WASHINGTON-A federal appeals court last week did not clearly signal whether it believes the facts and law support charges by Robert Kaplan, a former national sales manager at T-Mobile USA Inc. that the No. 4 mobile-phone carrier fired him to avoid paying more than $320,000 in commissions on a contract with DynCorp International. The contract was to provide government personnel with wireless priority service in the nation’s capital and New York City following the 2001 terrorist attacks
The three-judge panel peppered Kaplan’s and T-Mobile USA’s lawyers with questions throughout oral argument last Monday. Many questions focused on how much legal weight should be accorded to the fact that no activations of the 5,000 phones with WPS capability occurred before Kaplan was terminated.
Jeffrey Gilmore, who argued for Kaplan, said his client was entitled to future revenues irrespective of when activations occurred. Senior Judge Stephen F. Williams seemed more sympathetic to that assertion than did Circuit Judges David Tatel and A. Raymond Randolph.
John Remy, outside counsel for T-Mobile USA, said Kaplan was not entitled to commissions under the terms of the carrier’s national account compensation program, which gives T-Mobile USA liberal leeway in deciding which transactions qualify for commission payouts.
The three-judge panel also wrestled with Gilmore over the relevant law of Kaplan’s claims. In addition to his wrongful termination claim, Kaplan asserted T-Mobile USA violated contract law and the wage payment act.
A U.S. district court granted summary judgment against Kaplan on all counts in October. That ruling referenced T-Mobile USA’s assertion that Kaplan, following an internal investigation, was discharged for violating company policy after allegedly giving demonstration mobile phones to professional athletes in exchange for sporting event tickets.
