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Pfunk v. Cohere Communications, LLC

United States District Court, S.D. New York

May 28, 2014

WILLIAM J. PFUNK, Plaintiff,

For William J. Pfunk, Plaintiff: Christine Schessler Poscablo, LEAD ATTORNEY, U.S. Attorney Office SDNY, New York, NY.

For Cohere Communications, LLC, Steven T. Francesco, Defendants: Brian Keith Gallagher, LEAD ATTORNEY, Brian Joseph Burns, Devin Roger Robinson, Gallagher, Harnett & Lagalante LLP, New York, NY.

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Paul A. Engelmayer, United States District Judge:

Plaintiff William J. Pfunk (" Pfunk" ) brings this action under the Uniformed

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Services Employment and Reemployment Rights Act, 38 U.S.C. § § 4301-4335 (" USERRA" ). Pfunk makes two related claims. First, he asserts, his military obligation to the United States Army Reserves was a " motivating factor" in the decision by defendant Steven Francesco, the chief executive officer of defendant Cohere Communications, LLC (" Cohere" ), to discharge Pfunk from employment at Cohere, in violation of USERRA § 4311. Second, he asserts, Cohere's refusal (also per Francesco) to re-employ him after his return from military service violated USERRA § 4312. Pfunk claims that these violations of USERRA were willful, within the meaning of USERRA § 4323(d)(1)(C). On March 31, 2014, the parties filed cross-motions for summary judgment.

On May 12, 2014, the Court issued a " bottom-line" Order, stating that Pfunk's motion would be granted in part and denied in part, and that defendants' motion would be denied in its entirety, and setting the case for trial in July. See Dkt. 81. Trial has since been set to commence on July 14, 2014. This Opinion & Order explains the Court's ruling.

I. Background[1]

A. Pfunk's Military Service

On December 6, 2006, Pfunk joined the United States Army Reserve. Poscablo

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Decl. Ex. A (" Pfunk Dep. I" ) at 25. Between July 2, 2007 and February 1, 2008, Pfunk completed basic and advanced individual training; between July 1, 2008 and August 1, 2009, he was deployed to Iraq. Id. at 26, 32. Upon return from his deployment, Pfunk continued serving in the Army Reserves. He is currently an " all-source intelligence analyst" with a rank of Staff Sergeant. Id. at 28, 32; Pl. 56.1 ¶ 4. As such, Pfunk is trained to operate certain military communications networks, such as the " Non-secure Internet Protocol Router Network (NIPRnet)," the " Secret Internet Protocol Router Network (SIPRnet)" , and the " Radio Over Internet Protocol Network (RIPRnet)." Robinson Decl. Ex. 2.

B. Pfunk's Employment By Cohere

On November 8, 2011, Pfunk began working for Cohere.[2] Pl. 56.1 ¶ 1. Cohere is a telecommunications company that provides conferencing and Voice Over IP services, as well as financial applications to ensure regulatory compliance. Def. 56.1 ¶ 2. Pfunk was hired by Francesco, who is Cohere's chairman, secretary, president, and Chief Executive Officer. Id. ¶ 4; Pl. 56.1 ¶ 2. Francesco acknowledges that there was no set end-date for Pfunk's job. Poscablo Decl. Ex. B (" Francesco Dep." ) at 60-61.

Pfunk was initially paid $50 per day but, soon after he began at Cohere, he requested a pay raise. Francesco Decl. ¶ 19. On November 21, 2011, Cohere began paying Pfunk $15 per hour.[3] Pl. 56.1 ¶ 8. Pfunk was paid $15 per hour until he was terminated about five months later, on April 9, 2012. Id. ¶ ¶ 3, 8. Cohere reported Pfunk's pay on a Form 1099-MISC, Miscellaneous Income, for 2011 and 2012. Def. 56.1 ¶ 31; Robinson Decl. Ex. 7-8.

While Pfunk worked at Cohere, he was also enrolled at Hunter College in New York. Id. ¶ 5. During the 16 weeks that Pfunk was attending classes, he also worked an average of 25 hours per week at Cohere, for a total of 400 hours. Robinson Decl. ¶ 15. During the five weeks that Pfunk was not attending classes, he worked an average of 41 hours per week, for a total of 205 hours. Id. ¶ 16. Overall, during the 21 weeks he worked for Cohere, Pfunk worked an average of 28.8 hours per week. Id. ¶ ¶ 15-16. Pfunk also worked a total of 69 days--or, roughly, 3.3 days per week. Id. ¶ ¶ 10-14.

Pfunk's job responsibilities included assisting customers as part of Cohere's tech support operations. Pl. 56.1 ¶ ¶ 11-12. During his time at Cohere, Pfunk handled approximately 84 customer service inquiries, which amounted to an average of 1.2 inquiries per workday.[4] See Francesco Opp. Decl. ¶ 18; id. Ex. A. Pfunk spent the majority of his time at Cohere, however,

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working on a project concerning " VMWare," see Pfunk Dep. at 163-65, which is software that allows for the creation of " virtual" or " cloud-based" servers, Def. 56.1 ¶ 42; Def. Opp. 56.1 ¶ 15. The VMWare project entailed the building of two servers and a network storage unit, and the installation of software onto those servers. Def. 56.1 ¶ 40.

On January 17, 2012, Francesco sent a staff-wide e-mail, which stated:

For all
Each of you folks are managing technical/business efforts, or managing client activities or doing both. Accordingly--at least weekly updates are needed.
The names assigned should expect to present their status to the group and should take on the responsibility by filling in start-dates, mile-stones and anticipated completion dates for each of the tasks in-hand.
. . .
5. Support services -- Orex, ESNA and CME--Khusan and Bill
. . .
7. Productizing Cloud Services-- Bill and Alessandro
. . .
Thanks--and I would like to have these updates by late afternoon today.n[5]

Poscablo Decl. Ex. P (emphases added). It is undisputed that Francesco's reference to " Bill" in the e-mail was to Pfunk. Francesco Dep. at 119-123. Francesco's email thus reflects that the two tasks that Pfunk was " managing" --either from the " technical/business" side of Cohere's business, from the " client activity" side, or " both" --were " support services" and " productizing cloud services." Poscablo Decl. Ex. P. With respect to these two issues, Pfunk was responsible for " present[ing his] status to the group" and " filling in start-dates, mile-stones and anticipated completion dates." Id.

Later that day, Pfunk responded to Francesco (copying, with the following message:

At present I have a couple projects within the cloud/hosting:
Sutton Park Capital
- Windows SQL Server 2008 Workgroup edition on the new servers using VMWare -- Pricing and negotiation -- Waiting for reply -- Will followed up with them. Waiting on reply.
- Managing VMWare Licenses for new sessions -- Technet subscription/Microsoft licenses -- Windows Client Access Licenses -- End User licensing -- Cost effectiveness -- provide for growth (volume licensing) -- Creating vSphere 5 and vCenter for fail over / resource pooling.
- Virtual Machine sessions as pre-made products for customer virtualization / migration -- Working with Alessandro to breakdown machine capability in line with marketability of virtual sessions.
- Costs to virtualize differing servers -- Need to provide clients with access to virtual environment.

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Multi Media Management LLC (Puerto Rico) -- In contact with Carlos Torres, answering questions related to cost of migrating to virtual environment.
Esna / OrecX
- Will work with Khusan and Mike to train on Esna and CME within the week.
Bill Pfunk

Poscablo Decl. Ex. P. Read together, Francesco and Pfunk's e-mails therefore indicate, if not establish, that Cohere had assigned Pfunk responsibility for " Support services -- Orex, ESNA and CME" (with Khusan), and " Productizing Cloud Services" (with Alessandro).

As part of his primary assignment, Pfunk attended a conference on VMWare and cloud services for which Cohere paid. Pl. 56.1 ¶ 19. In addition, on March 15, March 27, and April 5, 2012, Francesco sent Pfunk e-mails informing him about cloud computing and virtualization forums or webinars that were scheduled for April 12, 17, and 18, and May 7, 2012. Id. ¶ 20; Poscablo Decl. Exs. EE, FF, GG. During Pfunk's period of employment, Cohere purchased several servers and software for the VMWare project, which cost the company at least $27,000. See Francesco Dep. 130-131, 139-140.

C. Pfunk's Military Orders

On Wednesday, April 4, 2012, Pfunk received a text message from the wife of Master Sergeant Juan Unigarro (" Unigarro" ), stating that Unigarro wanted to know if Pfunk could sponsor a soldier participating in the 2012 " Best Warrior Competition," which was scheduled for April 9-12, 2012 in Fort Indiantown Gap, PA. Pl. 56.1 ¶ ¶ 23, 25; Def. 56.1 ¶ 83; Poscablo Decl. HH (" Pfunk Dep. II" ) at 319-20. The Best Warrior Competition is a multiday event in which soldiers and non-commissioned officers compete across a variety of soldier skills and tasks. Def. 56.1 ¶ 75. The sponsor does not compete, but rather supports the competitor by preparing him or her for the events each day. Id. ¶ 78. It is considered an honor both to compete and to serve as a sponsor to a competitor. Id. ¶ 79.

At around noon on Thursday, April 5, 2012, Pfunk listened to a voicemail from Unigarro, which stated that Unigarro had had a family emergency and thus needed someone to substitute as sponsor for Specialist Raul Velarde (" Velarde" ). Pl. 56.1 ¶ 24; Pfunk Dep. II at 324-25. At 1:47 p.m. on April 5, 2012, Pfunk sent a text message to Command Sergeant Major Daniel Benedict (" Benedict" ), who, at the time, was the First Sergeant of Pfunk's company, the Headquarters Company of the 304th Civil Affairs Brigade. Pl. 56.1 ¶ 26; Def. 56.1 ¶ 76. Pfunk's text message stated: " Its SSG Pfunk. Left u a voicemail. I can go to the best warrior if [you] want me to cover down on it for SPC Velarde." Robinson Decl. Ex. 18 (" 4/5/12 Text Messages" ). Benedict told Pfunk to submit a Request for Orders (" RFO" ) and a Defense Travel System (" DTS" ) authorization in order to ensure that he would be paid for travel, lodging, meals, and incidentals. Pl. 56.1 ¶ 26; see 4/5/12 Text Messages (" Ok. Quickly get your rfo in and submit your DTS!" ); Pfunk Dep. II at 326-28.

However, at some point during the next few hours, Pfunk spoke by phone to Unigarro, who informed Pfunk that it was too late for the unit to issue him orders. Pfunk Dep. II at 329-30. Pfunk sent Benedict another text message to that effect. See 4/5/12 Text Messages (" MSG U said its too late to cut orders for me. Sorry top." ).[6] Later that day, between 2 p.m.

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and 7:56 p.m., Pfunk spoke on the phone with Sergeant Major David Bernosky (" Bernosky" ). Pfunk Dep. II at 332-33. At 7:56 p.m., Pfunk sent Benedict a text message, which stated: " Bernosky made some calls. Im gonna go sponsor velarde now. Hes doin the paperwork." 4/5/12 Text Messages. Benedict responded, " Ok. I will see you there on Monday." Id. At 8:53 p.m., Velarde, at Pfunk's request, sent Pfunk the operations order for the Best Warrior competition by e-mail. Robinson Decl. Ex. 11. At 9:38 pm., Pfunk replied to Benedict by text message: " [Bernosky] told me to report to the reserve center at 8 on monday. I have a copy of the [operations order]. Not sure [of] the report time [and] place. [I'll] be in Bristol tmrw if things need to be wrked out." Id. Pfunk ...

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