United States District Court, D. New Hampshire
E. Douglass, Esq., Benjamin T. King, Esq., Thomas E. Lent,
Esq., Steven D. Weatherhead, Esq.
A. DICLERICO, JR. UNITED STATES DISTRICT JUDGE
Broadus filed this employment discrimination lawsuit against
Infor, Inc., alleging racial discrimination, and retaliation
and a state claim for tortious interference with a contract.
Infor filed counterclaims for breach of contract (Count I);
breach of duty of loyalty (Count II); fraud (Count III);
unjust enrichment (Count IV); and conversion (Count V).
Broadus moves to dismiss Counts I, II, III, and V of
Infor's counterclaims. Infor opposes dismissal.
considering a motion to dismiss, the court accepts all
well-pleaded facts as true and resolves all reasonable
inferences in the non-moving party's favor. See
Ocasio-Hernández v. Fortuño-Burset,
640 F.3d 1, 12 (1st Cir. 2011). The court disregards
conclusory allegations that simply parrot the applicable
legal standard. Manning v. Boston Med. Ctr. Corp.,
725 F.3d 34, 43 (1st Cir. 2013). To determine whether a
complaint survives a motion to dismiss, the court should use
its “judicial experience and common sense, ” but
should also avoid disregarding a factual allegation merely
because actual proof of the alleged facts is improbable.
Id. (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 556 (2007)).
Broadus was employed as an “account executive”
with Infor, which develops and sells software related to the
healthcare industry. Broadus, whose responsibilities as an
account executive were focused on selling healthcare
software, was paid through a “Variable Compensation
Plan.” Broadus primarily worked from home.
she became employed with Infor, Broadus signed a
“Nondisclosure, Noncompetition and Developments
Agreement” (the “NND Agreement”). The NND
Agreement prohibited Broadus from working for another company
while she was employed with Infor. It also prohibited her
from seeking or accepting employment with an Infor competitor
for one year after her last day of employment with Infor. She
was required under the agreement to notify Infor, in writing,
within five days of accepting employment with an Infor
competitor. The NND Agreement also contains a forum selection
clause that states the following:
I [Broadus] irrevocably: (a) submit to the exclusive
jurisdiction of the state and Federal courts in Georgia
(collectively, the “Courts”) over any dispute,
suit, action or proceeding arising out of or relating to this
Agreement (individually, an “Agreement Action”)
and irrevocably select such Courts as the sole and exclusive
venue for any Agreement Action
. . . .
NND Agreement, doc. 10-1 ¶ 13.
“late April and early May 2018, ” Infor announced
a “typical” yearly “restructuring” of
its sales team. Counterclaims, doc. 10 at 14, ¶ 26. On
May 11, Infor told Broadus, whom Infor alleges had not been
performing well in her account executive position, that she
would have 60 days to find another role with
alleges that it “extended this deadline on two
occasions, ” but it does not indicate when it did so or
for how long. Between May 2018 and August 2018, Broadus
exchanged “numerous emails” about potential
positions with Infor's human resources department.
2018, however, Broadus accepted a sales position with Oracle,
one of Infor's competitors in the software industry.
Broadus did not provide Infor with written notification of
her new position. Nevertheless, between June and August 2018,
Broadus accepted “approximately” $30, 000 of
“base salary payments” from Infor. Counterclaims,
doc. 10 at 15, ¶ 30(c)-(d). Broadus also “use[d]
and access[ed] her Infor email account and Infor's
internal online system” while employed with Oracle.
Id. ¶ 30(b).
had used the last name “Griggs” as an Infor
employee, signing, for example, the NND Agreement with that
name. Doc. 10-1 at 5. Broadus, however, also provided Infor
with a tax document that indicated that she alternatively
used the last name “Broadus”. Doc.
24-1. When Broadus accepted employment with
Oracle, she used the last name “Broadus”. Infor
faults Broadus for using two different last names, describing
“Thea Broadus” as an “alias” that she
used to ...