Dorothea Bragg, on Behalf of Herself and All Others Similarly Situated v. Kittle's Home Furnishings, Inc. ( 2016 )


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  •                                                                                      FILED
                                                                                     Apr 11 2016, 9:20 am
    
                                                                                         CLERK
                                                                                     Indiana Supreme Court
                                                                                        Court of Appeals
                                                                                          and Tax Court
    
    
    
    
          ATTORNEY FOR APPELLANTS                                     ATTORNEYS FOR APPELLEE
          Ronald E. Weldy                                             Bonnie L. Martin
          Weldy Law                                                   Steven F. Pockrass
          Indianapolis, Indiana                                       Ogletree, Deakins, Nash, Smoak &
                                                                      Stewart, P.C.
                                                                      Indianapolis, Indiana
    
    
    
                                                       IN THE
              COURT OF APPEALS OF INDIANA
    
          Dorothea Bragg, on Behalf of                                April 11, 2016
          Herself and All Others Similarly                            Court of Appeals Case No.
          Situated,                                                   49A02-1506-PL-653
          Appellants-Plaintiffs,                                      Appeal from the Marion Superior
                                                                      Court
                  v.                                                  The Honorable Heather A. Welch
                                                                      Trial Court Cause No.
          Kittle’s Home Furnishings, Inc.,                            49D01-1406-PL-18569
          Appellee-Defendant.
    
    
    
    
          Bradford, Judge.
    
    
    
                                                Case Summary
    [1]   Appellant-Plaintiff Dorothea Bragg was employed as a retail sales consultant by
    
          Appellee-Defendant Kittle’s Home Furnishings, Inc. (“Kittle’s”) from
    
          November of 2011 until September of 2013. Pursuant to the terms of Bragg’s
          Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016                           Page 1 of 36
          employment, Bragg earned a regular bi-weekly salary. She also had the
    
          potential to earn additional compensation, in the form of commission, if she
    
          completed a certain level of delivered sales. Bragg voluntarily terminated her
    
          employment at Kittle’s in September of 2013.
    
    
    [2]   On June 4, 2014, Bragg, both on behalf of herself and on behalf of a proposed
    
          class of unknown current and former Kittle’s employees (the “unknown
    
          purported class members”), filed a lawsuit against Kittle’s. In this lawsuit,
    
          Bragg alleged that Kittle’s had failed to pay its employees earned commissions
    
          within the ten-day limit set forth in the Indiana Wage Payment Statute (the
    
          “Wage Payment Statute”). Of note, Bragg did not allege that Kittle’s had failed
    
          to pay her or any of the other unknown purported class members any
    
          commissions actually earned by the employees, only that Kittle’s failed to do so
    
          within the ten-day limit set forth in the Wage Payment Statute.
    
    
    [3]   Kittle’s subsequently filed a motion to dismiss the lawsuit. With respect to the
    
          claims relating to any of the unknown purported class members whose
    
          employment had been involuntarily terminated by Kittle’s, the trial court
    
          granted Kittle’s motion to dismiss for lack of subject matter jurisdiction. With
    
          respect to the claims relating to Bragg, and seemingly any potential remaining
    
          unknown purported class members, the trial court converted Kittle’s motion to
    
          dismiss into a motion for summary judgment. After the parties submitted
    
          designated evidence and legal argument in support on their position on Kittle’s
    
          motion for summary judgment, the trial court granted summary judgment in
    
          favor of Kittle’s.
    
          Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016   Page 2 of 36
    [4]   Upon review, we conclude that (1) the trial court lacked subject matter
    
          jurisdiction over the claims raised on behalf of any unknown purported class
    
          members whose employment with Kittle’s was involuntarily terminated
    
          because said unknown purported class members failed to first submit their
    
          claims to the Indiana Department of Labor (“DOL”) as required by the Indiana
    
          Wage Claims Statute (“Wage Claims Statute”); (2) the trial court did not abuse
    
          its discretion in denying certain discovery requests made by Bragg. We
    
          therefore affirm the judgment of the trial court; and (3) the trial court properly
    
          granted summary judgment in favor of Kittle’s on the claims raised by Bragg
    
          and any remaining unknown purported class members because the ten-day time
    
          limit set forth in the Wage Payment Statute did not apply to the commissions at
    
          issue as said commissions did not qualify as wages under the Wage Payment
    
          Statute.
    
    
    
                                 Facts and Procedural History
    [5]   Beginning on or about November 29, 2011, Bragg was employed as a retail
    
          sales consultant at the Kittle’s store located in Fort Wayne. Bragg continued to
    
          be employed by Kittle’s until she resigned from her position on September 1,
    
          2013.
    
    
    [6]   As a retail sales consultant, Bragg received “chargeable draws toward
    
          anticipated future commissions on a bi-weekly basis.” Appellee’s App. p. 36.
    
          These “draws” were based on the number of hours Bragg worked each week
    
          “multiplied by a pre-determined rate per hour, thus providing her with a regular
    
          Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016   Page 3 of 36
          and predictable stream of income every two weeks.” Appellee’s App. p. 36.
    
          The draws were considered “chargeable” because “they counted toward the
    
          commissions that Bragg received based on her delivered sales for the prior
    
          month.” Appellee’s App. p. 36. “In the event that the commissions calculated
    
          on Bragg’s delivered sales for the prior month … exceeded her chargeable draw,
    
          [Bragg] received the excess in the form of a commission check.” Appellee’s
    
          App. p. 36. If the amount of delivered sales did not exceed Bragg’s chargeable
    
          draw, “then [Bragg] would not have received a commission check that month,
    
          but Kittle’s also would not have required her to write a check or make some
    
          other form of payment to Kittle’s that month to cover the difference, nor would
    
          Kittle’s have reduced her future draws.” Appellee’s App. p. 36.
    
    
    [7]   It is undisputed that Bragg received commission payments on July 27, 2012,
    
          August 24, 2012, September 21, 2012, October 16, 2012, November 16, 2012,
    
          December 28, 2012, January 25, 2013, February 22, 2013, March 22, 2013,
    
          April 19, 2013, May 17, 2013, June 28, 2013, July 26, 2013, August 23, 2013,
    
          September 20, 2013, and October 18, 2013. It is also undisputed that on these
    
          dates, Kittle’s paid all commissions owed to Bragg.
    
    
    [8]   On June 4, 2014, Bragg filed a complaint for damages, alleging a purported
    
          class action under the Wage Payment Statute on behalf of current and former
    
          employees of Kittle’s who had received “late payments of commissions on or
    
          after May 30, 2012.” Appellee’s App. p. 3. Bragg was the only named plaintiff
    
          identified. The complaint did not allege that any amounts remained unpaid as
    
          of the date of the initiation of the law suit. The complaint also did not indicate
    
          Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016   Page 4 of 36
           that Bragg or any of the unknown purported class members received a referral
    
           from the DOL for his or her claims.
    
    
    [9]    On August 13, 2014, Kittle’s filed a motion to dismiss Bragg’s complaint. In
    
           this motion, Kittle’s sought dismissal on the grounds that the trial court lacked
    
           subject matter jurisdiction over the claims of any involuntarily terminated
    
           unknown purported class members who failed to exhaust the administrative
    
           remedies provided by the DOL. Kittle’s also sought dismissal on the grounds
    
           that Bragg’s commissions did not qualify as wages under the Wage Payment
    
           Statute. On October 27, 2014, the trial court issued an order converting the
    
           portion of Kittle’s motion to dismiss relating to the issue of whether Bragg’s
    
           commissions qualified as wages under the Wage Payment Statute to a motion
    
           for summary judgment and allowed the parties to conduct discovery on the
    
           wage issue for summary judgment briefing.1
    
    
    [10]   The trial court scheduled a hearing on Kittle’s motion to dismiss for December
    
           5, 2014. Approximately five days before the hearing, on Sunday, November
    
           30, 2014, Bragg issued subpoenas to certain DOL personnel to appear at the
    
           December 5, 3014 hearing. Bragg sought to have the DOL personnel give
    
           testimony, which she believed might provide evidence which could be used in
    
           opposition to Kittle’s motion to dismiss. On December 4, 2014, the Indiana
    
    
    
    
           1
            This ruling would also seem to apply to the claims of any unknown purported class members
           who were either employed by Kittle’s at the time Bragg initiated the instant lawsuit or who
           had voluntarily terminated their employment at Kittle’s.
    
           Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016        Page 5 of 36
           Attorney General’s Office filed a motion to quash the subpoenas. The trial
    
           court subsequently vacated the December 5, 2014 hearing date.
    
    
    [11]   On December 10, 2014, the trial court granted the Attorney General’s motion
    
           to quash. Bragg filed a motion to reconsider this order on January 5, 2015.
    
           The trial court denied Bragg’s motion to reconsider on January 9, 2015. Bragg
    
           filed a motion requesting permission to depose the DOL personnel on January
    
           29, 2015. This request was denied by the trial court on February 2, 2015.
    
    
    [12]   On March 13, 2015, the trial court issued an order granting the motion of
    
           Kittle’s to dismiss with respect to any unknown purported class members whose
    
           employment was involuntarily terminated, finding it lacked subject matter
    
           jurisdiction over such claims. On May 18, 2015, the trial court granted
    
           summary judgment in favor of Kittle’s, finding that, as a matter of law, the
    
           commissions paid to Bragg did not qualify as wages under the Wage Payment
    
           Statute.2 This appeal follows.
    
    
    
                                       Discussion and Decision
    [13]   On appeal, Bragg challenges the trial court’s order dismissing the claims raised
    
           on behalf of the unknown purported class members whose employment was
    
           involuntarily terminated by Kittle’s. Bragg alternatively challenges the trial
    
    
    
    
           2
            Again, this ruling would also seemingly apply to any remaining unknown purported class
           members.
    
           Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016        Page 6 of 36
           court’s denial of a discovery request made on behalf of the unknown purported
    
           class members whose employment was involuntarily terminated by Kittle’s.
    
           Bragg last challenges the trial court’s order granting summary judgment in favor
    
           of Kittle’s as to her claim against Kittle’s and those raised by any remaining
    
           unknown purported class members. We will review each challenge separately.
    
    
                                             I. Motion to Dismiss
    [14]   Bragg, on behalf of the unknown purported class members whose employment
    
           was involuntarily terminated by Kittle’s, challenges the trial court’s order
    
           granting Kittle’s motion to dismiss. “Our review of a trial court’s ruling on an
    
           Indiana Trial Rule 12(B)(1) motion to dismiss where the facts before the trial
    
           court are undisputed, as here, is de novo.” Hollis v. Def. Sec. Co., 
    941 N.E.2d 536
    , 537 (Ind. Ct. App. 2011) (citing Reel v. Clarian Health Partners, Inc., 
    917 N.E.2d 714
    , 717-18 (Ind. Ct. App. 2009), trans. denied), trans. denied.
    
    
    [15]   In granting Kittle’s motion to dismiss, the trial court found that it did not have
    
           subject matter jurisdiction over any unknown purported class members whose
    
           employment with Kittle’s was involuntarily terminated, because said unknown
    
           purported class members had failed to exhaust their administrative remedies
    
           pursuant to the Wage Claims Statute before filing the underlying lawsuit. In
    
           challenging the trial court’s order, Bragg claims that the unknown purported
    
           class members were not required to exhaust any administrative remedies
    
           because they properly brought suit under the Wage Payment Statute, rather
    
           than the Wage Claims Statute. Bragg alternatively argues that the failure to
    
    
           Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016   Page 7 of 36
           exhaust administrative remedies should be excused because the exercise of the
    
           applicable administrative remedies would be futile.
    
    
             A. Whether the Wage Payment Statute or the Wage Claims
                                Statute Applies
    [16]   Bragg claims that the trial court erroneously determined that the Wage Claims
    
           Statute applies to any unnamed purported class members whose employment
    
           with Kittle’s was involuntarily terminated. In raising this claim, Bragg asserts
    
           that the question of which statute applies “is a matter of first impression
    
           because the issue has barely been analyzed to date by any appellate court.”
    
           Appellant’s Br. p. 15. However, we find this assertion curious, to say the least,
    
           because even a cursory review of relevant Indiana authority indicates that the
    
           appellate courts have considered this issue, on the merits, on numerous
    
           occasions. See Treat v. Tom Kelley Buick Pontiac GMC, Inc., 
    646 F.3d 487
    , 489-
    
           492 (7th Cir. 2011); Walczak v. Labor Works-Ft. Wayne LLC, 983, N.E.2d 1146,
    
           1149 (Ind. 2013); St. Vincent Hosp. and Health Care Center, Inc. v. Steele, 
    766 N.E.2d 699
    , 705 (Ind. 2002); Hollis, 941 N.E.2d at 537-540; Gavin v. Calcars AB,
    
           Inc., 
    938 N.E.2d 1270
    , 1271-72 (Ind. Ct. App. 2010), trans. denied. The
    
           assertion is also curious because counsel for Bragg was also counsel of record
    
           on at least three of the prior cases where this specific issue has been analyzed by
    
           appellate courts, and therefore would have first-hand knowledge that this issue
    
           had, in fact, been decided. See Treat, 646 F.3d at 489-492; Hollis, 941 N.E.2d at
    
           537-540; Gavin, 938 N.E.2d at 1271-72.
    
    
    
           Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016    Page 8 of 36
    [17]   Be that as it may, in considering whether the Wage Payment Statute or the
    
           Wage Claims Statute applies to a plaintiff’s claim, the Indiana Supreme Court
    
           determined that “[a]lthough both the Wage Claims Statute and the Wage
    
           Payment Statute set forth two different procedural frameworks for wage
    
           disputes, each statute applies to different categories of claimants.” Steele, 766
    
           N.E.2d at 705; see also Hollis, 941 N.E.2d at 538-540; Gavin, 938 N.E.2d at 1272.
    
           In reaching this determination, the Indiana Supreme Court observed that:
    
    
                   The Wage Claims Statute references employees who have been
                   separated from work by their employer and employees whose
                   work has been suspended as a result of an industrial dispute. I.C.
                   § 22-2-9-2(a)(b). By contrast, the Wage Payment Statute
                   references current employees and those who have voluntarily left
                   employment, either permanently or temporarily. I.C. § 22-2-5-
                   1(b).
    
    
           Steele, 766 N.E.2d at 705. We have subsequently applied the Indiana Supreme
    
           Court’s decision in Steele in both Hollis and Gavin. See Hollis, 941 N.E.2d at 538-
    
           540; Gavin, 938 N.E.2d at 1272.
    
    
    [18]   Further, in reviewing the relevant Indiana authority regarding whether the
    
           Wage Payment Statute or Wage Claims Statute applied to a plaintiff’s claim,
    
           the Seventh Circuit has noted that “both of these statutes, and questions about
    
           their application, have received substantial attention from the Indiana state
    
           courts.” Treat, 646 F.3d at 488. The Seventh Circuit cited to the Indiana
    
           Supreme Court’s decision in Steele and our conclusions in Hollis and Gavin,
    
           stating:
    
    
           Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016   Page 9 of 36
                   The language of the Indiana Code suggests, and the Indiana state
                   courts have repeatedly confirmed, that the [Wage] Payment
                   Statute provides an avenue for relief to employees seeking unpaid
                   wages who voluntarily leave their employment or who remain
                   employed and whose wages are overdue. The [Wage] Claims
                   Statute, on the other hand, applies to employees seeking unpaid
                   wages after their employer has fired them.
    
    
           Id. at 490.
    
    
    [19]   Contrary to Bragg’s claim, multiple appellate tribunals have considered whether
    
           the Wage Payment Statute or the Wage Claims Statute applies to a plaintiff’s
    
           cause of action. Each of these tribunals makes it clear that an employee’s status
    
           at the time he or she files the claim is the relevant inquiry in determining
    
           whether to proceed under the Wage Payment Statute or the Wage Claims
    
           Statute. See Treat, 646 F.3d at 489-492; Walczak, 983, N.E.2d at 1149; Steele,
    
           766 N.E.2d at 705; Hollis, 941 N.E.2d at 537-540; Gavin, 938 N.E.2d at 1271-
    
           72. Thus, where a potential plaintiff’s employment was involuntarily
    
           terminated by their former employer, the applicable authority is clear, the Wage
    
           Claims Statute applies. See Treat, 646 F.3d at 489-492; Hollis, 941 N.E.2d at
    
           537-540; Gavin, 938 N.E.2d at 1271-72.
    
    
    [20]   Therefore, we conclude that the Wage Claims Statute applies to the unknown
    
           purported class members whose employment was involuntarily terminated by
    
           Kittle’s. These unknown purported class members were therefore required to
    
           exhaust the administrative remedy provided in the Wage Claims Statute by first
    
           submitting their claims to the DOL. Steele, 766 N.E.2d at 705. They did not do
    
    
           Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016   Page 10 of 36
           so. Instead, Bragg, again on behalf of these unknown purported class members,
    
           improperly filed a complaint based on the Wage Payment Statute in the trial
    
           court. Because these unknown purported class members did not first submit
    
           their claims to the DOL as is required by the Wage Claims Statute, we conclude
    
           the trial court properly dismissed the claims raised by Bragg on behalf of the
    
           unknown purported class members whose employment was involuntarily
    
           terminated by Kittle’s. See Hollis, 941 N.E.2d at 540 (providing that because the
    
           Wage Claim Statute applied to plaintiff’s claims and plaintiff did not allege any
    
           Wage Claims Statute claims or submit his claims to the DOL, the trial court
    
           properly dismissed plaintiff’s claims).
    
    
               B. Whether Failure to Exhaust Administrative Remedies
                                Should Be Excused
    [21]   Again, plaintiffs who proceed under the Wage Claims Statute may not file a
    
           complaint with the trial court but rather must first submit a claim to the DOL.
    
           Lemon v. Wishard Health Servs., 
    902 N.E.2d 297
    , 300 (Ind. Ct. App. 2009), trans.
    
           denied. Once a claim has been submitted to the DOL, the DOL’s responsibility
    
           is described as follows:
    
                   (a) It shall be the duty of the commissioner of labor to enforce
                   and to insure compliance with the provisions of this chapter, to
                   investigate any violations of any of the provisions of this chapter,
                   and to institute or cause to be instituted actions for penalties and
                   forfeitures provided under this chapter. The commissioner of
                   labor may hold hearings to satisfy himself as to the justice of any
                   claim, and he shall cooperate with any employee in the
                   enforcement of any claim against his employer in any case
                   whenever, in his opinion, the claim is just and valid.
           Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016   Page 11 of 36
                   (b) The commissioner of labor may refer claims for wages under this
                   chapter to the attorney general, and the attorney general may initiate
                   civil actions on behalf of the [plaintiff] or may refer the claim to any
                   attorney admitted to the practice of law in Indiana. The provisions of
                   IC 22-25-2 apply to civil actions initiated under this subsection by
                   the attorney general or his designee.
    
    
           Id. (quoting Ind. Code § 22-2-9-4) (emphasis in original). “It is evident that the
    
           Wage Claims Act contemplates that a [plaintiff] must approach the DOL before
    
           he or she is entitled to file a lawsuit in court to seek unpaid wages or penalties.”
    
           Id. “The DOL is then entitled to investigate the claim and refer the claim to the
    
           Attorney General, who may either institute an action on the [plaintiff’s] behalf
    
           or refer the claim to an attorney.” Id. at 300-01.
    
    
    [22]   In concluding that a plaintiff seeking redress pursuant to the Wage Claims
    
           Statute must first submit the claim to the DOL before filing a lawsuit in court,
    
           we observed that “[t]he statute makes it clear that a claim must work its way
    
           through the proper channels—the DOL and, if need be, the Attorney General—
    
           before it may be brought into court.” Id. at 301. We further observed that “the
    
           plain language of the Wage Claims [Statute] requires that the letter be
    
           obtained—and the administrative process followed—before the lawsuit is filed.”
    
           Id. at 302.
    
    
    [23]   We applied our conclusion in Lemon to our opinion in Reel v. Clarian Health
    
           Partners, Inc., 
    917 N.E.2d 714
    , 720 (Ind. Ct. App. 2009), trans. denied, in which
    
           we stated the following:
    
    
           Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016      Page 12 of 36
                   We agree with Lemon that a [plaintiff] seeking redress pursuant to
                   the Wage Claims Statute must first submit the claim to the DOL
                   before he or she is entitled to file a lawsuit in court and that the
                   act of filing a putative class action does not enable the putative
                   class members to subvert the statutory requirements. Therefore,
                   we conclude that the trial court properly granted Clarian’s Trial
                   Rule 12(B)(1) motion to dismiss the purported wages claims of
                   the proposed class of plaintiffs who had not sought review and
                   referral pursuant to Indiana Code section 22-2-9-4. That is,
                   because these proposed class members did not first pursue
                   administrative proceedings, the trial court did not have subject
                   matter jurisdiction over their purported wage claims.
    
    
           (Footnote omitted).
    
    
    [24]   Despite our conclusions in Lemon and Reel, Bragg argues that the unknown
    
           purported class members’ failure to first submit any potential claims to the
    
           DOL should be excused.3 In support of this argument, Bragg asserts that
    
           submitting the potential claims to the DOL would be futile. We disagree.
    
    
    [25]   In making the futility argument, Bragg cites to our opinion in Fox v. Nichter
    
           Construction Co., 
    978 N.E.2d 1171
     (Ind. Ct. App. 2012), reh’g denied. In Fox, we
    
           outlined the DOL’s policies and powers, stating, in relevant part, the following:
    
                   According to the DOL … [b]y statute, when the wage claim is
                   submitted to the DOL it then becomes “the duty of the
                   commissioner of labor to enforce and to insure compliance with
    
    
    
           3
             We note that counsel for Bragg was also counsel for the plaintiffs involved in both Lemon
           and Reel. See Lemon, 902 N.E.2d at 298; Reel, 917 N.E.2d at 715.
    
    
    
           Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016          Page 13 of 36
            the provisions of this chapter, to investigate any violations of any
            of the provision of this chapter, and to institute or cause to be
            instituted actions for penalties and forfeitures provided under this
            chapter.” Ind. Code § 22-2-9-4(a). The DOL Commissioner
            may exercise the duty, or “may refer claims for wages under this
            chapter to the attorney general, and the attorney general may
            institute civil actions on behalf of the claimant or may refer the
            claim to any attorney admitted to the practice of law in Indiana.”
            Ind. Code § 22-2-9-4(b).
    
            If the DOL chooses to resolve the claim instead of making a
            referral … the DOL notifies the employer of the claim in
            writing…. If neither the [plaintiff] nor the DOL receives a
            response from the employer [within two weeks], then a final
            notice is sent to the employer providing for a one-week period of
            time in which to respond. [Indiana Department of Labor, Online
            Wage Claim Form, http://www.in.gov//dol/2734.htm (last
            visited Oct. 3, 2012)]. If the employer fails to respond to the final
            notice, then the DOL sends a copy of the wage claim file to the
            [plaintiff] along with a letter recommending that the [plaintiff]
            consult with an attorney or pursue the claim in court. Id.
    
            If the employer disputes the claim, however, the DOL will make
            a determination based upon the law and the documentation
            provided by the parties. Id. … It is the DOL’s position that the
            determination does not represent formal findings, nor is it
            binding on the parties. If the DOL cannot make a determination,
            the [plaintiff] “will receive notice along with a letter
            recommending that [he or she] consult an attorney or pursue
            [the] claim in the appropriate court.” Id.
    
            The DOL contends that it does not provide a formal claim
            resolution process and is not required to do so by law. The DOL
            considers the administrative process it provides to be more in the
            nature of mediation than a formal administrative review, and is
            not subject to judicial review.
    
    
    Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016   Page 14 of 36
            Although the [plaintiffs] who are involuntarily separated from
            their employment must submit their claim to the DOL first
            before proceeding to court, it is the DOL’s practice to accept all
            claims regardless of whether they arise under the Wage Claims
            Statute or the Wage Payment Statute. [Steele], 766 N.E.2d at 705
            (claimant under Wage Claims Statute must submit claim first
            with DOL). The DOL has adopted this approach because it is
            consistent with the DOL’s statutory authority and promotes
            judicial economy by allowing all wage claimants the opportunity
            to resolve their wage disputes at the administrative level first.…
            The DOL argues that it benefits both the parties and trial courts
            to allow all [plaintiffs] to attempt to resolve their disputes
            administratively. When the DOL is able to resolve the claims to
            the satisfaction of both the [plaintiff] and the employer, then
            there is no need to present the claim in court.
    
                                                      ****
    
            The DOL’s position is that when it is unable to resolve the claim,
            the claimant “will receive notice along with a letter
            recommending [he or she] consult an attorney or pursue [the]
            claim in the appropriate court.” Indiana Department of Labor,
            Online Wage Claim Form, http://www.in.gov//dol/2734.htm
            (last visited Oct. 3, 2012).
    
    
    Id. at 1177-78 (some brackets in original, some added). Bragg points to the
    
    above-quoted language and claims that “[g]iven that the DOL has no
    
    investigative or enforcement apparatus, then if any of the proposed
    
    involuntarily separated Class Members had filed their claims with the DOL,
    
    then it would clearly had not benefited them in any manner. The DOL could
    
    not provide these wage claimants with a remedy or otherwise perform any
    
    meaningful task with regard to their wage claims.” Appellant’s Br. p. 23. We,
    
    however, find Bragg’s interpretation of Fox to be inaccurate.
    
    Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016   Page 15 of 36
    [26]   Contrary to Bragg’s interpretation, we read Fox to provide that once a claim is
    
           submitted to the DOL, the DOL has the power to work with the parties to try to
    
           resolve the claim, refer the matter to the attorney general, or provide the
    
           plaintiff with a recommendation to pursue the matter in the appropriate court.
    
           Each of these actions can provide a benefit to the plaintiff. Further, we observe
    
           that in attempting to resolve matters, the DOL acts in a manner similar to a
    
           mediator and engages in efforts to help the parties resolve their dispute without
    
           the need for litigation. The DOL’s policies and procedures promote judicial
    
           economy by allowing all wage claimants the opportunity to resolve their wage
    
           disputes at the administrative level first before engaging in the often time-
    
           consuming and expensive process of litigation. As such, we cannot agree with
    
           Bragg’s broad assertion that submission of any claims brought under the Wage
    
           Claims Statute to the DOL would be futile.
    
    
    [27]   For the foregoing reasons, we decline Bragg’s request to excuse the unknown
    
           purported class members’ failure to first submit their possible claims to the
    
           DOL. As we concluded in Reel, we again conclude that in light of the unknown
    
           purported class members’ failure to exhaust their administrative remedies, the
    
           trial court did not have subject matter jurisdiction over the purported wage
    
           claims at issue. 917 N.E.2d at 720. We therefore further conclude that the trial
    
           court properly granted the Trial Rule 12(B)(1) motion by Kittle’s to dismiss the
    
           claims raised on behalf of the unknown purported class members whose
    
           employment was involuntarily terminated by Kittle’s. See id.
    
    
    
    
           Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016   Page 16 of 36
                                  II. Denial of Discovery Request
    [28]   Bragg alternatively argues that the trial court abused its discretion in denying
    
           her request to depose certain DOL personnel in an attempt to gain evidence
    
           which she believes may have bolstered her futility argument.
    
                   A trial court has broad discretion in ruling upon discovery issues,
                   and we will interfere only where an abuse of discretion is
                   apparent. [Brown v. Dobbs, 
    691 N.E.2d 907
    , 909 (Ind. Ct. App.
                   1998)]. An abuse of discretion occurs only where the trial court’s
                   decision is against the logic and natural inferences to be drawn
                   from the facts of the case. Id. Due to the fact-sensitive nature of
                   discovery matters, a trial court’s ruling is cloaked with a strong
                   presumption of correctness on appeal. Id.
    
    
           Riggin v. Rea Riggin & Sons, Inc., 
    738 N.E.2d 292
    , 308 (Ind. Ct. App. 2000).
    
    
    [29]   Bragg fails to point to any specific information which she believes that she
    
           would have been likely to gain by deposing the requested DOL personnel.
    
           Instead, her request seems to represent little more than a fishing expedition for
    
           some unknown piece of information which may, or may not, exist. As such,
    
           we conclude that the trial court did not abuse its discretion in denying Bragg’s
    
           request to depose certain DOL personnel in an attempt to gain evidence which
    
           she believes may have bolstered her futility argument.4
    
    
    
    
           4
             Because we conclude that the trial court did not abuse its discretion in denying Bragg’s
           request to depose certain requested DOL personnel, we need not consider Bragg’s alternative
           argument that the trial court could have converted the motion by Kittle’s to dismiss to a
    
           Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016         Page 17 of 36
                                   III. Summary Judgment Order
    [30]   Initially, we note that our analysis below is framed as whether the commissions
    
           paid to Bragg qualified as wages under the Wage Payment Statute. The same
    
           analysis, however, would apply to the commissions earned by any possible
    
           remaining unknown purported class member who was either employed by
    
           Kittle’s at the time Bragg filed the underlying lawsuit or who voluntarily
    
           terminated their employment at Kittle’s. Therefore, our resolution of Bragg’s
    
           claims also resolves any claims raised on behalf of any possible remaining
    
           unknown purported class members.
    
    
                                            A. Standard of Review
    [31]           The purpose of summary judgment is to terminate litigation
                   about which there can be no factual dispute and which may be
                   determined as a matter of law. Bushong v. Williamson, 
    790 N.E.2d 467
     (Ind. 2003). On appeal, our standard of review is the
                   same as that of the trial court. Summary judgment is appropriate
                   only where the evidence shows there is no genuine issue of
                   material fact and the moving party is entitled to judgment as a
                   matter of law. Olds v. Noel, 
    857 N.E.2d 1041
     (Ind. Ct. App.
                   2006). “All inferences from the designated evidence are drawn in
                   favor of the nonmoving party.” Hartman v. Keri, 
    883 N.E.2d 774
    ,
                   777 (Ind. 2008).
    
    
           McCausland v. Walter USA, Inc., 
    918 N.E.2d 420
    , 423-24 (Ind. Ct. App. 2009).
    
           Review of an order granting summary judgment is limited to those materials
    
    
    
    
           motion for summary judgment if it had permitted Bragg to depose the requested DOL
           personnel.
    
           Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016      Page 18 of 36
           designated in the trial court. Naugle v. Beach Grove City Schs., 
    864 N.E.2d 1058
    ,
    
           1062 (Ind. 2007). While specific findings of fact and conclusions thereon are
    
           not required, such findings, although not binding, may nonetheless aid our
    
           review of a trial court’s summary judgment order. Quezare v. Byrider Fin., Inc.,
    
           
    941 N.E.2d 510
    , 513 (Ind. Ct. App. 2011), trans. denied. Further, we may affirm
    
           a trial court’s order granting a motion for summary judgment on any grounds
    
           supported by the designated materials. Id.
    
    
                                      B. The Wage Payment Statute
    [32]   The Wage Payment Statute, which is codified at Indiana Code sections 22-2-5-1
    
           through 22-2-5-3, governs both the amount and the frequency with which an
    
           employer must pay its employees. McCausland, 918 N.E.2d at 424 (citing
    
           Naugle, 864 N.E.2d at 1062)). Specifically, Indiana Code section 22-2-5-1
    
           provides, in relevant part, as follows:
    
    
                   (a) Every person, firm, corporation, limited liability company, or
                   association, their trustees, lessees, or receivers appointed by any
                   court, doing business in Indiana, shall pay each employee at least
                   semimonthly or biweekly, if requested, the amount due the
                   employee. The payment shall be made in lawful money of the
                   United States, by negotiable check, draft, or money order, or by
                   electronic transfer to the financial institution designated by the
                   employee. Any contract in violation of this subsection is void.
    
                   (b) Payment shall be made for all wages earned to a date not
                   more than ten (10) business days prior to the date of payment.
    
    
           Indiana Code section 22-2-5-2 provides that if an employer fails to comply with
    
           the ten-day requirement set forth in Indiana Code section 22-2-5-1(b):
           Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016   Page 19 of 36
                   Every such person, firm, corporation, limited liability company,
                   or association who shall fail to make payment of wages to any
                   such employee as provided in section 1 of this chapter shall be
                   liable to the employee for the amount of unpaid wages, and the
                   amount may be recovered in any court having jurisdiction of a
                   suit to recover the amount due to the employee. The court shall
                   order as costs in the case a reasonable fee for the plaintiff’s
                   attorney and court costs. In addition, if the court in any such suit
                   determines that the person, firm, corporation, limited liability
                   company, or association that failed to pay the employee as
                   provided in section 1 of this chapter was not acting in good faith,
                   the court shall order, as liquidated damages for the failure to pay
                   wages, that the employee be paid an amount equal to two (2)
                   times the amount of wages due the employee.
    
    
                 C. Whether Commission Earned by Bragg Qualifies as
                     “Wages” Under the Wage Payment Statute
    [33]   In claiming that the trial court erred in granting summary judgment in favor of
    
           Kittle’s, Bragg argues that the designated evidence raises an issue of material
    
           fact as to whether Kittle’s violated the ten-day rule set forth in the Wage
    
           Payment Statute by failing to pay Bragg certain commissions within the
    
           required ten-day period. Kittle’s, for its part, argues that no issue of material
    
           fact remains because the commissions at issue did not qualify as wages under
    
           the Wage Payment Statute. Our resolution of this claim on appeal therefore
    
           turns on the question of whether, as a matter of law, Bragg’s commissions
    
           constituted wages as the term is used in the Wage Payment Statute.
    
    
    [34]   Although the Wage Payment Statute does not define the term wages, the Wage
    
           Claims Act, again, codified at Indiana Code sections 22-2-9-1 through 22-2-9-8,
    
    
           Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016   Page 20 of 36
    defines the term wages as follows: “all amounts at which the labor or service
    
    rendered is recompensed, whether the amount is fixed or ascertained on a time,
    
    task, piece, or commission basis, or in any other method of calculating such
    
    amount.”5 It is well-established that in determining whether a method of
    
    compensation constitutes wages for purposes of the Wage Payment Statute, the
    
    name given to the method of compensation is not controlling. See Thomas v. H
    
    & R Block E. Enters., Inc., 
    630 F.3d 659
    , 664 (7th Cir. 2011); Sheaff Brock Inv.
    
    Advisors, LLC v. Morton, 
    7 N.E.3d 278
    , 285 (Ind. Ct. App. 2014); Quezare, 941
    
    N.E.2d at 514; McCausland, 918 N.E.2d at 424; Davis v. All Am. Siding &
    
    Windows, Inc., 
    897 N.E.2d 936
    , 943 (Ind. Ct. App. 2008), trans. denied; Kopka,
    
    Landau & Pinkus v. Hansen, 
    874 N.E.2d 1065
    , 1072 (Ind. Ct. App. 2007); Gress v.
    
    Fabcon, Inc., 
    826 N.E.2d 1
    , 3 (Ind. Ct. App. 2005).
    
    
            Rather, we will consider the substance of the compensation to
            determine whether it is a wage, and therefore subject to the Wage
            Payment Statute. [Gurnik v. Lee, 
    587 N.E.2d 706
    , 709 (Ind. Ct.
            App. 1992)]. We have recognized that wages are “something
            akin to the wages paid on a regular periodic basis for regular
            work done by the employee....” Wank v. St. Francis College, 
    740 N.E.2d 908
    , 912 (Ind. Ct. App. 2000). In other words, if
            compensation is not linked to the amount of work done by the
            employee or if the compensation is based on the financial success
    
    
    
    
    5
      As is discussed above, the Wage Claims Act relates to disputes over wages owed to an
    employee whose employment has been terminated or suspended as a result of a labor dispute.
    See Ind. Code § 22-2-9-2.
    
    Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016      Page 21 of 36
                   of the employer, it is not a “wage.” Pyle v. Nat’l Wine & Spirits
                   Corp., 
    637 N.E.2d 1298
    , 1300 (Ind. Ct. App. 1994).
    
    
           Gress, 826 N.E.2d at 3. “Moreover, because the Wage Payment Statute
    
           imposes a penalty when wages are not paid within ten days of the date they are
    
           ‘earned,’ it is not practical to apply the statute to payments that cannot be
    
           calculated within ten days after being earned.” McCausland, 918 N.E.2d at 424
    
           (citing Highhouse v. Midwest Orthopedic Inst., 
    807 N.E.2d 737
    , 740 (Ind. 2004)).
    
    
    [35]   In Thomas, the United States Court of Appeals for the Seventh Circuit (the
    
           “Seventh Circuit”) noted that “Indiana courts consider a variety of factors to
    
           guide their determination of whether compensation … constitutes a wage.” 630
    
           F.3d at 664. For instance, the Seventh Circuit noted that “Indiana courts are
    
           more likely to find compensation a wage if it is ‘not linked to a contingency.’”
    
           Id. (quoting Naugle, 864 N.E.2d at 1067). In this vein, the Seventh Circuit
    
           noted that the Indiana Supreme Court has explained that “payment contingent
    
           on factors outside of an employee’s or employer’s control ‘is not consistent with
    
           the time constraints imposed by the Wage Payment Statute’ … [and that]
    
           compensation is less likely to constitute a wage when it is difficult to calculate
    
           and pay within ten days after it was earned.” Id. (quoting Highhouse, 807
    
           N.E.2d at 740). The Seventh Circuit further noted that Indiana Courts also
    
           consider whether (1) the compensation directly relates to the time that an
    
           employee works, (2) wages are paid on a regular periodic basis for regular work
    
           done by the employee, and (3) the compensation in question is paid in addition
    
           to wages. Id.
    
           Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016    Page 22 of 36
                                        1. Discussion of Relevant Authority
    
                                                         i. Thomas
    
    [36]   In Thomas, the Seventh Circuit considered whether end-of-season commission
    
           payments paid to Thomas by H&R Block qualified as “wages” under Indiana’s
    
           Wage Payment Statute. Thomas worked as a seasonal employee for H&R
    
           Block, responsible for preparing clients’ tax returns and offering other financial
    
           products and services that H&R Block provides. Thomas, 630 F.3d at 662. As a
    
           result of her seasonal employment with H&R Block, Thomas was eligible for
    
           two forms of compensation, an hourly wage and potential end-of-season
    
           compensation. Id. Thomas was eligible for end-of-season compensation “only
    
           if the sum of various specified amounts exceeded the aggregate gross hourly
    
           wages paid to her during the tax season.” Id. Thomas was subsequently
    
           determined to be eligible for additional end-of-season compensation, after
    
           which H&R Block paid Thomas the applicable amount of end-of-season
    
           compensation. Id. at 663. Thomas later sued H&R Block arguing that
    
           although it had paid her all compensation owed to her, it had failed to do so
    
           within ten days as is required by the Indiana Wage Payment Statute. Id.
    
    
    [37]   The Seventh Circuit found that Thomas’s end-of-season compensation was
    
           dependent on factors other than her efforts as a portion of the compensation
    
           was based on the contingency of collecting from customers. Id. at 666. In
    
           finding this to be a relevant contingency worthy of consideration, the Seventh
    
           Circuit noted that the “Indiana Supreme Court has not limited relevant
    
           contingencies to business performance and that imposing such a limit would be
    
           Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016   Page 23 of 36
           contrary to Indiana case law.” Id. at 667. The Seventh Circuit also found that
    
           Thomas’s end-of-season compensation was not directly related to the time she
    
           worked, noting that because the end-of-season compensation was partially
    
           based on collections, Thomas could theoretically have worked for an entire tax
    
           season without earning any end-of-season compensation. Id. at 666. Thomas
    
           also received an hourly wage in addition to any potentially earned end-of-
    
           season compensation. Id. In addition, the Seventh Circuit found that it was “at
    
           least difficult, if not impossible” to calculate the compensation within the ten-
    
           day period. Id.
    
    
                                                          ii. Gress
    
    [38]   In Gress, we considered whether commissions paid to Gress by Fabcon qualified
    
           as “wages” under the Wage Payment Statute. Upon review, we found that
    
           Gress was employed by Fabcon as a sales engineer, regional sales manager, and
    
           national accounts manager. Gress, 826 N.E.2d at 1-2. His general job
    
           responsibilities included soliciting and developing new business for Fabcon;
    
           bidding/negotiating contracts; and participating in each of his projects through
    
           the final project billing, collection, and closure. Id. at 2. Gress was paid on
    
           both a salary and a commission basis. Id.
    
    
    [39]   The commission payments at issue in Gress were paid on a monthly basis and
    
           represented either unearned advance payment for jobs shipped but not
    
           completed or final earned commissions on jobs for which all costs had been
    
           paid and actual profitability had been determined. Id. The commission
    
           payments fluctuated from month to month depending on the degree of activity
           Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016   Page 24 of 36
           on Gress’s jobs, whether projects were closed out, and whether projects were
    
           profitable. Id. The amount of any tendered future advance payments was
    
           based off of anticipated profitability. Id. Once a project was “closed out,” the
    
           final commission was calculated and any sums due to the salesperson were
    
           paid. Id. A job was closed out when the accounting department determined
    
           that all job costs had been paid, the final payment had been received, and the
    
           actual profitability of the project could be determined. Id. This process could
    
           take anywhere from several months to a couple of years after shipment. Id. If a
    
           project was less profitable than anticipated, Gress might not receive any
    
           additional commission. Id. Further, if Fabcon lost money or earned no profit
    
           on the project, Gress was required to reimburse Fabcon for some or all of the
    
           advance payment which had been tendered to him. Id.
    
    
    [40]   In determining whether Gress’s commissions qualified as “wages” under the
    
           Wage Payment Statute, we found as follows:
    
                   Fabcon’s commission program is based upon the profitability of
                   the salesperson’s individual projects. The salesperson earns no
                   commission if the project does not result in a profit for Fabcon.
                   The payment of commissions was not directly linked to the
                   amount of work performed by Gress. To be sure, a salesperson
                   could work for an entire year without earning any commissions if
                   none of the projects were profitable. Moreover, although the
                   commissions were paid once each month, the payments were
                   based on the previous month’s accounting events for the
                   project—whether all job costs had been paid, whether the job had
                   “closed out,” and whether any determination had been made
                   with respect to profitability—rather than on work performed by
                   Gress in the previous month. In short, because of the length of
    
           Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016   Page 25 of 36
                   time involved in determining the final commission, it was simply
                   impossible for Fabcon to know what Gress was owed within ten
                   days.
    
    
           Id. at 4 (internal record citations omitted). In light of all these factors, we
    
           concluded that Gress’s commissions were not “wages” within the purview of
    
           the Indiana Wage Payment Statute. Id.
    
    
                                                     iii. McCausland
    
    [41]   In McCausland, we considered whether certain commissions paid to
    
           McCausland by Walter USA qualified as “wages” under the Wage Payment
    
           Statute. McCausland was employed as a direct sales manager for Walter USA,
    
           and was primarily responsible for managing salespeople and assisting them in
    
           making sales for the company. 918 N.E.2d at 422. He received compensation
    
           in the form of salary, commissions, and bonuses. Id. at 422-23. His
    
           commissions were dependent on the net sales for his district. Id. at 423.
    
           McCausland’s employment with Walter USA was terminated on April 1, 2007.
    
           Id. On September 17, 2007, McCausland filed suit against Walter USA alleging
    
           that he was entitled to damages under the Wage Payment Statute. Id.
    
           Specifically, McCausland argued that although Walter USA had paid him all
    
           commissions and bonuses due to him, Walter USA had failed to do so in within
    
           the time requirements of the Wage Payment Statute. Id. The trial court
    
           subsequently granted summary judgment in favor of Walter USA. Id.
    
    
    [42]   Upon review, we concluded as follows:
    
    
    
           Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016   Page 26 of 36
                   McCausland’s commissions were based on the success of the
                   salespeople he managed. While McCausland assisted the
                   salespeople he managed in making sales, ultimately, those sales
                   were directly attributable to a salesperson, and not McCausland.
                   In other words, McCausland’s commissions were not directly
                   linked to his own efforts. Moreover, the commissions were not
                   based on gross sales, but on “net sales” which required a
                   calculation of not only the gross sales but also other reductions,
                   such as discounts and returns, which McCausland had little
                   control over. Finally, McCausland’s commission could not be
                   accurately calculated until Walter received all point of sales
                   information from its distributors. Because McCausland’s
                   commissions were based on the efforts of his sales team and “net
                   sales,” and the commissions could not always be calculated
                   within the statutorily mandated ten-days, we conclude that the
                   commissions were not “wages” within the meaning of the Wage
                   Payment Statute.
    
    
           Id. at 426.
    
    
                                                        iv. Quezare
    
    [43]   In Quezare, we considered whether certain bonuses paid to Quezare by Byrider
    
           qualified as “wages” under the Wage Payment Statute. Byrider employed
    
           Quezare as a collections account representative. 941 N.E.2d at 511. As part of
    
           his employment, Quezare managed 290 accounts, each consisting of a loan on
    
           a vehicle sold by Byrider’s sister corporation, J.D. Byrider. Id. Queazre was
    
           teamed with four other account representatives and their primary responsibility
    
           was to prevent the accounts covered by their team from becoming delinquent.
    
           Id. Quezare was paid an hourly salary. Id. In addition, he was paid certain
    
           bonuses or commissions if less than a certain percentage of his accounts were
    
    
           Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016   Page 27 of 36
           delinquent. Id. Quezare subsequently filed suit against Byrider alleging that he
    
           was entitled to damages under the Wage Payment Statute. Id. Specifically,
    
           Quezare argued that although Byrider had paid him all bonuses due to him,
    
           Byrider had failed to do so in within the time requirements of the Wage
    
           Payment Statute. Id. The trial court subsequently granted summary judgment
    
           in favor of Byrider. Id.
    
    
    [44]   With respect to the bonuses based on the percentage of the team accounts, we
    
           concluded that because the bonuses were dependent on the efforts of the team,
    
           those benefits did not constitute wages for purposes of the Wage Payment
    
           Statute. Id. at 514. With respect to the bonuses based on Quezare’s individual
    
           accounts, we concluded that even though the bonuses were calculated on a
    
           weekly basis, they were not earned merely by working for a week. Id.
    
    
                   Rather, the bonuses [were] awarded only if the account
                   delinquency goals [were] met. Thus, they [were] not necessarily
                   paid on a regular basis. If the delinquency rate of an employee’s
                   accounts [was] greater than the bonus percentage month after
                   month, that employee will not earn any bonuses. Indiana courts
                   have consistently stated that a bonus is a wage under the Wage
                   Payment Statute if the bonus directly relates to the time that an
                   employee works, is paid with regularity, and is not dictated by
                   the employer’s financial success. [Tobin v. Ruman, 
    819 N.E.2d 78
    , 88 (Ind. Ct. App. 2004), trans. denied]; [Pyle, 637 N.E.2d at
                   1299-1300].
    
                   In addition, we note that Byrider’s bonus plan is purely
                   discretionary. Both pay plans provided that Byrider had the right
                   to alter, adjust, or terminate the plan at any time, without notice.
                   The discretionary nature of the plan also leads us to conclude
    
           Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016   Page 28 of 36
                   that the bonus payments are not wages for purposes of the Wage
                   Payment Statute. See Pyle, 637 N.E.2d at 1301 [ ] (concluding
                   that bonus system was discretionary and therefore bonuses were
                   not wages); [Wank v. Saint Francis College, 
    740 N.E.2d 908
    , 913
                   (Ind. Ct. App. 2000)] (concluding that severance pay was not
                   wage because it was a “discretionary, gratuitous benefit”).
    
    
           Id. at 514-15 (footnote omitted, brackets added).
    
    
                                          2. Commissions Earned by Bragg
    
    [45]   In determining whether the commissions at issue qualified as wages under the
    
           Wage Payment Statute, we will examine said commissions under the factors set
    
           forth by the Seventh Circuit in Thomas.
    
    
                                 i. Whether Commission Linked to Contingency
    
    [46]   Initially, we note that Bragg claims that the contingency factor is “meaningless”
    
           to our analysis of whether the commissions at issue qualify as wages under the
    
           Wage Payment Statute. Appellant’s Br. p. 12. In making this claim, Bragg
    
           asserts that there is nothing “bonus-like” about the commissions at issue and
    
           that “[t]o date, the ‘other factors’ analysis has only been applied to commissions
    
           that are bonus-like.” Appellant’s Br. pp. 12, 13. We disagree and note that
    
           nothing in any of the relevant authority supports Bragg’s assertion that the
    
           contingencies factor should only be considered in the context of bonuses. 6
    
           Furthermore, we find nothing in the designated evidence that would seem to
    
    
    
           6
            We also note that, generally speaking, all commissions are bonus-like in nature, and that Bragg
           points to no relevant authority or designated evidence which would suggest otherwise.
    
           Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016            Page 29 of 36
           differentiate the commissions involved in the instant matter from the
    
           previously-considered types of commissions.
    
    
    [47]   Bragg also asserts that applying the contingencies factor to the consideration of
    
           whether the commissions at issue constitute wages under the Wage Payment
    
           Statute “would ignore the definition of ‘wages’ as articulated by the General
    
           Assembly.” Appellant’s Br. p. 13. However, it is of note that in Thomas, the
    
           Seventh Circuit rejected this very assertion, citing to Indiana case law which
    
           has expressly provided that because it is the substance of the compensation that
    
           guides our analysis, and not its label, commissions do not always constitute
    
           wages. 630 F.3d at 666 (citing McCausland, 918 N.E.2d at 424-26; Gress, 826
    
           N.E.2 at 4). It is also of note that in making this assertion, Bragg fails to
    
           acknowledge Thomas and the Indiana cases on which Thomas relies.
    
    
    [48]   Bragg further asserts that because the courts have only considered the
    
           profitability of the employer’s company to be a relevant contingency, any other
    
           contingencies are irrelevant to the question of whether the commissions at issue
    
           constitute wages under the Wage Payment Statute. The Seventh Circuit
    
           expressly rejected a similar assertion in Thomas, noting that relevant Indiana
    
           authority indicates that a company’s performance “is merely one example of a
    
           contingency.” 630 F.3d at 667. In rejecting this assertion, the Seventh Circuit
    
           stated that “[t]he Indiana Supreme Court has not limited the relevant
    
           contingencies to business performance, and imposing such a limit would be
    
           contrary to Indiana case law.” Id.
    
    
    
           Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016   Page 30 of 36
    [49]   In the instant matter, the designated evidence contained numerous types of
    
           contingencies that affected whether Bragg earned commissions. Commissions
    
           were not earned by sales alone, but rather by “delivered sales.” Appellee’s App.
    
           p. 43. As such, commissions were dependent upon the payment for and
    
           acceptance of delivery of the item by the customer. In addition, if employees
    
           worked together on a sale, any commissions earned as a result of said sale could
    
           be divided among the employees.
    
    
    [50]   Further, because commissions were dependent upon delivery, numerous factors
    
           which might take place after the initial sale, all of which were outside of Bragg’s
    
           control, could potentially affect whether Bragg earned commissions. For
    
           example, Bragg would not be entitled to commissions if, after the initial sale,
    
           the customer decided to return the item or cancel the order. The amount of
    
           commission earned would be also affected if there was a subsequent price
    
           adjustment to the item, which would negatively impact the amount of profit
    
           earned by Kittle’s on the sale. Therefore, even if a commission was ultimately
    
           earned, because said commission was dependent on delivery, numerous factors,
    
           again all of which were outside of Bragg’s control, could impact when said
    
           commission was actually earned. For instance, factors such as product
    
           availability, weather conditions, a customer’s location, and a customer’s
    
           availability could impact when delivery was made. The type of order could
    
           also impact delivery as some custom orders could take as many as sixteen
    
           weeks for delivery.
    
    
    
    
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    [51]   The designated evidence also outlines the process by which Kittle’s calculated
    
           commissions earned by its employees. In order to track monthly deliveries for
    
           commission purposes, Kittle’s maintained a “commission edit list.” Appellee’s
    
           App. p. 37. This list would be made available for employees to review on the
    
           fourth day of each month. Employees would then review the list and work with
    
           store management to resolve any potential discrepancies. Once finalized, the
    
           information would be manually imput and commissions calculated. The
    
           commissions earned were then sent to an outside payroll service for processing.
    
           The entire process took multiple days to complete.
    
    
    [52]   In light of the numerous factors involved in determining whether and when a
    
           commission was earned by an employee, we conclude that the designated
    
           evidence demonstrates that the commission could not always be quickly and
    
           accurately calculated within the ten-day time constraint set forth in the Wage
    
           Payment Statute. This factor supports the determination that, as a matter of
    
           law, the commissions at issue did not constitute wages under the Wage
    
           Payment Statute. See generally, McCausland, 918 N.E.2d at 424 (citing
    
           Highhouse, 807 N.E.2d at 740 (noting that because the Wage Payment Statute
    
           imposes a penalty when wages are not paid within ten days of the date they are
    
           earned, it is not practical to apply the statute to payments that cannot be
    
           calculated within ten days after being earned)).
    
    
                                              ii. Relation to Time Worked
    
    [53]   We have previously concluded that if compensation is not linked to the amount
    
           of work done by an employee, it is not a wage. Hansen, 874 N.E.2d at 1072. In
           Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016   Page 32 of 36
           Gress, we noted that “[t]o be sure, a salesperson could work for an entire year
    
           without earning any commissions if none of [their] projects were profitable.”
    
           826 N.E.2d at 4. The same can be said here.
    
    
    [54]   The designated evidence here demonstrates that the payment of commission
    
           was not directly linked to the amount of work performed by Bragg.
    
           Commissions were not earned merely by working for a week. Rather, they
    
           were awarded only if the salesperson completed delivered sales. Thus, while
    
           potentially unlikely, it is at least possible that Bragg could have worked for an
    
           entire month without completing any “delivered sales.” If that were the case,
    
           Bragg would not earn any commission for that month. Thus, we conclude that
    
           this factor supports also the determination that, as a matter of law, the
    
           commissions at issue did not constitute wages under the Wage Payment
    
           Statute. See generally, Hansen, 874 N.E.2d at 1072 (providing that if
    
           compensation is not linked to the amount of work done by an employee, it is
    
           not a wage).
    
    
                                             iii. Payment on Regular Basis
    
    [55]   Bragg seems to acknowledge that the amount of any commission earned could
    
           vary greatly from month to month. She asserts, however, that we should find
    
           the fact that Kittle’s had a regular monthly payment schedule in place for the
    
           payment of any commissions earned by their employees to be evidence
    
           demonstrating that the commission payments paid by Kittle’s were made on a
    
           regular basis.
    
    
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    [56]   In Quezare, we considered whether certain bonus payments were paid on a
    
           regular basis. 941 N.E.2d at 514. We concluded that although the bonuses
    
           were calculated on a weekly basis, they were paid only if certain goals were
    
           met. Id. Thus, the payments were not necessarily paid on a regular basis. Id.
    
           Similarly, here, although commissions were calculated and paid on a monthly
    
           basis, any commissions paid were dependent upon “delivered sales” being
    
           completed by Bragg. Further, although Kittle’s followed a specific schedule for
    
           determining if any commissions had been earned, commission payments were
    
           not paid on any pre-scheduled date, but rather varied from month to month.
    
           Because the amount of any monthly commission payment could vary greatly,
    
           and could even include months where no commission payment was earned by
    
           Bragg, we conclude that like in Quezare, the commissions at issue here were not
    
           made on a regular basis. We therefore conclude that this factor supports also
    
           the determination that, as a matter of law, the commissions at issue did not
    
           constitute wages under the Wage Payment Statute.
    
    
                                                      iv. Other Wages
    
    [57]   Bragg acknowledges that the commission payment was paid by Kittle’s in
    
           addition to her salary. She asserts, however, that this fact is “meaningless”
    
           because there is no statutory authority limiting an employee to only one type of
    
           wage. Appellant’s Br. p. 11. We agree that Bragg was not limited to earning
    
           only one type of compensation. However, we believe that the fact that Bragg
    
           could potentially earn different types of compensation—one being her salary
    
           which undoubtedly qualifies as a wage under the Wage Payment Statute—does
    
           Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016   Page 34 of 36
           not mean that each of the different types of compensation which she could
    
           potentially earn would automatically qualify as wages under the Wage Payment
    
           Statute. Rather, we conclude that the best practice is to examine each type of
    
           compensation independent of any other type to determine whether it constitutes
    
           a wage under the Wage Payment Statute.
    
    
                                                        v. Conclusion
    
    [58]   In the instant matter, it is undisputed that Bragg earned commissions in
    
           addition to a regular salary and that Kittle’s has paid Bragg all earned
    
           commissions. As is discussed above, the designated evidence demonstrates that
    
           these commissions were not directly linked to the amount of work performed by
    
           Bragg, but rather were contingent upon numerous factors, over most of which
    
           Bragg had no control. These commissions were paid only when earned, and
    
           not on a regular basis. As such, we determine that, as a matter of law, the
    
           commissions did not qualify as wages under the Wage Payment Statute. We
    
           therefore conclude that the trial court did not err in awarding summary
    
           judgment in favor of Kittle’s on this ground.7
    
    
    
    
           7
             To the extent that Bragg relies on our opinion in J Squared, Inc. v. Herndon, 
    822 N.E.2d 633
           (Ind. Ct. App. 2005), we find Herndon to be distinguishable from the instant matter as our
           decision in Herndon did not turn on whether the commission at issue constituted a wage under
           the Wage Payment Statute. In Herndon, we considered whether the trial court erred in
           awarding damages to Herndon under the Indiana Wage Claims Statute. 822 N.E.2d at 639-
           641. The Wage Claim Statute provides that an employer is responsible for paying employees
           for wages and compensation due at the time of separation of the employee’s employment. Id.
           at 640 (citing Ind. Code § 22-2-9-2). Concluding that Herndon had earned commission by
    
           Court of Appeals of Indiana | Opinion 49A02-1506-PL-653 | April 11, 2016           Page 35 of 36
                                                     Conclusion
    [59]   In sum, we conclude that the trial court did not err in in dismissing the claims
    
           raised on behalf of the unknown purported class members whose employment
    
           was involuntarily terminated by Kittle’s or in awarding summary judgment in
    
           favor of Kittle’s. As such, we affirm the judgment of the trial court.
    
    
    [60]   The judgment of the trial court is affirmed.
    
    
           Baker, J., and Pyle, J., concur.
    
    
    
    
           securing sales on order prior to the termination of his employment and that J Squared had
           failed to pay Herndon the earned commission, we affirmed the trial court. Id. at 641.
    
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