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Quiles v. Union Pacific Railroad Co., Inc.

United States District Court, D. Nebraska

April 28, 2017

RODOLFO A. QUILES, Plaintiff,
v.
UNION PACIFIC RAILROAD COMPANY, INCORPORATED, RODNEY N. DOERR, EDWARD ADELMAN, TRACY SCOTT, and KATHLEEN HUGHES, individually; Defendants.

          MEMORANDUM AND ORDER

          Joseph F. Bataillon, Senior United States District Judge

         This 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.

         BACKGROUND

         Union 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 USERRA.

         Plaintiff 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.

         STANDARD OF REVIEW

         On a 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).

         The 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).

         Once 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).

         DISCUSSION

         USERRA, § 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.

         a. Required Arbitration?

         At issue in this motion is whether plaintiff is required to arbitrate his claims in this case.[1] 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 plaintiff:

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.

         However, plaintiff points out that there are no documents in the evidence that show he ever received a copy of ...


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