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Quiles v. Union Pacific Railroad Company, Inc.

United States District Court, D. Nebraska

May 10, 2018

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 objection, Filing No. 134, to the order of the magistrate judge guashing plaintiff's subpoena for a deposition, Filing No. 131. This action arises out of plaintiff's termination by Union Pacific Railroad Company, Incorporated (hereinafter "UP") allegedly 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 UP terminated him for unlawful reasons, namely (1) his reguired military service, and (2) in retaliation for filing a complaint with the Department of Labor.

         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, 2016, 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 UP 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.

         DISCUSSION

         As determined by the magistrate judge:

On September 5, 2017, a Subpoena to Testify at a Deposition in a Civil Action was issued to Cecilia Coatney, the Director for Nebraska and Acting Director for Illinois for the United Stated Department of Labor's ("DOL") Veterans' Employment and Training Services. Plaintiff issued a separate Subpoena to Testify at a Deposition under Federal Rule of Civil Procedure 30(b)(6) to a deponent/agent of the Veterans' Employment and Training Services ("VETS"). Cecilia Coatney ("Coatney") and the DOL are not parties to this litigation.
The United States has moved the Court to quash the subpoena issued to Coatney and the 30(b)(6) subpoena issued to a deponent/agent of VETS.

         Filing No. 131. at 1.

         The magistrate judge determined that DOL regulation 29 C.F.R. § 2.22 prohibits Coatney from testifying unless the Deputy Solicitor of Labor permits her to do so. In this case, the DOL prohibited her from testifying, contending that the plaintiff had other alternative means that were reasonable for obtaining the requested information. The magistrate judge noted that the courts are split on how to handle such a request, but she determined that regardless of the standard, the court would come to the same conclusion.

         The magistrate judge then analyzed the request to quash under Fed.R.Civ.P. 45 and 26, and concluded the subpoena imposes an undue burden on the United States. VETS identified 748 relevant documents, withheld 34 as privileged and redacted 19 pages, and otherwise released all the remaining pages in their entirety. The magistrate judge concluded that the testimony of Coatney would be largely cumulative, and a deposition would take her away from her normal duties. Accordingly, the magistrate judge granted the United States' motion to quash.

         In his objections, plaintiff contends that the magistrate ...


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