Timothy A. Gilkerson Plaintiff- Appellant
Nebraska Colocation Centers, LLC Defendant-Appellee American Nebraska Limited Partnership; Ralph Edwards Productions, Inc. Defendant's,
Submitted: March 8, 2017
from United States District Court for the District of
Nebraska - Omaha
BENTON, BEAM, and MURPHY, Circuit Judges.
Gilkerson appeals the district court's grant of summary
judgment in favor of his former employer, Nebraska Colocation
Centers, LLC (NCC), on his breach of contract and Nebraska
Wage Payment and Collection Act claims. For the reasons
discussed below, we reverse.
August 22, 2011, NCC hired Gilkerson as its Vice President
and General Manager to develop NCC's Information
Technology (IT) infrastructure and improve its customer base.
Gilkerson has a bachelor's degree in education with an
emphasis in business and twenty years of IT experience at
companies such as TD Ameritrade, Oriental Trading Company,
Gallup, Inc., Farmer's Life Insurance, Mutual of Omaha,
and Experian. NCC and Gilkerson entered into a ten-year
employment contract (the Contract) in which Gilkerson was
responsible for developing technology infrastructure for NCC
and closing sales of NCC services. Under the Contract,
Gilkerson's base salary was $84, 000, he was entitled to
2% of gross sales of products and services sold for the first
three years and then 2.5% for the remainder of the contract
term, and he was to receive quarterly sales bonuses and a
retirement bonus. The Contract also included a
"Premature Termination" provision which stated that
if NCC terminated him before the end of the ten-year term
"without cause, " he would receive his remaining
salary for the balance of the term, another five years'
bonuses, and his full retirement bonus. If NCC terminated him
prematurely "for cause, " however, he would receive
only his unpaid compensation for services already performed.
The Contract defined "cause" as "willful
misconduct in carrying out Executive's duties which
causes economic harm" to NCC or "persistent failure
to perform the duties and responsibilities of his employment
hereunder; which failure is not remedied by him within 30
days after Executive's receipt of written notice from the
Company of such failure."
became dissatisfied with Gilkerson's performance because
he was struggling to close sales. NCC's president
notified Gilkerson of his unsatisfactory sales performance,
and later Gilkerson received an Employee Performance Review
with an "Unsatisfactory" rating for "Achieves
Sales Goals" and "Fulfills the terms of his
contract." Gilkerson signed the review but noted his
disagreement with his sales goal rating. NCC ultimately
determined that Gilkerson was not effective as NCC's Vice
President and General Manager and announced the hiring of a
new Vice President on July 8, 2013. That same day, NCC told
Gilkerson that the new employee would be moving into his
office and that Gilkerson's job title had been changed to
"Director: Field Engineering and Channel Services."
On July 15, 2013, the president of NCC met with Gilkerson and
presented him with a "Mutual Rescission, " which
would rescind the Contract, and a "Term Sheet, "
which set forth the terms of Gilkerson's new employment
contract. The Term Sheet stated that Gilkerson's base
salary would remain the same ($84, 000) and that he would now
have the opportunity to earn up to 4% commission for new NCC
revenue. The Term Sheet also included a 1% bonus for the
first $150, 000 billed by NCC each quarter and removed
restrictive covenants that were included in the original
Contract. However, the Term Sheet did not include a
retirement bonus and did not have delineated termination
provisions based on cause, both of which were provisions in
did not immediately accept the rescission and new terms of
employment. He took two days off work to review the new
agreement. He consulted with an attorney who advised him not
to sign the Mutual Rescission. Gilkerson met with NCC's
president on July 17, 2013, to further discuss the agreement.
The president criticized Gilkerson's work performance and
told him he had a choice: accept the rescission and Term
Sheet or be fired for cause. Gilkerson signed the Mutual
Rescission and Term Sheet the following day. He worked under
the Term Sheet and received six months of pay until he was
fired on January 8, 2014. Gilkerson filed suit against NCC on
May 30, 2014, in Douglas County District Court alleging
breach of contract and violation of the Nebraska Wage Payment
and Collection Act. Gilkerson argued that the
"Rescission Contract [was] not a valid and enforceable
contract because it was signed by [Gilkerson] under
duress." He further argued that NCC breached the
Contract by terminating his employment without cause and owed
him sales bonuses for two quarters of 2013.
removed the case to federal court and filed a motion for
summary judgment. The district court "reluctantly"
granted NCC's motion for summary judgment, holding that
although "there is, at least, a genuine issue of
material fact as to whether the threat of termination would
support a claim of duress, " there is no evidence that
the Mutual Rescission and Term Sheet are unjust,
unconscionable, or illegal, required elements to prove duress
under Nebraska law. Thus, according to the district court,
there was "not enough to void the subsequent
rescission." The district court summarily dismissed
Gilkerson's Wage Payment and Collection Act claim. In a
footnote, the district court noted that because the Wage
Payment claim "rest[ed] on the validity of the
employment contract and effect of the rescission, [it] need
not be addressed separately." Gilkerson now appeals,
arguing that the district court erred by (1) misinterpreting
Nebraska precedent regarding claims of duress, (2) applying
the incorrect standard of review, and (3) dismissing his Wage
Payment and Collection Act claim.
Standard of Review
review the district court's grant of summary judgment de
novo. Tusing v. Des Moines Indep. Cmty. Sch. Dist.,
639 F.3d 507, 514 (8th Cir. 2011). Summary judgment is only
proper where there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law. Fed.R.Civ.P. 56(a). All facts must be viewed in the
light most favorable to the nonmoving party. Torgerson v.
City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011)
(en banc). The moving party bears the initial burden of
"demonstrat[ing] the absence of a genuine issue of
material fact." Id. (quoting Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986)). If the movant
does so, the non-moving party must then present evidence
showing a genuine issue of material fact. Id.
"The non-moving party must substantiate his allegations
by 'sufficient probative evidence [that] would permit a
finding in [his] favor on more than mere speculation,
conjecture, or fantasy.'" Young v. Builders
Steel Co., 754 F.3d 573, 577 (8th Cir. 2014)
(alterations in original) (quoting Mann v. Yarnell,
497 F.3d 822, 825 (8th Cir. 2007)).