* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 21 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LUIS SASTRE, Plaintiff-Appellant,

v. No. 98-3330 CESSNA AIRCRAFT COMPANY, Defendant-Appellee. (D.C. No. 96-CV-1456-MLB) (D. Kan.)

ORDER AND JUDGMENT *

Before BALDOCK , EBEL , and KELLY , Circuit Judges.
Plaintiff Luis Sastre appeals the district court’s grant of summary judgment in favor of Defendant Cessna Aircraft Company on hi s claims of breach of implied duty of good faith, forfeiture, and unconsc ionability. We exercise jurisdiction pursuant to 18 U.S.C. § 1291, and affi rm.

I.-2-

Plaintiff Luis Sastre was a Latin American sales re presentative for Cessna’s Citation jet aircraft until his termination, allege dly for filing false travel expense reports. Two documents, (1) the Statement of Under standing and (2) the annual Citation Marketing Sales Compensation Plan, contain ed the terms of Sastre’s employment. The Statement of Understanding provide d that Sastre was an employee at will. The Compensation Plan, which Ces sna presented to Sastre unilaterally, provided that a sales representative earns his commission for the sale of an aircraft in two halves: he earns the first, the advance commission payment, when the Citation Marketing Division Administration(“Marketing”) accepts the sale, and the second, the delivery commission payme nt, when Cessna delivers the aircraft to the customer. Finally, the Compensatio n Plan unambiguously provided that if a marketing representative were no longer an employee at the time Marketing accepted the sale or Cessna delivered the aircraft, the employee would not receive the advance or delivery commission, res pectively. At the time Cessna terminated him, Sastre had alrea dy arranged the sale of several aircraft for which he had not yet earned th e commissions, either because Marketing had not yet accepted the sales, or becaus e Cessna had not yet delivered the aircraft. Sastre sued Cessna to recover these commissions, alleging (1) breach of an implied covenant of good faith, (2) forfeitur e, and (3) unconscionability.-3-

Cessna filed a motion for summary judgment, which the district court granted. Sastre appeals.
II. We review the district court’s grant of summary jud gment de novo, applying the same legal standard as the district co urt. See Anderson v. Coors Brewing Co. , 181 F.3d 1171, 1175 (10th Cir. 1999). Summary ju dgment is appropriate if no genuine issue of material fact ex ists. See Fed. R. Civ. P. 56(c). We view the evidence and draw inferences therefrom in the light most favorable to the nonmoving party. See Anderson , 181 F.3d at 1175. A. Breach of the Implied Covenant of Good Faith Sastre argues that the district court should have r ead an implied covenant of good faith into the Compensation Plan. The Compens ation Plan provided that a sales representative did not earn advance and deliv ery commissions until Marketing had accepted the sale and Cessna had deli vered the aircraft, respectively. Cessna prepared a new Compensation P lan every year and presented it to its employees unilaterally. Under Kansas law, personnel rules that are unilater ally issued by the employer are not part of the employment contract an d therefore cannot be the basis of an implied covenant of good faith. See Buckley v. Keebler Co. , 1998 WL 314566, at *4 (10th Cir. 1998) (unpublished decisio n); Bartholomew v. City of-4-

Burlington, Kansas , 5 F. Supp.2d 1161, 1171 (D. Kan. 1998); Kastner v . Blue Cross and Blue Shield of Kansas, Inc. , 894 P.2d 909, 917 (Kan. App. 1995). Therefore, the district court correctly refused to imply a covenant of good faith on the basis of the Compensation Plan. B. Forfeiture Sastre next argues that the Compensation Plan effec ts a forfeiture in violation of Kansas law because it provides that a marketing representative does not receive the advance or delivery commission unti l Marketing accepts the sale or Cessna delivers the aircraft to the customer, re spectively. The Kansas Wage Payment Act, Kan. Stat. Ann. §§ 44. 313-327, provides that terminated employees are entitled to collect a ll of their “earned wages,” id. at § 44.315(a), including commissions, see id. at § 44.313(c). However, an employment contract may create a condition precedent to the employee’s earning of wages. See Weir v. Anaconda Co. , 773 F.2d 1073, 1084 (10th Cir. 1985); Smith v. MCI Telecommunications Corp. , 755 F. Supp. 354, 358 (D. Kan. 1990); Weinzirl v. Wells Group, Inc. , 677 P.2d 1004, 1008 (Kan. 1984). A condition precedent is something that is agreed must happen or be performe d before a right can occur to enforce the main contract. It is one without the performance of which the contract entered into betw een the parties cannot be enforced. A condition precedent requires the performance of some act or happening of some event after the te rms of the-5-

contract, including the condition precedent, have b een agreed on before the contract shall take effect. Weinzirl , 677 P.2d at 1008. The Compensation Plan creates two conditions preced ent to a marketing representative’s receipt of the advance and delivery commissions: first, Marketing must accept the transaction, and second, Cessna must deliver the aircraft to the customer. In addition, in order to receive the commissions, a sales representative must be an employee at the time the conditions precedent are satisfied. Because Sastre had not yet satisfied th e conditions precedent when he was terminated, he had not yet “earned” his commiss ions under Kan. Stat. Ann. § 44.315(a). Therefore, the district court correctlyfound that the Compensation Plan did not effect a forfeiture under the Kansas W age Payment Act. C. Unconscionability Sastre finally argues that the Compensation Plan wa s unconscionable. Under Kansas law, a contract is unconscionable if i t meets the following factors:

1. The use of printed form or boilerplate contract s drawn skillfully by the party in the strongest economic p osition, which establish industry wide standards offered on a take it or leave it basis to the party in a weaker economic position; 2. a significant cost-price disparity or excessive price; 3. a denial of basic rights and remedies to a buye r of consumer goods; 4. the inclusion of penalty clauses; 5. the circumstances surrounding the execution of the contract, including its commercial setting, its purpose and actual effect;-6- 6. the hiding of clauses which are disadvantageous to one party in a mass of fine print trivia or in places which are inconspicuous to the party signing the contract; 7. phrasing clauses in language that is incomprehe nsible to a layman or that divert his attention from the proble ms raised by them or the rights given up through them; 8. an overall imbalance in the obligations and rig hts imposed by the bargain; 9. exploitation of the underprivileged, unsophisti cated, uneducated and the illiterate; and 10. inequality of bargaining or economic power. Wille v. Southwestern Bell Tel. Co. , 549 P.2d 903, 906-07 (Kan. 1976) (citations omitted). Sastre has not shown, either in the district court or on appeal, that the Compensation Plan was a contract. Even if the Comp ensation Plan is a contract, it is not unconscionable: factors 1-3 and 7-9, reg arding consumer transactions, are not applicable, and Sastre has not presented ev idence that supports a finding of unconscionability under factors 4 (penalty claus es), 5 (circumstances of the contract’s execution), or 6 (hidden language or fin e print). The evidence supporting factor 10, that Cessna’s unilateral pres entation of the Compensation Plan to Sastre demonstrated disparate bargaining po wer, is not alone enough to raise an issue of material fact regarding unconscio nability. Accordingly, the decision of the district court is

AFFIRMED. Entered for the Court, Bobby R. Baldock Circuit Judge