                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0300n.06
                              Filed: May 28, 2008

                                               07-5420

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT


JERRY W. DAVIS,                                    )
                                                   )
        Plaintiff-Appellant,                       )
                                                   )
v.                                                 )   ON APPEAL FROM THE UNITED
                                                   )   STATES DISTRICT COURT FOR THE
SIEMENS MEDICAL SOLUTIONS USA,                     )   WESTERN DISTRICT OF KENTUCKY
INC.,                                              )
                                                   )
        Defendant-Appellee.                        )




        Before: KEITH, DAUGHTREY, and ROGERS, Circuit Judges.


        PER CURIAM. In this diversity action for breach of an employment contract, plaintiff

Jerry Wade Davis alleged that his former employer, defendant Siemens Medical Solutions

USA, Inc., was liable for approximately $1.77 million in sales commissions that Davis

claimed were unjustly withheld by the defendant. He also sought damages based on other

state   law   claims    –      specifically,   conversion,   promissory   estoppel,   fraudulent

misrepresentation, intentional infliction of emotional distress, unpaid wages, and breach

of fiduciary duty.


        After affording the parties extensive discovery, the district court granted summary

judgment to Siemens on all but Davis’s claim of fraudulent misrepresentation. See Davis
07-5420
Davis v. Siemens Medical Solutions

v. Siemens Med. Solutions USA, Inc. (Davis I), 399 F. Supp.2d 785 (W.D. Ky. 2005). In

denying summary judgment to the defendant on that one cause of action, the district judge

focused on a factual dispute about whether Douglas Spotts, Siemens’s national sales

manager in the company’s Image Management Division, had informed Davis that if he

accepted a position as product sales executive, the company would pay him commissions

on national sales made by other Siemens sales agents who reported to Davis.


       Consequently, the fraudulent-misrepresentation claim was tried by a jury at a trial

presided over by a magistrate judge because the district judge was confronted with “an

unanticipated scheduling conflict.” At the conclusion of four days of trial, the jury returned

a verdict in favor of Davis on the misrepresentation claim, awarding him $200,000 in

compensatory damages but no punitive damages. Post-verdict, Siemens filed a renewed

motion for judgment as a matter of law, a motion that the magistrate judge later granted,

ruling that, under principles of Kentucky law, Davis could not have reasonably relied upon

any representations made by Spotts that were in contravention of the unambiguous, written

language contained in the Siemens Compensation and Commission Plan under which

Davis was hired. See Davis v. Siemens Med. Solutions USA, Inc. (Davis II), No. 3:04CV-

195-MO, 2007 WL 710133, at *4 (W.D. Ky. Mar. 6, 2007). Davis now appeals that post-

trial decision, those portions of the district court’s summary judgment order that were

adverse to him, and certain evidentiary rulings made by the magistrate judge prior to and

during trial.



                                            -2-
07-5420
Davis v. Siemens Medical Solutions




The Summary Judgment Ruling


       In addressing the defendant’s claims for breach of contract, conversion, promissory

estoppel, intentional infliction of emotional distress, and breach of fiduciary duty, the district

judge expertly outlined the facts relevant to the dispute, provided a full exposition of the

case law relevant to any decision on the matter, and accurately applied that law to the facts

presented. Indeed, insofar as the decision in Davis I addresses the allegations of breach

of contract, conversion, promissory estoppel, intentional infliction of emotional distress, and

breach of fiduciary duty, any additional discussion of those claims by this court would be

merely duplicative and would serve no useful purpose. We therefore affirm the grant of

summary judgment to Siemens based upon the reasons set out by District Judge Heyburn

in Davis I, reported at 399 F. Supp.2d 785.


Grant of Judgment as a Matter of Law


       Similarly, Magistrate Judge Moyer’s treatment of Siemens’s post-trial motion for

judgment as a matter of law accurately identified, explained, and applied the law relevant

to Davis’s claim of fraudulent misrepresentation. In that decision, the magistrate judge

correctly noted that the district court’s earlier denial of summary judgment on this ground

was based upon the court’s assumption that a genuine dispute existed as to whether

Douglas Spotts made the representation concerning the payment of commissions that is


                                              -3-
07-5420
Davis v. Siemens Medical Solutions

alleged by the plaintiff. As emphasized by the magistrate judge, however, even if such a

representation had been made by Spotts, Davis could not have reasonably relied upon that

promise, given the clear contract language to the contrary. For the reasons discussed in

Magistrate Judge Moyer’s memorandum opinion dated March 6, 2007, we also affirm the

district court’s decision granting Siemens judgment as a matter of law on the claim of

fraudulent misrepresentation.


Claim of Unpaid Wages (K.R.S. § 337.385)


       In the summary judgment decision, the district court dismissed Davis’s claim for lost

wages under Section 337.385 of the Kentucky Revised Statutes because “Davis did not

pursue his necessary administrative remedies before initiating his lawsuit.” Subsequently,

however, the plaintiff moved the court to revise its decision in light of a Kentucky Supreme

Court decision overruling prior precedent that required such an administrative exhaustion.

See Parts Depot, Inc. v. Beiswenger, 170 S.W.3d 354, 362 (Ky. 2005). The district judge

granted that motion and filed a supplemental memorandum that again granted summary

judgment to Siemens on this issue, this time on the alternate ground that the commissions

were not “wages” because “Kentucky imposes no statutory duty to provide an override

commission” and because Davis had not established that the commissions had been

“agreed upon . . . or provided to employees as an established policy.” Ky. Rev. Stat.

§ 337.010(1)(c).




                                           -4-
07-5420
Davis v. Siemens Medical Solutions

       To the extent that Davis’s statutory wage claim is based upon the failure of Siemens

to pay the plaintiff commissions that he believes he is due, the district court’s breach of

contract analysis in Davis I is applicable and fatal to the plaintiff’s claim. To the extent that

Davis’s statutory claim is based upon the failure of the defendant to pay the entire base

salary promised in the company’s guarantee rider, we are informed by counsel that the

issue has been resolved out of court to the satisfaction of both parties.


Evidentiary Determinations


       On appeal, Davis also challenges the magistrate judge’s trial rulings that excluded

evidence of mistreatment of Davis and of other Siemens employees at the hands of a

management official not involved in the salary negotiations with Davis and also excluded

evidence that the defendant failed to provide the plaintiff with a company car, as promised

in a letter offering the product sales executive position to Davis. These and all challenges

to evidentiary determinations at trial are reviewed on appeal only for an abuse of discretion.

See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997).


       The magistrate judge’s exclusion of evidence of alleged mistreatment suffered by

Davis and by other Siemens employees at the hands of manager Thomas Riesenberg was

proper. First, the sole remaining cause of action at trial was the plaintiff’s claim of

fraudulent misrepresentation, an alleged wrong that occurred when national sales manager

Douglas Spotts, not Riesenberg, supposedly made certain promises to Davis. The fact



                                              -5-
07-5420
Davis v. Siemens Medical Solutions

that Riesenberg may have “mistreated” the plaintiff approximately a year later might have

been relevant to the already-dismissed claim for intentional infliction of emotional distress,

but it had no relevance whatever to the inquiry of whether Spotts knowingly deceived Davis

when discussing the job’s payment scale with the plaintiff. Furthermore, Davis is unable

to point to any testimony supporting a conclusion that Riesenberg had any role in the initial

conversations with the plaintiff about the salary associated with the product sales executive

position. Because evidence of alleged mistreatment of Davis or of other employees by

Riesenberg is of no consequence to the determination of whether Spotts fraudulently

misrepresented information to the plaintiff, such testimony was thus irrelevant to the

misrepresentation claim before the jury and was properly excluded. See Fed. Rule of Evid.

401.


       Likewise, the decision of the magistrate judge to disallow testimony regarding the

failure of the employer to provide Davis with a company car was not reversible error.

Although a letter from the defendant dated November 11, 2002, provided that it would

“provide a car for your use in accordance with Siemens Company Car Policy,” Davis later

disavowed any claim to a company car. During his deposition testimony, the following

exchange occurred between the plaintiff and defense counsel:


       Q. Are you claiming in this lawsuit that you were entitled to a company car
       while you worked as a product-sales executive?
       A. As were all of us [phonetic], I was entitled to one; but I don’t think I’m
       claiming it in my suit. No.



                                            -6-
07-5420
Davis v. Siemens Medical Solutions

       Q. You’re not asking for any damages because you didn’t get a company
       car?
       Mr. Bishop: Object, insofar as it calls for a legal conclusion.
       Ms. Settle: You can answer it.
       A. No.


Having asserted that the request for a company car was no longer part of his contract

claim, Davis cannot now seek to resurrect that claim. Consequently, any error in the

decision of the magistrate judge to exclude testimony relevant to that issue is harmless.


       For the reasons set out above, we AFFIRM the judgment of the district court,

including both the order granting summary judgment to the defendant and the order

granting judgment as a matter of law to the defendant.




                                            -7-
