Andrus v. Dooney & Bourke, Inc. et al
Filing
102
ORDER granting in part and denying in part 75 Motion for Summary Judgment. The motion is granted as to the discrimination claims, the Equal Pay Act claims and the failure to pay commission claim with respect to Mr. Dooney (Counts 2,3,4 & 5). The motion is denied as to the failure to pay commission claim with respect to Dooney & Bourke. Signed by Judge Robert N. Chatigny on 9/30/2015. (Rickevicius, L.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
LYNN ANDRUS
:
:
Plaintiff,
:
:
v.
:
Case No. 3:13-cv-146(RNC)
:
DOONEY & BOURKE, INC., ET AL. :
:
Defendants.
:
RULING AND ORDER
Plaintiff brings this action against her former employer
alleging discrimination on the basis of sex in violation of Title
VII and Conn. Gen. Stat. § 46a-60(a)(1), violations of the Equal
Pay Act and failure to pay commissions in violation of Conn. Gen.
Stat. § 31-71a.1
Defendants have moved for summary judgment.
For the following reasons, the motion is granted in part and
denied in part.
I.
Background
Plaintiff was employed for twenty-five years at Dooney &
Bourke, a company that designs and retails high-end handbags.
Defs.' Rule 56(a)(1) Statement ¶ 1–10.
She began as a
receptionist and was promoted to a position in sales.
1
Id.
As a
Plaintiff’s original complaint included claims that
defendants discriminated against her on the basis of age in
violation of the Age Discrimination in Employment Act, 29 U.S.C.
§ 621 and permitted a sexually hostile work environment in
violation of Conn. Gen. Stat. § 46a-60. Compl. (ECF. No. 1).
These claims have been withdrawn.
1
sales representative, she received an annual salary and health
insurance and was eligible to participate in a 401(k) retirement
plan.
Id. ¶ 9.
Dooney & Bourke also paid her travel and
business expenses.
Id.
In or around 1999-2000, plaintiff began
to receive a one-percent commission in addition to her annual
salary and employee benefits.
Id. ¶ 10.
The commission was
based on sales of merchandise shipped to customers.
Id. ¶ 11.
Independent sales representatives were paid a higher commission
than employees, typically ranging from three-and-a-half percent
to five percent.
Id. ¶ 63.
Independent sales representatives
own and operate their own businesses and pay their own expenses.
Id. ¶ 62.
During the course of her employment, plaintiff never
requested that she be treated as an independent sales
representative rather than as a salaried employee.
Id. ¶ 68.
In the late 2000s, more than a decade after plaintiff began
working as a sales representative, many retailers who purchased
handbags from the company began consolidating their buying
operations.
Id. ¶¶ 15–20.
As a result, some retailers began
purchasing less from Dooney & Bourke.
Id. ¶¶ 21–23.
Dooney &
Bourke's annual sales at Nordstrom, one of plaintiff's accounts,
declined from approximately $9,000,000 to less than $4,000,000.
Id. ¶ 23.
Dooney & Bourke's annual sales at Bloomingdales,
another of plaintiff's accounts, also declined.
2
Id. ¶¶ 21-22.
In response, Dooney & Bourke decided to consolidate and
restructure its sales force.
Id. ¶¶ 19–20.
Plaintiff's employment was terminated on March 14, 2012.
Id. ¶ 34.
Ron Moholt, an independent sales representatives who
had worked with plaintiff on the Nordstrom account for many
years, was terminated the same day.
Id. ¶ 35.
Following
plaintiff's termination, Dooney & Bourke continued paying
plaintiff her salary and benefits through June 30, 2012.
Id. ¶
42.
II.
Discussion
A.
Discrimination Claims
Plaintiff alleges sex discrimination in connection with the
termination of her employment and her compensation.
Compl. (ECF. No. 92).
Second Am.
Her discrimination claims are analyzed
using a burden-shifting framework.
See McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802-03 (1973).
Plaintiff has the initial
burden of presenting a prima facie case, which requires her to
show that 1) she is a member of a protected class; 2) she was
qualified for her position; 3) she suffered an adverse employment
action; and 4) the action occurred under circumstances giving
rise to an inference of discrimination.
The burden then shifts
to the defendant to give a legitimate, nondiscriminatory reason
for its action.
After such a reason is given, it becomes the
plaintiff’s burden to prove that the reason is not the true or
3
only reason for the challenged action and that the defendant’s
decision was motivated by discrimination.
See Terry v. Ashcroft,
336 F.3d 128, 138 (2d Cir. 2003) ("[O]nce the [employer] has made
a showing of a neutral reason for the complained of action, 'to
defeat summary judgment . . . the [employee's] admissible
evidence must show circumstances that would be sufficient to
permit a rational finder of fact to infer that the [employer's]
employment decision was more likely than not based in whole or in
part on discrimination.'" (quoting Stern v. Trustees of Columbia
Univ., 131 F.3d 305, 312 (2d Cir. 1997))).
Compensation
With regard to the compensation claim, defendants contend
that plaintiff's prima facie case fails at the fourth step in
that the relevant circumstances do not support an inference of
discrimination.
They argue that plaintiff received a lower
commission than some men, not because she is a woman, but because
she was a salaried employee rather than an independent sales
representative.
I agree that the record does not support an
inference of discrimination with regard to plaintiff’s
compensation.
Plaintiff argues that the independent sales representatives
were similarly situated to her because they were misclassified as
employees.
Pl.’s Memo. (ECF. No. 84) at 30–33.
The Second
Circuit recognizes that an independent contractor may in fact be
4
an employee.
See Frasier v. Gen. Elec. Co., 930 F.2d 1004, 1008
(2d Cir. 1991).
In assessing misclassification, courts look to
an employer's control over the individual.
Herman v. RSR Sec.
Servs. Ltd., 172 F.3d 132, 139 (2d Cir. 1999).2
Plaintiff points
to evidence reflecting Dooney & Bourke's control over its
independent sales representatives.
In Peter Dooney's deposition,
he stated that the independent sales representatives "report" to
Mr. Kinsey.
3) at 35.
Ex C. to Pl.'s Rule 56(a)(1) Statement (ECF. No. 85Some of the independent sales representatives have
2
Plaintiff advocates the “economic realities” test whereas
defendants argue in favor of the “ABC test.” These two tests,
though styled differently, both concern the degree and amount of
control an employer has over an individual.
The factors considered under the “economic realities” test
include "whether the alleged employer (1) had the power to hire
and fire the employees, (2) supervised and controlled employee
work schedules or conditions of employment, (3) determined the
rate and method of payment, and (4) maintained employment
records." Herman, 172 F.3d at 139 (citing Carter v. Dutchess
Cmty. Coll., 735 F.2d 8, 12 (2d Cir. 1984)); see also Rutherford
Food Corp. V. McComb, 331 U.S. 722, 730 (1947) (whether an
employer-employee relationship exists does not depend on isolated
factors but rather "upon the circumstances of the whole
activity").
Similarly, the factors considered under the “ABC test” are
whether: “(A) the individual performing the services has been and
will continue to be free from any control or direction over the
performance of his services both under his contract and in fact;
and (B) the service is either outside the usual course of
business for which it is performed or the service is performed
outside of all the places of business of the enterprise for which
it is performed; and (C) the individual performing the service is
customarily engaged in an independently established trade,
occupation, profession or business of the same nature.” F.A.S.
Int’l, Inc. v. Reilly, 179 Conn. 507, 511–12 (1980).
5
titles.
For example, Mr. Mazzaro, an independent sales
representatives, holds himself out as the director of wholesale
operations.
Ex. I to Def.’s Memo (ECF No. 85-9) at 46–47.
He
testified that Dooney & Bourke has sometimes paid his travel
expenses, and provided him with an email account and IT support.
Id. at 30, 103–04, 120.
Moreover, as plaintiff points out, Ron
Moholt has sued Dooney & Bourke claiming that he should have been
treated as an employee rather than an independent contractor.
Ex. D to Defs.’ Memo (ECF No. 85-4) at 5.
Whether the independent sales representatives were
misclassified as employees is not dispositive.
The key question
is whether the independent sales representatives were similarly
situated to plaintiff.
That is, whether the two positions were
“‘substantially equal’ in skill, effort, and responsibility,”
Downes v. JP Morgan Chase & Co., No. 03 CIV. 8991 GEL MHD, 2006
WL 785278, at *24 (S.D.N.Y. Mar. 21, 2006) report and
recommendation adopted sub nom. Downes v. J.P. Morgan & Chase &
Co., No. 03 CIV. 8991 (GEL), 2006 WL 1233939 (S.D.N.Y. May 8,
2006) (quoting Lavin-McEleney v. Marist Coll., 239 F.3d 476, 480
(2d Cir. 2001)), as well as in compensation structure.
For
example, in Nowlin v. Lake City, No. CIV.A. 4:10-01857, 2012 WL
831498 (D.S.C. Jan. 25, 2012) report and recommendation adopted,
No. CIV.A. 4:10-01857, 2012 WL 831492 (D.S.C. Mar. 12, 2012), the
plaintiff argued that she was similarly situated to an
6
independent contractor.
Id. at *10.
The court disagreed,
pointing out that the plaintiff was salaried, worked full-time
and received benefits whereas the independent contractor worked
five to fifteen hours a month and received no benefits.
See id.
(“Based upon the record presented, Plaintiff and [the independent
contractor] are not similarly situated and, thus, Plaintiff fails
to establish a prima facie case of discrimination.”).
Similarly,
the plaintiffs in Ahern v. Shinseki, No. 05-117-ML, 2009 WL
1615402 (D.R.I. June 9, 2009) aff'd, 629 F.3d 49 (1st Cir. 2010)
also sought to compare themselves to independent contractors.
Id. at *2.
The plaintiffs “enjoyed fringe benefits, including
paid vacation time, health insurance and retirement benefits”
whereas "the higher paid contractor technologists were selfemployed, with no rights under the federal personnel system, no
fringe benefits and they served only for temporary contract
terms.”
Id.
Like in Nowlin, the court found that the
plaintiffs’ claim was “fatally flawed” because it was “beyond
dispute that Plaintiffs, as employees, were not similarly
situated to the contract technologists.”
Id.
The record shows that independent sales representatives and
employees at Dooney & Bourke performed the same “common core" of
tasks, Brobst v. Columbus Servs., Int’l, 761 F.2d 148, 156 (3d
Cir. 1985), in that they both sold handbags to retailers.
However, their responsibilities were different.
7
The independent
sales representatives were responsible for scheduling their own
meetings with department store buyers and determining the agenda
for the meetings.
¶¶ 51–60.
Defs.’ Rule 56(a)(1) Statement (ECF. No. 76)
They also retained their own merchandisers to monitor
and assist with in-store displays of Dooney & Bourke’s products.
Id.
In essence, the independent sales representatives were
responsible for running their own show.
Employees, on the other
hand, worked at the direction of Dooney & Bourke.
The record also establishes that independent sales
representatives and employees were not similarly situated in
terms of compensation structure.
Employees received a lower
commission than independent sales representatives but they also
received a salary, health insurance and retirement benefits and
their expenses were paid.
Plaintiff never asked to be treated as
an independent sales representative rather than as a salaried
employee.
Id. ¶ 68.
Like the plaintiffs in Nowlin and Ahern, who were not
similarly situated to independent contractors, the record in this
case shows that plaintiff was not similarly situated to the
independent sales representatives at Dooney & Bourke.3
Moreover,
3
With respect to her Equal Pay Act claim, plaintiff makes
the same argument that the independent sales representatives are
proper comparators. Pl.’s Opp. (ECF. No. 84) at 24–29. She also
argues that even if the independent sales representatives are not
proper comparators, her claim should move forward because a male
employee, Ian Ray, made more than she did. Id. at 30. She then
explains why Mr. Ray is a proper comparator. Id. Plaintiff does
8
the record shows that it was not just the men working as
independent sales representatives who received higher
commissions.
Rather, both the male and female independent sales
representatives were paid higher commission rates than employees.
Id. ¶ 63.4
Accordingly, I conclude that plaintiff has failed to
make out a prima facie case that her compensation was lower
because of her gender.
See Barbour v. United Beechcraft, Inc.,
No. 96 C 50251, 1998 WL 803417, at *6 (N.D. Ill. Nov. 10, 1998)
(higher paid independent contractor and employee were not
similarly situated and it was “impossible to compare the two”).5
not advocate her “even if” argument with respect to her
discrimination claim, but if she did I would find that Mr. Ray is
not a proper comparator for the same reasons set forth in the
discussion on the Equal Pay Claim. See II.B.
4
Plaintiff’s deposition identifies that three of the seven
independent sales representatives who were paid a higher
commission rate were women: Ms. Fenton, Ms. Clifton and Ms.
Sobotka. Plaintiff attempts to distinguish Ms. Fenton because
she is part of a married couple and therefore “cannot be
considered as a female employee.” Pl.’s Opp. (ECF. No. 84) at
25. Regardless of Ms. Fenton’s marital status, she is still a
female independent sales representative and she receives the same
commission rate as the male independent sales representatives.
See Ex. K to Pl.'s Rule 56(a)(1) Statement (ECF. No. 85-11).
Plaintiff also attempts to distinguish Ms. Clifton as an improper
comparator because she sells through the QVC television network.
This ignores the fact that prior to selling through QVC, Ms.
Clifton sold the company’s products to a number of different
department stores and received the same commission rate as the
other independent sales representatives. See Exs. K and L to
Defs.’ Rule 56(a)(1) Statement (ECF. Nos. 76-11 and 76-12).
5
Even if plaintiff could satisfy her prima facie case with
respect to her lower commission rate, she has failed to
effectively rebut defendants’ explanation that she got a lower
commission because she was an employee who received a salary and
9
Termination
Defendants contend that plaintiff has also failed to satisfy
the fourth prong of a prima facie case with regard to her
termination.
They state that she was let go, not because she is
a woman, but because sales had declined significantly.
Plaintiff
offers some evidence that her termination occurred in
circumstances permitting an inference of discrimination and I
assume she has satisfied her de minimis burden in that regard.
However, her claim fails as a matter of law because defendants
have offered legitimate reasons for the termination and plaintiff
fails to provide evidence supporting a finding of discrimination.
Plaintiff does not dispute that the sales on the Nordstrom
account, one of her primary accounts, had declined substantially
in the years leading up to her termination.
56(a)(1) Statement (ECF. No. 76) ¶ 23.
Defs.’ Local Rule
Defendants offer this
decline in sales as their reason for letting her go.
Memo. (ECF. No. 77) at 16–18.
Defs.’
The record shows that Mr. Kinsey
informed plaintiff at her termination that the company had
reviewed the Nordstrom account and had decided to consolidate it
in an effort to reduce costs and increase efficiencies.
Def.'s Memo. (ECF. No. 76-6).
Ex. F to
In addition, plaintiff does not
benefits, in contrast with the independent sales representatives
who received neither.
10
dispute that her colleague on the account, a male, was let go on
the same day she was.
No. 76) ¶ 34.
Defs.’ Local Rule 56(a)(1) Statement (ECF.
The fact that two persons on the Nordstrom account
were terminated together provides further support that
plaintiff’s termination was indeed because of the declining
Nordstrom sales.
In addition, defendants offer other reasons for plaintiff’s
termination.
Defs.’ Memo. (ECF. No. 77) at 16–18.
They state
that Mr. Dooney was concerned about plaintiff not making enough
in-person visits to her accounts, as well as plaintiff's
agreement to accept multiple returns of product from Nordstrom
without first securing corresponding purchase orders.
Defs.’
Local Rule 56(a)(1) Statement (ECF. No. 76) ¶ 31–32.
Plaintiff's argument that the restructuring of the Nordstrom
account and the alleged returns issue are pretextual is
unavailing.
Plaintiff argues that the company now purchases about the
same amount from Nordstrom as it did in 2012 and that the returns
issue was concocted after-the-fact because it was not given as a
reason during her termination.
Pl.’s Opp. (ECF. No. 84) at 32.
Plaintiff cannot overcome the weight of the evidence as to the
declining sales at Nordstrom.
See Howley v. Town of Stratford,
217 F.3d 141, 150 (2d Cir. 2000) (to defeat summary judgment
plaintiff must "adduce admissible evidence that would be
11
sufficient to permit a rational finder of fact to infer that the
employer's proffered reason is pretext for an impermissible
motivation.").
She is advocating a view of the Nordstrom account
with the benefit of hindsight.
At the time of Dooney & Bourke's
decision, sales were significantly lower than they had been.
Defs.' Rule 56(a)(1) Statement ¶ 23.
The fact that they
rebounded does not alter the fact that they had decreased and the
company aptly responded to this decrease by realigning its
approach.
As for the returns, plaintiff argues that she was not
told of this issue at her termination and thus it “reeks of an
explanation that was made after the fact.”
84) at 32.
Pl.’s Opp. (ECF. No.
Though plaintiff was not told of this, the record
shows that defendants did not fabricate this explanation.
Defendants were disappointed that plaintiff had accepted these
returns and communicated among themselves about this prior to
plaintiff’s termination.
Defs.' Rule 56(a)(1) Statement ¶ 29.
B. Equal Pay
The Equal Pay Act prevents an employer from “pay[ing] lower
wages to an employee of one gender than to substantially
equivalent employees of the opposite gender in similar
circumstances.”
Pollis v. New School for Social Research, 132
F.3d 115, 118 (2d Cir. 1997).
To make out a prima facie case, a
plaintiff must show that: (1) the employer paid different wages
to employees of the opposite sex; (2) the jobs entailed equal
12
work requiring equal skill, effort and responsibility; and (3)
the jobs are performed under similar working conditions.
Ryduchowski v. Port Auth., 203 F.3d 135, 142 (2d Cir. 2000).
The
Equal Pay Act is not violated when a pay disparity is based on "a
system which measures earnings by quantity or quality of
production" or "a differential based on any other factor other
than sex."
29 U.S.C. § 206(d)(1); see also Ryduchowski, 203 F.3d
at 143.
Defendants argue that plaintiff is not comparing her
compensation to the compensation of similarly situated employees.
Defs.’ Memo. (ECF. No. 77) at 9–13.
The plaintiff, defendants
argue, is a salaried employee.
Those she is comparing
Id.
herself to are independent contractors who operate their own
businesses, pay their own business expenses and do not receive
any salary or benefits from Dooney & Bourke.
the same thing, defendants assert.
Id.
They are not
Id.
Claims for wage discrimination under the Equal Pay Act and
discrimination under Title VII are similar in that both require a
plaintiff to establish that she was treated differently than
those similarly situated.6
See Tomka v. Seiler, 66 F.3d 1295,
6
Unlike a discrimination claim, however, an Equal Pay Act
claim “does not require the plaintiff to make a showing of
discriminatory intent.” Downes v. JP Morgan Chase & Co., No. 03
CIV. 8991 GEL MHD, 2006 WL 785278, at *16 (S.D.N.Y. Mar. 21,
2006) report and recommendation adopted sub nom. Downes v. J.P.
Morgan Chase & Co., No. 03 CIV. 8991 (GEL), 2006 WL 1233939
(S.D.N.Y. May 8, 2006).
13
1312 (2d Cir. 1995) (“A claim of unequal pay for equal work under
Title VII . . . is generally analyzed under the same standards
used in an [Equal Pay Act] claim.”).
As with a Title VII
plaintiff, “a[n Equal Pay Act] plaintiff need not demonstrate
that her job is identical to a higher paid position, but only
must show that the two positions are 'substantially equal'" in
skill, effort, and responsibility.
Id.
This “substantially
equal” requirement “is designed to ensure that employers do not
incur liability for legitimate wage disparities owing to
differences.”
Drury v. Waterfront Media, Inc., No. 05 CIV. 10646
(JSR), 2007 WL 737486, at *3 (S.D.N.Y. Mar. 8, 2007) (citing
Strag v. Bd. of Trustees, 55 F.3d 943, 950 (4th Cir. 1995)).
Because plaintiff has not adduced sufficient evidence from which
a reasonable juror could find that the independent sales
representatives are similarly situated comparators, see supra
II.A, I agree with defendants that plaintiff has failed to make
out her prima facie case of wage discrimination.
Plaintiff argues that even if defendants are correct and the
independent sales representatives are not proper comparators, she
can still make out her prima facie case because the one maleclassified employee, Ian Ray, always made more than her in
commissions.
Pl.’s
Opp. (ECF. No. 84) at 30.
Although a sole
comparator can suffice under the Equal Pay Act, the sole
comparator must be similarly situated.
14
See Lavin-McEleney, 239
F.3d at 481 (permitting Equal Pay Act claim to move forward to
jury when there was “sufficient evidence for a reasonable juror
to have found that [sole comparator]’s position was substantially
equal to plaintiff’s [position]”).
is unavailing.
Again, plaintiff’s comparison
The record shows that Mr. Ray had a significantly
different job than that of plaintiff.
Though Mr. Ray was an
employee and not an independent sales representative, he was a
product designer and developer who both originated new customers
for Dooney & Bourke and developed products for those customers.
See Ex. C to Defs.’ Reply (ECF. No. 98-3) at 46–48.
Dooney testified, Mr. Ray was a “one-off.
He travels to China.
man total business.
He makes them.
47.
He designs [handbags].
He is – he’s kind of a one-
He works in a technical function of making
things, and everything is a one-off.
company or anything.
As Mr.
It’s not designed by the
They’re single specified products.”
Id. at
Plaintiff, on the other hand, did not have any design
responsibilities, nor did she develop new customer relationships.
See Ex. A to Defs.’ Reply (ECF. No. 98-1).
In short, plaintiff
and Mr. Ray did not perform "equal work" requiring "equal skill,
effort and responsibility."
Corning Glass Works v. Brennan, 417
U.S. 188, 195 (1974), and thus Mr. Ray is not a similarly
situated comparator.
C. Failure to Pay Commission
Connecticut's wage statute reads as follows: "When any
15
employer fails to pay an employee wages . . . such employee . . .
shall recover, in a civil action, twice the full amount of such
wages, with costs and such reasonable attorney's fees as may be
allowed by the court . . . ."
Conn. Gen. Stat. § 31–72.
The
statute defines "wages" as "compensation for labor or services
rendered by an employee, whether the amount is determined on a
time, task, piece, commission or other basis of calculation."
Conn. Gen. Stat. § 31-71a(3).
Plaintiff asserts that she is due
commissions arising after the termination of her employment and
that such commissions are “wages” rather than “severance.”
She
also seeks to hold Mr. Dooney individually liable under the wage
statute.
Under the wage statute, commissions - but not severance are included as "wages."
See Conn. Gen. Stat. § 31–71a(3); see
also Drybrough v. Acxiom Corp., 172 F. Supp. 2d 366, 371 (D.
Conn. 2001) (“Severance pay is not a wages because it is not
‘compensation for labor or services rendered.’” (quoting Justin
v. AMA, Ltd., No. CV92 29 33 60, 1993 WL 213707, at *2 (Conn.
Super. Ct. June 8, 1993))).
Here, the parties agree and the
record reflects that commissions were paid at Dooney & Bourke
once an order was actually shipped to a customer.
There remains, however, a factual dispute as to whether
plaintiff has been paid all commissions owed to her under the
statute.
Plaintiff is entitled to all commissions on orders that
16
were actually shipped to customers on or before March 14, 2012,
the date her employment was terminated.7
owe plaintiff no more commissions.
7.
Defendants argue they
Defs.’ Memo. (ECF. No. 77) at
Plaintiff states that she is owed more than $73.77, although
she makes two contradictory statements in her deposition.
she states that she was owed $44,159.30 in commissions.
First,
Ex. A.
to Pl.'s Rule 56(a)(1) Statement (ECF. No. 85-1) Pl.'s Depo. at
136.
On further questioning, she notes that she did not apply
chargebacks to these commission payments.
Id. at 150–56.
She
then testified that Dooney & Bourke does not owe her any
commissions.8
Id. at 156.
her commissions.9
Later, she states that they do owe
Id. at 234.
The affidavit of Robert Andrus,
the company analyst/planner, also avers that plaintiff is owed
$13,829.62 in commissions.
Ex. H to Pl.'s Rule 56(a)(1)
7
Defendants voluntarily paid plaintiff for all commissions
on orders that she had booked and that were shipped through June
30, 2012. These commissions, earned after plaintiff’s
termination, fall outside the scope of the statute and thus
plaintiff has no statutory right to contest the amount of these
payments.
8
"Q: Does Dooney and Bourke currently owe you any
commissions?
A: No, they don't owe me any commissions." Ex. A to Pl.'s Rule
56(a)(1) Statement (ECF. No. 85-1) at 156.
9
"Q: Do you believe that Dooney & Bourke currently owes you
commissions.
A: Yes, I thought there was a 12 or $13,000 discrepancy . . . .
Q: You currently believe that Dooney & Bourke owes you 12 or
$13,000 in commission?
A: Yes." Ex A. to Pl.'s Rule 56(a)(1) Statement (ECF. No. 85-1)
at 234.
17
Statement (ECF. No. 85-8 ¶ 9).
Thus, there remains a factual
dispute as to whether or not plaintiff is still owed commissions
on orders booked and shipped prior to her termination on March
14, 2012.
As to Mr. Dooney, an individual employer can be held liable
for unpaid wages if he or she is "the ultimate responsible
authority to set the hours of employment and to pay wages and is
the specific cause of the wage violation."
Butler v. Hartford
Tech. Inst., Inc., 243 Conn. 454, 463–64 (1997).
In Butler, the
Connecticut Supreme Court deemed that the trial court properly
held the defendant liable because he was president and treasurer
and the person in control of the institute, he reviewed all
employee time cards before authorizing the payment of wages, and
the plaintiff reported directly to him and was closely supervised
by him.
Id. at 458; see also Dehua Lin v. Brennan, 3:07-CV-1658
CFD, 2011 WL 5570779, at *4 (D. Conn. Nov. 15, 2011) ("[t]here is
no genuine question of fact that the Plaintiffs were employed by
the Tavern or that Brennan and Reynolds were responsible for the
employment and salary-setting for the Plaintiffs.").
Based on the record, Mr. Dooney cannot be held individually
liable under the wage statute.
Though Mr. Dooney was involved in
the decisions of the company and admits he was involved in the
18
decision to terminate plaintiff,10 there is no evidence that Mr.
Dooney was the "specific cause" of plaintiff not receiving her
commissions.
See Evans v. Tiger Claw, Inc., 141 Conn. App. 110,
124 (2013) (reversing trial court when there was "no testimony or
evidence that any of the individual defendants was solely
responsible for the payment of the plaintiff's wages or that any
one of them was the specific cause of a wage violation"); Stearns
v. Willard J. Stearns & Sons, Inc., No. TTDCV106001091S, 2012 WL
3064735, at *2 (Conn. Super. Ct. June 27, 2012) (upholding
directed verdict for defendants when plaintiffs did not present
any evidence showing that defendants "had any responsibility to
set the plaintiffs' hours of employment" or that they "had
responsibility for paying the plaintiffs' wages").
Unlike the
defendant in Butler, 243 Conn at 463-64, Mr. Dooney is not
responsible for commission payments.
The commission payments are
responsibility of Mr. Kinsey, who is also the individual who
informed plaintiff that her employment was being terminated.
Cf.
Maratea v. Taylor Freezer of Conn., Inc., No. CV084010421S, 2010
WL 1544820, at *5 (Conn. Super. Ct. March 24, 2010) (describing
the defendant in Butler as "controll[ing] virtually every aspect
of the employee's work environment").
Summary judgment will thus
10
"Q: Were you involved in the decision to terminate Ms.
Andrus?
A: Yes . . . . At the end of the day, although it was a difficult
decision . . . we decided to make the change." Ex. C to Pl.'s
Rule 56(a)(1) Statement (ECF. No. 85-3) at 74–75.
19
entered for Mr. Dooney on this claim, but not for Dooney &
Bourke.
III. Conclusion
Accordingly, defendants' motion for summary judgment is
granted in part and denied in part.
The motion is granted as to
the discrimination claims, the Equal Pay Act claims and the
failure to pay commission claim with respect to Mr. Dooney
(Counts 2, 3, 4 and 5).
The motion is denied as to the failure
to pay commission claim with respect to Dooney & Bourke.
So ordered this 30th day of September, 2015.
/s/RNC
Robert N. Chatigny
United States District Judge
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