Levesque v. Schroder Investment Management North America Inc.

United States District Court

District of Massachusetts

)

Shaun Levesque, )

)

Plaintiff, )

)

v. )

) Civil Action No.

Schroder Investment Management ) 17-12380-NMG

North America, Inc. and Karl )

Dasher )

)

Defendants. )

)

MEMORANDUM & ORDER

GORTON, J.

This case arises out of an employment dispute over

commissions allegedly owed, retaliation and age discrimination

in an action brought by a plaintiff who was terminated following

a company’s reorganization in 2017.

I. Factual Background

Shaun Levesque (“Levesque” or “plaintiff”), a resident of

Wrentham, Massachusetts was employed by Schroder Investment

Management North America, Inc., (“SIMNA”) from 2008, until his

termination in September, 2017. Levesque was initially hired as

the east coast director of SIMNA’s Institutional Sales division.

He received his offer letter in 2008, by mail, in Massachusetts

and continued to work for SIMNA while in Massachusetts.

At SIMNA, Levesque reported to Jamie Dorrien-Smith

(“Dorrien-Smith”), then-CEO of SIMNA, from 2008 to 2012, and

then to Karl Dasher (“Dasher”), a resident of New York and

Georgia, in 2013, after Dasher became the new CEO.

From 2009 to 2012, Levesque received an annual management

bonus ranging from $100,000 to $350,000. Those management

bonuses were consistent with the oral representations made by

Dorrien-Smith. That agreement was presumably memorialized in an

internal memorandum which has not yet been produced.

In 2013, SIMNA implemented a new incentive compensation

plan (“the 2013 Plan”). Under the 2013 Plan, employees

qualified for two kinds of incentive-based compensation schemes:

quantitative and qualitative. The quantitative based

compensation was further broken down into two components:

individual and team. Quantitative compensation was earned when

revenues were generated and individual quantitative awards were

based on a percentage of the employee’s gross sales. By

contrast, qualitative compensation was earned at the end of each

fiscal year, when the company determined whether the employee

had met his or her stated goals.

Under that compensation scheme, SIMNA also had the

discretion to defer the team quantitative and qualitative

compensations into its Equity Compensation Plan (“the ECP”). As

part of the ECP, employees were given either an amount of shares

in the parent company, Schroders plc (“a share award”) and/or

units in a range of investment products for Schroders plc (“a

fund award”) that was equal to the value of their earned

incentive-based compensation that was deferred.

In February 2014, Dasher allegedly told Levesque that he

would not be receiving his customary management bonus for work

performed in 2013. Dasher allegedly promised, instead, that

Levesque would continue to receive a total compensation package

of $1.4 million, even if Levesque’s commission sales were lower

than his 2013 numbers. Shortly thereafter, Levesque began

reporting directly to Marc Mayer (“Mayer”) instead of Dasher.

Mayer informed Levesque that he was no longer needed as an

Institutional Sales manager but reiterated Dasher’s earlier

promise of $1.4 million in total compensation. Mayer refused to

put that agreement in writing and Levesque alleges that he was

not compensated as promised for work performed in 2013.

In 2015, Mayer, unbeknownst to Levesque, contacted Allan

Conway, the head of Emerging Markets, to discuss transferring

Levesque to the Emerging Products division. In 2016, Levesque

agreed to the transfer with the understanding that 1) his

targeted annual compensation would be between $750,000 and $1

million and 2) he would be entitled to the quantitative

commissions he had already earned for the three-year commission

cycle within the Institutional Sales division. In June, 2016,

the parties memorialized the terms of Levesque’s compensation

(“the 2016 Internal Memorandum”).

Following his transfer, Levesque avers that SIMNA breached

its contractual obligations by failing to pay him: 1) a $250,000

management bonus for 2013, 2) a $300,000 qualitative bonus for

2013, 3) a $367,000 quantitative incentive compensation for work

performed in 2016, 4) a $500,000 qualitative incentive

compensation for work performed in 2016, and 5) a $732,000

quantitative incentive compensation to which he would have been

entitled had he not been terminated in 2017.

Levesque discussed his compensation complaints with several

managers and in 2017, Dasher informed him that his Emerging

Markets compensation was intended to replace his quantitative

compensation previously earned while in Institutional Sales.

Levesque then contacted Human Resources but was told to handle

the issue directly with Dasher. Shortly thereafter, Levesque

was terminated on the basis that his position had been upgraded

and moved to the London office. Levesque, who is a British

national, was not offered the position and was told to tell his

co-workers that he intended to retire.

II. Legal Analysis

A. Personal Jurisdiction over Dasher

On a motion to dismiss for lack of personal jurisdiction,

the plaintiff bears the burden of satisfying the Massachusetts

long-arm statute and the Due Process Clause of the Fourteenth

Amendment. Cossart v. United Excel Corp., 804 F.3d 13, 18 (1st

Cir. 2015). In accordance with that burden, all facts alleged

by the plaintiff are taken as true and construed in favor of his

jurisdictional claim. Massachusetts Sch. of Law at Andover, Inc.

v. Am. Bar Ass’n, 142 F.3d 26, 34 (1st Cir. 1998).

1. Massachusetts Long Arm Statute

Jurisdiction over the individual officers of a corporation

under the Massachusetts long arm statute may not be based on

jurisdiction over the corporation. Johnson Creative Arts, Inc.

v. Wool Masters, Inc., 573 F. Supp. 1106, 1111 (D. Mass. 1983).

Rather, this Court must determine that there is an “independent

basis” for jurisdiction. LaVallee v. Parrot-Ice Drink Prod. of

Am., Inc., 193 F. Supp. 2d 296, 300 (D. Mass. 2002).

Levesque has demonstrated that Dasher, as SIMNA’s CEO, has

attempted to participate in the Commonwealth’s economic life as

a “primary participant” in corporate activities. Cossart, 804

F.3d at 18–19 (holding that the term “transacting any business”

is construed broadly). Here, Dasher retained and supervised

Levesque, had significant business-related communications with

him and made promises to him regarding compensation, all while

Levesque retained significant Massachusetts clients and operated

out of his Massachusetts office. See id. (finding that a non-

resident defendant who unsuccessfully negotiated a contract for

sale of Massachusetts land while outside the Commonwealth was

sufficient to satisfy the “transacting any business”

requirement). Thus, because Levesque has demonstrated an

independent basis for jurisdiction, the requirements of the long

arm statute have been met.

2. Due Process Clause

Specific jurisdiction over a defendant exists if a

plaintiff demonstrates a nexus between his claims and the

defendant’s forum-based activities. In determining whether the

requisite nexus is satisfied, the Court evaluates 1)

relatedness, 2) purposeful availment and 3) reasonableness.

Cossart, 804 F.3d at 20.

Dasher’s actions seem to be the catalyst for this action

because he allegedly 1) made oral promises to plaintiff

regarding his compensation and 2) retaliated against plaintiff

for complaining about his compensation. Thus, relatedness is

satisfied. See Harlow v. Children’s Hosp., 432 F.3d 50, 60–61

(1st Cir. 2005) (the defendant’s in-state conduct must form an

“important” or “material” element of proof in the plaintiff’s

case”).

Moreover, Dasher, as plaintiff’s supervisor, 1) knew and

approved of plaintiff’s Massachusetts-generated business, 2)

presumably discussed that business with Levesque, 3) negotiated

his compensation with respect to Massachusetts-related business

and 4) knew of plaintiff’s complaints regarding his unpaid

compensation. Because Dasher had repeated contacts with the

Commonwealth, it was reasonably foreseeable that he would be

subject to the forum state’s jurisdiction.

Finally, with respect to reasonableness, courts assess 1)

the defendant’s burden of appearing, 2) the forum state’s

interest, 3) the plaintiff’s interest, 4) the judicial system’s

interest in obtaining effective resolution and 5) the common

interests of all sovereigns in promoting substantive social

policies. Ticketmaster-New York, Inc. v. Alioto, 26 F.3d 201,

209 (1st Cir. 1994).

Dasher has not demonstrated that litigating the suit in

Massachusetts presents a “special or unusual burden”. See

Pritzker v. Yari, 42 F.3d 53, 64 (1st Cir. 1994). Moreover,

Massachusetts has a strong interest in adjudicating the dispute

because a Massachusetts resident was allegedly injured in

Massachusetts and is now claiming relief under Massachusetts

law. Ticketmaster-New York, Inc., 26 F.3d at 211. Furthermore,

Levesque resides in Massachusetts and by bringing suit in that

forum he is most likely to obtain convenient and effective

relief. In fact, because this Court has jurisdiction over

plaintiff’s claims against SIMNA, effective resolution of the

case renders the forum state suitable. Finally, litigation of

the suit does not impugn the common interests of all sovereigns

with respect to promoting social policies. Thus, on balance,

the Court finds that Levesque has alleged facts establishing

that Dasher had minimum contacts with Massachusetts such that

maintenance of the suit in this forum would not “offend

traditional notions of fair play and substantial justice”.

Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).

B. Motion to Transfer and Change Venue

Defendants’ argument that there is an obstacle to

expeditious and orderly adjudication on the merits, pursuant to

§ 1406(a), is unpersuasive because this Court finds that

personal jurisdiction over Dasher exists. Their alternative

argument for a change of venue under 28 U.S.C. § 1404(a) is

equally unconvincing. Momenta Pharm., Inc. v. Amphastar Pharm.,

Inc., 841 F.Supp.2d 514, 522 (D. Mass. 2012) (internal citation

omitted) (there is a general presumption in favor of the

plaintiff’s choice of forum that a defendant bears the burden of

rebutting).

Here, though an adequate alternative forum exists,

considerations of convenience and judicial efficiency do not

favor litigating this suit elsewhere. Levesque brought this

action in his home state and alleges multiple violations of the

Massachusetts Wage Act arising out of a contract negotiated and

signed, at least in part, in Massachusetts. The fact that

defendants’ records are located in New York is an insufficient

ground for transferring this case. Blu Homes, Inc. v. Kaufmann,

No. 10-11418-DJC, 2011 WL 3290362, at *10 (D. Mass. July 29,

2011). Finally, unlike Avci, where the plaintiff was not a

resident of Massachusetts and there was little connection

between the claim and the forum state, Levesque is a resident of

the Commonwealth who conducted most of his SIMNA-related

business in this state. Cf. Avci, 232 F. Supp. 3d at 220.

Because there is ample connection between the forum, the

issues and the law to be applied in this action, defendants’

motion to “transfer and change venue” will be denied.

C. Failure to State a Claim

To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to “state a claim

to relief that is plausible on its face”. Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). In considering the merits of

a motion to dismiss, the Court may look only to the facts

alleged in the pleadings, documents attached as exhibits or

incorporated by reference in the complaint and matters of which

judicial notice can be taken. Nollet v. Justices of Trial Court

of Mass., 83 F. Supp. 2d 204, 208 (D. Mass. 2000), aff’d, 248

F.3d 1127 (1st Cir. 2000).

Furthermore, the Court must accept all factual allegations

in the complaint as true and draw all reasonable inferences in

the plaintiff’s favor. Langadinos v. Am. Airlines, Inc., 199

F.3d 68, 69 (1st Cir. 2000). If the facts in the complaint are

sufficient to state a cause of action, a motion to dismiss the

complaint must be denied. See Nollet, 83 F. Supp. 2d at 208.

Although a court must accept as true all the factual

allegations contained in a complaint, that doctrine is not

applicable to legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662

(2009). Threadbare recitals of legal elements which are

supported by mere conclusory statements do not suffice to state

a cause of action. Id. Accordingly, a complaint does not state

a claim for relief where the well-pled facts fail to warrant an

inference of any more than the mere possibility of misconduct.

Id. at 1950.

1. Contract Claims

a. Choice of Law

The parties disagree on whether Massachusetts or New York

substantive law governs this diversity action. When a federal

court sits in diversity, it must apply the choice of law

principles of the forum state. Klaxon Co. v. Stentor Elec. Mfg.

Co., 313 U.S. 487, 496 (1941). Thus, this Court must look to

Massachusetts choice-of-law rules. With respect to contracts,

Massachusetts employs a “functional” approach that responds to

the “interests of the parties, the States involved, and the

interstate system as a whole”. Bushkin Associates, Inc. v.

Raytheon Co., 473 N.E.2d 662, 668 (Mass. 1985). This means that

the Court must apply the substantive law of the state with the

most significant relationship to the transaction in the

litigation. Hendricks & Associates, Inc. v. Daewoo Corp., 923

F.2d 209, 212 n. 3 (1st Cir. 1991). The Court need not,

however, address the most significant relationship test where,

as here, there is a choice-of-law provision. Bushkin, 473 N.E.2d

at 669. While neither party raises this material fact, the 2013

Plan clearly states that “[t]he Plan shall be governed by New

York law”. Accordingly, the Court will apply New York law with

respect to plaintiff’s contract claims.

b. Breach of Contract Claims

Defendants claim that Levesque has no contract claim with

respect to the $250,000 management bonus because that amount is

not reflected in the 2008 Employment Agreement or any subsequent

writing, including the internal email that documents the

parties’ oral conversation regarding his annual, discretionary

management bonus. Moreover, defendants argue that there is no

viable contract claim for a bonus that is discretionary.

Plaintiff responds that SIMNA failed to pay all commissions due

under the 2013 Plan and the 2016 Agreement.

In limiting his claims to compensation that stem from the

2013 Plan and the 2016 Agreement, plaintiff effectively concedes

his breach of contract claim with respect to his $250,000

management and $300,000 qualitative bonuses. As defendants

aver, the 2013 Plan, which governs the contract action 1) was

signed by all parties, 2) states that it supersedes any prior

agreement with respect to sales incentive compensation and 3)

permits only written modifications. Plaintiff has produced no

evidence of written modifications to the contrary, partial

performance or estoppel. Tierney v. Capricorn Inv’rs, L.P., 592

N.Y.S.2d 700 (N.Y. App. Div. 1993) (holding that when a written

contract provides that it can be amended only in writing, an

oral modification of that agreement, such as is alleged here, is

unenforceable absent partial performance or estoppel). Thus,

plaintiff fails to state a claim with respect to his alleged

$250,000 management bonus or his $300,000 qualitative bonus.

With respect to the $367,000 quantitative award, defendants

argue that the complaint does not identify any accounts for

which he was not paid and thus the claim is implausible on its

face. While plaintiff provides little specificity as to how he

arrives at $367,000, taking his complaint as a whole, he has

alleged facts sufficient to establish plausibility.

Defendants contend that the 2016 Internal Memorandum

provides that the $500,000 qualitative award is “payable at the

sole discretion of Schroders”. Based on the plain reading of

the contract, this Court agrees. Plaintiff’s breach of contract

claim is unavailing in light of the unambiguous language of the

contract, which makes clear that awards are subject to the

defendants’ sole discretion. Hunter v. Deutsche Bank AG, New

York Branch, 866 N.Y.S.2d 670 (N.Y. App. Div. 2008).

As to the $732,000 quantitative award, defendants submit

that the 2016 Internal Memorandum provides that no sales-related

pay will be due to a terminated employee. Levesque was an at-

will employee who was terminated in 2017. Pursuant to the terms

of the 2013 Plan and the 2016 Internal Memorandum, he has no

valid breach of contract claim for payment to which he was

entitled only if he remained employed. Sabetay v. Sterling Drug,

Inc., 506 N.E.2d 919 (N.Y. 1987) (finding that an employer has

the right to terminate an at-will employee at any time for any

reason or for no reason, except where that right has been

limited by express agreement).

Accordingly, defendants’ motion to dismiss will be allowed

as to all of plaintiff’s claims for unpaid compensation except

for the $367,000 quantitative award.

c. Quasi-Contract Claims

Under New York law, quasi-contractual relief is unavailable

where an express contract covers the subject matter. Karmilowicz

v. Hartford Fin. Servs. Grp., Inc., 494 F. App’x 153, 157 (2d

Cir. 2012); Clark-Fitzpatrick, Inc. v. Long Island R. Co., 516

N.E.2d 190 (N.Y. 1987). Because Levesque’s claims are subject

to the 2013 Plan and the parties negotiated an account-by-

account agreement regarding sales-related pay in the 2016

Internal Memorandum, plaintiff’s quasi-contractual relief is

unavailable. Thus, defendants’ motion to dismiss with respect

to good faith and fair dealing, promissory estoppel and unjust

enrichment will be allowed.

2. Massachusetts Wage Act

a. Choice of Law

Although the 2013 Plan provides that New York law governs

the contract, that choice-of-law provision is not dispositive

with respect to plaintiff’s Massachusetts Wage Act (“the Wage

Act”) claim. Melia v. Zenhire, Inc., 967 N.E.2d 580, 590 (Mass.

2012) (holding that the contract's choice of New York law would

not govern the Massachusetts Wage Act claim because it makes no

reference to statutory causes of actions); see also Berberian v.

G-Form, LLC, No. CV 14-10422-JCB, 2014 WL 12700578, at *5 (D.

Mass. Aug. 29, 2014) (finding that the Rhode Island choice-of-

law provision only applies to the terms of the subject agreement

and makes no reference to statutory causes of action).

Thus, the Court returns to the functional choice-of-law

approach of the forum state absent a prevailing choice-of-law

provision. Under the most significant relationship test, the

Court considers the following factors:

1) the place of contracting; 2) the place of negotiation of

the contract; 3) the place of performance; 4) the location

of the subject matter of the contract; and 5) the domicile,

residence, nationality and place of incorporation of the

parties; 6) the needs of the interstate and international

system; 7) the relevant policies of the forum; 8) the

interest of those states in the determination of the

particular issue; 9) the protection of justified

expectations; 10) the basic policies underlying the

particular field of law; 11) certainty, predictability and

uniformity of result; and 12) ease in the determination and

application of the law to be applied.

Dunfey v. Roger Williams Univ., 824 F. Supp. 18, 20 (D.

Mass. 1993) (internal citations omitted).

In assessing those factors, the Court is not persuaded that the

State of New York has a more significant relationship to the

transaction in litigation than the Commonwealth of

Massachusetts. For example, the fact that Levesque worked in

Massachusetts and that the contract was partially executed in

Massachusetts and New York is not dispositive. Bushkin, 473

N.E.2d at 668 (holding that the governing principles of law

should hardly turn on a parsing of the disputed content of a

telephone call or, more importantly, on the fortuitous fact that

an oral offer was accepted orally in one state rather than in

the other).

Nor does the domiciliary of the respective parties or the

uniformity of the result weigh in favor of either forum. See id.

at 662. Rather, the strongest factor at issue is the

Commonwealth’s fundamental policy interest in enforcing the

Massachusetts Wage Act. Melia, 967 N.E.2d at 587 (finding that

the Wage Act embodies a fundamental public policy of the

Commonwealth). That is not to say that another forum under its

choice-of-law rules would not apply Massachusetts law when

determining whether plaintiff has a viable Wage Act claim. Id.

(nothing in the text or structure of the Wage Act suggests that

enforcement must always be available in Massachusetts). But

unlike Melia, there is no forum selection clause which would

require this case to be brought in New York.

Nor is the Court persuaded that Dow is dispositive, as

defendants contend. Dow v. Casale, 989 N.E.2d 909, 914 (Mass.

App. Ct. 2013). In Dow, the employee travelled throughout the

country on behalf of a company headquartered in Massachusetts.

Id. Because of his nomadic work life, the Massachusetts Appeals

Court concluded that there was no substantial relationship to

any place but Massachusetts. Id. Here, Levesque had been

working out of his Massachusetts office for more than nine

years, an office that had been approved by and paid for by

SIMNA. Moreover, SIMNA withheld Massachusetts income tax from

Leveque’s pay and purchased health insurance with Massachusetts

coverage for Levesque and his family. Finally, Levesque was

tasked with procuring sales from companies throughout the

eastern seaboard, including clients in Massachusetts.

Thus, with respect to the Massachusetts Wage Act claim, the

Court finds that Massachusetts has the most significant contacts

to the transaction in litigation and thus Massachusetts law

applies.

b. Incentive-based Compensation

The Massachusetts Wage Act provides that

[e]very person having employees in his service shall pay

weekly or bi-weekly each such employee the wages earned by

him. . . .

M.G.L. ch. 149, § 148.

To establish a claim for wages under the Act, a plaintiff must

show that 1) he was an employee, 2) his form of compensation

constitutes a wage and 3) the defendants violated the Act by not

paying him his wages in a timely manner. Napert v. Gov’t

Employees Ins. Co., 36 F. Supp. 3d 237, 241–42 (D. Mass. 2014)

(internal citation omitted). Here, the parties generally

dispute whether the compensation at issue constitutes a

commission or a bonus. That factual distinction is material

because the Wage Act generally does not encompass bonuses but

protects commission payments that are “due and payable” and

“arithmetically determinable”. Doucot v. IDS Scheer, Inc., 734

F. Supp. 2d 172, 193 (D. Mass. 2010); Okerman v. VA Software

Corp., 871 N.E.2d 1117, 1222–25 (Mass. App. Ct. 2011).

Even assuming that plaintiff’s management bonus of $250,000

and qualitative bonus of $300,000 are covered by the Act, the

Court finds that plaintiff’s claims are precluded under the

Act’s discovery rule. Crocker v. Townsend Oil Co., 979 N.E.2d

1077, 1083 (Mass. 2012) (holding that under the discovery rule,

the statute of limitations runs from the time a plaintiff

discovers, or reasonably should have discovered, the underlying

harm for which relief is sought). Here, Levesque knew in

February and March of 2014, that he would not be receiving a

management bonus of $250,000 or a $300,000 qualitative bonus for

work performed in 2013. Thus, the three-year statute of

limitations expired before the complaint was filed in November,

2017, and plaintiff’s claims are time barred.

With respect to the $500,000 qualitative award in 2016,

which is not time barred, the fact that such compensation was

labeled as “discretionary” does not automatically render it a

non-qualifying “wage” under the Act. Cf. Weems v. Citigroup

Inc., 900 N.E.2d 89, 94 (Mass. 2009) (where the parties agreed

that the payments were “discretionary”). Drawing all reasonable

inferences in favor of the plaintiff, the Court finds that

Levesque’s disputed compensation was “due and payable” and

“arithmetically determinable” based on the assertion that

qualitative awards were routinely calculated as a percentage of

revenue generated on new sales production when and if the

participating employee met his or her individual goal (subject

to deferral).

Defendants next submit that the ECP deferral renders the

qualitative compensation discretionary, not a wage under the

Act. The Court agrees. See id. (holding that compensation was

“earned” in a deferral program only if the individual was

employed at the time the stock vests). Moreover, the Court is

not persuaded by plaintiff’s argument that the ECP deferral

program constitutes a special contract that violates the public

policy of the Wage Act pursuant to Stanton. In Stanton, the

parties agreed to a deferral of plaintiff’s salary because the

company was not profitable in its first year and could not pay

plaintiff. Stanton v. Lighthouse Fin. Servs., Inc., 621 F. Supp.

2d 5, 14 (D. Mass. 2009). Plaintiff cannot similarly claim that

his deferred compensation constitutes a foregone base salary.

Thus, he has no claim to commissions deferred pursuant to the

ECP.

As to the $367,000 quantitative award in 2016, defendants

contend that plaintiff has proffered a conclusory allegation.

At the motion to dismiss stage, however, plaintiff has a

relatively low hurdle to clear. See Bos. Light Source, Inc. v.

Axis Lighting, Inc., No. 17-CV-10996-NMG, 2017 WL 6543868, at *3

(D. Mass. Nov. 13, 2017) (finding that a complaint is sufficient

if it puts the defendant on notice of what it is alleged to have

done so that it may investigate the complaint and present an

appropriate defense). Plaintiff’s complaint alleges that he did

not receive a quantitative compensation for institutional sales

accrued in 2016, which amounted to $367,000. Given the low

threshold for sufficiency, the Court finds that Levesque has

been specific enough to survive a motion to dismiss.

Regarding the $732,000 quantitative award, plaintiff seeks

to recover commissions earned in 2017 that would have been paid

in 2018 but for his termination. Defendants rejoin that such

incentive compensation was contingent on continued employment

and not determinable or due and payable during his employment.

Here, defendants’ argument that Sheedy is persuasive as to

the continued employment condition is misplaced. Sheedy v.

Lehman Bros. Holdings Inc., No. CIV.A. 11-11456-RGS, 2011 WL

5519909, at *4 (D. Mass. Nov. 14, 2011). In Sheedy, the

defendant company provided the plaintiff with an incentive

payment as a loan advance and the forgiveness of the loan was

extended for only as long as her continued employment. Id. This

is not such a case. Rather, plaintiff has sufficiently alleged

that, with respect to quantitative compensation, he was paid

quarterly based on a percentage of his individual gross sales.

Such payment is akin to that of commissions, not bonuses, and

thus the Court will deny defendants’ motion to dismiss. See

Israel v. Voya Institutional Plan Servs., LLC, No. 15-CV-11914-

ADB, 2017 WL 1026416, at *5 (D. Mass. Mar. 16, 2017).

Defendants next submit that the 2016 Internal Memorandum

provides that sales-related pay will not be disbursed if the

employee is terminated. Assuming that the award at issue is a

protected “commission” under the Act (i.e., that the award was

“earned”), the Court finds that the prescribed withholding of

earned commissions constitutes a special contract in violation

of the Act. Stanton, 621 F. Supp. 2d at 14. Moreover, that

contractual term contradicts the terms of Para. 8.1 of the 2013

Plan which provides that an employee who is not terminated for

good cause will be paid his

Individual Quantitative Bonus Award for any complete

quarter of the Plan Year . . . and shall be entitled to any

pro rata Individual Quantitative Bonus Award for any

partial quarter.

Thus, assuming, as plaintiff contends, that sales-related pay

was calculable based on his percentage of sales for work

performed in 2016, such compensation falls within the Act.

Finally, the Court finds that similar to the claims in

Israel, Levesque has sufficiently pled that he earned

commissions on sales that occurred in 2017, prior to his

termination. Israel, No. 15-CV-11914-ADB, 2017 WL 1026416, at *7

(finding that a delay in the final calculation of commissions

does not mean that they fall outside the scope of the Wage Act).

Thus, the fact that the calculation for payment may have

occurred in a quarter after Levesque left defendants’ employment

is immaterial. Id.

Accordingly, the motion to dismiss will be allowed except

as it relates to the $367,000 and $732,000 quantitative awards.

c. Retaliation

Defendants contend that there is no evidence that they knew

plaintiff was asserting his rights under the Wage Act. The

Court disagrees. Plaintiff has pled facts sufficient to infer

that SIMNA was on notice of his claim for compensation as soon

as he complained to CEO Dasher, his direct supervisor, the chief

of staff for the Asset Management Group and the Head of Human

Resources of the Group, prior to his termination. Moreover,

defendants’ argument that causation cannot be inferred based on

the temporal proximity between the alleged complaints and the

ultimate termination under Mole is unavailing. Mole v. Univ. of

Massachusetts, 814 N.E.2d 329, 339 (Mass. 2004).

Notwithstanding the fact that the retaliation claim in Mole

did not arise under the Wage Act, plaintiff has met his burden.

He has sufficiently alleged facts that he was an employee in

good standing who raised a compensation claim and was terminated

shortly thereafter. Id. (holding that if adverse action is taken

against a satisfactorily performing employee in the immediate

aftermath of the employer’s becoming aware of the employee’s

protected activity, an inference of causation is permissible);

see also Dorney v. Pindrop Sec., Inc., No. 15-CV-11505-ADB, 2015

WL 5680333, at *5 (D. Mass. Sept. 25, 2015). Thus, Levesque’s

retaliation claim survives defendants’ motion to dismiss.

3. Age Discrimination

a. Choice of Law

As determined previously, this Court finds that the

Commonwealth of Massachusetts maintains the most significant

relationship to this litigation. See Bushkin, 473 N.E.2d at 668–

69. Accordingly, the Court will apply Massachusetts law.

b. Motion to Dismiss

The Court is satisfied that Levesque has established his

prima facie burden under the Age Discrimination in Employment

Act (“the ADEA”) and M.G.L. c. 151B. He alleges that 1) he was

60 years of age at the time of his termination, 2) he was

qualified for his position as one of the top two performing

salespersons in his organization, 3) he was actually terminated

and 4) at the time of his termination, his performance was

better than or equal to the performance of younger employees who

were retained and now perform his job. See Del Valle-Santa v.

Servicios Legas De Puerto Rico, Inc., 804 F.3d 127, 129 (1st

Cir. 2015); Coogan v. FMR, LLC, 264 F. Supp. 3d 296, 304 (D.

Mass. 2017) (holding that claims of age discrimination brought

under Chapter 151B and the ADEA track one another closely using

the burden shifting McDonnell framework where there is no direct

evidence of discrimination).

Defendants contest the fourth prong of Levesque’s prima

facie case and argue that because there was a reorganization, he

is required to demonstrate that SIMNA retained unprotected or

younger workers “in the same position” as Levesque. They have

not, however, demonstrated that Levesque must identify specific

individuals who were retained to satisfy this prong, and thus,

plaintiff’s age discrimination claim survives defendants’ motion

to dismiss. Cf. Caputy v. Quad/Graphics, Inc., No. CIV.A. 14-

14159-FDS, 2015 WL 2208825, at *3 (D. Mass. May 11, 2015)

(finding that the fact that the hospital retained all women

nursing supervisors and discharged the only man is sufficient,

by itself, to raise a reasonable inference that the hospital

discharged the man because of his sex) (internal citations

omitted). Rather, Levesque’s allegation that younger employees

were retained post-reorganization to perform his duties is

sufficient to state a claim. See id.

Finally, to the extent that defendants refer to their

legitimate, non-discriminatory reason for termination, the Court

notes that the burden shifting McDonnell framework in an ADEA

claim is generally applied at summary judgment, not at the

motion to dismiss stage. Nevertheless, the Court finds that

Levesque has elucidated specific facts which would enable a jury

to find that the reason given is not only a pretext, but a

pretext intended to cover up the employer’s real motive: age

discrimination. Mesnick, 950 F.2d at 824. Specifically, the

assertions that 1) SIMNA superiors raised his age as an issue at

least five times, 2) Levesque was the only individual terminated

as a result of the reorganization and 3) Levesque was told to

tell co-workers that he intended to retire, all imply age-based

discrimination, even at the final stage of burden shifting.

Accordingly, defendants’ motion to dismiss the ADEA and the

related state law claims will be denied.

ORDER

For the foregoing reasons, defendants’ motion to dismiss

(Docket No. 25) is DENIED with respect to 1) dismissal for lack

of personal jurisdiction, 2) transfer and 3) change of venue,

but is ALLOWED with respect to 1) all contract claims, except

for the $367,000 quantitative award, 2) the quasi-contractual

claims and 3) the Massachusetts Wage Act claims, except as it

relates to the quantitative awards of $367,000 and $732,000.

So ordered.

_/s/ Nathaniel M. Gorton____

Nathaniel M. Gorton

United States District Judge

Dated March 27, 2019