* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

1 Since filing suit, Jourdan has married and changed her name to Cosman. 

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-20957

Hilda S. Jourdan

Plaintiff-Appellant

v.

Schenker International, Inc.

Defendant-Appellee

Appeal from the United States District Court

for the Southern District of Texas

(99-CV-4081)

Before JONES, Chief Judge, and GARWOOD and JOLLY, Circuit Judges.

PER CURIAM:*

Plaintiff-appellant Hilda Jourdan1 brought suit against her former

employer, defendant-appellee Schenker International, Inc. (“Schenker”), for

breach of contract arising from Schenker’s refusal to pay a sales commission

under the terms of a sales-incentive plan. A jury returned a verdict for Jourdan,

finding that she had established (1)that she was the “commissioned salesperson

designated to receive sales commissions” for the relevant account, (2) that she

United States Court of Appeals

Fifth Circuit

F I L E D

April 25, 2008

Charles R. Fulbruge III

Clerk
No. 06-20957

2 Schenker introduced a sales-incentive plan (the “Sales Plan”) on May 29, 1998, and

made the plan retroactive to January 1, 1998. Under the plan, Jourdan was entitled to

receive a sales commission on the total growth of her existing and newly acquired accounts if

that growth, measured in gross profits, exceeded three times her salary and fringe benefits.

For any amount of gross profit growth in excess ofthree times her salary and benefits, Jourdan

was entitled to a seven percent commission. For growth in gross profits in excess of four times

her salary and benefits, Jourdan was entitled to a ten percent commission.

3 Schenker and the district court refer to the account at issue as the PDVSA Account.

Jourdan refers to the account as the Bariven/PDVSA account. In an earlier opinion, this court

referred to the account as the Bariven Account. On this appeal, we will adopt the mode of the

district court and reference the PDVSA account. 

2

was not removed as “commission salesperson” from the account in August 1998,

(3) that she “was entitled under the 1998 Sales Incentive Plan to be paid 1999

commissions” on the account, and (4) that $66,773.63 was the amount she “is

owed by” Schenker “under the Schenker . . . 1998 Sales incentive Plan for” the

relevant account. The district court granted Schenker’s motion for judgment as

a matter of law. We affirm. 

Schenker, a freight-forwarding company that provides freight-delivery

services to companies worldwide, employed Jourdan as a sales representative in

its Houston office from 1989 until she was discharged in November 1999.

Jourdan was an at-will employee eligible to receive a sales commission on those

business accounts that she managed and that showed a certain growth in gross

profits.2 Jourdan was discharged from her position with Schenker on November

9, 1999, for what Schenker characterized as “lack of performance” related to her

failure to meet certain minimum quarterly sales goals for 1999. 

In 1996, Jourdan was assigned to assist in the preparation of Schenker’s

bid for the shipping business of PDVSA Services, the shipping agent for

Venezuela’s national oil company, Bariven S.A.3In April of 1998, PDVSA

accepted Schenker’s bid, and the two companies entered into a five-year contract

under which Schenker agreed to provide shipping services for PDVSA at certain

agreed rates. Jourdan was assigned to a team of Schenker employees
No. 06-20957

3

responsible for managing the account and for fulfilling PDVSA’s orders. Jourdan

worked exclusively on the PDVSA account until August 21, 1998, when she was

told by her supervisor that she was being taken off the account and that she

should resume making sales calls to obtain additional business from new and

current customers.

Until mid-1998, Schenker was losing a substantial amount of money on

the PDVSA account. After August of 1998, however, Schenker and PDVSA

renegotiated their contract to establish new rates for Schenker’s services.

Following those renegotiations, the PDVSA account began to show a profit, and

by October 1999, Schenker had earned a gross profit from the account in the

amount of $1,431,038. This suit concerns Jourdan’s claim of a right to a

commission on that profit.

On October 15, 1999, Jourdon filed her lawsuit against Schenker for its

alleged failure to pay her commissions on the PDVSA account. On April 16,

2002, the district court granted summary judgment for Schenker, finding that

the company’s alleged promise to pay a commission under the Sales Plan was

illusory, so there was no contract as a matter of law. This court, however,

reversed the district court’s grant of summary judgment on July 30, 2003.

Jourdan v. Schenker Int’l Inc., 71 F. App’x 308 (5th Cir. 2003). In that earlier

appeal, this court concluded that Schenker had not shown there was no genuine

issue of material fact with respect to the meaning of the Sales Plan, and the

court noted specifically that it had not shown there was no genuine issue of

material fact regarding when, if ever, Jourdan’s right to a commission on the

PDVSA account accrued under the Sales Plan. The case was remanded for

determination of this and other questions.

On March 14, 2006, a jury returned its above described verdict in

Jourdan’s favor.
No. 06-20957

4 Both parties agree that Texas law governs this diversity suit, and the district court

accordingly looked to the law of at-will employment in Texas to determine that Schenker’s

promise to pay a sales commission was an illusory and unenforceable one. See, e.g., Exxon

4

On October 31, 2006, the district court granted Schenker’s motion for

judgment as a matter of law, under Federal Rule of Civil Procedure 50(b).

Jourdan filed a timely appeal.

This court reviews “a district court’s Rule 50 determination de novo,

‘applying the same legal standard as the trial court.’” Cooper Indus., Inc. v.

Tarmac Roofing Sys., Inc., 276 F.3d 704, 707 (5th Cir. 2002) (quoting Flowers

v. So. Reg’l Physicians Servs. Inc., 247 F.3d 229 (5th Cir. 2001)).

The standard for granting a motion for a judgment as a matter of law

was addressed in Brown v. Kinney Shoe Corp., 237 F.3d 556, 564 (5th Cir.

2001), as follows:

“The district court properly grants a Rule 50 motion for judgment

as a matter of law only where the facts and inferences indicate a

particular outcome so strenuously that reasonable minds could

not disagree. In deciding a Rule 50 motion, the court should

consider all the evidence in the light most favorable to the

non-moving party. A jury verdict must be upheld unless there is

no legally sufficient evidentiary basis for a reasonable jury to find

as it did. Even if this court would reach a different conclusion as

trier of fact, we are not free to reweigh the evidence or to

re-evaluate credibility of witnesses.” 

The district court granted Schenker’s Rule 50 motion on three separate

grounds: (1) Jourdan presented no evidence that she told operations the

account number for PDVSA, as required by the Sales Plan; (2) Jourdan did

not present evidence sufficient to conclude that she had not been removed

from the PDVSA account in August 2008; and (3) that Jourdan did not

present evidence that her contractual right to a commission on the PDVSA

account had accrued before she was fired by Schenker. As the plaintiff in this

case, Jourdan bore the burden, under Texas law,4to prove each of these
No. 06-20957

Corp. v. Burglin, 42 F.3d 948, 950 (5th Cir. 1995) (“Federal courts apply state substantive law

‘when adjudicating diversity-jurisdiction claims . . . .’”).

5

issues because each was necessary to establish that the Sales Plan created an

enforceable agreement to pay her a commission on the PDVSA account and

that Schenker breached that agreement. See Foster v. Centrex Capital Corp.,

80 S.W.3d 140, 143-44 (Tex. App.—Austin 2002, pet. denied) (holding that a

“plaintiff has the burden to prove (1) the existence of a valid contract, (2)

performance by the plaintiff, (3) breach of the contract by the defendant, and

(4) damages sustained by the plaintiff as a result of the breach”). Therefore, if

Jourdan failed to present sufficient evidence as to any of these issues, she has

failed to carry her burden and the district court did not err by granting

Schenker’s motion for a judgment as a matter of law.

As we held on the prior appeal, Jourdan’s right to a commission for her

work on the PDVSA account depended on whether that right had accrued

before she was terminated by Schenker in November 1999 or whether it

required her to be employed until the end of that year or until the commission

would have been due to be paid. Jourdan v. Schenker Int’l Inc., 71 F. App’x

308, 311 (5th Cir. 2003). 

After a thorough review of the record, we have discovered no evidence

presented at trial that would have allowed a reasonable jury to find that

Jourdan’s commission on the PDVSA account had accrued before she was

fired in November 1999. In fact, the evidence presented at trial reflects that

Sales Plan commissions were not determined until the end of the year in

which they were earned, based on the entire year, and that employees

generally had to be currently employed in order to receive the bonus. 

For example, Jourdan testified during cross-examination that, although

the Sales Plan stated that bonuses were paid quarterly, her bonus for 1998

was paid annually in the first quarter of 1999 and she did not know of anyone
No. 06-20957

5 The district court denied Jourdan’s request to call Craig Michael Cosman as a rebuttal

witness, but it did allow Jourdan to make an offer of proof. Jourdan does not challenge this

action on appeal. Furthermore, Craig Michael Cosman’s offer of proof only shows that a

commission may have accrued at the end of the year if a salesperson was still employed, which

Jourdan was not. It does not support that a commission accrued as soon as an account

becomes profitable at any time during the year.

6

who had received a commission on a quarterly basis. This was corroborated

by defense witness Donna Hanson, Schenker’s Vice-President of Finance and

Human Resources. Ms. Hanson further testified that the Sales Plan

commissions were not “vested benefits,” that commissions were calculated at

the end of the fiscal year because gross profits could fluctuate up and down

from month to month, and that no salesperson had ever received a

commission if they were not currently employed when commissions were

paid. 

All of these statements reflect that commissions under the Sales Plan

did not accrue until at least the end of the year, and Jourdan produced no

evidence indicating that commissions became payable any sooner. Jourdan’s

trial counsel acknowledged this deficiency on the record at trial and sought

to call Craig Michael Cosman, Jourdan’s now husband and former Schenker

employee, as a rebuttal witness to testify that he was paid a sales commission

after he had left the firm on December 31, 1999.5 To support calling Craig

Michael Cosman in rebuttal, Jourdan’s trial council stated that “[t]here was

no evidence whatsoever in my case as to when commissions were paid. They

put that on in their case. Not that commissions were – that you had to be

there.” 

On appeal, Jourdan argues that the language in the Sales Plan stating

that “[s]ales incentives will be paid quarterly” provides sufficient evidence to

support the jury verdict. This language, however, is ambiguous for a number

of reasons including the fact that the Sales Plan measures commissions based

on yearly growth in gross profits. At trial, Jourdan provided no evidence to
No. 06-20957

6 Because our holding that Jourdan has failed to present evidence that her commission

had accrued before she was terminated is sufficient to affirm the district court’s ruling, we do

not address the other bases for the district court’s grant of Schenker’s motion for a judgment

as a matter of law.

7

support her position on appeal that the contract provided for the quarterly

payment of commissions in the year they were earned. As discussed above,

she actually testified that she did not know of commissions ever being paid on

a quarterly basis and that her 1998 bonus was not paid until the beginning of

1999. Absent any supporting evidence, her argument that the contract

language alone was sufficient evidence to allow a reasonable jury to find that

her bonus had already accrued by November 1999 falls short.

Jourdan also argues that it would have been possible to pay

commissions on a quarterly basis because Schenker reported gross profit

monthly and provided this information to salespeople so they could monitor

their accounts and their progress toward their quarterly sales targets. While

this is true, it is immaterial to the issue on when sales commissions actually

accrued. Schenker Vice President Donna Hanson testified that commissions

were determined at the end of the year because they were based on annual

growth in gross profits, which could fluctuate throughout the year, so the

actual amount of the commission could not be determined until the end of the

year. Jourdan presented no evidence at trial to refute this point.

For these reasons, we hold that Jourdan failed to present any evidence

from which a reasonable jury could have concluded that her commission

accrued before she was terminated. Consequently, Jourdan did not carry her

burden of proof. 6

For the foregoing reasons, the district court did not err by granting

Schenker’s motion for a judgment as a matter of law. 

AFFIRMED.
No. 06-20957

8