with Elliott. Id. ¶¶
59-60. Whitaker also took a “comp day” that day,
in response to a family emergency. Id. ¶ 61. He
never returned to work. Id.
March 7, 2016, at 12:22 p.m., Elliott emailed Whitaker
regarding the beginning of Plaintiff's remedial training.
Id. ¶ 62. At 2:00 p.m. that same day, Whitaker
resigned his employment, stating that “due to the
actions taken by [Elliott] and [Keypoint], this situation has
become unsalvageable since regardless of any outcome, a
hostile working environment has been created for me . . .
.” Id. ¶¶ 63, 65.
accepted Plaintiff's resignation on March 8, 2016.
Id. ¶ 66. Whitaker's effective date of