Filed: Jul. 31, 2015
Latest Update: Mar. 02, 2020
Summary: Case: 14-12679 Date Filed: 07/31/2015 Page: 1 of 20 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 14-12679 _ D.C. Docket No. 1:12-cv-02277-SCJ JOSEPH KYLE NEIBERT, Plaintiff - Counter Defendant - Appellant, versus COMPUTER SCIENCES CORPORATION, Defendant - Counter Claimant - Appellee. _ Appeal from the United States District Court for the Northern District of Georgia _ (July 31, 2015) Before MARCUS and ROSENBAUM, Circuit Judges, and FRIEDMAN, * District Ju
Summary: Case: 14-12679 Date Filed: 07/31/2015 Page: 1 of 20 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 14-12679 _ D.C. Docket No. 1:12-cv-02277-SCJ JOSEPH KYLE NEIBERT, Plaintiff - Counter Defendant - Appellant, versus COMPUTER SCIENCES CORPORATION, Defendant - Counter Claimant - Appellee. _ Appeal from the United States District Court for the Northern District of Georgia _ (July 31, 2015) Before MARCUS and ROSENBAUM, Circuit Judges, and FRIEDMAN, * District Jud..
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Case: 14-12679 Date Filed: 07/31/2015 Page: 1 of 20
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-12679
________________________
D.C. Docket No. 1:12-cv-02277-SCJ
JOSEPH KYLE NEIBERT,
Plaintiff -
Counter Defendant -
Appellant,
versus
COMPUTER SCIENCES CORPORATION,
Defendant -
Counter Claimant -
Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(July 31, 2015)
Before MARCUS and ROSENBAUM, Circuit Judges, and FRIEDMAN, * District
Judge.
*
Honorable Paul L. Friedman, United States District Judge for the District of Columbia, sitting
by designation.
Case: 14-12679 Date Filed: 07/31/2015 Page: 2 of 20
PER CURIAM:
Joseph Kyle Neibert appeals from the district court’s grant of final summary
judgment to Computer Sciences Corporation (“CSC”) on his breach of contract
claim. Neibert, a former CSC salesperson, alleges that CSC breached the terms of
his compensation plan when it gave him a smaller incentive payment than he
allegedly deserved for his role in securing a deal to provide mainframe hosting
services to the Federal Home Loan Mortage Corporation, otherwise known as
Freddie Mac. This case comes down to a question of contractual interpretation:
does Neibert’s compensation plan, which encompasses “[a]ll cloud and hosting
services,” necessarily include a mainframe hosting transaction? After thorough
review, we conclude that the answer is no. The contract expressly gives CSC
discretion to interpret its terms. Neibert has failed to present any evidence that
CSC did not act in good faith when CSC interpreted this ambiguous phrase to
exclude mainframe transactions. We, therefore, affirm the district court’s grant of
summary judgment to CSC.
I.
The essential facts, viewed in the light most favorable to Neibert, are these.
CSC is a “global information technology services company” which offers data
hosting services to businesses worldwide. CSC provides “mainframe” hosting
services, which involve dedicated physical servers stored in a data center. These
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data centers can range in size from a small room to many floors of an office
building, and are managed by on-site information technology personnel. CSC also
provides “cloud” hosting services, which involve storing data over networks that
can be accessed anywhere.
Mainframe and cloud hosting services differ in several crucial respects.
Mainframe services are generally perceived as more secure and reliable, and
companies dealing with sensitive information often prefer a mainframe solution.
In contrast, cloud services are cheaper, based on newer technology, and allow
easier access to information. In recognition of these differences, CSC divides its
sales personnel into two units. The Cloud Computing and Software Services unit
(“Cloud Services”) is tasked with selling cloud products. Cloud Services employs
only “some folks” with experience in mainframe transactions, and does not
typically sell mainframe services. Mainframe services are instead sold by the
Infrastructure Services business unit, which contains personnel with expertise in
that field. Cloud Services employees and Infrastructure Services employees are
governed by distinct incentive plans because the two kinds of transactions involve
different amounts of revenue and expenses and varying employee time
commitments.
In spring 2011, the appellant, Neibert, was offered a position as a Specialist
Sales Executive in CSC’s Cloud Services division. “In recognition” of his “sales
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role,” Neibert was offered a compensation plan: the CSC Sales Incentive
Compensation Agreement (“Compensation Plan”). The Compensation Plan
provides that Neibert could earn an incentive payment by securing contracts for
certain “Offerings and Services,” defined as “[a]ll cloud and hosting services,”
within his geographic territory. However, Section 5.1 of the Compensation Plan
stipulates that “CSC has complete discretion and final authority to administer and
interpret this Plan and to resolve any disputes concerning its administration or
interpretation.” The Compensation Plan also contains two other relevant
provisions: a choice of law clause which instructs that the Compensation Plan shall
be governed by Virginia law, and a severability clause in the event any provision
of the Compensation Plan is found to be unenforceable.
Throughout the course of his employment, Neibert managed several active
cloud services accounts involving Freddie Mac. In May or June of 2011, a Freddie
Mac representative approached Neibert about the possibility of CSC hosting
Freddie Mac’s mainframe. This opportunity involved CSC taking over Freddie
Mac’s existing data center, including mainframe hardware, the people charged
with running it, and even the facility itself. A transaction of this kind would not
normally be handled by the Cloud Services division, and, during his deposition,
Neibert could remember only one other occasion when Cloud Services personnel
managed a mainframe outsourcing deal. Indeed, Neibert admitted that such a
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transaction was “not a [c]loud deal.” Neibert presented the Freddie Mac
mainframe transaction to CSC management, and was allegedly told that he would
be compensated for pursuing it. CSC and Freddie Mac eventually reached an
agreement regarding the hosting of Freddie Mac’s mainframe on November 18,
2011, to the tune of over $30 million.
After the Freddie Mac deal closed, CSC conducted its sales credit review
process, which determines how much credit each particular sales professional
should receive for a given deal. CSC management concluded that the Freddie Mac
mainframe transaction fell outside of Neibert’s Compensation Plan, but that he
nonetheless deserved special recognition for his contributions to the deal. Neibert
was ultimately awarded $25,000, based on the payment he would have received
under the incentive plan in place for the Infrastructure Services unit. He was,
obviously, unhappy with that figure, and contends that he was instead entitled to
$609,632.63 under his Compensation Plan. Neibert resigned, and eventually, filed
this lawsuit.
On May 30, 2012, Neibert brought his complaint in Georgia state court,
alleging breach of contract, and, alternatively, unjust enrichment claims. Citing
diversity jurisdiction, CSC subsequently removed the case to the United States
District Court for the Northern District of Georgia. After discovery, CSC moved
for summary judgment. CSC essentially argued that because Section 5.1 gave it
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complete discretion to interpret the Compensation Plan, it had a contractual right to
determine whether the Freddie Mac mainframe transaction fell within the offerings
for which Neibert could receive an incentive payment. Alternatively, CSC asserted
that Neibert failed to show that its decision was rendered in bad faith.
After briefing by the parties, the district court granted summary judgment to
CSC. The court first concluded that Section 5.1 would violate Georgia public
policy if construed to divest the courts of jurisdiction. The court read Georgia law
to require that CSC’s exercise of discretion be reviewed under “the standard of
good faith and honest judgment.” The court then found it ambiguous whether the
Compensation Plan includes mainframe transactions like the Freddie Mac deal.
The mere fact that CSC resolved the ambiguity against Neibert, absent any other
substantial evidence, did not demonstrate that CSC’s interpretation was rendered in
bad faith. After the district court denied his motion for reconsideration, Neibert
timely appealed to this Court.
II.
We review a district court’s grant of a motion for summary judgment de
novo. Myers v. Bowman, 713 F.3d 1319, 1326 (11th Cir. 2013). Summary
judgment is appropriate “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). “The moving party bears the burden of proof, and the district
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court should view all evidence and make all reasonable inferences in favor of the
party opposing summary judgment.” Allen v. Bd. of Pub. Educ. for Bibb Cnty.,
495 F.3d 1306, 1313 (11th Cir. 2007) (quotation omitted). However, “[a] mere
scintilla of evidence in support of the nonmoving party will not suffice to
overcome a motion for summary judgment.” Young v. City of Palm Bay, Fla.,
358
F.3d 859, 860 (11th Cir. 2004).
III.
We first examine the extent to which Section 5.1 of the Compensation Plan,
which gives CSC “complete discretion and final authority to administer and
interpret [the Compensation] Plan,” is valid and enforceable. Applying Virginia
law to Section 5.1, as stipulated in the parties’ contract, we hold that CSC was
required to exercise its discretion in good faith. Such a limited grant of discretion
to one party to a contract does not offend the public policy of the state of Georgia,
which bars contractual provisions that strip the courts of jurisdiction to resolve
contractual disputes.
“In a case founded on diversity jurisdiction,” we are bound to “apply the
forum state’s choice of law rules.” Federated Rural Elec. Ins. Exch. v. R.D.
Moody & Assocs., Inc., 468 F.3d 1322, 1325 (11th Cir. 2006) (per curiam).
Because this case was brought in the state of Georgia, we apply Georgia’s choice
of law rules. The Compensation Plan itself, however, contains a choice of law
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clause directing this Court to apply Virginia law to resolve contractual disputes.
“Absent a contrary public policy, [Georgia courts] will normally enforce a
contractual choice of law clause.” Carr v. Kupfer, 296 S.E.2d 560, 562 (Ga. 1982).
However, “[a] contract should not be held unenforceable . . . except in cases free
from substantial doubt where the prejudice to the public interest clearly appears.”
CS-Lakeview at Gwinnett, Inc. v. Simon Prop. Grp., Inc.,
659 S.E.2d 359, 361
(Ga. 2008) (quotation omitted); see also Emory Univ. v. Porubiansky,
282 S.E.2d
903, 904-05 (Ga. 1981) (explaining that Georgia courts “exercise extreme caution
in declaring a contract void as against public policy”). It is, after all, “the
paramount public policy” of the state of Georgia “that courts will not lightly
interfere with the freedom of parties to contract.” Jefferson Pilot Life Ins. Co. v.
Clark,
414 S.E.2d 521, 525 (Ga. Ct. App. 1991) (quotation omitted). We are
obliged to apply Virginia law to the Compensation Plan, unless doing so would
yield a result at odds with Georgia public policy.
As we see it, a Virginia court would construe Section 5.1 to require that CSC
exercise its discretion in good faith. Virginia courts read an implied duty of good
faith and fair dealing into every contract. See, e.g., A & E Supply Co. v.
Nationwide Mut. Fire Ins. Co., 798 F.2d 669, 676 (4th Cir. 1986); Historic Green
Springs, Inc. v. Brandy Farm, Ltd., 32 Va. Cir. 98, 101-02 (Va. Cir. Ct. 1993).
“[I]t is a basic principle of contract law in Virginia,” the United States Court of
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Appeals for the Fourth Circuit has explained, that “a party may not exercise
contractual discretion in bad faith, even when such discretion is vested solely in
that party.” Va. Vermiculite, Ltd. v. W.R. Grace & Co.- Conn., 156 F.3d 535, 542
(4th Cir. 1998); see also Litman v. Toll Bros., Inc., 263 F. App’x 269, 274 (4th Cir.
2008) (per curiam) (stating that such discretion is not “unlimited”). Instead of
reading Section 5.1 as conferring absolute discretion upon CSC, Virginia courts
would review CSC’s interpretations of the Compensation Plan for good faith.
Such a limited discretionary provision does not offend Georgia public
policy. In a series of cases, the Georgia courts have explained that a discretionary
provision in a contract is void only if it entirely divests the courts of jurisdiction
with respect to all disputes arising under the contract. See, e.g., Caribbean Lumber
Co. v. Anderson, 422 S.E.2d 267, 268 (Ga. Ct. App. 1992) (“[P]rovisions in
contracts which attempt to divest the courts of jurisdiction . . . are void as against
public policy.”); Gettys v. Mack Trucks, Inc.,
131 S.E.2d 205, 206 (Ga. Ct. App.
1963) (“A general agreement to arbitrate all questions which may arise in the
execution of a contract, both as to liability and loss, should be treated as against
public policy and void, as an attempt to oust the courts of jurisdiction.” (alteration
adopted) (quotation omitted)). These decisions seem to contemplate something
akin to arbitration, where a reviewing court is left with no authority other than to
enforce the mandates of some other decisionmaker.
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Indeed, in a more recent case, Planning Technologies, Inc. v. Korman, the
Georgia appellate court drew a distinction between two forms of discretion. 660
S.E.2d 39 (Ga. Ct. App. 2008). “Where an agreement gives a party discretionary
decision-making authority, the question is not whether the decision was
erroneous”; instead, “the sole question” for a reviewing court “is whether the
decision was made in good faith and involved the exercise of honest judgment.”
Id. at 42. But, “no duty of good faith is implied” if the agreement expressly
“grants a party absolute or uncontrolled discretion in making a decision.”
Id.
(quotation omitted). The court concluded that the contractual language at issue,
which made one party’s decisions “final, conclusive and binding,” conferred only
the former, more constrained kind of discretion, and enforced the provision with no
mention of any public policy concerns.
Id. at 42-43 (quotation omitted). All in all,
we read Gettys, Caribbean Lumber, and Korman to indicate that, at the very least,
a provision conferring good-faith discretion is enforceable under Georgia law.
In light of these cases, Section 5.1, when construed under Virginia law, does
not offend Georgia public policy. Section 5.1 plainly does not divest the courts of
jurisdiction. At no point did CSC argue that the federal courts were without
authority to resolve its dispute with Neibert, and CSC even brought a number of
counterclaims. Cf. Caribbean Lumber, 422 S.E.2d at 269 (“[T]he parties do not
contend the trial court was without authority to resolve the dispute giving rise to
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this appeal.”). Moreover, the Compensation Plan itself contemplates judicial
review. It contains a choice of law clause directing a reviewing court to apply
Virginia law, and it also contains a severability clause which takes effect should a
court invalidate some other provision of the contract. Nor does Section 5.1 leave a
reviewing court with nothing to review. Under Virginia law, we must determine
whether CSC’s interpretations were rendered in good faith. We do not lack
jurisdiction to hear disputes arising under the Compensation Plan, nor is our review
so deferential as to denude it of all significance.
Neibert claims, nevertheless, that CSC argued before the district court that
the courts lacked jurisdiction to hear this case at all. But CSC never contested the
district court’s jurisdiction. Instead, CSC argued both that it had an express
contractual right to interpret the Compensation Plan -- an argument that CSC has
now abandoned -- and that it interpreted the agreement in good faith. Even
assuming, however, that CSC attempted to challenge the courts’ jurisdiction, it did
so based on an erroneous interpretation of Virginia law. As we have already
explained, Virginia courts would read Section 5.1 as requiring CSC to exercise
discretion in good faith, and not as extending an “explicit contractual right[]” to
interpret the Compensation Plan however CSC saw fit. See Va. Vermiculite, Ltd.,
156 F.3d at 542. We are not obliged to credit CSC’s since-corrected view of
Virginia law.
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The bottom line is that Virginia law would read Section 5.1 to require that
CSC exercise its discretion in good faith. “[E]xercis[ing] extreme caution,” as we
must, Porubiansky, 282 S.E.2d at 904, we cannot say that such a provision offends
Georgia policy. After all, Neibert agreed to the Compensation Plan, and in light of
Georgia’s “paramount public policy” of freedom of contract, he cannot seek to
avoid its terms now. Jefferson Pilot Life Ins.
Co., 414 S.E.2d at 525 (quotation
omitted). We hold, therefore, that Section 5.1 is not void.1
IV.
Next, we consider whether Neibert has shown a genuine dispute of material
fact as to whether CSC’s interpretation of the scope of the Compensation Plan was
rendered in good faith. He has not.
In defining the good faith standard, we once again look to Virginia law.
Under Virginia law, a defendant acts in bad faith when it “act[s] in furtherance of
its own interest, with intentional disregard of the financial interest of the
[plaintiff].” Va. Vermiculite, Ltd. v. W.R. Grace & Co.-Conn., 108 F. Supp. 2d
549, 608 (W.D. Va. 2000) (quoting State Farm Mut. Auto. Ins. Co. v. Floyd, 366
1
Even if we were to conclude that applying Virginia law to Section 5.1 would violate the public
policy of the state of Georgia, and we do not, it is far from clear that voiding the provision would
be the appropriate remedy. It appears that, under Georgia law, a contractual provision in
violation of public policy can be narrowly construed, rather than struck from the contract.
Bishop v. Act-O-Lane Gas Serv. Co.,
85 S.E.2d 169, 177 (Ga. Ct. App. 1954) (“[T]hat
construction should be placed upon a contract which will uphold rather than avoid it.”).
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S.E.2d 93, 97 (Va. 1988)) (second alteration in original). Likewise, the Second
Restatement of Contracts emphasizes “faithfulness to an agreed common purpose
and consistency with the justified expectations of the other party,” as well as
considerations of fairness. Restatement (Second) of Contracts § 205 cmt. a (1981).
It appears, therefore, that Virginia law would find a breach of the implied duty of
good faith where a party, vested with discretion, renders an interpretation of a
contract at odds with its plain meaning, or interprets the contract in disregard of the
other party’s interests. No such circumstances are present here.
Moreover, even if we applied Georgia law, the outcome of this case would
be the same. Because the district court held that Section 5.1, read broadly, would
violate Georgia’s public policy, it defined good faith in terms of Georgia law. As
the district court explained, relying on Korman, 660 S.E.2d at 43-44, a plaintiff can
show bad faith under Georgia law by demonstrating, for example, that the
defendant’s actions were arbitrary, motivated by “an improper pecuniary motive,”
or contrary to the plain meaning of the contract. Neibert has failed to meet this
standard as well. There is plainly “room for construction” in the Compensation
Plan, see
id. at 44 (quotation omitted), and Neibert presents no evidence that
CSC’s interpretation was otherwise arbitrary or improper. Thus, whether we apply
Virginia law, as the parties agreed to do by contract, or Georgia law, which the
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parties have applied in their argumentation, the district court was correct to grant
summary judgment to CSC.
A.
Neibert’s first argument is that CSC acted in bad faith when it determined
that the mainframe transaction fell outside the scope of his Compensation Plan
because the plain language of that agreement includes all “hosting”-related deals,
whether mainframe or cloud. Both parties accept that the Freddie Mac transaction
was, in substance, a mainframe transaction. We ask, therefore, whether the
Compensation Plan is ambiguous, and, if so, whether CSC’s interpretation of that
contract to exclude mainframe transactions is reasonable. The answer to both
questions is yes.
The Compensation Plan defines the eligible “Offerings and Services” this
way:
All cloud and hosting services, including but not limited to
CloudCompute, BizCloud, Managed Hosting, SaaS, PaaS, SAP IU,
CloudLab, CloudTest, CloudExchange, and others as developed and
available.
As we see it, and as the district court concluded, this clause is plainly ambiguous as
to whether it includes mainframe hosting transactions. “All cloud and hosting
services” could mean any number of things. It could mean what Neibert says it
means: all cloud services, as well as all hosting services, whether cloud or
mainframe-related. Or, as the district court thought, it could mean “cloud related
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services, which includes cloud hosting services.” It could even mean a third
option, namely, all services pertaining to both cloud and hosting, or essentially
only cloud hosting services. The language of the clause itself does not indicate
what the parties intended. All we can say for sure is that “cloud hosting services”
were clearly meant to be included; whether the clause includes other forms of
services is an open question. We cannot say that CSC’s resolution of this
ambiguity was unreasonable.
The representative list of examples of offerings also provides powerful
evidence that the parties did not intend to include mainframe transactions within
the scope of the Compensation Plan. Each of these examples appears to pertain to
cloud-related services. Neibert cannot point to a single example that exclusively or
substantially pertains to mainframe services. It was not unreasonable for CSC to
conclude that a provision which refers to, among other things, “CloudCompute,
BizCloud, . . . CloudLab, CloudTest, [and] CloudExchange,” included only cloud
transactions. While the clause “includ[es] but [is] not limited to” these services,
the examples that were chosen suggest that the clause was targeted at similar but
unspecified services.
Moreover, CSC’s reading of the Compensation Plan makes good sense in
light of the contract’s purpose. The Compensation Plan was executed to
compensate Neibert for his employment in CSC’s Cloud Services division, through
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which he sold cloud services. There is undisputed record evidence that employees
in CSC’s mainframe division belonged to a separate compensation plan with a
different -- and apparently, less generous -- scheme for calculating incentive
payments. We find it hard to believe that the parties intended for Neibert to
receive incentive payments for work generally conducted by another division,
much less that they wished for him to receive even larger payments than could
employees of that division.
Neibert, however, leans on the fact that the clause expressly lists “Managed
Hosting” as one of the available offerings, a phrase which appears several times in
CSC’s internal records regarding the Freddie Mac deal. This, however, is far too
slender a reed to support his claims. For one thing, those documents also say, at
the very top and in large bold print, “Freddie Mac- Mainframe Hosting” -- a type
of service that, as we’ve explained, the Compensation Plan does not encompass.
The record also indicates that Neibert himself created the Salesforce records,
which were then ported over to Pulsepoint by a data entry clerk. After a
transaction closed, CSC would typically undertake a more comprehensive review
of the actual nature of the transaction to determine the credit due to each employee.
We do not see how a two word designation on internal sales records could tie
CSC’s hands in any subsequent compensation review.
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Under both Virginia law and Georgia law, CSC’s reasonable interpretation
of the scope of the Compensation Plan cannot give rise to an inference of bad faith.
See Va. Vermiculite, Ltd., 108 F. Supp. 2d at 608 (requiring a showing of not only
arbitrary, but intentionally dishonest conduct to establish bad faith under Virginia
law);
Korman, 660 S.E.2d at 44 (under Georgia law, “if there is room for
construction, no bad faith can be inferred” (quotation omitted)). All in all, CSC
reasonably concluded that the Freddie Mac mainframe transaction was
categorically distinct from the cloud services contemplated by Neibert’s
Compensation Plan.
B.
Aside from the language of the Compensation Plan itself, Neibert’s only
other attempt to show bad faith rests on the declaration of Jay Myer, who served as
his supervisor. Federal Rule of Civil Procedure 56(c)(4) stipulates that a
declaration used to oppose a motion for summary judgment “must be made on
personal knowledge, [and] set out facts that would be admissible in evidence.”
Applying this standard, the district court found Myer’s declaration to be wholly
insubstantial. We agree. Myer’s three-page declaration makes, essentially, two
points. First, Myer asserts that CSC’s refusal to pay Neibert was unjustified.
Second, Myer maintains that CSC had a practice of arbitrarily denying
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commissions. Neither of these bare assertions gives rise to a genuine dispute of
material fact.
Myer’s first allegation is entitled to no evidentiary weight. He bluntly
charges that CSC’s decision was arbitrary, with no supporting factual detail. We
have “consistently held that conclusory allegations without specific supporting
facts have no probative value.” Bowman, 713 F.3d at 1327 (quotation omitted).
Myer sheds no light on, for example, Neibert’s role in the Freddie Mac negotiation,
the nature of the transaction itself, the process by which CSC calculated Neibert’s
incentive payment, or any other relevant details. Moreover, neither Myer’s
declaration nor any other record evidence suggests that Myer played any role in
CSC’s determination that the mainframe transaction fell outside of Neibert’s
compensation plan.
Myer’s second allegation fares no better. Myer draws the conclusion that
CSC habitually denied commission payments in bad faith because of two such
instances he observed. Once again, he provides no factual background by which to
assess these claims. We don’t know whether these decisions were made by the
same personnel who evaluated Neibert’s compensation, the full circumstances
under which these other employees were denied payments, the terms of their
compensation plans, nor even the names of the employees. Nor does Myer explain
how he learned about these incidents. At best, Myer’s threadbare declaration
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provides only a “scintilla” of evidence to suggest that CSC acted in bad faith,
which cannot preclude summary judgment. See Young, 358 F.3d at 860.
Because there is no genuine dispute as to whether CSC acted in good faith,
under Georgia law or Virginia law, we affirm the district court’s grant of final
summary judgment to CSC.
AFFIRMED.
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FRIEDMAN, District Judge, concurs in the judgment only.
20
