In exchange for its services, Telematics was to be paid fees of $ 300,000 each year of the original or renewed contracts, payable in monthly installments of $ 25,000. (Id., Sched. 2, PP 1, 5, 6.) In order to receive payment, Telematics was required to render an invoice to NNS "identifying the amount chargeable to [NNS]." (Id. P 4.)
The Agreement also called for payment of incidentals such as a stipend for apartment rental; up to three weeks of paid vacation; expenses (up to $ 10,000) "for two weeks of travel to any part of the world for Mr. & Mrs. Tagare"; reimbursement of tuition and other expenses related to an executive MBA program; reimbursement for reasonable out-of-pocket expenses (including travel, entertainment, and lodging); reasonable legal fees for Tagare's naturalization as a United States citizen; and "reimbursement of medical insurance for Mr. & Mrs. Tagare." (Id., Sched. 2.)
In addition, the Agreement outlined bonuses dependent upon the status of the FLAG Project and upon Telematics' sales performance. These bonuses increased Telematics' potential fee by as much as $ 2.3 million. (Id., Sched. 2.) For purposes of this action, the most significant bonus was the capacity sales incentive, by which NNS would pay Telematics a bonus of $ 500,000 for $ 800 million in capacity sales, an additional $ 600,000 bonus for $ 1.0 billion in sales, and an additional $ 700,000 bonus for $ 1.2 billion in sales. The Agreement defined "sales" as "fully executed agreements." (Id., Sched. 2, P 16.)
With respect to its fees, Telematics expressly agreed "that it is liable for and will pay for federal, state, local or other governmental income tax, withholding tax, social security taxes, excise, sales or other service taxes and the like, or any other taxes relative to the compensation and expenses paid to CONSULTANT under this Agreement." (Id. P 14.)
NNS could terminate the Agreement before the expiration of its term only "for cause," defined as a judicial finding of illegal activity on the part of Telematics, a judicial finding of the Agreement's unlawfulness, or the bankruptcy, liquidation, or insolvency of Telematics. (Id. P 16.)
B. Employment Relationship
Tagare contends that he was an "employee" within the meaning of Title VII and the NYSHRL; defendants assert that Tagare was an independent contractor to whom those statutes do not apply. As discussed below, the determination of Tagare's employment status involves a detailed, fact-intensive inquiry of several factors. Accordingly, to avoid repetition, the facts relevant to this inquiry will be set out below in Part II.A. of the Discussion rather than here.
C. Breach of the Agreement
Tagare contends that NNS breached the Agreement by violating the implied covenant of good faith and fair dealing. In essence, he asserts that NNS interfered with his ability to earn the maximum bonus of $ 1.8 million under Schedule 2, P 16 of the Agreement by (1) providing him with inadequate staffing, (2) restricting his travel, and (3) denying him necessary information.
I. Summary Judgment Standard
Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(d). A genuine issue for trial exists if, based on the record as a whole, a reasonable jury could find in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). On a motion for summary judgment, all evidence must be viewed and all inferences must be drawn in the light most favorable to the non-moving party. City of Yonkers v. Otis Elevator Co., 844 F.2d 42, 45 (2d Cir. 1988).
The party seeking summary judgment bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Upon the movant's satisfying that burden, the onus then shifts to the non-moving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 250. At this stage, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). Bald assertions or conjecture unsupported by evidence are insufficient to overcome a motion for summary judgment. Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991); Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990).
II. Title VII and Employment Status
Title VII provides that it shall be unlawful for an employer to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment on the basis of, inter alia, the individual's national origin. 42 U.S.C. § 2000e-2(1). Title VII protects: only "employees"; independent contractors may not obtain relief under the statute. Stetka v. Hunt Real Estate Corp., 859 F. Supp. 661, 665 (W.D.N.Y. 1994); Krijn v. Simone, 752 F. Supp. 102, 104 (S.D.N.Y. 1990), aff'd mem., 930 F.2d 910 (1991).
The United States Supreme Court has held that "where a statute containing the term 'employee' does not helpfully define it, the common law agency test should be applied." Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23, 117 L. Ed. 2d 581, 112 S. Ct. 1344 (1992); see also O'Connor v. Davis, 126 F.3d 112, 115 (2d Cir. 1997). Because Title VII contains only a circular definition of "employee," O'Connor, 126 F.3d at 115; Stetka, 859 F. Supp. at 666, we look to common law agency principles to determine whether Tagare was an employee or independent contractor.
In Community for Creative Non-Violence v. Reid, the Supreme Court set out the following factors relevant to this inquiry:
(1) the tax treatment of the hired party;