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Quiles v. Union Pacific Railroad Co., Inc.

United States District Court, D. Nebraska

July 19, 2019



          Joseph F. Bataillon Senior United States District Judge.

         This matter is before the Court on defendants' motion in limine, Filing No. 214 and plaintiff's motion in limine, Filing No. 217.


         Plaintiff, Rodolfo Quiles, began employment with UP in February 2014. Quiles served in the Marine Corps from May 12, 2015, to October 18, 2015. While deployed, UP hired Greg Workman and he assumed most of plaintiff's job responsibilities. Prior to deployment, plaintiff held the title of “general manager of safety analysis.” Upon return, defendants reemployed plaintiff and he held the new title, “director of safety analysis.” Plaintiff met with UP's human resources department regarding his change in title. On November 9, 2015, plaintiff met with general counsel Kathleen Hughes to discuss his concerns with the change in title. Plaintiff unsuccessfully applied for employment in other areas of UP during 2015. When he successfully interviewed for a position in another department, the Director of Human Resources blocked his transfer.

         On December 18, 2015, Quiles 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 from his employer, Union Pacific, for refusing to attend a calendar meeting invitation. On March 2, 2016, defendants placed plaintiff on a performance review plan (“PIP”) with a follow up date of May 2, 2016. On March 29, 2016, his employment was terminated. The Department of Labor investigation concluded on April 22, 2016, and the findings indicated that Quiles' claims had merit. Four days later, on or around April 26, 2016, plaintiff received notice from UP that his 2014 bonus stock award of 237 shares of UP was being forfeited because it had not vested prior to his termination.


         A. Defendants' motion in limine, Filing No. 214

         Defendants file their motion in limine pursuant to Fed.R.Evid. 401, 402, 403, 404, 408 and Fed.R.Civ.P. 26. Specifically, defendants request that this Court prohibit plaintiff, plaintiff's counsel or any of plaintiff's witnesses from testifying to the following:

         1. Evidence of Department of Labor investigation and findings.

         Defendants contend that the Eighth Circuit has ruled that exclusion under Rule 403 of the EEOC determination was not an abuse of discretion. Johnson v. Yellow Freight Sys., Inc., 734 F.2d 1304 (8th Cir. 1984). The Eighth Circuit determined that administrative findings are not per se admissible under Rule 803(8) of the Federal Rules of Evidence, finding in that case that the EEOC determination was conclusory and admitting the report risked confusing and misleading the jury. Id. at 1309.

         Plaintiff asks the court to not exclude evidence of the DOL investigation. Plaintiff agrees he will not admit testimony or documents regarding the findings of the DOL's investigation. However, the Court should, according to plaintiffs, be allowed to introduce testimony and evidence that shows defendants were aware of the USERRA complaint, as these go to the retaliation and willfulness claims. See Amended Complaint, Filing No. 96, ¶¶ 33-42, 57 and 68.

         The Court will permit the evidence as outlined by plaintiff as it relates to the knowledge of the USERRA complaint and as it sheds light on the retaliation and willfulness claims. However, if during the trial defendants feel plaintiff is crossing over into murky areas, they may object and the Court will further rule at that time.

         2. Evidence regarding Plaintiff's forfeiture of his 2014 restricted stock award.

         Defendants contend that plaintiff should be estopped from pursuing damages under the stock agreement which he has disavowed. Defendants contend that plaintiff could only receive stock shares if he remained employed for four years from February 5, 2015, the date of issuance. Union Pacific terminated plaintiff in March of 2016. Defendants contend that plaintiff has taken inconsistent positions on this issue. “The doctrine of judicial estoppel prohibits a party from taking inconsistent positions in the same or related litigation.” United States ex rel. Gebert v. Transp. Admin. Servs., 260 F.3d 909, 917 (8th Cir. 2001). Plaintiff initially contended he did not accept the stock offer argues defendants, and thereafter, he argued he is entitled to recover benefits under the stock offer. Defendants argue that this Court agreed with plaintiff in early 2017 and denied Union Pacific's motion to compel arbitration, as plaintiff had not accepted the stock offer. Filing No. 53 at 10. Allowing plaintiff to at this time attempt to recover damages in this regard would be unfair, argues Union Pacific.

         Plaintiffs contend that he court should not exclude evidence of damages of the stock award. Plaintiff bases his argument on the previous order entered by this Court, wherein the Court stated:

The court agrees with the plaintiff. As pointed out by the plaintiff, he never saw an arbitration agreement. The evidence shows plaintiff did not access the grant agreement as of October 26, 2016, and thus he did not ever accept the arbitration agreement. Plaintiff received the stock award with no requirement that he agree to arbitration.
Further, and the court agrees, plaintiff contends that he only wishes to be placed in the same situation as existed prior to his termination. Plaintiff argues that a performance bonus could not transform his employment status into one of a contract. That includes his stock award. He argues he does not need any benefit from the arbitration agreement. He is seeking damages for wrongful termination including lost wages. These are remedies, he argues, and not a cause of action underlying the arbitration agreement.
The court agrees and finds plaintiff is not required to arbitrate under any of the many theories proposed by defendants. The court agrees that there are no facts to support a claim that plaintiff agreed to arbitrate. The court finds there is no valid, binding agreement to arbitrate as a matter of law. The issues in this case involve termination and possible compensation of the plaintiff. There is no evidence that plaintiff agreed to an arbitration contract. Under the facts in this case, plaintiff is not required to arbitrate his re-employment claim. Plaintiff has the right to sue under USERRA. To the extent this arbitration clause attempts to abrogate this right, it is void. […]
Further, UP's arbitration agreement fails to mention USERRA. Section 4334 of USERRA requires an employer to “provide to persons entitled to rights and benefits under [USERRA] a no-tice of rights, benefits and obligations of such persons and such employers under [USERRA].” Such waivers must be in writing. See 38 U.S.C. § 4316(b)(2)(A)(ii). The burden is on UP to show written notice and prove the employee knew of the specific rights he would lose. 38 U.S.C. § 4316 (b)(2)(B). See Breletic v. CACI, Inc., 413 F.Supp. 2d. 1329 (N.D.Ga. 2006) (arbitration agreement was not enforceable because it did not constitute a clear waiver of the employee's right to bring his claims in a judicial forum under the USERRA). There was no knowing or voluntary agreement or waiver in this case.

Filing No. 53 at 10-11.

         The Court agrees with the plaintiff. There is no support for a judicial estoppel theory. The arbitration agreement was void because it was not received by plaintiff. The stock offer has very little if anything to do with the void arbitration agreement. The Court will deny the motion for summary judgment and will permit the plaintiff to present his evidence on the stock award at trial. An “employee stock ownership plan” is defined as a benefit of employment under USERRA. 38 U.S.C. § 4303(2).

         3. Evidence of unsupported claims of USERRA violations:

A. That Quiles was denied a stock award;
B. That Quiles's reemployment violated 38 U.S.C. § 4311; and
C. That Defendants willfully violated USERRA.

         Defendants contend that plaintiff filed four counts of USERRA violations, but plaintiffs claim multiple grounds within each count for these claims. Defendants move in particular to “exclude any argument (a) that Plaintiff's mid-year review violated USERRA, (b) that Plaintiff's year-end review violated USERRA, (c) that Quiles was denied bonus pay or stock awards, (d) that Plaintiff's reemployment as director of safety analysis violated Section 4311; (e) that Quiles was denied other job opportunities, and (f) that Defendants committed willful violations of USERRA.” Filing No. 215 at 10.

         First, defendants argue plaintiff had no unconditional interest in the 237 shares of Union Pacific stock granted to him as part of his 2014 bonus. This award argues defendants, was conditioned on continued employment until 2019. Second, defendants' argue there is no claim under § 4311 as that applies to claims of discrimination only after the moment of reemployment. Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 304 (4th Cir.2006) (noting that sections of USERRA, such as § 4311 and § 4316, protect the member after reemployment occurs). In this case, contends defendants, plaintiff's reemployment as the director of safety analysis cannot support his second cause of action alleging retaliation, because his reemployment occurred before he asserted his rights under USERRA. Third, defendants ask this Court to exclude the argument regarding an alleged willful violation under USERRA. Union Pacific argues it made every effort to comply with USERRA during the 2015 RIF and ReOrg. Plaintiff was not considered for dismissal during this time period. There is no evidence upon which to find willfulness asserts defendants.

         Plaintiffs argue that the USERRA claims are supported by the evidence. Plaintiffs contend that Union Pacific provides no argument or support for assertions (a), (b) and (e). The Court agrees that these three assertions relate primarily to the stock award compensation already discussed by the Court herein. The Court also agrees that this appears to be an attempt to have the willfulness issue decided as a summary judgment motion via a motion in limine. The Court will not determine the issue of willfulness until it hears all the evidence at trial. If the evidence is sufficient, the jury will decide the issues surrounding willfulness and the Court will decide the issues regarding liquidated damages. See Broadus v. O.K. Indus., 226 F.3d 937, 944 (8th Cir. 2000). Further, the Court will permit the evidence regarding reemployment. This is not a motion for summary judgment disguised as a motion for limine. Defendants can make their objections, if any, at trial.

         4. Evidence of other litigation ...

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