Allamon v. Acuity Specialty Prods., Inc.

• Decision Date: 26 June 2012
• Docket Number: Civil Action No. 1:10–CV–294–TH.
• Parties: Barbara ALLAMON, Plaintiff, v. ACUITY SPECIALTY PRODUCTS, INC., et al., Defendants.
• Court: U.S. District Court — Eastern District of Texas

877 F.Supp.2d 498

Barbara ALLAMON, Plaintiff,

v.ACUITY SPECIALTY PRODUCTS, INC., et al., Defendants.

Civil Action No. 1:10–CV–294–TH.

United States District Court,

E.D. Texas,

Beaumont Division.

June 26, 2012.

Dax Overton Faubus, Faubus & Scarborough, LLP, Houston, TX, for Plaintiff.

Kurt A. Powell, Atlanta, GA, Holly Harvel Williamson, Hunton & Williams, Houston, TX, for Defendants.

MEMORANDUM OPINION

THAD HEARTFIELD, District Judge.

Having granted Defendants' motion for summary judgment [Clerk's Docket No. 93], the Court now ENTERS this Memorandum Opinion explaining the reasons therefor.

Background

On December 3, 1998, Plaintiff Barbara Allamon survived a nearly catastrophic car accident while traveling in her vehicle in the course and scope of her employment with Zep Manufacturing Company (“Zep”).¹ At the time of the accident, Allamon was an outside sales representative for Zep. Her responsibilities included in-person visits with customers and prospects to sell Zep's speciality chemical and cleaning products. She began working in this role for Zep in 1998.

As a non-subscriber to Texas's worker's compensation system, Zep was responsible for directly handling Allamon's injury claim. The life-threatening injuries Allamon suffered included a fractured pelvis, a fractured left ankle, and collapsed lungs. Due to her hospitalization, treatment, and recovery, Allamon was on leave from Zep from December 3, 1998 through May 2001. While she was on leave, Zep paid her medical bills and continued paying her salary.

Because of the extent and type of Allamon's injuries and the associated high medical costs, Zep assigned the management of her claims to the risk management department of Acuity Brands, Inc., a related company within the Zep organization. Keith Purser with Acuity Brands, Inc. was the lead individual responsible for handling Allamon's claims and coordinating her treatment and eventual return to work. Purser was supervised by Mary Bruce Edmonds who was in charge of Acuity Brands, Inc.'s risk management department.

As a result of her injuries, when she returned to work in 2001 Allamon was unable to drive for work, sit for prolonged periods of time, make in-person sales calls, climb stairs, lift product samples, or make customer service visits. Essentially, Allamon could not perform the usual duties of an outside sales representative. To accommodate her return to work, Zep allowed Allamon to work from home and provided her with a headset for her phone, home phone service, and a list of inactive accounts to solicit. An “inactive account” is an account that has not purchased a Zep product within the preceding six months and one day. Upon her return to work, Allamon worked approximately ten hours per week and continued to receive health insurance, sick pay, and commissions. Subsequently, Zep ceased paying her sick pay, and her compensation then included commissions and bonuses. By the end of February 2003, Zep had paid out more than $450,000 on Allamon's non-subscriber claim.

During 2002, Zep implemented its “Hot Sauce” program. Hot Sauce was a computer-based system through which Zep sales representatives (“Zep Rep”) could access account information for “six month” inactive accounts within their branch. The information was available via computer or on the Zep Rep's cell phone. Allamon or any other Zep Rep could look up inactive accounts by entering a zip code or a specific business name, address, or phone number.

Since her return to work in 2001, Allamon had been working as a telemarketing representative, which included receiving lists of inactive accounts from certain branches. However, the arrangement led to some confusion among branch managers and other Zep Reps. Therefore, in December 2004, Purser coordinated the drafting of a job description for a telemarketing position like Allamon's. This document was entitled “Guidelines for Telemarketing Position.” ² Purser received input from Allamon, Joe Dymecki, and Greg Miller. Dymecki was Allamon's supervisor at the time of the accident and upon her return to work, and Greg Miller was Allamon's supervisor at the time the Guidelines were drafted. Upon completing the drafting process, Purser asked Miller to sign off on the Guidelines, and Miller signed them on December 30, 2004. Purser also asked Ross Harding, an Executive Vice President in the supervisory chain above Allamon and Miller, to sign off on the Guidelines, and he signed them on August 25, 2005.

Edmonds was not directly involved in the development of the Guidelines, but on August 25, 2005, she signed a copy of the Guidelines and added a hand-written note which stated, “Keith—As you work out Barbara's settlement—be sure everyone knows it's based on her continuing to work as a Zep Rep (from home) as long as she's able [and] performance is satisfactory. This Guideline is a good basis—keep in file.” The version signed by Miller and Harding did not have Edmond's note on it. Allamon was not asked to and did not sign off on the Guidelines.

Under the Guidelines, Allamon, as a telemarketing representative, was to be assigned accounts from the branches in Dallas, Houston, and Baton Rouge which had not purchased Zep products within the preceding nine months. These lists of nine month inactive accounts were not to be shared with other Zep Reps. The Guidelines explained how commissions were to be split if the account required an in-person visit or service call and provided that the account was protected for six months in the same manner an account was protected for six months for other Zep Reps. Allamon was not mentioned by name in the Guidelines.

Also during 2005, Zep and Allamon settled her non-subscriber claim with Zep, and on October 18, 2005, she signed the “Confidential Compromise Settlement Agreement and Full and Final Release” (“Settlement Agreement”). Under the Settlement Agreement, Zep purchased an annuity on Allamon's behalf in the amount of $372,175, which was to compensate her for future medical costs, health insurance, and living costs. Allamon contends that the Settlement Agreement did not compensate her for future lost wages. She argues that her actual settlement with Zep comprised two parts: (1) a “financial” part as evidenced by the Settlement Agreement, and (2) an “employment” part as evidence by the Guidelines, which according to Allamon covered her future lost wages claim.

Throughout the majority of 2005, Zep provided nine month inactive accounts lists to Allamon as set out in the Guidelines. However, following Hurricane Katrina's landfall, for a period of time Zep did not provide nine month lists from Baton Rouge. In December 2005, Allamon emailed Purser and Dymecki (who was no longer her manager at this point). She expressed her concern about not receiving the Baton Rouge nine month lists. In early 2006, Zep and Allamon agreed that she would receive seven month inactive account lists instead of nine month lists. By the end of 2006, Allamon was concerned that Zep was not providing her with the proper lists and believed that other Zep Reps were able to access the information on the lists via Hot Sauce. She thought that the Guidelines were not being followed and pursued another amendment to the Guidelines. As a result, in March 2007, Zep began providing Allamon with six month inactive account lists from the branches in Dallas, Houston, and Baton Rouge and also from the San Antonio branch. Prior to receiving these modifications or amendments to the Guidelines, Allamon's sales suffered, but the changes allowed her to increase her sales.

In November 2008, Zep informed Allamon that it was creating the “Central Region Inside Sales Team” (“inside sales team”). The inside sales team would receive lists of six months inactive accounts from the same branches from which Allamon had been receiving six month inactive account lists. The inside sales team was implemented in December 2008. Not surprisingly, the efforts of the inside sales team decreased Allamon's sales. However, Allamon continued working for Zep.

In May 2010, Allamon filed this law suit in Jefferson County, Texas, which Zep removed to this Court on May 24, 2010. Allamon asserts claims for breach of contract and alternatively, implied-in-fact contract; fraudulent inducement; fraud; conspiracy to commit fraud; and negligent misrepresentation. In response to Zep's pleading release as an affirmative defense, Allamon alternatively asserts claims for promissory estoppel, quantum meruit, ratification, agency, reformation, mutual mistake, unilateral mistake, and unjust enrichment. On March 14, 2011, Zep moved for summary judgment on all of Allamon's claims, and the Court heard argument on Zep's motion on July 22, 2011. The Court granted Zep's motion for summary judgment on March 30, 2012 and now enters this memorandum opinion explaining its reasoning.

Objections to Summary Judgment Evidence

Zep objects to Allamon's errata sheet and affidavit submitted with her response. Zep contends that Allamon's errata was untimely filed under Federal Rule of Civil Procedure 30(e). Zep argues that Allamon's affidavit should be disregarded as a whole or in part because it is “replete with conclusory, self-serving, unsupported, and contradictory testimony that is inadmissible as evidence....”

I. Errata Sheet

Rule 30(e)(1) provides in relevant part:

On request by the deponent or a party before the deposition is completed, the deponent must be allowed 30 days after being notified by the officer that the transcript or recording is available in which:

(A) to review the transcript or recording; and

(B) if there are changes in form or substance, to sign a statement listing the changes and the reasons for making them.

Fed. R. Civ. P. 30(e)(1).

Allamon's deposition occurred on January 21, 2011. On February 14, 2011, Allamon requested and received a copy of her deposition transcript via email from the court reporter. SeeClerk's Docket No. 67–3 (indicating also that...