Toporek v. R. R. Donnelley & Sons Company

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Bradley A. Kirscher and Michael C. Mahoney, MAHONEY KIRSCHER LLC, 125
West Lake Street, Suite 201, Wayzata, MN 55391, for Plaintiff.
Emily A. McNee and Stephanie Huisman, LITTLER MENDELSON, P.C., 1300
IDS Center, 80 South Eighth Street, Minneapolis, MN 55402, for Defendant.
Defendant R.R. Donnelley & Sons Company (“RRD”) terminated Plaintiff Dorota
“Gigi” Toporek’s employment contract as a Sales Representative. Toporek brings this case
alleging that RRD breached the parties’ employment contract and violated several
Minnesota statutes by failing to pay her the full amount of her earned commissions on a
major sale, and then terminating her employment after she attempted to obtain the
commissions she believed she was owed. 	RRD seeks summary judgment on all twelve
counts brought by Toporek, and also moves to exclude certain expert witness testimony.
After careful review, the Court will grant in part and deny in part RRD’s Motion for
Summary Judgment and will deny RRD’s Motion to Exclude Expert Testimony.
DOROTA (“GIGI”) TOPOREK,
Plaintiff,
v.
R. R. DONNELLEY & SONS COMPANY,
Defendant.
Civil No. 24-8 (JRT/DJF)
MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN
PART DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT AND DENYING
DEFENDANT’S MOTION TO EXCLUDE
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BACKGROUND
I. 	FACTS
A. The Pearson Project, the Plan, and the Commission Rate
Toporek began working as a sales representative for RRD in September 2018. (Am.
Compl. (“Compl.”) ¶ 11, Apr. 1, 2024, Docket No. 13.) RRD is “one of the largest printers
of materials in the United States.” (Id. ¶ 4.) In May 2021, Toporek signed a new “Sales
Compensation Plan” (the “Plan”). (Id. ¶¶ 12–14; see also Decl. of Emily A. McNee in Supp.
Def.’s Mot. Exclude Pl.’s Expert (“First McNee Decl.”), Ex. 5 (Sales Compensation Plan
(“Plan”)), Aug. 25, 2025, Docket No. 70-1.) The Plan established Toporek’s compensation
structure, her payment schedule, and specified that she would be compensated primarily
through commission. (See id.) Regardless of any commission earned, the Plan provided
that Toporek would be paid a minimum monthly “draw.” (See id. at 10.) 1 The Plan set
the commission rates for “Inside Platform Rates” for “New Clients Commission” at 18%
for “Year 1” and 12% for “Year 2.” (Compl. ¶ 19; Plan at 16.) The plan also specified in a
section entitled “Modifiers”:
1 Page citations are to pagination assigned by the court’s CM/ECF system, appearing in a
document’s upper right corner, not to a document’s original pagination, except for depositions,
which are cited according to their internal page numbers.
In future filings and memoranda, the Court urges the parties to cite to record evidence in
a way that facilitates the efficient and thorough verification of the parties’ assertions. Citations
to a specific docket number entry are strongly encouraged.
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In the sole discretion of Sales Management, Commission
Modifiers may be applied periodically to increase or decrease
the final commission of particular products or programs.
(Plan at 18.) The Plan clarifies the function of these “modifiers” under the header “Special
Rate ECP’s”2:
Certain [account numbers] that Sales Management decides
need a special rate, may be added to a table in ICM [the
compensation management platform]. The Special Rate will
be applied until Sales Management decides the Account may
be removed from the table. The Special Rate may be adjusted
through the year in Sales Management’s sole discretion. The
Special Rate will be the only rate used if the [account number]
is included in the table and will not have any commission
modifiers 	applied 	or 	steps 	in 	the 	tiers 	applied. 	Sales
Management will notify the Participant prior to an Account
being put in this table.
(Id. at 18–19.)
A core dispute in this case is what level of commission Toporek is owed under the
Plan for a significant sales agreement Toporek secured with Pearson Education, Inc.
(“Pearson”) in 2022. (Compl. ¶¶ 20–22.) On September 30, 2021, as she was working to
secure the Pearson deal, Toporek offered to take a reduced commission rate of 10% to
lower the price to close the deal; it does not appear from the record that this rate was
officially agreed upon. (Decl. of Emily A. McNee in Supp. Mot. Summ. J. (“Second McNee
2 “ECP means the number assigned to an Account” in RRD’s internal shipping system
(WCSS) 	and 	compensation 	management 	systems 	(“ICM”) 	and 	is 	specific 	to 	a 	Sales
Representative. (Plan at 10; see also Decl. of Emily A. McNee in Supp. Mot. Summ. J. (“Second
McNee Decl.”), Ex. 38, Dep. of Jeana Agee (“Agee Dep.”) at 35:15–20, 125:22–24, Docket No. 87-
4.)
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Decl.”), Ex. 14, Aug. 26, 2026, Docket No. 97-1 at 3.) After the Pearson deal became final,
Michael Snyder, the President of the RRD plant and Toporek’s then-supervisor, confirmed
that the Pearson account would “be considered as a new customer[,]” and communicated
to her that the commission rate would be determined after further review. 	(Second
McNee Decl., Ex. 15, Docket No. 85-1 at 2; id., Ex. 32 (Dep. of Michael Snyder (“Snyder
Dep.”)) at 123:2–24, Docket No. 86-5.) 	Snyder said in February 2022 that it was a
“collective decision” not to pay Toporek the presumptive 18% commission on the Pearson
project. 	(Snyder Dep. at 73:7–11.) 	RRD instead decided to pay Toporek a commission
rate of 9% for the first year. (See Second McNee Decl., Ex. 55, 30(b)(6) Dep. of Jeana Agee
(“30(b)(6) Dep.”) at 90:6–14, Docket No. 91-2; Snyder Dep. at 84:6–18.)
RRD’s internal compensation management system first reflected a change in
Toporek’s commission rate from 18% to 12%. (Second McNee Decl., Ex. 38, Dep. of Jeana
Agee (“Agee Dep.”) at 35:17–20, 215:21–216:13, Docket No. 87-4.) 	Ultimately, the
commission rate was adjusted to 9%. 	(Id. at 220:6–221:2; Second McNee Decl., Ex. 1,
Dep. of Dorota “Gigi Toporek” (“Toporek Dep.”) at 70:11–12, Docket No. 83.) However,
Toporek is still unsure of the rate she was paid, and she has filed an expert report
assessing that she was underpaid, even assuming that 9% was the appropriate rate.
(Toporek Dep. at 70:11–70:23; see generally First Decl. of Emily McNee, Ex. 2 (“Cobb
Rep.”), Aug. 25, 2025, Docket No. 67-2.)
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In June 2022, Toporek first told RRD that she believed she was owed 18%
commission under the Plan; she also submitted a written demand to that effect in August
2022. (Toporek Dep. 74:15–75:19.) Toporek alleges RRD never formally notified her of
the commission rate change, as she claims is required by the Plan. (Decl. of Dorota “Gigi”
Toporek (“Toporek Decl.”) ¶ 7, Sept. 15, 2025, Docket No. 117; see also Plan at 18–19
(“Sales Management will notify the Participant prior to an Account being put in this
[special rate] table.”).) 	Additionally, there is no evidence suggesting that the Pearson
account was moved to any special rate table, another procedural step discussed in the
plan. (Toporek Decl. ¶ 14; see also Plan at 18–19.) The parties agree that RRD deviated
from the presumptive commission rate, and Snyder states that Toporek was paid under a
“special rate ECP.” (Snyder Dep. at 74:11–14.)
Toporek’s earnings statements from RRD labeled her commission as “Commission
(Annualized)” with a dollar amount under the heading “Earnings,” but the statement did
not specify how the amount was determined. (Toporek Decl. ¶ 15.) Toporek requested,
but did not receive, clarification about these statements. (Id. ¶ 17.)
B. Termination of Employment
From 2018 to 2021, Toporek failed to meet her annual sales quotas. 	(Second
McNee Decl., Ex. 53, Dep. of James Hoffoss (“Hoffoss Dep.”) at 31:9–11, Docket No. 91-
1.) In August 2021, Snyder, Toporek’s then supervisor, met with her to discuss her sales
performance; another executive had advised Snyder to consider using a “formal written
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process with firmly defined milestones” to assist Toporek. 	(See Second Decl. of Emily
McNee in Supp. Mot. Summ. J. (“Third McNee Decl.”), Ex. 1 (Decl. of Michael Snyder
(“Snyder Decl.”)) ¶ 2, Sept. 29, 2025, Docket No. 128-1.) From November 2021 through
June 2022, Toporek’s superiors engaged in ongoing discussions regarding Toporek’s
performance and behavior, including her failure to communicate during the ongoing
Pearson project. (See Agee Dep. at 102:19–103:24, 109:14–20, 110:23–25; Snyder Dep.
at 139:15–140:3.) In October 2022, Snyder sent Toporek a quarter-by-quarter breakdown
of her sales for the year, which showed that she was “negative in sales” in the third
quarter of 2022. (Toporek Dep. at 165:25–166:5.)
On December 1, 2022, Snyder informed Toporek that RRD had decided to pay her
at a commission rate of 7% for “Year 2” on the Pearson project rather than the 12% set
forth in the Plan. (Snyder Dep. at 230:2–4; see also Plan at 16.) Toporek rejected this rate
in an email to Snyder on January 31, 2023—she stated, “Per the Comp Plan dated April
1st, 2020, I am entitled to 18% on the first year and 12% on the second year . . . The rate
you have listed is not in conformance with . . . the plan. . . . I am insisting on being treated
fairly and as promised.” (Decl. of Bradley A. Kirscher Opp. Def.’s Mot. Summ. J. (“Kirscher
Decl.”), Ex. A, Sept. 15, 2025, Docket No. 120-1 at 5.) 	Snyder forwarded this email to
Jeana Agee, Snyder’s supervisor, stating, “I tuned her out at ‘entitled.’ This e-mail enrages
me[.]” (Id. at 4.) Agee responded, “How many times do we need to go through this? I
can pull all the same info I did in the past that it’s solely up to the president of the
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facility . . . to change the [commission rate].” (Id.) Later that day, Snyder responded that
“[i]f I had my way, she’d be long gone” (id. at 3), and the next day, February 1, 2023,
Snyder wrote to other company executives that “we are now going to take firm, yet fair
measures to manage Gigi Toporek out of the business. She’s been disruptive for too long,
and I have exhausted every ounce of patience.” (Id. at 2.)
Randy Teigland, the Operations Manager of Facilities and Maintenance at RRD’s
Chanhassen plant, described Snyder as frequently complaining about Toporek and saying
he was “fed-up” with her asking for her commissions and going to “teach her a lesson.”
(Toporek Decl., Ex. D (“Teigland Decl.”) ¶¶ 2–3, 12–13, Docket No. 117-1 at 6.) Teigland
also overheard Snyder “complaining that [Toporek’s] full commission was cutting into his
personal bonus” and that he was cutting her commission so that his “incentive bonus was
not reduced.” (Id. ¶ 14.)
In 	February 	2023, 	Hoffoss3 	presented 	Toporek 	with 	a 	“Memorandum 	of
Understanding” that detailed Toporek’s “negative attitude” and her “unsatisfactory
[sales] prospecting activities”—but Toporek refused to sign. (Kirscher Decl., Ex. C, Docket
No. 120-1 at 12; Toporek Decl. ¶ 17.) On March 3, 2023, Hoffoss “presented [Toporek]
with her ‘2nd Notice of Unsatisfactory Performance’” due to her “negative attitude” and
3 From December 5, 2022, to August 2023, Toporek’s direct supervisor was James Hoffoss.
(Hoffoss Dep. at 15:15–20, 12:20–21.)
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“low levels of [sales] prospecting activities.” (Second McNee Decl., Ex. 47, Docket No. 88-
4 at 2.)
In March 2023, Toporek approached Hoffoss regarding an account that she
believed another employee at RRD was trying to steal from her. (Second Decl. of Emily
McNee, Ex. 61 (Decl. of James Hoffoss (“Hoffoss Decl.”) ¶ 3, Docket No. 109-5 at 2; Hoffoss
Decl. ¶ 6 & Ex. 1, Docket No. 113 at 2.) Hoffoss characterized these actions as an attempt
by Toporek to “incite [Hoffoss] to action against [the other employee] and his team with
highly inaccurate, accusatory, and inflammatory statements[.]” 	(Hoffoss Decl., Ex. 1,
Docket No. 113 at 2.) On March 15, 2023, in an email, Hoffoss asked Matthew Mason,
RRD’s Regional Human Resources Manager, “[a]m I permitted to terminate [Toporek’s]
employment this week?” (Id. at 3.)
On March 17, 2023, Hoffoss informed Toporek that he was concerned about her
activities copying documents and removing them from the office. (Toporek Dep. at 188:2-
16.)4 Then, in July 2023, Toporek organized a call with a prospective client at a company
that was already a customer of another RRD sales representative (Hoffoss Dep. at 43:9–
24, 48:13–49:20), which Hoffoss characterized as “jeopardiz[ing] existing business” (id. at
47:20–25; Second McNee Decl., Memo to File, Docket No. 101-5 at 2.)
4 RRD discovered more evidence of Toporek’s copying and retention of RRD documents
during the course of litigation, which it asserts was in violation of its internal policies. (See RRD’s
Mem. Supp. Mot. Summary Judgment at 16, Aug. 25, 2025, Docket No. 80 (citing 30(b)(6) Dep. at
157:1-160:20).)
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On August 1, 2023, Toporek’s employment with RRD was terminated. (Toporek
Dep. at 197:11–198:9.) RRD documented this decision in a “Memo to File” in Toporek’s
employment record. (Memo to File, Docket No. 101-5 at 2.) This document described
Toporek as “misrepresent[ing] her justifications” for pursuing a client at an existing
customer, noted Toporek’s failure to achieve sales goals, and concluded that her
“unsatisfactory [sales] prospecting activities and job performance” resulted in her
termination. (Id.)
C. 	Toporek’s Expert Witness
As part of preparation for trial, Toporek hired Arthur H. Cobb, a Certified Public
Accountant (CPA). Cobb prepared a report in which he “estimate[d] financial damages,
including commissions, back pay, and front-pay” stemming from Toporek’s claims. (Cobb
Rep., Docket No. 67-2 at 2–5.) Cobb has assisted and testified in many other cases as a
CPA regarding economic damages. (Id. at 5.)
II. 	PROCEDURAL HISTORY
Toporek initiated this case in state court, and RRD filed a notice of removal on
January 2, 2024. (See Docket No. 1.) 	Toporek filed an Amended Complaint on April 1,
2024. (Docket No. 13.) On August 25, 2025, RRD filed a Motion to Exclude Expert Witness
Testimony and a Motion for Summary Judgment. (See Docket Nos. 63, 78.)
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DISCUSSION
I. 	RRD’S MOTION FOR SUMMARY JUDGMENT
Toporek’s Amended Complaint brings 12 counts against RRD: (1) Breach of
Contract; (2) Breach of the Covenant of Good Faith and Fair Dealing; (3) Violation of Minn.
Stat. § 181.101; (4) Violation of Minn. Stat. § 181.03; (5) Violation of Minn. Stat. § 181.13;
(6) Violation of Minn. Stat. § 181.145; (7) Violation of Minn. Stat. § 181.032; (8) Violation
of Minn. Stat. § 181.932; (9) Violation of Minn. Stat. § 181.964; (10) Promissory Estoppel;
(11) Unjust Enrichment; and (12) Procuring Cause. (Compl. 7–15.) RRD seeks summary
judgment on all counts. The Court will address each in turn.
A. 	Standard of Review
Summary judgment is appropriate where there are no genuine issues of material
fact and the moving party can demonstrate that it is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a). A fact is material if it might affect the outcome of the lawsuit,
and a dispute is genuine if the evidence is such that it could lead a reasonable jury to
return a verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A court considering a motion for summary judgment must view the facts in the light most
favorable to the non-moving party and give that party the benefit of all reasonable
inferences to be drawn from those facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986).
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B. 	Count 1: Breach of Contract
Toporek alleges that RRD breached the parties’ contract when it failed to pay her
the full amount of commission she was owed on the Pearson project. Under Minnesota
law, the elements of breach of contract are: “(1) formation of a contract, (2) performance
by plaintiff of any conditions precedent to his right to demand performance by the
defendant, and (3) breach of the contract by defendant.” Park Nicollet Clinic v. Hamann,
808 N.W.2d 828, 833 (Minn. 2011). Toporek claims that she “was paid less than she was
owed under her employment contract,” constituting a breach. (Compl. ¶ 49.) RRD seeks
summary judgment on Toporek’s breach-of-contract claim, arguing that the Plan provided
RRD with the sole discretion to alter Toporek’s commission rate, that RRD did so, and that
RRD paid Toporek what she was owed under the commission rate that RRD chose.
The Plan clearly provides RRD with some level of discretion to alter commission
rates. The Plan states:
In the sole discretion of Sales Management, Commission
Modifiers may be applied periodically to increase or decrease
the final commission of particular products or programs.
(Plan at 18.) But numerous disputes of fact remain as to whether a breach of contract
occurred in this case. For example, the Plan provides that the commission rate a sales
representative receives for a certain project “will be the rate in effect at the time the
Invoice is received into the [compensation management] platform.” 	(Plan at 11
(emphasis added).) Critically, the parties dispute what commission rate was “in effect”—
18%, 12%, or 9%—at the relevant points in time in this case. Moreover, even if RRD is
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correct that the rate “in effect” was 9%, there appears to be a dispute of fact regarding
whether Toporek was in fact paid that full 9% in commission.5 These disputes must be
resolved to determine whether the rate that Toporek ultimately received comported with
the contract, a fact that will likely be dispositive to whether a breach of contract occurred
in this case.
The parties raise several additional disputes regarding the proper construction of
the language of the Plan. “To interpret the terms of a contract under Minnesota law, a
court must initially determine whether a contract term is ambiguous.” 	Porous Media
Corp. v. Midland Brake, Inc., 220 F.3d 954, 959 (8 th Cir. 2000). 	“A contract term is
ambiguous if it is reasonably susceptible to more than one interpretation.” Id. Although
“[t]he meaning of an unambiguous contract is a matter of law for the court . . . the
meaning of an ambiguous contract term is a fact question for the jury.” Id. “Summary
judgment is inappropriate where terms of a contract are at issue and those terms are
ambiguous or uncertain.” Bank Midwest, Minn., Iowa, N.A. v. Lipetzky, 674 N.W.2d 176,
179 (Minn. 2004).
Toporek argues several provisions in the plan are ambiguous. For example, as to
the Plan language discussed in the previous paragraph, Toporek argues the words “rate
5 At the hearing before the Court, when asked “Was [Toporek] paid the full nine
percent . . . ?” 	Plaintiff’s counsel responded, “There’s a fact issue on that,” referencing Mr.
Cobb’s expert report that “indicates that she was paid about eight percent rather than the full
nine percent.”
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in effect at the time the Invoice is received into the [compensation management]
platform” are ambiguous, because the Plan does not explain how an invoice is “received”
into platform or what factors are determinative of what commission rate was “in effect”
at that time. 	The parties also disagree as to what steps the Plan required RRD to take
before it could change Toporek’s commission rate—Toporek relies on language in the
Plan stating:
Certain [account numbers] that Sales Management decides
need a 	special rate, 	may 	be 	added to 	a table in 	[the
compensation management platform]. The Special Rate will
be applied until Sales Management decides the Account may
be removed from the table. . . . Sales Management will notify
the [employee] prior to an Account being put in this table.
(Plan at 18–19.) Toporek argues that these conditions—adding the Pearson project to a
special table, and notifying Toporek—never happened, and therefore RRD was not
entitled to modify her baseline commission rate. 	RRD, in turn, argues that these
provisions of the contract are not mandatory, relying on the language that RRD “may”
add projects to the special table.
The Court finds that these provisions of the Plan are susceptible to multiple
reasonable interpretations, and are therefore ambiguous. 	Read in its entirety, the
“Modifiers” section of the Plan could be read as requiring RRD to place a project in the
special “table,” and to notify the relevant employee prior to altering the commission rate
for that project. However, it is also reasonable to interpret the Plan as RRD does—that
such steps could, but need not, take place. Furthermore, the Court concludes that the
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meaning of the provision stating that each employee must receive the “rate in effect at
the time the invoice is received” is susceptible to multiple reasonable interpretations as
applied to this case. 	The meaning of these ambiguous provisions are questions of fact
that the Court cannot resolve at summary judgment.
For all of these reasons, the Court concludes that questions of material fact remain
as to whether RRD breached its contract with Toporek by not paying the amount she was
entitled to under the Plan for her work on the Pearson project. The Court will therefore
deny RRD’s motion for summary judgment on Toporek’s breach of contract claim.
C. 	Count 2: Breach of the Covenant of Good Faith and Fair Dealing
Toporek brings a claim for a breach of the “covenant of good faith and fair dealing”
(Compl. ¶¶ 54–57), but the Minnesota Supreme Court has not recognized the existence
of such a covenant in employment contract matters. See Hunt v. IBM Mid Am. Emp. Fed.
Credit Union, 384 N.W.2d 853, 858 (Minn. 1986) (“[W]e have not read an implied
covenant of good faith and fair dealing into employment contracts.”). 	Regardless,
Toporek concedes that Count 2 is only relevant if the contract is illusory. 	Because the
Court finds the Plan to be a valid contract, the Court will grant RRD’s motion for summary
judgment as to Count 2.
D. 	Count 3: Minnesota Statutes section 181.101
Toporek alleges that RRD violated Minn. Stat. § 181.101, which provides:
[E]very 	employer 	must 	pay 	all 	wages, 	including 	salary,
earnings, and gratuities earned by an employee at least once
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every 31 days and all commissions earned by an employee at
least 	once 	every 	three 	months, 	on 	a 	regular 	payday
designated in advance by the employer regardless of whether
the employee requests payment at longer intervals.
Minn. Stat. §181.01(a). The statute further “provides a substantive right for employees
to 	the 	payment 	of 	wages, 	including 	salary, 	earnings, 	and 	gratuities, 	as 	well 	as
commissions, in addition to the right to be paid at certain times.” 	Id. 	Toporek alleges
that by failing to pay her the commission she was owed under the Plan, RRD violated this
statute. (Compl. ¶ 58–60.)
For the same reasons that RRD’s motion will be denied as to Toporek’s breach-of-
contract claim, the Court concludes that disputes of material fact remain as to whether
Toporek received the commissions she was entitled to under the Plan. If Toporek did not
receive her owed commissions under the Plan, Toporek would have a valid claim under
Minn. Stat. § 181.101. The Court will therefore deny RRD’s motion for summary judgment
on Count III.
E. 	Count 4: Minnesota Statutes section 181.03
With respect to Count IV, Toporek alleges violations of two different subdivisions
of Minn. Stat. § 181.03. Subdivision 1 states:
An employer may not, directly or indirectly and with intent to
defraud:
(1) cause any employee to give a receipt for wages for a
greater amount than that actually paid to the employee for
services rendered;
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(2) 	directly 	or 	indirectly 	demand 	or 	receive 	from 	any
employee any rebate or refund from the wages owed the
employee under contract of employment with the employer;
or
(3) in any manner make or attempt to make it appear that the
wages paid to any employee were greater than the amount
actually paid to the employee.
Toporek argues that RRD violated this provision when it entered Toporek’s commission
rate as 18%, altered it to 12%, and then to 9%.
However, Toporek has not alleged a factual basis upon which it could be shown
that RRD’s changes to the commission rate were done “with intent to defraud” as
required by the statue. 	The Court will therefore grant RRD’s motion for summary
judgment with respect to Minn. Stat. § 181.03, subd. 1.
Toporek also alleges violation of Minn. Stat. § 181.03, subd. 6, which states:
An employer shall not discharge, discipline, penalize, interfere
with, threaten, restrain, coerce, or otherwise retaliate or
discriminate against an employee for asserting rights or
remedies under this section, [or] section[] . . . 181.01 . . .
including, but not limited to, filing a complaint with the
department 	or 	telling 	the 	employer 	of 	the 	employee's
intention to file a complaint. 	In addition to any other
remedies provided by law, an employer who violates this
subdivision is liable for a civil penalty of not less than $700 nor
more than $3,000 per violation.
The Court concludes that genuine disputes of material fact remain as to Toporek’s claim
under Minn. Stat. § 181.03, subd. 6. 	Toporek presents evidence that her superiors
brought about her termination as retaliation for her seeking the commission rate which
she maintains she was owed under the Plan. This evidence includes the language of the
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“Memorandum of Understanding” Hoffoss requested that Toporek to sign, which stated,
“[y]our continued questioning and negative remarks about your compensation plan are
not productive and are unnecessary,” and that “[c]ontinued deficiencies may result in
additional counseling, up to and including termination.” (Kirscher Decl., Ex. C, Docket No.
120-1 at 12.). While RRD strenuously contends that there were ample reasons to support
her discharge, Toporek’s evidence seems to at least present a factual dispute to be
resolved by a jury. The Court will therefore deny RRD’s motion to dismiss on Toporek’s
claim under Minn. Stat. § 181.03, subd. 6.
F. 	Count 5: Minnesota Statutes section 181.13
Minn. Stat. § 181.13 imposes penalties where, after an employee is discharged and
makes a written demand for wages and commissions earned, “the employee’s earned
wages and commissions are not paid within 24 hours after demand, whether the
employment was by the day, hour, week, month, or piece or by commissions.” Toporek
alleges that she “demanded in writing that [RRD] pay her the full amount of her earned
commissions,” and that RRD did not do so, in violation of this section. (Compl. ¶ 71–75.)
RRD responds that this statute requires an employee to make a written demand for wages
after discharge, which Toporek did not do. RRD also points out that Toporek did not offer
any arguments opposing the motion for summary judgment on Count V in her opposition
memorandum.
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Toporek has failed to establish that she made a demand in writing for her
commissions owed after she was discharged, which is required under Minn. Stat.
§ 181.13. Thus, the Court will grant RRD’s motion for summary judgment on Count 5.
G. 	Count 6: Minnesota Statutes section 181.145
Toporek’s Amended Complaint alleges a claim under Minn. Stat. § 181.145, but in
her memorandum opposing RRD’s motion for summary judgment, Toporek “concedes
that § 181.145 is inapplicable and therefore withdraws Count [6].” 	The Court will
therefore grant RRD’s motion for summary judgment with respect to Count 6.
H. 	Count 7: Minnesota Statutes section 181.032
Minn. Stat. § 181.032(a) requires employers, “[a]t the end of each pay period,” to
“provide each employee an earnings statement, either in writing or by electronic means,
covering that pay period.” 	Toporek argues RRD violated two parts of § 181.032. First,
part (b) requires employers to inform employees of “the rate or rates of pay and basis
thereof, including whether the employee is paid by hour, shift, day, week, salary, piece,
commission, or other method.” Minn. Stat. § 181.032(b)(2). Second, part (f) requires that
“[a]n employer must provide the employee any written changes to the information
contained in the notice under paragraph (d) prior to the date the changes take effect.”
Minn. Stat. § 181.032(f).
The Court concludes that genuine disputes of material fact remain as to Toporek’s
claims under § 181.032. 	As to part (b), Toporek argues that RRD “failed to provide
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[Toporek] with the required earnings statements because the information provided . . . in
[the] pay stubs . . . did not adequately explain the amounts” Toporek was paid. (Compl.
¶ 81–83.) 	And under part (f), she argues that RRD “changed the basis of [Toporek’s]
compensation by reducing the commission percentage that was originally set forth in
writing pursuant to Minn. Stat. § 181.032(d) without giving [Toporek] the prior written
notice required by Minn. Stat. § 181.032(f).” 	(Id. ¶ 84.) 	Regarding part (b), the Court
concludes that issues of fact remain as to whether Toporek’s pay or other compensation
statements were sufficiently specific to comply with the statute. And on part (f), while
RRD contends that no prior notice was required in this case because RRD’s right to alter
the commission rate was built into the contract, it is disputed whether RRD comported
with the terms of the Plan when it changed Toporek’s commission rate. The Court will
deny RRD’s motion for summary judgment as to Count 7.
I. 	Count 8: Minnesota Statutes § 181.932
Minn. Stat. § 181.932 provides that “[a]n employer shall not discharge, discipline,
penalize, interfere with, threaten, restrain, coerce, or otherwise retaliate or discriminate
against 	an 	employee 	regarding 	the 	employee’s 	compensation, 	terms, 	conditions,
location, or privileges of employment because . . . the employee . . . in good faith, reports
a violation . . . of any federal or state law or common law . . . .” Minn. Stat. § 181.932,
subd. 1(1). The elements of a prima facie case of retaliation under this statute are “(1)
statutorily-protected conduct by the employee; (2) adverse employment action by the
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employer; and (3) a causal connection between the two.” Cokley v. City of Otsego, 623
N.W.2d 625, 630 (Minn. Ct. App. 2001) (quoting Hubbard v. United Press Int'l, Inc., 330
N.W.2d 428, 444 (Minn. 1983)). 	To establish protected conduct under § 181.932, a
plaintiff must show that she reported facts that, “if proven, would constitute a violation
of law.” Abraham v. Cty. of Hennepin, 639 N.W.2d 342, 355 (Minn. 2002).
RRD argues that Toporek cannot establish any of the elements required for a prima
facie claim under § 181.932. The Court disagrees. First, as discussed previously, the Court
finds that disputes of fact remain as to whether RRD’s failure to pay Toporek the full
commission rate she claims she was owed constituted a violation of Minnesota law.
Accordingly, Toporek’s complaints of such conduct could plausibly constitute a report of
unlawful conduct protected by the statute. Furthermore, Toporek’s allegations related
to her discharge would, if true, support her claim that she suffered an adverse
employment action causally connected to her report. 	It may well be that RRD can
ultimately establish legitimate justifications for her termination; but those disputes of fact
cannot be resolved at summary judgment. The Court will therefore deny RRD’s motion
for summary judgment on Toporek’s claims under Minn. Stat. § 181.932.
J. 	Count 9: Minnesota Statutes section 181.964
Minn. Stat. § 181.964 prohibits employers from retaliating against employees “for
asserting rights or remedies provided in sections 181.960 to 181.965.” Toporek alleges
that her refusal to sign the “Memorandum of Understanding” presented to her by Hoffoss
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was an exercise of her rights under Minn. Stat. § 181.962—which allows an employee to
“dispute[] specific information contained in the employee’s personnel record.”
RRD argues that Minn. Stat. § 181.962 merely prescribes procedures for handling
personnel disputes but that it does not in itself create an independent right to dispute
personnel record information. RRD argues further that, even if the statute does create
such a right, Toporek’s mere refusal to sign the memorandum did not constitute an
assertion of that right, such that the retaliation provision of § 181.964 is implicated.
The Court concludes that genuine disputes of material fact remain as to whether
Toporek’s conduct amounted to an “assert[ion] [of] rights or remedies provided in
sections 181.960 to 181.965,” such that RRD’s firing of Toporek implicated the retaliation
provision of § 181.964. 	Furthermore, while Toporek’s allegations of violations of §
181.962 may ultimately be shown not to give rise to a claim under § 181.964, at this stage
RRD has failed to prove as much as a matter of law.
Accordingly, the Court will deny the motion for summary judgment as to Count 9.
K. 	Counts 10–12: Promissory Estoppel; Unjust Enrichment; Procuring Cause
Counts 10 through 12 bring equitable claims under the doctrines of Promissory
Estoppel, Unjust Enrichment, and Procuring Cause. Because the Court concludes that the
Plan is an enforceable contract, and because Toporek conceded at oral argument that
Counts 10 through 12 should be dismissed should the Court reach such a conclusion, the
Court will grant RRD’s motion for summary judgment as to those counts.
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II. 	DEFENDANT’S MOTION TO EXCLUDE EXPERT TESTIMONY
A. 	Standard of Review
Federal Rule of Evidence 702 governs the admissibility of expert testimony and
provides the following:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if the proponent demonstrates to the
court that it is more likely than not that:
(a) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
methods; and
(d) the expert’s opinion reflects a reliable application of the
principles and methods to the facts of the case.
Fed. R. Evid. 702.
The district court has a gate-keeping obligation to make certain that all testimony
admitted under Rule 702 satisfies these prerequisites and that “any and all scientific
testimony or evidence admitted is not only relevant, but reliable.” 	Daubert v. Merrell
Dow Pharm., Inc., 509 U.S. 579, 589 (1993). The proponent of the expert testimony has
the burden of establishing by a preponderance of the evidence that the expert is qualified,
that his or her methodology is scientifically valid, and that “the reasoning or methodology
in question is applied properly to the facts in issue.” Marmo v. Tyson Fresh Meats, Inc.,
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457 F.3d 748, 757–58 (8 th Cir. 2006). Expert testimony is inadmissible if it is “speculative,
unsupported by sufficient facts, or contrary to the facts of the case.” Id. at 757.
A “trial judge must have considerable leeway in deciding in a particular case how
to go about determining whether particular expert testimony is reliable.” Kumho Tire Co.
v. Carmichael, 526 U.S. 137, 152 (1999). 	However, the Eighth Circuit has held that
“[c]ourts should resolve doubts regarding the usefulness of an expert's testimony in favor
of admissibility.” 	Marmo, 457 F.3d at 758. 	“As a general rule, the factual basis of an
expert opinion goes to the credibility of the testimony, not the admissibility, and it is up
to the opposing party to examine the factual basis for the opinion in cross-examination.”
Loudermill v. Dow Chem. Co., 863 F.2d 566, 570 (8 th Cir. 1988). 	“Only if [an] expert’s
opinion is so fundamentally unsupported that it can offer no assistance to the jury must
such testimony be excluded.” 	Bonner v. ISP Techs., Inc., 259 F.3d 924, 929–30 (8th Cir.
2001) (quoting Hose v. Chi. Nw. Transp. Co., 70 F.3d 968, 974 (8 th Cir. 1996)).
B. 	Analysis
Toporek seeks to present as evidence a report compiled by Certified Public
Accountant Arthur H. Cobb. This report presents a “preliminary analysis of business and
financial documents and information to develop methods to estimate financial damages,
including commissions, back pay, and front-pay, and to estimate financial damages of
Dorota Toporek.” (Cobb Rep., Docket No. 67-2 at 6.)
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RRD argues that the Court should exclude Cobb’s report under Rule 702 for several
reasons. RRD contends that: (1) Cobb analyzes portions of the Plan that are irrelevant to
this case; (2) Cobb lacks training to opine on the printing business; (3) Cobb did not have
enough data to opine on RRD’s business decisions; (4) Cobb’s methodology simply accepts
Toporek’s version of events as true, and is therefore unreliable; (5) Cobb offers
inadmissible legal conclusions; and (6) Cobb made calculation errors that render his
report unhelpful to the jury.
Exclusion is not warranted on any of these grounds. 	First, “Rule 702 does not
require perfect symmetry between an expert’s experience and the precise subject matter
of their testimony . . . . Rather, the relevant inquiry is whether the expert's background
equips him to help the jury understand the facts or issues in dispute.” Minnesota v. Fleet
Farm, 2025 WL 2802243 at *6 (D. Minn. Oct. 1, 2025); see also Robinson v. GEICO Gen.
Ins. Co., 447 F.3d 1096, 1100 (8 th Cir. 2006). The Court concludes Cobb’s background is
sufficient to qualify him to opine on the issues in this case. Furthermore, although expert
witnesses may not opine on legal matters, expert “testimony is not defective because it
utilize[s] the words of the legal standard.” United States v. Kelly, 679 F.2d 135, 136 (8 th
Cir. 1982). If Cobb does not offer legal instructions to the jury, his expert testimony is
admissible. And finally, regarding other issues such as portions of Cobb’s report that may
be irrelevant, lack sufficient factual basis, or have minor rounding errors, the Court
concludes that such issues are best left to cross-examination, and do not rise to such a
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level that exclusion is warranted. 	See Daubert, 509 U.S. at 596 (“Vigorous cross-
examination, presentation of contrary evidence, and careful instruction on the burden of
proof are the traditional and appropriate means of attacking shaky but admissible
evidence.”).
Accordingly, the Court will deny RRD’s motion to exclude.
CONCLUSION
The Court will grant in part and deny in part RRD’s motion for summary judgment.
The Court concludes that genuine issues of material fact preclude summary judgment on
Count 1 (Breach of Contract), Count 3 (Minn. Stat. § 181.101), Count 4 (as to Minn. Stat.
§ 181.03, subd. 6), Count 7 (Minn. Stat. § 181.032), Count 8 (Minn. Stat. § 181.932), and
Count 9 (Minn. Stat. § 181.964). The Court will grant RRD’s motion for summary judgment
as to the remaining counts in Toporek’s Complaint. Additionally, the Court will deny RRD’s
Motion to Exclude Expert Testimony, finding the testimony to be admissible under Rule
702.
ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1. 	Defendant’s Motion for Summary Judgment (Docket No. [78]) is GRANTED in part
and DENIED in part as follows:
a. 	DENIED as to Count 1, Count 3, Count 4 (as it relates to Minn. Stat. § 181.03,
subd. 6), Count 7, Count 8, and Count 9.
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b. 	GRANTED as to Count 2, Count 4 (as it relates to Minn. Stat. § 181.03,
subd. 1), Count 5, Count 6, Count 10, Count 11, and Count 12.
2. 	Defendant’s Motion to Exclude Expert Testimony (Docket No. [63]) is DENIED.
IT IS FURTHER ORDERED that this Order shall be filed under seal. The parties must
show cause on or before five business days from the date of this Order why the Court
should not unseal the Order and shall specify any portion of the Order warranting
redaction. The Court will determine whether continued sealing or suggested redactions
are warranted.
DATED: March 31, 2026 	_____/s/ John R. Tunheim_____
at Minneapolis, Minnesota. 	JOHN R. TUNHEIM
United States District Judge
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