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Lukas v. Unidine Corp.

Superior Court of Massachusetts, Suffolk, Business Litigation Session

August 21, 2018

Correna LUKAS

          File Date: August 22, 2018


          Brian A. Davis, Associate Justice of the Superior Court

          In this action, plaintiff Correna Lukas ("Plaintiff") seeks compensation for unpaid sales commissions that she claims she is owed under defendant Unidine Corporation’s ("Unidine") "2016 Commission Plan" (the "2016 Plan"). Unidine is in the business of providing dining services to institutional clients, such as universities, large businesses, senior living facilities, and hospitals. Prior to March 2016, Plaintiff was employed by Unidine as a Director of Business Development ("DBD"). As a DBD, Plaintiff was responsible for identifying, cultivating, and landing new customers for Unidine’s dining services. Plaintiff’s employment compensation at Unidine was based, in part, on sales commissions that were calculated and paid according to Unidine’s annual commission plan for DBDs. Each commission plan governed all incentive compensation earned within that calendar year. The 2016 Commission Plan states, in relevant part, that

[t]he DBD is eligible to participate in the [Commission] Plan as long as he/she is actively employed and in good standing with [Unidine] ... In no case shall a commission or bonus be paid or considered earned, or the [DBD] deemed eligible if he/she is on a formal performance termination procedure or has been terminated ...
Commissions will be earned and paid ratably over a twelve (12) month period as described in this section ...
Commission payments shall commence and be payable following the first full month of the account’s operation ...
Commissions paid for accounts lost within the first six (6) months from contract signing will be forfeited by withholding equal amounts of commission already paid from future sales commissions ...

2016 Commission Plan at 1 and 4.[1]

         Plaintiff voluntarily left Unidine’s employ in March 2016 in order to pursue another job opportunity. No claim is made in this proceeding that she was terminated by Unidine for the purpose of denying her any compensation that she purportedly is due.

         Following her departure, Plaintiff sought payment of approximately $197, 000.00 in sales commissions for new customer contracts that she claims she procured while employed at Unidine. It is undisputed that, if Plaintiff had remained at Unidine, the commissions she currently seeks would have been payable to her ratably over a twelve-month period commencing one month after each underlying contract came into effect. See 2016 Commission Plan at 1. Plaintiff claims, however, that all of her commissions had been "definitely determined" as of the date of her departure and, therefore, are "due and payable" under the 2016 Commission Plan notwithstanding her departure. Complaint, ¶ 22. When Unidine disagreed and declined payment, Plaintiff filed this action in October 2016 alleging, in part, that Unidine and its President, Richard B. Schenkel ("Mr. Schenkel" or, collectively, with Unidine, "Defendants"), had violated provisions of the Massachusetts Wage Act, G.L.c. 149, § 148, by refusing to pay her "wages earned" while she was employed at Unidine.[2] Id., ¶¶ 21-25. Defendants deny any liability to Plaintiff.

          The case came before this Court most recently on Plaintiff’s motion to compel certain documents from Unidine. Specifically, Plaintiff seeks an order compelling Unidine to produce an authentic copy of its Commission Plan for 2017 (the "2017 Commission Plan," which Plaintiff claims is relevant to the proper interpretation of the 2016 Commission Plan.[3] Plaintiff also seeks to compel Unidine to produce copies of any severance agreement that Unidine has entered into with any employee who has departed the company at any time from January 1, 2010, to the present (the "Severance Agreements"). Plaintiff claims that she has information that Unidine has been paying sales commissions to departing employees in the guise of "severance," and that such payments are probative on the question of whether departing DBDs are entitled to unpaid commissions. Unidine opposes Plaintiff’s motion to compel in its entirety, arguing, in part, that the documents sought are confidential, inadmissible, and not likely to lead to the discovery of admissible evidence.

         The Court conducted a hearing on Plaintiff’s motion to compel on August 2, 2018. All parties appeared. Following the hearing, each side made additional submissions to the Court on the relevant law. Upon consideration of all of the written materials submitted by the parties, the information provided at the motion hearing, and the oral arguments of counsel, Plaintiff’s motion to compel is ALLOWED IN PART to the extent and for the reasons memorialized, briefly, below.

         First, the Court is skeptical that Unidine’s 2017 Commission Plan will provide much useful guidance as to the intended meaning of Unidine’s 2016 Commission Plan. In order to render any portion of the 2017 Commission Plan admissible at trial, Plaintiff will have to demonstrate, at a minimum, that the relevant provisions of Unidine’s 2016 Commission Plan are ambiguous. See Cullinet Software, Inc. v. McCormack & Dodge Corp., 400 Mass. 775, 776 (1987) ("Where an agreement is ambiguous, parol evidence is admissible to show the intention of the parties"). That hurdle may prove to be insurmountable given the relative clarity with which the 2016 Commission Plan defines when a particular sales commission becomes "due and payable" to a DBD.[4] See, e.g., Robert Industries, Inc. v. Spence, 362 Mass. 751, 754 (1973) (a document that "reasonably appears to be a complete agreement ... is ... taken to be a complete agreement in the absence of contrary evidence"). But cf. Brewster Wallcovering Co. v. Blue Mountain Wallcoverings, Inc., 68 Mass.App.Ct. 582, 618 n.74 (2007) ("[P]arol evidence may be used to clarify a writing with latent ambiguities ..."). Whether the 2016 Commission Plan is ambiguous is not an issue, however, that the Court is required or inclined to resolve in the narrow context of a motion to compel. That issue is likely to be raised and more fully addressed in the parties’ forthcoming motions for summary judgment.[5] In the meantime, Plaintiff is within her rights to gather whatever available evidence reasonably may illuminate the parties’ intentions. See Hull Municipal Lighting Plant v. Massachusetts Municipal Wholesale Elec. Co., 414 Mass. 609, 615 (1993) ("Generally, discovery is permissible of any nonprivileged material which is relevant to the pending action and reasonably calculated to lead to the discovery of admissible evidence," citing Mass.R.Civ.P. 26(b)(1)). Accordingly, Plaintiff’s motion to compel is ALLOWED as to Unidine’s 2017 Commission Plan. IT IS HEREBY ORDERED that Unidine shall produce a complete, unreduced copy of its 2017 Commission Plan to Plaintiff within ten (10) days of the date of this Order.

          Plaintiff’s alleged need to examine copies of Unidine’s Severance Agreements with various other employees, however, is less persuasive. Plaintiff admits that the purported relevance of those agreements derives from certain inferences she draws from a few, cryptic communications that she had with a single former Unidine employee. Plaintiff infers from those communications that Unidine has been paying sales commissions to other DBDs disguised as "severance," but she possesses no evidence (other than her own suspicions) that Unidine actually is engaged in such a practice. Plaintiff’s interest in Unidine’s Severance Agreements is, in short, based solely on speculation, which the Massachusetts Appeals Court has described as the "essential quality of the classically ...

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