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Balding v. Sunbelt Texas, Inc.

United States District Court, D. Utah

April 21, 2017



          CLARK WADDOUPS United States District Court Judge.

         This is plaintiff Robert J. Balding's second motion for reconsideration of his contract, quantum meruit, and ADA discrimination and failure to accommodate claims. (Dkt. No. 104.) Balding has also moved to amend his summary judgment pleadings to include supplemental disclosure of expert testimony in support of his ADA claims. (Dkt. Nos. 108-109). For their part, defendants Sunbelt Steel Texas, Inc. and Sunbelt Steel Texas, LLC (collectively “Sunbelt”) move the court to reconsider its October 24, 2016 decision vacating summary judgment in favor of defendants on Balding's FMLA interference and retaliation claims and his ADA retaliation claim.[1] (Dkt. No. 105.) For the reasons stated below, the court DENIES Balding's motions and GRANTS Sunbelt's motion. Accordingly, all of Balding's claims are dismissed and the matter is ripe for Balding's pending appeal.


         I. Motion for Reconsideration Legal Standard

         As he did in his first motion for reconsideration, Balding brings his second motion for reconsideration under Rules 52, 56, 59, and 60 of the Federal Rules of Civil Procedure. The Tenth Circuit has held that “regardless of how it is styled or construed . . ., a motion filed within ten days of the entry of judgment that questions the correctness of the judgment is properly treated as a Rule 59(e) motion.” Phelps v. Hamilton, 122 F.3d 1309, 1323 (10th Cir. 1997).[2]Furthermore, when a motion involves “reconsideration of matters properly encompassed in a decision on the merits, ” it is properly considered under Rule 59(e). Id. at 1324. Because Balding's motion was timely filed, the court construes Balding's motion as a motion to alter or amend the judgment under Rule 59(e).

         Rule 59(e) relief is limited, and requires that Balding establish “(1) an intervening change in the controlling law, (2) new evidence [that was] previously unavailable, [or] (3) the need to correct clear error or prevent manifest injustice.” Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). Also relevant is the Tenth Circuit's admonition that successive motions “are inappropriate vehicles to reargue an issue previously addressed by the court when the motion merely advances new arguments or supporting facts which were available at the time of the original motion.” Id. “Absent extraordinary circumstances . . . the basis for [a] second motion must not have been available at the time the first motion was filed[, ]” and “[i]t is not appropriate to revisit issues already addressed or advance arguments that could have been raised in prior briefing.”[3] Id. The court refers to the relevant factual background in its prior order and does not repeat that factual history here.

         II. Contract Claim

         Balding does not present new evidence or identify a change in the controlling law regarding his contract claim. Instead, he merely asserts that the court's ruling against him on these claims is “flawed, ” “absurd, ” “false” and made “in error.” (Pl.'s Motion 7-9; Dkt. No. 104.) He claims that the court should not have granted summary judgment against him on his contract claims because there are disputed facts regarding whether his commissions were to be based on all sales accounts or limited to new accounts, and on whether Kathy Rutledge or anyone else ever told him that his salary increase was in lieu of his original commission compensation agreement. He also claims that the court ignored evidence that he discussed commissions with Jerry Wasson, Sunbelt's Vice President of Sales, who was instrumental in hiring Balding and making the original commission agreement with him. (Id. at 6.)

         Similarly, he argues that the court failed to consider Balding's e-mail communication with Michael Kowalski, Sr. about commissions in the light most favorable to Balding, namely, that Kowalski's “silence” and failure to follow up on Balding's e-mail is “a form of deceit and evidence of guilt” about which a jury can “draw inferences in Balding's favor.” (Id. at 6-7.) He claims there is “not a shred of evidence anywhere” that his commissions would not be paid per the original agreement. (Id. at 5.) Finally, he argues that he never “accepted new terms for compensation that did not include a commission” because such an acceptance requires an offer, which he claims he did not receive, or at least that there are disputed facts as to whether he had knowledge of new or changed conditions in his employment compensation. Any “private mental reservations” about Balding's commissions are Sunbelt's, not his, according to Balding. (Id. at 9-10.)

         The court has previously agreed that there are disputed facts regarding the meaning of terms in Balding's original commission agreement and whether Rutledge informed Balding that his increased salary was in lieu of commissions. Whether the commissions were originally to be paid on all sales accounts or only new accounts was not material to the court's conclusion, however, while the court acknowledged that a jury may reject Rutledge's testimony. (Mem. Dec. 6; Dkt. No. 103.) The court also acknowledges that its prior decision does not refer to Balding's communications with Wasson regarding commissions. Because it was undisputed that Wasson had no employees reporting to him and was not Balding's supervisor, however, this evidence was also not material to the court's conclusion. Furthermore, Balding's deposition testimony reflects that these communications with Wasson occurred prior to Balding accepting his first raise in January 2010, and thus do not support his assertion that he believed he was entitled to them after his original compensation terms were superseded by the parties' subsequent course of performance. (Balding Depo. 105:11-25; Dkt. No. 72-36.)

         As for Balding's communications with Kowalski, Sr., the court is not required to accept Balding's “speculation” or “suspicion” to comply with its obligation to view facts in the light most favorable to the non-moving party. Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988). Rather, “[t]he litigant must bring to the district court's attention some affirmative indication that his version of relevant events is not fanciful.” Id. As discussed in the court's previous order, the only communication Balding had with a supervisor about his commissions after January 2010 was with Kowalski, Sr. in April 2012. To recap, Balding wrote: “I could tell that you were surprised to hear of a commission which was written up for me. I would like you to know that I am grateful for profit sharing and other incentives Sunbelt Steel gives. I am here to help grow and become [a] huge part of Sunbelt Steel. If there could be some consideration that [sic] would be grateful.” (Mem. Dec. 6; Dkt. No. 103.) Kowalski, Sr.'s response was: “I plan to have follow-up conversations with Kathy & Jerry this week and will get back to you. Hang in there!” There is no evidence of any follow up. Id. The court need not accept Balding's conclusion that Kowalski, Sr.'s “[s]ilence is a form of deceit and evidence of guilt” to view this e-mail in the light most favorable to Balding. At most, viewed in Balding's favor, it suggests that he inquired about commissions to a direct supervisor once in April 2012.

         The key point that Balding misses is Sunbelt's undisputed history of increasing his salary and paying bonuses in a manner at odds with the agreement Balding continues to assert was breached by Sunbelt's failure to pay him commissions. In January 2010, as the court previously summarized, Sunbelt increased Balding's annual salary from $30, 000, as stated in his hiring contract, to $40, 000. This $10, 000 increase was more than double the $3, 725 in commissions Balding may have been entitled to by the end of 2009. (Mem. Dec. 5-6; Dkt. No. 103.) Even if a jury were to discount Rutledge's testimony that she informed Balding the salary increase was in lieu of the commission agreement, thereafter, Sunbelt increased Balding's salary to $45, 000 in April 2011 and again to $52, 000 in January 2012. And most fatal to Balding's claim that he did not accept salary increases and bonuses in lieu of commission, in May 2012, one month after Balding's e-mail to Kowalski, Sr. asking for “some consideration” of commissions, Sunbelt increased Balding's salary to $60, 000. Five months after that, Balding received a $13, 000 bonus.

         All in all, Sunbelt doubled Balding's salary and gave him $23, 250 in bonuses based on the company's overall performance from 2009 to 2013. Id. None of these salary increases or bonuses was made pursuant to the terms of the original employment compensation agreement, and Balding admitted that he never raised the issue of commissions with anyone else at Sunbelt after April 2012. (Balding Depo. 115:8-11; Dkt. No. 72-36.)

         Contrary to Balding's arguments, the undisputed history of Balding retaining his employment as an at-will employee after Sunbelt paid him compensation at odds with his initial agreement constitute more than “a shred of evidence” that his employment contract had been superseded by new or changed conditions. See Johnson v. Morton Thiokol, Inc., 818 P.2d 997, 1002 (Utah 1991) (“where an at-will employee retains employment with knowledge of new or changed conditions, the new or changed conditions may become a contractual obligation, ” and “by continuing to stay on the job, although free to leave, the employment supplies the necessary consideration for the offer.”). Even viewing in his favor Balding's claim that he raised commission objections to Kowalski, Sr. once in April 2012 prior to receiving his final raise and bonus payment, Balding's assertion that he did not accept these new terms, or was not aware of them, is inconsistent with his having accepted the money and his continuing to work for Sunbelt thereafter. See B.R. Woodward Marketing, Inc. v. Collins Food Service, Inc., 754 P.2d 99, 103-04 (Utah App. 1988) (“Where an agreement involves repeated occasions for performance by either party with knowledge of the nature of performance and opportunity for objection to it by the other, any course of performance accepted or acquiesced in without objection is given great weight in the interpretation of the agreement.”). Balding did not submit sufficient evidence for a factfinder to find that these new and changed conditions of employment did not constitute a course of performance that waived the original commission-based compensation agreement pursuant to Johnson and B.R. Woodward.

         For all of the foregoing reasons, as well as the reasons set forth by the court in its prior rulings, the court concludes that it properly granted summary judgment to defendants on Balding's contract claims.

         III. ...

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