Gilkerson v. Nebraska Colocation Centers L.L.C.

In 2011, Nebraska Colocation Centers, L.L.C. (NCC) (defendant) hired Timothy Gilkerson (plaintiff) to be NCC’s vice president and general manager. The parties signed a 10-year employment contract, under which Gilkerson earned a base salary of $84,000, bonuses based on company sales, and a retirement bonus. Gilkerson was responsible for developing NCC’s information-technology infrastructure. The parties disputed the extent to which Gilkerson was also responsible for generating sales revenue. If Gilkerson was terminated prematurely without cause, NCC would owe him a large payout. Otherwise, Gilkerson could be terminated only for cause, which included a persistent, uncured failure to perform his duties and responsibilities. By 2013, NCC’s president, Jerry Appel, was not satisfied with Gilkerson’s performance in achieving sales goals, and Gilkerson’s performance review likewise denoted his unsatisfactory performance in sales. In July 2013, Appel announced that NCC had hired a dedicated sales-and-marketing executive. Appel told Gilkerson that Gilkerson’s job title was being changed to director of “field engineering and channel services” and that Appel was developing a new compensation plan for the position. At a later meeting, Appel presented Gilkerson with an agreement to mutually rescind Gilkerson’s employment contract and a term sheet containing proposed terms of Gilkerson’s continued employment. Under the term sheet, Gilkerson would retain the same base salary, earn a higher commission rate based on Gilkerson’s individual merit, and earn a bonus contingent on certain goals. The term sheet did not include a retirement bonus and would make Gilkerson an at-will employee. Gilkerson subsequently met again with Appel, who conveyed that Gilkerson should accept the rescission and term sheet or else would face imminent termination for cause. After briefly consulting with counsel, Gilkerson signed the rescission agreement and term sheet. In January 2014, NCC fired Gilkerson. Thereafter, Gilkerson sued NCC for breach of contract, among other claims. Gilkerson argued that he agreed to rescind his employment contract and accept different terms under duress. NCC moved for summary judgment.