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Whitaker v. Keypoint Government Solutions, Inc.

United States District Court, D. Massachusetts

January 12, 2018

SEAN WHITAKER, Plaintiff,
v.
KEYPOINT GOVERNMENT SOLUTIONS, INC. and JAMES ELLIOTT, Defendants.

          MEMORANDUM & ORDER

          INDIRA TALWANI, UNITED STATES DISTRICT JUDGE.

         Pending 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].[1] 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.

         I. Relevant Material Facts [2]

         In February and June 2015, with KeyPoint's approval, Whitaker took two separate military leaves of absence. Defs.' SOF ¶¶ 18-19 [#33].

         In 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].

         At 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].

         At 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.

         Approximately 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].

         On 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. ¶ 51.

         On 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.

         The PIP 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].

         On 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.

         On 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.

         Elliott accepted Plaintiff's resignation on March 8, 2016. Id. ΒΆ 66. Whitaker's effective date of ...


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