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McNamara v. The Associated Press

United States District Court, S.D. New York

August 21, 2014


Page 346

Dolores McNamara, Plaintiff, Pro se, Jersey City, NJ.

For The Associated Press, Defendant: Joseph Blaise Cartafalsa, Putney Twombly Hall & Hirson LLP, New York, NY.

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HENRY PITMAN, United States Magistrate Judge.

I. Introduction

This is an employment discrimination action brought by a pro se plaintiff against her former employer, the Associated Press (the " AP" ). Construed liberally, plaintiff's complaint asserts claims under the Age Discrimination in Employment Act (" ADEA" ) and the New York State Human Rights Law (" NYSHRL" ), N.Y. Exec. Law § § 290 et seq. Defendant construes plaintiff's complaint to be asserting additional claims for violations of the minimum wage, overtime and anti-retaliation provisions of the Fair Labor Standards Act (" FLSA" ), 29 U.S.C. § § 201 et seq. By notice of motion dated September 13, 2013 (Docket Item 17), defendant moves for an Order pursuant to Fed.R.Civ.P. 56, granting it summary judgment as to plaintiff's claims arising under the FLSA and dismissing plaintiff's complaint.

The parties have consented by my exercising plenary jurisdiction over this action pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, defendant's motion is granted with respect to plaintiff's claims arising under the FLSA. Plaintiff is also granted thirty days to oppose summary judgment independent of defendant's motion on plaintiff's remaining claims arising under the ADEA and NYSHRL.

II. Facts

A. Facts Giving Rise to Plaintiff's Claims

This is an action arising out of plaintiff's employment as a sales associate for the AP from June 2010 to September 2011.

On June, 14, 2010, plaintiff was hired by the AP as a sales associate in the AP's video archive and business development

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group (the " Group" ) (Affidavit of Alison Quan, dated Sept. 13, 2013, (Docket Item 20) (" Quan Aff." ) at ¶ 2). Plaintiff's offer letter stated that she would earn a salary of $40,000 and " 2% commission on all sales that [she] bill[ed] or generate[d]" (Quan Aff. at ¶ 5). In addition to her sales duties, plaintiff had some research responsibilities (Quan Aff. at ¶ 2; Deposition of Dolores McNamara, taken on June 25, 2013 (" McNamara Dep." ) at 15:15-16:5, annexed as Exhibit A to the Affirmation of Joseph B. Cartafalsa, Esq., dated Sept. 13, 2013, (Docket Item 22) (" Cartafalsa Aff." )). She made phone calls, acquired new clients, documented orders, billed clients, generated contracts and conducted research (McNamara Dep. at 15:15-16:5). The parties dispute whether plaintiff's job duties also included performing research for other employees in the Group. Defendant contends that at or about the time of her hire, plaintiff was informed by the AP's sales director, Lloyd Pawlak, that she would be performing research for other employees in the Group; plaintiff contends that she was only expected to perform research on accounts that she generated or billed (see Affidavit of Lloyd Pawlak, dated Sept. 13, 2013, (Docket Item 21) (" Pawlak Aff." ) at ¶ 3; McNamara Dep. at 15:11-14, 69:2-18).

In November of 2010, plaintiff was assigned to perform research for her direct supervisor, Claribel Torres, in order to help Torres secure business from a potential customer (the " Account" ) (Complaint, dated Apr. 3, 2012, (Docket Item 2) (" Compl." ) at 6; [1] Quan Aff. ¶ 6). Plaintiff did not 'generate' or 'bill' the Account, and, therefore, under the terms of her offer letter and the AP's stated policies, was not entitled to a commission on any income generated from the Account (Pawlak Aff. at ¶ ¶ 6-7). Shortly after plaintiff began performing research for Torres, Torres promised to split with plaintiff the commission Torres would receive for securing the Account (McNamara Dep. at 12:15-13:14). Torres reiterated this promise to plaintiff on three occasions, but no other employees at the AP were aware of their agreement (McNamara Dep. at 13:5-14:11, 14:15-15:6).

On December 14, 2010, the Group held a staff meeting in order to discuss the implementation of a new billing system at the AP. During that meeting, Torres " stood up in front of everyone and said [to plaintiff] [']are you sure you are going to be able to get this [']" (McNamara Dep. at 79:12-25; see also Compl. at 6). Plaintiff was the only employee more than forty years old in the meeting and was the only employee who was asked this question (Compl. at 6).

In January 2011, Torres received a commission from the Account (Compl. at 6; McNamara Dep. at 26:13-27:3). When plaintiff requested a portion of the commission, Torres told her that the AP would not allow her to split the commission (Compl. at 6; McNamara Dep. at 10:11-25).

On February 9, 2011, plaintiff attended a meeting with Pawlak. In the meeting plaintiff explained that Torres had refused to split the commission with her (Pawlak Aff. at ¶ 8). Pawlak told plaintiff that she was not entitled to and would not be paid a commission for the research she performed for the Account (Pawlak Aff. at ¶ 8). However, Pawlak

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subsequently approved and the AP paid plaintiff a discretionary bonus of $1,000 for the research she performed for the Account[2] (Pawlak Aff. at ¶ 8).

Following plaintiff's meeting with Pawlak, plaintiff was informed that she would start performing research for the entire Group in addition to the normal sales and research duties related to her own accounts (McNamara Dep. at 11:7-13). Plaintiff would also be responsible for completing administrative tasks for Torres including setting up " a messenger service" and generating mailing labels (Compl. at 6-7; McNamara Dep. at 102:9-103:10). Plaintiff alleges that these additional tasks were onerous and that they would have prevented her from reaching her annual bonus goals (Compl. at 7).

On or about March 7, 2011, plaintiff requested a reduction in either her research or sales responsibilities (Compl. at 7; Quan Aff. at ΒΆ 11). The AP agreed to eliminate plaintiff's sales responsibilities with the proviso that plaintiff would no longer be ...

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