Fraize v. Fair Isaac Corporation

Filing 30

ORDER denying 9 Motion to Dismiss for Failure to State a Claim (Amended Complaint). So Ordered by Judge Paul J. Barbadoro. Answer Follow Up on 11/13/2017. (js)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Josh Fraize
v.

Case No. 17-cv-231-PB
Opinion No. 2017 DNH 233

Fair Isaac Corporation
MEMORANDUM AND ORDER
Josh Fraize has sued the Fair Isaac Corporation (FICO), for
breach of contract, breach of the duty of good faith and fair
dealing, a violation of New Hampshire’s wage statute, and
wrongful discharge.

In this Memorandum and Order, I address

FICO’s motion to dismiss Fraize’s wrongful discharge claim.1

I.

BACKGROUND

Fraize worked for FICO as a salesperson from January, 2014
to April, 2017.

His compensation was determined in part by an

annual “Sales Incentive Plan Participation Agreement”
(“Agreement”).

The 2016 and 2017 Agreements provide for

commission percentages that vary based on the extent to which
specified sales targets are met or exceeded.

Revenue generated

FICO also argues that Fraize’s claims should be dismissed
because they are subject to a choice of forum provision
requiring his claims to be brought in Minnesota. I will address
the choice of forum provision in a separate Memorandum and Order
after the parties have completed discovery on the subject and
have submitted supplemental memoranda.
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pursuant to new contracts are rewarded with higher commissions
than sales pursuant to contract renewals under both Agreements,
and the 2017 Agreement also authorizes FICO to reduce a
salesperson’s commissions for “large” sales, i.e., sales that
comprise more than 50% of a salesperson’s annual sales target.
FICO had an established business relationship with Xerox
when Fraize was first assigned to work on the Xerox account in
December 2015.

After months of negotiation, Xerox and FICO

entered into a new contract that yielded substantial additional
revenue for FICO.

Fraize initially received assurances that the

revenue generated by the Xerox contract would be treated as new
sales for commission purposes, but FICO later informed Fraize
that it intended to treat the Xerox contract as a renewal rather
than as new business.

FICO also informed Fraize that the Xerox

contract would be subject to reduced commissions because it
qualified as a “large deal” under the 2017 Agreement even if it
were to qualify as new business.
Fraize complained about his proposed compensation for the
Xerox contract and he was fired in retaliation for pressing his
complaint.

II.

STANDARD OF REVIEW

When evaluating a motion to dismiss under Fed. R. Civ. P.

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12(b)(6), I “accept as true the well-pleaded factual allegations
of the complaint [and] draw all reasonable inferences therefrom
in the plaintiff's favor.”

Martin v. Applied Cellular Tech.,

Inc., 284 F.3d 1, 6 (1st Cir. 2002).

Although the complaint

need not set forth detailed factual allegations, “more than an
unadorned, the-defendant-unlawfully-harmed-me accusation” is
required. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”

Id.

III. ANALYSIS
To maintain a successful wrongful discharge claim under New
Hampshire law, a plaintiff must prove both “that the discharge
was ‘motivated by bad faith, retaliation, or malice’” and “that
the plaintiff was discharged ‘for performing an act that public
policy would encourage or for refusing to do something that
public policy would condemn.’”

Leeds v. BAE Sys., Inc., 165

N.H. 376, 379 (2013)(quoting Karch v. BayBank FSB, 147 N.H. 525,
536 (2002)).

Whether an employee’s acts or refusals to act

further a public policy interest ordinarily is a question of
fact for the jury to resolve.2

Id.

FICO cites Minnesota law but does not present a developed
argument that Fraize’s wrongful discharge claim is governed by
Minnesota law rather than New Hampshire law. Although the
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Fraize alleges a plausible claim that FICO terminated him
in retaliation for his complaint that the company was refusing
to pay him commissions he was entitled to under the Agreements.
Although these allegations appear to state a viable wrongful
discharge claim, FICO nevertheless argues that they are
insufficient because Fraize was pursuing only his personal
interests in recovering his commissions and, therefore, his
alleged protests do not further a public policy interest.

I

disagree.
New Hampshire’s Wage Act makes it a crime for an employee
to withhold wages that are due to an employee.
Stat. § 275:43.

See N.H. Rev.

Whether public policy encouraged an employee’s

actions is “typically a question for the jury to decide,” and
should only be decided by the court when the answer is “clear.”
Frechette v. Wal-Mart Stores, Inc., 925 F. Supp. 95, 98 (D. N.H.
1995).

Here, at the very least, it is not clear that public

policy would not encourage an employee to demand his overdue
wages.

See Tullis v. Merrill, 584 N.W.2d 236, 239 (Iowa Sup.

Ct. 1998) (under Iowa law, there is public policy permitting an

relevant Agreements both contain a choice of law clause stating
that “this Plan will be interpreted and construed in accordance
with and governed by the laws of the State of Minnesota . . .,”
the clause applies only to the Agreements and does not cover
Fraize’s wrongful discharge claim. Accordingly, I evaluate
Fraize’s claim under New Hampshire law.
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employee to demand overdue wages).

Thus, Fraize’s claim is not

deficient for failing to allege that he was terminated because
he undertook an act that public policy would support.
FICO also argues that Fraize’s wrongful discharge claim is
barred by the New Hampshire Supreme Court’s decision in Cilley
v. New Hampshire Ball Bearings, Inc., 128 N.H. 401, 405-406
(1986).

FICO bases its argument on the following language in

the decision:
The plaintiff contends that the company's firing him
for his refusal to give up these improperly withheld
"wages" violates public policy. We conclude that the
argument has no merit. Even if one accepts, for the
sake of argument, that use of company resources for
personal benefit is a "wage" under RSA chapter 275 and
that the "wage" was improperly withheld by the
company, then Cilley is provided with remedies by the
statute, remedies which do not include
insubordination.
Id. at 407.

It then reads this language to mean that a

plaintiff cannot sue if he is discharged for complaining about
his employer’s failure to pay his wages because the wage statue
gives employees a statutory remedy for wrongfully withheld
wages.

See Wenners v. Great State Beverages, Inc., 140 N.H.

100, 103 (1995) (“a plaintiff may not pursue a common law remedy
where the legislature intended to replace it with a statutory
cause of action”).
FICO’s argument is based on a misreading of Cilley.

In

Cilley, the plaintiff was discharged after he engaged in what he
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claimed was a form of self-help to recover wages that allegedly
were owed to him by his employer.

128 N.H. at 405-406.

The

language FICO relies on in Cilley merely concludes that public
policy does not support the use of self-help in such
circumstances because an employee has an available remedy for
withheld wages under the wage statute.

Id.

The New Hampshire

Supreme Court did not say that the legislature intended for the
wage statute to replace the common law action for wrongful
termination.

Because Fraize did not engage in self-help to

recover his commission, his wrongful discharge claim is not
barred by Cilley.

IV.

CONCLUSION

For the reasons set forth in this Memorandum and order, I
deny FICO’s motion to dismiss to the extent that it challenges
the sufficiency of Fraize’s wrongful discharge claim.
SO ORDERED.

/s/Paul Barbadoro
Paul Barbadoro
United States District Judge
October 30, 2017
cc:

James P. Harris, Esq.
Paul DeCarolis, Esq.

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