United States District Court, D. Nebraska
RODOLFO A. QUILES, Plaintiff,
UNION PACIFIC RAILROAD COMPANY, INCORPORATED, RODNEY N. DOERR, EDWARD ADELMAN, individually; Defendants.
MEMORANDUM AND ORDER
F. Bataillon Senior United States District Judge.
matter is before the Court on defendants' motion in
limine, Filing No. 214 and plaintiff's motion in limine,
Filing No. 217.
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
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.
Defendants' motion in limine, Filing No.
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:
Evidence of Department of Labor investigation and
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.
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.
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.
Evidence regarding Plaintiff's forfeiture of his 2014
restricted stock award.
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.
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
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.
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).
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.
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.
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.
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.
Evidence of other litigation ...