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December 30, 1999


The opinion of the court was delivered by: Curtin, District Judge.


Plaintiff Constance Gerbush ("plaintiff") commenced this action under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq., and the Equal Pay Act ("EPA"), 29 U.S.C. § 206, et seq. Plaintiff also asserts a claim under the New York Human Rights Law ("NYHRL"), New York Executive Law § 296, et seq. Plaintiff alleges that defendant Hunt Real Estate Corporation ("Hunt") discriminated against her on account of her sex. Presently before this court is defendant's motion for summary judgment. Items 12-17. Plaintiff opposes. See Items 20-22. Oral argument was held on September 23, 1999.



The facts are as follows. Hunt is a real estate agency focused on listing and selling property in the Western New York Region. Item 1; Complaint ¶ 4. As an agency, Hunt relies on sales agents to list and sell residential or commercial properties. Sales agents, however, are not employees of Hunt, but rather independent contractors who generally work out of one of Hunt's various branch offices. Item 13; Izzo Aff. ¶¶ 4, 8. Each branch office is managed by a branch manager. In some instances, a branch manager may be assigned to manage two branches, depending on the size and volume of business operating out of those branches. Id.

During the time frame of this law suit, Hunt maintained its corporate headquarters in Williamsville, New York, and branch offices in Buffalo, Kenmore, Wheatfield, Williamsville South, Williamsville North, Orchard Park, East Aurora, Hamburg, West Seneca, Lockport, Newfane, Cheektowaga, Lewiston, and Amherst. Item 17; Exh. Q.

In contrast to sales agents, branch managers are considered employees of Hunt. Upon acceptance of the position, each branch manager signs a contract, which is somewhat uniform but customized as to base salary. Each contract (including the annual contract signed by plaintiff) sets forth a formula for the calculation of bonuses paid out on a quarterly or annual basis. The contract given to branch managers during the time frame of this case includes the following formula:

  b. A quarterly bonus based on the following formula:
  10% of settled Company Dollar for the previous fiscal
  quarter, LESS total weekly salary for the previous
  fiscal quarter = New Quarterly Bonus
  c. A fiscal year (annual) bonus based on the
  following formula: 10% of the "excess return"
  generated by the branch in current fiscal year.
  "Excess return" is defined as pre-tax profit
  exceeding 3% of gross commission revenue, or
  equivalently, income before overhead exceeding
  13.8% of branch gross commission revenue. An
  additional component of this fiscal year bonus will
  be a $1,500.00 travel voucher which will be earned by
  the manager upon achieving the threshold level,
  i.e., 3% pre-tax return on gross commission revenue
  or equivalently, 13.8% return at income, before

Item 17; Exh. F. Essentially, salaries for branch managers are set at 10 percent of the expected Settled Company Dollar ("SCD")*fn1 for the manager's branch. The bonus is 10 percent of the actual SCD, minus the base salary already paid out. See Item 22; Exh. E; Grieser Dep. at p. 52; see also Item 17; Exh. F.

In 1989, plaintiff was hired as a sales agent at Hunt's Kenmore branch. She also worked out of the Buffalo office, which was at that time considered a "satellite" office of the Kenmore and Amherst branches. See Item 16; Exh. C, Gerbush Deposition at ¶¶ 14-17; see also Item 13; Izzo Aff. ¶ 13. In December of 1989, Hunt decided to make the Buffalo satellite office an independent branch, and selected plaintiff as the manager. See Gerbush Dep. at ¶¶ 14-17.

Officially, plaintiff started at the Buffalo branch as a "manager-in-training" on January 1, 1990. Item 16, Exh. C, Gerbush Dep. at p. 17. Her compensation under that title was approximately $18,000. Id. This amount was significantly less than what she would earn as a branch manger because it accounted for commissions Gerbush had earned as a sales agent from completed, but not closed, sales. Id.

After all of her completed sales had closed, Gerbush's base salary was increased to $25,000, which could and was supplemented by quarterly and annual bonuses. Item 1; Compl. ¶ 6. In 1991, Gerbush's base salary was further increased to $40,000. Id. From 1993 up until her termination in 1996, plaintiff earned a base salary of $42,500. Id. Plaintiff received a $4,068 bonus in 1993. Item 17; Exh. P.

In May of 1996, Hunt fired Gerbush due to her allegedly poor performance as manager of the Buffalo branch. Item 13; Izzo Aff. ¶ 21. Although plaintiff never received notice of poor job performance, she admits that the Buffalo branch was not a profitable operation in the six years that she worked there. Item 16; Exh. C; Gerbush Dep. at ¶¶ 55-60. Hunt did not replace Gerbush, but rather consolidated the Buffalo ...

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