PITMAN, United States Magistrate Judge:
This is an employment discrimination action brought by a pro se plaintiff against her former employer, the Associated Press (the "AP"). Construed liberally, plaintiff's complaint asserts claims under the Age Discrimination in Employment Act ("ADEA") and the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law §§ 290 et seq. Defendant construes plaintiff's complaint to be asserting additional claims for violations of the minimum wage, overtime and anti-retaliation provisions of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq. By notice of motion dated September 13, 2013 (Docket Item 17), defendant moves for an Order pursuant to Fed.R.Civ.P. 56, granting it summary judgment as to plaintiff's claims arising under the FLSA and dismissing plaintiff's complaint.
The parties have consented by my exercising plenary jurisdiction over this action pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, defendant's motion is granted with respect to plaintiff's claims arising under the FLSA. Plaintiff is also granted thirty days to oppose summary judgment independent of defendant's motion on plaintiff's remaining claims arising under the ADEA and NYSHRL.
This is an action arising out of plaintiff's employment as a sales associate for the AP from June 2010 to September 2011.
On June, 14, 2010, plaintiff was hired by the AP as a sales associate in the AP's video archive and business development
In November of 2010, plaintiff was assigned to perform research for her direct supervisor, Claribel Torres, in order to help Torres secure business from a potential customer (the "Classmates.com Account") (Complaint, dated Apr. 3, 2012, (Docket Item 2) ("Compl.") at 6;
On December 14, 2010, the Group held a staff meeting in order to discuss the implementation of a new billing system at the AP. During that meeting, Torres "stood up in front of everyone and said [to plaintiff] [`] are you sure you are going to be able to get this[']" (McNamara Dep. at 79:12-25; see also Compl. at 6). Plaintiff was the only employee more than forty years old in the meeting and was the only employee who was asked this question (Compl. at 6).
In January 2011, Torres received a commission from the Classmates.com Account (Compl. at 6; McNamara Dep. at 26:13-27:3). When plaintiff requested a portion of the commission, Torres told her that the AP would not allow her to split the commission (Compl. at 6; McNamara Dep. at 10:11-25).
On February 9, 2011, plaintiff attended a meeting with Pawlak. In the meeting plaintiff explained that Torres had refused to split the commission with her (Pawlak Aff. at ¶ 8). Pawlak told plaintiff that she was not entitled to and would not be paid a commission for the research she performed for the Classmates.com Account (Pawlak Aff. at ¶ 8). However, Pawlak
Following plaintiff's meeting with Pawlak, plaintiff was informed that she would start performing research for the entire Group in addition to the normal sales and research duties related to her own accounts (McNamara Dep. at 11:7-13). Plaintiff would also be responsible for completing administrative tasks for Torres including setting up "a messenger service" and generating mailing labels (Compl. at 6-7; McNamara Dep. at 102:9-103:10). Plaintiff alleges that these additional tasks were onerous and that they would have prevented her from reaching her annual bonus goals (Compl. at 7).
On or about March 7, 2011, plaintiff requested a reduction in either her research or sales responsibilities (Compl. at 7; Quan Aff. at ¶ 11). The AP agreed to eliminate plaintiff's sales responsibilities with the proviso that plaintiff would no longer be eligible to earn commissions (Compl. at 7; Quan Aff. at ¶ 11).
On April 29, 2011, plaintiff met with Torres. Torres told plaintiff that she had overheard plaintiff speaking with co-workers about her salary and that plaintiff was adversely affecting the morale of the Group (Compl. at 7). Torres also told plaintiff that she was "going to have to write [plaintiff] up" and that plaintiff might not be a good fit for the company (Compl. at 7).
Three days later, on May 2, 2011, plaintiff met with the AP's Human Resources Department. She recounted her interactions with Torres and requested an intervention (Compl. at 7).
In or about August 2011, plaintiff refused to perform the job duties of her new position and requested that she be considered for an alternate sales position at the AP (Quan Aff. at ¶ 13). Plaintiff's request was denied because the AP believed that she was not qualified for the sales position (Quan Aff. at ¶ 13). Plaintiff requested that she be terminated, but was told by the Human Resources Department that if she did not perform her job duties, the AP would consider plaintiff to have voluntarily resigned (Quan Aff. at ¶ 13). On September 2, 2011, plaintiff voluntarily resigned from her employment, and the AP accepted plaintiff's resignation (Quan Aff. at ¶ 14).
On December 5, 2011, plaintiff filed a claim against defendant with the Equal Employment Opportunity Commission ("EEOC"), alleging discrimination on the basis of sex and age in violation of Title VII and the ADEA (Compl. at 11). On January 11, 2012, the EEOC issued plaintiff a notice of dismissal and right to sue letter (Complaint at 9).
Although poorly drafted, plaintiff's complaint may be read to assert claims of age discrimination and retaliation under the ADEA and NYSHRL. In the form complaint plaintiff used to commence this action, plaintiff indicated that defendant's discriminatory acts consisted of "unequal
Defendant's memorandum of law in support of its motion for summary judgment assumes that plaintiff has asserted only claims under the minimum wage, overtime and anti-retaliation provisions of the FLSA (see Memorandum of Law in Support of the Associated Press' Motion for Summary Judgment, dated Sept. 13, 2013, (Docket Item 23) ("Def.'s Mem.") at 5-8). Plaintiff's opposition makes no arguments that are responsive to those raised by defendant, cites not law and provides no additional factual information (Plaintiff's Opposition to Defendant's Motion for Summary Judgment, dated Oct. 21, 2013, (Docket Item 25) ("Pl.'s Mem.")). Accordingly, I assume that plaintiff's complaint asserts claims under the FLSA and shall address whether summary judgment is warranted as to those claims.
The standards applicable to a motion for summary judgment are well-settled and require only brief review.
McClellan v. Smith, 439 F.3d 137, 144 (2d Cir.2006); accord Hill v. Curcione, 657 F.3d 116, 124 (2d Cir.2011); Jeffreys v. City of New York, 426 F.3d 549, 553-54 (2d Cir.2005); Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 84 (2d Cir.2004).
"Material facts are those which `might affect the outcome of the suit under the governing law,' and a dispute is `genuine' if `the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Coppola v. Bear Stearns & Co., Inc., 499 F.3d 144, 148 (2d Cir.2007), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); accord McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir.2007). "`[I]n ruling on a motion for summary judgment, a judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the [non-movant] on the evidence presented[.]'" Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 788 (2d Cir.2007), quoting Readco, Inc. v. Marine Midland Bank, 81 F.3d 295, 298 (2d Cir. 1996).
Entry of summary judgment is appropriate "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "In such a situation, there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, supra, 477 U.S. at 322-23, 106 S.Ct. 2548, citing Fed. R.Civ.P. 56.
As noted in McClellan v. Smith, supra, 439 F.3d 137, a court cannot make credibility determinations or weigh the evidence in ruling on a motion for summary judgment.
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)
Defendant notes in its reply that plaintiff has not filed an opposing statement of the material facts as required by Local Civil Rule 56.1 and that pursuant to that rule, I may deem the statements set forth in defendant's Rule 56.1 statement to be admitted. "A district court has broad discretion to determine whether to overlook a party's failure to comply with local court rules," and, thus, "it may in its discretion opt to conduct an assiduous review of the record even where one of the parties has failed to file [a counter-statement under Local Rule 56.1]." Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir.2001) (inner quotation marks and citations omitted). Due to the limited record in this case, as a matter of discretion, I decline to consider as uncontroverted the facts set forth in defendant's Rule 56.1 statement by virtue of plaintiff's default, and, to the extent permitted by the authorities discussed above, I have considered the submissions from both parties in assessing whether the defendant is entitled to summary judgment. See Gantt v. Horn, 09 Civ. 7310(PAE), 2013 WL 865844 at *1 n. 2 (S.D.N.Y. Mar. 8, 2013) (Engelmayer, D.J.) (reviewing of the record to fill gaps resulting from plaintiff's failure to file a 56.1 counter-statement).
Defendant contends that it is entitled to summary judgment on plaintiff's minimum wage, overtime and retaliation claims under the FLSA because (1) plaintiff has not shown that defendant failed to pay her either the minimum wage or the overtime rate for hours worked beyond forty in a given workweek and (2) plaintiff's complaints to Pawlak and the AP's Human
Pursuant to the FLSA, every employer covered by the FLSA must pay each employee a minimum of $7.25 per hour. 29 U.S.C. § 206(a). In addition, an employee must be compensated at a rate of no less than 1.5 times the regular rate of pay for any hours worked in excess of forty per week. 29 U.S.C. § 207(a). However, "[t]he FLSA statute requires payment of minimum wages and overtime wages only; therefore, the FLSA is unavailing where wages do not fall below the statutory minimum and hours do not rise above the overtime threshold." Nakahata v. New York-Presbyterian Healthcare Sys., Inc., 723 F.3d 192, 201 (2d Cir.2013) (citations omitted). An employee asserting an overtime violation must demonstrate that she worked "40 hours ... in a given workweek as well as some uncompensated time in excess of the 40 hours." Nakahata v. New York-Presbyterian Healthcare Sys., Inc., supra, 723 F.3d at 201. Moreover, an employee fails to state a claim for a minimum wage violation "unless [her] average hourly wage falls below the federal minimum wage." Lundy v. Catholic Health Sys. of Long Island, Inc., 711 F.3d 106, 115 (2d Cir.2013). A plaintiff's average hourly wage is determined "by dividing his total remuneration for employment... in any workweek by the total number of hours actually worked by him in that workweek for which such compensation was paid." 29 C.F.R. § 778.109.
Plaintiff has the burden of showing insufficient payment for hours worked. Yang v. ACBL Corp., 427 F.Supp.2d 327, 333 (S.D.N.Y.2005) (Sand, D.J.). However, if at the summary judgment stage the employer fails to keep the required records, a plaintiff may meet this burden "`if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.'" Reich v. S. New England Telecomms. Corp., 121 F.3d 58, 66-67 (2d Cir.1997), quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946). "A plaintiff may do so solely through his or her own recollection." Gunawan v. Sake Sushi Rest., 897 F.Supp.2d 76, 84 (E.D.N.Y. 2012); Yang v. ACBL Corp., supra, 427 F.Supp.2d at 335.
To the extent plaintiff's complaint may plausibly be read as asserting minimum wage and overtime violations of the FLSA arising from the AP's failure to pay plaintiff a sales commission, defendant is entitled to summary judgment on those claims. Plaintiff has not offered any evidence that she worked more than forty hours in a given workweek, nor has she come forward with any evidence that she was paid less than the minimum wage. To the contrary, at all times during plaintiff's employment at the AP she was earning a salary of $40,000 per year, and, until the last three months of her employment, was also earning 2% commission of any sale that she generated and billed (Quan Aff. at ¶ 5). Thus, plaintiff's compensation was more than twice the minimum wage.
To the extent plaintiff asserts a retaliation claim under the FLSA, defendant is entitled to summary judgment as to that claim as well. The FLSA's anti-retaliation provision forbids employers from discharging or discriminating against any employee who has "filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding ...." 29 U.S.C. § 215(a)(3). "[A] plaintiff alleging retaliation under FLSA must first establish a prima facie case of retaliation by showing (1) participation in protected activity known to the defendant, like the filing of a FLSA lawsuit; (2) an employment action disadvantaging the plaintiff; and (3) a causal connection between the protected activity and the adverse employment action." Mullins v. City of New York, 626 F.3d 47, 53 (2d Cir.2010); Graves v. Deutsche Bank Secs., Inc., 548 Fed.Appx. 654, 656 (2d Cir.2013); Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir.2010). The Court of Appeals for the Second Circuit has held that Section 215 does not encompass "internal complaints" made to an employer, as opposed to complaints made to a governmental agency or the filing of a lawsuit. See Lambert v. Genesee Hosp., 10 F.3d 46, 55-56 (2d Cir. 1993), abrogated on other grounds, Kasten v. Saint-Gobain Performance Plastics Corp., ___ U.S. ___, ___, 131 S.Ct. 1325, 1335, 179 L.Ed.2d 379 (2011); accord Kassman v. KPMG LLP, 925 F.Supp.2d 453, 473 n. 6 (S.D.N.Y.2013) (Furman, D.J.); Hyunmi Son v. Reina Bijoux, Inc., 823 F.Supp.2d 238, 243 (S.D.N.Y.2011) (Scheindlin, D.J.). Nor does it encompass complaints that are not "sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection." Kasten v. Saint-Gobain Performance Plastics Corp., supra, 131 S.Ct. at 1335; Kassman v. KPMG LLP, supra, 925 F.Supp.2d at 472.
Plaintiff has not proffered any evidence that she filed any complaints regarding FLSA violations prior to her resignation. Plaintiff's complaints to Pawlak and the AP's Human Resources Department were internal complaints made to her employer, and, therefore, are not protected by the FLSA's anti-retaliation provision. Moreover, the only evidence in the record on this issue establishes that plaintiff complained only that she had not been paid what she had been promised, not that defendant was violating the FLSA.
Accordingly, defendant's motion for summary judgment is granted as to plaintiff's minimum wage, overtime and retaliation claims under the FLSA.
As previously discussed, defendant's motion does not address plaintiff's claims pursuant to the ADEA and NYSHRL.
However, as outlined below, plaintiff's age-discrimination and retaliation claims suffer from several clear defects, and, therefore, it appears, at least preliminarily, that summary judgment should be granted on plaintiff's remaining claims mea sponte absent a showing by plaintiff that a reasonable jury could return a verdict
First, plaintiff has not presented evidence sufficient to establish a prima facie case of age discrimination under the ADEA and NYSHRL. In order to do so, a plaintiff must demonstrate that she is (1) within the protected age group, (2) qualified for the position, (3) suffered some adverse employment action, and (4) that the circumstances surrounding the adverse employment action give rise to an inference of discrimination. See Spiegel v. Schulmann, 604 F.3d 72, 80 (2d Cir.2010); Terry v. Ashcroft, 336 F.3d 128, 137-38 (2d Cir.2003). Even if I were to assume that plaintiff has satisfied the first three requirements, plaintiff cites only one instance that she believes demonstrates that she was denied wages, given more onerous job duties and constructively discharged because of her age. Plaintiff alleges that on December 14, 2010 at a Group meeting to implement the AP's new billing system, Torres said to her in front of the Group "are you sure you are going to be able to handle this" (Compl. at 6). Plaintiff further alleges that she was the only person more than forty years old at the meeting and that she was the only person asked this question. Without more context, however, it is not clear from plaintiff's description of the incident whether Torres's question had any connection to plaintiff's age. Moreover, although a stray remark may lend support to plaintiff's age discrimination claim when considered with other evidence, "by itself [such remarks are] usually not sufficient proof to show age discrimination." Carlton v. Mystic Transp., Inc., 202 F.3d 129, 136 (2d Cir. 2000); accord Thompson v. ABVI Goodwill Servs., 531 Fed.Appx. 160, 162 (2d Cir.2013); Kearney v. ABN AMRO, Inc., 738 F.Supp.2d 419, 430-32 (S.D.N.Y.2010) (Batts, D.J.). Plaintiff has not brought to light other facts that, when read in context with the incident she describes would suggest an inference of age discrimination.
Second, plaintiff has not presented evidence establishing a prima facie case of retaliation under the ADEA and
In order to avoid the entry of summary judgment of plaintiff's claims under the ADEA and NYSHRL, plaintiff must submit sufficient evidence to establish the essential elements described on pages 21-24. Fed.R.Civ.P. 56(c).
Accordingly, for all the foregoing reasons, defendant's motion for summary judgment (Docket Item 17) is granted with respect to plaintiff's claims under the FLSA. Plaintiff is also granted thirty days to present evidence or otherwise show cause why summary judgment should not be granted dismissing the complaint to the extent it can be read to assert claims under the ADEA or the NYSHRL. The Clerk of the Court is directed to mark Docket Item 17 closed.
SO ORDERED.
which would be admissible, set forth as required by Fed.R.Civ.P. 56(e).
The requirement embodied in Local Civil Rule 56.1 is firmly rooted in the local practice of the Southern and Eastern Districts, and the Committee recommends its retention. The language of Local Civil Rule 56.1 was revised in 2004 to make clear that any statement pursuant to Local Civil Rule 56.1 must be divided into brief, numbered paragraphs, that any opposing statement must respond specifically and separately to each numbered paragraph in the statement, and that all such paragraphs in both statements and opposing statements must be supported by citations to specific evidence of the kind required by Fed.R.Civ.P. 56(c). The Committee believes that the language adopted in 2004 sets forth these requirements clearly, and does not recommend any changes in that language.
Any represented party moving for summary judgment against a party proceeding pro se shall serve and file as a separate document, together with the papers in support of the motion, the following "Notice To Pro Se Litigant Who Opposes a Motion For Summary Judgment" with the full texts of Fed.R.Civ.P. 56 and Local Civil Rule 56.1 attached. Where the pro se party is not the plaintiff, the movant shall amend the form notice as necessary to reflect that fact..
The defendant in this case has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. This means that the defendant has asked the Court to decide this case without a trial, based on written materials, including affidavits, submitted in support of the motion. THE CLAIMS YOU ASSERT IN YOUR COMPLAINT MAY BE DISMISSED WITHOUT A TRIAL IF YOU DO NOT RESPOND TO THIS MOTION ON TIME by filing sworn affidavits and/or other documents as required by Rule 56(c) of the Federal Rules of Civil Procedure and by Local Civil Rule 56.1. The full text of Rule 56 of the Federal Rules of Civil Procedure and Local Civil Rule 56.1 is attached.
In short, Rule 56 provides that you may NOT oppose summary judgment simply by relying upon the allegations in your complaint. Rather, you must submit evidence, such as witness statements or documents, countering the facts asserted by the defendant and raising specific facts that support your claim. If you have proof of your claim, now is the time to submit it. Any witness statements must be in the form of affidavits. An affidavit is a sworn statement of fact based on personal knowledge stating facts that would be admissible in evidence at trial. You may submit your own affidavit and/or the affidavits of others. You may submit affidavits that were prepared specifically in response to defendant's motion for summary judgment.
If you do not respond to the motion for summary judgment on time with affidavits and/or documents contradicting the material facts asserted by the defendant, the Court may accept defendant's facts as true. Your case may be dismissed and judgment may be entered in defendant's favor without a trial.
If you have any questions, you may direct them to the Pro Se Office.
Local Civil Rule 56.2 plays a valuable role in alerting pro se litigants to the potentially serious consequences of a motion for summary judgment, and to the requirements for opposing such a motion.
(McNamara Dep. at 79:12-80:11) (emphasis added). It is difficult to discern from this exchange whether plaintiff was no longer suing for age discrimination or whether she simply considered this claim to be of secondary importance to her other claims.
