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Serving in reserves won't back discrimination claim.

Byline: Virginia Lawyers Weekly

There was no evidence the reservist's supervisor terminated the plaintiff because of his membership in the Army Reserve.


On May 31, 2018, Communication Technologies filed a motion for summary judgment. 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 and a Puerto Rico tort law claim.

The motion was referred to a United States Magistrate Judge. The Magistrate Judge's Report and Recommendation recommends that COMTek's motion should be denied as to Padilla-Ruiz's USERRA claim, but should be granted as to plaintiffs' tort claim.

COMTek objects to the recommendation that its motion should be denied as to the USERRA claim and plaintiffs object to the recommendation that the motion should be granted as to the tort claim. On Nov. 2, 2018, this court held a hearing on the parties' objections to the R&R.


The parties have stipulated that Padilla-Ruiz is a member of the United States Army Reserve, a uniformed service and that Padilla-Ruiz was denied retention in employment by his employer, COMTek, which terminated Padilla-Ruiz on Aug. 15, 2008. The central issue in COMTek's motion is whether Padilla-Ruiz has made a prima facie case that COMTek terminated Padilla-Ruiz because of his membership in the Army Reserve.

Padilla-Ruiz generally alleges that his supervisors were motivated by a discriminatory animus against the Army Reserve when they recommended his termination. Three people had supervisory control over Padilla-Ruiz: Plaza and Betancourt at the university ROTC program, and Cray, Padilla-Ruiz's COMTek supervisor. The R&R's conclusion that Padilla-Ruiz may have been terminated based on "antimilitary animus" focuses on the actions of Plaza and Betancourt, not Cray. The R&R assumes, without addressing, that Plaza and Betancourt were acting as agents of COMTek.

However, under the undisputed facts, Cray based his recommendation of termination on Plaza and Betancourt's recommendation, but there is no showing that Plaza and Betancourt were agents of COMTek, or that Cray knew of any previous "antimilitary animus." Therefore, Padilla-Ruiz has not sufficiently shown that COMTek terminated him because of his membership in the Army Reserve.


The R&R correctly concluded that plaintiffs' Puerto Rico tort claim should be dismissed as time-barred.

Under Puerto Rico's tolling rules, the statute of limitations is typically tolled during the pendency of a civil action, and the statute of limitations restarts in the event of a voluntary or non-prejudicial dismissal of a civil action. However, the First Circuit has recognized an exception "for cases where the [tolling] rule is abused or used in bad faith."

The uncontested facts of this case clearly support the conclusion that plaintiffs' delay in bringing their claim amounted to bad faith. Plaintiffs' suit was first dismissed for improper venue by the Puerto Rico federal district court on April 26, 2010. In dismissing the suit, the court specifically ruled that plaintiffs' suit needed to be filed in a federal court in Virginia.

Rather than refile their suit against COMTek in a federal court in Virginia, plaintiffs waited almost an entire year and then inexplicably refiled their suit against COMTek in the same Puerto Rico federal district court, even though that court had already been ruled an improper venue. Plaintiffs did not file suit against COMTek in this court until Oct. 26, 2016, over six years later. Based on these facts, the bad faith exception applies to the statute of limitations here, and plaintiffs' tort claim is time-barred.

Defendant's motion for summary judgment granted.

Padilla-Ruiz v. Communication Technologies Inc., Case No. 16-cv-630, Jan. 9, 2019. EDVA at Norfolk (Smith). VLW 019-3-010. 26 pp.

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Title Annotation:Padilla-Ruiz v. Communication Technologies Inc., U.S. District Court for the Eastern District of Virginia
Publication:Virginia Lawyers Weekly
Date:Feb 5, 2019
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