Rodgers v. Data Transmission Network, CASE NO. 8:10CV46

• Decision Date: 10 April 2012
• Docket Number: CASE NO. 8:10CV46
• Parties: GLORIA RODGERS, Plaintiff, v. DATA TRANSMISSION NETWORK, CHRIS WHITTINGHILL, and SHERI WASHBURN, Defendants.
• Court: U.S. District Court — District of Nebraska

GLORIA RODGERS, Plaintiff,

v. DATA TRANSMISSION NETWORK, CHRIS WHITTINGHILL,and SHERI WASHBURN, Defendants.

CASE NO. 8:10CV46

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

Dated: April 10, 2012

MEMORANDUMAND ORDER

This matter is before the Court on the Defendants' Motion for Summary Judgment (Filing No. 96). For the reasons discussed below, the Motion will be granted.

FACTUAL BACKGROUND

The following facts are those that are stated in the briefs and supported by pinpoint citations to evidence in the record, that the parties have admitted, or that the parties have not properly resisted as required by NECivR 56.1¹ and Federal Rule of Civil Procedure 56.

Defendant Data Transmission Network ("DTN") is in the business of delivering energy, weather, agricultural, and trading markets data to businesses. In January of 1992, DTN hired Plaintiff Gloria Rodgers to fill a part-time telephone sales job in DTN's Teleservices Department. In this position, Rodgers sold DTN's communications systems. In July of 1992, DTN offered Rodgers a full-time position in its Teleservices Department.

DTN had an employment application which, on or about August 13, 1992, Rodgers read and then signed. That employment application stated:

I further acknowledge that my employment may be terminated, and any offer of employment, if such is made, or my acceptance of an employment offer, if such is to occur, may be withdrawn, with or without cause, and with or without prior notice, at any time, at the option of the company or myself. I understand that no representative of the company other than the Chairman of the Board, President, Executive Vice President or Senior Vice President and then only in writing, has any authority to enter into any agreement for employment for any specified period of time or to assure any other personnel action, either prior to commencement of employment or after I have become employed, or to assure any benefits or terms and conditions of employment, or make any agreement contrary to the foregoing.

I understand that nothing contained in this employment application or in the granting of the interview is intended to create an employment contract between [DTN] and myself for either employment or for providing of any benefit.

(Filing No. 98-7.)

On or about December 29, 1992, Rodgers received a cover letter and employee handbook ("1993 Handbook") from DTN. The preface to the 1993 Handbook stated that "[t]he contents of this handbook are for general information only, and are not intended to create a contract, express or implied, between the Company and its employees." (Filing No. 99-1, at CM/ECF p. 2.) At the bottom of that same page, the 1993 Handbook stated, "THIS HANDBOOK IS NOT A CONTRACT." (Id.) The conclusion to the 1993 handbook stated:

Employment with [DTN] remains "at-will." No statement about future employment or longevity of employment may be made by anyone in the Company except in writing signed by the President, Executive Vice President or a Senior Vice President of the Company and the employee. No person may assure, either before or after the beginning of employment, any benefits or terms and conditions of employment, or make any agreement contrary to the personnel policies and practices of the Company unless in writing signed by the President, Executive Vice President or a Senior Vice President of theCompany and the employee. Any oral or written statements to the contrary should not be relied on by a prospective or existing employee.

(Id. at CM/ECF p. 10.) An employee acknowledgment form, attached to the 1993 Handbook, which all DTN employees were required to sign and which Rodgers signed on December 29, 1992, stated:

I have read the [DTN] employee handbook, including the language contained in the conclusion section. I understand its contents and that it is a guide to aid in my employment and not a binding contract. I understand that I am employed at-will, and I will do my best to follow the rules and regulations of the Company. I recognize that DTN reserves the right, from time to time, to interpret, change, modify, or suspend any of the rules, policies or procedures contained or described in this handbook.

I understand that no representative of the Company, other than the President, Executive Vice President or a Senior Vice President, and then only in writing signed by such person and me, has any authority to enter into an agreement for employment for any specified period of time or to assure any other personal action, either before or after I become employed, or to assure any benefits, terms or conditions of employment, or to make any agreement contrary to the foregoing. I acknowledge that no oral representations or written statements regarding my employment can alter the foregoing.

(Id. at CM/ECF p. 12.)

The 1993 Handbook was the only employee handbook Rodgers received. However, the 1993 Handbook was supplemented by DTN's 1994 Non-Exempt Teleservices Personnel Manual ("1994 Manual"). Rodgers received a copy of the 1994 manual on or about August 2, 1994. (Filing No. 98-6, at 236:3-237:17; Filing No. 99-2.) In a section titled "Employee Conduct," the 1994 Manual stated:

It is DTN's intention to hire and retain the most qualified and responsible people, yet situations develop that require the Company to discipline, suspend or terminate an employee. In general, employees are expected to follow all the Company's policies, procedures and rules. A violation may result in some form of disciplinary action.

ACTIONS - A verbal review with the employee to inform them what they must do to correct the problem initiates the four step process.

(Filing No. 99-2, at CM/ECF p. 4.) The four step process included a verbal review; two different "phases" in which written warnings would be issued to the employee to indicate what the inappropriate behavior was, how to correct it, the time frame in which it must be corrected, and a statement of consequences if the behavior continued or other problems arose; and termination of employment. (Filing No. 99-2, at CM/ECF p. 4-5.) The 1994 Manual also listed specific behaviors that could affect one's status as an employee with DTN,² one of which included "[s]ubstandard quality or quantity of work," but the 1994 Manual stated that the list was "not all-inclusive," and that "[o]ther situations or behaviors may also warrant discipline, suspension or termination. Situations will be evaluated on a case-by-case basis." (Filing No. 99-2, at CM/ECF p. 5.) Under a section titled "PRODUCTION STANDARDS AND PHASES," the 1994 Manual stated that "[e]ach department has a set of standards for job production, for a copy see your supervisor. Unsatisfactory production can result in Phases." (Filing No. 99-2, at CM/ECF p. 4.) The 1994 Manual also stated under the section titled "WORK SCHEDULE" that "[e]mployment is 'at will,' and an employee may be terminated at any time, with or without cause." (Filing No. 99-2, at CM/ECF p. 3.) Rodgers did not sign the 1994 Manual, nor did DTN's president, chief executive officer, executive vice president, or any of its senior vice presidents. (Filing No. 98-6, at 237:10-17; Filing No. 99-2.)

While Rodgers worked for DTN in its Teleservices Department, that department changed its name to "Ag Inside Sales." (Filing No. 98-6, at 192:20-193:9.) In February of 2000, Rodgers became an Ag Inside Sale representative. (Filing No. 98-6, at 196:11-15.) Rodgers remained in that position through October of 2007. (Filing No. 98-6, 196:11-15.) From 2004 to 2007, DTN outlined the yearly quotas and sales expectations of its Ag Inside Sales representatives in Ag Services Division Inside Sales Compensation Plans. The "Definitions" section of the 2007 Ag Services Division Inside Sales Compensation Plan ("2007 Compensation Plan") stated:

Participation. . . . The Company may offer participation in the Plan to additional employees or terminate the participation of any Participant in the Plan at any time in its sole discretion during the Plan Year.

Termination of Participant. A Participant who is terminated from the Plan but remains an employee of the Company, or whose employment with the Company is terminated for any reason, whether voluntarily or involuntarily, 1) is no longer a Participant in the Plan, and 2) will receive no further commissions or bonuses under the Plan, except Commissions or orders accepted by midnight of the day before the Participant is terminated from the Plan.

. . .

Termination of All Prior Plans. I acknowledge that effective at midnight, December 31, 2006; all prior commission plans between [DTN] and me are terminated. My sales orders accepted by the Company prior to such time shall be paid commissions based upon the then existing commission plan.

The "General Provisions" section of the 2007 Compensation Plan stated:

Continuation of Employment. The contents of the [2007 Compensation Plan] do not guarantee employment; rather employment with DTN . . . can be terminated on an at-will basis by either the employee or DTN . . . for any reason other than those expressly prohibited by law.

(Filing No. 99-4, at CM/ECF p. 3-4.) The 2007 Compensation Plan set $9,000 per month in net new revenue as a quota that DTN sales representatives were expected to meet,³ and the "Minimum Standards" section of the 2007 Compensation Plan stated:

Sales Representatives must maintain a monthly average of $5,500 net new revenue. A Sales Representative who does not achieve $16,500 in first year new revenue in any 90-day period or whose monthly first year revenue is less than $5,500 per month in any consecutive two-month period will be subject to disciplinary action up to and including termination, at the discretion of management.

(Filing No. 99-4, at CM/ECF p. 2.)⁴ Rodgers signed the 2007 Compensation Plan. (Filing No. 99-4, at CM/ECF p. 1, 4.)

On or about June 8, 2007, Rodgers received a "Minimum Standards Notice."⁵ (Filing No. 99-6; Filing No. 110, at CM/ECF p. 3 ¶ 6.) The notice represented that...