Roxanne Slow v. Prestige Merchandising Company, Inc., et al

Filing 37

MEMORANDUM & ORDER: The defendant has failed to show that plaintiffs FLSA and New York State Minimum Wage Act claims fit under any statutory exemption for the entire period for which she seeks overtime compensation, or that she has not sufficiently s upported her hostile environment and retaliation claims under the NYSHRL and NYCHRL. See attached Memorandum and Order for details. Counsel shall contact MJ Gold's chambers with respect to submitting their joint pre-trial order. Once approved and ECF filed the Court will schedule a pre-trial conference to schedule a trial date. Ordered by Senior Judge Frederic Block on 9/19/2011. (Innelli, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ROXANNE SLOW,
Plaintiff,
-against-

MEMORANDUM AND ORDER
Case No. 08-CV-4425 (FB) (SMG)

PRESTIGE MERCHANDISING COMPANY,
INC. a/k/a PRESTIGE MERCHANDISING CO.
and WILSON PEREZ
Defendant.
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Appearances:
For the Plaintiff:
DAVID ABRAMS, ESQ.
299 Broadway – Suite 1700
New York, New York 10007

For the Defendant:
MARC D. GREENWALD, ESQ.
The Proskin Law Firm, P.C.
423 Loudon Road
Albany, New York 12211
WILSON PEREZ
3 Sandy Ct.
Paterson, NJ 07522

BLOCK, Senior District Judge:
For the reasons stated at oral argument held on September 14, 2011, and
further explained below, defendant Prestige Merchandising Company, Inc. a/k/a/
Prestige Merchandising Co.’s motion for summary judgment is denied.
With respect to the plaintiff’s Fair Labor Standards Act (“FLSA”) and New
York State Minimum Wage Act claims, the defendant has not shown that the plaintiff fell
within either the outside salesperson exemption or the executive exemption to federal and
state overtime compensation requirements for the entirety of her employment. See 29
U.S.C. § 213(a)(1); New York Labor Law § 651(5)(c),(d); Havey v. Homebound Mortgage, Inc.,
547 F.3d 158, 163 (2d Cir. 2008) (“the burden rests on the employer to prove that a

particular employee is exempt from the [FLSA’s] requirements”).1 For at least part of her
employment with the defendant, the plaintiff did not fall under the salesperson exemption
because her “primary duty” was not “to make sales or to obtain orders or contracts.” In
re Novartis Wage & Hour Litig., 611 F.3d 141, 152 (2d Cir. 2010) (quoting Defining and
Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and
Computer Employees, 69 Fed.Reg. 22122, 22162 (Apr. 23, 2004)); see also 29 C.F.R. § 541.500
(defining an “outside salesman” as an employee “[w]hose primary duty is making sales
. . . or . . . obtaining orders or contracts for services . . .” and who “customarily and
regularly” performs this duty “away from the employer's place or places of business”);
N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.14(c)(5) (defining an “outside salesperson”
under New York Labor Law as one “predominantly engaged away from the premises of
the employer . . . for the purpose of . . . making sales . . . selling articles or goods . . . or
obtaining orders or contracts . . . “). If an employee “does not consummate the sale nor
direct efforts toward the consummation of a sale, the work is not exempt outside sales
work.” 29 C.F.R. § 541.503(c).
The plaintiff may have been a salesperson when she was initially hired as an
independent dealer, but it is unclear from the present record how long she worked in that
capacity and what that position entailed. In any event, plaintiff’s title changed at some
indeterminate point to canvasser and, later, canvass manager.

Plaintiff’s task as a

canvasser, according to her deposition testimony, was to “bring[] the dealers inside [the]
1

In an interrogatory response, plaintiff’s counsel estimates that approximately 48 of
plaintiff’s 60 weeks of employment are subject to overtime compensation laws. Counsel
does not explain why the remaining 12 weeks are not covered.
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house” – she would go from door to door arranging appointments for the dealers, who
would use these appointments to conduct demonstrations and, ideally, complete sales.
Plaintiff received a $50 commission for each sale made during an appointment she had
arranged. After her promotion to canvass manager, she was further responsible for
“train[ing] new canvassers.” As a canvasser and canvass manager, plaintiff did not
attempt to complete sales. Rather, her work is best characterized as promotional activity
“designed to stimulate sales . . . made by someone else,” which is explicitly not exempt
under the Secretary of Labor’s regulations. 29 C.F.R. § 541.503(b). Thus, defendant’s
attempt to color the entire duration of plaintiff’s employment as falling within the
exemption must fail. To the extent defendant demonstrates at trial that the plaintiff
worked as a salesperson prior to becoming a canvasser, the plaintiff will not be permitted
to recover for any period during which she fell under the exemption. The precise date on
which plaintiff became a canvasser, however, is an outstanding factual question.
The amount and structure of plaintiff’s compensation prevent her from being
categorized as an “executive” employee.

See 29 C.F.R § 541.100(a)(1) (defining an

“executive” employee under the FLSA as one “compensated on a salary basis at a rate of
not less than $455 per week”); N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.14(c)(4)(i)(e)
(defining an “executive” employee as one “paid . . . a salary of not less than . . . $506.25 per
week on and after January 1, 2006 . . . [and] $536.10 per week on and after January 1, 2007").
Plaintiff first earned a base salary of $300 per week, later increased to $350 per week, plus
a $50 bonus for any sale made as a result of her promotional activity for a total, in her
approximation, of $450 a week. If she missed a day of work for any reason, $50 would be
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deducted from her paycheck. There is no evidence that plaintiff ever earned enough to
meet the executive exemption’s threshold salary requirement. Moreover, she was not paid
“on a salary basis,” inasmuch as her predetermined compensation was “subject to
reduction because of variations in the quality or quantity of the work performed” and she
did not “receive [her] full salary for any week in which [she] perform[ed] any work
without regard to the number of days or hours worked.” 29 C.F.R. § 541.602(a).
With respect to plaintiff’s sex discrimination claims pursuant to the New York
State Human Rights Law (NYSHRL), N.Y. Exec. Law § 296(1)(a), and the New York City
Human Rights Law (NYCHRL), N.Y.C. Admin. Code § 8-107(1)(a), the plaintiff has
proffered sufficient evidence that she was frequently subjected to lewd, sexually suggestive
comments and touching by her supervisor and co-workers for a reasonable fact-finder to
conclude “(1) that the workplace was permeated with discriminatory intimidation that was
sufficiently severe or pervasive to alter the conditions of his or her work environment, and
(2) that a specific basis exists for imputing the conduct that created the hostile environment
to the employer.” Mack v. Otis Elevator Co., 326 F.3d 116, 122 (2d Cir. 2003) (citation and
internal punctuation omitted); see also Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 278
(2d Cir. 2000) (holding that the NYSHRL is “co-extensive with [its] federal counterpart[],”
while “claims under the NYCHRL must be reviewed . . . ‘more liberally’”). Plaintiff claims
to have endured unwanted comments and touching on a “daily” basis, much of it from her
supervisor.

The supervisor’s conduct is presumptively imputed to the defendant,

Gorzynski v. Jetblue Airways Corp., 596 F.3d 93, 103 (2d Cir. 2010), and the defendant has not
raised a Faragher/Ellerth defense. See id. With respect to plaintiff’s co-workers, she has
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alleged facts sufficient to show, “that the employer knew (or reasonably should have
known) about the harassment but failed to take appropriate remedial action.” Petrosino v.
Bell Atlantic, 385 F.3d 210, 225 (2d Cir. 2004) (citing Faragher v. City of Boca Raton, 524 U.S.
775, 789 (1998)).
The plaintiff has established a prima facie retaliation case under the NYSHRL,
N.Y. Exec. Law § 296(e), and the NYCHRL, N.Y.C. Admin. Code § 8-107(7), by showing
that “(1) she was engaged in an activity protected . . . ; (2) the employer was aware of [her]
participation in the protected activity; (3) the employer took adverse action against [her];
and (4) a causal connection existed between the plaintiff’s protected activity and the
adverse action taken by the employer.” Gordon v. New York City Bd. of Educ., 232 F.3d 111,
116 (2d Cir. 2000) (citation and internal quotation marks omitted); see also Fincher v.
Depository Trust and Clearing Corp., 604 F.3d 712, 723 (2d Cir. 2010) (holding that NYSHRL
retaliation claims are analyzed under the federal standard, while the NYCHRL has a
“broader” conception of adverse employment action). Defendant’s only challenge to
plaintiff’s retaliation claim is that her informal complaints to management do not constitute
a protected activity. It is well-settled, however, that such complaints are protected. See
Sumner v. U.S. Postal Service, 899 F.2d 203, 209 (2d Cir. 1990) (noting that protected activity
includes such “informal protests” as “making complaints to management, writing critical
letters to customers, protesting against discrimination by industry or by society in general,
and expressing support of co-workers who have filed formal charges”). Finally, neither the
NYSHRL nor the NYCHRL requires the plaintiff to exhaust her administrative remedies.
N.Y. Exec. Law § 297; N.Y.C. Admin. Code §§ 8-109(a), 8-502(a).
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In sum, the defendant has failed to show that plaintiff’s FLSA and New York
State Minimum Wage Act claims fit under any statutory exemption for the entire period
for which she seeks overtime compensation, or that she has not sufficiently supported her
hostile environment and retaliation claims under the NYSHRL and NYCHRL. Defendant’s
motion for summary judgment is therefore denied.
SO ORDERED.

____________________________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
September 19, 2011

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