The opinion of the court was delivered by: Judge Michael R. Barrett
This matter came on for a bench trial on July 11th and 12th, 2006 pursuant to Plaintiff's Amended Complaint and Defendant's Answer thereto.
Plaintiff essentially alleges that PepsiAmericas (hereinafter referred to as "Pepsi") by either operation of their own policies or by a settlement of outstanding issues conferred a non-salary benefit upon Plaintiff and such benefit is protected by USERRA 38 U.S.C. §4323, et seq. Plaintiff further alleges that Defendant subsequently withdrew said benefit resulting in a violation of the aforesaid Act, breach of contract and conversion of funds. The Defendant answered that any alleged benefit, which they deny agreeing to provide, would have been salary, in the first instance, and not protected by the Act and further that any alleged benefit was not actually provided to the Plaintiff as Pepsi's policies do not provide any such benefit nor was any such benefit promised as a result of settlement.
The Court is first called upon to determine if USERRA benefits are required pursuant to Pepsi's policy, second, whether a benefit was ever promised to and conveyed upon Plaintiff and, lastly, whether a conversion of funds took place. The determination of these issues is set forth below in the more specific Findings of Fact and Conclusions of Law.
The Court is also called upon to determine what both counsel acknowledged and argued to be a paramount issue, that is, the credibility of the witnesses. The Court finds Plaintiff and Major Breiton to be credible witnesses and the Court does not find Nancy Carroll, who is pivotal to Pepsi's defense, to be a credible witness and observes that the testimony of Alan McGriff and W. Scott Nehs was largely based upon information supplied to them from Ms. Carroll. Ms. Carroll's credibility is strained for a number of reasons including but not limited to the following: her assertion that the June 17, 2003 meeting was initiated at her suggestion; her insistence that there was no agreement between the parties at the conclusion of the meeting regarding Plaintiff's pay differential; her representation to Mr. Nehs, counsel for Pepsi, that funds were never deposited into Plaintiff's account; her description of Plaintiff's Exhibit No. 52 as a "draft Pepsi document"; and, her failure to acknowledge that someone at Pepsi had to initiate the action that resulted in the deposit in Plaintiff's account.
1. In June of 2000, the Plaintiff, Kevin Koehler, became an employee of the Defendant, Pepsi and signed a direct deposit authorization agreement (Joint Exh. I). Plaintiff was employed by the Defendant first as a merchandiser and then as a bulk driver and finally as a route driver. On January 26, 2002 Plaintiff enlisted with the Armed Forces of the United States in the Army Reserve (Joint Exh. II). Plaintiff testified that he enlisted in support of his country in the aftermath of the September 11, 2001 terrorists attacks.
2. Thereafter, Plaintiff was ordered to initial active duty training of approximately 24 weeks with a reporting date of March 5, 2002 (Joint Exh. III). Plaintiff informed Defendant of his scheduled initial active duty training (Joint Exh. IV). At the time of the trial, Plaintiff was no longer employed by Defendant but works in Iraq for a motor vehicle deployment firm.
3. Plaintiff routinely kept his employer apprised of his military status by providing Pepsi copies of orders and notices (Joint Exh. VI, Joint Exh. VIII, Joint Exh. XII, Joint Exh. XIII, Joint Exh. XIV, Joint Exh. XXI). Plaintiff was in initial active duty from March, 2002 until late August, 2002 during which time he was classified by the company, effective March 4, 2002, as on "leave with pay" based upon "paid leave of absence" (Plaintiff Exh. 6).
4. Upon his return from leave in September, 2002, the company returned Plaintiff to active status (Joint Exh. VII). At various times over the next months he was ordered by his Unit Commanders to appear in anticipation of deployment for active duty, which, for various reasons such deployments were later cancelled (Joint Exh. IX, Joint Exh. X).
5. Plaintiff's direct supervisor at Defendant company was Don Ostelhoff. Nancy Carroll was the Human Resource Manager and Alan McGriff was the Cincinnati Branch Manager. As a route driver, Plaintiff generally worked a 10 to 12 hour day, typically commencing between 5:30 - 6:30 A.M. (Joint Exh. IXX).
6. Defendant Pepsi maintains attendance records for its employees and assesses points for alleged violations of company policy. Certain violations result in written reprimands followed by suspension without pay and, finally, accumulation of a certain amount of points (8) results in the termination of an ...