The opinion of the court was delivered by: David G. Larimer United States District Judge
Defendant Ryan Homes ("NVR") is a home construction company with operations in upstate New York. Plaintiff Patrick Tracy ("Tracy") was employed by NVR from January 2000 until August 2005 as a Sales and Marketing Representative ("SMR"). His job duties included manning assigned stations upon tracts of land that NVR was developing into custom-built residential subdivisions. Such stations were generally located in model homes situated within a subdivision. Operating from these stations, Tracy visited with potential customers who came to make inquiries, showed the model home, and attempted to initiate and/or finalize home purchases. Tracy also "pre-sold" houses, working from models in sold-out communities to sell land and houses on sites that had not yet been developed.
Tracy claims that during his employment with NVR, he regularly worked more than forty hours per week, for which he was not paid overtime at the statutory rate.
On or about October 29, 2004, Tracy commenced the instant action against NVR on behalf of himself and all other similarly situated NVR employees, alleging that NVR misclassified his position as exempt, and failed to pay him overtime compensation in violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §201 et seq., and New York Labor Law. Discovery is now completed and Tracy has moved for summary judgment (Dkt. #269), arguing that NVR cannot refute his claims of unpaid overtime. 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.
The FLSA requires compensation at one and a half time the regular rate when an employer requires the employee to work more than forty hours per week. See 29 U.S.C. §207(a)(2). To establish an FLSA claim or a parallel claim under the New York Labor Law, plaintiff must prove that: (1) he was an employee who was eligible for overtime (i.e., that he was not exempt from the Act's overtime pay requirements); and (2) that he actually worked overtime hours for which he was not compensated. See Barry v. Town of Elma, 2005 WL 711842 at *2 (W.D.N.Y. 2005).
The FLSA provides that its overtime requirements do not apply to outside salespersons, defined as any employee:
(a) who is employed for the purpose of and who is customarily and regularly engaged away from his employer's place or placeof business in:
(1) making sales within the meaning of section 3(k) of the Act; or
(2) obtaining orders or contracts for services or for the use of facilities for which a consideration will be paid ...