United States District Court, D. New Hampshire
MEMORANDUM AND ORDER
BARBADORO UNITED STATES DISTRICT JUDGE.
Fraize has sued the Fair Isaac Corporation (FICO), for breach
of contract, breach of the duty of good faith and fair
dealing, a violation of New Hampshire's wage statute, and
wrongful discharge. In this Memorandum and Order, I address
FICO's motion to dismiss Fraize's wrongful discharge
worked for FICO as a salesperson from January, 2014 to April,
2017. His compensation was determined in part by an annual
"Sales Incentive Plan Participation Agreement"
("Agreement"). The 2016 and 2017 Agreements provide
for commission percentages that vary based on the extent to
which specified sales targets are met or exceeded. Revenue
generated pursuant to new contracts are rewarded with higher
commissions than sales pursuant to contract renewals under
both Agreements, and the 2017 Agreement also authorizes FICO
to reduce a salesperson's commissions for
"large" sales, i.e., sales that comprise more than
50% of a salesperson's annual sales target.
had an established business relationship with Xerox when
Fraize was first assigned to work on the Xerox account in
December 2015. After months of negotiation, Xerox and FICO
entered into a new contract that yielded substantial
additional revenue for FICO. Fraize initially received
assurances that the revenue generated by the Xerox contract
would be treated as new sales for commission purposes, but
FICO later informed Fraize that it intended to treat the
Xerox contract as a renewal rather than as new business. FICO
also informed Fraize that the Xerox contract would be subject
to reduced commissions because it qualified as a "large
deal" under the 2017 Agreement even if it were to
qualify as new business.
complained about his proposed compensation for the Xerox
contract and he was fired in retaliation for pressing his
STANDARD OF REVIEW
evaluating a motion to dismiss under Fed.R.Civ.P. 12(b)(6), I
"accept as true the well-pleaded factual allegations of
the complaint [and] draw all reasonable inferences therefrom
in the plaintiff's favor." Martin v. Applied
Cellular Tech., Inc., 284 F.3d 1, 6 (1st Cir. 2002).
Although the complaint need not set forth detailed factual
allegations, "more than an unadorned,
the-defendant-unlawfully-harmed-me accusation" is
required. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). "Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
maintain a successful wrongful discharge claim under New
Hampshire law, a plaintiff must prove both "that the
discharge was 'motivated by bad faith, retaliation, or
malice'" and "that the plaintiff was discharged
'for performing an act that public policy would encourage
or for refusing to do something that public policy would
condemn.'" Leeds v. BAE Sys., Inc., 165
N.H. 376, 379 (2013)(quoting Karch v. BayBank FSB,
147 N.H. 525, 536 (2002)). Whether an employee's acts or
refusals to act further a public policy interest ordinarily
is a question of fact for the jury to resolve. Id.
alleges a plausible claim that FICO terminated him in
retaliation for his complaint that the company was refusing
to pay him commissions he was entitled to under the
Agreements. Although these allegations appear to state a
viable wrongful discharge claim, FICO nevertheless argues
that they are insufficient because Fraize was pursuing only
his personal interests in recovering his commissions and,
therefore, his alleged protests do not further a public
policy interest. I disagree.
Hampshire's Wage Act makes it a crime for an employee to
withhold wages that are due to an employee. See N.H.
Rev. Stat. § 275:43. Whether public policy encouraged an
employee's actions is "typically a question for the
jury to decide, " and should only be decided by the
court when the answer is "clear." Frechette v.
Wal-Mart Stores, Inc., 925 F.Supp. 95, 98 (D. N.H.
1995). Here, at the very least, it is not clear that public
policy would not encourage an employee to demand his overdue
wages. See Tullis v. Merrill, 584 N.W.2d 236, 239
(Iowa Sup. Ct. 1998) (under Iowa law, there is public policy
permitting an employee to demand overdue wages). Thus,
Fraize's claim is not deficient for failing to allege
that he was terminated because he undertook an act that
public policy would support.
also argues that Fraize's wrongful discharge claim is
barred by the New Hampshire Supreme Court's decision in
Cilley v. New Hampshire Ball Bearings,
Inc., 128 N.H. 401, 405-406 (1986). FICO bases its
argument on the following language in the decision:
The plaintiff contends that the company's firing him for
his refusal to give up these improperly withheld
"wages" violates public policy. We conclude that
the argument has no merit. Even if one accepts, for the sake
of argument, that use of company resources for personal
benefit is a "wage" under RSA chapter 275 and that
the "wage" was improperly withheld by the company,
then Cilley is provided ...