Thorne v. Bard Peripheral Vascular, Inc.
Filing
32
ORDER & REASONS denying 25 Motion to Dismiss for Failure to State a Claim. Signed by Judge Martin L.C. Feldman on 7/13/2016. (caa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SARAH E. THORNE
CIVIL ACTION
V.
NO. 16-0262
BARD PERIPHERAL VASCULAR, INC.
SECTION F
ORDER AND REASONS
Before the Court is Bard Peripheral Vascular, Inc.’s motion
to dismiss the plaintiff’s complaint. For the reasons that follow,
the motion is DENIED.
Background
This lawsuit arises out of a laid-off employee’s efforts to
recover unpaid wages including commission payments and bonuses she
alleges she earned.
Sarah
Thorne
was
employed
as
a
sales
representative
(Territory Manager) for Bard Peripheral Vascular (BPV) from 2012
until January 2015, a position for which she was paid a base
salary, commissions, and bonuses. 1 In 2014, the 2014 Biopsy TM
Compensation
circulated
to
and
Ms.
National
Thorne.
Sales
The
Contest
Plan
1
Plan
outlined
(the
Plan)
was
eligibility
for
All facts are taken from the plaintiff’s first amended complaint,
which replaced her original complaint in its entirety.
1
commission payments and bonuses. In particular, the Plan detailed
requirements for earning commission payments, quarterly bonuses,
the Seniority Enrichment Bonus, and the District of the Year Award.
Commission payments were to be awarded on a sliding scale according
to a revenue to base 2 percentage. In practice, BPV determined the
base by multiplying the number of selling days in the year by each
individual sales representative’s daily number.
To be eligible
for quarterly bonuses, the Plan required Territory Managers to
achieve their quarterly sales quota, defined as $30,000 over base.
The Plan further stipulated that quarterly bonuses may be “made
up” as the year goes on, so that Territory Managers who missed a
quarterly quota could later earn the bonus for that quarter if
they compensated for the deficit in subsequent quarters. To be
eligible for the Seniority Enrichment Bonus, the Plan required
Territory Managers to achieve their annual sales quota and to have
been employees for at least two years. The annual sales quota was
described in the Plan as follows: “$120k Quota is based on total
territory sales growth over prior year.” The District of the Year
Award was to be awarded to the district with the largest annual
sales increase, with the period of the contest running from January
2
The base is the figure which Territory Managers were expected to
grow by $120,000 to meet their annual quota. For quarterly bonuses,
Territory Managers were expected to exceed the base by $30,000 per
quarter. For commissions, Territory Managers were expected to
exceed the base by $10,000 monthly. BPV and Ms. Thorne dispute how
the base is determined.
2
2014 to November 2014. The Plan further stipulated that Territory
Managers must be employees of BPV at the time the award was given,
usually in the second week of the following January.
In December 2014, Ms. Thorne was on track to exceed her annual
quota. 3 She had earned and received quarterly bonuses for Q1-Q3 in
2014. However, BPV erroneously entered 22 selling days for December
in the formula used to calculate Ms. Thorne’s base, rather than
the correct number of 21, artificially inflating Ms. Thorne’s
base. 4 BPV acknowledged that December 2014 had only 21 selling
days, 5 but 22 was the number of selling days used to calculate Ms.
Thorne’s base. With her base now artificially high, Ms. Thorne
fell short of the quota, as erroneously calculated. Additionally,
BPV reported a number for Ms. Thorne’s December 2014 distributor
sales that was less than half of her next-lowest selling month of
the year. 6
3
On December 2-3, 2014, a manager informed Ms. Thorne that she
would need to exceed her base by “around $17,571” to meet her
annual quota; Ms. Thorne exceeded her base by $21,404 in December
2014.
4 Ms. Thorne alleges that the formula used by BPV was: the
individual’s (daily number) x (selling days) + $120,000 (for the
annual quota) OR $30,000 (for the quarterly quota) OR $10,000 (for
the monthly quota).
5 In a March 2015 email to Ms. Thorne, a BPV representative stated
that the number of selling days in December 2014 was intended to
be 21.
6 Her sales in November 2014 (a month with 18 selling days) was
$2,265; BPV first reported her December 2014 (a month with 21
selling days) distributor sales as $600 but upgraded the figure to
$1,285 with no explanation.
3
Ms. Thorne was laid off in early January of 2015. Following
her termination, BPV refused to pay her three earned bonuses, as
well as her base salary for the two days she worked in January
2015 and commission payments for sales made in December 2014 and
January 2015. BPV refused to provide Ms. Thorne with any of her
sales data from December 2014 when she questioned the accuracy of
the distributor sales figure reported by BPV. For the next three
months, she attempted to secure payment for the three bonuses she
alleges she earned in 2014. 7
Failing to make any progress, Ms. Thorne sued Bard Peripheral
Vascular, Inc., seeking to recover unpaid wages in the form of the
bonus
payments,
unpaid
commission
payments,
and
unpaid
base
salary; as well as statutory damages and attorney’s fees. After
BPV answered the original complaint, Ms. Thorne filed a first
amended complaint which replaced in its entirety her original
complaint. First, Ms. Thorne seeks to recover from BPV unpaid wages
in the form of commission payments for December 2014 and January
2015 under La.R.S. 23:631, as well as statutory damages on overdue
commissions and attorney’s fees under La.R.S. 51:444. Second, Ms.
Thorne seeks to recover an award of $5,000, the value of the
quarterly bonus for the fourth quarter of 2014, as well as a
penalty of 90 days wages ($26,785.71) under La.R.S. 23:632 and
7
The Seniority Enrichment Bonus, the District of the Year Award,
and the quarterly bonus for the fourth quarter of 2014.
4
attorney’s fees under La.R.S. 51:444. Third, Ms. Thorne seeks to
recover under La.R.S. 23:631 an as-yet undetermined amount equal
to the Seniority Enrichment Bonus, 8 as well as a penalty of 90 days
wages ($26,785.71) under La.R.S. 23:632 and attorney’s fees under
La.R.S. 51:444. Fourth, Ms. Thorne seeks to recover, under La.R.S.
23:631, et seq., the unpaid portion of the District of the Year
Award ($2,400), as well as a penalty of 90 days wages ($26,785.71)
and attorney’s fees under La.R.S. 23:632. Fifth, 9 Ms. Thorne seeks
to recover as-yet undetermined unpaid wages in the form of base
salary for January 2015, as well as a penalty of 90 days wages
($26,785.71) and attorney’s fees under La.R.S. 23:632.
BPV now seeks to dismiss the plaintiff’s complaint on the
ground that she has failed to allege a claim for unpaid wages
earned under the terms and conditions of an employment agreement,
as required by La.R.S. 23:631.
I.
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows
a party to move for dismissal of a complaint for failure to state
a claim upon which relief can be granted.
Such a motion is rarely
granted because it is viewed with disfavor.
8
See Lowrey v. Tex. A
This is an amount equal to 10% of Ms. Thorne’s total commissions
and quarterly bonuses.
9 This claim is, apparently in error, labeled “Count Four” in the
complaint. Because it is the fifth claim, it will be referred to
as “Count V.”
5
& M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997) (quoting Kaiser
Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d
1045, 1050 (5th Cir. 1982)).
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure,
a pleading must contain a "short and plain statement of the claim
showing that the pleader is entitled to relief."
Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009)(citing Fed. R. Civ. P. 8).
"[T]he
pleading
'detailed
standard
factual
Rule
8
allegations,'
announces
but
it
does
demands
not
more
require
than
an
unadorned, the-defendant-unlawfully-harmed-me accusation." Id. at
678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
In considering a Rule 12(b)(6) motion, the Court “accepts
‘all well-pleaded facts as true, viewing them in the light most
favorable to the plaintiff.’”
See Martin K. Eby Constr. Co. v.
Dall. Area Rapid Transit, 369 F.3d 464 (5th Cir. 2004) (quoting
Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999)).
But, in
deciding whether dismissal is warranted, the Court will not accept
conclusory allegations in the complaint as true.
at 1050.
Kaiser, 677 F.2d
Indeed, the Court must first identify allegations that
are conclusory and, thus, not entitled to the assumption of truth.
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). A corollary: legal
conclusions “must be supported by factual allegations.”
678.
Assuming
the
veracity
of
6
the
well-pleaded
Id. at
factual
allegations, the Court must then determine “whether they plausibly
give rise to an entitlement to relief.” Id. at 679.
“‘To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.’” Gonzalez v. Kay, 577 F.3d
600, 603 (5th Cir. 2009)(quoting Iqbal, 556 U.S. at 678)(internal
quotation marks omitted). “Factual allegations must be enough to
raise a right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true (even
if doubtful in fact).” Bell Atl. Corp. v. Twombley, 550 U.S. 544,
555 (2007)(citations and footnote omitted). “A claim has facial
plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (“The
plausibility standard is not akin to a ‘probability requirement,’
but it asks for more than a sheer possibility that a defendant has
acted unlawfully.”) This is a “context-specific task that requires
the reviewing court to draw on its judicial experience and common
sense.” Id. at 679. “Where a complaint pleads facts that are merely
consistent with a defendant’s liability, it stops short of the
line
between
possibility
and
plausibility
of
entitlement
to
relief.” Id. at 678 (internal quotations omitted)(citing Twombley,
550 U.S. at 557). “[A] plaintiff’s obligation to provide the
‘grounds’ of his ‘entitle[ment] to relief’”, thus, “requires more
7
than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Twombley, 550 U.S. at
555 (alteration in original)(citation omitted).
Finally, “[w]hen reviewing a motion to dismiss, a district
court ‘must consider the complaint in its entirety, as well as
other sources ordinarily examined when ruling on Rule 12(b)(6)
motions to dismiss, in particular, documents incorporated into the
complaint by reference, and matters of which a court may take
judicial notice.” Funk v. Stryker Corp., 631 F.3d 777, 783 (5th
Cir. 2011)(quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
551 U.S. 308, 322 (2007)). The parties agree that the Plan, which
is attached to the complaint and incorporated into the complaint
by
reference,
may
be
considered
by
the
Court.
A
spreadsheet
summarizing Ms. Thorne’s sales, quotas, and compensation is also
attached to the complaint. 10
10
The plaintiff contends that the spreadsheet should be considered
by the Court to define ambiguous terms in the Plan. Although the
defendant contends that the spreadsheet should not be considered
in order to determine the terms of the Plan, it does not argue
that the spreadsheet should not be considered in connection with
its motion; indeed, BPV makes use of the spreadsheet itself in
support of its contention that Ms. Thorne failed to meet her
December 2014 quota.
8
II.
A.
The Louisiana Wage Payment Act creates liability for an
employer who fails to timely pay wages owed to an employee after
the
employee
is
terminated
from
employment.
La.R.S.
23:631(A)(1)(a)(“[u]pon discharge of any . . . employee . . ., it
shall be the duty of the [employer] to pay the amount then due
under the terms of employment”). Penalty wages and attorney’s fees
may be assessed against an employer that fails to comply with
La.R.S. 23:631. See La.R.S. 23:632.
La.R.S. 23:634 makes it unlawful for an employment contract
to
require
an
employee
to
forfeit
wages
actually
earned
if
discharged before the employment contract is completed.
No person, acting either for himself or as agent or
otherwise, shall require any of his employees to
sign contracts by which the employees shall forfeit
their wages if discharged before the contract is
completed or if the employees resign their
employment before the contract is completed; but in
all such cases the employees shall be entitled to
the wages actually earned up to the time of their
discharge or resignation.
La.R.S. 23:634.
Ms. Thorne alleges that BPV failed to: pay daily wages she
earned, in violation of La.R.S. 23:631-632; pay commissions she
earned, in violation of La.R.S. 51:441, et seq.; pay a cash award
she won, in violation of La.R.S. 23:631-32; and pay two separate
9
cash bonuses for which she had qualified, in violation of La.R.S.
23:631-632. Incorporated into her complaint is the Plan, Ms.
Thorne’s written agreement with BPV.
B.
It is undisputed that Louisiana law applies to this dispute.
The Court’s approach to a contract’s meaning is driven by simple
common
sense
principles.
The
Court’s
role
in
interpreting
contracts is to determine “the common intent of the parties.”
LA.
CIV. CODE art. 2045. In determining common intent, pursuant to LA.
CIV. CODE art. 2047, words and phrases are to be construed using
their plain, ordinary and generally prevailing meaning, unless the
words
have
acquired
a
technical
meaning.
See
Henry
v.
South
Louisiana Sugars Co-op., Inc., 957 So.2d 1275, 1277 (La. 2007).
“When the words of a contract are clear and explicit and lead to
no absurd consequences, no further interpretation may be made in
search of the parties’ intent” (LA. CIV. CODE art. 2046), and the
agreement must be enforced as written. Hebert v. Webre, 982 So.2d
770, 773-74 (La. 2008).
A contract provision “susceptible of different meanings must
be interpreted as having the meaning that best conforms to the
object of the contract.” LA. CIV. CODE art. 2048. The issue of
ambiguity of a contract is a legal question.
Dore´ Energy Corp.
v. Prospective Inv. & Trading Co., Ltd., 570 F.3d 219, 225 (5th
10
Cir. 2009). If the contract is not ambiguous, interpreting it is
also a legal issue for the Court. Id. The Court may consider
extrinsic evidence as to the parties’ intent only if the contract
is ambiguous.
Campbell v. Melton, 817 So.2d 69, 75 (La. 2002). “A
doubtful provision must be interpreted in light of the nature of
the contract, equity, usages, the conduct of the parties before
and after the formation of the contract, and of other contracts of
a like nature between the same parties.” LA. CIV. CODE art. 2053.
Ambiguous terms should be construed against the drafter. LA. CIV.
CODE art. 2056.
C.
BPV now seeks to dismiss all five counts of Ms. Thorne’s
complaint. The common thread underlying its request for dismissal
of three of these counts is BPV’s argument that the Plan language
contradicts Ms. Thorne’s allegations. For her part, Ms. Thorne
counters that BPV’s argument cannot be resolved at the pleading
stage where, as here, the Plan language is both ambiguous (thereby
necessitating
interpretation)
resort
or
that
to
extrinsic
BPV’s
evidence
conduct
modified
to
aid
written
in
Plan
provisions regardless of ambiguity. Mindful of this overarching
dispute as to the first three counts, the Court considers the
facial plausibility of each count in turn.
11
III.
A.
Three of the plaintiff’s allegations of unpaid wages 11 turn
on: (1) whether BPV intentionally or erroneously miscalculated the
plaintiff’s sales data for December 2014, making her ineligible
for the compensation she seeks under either BPV’s interpretation
of The Plan or the scheme Thorne alleges defines the terms of The
Plan and (2) whether The Plan mandates a year over year increase
of $120k or merely uses the prior year’s sales as one factor in
the quota formula. In sum, the plaintiff alleges that both her
objective sales performance and the target she was required to
meet as prescribed by the Plan have been altered after the fact by
BPV.
To determine whether the plaintiff has stated a claim to
recover unpaid wages, the Court must consult the terms of the
employment agreement. Both the general statute for unpaid wages
(La.R.S. 23:631, et seq.) and the statute regarding payout of
commissions upon termination (La.R.S. 51:443) limit recovery to
payments due under the terms of an employment or compensation
agreement at the time of discharge. Because the parties dispute
the meaning of certain plan terms, the Court must apply principles
of contract interpretation.
11
Counts I-III.
12
If a contract is clear and unambiguous, the Court may not
attempt to extract any other meaning from its terms beyond their
plain meaning.
However, if a term is ambiguous, the Court must
look to extrinsic evidence to determine its meaning. The plaintiff
contends that the words “based on” in the annual quota provision
are ambiguous. Based on a plain reading of the words, they are
reasonably susceptible to either the definition proffered by Ms.
Thorne 12 or the one proffered by BPV. 13
that
Ms.
Thorne
failed
to
explain
Despite BPV’s assertion
how
“based
on”
could
be
interpreted as having any other meaning than “previous year,” Ms.
Thorne did so in both her complaint and in her opposition papers.
BPV insists that it is patently unreasonable to interpret “based
on” more than one way.
The Court disagrees. Indeed, another
Section of this Court has held that the term “based on” in a
contract was by its plain language susceptible of at least two
reasonable interpretations. See Checkpoint Fluidic Sys. Int’l v.
Guccione, No. 10—4505, 2012 WL 3255200 at *11 (E.D. La. Aug. 22,
2012)(Vance, J.)(holding that “based on” was ambiguous where it
could either mean “having the same fundamental principle or theory”
12
Ms. Thorne urges the Court to interpret “based on” previous year
to mean that the previous year’s sales are merely an input into
the daily number, which is then used in the quota formula. Under
that interpretation, the annual quota formula would be as follows:
(daily number x selling days) + $120,000.
13 BPV urges the Court to interpret “based on” previous year to
mean that the annual quota formula is simply as follows: previous
year’s sales + $120,000.
13
or “having the same ‘base’ or ‘foundation’”). When faced with
ambiguity in a contract, the Court looks to extrinsic evidence to
determine what the term means.
Louisiana courts have held that a
strong indicator of an ambiguous term’s meaning is the conduct of
the parties in adhering to or executing the term. 14
Ms. Thorne
asserts that BPV understood the “base” to be the product of a daily
number it generated and the number of selling days. Ms. Thorne
further alleges that BPV used this formula for at least the
entirety of her employment to pay employees and award bonuses
identical to those she now seeks.
If these assertions are proved
true, Ms. Thorne would be entitled to recover the wages she is due
under that formula and, as a result, under La.R.S. 23:631.
Although Ms. Thorne has plausibly alleged that the terms of
the employment agreement included her suggested quota formula, to
state a claim she must also plausibly allege that BPV has withheld
wages due to her under that formula. Ms. Thorne alleges that BPV
withheld commissions she was entitled to under the “daily number”
formula for December 2014 in two ways: (a) entering the wrong
number of “selling days” into the formula, thus artificially
inflating her base and (b) reporting her actual distributor sales
incorrectly. 15
Ms.
Thorne
contends
14
that
BPV
is
using
her
LA CIV. CODE ANN. art. 2053 (2016).
BPV maintains that whether or not they incorrectly recorded Ms.
Thorne’s sales is irrelevant because the Plan states that BPV will
have the final say in awarding credit for commission and bonus
15
14
miscalculated December 2014 sales to deny her wages she is due in
three forms: commissions for December 2014 and the two days in
January 2015 she was employed (Count I); a quarterly bonus for the
fourth quarter of 2014 (Count II); and the Seniority Enrichment
Bonus (Count III).
B.
1.
First,
Ms.
Thorne
alleges
in
her
complaint
that
BPV
acknowledged that December 2014 was supposed to have 21 selling
days, yet BPV used 22 selling days to calculate Ms. Thorne’s base
for December 2014. Exhibit B to the complaint indicates that Ms.
Thorne was paid for December 2014 based on 22 selling days. Ms.
Thorne asserts that when 21 is plugged into the formula used by
BPV, her December 2014 sales exceed her base, making her eligible
for the commission payments under the terms of her employment
agreement and, as a result, under La.R.S. 51:443.
Ms. Thorne has
pled facts which would allow the Court to draw the reasonable
inference that BPV withheld commissions due under the formula it
used to pay its employees.
Second, Ms. Thorne alleges in her complaint that BPV recorded
her distributor sales numbers incorrectly. In support of this
purposes. However, insofar as such a provision is a suspensive
condition based entirely on the whim of the obligor, it is a
nullity under Louisiana law. LA CIV. CODE ANN. art. 1770 (2016).
15
allegation, she again points to Exhibit B, which indicates that
her December 2014 distributor sales, as reported by BPV, were less
than half of her next-lowest selling month.
Ms. Thorne also
alleges that in the time since the initiation of this suit, BPV
has, without explanation, adjusted her December 2014 distributor
sales from $600 to $1,285. 16
While BPV rightly notes that Ms.
Thorne has not indicated with absolute precision which sales she
believes have been omitted, she has identified a sub-category of
her sales and a specific time period: December 2014 and the first
two days of January 2015.
Further, Ms. Thorne alleges that BPV
has repeatedly refused to provide her with any of her sales
records.
Ms.
Thorne
has
pled
more
unlawfully harmed me’ accusation.” 17
than
a
“‘the
defendant
She alleged specific conduct
(misreporting sales) by the defendant which has a clear and direct
bearing on the alleged harm (the withholding of commissions). Ms.
Thorne has sufficiently pled a claim for which relief may be
granted in Count I.
16
At the time Ms. Thorne filed her original complaint, BPV reported
that her distributor sales were “around $600” for December 2014.
By the time her first amended complaint was filed, BPV’s
spreadsheet, which is attached as Exhibit B to the complaint,
stated that Ms. Thorne’s distributor sales were $1,285 in December
2014.
17 Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
16
2.
Similarly, Ms. Thorne alleges that BPV’s miscalculation of
her December 2014 sales is also being used to justify denying her
a quarterly bonus for the fourth quarter of 2014 (Count II) and
the Seniority Enrichment Bonus (Count III). Like the commission
payments in Count I, both bonuses are based on quota achievement.
As described above, Ms. Thorne alleges that she met her quota as
determined by her employment agreement, but that BPV denied her
the bonuses to which she is entitled when it altered the quota
formula and her December 2014 sales numbers.
Because Claims II
and III involve the same well-pleaded facts as Count I, the Court
finds that Ms. Thorne has sufficiently pled claims for which relief
may be granted in Counts II and III.
C.
Count IV turns on when bonuses are wages “actually earned”
under La.R.S. 23:634. La.R.S. 23:634 provides:
No person, acting either for himself or as
agent or otherwise, shall require any of his
employees to sign contracts by which the
employees shall forfeit their wages if
discharged before the contract is completed or
if the employees resign their employment
before the contract is completed; but in all
such cases the employees shall be entitled to
the wages actually earned up to the time of
their discharge or resignation.
La.R.S. 23:624.
“Incentive-based
bonuses
are
considered
wages
under La.R.S. 23:634. See Pender v. Power Structures, Inc., 359
17
So.2d 1321, 1323 (La. Ct. App. 4 Cir. 1978)(holding that “[t]he
compensation that the employee is promised in bonuses forms part
of the compensation for the employee’s labor during the bonus
period.”).
Whether a bonus constitutes an “amount then due” is a
mixed question of law and fact. 18
If a bonus has been actually
earned, employers cannot require employees to forfeit the bonus
upon discharge. 19 Such forfeiture clauses violate Louisiana public
policy. 20
In the seminal forfeiture clause case, Morse v. J. Ray
McDermott & Co., the state high court held that forfeiture clauses
are “manifestly unjust” where the employer unilaterally prevents
the employee from continuing employment and collecting deferred
compensation. 21
conditioning
However, Louisiana courts have upheld provisions
bonuses
on
continued
employment
where
the
compensation agreement specified that the bonus was not earned
until payout, 22 as well as where continued adequate performance was
a condition of receiving a bonus in installments. 23
Notably, when
Louisiana courts uphold continued employment conditions, it is
18
See Wiggins v. Coast Professional, Inc., No. 14-002, 2015 WL
692921 at *8 (W.D. La. Feb. 18, 2015)(quoting Batiansila v.
Cardiovascular Sys., 952 F.2d 893, 896 (5th Cir. 1992)).
19 La.R.S. 23:634.
20 See, e.g., Morse v. J. Ray McDermott & Co., 344 So.2d 1353, 1358
(La. 1976).
21 Id.
22 See Wiggins, No. 14-002, 2015 WL 692921 at *9.
23 See, e.g., Avila v. Sanofi-Aventis, 90 So.3d 1132, 1135 (La.App.5
Cir. 2012)(upholding a provision which required employees, in
addition to being employed when bonus installments were paid out,
to be in ‘good standing’ at the time of payout).
18
generally because some part of performance on the part of the
employee, in addition to mere continued employment, is still due.
Here, the Plan states that continued employment is a condition
of receiving the bonus.
However, unlike Wiggins, the Plan does
not specify that the bonus is not earned until payout.
To the
contrary, the Plan specifies that the contest for the bonus was to
run from January 2014 until November 2014.
Ms. Thorne alleges
that BPV included her on a list of individuals, dated January 30,
2015, who would be paid the District of the Year Award.
And, she
further alleges that BPV awarded the bonus to other members of her
team, including those who were not employees at the time of payout
or who did not meet their sales quotas.
Ms. Thorne has pled facts
sufficient to allow the Court to reasonably infer that the District
of the Year Award was actually earned in November 2014, rather
than at the time of payout.
As a result, it is plausible that the
condition requiring recipients to be employed by BPV at the time
of
payout
amounts
to
an
impermissible
forfeiture
clause.
Therefore, Ms. Thorne has sufficiently stated a claim upon which
relief may be granted in Count IV.
D.
In Count V of her complaint, Ms. Thorne alleges that she was
never paid her base salary for January 2015. Puzzlingly, BPV
asserts in both its motion to dismiss and reply that Ms. Thorne
has failed to state a claim for unpaid wages which satisfies Rule
19
8.
In the face of Ms. Thorne’s explicit allegation that “Ms.
Thorne was never paid her non-commission base [p]ay/wages for
January
2015,”
BPV
a
nevertheless
claim
for
contends
unpaid
base
that
she
salary.
did
The
not
explicitly
make
Court
disagrees.
Ms. Thorne has sufficiently stated a claim upon which
relief may be granted in Count V.
Accordingly,
the
defendant's
motion
to
dismiss
is DENIED.
New Orleans, Louisiana, July 13, 2016
________________________
MARTIN L.C. FELDMAN
U.S. DISTRICT JUDGE
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