Watson v. Aegis Communications Group, LLC
Filing
62
ORDER granting in part and denying in part 51 motion for summary judgment Signed on 7/24/14 by District Judge M. Douglas Harpool. (View, Pat)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHWESTERN DIVISION
NICK ALEXANDER WATSON,
Plaintiff,
vs.
AEGIS COMMUNICATIONS
GROUP, LLC and AEGIS USA, INC.,
Defendants.
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Case No. 3:13-cv-05017-MDH
ORDER
Before the Court is Defendants’ Motion for Summary Judgment (Doc. 51). After careful
consideration and for the following reasons, the Court GRANTS in part and DENIES in part
Defendants’ Motion for Summary Judgment (Doc. 51).
BACKGROUND
Plaintiff’s
First
Amended
Complaint
alleges
fraudulent
inducement
and
misrepresentation in employment negotiations (Count I), negligent misrepresentation (Count II),
wrongful termination in violation of public policy (Count III), unjust enrichment (Count IV),
breach of contract (Count V); and false imprisonment (Count VI) against his former employers
Aegis Communications Group, LLC (“ACG”) and Aegis USA, Inc. 1
Aegis USA and ACG operate call centers in various locations around the United States.
Plaintiff began working for ACG in approximately 2009 as a telephone sales representative at its
Joplin, Missouri call center. Plaintiff took a leave of absence in June 2011 from his employment
1
Aegis, USA and Aegis Communications Group, LLC merged effective as of December 31,
2013. Plaintiff was terminated from his employment in 2012.
1
with ACG to participate in a Cross-Shoring Program. The Cross-Shoring program was intended
to be a mutually-beneficial opportunity for employees to obtain additional training and gain
experience living, working and studying abroad, while also offering American clients access to
American employees at a lower cost to clients. ACG permitted volunteer employees who were
selected after an interview and ranking process to take a leave of absence from their jobs at ACG
to participate in the program.
Aegis Aspire operated Aegis Global Academy (“Academy”) in India and contracted with
ACG to operate the Cross-Shoring Program. 2 Specifically, ACG entered a contract with Aegis
Aspire to provide services under the Cross-Shoring Program. The “Master Support Agreement”
was entered into on July 1, 2011 and stated the Company [ACG] requires Support in training and
development of their employees and the Academy [Aegis Aspire] is willing and able to provide
such Support. As set forth in the agreement, Support to be provided by Academy included, but
was not limited to: “providing training and people development support to the employees of the
Company on a residency programme basis, which would include without limitation, following:
(1) class room training; (2) medical facilities; (3) practical training; (4) stipend; (5) mobile phone
allowance; (6) administrative services; (7) transportation; (8) printing and stationary services; (9)
any other auxiliary services.”
Employees from Aegis Aspire prepared materials that described the Cross-Shoring
Program and subsequently sent the materials to ACG management in Texas to be used to
introduce the program to ACG employees. ACG management then created and distributed a
basic flyer, based on materials and information provided by Aegis Aspire, to local HR managers
at call centers around the United States, including Joplin, Mo. The flyer promised participants a
2
Aegis Aspire is an Indian entity. It is unclear from the record provided whether Aegis Aspire
has common management or ownership with Defendants.
2
$100 monthly allowance and that participants would receive a $2,000 savings payment at the end
of the program period. The flyer also stated “Aegis will pay for your fully furnished room and
board…” The flyer references “Aegis” several times but does not identify a specific Aegis
entity.
The Cross–Shoring program was a one year program that took place in India. ACG
provided transportation to and from India. Aegis Aspire provided the meals, lodging, internet
access, pre-paid cellular phone, Indian-based health insurance and transportation in India. Aegis
Aspire provided the $100 per month stipend to cover miscellaneous expenses and also provided
the educational component to the participants through a contract it had with Cornell University.
Participants who completed the program in good standing were informed they would receive a
complimentary Indian vacation excursion from Aegis Aspire.
ACG informed participants they would receive a $2,000 pre-tax bonus at the end of the
program period and would return to a position with ACG in the United States. Plaintiff’s leave
of absence agreement stated “provided Employee has successfully completed the one year study
program and has remained in good standing throughout such one year period, Employee’s return
to work at Aegis and Employee’s employment with Aegis will be reinstated as if he had never
left employment with Aegis.” If the participant did not complete the program the bonus would
be retained by ACG to cover the cost of the participant’s travel to and from India. 3
Plaintiff saw a flyer posted on a cork board at the Joplin call center and applied for the
program. He was initially turned down, but then later was accepted at which time he informed
the company he still wanted to participate. After Plaintiff indicated his desire to participate, he
3
The parties dispute a “good standing” requirement to receive the $2,000 pre-tax bonus at the
end of the program period. However, it is uncontroverted that the contract stated “Instead, the
bonus would be retained by ACG to cover the cost of the participant’s travel to and from India.”
(Doc. No. 57, p. 10, # 39.).
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had a short phone call with ACG’s liaison for the program in which Plaintiff was able to ask any
questions he had. He also participated in several round table discussions regarding the program
in which he had the opportunity to ask questions. Plaintiff spoke with individuals from ACG and
Aegis Aspire about the program before he left for India. Plaintiff went to Texas in May 2011
and was further trained for the program. Before leaving for India, Plaintiff participated in
several round table discussions about the Cross-Shoring program. Plaintiff signed a leave of
absence agreement with ACG on June 29, 2011
While participating in the Cross-Shoring Program, the participants were required to work
in an Indian call center. Plaintiff voiced complaints to the HR manager in ACG’s Joplin call
center while he was in India regarding the Cross-Shoring program. Plaintiff’s complaints were
forwarded to ACG’s Vice President of Human Resources, and ACG’s liaison for the CrossShoring program – both of whom were in Texas. Plaintiff’s complaints mainly included the
issues with regard to the pay and food, but he also complained about the living conditions. The
Head of Operations in Bangalore met with the participants of the Cross-Shoring Program to
address complaints. Thereafter, at some point in time, Plaintiff informed his supervisors that he
would not continue to work until they responded further to his complaints. Plaintiff remained in
India but did not work for approximately six or seven weeks. After that time Aegis Aspire
decided to terminate him from the Cross-Shoring program and sent him home.
Plaintiff was terminated from the Cross-Shoring Program in approximately May 2012.
Aegis Aspire informed ACG of its decision and obtained authorization from ACG to purchase
Plaintiff’s return airplane ticket, since ACG was responsible for that cost. Plaintiff was given an
envelope of travel paperwork by the Dean of the Academy and taken to the airport by bus.
Plaintiff alleges he was missing part of his immigration paperwork and was prevented from
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boarding the flight. As such, Plaintiff stayed in a nearby hotel until he was able to leave India
within 48 hours. ACG terminated Plaintiff upon his return from India.
STANDARD OF REVIEW
Summary judgment is proper if, viewing the record in the light most favorable to the nonmoving party, there is no genuine dispute as to any material fact and the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp., v. Catrett, 477 U.S. 317,
322-23 (1986). The moving party is entitled to summary judgment as a matter of law if they can
establish there is “no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247 (1986). Once the moving party has established a properly supported motion for
summary judgment, the non-moving party cannot rest on allegations or denials but must set forth
specific facts showing that there is a genuine issue for trial. Id. at 248.
A question of material fact is not required to be resolved conclusively in favor of the
party asserting its existence. Rather, all that is required is sufficient evidence supporting the
factual dispute that would require a jury to resolve the differing versions of truth at trial. Id. at
248-249. Further, determinations of credibility and the weight to give evidence are the functions
of the jury, not the judge. Wierman v. Casey’s General Stores, et al., 638 F.3d 984, 993 (8th Cir.
2011).
DISCUSSION
A.
Negligent and Fraudulent Misrepresentation – Counts I-II.
1.
Negligent Misrepresentation.
The elements of a claim for negligent misrepresentation are : (1) the speaker supplied
information in the course of his business; (2) because of a failure by the speaker to exercise
reasonable care, the information was false; (3) the information was intentionally provided by the
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speaker for the guidance of a limited group of persons in a particular business transaction; (4) the
listener justifiably relied on the information; and (5) due to the listener’s justified reliance on the
information, the listener suffered a pecuniary loss. Ryann Spencer Group Inc. v. Assurance
Company of America, 275 S.W.3d 284, 288 (Mo. App. 2008).
Simply put, to maintain a claim for negligent misrepresentation, plaintiff must establish
that due to a failure to exercise reasonable care, Defendant made false statements that plaintiff
justifiably relied upon to his detriment. Baum v. Helget Gas Products, Inc., 440 F.3d 1019, 1023
(8th Cir. 2006); citing, Collins v. Mo. Bar Plan, 157 S.W.3d 726, 734 (Mo. App. 2005). A
negligent misrepresentation claim cannot arise solely from evidence that the defendant did not
perform according to a promise or statement of future intent. Id.
2.
Fraudulent misrepresentation
To state a claim for fraudulent misrepresentation, plaintiff must prove (1) a false, material
representation; (2) the speaker’s knowledge of its falsity or his ignorance of its truth; (3) the
speaker’s intent that it should be acted upon by the hearer in a manner reasonably contemplated;
(4) the hearer’s ignorance of the falsity of the representation; (5) the hearer’s reliance on its truth;
(6) the hearer’s right to rely thereon; and (7) the hearer’s consequent and proximately caused
injury. Bohac v. Walsh, 223 S.W.3d 858, 862-863 (Mo. App. 2007). “It is well-settled that an
unkept promise does not constitute actionable fraud unless it is accompanied by a present intent
not to perform.” Urologic Surgeons, Inc. v. Bullock, 117 S.W.3d 722, 726 (Mo. App. 2003).
Further, statements, representations, or predictions about an independent third party’s future acts
do not constitute actionable misrepresentation. Massie v. Colvin, 373 S.W.3d 469, 472 (Mo.
App. 2012).
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Both of Plaintiff’s claims for misrepresentation are based on whether Defendants made
materially false statements about the Cross-Shoring program upon which he relied in making his
decision to participate in the program.
Plaintiff claims Defendants made the following
representations: (1) he would receive $100 per month to cover miscellaneous expenditures; (2)
he was shown a video of an apartment and told the video was an accurate representation of the
room he would stay in; (3) he was told he would receive three meals a day; (4) he was told he
would work similar shifts in India to those he worked in Missouri; (5) he was told he would have
$2,000 put into a savings account in his name at the end of the program; and (6) he would be
promoted to supervisor upon completion of the program.
First, Defendants argue that any actions taken by Aegis Aspire, the owner and operator of
the Academy, are independent of, and not subject to the control of ACG or Aegis USA and
therefore Defendants cannot be held liable for any representations made regarding the CrossShoring program. However, based on the record before the Court, a question of fact exists
regarding the independence of Aegis Aspire and/or the Academy from the Defendants. The
Defendants’ continued involvement with the participants in the Indian program, including their
involvement with Plaintiff’s complaints while he was in India, creates questions of fact with
regard to their “independence” from the program. Further, the terms of the contract between
ACG and Aegis Aspire, the evidence regarding the interaction between Plaintiff and individuals
from both companies during his training, and the information contained in the flyer Plaintiff
reviewed further present genuine issues of material fact regarding Plaintiff’s claims and in
particular the relationship between ACG and Aegis Aspire.
Plaintiff’s First Amended Complaint alleges that “all individually described perpetrators
were agents, servants, and employees of defendant ACG and were at all times acting within the
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scope and course of their agency and employment…” Plaintiff has shown sufficient facts that a
jury might be persuaded by his theory of respondeat superior and agency (whether by authorizing
or ratifying the actions of Aegis Aspire or being liable for them on a theory of joint venture or
other theory of agency). Therefore, Defendants’ Motion for Summary Judgment on Plaintiff’s
negligent misrepresentation claim is denied.
Next, Defendants argue that they did not make any statements to Plaintiff that they knew
were false at the time they were made. As set forth herein, in order to give rise to fraud, a
promise of future performance must be accompanied by a speaker’s present intent not to
perform. Look at Trotters Corp., v.Ringleader Rests., 929 S.W.2d 935, 940 (Mo. App. 1996);
Stevens v. Markirk Const. Inc., 2014 WL 211466 (Mo.App. Jan. 21, 2014). However, as set
forth above, a genuine issue of material fact exists with regard to the independence of ACG and
Aegis Aspire with regard to any statements made to Plaintiff. This alone creates a genuine issue
of material fact to preclude summary judgment.
If ACG is liable for Aegis Aspire’s
misstatements then knowledge by Aegis Aspire of the falsity of the representations may also be
imputed to ACG.
Further, even if a jury were to find Defendants are independent of the Indian entities, and
not liable for representations of the Indian entities, Plaintiff has provided enough evidence to
create a question of material fact with regard to whether Defendants exercised reasonable care in
making the statements about the Cross-Shoring program now alleged to be false and what
information they knew about the program when promoting it. For these reasons, summary
judgment on Counts I-II of Plaintiff’s First Amended Complaint is denied.
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B.
Wrongful Termination/Whistleblower – Count III
In this case, it is undisputed that Plaintiff was an employee at will. 4 An employer may
generally terminate an at-will employee “for any reason or for no reason.”
Margiotta v.
Christian Hospital Northeast North-West, 315 S.W.3d 342, 344 (Mo. 2010).
However,
exceptions to this doctrine exist. An employer cannot terminate an at-will employee for being a
member of a protected class, such as “race, color, religion, national origin, sex, ancestry, age or
disability.” Id. In addition, Missouri recognizes the public-policy exception to the at-will
doctrine. Id.
The public policy, also known as the wrongful discharge, doctrine is very narrowly
drawn. Id. In a submissible whistleblower claim, the plaintiff must establish that he reported a
violation of law or well-established and clearly mandated public policy to his supervisors or to
legal authorities, that the employer then discharged him, and that there is a direct causal
connection between the protected activity (the whistleblowing) and the discharge.” Holmes v.
Kansas City Missouri Bd. of Police Com'rs ex rel., 364 S.W.3d 615 (Mo.App. W.D. 2012).
Further, a wrongful discharge claim must be based on a constitutional provision, a statute,
a regulation based on a statute, or a rule promulgated by a governmental body. Margiotta v.
Christian Hospital Northeast North-West, 315 S.W.3d at 346. Absent such explicit authority, the
wrongful discharge fails as a matter of law. Id.
Plaintiff bases his claim for wrongful termination on three statutes – R.S.Mo. § 290.502
which states an “employer shall pay to each employee wages at the rate of $6.50 per hour…”;
R.S.Mo. § 290.080 which states “corporations doing business in this state… shall pay wages and
4
Neither party has provided any evidence that Plaintiff was not an employee at will and in
Missouri the at-will employment doctrine is well-established. Johnson v. McDonnell Douglas
Corp., 745 S.W.2d 661 (Mo. 1988). Absent an employment contract an employment at will is
created. Luethans v. Washington University, 849 S.W.2d 169 (Mo. 1995).
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salaries of their employees as often as semimonthly, within sixteen days of the close of each
payroll period…” and R.S.Mo. § 566.206 which states “a person commits the crime of
trafficking for the purposes of … forced labor if a person knowingly recruits, entices, harbors,
transports, provides, or obtains by any means, including but not limited to… force, deception…
or threatening to cause financial harm, another person for labor services.”
First, with regard to §§ 290.502 and 290.080, plaintiff claims he made multiple reports to
his supervisors that he was being uncompensated for his labor. However, Plaintiff’s complaints
about compensation concerned the $100 stipend that was explained in the program’s flyer.
There is no evidence, let alone allegation, that Plaintiff complained about the minimum wage or
payment under Missouri’s minimum wage statutes. In addition, the Missouri statutes cited by
Plaintiff in his Complaint provide specific guidelines for the payment of minimum wage in
Missouri and the timing of paychecks for employees of corporations doing business in Missouri.
The Missouri Supreme Court has stated with regard to the alleged violation that the
pertinent inquiry is whether the authority cited by the plaintiff clearly prohibits the conduct at
issue. Margiotta v. Christian Hospital Northeast North-West, 315 S.W.3d at 347. Plaintiff has
testified he did not believe the Missouri minimum wage laws applied to his work in India. While
this alone is not dispositive, coupled with the fact that the statutes did not in fact apply to
Plaintiff’s work in India, that Plaintiff knew he was going to India for training and was to only be
given a monthly stipend and no other wages, there is no evidence of Defendants actual violations
of the Missouri statutes. The Court holds Plaintiff’s wrongful termination claims based on §§
290.502 and 290.080 fail as a matter of law and grants Defendants’ summary judgment on these
two claims.
The third statute cited by Plaintiff is a criminal statute, § 566.206, which states:
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A person commits the crime of trafficking for the purposes of slavery, involuntary
servitude, peonage, or forced labor if a person knowingly recruits, entices,
harbors, transports, provides, or obtains by any means, including but not limited
to through the use of force, abduction, coercion, fraud, deception, blackmail, or
causing or threatening to cause financial harm, another person for labor or
services, for the purposes of slavery, involuntary servitude, peonage, or forced
labor, or benefits, financially or by receiving anything of value, from
participation in such activities. (emphasis added)
Plaintiff argues the Defendants were “dishonest” in their recruiting efforts which “forced”
Plaintiff to work in India. In essence Plaintiff argues he was enticed by deception and fraud into
labor in an Indian call center and that ACG stood to financially benefit. While Defendants
dispute that Plaintiff made any complaints regarding this alleged violation, Plaintiff has provided
enough evidence to create a material question of fact with regard to this claim. Plaintiff has
alleged he was misled about the purpose of the trip to India, was deprived of food and clean
water, and was given inadequate housing. Plaintiff claims he made complaints about these, and
other issues, to his supervisors in India and to ACG supervisors back in the United States. There
is evidence Defendants were aware of Plaintiff’s complaints at the time of his termination and
for these reasons, Plaintiff has provided enough evidence to create a genuine issue of material
fact for the jury.
The Court denies summary judgment on Plaintiff’s claim for wrongful
discharge based on reporting violations of R.S.Mo. § 566.206.
C.
Unjust Enrichment - Count IV
“An unjust enrichment has occurred where a benefit was conferred upon a person in
circumstances in which the retention of the benefit, without paying its reasonable value, would
be unjust.” S & J, Inc. v. McLoud & Co. LLC., 108 S.W.3d 765, 768 (Mo.App. 2003). A claim
for unjust enrichment has three elements: (1) a benefit conferred by a plaintiff on a defendant; (2)
the defendant's appreciation of the fact of the benefit; and (3) the acceptance and retention of the
benefit by the defendant under circumstances in which retention without payment would be
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inequitable. Hertz Corp. v. RAKS Hospitality, Inc., 196 S.W.3d 536, 543 (Mo.App. 2006).
Demonstrating unjust retention of the benefit is the most significant element of unjust
enrichment and also the most difficult to establish. Executive Bd. of Mo. Baptist Convention v.
Windermere Baptist Conference Ctr., 280 S.W.3d 678, 697 (Mo.App. W.D.2009). “Mere receipt
of benefits is not enough, absent a showing that it would be unjust for the defendant to retain the
benefit.” Id.
Plaintiff claims Defendants were enriched by his labor provided in the Cross-Shoring
program in India. Specifically, Plaintiff argues Defendants received a benefit at Plaintiff’s
expense of at least $19.25 per hour. The essence of unjust enrichment is that the defendant has
received a benefit that it would be inequitable for him to retain. Pitman v. City of Columbia, 309
S.W.3d 395, 403 (Mo.App. W.D.2010). Here, it is unclear where this amount of alleged benefit
is derived from. Plaintiff participated in a Cross-Shoring program in which the terms included
receiving a $100 stipend, housing, meals, training courses through Cornell University, in
exchange for his work at the call center in India. There is no evidence that Defendants were
unjustly enriched by this arrangement. Plaintiff may ultimately demonstrate Defendants got the
better end of the bargain but that falls short of proving unjust enrichment. Defendant’s summary
judgment motion with regard to Count IV is sustained.
D.
Count V – Breach of Contract
Plaintiff concedes in his response that his breach of contract claim fails as a matter of
law. (Doc. 57 p. 47). Plaintiff states that “the statute of frauds renders the alleged contract
nonexistent.” Therefore, based on Plaintiff’s concession, the Court grants summary judgment on
the breach of contract claim contained in Count V of Plaintiff’s complaint in favor of Defendant.
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E.
Count VI – False Imprisonment
The elements of false imprisonment are the detention or restraint of an individual against
his will, coupled with the unlawfulness of the detention. Hyatt v. Trans World Airlines, Inc., 943
S.W.2d 292, 299 (Mo. App. 1997). It is essential to establish a claim for false imprisonment that
plaintiff show the restraint imposed on him was “total and not merely an obstruction of his right
to go where he pleased.” Id. Plaintiff’s claim of false imprisonment is based on the allegation
that Defendants’ “agents” did not give him all the necessary paperwork for leaving India.
Plaintiff claims that he was not able to fly home upon his initial arrival at the airport because he
did not have his paperwork. However, Plaintiff admits he was able to leave the airport at any
time, actually went to a hotel and then flew home within 48 hours. Therefore, Plaintiff cannot
show the alleged “restraint” was complete. Plaintiff was free to exit the airport and free to leave
India once the paperwork was resolved.
Plaintiff has provided no evidence of false
imprisonment and Defendants’ Motion for Summary Judgment on Count VI is granted. 5
CONCLUSION
Wherefore, Defendants Motion for Summary Judgment (Doc. No. 51) is GRANTED in
part and DENIED in part, as described herein.
IT IS SO ORDERED.
DATED:
July 24, 2014
/s/ Douglas Harpool_________________
DOUGLAS HARPOOL
UNITED STATES DISTRICT JUDGE
5
Defendants also argue that Missouri law should not apply to the alleged false imprisonment as
it occurred in India. The Court has not addressed that issue since it has held Plaintiff has no
cause of action for that claim.
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