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Kerek v. Crawford Electric Supply Co., Inc.

United States District Court, M.D. Louisiana

July 16, 2019

DAMAIN KEREK
v.
CRAWFORD ELECTRIC SUPPLY COMPANY, INC.

          ORDER

          RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE.

         Before the Court is Defendant's Motion to Exclude Expert Testimony of Ralph Stephens. (R. Doc. 111).[1] The motion is opposed. (R. Doc. 126).[2] Plaintiff has submitted a Supplemental Memorandum. (R. Doc. 157).[3]

         Also before the Court is Defendant's Motion for Summary Judgment. (R. Doc. 113).[4]The motion is opposed. (R. Doc. 122).[5] Defendant filed a Reply. (R. Doc. 140). Plaintiff has filed a Supplemental Memorandum in Opposition. (R. Doc 145).[6]

         I. Background

         On or about December 28, 2017, Damain Kerek (“Plaintiff” or “Kerek”) initiated this action against Crawford Electric Supply Company, Inc. (“Defendant” or “Crawford”) for wages that were allegedly owed to him under Crawford's 2016 Bonus Plan. (R. Doc. 1-1 at 3-7, “Petition”). Crawford subsequently removed the action on the basis that there is diversity jurisdiction under 28 U.S.C. § 1332. (R. Doc. 1).

         Kerek alleges that throughout his employment with Crawford he participated in an annual “Bonus Plan” under which he generally received “around 30% or more of his total annual compensation.” (Petition ¶¶ 3-4). Kerek further alleges that he worked the entirety of the 2016 Bonus Plan's performance year, which began on January 1, 2016 and expired on December 31, 2016, making him eligible to receive payment of his wages under the 2016 Bonus Plan. (Petition ¶ 5). Kerek further alleges that after his employment was terminated, Crawford advised him that it was refusing payment under the 2016 Bonus Plan, among other reasons, because Kerek “did not meet the sales numbers and expectations of the Plan.” (Petition ¶ 14).

         Crawford has submitted an unsigned copy of the 2016 Bonus Plan, which provides, in relevant part, that “All bonus payouts are predicated upon Branch/Crawford meeting defined financial targets. In the event that the Branch/Crawford targets are not met, all bonus payouts will be at the discretion of the Executive Management Team. ** No. bonus payments will be made in any category if a minimum 3% ROS [return on sales] is not achieved.**.” (R. Doc. 120-1) (under seal). The 2016 Bonus Plan also contains language under the section titled “Participant Signature” stating the following: “I have received a copy of this plan documents and agree to participate within all terms and conditions. My performance criteria & goals for the bonus period have been formally established & satisfactorily conveyed to me.” (R. Doc. 120-1) (under seal).

         The following facts are undisputed unless stated otherwise.[7] Kerek worked at Crawford from August 2013 to January 6, 2017, as the branch manager for Crawford's location in Geismer, Louisiana (the “Kerek Branch”). Kenny DeLaune (“DeLaune”) was the Regional Vice President for the Louisiana Region and was Kerek's supervisor in 2015 until Kerek's termination. In early 2016, Kerek voiced disagreement with the provisions of the 2016 Bonus Plan. Kerek stated in an email dated April 13, 2016, that he “cann[not] continue to sit back, sign the plans and not at least speak up.” Christopher Tolle (“Tolle”) informed Kerek, however, that the terms of the 2016 Bonus Plan were not changing from what was proposed notwithstanding Kerek's disagreement with the proposed form. DeLaune requested that Kerek sign and return the 2016 Bonus Plan. Kerek asserts that when Tolle and DeLaune said that the terms of the plan were not going to be changed, he signed the plan and handed it to DeLaune while DeLaune was in Kerek's office. Crawford states that it never received a signed 2016 Bonus Plan. Kerek admits that he does not have a copy of the signed 2016 Bonus Plan. Finally, Crawford represented at its deposition that it calculates a branch's ROS by determining the branch's earnings before interest and taxes (“EBIT”), less all expenses, divided by the branch's net sales.

         Crawford now moves to exclude the testimony of Kerek's expert, Ralph Stephens, on the basis that his testimony is unreliable in light of his accounting methodologies. (R. Doc. 111). Central to the dispute is the application of costs associated to Crawford's “parallel wire program” started in July 2016 and run from Kerek's branch. Crawford argues that it made a business decision that the costs associated to the program would be allocated to Kerek's branch, as well as offsetting revenue and profit related to the parallel wire program even if sales were made by other branches. Kerek asserts that the parallel wire product “is primarily marketed for use in commercial and residential applications, ” and Kerek's branch, which primarily focused on industrial customers, “would not be selling any parallel wire products to its customers.” (R. Doc. 126 at 2). Crawford acknowledges that the primary use for parallel wire is commercial applications. (R. Doc. 111-1 at 2). Crawford argues, however, that Mr. Stephens improperly reallocated certain expenses related to the parallel wire program for the sole purpose of raising Kerek's ROS to reach the 3% requirement for the 2016 bonus. In opposition, Kerek argues that Mr. Stephens' methodologies are reliable, that he properly relied upon Kerek's testimony, and that the removal of employee salaries, rent and real estate taxes, and indirect general expenses related to the parallel wire program from the calculation of Kerek's ROS is appropriate because those expenses far exceeded any revenue and profits received from the program. (R. Doc. 126).

         Crawford also seeks summary judgment on the basis that Kerek's branch failed to achieve 3% ROS and Kerek cannot prove that the 2016 Bonus Plan was a term of his employment because he cannot produce a signed copy of the 2016 Bonus Plan. (R. Doc. 113). In opposition, Kerek argues that his branch in fact achieved a 3.18% ROS as calculated by Mr. Stephens. (R. Doc. 122 at 1-2). Kerek further argues, among other things, that there was no requirement for him to sign the 2016 Bonus Plan in order to be entitled to the bonus, that he in fact signed the 2016 Bonus Plan, and that the Crawford's post-termination communications acknowledge that Kerek was subject to the 2016 Bonus Plan. (R. Doc. 112 at 2-6).

         II. Law and Analysis

         A. Crawford's Motion to Exclude Expert Testimony

         i. Legal Standards

         Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony. Rule 702 states that a witness “qualified as an expert by knowledge, skill, experience, training, or education” is permitted to testify if:

(a) the expert's scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence ...

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