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Man fired for deception, not FMLA leave

Virginia Lawyers Weekly//March 28, 2023

Man fired for deception, not FMLA leave

Virginia Lawyers Weekly//March 28, 2023//

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Where a salesperson argued he was terminated because he took leave under the Family and Medical Leave Act, or FMLA, but the record showed his employer terminated him after learning that he was permanently banned from entering Inova facilities, which he failed to disclosure after being made aware that Inova was the largest client in the region he would be servicing, and after he was told that he would be expected to visit client facilities as a part of his job duties, his employer prevailed on the FMLA claim.


In Count One of Wajdi Traish’s suit against his former employer, ZOLL Services LLC, Traish alleges that ZOLL breached his compensation agreement when it failed to pay him commissions earned under his 2018 sales compensation plain. In Count Two, he allege that ZOLL unlawfully terminated his employment in retaliation for taking leave under the FMLA. ZOLL has filed a motion for summary judgment.

Breach of contract

The 2018 plan’s discretionary language regarding the payment of commissions fails to create any legally enforceable obligation that ZOLL owes Traish. The 2018 plan makes clear that nothing in it would “obligate or imply future … compensation, or benefits,” which means Traish could not rely on it before he was actually paid for those sales.

Traish received payment only after ZOLL adjusted the quota requirement, which was perfectly consistent with language in the 2018 plan giving ZOLL “the right to amend, revoke, or modify this Plan at any time[,]” such that assignments and quota expectations “may be changed at the discretion of the Company at any time.” Such language clearly expresses ZOLL’s intent for scheduled commission payments under the 2018 plan to not form the basis of a contract.

Even assuming Traish could identify a contractual obligation regarding his commission payments, the 2018 plan gave ZOLL “the sole discretion” to make “final and binding” determinations regarding commission disputes. As such, ZOLL’s determination that Traish’s quota was erroneously set low and thus required a modification of payments owed to him, also means ZOLL could not have breached the 2018 plan as a matter of law.

Finally Traish cannot establish damages for two reasons. If Traish had been owed commission payments based on the erroneously low quota information provided to him, ZOLL still had the right under the 2018 plan to “recoup any overpayment from future incentive payments until the overpayment ha[d] been repaid in full.” Therefore, ZOLL’s decision to withhold such commission payments was merely an exercise of its right of recoupment under the 2018 plan. ZOLL was not required to plead a counterclaim to recoup that money because its recoupment right was contractual rather than statutory in nature.

Additionally, a precondition for receiving incentive pay under the 2018 plan was complying with the obligations under the confidentiality agreement, which required Traish to certify he was “not subject to any … restrictions that You will breach by virtue of your employment with ZOLL.” A regular part of Traish’s job duties under ZOLL was visiting Inova facilities, even though Inova made clear he was permanently restricted from entering such facilities. Because Traish was “found to have breached his … obligations under the [confidentiality agreement]” he was “not entitled to receive incentive pay” under the 2018 plan, and thus cannot recover any damages.


Assuming Traish has made out a prima facie case for retaliation, he still fails to establish that he would not have been terminated but for taking FMLA leave. ZOLL has offered a perfectly legitimate basis for firing Traish. Until he was confronted about it by his supervisor, Traish failed to disclose to ZOLL that he was permanently banned from entering Inova facilities. He failed to do so despite the fact that while interviewing for the ZOLL position, he was made aware that Inova was the largest client in the region he would be servicing and he was told that he would be expected to visit client facilities as a part of his job duties.

He also failed to disclose this information despite certifying that “any misrepresentation or omission of facts called for” in his application “may result in my dismissal at any time regardless of when the false answer or omissions are discovered.” He has not shown that this reason is pretext for retaliation.

Defendant’s motion for summary judgment granted.

Traish v. ZOLL Medical Corporation, Case No. 1:22-cv-00248, March 9, 2023. EDVA at Alexandria (Hilton). VLW 023-3-118. 13 pp.

VLW 023-3-118

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