UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CHRISTINA RONALDSON, Plaintiff,

v. Civil Action No. 19-1034 (CKK) NATIONAL ASSOCIATION OF HOME BUILDERS, Defendant.

Memorandum Opinion (November 18, 2020)

In her Amended Complaint, Ms. Christina Ronaldson (“Plaintiff”) asserts claims against

her former employer, National Association of Home Builders (“NAHB” or “Defendant”), under

the District of Columbia Wage Payment and Collection Law, D.C. Code §§ 32–1301 et seq.,

(“DCWPCL”), and the common law doctrine of unjust enrichment. As discussed herein, Ms.

Ronaldson’s claims focus on the size of her 2016 incentive commission from NAHB and the

method by which NAHB calculated that incentive commission. NAHB has now moved to dismiss

Ms. Ronaldson’s DCWPCL and unjust enrichment claims as a matter of law under Federal Rule

of Civil Procedure 12(b)(6), or, in the alternative, Federal Rule of Civil Procedure 12(c). See

Def.’s Mot., ECF No. 43.

Upon consideration of the briefing, the relevant authorities, and the record as a whole, 1 the

Court GRANTS NAHB’s motion as to Ms. Ronaldson’s DCWPCL claim in Count I of the

1 The Court’s consideration has focused on the following briefing and material submitted by the parties: • Am. Compl., ECF No. 41; • Def.’s Mem. of Law in Supp. of Mot. to Dismiss, or in the Alternative, for J. on the Pleadings (“Def.’s Mot.”), ECF No. 43; • Pl.’s Mem. in Opp’n to Def.’s Mot. (“Pl.’s Opp’n”), ECF No. 90; • Def.’s Reply to Pl.’s Opp’n (“Def.’s Reply”), ECF No. 47; and, • Pl.’s Sur-Reply to Def.’s Reply (“Pl.’s Sur-Reply”), ECF No. 64.

1 Amended Complaint and DISMISSES that claim WITH PREJUDICE. See Am. Compl. ¶¶ 37–

53. The Court, however, DENIES NAHB’s motion to dismiss Ms. Ronaldson’s claim for unjust

enrichment in Count II of the Amended Complaint. See id. ¶¶ 54–59.

I. BACKGROUND

“NAHB is a non-profit organization with over 140,000 members that engages in wide-

ranging activities with the overall purpose of promoting home ownership and home building.”

Am. Compl. ¶ 1. NAHB’s “members are responsible for approximately 80% of new single-family

home construction annually in the United States.” Id. Of note in this case, NAHB generates

revenue “in a variety of ways which include . . . membership dues and contributions,

advertisements in NAHB publications and at NAHB events, licenses of NAHB logos and

intellectual property, and sponsorships of NAHB events and programs.” Id. ¶ 2.

Beginning in December 2009, Christina Ronaldson began working at NAHB “as the

Director of NAHB’s revenue-generating Affinity Programs.” Id. ¶ 1; see also id. ¶ 16. “The

Affinity Programs generated revenue for NAHB by payments of flat fees and percentages of sales

of products and services through [NAHB] partnerships.” Id. ¶ 3. As director of the Affinity

Programs, “Ms. Ronaldson was responsible for generating revenue for NAHB by creating national

partnerships between NAHB and corporations with significant financial interests in the home

building industry by marketing products and services to NAHB members, including builders,

contractors and sub-contractors, and banks.” Id. Plaintiff alleges that she was successful in her

role as the Affinity Programs director. In particular, she alleges that NAHB gave her a positive

employee review in 2015, in recognition of “the complexity of the programs she manage[d] and

of the efforts she put forth to ensure their success.” Id. ¶ 18. Plaintiff’s 2015 NAHB review also

2 noted that she “work[ed] diligently with [NAHB] affinity vendors” and promoted “a professional

NAHB image.” Id.

Throughout her tenure with NAHB, Plaintiff’s compensation “comprised . . . a base salary

and an Incentive Compensation Plan” (the “Incentive Plan”). Id. ¶ 4; see also id. ¶ 16. Under her

annual Incentive Plans, Plaintiff had the opportunity to receive an incentive commission “based

on a formula tied to Affinity Department annual net revenue goals set by NAHB in advance of

each year.” Id. ¶ 4. More specifically, NAHB would pay Plaintiff an incentive commission “when

Affinity Programs net revenue” for the prior year “reached 90% of its projected target,” and an

even larger commission “when net revenue reached or exceeded 100% of NAHB’s projected

target” for the year. Id. ¶ 22; see also Pl.’s Opp’n, Att. C at Ex. I (2016 Incentive Plan). In

calculating these annual revenue totals, NAHB allegedly employed an “accrual-based” accounting

system, which recognized revenue for the fiscal year “in which the income is earned,” irrespective

of whether the customer had paid for the product or service rendered in that same fiscal year. Id.

¶¶ 24–25.

Plaintiff’s present claims against NAHB arise from a dispute regarding the calculation of

Plaintiff’s 2016 incentive commission. In their motion papers, both Plaintiff and Defendant have

attached a copy of the operative 2016 Incentive Plan, which states that “[m]anagement reserves

the right to amend, modify, or discontinue the Incentive Plan at any time.” Pl.’s Opp’n, Att. C at

Ex. I (2016 Incentive Plan); see also Def.’s Mot., Ex. 1 (2016 Incentive Plan). Nonetheless,

Plaintiff alleges that her 2016 incentive commission was too low, because NAHB did not calculate

her commission based upon the “gross revenue of approximately $2,758,562.00 that [she]

generated for Affinity Programs in 2016, but rather a lower figure.” Am. Compl. ¶ 42. Namely,

Plaintiff alleges that NAHB did not account for the sales revenue she generated in 2016 through

3 an annual royalty payment received from Lowe’s for the use of NAHB intellectual property. See

id. ¶¶ 23, 45. Plaintiff asserts that the 2016 revenue from this Lowe’s sale alone was no less than

$879,028.80, see id. ¶ 24, and alleges that her 2016 incentive commission from the Lowe’s sale,

by itself, should have totaled at least $46,149.01, see id. ¶ 47. According to Plaintiff, however,

NAHB did not consider the Lowe’s sale when calculating her 2016 incentive commission. See id.

¶ 45. In sum, Plaintiff alleges that her 2016 incentive commission, received on June 27, 2017, did

not reflect the full value of the revenue she had generated for NAHB in 2016. See id. ¶ 49.

NAHB ultimately terminated Plaintiff on August 18, 2017 because “she supposedly did

not communicate effectively with NAHB staff and vendors.” Id. ¶ 31. Plaintiff, however, alleges

that her termination was pretextual. See id. ¶¶ 31–36. And even after her termination, Plaintiff

allegedly did not receive any additional incentive commission payments to reflect the revenue

earned from the 2016 Lowe’s sale. Id. Consequently, Plaintiff now alleges that “[b]y failing to

pay [her] the incentive bonus or commission due her on the Lowe’s sale in 2016 alone in an amount

not less than $46,149.01, [NAHB] violated the [DCWPCL].” Id. ¶ 50. Plaintiff also asserts a

common law claim for unjust enrichment. Therein, she alleges that NAHB unjustly retained a

financial benefit from the 2016 revenue she generated and, correspondingly, withheld a fair

commission from her on that revenue. See id. ¶¶ 54–59.

In turn, NAHB has now moved to dismiss Plaintiff’s operative complaint under Federal

Rule of Civil Procedure 12(b)(6), or, in the alternative, Federal Rule of Civil Procedure 12(c),

arguing that Plaintiff’s claims for relief under the DCWPCL and the doctrine of unjust enrichment

both fail as a matter of law. See Def.’s Mot. at 1–2. The briefing on Defendant’s motion, which

includes Plaintiff’s sur-reply briefing, see Pl.’s Sur-Reply, ECF No. 64, has now closed.

Accordingly, Defendant’s motion is now ripe for this Court’s review.

4 II. LEGAL STANDARD

The Federal Rules of Civil Procedure require that a complaint contain “‘a short and plain

statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant

fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v.

Twombly,

(quoting Conley v. Gibson,

(1957). Although

“detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to

provide the “grounds” of “entitle[ment] to relief,” a plaintiff must furnish “more than labels and

conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly,

. Instead, a complaint must contain sufficient factual matter, accepted as true, to “state a

claim to relief that is plausible on its face.”

. “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,

(2009) (citing

Twombly,

).

In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court must

construe the complaint in a light most favorable to the plaintiff and must accept as true all

reasonable factual inferences drawn from well-pled factual allegations. Erickson v. Pardus,

(2007); In re United Mine Workers of Am. Employee Benefit Plans Litig.,

(D.D.C. 1994). However, a plaintiff must provide more than just “a sheer possibility that

a defendant has acted unlawfully.” Iqbal,

. Where the well-pled facts set forth in

the complaint do not permit a court, drawing on its judicial experience and common sense, to infer

more than the “mere possibility of misconduct,” the complaint has not shown that the pleader is

entitled to relief.

. Under Rule 12(b)(6), a court is limited to considering the facts alleged

in the complaint, any documents attached to or incorporated in the complaint, matters of which a

5 court may take judicial notice, and matters of public record. See EEOC v. St. Francis Xavier

Parochial Sch.,

(D.C. Cir. 1997); see also Vanover v. Hantman,

(D.D.C. 1999), aff’d, 38 Fed. App’x. 4 (D.C. Cir. 2002) (“[W]here a document is referred

to in the complaint and is central to plaintiff’s claim, such a document attached to the motion

papers may be considered without converting the motion to one for summary judgment.”).

Alternatively, “a movant is entitled to judgment on the pleadings under Rule 12(c) if it

‘demonstrates that no material fact is in dispute and that it is entitled to judgment as a matter of

law.’” Jimenez v. McAleenan,

, 30 (D.D.C. 2019) (quoting Schuler v.

PricewaterhouseCoopers, LLP,

(D.C. Cir. 2008)). “Rule 12(c) may serve as

an ‘auxiliary or supplementary procedural device to determine the sufficiency of the case before

proceeding any further.’” Jimenez, 395 F. Supp. 3d at 30 (quoting 5C Charles A. Wright & Arthur

Miller, Fed. Prac. & Proc. § 1367 (3d ed. 2019)). Where it does—as in the present case—the

applicable “standard of review is ‘functionally equivalent’ to that for a Rule 12(b)(6) motion.”

Jimenez, 395 F. Supp. 3d at 30 (quoting Rollins v. Wackenhut Servs., Inc.,

(D.C.

Cir. 2012) (explaining that “the requirements of Iqbal and Twombly . . . apply to a Rule 12(c)

motion, which here is functionally equivalent to a Rule 12(b)(6) motion”)).

III. DISCUSSION

Defendant has moved to dismiss Plaintiff’s DCWPCL claim in Count I of the Amended

Complaint, see Am. Compl. ¶¶ 37–53, as well as Plaintiff’s claim for unjust enrichment in Count

II of the Amended Complaint, see

¶¶ 54–59. The Court will address each claim in turn.

A. Count I – D.C. Wage Payment and Collection Law

In Count I of the Amended Complaint, Plaintiff asserts a claim under the D.C. Wage

Payment and Collection Law, D.C. Code §§ 32–1301 et seq., (“DCWPCL”). See Am. Compl. ¶¶

6 37–53. “The DCWPCL establishes requirements regarding how and when employers must pay

their employees’ wages [and] it establishes a framework for recovery against an employer who

violates its provisions.” Molock v. Whole Foods Mkt., Inc.,

(D.D.C.

2018) (quotation omitted); see also Sivaraman v. Guizzetti & Assocs., Ltd.,

, 1071

(D.C. 2020). In this case, Plaintiff specifically argues that § 13–1304 of the DCWPCL “provides

[her] with [a] cause of action.” Pl.’s Opp’n at 11; see also Am. Compl. ¶¶ 37–53. Section 13–

1304 states that “[i]n case of a bona fide dispute concerning the amount of wages due, the employer

shall give written notice to the employee of the amount of wages which he concedes to be due, and

shall pay such amount . . . . ” D.C. Code § 32–1304.

Defendant argues, however, that Plaintiff’s DCWPCL claim must fail as a matter of law

because the incentive commissions she disputes do not constitute “wages” within the meaning of

the DCWPCL. See Def.’s Mot. at 4–5. In full, the DCWPCL expressly defines “wages” as:

[A]ll monetary compensation after lawful deductions, owed by an employer, whether the amount owed is determined on a time, task, piece, commission, or other basis of calculation. The term “wages” includes a: (A) Bonus; (B) Commission; (C) Fringe benefits paid in cash; (D) Overtime premium; and (E) Other remuneration promised or owed: (i) Pursuant to a contract for employment, whether written or oral; (ii) Pursuant to a contract between an employer and another person or entity; or (iii) Pursuant to District or federal law.

D.C. Code § 13–1301(3). Importantly, a “discretionary payment” does not constitute a “wage”

under the DCWPCL because such payments “are not owed, but are given only by leave of the

employer.” Dorsey v. Jacobson Holman, PLLC,

(D.D.C. 2010) (emphasis

added), aff’d,

(D.C. Cir. 2012). Whether a payment is “discretionary” turns on

“the conditions set for the award of such compensation” and if “the former employee was actually

7 entitled or owed the payment.” Rothberg v. Xerox Corp., Civ. No. 12-617 (BAH),

, at *16 (D.D.C. Feb. 3, 2016), aff’d,

(D.C. Cir. 2017). 2

Two recent decisions from this jurisdiction, which this Court finds persuasive, help

elucidate the line of demarcation between discretionary payments and owed wages, cognizable

under the DCWPCL. In Molock v. Whole Foods Mkt., Inc.,

(D.D.C. 2018),

Judge Amit Mehta considered whether a “Gainsharing program” for certain Whole Foods

employees provided “wages” within the meaning of the DCWPCL.

, 133–35. Under the

Gainsharing program, Whole Foods allegedly “awarded bonuses to employees whose departments

performed under budget by automatically distributing the surplus savings among the employees in

that department.”

. Upon review of the pleadings, Judge Mehta held that the plaintiffs

in Molock stated a claim for lost “wages” under the DCWPCL, because they “sufficiently alleged

that payment of a Gainsharing bonus was not subject to any employer discretion, but rather

automatic and mandatory upon satisfaction of the condition that the department in which [the]

[p]laintiffs were employed obtained a surplus.”

(emphasis added).

Conversely, Judge Royce Lamberth reached a different holding in Brady v. Liquidity

Servs., Inc., No. 18-CV-1040 (RCL),

(D.D.C. Nov. 30, 2018), when addressing

2 Plaintiff notes that the trial court’s decision in Dorsey came before the definition of “wages” in § 13– 1301(3) of the DCWPCL was amended in 2013. See D.C. Law 20–61 § 2062(a); Pl.’s Opp’n at 14. But this fact does not undermine the viability of Dorsey’s holding that discretionary payments do not constitute wages under the DCWPCL. First, the amended definition of “wages” in the DCWPCL retains the requirement that a wage must be “owed by an employer.” D.C. Code § 13–1301(3) (emphasis added). Moreover, the courts in this jurisdiction that have addressed the DCWPCL’s amended definition of “wages” continue to recognize the rule that discretionary payments are not “owed” and are, therefore, not “wages” under the DCWPCL. See, e.g., Rothberg,

, at *16, aff’d,

(D.C. Cir. 2017) (applying Dorsey and finding that “no commission on [a] sale was ‘owed by an employer’ within the meaning of the [DCWPCL]”); Bartolo v. Whole Foods Mkt. Grp., Inc.,

, 49 (D.D.C. 2019) (“Bonuses that are discretionary, and therefore not guaranteed compensation, do not fall under the definition of wages because they are not owed, but are given only by leave of the employer.”) (quotation omitted). Plaintiff has provided no authority to the contrary, and, as such, the Court finds no basis to deviate from the rule in Dorsey against discretionary payments constituting “wages” under the DCWPCL.

8 a DCWPCL claim based on a bonus award allegedly owed to Mr. Daniel Brady by his former

employer Liquidity Services, Inc. (“LSI”). There, Mr. Brady alleged that under the terms of his

“offer letter,” he had earned a bonus in 2016 of approximately $62,000 based on “qualitative and

quantitative measures established by LSI.” Id. at *1. Taking judicial notice of Mr. Brady’s offer

letter, which was referenced in Mr. Brady’s complaint and “integral to his DCWPCL claim,” id.

at *4 n.1, Judge Lamberth observed that Mr. Brady’s “target bonus” was “paid annually based on

objectives set between [Mr. Brady] and [his] manager,” id. at *4. And notably, Mr. Brady’s offer

letter expressly stated that “any provision[ ] contained herein may be modified and/or revoked

without notice.” Id. Ultimately, Judge Lamberth found that Mr. Brady had not stated a valid

DCWPCL claim for his withheld bonus because “[e]ven if the Court were to find that the offer

letter constituted a binding agreement, the bonus language in that letter appear[ed] discretionary

and therefore not owed.” Id.

In this case, Plaintiff ties her DCWPCL claim for lost “wages” to the 2016 incentive

commission of $26,010.86 she received on June 27, 2017, see Am. Compl. ¶¶ 21–30, alleging that

this payment was not a proper “Incentive Plan commission on all affinity sales made by her in

2016, among them the Lowe’s sale for that year,” id. ¶ 29. To that end, both parties have attached

an identical copy of Plaintiff’s 2016 Incentive Plan to their motion papers. See Def.’s Mot., Ex. 1

(2016 Incentive Plan); Pl.’s Opp’n, Att. C at Ex. I (2016 Incentive Plan). 3 In relevant part, this

3 The Court may take judicial notice of the 2016 Incentive Plan without converting Defendant’s Rule 12(b)(6) motion into a motion for summary judgment. When considering a motion to dismiss, courts may take judicial notice of documents “referred to in the complaint and integral to [the] claim” asserted, particularly where the document’s “authenticity is not disputed.” Kaempe v. Myers,

(D.C. Cir. 2004); see also Tellabs, Inc. v. Makor Issues & Rights, Ltd.,

(2007). Here, the Amended Complaint refers to the 2016 Incentive Plan on multiple occasions, see, e.g., Am. Compl. ¶¶ 4, 9, 22, 29, 35, 41, and both parties have separately appended that document in identical form to their motion papers, see Def.’s Mot., Ex. 1; Pl.’s Opp’n, Att. C at Ex. I. Moreover, the Court is not persuaded by Plaintiff’s attempt to challenge the applicability or accuracy of the 2016 Incentive Plan. See Pl.’s Opp’n at 13–14. First, Plaintiff herself cites directly to the 2016 Incentive Plan in her opposition brief. See

at

9 2016 Incentive Plan states that the “purpose of this plan is to compensate for the attainment of net

revenue targets of Affinity Program net revenue,” but it also clearly states that “[m]anagement

reserves the right to amend, modify or discontinue this Incentive Plan at any time.”

Given this

plain language in the prefatory section of Plaintiff’s 2016 Incentive Plan, the Court concludes that

any payments thereunder were discretionary. See Dorsey,

.

Indeed, this discretionary language is comparable to the language Judge Lamberth

evaluated in the offer letter at issue in Liquidity Services Inc, before dismissing the DCWPCL

claim in that case. See Liquidity Servs., Inc.,

, at *4 (“Furthermore, the offer

letter states that ‘any provision[ ] contained herein may be modified and/or revoked without

notice.’”). Equally as important, the Court cannot conclude that Plaintiff’s receipt of a 2016

incentive commission from NAHB was “automatic and mandatory,” Molock,

, when management at NAHB expressly reserved the right to “amend, modify, or discontinue

the Incentive Plan at any time,” Pl.’s Opp’n, Att. C at Ex. I (2016 Incentive Plan). Consequently,

the Court concludes that any commission Plaintiff received under her 2016 Incentive Plan was a

“discretionary” payment and, therefore, did not constitute a “wage” within the meaning of the

DCWPCL. D.C. Code § 13–1301(3). As such, Plaintiff’s DCWPCL claim for lost wages under

her 2016 Incentive Plan fails as a matter of law. See Dorsey,

(dismissing

DCWPCL claim based on discretionary payment); Liquidity Servs., Inc.,

, at *4

(same).

14. And notably, Plaintiff included that 2016 Incentive Plan in her motion papers along with an affidavit from NAHB’s Executive Vice President and Chief Financial Officer, swearing to its veracity. See Pl.’s Opp’n, Att. C (Decl. of E. Ramage). As such, the Court accepts the authenticity of the 2016 Incentive Plan, attached by Plaintiff herself. See

10 Finally, the Court notes that because Plaintiff’s DCWPCL claim fails on the ground that

Plaintiff’s 2016 incentive commission was discretionary, the Court need not reach the parties’

additional arguments regarding the size and calculation of that incentive commission. For

example, the parties dispute whether the DCWPCL permits Plaintiff to challenge the disputed

amount of her 2016 incentive commission. See Pl.’s Sur-Reply at 2 (citing Fudali v. Pivotal Corp.,

(D.D.C. 2004)). But, as discussed above, Plaintiff’s discretionary incentive

commission was not a “wage owed,” and is not, therefore, cognizable under the DCWPCL,

regardless of whether that statute permits the recovery of disputed wages, as Plaintiff asserts. See

Pl.’s Opp’n at 11 (refuting the argument that an “employer must pay only the undisputed wages to

comply with the Act”) (citing Def.’s Mot. at 10). Relatedly, Plaintiff argues at some length about

the revenue NAHB should have recognized in 2016 under an accrual-based accounting system.

See Pl.’s Opp’n at 18. Here again, however, even if NAHB had recognized additional 2016

revenue under an accrual-based accounting model, any commission for Plaintiff on that revenue

and under her 2016 Incentive Plan would still have been discretionary and, therefore, not a

cognizable “wage” under the DCWPCL. Accordingly, the Court need not resolve these matters to

dispose of Plaintiff’s DCWPCL claim as a matter of law.

For the reasons identified herein, the Court GRANTS Defendant’s motion regarding Count

I of the Amended Complaint and DISMISSES Count I of the Amended Complaint WITH

PREJUDICE. 4

4 As discussed above, Plaintiff’s DCWPCL claim turns on her 2016 incentive commission. But to the extent Plaintiff asserts a DCWPCL claim for commissions allegedly due to her on the basis NAHB’s 2017 fiscal year revenues, such a claim falls short because Plaintiff has alleged no facts in the Amended Complaint that plausibly indicate that NAHB “owed” her any incentive commission on its 2017 revenues. D.C. Code § 13–1301(3). For example, Plaintiff has not alleged that NAHB offered her an Incentive Plan providing for commissions on final 2017 target revenues. And importantly, the Amended Complaint makes clear that NAHB terminated Plaintiff on August 18, 2017, shortly after she received her incentive commission for the 2016 fiscal year and well before any 2017 revenue calculations would have been finalized. See Am. Compl.

11 B. Count II – Unjust Enrichment

In Count II of the Amended Complaint, Plaintiff asserts a common law claim for unjust

enrichment, also predicated on NAHB’s alleged failure to provide her with an adequate incentive

commission relative to the company’s 2016 revenue totals. See Am. Compl. ¶¶ 54–59. Under

District of Columbia law, unjust enrichment occurs where: “(1) the plaintiff conferred a benefit on

the defendant; (2) the defendant retains the benefit; and (3) under the circumstances, the

defendant’s retention of the benefit is unjust.” Smith v. Rubicon Advisors, LLC,

(D.D.C. 2017) (quoting Fort Lincoln Civic Ass’n v. Fort Lincoln New Town Corp.,

(D.C. 2008)). “The doctrine applies ‘when a person retains a benefit (usually

money) which in justice and equity belongs to another.’” Krukas v. AARP, Inc.,

(D.D.C. 2019) (quoting Falconi-Sachs v. LPF Senate Square, LLC,

(D.C.

2016)).

At this stage of the litigation, the Court finds that Plaintiff has plausibly stated a claim for

unjust enrichment. First, the Amended Complaint specifically alleges that Plaintiff provided

services to NAHB that resulted in a royalty payment from Lowe’s in 2016, valued at approximately

$879,028.80. See Am. Compl. ¶¶ 23–24. Plaintiff further alleges that Lowe’s made payments to

NAHB on this sale in 2017, and that NAHB subsequently retained the revenue from this sale. See

id. ¶ 25. Moreover, Plaintiff alleges that NAHB withheld from her a full commission payment of

approximately $46,000 for the 2016 Lowe’s sale. Id. ¶ 9. Instead, NAHB allegedly utilized that

extra commission revenue for internal business purposes. See id. ¶ 57. At the pleading stage,

these factual allegations plausibly satisfy the first two elements of unjust enrichment: Plaintiff

¶ 49. Given this uncertainty, any allegation that NAHB “owed” Plaintiff an incentive commission for revenue in 2017 is too speculative to plausibly state a claim under the DCWPCL for lost “wages.” See D.C. Code § 13–1301(3); Twombly, 550 U.S. at 555–56.

12 allegedly conferred a monetary benefit upon NAHB through her services and, in turn, NAHB

allegedly retained the monetary value of those services by withholding an adequate commission

payment from her. See Lannan Found. v. Gingold,

(D.D.C. 2017).

Next, Plaintiff has also plausibly alleged that NAHB’s “retention of th[is] benefit [was]

unjust.” Rubicon Advisors, LLC,

. Here, Plaintiff alleges that, pursuant to

the 2016 Incentive Plan, see Def.’s Mot., Ex. 1 (2016 Incentive Plan), she expected to receive an

incentive commission based upon all Affinity Programs sales revenue earned for NAHB in 2016,

including the revenue from the 2016 Lowe’s sale, see, e.g., Am. Compl. ¶¶ 9, 40. Plaintiff alleges,

however, that her 2016 incentive commission from NAHB did not reflect the revenue she

generated for NAHB from the 2016 Lowe’s sale. See id. ¶ 49. Moreover, Plaintiff asserts that

NAHB then terminated her “in bad faith” in August 2017, allowing NAHB to “wrongfully claim

that she was ineligible” for any commissions on sales revenue NAHB might have accounted for in

2017. Id. ¶ 58. At the pleading stage, these factual allegations are sufficient to plausibly show

that NAHB “unjustly” retained money that should have flowed to Plaintiff as compensation for

her services generating revenue for NAHB. See JSC Transmashholding v. Miller,

(D.D.C. 2014) (refusing to entertain factual arguments regarding the “alleged injustice”

when addressing an unjust enrichment claim at the pleading stage). Accordingly, Plaintiff has

sufficiently pled a claim for unjust enrichment that survives Defendant’s present motion to dismiss.

On the issue of unjust enrichment, a few final points merit attention. First, the plausibility

of Plaintiff’s unjust enrichment claim at the pleading stage is not inconsistent with the Court’s

finding that NAHB did not “owe” Plaintiff any commission under the discretionary terms of the

2016 Incentive Plan. See D.C. Code § 13–1301(3). Indeed, Defendant argues in a similar vein

that because “the 2016 ICP does not support [Plaintiff’s] claim of entitlement,” she cannot state a

13 claim for unjust enrichment against NAHB. Def.’s Reply at 14. But the fact that NAHB was not

obliged under the 2016 Incentive Plan to confer an incentive commission upon Plaintiff, does not

necessarily defeat Plaintiff’s unjust enrichment claim at the pleading stage. To the contrary, the

unjust enrichment doctrine operates “in the absence of a contractual arrangement” so as to “provide

relief in equity where circumstances are such that justice warrants a recovery as though there had

been a promise.” Falconi-Sachs,

(quotation omitted). The doctrine does not turn

on a formal obligation between two parties, but instead more broadly “depends on whether it is

fair and just for the recipient to retain the benefit” conferred. 4934, Inc. v. D.C. Dep’t of

Employment Servs.,

(D.C. 1992). As such, the fact that the 2016 Incentive Plan

did not compel NAHB to provide Plaintiff with a commission for the revenue she generated from

the 2016 Lowe’s sale, does not mean, in and of itself, that Plaintiff’s labor in generating that alleged

revenue did not confer value upon NAHB, which NAHB unjustly withheld from Plaintiff.

Lastly, the Court takes note of Defendant’s argument that Plaintiff’s unjust enrichment

claim fails because Plaintiff did not actually confer a “benefit” upon NAHB. See Rubicon

Advisors, LLC,

. Specifically, Defendant asserts that any “revenue generated

by NAHB’s Affinity Program is based upon the efforts of its members” and their “purchases of

goods and services,” not Plaintiff’s own labor. Def.’s Mot. at 9; see also Def.’s Reply at 13. But

this argument rests on Defendant’s own assertion that Plaintiff’s allegations regarding the value of

her services are inaccurate, such as Plaintiff’s factual allegation that in 2016 she generated

$879,028.80 in revenue for NAHB by facilitating annual royalty payments from Lowe’s “for the

use of NAHB intellectual property.” Am. Compl. ¶ 6. At the pleading stage, the Court’s job is

not to probe the accuracy of such factual allegations, but instead to determine whether this “factual

matter, accepted as true,” is sufficient “to ‘state a claim to relief that is plausible on its face.’”

14 Long Beach Sec. Corp. v. Nat’l Credit Union Admin. Bd.,

(D.D.C. 2018)

(emphasis added) (quoting Iqbal,

). Consequently, Defendant’s argument that

Plaintiff did not confer any benefit upon NAHB, as a factual matter, is unavailing at the pleading

stage.

For the reasons set forth above, the Court finds that Plaintiff has sufficiently pled a claim

for unjust enrichment against NAHB. Accordingly, the Court DENIES Defendant’s motion to

dismiss Plaintiff’s claim for unjust enrichment in Count II of the Amended Complaint.

IV. CONCLUSION

For the reasons set forth in this Memorandum Opinion, the Court GRANTS Defendant’s

motion as to Plaintiff’s DCWPCL claim in Count I of the Amended Complaint and DISMISSES

that claim WITH PREJUDICE. See Am. Compl. ¶¶ 37–53. The Court, however, DENIES

Defendant’s motion to dismiss Plaintiff’s claim for unjust enrichment in Count II of the Amended

Complaint. See

¶¶ 54–59. An appropriate Order accompanies this Memorandum Opinion.

Date: November 18, 2020 _______/s/_______________________ COLLEEN KOLLAR-KOTELLY United States District Judge

15