# Wilkins v. Consolidated Communications Holdings, Inc.

> District Court, E.D. North Carolina · March 14, 2025

URL: https://www.frixlaw.com/law-library/cases/10825709

## Case

- **Court:** District Court, E.D. North Carolina
- **Decided:** March 14, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10825709

## How later opinions describe it (automated extraction)

- holding that a factual dispute is “material” only if it might affect the outcome of the suit and “genuine” only if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION

NO. 5:23-CV-655-FL

ALAN BRENT WILKINS, )
)
Plaintiff, )
)
v. )
ORDER
)
CONSOLIDATED COMMUNICATIONS )
HOLDINGS, INC., )
)
Defendant. )

This matter is before the court on defendant’s motion for summary judgment (DE 23). The
motion has been fully briefed and the issues raised are ripe for ruling. For the following reasons,
defendant’s motion is granted.
STATEMENT OF THE CASE
Plaintiff commenced this action November 15, 2023, wherein he asserts six claims, all
under North Carolina law: 1) violation of the North Carolina Wage and Hour Act, N.C. Gen. Stat.
§ 95-25.1 et seq. (the “NCWHA”); 2) breach of contract/breach of the covenant of good faith and
fair dealing; 3) breach of contract accompanied by fraud; 4) unjust enrichment; 5) wrongful
discharge in violation of public policy; and 6) negligent misrepresentation. Plaintiff seeks
compensatory, punitive, and liquidated damages, plus fees and costs.
Following a period of discovery, defendant filed the instant motion for summary judgment.
Defendant relies on a statement of material facts (“SMF”) and appendix containing the depositions
of plaintiff and three of its employees: Brian Lee Carr (“Carr”), Greg Flanagan (“Flanagan”), and
Pam Lehrke (“Lehrke”).
Plaintiff’s response in opposition places reliance upon a responsive statement of material
facts, and his statement of additional material facts, containing the same depositions and internal
communications from defendant produced in discovery.

STATEMENT OF FACTS
Defendant is a corporation headquartered in Illinois which operates in the internet and
telecommunications sectors, and for which plaintiff worked. (Compl. (DE 3) ¶¶ 1–2).
During plaintiff’s job interview with defendant in January, 2021, a representative of
defendant told plaintiff that his base salary would be $120,000.00, with the opportunity to earn
commissions in a business development role. (Def’s SMF (DE 25) ¶ 1). During the same
interview, defendant’s representative stated that there was no cap on commissions, but did not
discuss commissions for particular deals or defendant’s commission structure. (Id. ¶ 2). Plaintiff
received an offer letter dated February 1, 2021, outlining terms of at-will employment, including

a base salary, but with no reference to commissions. (Id. ¶ 3). Around the same time, plaintiff
received a separate document from defendant that outlined “at risk” commissions in the amount of
$93,750, based on a goal of 100% of $5 million in revenue. (Id. ¶ 4).
Plaintiff began his employment February 22, 2021. He reported to Flanagan, “vice
president of wholesale services and business development,” who in turn reported to Carr, then
“senior vice president of carrier sales.” (Id. ¶ 5). Plaintiff was initially hired for the purpose of
selling excess capacity fiber to other carriers, though plaintiff contends he was also hired to
develop new business. (Id. ¶ 6; Pl’s SMF (DE 32) ¶ 6). Throughout 2021, plaintiff earned
commissions for making sales. (Def’s SMF ¶ 7). Defendant tracked its commissions through a
software platform named Salesforce, in which defendant’s employees could see their commissions.
(Id. ¶¶ 8–9). Plaintiff contends that some, but not all, commissions were tracked through
Salesforce, and notes that employees could not see their potential commission on any given
transaction. (Pl’s SMF ¶ 9). Salesforce was maintained by Lehrke, another employee of
defendant. (Def’s SMF ¶ 8).

In November, 2021, plaintiff became involved in a transaction by which defendant sought
to sell 49 wireless towers across 22 states (the “TowerCo Deal”). (Id. ¶¶10–11). Some, though
not all, of the towers were no longer generating any revenue, and 12 had physically collapsed. (Id.
¶ 11; Pl’s SMF ¶ 11). Plaintiff believed he would receive a commission on the TowerCo Deal,
structured similarly to a commission he had received on another recent transaction, though he
never received any affirmative communication from defendant to this effect. (Def’s SMF ¶ 12;
Pl’s SMF ¶ 12). Plaintiff received a 2022 sales commission plan from defendant’s director of
compensation on July 14, 2022. (Def’s SMF ¶ 13). Plaintiff declined to sign the plan until
compensation for the TowerCo Deal was agreed upon, because plaintiff believed defendant had

sent the plan shortly before the first step in the closing of the TowerCo Deal in an effort to reduce
his commission. (See Def’s SMF ¶ 14; Pl’s SMF ¶ 14). Plaintiff testified that he received a sales
commission plan in 2021, and believed the 2022 edition was “probably the same thing,” though
plaintiff now notes that he was never placed under any such plan for 2021. (Def’s SMF ¶ 16; Pl’s
SMF ¶ 16).
On September 20, 2022, plaintiff requested a “refresher” from Lehrke on the Salesforce
platform, as his “focus” was on “infrastructure and most recently asset sales.” (Pl’s SMF ¶ 17).
Lerhke had never seen an asset sale inside Salesforce. (Id. ¶ 18). The first part of the TowerCo
Deal closed on September 23, 2022, and plaintiff had discussions with defendant about
compensation for the transaction. (Def’s SMF ¶¶ 19–20; Pl’s SMF ¶¶ 19–20). Eventually, Carr
told plaintiff on October 2, 2022, that compensation for the TowerCo Deal would be $80,000.00,
which plaintiff called “laughable” before demanding over $400,000.00 instead. (Pl’s SMF ¶ 20).
Plaintiff emailed Lerhke the next day about the TowerCo Deal, in which he referenced “the same
percentage” as the commission from another, earlier transaction in 2021. (Def’s SMF ¶ 21).

Plaintiff emailed Carr and Flanagan on October 4, 2022, with a counter-proposal of a 1%
commission together with a promotion and an increase in base salary. (Def’s SMF ¶ 23). Flanagan
indicated a willingness to continue discussions. (Id.). Plaintiff repeated the counter-proposal on
October 11, 2022, and noted that because the TowerCo Deal was an “asset sale,” it could not be
entered into Salesforce. (Id. ¶ 25). Plaintiff asserts that he characterized the transaction as an
“asset sale” only once defendant’s leadership characterized it as such. (Pl’s SMF ¶ 25). On
October 17, 2022, Carr emailed his superiors with recommendations for discretionary bonuses for
employees who had worked on the TowerCo Deal, including a $140,000.00 bonus for plaintiff.
(Def’s SMF ¶ 26). The email also noted that, if the TowerCo Deal had been a commissionable

transaction, plaintiff would have been owed a commission of approximately $430,000.00. (Id. ¶
27). Plaintiff continued to seek clarification on his compensation for the TowerCo Deal through
October, 2022. (Id. ¶¶ 28–30).
Ultimately, defendant decided to reduce the total discretionary bonus pool for the TowerCo
Deal to $230,000.00 of which $60,000.00 would go to Carr, which reduced plaintiff’s bonus from
$140,000.00 to $100,000.00. (Id. ¶ 31). Plaintiff received this payment on November 23, 2022.
(Id. ¶ 32). The parties dispute whether defendant had ever paid commissions on asset deals before,
or whether special compensation for such transactions was entirely discretionary. (Id. ¶ 33; Pl’s
SMF ¶ 33). They further dispute how much revenue plaintiff generated for defendant in 2022.
(Def’s SMF ¶ 38; Pl’s SMF ¶ 38).
On March 8, 2023, Flanagan terminated plaintiff effective June 20, 2023. The parties
dispute whether this termination was part of a larger, company-wide reduction in force. (Def’s
SMF ¶ 40; Pl’s SMF ¶ 40).

COURT’S DISCUSSION
A. Standard of Review
Summary judgment is appropriate where “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). The party seeking summary judgment “bears the initial responsibility of informing
the district court of the basis for its motion, and identifying those portions of [the record] which it
believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986).
Once the moving party has met its burden, the non-moving party must then “come forward

with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co.
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). Only disputes between the parties over
facts that might affect the outcome of the case properly preclude the entry of summary judgment.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (holding that a factual dispute
is “material” only if it might affect the outcome of the suit and “genuine” only if there is sufficient
evidence for a reasonable jury to return a verdict for the non-moving party).
“[A]t the summary judgment stage the [court’s] function is not [itself] to weigh the
evidence and determine the truth of the matter but to determine whether there is a genuine issue
for trial.” Id. at 249. In determining whether there is a genuine issue for trial, “evidence of the
non-movant is to be believed, and all justifiable inferences are to be drawn in [non-movant’s]
favor.” Id. at 255; see United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (“On summary
judgment the inferences to be drawn from the underlying facts contained in [affidavits, attached
exhibits, and depositions] must be viewed in the light most favorable to the party opposing the
motion.”).

Nevertheless, “permissible inferences must still be within the range of reasonable
probability, . . . and it is the duty of the court to withdraw the case from the [factfinder] when the
necessary inference is so tenuous that it rests merely upon speculation and conjecture.” Lovelace
v. Sherwin-Williams Co., 681 F.2d 230, 241 (4th Cir. 1982). Thus, judgment as a matter of law
is warranted where “the verdict in favor of the non-moving party would necessarily be based on
speculation and conjecture.” Myrick v. Prime Ins. Syndicate, Inc., 395 F.3d 485, 489 (4th Cir.
2005). By contrast, when “the evidence as a whole is susceptible of more than one reasonable
inference, a [triable] issue is created,” and judgment as a matter of law should be denied. Id. at
489-90.

B. Analysis
Defendant moves for summary judgment against all of plaintiff’s claims. The court
considers them in the order presented in plaintiff’s complaint.
1. Violation of the North Carolina Wage and Hour Act
Defendant challenges plaintiff’s NCWHA claim on multiple grounds, contending that
plaintiff was not entitled to any commission on the TowerCo Deal and that, even if he had been, it
provided notice adequate under the NCWHA. The court agrees with the latter point.
The NCWHA prohibits an employer from reducing wages without a written notice to the
employee at least one pay period in advance. N.C. Gen. Stat. § 95-25.13(3). “Wages,” as used in
this statute, include commissions if the employer had a policy or practice of paying them. Id. §
95-25.2(16).
Plaintiff claims that defendant violated the NCWHA by cancelling the commission due on
the TowerCo Deal, because it had a policy and practice of paying commissions on similar
transactions. Defendant disagrees, and the primary dispute on this claim, upon which the parties

spill much ink, is what categories of transactions were commission-eligible under defendant’s
policies and practices, and whether the TowerCo Deal fits into at least one such category.
However, the court need not address this thorny question because defendant is correct that,
assuming the TowerCo Deal was otherwise commission-eligible, it provided the requisite notice
that plaintiff would receive no commission thereon.
As noted, the NCWHA requires written notice to an employee about any reduction in
compensation at least one pay period in advance. N.C. Gen. Stat. § 95-25.13(3). Plaintiff received
his pay every two weeks. (Pl’s Dep. (DE 33-2) 312). The TowerCo Deal closed in two phases,
one on September 23, 2022, and the other in December, 2022. (Def’s SMF (DE 25) ¶ 19; Pl’s

SAMF (DE 33) ¶ 20). So, defendant had to provide notice to plaintiff of any modification to its
commission practice at least two weeks before September 23, 2022. Defendant provided a “Sales
Commission Plan” to plaintiff on July 14, 2022. (Def’s SMF ¶ 13). That plan identified three,
and only three, categories of transactions for which plaintiff could receive a commission, and
plaintiff acknowledged in his deposition testimony that the TowerCo Deal was not within any.
(See Pl’s Dep. (DE 33-2) at 139–47). Plaintiff received this document more than two weeks before
September 23, 2022, the earliest any possible commission could have been due. (Pl’s SMF ¶ 13).
Plaintiff offers four responses. First, he points to the absence of language in the Sales
Commission Plan expressly disclaiming defendant’s obligation to pay commissions, except for a
clause excluding commissions not earned by plaintiff before his last day of employment. This
argument is ineffective. Plaintiff is correct that the Sales Commission Plan contains no language
expressly excluding any commission for the TowerCo Deal, but it defined only three categories of
transactions on which commissions could be earned. (Pl’s Dep. Ex. 7 (DE 26-1) 292–94). Plaintiff
testified at his deposition that the TowerCo Deal did not fit within any. (See Pl’s Dep. at 139–47).

For example, when asked to confirm that the TowerCo Deal did not fall into the third such
category, plaintiff responded “correct.” (Id. at 147). The Sales Commission Plan operated to
exclude commissions on the TowerCo Deal by placing it outside its definition of a commission-
eligible transaction, notwithstanding the absence of express exclusionary language particular to
that deal.
Second, plaintiff points to internal characterization by defendant’s other employees of
another transaction, which plaintiff asserts was materially similar to the TowerCo deal, as
commission-eligible. However, the record evidence demonstrates that defendant’s employees
recognized this transaction was not within the terms of the Sales Commission Plan’s definition of

a commission-eligible transaction, but elected to pay a commission on it anyway to ensure
successful completion of the sale. (See Flanagan Dep. 107–108). This subsequent decision, made
on a project-by-project basis, did not nullify the Sales Commission Plan. Even if this decision
reflected a decision to discard the Sales Commission Plan and to overhaul employee compensation,
plaintiff produces no evidence that the decision occurred any earlier than February, 2023, months
after the final closure of the TowerCo Deal, to which the Sales Commission Plan applied. (Pl’s
SMF Ex. E (DE 33-6) 7).
Third, plaintiff asserts that defendant had a blanket policy of paying commissions on all
sales. Even assuming the Sales Commission Plan did not supersede this policy, this argument
mischaracterizes the evidence.
Plaintiff first relies upon statements made during his interview with defendant, but admits
that no discussion of commissions on “particular deals or [defendant’s] commission structure”

occurred during that meeting. (Def’s SMF ¶ 2; Pl’s SMF ¶ 2). Plaintiff also relies upon deposition
testimony from one of defendant’s employees to argue that he received commissions on all sales.
However, the testimony in question is merely that plaintiff received some form of compensation
for all his sales, not commissions in particular. (Flanagan Dep. 110–111). Indeed, plaintiff
received a discretionary bonus for the TowerCo Deal. (Pl’s SMF ¶ 32).
Finally, plaintiff objects that he never signed the Sales Commission Plan. This argument
does not succeed either. The plain language of the statute requires an employer to provide written
notice of a change in wages, not for the employee to consent to such change. N.C. Gen. Stat. §
95-25.13(3).

The court therefore concludes, as a matter of law, that defendant did not violate the
NCWHA because it provided NCWHA-conforming notice that plaintiff would not receive a
commission on the TowerCo Deal. Summary judgment in defendant’s favor is warranted.
2. Breach of Contract
Defendant requests summary judgment against plaintiff’s breach of contract claims.1 The
court agrees that summary judgment on these two claims is proper.

1 Plaintiff’s second claim is for breach of contract and breach of the covenant of good faith and fair dealing,
while his third claim is for “breach of contract accompanied by fraud.” (Compl ¶¶ 46–62). The parties do not
distinguish between these two claims in their briefing.
Under North Carolina law, a claim for breach of contract requires only 1) existence of a
valid contract; and 2) breach of the terms thereof. Wells Fargo Ins. Servs. USA, Inc. v. Link, 372
N.C. 260, 276 (2019). Defendant argues that there was no contract to pay plaintiff a commission
on the TowerCo Deal. The court agrees.
Defendant points to the Sales Commission Plan and plaintiff’s offer letter to establish that

it was under no contractual obligation to pay a commission on the TowerCo Deal. Indeed,
plaintiff’s offer letter does not discuss commissions at all, much less what specific transactions
were commission-eligible. (Lehrke Dep. (DE 33-2) at 312–13). In response, plaintiff asserts,
summarily and without citation, that an unspecified employment contract governed the parties’
relationship. (Pl’s Br. 8). This bare assertion does not satisfy plaintiff’s burden to create a genuine
issue of material fact. See Anderson v. Diamondback Inv. Grp., LLC, 117 F.4th 165, 174 (4th Cir.
2024).
Plaintiff also relies upon the same evidence as he used to support his NCWHA points. As
under that claim, plaintiff relies upon: 1) deposition testimony that plaintiff would receive some

form of compensation for all his sales, though he received a discretionary bonus for the TowerCo
Deal, (see Flanagan Dep. 110–111); 2) the Sales Commission Plan, which excluded the TowerCo
Deal from its definition of a commission-eligible transaction, (see Pl’s Dep. 139–47); and 3) an
employee of defendant referring to another transaction as commission-eligible, despite its
exclusion under the Sales Commission Plan, as a matter of discretion. (See Flanagan Dep. 107–
108). These arguments do not demonstrate the existence of any contract obliging defendant to pay
a commission on the TowerCo Deal.
Next, plaintiff points to a statement from his supervisor during a performance review that
plaintiff had generated $21 million in “TCV,” which stood for “total contract value.” (Pl’s SAMF
¶ 7; Pl’s Dep. Ex. 6 (DE 26-1 at 283)). However, this employee clarified that the TCV goal was
specific to dark fiber and conduit sales, and that nothing in the performance review was
compensation-related. (See Flanagan Dep. at 55, 122). The existence of the word “contract” in a
performance metric does not demonstrate the existence of any contract to pay a commission on
the TowerCo Deal. Finally, plaintiff relies upon his own subjective understanding that he was

owed commissions on all sales. (Pl’s Dep. 55). However, the formation of a contract under North
Carolina law requires mutual assent to a proposed contract’s terms. E.g., Creech v. Melnik, 347
N.C. 520, 527 (1998). Plaintiff produces no evidence that defendant ever assented to plaintiff’s
understanding of his compensation.
Because plaintiff fails to establish the existence of any contract obliging defendant to pay
a commission on the TowerCo Deal, plaintiff’s claims for breach of contract fail.
3. Unjust Enrichment
Unjust enrichment under North Carolina law requires the plaintiff to have 1) conferred a
benefit on the other party, 2) not through interference in the other party’s affairs, 3) not

gratuitously, 4) with measurable value, which 5) the defendant consciously accepted. Krawiec v.
Manley, 370 N.C. 602, 615 (2018); JPMorgan Chase Bank, Nat’l Ass’n v. Browning, 230 N.C.
App. 537, 542 (2013).
Plaintiff’s unjust enrichment claim rests upon an unclear theory. Plaintiff appears to argue
that the benefit in question was the profit defendant reaped on the TowerCo Deal, which was unjust
to plaintiff because defendant misled him into foregoing other sales opportunities.
The ample compensation paid to plaintiff defeats this claim. North Carolina courts
uniformly characterize unjust enrichment as a claim requiring the recipient to retain a benefit
“without compensating” or repaying the plaintiff, “which would render it unjust for the [defendant]
to keep the benefit.” Wright v. Wright, 305 N.C. 345, 353 (1982); e.g., Browning, 230 N.C. App.
at 542 (“the doctrine of unjust enrichment was devised by equity to exact the return of . . . benefits
received . . . without the contributor being repaid or compensated”); Collins v. Davis, 68 N.C. App.
588, 591 (1984) (same); Relation Ins., Inc. v. Pilot Risk Mgmt. Consulting, LLC, 2024 NCBC 46,
at *41 (N.C. Bus. Ct. 2024) (“the law will imply a promise to pay a fair compensation”); In re

Southeastern Eye Ctr., 2019 NCBC 28, at *36 (N.C. Bus. Ct. 2019) (same). But here, plaintiff
received compensation beyond his base salary in the form of the largest discretionary bonus ever
paid by defendant. (See Def’s SMF ¶ 33; 2 Carr Dep. (DE 33-3) at 234–235). This bonus defeats
plaintiff’s unjust enrichment claim., which requires an unfair lack of compensation. E.g., Wright,
305 N.C. at 353; In re Southeastern Eye Ctr., 2019 NCBC 28, at *36.
Finally, plaintiff’s argument that the TowerCo Deal induced him to forego unspecified
other opportunities, thereby constituting inequitable conduct sufficient to salvage the claim, fails.
Plaintiff cites no authority that supports such a theory under North Carolina law, and the court’s
research has revealed none.3 But even assuming the validity of this theory, the undisputed

evidence, including plaintiff’s own deposition testimony, demonstrates that plaintiff worked on
the TowerCo Deal because he had no other sales opportunities. (Pl’s Dep. Ex. 6 (DE 26-1) at 288);
Flanagan Dep. 124).

2 Plaintiff’s statement of material facts states “denied” vis-à-vis this paragraph, but plaintiff’s response
elaborates his disagreements, which all have to do with the categorization of certain transactions. Plaintiff’s response
does not deny the payment of a bonus or its amount. (Pl’s SMF ¶ 33); Wai Man Tom v. Hosp. Ventures LLC, 980
F.3d 1027, 1037 (4th Cir. 2020) (“conclusory . . . denials, without more, are insufficient to preclude [summary
judgment]”).

3 Indeed, authority from other states rejects such theories presented to support unjust enrichment, see Pettersen
v. Monaghan Safar Ducham PLLC, 256 A.3 604, 611 (Vt. 2021); Waage v. Borer, 525 N.W.2d 96, 99 (Wis. Ct. App.
1994), as well as the similarly equity-based claim of promissory estoppel. See, e.g., Barber v. SMH (US), Inc., 509
N.W.2d 791, 797 (Mich. Ct. App. 1993); Hanly v. Riverside Methodist Hosp, 603 N.E.2d 1126, 1131 (Ohio Ct. App.
1991).
Summary judgment in favor of defendant on plaintiff’s unjust enrichment claim is therefore
warranted.
4. Wrongful Discharge in Violation of North Carolina Public Policies
This claim rests upon the Retaliatory Employment Discrimination Act, N.C. Gen. Stat. §
95-240 et seq. (“REDA”), which prohibits employers from retaliating against employees for,

among other conduct, seeking compensation owed. See id. § 95-241(a)(1)(b).4
To establish such a claim, a plaintiff must show 1) that he exercised rights listed in REDA;
2) he suffered an adverse employment action; and 3) the alleged retaliatory action was taken
because the employer exercised his rights under REDA. See id.; Wiley v. United Parcel Serv., Inc.,
164 N.C. App. 183, 186 (2004); cf. Abels v. Renfro Corp., 335 N.C. 209, 216 (1993) (evaluating
a claim under N.C.G.S. § 97–6.1, which statute REDA replaced). Defendant argues that plaintiff
did not engage in protected activity under REDA, and that even if he had, no causal connection
between the protected activity and plaintiff’s termination exists. The court agrees that plaintiff
engaged in no protected activity.

Plaintiff points to repeated emails and other communications from plaintiff to his
supervisors requesting a commission on the TowerCo Deal, and expressing dissatisfaction about
his compensation for the same. (See Pl’s SMF ¶¶ 19, 29, 40; Pl’s SAMF ¶ 24). But REDA only
protects, as relevant here, the “fil[ing] of a claim or complaint, initiat[ing] any inquiry . . . or
testify[ing],” as to statutory rights including the NCWHA. N.C. Gen. Stat. § 95-241(a)(1)(b).
Courts have repeatedly held that internal complaints to supervisors such as plaintiff alleges here
are not protected activity under REDA, because this statutory language does not cover oral or

4 In his complaint, plaintiff cites N.C. Gen. Stat. § 95-25.1, the policy statement and short title section of the
NCWHA, and alludes to terminating employees who oppose violations of that statute. (Compl. ¶¶ 67–70). Plaintiff’s
briefing clarifies that this claim rests upon the anti-retaliation provisions of REDA, which protect rights asserted under,
among other statutes, the NCWHA. (See Pl’s Br. 11–13).
informal actions, or those which are made only to an employee’s managers or supervisors. See,
e.g., Pierce v. Atl. Grp., Inc., 219 N.C. App. 19, 28 (2012) (dismissing REDA claim where the
“[p]laintiff spoke only to his supervisors about his concerns”); Sanders v. Waffle House, Inc., No.
5:21-cv-485-FL, 2023 WL 2587479, at *6 (E.D.N.C. Mar. 21, 2023) (rejecting complaints “about
[employee’s] hours being wrong” on her paycheck as protected activity); Matthews v. Herc

Rentals Inc., No. 7:21-cv-89-BO, 2023 WL 8190155, at *5 (E.D.N.C. Nov. 27, 2023) (informal
complaints to supervisor not protected); Davis v. Cap. Ready Mix Concrete, LLC, No. 5:21-cv-
463-D, 2023 WL 7346060, at *8 (E.D.N.C. Nov. 7, 2023) (similar).5
Plaintiff’s only alleged protected activities were internal complaints to his supervisors
about his compensation, which did not lead to any investigation, which are not protected by REDA.
This claim therefore cannot rest upon these complaints.
Finally, plaintiff appears to argue, as an alternative theory of his wrongful discharge claim,
that it can proceed because defendant falsely ascribed his termination to a budget-induced
reduction in force, rather than to his commission complaints. (Pl’s Br. 12–13). However, North

Carolina is an employment-at-will state, in which an employer may terminate an employee for “no
reason, or for an arbitrary or irrational reason[.]” Coman v. Thomas Mfg. Co., Inc., 325 N.C. 172,
175 (1989).6 If defendant lied about why it terminated plaintiff, such behavior may not be
admirable employment conduct, but it cannot support a wrongful discharge claim under North
Carolina law. E.g., id.

5 The Supreme Court of North Carolina has not addressed the issue, see Davis, 2023 WL 7346060, at *8, so
the court consults decisions from the North Carolina Court of Appeals and federal courts applying North Carolina
law.

6 Coman noted a narrow exception to this doctrine under which an employer cannot terminate an employee for
refusing to engage in criminal conduct, in that case perjury, but such concerns are clearly absent from this case.
Because plaintiff engaged in no REDA-protected activity, and because defendant’s alleged
falsehoods about why it terminated plaintiff cannot support a wrongful discharge claim, summary
judgment against this claim is warranted.
5. Negligent Misrepresentation
Defendant argues that plaintiff’s claim for negligent misrepresentation fails for, among

other reasons, lack of justifiable reliance by plaintiff. The court also agrees.
To establish a claim of negligent misrepresentation, a plaintiff must 1) justifiably rely to
his detriment 2) on information prepared without reasonable care 3) by one who owed the relying
party a duty of care. Dallaire v. Bank of Am., N.A., 367 N.C. 363, 369 (2014).
Plaintiff relies upon statements about his compensation made during his interview, as well
as portions of testimony discussed above with reference to plaintiff’s other claims. Defendant
contends that plaintiff could not have justifiably relied upon any of these statements to form the
belief that he was owed a commission on the TowerCo Deal.
First, plaintiff admits that no discussion of commissions on “particular deals or

[defendant’s] commission structure” occurred during his job interview. (Def’s SMF ¶ 2; Pl’s SMF
¶ 2). Second, plaintiff points to other pieces of evidence already discussed above: 1) his own
subjective understanding of defendant’s commission structure, and 2) a statement that plaintiff
received some form of compensation for all his transactions. (Pl’s SAMF ¶¶ 3–8). But plaintiff’s
subjective understanding of his commission eligibility logically cannot support the justifiable
reliance element of negligent misrepresentation, as that tort revolves around information provided
by another. Dallaire, 367 N.C. at 369. And as discussed above, the other testimony on which
plaintiff relies was that he would receive some form of compensation for all his sales, as he did for
the TowerCo Deal in the form of a discretionary bonus. (See Flanagan Dep. 34, 110–111).
The court therefore agrees with defendant that plaintiff could not have justifiably relied
upon any of these statements, and that summary judgment in its favor on this claim also is
warranted.
CONCLUSION
Based on the foregoing, defendant’s motion for summary judgment (DE 23) is GRANTED.
The clerk is DIRECTED to close this case.
SO ORDERED, this the 14th day of March, 2025.

LOUISE W. FLANAGAN
United States District Judge

15

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10825709. Public record. Not legal advice.