United States District Court, N.D. New York
IVELISSE MALAVE, on behalf of herself and all others similarly situated, Plaintiff,
GAULT AUTO MALL, INC., et al., Defendants.
L. MULLIN, JR., ESQ. FOR PLAINTIFF
K. KLEIN, ESQ., VALERIE K. FERRIER, ESQ.FOR DEFENDANTS
REPORT AND RECOMMENDATION
E. PEEBLES CHIEF U.S. MAGISTRATE JUDGE
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
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. 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.
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. 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
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. 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.
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. 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.
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.
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.
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
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.
Summary Judgment Standard
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.
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 ...