Case 1:22-cv-00330-BMC Document 1 Filed 01/20/22 Page 1 of 20 PageID #: 1
`
`United States District Court
`Eastern District of New York
`
`Constantine Koutras,
`
`Plaintiff,
`
`Index No.
`
`1:22-cv-330
`
`vs.
`Toshiba Global Commerce Solutions, Inc.,
`Defendant.
`
`Verified Complaint
`
`Jury Trial Requested
`
`Plaintiff, Constantine Koutras (Koutras), by his attorneys, Fryer & Ross, LLP, for
`his complaint against Defendant Toshiba Global Commerce Solutions, Inc.(TGCS),
`alleges as follows:
`Parties
`
`1) Plaintiff is a Citizen of the United States and resides in Brooklyn, New York.
`
`2) Defendant is a corporation, upon information and belief incorporated in the State
`of Delaware with its place of business at 3901 South Miami Boulevard, Durham,
`North Carolina 27709.
`
`Venue
`
`3) Venue lies in New York because plaintiff resides in New York at 9104 Ridge
`Boulevard, Brooklyn, New York 11209.
`Jurisdiction
`
`4)
`
`5)
`
`6)
`
`7)
`
`8)
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`Some of the acts complained of herein took place in New York.
`
`Plaintiff performed his duties as an employee of TGCS in New York and in
`North Carolina.
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`Plaintiff is a citizen of the State of New York.
`
`TGCS is a citizen of Delaware, where it is incorporated or of North Carolina
`where it has its principal place of business.
`
`On information and belief, TGCS does business in the state of New York.
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`Page 1 of 9
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`Case 1:22-cv-00330-BMC Document 1 Filed 01/20/22 Page 2 of 20 PageID #: 2
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`9)
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`On information and belief, TGCS has sufficient contacts within the State of
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`New York to be subject to in personam jurisdiction in the State of New York.
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`10) The United States District Court has jurisdiction pursuant to 28 U.S.C. 1332
`
`because the parties are citizens of different states and the amount in
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`controversy exceeds $75,000.
`
`Choice of Law
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`11) Koutras was hired by TGCS at its headquarters in Research Triangle Park in
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`North Carolina.
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`12) Koutras spent substantial time organizing his department and carrying out
`
`his duties at the TGCS principal office in North Carolina
`
`a) From October 2012 until approximately December 2016, Koutras spent three
`
`to five days per week working in North Carolina
`
`b) From January 2017 to November 2017 Koutras spent less time in North
`
`Carolina, carrying out many of his duties from his home in Brooklyn, New York
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`c) At all times Koutras made extensive use of teleconferencing and telephone
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`conference calls reporting to and taking instructions from TGCS employees in
`
`North Carolina.
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`d) At all times, he was employed by TGCS, Koutras had an office at the company’s
`
`headquarters in North Carolina
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`13) Because of Koutras’ extensive work, both physically and through electronic
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`communication means in the State of North Carolina, the North Carolina Wage
`
`and Hours Act governs Koutras rights as alleged herein.
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`14) Alternatively, if North Carolina law does not apply to this matter, then New York
`
`law applies, including the New York labor law and New York employment contract
`
`law.
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`Page 2 of 10
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`Case 1:22-cv-00330-BMC Document 1 Filed 01/20/22 Page 3 of 20 PageID #: 3
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`Facts
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`15) Koutras was hired in or about October 2012 by TGCS as Executive Director of
`
`Separation. His duties involved separating complex computer software
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`systems from a system used when TGCS and IBM operated as a joint venture
`
`to new systems for TGCS where he led the implementation projects. Koutras
`
`base salary at that time was $175,000 per year.
`
`16) Koutras remained an employee of TGCS from the date of his hire through
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`November 30, 2017, at which time he was laid off for non-cause reasons along
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`with several other employees.
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`17) Koutras was told that he would be treated as an independent contractor the
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`first few weeks of his employment by TGCS only because it would take several
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`weeks to finish the “paperwork” to enter him into TGCS records as an
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`employee.
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`18) Under applicable state and federal
`
`law, Koutras was an employee
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`notwithstanding the fact that TGCS claimed he was an independent
`
`contractor. Among other things,
`
`a) He used equipment provided by TGCS;
`
`b) He had a permanent office at TGCS headquarters in North Carolina;
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`c) His duties were specified by TGCS;
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`d) He had no other “clients”; TGCS was his sole employer;
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`e) He did not have any employees of his own;
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`f) He supervised other TGCS employees.
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`19) TGCS documented its engagement of Koutras by letter dated 4 January 2013,
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`a copy of which is annexed as Exhibit A hereto (referred to hereinafter as the
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`“Employment Letter.”
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`Page 3 of 10
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`Case 1:22-cv-00330-BMC Document 1 Filed 01/20/22 Page 4 of 20 PageID #: 4
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`a) The Employment Letter described Koutras position and duties in general
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`terms and stated the terms of his compensation:
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`i) Koutras’ base pay at that time was $175,000 per year, later increased to
`
`$185,000.
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`ii) In addition to base pay, Koutras was promised an additional payment
`
`under what was labelled an Annual Incentive Plan.
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`The Annual Incentive Plan:
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`20) According to the Employment Letter, under this plan Koutras was promised
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`additional compensation of a minimum of 30% of his base salary up to a maximum
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`of 200% of his base salary. This payment was stated to be due after the close of
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`TGCS’ fiscal year ending March 31.
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`21) On information and belief, Koutras was never provided with any further
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`documentation or explanation of the TGCS Annual Incentive Plan.”
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`22) In 2014 the Annual Incentive Plan was renamed the “Short Term Incentive Plan”
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`23) On information and belief the criteria for determining payments under the “Short
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`Term Incentive Plan” were substantially the same as those under the “Annual
`
`Incentive Plan.”
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`24) On information and belief, Koutras was paid the following amounts under the
`
`TGCS Annual Incentive Plan/Short Term Incentive Plan (referred to herein as
`
`“Annual Incentive Plan”).
`
`a) $40,000 for TGCS’ fiscal year 2013
`
`b) $17,575 for TGCS’ fiscal year 2014
`
`c) $0.00 for TGCS’ fiscal year 2015
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`d) $25,029 for TGCS’ fiscal year 2016
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`e) $26,000 for TGCS’ first half of its fiscal year 2017
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`
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`Page 4 of 10
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`Case 1:22-cv-00330-BMC Document 1 Filed 01/20/22 Page 5 of 20 PageID #: 5
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`25) Koutras is entitled to a minimum of approximately $54,000 per year and a
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`maximum of approximately $360,000 under the TGCS Annual Incentive Plan for
`
`the fiscal years ending March 31, 2014, 2015, 2016 & 2017 plus a pro-rated
`
`amount for the fiscal year ending March 31, 2013.
`
`26) The amounts paid to Koutras under the Annual Incentive Plan are less than the
`
`amounts promised by TGCS in its Employment Letter (Exh. A).
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`27) Koutras is entitled to an accounting of the amounts due him under the Annual
`
`Incentive Plan and to recover all amounts due less the amounts already paid to
`
`him.
`
`The Long-Term Incentive Plan
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`28) TGCS also offered Koutras a “Long Term Incentive Plan” that provides for
`
`additional compensation for the three-year period ending March 31, 2016. This
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`plan is set forth in a TGCS memorandum given to Koutras, a copy of which is
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`annexed hereto as Exhibit B and is referred to herein as the “LTI” agreement.
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`a) The LTI agreement provides that the payment is based on a percentage of
`
`employees’ base salary.
`
`b) The first payment under the LTI plan was earned on March 31, 2016 and was,
`
`according to the plan, to be paid 60 days later of on or about May 31, 2016.
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`c) Under the LTI plan, Koutras earned and is entitled to approximately $222,000
`
`plus interest.
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`d) On information and belief, the Board of Directors of TGCS never acted to
`
`withhold or reduce payout amounts under the LTI program.
`
`29) On or about May 16 ,2016, James Fornabaio, an employee of TGCS, forwarded an
`
`e-mail from Scott Maccabe, to Koutras and others stating that “I” decided to alter
`
`the plan and not make the payout already earned by the plan participants. A copy
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`of the Fornabaio/Maccabe e-mail is annexed as Exhibit C hereto.
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`Page 5 of 10
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`Case 1:22-cv-00330-BMC Document 1 Filed 01/20/22 Page 6 of 20 PageID #: 6
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`Severance Pay
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`30) Koutras was advised by letter dated November 1, 2017 that his employment would
`
`be terminated as of November 30, 2017. In that letter he was offered severance
`
`pay. A copy of that letter is annexed as Exhibit D hereto and referred to herein as
`
`the “Termination Letter.”
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`31) Under the TGCS severance payment plan, Koutras is entitled among other
`
`benefits, to an amount equal to two weeks’ base pay for every year he was
`
`employed by TGCS.
`
`32) Koutras was employed by TGCS from October 2012 through November 2017, a
`
`period of 5 years plus one month.
`
`33) Koutras’ base pay at the time he was notified of his termination was $185,000 per
`
`year.
`
`34) Accordingly, Koutras is entitled to severance pay of $7,115.38 per year for five
`
`years for a total of $35,576.92.
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`35) The severance plan stated that Koutras must sign a waiver of all claims within 45
`
`days of his termination to receive the severance pay.
`
`36) Koutras, through his attorney, requested an extension of that time so that
`
`Koutras’ other employment compensation issues could be discussed and resolved.
`
`37) TGCS declined that request by letter dated December 13, 2017, a copy of which is
`
`annexed as Exhibit E hereto.
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`First Claim for Relief under the North Carolina Wage and Hours Act
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`38) All amounts due Koutras under the North Carolina Wage and Hours Act are
`
`deemed “wages.” North Carolina Statutes Annotated §95-25.2(16) (hereinafter
`
`abbreviated as “NCSA” followed by the specific citation). See also, 13 NCAC
`
`12.0307.
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`Page 6 of 10
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`Case 1:22-cv-00330-BMC Document 1 Filed 01/20/22 Page 7 of 20 PageID #: 7
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`a) NCSA §95-25-22 provides that an employee has a private right of action to
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`recover unpaid wages. In addition to the amount of wages due:
`
`i) The employee is entitled to liquidated damages in an amount equal to the
`
`amount found to be due,
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`ii) Koutras is entitled to interest, at the North Carolina statutory rate of 8%
`
`per year, compounded.
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`iii) Koutras is entitled to recover his costs and fees including reasonable
`
`attorney’s fees.
`
`Second Claim for Relief under the New York Labor Law
`
`39) The bonus payable to Koutras under LTI plan was “wages” under §193 of the New
`
`York Labor Law because after March 31, 2016 if was non-discretionary and fully
`
`vested.
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`40) Maccabe’s action, unilaterally refusing to pay an earned bonus, was a violation of
`
`the plan, which stipulated that only the Board of Directors could alter the plan.
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`41) On information and belief, TGCS Board of Directors never took corporate action
`
`to change or eliminate the LTI plan.
`
`42) Koutras is entitled to the following relief under the New York Labor Law:
`
`a) New York Labor Law §198(1-a) provides that an employee has a private right
`
`of action to recover unpaid wages. In addition to the amount of wages due:
`
`i) The employee is entitled to liquidated damages in an amount equal to the
`
`amount found to be due,
`
`ii) Koutras is entitled to interest at the New York legal rate of 9% simple
`
`interest per year.
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`iii) Koutras is entitled to recover his costs and fees including reasonable
`
`attorney’s fees.
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`Case 1:22-cv-00330-BMC Document 1 Filed 01/20/22 Page 8 of 20 PageID #: 8
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`43) Koutras is therefore entitled to collect liquidated damages equal to 100% of the
`
`amount of the bonus due plus his reasonable attorney’s fees. In addition, Koutras
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`is entitled to interest on the unpaid wages from May 31, 2016 at the New York
`
`statutory rate of 9% per year.
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`Third Claim for Relief; Breach of Contract
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`44) The Employment Letter offering Koutras employment and the right to receive a
`
`bonus under the Annual Incentive Plan, together with Koutras’ acceptance of the
`
`offer and performance of his duties constituted a contract.
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`45) TGCS refusal to pay the bonus earned by Koutras was a breach of its contract.
`
`46) No writing was ever provided to Koutras stating that the AIP was discretionary
`
`or could be modified.
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`47) Any purported modification of the plan with respect to amounts already earned
`
`by Koutras constituted a breach of the covenant of fair dealing implied in all
`
`contracts.
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`Fourth Claim for Relief for Severance Pay
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`48) Koutras was terminated on November 30, 2017 through no fault of his.
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`49) TGCS’ denial of an extension of time, in face of Koutras’ substantial claims under
`
`North Carolina and New York labor laws and common law of contracts was
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`unreasonable, unconscionable and invalid.
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`50) Koutras is entitled to recover his severance pay plus interest and attorney’s fees.
`
`Wherefore,
`
`Plaintiff Constantine Kourtras respectfully requests the following relief:
`
`1) $360,000 less amounts previously paid under TGCS’ Annual Incentive Plan or
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`such other amount as may be proved at trial.
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`Page 8 of 10
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`Case 1:22-cv-00330-BMC Document 1 Filed 01/20/22 Page 9 of 20 PageID #: 9
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`2) $222,000 due Koutras under TGCS’ Long Term Incentive Plan or such other
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`amount as may be proved at trial.
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`3) $35,577 in severance pay.
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`4) An accounting of all amounts due Koutras,
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`5) A declaration that the North Carolina Wage and Hours Act applies to Koutras’
`
`employment with TGCS and defines his rights as an employee of TGCS.
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`6) Alternatively, a declaration that the New York Labor Law is applicable to Koutras’
`
`employment with TGCS and defines his rights as an employee of TGCS.
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`7) 100% liquidated damages on all amounts found to be due Koutras.
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`8) Interest at 8% per year compounded or alternatively at 9% per year simple
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`interest.
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`9) Koutras’ attorney’s fees and related expenses.
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`10) Such other and further relief as to this Court seems just and proper.
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`Dated: New York, New York
`
`January 3, 2018
`
`FRYER & ROSS LLP
`Attorneys for Plaintiff
`551 Fifth Avenue, Suite 422
`New York, NY 10176
`(212) 286-0099; fax (212) 286-0495
`e-mail: geraldross@fryerross.com
`
`
`By,
`
`
`
`
`
`Gerald E. Ross
`
`
`
`
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`
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`Page 9 of 10
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`
`
`Verification
`
`Constantine Koutras, plaintiff herein, declares under penalty of perjury under the
`laws of the United States of America that the complaint herein is true and correct
`except as to matters stated on information and belief and as to those matters he
`believes them to be true.
`
`
`
`Executed on January 3, 2018
`
`
`
`
`
`
`
`
`
`Constantine Koutras
`
`
`
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`Page 10 of 10
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`Case 1:22-cv-00330-BMC Document 1 Filed 01/20/22 Page 11 of 20 PageID #: 11
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`Koutras v. TGCS
`Exhibits to Verified Complaint
`
`
`
`Exhibit A: Employment Letter
`
`Exhibit B: LTI Agrement
`
`Exhibit C: Fornabaio/Maccabe e-mail
`
`Exhibit D: Termination Letter
`
`Exhibit E: Hammer letter dated December 13, 2017
`
`

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`Case 1:22-cv-00330-BMC Document 1 Filed 01/20/22 Page 12 of 20 PageID #: 12
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`TOSHIBA GLOBAL GOMMERCE SOLUTIONS, I}IC.
`
`4 January 2013
`
`Constantine Koutras
`9104 Ridge Boulevard
`Brooklyn, NY 11209
`ckoutras@us.ibm.com
`
`Dear Constantine,
`
`We are pleased to offer you the position of Director, Separation in our lT Function at Toshiba
`Global Commerce Solutions, lnc. {the "Company''), an affiliate of Toshiba TEC. You will be
`reporting to Hitoshi Shida, Vice President, ClO. Toshiba TEC is based in Tokyo, Japan and is a
`leading provider of point-of-sale systems and related technology for retailers. The
`administrative worldwide headquarters for TGCS is located in Research Triangle Park, North
`Carolina. Your anticipated start date will be January 7,2013.
`
`In this position, we believe your talent and skills will be a valuable addition to the collective
`team that is working to deliver results that truly matter for our Company, clients, and the world.
`The Company seeks to provide a work environment that fosters innovation, dedication, and
`personal responsibility. With you as part of our team, the Company can look forward to
`becoming the world's foremost point-of-sale solutions company and an IBM Premier Business
`Partner for Smarter Commerce.
`
`The elements of your employment offer are:
`
`Base Pay
`Effective on your first day of employment, your initial annualized salary rate will be $175,000
`This is an exempt position, which means you will not be entitled to overtime compensation. As
`an exempt regular employee, you will receive a paycheck on a semi-monthly basis, on or around
`the 15th and 31st ofeach month.
`
`Bonus
`you will be eligible to participate in our Annual lncentive Plan (AlP). The target is 30% of your
`base salary up to a maximum of ZQA% of the target. AIP is payable after the close of the fiscal
`year ending March 31. To receive payments, you must be on the payroll on the last day of the
`fiscal half year. Alp payments are based on the achievement of the financial and individual
`objectives as set by the Company Senior Management and governed by the terms of the written
`plan document.
`
`

`

`Case 1:22-cv-00330-BMC Document 1 Filed 01/20/22 Page 13 of 20 PageID #: 13
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`Sign On Bonus
`You will receive a sign-on bonus of $1O000, which will be included in your semi-monthly
`paychecks within two months of the commencement of your TGCS employment. This payment
`will be less applicable tax withholdings. This payment shall not be considered earned by you
`unless and until you remain employed by TGCS for one year. You agree that if you leave TGCS
`within one year after employment begins, you will repay TGCS the net amount of this payment,
`unless the departure is the result of a unilateral determination by TGCS without cause to end
`your employment.
`
`Vacation
`You will be awarded four (4) weeks vacation annually.
`
`Benefits
`You will be eligible to participate in the Company's benefit plans, which include health and
`welfare, qualified and non-qualified retirement plans, medical, dental, life insurance, disability
`and other welfare benefits, and vacation/paid time off.
`
`For additional information on Company benefits, please see the Benefits Start-up Kit included
`with this document. lf you have additional benefits questions please contact Ms. Ze-li Wu
`at 973-305-3634.
`
`As is customary at the Company, this offer is contingent upon the completion of our pre-
`employment process, including verification of your application materials' By signing below, you
`are warranting to us that you are not subject to any non-compete obligations or other restrictive
`clauses with your current or former employer; or any non-compete, non-solicitation, or other
`restrictions that would restrict your ability to perform services for the Company.
`
`your employment is also contingent upon your compliance with the lmmigration Reform and
`Control Act. This law requires you to complete the Employment Eligibility Verification Form (l-9),
`and to provide documents that verify your identity and employment eligibility. For a list of the
`acceptable documents, please review an online sample of the form at
`http://www.uscis.gov/files/form/i-9.pdf. You must bring the appropriate original documentation
`with you on your first daY of work.
`
`ln addition, you will be required to complete a W-4 form and sign the Company's confidential
`information and intellectual property agreements.
`
`The Company maintains an employment-at-will relationship with its employees. This means that
`both you and the Company retain the right to terminate this employment relationship at any
`time and for any reason. All compensation and benefits referred to in this letter are subject to
`your continued employment and satisfactory job performance. All salary and incentives referred
`to in this letter will be considered normal income and will be subject to applicable state and
`Federal income taxes. Nothing in this letter will preclude the Company from amending any
`employee benefit plan or program, or work location, after your date of hire' This letter
`constitutes the entire agreement between the parties, and it supersedes any and all prior
`agreements or understandings, and cannot be changed except in writing signed by both of the
`parties.
`
`

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`Case 1:22-cv-00330-BMC Document 1 Filed 01/20/22 Page 14 of 20 PageID #: 14
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`lf you have questions regarding the process, you can reach me by calling our HR Coordinator,
`Sandra Robinson at 919-486-3580
`
`We look forward to having you join us at Toshiba Global Commerce Solutions, lnc.
`
`Sincerely,
`
`Marcia Wright
`Global HR Program and Policy Development Manager
`Toshiba Global Commerce Solutions
`
`cc shidah@us.ibm.com
`
`with your signature below, you are accepting the terms of this offer.
`
`Constantine Koutras
`
`ln order for us to process your paperwork and to prepare for your start date, please email a
`scanned copy of the signed offer letter back to mawirght@us.ibm.com.
`
`

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`Case 1:22-cv-00330-BMC Document 1 Filed 01/20/22 Page 15 of 20 PageID #: 15
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`Weighting
`70%
`
`
`
`
`Description of Target Goals
`Three –Year Average of Year-end TGCS OI for Fiscal
`Years 2014, 2015 2016
`
`2014 – 2017 Long-Term Incentive Compensation (LTI) Program
`Executives (Grades M and above)
`
`Employees in Grades M and above are eligible to participate in the TGCS Executive Long-Term Incentive
`(LTI) Program.
`
`The LTI Program is a 100% cash-based program. The plan begins on an annual (fiscal year) basis and
`each award is earned at the end of a 3-year performance period. Payout will be at the end of each 3-
`year performance period and you must be on the payroll at the time of payout.
`
`Payouts are calculated as a percent of eligible base salary; the targeted payout percentage is based on
`the employee’s grade level.
`
`Payouts will be based solely on organizational performance versus pre-determined financial measures as
`determined by TOSHIBA Senior Leaders.
`
`The LTI is intended to align participants’ long-term incentive opportunity with the key long-term
`objectives of TGCS as follows:
`
`Performance Measure
`TGCS Operating Income (OI)
`
`
`
`
`
`TTEC Operating Income (OI)
`
`
`
`
`
`LTIC is forfeited if a participant leaves before the 3-year period unless a qualified disability, qualified
`retirement or death occurs - - - in which event the award is prorated.
`
`
`Award Determination and Payment
`
`
`
`Actual performance versus each goal will be measured and assessed independently at the end of the
`performance period.
`
`
`
`Individual payouts cannot exceed 200% of target. The Board of Directors may, in its sole discretion,
`withhold or reduce the payout amounts under the LTI Program.
`
`
`LTI will be paid in cash typically within 60 calendar days after the end of the performance period.
`
`
`
`
`
`Payout Curve
`
`
`Three –Year Average of Year-end TTEC OI for Fiscal
`Years 2014, 2015 and 2016
`
`
`
`
`
`30%
`
`
`
`
`
`
`
`Achievement Payout
`
`0 - 50%
`100%
`150%
`
`50%
`100%
`200%
`
`
`Minimum Payout is 50% of Target
`
`
`

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`Case 1:22-cv-00330-BMC Document 1 Filed 01/20/22 Page 16 of 20 PageID #: 16
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`
`
`
`This description of the LTI program is a summary. In the event of any conflict between this summary and any of the formal LTI plan
`documents as they exist, now or in the future, the formal LTI plan document shall always govern. While TGCS will make reasonable attempts to
`notify its employees about changes or modification to its benefits, TGCS expressly reserves the right to modify or eliminate any of the foregoing
`policies or benefits with or without notice.
`
`
`V1.0
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`Case 1:22-cv-00330-BMC Document 1 Filed 01/20/22 Page 17 of 20 PageID #: 17
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`
`
`November 1, 2017
`
`
`
`
`
`Subject: Personal and Confidential
`
`Constantine Koutras
`9104 Ridge Blvd
`Brooklyn, New York 11209
`
`Dear Constantine,
`
` I
`
` am writing to provide you with important information. Toshiba Global Commerce Solutions, Inc.
`(TGCS) is reducing its workforce in an effort to reduce costs and increase the profitability of business
`operations.
`
`As part of the reduction in workforce you have been identified for layoff. Effective today, this is your
`notice that your TGCS employment will end on November 30, 2017 or later as required to close out
`assigned projects and other duties unless you find new employment within TGCS before that date. You
`are expected to work up until your last date of employment. Please note that while departure dates
`may change based on business needs, the earliest that TGCS employment is scheduled to end for any
`employee as a result of this reduction in workforce is November 30, 2017.
`
`You are eligible for separation benefits and services designed to support affected employees through
`this transition. Those separation benefits include a severance payment, continued medical benefits
`(subject to your election), access to outplacement services and personal counseling services for you
`and family members through the Employee Assistance Program (EAP) if you choose to use them. As
`soon as practicable following your last date of employment, TGCS will make payment to you for any
`accrued but unused vacation days. All payments made as part of this program will be subject to
`applicable taxes and withholdings.
`
`Your severance payment will be an amount equal to two (2) weeks of base pay (or reference pay for
`employees on a sales quota or incentive plan) at the employee’s regular rate of compensation in
`effect at the time of the employee’s termination date for every one (1) year of service completed as
`of the termination date; provided, however, that no employee eligible for separation benefits shall
`receive fewer than eight (8) weeks of base pay (or reference pay for employees on a sales quota or
`incentive plan) or greater than twenty-four (24) weeks of base pay (or reference pay for employees
`on a sales quota or incentive plan), regardless of the employee’s years of service.
`
`The attached Employee Notification Package includes more information, as well as certain important
`forms that require your response. Please read it thoroughly, note any deadlines and retain this package
`for your future reference and action. If you have questions after reading the information provided,
`please contact me or the HR Admin, hradmin@toshibagcs.com.
`
`
`
`
`
`
`
`
`

`

`Case 1:22-cv-00330-BMC Document 1 Filed 01/20/22 Page 18 of 20 PageID #: 18
`
`To receive separation benefits, employee must sign the Waiver and Release and either deliver by
`personal delivery or mail to the below representative with a post mark of within 45-days of being
`notified , but may not sign prior to their last day of employment.
`
`Toshiba Global Commerce Solution, Inc.
`Attn: Jim Fornabaio
`3901 S. Miami Blvd.
`Durham, NC 27703
`
`I recognize the challenges that this decision may present to you and your family. I hope you will make full
`use of the resources available to you. I appreciate your contributions to TGCS and your professionalism
`and understanding in the weeks ahead.
`
`Leon J. Roberge
` VP, Information Tech
`
`

`

`Print
`
`https://mail.yahoo.com/#8795713466
`Case 1:22-cv-00330-BMC Document 1 Filed 01/20/22 Page 19 of 20 PageID #: 19
`
`Subject: Fw: FY 2013 LTI Plan Notice from Scott Maccabe
`
`From:
`
`Constantine Koutras (ckoutras@toshibagcs.com)
`
`To:
`
`c_koutras@yahoo.com;
`
`Date:
`
`Friday, November 3, 2017 1:45 PM
`
`Regards,
`
`Constantine D. Koutras
`
`Director of Business Applications
`
`Department of Information Technology
`
`Toshiba Global Commerce Solution
`
`Mobile +1-917-541-5784
`
`ckoutras@toshibagcs.com
`
`TOSHIBA GLOBAL COMMERCE SOLUTIONS,INC.
`A Toshiba and IBM Company
`toshibagcs.com Find us on: Twitter | Facebook | YouTube
`
`-----Forwarded by Constantine Koutras/US/ToshibaGCS on 11/03/2017 01:44PM -----
`To: James Fornabaio/US/ToshibaGCS@ToshibaGCS
`From: James Fornabaio/US/ToshibaGCS
`Date: 05/16/2016 04:21PM
`Cc: Scott Maccabe/US/ToshibaGCS@ToshibaGCS, Scott Maccabe/CS/IRV/TOSHIBA-TABS@TOSHIBA-TABS
`Subject: FY 2013 LTI Plan Notice from Scott Maccabe
`
`Scott has asked that I send this to you today on his behalf as he is having email issues while traveling.
`
`Jim
`
`To: FY 2013 Executive Long Term Incentive (LTI) Plan Participants:
`
`All of you as executives and leaders of TGCS are aware of our business results over the past 2 years.
`We have fallen well short of our sales and profit goals.
`
`The FY 2013 LTI Plan called for a payout this month. I have decided to alter the plan and not make the payout due to our poor
`business results.
`
`I do not believe that it is responsible or even reasonable to make a bonus payout to our executives at the same time that we are
`reducing our headcount, suspending raises and not paying bonuses to our employees.
`
`As communicated at the Connection Points all hands meeting last week, we are reworking our annual bonus program to have
`realistic goals so that we can maximize payouts within the annual bonus program. This work will have the same effect on the
`annual executive bonus program also.
`
`In a short time we have made many adjustments to our business structure and operational expenses resulting in very positive
`momentum. However there is still more that will need to be done in order for the business to achieve a solid financial footing.
`
`Your leadership and support will continue to be critical going forward.
`
`Thank you for your understanding and support.
`
`Regards,
`
`Scott Maccabe
`President & CEO
`
`Ph: 949-462-6800 / 919-264-6682
`email: scott.maccabe@tabs.toshiba.com, scott.maccabe@toshibagcs.com
`
`1 of 1
`
`11/13/2017 4:34 PM
`
`

`

`Case 1:22-cv-00330-BMC Document 1 Filed 01/20/22 Page 20 of 20 PageID #: 20
`ToSarAslk22 cv-00330-BMC Documen
`g
`,22-CV-
`-
`t1 Filed 01/20/22 Page 20 of 20 PagelD #: 20
`Kenneth B. Hammer
`Global CommerceSolutions, Inc.
`Senior Vice President & ChiefLegal Officer
`
`December 13, 2017
`
`Gerald Ross, Esq.
`Fryer & Ross, LLP
`551 Fifth Avenue, Suite 422
`New York, NY 10176
`
`Re: Constantine Koutras
`
`Dear Mr. Ross:
`
`Sent via email to geraldross@fryerross.com
`
`| write in responseto your letter dated December 11, 2017 to Mr. Scott Maccabe as President and CEO
`of Toshiba Global Commerce Solutions, Inc. Please kindly note my contact information and direct any
`further communications regarding this matter to myattention.
`
`TGCSis grateful for Mr. Koutras’s service to our companyduring his employment and we wish him the
`very best as he pursues other opportunities.
`Mr. Koutras is eligible for severance pay based onhis term of employment which began on January 7,
`2013. This date is supported by the New Employee Registration paperwork he submitted, dated and
`signed.
`In exchangeforthis, Mr. Koutras received a $10,000 sign on bonus. TGCSdisagrees with your
`claim that Mr. Koutras was employed by TGCSpriorto this date. You are welcometo share any
`evidence you feel supports an earlier date of employment.
`TGCSalso disagrees with the portions of yourletter that claim Mr. Koutras is due payments underthe
`TGCS Long Term and Short Term Compensation Plans at “200% of the ‘target’ amounts.” You are
`welcometo share any evidence youfeel supports his right to payments in a different amount than he
`received.
`
`The reduction in force referenced in yourletter impacted a numberof former employees. The deadline
`for all such employees(including Mr. Koutras) to accept the TGCS severance payment by signing and
`returning the associated documentation is December 15, 2017. TGCS cannot create an exception by
`altering this date for Mr. Koutras, as you requested. We note that Mr. Koutras was informed of the
`decision to terminate his employmentin early Novemberand he did not raise the LT! or STI
`compensation issues mentioned in yourletter, before or after his notification, until less than a week
`before the deadline for him to accept the severance.
`
`Mr. Ross, | regret this may not be the response you and Mr. Koutras hoped for.
`working with Gus for many years. | hold him in high regard and wish him well.
`
`| had the pleasure of
`
`Sincerely,
`
`SEi,
`
`Kenneth B. Hammer
`
`cc
`
`S. Maccabe
`J. Fornabaio
`L. Roberge
`
`TGCS Legal Department, 3901 South Miami Boulevard, RIC14
`Durham, NC 27709
`
`(984) 355-3557
`ken-hammer@toshibages.com
`
`