The opinion of the court was delivered by: David G. Larimer United States District Judge
Plaintiff, Claire Falleson ("Falleson"), a former employee of Paul T. Freund Corporation ("Freund"), commenced this action alleging that Freund failed to pay her overtime compensation in violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §207, and New York Labor Law §190 et seq. and §650 et seq. Freund claims that Falleson was not an employee entitled to overtime because she was an exempt, outside-sales-person under the regulations adopted by the Department of Labor, 29 C.F.R. §541.500. In addition, Freund claims that even if Falleson were a covered employee, she has failed to present evidence that she worked overtime.
Discovery is now complete and Freund has moved for summary judgment dismissing the complaint. For the reasons that follow, that motion is denied.
A. Standard of Review on a Motion for Summary Judgment
It is well settled that a motion for summary judgment should be granted only where there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. Proc. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When ruling on a motion for summary judgment, the court must construe the alleged facts in the light most favorable to the non-movant. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). A party who bears the burden of proof on a particular claim must factually support each element of his or her claim. "[A] complete failure of proof concerning an essential element...necessarily renders all other facts immaterial." Celotex, 477 U.S. at 323. Thus, on those issues on which the nonmoving party bears the ultimate burden of proof, it is his or her responsibility to confront the motion for summary judgment with evidence in admissible form. Anderson, 477 U.S. at 256.
Freund is a manufacturer of boxes located in Palmyra, New York. Falleson was employed by Freund from May 4, 1999 until October 21, 2002. Her initial job duties included estimating, purchasing, supporting salespersons, customer support, answering customer or phone calls, production scheduling and running errands.
In the summer of 2002, plaintiff was promoted to full-time salesperson position. The bulk of her former job duties were delegated to other employees, and her job responsibilities were thereafter primarily limited to sales.
The sales process at Freund involves several steps. Customer contact may be initiated by a salesperson, or by the customer itself. After a customer is identified, a salesperson determines the customer's needs with respect to cartons and artwork. The salesperson then coordinates with a designer to develop a prototype carton for the customer, which is shipped to the customer for review. Once the prototype is revised to the customer's satisfaction, the salesperson provides a price quotation to, and obtains a purchase order from, the customer. The salesperson maintains continuing contact with the customer throughout the production process, and keeps the customer apprised of the status of their order.
With respect to Falleson's particular performance of the salesperson position, some of Falleson's job responsibilities required her to be out of the office. These duties included making sales calls, picking up films, picking up dies, dropping off products to have structural designs created and checking on orders. Falleson also met periodically with customers at their place of business to make sales calls, and also met with Freund's vendors.
Falleson testified that she spent 75 to 80 percent of her work day performing tasks inside the office, and fifteen to twenty percent of her work day performing tasks and keeping appointments outside of the office. Occasionally, Falleson entertained clients in the evening, taking clients out to dinner between 10 and 15 times during her employment and on one occasion to a Buffalo Sabres game. She also attended trade shows on one or two occasions.
Falleson claims that during her tenure as a salesperson, she generally worked between 50 and 55 hours per week. Nonetheless, at her deposition, Falleson testified that her work hours were generally from 8:30am to 5:00pm with a ninety minute lunch. Between fall 1999 and fall 2000, Falleson was permitted to arrive at the office at a later time, so that she could be home to supervise her son when he boarded the school bus. From November 17, 2000 to February 5, 2001, Falleson was out of the office on maternity leave. Although Falleson alleges that she performed some work while she was out on maternity leave, she does not recall working more than 40 hours during any of those ...