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Mosely v. Island Computer Products

February 9, 2006


The opinion of the court was delivered by: John Gleeson, United States District Judge:



Anthony Mosely, a former salesperson for the defendant, Island Computer Products, Inc. ("ICP"), filed this diversity action seeking payment of sales commissions he alleges he is owed for two projects ICP performed for the New York State Board of Education ("BOE"). The complaint states two causes of action: (1) breach of contract; and (2) violation of Article 6 of the New York State Labor Law. The parties agree, however, that if Mosely's claim for breach of contract fails, then so does his claim under the Labor Law.

ICP moves for summary judgment on the ground that Mosely was an employee at will, and therefore ICP was entitled unilaterally to alter the terms and conditions of his employment, including the rate of his commissions. Mosely concedes he was an at will employee, but counters that New York law permitted ICP to alter his commission structure only prospectively. The commissions he seeks, Mosely argues, were already earned at the time ICP sought to reduce them because he had "an express agreement with [ICP] whereby he would receive a 30% commission on all the services he sold to the [BOE] for the duration of each of those contracts." Pl. Mem. at 1. As set forth below, even taking Mosely's version of the disputed facts as true, he has not adduced sufficient evidence to support his theory. I therefore grant ICP's motion for summary judgment.


Mosely worked for ICP as a salesperson, under the title of Senior Client Executive, from 1993 until April 9, 2004. Mosely was responsible for selling both computer hardware and consulting services, as well as for maintaining relationships with the clients to whom he sold that business. In return he was paid a bi-weekly base salary, as well as a monthly commission that was, for all relevant purposes here, calculated as a percentage of ICP's "gross profit" on his sales (the term "gross" indicating that in arriving at the figure, all of ICP's costs were subtracted from its revenue on a given sale except commission). Initially, the same commission structure applied to all of Mosely's accounts. That arrangement, however, was not reduced to a writing.

During the mid-1990s, ICP applied for and obtained the qualification as an approved vendor for the New York State Office of General Services, and shortly thereafter it responded to two requests for proposals ("RFPs") from the Board of Education. ICP won the two projects, which were called "TBANK" and "Galaxy 2000." With respect to the TBANK project, the parties agree Mosely was assigned to service the account when the project began in late 1998, and he was paid a commission of 30% of ICP's gross profit arising therefrom until the Spring of 2000. Mosely was assigned to service the Galaxy 2000 project when it began in 1999, and he continued to do so through April 2004, when he ended his employment with ICP. He was initially paid the same 30% commission rate for the Galaxy 2000 project as with the TBANK project.

ICP billed the BOE monthly on both contracts, as the products and services needed to carry out the projects fluctuated regularly. Pl. Ex. G at 1-2, 11. Mosely's commission was likewise calculated monthly, and it depended on the particular revenues and costs that were associated with each project as they progressed. With respect to the Galaxy 2000 project, ICP and the BOE negotiated a new memorandum of understanding each year as the project evolved.

In the Spring of 2000, ICP's management notified Mosely that it was cutting his commission on the BOE projects to less than half of their previous levels. Mosely objected strenuously and continually to the reduction until finally, in April of 2004, he quit the job.


Under Rule 56 of the Federal Rules of Civil Procedure, the moving party is entitled to summary judgment "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 judgment as a matter of law." Fed. R. Civ. P. 56(c). The substantive law governing the case identifies the facts that are material, and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is warranted only if "the evidence is such that a reasonable jury could not return a verdict for the nonmoving party." Id.

Moreover, "the inferences to be drawn from the underlying facts ... must be viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quotation marks omitted); see also, e.g., Michalski v. Home Depot, Inc., 225 F.3d 113, 116 (2d Cir. 2000) ("[W]e ... view [the facts] in the light most favorable to, and draw inferences in favor of, the non-moving party ...." (internal quotation marks omitted)). Once the moving party has met its burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts ....

[T]he non-moving party must come forward with 'specific facts showing that there is a genuine issue for trial.'" Id. at 586-87 (quoting Fed. R. Civ. P. 56(e)).

The parties agree that Mosely was, throughout his time at ICP, an employee at will, and therefore ICP was "entitled to change the terms of [his] employment ... prospectively, subject to [his] right to leave the employment if the new terms were unacceptable." Gebhardt v. Time Warner Entm't, 726 N.Y.S.2d 534 (4th Dep't 2001); see also Bottini v. Lewis & Judge Co., 621 N.Y.S.2d 753 (3d Dep't 1995) (same). The issue that divides them is whether, when ICP unilaterally reduced Mosely's commission rate on the BOE projects in the Spring of 2000, Mosely had already "earned" the commissions associated with those projects up through April 2004 by virtue of his having "booked" the business and negotiated ...

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