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Bowers v. Foto-Wear

March 22, 2007

LORIE R. BOWERS PLAINTIFF
v.
FOTO-WEAR, INC., DONALD S. HARE, TROY SECHRIST, LORRAINE L. HARE, PAUL D. JETTER, MARK S. SAWCHAK, EACH INDIVIDUALLY AND AS AN OFFICER OF FOTO-WEAR, INC. DEFENDANTS



The opinion of the court was delivered by: Judge Vanaskie

MEMORANDUM

Plaintiff Lorie Bowers initiated this action against her former employer, Foto-Wear, Inc., and its officers, claiming that the company breached its employment contract with her by failing to pay her monies due under that agreement. In addition to her breach of contract claim, Ms. Bowers also asserts that Foto-Wear and its officers: (1) violated the Pennsylvania Wage Payment and Collection Law (the "WPCL"), 43 Pa. Cons. Stat. Ann. § 260.1, et seq., by failing to pay her commission and benefits due at termination; (2) violated the Fair Labor Standards Act (the "FLSA"), 29 U.S.C. § 201, et seq., and the Pennsylvania Minimum Wage Act (the "Pa. MWA"), 43 Pa. Cons. Stat. Ann. § 333.102, et seq., by failing to pay her overtime wages; (3) unlawfully retaliated against her for making complaints about Defendants' noncompliance with wage laws; and (4) violated the New Jersey Conscientious Employee Protection Act (the "CEPA"), N.J. Stat. Ann. 34:19-1, et seq., by terminating her employment in response to her complaints about Defendants' noncompliance with wage laws. (Am. Compl. (Dkt. Entry 27).)

Ms. Bowers has moved for summary judgment on the breach of contract and WPCL claims. Defendants cross-filed a motion for summary judgment on all of Ms. Bowers' claims. Because I find the terms of Ms. Bowers' employment contract ambiguous, I will deny both parties' motions for summary judgment on the breach of contract claim. As to the WPCL claim, I find that there is an issue of fact as to whether Ms. Bowers had "earned" the commission that was otherwise payable under the employment contract with Foto-Wear two months after Foto-Wear severed the employment relationship.*fn1 For reasons stated below, I will grant Defendants' motion for summary judgment on Ms. Bowers' FLSA, Pa. MWA, CEPA, and retaliation claims.

I. BACKGROUND

A. Factual Background

Foto-Wear is a Pennsylvania corporation in the business of making and selling transfer paper that allows printed images to be transferred onto clothing, such as T-shirts. (Pl.'s Statement of Material Facts ("SMF") (Dkt. Entry 66) ¶ 27.*fn2 ) In early 2001, Foto-Wear offered to hire Ms. Bowers as its Director of Marketing and Business Development. (Id. ¶¶ 30-35.) Following detailed negotiations, Ms. Bowers and Foto-Wear's President and Chief Executive Officer ("CEO"), D. Troy Sechrist, executed an employment contract on March 15, 2001. (Id. ¶¶ 3, 36; see also Employment Contract, Pl.'s Mot. Summ. J. Ex. 3 (Dkt. Entry 68).)

Article III of the employment contract set forth the following terms for Ms. Bowers' employment:

ARTICLE III: TERMS. The Company hereby employs the Employee, and the Employee hereby accepts employment for a term of two (2) years from the date thereof. The company may terminate this contract for cause within the term of the contract discussed above. In absence of cause, this contract shall bind the company to pay the employee the full two-year (2) term of this contract unless the employee terminates the contract voluntarily.

In the event that the employee terminates this contact prior to its full term as discussed above, the employee is precluded from working for any customer of the company for the full term of the contract. If it is determined that the employee has breached this provision of the agreement after voluntarily terminating the contract prior to its original full term then the company may seek to recoup any monies paid to the employee during the employees' term of employment with the company. Such notice of termination shall not prejudice either party as to any remedies under the provisions of this agreement. If the agreement is not terminated by either party during the initial term hereof, the Employee's employment shall continue thereafter under the terms and conditions hereof for a period of one year, and so on from year to year, until either party terminates this agreement. (Employment Contract, Pl.'s Mot. Summ. J. Ex. 3 (Dkt. Entry 68) art. III (emphasis added).)

As compensation for her services, Ms. Bowers was to receive a base salary of $130,000 per year, a car allowance, a housing allowance, four (4) weeks paid vacation per calender year, and permission to participate in the company's 401(k) plan. (Id. art. IV.) The contract also provided for the following commission compensation: f.) commission in an amount to be determined pursuant to the Schedule(s) of Commissions which is attached to this agreement.

These commissions will be paid quarterly on the following dates April 15, July 15, October 15 and January 15. The payments referenced in the preceding sentence shall be for the prior 3 month period immediately preceding the month of payment beginning on the 1st day of the 1st month and ending on the last day of the 3rd month. (Id.) The attached schedule dictated that Ms. Bowers receive a commission of 1/2 % of all original equipment manufacturer*fn3 sales exceeding a certain threshold. (Id. at 14.)

One week after executing the employment contract, on March 22, 2001, Ms. Bowers and Mr. Sechrist executed a "Replacement Commission Schedule." (Replacement Commission Schedule, Pl.'s Mot. Summ. J. Ex. 4 (Dkt. Entry 68).) The schedule explicitly replaced the previous commission schedule and Article IV, section (f) of the employment contract. (Id.) The replacement schedule stated that Ms. Bowers: shall receive a commission paid annually on the anniversary date of employment (for purposes of this agreement, March 13, 2002 and March 13, 2003). For the first year of this agreement, Employee shall receive a commission of 1/2 % of all sales over and above $6,000,000 with minimum total compensation (base salary plus commission) of $185,000 and a cap of $225,000.

For the second year of this agreement, Employee shall receive a commission of 1/2 % of all sales with a minimum total compensation (base salary plus commission) of $225,000, which in this case shall also equal the ceiling or cap. (Id.)

Ms. Bowers did not receive a commission payment on March 13, 2002, as she expected under the replacement commission schedule. (Pl.'s SMF (Dkt. Entry 66) ¶ 70.) Ms. Bowers apprised Foto-Wear that she believed it was contractually obligated to pay her a commission of $55,000.*fn4 (Id. ¶ 71) She also notified Foto-Wear that it was required to pay her commission under the WPCL. (Id.) Foto-Wear subsequently paid Ms. Bowers $55,000 plus $2,500 in "interest" over five months. (Id.; Dep. Tr. of Emil Calomino, Pl.'s Mot. Summ. J. Ex. 15 (Dkt. Entry 68-3) at 24; Defs.' SMF (Dkt. Entry 80) ¶ 71).)

By December 2002, Mr. Sechrist realized that Foto-Wear was in a poor financial position and attempted "to cut costs to keep Foto-Wear viable and strong." (Dep. Tr. of D. Troy Sechrist, Pl.'s Mot. Summ. J. Ex. 11 (Dkt. Entry 68-2) at 38, 41.) Mr. Sechrist notified Ms. Bowers regarding Foto-Wear's financial position and asked if she would reduce her compensation. (Defs.' SMF (Dkt. Entry 80) ¶ 73.) Ms. Bowers refused to alter the terms of her employment contract. (Pl.'s SMF (Dkt. Entry 19) ¶ 73.)

On January 9, 2003, Mr. Sechrist sent Ms. Bowers a "Notice of Employee Termination." (Pl.'s Mot. Summ. J. Ex. 2 (Dkt. Entry 68).) In the notice, Mr. Sechrist stated:

It is with mixed emotions that I write this letter to you today. You have put forth a great effort since your arrival. . . . Unfortunately, we were unable to come to terms to renegotiate your contract as part of the overall Foto-Wear reorganization plan made effective this week. An offer was made to buy out the remainder of your contract for $60,000, paid in equal installments of $10,000 over a period of six months. After multiple conversations earlier this week, you expressed your strong preference and need to remain at full salary through the term of your Employment Contract. Though Foto-Wear no longer requires your presence or services, Foto-Wear will honor its commitment to pay your base salary of $130,000 via bi-weekly payments in conjunction with payroll, along with benefits through March 13, 2003.

(Id.)

Ms. Bowers advised Foto-Wear that it was obligated to pay her all monies due under her two-year employment contract. (Bowers Aff., Pl.'s Mot. Summ. J. Ex. 1 (Dkt. Entry 68) at ¶ 54.) Ms. Bowers offered to continue soliciting sales for Foto-Wear through the end of her contract. (Pl.'s SMF (Dkt. Entry 66) ¶ 75.) Foto-Wear did not continue to employ Ms. Bowers. (Id.)

Foto-Wear paid Ms. Bowers her remaining base salary though March 2003. (Pl.'s SMF (Dkt. Entry 66) ¶ 76.) Other than her base salary, Ms. Bowers did not receive any other compensation after January 9, 2003. (Id. ¶ 77.)

B. Procedural Background

Ms. Bowers filed a five-count complaint in this Court on July 9, 2003. (Dkt. Entry 1.) She amended her complaint on May 19, 2004, adding a sixth count. (Dkt. Entry 27.) In addition to Foto-Wear, Ms. Bowers named the following Foto-Wear officers as defendants: Donald Hare (Chairman of the Board), D. Troy Sechrist (President and C.E.O. during Ms. Bowers' employment), Lorraine Hare (Secretary), Paul D. Jetter (Vice President), and Mark Sawchak (Foto-Wear's current President) (collectively, the "Officer Defendants").

In count one, Ms. Bowers asserts that Foto-Wear breached its contractual obligation to Ms. Bowers by terminating her employment and not paying her "all commissions due plus all accrued benefits." (Id. ¶¶ 29-33.) In count two, Ms. Bowers claims Foto-Wear and Officer Defendants violated the WPCL by failing to pay her commission and benefits due to her. (Id. ¶¶ 34-41.) In counts three and four, Ms. Bowers asserts that Foto-Wear and Officer Defendants violated the FLSA and the Pa. MWA, respectively, for failing to pay her overtime wages. (Id. ¶¶ 42-59.) In count five, Ms. Bowers claims that Foto-Wear, Mr. Hare, Mr. Sechrist, and Mr. Sawchak unlawfully retaliated against her by terminating her employment for asserting her rights under the WPCL. (Id. ¶¶ 60-70.) In count six, Ms. Bowers asserts that Foto-Wear, Mr. Hare, Mr. Sechrist, and Mr. Sawchak violated the CEPA by violating her employment agreement and retaliating against her for asserting her rights. (Id. ¶¶ 71-72.)

On June 9, 2004, Defendants moved to dismiss Counts two through six of Ms. Bowers' amended complaint. (Dkt. Entry 32.) The Court denied Defendants' motion to dismiss on August 31, 2005. (Dkt. Entry 63.)

Ms. Bowers moved for partial summary judgment on September 9, 2005, claiming that she is entitled to judgment as a matter of law on the issues of liability and damages under count one and liability under count two. (Dkt. Entry 64.) Defendants filed a cross-motion for summary judgment on all counts on November 15, 2005. (Dkt. Entry ...


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