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Giaimo v. SHC Services, Inc.

United States District Court, W.D. New York

March 28, 2017

JOSEPH GIAIMO, Plaintiff,
v.
SHC SERVICES, INC., also known as SUPPLEMENTAL HEALTH CARE SERVICES LIMITED, also known as SUPPLEMENTAL HEALTH CARE SERVICES, INC., also known as SUPPLEMENTAL HEALTH CARE STAFFING SPECIALISTS, Defendant.

          MEMORANDUM AND ORDER

          LAWRENCE J. VILARDO, UNITED STATES DISTRICT JUDGE

         The plaintiff commenced this action on May 10, 2011, alleging that his former employer wrongfully withheld from him certain compensation. Docket Item 1. He asserted three claims, which are premised on (1) unjust enrichment, (2) New York Labor Law Article 6, and (3) breach of contract.

         On July 5, 2011, Hon. Richard J. Arcara[1] referred this matter to United States Magistrate Judge Leslie G. Foschio. Docket Item 8. On January 17, 2014, the defendant moved for summary judgment. Docket Item 37. And on May 8, 2015, Judge Foschio issued a Report and Recommendation (“R&R”), recommending that the motion be granted in part and denied in part. Docket Item 50. Pending before this Court are the parties' objections to the R&R.

         STANDARD OF REVIEW

         This Court “must determine de novo any part of the magistrate judge's disposition that has been properly objected to” and “may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3); see 28 U.S.C. § 636(b)(1). But neither 28 U.S.C. § 636 nor Federal Rule of Civil Procedure 72 requires a district court to review, under either a de novo or lesser standard, the portions of a report and recommendation to which no objections are addressed. See Thomas v. Arn, 474 U.S. 140, 149-50 (1985).

         DISCUSSION

         The defendant objected to Judge Foschio's recommendation that summary judgment in its favor be denied on the plaintiff's first claim (unjust enrichment). Docket Item 52. The plaintiff objected to Judge Foschio's recommendation that summary judgment be granted in favor of the defendant on the second claim (New York Labor Law). Docket Item 51. Neither side objected to Judge Foschio's recommendations that summary judgment be granted to the defendant on the third claim (breach of contract) or on the plaintiff's request for vacation pay.

         After conducting a de novo review with respect to those portions of the R&R to which objections were raised, and after carefully reviewing all Judge Foschio's conclusions and recommendations, this Court adopts the R&R, entered May 8, 2015, in its entirety.

         The defendant is in the business of placing nurses for employment in hospitals, and it employs recruiters who earn money in connection with those placements. The plaintiff's claims are premised on payments that he describes as “commissions” and that he alleges were wrongfully withheld.

         But the evidence suggests that the plaintiff was not an ordinary recruiter and that he did not receive ordinary “commissions.” As the defendant put it, the plaintiff “had a different bonus arrangement because his function was different than the recruiters in that he did not manage and recruit the nurses directly.” Docket Item 37-2 at ¶ 11. Instead, as the Vice President of Recruitment, [2]

[Giaimo] could earn an incentive based on SHC's profit earned for all nurses placed by the recruiters who worked under him. His bonus was based on SHC's profit. Giaimo earned his base salary plus 3.3% profit from all of the recruiters' placements. The 3.3% profit was earned in two parts. Giaimo would earn one-half of the incentive payment when a nurse initiated her contract. He would then earn the second half of the payment when a nurse's contract with a health care facility ended. If a nurse did not begin her contract, Giaimo would not be paid the first half of his “commission.” Likewise, if a nurse did not complete her contract such that SHC did not earn a profit on it, Giaimo would not be paid the second half of his “commission.”

Id. (internal record citations omitted). Although the parties disagree on a number of issues, the most salient facts concerning that compensation scheme (i.e., that the plaintiff received 3.3% of the profits on all nurse placements and that what he earned was paid in two parts) are not in dispute. Compare Id. with Docket Item 42 at ¶¶ 36, 38.

         This Court has considered the defendant's arguments as to why the plaintiff cannot recover certain of those payments under an unjust enrichment theory. Although unjust enrichment claims are disfavored in the employment context under New York law, this Court nevertheless agrees with Judge Foschio's conclusion that “there are issues of fact precluding summary judgment on Plaintiff's unjust enrichment claim.”[3]

         The defendant argued that in New York an “at-will sales representative is entitled to post-discharge commissions ‘only if the parties' agreement expressly provided for such compensation.'” Docket item 37-6 at 8 (quoting Swits v. N.Y. Sys. Exch. Inc., 281 A.D.2d ...


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