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Malave v. Gault Auto Mall, Inc.

United States District Court, N.D. New York

January 17, 2018

IVELISSE MALAVE, on behalf of herself and all others similarly situated, Plaintiff,
v.
GAULT AUTO MALL, INC., et al., Defendants.

          ROBERT L. MULLIN, JR., ESQ. FOR PLAINTIFF

          NOLAN K. KLEIN, ESQ., VALERIE K. FERRIER, ESQ.FOR DEFENDANTS

          REPORT AND RECOMMENDATION

          DAVID E. PEEBLES CHIEF U.S. MAGISTRATE JUDGE

         This is an action brought by plaintiff Ivelisse Malave arising out of her former employment with defendants' automobile dealerships. In her complaint, she alleges that defendants violated the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., and New York Labor Law ("NYLL") § 650 et seq., through their misclassification of her job and those of others similarly situated as exempt from state and federal overtime laws and their concomitant failure to properly compensate those employees for time over forty hours worked in a given work week.

         Currently pending before the court are three motions. Plaintiff initiated the motion process by seeking certification of the matter as a collective action under the FLSA.[1] That motion was followed by cross-motions of the parties, each seeking the entry of summary judgment. For the reasons set forth below, I recommend that defendants' summary judgment motion be granted, and plaintiff's complaint be dismissed.

         I. BACKGROUND[2]

         Defendants Gault Auto Mall, Inc. ("Gault Auto Mall") and Gault Chevrolet, Inc. ("Gault Chevrolet") are New York corporations that own and operate automobile dealerships in Broome County, New York.[3] Dkt. No. 1 at 5-6; Dkt. No. 19-1 at 1. Those two companies also provide automobile parts and services, but do not engage in any manufacturing. Dkt. No. 19-1 at 1. In her complaint, plaintiff alleges that defendants Robert Gault and Connie Gault are the owners of Gault Auto Mall and/or Gault Chevrolet and are substantially involved in the operations of those entities. Dkt. No. 1 at 5-6.

         From approximately October 2013 through May 2015, and again from about August 2016 through February 2017, plaintiff was employed by defendants as a service advisor and at various times was assigned to work in their Toyota, Volkswagon, and Chevrolet dealerships.[4] Dkt. No. 1 at 2-3; Dkt. No. 15-3 at 1. In that position, plaintiff's duties were performed pursuant to a job description signed by plaintiff and a representative of defendants on October 9, 2013. See Dkt. No. 16-4. That job description specified that as a service advisor, plaintiff acted as a liason between mechanics at the dealership and customers with respect to vehicles serviced there. Id. In that capacity, she met with customers, received their vehicles, performed administrative intake tasks, and attempted to sell additional vehicle services to those customers. Id.; see also Dkt. No. 15-3 at 2. Plaintiff was also responsible for writing repair orders, following up on service repairs, and providing customers with estimates of repair costs. Dkt. No. 16-4.

         In her position, plaintiff was not compensated based upon the number of hours worked. Dkt. No. 15-3 at 2. Instead, she was paid a monthly base salary of $625.00 plus commissions on the sales of automotive services using a formula determined by defendants. Id.; see also Dkt. No. 1 at 2. In addition, she was also advanced weekly draws, calculated based on the number of days that she worked, and those draws were then deducted from her total commissions and salary when reconciled on a monthly basis.[5] Dkt. No. 1 at 2-3, 13; Dkt. No. 15-3 at 2. Despite the fact that she routinely worked in excess of forty hours per week, plaintiff was not paid overtime for hours worked in excess of forty hours in a single work week. Dkt. No. 15-3 at 2.

         In her complaint, plaintiff claims that she was misclassified as an exempt employee in violation of the FLSA and NYLL, and that if properly regarded as a non-exempt employee and paid on an hourly basis, including for overtime, she would be owed approximately $40, 757.00, exclusive of liquidated damages, interest, costs, and attorney's fees. Dkt. No. 1 at 10. Plaintiff further alleges that defendants' violations of the FLSA and NYLL were willful. Id. at 10-11.

         II. PROCEDURAL HISTORY

         Plaintiff commenced this action on July 25, 2017. Dkt. No. 1. Plaintiff's complaint is styled as a class action, purporting to assert claims "on behalf of herself and all others similarly situated." Id. In her complaint, plaintiff sets forth claims under the FLSA and NYLL and alleges that the violations were willfully committed by defendants. Id. Issue was joined on August 30, 2017, by the filing of an answer on behalf of defendants generally denying the material allegations of plaintiff's complaint. Dkt. No. 5.

         On November 24, 2017, plaintiff moved to conditionally certify the matter as a collective action under the FLSA. Dkt. No. 15. Defendants responded on November 27, 2017, with opposition papers in which they argue that plaintiff's position was exempt from the overtime provisions of the FLSA, and that her motion for conditional collective action certification should be denied. Dkt. No. 16. In addition, defendants have also sought the entry of summary judgment dismissing plaintiff's FLSA claim, and declining to exercise supplemental jurisdiction over her NYLL cause of action. Id. Plaintiff has since opposed defendants' motion for summary judgment and cross-moved for summary judgment in her favor finding that defendants violated the FLSA by failing to pay her overtime compensation. Dkt. No. 18. Now that defendants have responded in opposition to plaintiff's motion for summary judgment and in further support of their summary judgment motion, Dkt. No. 19, the parties' motions are fully briefed and ripe for determination

         The parties' motions have been referred to me for consideration by Senior District Judge Lawrence E. Kahn. Oral argument in connection with the motions was heard on January 3, 2018, at which time decision was reserved.

         III. DISCUSSION

         A. Summary Judgment Standard

         Summary judgment motions are governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, the entry of summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir. 2004). A fact is "material" for purposes of this inquiry if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248; see also Jeffreys v. City of N.Y., 426 F.3d 549, 553 (2d Cir. 2005). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.

         A party moving for summary judgment bears an initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue; the failure to meet this burden warrants denial of the motion. Anderson, 477 U.S. at 250 n.4; Sec. Ins. Co., 391 F.3d at 83. In the event this initial burden is met, the opposing party must show, through affidavits or otherwise, that ...


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