IRWIN v. FEDERAL EXPRESS CORPORATION

Filing 70

MEMORANDUM OPINION AND ORDER. Signed by JUDGE THOMAS D. SCHROEDER on 12/5/2016, that Irwin's motion for partial summary judgment (Doc. 58 ) on his breach of contract and WHA claims is DENIED. FedEx's motion for summary judgment (D oc. 56 ) is GRANTED IN PART and DENIED IN PART, as follows: FedEx's motion is GRANTED with respect to Irwin's claims for common law fraud (count 4), violations of the WHA (counts 2 and 6), and violations of the UPTPA (count 3), and those claims are therefore DISMISSED; FedEx's motion is DENIED with respect to Irwin's breach of contract claims (counts 1 and 5), which shall proceed as the remaining claims for trial. (Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DAVID IRWIN,
Plaintiff,
v.
FEDERAL EXPRESS CORPORATION,
Defendant.

)
)
)
)
)
)
)
)
)

1:14-cv-00557

MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
This case involves multiple claims by David Irwin arising
from the termination of his employment by Defendant Federal Express
Corporation
judgment.

(“FedEx”).

Both

parties

have

moved

for

summary

Irwin seeks summary judgment on his claims for breach

of contract and violations of the North Carolina Wage and Hour Act
(“WHA”), N.C. Gen. Stat. § 95-25.1 et seq.

(Doc. 56.)

FedEx seeks

summary judgment on all of Irwin’s claims, which also include
claims for violations of North Carolina’s Unfair and Deceptive
Trade Practices Act (“UDTPA”), N.C. Gen. Stat. § 75-1.1, and common
law fraud.

(Doc. 58.)

For the reasons set forth below, the court

will grant FedEx’s motion as to Irwin’s claims under the UDTPA,
the WHA, and for common law fraud.

Because a genuine dispute of

material fact exists as to the breach of contract claims, the
parties’ cross motions for summary judgment will be denied.

I.

BACKGROUND
The parties have submitted an extensive record.

In short, it

reflects the following:
In 1999, FedEx acquired an air freight forwarding company
then renamed Caribbean Transportation Services (“CTS”).
¶ 5; Doc. 57-2 at 6.)

(Doc. 7,

Irwin was one of CTS’s three officers and,

after the acquisition, became its senior vice president.

(Doc. 7,

¶ 5; Doc. 57-2 at 6.)
Around June 1, 2009, FedEx merged with CTS, turning CTS into
a division of FedEx, now named FedEx Latin America.
5-6.)

(Doc. 57-2 at

As a result of the merger, many positions were eliminated

— including Irwin’s.

(Doc. 7, ¶ 6.)

Irwin began negotiating a

severance package with FedEx but stopped when the president of
FedEx Latin America persuaded him to remain employed as managing
director of Caribbean operations.

(Id.)

In late 2012, FedEx sought to reduce costs and announced a
voluntary buyout program – which it shorthanded as “VBO” - to be
offered to selected employees.
3; Doc. 63-4 at 1-67.)
FedEx

offered,

and

(Doc. 57-7 at 12; Doc. 57-8 at 1-

As part of that program, in February 2013,
Irwin

signed,

a

“Confidential

Severance

Agreement General Release and Waiver” (the “Agreement”).
63-4 at 61-67.)

(Doc.

He signed this Agreement after his supervisor,

Julio Columba, told him that FedEx “would likely be going through
a restructuring process” and that Irwin’s employment “may be in
2

immediate jeopardy if the agreement was not signed.”

(Doc. 7,

¶ 8; Doc. 63-1 at 11-12.)
Under the Agreement, Irwin made several promises, including
to continue working for FedEx until November 30, 2013, and not to
compete against the company for one year following the end of his
employment.

(Doc. 63-4 at 61-66.)

“[I]n return for [Irwin’s]

promises contained in this Agreement,” FedEx agreed, among other
things, to pay him “severance benefits” of approximately $275,000
(comprising a $199,041.23 lump sum severance benefit, a $25,000
health

reimbursement

account

payment,

an

annual

incentive

compensation (“AIC”) bonus of $10,486, and a $40,000 prorated long
term incentive payment). 1

(Doc. 7, ¶¶ 8, 14; Doc. 63-4 at 61-62.)

The Agreement contained a provision that permitted Irwin to revoke
the Agreement before the expiration of seven days, and further
stated that “[o]nly when the revocation period has expired and the
Agreement has been fully executed by both parties will the special
severance payment be made by FEDEX as set forth in the Agreement.”
(Doc. 63-4 at 67.)

The Agreement also provided in section 13(n):

“[I]f after executing this Agreement, but prior to the effective
date, [Irwin] engages in conduct or has performance deficiencies
that would normally result in termination, he will be terminated

1

The AIC and long term incentive amounts are not set forth in the
Agreement but are based on Irwin’s calculations. Irwin has since updated
these figures to be $21,023.71 for the AIC bonus and $90,000 for the
long term incentive bonus. (Doc. 58-8 at 3.)

3

and his Agreement will be null and void.”

(Id. at 66.)

The

Agreement did not define what conduct would “normally result in
termination.”

(Id.; Doc. 7, ¶ 19.)

After the seven-day expiration period, FedEx Senior Vice
President Connie Lewis Lensing sent Irwin a letter dated February
25,

2013,

stating,

“This

confirms

your

signed

Confidential

Severance Agreement General Release and Waiver has been accepted.
Your assigned departure date is November 30, 2013.”

(Doc. 63-4 at

68.)
Later, in the summer of 2013, FedEx invited Irwin to end his
employment on August 31, 2013, rather than on November 30, 2013,
as provided in the Agreement.

(Doc. 63-6 at 7-8.)

Irwin was told

that this request came because of FedEx’s desire “to get further
savings from the VBO.”

(Doc. 58-5 at 4.)

Irwin claims he was

told that “if he accepted the offer, his Employment Agreement would
be honored.”

(Doc. 7, ¶ 9.)

Irwin declined the invitation, to

ensure that the management transition “went smoothly.”

(Doc. 63-

6 at 9.)
On October 31, 2013, Irwin’s manager asked him to attend a
meeting the next day, which Irwin thought could be for a retirement
party.

(Doc. 7, ¶ 10.)

As it turned out, that next day Irwin was

told that he was being suspended, but was not told why.
1 at 6.)

(Doc. 57-

Roughly two weeks later, on November 14, Irwin was called

into the office to meet with internal company auditors.
4

(Doc. 7,

¶ 11; Doc. 57-3 at 7.)

The auditors asked him about company

operations occurring roughly five years earlier.

(Doc. 7, ¶ 11.)

Irwin explained that he was not involved in the matters they
raised.

(Id.)

Shortly thereafter, on November 27, 2013, FedEx informed
Irwin that he would be terminated, effective November 29, 2013,
and that the Agreement was “null and void in its entirety.”
57-4 at 49; Doc. 58-1 at 3; Doc. 63-6 at 25-26.)

(Doc.

Irwin says that

FedEx did not cite any “facts or evidence” for terminating him or
for declaring the Agreement void (Doc. 7, ¶ 13), although he claims
the company ultimately relied on the above-quoted section 13(n) of
the Agreement (id., ¶ 18).

Irwin denies ever having engaged in

conduct that would “normally result in termination” under the terms
of the Agreement.

(Id., ¶¶ 19–20; Doc. 58-8 at 3.)

Irwin sought to review the evidence supporting his alleged
misconduct so that he could respond, because he had so far carried
“an unblemished record, with no prior warnings or write-ups of any
kind.”

(Doc. 7, ¶ 15.)

FedEx refused, and Irwin filed internal

appeals, which FedEx denied.

(Doc. 57-4 at 54.)

According to

Irwin, had he worked one more day, he would have been entitled to
$275,000 in severance compensation under the Agreement.

(Doc. 7,

¶ 14.)
Irwin alleges that he has honored all of his obligations under
the Agreement and that FedEx has wrongfully refused to honor its
5

obligations.

(Id. ¶ 21.)

He filed this lawsuit initially in the

Superior Court of Guilford County, North Carolina.
1.)

(Doc. 1-2 at

FedEx removed the action to this court based on diversity

jurisdiction.

(Doc. 1.)

The complaint, following this court’s

ruling on a prior motion to dismiss (Doc. 14), now contains six
claims

for

relief:

two

claims

for

breach

of

the

employment

contract; two claims for violations of North Carolina’s WHA; one
claim for violation of North Carolina’s UDTPA; and one claim for
common law fraud.
II.

ANALYSIS
Summary

judgment

is

appropriate

where

the

pleadings,

affidavits, and other proper discovery materials demonstrate that
no genuine dispute as to any material fact exists 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, 322-33 (1986).

The

party seeking summary judgment bears the burden of initially
demonstrating the absence of a genuine dispute as to any material
fact.

Celotex, 477 U.S. at 323.

If this burden is met, the

nonmoving party must then affirmatively demonstrate a genuine
dispute of material fact which requires trial.

Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

There

is no issue for trial unless sufficient evidence favoring the
nonmoving party exists for a factfinder to return a verdict for
that party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 2496

50, 257 (1986).
In addition, the nonmoving party is entitled to have the
“credibility of his evidence as forecast assumed, his version of
all that is in dispute accepted, [and] all internal conflicts in
it resolved favorably to him.”

Metric/Kvaerner Fayetteville v.

Fed.

197

Ins.

Co.,

403

F.3d

188,

(4th

Cir.

2005)

(quoting

Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979))
(initial quotation marks omitted). Because there are cross motions
for summary judgment, the court must be careful to apply this test
to each motion, thus viewing the evidence in the light most
favorable to the non-moving party.
A.

Contract Claims

The parties dispute whether FedEx entered into a bilateral
contract

with

Irwin

or,

alternatively,

whether

FedEx

made

a

unilateral offer of payment to him in exchange for his performance
of continued employment.

In addition, even if either of the

foregoing were to be proved, the parties dispute whether FedEx’s
termination of Irwin constituted a breach.

The parties seem to

agree, however, that in the absence of any contract between them,
FedEx was free to terminate Irwin as an at-will employee.
1.

Contract Formation

Irwin argues that the Agreement is binding under alternative
legal theories: as a unilateral contract that was accepted by his
performance (Doc. 59 at 8), and as a bilateral contract that FedEx
7

agreed to (Doc. 63 at 20).

FedEx argues that the Agreement is a

bilateral contract that is not binding because the company never
executed it, and that Irwin’s claims fail even under a unilateral
contract theory because as the offeror, FedEx was free to withdraw
the offer before its effective date.
Because

this

case

is

based

(Doc. 57 at 24-25.)
on

the

court’s

diversity

jurisdiction, the choice of law rules of the forum state apply.
Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 495–97 (1941).
For a contract claim, North Carolina’s choice of law rule is lex
loci contractus - the law of the place where the contract was
formed.

Fortune Ins. Co. v. Owens, 351 N.C. 424, 428, 526 S.E.2d

463, 466 (2000).

A contract is formed at the “place at which the

last act was done by either of the parties essential to a meeting
of the minds.”

Key Motorsports, Inc. v. Speedvision Network, LLC,

40 F. Supp.2d 344, 347 (M.D.N.C. 1999) (quoting Fast v. Gulley,
271 N.C. 208, 212, 155 S.E.2d 507, 510 (1967)).
Here, the parties negotiated the Agreement in North Carolina,
where Irwin signed it and where it was allegedly accepted either
through

confirmatory

communications

to

Irwin

(if

a

bilateral

contract) or by his performance (if a unilateral contract).

Thus,

the court will apply North Carolina law, as have the parties. 2

2

The Agreement provides that it “will be construed and interpreted in
accordance with the laws of the State of Tennessee exclusive of its
conflict of law provisions.” (Doc. 63-4 at 66.) While North Carolina
law recognizes a choice of law provision in a contract as long as the
parties had “a reasonable basis for their choice and the law of the

8

For a valid contract to exist under North Carolina law, the
three elements of offer, acceptance, and consideration must be
present.

Cap Care Grp., Inc. v. McDonald, 149 N.C. App. 817, 822-

23, 561 S.E.2d 578, 582 (2002).

“[P]arties may become bound by

the terms of a [written] contract, even though they do not sign
it, where their assent is otherwise indicated.”

Barnhouse v. Am.

Exp. Fin. Advisors, Inc., 151 N.C. App. 507, 512, 566 S.E.2d 130,
133-34

(2002)

(citations

omitted).

“The

parties’

intentions

control [whether a contract exists,] and their intentions can be
discerned from both their writings and actions.”

Arndt v. First

Union Nat’l Bank, 170 N.C. App. 518, 522, 613 S.E.2d 274, 277-78
(2005) (upholding jury verdict in favor of the employee on his

chosen State does not violate fundamental public policy of the state or
otherwise applicable law,” Federated Fin. Corp. of Am. v. Jenkins, 215
N.C. App. 330, 333-36, 719 S.E.2d 48, 51-53 (2011), neither party cites
or challenges the application of this provision even though FedEx has
its principal place of business in Tennessee. (Doc. 5, ¶ 2.) Similarly,
the Agreement contains a forum selection clause limiting any action to
the State or federal courts in Shelby County, Tennessee. (Doc. 63-4 at
66.) Neither party has addressed this provision, either. Presumably,
Irwin prefers the present forum and North Carolina law, and FedEx does
not seek to rely on the Agreement because it contends the contract was
never executed.
Because the parties do not seek to rely on such
provisions, the court deems them waived for present purposes. Guerry
v. Am. Trust Co., 234 N.C. 644, 647-48, 68 S.E.2d 272, 275 (1951)
(recognizing that waiver of contract provision may be inferred from
conduct indicating intent to abandon it); Cargill, Inc. v. Charles Kowsky
Res., Inc., 949 F.2d 51, 55 (2d Cir. 1991) (finding waiver of
Massachusetts choice of law provision where both parties consistently
relied on New York law in summary judgment submissions).
Even if
Tennessee substantive law applied, North Carolina law would still govern
the question of contract formation. See Maddy v. Gen. Elec. Co., 80 F.
Supp. 3d 544, 549 (D.N.J. 2015) (finding that New York choice of law
provision addressed substantive law but Texas law applied to contract
formation).

9

contract claim because the issue of whether an oral contract for
payment of bonuses was formed was question of fact for the jury);
Walker v. Goodson Farms, Inc., 90 N.C. App. 478, 369 S.E.2d 122
(1988) (finding that an offer letter, coupled with the parties’
conduct, was persuasive evidence of formation of a contract, even
though

the

parties

failed

to

draft

a

formal

final

written

agreement; lack of a written contract did not preclude creation of
an enforceable agreement).

“Whether mutual assent is established

and whether a contract was intended between parties are questions
for the trier of fact.”

Nationwide v. Mnatsakanov, 191 N.C. App.

802, 805, 664 S.E.2d 13, 15 (2008) (citations omitted); see also
Arndt, 170 N.C. App. at 523, 613 S.E.2d at 278 (“Whether a contract
existed is a question for the jury.”).
For the reasons that follow, it is apparent that irrespective
of Irwin’s legal theory, neither he nor FedEx is entitled to
summary judgment on the contract claims.
The

terms

of

the

Agreement

indicate

that

Irwin’s

consideration went well beyond his performance through continued
employment and included several promises. For example, in sections
12 and 13, Irwin promised to waive any legal claims he could have
asserted against FedEx as of the effective date of the Agreement;
consented

to

various

no-compete

provisions;

consented

to

confidentiality provisions; and agreed “not to do or say anything
that reasonably may be expected to have the effect of disparaging
10

FedEx.”

(Doc. 63-4 at 62-66.)

Thus, the Agreement has hallmarks

of a bilateral contract under North Carolina law.

Winders v.

Kenan, 161 N.C. 628, 628, 77 S.E. 687, 689-90 (1913). 3
Irwin clearly accepted the Agreement, indicating his intent
to be bound by the promises therein, as he signed it in February
2013.

(Doc. 63-4 at 67.)

But to prove that the parties entered

into a bilateral contract, he has to show that FedEx made promises
in consideration for his obligations under the Agreement.

White

v. Hugh Chatham Mem. Hosp., 97 N.C. App. 130, 131, 387 S.E.2d 80,
81 (1990) (explaining that bilateral contracts are based upon
mutual promises).

FedEx argues that it made no such promises, as

it never assented to the Agreement because it never signed it.
(Doc. 57 at 19-25.)

FedEx points to the Agreement’s definition of

“effective date” as “the date it is fully executed by both parties,
which is [Irwin’s] departure date.”

(Doc. 63-4 at 61.)

FedEx

argues that this language is unambiguous and that the Agreement by
its terms never went into effect.

(Doc. 57 at 21.)

FedEx also

cites the literature it provided employees about the VBO program
that states that “the agreement is not fully executed until the
company signs as well.”

(Id. at 10-11.)

Without a contract, FedEx

argues, Irwin remained an at-will employee who could be terminated

3

This is also true under Tennessee law. Rode Oil Co. v. Lamar Advert.
Co., No. W200702017COAR3CV, 2008 WL 4367300, at *6-8 (Tenn. Ct. App.
Sept. 18, 2008).

11

at any time.

(Id. at 19.)

Irwin argues that even if FedEx did not sign the Agreement,
it manifested assent through its conduct.

He cites the letter to

him from a FedEx vice president confirming that the Agreement had
been

“accepted”

(Doc.

63-4

at

68);

a

FedEx

PowerPoint

slide

explaining that severance buyout contracts would be “guaranteed”
after they were “accepted” (Doc. 63-7 at 18 (“Nothing is guaranteed
until the process is complete and we have accepted your agreement
for a buyout.”)); and an email from an employee in FedEx’s human
resources department that Irwin’s Agreement had been “executed”
(Doc. 63-7 at 13).

Irwin also argues that FedEx’s attempt to have

him leave the company in August 2013, earlier than the Agreement’s
date of November 30, 2013, shows that a binding agreement existed.
(Doc. 63 at 22.)
notice

he

In addition, Irwin points to the termination

received

participation

in

–

the

in
VBO

particular,
program

was

its

statement

“null

and

that

void

in

his
its

entirety . . . [p]ursuant to the terms of the Voluntary Buyout,”
language that tracks that of section 13(n) of the Agreement - as
evidence that FedEx understood that the contract’s terms governed
the parties’ relationship.

(Doc. 57-4 at 49-50; Doc. 59 at 12.)

Irwin contends that the terms “execution” and “effective date” are
ambiguous and can be interpreted through parol evidence, citing
the foregoing materials as evidence of FedEx’s assent to the
Agreement.

(Doc. 63 at 23-24.)
12

The evidence that Irwin offers — including letters, emails,
presentations, and other communications — are sufficient to raise
a genuine dispute as to whether FedEx agreed to be bound by the
Agreement

and

therefore

bilateral contract.

whether

the

parties

entered

into

a

Irwin signed the Agreement; the seven-day

revocation period expired; FedEx later asked Irwin if he would
depart

in

August

as

opposed

to

November,

indicating

an

understanding that the Agreement’s terms applied; and FedEx cited
the VBO program in its termination letter to Irwin.

FedEx’s

internal communications also considered the Agreement “executed.”
(Doc. 63-7 at 13.)

In advancing its argument that it is not bound

by the Agreement, FedEx relies on its refusal to sign the Agreement
and the Agreement’s language that the severance payment will be
made only when the Agreement “has been fully executed by both
parties.”

Under North Carolina contract law, however, neither of

these arguments is dispositive.
566 S.E.2d at 133-34.

Barnhouse, 151 N.C. App. at 512,

FedEx gave signals to Irwin that it had

“accepted” the Agreement through its communications.

Because

FedEx maintained possession of the Agreement, only it knew whether
it had signed the Agreement.
under

these

circumstances

A jury could reasonably find that

FedEx

expressed

its

assent

to

the

Agreement.
FedEx argues that because the Agreement plainly defined the
“effective date” as Irwin’s departure date, the court cannot
13

consider extrinsic evidence to interpret the term.

But this

ignores North Carolina contract law, which allows a court to assess
whether a contract term is ambiguous in the context used. Register
v. White, 358 N.C. 691, 695, 599 S.E.2d 549, 553 (2004) (“An
ambiguity can exist when, even though the words themselves appear
clear,

the

specific

facts

of

the

case

create

more

than

one

reasonable interpretation of the contractual provisions.”).

In

their negotiations, the parties contemplated that Irwin would work
for nine months and then receive a severance package.

This fact,

coupled with evidence that FedEx assented to the arrangement,
supports the interpretation of “effective date” to mean “when
Irwin’s severance becomes due” as opposed to “when Irwin accepts
the Agreement.”

(Doc. 63 at 17.)

Alternatively, even if a factfinder were to determine that
FedEx never assented to the Agreement - and therefore that no
bilateral contract existed between the parties - Irwin could still
claim relief under a unilateral contract theory.

Guarascio v. New

Hanover Health Network, Inc., 163 N.C. App. 160, 165, 592 S.E.2d
612, 615 (2004) (assessing a plaintiff’s argument that his employer
breached a unilateral contract after concluding that he failed to
show the existence of a bilateral contract).

Irwin is correct

that North Carolina law permits an employer to make a unilateral
offer for employment benefits.

Roberts v. May Mills, 184 N.C.

406, 114 S.E. 530 (1922) (holding employer’s promise to pay a bonus
14

to

all

employees

who

remained

continuously

employed

until

Christmas to be enforceable). The record evidence raises a genuine
dispute as to whether FedEx made a unilateral offer of payment in
return for Irwin’s performance of continued employment.

Arndt,

170 N.C. App. at 522-23, 613 S.E.2d at 277-78 (explaining that
whether an oral contract was formed is a fact question to be
decided by a jury); Barnhouse, 151 N.C. App. at 512, 566 S.E.2d at
133-34 (stating that the intentions of the parties, as evidenced
“from both their writings and actions,” control whether a contract
exists and how its terms are to be constructed).
FedEx, as the master of its offer, was free to offer the
benefits in the VBO program on the terms it chose, including being
employed until November 30, 2013.
S.E. at 533.
of

payments

Roberts, 184 N.C. at 406, 114

While Irwin remained an employee at will, the offer
through

the

VBO

program

supplementary contract to that employment.

would

constitute

a

Id. at 406, 114 S.E.

at 534 (“The offer of a bonus and its acceptance by entering upon
the work was a supplementary contract for a reward in consideration
of the employee remaining in the service for the specified time”
and thus “did not change the terms of the contract of employment
by the week . . . .”); see also Pritchard v. Elizabeth City, 81
N.C. App. 543, 553, 344 S.E.2d 821, 826 (1986) (discussing an
employer’s representations that additional leave time would be
earned in proportion to hours worked as “supplementary employment
15

contracts”).

Therefore, FedEx’s argument that it was free to

terminate Irwin as an at-will employee is correct as to the
benefits flowing from his at-will employment status, but the
argument fails as to the contractual claim.
breached

a

damages.

unilateral

contract

would

A finding that FedEx

allow

Irwin

to

collect

Roberts, 184 N.C. at 406, 114 S.E. at 535 (allowing

“payment of the bonus earned up to the time of the discharge”).
FedEx’s argument that it was free to withdraw the offer before
full performance is mistaken.

Under North Carolina law, once a

unilateral offer of employment is accepted “by beginning work,” it
cannot be withdrawn “without good and sufficient cause.”

Id. at

406, 114 S.E.2d at 534 (emphasis added); accord Hamilton v. Memorex
Telex Corp., 118 N.C. App. 1, 11, 454 S.E.2d 278, 283 (1995)
(noting that “the employee may accept by entering or maintaining
employment, and the employer cannot thereafter disavow the promise
once the employee has started to work in reliance thereon”); White,
97 N.C. App. at 132-33, 387 S.E.2d at 81-82 (finding that material
issues

of

plaintiff,

fact

existed

through

to

continued

preclude

summary

employment,

judgment

accepted

unilateral contract promising disability coverage).

where

defendant’s
Here, Irwin

had engaged in his performance continuously since at least February
2013.
Thus, if Irwin is correct that FedEx’s actions and writings
regarding the VBO program constituted a unilateral offer, at least
16

two things are true.

First, FedEx was not free to withdraw the

offer without consequence once Irwin began performance, nor could
FedEx

rely

on

the

fact

that

Agreement’s “effective date.”

it

terminated

Irwin

before

the

Second, Irwin will not be entitled

to summary judgment if FedEx can proffer sufficient evidence to
create

a

genuine

dispute

of

material

fact

as

terminated him for “good and sufficient cause.”

to

whether

it

Roberts, 184 N.C.

at 406, 114 S.E. at 534.
2.

Breach

No matter which theory applies to Irwin’s contract claim,
once Irwin proffers sufficient evidence that (1) the parties
entered into a bilateral contract or a unilateral contract and (2)
he met the terms of his employment, the burden rests with FedEx to
establish grounds for the termination.
issues

of

fact

whether

FedEx

Here, there are disputed

properly

terminated

Irwin’s

employment - whether pursuant to section 13(n) of the Agreement
under a bilateral contract theory, or with “good and sufficient
cause” under a unilateral contract theory.
Under a bilateral contract theory, the burden rests with FedEx
to demonstrate that “after executing th[e] Agreement, but prior to
the

effective

performance
termination.”

date,”

Irwin

deficiencies

“engage[d]
that

(Doc. 63-4 at 66.)

would

in

conduct,

normally

or

ha[d]

result

in

As noted, because these are

claims on a contract that is supplemental to Irwin’s employment,
17

they are independent of FedEx’s rights to terminate Irwin as an
at-will employee.
rests

with

the

Under a unilateral contract theory, the burden
employer

to

establish

that

employee for “good and sufficient cause.”

it

terminated

the

Roberts, 184 N.C. at

406, 114 S.E. at 534 (noting that an employee who quit early
forfeited

all

claims

to

the

bonus

but

that

an

employer

who

discharged an employee “without good and sufficient cause . . .
was liable to the employee for the bonus lost thereby”).
Under FedEx’s leadership policy, which the parties agree
applied

to

Irwin

throughout

his

employment,

Irwin

could

be

terminated for “leadership failure,” a broad concept that allowed
for an employee’s termination for failure to monitor and prevent
misconduct by subordinates.

(Doc. 57 at 3; Doc. 57-1 at 2-7; Doc.

57-2 at 4-5; Doc. 63 at 25; Doc. 63-6 at 76-89.)

FedEx contends

that Irwin committed leadership failure by not exercising proper
supervision

and

oversight

(1)

to

prevent

subordinates

from

wrongfully billing customers for security fees and (2) to prevent
subordinates from improperly allowing customers to access certain
non-revenue FedEx accounts to fly the customers’ shipments using
non-approved routes.

(Doc. 57 at 4-9; Doc. 57-12 at 14-15.)

FedEx

argues that Irwin was personally involved in these practices and
that the infractions continued through 2013.

(Doc. 57 at 13-15;

Doc. 57-11 at 25.)
Irwin denies involvement in these practices and that he
18

committed any leadership failure as defined by FedEx.
at 3; Doc. 63 at 24-26.)

(Doc. 58-8

According to Irwin, the employees

involved in the practices were not under his supervision, the
accounts and security fees were not under his responsibility, and
FedEx encouraged its employees to continue charging security fees
by incorporating, and thereby concealing, the fees into other
charges.

(Doc. 63 at 5-6, 24-26; Doc. 63-6 at 15-18.)

He further

contends that the accused conduct ended in 2010, years before he
signed the Agreement, and thus did not occur within the timeframe
of the Agreement’s termination clause.

(Doc. 63 at 15; Doc. 63-6

at 15.)
The parties have advanced significantly conflicting accounts
of the facts underlying the claimed breach.

For example, the

parties disagree on Irwin’s role in the security fee and nonrevenue account practices.

FedEx alleges that Irwin colluded with

respect to the security fees and “was involved” in using the nonrevenue account to move customers’ freight (Doc. 61 at 7-8), while
Irwin denies personal involvement in either practice (Doc. 63 at
5-6).

The parties also disagree as to whether FedEx leadership,

specifically

Chief

Financial

Officer

Cathy

Ross,

effectively

communicated to subordinates to stop these practices.

(Doc. 57 at

6-9; Doc. 63 at 6-10). 4

4

Irwin concedes that he received emails from superiors - which FedEx
styles as “legal directives” (Doc. 57 at 6) - to cease charging customers

19

The

parties

further

dispute

Irwin’s

role

and

responsibilities, which may affect FedEx’s ability to terminate
him under its leadership policy.

According to FedEx, Irwin was

the “Chief Operations Officer,” “the ‘head guy,’” and “general
manager” of CTS who was “responsible for everything that went on
in the business” (Doc. 57 at 5), whereas Irwin describes himself
as a “managing director” (Doc. 63 at 12).

The parties agree that

Irwin

with

was

the

highest-ranking

employee

operations at CTS’s Greensboro office.
at 11.)

discretion

over

(Doc. 57 at 14; Doc. 61-2

But they disagree on whether Irwin had responsibility

over the specific practice of charging customers with security
fees.

(Doc. 57 at 14; Doc. 61-2 at 12; Doc. 63 at 5-6.)

FedEx

also argues that Irwin’s subordinate, Tony Rouse, was the person

security fees, but maintains that the charging of security fees was not
his responsibility (Doc. 63-6 at 10-12, 16-18).
In support of this
argument, Irwin points out that he is not noted as a recipient on one
of the emails to which FedEx cites.
(Doc. 63-6 at 41.)
Irwin also
argues that his superiors did not have a clear stance on the practice
of charging security fees, contending that FedEx was concerned less with
the practice and more with how the charges were communicated to
customers. (Doc. 63 at 7-10.) Irwin claims that FedEx wanted to preserve
the revenue from security fees by “rolling” the fees into other charges.
(Id.) He also claims that Russ Lilly, former Managing Director of Sales
at CTS (Doc. 57-2 at 14; Doc. 63 at 12), sought clarification and
attempted to square the concerns of FedEx leadership with the need to
preserve revenue growth. (Doc. 63 at 13.) But FedEx employee Rick Paul
never responded to requests for clarification, and because FedEx did not
preserve his computer hard drive (as to which Irwin seeks an adverse
inference (id. at 13)), it is unavailable.
In the end, this is all
further evidence of a material factual dispute on the issue of breach.
Thus, the court need not decide the spoliation issue, which is otherwise
not sufficiently briefed, and it will remain for the trial court to
resolve.

20

who allowed customers to gain access to the non-revenue account.
(Doc. 57 at 9, 14.)
Finally, the parties dispute when the security fee and nonrevenue

account

practices

occurred. 5

Irwin

charging of security fees stopped in 2010.

claims

that

(Doc. 63 at 15.)

the

Irwin

does not allege a specific date by which the non-revenue account
practices ended but contends that his position did not place him
in a leadership role with respect to either that account or the
charging of security fees after 2009.

(Id. at 26.)

FedEx has

proffered evidence that Irwin was sufficiently involved in these
practices

(alleging

“collusion”)

and

that

the

infractions

continued through 2013, within the time period set forth in section
13(n) of the Agreement.

(Doc. 57 at 15; Doc. 57-11 at 25.)

It

also contends that it did not learn of Irwin’s involvement until
it received a tip and launched an investigation in mid-2013. (Doc.
61 at 6; Doc. 61-3 at 3-5, 7-8; Doc. 61-11 at 4-9.)
Thus, regardless of whether Irwin proceeds under a bilateral
or unilateral contract theory, FedEx has proffered evidence from
which a reasonable jury could conclude that the company terminated
him within

the

provisions

of

section

5

13(n)

of

the

Agreement

Irwin raises the timing of the alleged security fee and non-revenue
account misconduct in the context of his bilateral contract analysis,
because section 13(n) of the Agreement provides FedEx a defense to
payment for misconduct or performance deficiencies occurring after Irwin
executed the Agreement but before its effective date of November 30,
2013. (Doc. 63-4 at 66.)

21

(bilateral contract theory) or that it had “good and sufficient
cause” to revoke its offer (unilateral contract theory).
For all these reasons, the parties’ cross motions for summary
judgment on the breach of contract claims (Counts 1 and 5) must be
denied.
B.

Wage and Hour Act Claims

Irwin also advances two claims under the North Carolina WHA.
(Doc. 7, ¶¶ 28-35 (Count 2), ¶¶ 61-71 (Count 6).)
alleges

that

FedEx

violated

the

WHA

by

not

In sum, he

paying

him

the

$199,041.23 severance benefit set forth in section 3(a) of the
Agreement (Doc. 7, ¶ 8; Doc. 63-4 at 61), the $10,486 AIC bonus
set forth in section 6 (Doc. 7, ¶ 8; Doc. 63-4 at 61), the $25,000
health reimbursement payment set forth in section 3(b) (Doc. 7,
¶ 8; Doc. 63-4 at 61), and the $40,000 long term incentive cash
pay-out set forth in section 8 (Doc. 7, ¶ 8; Doc. 63-4 at 62).
FedEx advances several arguments as to why it should be
granted summary judgment on Irwin’s claims.

It contends that in

December 2013 it paid Irwin all earnings and wages to which he was
entitled. 6

(Doc. 57 at 26; Doc. 57-9 at 3-10.)

It further argues

that the severance buyout program falls outside the scope of the
WHA, as FedEx does not have a “policy or practice” of making the

6

FedEx has submitted copies of Irwin’s payroll history. These records
indicate that Irwin continued to earn his reqular wages after he signed
the Agreement, at amounts equal to what he was earning before he signed
the contract. (Doc. 57-9 at 3-10.) Irwin does not claim that FedEx
failed to pay him his regular wages.

22

payments set forth in the Agreement.

(Doc. 57 at 26.)

Finally,

FedEx argues that Irwin’s claims fail because he did not earn the
payments he seeks.

(Id. at 27.)

Irwin responds that FedEx had a

policy and practice of making severance buyout payments to accepted
participants and that regardless, FedEx’s promise of wages to him
is binding.
The

(Doc. 63 at 18-19.)

WHA

prevents

earned wages.

employers

from

denying

their

employees

Hamilton v. Memorex Telex Corp., 118 N.C. App. 1,

8-10, 454 S.E.2d 278, 282 (1995).

The WHA defines wages as

"compensation for labor or services rendered by an employee whether
determined on a time, task, piece, job, day, commission, or other
basis

of

calculation”

and

includes

“sick

pay,

vacation

pay,

severance pay, commissions, bonuses, and other amounts promised
when the employer has a policy or a practice of making such
payments.”

N.C. Gen. Stat. § 95–25.22; Murphy v. First Union

Capital Mkts. Corp., 152 N.C. App. 205, 210, 567 S.E.2d 189, 19293 (2002).

Earned wages are “those wages and benefits due when

the employee has actually performed the work required to earn
them.”
(N.C.

Whitley v. Horton, No. COA03–1459, 2005 WL 351143, at *5
App.

2005)

(emphasis

in

original);

see

also

Narron

v.

Hardee’s Food Sys., Inc., 75 N.C. App. 579, 583, 331 S.E.2d 205,
207-08 (1985), overruled on other grounds by J & B Slurry Seal Co.
v. Mid–S. Aviation, Inc., 88 N.C. App. 1, 362 S.E.2d 812 (1987).
Outside a contractual recovery, Irwin was not eligible for
23

the benefits he claims.
AIC

and

long

term

Neither party disputes this.

incentive

payments, 7

FedEx’s

As for the

normal

policy

required that an employee be employed in May 2014 to be eligible
for payment.
would

(Doc. 61-10 at 5, 8.)

ordinarily

constitute

So, even though these benefits

wages

under

the

WHA,

under

no

circumstance would Irwin have met this requirement, as his last
day of employment was to have been November 30, 2013.
at 61.)

(Doc. 63-4

Thus, if a jury were to conclude that FedEx never assented

to the Agreement, Irwin would have no claim to these benefits under
the WHA.
Therefore, Irwin’s only claim to these and the other severance
benefits arises under a contract recovery. That is to say, because
it is clear that he did not actually perform the work necessary to
earn those benefits – having been terminated before the November
30, 2013 effective date - his remedy lies with the Agreement or a
unilateral contract, and his attempt to transform his contractual
damages into wages makes his WHA claim “fatally deficient.”

Cole

v. Champion Enters., Inc., 496 F. Supp. 2d 613, 626 n.7 (M.D.N.C.
2007) (finding that plaintiff’s “Wage and Hour Act claim is fatally
deficient because he is attempting to transform alleged contractual
damages into a claim for wages under the Act” and that because “at

7

Technically, Irwin seeks $40,000 “in lieu of” the long term incentive
payment otherwise paid to non-VBO employees. (Doc. 7, ¶ 53; Doc. 63-4
at 62.)

24

the time of his . . . termination, [he] had not performed the work
required to earn the wages and bonuses he alleges, any possible
remedy could only lie in breach of contract, not the Wage and Hour
Act.”), aff'd, 305 F. App'x 122 (4th Cir. 2008).
Consequently, because Irwin’s remedy for the damages he seeks
lies under his breach of contract claims, the court will deny
Irwin’s motion for summary judgment and grant FedEx’s motion for
summary judgment as to Irwin’s WHA claims.
C.

Fraud Claim

FedEx moves for summary judgment as to Count 4, which alleges
that FedEx made false representations upon which Irwin relied “to
induce him to remain a senior manager at a time of transition and
to induce him to refrain from pursuing other job opportunities or
competing against Defendant.”

(Doc. 7, ¶ 43.)

Irwin argues that

he was “persuaded to take early retirement by the threat that he
might lose his job in a layoff, as well as by the inducement of
severance.”

(Doc. 63 at 32.)

Irwin points to several facts indicating fraud, the most
notable being the following: his claim that FedEx induced him to
join the severance buyout program by threatening to terminate his
position; the timing of his termination on November 27, 2013, to
take effect only two days later and only one day before the
Agreement’s effective date when all benefits would be due; the
fact that FedEx asked him to leave in August 2013 instead of
25

November 2013; the fact that FedEx implemented the VBO program as
a way to cut costs; and FedEx’s admission that the steering
committee

responsible

for

the

program

“probably”

would

have

discussed the fact that Irwin declined to take an early August
departure.

(Id. at 31-33.)

Irwin argues that FedEx intentionally

reserved the option to deny him his severance by not signing the
contract and by “fall[ing] back on the protection of 13(n).”
at

32.)

Irwin

also

alleges

instructed

that

Irwin

concluded.

(Id.)

be

that

suspended

the

“head

before

legal

(Id.

the

official”

investigation

FedEx argues that Irwin has failed to proffer sufficient
evidence to demonstrate fraud.

It argues that Irwin was not

induced into, but volunteered for, the severance buyout program.
(Doc. 57 at 33-34.)

It also contends that Irwin has failed to

cite any fraudulent statement made to him or any evidence of
FedEx’s intent to deceive.

(Id.)

To prove fraud under North Carolina law, a plaintiff must
show (1) a false representation or concealment of a material fact
that is (2) reasonably calculated to deceive, (3) made with intent
to deceive, (4) which does in fact deceive, and (5) which results
in damages to the injured party.

Ragsdale v. Kennedy, 286 N.C.

130, 138, 209 S.E.2d 494, 500 (1974). A plaintiff seeking punitive
damages, like Irwin (Doc. 7, ¶ 51), must prove these elements by
clear and convincing evidence.

N.C. Gen. Stat. § 1D–15; Hudgins
26

v. Wagoner, 204 N.C. App. 480, 493, 694 S.E.2d 436, 446 (2010).
At the pleadings stage, the court noted that Irwin’s claim is
actionable, if at all, as promissory fraud.

(Doc. 14 at 5-13.)

To prove that, this court noted, he must show not only that the
promise was made with an intent to deceive him, but that FedEx had
no intent at the time to comply.

Johnson v. Phoenix Mut. Life

Ins. Co., 300 N.C. 247, 254-55, 266 S.E.2d 610, 616 (1980),
questioned in part on other grounds, Myers & Chapman, Inc. v.
Thomas G. Evans, Inc., 323 N.C. 559, 374 S.E.2d 385 (1988).

The

court found that Irwin’s allegations were sufficient to allege a
plausible claim under Federal Rule of Civil Procedure 9(b).

(Doc.

14 at 12.)
But this is the summary judgment stage.

Even assuming that

FedEx was intentionally deceptive in leading Irwin to believe it
had executed the Agreement, the evidence proffered, when viewed in
the light most favorable to Irwin, would not permit a jury to
reasonably find that FedEx made the promises for severance with a
specific intent not to comply.

Hoyle v. Bagby, 253 N.C. 778, 781,

117 S.E.2d 760, 762 (1961) (finding the promise to pay must have
been made “with the present intent not to carry it out”).

Having

produced no direct evidence that FedEx never intended to honor its
promises if he met the terms of the VBO program, Irwin points to
a collection of circumstantial evidence, which alone is not fatal.
At best, however, the record, taken as a whole, supports the
27

inference that FedEx intended to preserve its option to treat all
severance employees - including Irwin - as at-will employees
throughout their severance period.

(Doc. 63-7 at 2-5.)

FedEx did

this by not executing the employees’ agreements until the employees
completed their service for severance payments.

(Id.)

While this

strategy may be questionable and seems to conflict with portions
of the Agreement (e.g., section 13(n) providing for termination
for cause), FedEx in fact honored all of its other severance
agreements,

many

for

payments

in

excess

of

those

Agreement.

(Doc. 61-8 at 3; Doc. 63-7 at 4.)

in

Irwin’s

Moreover, while

Irwin is correct that FedEx sought to end his severance employment
in August 2013 (some three months early), the proposed date was,
in fact, one of three other severance dates instituted for all
employees in the VBO program.

(Doc. 63-4 at 2.)

More importantly,

there is no dispute that at the time FedEx made that invitation,
it told Irwin it would honor the Agreement.

(Doc. 7, ¶ 9.)

In the end, Irwin’s claim for promissory fraud rests on his
disagreement with the merits of his termination and the timing of
the announcement just before the severance payments would have
been due.

This has led to his suspicion that the company must

have had another reason to fire him.
33.)

(Doc. 57-3 at 24; Doc. 63 at

Even if it was for mere cost savings, this is insufficient

to support the further inference that FedEx never intended to
comply

at

the

outset,

especially
28

in

light

of

the

fact

that

severance buyout programs by their nature seek to facilitate cost
savings and the record evidence of the company honoring all other
agreements. 8

Norman v. Tradewinds Airlines, Inc., 286 F. Supp.

2d 575, 595 (M.D.N.C. 2003) (dismissing promissory fraud claim,
noting

that

“the

promissor

must

do

something

more

than

just

disregard or break its promises”).
Because Irwin has failed to proffer sufficient evidence from
which a reasonable jury could find in his favor on this claim,
Anderson, 477 U.S. at 248 (asking whether “the evidence is such
that a reasonable jury could return a verdict for the nonmoving
party” when assessing a motion for summary judgment), FedEx’s
motion for summary judgment on Irwin’s fraud claim will be granted.
D.

UDTPA Claim

Finally, the complaint alleges that FedEx violated North
Carolina’s UDTPA by “engag[ing] in misrepresentations, deception,
fail[ing]
wrongful

to

fairly

accusations

and
as

adequately
a

pretext

investigate,
to

compensation he was promised and is owed.”

attempt

to

and

us[ing]

deny

[him]

(Doc. 7, ¶ 37.)

Irwin

contends that his termination was a ruse designed to allow FedEx

8

FedEx also argues that Irwin’s fraud claim is barred by North Carolina’s
three-year statute of limitations, N.C. Gen. Stat. § 1-52(9), to the
extent Irwin relies on the elimination of his job with CTS in 2009.
(Doc. 57 at 33.) While the record indicates, indeed Irwin alleges, that
his position with CTS was eliminated in 2009 when CTS was merged into
FedEx, he thereafter suspended his negotiations for a severance package
in order to stay on with FedEx, which he did until the current events.
(Doc. 7, ¶ 6.) Thus, the claim relies on conduct in 2012-13 as part of
FedEx’s VBO program, and this argument is therefore moot.

29

to avoid paying the severance required under the Agreement.
63 at 26-30.)

(Doc.

He also argues that he was not given the opportunity

to defend himself during FedEx’s investigation and notes that other
FedEx employees who were cited for “leadership failure” for the
same conduct leading to his termination were not terminated. (Id.)
FedEx responds by arguing that Irwin’s claim falls outside the
scope of the UDTPA and, in any event, Irwin fails to proffer
sufficient
conduct.

evidence

to

demonstrate

(Doc. 57 at 27-32.)

any

unfair

or

deceptive

Rather, it argues, Irwin merely

questions FedEx’s business judgment in terminating him.

(Id. at

30-31.)
FedEx is correct that Irwin’s claim falls outside the scope
of the UDTPA.

To establish a UDTPA claim, a plaintiff must show

(1) that a defendant committed an unfair or deceptive act or
practice (2) in or affecting commerce and (3) resulting in injury
to the plaintiff.

First Atlantic Mgmt. Corp. v. Dunlea Realty

Co., 131 N.C. App. 242, 252, 507 S.E.2d 56, 63 (1998) (citing
Canady v. Mann, 107 N.C. App. 252, 260, 419 S.E.2d 597, 602
(1992)).

Whether an act is “in or affecting commerce” is a

question of law.

Hardy v. Toler, 288 N.C. 303, 310, 218 S.E.2d

342, 346-47 (1975).
Although the UDTPA broadly defines “commerce” to include “all
business activities, however denominated,” North Carolina courts
have long held that the statute “is not intended to apply to all
30

wrongs in a business setting.”

HAJMM Co. v. House of Raeford

Farms, Inc., 328 N.C. 578, 593, 403 S.E.2d 483, 492-93 (1991).
Rather, it has been interpreted to apply to all interactions
between

businesses

consumers.
679

(2010).

and

interactions

between

businesses

and

White v. Thompson, 364 N.C. 47, 52, 691 S.E.2d 676,
This

has

led

North

Carolina

courts

to

hold

consistently that absent conduct affecting commerce beyond the
employment

relationship,

employer-employee

disputes

are

not

sufficiently “in or affecting commerce” to satisfy the second
element of a UDTPA claim.

See, e.g., White, 364 N.C. at 53, 691

S.E.2d at 680 (noting that “the General Assembly did not intend
for the Act to intrude into the internal operations of a single
market participant”); Gress v. Rowboat Co., 190 N.C. App. 773,
775-76, 661 S.E.2d 278, 281-82 (2008) (“As a general rule, there
is a presumption against unfair and deceptive practice claims as
between employers and employees.” (internal citations omitted));
Kinesis Adver., Inc. v. Hill, 187 N.C. App. 1, 21, 652 S.E.2d 284,
298 (2007) (“We have consistently held that the employer/employee
relationship does not fall within the intended scope and purpose
of [N.C. Gen. Stat. § 75–1.1].”); Buie v. Daniel Int'l Corp., 56
N.C. App. 445, 448, 289 S.E.2d 118, 119-20 (1982) (holding that
“employer-employee relationships do not fall within the intended
scope of G.S. 75–1.1”); cf. Sara Lee Corp. v. Carter, 351 N.C. 27,
34, 519 S.E.2d 308, 312-13 (1999) (finding UDPTA violations where
31

an employee engages in commerce by selling parts and services to
his employer from companies owned by the employee); Wilson v.
Wilson-Cook Med., Inc., 720 F. Supp. 533, 542 (M.D.N.C. 1989)
(dismissing UDTPA claim based on plaintiff’s termination because,
among other grounds, the act does not apply to employer-employee
relationships, but permitting it to proceed as claim for failure
to pay dividends). 9
Here, Irwin does not allege or proffer evidence of any factor
affecting commerce outside his unique employment dispute with
FedEx. 10

Therefore, his UDTPA claim fails to meet the second prong

requiring that it involve conduct “in or affecting commerce.”
Accordingly, FedEx’s motion for summary judgment as to this claim

9

Irwin relies solely on Johnson v. Colonial Life & Accident Ins. Co.,
173 N.C. App 365, 618 S.E.2d 867 (2005), where the court, without
discussion, affirmed an award under the UDTPA on an employee’s claim
against his employer. (Doc. 63 at 26-31.) The court’s discussion was
limited to whether there was evidence that the defendant-employer’s
conduct was sufficiently aggravating. Whether the parties deemed the
defendant’s decision to submit a fraud report concerning the plaintiff’s
conduct to the North Carolina Department of Justice as sufficient to
overcome the employer-employee exception is not revealed. Regardless,
no court has cited Johnson for the proposition that an employment dispute
— without additional allegations of an effect on commerce — is cognizable
under the UDPTA.
10

Even the presence of the covenant not to compete in the Agreement,
which Irwin does not challenge, would not provide a sufficient ground
to meet the “in or affecting commerce” element. See Kinesis Advert.,
Inc. v. Hill, 187 N.C. App. 1, 21, 652 S.E.2d 284, 298 (2007) (“Indeed,
we have specifically held that a violation of a covenant-not-to-compete,
essentially a breach of contract within the employer/employee
relationship, lies outside the scope of the UDTP.”); Am. Marble Corp.
v. Crawford, 84 N.C. App. 86, 88, 351 S.E.2d 848, 849-50 (1987)
(affirming trial court’s finding that employee claim based on covenant
not to compete falls outside UDTPA).

32

(Count 3) will be granted.
III. CONCLUSION
For the reasons set forth above,
IT IS THEREFORE ORDERED that Irwin’s motion for partial
summary judgment (Doc. 58) on his breach of contract and WHA claims
is DENIED.

FedEx’s motion for summary judgment (Doc. 56) is

GRANTED IN PART and DENIED IN PART, as follows: FedEx’s motion is
GRANTED with respect to Irwin’s claims for common law fraud (count
4), violations of the WHA (counts 2 and 6), and violations of the
UPTPA (count 3), and those claims are therefore DISMISSED; FedEx’s
motion is DENIED with respect to Irwin’s breach of contract claims
(counts 1 and 5), which shall proceed as the remaining claims for
trial.

/s/
Thomas D. Schroeder
United States District Judge
December 5, 2016

33