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Padilla-Ruiz v. Communication Technologies, Inc.

United States District Court, E.D. Virginia, Norfolk Division

January 9, 2019

RAUL PADILLA-RUIZ, et al., Plaintiffs,
v.
COMMUNICATION TECHNOLOGIES, INC., Defendant.

          OPINION AND FINAL ORDER

          REBECCA BEACH SMITH, DISTRICT JUDGE

         On May 31, 2018, Communication Technologies ("COMTek") filed a Motion for Summary Judgment ("Motion"). ECF No. 52. COMTek asserts that it is entitled to judgment as a matter of law on Plaintiffs' two remaining claims against COMTek, which are a claim pursuant to the Uniformed Services Employment and Reemployment Rights Act ("USERRA"), and a Puerto Rico tort law claim. See id.; ECF No. 53. The Motion was referred to a United States Magistrate Judge. ECF No. 73. The United States Magistrate Judge's Report and Recommendation ("R&R"), was filed on September 17, 2018. ECF No. 81.

         The R&R recommends that COMTek's Motion should be denied as to Padilla-Ruiz's USERRA claim, but should be granted as to Plaintiffs' tort claim. R&R at 1, ECF No. 81.[1] COMTek objects to the recommendation that its Motion should be denied as to the USERRA claim, ECF No. 85, and Plaintiffs object to the recommendation that the Motion should be granted as to the tort claim, ECF No. 86. On November 2, 2018, this court held a hearing on the parties' Objections to the R&R. For the reasons below, COMTek's Objection is GRANTED, Plaintiffs' Objection is OVERRULED, and COMTek's Motion is GRANTED.

         I.

         The following facts are taken from the record, and for the purposes of this Motion are construed in the light most favorable to the Plaintiffs.[2] COMTek employed Padilla-Ruiz from 2002 to 2008. Compl. ¶ 15, ECF No. 1. COMTek has a contract with the United States Army to staff Assistant Professors of Military Science for ROTC programs at colleges and universities throughout the country. Def.'s Ex. 3 at 2-4, ECF No. 53-1 at 27-29. The ROTC program, although offered through colleges and universities, is directed by the United States Army. Id. United States Army officers work at the university as ROTC instructors, and supervise the COMTek employees who serve as Assistant Professors of Military Science. Id.

         Padilla-Ruiz was employed by COMTek as an Assistant Professor of Military Science. ECF No. 53 at 3. He was sent by COMTek to teach in the ROTC program at the University of Puerto Rico - Mayaguez, San German campus of InterAmerican University. Id. At the university, he was supervised by the school's Professor of Military Science, a United States Army officer. Id. Padilla-Ruiz first worked under Lt. Col. Betancourt. Def.'s Ex. 4, ECF No. 53-1 at 73. Betancourt was promoted in early 2008, at which time Padilla-Ruiz began working for Betancourt's replacement, Lt. Col. Plaza. Def.'s Ex. 11, ECF No. 53-1 at 80. After Betancourt's promotion, he became Plaza's supervisor in the ROTC program. Def.'s Ex. 20, ECF No. 53-1 at 122. Padilla-Ruiz's COMTek supervisors, first Larry Rose and later Rose's replacement John Cray, did not work at the university with Padilla-Ruiz, but rather at branch offices in the continental United States from which they supervised COMTek employees working at many different universities. Def.'s Ex. 1, ECF No. 53-1 at 1-2; Def.'s Ex. 3 at 5-6, ECF No. 53-1 at 30-31.

         While Padilla-Ruiz worked in the ROTC program, he was also a member of the United States Army Reserve. Pis.' Ex. 1, ECF No. 69-1 at 1. Padilla-Ruiz encountered some difficulty in scheduling his Army Reserve training on several occasions because of his teaching duties in the ROTC program. In 2006, Padilla-Ruiz received unexpected orders to attend Army Reserve training, but when he advised Betancourt that he would need to miss work at the ROTC program to attend this training, Betancourt responded by threatening to fire Padilla-Ruiz if he attended the Army Reserve training. Pis.' Ex. 8, ECF No. 69-1 at 35. Padilla-Ruiz asserts that he did not go to Army Reserve training because of this threat, and that he was therefore passed over for promotion in the Army Reserve. Pis.' Ex. 11, ECF No. 69-1 at 38.

         In 2008, Padilla-Ruiz was again scheduled for Army Reserve training that would conflict with his ROTC program work assignments, particularly his attendance at a conference that the ROTC program held in the summer, the "LDAC" conference. Def.'s Ex. 11, ECF No. 53-1 at 81. His ROTC supervisor, now Plaza rather than Betancourt, told him that "he was going to have to change" his Army Reserve training schedule so that it did not conflict with his ROTC work schedule. Id. On another occasion, Plaza told Padilla-Ruiz that he could schedule his Army Reserve training "with the understanding that [Army Reserve training] could not interfere with his LDAC dates." Pis.' Ex. 26, ECF No. 69-1 at 74.

         In May 2008, Padilla-Ruiz wrote an email to his COMTek supervisor, Larry Rose, in which he discussed Plaza and Betancourt's attitude toward Padilla-Ruiz's Army Reserve training, including the 2006 incident in which Betancourt threatened to fire Padilla-Ruiz if he attended Army Reserve training. Pis.' Ex. 11, ECF No. 69-1 at 38. Id. However, shortly thereafter Rose was replaced as Padilla-Ruiz's COMTek supervisor by John Cray. Def.'s Ex. 1, ECF No. 53-1 at 1-2. Padilla-Ruiz and Cray communicated only a few times after Cray became Padilla-Ruiz's COMTek supervisor. Def.'s Ex. 1, ECF No. 53-1 at 2-3, 7. From these communications, Cray concluded that Padilla-Ruiz felt that his ROTC supervisor Plaza should be more supportive of ROTC instructors who were also members of the Army Reserve. Def.'s Ex. 1, ECF No. 53-1 at 2-3. However, Cray did not know about any COMTek employees suffering negative consequences in the Army Reserve because of the difficulty they had scheduling Army Reserve training around their ROTC teaching duties. Pis.' Ex. 25, ECF No. 69-1 at 70. Unlike Rose, Cray did not know about the 2006 incident, in which Padilla-Ruiz was passed over for promotion in the Army Reserve because Betancourt threatened to fire him if he attended the training. See id.; see also Pis.' Ex. 1, ECF No. 69-1 at 8.

         On July 1, 2008, only about six weeks after Cray became Padilla-Ruiz's COMTek supervisor, Padilla-Ruiz's ROTC supervisor Plaza initiated an investigation of Padilla-Ruiz, alleging that Padilla-Ruiz had committed two acts of misconduct. Def.'s Ex. 17, ECF No. 53-1 at 113. First, Plaza alleged that Padilla-Ruiz lied in order to switch ROTC work schedules with Capt. Moore, a fellow ROTC instructor. Id. Specifically, Padilla-Ruiz wanted to switch dates of attendance with Capt. Moore for the ROTC program's LDAC conference. Id. On April 24, 2008, Padilla-Ruiz sent an email to Capt. Moore and Plaza about the proposed switch of schedules, and Padilla-Ruiz wrote "[t]his change is requested in order for me to attend ILE phase III." Def.'s Ex. 18, ECF No. 53-1 at 116. "ILE phase III" was Army Reserve training Padilla-Ruiz intended to complete during the summer of 2008. ECF No. 69 at 5. At the time Padilla-Ruiz sent this email, however, he had not yet been scheduled for ILE phase III training. See Def.'s Ex. 8, ECF No. 53-1 at 77. Rather than Army Reserve training, Padilla-Ruiz conflict with his LDAC conference schedule was that it conflicted with the date of his daughter's birthday, June 14, 2008. Def.'s Ex. 2, ECF No. 53-1 at 22. Several weeks later, Padilla-Ruiz sent Plaza another email about the scheduling of ILE phase III training, at which time Plaza concluded that Padilla-Ruiz had been lying to Capt. Moore in order to convince him to switch work schedules. Def.'s Ex. 11, ECF No. 53-1 at 83.

         Plaza's second allegation was that Padilla-Ruiz reported on his time card that he had worked on June 9, 2008, when he had actually been absent from work. Def.'s Ex. 17, ECF No. 53-1 at 113. On June 9, 2008, Plaza attempted to contact Padilla-Ruiz at the university, but was told by Sergeant Hernandez, one of Padilla-Ruiz's coworkers, that Padilla-Ruiz had called in and said that he would not be at work that day. Def.'s Ex. 11, ECF No. 53-1 at 83-84. Plaza later reviewed Padilla-Ruiz's timecard and found that Padilla-Ruiz reported he had worked eight (8) hours on June 9. Id.

         Plaza appointed one of the ROTC instructors at the university, Maj. Jose Torres, to investigate these two allegations of Padilla-Ruiz's misconduct. Def.'s Ex. 17, ECF No. 53-1 at 113. Torres reviewed the email Padilla-Ruiz sent to Capt. Moore, as well as another email from Padilla-Ruiz which revealed that Padilla-Ruiz's ILE phase III training was not scheduled at the time Padilla-Ruiz wrote to Capt. Moore. Def.'s Ex. 18, ECF No. 53-1 at 114-117. He also interviewed the witness Hernandez about Padilla-Ruiz's absence on June 9. Id. at 114. He filed a report in which he concluded that both allegations of misconduct Plaza made against Padilla-Ruiz were "substantiated." Id. at 115.

         Plaza forwarded the results of Torres' investigation to Padilla-Ruiz's COMTek supervisor Cray and recommended that COMTek terminate Padilla-Ruiz because of these two acts of misconduct. Def.'s Ex. 20, ECF No. 53-1 at 122. In his recommendation, Plaza wrote that there was no room in the ROTC program for Padilla-Ruiz's "lack of honor and integrity." Def.'s Ex. 19, ECF No. 53-1 at 121. Betancourt, Plaza's supervisor, then reviewed the investigation results and also recommended that Padilla-Ruiz be terminated based on the same two instances of misconduct, and his recommendation was forwarded to Cray. Def.'s Ex. 20, ECF No. 53-1 at 122. No. mention was made of any earlier difficulties or hostility regarding Padilla-Ruiz's Army Reserve schedule. See id.

         Upon receipt of these recommendations, Cray spoke with the witness Hernandez, and reviewed the emails about Padilla-Ruiz's schedule switching and ILE phase III training schedule. Def.'s Ex. 1, ECF No. 53-1 at 5. Cray concluded that Padilla-Ruiz had "lost the confidence of the customer." Id. He therefore recommended that Padilla-Ruiz be terminated "per the request of the Army." Id. COMTek terminated Padilla-Ruiz on August 15, 2008. Def.'s Ex. 21, ECF No. 53-1 at 124.

         II.

         Plaintiffs first filed suit against COMTek on July 22, 2009, in the United States District Court for the District of Puerto Rico. Padilla-Ruiz v. Comtek Commc'ns. Techs., 2010 WL 1728311, Civil No. 09-1695 (SEC) (D.P.R. Apr. 26, 2010). Plaintiffs' suit was dismissed without prejudice for improper venue to allow Plaintiffs to re-file their suit in the appropriate venue, Virginia. Id. Plaintiffs then refiled their suit against COMTek, again in the United States District Court for the District of Puerto Rico on April 25, 2011. Padilla-Ruiz v. United States, 893 F.Supp.2d 301, 304 (D.P.R. 2012). On October 28, 2015, after finding that the venue issue was already fully litigated in the first suit between the parties, Padilla-Ruiz's suit against COMTek was again dismissed without prejudice to allow Padilla-Ruiz to refile the suit in the appropriate venue, Virginia. Padilla-Ruiz v. United States, Civil No. 11-1393 (FAB) (D.P.R. Oct. 28, 2015) (unpublished); ECF No. 28-6 at 2.

         Plaintiffs filed the instant suit against COMTek in the United States District Court for the Eastern District of Virginia on October 26, 2016. ECF No. 1. On May 12, 2017, COMTek filed a Motion to Dismiss and Memorandum in Support, arguing that Plaintiffs' claims were time-barred. ECF Nos. 22, 23. On February 15, 2018, this court denied COMTek's Motion to Dismiss as to Padilla-Ruiz's USERRA claim and as to Plaintiffs' tort claim. ECF No. 47. However, the court refrained from addressing at the Motion to Dismiss stage whether Plaintiffs' tort claim was time-barred under a "bad faith" exception to the applicable statute of limitations. Id. at 11. On May 31, 2018, COMTek filed the instant Motion, arguing that Plaintiffs' tort claim is time-barred under the "bad faith" exception, and that COMTek is entitled to judgment as a matter of law on Padilla-Ruiz's USERRA claim. ECF Nos. 52, 53. On August 7, 2018, Padilla-Ruiz filed a Memorandum in Opposition. ECF No. 69. On August 13, 2018, COMTek filed a Reply. ECF No. 72. All discovery for the case concluded on August 21, 2018. ECF No. 51.

         On August 14, 2018, this court referred the Motion to United States Magistrate Judge Robert J. Krask, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil Procedure 72(b), to conduct hearings, including evidentiary hearings, if necessary, and to submit to the undersigned district judge proposed findings of fact, if applicable, and recommendations for disposition of the Motion. ECF No. 73. The Magistrate Judge filed the R&R on COMTek's Motion on September 17, 2018. ECF No. 81. The parties were advised of their right to file written objections to the findings and recommendations made by the Magistrate Judge. R&R at 37-38, ECF No. 81. On September 28, 2018, both sides filed Objections to the R&R. ECF Nos. 85, 86. On October 12, 2018, both sides filed Responses to the opposing party's ...


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