United States District Court, E.D. Virginia, Norfolk Division
OPINION AND FINAL ORDER
REBECCA BEACH SMITH, DISTRICT JUDGE
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.
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.
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.
following facts are taken from the record, and for the
purposes of this Motion are construed in the light most
favorable to the Plaintiffs. 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 ...