                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 10-1406


APRIL M.A. DODGE,

                Plaintiff - Appellee,

           v.

CDW GOVERNMENT, INCORPORATED,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.     Anthony J. Trenga,
District Judge. (1:09-cv-00528-AJT-IDD)


Argued:   January 25, 2011                 Decided:   March 9, 2011


Before MOTZ and WYNN, Circuit Judges, and Irene C. BERGER,
United States District Judge for the Southern District of West
Virginia, sitting by designation.


Reversed by unpublished per curiam opinion.


John Kuropatkin Roche, PERKINS COIE LLP, Washington, D.C., for
Appellant.    Paul A. Prados, DAY & JOHNS, PLLC, Fairfax,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       April M.A. Dodge brought this breach of contract action

against    CDW-Government,          Inc.   (“CDW-G”)       for   unpaid     commission.

After a bench trial, the district court awarded judgment on one

claim to Dodge.           For the reasons that follow, we reverse.



                                             I.

       The parties do not dispute the relevant facts.

       In February 2003, Dodge began work as an at-will technology

sales account manager for CDW-G.                  When Dodge joined CDW-G, she

received      a    document    entitled      “Welcome      to    the   CDW-G   Account

Management         Team”     (hereinafter         “Welcome       Document”),        which

specified         that    Dodge’s    commission         level    “adjusts    based     on

ongoing adjusted average gross profit dollars.”                        In the Welcome

Document, CDW-G described the salary and commission it intended

to pay Dodge but expressly cautioned that the Welcome Document

did “not constitute or represent any contractual commitments.”

The Welcome Document explained that the “[f]ull details of all

CDW-G information” were set forth in the “CDW Sales Guidelines

and Procedures” (hereinafter “Handbook”), a copy of which Dodge

received at that time.

       Like   the        Welcome    Document,     the    Handbook      disclaimed    any

intention by CDW-G to enter into a contract.                           Indeed, at the

very    outset,      the     preface    of    the   Handbook       stated    that    its

                                             2
“contents . . . are presented as a matter of information only

and do not create a contract.”                 The Handbook further declared

that “[n]one of the . . . benefits described in this or any

other   handbook    are   intended       to    .    .    .   confer   any    rights     or

privileges,”      including     any    right       to    “remain    employed    by     CDW

. . . at any level of compensation.”                         The main text of the

Handbook went on to state that “Account Managers are paid on the

Account Manager Commission Matrix.”                     That matrix, in turn, set

forth   various     commission        levels       corresponding       to    levels     of

experience and gross profit figures.                    Additionally, the Handbook

explained that CDW-G tracked sales on a monthly basis and paid

commissions each month based on the previous month’s sales.

     In July 2004, Dodge participated in a meeting in which Max

Petersen,    CDW-G’s      Senior      Vice     President       of     Sales,    gave     a

Powerpoint     presentation         entitled        “2004      Federal       Comp     Plan

Update.”     At that meeting, Petersen presented a “new federal

matrix” designed to “simplify” the old matrix and “motivate”

CDW-G’s salesforce.           This new matrix, like the old matrix set

forth in the Handbook, consisted of a table of commission rates

pegged to various experience levels and gross profit figures.

Petersen    did   not   expressly      reference         the   Handbook’s      previous

disclaimers,      nor   did   the     Powerpoint        presentation        contain    any

disclaimers of its own.             Following the Powerpoint presentation,

Dodge received a copy of the new federal matrix.

                                          3
        On or about September 30, 2004, Dodge secured two purchase

orders from the Defense Contract Management Agency.                             The first

order involved the Agency’s agreement to purchase $1.6 million

of BlackBerry devices (“BlackBerry Sale”) from CDW-G, and the

second involved the Agency’s agreement to purchase $2.56 million

of computer monitors (“Monitor Sale”) from CDW-G.                               Very soon

thereafter, on November 24, 2004, CDW-G shipped and invoiced the

Blackberries; the next month it paid Dodge a 19% commission on

that    sale.      Before       doing    so,       CDW-G    reduced    by    $60,000     the

“adjusted       gross    profit”        figure       used    to   calculate         Dodge’s

commission; the reduction assertedly reflected the contributions

of another CDW-G employee.

       CDW-G did not begin to ship the Monitors until at least

late April 2005.           According to the matrix distributed at the

2004 presentation, Dodge should have received a 19% commission

on   the    Monitor     Sale.         Instead,       CDW-G    paid     her   only    a   10%

commission      (in     three    monthly       installments)         totaling     $81,727.

Had CDW-G paid her at the 19% rate, Dodge would have received an

additional $76,689.

       On May 16, 2008, Dodge sued CDW-G for breach of contract,

seeking unpaid commissions on both the BlackBerry Sale and the

Monitor Sale.         After a bench trial, the district court held that

the 2004 Powerpoint presentation qualified as a binding contract

offer      to   pay     Dodge     a     19%        commission     on     future      sales.

                                               4
Accordingly, the district court found for Dodge with respect to

the   Monitor      Sale    and    awarded   her       $76,689   in    damages.      The

district court concluded that Dodge’s claim pertaining to the

BlackBerry sale was time-barred.

      Only CDW-G appeals.               Thus, only the Monitor Sale is at

issue     before    us.      We    review       the    district      court’s   factual

conclusions for clear error and its legal conclusions de novo.

See Roanoke Cement Co. v. Falk Corp., 413 F.3d 431, 433 (4th

Cir. 2005).



                                          II.

      CDW-G maintains that its representations to Dodge regarding

her   commission     do    not    set    forth    an    offer   giving      rise   to   a

binding contract. 1         According to CDW-G, it had no contractual

obligation to pay Dodge any commission at all, including the 10%

commission that it ultimately did provide her in connection with

the Monitor Sale.

      Under Virginia law, which the parties agree governs this

dispute, a      promise     to    pay    commissions      can   form    a   unilateral

contract    even    when    made    to    at-will      employees.       See    Hercules


      1
       CDW-G alternatively contends that it modified the terms of
any contract prior to Dodge’s performance, and that Dodge’s
claim regarding the Monitor Sale is time-barred.      Because we
hold that CDW-G had no contractual obligation to pay Dodge any
commission, we do not reach these arguments.


                                            5
Powder Co. v. Brookfield, 53 S.E.2d 804, 808 (Va. 1949).                   But

not every statement professing an employer’s future intention to

pay benefits commits that employer to a binding contract.                 See

Jensen v. IBM Corp., 454 F.3d 382 (4th Cir. 2006).                    To the

contrary, a statement constitutes a contract offer only if it

“manifest[s] a willingness to enter into a bargain.”              Id. at 388

(internal   quotation   omitted).       Thus,   we   held   in   Jensen   that

IBM’s “Software Sales Incentive Plan,” which pegged employees’

commissions to their ability to meet sales quotas, did not set

forth an offer providing the basis for a binding contract but

instead “announced a policy of payment in which [IBM] reserved

discretion to itself to make the payment.”           Id. at 384, 388.       In

doing so, we observed that IBM’s disclaimer -- stating in part

that “this program does not constitute a promise by IBM to make

any distributions under it” -- “manifested [IBM’s] clear intent

to preclude the formation of a contract.”            Id. at 388 (emphasis

omitted).

     Here, the district court acknowledged that CDW-G’s Handbook

contained similar disclaimers and so did not establish the basis

for a contract. 2   The court nonetheless found for Dodge, holding


     2
       In her appellate brief, Dodge made a passing attempt to
characterize the Handbook’s disclaimers as insufficient.   She
also contended at oral argument that the Handbook’s statement
that account managers are “guaranteed” a certain “minimum
commission level” overrides those disclaimers. We reject these
(Continued)
                                    6
that the Handbook’s disclaimers “did not insulate CDW-G from the

contractual       consequences”    of     the    “unqualified      federal    matrix”

later presented to Dodge the 2004 Powerpoint presentation.

      We disagree.         At the time of the 2004 presentation, the

Handbook’s disclaimers governed CDW-G’s payment of commissions,

and nothing said at the 2004 presentation eroded the force of

those disclaimers.         The Powerpoint presentation on which Dodge

relies -- articulating CDW-G’s “new federal matrix” -- merely

set forth a numerical table of commission rates beside bulleted

explanations of those rates.              This new matrix altered only the

old matrix contained in the Handbook; it evinced no intent to

transform        CDW-G’s    commission          policy      from   a   non-binding

informational statement into a contract offer.

      To    be     sure,   the     2004        Powerpoint      presentation     never

expressly repeated the Handbook’s disclaimers.                     Such repetition

was   unnecessary,         however,       because        the   2004    presentation

functioned not as an independent offer but as a modification of

the Handbook.       Indeed, CDW-G called its new commission matrix a

“sales     plan    update,”      and    the     Powerpoint      presentation     made

explicit that the “new federal matrix” on which Dodge relies




arguments.   The Handbook contains numerous explicit disclaimers
making clear that its description of CDW-G’s commission policy -
- including use of the term “guaranteed” -- qualified as
“information only” and did “not create a contract.”


                                           7
simply replaced the “old” matrix contained in the Handbook.                          The

“sales plan changes” that resulted in the new matrix were just

that -- “changes” to the sales plan articulated by the Handbook.

       The     district     court’s        statute       of   limitations      analysis

provides additional support for this conclusion.                        In rejecting

Dodge’s Blackberry claim as untimely, the court found that the

2004 presentation formed an oral, rather than written, contract

subject to a stricter three-year statute of limitations, because

“to understand the parties’ rights and obligations . . . one

needs to rely on agreements and understandings other than those

set forth in the written federal matrix” (emphasis added).                           In

fact,   these     necessary       written    “agreements       and   understandings”

reside largely in the Handbook and the Welcome Document, which

explain       CDW-G’s    basic    commission       policy     and    outline    crucial

details such as the timing of payments and the mechanics of

gross profit calculation.             As such, interpretation of the 2004

Powerpoint presentation necessitates reference to the Handbook;

only when combined with the Handbook does that presentation form

a complete policy.              The 2004 presentation thus functions as a

modification to the Handbook’s terms rather than a free-standing

contract offer.          See Fitzgerald v. Southern Farm Agency, 94 S.E.

761,    762    (Va.     1918)    (noting    that     a   company’s    change    to   its

broker’s commission was “not a new contract, but a modification

of the original agreement” (internal quotation omitted)).

                                             8
       Because the 2004 presentation only modified the terms of

the Handbook, the Handbook -- as modified by the presentation --

continued to govern CDW-G’s commission payments.                  See Warren v.

Goodrich, 112 S.E. 687, 694 (Va. 1922); Carnes Co. v. Stone

Creek Mech., Inc., 412 F.3d 845, 853 (7th Cir. 2005).                          And

nothing     in    the   2004   presentation        purported     to    alter   the

Handbook’s       disclaimers   or   the       non-binding    nature   of   CDW-G’s

projected    commission    rates.         The    2004   presentation    therefore

“did not amount to an offer to enter into a contract, but the

announcement of a nonbinding intention.”                    Jensen, 454 F.3d at

390.    Although CDW-G’s failure to make good on that professed

intention may hamper its efforts to attract and motivate sales

managers like Dodge, and may even give rise to a claim based on

quantum meruit, see, e.g., Mongold v. Woods, 677 S.E.2d 288, 292

(Va. 2009), it does not constitute a breach of contract.



                                     III.

       For the foregoing reasons, the judgment of the district

court is

                                                                        REVERSED.




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