WASHINGTON-When T-Mobile USA Inc. signed the contract to provide wireless priority access service to Washington, D.C., and New York City in the wake of the Sept. 11 terrorist attacks, the carrier’s national sales manager, Robert Kaplan, thought he would be getting a huge windfall in commissions. Instead, he claims he was fired. Now nearly five years after the attacks and four years after his termination, Kaplan is preparing to plead his case before a federal appeals court.
Senior Judge William Stafford last year dismissed the lawsuit Kaplan filed against T-Mobile USA.
“Kaplan has submitted evidence to suggest that T-Mobile expected DynCorp International to purchase activations as a result of its contract with T-Mobile. He has also produced evidence to suggest that he and others at T-Mobile expected that he, Kaplan, would be involved in procuring those activations, receiving-as a result-sizeable commissions associated with those activations,” wrote Stafford. “In fact, the record evidence clearly establishes the opposite: that DynCorp never did purchase 5,000 activations from T-Mobile, that Kaplan never sold any activations to DynCorp, that Kaplan was-and is-not entitled to $500,000, or any lesser amount, in commissions associated with the activations sold to DynCorp.”
Oral argument in Kaplan v. T-Mobile USA is scheduled to take place Sept. 18 in U.S. Court of Appeals for the District of Columbia Circuit.
Kaplan believes Stafford made decisions best left to a jury.
“The circumstances underlying Kaplan’s termination go to the heart of his claims, whether those claims are sound in contract, quantum meruit, tort or statutory violation. To conclude that Kaplan’s termination was proper-or at the least that the termination had no relation to T-Mobile’s effort to avoid payment of commissions-the trial court had to overlook pages and pages of affidavits, deposition transcripts and documents submitted by Kaplan. To deny all claims, the trial judge was required to believe T-Mobile’s witnesses and evidence over that proffered by Kaplan,” according to Kaplan’s brief to the D.C. Circuit. “Given the wealth of evidence produced by Kaplan, summary judgment was wholly inappropriate.”
Kaplan is actually using three different legal theories in his attempt to get relief. He believes T-Mobile USA violated a District of Columbia wage statute by not paying him the commission; he believes that T-Mobile USA violated contract law by not paying him the commission; and under a legal concept known as quantum meruit, which means “as much as he has deserved.” In other words, Kaplan believes that if his claims fail under contract law or under the D.C. wage laws then the legal theory of quantum meruit would allow him to argue that the work he did was worth the commission he was not paid.
T-Mobile USA believes this case is simply related to the commissions, but believes that since DynCorp did not sign activations while Kaplan was employed with them, he should not have received the commission for those activations. The carrier added that Kaplan was let go for violating the phone demonstration policy by trading phones for sports and entertainment benefits.
“Kaplan was terminated for unrelated reasons,” Kathleen O’Brien Ham, T-Mobile USA managing director of federal regulatory affairs, told RCR Wireless News. “Kaplan still thinks he is entitled to commission even though he never sold a single T-Mobile phone.”
