Levesque v. Schroder Investment Management North America Inc. et al

Filing 42

Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER, granting in part, and denying, in part, 25 MOTION to Dismiss Pursuant to Rules 12(b)(2), 12(b)(3), and 12(b)(6) of the Federal Rules of Civil Procedure and 28 U.S.C. sects. 1406(a) and 1404(a) filed by Karl Dasher, Schroder Investment Management North America Inc..(Lima, Christine)

Case 1:17-cv-12380-NMG Document 42 Filed 03/27/19 Page 1 of 25

United States District Court
District of Massachusetts
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Shaun Levesque,
Plaintiff,
v.
Schroder Investment Management
North America, Inc. and Karl
Dasher
Defendants.

Civil Action No.
17-12380-NMG

MEMORANDUM & ORDER
GORTON, J.
This case arises out of an employment dispute over
commissions allegedly owed, retaliation and age discrimination
in an action brought by a plaintiff who was terminated following
a company’s reorganization in 2017.
I.

Factual Background
Shaun Levesque (“Levesque” or “plaintiff”), a resident of

Wrentham, Massachusetts was employed by Schroder Investment
Management North America, Inc., (“SIMNA”) from 2008, until his
termination in September, 2017.

Levesque was initially hired as

the east coast director of SIMNA’s Institutional Sales division.
He received his offer letter in 2008, by mail, in Massachusetts
and continued to work for SIMNA while in Massachusetts.

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At SIMNA, Levesque reported to Jamie Dorrien-Smith
(“Dorrien-Smith”), then-CEO of SIMNA, from 2008 to 2012, and
then to Karl Dasher (“Dasher”), a resident of New York and
Georgia, in 2013, after Dasher became the new CEO.
From 2009 to 2012, Levesque received an annual management
bonus ranging from $100,000 to $350,000.

Those management

bonuses were consistent with the oral representations made by
Dorrien-Smith.

That agreement was presumably memorialized in an

internal memorandum which has not yet been produced.
In 2013, SIMNA implemented a new incentive compensation
plan (“the 2013 Plan”).

Under the 2013 Plan, employees

qualified for two kinds of incentive-based compensation schemes:
quantitative and qualitative.

The quantitative based

compensation was further broken down into two components:
individual and team.

Quantitative compensation was earned when

revenues were generated and individual quantitative awards were
based on a percentage of the employee’s gross sales.

By

contrast, qualitative compensation was earned at the end of each
fiscal year, when the company determined whether the employee
had met his or her stated goals.
Under that compensation scheme, SIMNA also had the
discretion to defer the team quantitative and qualitative
compensations into its Equity Compensation Plan (“the ECP”).

As

part of the ECP, employees were given either an amount of shares

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in the parent company, Schroders plc (“a share award”) and/or
units in a range of investment products for Schroders plc (“a
fund award”) that was equal to the value of their earned
incentive-based compensation that was deferred.
In February 2014, Dasher allegedly told Levesque that he
would not be receiving his customary management bonus for work
performed in 2013.

Dasher allegedly promised, instead, that

Levesque would continue to receive a total compensation package
of $1.4 million, even if Levesque’s commission sales were lower
than his 2013 numbers.

Shortly thereafter, Levesque began

reporting directly to Marc Mayer (“Mayer”) instead of Dasher.
Mayer informed Levesque that he was no longer needed as an
Institutional Sales manager but reiterated Dasher’s earlier
promise of $1.4 million in total compensation.

Mayer refused to

put that agreement in writing and Levesque alleges that he was
not compensated as promised for work performed in 2013.
In 2015, Mayer, unbeknownst to Levesque, contacted Allan
Conway, the head of Emerging Markets, to discuss transferring
Levesque to the Emerging Products division.

In 2016, Levesque

agreed to the transfer with the understanding that 1) his
targeted annual compensation would be between $750,000 and $1
million and 2) he would be entitled to the quantitative
commissions he had already earned for the three-year commission
cycle within the Institutional Sales division.

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In June, 2016,

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the parties memorialized the terms of Levesque’s compensation
(“the 2016 Internal Memorandum”).
Following his transfer, Levesque avers that SIMNA breached
its contractual obligations by failing to pay him: 1) a $250,000
management bonus for 2013, 2) a $300,000 qualitative bonus for
2013, 3) a $367,000 quantitative incentive compensation for work
performed in 2016, 4) a $500,000 qualitative incentive
compensation for work performed in 2016, and 5) a $732,000
quantitative incentive compensation to which he would have been
entitled had he not been terminated in 2017.
Levesque discussed his compensation complaints with several
managers and in 2017, Dasher informed him that his Emerging
Markets compensation was intended to replace his quantitative
compensation previously earned while in Institutional Sales.
Levesque then contacted Human Resources but was told to handle
the issue directly with Dasher.

Shortly thereafter, Levesque

was terminated on the basis that his position had been upgraded
and moved to the London office.

Levesque, who is a British

national, was not offered the position and was told to tell his
co-workers that he intended to retire.
II.

Legal Analysis

A. Personal Jurisdiction over Dasher
On a motion to dismiss for lack of personal jurisdiction,
the plaintiff bears the burden of satisfying the Massachusetts

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long-arm statute and the Due Process Clause of the Fourteenth
Amendment. Cossart v. United Excel Corp., 804 F.3d 13, 18 (1st
Cir. 2015).

In accordance with that burden, all facts alleged

by the plaintiff are taken as true and construed in favor of his
jurisdictional claim. Massachusetts Sch. of Law at Andover, Inc.
v. Am. Bar Ass’n, 142 F.3d 26, 34 (1st Cir. 1998).
1. Massachusetts Long Arm Statute
Jurisdiction over the individual officers of a corporation
under the Massachusetts long arm statute may not be based on
jurisdiction over the corporation. Johnson Creative Arts, Inc.
v. Wool Masters, Inc., 573 F. Supp. 1106, 1111 (D. Mass. 1983).
Rather, this Court must determine that there is an “independent
basis” for jurisdiction. LaVallee v. Parrot-Ice Drink Prod. of
Am., Inc., 193 F. Supp. 2d 296, 300 (D. Mass. 2002).
Levesque has demonstrated that Dasher, as SIMNA’s CEO, has
attempted to participate in the Commonwealth’s economic life as
a “primary participant” in corporate activities. Cossart, 804
F.3d at 18–19 (holding that the term “transacting any business”
is construed broadly).

Here, Dasher retained and supervised

Levesque, had significant business-related communications with
him and made promises to him regarding compensation, all while
Levesque retained significant Massachusetts clients and operated
out of his Massachusetts office. See id. (finding that a nonresident defendant who unsuccessfully negotiated a contract for

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sale of Massachusetts land while outside the Commonwealth was
sufficient to satisfy the “transacting any business”
requirement).

Thus, because Levesque has demonstrated an

independent basis for jurisdiction, the requirements of the long
arm statute have been met.
2. Due Process Clause
Specific jurisdiction over a defendant exists if a
plaintiff demonstrates a nexus between his claims and the
defendant’s forum-based activities.

In determining whether the

requisite nexus is satisfied, the Court evaluates 1)
relatedness, 2) purposeful availment and 3) reasonableness.
Cossart, 804 F.3d at 20.
Dasher’s actions seem to be the catalyst for this action
because he allegedly 1) made oral promises to plaintiff
regarding his compensation and 2) retaliated against plaintiff
for complaining about his compensation.

Thus, relatedness is

satisfied. See Harlow v. Children’s Hosp., 432 F.3d 50, 60–61
(1st Cir. 2005) (the defendant’s in-state conduct must form an
“important” or “material” element of proof in the plaintiff’s
case”).
Moreover, Dasher, as plaintiff’s supervisor, 1) knew and
approved of plaintiff’s Massachusetts-generated business, 2)
presumably discussed that business with Levesque, 3) negotiated
his compensation with respect to Massachusetts-related business

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and 4) knew of plaintiff’s complaints regarding his unpaid
compensation.

Because Dasher had repeated contacts with the

Commonwealth, it was reasonably foreseeable that he would be
subject to the forum state’s jurisdiction.
Finally, with respect to reasonableness, courts assess 1)
the defendant’s burden of appearing, 2) the forum state’s
interest, 3) the plaintiff’s interest, 4) the judicial system’s
interest in obtaining effective resolution and 5) the common
interests of all sovereigns in promoting substantive social
policies. Ticketmaster-New York, Inc. v. Alioto, 26 F.3d 201,
209 (1st Cir. 1994).
Dasher has not demonstrated that litigating the suit in
Massachusetts presents a “special or unusual burden”. See
Pritzker v. Yari, 42 F.3d 53, 64 (1st Cir. 1994).

Moreover,

Massachusetts has a strong interest in adjudicating the dispute
because a Massachusetts resident was allegedly injured in
Massachusetts and is now claiming relief under Massachusetts
law. Ticketmaster-New York, Inc., 26 F.3d at 211.

Furthermore,

Levesque resides in Massachusetts and by bringing suit in that
forum he is most likely to obtain convenient and effective
relief.

In fact, because this Court has jurisdiction over

plaintiff’s claims against SIMNA, effective resolution of the
case renders the forum state suitable.

Finally, litigation of

the suit does not impugn the common interests of all sovereigns

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with respect to promoting social policies.

Thus, on balance,

the Court finds that Levesque has alleged facts establishing
that Dasher had minimum contacts with Massachusetts such that
maintenance of the suit in this forum would not “offend
traditional notions of fair play and substantial justice”.
Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).
B. Motion to Transfer and Change Venue
Defendants’ argument that there is an obstacle to
expeditious and orderly adjudication on the merits, pursuant to
§ 1406(a), is unpersuasive because this Court finds that
personal jurisdiction over Dasher exists.

Their alternative

argument for a change of venue under 28 U.S.C. § 1404(a) is
equally unconvincing. Momenta Pharm., Inc. v. Amphastar Pharm.,
Inc., 841 F.Supp.2d 514, 522 (D. Mass. 2012) (internal citation
omitted) (there is a general presumption in favor of the
plaintiff’s choice of forum that a defendant bears the burden of
rebutting).
Here, though an adequate alternative forum exists,
considerations of convenience and judicial efficiency do not
favor litigating this suit elsewhere.

Levesque brought this

action in his home state and alleges multiple violations of the
Massachusetts Wage Act arising out of a contract negotiated and
signed, at least in part, in Massachusetts.

The fact that

defendants’ records are located in New York is an insufficient

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ground for transferring this case. Blu Homes, Inc. v. Kaufmann,
No. 10-11418-DJC, 2011 WL 3290362, at *10 (D. Mass. July 29,
2011).

Finally, unlike Avci, where the plaintiff was not a

resident of Massachusetts and there was little connection
between the claim and the forum state, Levesque is a resident of
the Commonwealth who conducted most of his SIMNA-related
business in this state. Cf. Avci, 232 F. Supp. 3d at 220.
Because there is ample connection between the forum, the
issues and the law to be applied in this action, defendants’
motion to “transfer and change venue” will be denied.
C. Failure to State a Claim
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”. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007).

In considering the merits of

a motion to dismiss, the Court may look only to the facts
alleged in the pleadings, documents attached as exhibits or
incorporated by reference in the complaint and matters of which
judicial notice can be taken. Nollet v. Justices of Trial Court
of Mass., 83 F. Supp. 2d 204, 208 (D. Mass. 2000), aff’d, 248
F.3d 1127 (1st Cir. 2000).
Furthermore, the Court must accept all factual allegations
in the complaint as true and draw all reasonable inferences in
the plaintiff’s favor. Langadinos v. Am. Airlines, Inc., 199

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F.3d 68, 69 (1st Cir. 2000).

If the facts in the complaint are

sufficient to state a cause of action, a motion to dismiss the
complaint must be denied. See Nollet, 83 F. Supp. 2d at 208.
Although a court must accept as true all the factual
allegations contained in a complaint, that doctrine is not
applicable to legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662
(2009).

Threadbare recitals of legal elements which are

supported by mere conclusory statements do not suffice to state
a cause of action. Id.

Accordingly, a complaint does not state

a claim for relief where the well-pled facts fail to warrant an
inference of any more than the mere possibility of misconduct.
Id. at 1950.
1. Contract Claims
a. Choice of Law
The parties disagree on whether Massachusetts or New York
substantive law governs this diversity action.

When a federal

court sits in diversity, it must apply the choice of law
principles of the forum state. Klaxon Co. v. Stentor Elec. Mfg.
Co., 313 U.S. 487, 496 (1941).

Thus, this Court must look to

Massachusetts choice-of-law rules.

With respect to contracts,

Massachusetts employs a “functional” approach that responds to
the “interests of the parties, the States involved, and the
interstate system as a whole”. Bushkin Associates, Inc. v.
Raytheon Co., 473 N.E.2d 662, 668 (Mass. 1985).

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This means that

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the Court must apply the substantive law of the state with the
most significant relationship to the transaction in the
litigation. Hendricks & Associates, Inc. v. Daewoo Corp., 923
F.2d 209, 212 n. 3 (1st Cir. 1991).

The Court need not,

however, address the most significant relationship test where,
as here, there is a choice-of-law provision. Bushkin, 473 N.E.2d
at 669.

While neither party raises this material fact, the 2013

Plan clearly states that “[t]he Plan shall be governed by New
York law”.

Accordingly, the Court will apply New York law with

respect to plaintiff’s contract claims.
b. Breach of Contract Claims
Defendants claim that Levesque has no contract claim with
respect to the $250,000 management bonus because that amount is
not reflected in the 2008 Employment Agreement or any subsequent
writing, including the internal email that documents the
parties’ oral conversation regarding his annual, discretionary
management bonus.

Moreover, defendants argue that there is no

viable contract claim for a bonus that is discretionary.
Plaintiff responds that SIMNA failed to pay all commissions due
under the 2013 Plan and the 2016 Agreement.
In limiting his claims to compensation that stem from the
2013 Plan and the 2016 Agreement, plaintiff effectively concedes
his breach of contract claim with respect to his $250,000
management and $300,000 qualitative bonuses.

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As defendants

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aver, the 2013 Plan, which governs the contract action 1) was
signed by all parties, 2) states that it supersedes any prior
agreement with respect to sales incentive compensation and 3)
permits only written modifications.

Plaintiff has produced no

evidence of written modifications to the contrary, partial
performance or estoppel. Tierney v. Capricorn Inv’rs, L.P., 592
N.Y.S.2d 700 (N.Y. App. Div. 1993) (holding that when a written
contract provides that it can be amended only in writing, an
oral modification of that agreement, such as is alleged here, is
unenforceable absent partial performance or estoppel).

Thus,

plaintiff fails to state a claim with respect to his alleged
$250,000 management bonus or his $300,000 qualitative bonus.
With respect to the $367,000 quantitative award, defendants
argue that the complaint does not identify any accounts for
which he was not paid and thus the claim is implausible on its
face.

While plaintiff provides little specificity as to how he

arrives at $367,000, taking his complaint as a whole, he has
alleged facts sufficient to establish plausibility.
Defendants contend that the 2016 Internal Memorandum
provides that the $500,000 qualitative award is “payable at the
sole discretion of Schroders”.
the contract, this Court agrees.

Based on the plain reading of
Plaintiff’s breach of contract

claim is unavailing in light of the unambiguous language of the
contract, which makes clear that awards are subject to the

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defendants’ sole discretion. Hunter v. Deutsche Bank AG, New
York Branch, 866 N.Y.S.2d 670 (N.Y. App. Div. 2008).
As to the $732,000 quantitative award, defendants submit
that the 2016 Internal Memorandum provides that no sales-related
pay will be due to a terminated employee.

Levesque was an at-

will employee who was terminated in 2017.

Pursuant to the terms

of the 2013 Plan and the 2016 Internal Memorandum, he has no
valid breach of contract claim for payment to which he was
entitled only if he remained employed. Sabetay v. Sterling Drug,
Inc., 506 N.E.2d 919 (N.Y. 1987) (finding that an employer has
the right to terminate an at-will employee at any time for any
reason or for no reason, except where that right has been
limited by express agreement).
Accordingly, defendants’ motion to dismiss will be allowed
as to all of plaintiff’s claims for unpaid compensation except
for the $367,000 quantitative award.
c. Quasi-Contract Claims
Under New York law, quasi-contractual relief is unavailable
where an express contract covers the subject matter. Karmilowicz
v. Hartford Fin. Servs. Grp., Inc., 494 F. App’x 153, 157 (2d
Cir. 2012); Clark-Fitzpatrick, Inc. v. Long Island R. Co., 516
N.E.2d 190 (N.Y. 1987).

Because Levesque’s claims are subject

to the 2013 Plan and the parties negotiated an account-byaccount agreement regarding sales-related pay in the 2016

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Internal Memorandum, plaintiff’s quasi-contractual relief is
unavailable.

Thus, defendants’ motion to dismiss with respect

to good faith and fair dealing, promissory estoppel and unjust
enrichment will be allowed.
2. Massachusetts Wage Act
a. Choice of Law
Although the 2013 Plan provides that New York law governs
the contract, that choice-of-law provision is not dispositive
with respect to plaintiff’s Massachusetts Wage Act (“the Wage
Act”) claim. Melia v. Zenhire, Inc., 967 N.E.2d 580, 590 (Mass.
2012) (holding that the contract's choice of New York law would
not govern the Massachusetts Wage Act claim because it makes no
reference to statutory causes of actions); see also Berberian v.
G-Form, LLC, No. CV 14-10422-JCB, 2014 WL 12700578, at *5 (D.
Mass. Aug. 29, 2014) (finding that the Rhode Island choice-oflaw provision only applies to the terms of the subject agreement
and makes no reference to statutory causes of action).
Thus, the Court returns to the functional choice-of-law
approach of the forum state absent a prevailing choice-of-law
provision.

Under the most significant relationship test, the

Court considers the following factors:
1) the place of contracting; 2) the place of negotiation of
the contract; 3) the place of performance; 4) the location
of the subject matter of the contract; and 5) the domicile,
residence, nationality and place of incorporation of the
parties; 6) the needs of the interstate and international

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system; 7) the relevant policies of the forum; 8) the
interest of those states in the determination of the
particular issue; 9) the protection of justified
expectations; 10) the basic policies underlying the
particular field of law; 11) certainty, predictability and
uniformity of result; and 12) ease in the determination and
application of the law to be applied.
Dunfey v. Roger Williams Univ., 824 F. Supp. 18, 20 (D.
Mass. 1993) (internal citations omitted).
In assessing those factors, the Court is not persuaded that the
State of New York has a more significant relationship to the
transaction in litigation than the Commonwealth of
Massachusetts.

For example, the fact that Levesque worked in

Massachusetts and that the contract was partially executed in
Massachusetts and New York is not dispositive. Bushkin, 473
N.E.2d at 668 (holding that the governing principles of law
should hardly turn on a parsing of the disputed content of a
telephone call or, more importantly, on the fortuitous fact that
an oral offer was accepted orally in one state rather than in
the other).
Nor does the domiciliary of the respective parties or the
uniformity of the result weigh in favor of either forum. See id.
at 662.

Rather, the strongest factor at issue is the

Commonwealth’s fundamental policy interest in enforcing the
Massachusetts Wage Act. Melia, 967 N.E.2d at 587 (finding that
the Wage Act embodies a fundamental public policy of the
Commonwealth).

That is not to say that another forum under its

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choice-of-law rules would not apply Massachusetts law when
determining whether plaintiff has a viable Wage Act claim. Id.
(nothing in the text or structure of the Wage Act suggests that
enforcement must always be available in Massachusetts).

But

unlike Melia, there is no forum selection clause which would
require this case to be brought in New York.
Nor is the Court persuaded that Dow is dispositive, as
defendants contend. Dow v. Casale, 989 N.E.2d 909, 914 (Mass.
App. Ct. 2013).

In Dow, the employee travelled throughout the

country on behalf of a company headquartered in Massachusetts.
Id.

Because of his nomadic work life, the Massachusetts Appeals

Court concluded that there was no substantial relationship to
any place but Massachusetts. Id.

Here, Levesque had been

working out of his Massachusetts office for more than nine
years, an office that had been approved by and paid for by
SIMNA.

Moreover, SIMNA withheld Massachusetts income tax from

Leveque’s pay and purchased health insurance with Massachusetts
coverage for Levesque and his family.

Finally, Levesque was

tasked with procuring sales from companies throughout the
eastern seaboard, including clients in Massachusetts.
Thus, with respect to the Massachusetts Wage Act claim, the
Court finds that Massachusetts has the most significant contacts
to the transaction in litigation and thus Massachusetts law
applies.

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b. Incentive-based Compensation
The Massachusetts Wage Act provides that
[e]very person having employees in his service shall pay
weekly or bi-weekly each such employee the wages earned by
him. . . .
M.G.L. ch. 149, § 148.
To establish a claim for wages under the Act, a plaintiff must
show that 1) he was an employee, 2) his form of compensation
constitutes a wage and 3) the defendants violated the Act by not
paying him his wages in a timely manner. Napert v. Gov’t
Employees Ins. Co., 36 F. Supp. 3d 237, 241–42 (D. Mass. 2014)
(internal citation omitted).

Here, the parties generally

dispute whether the compensation at issue constitutes a
commission or a bonus.

That factual distinction is material

because the Wage Act generally does not encompass bonuses but
protects commission payments that are “due and payable” and
“arithmetically determinable”. Doucot v. IDS Scheer, Inc., 734
F. Supp. 2d 172, 193 (D. Mass. 2010); Okerman v. VA Software
Corp., 871 N.E.2d 1117, 1222–25 (Mass. App. Ct. 2011).
Even assuming that plaintiff’s management bonus of $250,000
and qualitative bonus of $300,000 are covered by the Act, the
Court finds that plaintiff’s claims are precluded under the
Act’s discovery rule. Crocker v. Townsend Oil Co., 979 N.E.2d
1077, 1083 (Mass. 2012) (holding that under the discovery rule,
the statute of limitations runs from the time a plaintiff

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discovers, or reasonably should have discovered, the underlying
harm for which relief is sought).

Here, Levesque knew in

February and March of 2014, that he would not be receiving a
management bonus of $250,000 or a $300,000 qualitative bonus for
work performed in 2013.

Thus, the three-year statute of

limitations expired before the complaint was filed in November,
2017, and plaintiff’s claims are time barred.
With respect to the $500,000 qualitative award in 2016,
which is not time barred, the fact that such compensation was
labeled as “discretionary” does not automatically render it a
non-qualifying “wage” under the Act. Cf. Weems v. Citigroup
Inc., 900 N.E.2d 89, 94 (Mass. 2009) (where the parties agreed
that the payments were “discretionary”).

Drawing all reasonable

inferences in favor of the plaintiff, the Court finds that
Levesque’s disputed compensation was “due and payable” and
“arithmetically determinable” based on the assertion that
qualitative awards were routinely calculated as a percentage of
revenue generated on new sales production when and if the
participating employee met his or her individual goal (subject
to deferral).
Defendants next submit that the ECP deferral renders the
qualitative compensation discretionary, not a wage under the
Act.

The Court agrees. See id. (holding that compensation was

“earned” in a deferral program only if the individual was

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employed at the time the stock vests).

Moreover, the Court is

not persuaded by plaintiff’s argument that the ECP deferral
program constitutes a special contract that violates the public
policy of the Wage Act pursuant to Stanton.

In Stanton, the

parties agreed to a deferral of plaintiff’s salary because the
company was not profitable in its first year and could not pay
plaintiff. Stanton v. Lighthouse Fin. Servs., Inc., 621 F. Supp.
2d 5, 14 (D. Mass. 2009).

Plaintiff cannot similarly claim that

his deferred compensation constitutes a foregone base salary.
Thus, he has no claim to commissions deferred pursuant to the
ECP.
As to the $367,000 quantitative award in 2016, defendants
contend that plaintiff has proffered a conclusory allegation.
At the motion to dismiss stage, however, plaintiff has a
relatively low hurdle to clear. See Bos. Light Source, Inc. v.
Axis Lighting, Inc., No. 17-CV-10996-NMG, 2017 WL 6543868, at *3
(D. Mass. Nov. 13, 2017) (finding that a complaint is sufficient
if it puts the defendant on notice of what it is alleged to have
done so that it may investigate the complaint and present an
appropriate defense).

Plaintiff’s complaint alleges that he did

not receive a quantitative compensation for institutional sales
accrued in 2016, which amounted to $367,000.

Given the low

threshold for sufficiency, the Court finds that Levesque has
been specific enough to survive a motion to dismiss.

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Regarding the $732,000 quantitative award, plaintiff seeks
to recover commissions earned in 2017 that would have been paid
in 2018 but for his termination.

Defendants rejoin that such

incentive compensation was contingent on continued employment
and not determinable or due and payable during his employment.
Here, defendants’ argument that Sheedy is persuasive as to
the continued employment condition is misplaced. Sheedy v.
Lehman Bros. Holdings Inc., No. CIV.A. 11-11456-RGS, 2011 WL
5519909, at *4 (D. Mass. Nov. 14, 2011).

In Sheedy, the

defendant company provided the plaintiff with an incentive
payment as a loan advance and the forgiveness of the loan was
extended for only as long as her continued employment. Id.
is not such a case.

This

Rather, plaintiff has sufficiently alleged

that, with respect to quantitative compensation, he was paid
quarterly based on a percentage of his individual gross sales.
Such payment is akin to that of commissions, not bonuses, and
thus the Court will deny defendants’ motion to dismiss. See
Israel v. Voya Institutional Plan Servs., LLC, No. 15-CV-11914ADB, 2017 WL 1026416, at *5 (D. Mass. Mar. 16, 2017).
Defendants next submit that the 2016 Internal Memorandum
provides that sales-related pay will not be disbursed if the
employee is terminated.

Assuming that the award at issue is a

protected “commission” under the Act (i.e., that the award was
“earned”), the Court finds that the prescribed withholding of

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earned commissions constitutes a special contract in violation
of the Act. Stanton, 621 F. Supp. 2d at 14.

Moreover, that

contractual term contradicts the terms of Para. 8.1 of the 2013
Plan which provides that an employee who is not terminated for
good cause will be paid his
Individual Quantitative Bonus Award for any complete
quarter of the Plan Year . . . and shall be entitled to any
pro rata Individual Quantitative Bonus Award for any
partial quarter.
Thus, assuming, as plaintiff contends, that sales-related pay
was calculable based on his percentage of sales for work
performed in 2016, such compensation falls within the Act.
Finally, the Court finds that similar to the claims in
Israel, Levesque has sufficiently pled that he earned
commissions on sales that occurred in 2017, prior to his
termination. Israel, No. 15-CV-11914-ADB, 2017 WL 1026416, at *7
(finding that a delay in the final calculation of commissions
does not mean that they fall outside the scope of the Wage Act).
Thus, the fact that the calculation for payment may have
occurred in a quarter after Levesque left defendants’ employment
is immaterial. Id.
Accordingly, the motion to dismiss will be allowed except
as it relates to the $367,000 and $732,000 quantitative awards.

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Case 1:17-cv-12380-NMG Document 42 Filed 03/27/19 Page 22 of 25

c. Retaliation
Defendants contend that there is no evidence that they knew
plaintiff was asserting his rights under the Wage Act.
Court disagrees.

The

Plaintiff has pled facts sufficient to infer

that SIMNA was on notice of his claim for compensation as soon
as he complained to CEO Dasher, his direct supervisor, the chief
of staff for the Asset Management Group and the Head of Human
Resources of the Group, prior to his termination.

Moreover,

defendants’ argument that causation cannot be inferred based on
the temporal proximity between the alleged complaints and the
ultimate termination under Mole is unavailing. Mole v. Univ. of
Massachusetts, 814 N.E.2d 329, 339 (Mass. 2004).
Notwithstanding the fact that the retaliation claim in Mole
did not arise under the Wage Act, plaintiff has met his burden.
He has sufficiently alleged facts that he was an employee in
good standing who raised a compensation claim and was terminated
shortly thereafter. Id. (holding that if adverse action is taken
against a satisfactorily performing employee in the immediate
aftermath of the employer’s becoming aware of the employee’s
protected activity, an inference of causation is permissible);
see also Dorney v. Pindrop Sec., Inc., No. 15-CV-11505-ADB, 2015
WL 5680333, at *5 (D. Mass. Sept. 25, 2015).

Thus, Levesque’s

retaliation claim survives defendants’ motion to dismiss.

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Case 1:17-cv-12380-NMG Document 42 Filed 03/27/19 Page 23 of 25

3. Age Discrimination
a. Choice of Law
As determined previously, this Court finds that the
Commonwealth of Massachusetts maintains the most significant
relationship to this litigation. See Bushkin, 473 N.E.2d at 668–
69.

Accordingly, the Court will apply Massachusetts law.
b. Motion to Dismiss
The Court is satisfied that Levesque has established his

prima facie burden under the Age Discrimination in Employment
Act (“the ADEA”) and M.G.L. c. 151B.

He alleges that 1) he was

60 years of age at the time of his termination, 2) he was
qualified for his position as one of the top two performing
salespersons in his organization, 3) he was actually terminated
and 4) at the time of his termination, his performance was
better than or equal to the performance of younger employees who
were retained and now perform his job. See Del Valle-Santa v.
Servicios Legas De Puerto Rico, Inc., 804 F.3d 127, 129 (1st
Cir. 2015); Coogan v. FMR, LLC, 264 F. Supp. 3d 296, 304 (D.
Mass. 2017) (holding that claims of age discrimination brought
under Chapter 151B and the ADEA track one another closely using
the burden shifting McDonnell framework where there is no direct
evidence of discrimination).
Defendants contest the fourth prong of Levesque’s prima
facie case and argue that because there was a reorganization, he

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Case 1:17-cv-12380-NMG Document 42 Filed 03/27/19 Page 24 of 25

is required to demonstrate that SIMNA retained unprotected or
younger workers “in the same position” as Levesque.

They have

not, however, demonstrated that Levesque must identify specific
individuals who were retained to satisfy this prong, and thus,
plaintiff’s age discrimination claim survives defendants’ motion
to dismiss. Cf. Caputy v. Quad/Graphics, Inc., No. CIV.A. 1414159-FDS, 2015 WL 2208825, at *3 (D. Mass. May 11, 2015)
(finding that the fact that the hospital retained all women
nursing supervisors and discharged the only man is sufficient,
by itself, to raise a reasonable inference that the hospital
discharged the man because of his sex) (internal citations
omitted).

Rather, Levesque’s allegation that younger employees

were retained post-reorganization to perform his duties is
sufficient to state a claim. See id.
Finally, to the extent that defendants refer to their
legitimate, non-discriminatory reason for termination, the Court
notes that the burden shifting McDonnell framework in an ADEA
claim is generally applied at summary judgment, not at the
motion to dismiss stage.

Nevertheless, the Court finds that

Levesque has elucidated specific facts which would enable a jury
to find that the reason given is not only a pretext, but a
pretext intended to cover up the employer’s real motive: age
discrimination. Mesnick, 950 F.2d at 824.

Specifically, the

assertions that 1) SIMNA superiors raised his age as an issue at

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Case 1:17-cv-12380-NMG Document 42 Filed 03/27/19 Page 25 of 25

least five times, 2) Levesque was the only individual terminated
as a result of the reorganization and 3) Levesque was told to
tell co-workers that he intended to retire, all imply age-based
discrimination, even at the final stage of burden shifting.
Accordingly, defendants’ motion to dismiss the ADEA and the
related state law claims will be denied.

ORDER
For the foregoing reasons, defendants’ motion to dismiss
(Docket No. 25) is DENIED with respect to 1) dismissal for lack
of personal jurisdiction, 2) transfer and 3) change of venue,
but is ALLOWED with respect to 1) all contract claims, except
for the $367,000 quantitative award, 2) the quasi-contractual
claims and 3) the Massachusetts Wage Act claims, except as it
relates to the quantitative awards of $367,000 and $732,000.

So ordered.
_/s/ Nathaniel M. Gorton____
Nathaniel M. Gorton
United States District Judge
Dated March 27, 2019

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