Angelina Williams v. Dolgencorp, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-139

ANGELINA WILLIAMS

VERSUS

DOLGENCORP, INC.

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APPEAL FROM THE
THIRTY-EIGHTH JUDICIAL DISTRICT COURT
PARISH OF CAMERON, NO. 10-16272
HONORABLE H. WARD FONTENOT, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of John D. Saunders, Michael G. Sullivan, and Elizabeth A. Pickett,
Judges.

AFFIRMED.

Edward F. Harold
Nicole M. Gonzales
Fisher & Phillips, LLP
201 St. Charles Ave., Ste. 3710
New Orleans, LA 70170
(504) 522-3303
Counsel for Defendant/Appellant:
Dolgencorp, Inc.

J. Bryan Jones, III
Jones Law Firm
P. O. Box 1550
Cameron, LA 70631
(337) 775-5714
Counsel for Plaintiff/Appellee:
Angelina Williams

PICKETT, J.

FACTS

Angelina Williams was the general manager of the Dollar General in Cameron,

Louisiana. As general manager, she was required to stock shelves, unload inventory

off of delivery trucks, and run the cash registers. In 1997, Ms. Williams sustained a

back injury while in the course and scope of her employment. She was placed on

light-duty. Dollar General modified her job requirements so that she was able to

continue to work. Ms. Williams continued to lift heavy objects while at work,

although she was restricted to light-duty and she continued to experience back pain.

While performing inventory at another store, Ms. Williams’ back went out again. At

that time, Ms. Williams’ injury came to Risk Management’s attention. She was told

she would have to cease working and begin drawing workman’s compensation. On

November 23, 2001, Ms. Williams’ employment was terminated.

During her employment, Ms. Williams participated in Dollar General’s

Teamshare Bonus Program (Teamshare). Teamshare is an incentive program offered

to Dollar General’s employees that encourages high performance and longevity while

rewarding employees, in the form of a bonus, for their role in meeting company goals.

In order to be eligible for the program, the store manager, assistant managers, and

store clerks had to meet all of the following conditions: (1) be actively employed on

March 15, 2002, (2) be a regular or full-time or part-time employee as of January 31,

2002, and (3) “meet standards” 1.75 or higher rating on year-end. It is specifically

set forth in the terms of the program that “bonuses earned by any employee who is

NOT employed on March 15, 2002, will be forfeited and a bonus will not be paid to

that employee.” The Teamshare bonus is paid after the fiscal year-end net profits

have been determined. The fiscal year ends in January, and the bonus is typically

paid in early April.

Because Ms. Williams’ employment was terminated prior to the conclusion of

the fiscal year, she was not paid a bonus for that year. The Dollar General stores in

Louisiana are owned and operated by Dolgencorp, Inc. On April 2, 2002, Ms.

Williams wrote a demand letter to Cal Turner, Jr., the chairman of Dolgencorp,

seeking his assistance in getting her bonus. Ms. Williams’ demand was not fulfilled.

She filed suit against Dolgencorp claiming she was entitled to payment of the annual

bonus and attorney fees pursuant to the Wage Payment Law, La.R.S. 23:631.

A trial on the merits was held on May 28, 2003. On August 22, 2003, the trial

court issued an opinion in this matter ruling in favor of the plaintiff and awarding

damages in the amount of $9,764.47. It is from this judgment the defendant appeals.

ASSIGNMENTS OF ERROR

Dolgencorp sets forth five assignments of error:

1) The trial court erred when it concluded that Plaintiff was due a
pro-rata share of the bonus despite the fact she did not qualify for
or earn the bonus under the clear terms of the program.

2) The trial court erred in relying upon the reason for termination as
a factor in determining whether Plaintiff was owed the bonus. The
Supreme Court has clearly held that the determination of what an
employee is owed cannot depend upon the underlying reason for
the employee’s termination.

3) The trial court erred when it concluded that Plaintiff was capable
of working the entire bonus period in light of her testimony that
she was physically incapable of performing her duties as a store
manager.

4) The trial court erred in concluding that the absence of an express
statement regarding what would happen to the bonus in the event
of an involuntary termination was relevant because the plan terms
clearly set out what an employee has to do to qualify for and earn
the bonus.

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5) The trial court erred in concluding the wage forfeiture statute
limits the right of an employer to terminate an at will employee for
any reason if the result of the termination prevents the employee
from earning a bonus.

DISCUSSION

Teamshare is an incentive program offered to Dollar General employees that

encourages high performance and longevity while rewarding employees an annual

bonus for their role in meeting company goals. In order to be eligible for the

Teamshare bonus, the company required the following conditions be met:

1) The employee must be actively employed on March 5, 2002.

2) The employee must be a regular full-time or part-time employee
as of January 21, 2002, the last day of the company’s fiscal year.

3) The employee must “Meet Standards” with 1.75 or higher rating
on year-end performance review.

The Teamshare bonus is calculated as a percentage of the store’s fiscal year-end net

profit. A method of pro-rating the bonus is set forth in the company’s policy for

employees who transfer from one store to another or for employees on “leave” for a

portion of the fiscal year. The policy also provides that “Bonuses earned by any

employee who is NOT employed on March 15, 2002 will be forfeited and a bonus will

not be paid to that employee . . . Any employee terminated after March 15, 2002, for

gross misconduct (theft, working off the clock, etc.) will NOT be paid a bonus.”

There is no provision, however, in the company policy regarding employees who are

involuntarily terminated and who have not been guilty of misconduct.

In its written opinion, the trial court set forth as follows:

Defendant designed and instituted the bonus plan at issue.
Defendant willingly chose not to address the issue of involuntary
termination in its plan. Had plaintiff worked for the entire bonus period,
as she desired to do and was capable of doing, the terms of the
employment contract would have obligated her employer to pay her a

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bonus. The bonus was thereafter part of plaintiff’s bargained for
compensation for services rendered and the public policy of this state, as
expressed in R.S. 23:634, prohibits an employer from forfeiting such
compensation by discharging an employee before the contract is
completed.

This decision is an outgrowth of the Louisiana Supreme Court
decision in Morse v. J. Ray McDermott & Co., 344 So.2d 1353 (La.
1976), which was based both on the public policy of the state as
expressed in R.S. 23:634, and on the fact that the employer prevented
fulfillment of the condition of continued employment for reasons not
attributable to the employee’s misconduct. It is therefore the opinion of
this court that the requirement of continued employment throughout the
bonus period with no remedy for an involuntary termination that was not
based on the employee’s misconduct is unenforceable as against public
policy and plaintiff is therefore entitled to collect a proportionate sum
based on the amount of the bonus which had accrued at the time of her
termination.

In the instant case, the appellee worked ten months of the 2001 fiscal year. Her

employment was terminated by the employer November 23, 2001. The record is clear

that the appellee wanted to continue working. The appellee testified that when she

met with the district manager, Freeman Bertrand, she was told that she could not

continue working permanently on light-duty status but the termination of her

employment would not affect her bonus. There was no testimony or evidence

presented by Dolgencorp to contradict this testimony. The appellee’s testimony

further indicated that she was able to continue her employment at light duty status and

desired to do so. This testimony is also uncontradicted.

The threshold issue is whether an annual bonus is a “wage” or “an amount then

due under the terms of employment” under La.R.S. 23:631(A)(1)(a). That statute

provides:

Upon the discharge of any laborer or other employee of any kind
whatever, it shall be the duty of the person employing such laborer or
other employee to pay the amount then due under the terms of
employment, whether the employment is by the hour, day, week, or
month, on or before the next regular payday or no later than fifteen days

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following the date of discharge, whichever occurs first.

For the purposes of La.R.S. 23:631, wages are any amounts due under the terms

of employment, which are earned during a pay period. Tran v. Petroleum Helicopters,

00-0051 (La.App. 3 Cir. 6/28/00), 771 So.2d 673, writ denied, 00-2886 (La. 12/8/00),

776 So.2d 463.

In Winkle v. Advance Products & Systems, Inc., 98-694 (La.App. 3 Cir.

10/28/98); 721 So.2d 983, this court recognized that an unwritten forfeiture policy is

illegal. “[W] hen an employer promises a benefit to employees, and employees accept

by their actions in meeting the conditions, the result is not a mere gratuity or illusory

promise but a vested right in the employee to the promised benefit . . . .” Baudoin v.

Vermilion Parish School Bd., 96-1604, p.5 (La.App. 3 Cir. 4/2/97), 692 So.2d 1316,

1319 (quoting Kneckt v. Board of Trustees for State Colleges and Universities and

Northwestern State Univ., 591 So.2d 690 (La.1991)), writ denied, 97-1169 (La.

6/20/97), 695 So.2d 1358.

Dolgencorp argues the trial court erred in finding that the appellee desired to

continue working and was capable of doing so. The uncontradicted evidence in the

record supports that finding and it will not be disturbed. We find no manifest error in

the trial court’s factual findings.

We further find no error in the trial court’s consideration of the reason for

termination in determining whether the appellee was entitled to the bonus. Under the

terms of the Teamshare program, the appellee would have forfeited all rights to the

bonus if she had been discharged for gross misconduct. She was not. The Teamshare

plan clearly sets forth the consequences for being terminated for misconduct. It sets

forth the policy for employees who voluntarily leave and are re-hired. It sets forth the

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policy for those employees who are transferred or promoted. It is silent on the issue

of whether the bonus is affected when an individual is terminated against her will but

not for misconduct. It is necessary, therefore, to determine how the employment was

terminated in order to reach the next level of inquiry; that is, how the termination

affects the right to receive the bonus.

The Teamshare plan specifically sets forth that “Employees on ‘leave’ are

eligible for a pro-rated bonus based on the number of months worked during the fiscal

year (provided) employment has not terminated before March 15, 2002.” The plan

does not define “leave.” Apparently, therefore, there are situations where employees

who do not work the entire year participate in the profit sharing.

In the matter before us, we have an additional factor to consider. The district

manager, who was acting in his official capacity on behalf of the corporation,

specifically told the appellee that her bonus would not be affected by her termination

for medical reasons according to the uncontroverted testimony.

After reviewing the evidence as a whole, we conclude there was no error in

either the trial court’s findings of fact or it’s application of the law. We conclude the

bonus to which the appellee is entitled is considered “wages” due under the terms of

her employment. We further conclude that the only requirement she failed to meet in

order to be entitled to receive that bonus was the requirement that she be employed on

January 31, 2002, the last day of the fiscal year. She was willing to meet that

requirement and failed to do so strictly by the actions of the employer who

represented, none the less, that her bonus would not be affected. We find the appellee

is entitled to the pro-rata share of the bonus awarded by the trial court. The trial court

specifically stated that “[T]he requirement of continued employment throughout the

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bonus period with no remedy for an involuntary termination that was not based on the

employee’s misconduct is unenforceable as against public policy . . . .”

We agree. To hold otherwise would encourage employers to terminate

employees who have worked toward promised compensation just before they are to

receive it, thus benefitting from, but not being required to compensate those deserving

employees. We, therefore, affirm the trial court’s ruling as it pertains to the pro-rata

share of the bonus due the appellee.

In her brief, the appellee argues that the trial court erred by failing to award

attorney fees and requests attorney fees on appeal. In order for this court to consider

this issue, the appellee is required to file an Answer setting forth these requests. As

she failed to do so, we cannot consider this issue.

AFFIRMED.

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