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LIPSON v. JACKSON NATIONAL LIFE INS. CO.

United States District Court, E.D. Pennsylvania


January 8, 2004.

DAVID LIPSON
v.
JACKSON NATIONAL LIFE INS. CO

The opinion of the court was delivered by: HERBERT HUTTON, District Judge

MEMORANDUM AND ORDER

Presently before the Court is Defendant Jackson National Life Insurance Company's Motion for Summary Judgment (Docket No. 24), Plaintiff David Lipson's response thereto (Docket No. 38), and Defendant's reply (Docket No. 40).

I. BACKGROUND*fn1

  This suit arises out of Plaintiff David Lipson's resignation from Jackson National Life Insurance Company ("Jackson National") on October 1, 1995. Jackson National is a Michigan corporation selling insurance policies and annuities throughout the United States. Jackson National maintains a network of regional offices through which it derives a great part of its business with independent insurance agents. Each regional office is operated by a regional manager and staffed by brokerage managers. Lipson began working as a brokerage manager for Jackson National in 1985.

  In May 1989, Lipson was promoted to Regional Manager of Page 2 Jackson National's new Delaware Valley regional office. His compensation was outlined in an April 24, 1989 Memorandum, entitled "Compensation Structure — Delaware Valley Regional Manager." Lipson's compensation was a percentage of the insurance premiums, both new and renewals, for business that originated in Pennsylvania, New Jersey, and Delaware. Lipson's commission on term and whole life insurance renewal premiums was set at 1 percent. The compensation structure also required Lipson to pay a portion of his commission earnings to his clerical staff and brokerage managers. In 1990, all the regional managers consented to a slight change on the renewal commission rates. See Lipson Decl. at ¶¶ 4-5 (Docket No. 39, Ex. H); Dec. 13, 1990 Mem. re: "DAC Changes" (Docket No. 24, Ex.G).

 A. New England Servicing

  In early 1994, Lipson was asked to commence preliminary operations in the New England area. Specifically, Lipson was to start marketing Jackson National's products and licensing brokers and agents in the area. In return, Lipson would receive commissions on policies sold in the area until Jackson National officially opened a New England regional office in October 1994.

  According to Jackson National, in the spring of 1995, it discovered an overpayment of $30,000 to the Delaware Valley regional office. See Def.'s Mem of Law at 7 (Docket No. 24); Morrison Dep. at 95-99 (Docket No. 39, Ex. J). The money was Page 3 supposed to go to the New England office but a coding error led to payment to the Delaware Valley office instead. Lipson was notified of the overpayment and that Jackson National planned to recoup the overpayment by deducting approximately $5,000 per month from the Delaware Valley office from July through December 1995.

 B. Project Leapfrog

  In late 1994, Jackson National underwent a major restructuring, known as "Project Leapfrog," which centralized all renewal servicing at the company's headquarters.

  1. Commission Decrease

  Under Project Leapfrog, commission percentages on renewal premiums were decreased from 1 percent to 0.10 percent, effective January 1, 1995 and phased in gradually during the first half of 1995. See Feb. 1, 1995 Mem. re: New Regional Office Compensation Schedule (Docket No. 24, Ex. P). The reduced commission rates applied both to policies already sold and policies to be sold in the future.

  2. Hiring Additional Brokerage Managers

  In addition to changing the commission structure for regional managers, Project Leapfrog also directed the regional offices to focus a greater part of their work on sales and developing new business. In response, Lipson outlined his plans for the Delaware Valley office and wrote,

  I plan to hire at least two additional people to fill positions needed to obtain the growth expected during Page 4 1995. Within the next six weeks I plan on bringing on board another marketing specialist and/or brokerage manager and after the completion of moving all processing to a central location I plan on doing the same again.

 See Letter dated Nov. 18, 1994 re: Regional Office Selection Process — Delaware Valley (Docket No. 24, Ex. H) (emphasis added). According to Lipson, he hired one brokerage manager in March of 1995; however the brokerage manager did not work out and was quickly terminated. See Lipson Decl. at ¶ 9 (Docket No. 39, Ex. H). On March 31, 1995, Jackson National sent a letter to Lipson stating that he was "expected" to hire a new brokerage manager by June 1, 1995 and a second brokerage manager by September 1, 1995. See Mar. 31, 1995 Mem. to Lipson from Morrison (Docket No. 24, Ex. I). However, Lipson determined that, faced with declining sales, he could not afford to hire another brokerage manager at the time.

  On August 7, 1995, Lipson was informed that $4,033 would be deducted from his commission compensation for his failure to hire a brokerage manager. Lipson hired a brokerage manager in early September. On September 3, 1995, Lipson was again informed that $4,033 would be deducted from his compensation because of his failure to hire a second brokerage manager. The deductions were to continue until Lipson hired a second brokerage manager.

 C. Resignation

  Lipson resigned from his position on October 31, 1995. Lipson alleges that his resignation was the result of Jackson National's unlawful deductions from his income for his alleged failure to hire Page 5 additional brokerage managers, for alleged New England commission overpayments to Lipson, and for the 1995 unilateral decision to decrease commissions on renewal policies already sold.

  On December 26, 1997, Lipson filed suit in this Court against his former employer Jackson National, asserting claims under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. Ann. § 954 et seq., and the Pennsylvania Wage Payment and Collection Law, 43 Pa. Cons. Stat. Ann. § 260.1 et seq. Plaintiff also had a suit pending against Defendant in the Court of Common Pleas in Montgomery County, filed on November 26, 1996, alleging breach of contract, constructive discharge, quantum meruit, conversion, promissory estoppel/detrimental reliance, breach of fiduciary duty, breach of good faith and fair dealing, and constructive trust.*fn2 On March 27, 1998, the two actions were consolidated under this civil action number 97-8051. After a two year period on the civil suspense docket, the case was restored to this Court's active docket on May 10, 2001.

  II. LEGAL STANDARD

  Summary judgment is appropriate "if the pleadings, Page 6 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The party moving for summary judgment has the initial burden of showing the basis for its motion. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant adequately supports its motion pursuant to Rule 56(c), the burden shifts to the nonmoving party to go beyond the mere pleadings and present evidence through affidavits, depositions, or admissions on file showing a genuine issue of material fact for trial. See id. at 324. The substantive law determines which facts are material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the evidence is such that a reasonable jury could return a verdict for the nonmoving party, then there is a genuine issue of fact. See id.

  When deciding a motion for summary judgment, all reasonable inferences are drawn in the light most favorable to the non-moving party. See Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied, 507 U.S. 912 (1993). Moreover, a court may not consider the credibility or weight of the evidence in deciding a motion for summary judgment, even if the quantity of the moving party's evidence far outweighs that of its opponent. See id. Nonetheless, a party opposing summary judgment must do more than just rest upon mere allegations, general denials, or vague statements. See Trap Rock Indus., Inc. v. Local 825, Page 7 982 F.2d 884, 890 (3d Cir. 1992).

  III. DISCUSSION

 A. Age Discrimination in Employment Act ("ADEA")

  Jackson National asserts that Lipson's ADEA claim is time-barred because he did not timely file his charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") or the Pennsylvania Human Relations Commission ("PHRC").

  The ADEA*fn3 requires that a charge of discrimination is filed with the EEOC before the initiation of a lawsuit in federal court so that the EEOC has the opportunity to resolve the dispute. See Bailey v. United Airlines, 279 F.3d 194, 197 (3d Cir. 2002). In a "deferral" state such as Pennsylvania that has a procedure for conciliation by a state agency, the EEOC charge must be filed within 300 days after the alleged unlawful employment practice occurs. See id.; 29 U.S.C. § 626(d)(2). A plaintiff's failure to file a timely charge with the EEOC will result in the dismissal of the civil proceedings. See Bihler v. Singer Co., 710 F.2d 96, 98-99 (3d Cir. 1983); Eible v. Houston, No. 96-4655, 1998 WL 303692, at *4 (E.D. Pa. Apr. 21, 1998). Page 8

  Under Pennsylvania law, the accrual of a discrimination claim is governed by the discovery rule.*fn4 A claim accrues upon "awareness of actual injury, not upon awareness that this injury constituted a legal wrong." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1386 (3d Cir. 1994); Bickings v. Bethlehem Lukens Plate, 82 F. Supp.2d 402, 409 (E.D. Pa. 2000). The awareness of an injury, for accrual purposes, occurs when a plaintiff knew or should have known of the injury and that the injury had been caused by another party's conduct. See Bickings, 82 F. Supp.2d at 409. Moreover, whether an employee was deceived "regarding the underlying motive behind her discharge is irrelevant for purposes of the discovery rule." Oshiver, 38 F.3d at 1391.

  In Oshiver, the Third Circuit considered the timeliness of claims made by Oshiver, a female attorney, under Title VII and the PHRA. See id. at 1385. The Third Circuit rejected Oshiver's arguments and stated:

[W]e have no difficulty in concluding that for purposes of the discovery rule, Oshiver "discovered" the injury on April 10, 1990, the very date defendant law firm informed her of her discharge. Simply put, at the moment the law firm conveyed her dismissal to her, Oshiver became aware (1) that she had been injured, i.e. discharged, and (2) that this injury had been caused by another party's conduct.
Id. at 1391. The Third Circuit further noted that the fact "[t]hat Page 9 Oshiver may not have known on April 10, 1990 that her discharge constituted an actionable legal wrong does not matter for discovery rule purposes." Id. at 1391 n. 9; see also Wastak v. Lehigh Valley Health Network, 342 F.3d 281 (3d Cir. 2003) (finding that fifty-seven year old plaintiff's age discrimination claims under the ADEA and the PHRA began to accrue on the date of plaintiff's discharge, and not nine months later when plaintiff learned that his replacement was a forty-four year old woman; and stating "[plaintiff] knew both of his injury — the discharge — and the cause of his injury — [defendant's] decision to terminate his employment" on his termination date).

  In this case, Jackson National argues that Lipson's injury occurred on October 31, 1995, the day Lipson resigned from his position, and that Lipson's claim began to accrue on that date. Thus, by Jackson National's calculations, Lipson had until August 26, 1996, 300 days later, to file a discrimination charge with the EEOC. Lipson did not file his EEOC charge until February 10, 1997, 467 days after his resignation.

  Lipson contends that his age discrimination claim began to accrue in September 1996 at the earliest, when he learned that Jackson National replaced a fifty-one year old regional manager with a man in his early thirties. Under this view, Plaintiff had until July 1997 to file his EEOC charge and therefore, filing his charge on February 10, 1997 was well within the ADEA's timeliness requirements. Page 10

  In light of the Third Circuit's determinations in Oshiver and Wastak, the Court finds as a matter of law that Lipson's discrimination claim began to accrue on October 31, 1995. Lipson became aware of his injury — resignation allegedly due to constructive discharge — and the cause of his injury — Jackson National's allegedly unlawful fee deductions — on October 31, 1995, the date of his resignation. Lipson waited until February 10, 1997 to file an administrative charge with the EEOC, more than 300 days after his cause of action accrued. Accordingly, the Court concludes that Lipson's charge of discrimination was untimely and grants summary judgment in favor of Jackson National as to Lipson's age discrimination claims under the ADEA.*fn5

 B. Pennsylvania Human Relations Act ("PHRA")

  Jackson National also asserts that Lipson is time-barred under the PHRA. Like the ADEA, the PHRA prohibits the discrimination of an individual because of that individual's age. See 43 Pa. Cons. Stat. Ann. § 955(a).*fn6 The PHRA requires the complainant to file an administrative charge with the PHRC within 180 days of the alleged Page 11 discrimination. See 43 Pa. Cons. Stat. Ann. § 959(h); Burgh, 251 F.3d at 475.

  Lipson's employment with Jackson National ended on October 31, 1995. Lipson did not file an administrative charge with the PHRC until February 10, 1997, 467 days later. As Lipson's PHRA charge was filed well outside the PHRA's 180-day statutory period, Lipson's claim under the PHRA is untimely. See Zysk v. FFE Minerals USA Inc. f/i/a FFEM-USA, 225 F. Supp.2d 482, 493 (E.D. Pa. 2001) (dismissing plaintiff's PHRA claim as untimely because the charges were filed more than 180 days after the alleged discriminatory act occurred). Accordingly, summary judgment is granted in favor of Defendant as to this claim.

 C. Breach of Contract

  Lipson alleges that two contracts governed his relationship with Jackson National and that both were breached. The Court addresses each in turn.

  1. Employment as Regional Manager of Delaware Valley

  Lipson alleges that his employment as regional manager of the Delaware Valley office was governed by a contract memorialized by three documents: (1) the April 24, 1989 Memorandum entitled "Compensation Structure — Delaware Valley Regional Manager"; (2) the May 1, 1989 letter from David Pasant addressed to Lipson; and (3) the December 13, 1990 Memorandum entitled "DAC Changes." See David Lipson Dep. at 110-14 (Docket No. 24, Ex. J); Docket No. 24, Page 12 Exs. E, F, & G.

  The issue before the Court is whether Jackson National can unilaterally modify the commission percentages on policies already sold. Lipson argues that, while Jackson National was entitled to change the commission rates prospectively, Jackson National could not change the commission rates retroactively on policies that were already sold. Jackson National maintains that Lipson was an employee-at-will, and it was thus entitled to change Lipson's terms of employment, including commission rates, as it saw fit.*fn7

  The Court cannot conclude, as a matter of law, that Jackson National can unilaterally modify the commission percentages on Page 13 policies that were sold before the 1995 changes came into effect. Much of the case law in this area, involving employees-at-will, allow changes in commission rates prospectively. See e.g., Dicks v. Information Technologists, Inc., No. 95-103, 1996 WL 528890, at *3 (E.D. Pa. Aug. 29, 1996) ("The power to discharge an employee must subsume the power to change, prospectively, the terms of employment.") (emphasis added); Green v. Edward J. Bettinger Co., 608 F. Supp. 3d (E.D. Pa. 1984) (concluding that because plaintiff was employee-at-will, employer had right to insist upon changes in compensation prospectively). In instances where retroactive changes in commission percentages occurred, courts have generally not allowed such changes. See Holland v. Earl G. Graves Publishing Co., 46 F. Supp.2d 681 (E.D. Mich. 1998) (holding that employer could not unilaterally change employee's sales quota requirements tied to her year-end bonus retroactively without her consent); Skodnick v. Rand McNally & Co., No. 87-0077, 1987 WL 28091 (E.D. Pa. Dec. 14, 1987) (denying employer's motion for new trial where jury found that, although arrangement between employee-employer was contract at will, employer could not unilaterally reduce commission schedules retroactively); but see Donovan v. Bankers Fidelity Insurance Co., No. 92-0137, 1993 WL 726238 (E.D. Mo. 1993) (concluding that contract provision allowed insurance company to implement a retroactive change in agent compensation rates upon written notice). Moreover, the Court is unconvinced by Jackson National's argument that Lipson's continuation of employment after Page 14 commission schedules were changed in 1990 constitutes a waiver of any claims for subsequent alleged breach of contract. Unlike the instant situation, all the regional managers, including Lipson, had consented to the earlier commission percentage changes made in 1990. Accordingly, summary judgment is denied as to this claim.

  2. Employment for New England Servicing

  Second, Lipson alleges that an oral contract governed Lipson's work in expanding Jackson National into the New England area and that the deductions for an alleged $30,000 overpayment were a breach of that contract. See Lipson Dep. at 197-99. Further, Lipson disputes whether Jackson National actually overpaid Lipson. Jackson National argues that no contract, written or oral, existed between Lipson and itself with regard to the New England region.

  Although Defendant claims that Plaintiff has the burden of establishing an oral contract by "clear and precise" evidence, to the contrary, an oral contract may be established by a preponderance of evidence. See Mucci v. Home Depot, No. 00-4946, 2001 WL 1609851, at *3 (E.D. Pa. Dec. 18, 2001); Zielonka v. Temple University, No. 99-5693, 2001 WL 1231746, at *9 (E.D. Pa. Oct. 12, 2001); Robert Billet Promotions, Inc. v. IMI Cornelius, Inc., No. 95-1376, 1998 WL 721081, at *13 (E.D. Pa. Oct. 14, 1998) (rejecting contention that oral contract must be proved by clear and convincing evidence); Pinizzoto v. Parsons Brinkerhoff Quade & Douglas, 697 F. Supp. 886, 888 (E.D. Pa. 1988). Moreover, for a contract to be enforceable, the "nature and extent of the Page 15 obligation must be certain; the parties themselves must agree upon the material and necessary details of the bargain." Sarlo v. Webster, No. 02-6708, 2003 WL 21771730, at *1 (E.D. Pa. July 24, 2003); see Channel Home Centers v. Grossman, 795 F.2d 291, 298-99 (3d Cir. 1986).

  There is sufficient evidence to infer that an oral contract existed between Lipson and Jackson National. First, there is no dispute that Lipson laid the groundwork for the New England regional office by marketing Jackson National's products and licensing agents and brokers. Second, Jackson National paid Lipson commissions for policies acquired during his time spent on the New England region. Third, although Jackson National did not specify the length of time Lipson would spend developing the New England area, it was clear that Lipson's groundwork would terminate upon the opening of the New England regional office. The Court concludes that, under these circumstances, both parties understood and agreed upon the "material and necessary details of the bargain."

  Lipson also questions whether Jackson National actually overpaid him. Because this is a fact issue for the jury to decide, summary judgment is denied as to this claim.

 D. Pennsylvania Wage Payment and Collection Law ("WPCL")

  The WPCL states, in pertinent part, "Every employer shall pay all wages, other than fringe benefits and wage supplements, due to his employees on regular paydays designated in advance by the Page 16 employer." 43 Pa. Cons. Stat. Ann. § 260.3(a). "Wages," by definition, include "all earnings of an employee, regardless of whether determined on time, task, piece, commission. . . ." Id. at § 2 60.2(a). The WPCL "does not create an employee's substantive right to compensation; rather it only establishes an employee's right to enforcement payment of wages and compensation to which an employee is otherwise entitled by the terms of an agreement." Miccoli v. Ray Communications, Inc., No. 99-3825, 2000 WL 1006937, at *4 (E.D. Pa. July 20, 2000) (quoting Hartman v. Baker, 766 A.2d 347, 352 (Pa. Super. 2000)); see DeAsencio v. Tyson Foods, Inc., 342 F.3d 301, 309 (3d Cir. 2003). "The contract between the parties governs in determining whether specific wages are earned." DeAsencio, 342 F.3d at 309.

  Lipson maintains that he is entitled to (1) 1 percent commission on all renewal policy premiums before the 1995 compensation change came into effect; (2) the deductions for the alleged New England overpayment; and (3) the deductions for his alleged failure to hire two brokerage managers.

  Having denied Defendant's motion for summary judgment as to Plaintiff's breach of contract claims, the Court has already concluded that there is a genuine issue of material fact as to Lipson's first two claims under the WPCL. With respect to the third claim, deductions for Lipson's alleged failure to hire additional brokerage managers, the Court also finds that a genuine issue of material fact exists as to the number of brokerage Page 17 managers Lipson was to hire. Lipson stresses that the "and/or" in his November 1994 letter shows that he did not promise to hire two additional brokerage managers, as Jackson National states. Further, Lipson contests his alleged failure to hire a brokerage manager, noting that he hired a brokerage manager in March of 1995 and in September of 1995. Accordingly, Defendant's motion for summary judgment is denied on Plaintiff's WPCL claim.

 E. Constructive Discharge

  Lipson also asserts a cause of action for constructive discharge. For an employee-at-will to establish constructive discharge, the employee must show that the employer made working conditions so intolerable that the employee was forced to resign. See Kroen v. Bedway Security Agency, Inc., 633 A.2d 628, 633 (Pa. Super. 1993); Berger v. Edgewater Steel Co., 911 F.2d 911, 923 (3d Cir. 1990) ("[A] court must find that an employer knowingly permitted conditions . . . in employment so intolerable that a reasonable person subject to them would resign.")

  Here, Lipson alleges that the effect of the 1995 commission percentage reductions, combined with deductions for the alleged overpayments of New England commissions owed to him and the deductions for his alleged failure to hire a brokerage manager, was that he had to pay Jackson National for his work there. Faced with negative income, Lipson resigned. Given the short-time frame in which all of these events occurred, the Court concludes that there Page 18 is sufficient evidence for a jury to infer that Lipson was constructively discharged. See Kroen, 633 A.2d at 634 ("We believe that the question of whether a nearly 71 percent reduction in weekly wages constitutes a `constructive discharge' should be decided by the jury."). Accordingly, summary judgment is denied as to this claim.

 F. Quantum Meruit

  Lipson alleges that he is entitled to the renewal commissions on policies already sold and to the brokerage manager deductions under a theory of quantum meruit, or unjust enrichment. Because Lipson's claim is based on a jury's finding that Jackson National wrongfully decreased the commission percentages and wrongfully deducted for Lipson's failure to hire a brokerage manager, the Court denies Defendant's motion for summary judgment at this time.

 G. Conversion

  Similarly, Lipson's conversion claim is based upon the allegedly unlawful retention of funds earned by and payable to Lipson. See Pl.'s Mem. of Law, at 35 (Docket No. 38). Because many factual issues related to this claim must be decided by a jury, summary judgment is denied as to this claim.

  IV. CONCLUSION

  For the reasons stated above, Defendant's motion for summary judgment is granted in part and denied in part. Defendant's motion for summary judgment is granted as to Plaintiff's claims under the Page 19 ADEA and the PHRA. Defendant's motion for summary judgment is denied as to Plaintiff's claims under the WPCL and for breach of contract, constructive discharge, quantum meruit, and conversion.

  Plaintiff has withdrawn his claims for constructive trust, breach of fiduciary duty, breach of the duty of good faith and faire dealing, and promissory estoppel. Accordingly, Defendant's Motion for Summary Judgment as to these claims is denied as moot.

  An appropriate Order follows.

  ORDER

  AND NOW, this ___ day of January, 2004, upon consideration of Defendant Jackson National Life Insurance Company's Motion for Summary Judgment (Docket No. 24), Plaintiff David Lipson's response thereto (Docket No. 38), Defendant's reply (Docket No. 40), and for the reasons stated in the accompanying Memorandum, IT IS HEREBY ORDERED that Defendant's Motion is GRANTED IN PART and DENIED IN PART as follows:

  (1) Defendant's Motion for Summary Judgment is GRANTED as to Plaintiff's claims under the Age Discrimination in Employment Act and the Pennsylvania Human Relations Act; and

  (2) Defendant's Motion for Summary Judgment is DENIED as to Plaintiff's claims for breach of contract, violations of the Pennsylvania Wage Payment and Collection Law, constructive discharge, quantum meruit, and conversion.


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