United States District Court, D. Nebraska
RODOLFO A. QUILES, Plaintiff,
UNION PACIFIC RAILROAD COMPANY, INCORPORATED, RODNEY N. DOERR, EDWARD ADELMAN, TRACY SCOTT, and KATHLEEN HUGHES, individually; Defendants.
MEMORANDUM AND ORDER
F. Bataillon, Senior United States District Judge
matter is before the court on plaintiff's motion for
partial summary judgment, Filing No. 38, plaintiff's
motion to strike defendants' reply brief, Filing No. 39,
and defendants' amended motion to stay and compel
arbitration, Filing No. 43. This action arises out of
plaintiff's termination by Union Pacific (hereinafter
“UP”) in violation of 38 U.S.C. §§
4312, and 4313 and 4316; and 20 C.F.R. § 1002 et
seq. (Uniform Services Employment and
Reemployment Rights Act, hereinafter “USERRA”).
Plaintiff contends Union Pacific terminated him for unlawful
reasons, namely (1) his required military service, and (2) in
retaliation for filing a complaint with the Department of
Labor. Defendants contend that the plaintiff is required to
arbitrate these issues.
Pacific hired plaintiff in February, 2014, as a General
Manager of Safety Analysis. Plaintiff is a member of the
United States Marine Corps Reserve. The military deployed
plaintiff on or about May 12, 2015. While deployed, Greg
Workman was hired by UP and assumed most of plaintiff's
job responsibilities. Plaintiff returned to work on October
19, 2015. He learned he had been demoted. He complained and
said this demotion violated USERRA. He conferred with
management, the human resources department, and with legal
counsel for UP. He thereafter asserted his rights under
tried to transfer into another department. He successfully
interviewed for the position, but the Director of Human
Resources blocked his transfer. In November, 2015, plaintiff
received a mid-year review. In his written review his
military service absence was referenced in a negative manner.
In December 2015 plaintiff received another review, again
containing negative military comments. He received a below
expectations rating. This allegedly cost him approximately
$40, 000.00 in denial of a year-end pay raise and bonus pay
and stock interest. On December 18, 2015, plaintiff filed a
complaint of discrimination and violation of USERRA with the
Department of Labor Veterans Employment Training Service.
During the investigation, plaintiff received a letter of
reprimand for refusing to attend a calendar meeting
invitation. On March 2, 2106, defendants placed plaintiff on
a performance review plan. Plaintiff says he immediately made
the changes, so the follow up date of May 2, 2016, was
canceled. However, on March 29, 2016, his employment was
terminated. The Department of Labor investigation concluded
on April 22, 2016, and the findings indicated plaintiff's
claims had merit. Four days later, on or around April 26,
2016, Mr. Quiles received notice from Union Pacific Railroad
Company that his 2014 bonus stock award of 237 shares of
Union Pacific Corporation was being forfeited because it had
not vested prior to his termination.
motion for summary judgment, the question before the court is
whether the record, when viewed in the light most favorable
to the nonmoving party, shows that there is no genuine issue
as to any material fact and that the moving party is entitled
to judgment as a matter of law. Fed.R.Civ.P. 56(c); Woods
v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir.
2005). “Where the unresolved issues are primarily legal
rather than factual, summary judgment is particularly
appropriate.” Mansker v. TMG Life Ins. Co., 54
F.3d 1322, 1326 (8th Cir. 1995).
burden of establishing the nonexistence of any genuine issue
of material fact is on the moving party. Fed.R.Civ.P. 56(c);
Adickes v. S.H. Kress & Co., 398 U.S. 144, 157
(1970). Therefore, if defendant does not meet its initial
burden with respect to an issue, summary judgment must be
denied notwithstanding the absence of opposing affidavits or
other evidence. Adickes, 398 U.S. at 159-60;
Cambee's Furniture, Inc. v. Doughboy Recreational
Inc., 825 F.2d 167, 174 (8th Cir. 1987).
defendant meets its initial burden of showing there is no
genuine issue of material fact, plaintiff may not rest upon
the allegations of his or her pleadings but rather must set
forth specific facts, by affidavit or other evidence, showing
that a genuine issue of material fact exists.
SeeFed. R. Civ. P. 56(e)(2); Chism v. W.R. Grace
& Co., 158 F.3d 988, 990 (8th Cir. 1998). The party
opposing the motion must do more than simply show that there
is some metaphysical doubt as to the material facts; he or
she must show there is sufficient evidence to support a jury
verdict in his or her favor. Id.“Rule 56(c)
mandates the entry of summary judgment, after adequate time
for discovery and upon motion, against a party who fails to
make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that
party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
“Although we view the facts in a light most favorable
to the non-moving party, in order to defeat a motion for
summary judgment, the non-moving party cannot simply create a
factual dispute; rather, there must be a genuine dispute over
those facts that could actually affect the outcome of the
lawsuit.” Carter v. St. Louis Univ., 167 F.3d
398, 401 (8th Cir. 1999). “In ruling on a motion for
summary judgment a court must not weigh evidence or make
credibility determinations.” Kenney v. Swift
Transp., Inc., 347 F.3d 1041, 1044 (8th Cir. 2003).
§ 4316(b), provides, in part:
(b)(1) Subject to paragraphs (2) through (6), a person who is
absent from a position of employment by reason of service in
the uniformed services shall be--
(A) deemed to be on furlough or leave of absence while
performing such service; and
(B) entitled to such other rights and benefits not determined
by seniority as are generally provided by the employer of the
person to employees having similar seniority, status, and pay
who are on furlough or leave of absence under a contract,
agreement, policy, practice, or plan in effect at the
commencement of such service or established while such person
performs such service.
38 U.S.C. § 4316.
issue in this motion is whether plaintiff is required to
arbitrate his claims in this case. Plaintiff first contends,
and the defendants agree, there is no valid written and
signed agreement to arbitrate in this case. Plaintiff argues,
and defendants agree, plaintiff was never provided with a
physical copy of an arbitration agreement. As stated by the
In February 2015, Mr. Quiles also received an electronic 2014
Compensation Statement. Quiles Decl. ¶ 4; Jarrard Decl.
¶¶ 12, 14, citing Winkler Deposition, Exhibit I at
pages 31 - 34. This document notified Mr. Quiles that he had
achieved a merit increase in base pay for 2015, a cash bonus,
and an equity award of stock. Exhibit 4. The document
instructed Mr. Quiles to click on a link to establish an
account under E-Trade (a financial services company). Mr.
Quiles clicked the link in the letter and established the
E-Trade account for the stock. Quiles Decl. ¶ 4.
Filing No. 40, ¶ 7, at 2. The award was for good
performance. Plaintiff did not receive an arbitration
agreement related to any of these increases. He was
terminated on March 29, 2016, and he then received a notice
that his 2015 bonus stock award of 237 shares of Union
Pacific was forfeited, as it did not vest prior to his
termination. Plaintiff then filed this Complaint. Defendants
moved to stay and to compel arbitration.
plaintiff points out that there are no documents in the
evidence that show he ever received a copy of ...