Bismack v. Xerox Corp.

• Decision Date: 22 December 2022
• Docket Number: C. A. 6:21-04103-HMH
• Parties: John A. Bismack, Plaintiff, v. Xerox Corporation, Defendant.
• Court: U.S. District Court — District of South Carolina

John A. Bismack, Plaintiff,
v.
Xerox Corporation, Defendant.

C. A. No. 6:21-04103-HMH

United States District Court, D. South Carolina, Greenville Division

December 22, 2022

OPINION & ORDER

Henry M. Herlong, Jr. Senior United States District Judge

This matter is before the court on Plaintiff John A. Bismack's (“Bismack”) partial motion for summary judgment and Defendant Xerox Corporation's (“Xerox”) motion for summary judgment. For the reasons set forth below, Bismack's motion is denied and Xerox's motion is granted in part and denied in part. Further, in light of the court's decision on the motions, this matter is remanded to the state court as the remaining claims plainly fail to satisfy the amount in controversy requirement for diversity jurisdiction and the court declines to exercise supplemental jurisdiction.^[1]

I. Factual and Procedural Background

On May 21, 2019, Bismack accepted a written offer of employment as a U.S. Distribution Account Manager with Xerox with a start date of June 3, 2019. (Pl. Mem. Supp. Partial Summ. J. Ex. A (Offer Letter), ECF No. 51-2, & Ex. B (Jeffrey Cox (“Cox”) Dep. 13-14, 17.) From June 3, 2019, until July 23, 2021, Bismack was employed by Xerox as a U.S. Distribution Account Manager. (Id. Ex. G (Resignation Email), ECF No. 51-8.) Bismack's salary for this

1

position was set forth in an offer letter that Bismack accepted, which stated in pertinent part as follows:

Your starting salary for this position will be paid semimonthly at the annualized rate of $77,220.00

On your start date, your compensation will be adjusted to 75% base salary with eligibility to earn incentives. Your annualized base salary of $57,915 will be paid semimonthly

(Id. Ex. A (Offer Letter), ECF No. 51-2.)

Bismack alleges that Xerox has failed to pay certain wages that he is owed pursuant to the offer letter. Specifically, Bismack contends that his annual salary was $77,220.00, consisting of a semimonthly paycheck in the amount of $2413.13, quarterly “true up” payments in the amount of $3233.21, and commissions in the amount of $796.52 paid in the months that he did not receive a “true up” payment. (Bismack Mem. Supp. Partial Summ. J. 2-3, ECF No. 51-1.) Bismack alleges that he was not paid “true up” payments for the first, second, and third quarters of 2020. (Id. at 3, ECF No. 51-1.) In addition, Bismack submits that $1500.00 was improperly withheld from his final paycheck without prior notice as partial reimbursement for a leadership retention award of $8600.38 that Xerox paid Bismack in December 2020. (Id. at 4, ECF No. 51-1.) Thus, Bismack alleges that Xerox unlawfully withheld $11,199.63 from his wages. (Mot. Partial Summ. J. 1, ECF No. 51.)

In contrast, Xerox contends that Bismack was not guaranteed a salary in the amount of $77,220.00. (Xerox Mem. Supp. Summ. J. 10, ECF No. 52-1.) Instead, Xerox alleges that the offer letter states that Bismack's salary would be $57,915.00 with the eligibility to earn incentives. (Id., ECF No. 52-1.) Further, Xerox states that the incentive compensation plan for

2

the distribution operations team was changed from a Sales Incentive Compensation Plan to a Management Incentive Plan for the 2020 fiscal year. (Id. Ex. F (Cox Decl. ¶¶ 4-13), ECF No. 52-7.) However, due to the COVID-19 pandemic, Xerox did not meet the targets required to trigger incentive payments under the 2020 Management Incentive Plan. (Id. Ex. F (Cox Decl. ¶ 16), ECF No. 52-7.) Therefore, Xerox submits Bismack is not due any “true up” payments for the first three quarters of 2020. Further, Xerox alleges that because no incentive payments were paid under the Management Incentive Plan due to the pandemic, Bismack was offered the leadership retention award. (Id. Ex. F (Cox Decl. ¶¶ 16-17), ECF No. 52-7.) Xerox alleges that the leadership retention award was required to be repaid if Bismack left employment before December 31, 2021, and that pursuant to the written terms and conditions of the award, Bismack was aware that the leadership retention award reimbursement could be deducted from his paycheck. (Xerox Mem. Supp. Summ. J. Ex. F (Cox Decl. ¶¶ 17-21), ECF No. 52-7.)

Bismack filed the instant lawsuit in state court on November 10, 2021, alleging a violation of the South Carolina Payment of Wages Act (“SCPWA”), SC Code Ann. § 41-10-10 et seq., and claims for breach of contract and quantum meruit. (Compl., ECF No. 1-1.) Xerox removed this case on the basis of diversity jurisdiction on December 21, 2021, alleging that the amount in controversy exceeded $75,000 because Bismack was seeking unpaid wages, treble damages, and attorney's fees. (Not. Removal, ECF No. 1.) Xerox filed an answer on January 19, 2022, and on March 14, 2022, after seeking leave of court, filed an amended answer and a counterclaim for breach of contract alleging that Bismack was required to repay the leadership retention award. (Ans., ECF No. 14); (Am. Ans. & Countercl., ECF No. 24.) On November 15,

3

2022, Bismack filed the instant motion for partial summary judgment on his claim that Xerox violated the SCPWA. (Bismack Mot. Partial Summ. J., ECF No. 51.) The next day, on November 16, 2022, Xerox filed a motion for summary judgment on Bismack's claims and Xerox's breach-of-contract counterclaim against Bismack. (Xerox Mot. Summ. J., ECF No. 52.) Xerox filed a response in opposition to Bismack's partial motion for summary judgment on December 13, 2022. (Xerox Resp. Opp'n, ECF No. 58.) Bismack filed a response in opposition to Xerox's motion for summary judgment on December 14, 2022. (Bismack Resp. Opp'n, ECF No. 60.) On December 20, 2022, Bismack filed a reply. (Bismack Reply, ECF No. 61.) Xerox filed a reply on December 20, 2022. (Xerox Reply, ECF No. 62.)

II. Standard of Review

Summary judgment is appropriate...