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Freiberg v. Nextel West Services LLC

United States District Court, Eighth Circuit

November 18, 2013

CHARLES FREIBERG, Plaintiff,
v.
NEXTEL WEST SERVICES LLC, Defendant.

REPORT AND RECOMMENDATION

JANIE S. MAYERON, Magistrate Judge.

The above matter came before the undersigned on defendant's Motion to Dismiss [Docket No. 8]. Steven E. Uhr, Esq. appeared on plaintiff's behalf. Bradley J. Betlach, Esq. appeared on defendant's behalf. This matter has been referred to the undersigned Magistrate Judge for a Report and Recommendation by the District Court pursuant to 28 U.S.C. § 636(b)(1)(A), (B) and Local Rule 72.1(c).

I. FACTUAL BACKGROUND

A. Plaintiffs' Amended Complaint

Plaintiff sued defendant Nextel West Services LLC ("Sprint") in state district court on January 14, 2013. Notice of Removal [Docket No. 1]. Sprint removed the matter to Federal District Court on February 13, 2013. Id . On February 16, 2013, Freiberg filed the First Amended Complaint. See Docket No. 5.

The facts as alleged in the First Amended Complaint are as follows. Plaintiff was employed by Sprint from approximately October, 2004 until his termination on July 30, 2012. See First Amended Complaint [Docket No. 5], ¶ 4. From approximately January, 2012 until his dismissal, plaintiff was a Major Account Manager ("MAM"). Id., ¶ 6. After his promotion to the MAM position, he was recognized for his high quality of work from Sprint's vice president of sales. Id., ¶ 7. The performance metrics for the MAM position included a sales performance metric and a health metric, but because the MAM position was new in the Twin Cities, MAMs were not to be judged on their sales performance until approximately October, 2012. Id., ¶ 8. The metric for ranking employees was not operating correctly through 2012, and plaintiff's performance evaluation did not take into account wire line accounts, which took a significant amount of plaintiff's time. Id., ¶¶ 9, 10. Other members of plaintiff's peer group were consistently low on the health metric and the number of monthly sales, yet these individuals were not terminated or otherwise warned that their performance was inadequate. Id., ¶¶ 11, 12.

While Sprint used salesforce.com as a forecasting tool, contrary to Sprint's policy, plaintiff's supervisor, Jason Madison, used a different forecasting tool. Id., ¶ 13. Plaintiff called his forecasts into Madison in a timely manner and also entered his forecasts into salesforce.com. Id . Because of plaintiff's experience in telecommunications, Madison scheduled his weekly "one-on-one" meetings with plaintiff during same time as regularly scheduled training meetings. Id., ¶ 14. Other employees in his peer group who did not attend training meetings were not terminated or disciplined for such conduct, and his termination was not consistent with the treatment of other individuals in his peer group. Id., ¶¶ 15-16.

Between 2008 through 2012, plaintiff made or instigated multiple reports to corporate security or the ethics hotline of wrongdoing by Sprint's employees, including a report regarding the unauthorized misappropriation and sale of hundreds of Sprint phones by least one Sprint's employees, and a report that a number of Sprint's employees, including Madison, planned on attending a vendor junket to the U.S. Open without obtaining advance company approval as required by Sprint's policy. Id., ¶¶ 19-21. After one report by plaintiff, Sprint's corporate security employee, Michael Ogden, read plaintiff his "Miranda" rights, which plaintiff believed was done to intimidate and discourage him from making further reports of misconduct by Sprint's employees. Id., ¶ 22. Madison also told plaintiff after one of his reports that he should not be a "tattle tale." Id., ¶ 23.

In February, 2012, plaintiff told an employee of Pakistani ancestry, to whom an area sales manager had spoken in a derogatory manner in violation of Sprint's discrimination policy, that the employee should make a report to the Sprint ethics hotline. Id., ¶ 26. The employee made such a report and subsequently, the area sales manager who made the derogatory comments to the employee, suggested to Madison that plaintiff be terminated. Id.

Plaintiff needed to take time off of work due to litigation against his ex-wife. Id., ¶ 27. Madison intentionally mislead plaintiff in telling him that his job would not be in jeopardy for the time off he needed to take. Id., ¶ 27.

In April, 2012, plaintiff received a written warning that his performance was not adequate and he was given a corrective action plan that he fully completed, but Madison told him that the corrective action plan would proceed. Id., ¶¶ 29, 30. Subsequently, plaintiff exercised his rights under Sprint's "Open Door" policy, but Madison failed to attend the meeting. Id., ¶¶ 31, 32. The next meeting held between plaintiff and Madison was on July 30, 2012, when plaintiff was terminated. Id., ¶¶ 32, 39. While plaintiff made another request to invoke Sprint's Open Door policy prior to the termination meeting, Madison did not respond to this request. Id., ¶ 35. During the termination meeting, plaintiff again requested to exercise his rights under the Open Door policy, which was denied by Madison. Id., ¶ 38.

Count I asserts a breach of contract on the basis that Sprint retaliated against plaintiff for making reports of wrongful conduct by Sprint's employees in violation of the Sprint's policy prohibiting retaliation against employees who report misconduct or who assist in the reporting of or in the investigation of misconduct. Id., ¶¶ 46-50. According to plaintiff, Sprint's policy against retaliation for reporting misconduct created on enforceable agreement between the parties, and the retaliation against him for making such reports amounted to a material breach of this agreement. Id., ¶¶ 51-54.

Count II alleges that Sprint represented to its employees that their performance would be accurately and consistently measured, as a compared to members of their peer group, through the application of various mathematical formulas, and these representations constituted a binding contractual obligation on Sprint. Id., ¶¶ 56, 57. Plaintiff asserted that during some or all of the time period he was working as a MAM, Sprint did not accurately or properly measure his job performance, which resulted in an incorrect assessment of his past performance and his termination. Id., ¶¶ 58-60.

Count III sets forth another breach of contract claim based on the failure by Sprint to abide with the Open Door policy and instead terminated him, which plaintiff claimed constitutes a material breach of an enforceable agreement between the parties. Id., ¶¶ 62-67.

In Count IV, plaintiff claims that as a consequence of him making good faith reports of wronging by other employees, in violation of state and federal law, Sprint threatened, disciplined and terminated him in violation of Minn. Stat. § 181.932. Id., ¶¶ 69-72.

B. Additional Evidence Submitted by the Parties

Sprint provided to the Court several excerpts from its Employee Guide in support of the present motion to dismiss. The first is the "Employment at Will" policy that was allegedly effective on the date of plaintiff's termination. The policy provided:

Employment at Sprint is "at will" and for no definite period of time. Either Sprint or its employees may terminate or alter the terms of employment at any time, with or without advance notice and for any reason or no reason. Only Sprint's chief executive officer has the authority to enter into any employment contract for any specified or unlimited amount of time or alter an employee's "at will" status. Such agreement must be in writing and signed by wither the chief executive offer or the chief operating officer and the employee.

Declaration of Valentina "Val" Nosel[1] [Docket No. 12] ("Nosel Del."), Ex. 1.

Sprint also submitted the Code of Conduct in the Employment Guide which provides:

Demonstrating integrity is one of the core value at Sprint. Employees who behave in a dishonest, unethical or illegal manner not only reflect poorly on the company but on all of us. All sprint employees are expected to conduct themselves with the highest level of integrity in all circumstances. Conduct that is not allowed includes:
* * *
Retaliation: Retaliation against any employee who reports or assist in reporting and ethics, discrimination or harassment concern in good faith is prohibited. Other words that describe retaliation include revenge, pay back and getting even. At Sprint any form of retaliation or adverse action against an employee is strictly forbidden. This includes retaliating against en employee who reports in good faith suspected violation of the law, violation of the Sprint Code of Conduct, assisting in an intern; investigation, files an internal/external complaint or files a lawsuit. If an employee believes that they are retaliated against they should report their concerns immediately to any manager, the Ethics Helpline or speak to an HR representative.

Id., Ex. 2. The Code of Conduct also includes the following disclaimer:

The EPG, sprint policies, guidelines, practices, web pages, handbooks, manuals, programs, plans, video presentations and any other communications are not intended to and do not create a term of employment or employment contract, express or implied, between the employees and Sprint and do not limit or restrict Sprint with respect to the creation or termination of relationships with its employees.

Id.

Finally, Sprint provided the Open Door and Alternate Dispute Resolution Program, which provided in relevant part:

We're committed to creating a productive work environment that promotes open communication among employees and allows them to seek resolution of job related concerns within the company as quickly, fairly and informally as possible, without retaliation. Employees are encouraged to bring any work-related problems, disagreements, questions, recommendations or comments to the attention of their immediate manager, any other member of management in their functional chain of command, Human Resources or the Ethics Helpline.
The Open Door Process Guide provides tips to assist an employee in preparing for an effective, more formalized Open Door discussion.

Id., Ex. 3. This provision, which was part of Sprint's on-line Employment Guide, also provided the following disclaimer:

The EPG, sprint policies, guidelines, practices, web pages, handbooks, manuals, programs, plans, video presentations and any other communications are not intended to and do not create a term of employment or employment contract, express or implied, between the employees and Sprint and do not limit or restrict Sprint with respect to the creation or termination of relationships with its employees.

Id.

In turn, plaintiff, submitted a copy of the Sprint Code of Conduct, which was downloaded from www.sprint.com on March 25, 2013. Relevant portions from the Code of Conduct were as follows:

Sprint Code of Conduct
The Sprint Code of Conduct (the Code) is applicable to employees of Sprint and its controlled subsidiaries, the Sprint Board of Directors (Board Members), and anyone we authorize to act on Sprint's behalf. The Code establishes the basic foundation of Sprint's ethics by communicating our philosophy and commitment to all of our employees, customers, other stakeholders and the communities in which we do business. The Code should be used as a resource when questions of legal or ethical appropriateness arise on the job. It is not a comprehensive rulebook, but rather a statement of how Sprint commits to do business. We are bound by the Code and the specific operational policies of Sprint.
* * *
...

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