Brown v. Cushman Wakefield, Inc.

Full title: FARRAN TOZER BROWN, Plaintiff, v. CUSHMAN WAKEFIELD, INC. and CUSHMAN…

Court: United States District Court, S.D. New York

Date published: Jul 29, 2002

01 Civ. 6637 (RMB)(AJP) (S.D.N.Y. Jul. 29, 2002)

Opinion

01 Civ. 6637 (RMB)(AJP)

July 29, 2002

REPORT AND RECOMMENDATION

ANDREW J. PECK, United States Magistrate Judge.

To the Honorable Richard M. Berman, United States District Judge:

Plaintiff Farran Tozer Brown brought this action against her former employer, Cushman Wakefield, Inc. ("CW"), and it's subsidiary, Cushman Wakefield of New York, Inc. ("CW-NY"), alleging violations of Title VII, New York State and New York City human rights and labor laws, and breach of contract. (Dkt. No. 1: Compl.) Brown claimed that CW: (1) breached her two-year employment contract (and New York Labor Law) by terminating her employment after eight months, failing to pay her for a period while she was on maternity leave prior to her termination, and failing to pay commissions she earned while employed at CW (Compl. ¶¶ 85-109); and (2) discriminated against her based on her "sex, pregnancy and childbirth" by, among other things, terminating her employment while she was on maternity leave in violation of Title VII and the New York State and City Human Rights Laws (Compl. ¶¶ 65-84). CW counterclaimed for bi-weekly payments erroneously made to Brown while on maternity leave. (Dkt. No. 12: Am. Answer Countercl. ¶¶ 108-39.) Presently before this Court is defendants' motion for partial summary judgment on Brown's contract and sex discrimination claims, summary judgment on its counterclaim, dismissal of CW-NY, and the striking of Brown's jury trial demand.¹ (Dkt. Nos. 25-26.)

1 Defendants do not seek summary judgment on Brown's pregnancy discrimination claims under Title VII, the NYSHRL and NYCHRL. (Dkt. No. 26: CW Br. at 1 n. 1.)

For the reasons set forth below: CW's summary judgment motion should be GRANTED in part on the contract claims and on CW's counterclaim on the grounds that: (1) Brown was an "at will employee" not employed for a term of two years; (2) the employment contract signed by Brown is valid; and (3) Brown was not entitled to the bi-weekly compensation erroneously paid to her during her maternity leave, having agreed to an unpaid maternity leave. CW's summary judgment motion should be DENIED on Brown's claim for unpaid commissions and DENIED on Brown's Title VII (and related NYSHRL and NYCHRL) sex discrimination claims. Moreover, CW-NY's motion to be dismissed from this action should be DENIED. Further, Brown is not entitled to a jury trial, having waived it in her employment contract, and this Court should strike her demand for a jury trial. The Pretrial Order shall be submitted by September 3, 2002.

FACTS²

2 For reasons known only to the parties, they have included certain documents as exhibits numerous times. Where a document is found in numerous exhibits, the Court will cite only to one exhibit, and there is no significance to which exhibit version the Court cites.

Brown's Offer for Employment

In fall 1998, Thomas Falus, President of CW-NY,³ and a member of senior management and the Board of CW,⁴ offered Brown, a "real estate investment banker" with a Harvard M.B.A., a job as a commercial real estate broker.⁵ (Dkt. No. 27: CW 56.1 Stmt. ¶¶ 1, 4; Speyer Dep. at 106; Dkt. No. 28: CW Ex. 2: Brown Resume; Dkt. No. 29: Falus Aff. ¶¶ 1-3, 5; Dkt. No. 34: Brown 56.1 Stmt. ¶¶ 1-4; Dkt. No. 35: Brown Aff. ¶¶ 2-3; see also Brown Ex. 3: Brown N.Y.S. Real Estate License.)

3 CW of New York, Inc. is a subsidiary of CW. (Dkt. No. 29: Falus Aff. ¶ 1; see also Falus Dep. at 8.)

4 Falus' responsibilities "[a]s President of Cushman Wakefield of New York, Inc., . . . included supervising the brokerage teams of Cushman Wakefield, Inc. in the New York area and overseeing the New York brokerage operation." (Falus Aff. ¶ 2.)

5 The parties dispute the exact date of Brown's offer of employment. Brown claims that Falus extended the job offer in October 1998 (Brown 56.1 Stmt. ¶ 1), while CW claims it made the offer in December 1998 (CW 56.1 Stmt. ¶ 1; Falus Aff. ¶ 5). This dispute is not material.

Brown, who "had no prior experience as a commercial real estate broker" (CW 56.1 Stmt. ¶ 3), explained that she wanted to make the "transition" from an "investment banker" to a "broker" and that she negotiated with Falus for a salary of "at least $150,000" for the first year"⁶ (Brown Dep. at 87-89, 139; Falus Aff. ¶ 9). On December 3, 1998, Falus, who determined the terms of Brown's offer (CW Brown 56.1 Stmts. ¶ 5; Falus Aff. ¶ 6), sent Brown a Term Sheet reflecting the terms of Brown's employment with CW (Dkt. No. 28: CW Ex. 1:12/3/98 Falus Letter Term Sheet; CW Brown 56.1 Stmts. ¶ 6; Brown 56.1 Stmt. ¶ 1).⁷ The Term Sheet provided in full:

6 Brown explained that the "[s]econd year, [her salary] amount would be down because by the second year, [she] would generate [her] own business that would make up the difference" so that, despite the lower base salary, her actual income "would go up." (Brown Dep. at 139.)

7 Falus' December 3, 1998 letter was on CW-NY letterhead; the Term Sheet was on paper with a CW header. (CW Ex. 1: 12/3/98 Falus Letter Term Sheet.)

Term: Two Years

Compensation: Year 1-$100,000 base Year 2-$100,000 base

Bonus: Year 1-$50,000

In addition to your base and bonus, you will participate in any transactions procured by you as follows:

25% Gross of which 12.5% is net (this is the amount paid to you)

Benefits: Consistent with CW Policy

The above compensation and bonus will be guaranteed by CW during the first two years of your employment.

(Dkt. No. 28: CW Ex. 1: Term Sheet.) Falus also told Brown "that he expected that [she] would become a partner on a CW brokerage team after the two years." (Dkt. No. 35: Brown Aff. ¶ 3; see also Brown Dep. at 145-48.)

Brown argues that the Term Sheet provided for "a guaranteed two-year term of employment." (E.g., Brown 56.1 Stmt. ¶¶ 6-8.) Falus disagrees and argues that the Term Sheet only "reflected the economic terms of [Brown's] offer" and indicated that "[t]he term of the guaranteed draw arrangement was two years." (CW 56.1 Stmt. ¶¶ 6-7, emphasis added.) Falus explained that:

To the best of my knowledge, all brokers at Cushman Wakefield, Inc. are considered employees at will. The length of Ms. Brown's financial arrangement was two years. I did not provide a guarantee of employment for any set period of time. Ms. Brown and I never discussed whether her employment was guaranteed and I never made any assurances that it would be.

(Falus Aff. ¶ 7; see also CW 56.1 Stmt. ¶ 8.)

There is no dispute that the terms of Brown's employment were "special" and generous. (CW Brown 56.1 Stmts. ¶ 9; Falus Aff. ¶¶ 9-10; Brown Aff. ¶ 3.) Unlike most CW brokers, Brown "did not have to repay her draw even if she earned no commissions." (CW 56.1 Stmt. ¶ 12; see also Brown 56.1 Stmt. ¶¶ 7, 12; Falus Dep. at 113-14; Lagano Dep. at 22; Falus Aff. ¶¶ 9-10.)⁸

8 Defendants explained, "[m]any [CW] brokers are cash brokers, meaning they are paid nothing by Cushman Wakefield unless and until they book commissions. . . . Other brokers are draw brokers, meaning they are provided a monthly advance against commissions by Cushman Wakefield, which is offset by commissions they earn." (CW Brown 56.1 Stmts. ¶¶ 10-11, record citations omitted.)

The Postponement of Brown's Start Date at CW

Brown was hired to join the brokerage team headed by Franklin Speyer and his two partners, Lou D'Avanzo and Jonathan Buchman. (CW Brown 56.1 Stmts. ¶¶ 41-42; Falus Aff. ¶¶ 11-12.) Brown's "employment was initially scheduled to commence in January 1999." (Brown 56.1 Stmt. ¶ 14.) However, "[t]his date was then extended to February 22, 1999"⁹ because Speyer, the head of the brokerage team Brown was to join, "pushed [the date] back." (Brown Dep. at 169.) "[T]hree days before [Brown] was supposed to start" (Brown Dep. at 169), Speyer called Brown and told her "three things, . . . [1] we don't have enough desks. [2] We were just [involved in] a merger. [3] We haven't arranged for your training program. Since you have your wedding coming up, why don't you take some more time off." (Brown Dep. at 169, 170; see also Brown 56.1 Stmt. ¶ 14; Dkt. No 35: Brown Aff. ¶ 4.) Brown asserts that Speyer called her "out of the blue and suggested [she] shouldn't . . . work until after [her April 10, 1999] wedding" (Brown Dep. at 150, 171), "stereotypically assum[ing] that [she] would be coordinating" her wedding "because she was a woman" (Brown 56.1 Stmt. ¶ 77; Dkt. No. 32: Brown Br. at 9).

9 Brown Dep. at 168-71; Lagano Dep. at 30, 42-43, 58, 61-63, 72-73; Brown 56.1 Stmt. ¶ 14; Brown Ex. 5: 2/10/99 Lieberman Memo to Speyer, indicating that Brown was "scheduled to start [work] on Feb. 22"; Brown Ex. 7: 2/12/99 Moffitt Memo, regarding 2/23/99 meeting in which Brown is to participate; Brown Ex. 8: 2/18/99 Liberman Email, regarding Brown's schedule on February 22, 1999.

Joseph Lagano, New York area Operations Manager reporting to Falus (Lagano Aff. ¶¶ 1-2), conceded that Brown originally "intended to start a few weeks before her marriage" (Lagano Dep. at 28), but asserts that Brown informed CW that she was going to "take off a substantial amount of time" — "[t]hree to four weeks" — "prior to the wedding, for the wedding and for the honeymoon" (Lagano Dep. at 31). Lagano told Brown that "it was unreasonable for her to work a short period of time and then be out for a month and then come back . . . the perception would be negative, and it would be better for her to commence employment once and for all [after] the personal matters, the wedding and honeymoon and preparations — were behind her." (Lagano Dep. at 32.) According to Lagano, Brown "asked if that would be okay, if she started after all that was over" and they "agreed" that "it was better that she start after that." (Lagano Dep. at 32-33.)

CW further asserts that, in any event, Brown "could not begin work until she presented Cushman Wakefield with either a brokers' license or proof that she had passed the commercial real estate exam," and that the delay in the commencement of Brown's employment was due to the fact that she did not do so until "sometime after April 11, 1999." (CW 56.1 Stmt. ¶¶ 14-16, emphasis in original; see also Lagano Dep. at 28-29, 61.) Brown responds that she "passed the New York commercial real estate broker's exam on August 24, 1998" and that "[i]f CW had told Ms. Brown that her employment was postponed until she produced proof of passing the commercial real estate exam, she would have obtained a copy at an earlier date." (Brown 56.1 Stmt. ¶¶ 15-16; see also Brown Aff. ¶ 5.)

There is evidence indicating that the delay in the commencement of Brown's employment may have been caused by internal disagreement at CW as to whose budget was responsible for Brown's compensation: One week before Brown's February 22, 1999 start state, in response to a February 10, 1999 Memo from Lagano to Speyer outlining Brown's compensation package (see Brown Ex. 6), Speyer and his team's partners, Buchman and D'Avanzo, wrote to Falus and Lagano that:

After four months of waiting to see your written understanding of the arrangements regarding Ms. Tozer's [Brown's] employment at CW, and being continually rebuffed, here is our formal response to the completely unacceptable memo of February 10, 1999, that was sent to us last week, one week before Ms. [Brown] arrives:

1. We will train Ms. [Brown] on the condition that there is no financial obligation whatsoever on our part regarding the company's payment of her salary or bonus.

2. The company can keep all Ms. [Brown]'s income for any trial period, up to two years. If after two years, or whenever, the company and Ms. [Brown] decide she wants to formally associate with our team, we will review it at that time.

3. Unless this arrangement is confirmed in writing back to our team prior to the day of Ms. [Brown]'s arrival at CW, we will direct her to your offices and you can determine whatever her activities will be.

By the way, after learning several times that her starting date with CW had been delayed by several months in total, we are now advised that Ms. [Brown] is apparently intending to start next week, work for a month and then take another month off to get married. This is not a great way to start. This situation is extremely unwieldly and must be resolved tomorrow in the above-described manner otherwise we must respectfully decline to assume any relationship with Ms. [Brown].

(Brown Ex. 9: 2/18/99 Speyer Memo to Falus; see also Lagano Dep. at 46-48.)

The evidence indicates that the dispute over Brown's compensation was resolved on Friday, February 19, 1999 (Lagano Dep. at 67-70), when it was agreed that Brown's "compensation came from Falus' budget as President of CW of N.Y. rather than from" Speyer's brokerage team. (Brown 56.1 Stmt. ¶ 27; see also Brown Aff. ¶ 9; Brown Exs. 10-11: 2/19/99 2/22/99 Lagano Memos to Falus Speyer's Team.) Speyer, Buchman and D'Avanzo agreed to accept her onto their team "to fulfill Mr. Falus' wish since Mr. Falus, the president of the company, asked them to accept her." (Brown CW 56.1 Stmts. ¶ 42; see also Speyer Dep. at 106-07; Falus Dep. at 118-19; Buchman Dep. at 56.)

Brown's May 3, 1999 Employment Contract with CW

Brown commenced her employment with CW on Speyer's brokerage team on May 3, 1999. (CW Brown 56.1 Stmts. ¶ 21; Dkt. No. 35: Brown Aff. ¶ 5.) Brown already was pregnant when she began working at CW (see CW Brown 56.1. Stmts. ¶ 43), but did not disclose that fact to CW until later (see page 14 below).

On Brown's first day of work, Joseph Lagano "brought [Brown] into his office and told [her] that [she] must either sign the [CW standard employment] contract [and riders applying specifically to Brown] while in his office or not begin work." (Brown Aff. ¶ 6; Brown 56.1 Stmt. ¶¶ 17, 24; see also CW 56.1 Stmt. ¶¶ 17-31; Lagano Aff. ¶¶ 3-4, 9-10, 14.)¹⁰

10 Brown alleges that "[p]rior to beginning [her] employment at CW, [she] asked Joseph Lagano . . . on several occasions to send [her] a more formal contract, yet he failed to do so." (Brown Aff. ¶ 6.) Lagano disputes this and asserts that prior to the commencement of Brown's employment, he had "provided Ms. Brown with the standard broker's employment agreement to allow her to review it." (Lagano Aff. ¶ 8; see also Lagano Dep. at 76-77.)

The May 3, 1999 Employment Contract between CW and Brown provided in relevant part:

3. CW shall pay Employee and Employee accepts as his full and only compensation for all his services rendered, the percentages of the commissions and fees collected by CW on transactions in which Employee has rendered services, under the circumstances and as determined in accordance with the Schedule of Compensation annexed hereto and made part hereof. . . .

. . . .

5. Employment under this Agreement shall commence on the 3rd day of May, 1999, and shall continue in effect until terminated by either party giving fourteen (14) days prior written notice to the other of the election to so terminate. . . .

. . . .

7. CW shall at all times have the sole and absolute right to determine the commission or fee to be charged to any customer and the sole discretion to decide whether any transaction on which Employee has been working is consummated in whole or in part by Employee's efforts. . . .

. . . .

9. . . . (b) Employee shall not be entitled to share in any commissions or fees collected by CW subsequent to the termination of Employee's employment, except under the following conditions.

(i) If any transaction has been finally consummated prior to the termination of Employee's employment but the commission or fee is not collected or due until after the termination;

(ii) If a contract of sale or escrow agreement has been fully and unconditionally executed and exchanged by and between the seller and purchaser prior to the termination of Employee's employment, and thereafter, a sale is consummated pursuant to the contract of sale or escrow agreement;

(iii) If a duly authorized written offer to lease specifying the essential terms of a lease agreement, including the rental rate, size and location of premises, length of lease term and concessions and special conditions required has been made to a specifically identified landlord or tenant prior to the termination of Employee's employment and thereafter within a period of three months, a lease substantially in accordance with and pursuant to such offer is consummated.

. . . Employee's share of any commissions and fees collected by CW subsequent to the termination of Employee's Employment shall be subject to reduction by an amount to be determined by CW if subsequent work or negotiations are necessary to conclude the transaction and CW assigns other of its employees to handle same, to any commission or fee sharing arrangement made by Employee with any other CW employees, and to all the other applicable terms and conditions of this Agreement. Except as specifically provided in this subparagraph (b), Employee shall not be entitled to any commissions, fees or other compensation whatsoever from CW subsequent to the termination of Employee's employment. . . .

. . . .

10. The parties hereto shall have all remedies existing in law and equity to enforce the terms of or obligations arising out of this Agreement, including, but not limited to, the right to injunctive relief. In the event any legal action or proceeding is commenced to interpret or enforce the terms of or obligations arising out of this Agreement, or to recover damages for the breach thereof, the party prevailing in any such action or proceeding shall be entitled to recover from the non-prevailing party all reasonable legal fees, costs and expenses incurred by the prevailing party. CW and Employee shall and hereby do waive a trial by jury in any action, proceeding or counterclaim brought or asserted by either of the parties hereto against the other on any matters whatsoever arising out of this Agreement.

11. The interpretation, validity and enforcement of this Agreement shall be governed by the laws of the State of New York.

12. This Agreement contains the sole and entire agreement and understanding between the parties and shall supercede any and all other agreements between the parties. The parties acknowledge that neither of them has made any representation with respect to the subject matter of this Agreement or any representations inducing the execution and delivery hereof except such representations as are specifically set forth herein, and each of the parties acknowledges that he or it has relied on his or its own judgment in entering into the same. The parties further acknowledge that any statements or representations that may have heretofore been made by either of them to the other are void and of no effect and that neither of them has relied thereon in connection with his or its dealing with the other.

13. Except as otherwise expressly provided in this Agreement. no waiver or modification of this Agreement or any of its terms shall be valid unless in writing and duly executed by the party to be charged therewith and no evidence of any waiver or modification shall be offered or received in evidence in any proceeding, arbitration, or litigation between the parties arising out of or affecting this Agreement, or the rights or obligations of any party hereunder, unless such waiver or modification is in writing and duly executed as aforesaid. The provisions of this paragraph cannot be waived except as herein set forth. The waiver of or acquiescence in any default or breach under this Agreement, or the failure to insist upon strict performance of any obligation under this Agreement, shall not constitute a waiver of any subsequent or other such default, breach or failure.

(CW Ex. 19: Broker-Salesperson Employment Contract for Brown, emphasis added.)

Attached to the Agreement is a "Drawing Account" Rider (separately signed by CW and Brown) providing:

Drawing Account

During the period from May 5, 1999 to May 5, 2000, CW shall make advances to Employee at the rate of $150,000 per annum, payable in equal bi-weekly installments of $5,769.23 (less withholdings); and during the period from May 3, 2000 to May 4, 2001, and thereafter until modified or terminated by CW, CW shall make advances to Employee at the rate of $100,000 per annum, payable in equal bi-weekly installments of $3,846.15 (less withholdings). CW may discontinue the advances without notice upon termination of Employee's employment. CW may make deductions from Employee's share of collected commissions and fees or apply other funds of Employee held by CW at anytime, even after termination of employment, in repayment of advances.

(CW Ex. 19: Drawing Account Rider, emphasis added.)

Another Rider (the "Commission Rider") to the Employment Contract, also signed that day by Brown and CW, provided:

This Rider shall supplement and amend the Employment Contract to which it is annexed ("Contract") as follows:

Notwithstanding anything to the contrary in the Schedule of Compensation attached hereto, if Employee is the sole procuring cause of any brokerage or fee production for CW during the first two (2) years of Employee's employment under the Contract, then, in such event only, twenty-five (25%) percent of any such commissions or fees earned by CW (i.e., 12.5% net) will be paid to Employee in addition to the draw advances set forth in the attached Drawing Account Rider. . . .

(CW Ex. 19: Commission Rider.) The Commission Rider also provided that "in the event of a conflict between this Rider and the Contract and Schedule of Compensation annexed, this Rider shall control." (Id.)

Brown claims that she did not read the Employment Contract or Riders (CW Brown 56.1 Stmts. ¶ 39; Brown Aff. ¶ 8),¹¹ but instead "asked Mr. Lagano if [the Employment Contract and Riders] reflected the terms that the parties had previously agreed upon in the December 3, 1998" Term Sheet, and Lagano "assured [her] that all of the terms of the December 1998 agreement were reflected in the May 1999 contract." (Brown 56.1 Stmt. ¶ 23; Brown Aff. ¶ 8; see also Lagano Aff. ¶¶ 11-17, 19.)¹² Brown alleges that "in reliance on [Lagano's] assurance and representations, [she] decided to sign the contract." (Brown Aff. ¶ 8.) Brown did not "object or complain" about having to sign the contract and riders before beginning her employment at CW and acknowledges that "no one forbade [her] from reading the agreement." (Brown Dep. at 229-30.) Brown asserts, however, that she had "no choice other" than to sign the contract because she originally "planned on beginning [her] employment with CW no later than January 1999" and was not generating "income for over several months" before her May 3, 1999 start date. (Brown Aff. ¶ 7; see also Brown 56.1 Stmt. ¶ 24.) Therefore, because Brown "could not financially afford to lose this position," she argues that the May 3, 1999 contract "was not voluntary and was obtained under duress." (Brown 56.1 Stmt. ¶¶ 24-25; see also Brown Aff. ¶ 7.)

11 Brown alleges that she did not receive a copy of the May 3, 1999 contract before or during her employment at CW and therefore was "not given an opportunity to review the contract prior to signing it or to review the signed contract during her employment." (Brown 56.1 Stmt. ¶ 39; Brown Aff. ¶ 8.)

12 Lagano asserts that Brown did not ask any "questions about the substance of the agreement or express any hesitation about signing it" (Lagano Aff. ¶ 18), but asserts that he "believe[s] that the employment agreement, in particular the attached riders, reflect the terms of Ms. Brown's agreement with Mr. Falus, as set forth in the Term Sheet" (Lagano Aff. ¶ 19). According to Lagano, "[h]ad [Brown] asked for additional time [to review the agreement], [he] would have given her as much time as she needed." (Lagano Aff. ¶ 16.)

After she executed the May 3, 1999 agreement and riders, Brown spoke to CW in-house counsel (Brown Aff. ¶ 9), who informed her that the terms of her agreement were highly unusual in that (1) she was "one of the highest (if not the highest) paid first-year brokers at C W"; (2) her "contract was for two years rather than one year"; and (3) her compensation "came from Falus' budget . . . rather than from the brokerage team for which [she] worked." (Brown Aff. ¶ 9; see also Brown 56.1 Stmt. ¶ 27.)

Brown's Pregnancy and the Alleged Discrimination Against Her

As noted above, Brown was pregnant when she began working at CW on May 3, 1999 (CS Brown 56.1 Stmts. ¶ 43), although she did not disclose that fact to CW until later.

Upon the commencement of her employment, Brown alleges she was "treated significantly different than male [Speyer brokerage] team members by being placed in a cubicle," a workspace generally used for secretarial employees — while other male team members were provided offices¹³; that she was asked "to perform administrative tasks such as faxing and copying" which males were not asked to do; that she was excluded from interviews of candidates to be hired for her group and "from male-only events such as golf outings with clients"; and that she "was denied a secretary while all of the other male brokers were assigned one." (Brown Aff. ¶¶ 11-15; Brown Dep. at 277-79; Dkt. No. 32: Brown Br. at 5.) Brown was informed by the only other female on Speyer's team that "Speyer expected the women on the team to wear skirts." (Brown Aff. ¶ 12; Brown Dep. at 128; Brown Br. at 5.) In addition, Buchman, one of the Speyer brokerage team partners, "made derogatory comments about women that he dated, other female co-workers and his ex-wife in [Brown's] presence" (Brown Aff. ¶ 16; Brown Dep. at 280), and "constantly" made "demeaning comments about women" (Brown Dep. at 280-88; Brown Br. at 5). Brown did not "ever complain to human resources about these comments." (Brown Dep. at 283.)

13 According to Falus, CW was suffering a space shortage and Brown was not senior enough to warrant a private office even if one were available; a cubicle "was a typical assignment for a broker at [Brown's] level." (Falus Aff. ¶¶ 13-16.)

In July 1999, Brown informed Falus and the Speyer brokerage team partners that she was pregnant. (Brown Aff. ¶ 17; CW Brown 56.1 Stmts. ¶¶ 44.) According to Brown, when Falus learned she was pregnant, he was "clearly hostile towards [her] for getting pregnant on his budget" (Brown Aff. ¶ 18), and made derogatory comments such as "I can't get over the fact that you're pregnant," "I can't believe you did it," "I can't believe you went and did it." (See CW Brown 56.1 Stmts. ¶ 77; Brown Aff. ¶ 18.) Brown claims that Speyer told her that "as a woman, the most important job you are going to have is raising children." (Brown Aff. ¶ 17; Brown 56.1 Stmt. ¶ 77.) Buchman told Brown that "he would never have children." (Brown Aff. ¶ 19.)

The Parties' Conflicting Views Concerning Brown's Performance at CW

Brown claims that her performance at CW "exceeded expectations" since she was "not expected to bring in any business during [her] first year" but nevertheless "`brought in one piece of business before" she began her CW employment and "brought in another after only a few months," in addition to bringing "several other potential deals to the attention of CW." (Brown Aff. ¶ 9.) According to Brown, she received "positive feedback" from Speyer, who told her that she "was much stronger than Mr. Buchman both analytically and with clients," that she had done a "superb job" on a project, and he thought she "would become one of the more senior women at CW." (Brown Aff. ¶ 10.)

In August 1999, one month after informing CW about her pregnancy, Brown "began working on a transaction for the New York Foundation for Senior Citizens," helping "them locate and lease new space." (CW Brown 56.1 Stmts. ¶¶ 78-81; Brown Aff. ¶ 20.) Brown alleges that Speyer and Buchman, "apparently having written off [her] future at CW upon learning of [her] pregnancy, refused to provide [her] with any support in working on the New York Foundation deal." (Brown Aff. ¶ 20.) Brown asked Speyer, D'Avanzo and Buchman to accompany her to an "initial meeting with . . . the landlord that was going to lease space to N.Y. Foundation, but [they] refused." (Brown Aff. ¶ 20.) When Brown asked Speyer "for guidance on negotiating the brokerage agreements for the deal, he simply referred [Brown] to . . . the Legal Department." (Brown Aff. ¶ 20.) With CW's Legal Department's assistance, Brown "finalized an exclusive brokerage agreement between CW and its client N.Y. Foundation." (Brown Aff. ¶ 21.)

CW, on the other hand, alleges that Brown's "work habits were not up to the expectations of the firm." (Falus Dep. at 66.) Specifically, CW alleges that "[e]arly in Ms. Brown's employment, she had asked permission to take time off and then, during the course of that time off had called and requested additional time off." (Speyer Dep. at 51.) When in the office, "Brown spen[t] quite a bit of time on her personal life . . . [on] some personal things that apparently were taking a lot of her time." (Speyer Dep. at 51.) In addition, when Brown worked on the New York Foundation deal, she kept Speyer and his brokerage team "basically out of the loop." (Speyer Dep. at 50, 59, 61-68.) Speyer also had "ongoing" "discussions about [Brown] being on time" because Brown "was coining in late regularly" and at times, "members of the group needed to talk with her or visit with her [and] she wasn't at her desk." (Speyer Dep. at 50-57.)

Brown's Maternity Leave¹⁴

14 Brown does not dispute that she was not eligible for leave under the Family and Medical Leave Act ("FMLA"), since she was at CW for only five months before her leave began. (See CW Brown 56.1 Stmts. ¶ 45.)

Brown was scheduled to deliver her baby around October 10, 1999. (Brown Dep. at 61, 275.) During the summer of 1999, Brown discussed her maternity leave with both James Wassel, the Senior Operating Executive ("equivalent of chief operating officer") for the New York area,¹⁵ and with CW's Human Resources Department. (CW Brown 56.1 Stmts. ¶ 44; Wassel Dep. 7, 15-16.) The ultimate agreement as to the duration of Brown's maternity leave is hotly contested by the parties, and constitutes a disputed issue of material fact. (Compare CW Brown 56.1 Stmts. ¶¶ 48-69.)

15 Wassel was hired by CW in June 1999 to "oversee the operations in the New York area," "remove operating hurdles" and "iron out kinks" "so the brokerage teams can get their transactions completed." (Wassel Dep. at 6-9.)

Brown claims she originally "strategized that [she] was going to take the shortest maternity leave as possible, which [she] thought was eight weeks," which "would have brought [her back to work on] December 10th or 15th," assuming the birth of her baby when due in mid-October 1999. (Brown Dep. at 274-75.) However, when she "suggested" this to Falus, "he said why do you want to do that. . . . He said that is when . . . Channukah begins. It wouldn't make sense for [her] to come back then." (Brown Dep. at 274-75.) When Falus told Brown to "take as much time as you want. This is the most important thing you can do," Brown "was offended by that." (Brown Dep. at 275.)

Brown and Falus "talked about it," and finally determined that she should "come back [sometime] in January." (Brown Dep. at 275; CW 56.1 Stmt. ¶ 59; Brown 56.1 Stmt. ¶ 48.) The exact date Brown was to return is disputed. Brown alleges that in September 1999 "she and Mr. Speyer agreed that she would return in mid-January." (Brown 56.1 Stmt. ¶ 48; Brown Dep. at 274-75.) In fact, Brown alleges that before she began her leave she wrote a note to Louise Triano, CW's then senior administrative manager (reporting to Joseph Lagano) (Triano Dep. at 5-6), that she "expect[s] to return to the office in mid-January" (Brown Ex. 15: 10/6/99 Brown Note to Triano).¹⁶ Triano denies ever receiving this note. (Dkt. No. 38: Triano Aff. ¶¶ 2-6 (Triano testified that she "had never seen [Brown's 10/6/99 note] nor do[es] [she] remember receiving such a document from [Brown]. [Triano] would have remembered receiving such a document because it is on personal note paper and is very different from the forms [she] normally receives from employees").) Brown asserts that "in reliance on her agreement with Mr. Speyer, [she] purchased a plane ticket to return from a family vacation on January 4, 2000" (Brown 56.1 Stmt. ¶ 48; Brown Ex. 16: Brown Plane Ticket for 12/28/99 to 1/4/00 Trip), and had "scheduled a nanny to start working during early January and planned to stay home to train the nanny for a week before returning to work" (Brown 56.1 Stmt. ¶ 48). On the other hand, Speyer testified that he believed that Brown was to return to work from leave on January 3, 2000. (E.g., CW 56.1 Stmt. ¶ 60; Falus Dep. at 42-43; Speyer Dep. at 76-78, 85.)

16 Brown also wrote on a FMLA form that she intended to return to work the week of January 10-14 (Brown 56.1 Stmt. ¶ 48), but she never submitted that form to CW (Brown Aff. ¶ 22; Brown Dep. at 417-18), because she learned that she was not eligible for benefits under the FMLA (Brown Aff. ¶ 27; Brown Dep. at 417-18; CW Brown 56.1 Stmts. ¶ 45), since she was not "employed by the employer for at least 12 months" as required by the FMLA. See 29 C.F.R. § 825.110.

It was agreed that Brown's maternity leave was to be unpaid (CW Brown 56.1 Stmts. ¶ 49; Brown Dep. at 317; Wassel Dep. at 16; CW Ex. 50: 8/16/99 Giardina Memo to Brown), although Brown now claims in this action that that understanding violated her written employment agreement (Brown 56.1 Stmt. ¶¶ 49-51).

Brown's maternity leave began on October 10, 1999. (CW Brown 56.1 Stmts. ¶ 52; Brown Dep. at 311.)

Brown's CW Activities While on Maternity Leave

Brown claims that she continued to work on CW deals while on leave (Brown Aff. ¶ 23) and that "she participated on a conference call on the N.Y. Foundation deal after giving birth" (Brown Aff. ¶ 23). On December 21, 1999, the President of New York Foundation wrote Speyer a letter stating:

New York Foundation for Senior Citizens is extremely grateful for the outstanding work of your real estate agent, Farran Tozer Brown, in negotiating three ten year leases for our new office space. . . . [Brown]'s brilliant negotiating and budgeting skills as well as her supportive and caring attitude were enormously helpful and reassuring to us throughout the leasing process. [Brown]'s follow-up was indeed above and beyond the call of duty. Even after delivering her baby, she never missed a beat in keeping the project on track.

New York Foundation for Senior Citizens is deeply appreciative to you, [Brown] and Cushman Wakefield for your invaluable services. It would be our pleasure to again utilize and/or refer potential new clients to Cushman and Wakefield for future services.

(Brown Ex. 22: 12/21/99 N.Y. Foundation Letter to Speyer.)

In November 1999, during Brown's leave and, on January 4, 2000, the N.Y. Foundation executed leases for office space. (CW Brown 56.1 Stmts. ¶¶ 80-81; Brown Aff. ¶ 23; CW Exs. 80-81: N.Y. Foundation Leases.) The leases stated that commissions would be paid to CW "pursuant to a separate commission agreement" (CW Brown 56.1 Stmts. ¶ 82), but according to CW, "no such commission agreement was ever signed." (CW 56.1 Stmt. ¶ 84; see also CW Brown 56.1 Stmts. ¶¶ 83-85.) Brown asserts that there was a "commission agreement" and that the president of the company who owns the building in which N.Y. Foundation leased space "informed Ms. Brown that the commission agreement had been signed." (Brown 56.1 Stmt. ¶¶ 83-85.)¹⁷ CW asserts that it was Brown's "responsibility to ensure that an executed commission agreement was attached to the leases" (CW 56.1 Stmt. ¶ 86), but Brown argues that she was informed by CW's in-house counsel that they would be "responsible for the commission agreement" (Brown 56.1 Stmt. ¶ 86). CW claims that Brown "never completed" the proper documents "informing Cushman Wakefield that the Foundation deal had closed." (CW 56.1 Stmt. ¶ 88.) Brown responds that she informed Speyer and Wassel that the deal had closed and had "inquired in late 1999 about the process for her being paid a commission on the deal" but "Speyer told her not to submit the revenue transmittal document until CW showed her how to fill it out upon her return from maternity leave," after which she was immediately fired. (Brown 56.1 Stmt. ¶ 88.)

17 CW subpoenaed documents from that company but no signed commission agreement was produced. (Johnson Aff. ¶¶ 2, 5-8.)

CW's Termination of Brown

On January 3, 2000, Brown did not come to the office. (CW Brown 56.1 Stmts. ¶ 61.) As discussed above, Brown asserts that she did not return because she was not scheduled to return on that date and had planned to return to work in mid-January, as previously agreed. (Brown 56.1 Stmt. ¶¶ 61-62.) CW argues that "Speyer expected [Brown] to return to work on the first business day after the New Year, January 3, 2000." (CW 56.1 Stmt. ¶ 60; see also Speyer Dep. at 76-78; Falus Dep. at 42-43.)

The ultimate decision to terminate Brown's employment was made by Falus, in consultation with, among others, Speyer, D'Avanzo, Buchman and Wassel, when Brown did not return from leave on January 3, 2000. (CW Brown 56.1 Stmts. ¶¶ 71-73; see also Brown Ex. 36: CW Am. Interrogatories Resp. ¶ 2; Speyer Dep. at 13.) Falus asserts that he "made the decision to terminate Ms. Brown's employment in early January, 2000, based on a recommendation from Mr. Wassel; primarily because of Ms. Brown's failure to return to work" on January 3 (Falus Aff. ¶ 18), and that "[h]ad she returned to work as scheduled, [he does] not believe [he] would have terminated her employment at that time" (Falus Aff. ¶ 19).

Falus and Wassel claim they called Brown on January 3 "to ascertain her whereabouts," leaving a message for her at her home and office. (CW 56.1 Stmt. ¶¶ 63-66.)¹⁸ Brown returned home from vacation on January 5, 2000, received Falus' message and called Falus back. (CW Brown 56.1 Stmts. ¶¶ 67-68.) Brown told CW's Giardina on January 5, 2000 that she intended to return to work. (CW Brown 56.1 Stmts. ¶ 70.) However, "by the time" Brown returned Falus' and Wassel's calls, CW "had concluded that [Brown] had abandoned her employment" and Speyer "had already concluded that he did not want [Brown] on his team." (CW Brown 56.1 Stmts. ¶ 69-71.)¹⁹ By letter dated January 11, 2000, Wassel informed Brown that "management has exercised its right to terminate [her] employment effective January 24, 2000 pursuant to Section 5 of [her] employment contract." (Brown Ex. 27: 1/11/00 Wassel Letter to Brown.) Brown did no work for CW between January 10 and January 24, 2000. (CW Brown 56.1 Stmts. ¶ 76.)

18 Brown disputes Wassel's allegation that he "called her on January 3, 4 or 5." (Brown 56.1 Stmt. ¶¶ 65-66, 68.)

19 Brown points to evidence that CW decided to terminate Brown even prior to "her supposed return to work date" of January 3, 2000, such as "an internal termination report [indicating] Ms. Brown was terminated on December 31, 1999" and other documents cancelling her "medical benefits prior to January 3, 2000." (Brown 56.1 Stmt. ¶ 74; Brown Ex. 23: Termination Form; Brown Ex. 24: Employment Health Plan Info.)

On February 7, 2000, CW's Human Resources Director, Giardina, wrote Brown that because she "did not submit the disability/medical leave paperwork" she was "paid unauthorized draw payments during the period that [she] was on medical leave," from October 15, 1999 to December 31, 1999. (Brown Ex. 29: 2/7/00 Giardina Letter to Brown.) Brown concedes she knew "when [she] went on leave, that [she] was going to be taking an unpaid leave" but "after [she] realized [she was] still getting paid" she "figured that [CW] knew what they were doing with their money." (Brown Dep. at 317-18.) The amount of these payments is $23,024.92. (CW 56.1 Stmt. ¶ 57.)²⁰

20 Brown claims that at a minimum, she is entitled to pay for the period of January 10 to 24, 2000 because of the two week notice of termination clause in her employment contract. (Brown 56.1 Stmt. ¶ 51; the employment contract language is quoted on page 10 above.)

Brown's EEOC Complaint

Brown filed her discrimination complaint with the United States Equal Employment Opportunity Commission ("EEOC") on September 29, 2000 (Brown Ex. 33: Brown EEOC Compl.), claiming that CW discriminated against her based on her sex. On April 24, 2000, Brown received a Right to Sue Letter from the EEOC. (Dkt. No. 1: Compl. ¶ 7.)

Brown's Present Federal Lawsuit

After she received an EEOC Right to Sue Letter, Brown filed the instant lawsuit in this Court. (Dkt. No. 1: Compl.) Brown's complaint alleges that CW: (1) breached her two-year employment contract (and New York Labor Law) by terminating her employment after eight months, failing to pay her for a period while she was on maternity leave prior to her termination, and failing to pay commissions she earned while employed at CW (Compl. ¶¶ 85-109); and (2) discriminated against her in violation of Title VII and the New York State and City Human Rights Laws based on her "sex, pregnancy and childbirth" by, among other things, terminating her employment while she was on maternity leave (Compl. ¶¶ 65-84).

CW counterclaimed for bi-weekly draw payments to Brown while she was on maternity leave, alleging that Brown "understood when she began her maternity leave in October 1999 that she was not entitled to receive her draw while out on leave" (Dkt. No. 12: Am. Answer Countercl. ¶ 115), but because Brown "never submitted any forms" to CW regarding her leave, CW "continued to pay [Brown] on a bi-weekly basis" and Brown "retained these draw payments even though she was fully aware that she was not supposed to receive draw payments during her leave" (Am. Answer Countercl. ¶¶ 108-39).

Presently before the Court is CW's motion for partial summary judgment on Brown's contract and discrimination claims and on CW counterclaim, on the grounds that: (1) Brown was an "at will employee" under an enforceable May 3, 1999 contract, not an employee hired for a term of two years; (2) Brown is not entitled to a jury trial, having waived it in her May 3, 1999 employment contract; (3) CW does not owe Brown any unpaid commissions; and (4) Brown had agreed to an unpaid maternity leave and is therefore not entitled to the bi-weekly compensation erroneously paid to her. (Dkt. Nos. 25-30, 37-39.)

ANALYSIS

I. SUMMARY JUDGMENT STANDARDS IN EMPLOYMENT DISCRIMINATION CASES²¹

21 For additional cases authored by this Judge discussing the summary judgment standards in employment discrimination cases in language substantially similar to that in this entire section of this Report and Recommendation see e.g., Kennebrew v. New York City Housing Auth., 01 Civ. 1654, 2002 WL 265120 at *6-7 (S.D.N.Y. Feb. 26, 2002) (Peck, M.J.); Williams v. NYC Dep't of Sanitation, 00 Civ. 7371, 2001 WL 1154627 at *8-9 (S.D.N.Y. Sept. 28, 2001) (Peck, M.J.); Gonzalez v. New York City Transit Auth., 00 Civ. 4293, 2001 WL 492448 at *6 (S.D.N.Y. May 9, 2001) (Peck, M.J.), aff'd No. 01-7907, 32 Fed. Appx. 10, 2002 WL 562295 (2d Cir. Apr. 16, 2002); Economou v. Caldera, 99 Civ. 12117, 2000 WL 1844773 at *12 (S.D.N.Y. Dec. 18, 2000) (Peck, M.J.), aff'd, 286 F.3d 144 (2d Cir. 2002); Cobian v. New York City, 99 Civ. 10533, 2000 WL 1782744 at *7 (S.D.N.Y. Dec. 6, 2000) (Peck, M.J.), aff'd, No. 01-7575, 23 Fed. Appx. 82, 2002 WL 4594 at *1 (2d Cir. Dec. 21, 2001); Austin v. Ford Models, Inc., 95 Civ. 3731, 2000 WL 1752966 at *6 (S.D.N.Y. Nov. 29, 2000) (Peck, M.J.), aff'd No. 01-7030, 22 Fed. Appx. 76, 2001 WL 1562070 at *1 (2d Cir. Dec. 4, 2001), petition for cert. filed, No. 01-10542, ___ U.S.L.W. ___ (U.S. May 29, 2002); Johns-Davila v. City of New York, 99 Civ. 1885, 2000 WL 1725418 at *3 (S.D.N.Y. Nov. 20, 2000) (Peck, M.J.); Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d 343, 352 (S.D.N.Y. 1999) (Wood, D.J. Peck, M.J.); Douglas v. Victor Capital Group, 21 F. Supp.2d 379, 387 (S.D.N.Y. 1998) (Stein, D.J. Peck, M.J.); Hernandez v. New York City Law Dep't Corp. Counsel, 94 Civ. 9042, 1997 WL 27047 at *6 (S.D.N.Y. Jan. 23, 1997) (Peck, M.J.).

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10 (1986); Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000); Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991).

The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment — here, defendant. See, e.g., Adickes v. S.H. Kress Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608 (1970); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994); Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). The movant may discharge this burden by demonstrating to the Court that there is an absence of evidence to support the non-moving party's case on an issue on which the non-movant has the burden of proof. See, e.g., Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. at 2552-53.

To defeat a summary judgment motion, the non-moving party must do "more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986). Instead, the non-moving party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); accord, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S.Ct. at 1356; see also, e.g., Weinstock v. Columbia Univ., 224 F.3d at 41 (at summary judgment, "[t]he time has come . . . `to put up or shut up'") (citation omitted).

In evaluating the record to determine whether there is a genuine issue as to any material fact, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, 477 U.S. at 255, 106 S.Ct. at 2513.²² The Court draws all inferences in favor of the non-moving party only after determining that such inferences are reasonable, considering all the evidence presented. See, e.g., Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir.), cert. denied, 484 U.S. 977, 108 S.Ct. 489 (1987). "If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Chambers v. TRM, 43 F.3d at 37.

22 See also, e.g., Chambers v. TRM, 43 F.3d at 36; Gallo v. Prudential, 22 F.3d at 1223.

In considering a motion for summary judgment, the Court is not to resolve contested issues of fact, but rather is to determine whether there exists any disputed issue of material fact. See, e.g., Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987); Knight v. United States Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570 (1987). To evaluate a fact's materiality, the substantive law determines which facts are critical and which facts are irrelevant. See, e.g., Anderson v. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510. While "disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment[,] [f]actual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510 (citation omitted); see also, e.g., Knight v. United States Fire Ins. Co., 804 F.2d at 11-12.

When a case turns on the intent of one party, as employment discrimination claims often do, a "trial court must be cautious about granting summary judgment." Gallo v. Prudential, 22 F.3d at 1224.²³ Because the employer rarely leaves direct evidence of its discriminatory intent, the Court must carefully comb the available evidence in search of circumstantial proof to undercut the employer's explanations for its actions. E.g., Gallo v. Prudential, 22 F.3d at 1224. "[S]ummary judgment may not be granted simply because the court believes that the plaintiff will be unable to meet his or her burden of persuasion at trial. There must either be a lack of evidence in support of the plaintiff's position or the evidence must be so overwhelmingly tilted in one direction that any contrary finding would constitute clear error." Danzer v. Norden Sys., Inc., 151 F.3d 50, 54 (2d Cir. 1998) (citations omitted). Nonetheless, when an employer provides convincing evidence to explain its conduct and the plaintiff's argument consists of purely conclusory allegations of discrimination, the Court may conclude that no material issue of fact exists and it may grant summary judgment to the employer. E.g., Budde v. HK Distrib. Co., No. 99-9449, 216 F.3d 1071 (table), 2000 WL 900204 at *1 (2d Cir. June 29, 2000); Stern v. Trustees of Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997); Meloff v. New York Life Ins. Co., 51 F.3d 372, 375 (2d Cir. 1995). In other words, to defeat summary judgment, "the plaintiff's admissible evidence must show circumstances that would be sufficient to permit a rational finder of fact to infer that the defendant's employment decision was more likely than not based in whole or in part on discrimination." Stern v. Trustees of Columbia Univ., 131 F.3d at 312; see, e.g., Schnabel v. Abramson, 232 F.3d 83, 90-91 (2d Cir. 2000); Weinstock v. Columbia Univ., 224 F.3d at 42 (The question on summary judgment is "whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination. To get to the jury, it is not enough . . . to disbelieve the employer; the factfinder must also believe the plaintiff's explanation of intentional discrimination.") (internal quotations alterations omitted); Fisher v. Vassar College, 114 F.3d 1332, 1339 (2d Cir. 1997) (en banc), cert. denied, 522 U.S. 1075, 118 S.Ct. 851 (1998); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996) (plaintiff must "produce not simply `some' evidence, but `sufficient evidence to support a rational finding that the legitimate, nondiscriminatory reasons proffered by the employer were false, and that more likely than not [discrimination] was the real reason for the discharge'").²⁴ Indeed, the Second Circuit "went out of [its] way to remind district courts that the `impression that summary judgment is unavailable to defendants in discrimination cases is unsupportable.'" Weinstock v. Columbia Univ., 224 F.3d at 41.

23 Accord, e.g., Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) ("in an employment discrimination case when, as here, the employer's intent is at issue, the trial court must be especially cautious about granting summary judgment"); McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997) ("caution must be exercised in granting summary judgment where motive is genuinely in issue"); Cardozo v. Healthfirst Inc., 98 Civ. 3050, 1999 WL 782546 at *1-2 (S.D.N.Y. Sept. 30, 1999); see also, e.g., Chambers v. TRM, 43 F.3d at 40.

24 See also, e.g., Budde v. HK Distrib. Co., 2000 WL 900204 at *1; Scaria v. Rubin, 94 Civ. 3333, 1996 WL 389250 at *5 (S.D.N.Y. July 11, 1996) (Peck, M.J.), aff'd, 117 F.3d 652, 654 (2d Cir. 1997).

II. SUMMARY JUDGMENT IS GRANTED FOR DEFENDANTS ON BROWN'S BREACH OF CONTRACT CLAIM BECAUSE BROWN CANNOT RAISE ANY DEFENSES TO THE MAY 3, 1999 CONTRACT UNDER WHICH SHE WAS AN EMPLOYEE "AT-WILL"²⁵

25 Even though Brown disputes the validity of the May 3, 1999 contract, which includes a provision indicating that New York Law applies (see page 11 above), the parties (correctly) assume that New York law applies to Brown's breach of contract claim. (See Dkt. No. 26: CW Br. at 12-15; Dkt. No. 32: Brown Br. at 21-23.) See, e.g., Parenteau v. Kim, 97 Civ. 8863, 1998 WL 740778 at *2 n. 1 (S.D.N.Y. Oct. 22, 1998) (Where contract for services was negotiated in New York to be performed in New York, "in conjunction with the parties' reliance on New York law, the Court assumes that New York law applies."), aff'd 182 F.3d 900 (2d Cir. 1999); Grey v. F.D.I.C., 88 Civ. 7452, 1998 WL 483460 at *5 n. 7 (S.D.N.Y. Aug. 14, 1998) ("The Court relies upon New York law, as do the parties, since they entered into the contract in New York and plaintiff was employed in New York."); Philips Credit Corp. v. Regent Health Group, Inc., 953 F. Supp. 482, 502-03 (S.D.N.Y. 1997) (New York law applies to a contract with no choice-of-law provision where "New York has the most significant relationship with the occurrences giving rise to the cause of action" after considering "(1) the place of contracting; (2) the place of the contract negotiations; (3) the place of the performance of the contract; (4) the location of the subject matter of the contract; and (5) the domicile, residence, nationality, places of incorporation, and places of business of the parties."); see also Restatement 2d of Conflict of Laws § 188(2).

If the May 3, 1999 Employment Contract is valid, it is clear that Brown was an at-will employee who could be fired at any time with two weeks notice. (See page 10 above.) Therefore, if the Court finds that the May 3, 1999 contract is enforceable, CW is entitled to summary judgment dismissing Brown's breach of contract claim.

Brown argues that the "May 3, 1999 contract is unenforceable since it was fraudulently induced and signed under duress" and that, as a result, "the December 3, 1998 contract governs the parties' relationship." (Dkt. No. 34: Brown 56.1 Stmt. ¶ 37.)²⁶ Brown further argues that the December 3, 1998 Term Sheet constitutes a "two-year Employment Agreement" which CW breached by terminating her. (Dkt. No. 32: Brown Br. at 21-23.) These arguments have no merit.

26 New York Law governs the fraud and duress claim because the allegedly fraudulent actions occurred in New York, Brown suffered her alleged injuries in New York, and New York contacts are the most applicable. See, e.g., Telecom Int'l America, Ltd. v. ATT Corp., 280 F.3d 175, 196 n. 6 (2d Cir. 2001).

First, the May 3, 1999 Employment Contract expressly supercedes the December 1998 Letter:

This Agreement contains the sole and entire agreement and understanding between the parties and shall supercede any and all other agreements between the parties. The parties acknowledge that neither of them has made any representation with respect to the subject matter of this Agreement or any representations inducing the execution and delivery hereof except such representations as are specifically set forth herein, and each of the parties acknowledges that he or it has relied on his or its own judgment in entering into the same. The parties further acknowledge that any statements or representations that may have heretofore been made by either of them to the other are void and of no effect and that neither of them has relied thereon in connection with his or its dealing with the other.

(CW Ex. 19: Broker-Salesperson Employment Contract for Brown, ¶ 12, quoted at page 11 above.) "When the parties to a contract enter into a new agreement that expressly supercedes the previous agreement, the previous agreement is extinguished, thereby reducing the remedy for breach to a suit on the new agreement." Health-Chem Corp. v. Baker, 915 F.2d 805, 811 (2d Cir. 1990) (applying N.Y. law). In this case, the May 3, 1999 Contract provides such a provision expressly superceding any previous agreements. Therefore, even if the May 3, 1999 agreement were at odds with the December 1998 Term Sheet (and the Court is not convinced of that), the May 3, 1999 agreement would control.

Brown's arguments of "fraud and duress" are unavailing. (Dkt. No. 32: Brown Br. at 22-23.) "In order to make out a claim of duress as an affirmative defense to breach of contract, a [party] must show that he was subjected to compulsion that was sufficiently great to overcome the exercise of [his] free will. The duress must involve an act or a threat of action from which the person sought to be influenced is entitled to be free. A [party] claiming that he was induced to enter a contract as a result of duress must show: (1) a threat, (2) unlawfully made, (3) which caused involuntary acceptance of contractual terms, (4) because the circumstances permitted no alternative." Mathias v. Jacobs, 167 F. Supp.2d 606, 614-17 (S.D.N.Y. 2001) (internal quotations citations omitted) (where both parties to a contract were "experienced businessmen," "[e]ven accepting as true [defendant's] contentions that [plaintiff] made" threats, which "could have engendered some psychological or business `distress'" defendant's duress defense does not raise a genuine issue of material fact because defendant did not show that "he was exposed to coercion that deprived him of his free will and left him with no choice but to sign" the contract); accord, e.g., Hellenic Lines, Ltd. v. Louis Dreyfus Corp., 372 F.2d 753, 758 (2d Cir. 1967) (no duress where party "merely exercised its business judgment in a difficult situation"); Berman v. Parco, 96 Civ. 0375, 1996 WL 465749 at *6-8 (S.D.N.Y. Aug. 15, 1996) (Peck, M.J.) (Where plaintiff "admitted in his deposition, he chose to `lie'" in signing an unconditional release and then claimed economic, emotional and legal duress, the court rejected plaintiff's duress defense which essentially "consisted of legal fees" or "fear that [defendant] would delay" arbitration because "there is no evidence that plaintiffs lacked any other alternative" and "[t]he party seeking to avoid an otherwise valid agreement on duress grounds cannot simply claim that they feared the other party's hard-line bargaining tactics."); Lucas v. Oxigene, Inc., 94 Civ. 1691, 1995 WL 520752 at *6-7 (S.D.N.Y. Aug. 31, 1995) (rejecting plaintiff's claim that "he was the victim of improper and excessive pressure because defendant `put [the Second Employment Agreement] on his desk and sent [the] chief financial officer in to see that he signed it.' . . . [Defendant]'s comments were at most hard bargaining, not conduct so severe that it deprived plaintiff of his free will and judgment."), aff'd, 101 F.3d 109 (2d Cir. 1996); Rust v. Drexel Firestone, Inc., 352 F. Supp. 715, 717 (S.D.N.Y. 1972) (Weinfeld, D.J.) (finding no duress where "the contract was one of employment, the essence of which centered about compensation, commission and other prerequisites. There is no suggestion that these were not bargained for at arms length between plaintiff and defendant. . . . The defendant was neither a monopolist nor a public utility. Plaintiff, if dissatisfied with the compensation offered or other conditions pertaining to his work, was free to seek employment with another" employer.).

Further, "a party who has entered into a contract due to duress must act promptly to repudiate it." Mathias v. Jacobs, 167 F. Supp.2d at 616. "The burden on a party seeking to avoid contractual obligations on the grounds of economic duress `increases proportionately with the delay in initiating suit or otherwise repudiating the contract in question, since it is well established under New York law that a party asserting duress must do so promptly.'" VKK Corp. v. Nat'l Football League, 244 F.3d 114, 123 (2d Cir. 2001); DiRose v. PK Mgmt. Corp., 691 F.2d 628, 633-34 (2d Cir. 1982) ("A contract or release, the execution of which is induced by duress, is voidable, not void, and the person claiming duress must act promptly to repudiate the contract or release or he will be deemed to have waived his right to do so.") (citing N.Y. cases), cert. denied, 461 U.S. 915, 103 S.Ct. 1896 (1983); Mathias v. Jacobs, 167 F. Supp.2d at 616 (even if party "had successfully met the requisite legal standard for [duress], he still would not defeat" summary judgment "because no reasonable jury could conclude that [he] timely repudiated the contract."); Acquaire v. Canada Cry Bottling, 906 F. Supp. 819, 828 (E.D.N.Y. 1995).

Brown has failed to successfully raise a defense of duress. Brown's claim of "duress" is that she "had no choice" but to accept the contract because she had been unemployed for a few months prior to her employment at CW. (See page 14 above.) Basically, her argument boils down to she signed the contract because she needed a job. This does not constitute "duress" which would merit relief. See, e.g., Salesky v. David Peyser Sportswear, Inc., 94 Civ. 9036, 1996 WL 262985 at *2-3 (S.D.N.Y. May 17, 1996) ("threats of termination" of at will employee did not constitute duress); Acquaire v. Canada Dry Bottling, 906 F. Supp. at 824-28 (rejecting plaintiffs' assertions of "economic duress" where plaintiffs "were forced to sign the agreements under extreme time pressure — specifically, while loading their trucks —" "on a `take it or leave it basis'" since "[t]he `threats' defendants are alleged to have made amounted to no more than assertions that the agreement they were entitled to insist upon was not negotiable" and "[i]f plaintiffs were displeased with the . . . contract, they had only to decline to accept it, and do business with other[s]."); Lucas v. Oxigene. Inc., 1995 WL 520752 at *5-6 (rejecting plaintiff's claim that putting the employment contract on his desk and sending the "chief financial officer in to see that he signed it" constituted duress, especially since plaintiff signed contract "in order to optimize his investment in the company"); Berzin v. W.P. Carey Co., 293 A.D.2d 320, 740 N.Y.S.2d 63, 64 (4th Dep't 2002) (in an action for rescission of an employment contract, where "defendant offered plaintiff the choice of either entering into a revised and less lucrative agreement or being immediately terminated," "given defendant's express right to terminate the original agreement, its threat to do so unless plaintiff agreed to the revised agreement cannot be viewed as `wrongful,' and thus cannot be the basis [for the defense of] economic duress."). Even if needing a job could ever constitute duress, Brown hardly seems destitute. Moreover, Brown did not make any objections to the contract, or object to the fact that she had to sign it before she commenced her employment at CW. (See pages 13-14 above.) Therefore, Brown's claim would fail even if she were subject to duress (and this Court finds that she was not) because she did not challenge the agreement on the grounds of duress after she signed it.

Similarly, Brown's claim that she was fraudulently induced into signing the contract also fails. Specifically, Brown argues that "at a minimum an issue of fact exists as to whether Plaintiff was fraudulently induced into signing the May 1999 contract since (1) Mr. Lagano assured [Brown] that the contract reflected the two-year term of employment in the December 1998 agreement, (2) he was aware that this representation was false, (3) his misrepresentation was material to Plaintiff's decision to sign the agreement, (4) [Brown] relied on this misrepresentation in deciding to sign the agreement, and (5) [Brown] has been injured by CW's misrepresentations." ((Dkt. No. 32: Brown Br. at 22.) Brown's argument is specious.

As Brown recognizes, "[i]n order to prevail on a fraudulent misrepresentation claim under New York law, a plaintiff must show that: (1) the defendant made a false representation of a material fact; (2) with knowledge of its falsity; (3) with scienter, namely an intent to defraud the plaintiff (4) and upon which plaintiff justifiably relied; (5) thereby causing damage to the plaintiff." Cofacredit, S.A. v. Windsor Plumbing Supply Co., 187 F.3d 229, 239 (2d Cir. 1999); see, e.g., Jelks v. Citibank, N.A., 99 Civ. 2955, 2001 WL 50891 at *3 (S.D.N.Y. Jan. 22, 2001); ("Under very limited circumstances, . . . at-will employees can recover for fraudulent statements that induce them into accepting positions of employment by showing: (1) a material false representation; (2) scienter; (3) reasonable reliance [and] (4) damages.").²⁷

27 See also, e.g., New York Islanders Hockey Club. LLP v. Comerica Bank — Texas, 71 F. Supp.2d 108, 116 (E.D.N.Y. 1999); New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 318, 639 N.Y.S.2d 283, 288 (1995); Channel Master Corp. v. Aluminum Ltd. Sales, Inc., 4 N.Y.2d 403, 408-09, 176 N.Y.S.2d 259, 263 (1958).

First, the Court is not convinced that the May 3, 1999 contract contradicted the terms of the December 1998 Term Sheet. Further, even if the terms of the May 3, 1999 contract contradicted the Term Sheet, Brown has not submitted any evidence suggesting that Lagano was aware of a contradiction, or refuting his statement that he believed the Term Sheet terms were reflected in the contract (see page 13 above). See, e.g., Harrington v. Hasan, 743 N.Y.S.2d 684, 689-90, 2002 WL 1059568 at *5 (Civ.Ct. Queens Co. May 21, 2002) (fraudulent misrepresentation claim must fail where "[t]here is no evidence that [defendant] intentionally misled [plaintiff] or that it intended to deceive [plaintiff] with regard to the agreement."). Finally, and most importantly, because Brown had but to read the contract to know its terms, her failure to do so cannot sustain a fraudulent representation claim. See, e.g., Morby v. Di Siena Assoc. LPA, 291 A.D.2d 604, 605-06, 737 N.Y.S.2d 678, 680 (3d Dep't 2002) (A "party who signs a document without any valid excuse for having failed to read it is conclusively bound by its terms. . . . Having failed to read the release before signing it, plaintiff simply cannot establish the essential element of justifiable reliance. . . . Said differently, the allegedly fraudulent misrepresentation by [defendant] could have been readily discovered upon the reading of the document, and plaintiff cannot now avoid his obligations under a release he did not read merely by asserting that he `thought' it was something else."); Maines Paper Food Serv. v. Adel, 256 A.D.2d 760, 761-62, 681 N.Y.S.2d 390, 391 (3d Dep't 1998) ("Having failed to read the agreement . . . defendant is precluded from asserting fraudulent inducement since there cannot be any justifiable reliance."); Verstreate v. Cohen, 242 A.D.2d 862, 863, 662 N.Y.S.2d 337, 339 (4th Dep't 1997) (affirming grant of summary judgment where "plaintiff failed to raise an issue of fact concerning the existence of fraud or overreaching by the claims adjuster, who allegedly misrepresented the meaning of the release to the plaintiff [because] [p]laintiff admitted that she did not read the release before signing it."); see also Harrington v. Hasan, 743 N.Y.S.2d at 687, 689, 2002 WL 1059568 at *2, 4 ("parties are responsible for reading and reviewing documents prior to signature and the failure to do so is not a defense," and even where plaintiff contends that defendant "presented blank forms for his signature" "plaintiff has failed to demonstrate any deceit or fraudulent misrepresentation"); Ainsley Skin Care of New York, Inc. v. Elizabeth Grady Face First, Inc., 97 Civ. 6716, 1997 WL 742526 at *4 (S.D.N.Y. Dec. 2, 1997) (Peck, M.J.) (enforcing forum selection clause in contract because if a party "did not read [a contract and its provisions] or hire counsel to do so, he is the victim of his own lack of diligence, not [defendant's] misconduct") (citing cases).

Brown admits that no one forbade her from reading the contract. (See pages 13-14 above.) Brown concedes that "[t]he May 3, 1999 contract did not contain a two-year term of employment" clause (Dkt. No. 34: Brown 56.1 Stmt. ¶ 31) and that under that contract, Brown "was an at-will employee" (Brown Br. at 21). Since this Court finds that the May 3, 1999 agreement is an enforceable contract and controls, and rejects Brown's claims of fraud or duress, CW should be granted summary judgment dismissing that part of Brown's breach of contract claim that she is entitled to two years' compensation.²⁸

28 Brown concedes that her New York "Labor Law claims depend on the success of her breach of contract claims." (Brown Br. at 23.) CW therefore should be granted summary judgment on Brown's claims under New York Labor Law as well.

III. BROWN IS NOT ENTITLED TO A JURY TRIAL BECAUSE SHE WAIVED THAT RIGHT IN THE MAY 3, 1999 EMPLOYMENT CONTRACT²⁹

29 "[T]he right to a jury trial in the federal courts is to be determined as a matter of federal law." Morgan Guar. Trust Co. v. Crane, 36 F. Supp.2d 602, 603 (S.D.N.Y. 1999) (citing Simler v. Conner, 372 U.S. 221, 222, 83 S.Ct. 609, 610 (1963)).

Brown's employment agreement provided: "CW and Employee shall and hereby do waive a trial by jury in any action, proceeding or counter-claim brought or asserted by either of the parties hereto against the other on any matters whatsoever arising out of this Agreement." (Dkt. No. 28: CW Ex. 19: Employment Contract ¶ 10, quoted at page 11 above.)

Nevertheless, Brown argues that "[e]ven if the May 3, 1999 contract is enforceable," she "is entitled to a jury trial despite the jury waiver clause in her May 3, 1999 contract because she did not knowingly, intentionally, and voluntarily waive her right to a jury trial, particularly on her discrimination claims."³⁰ (Dkt. No. 32: Brown Br. at 16.) Essentially, Brown's argument is that because she did not read the contract, and as a result did not "see the waiver provision," she did not know of its provision waiving the right to a jury trial and therefore, the jury trial waiver is invalid. (Dkt. No. 32: Brown Br. at 16.) This argument has no merit.

30 Brown also argues that "in any event, the May 3, 1999 contract is not enforceable." (Dkt. No. 32: Brown Br. at 16.) The Court already has rejected this argument as well. See Point II above.)

This Court has already determined that Brown cannot successfully assert fraud or duress defenses to the May 3, 1999 contract. (See pages 33-39 above.) "In the absence of fraud, duress or some other wrongful act by a party to a contract, a signer of an agreement is deemed to be conclusively bound by its terms whether or not he or she read it." Maines Paper Food Serv. v. Adel, 256 A.D.2d 760, 761-62, 681 N.Y.S.2d 390, 391 (3d Dep't 1998) (defendant is bound by personal guarantee clause in contract despite his failure to read or understand contract or its terms); see also, e.g., Morgan Guar. Trust Co. v. Crane, 36 F. Supp.2d at 603-04 (jury waiver upheld where one party disputed "the circumstances surrounding the signing of the" contract and claimed it was "`pressured' to sign" the contract "quickly," because defendants, who sought to strike the waiver were "not financial neophytes" but rather "were experienced business people."); cases cited on pages 33-39 above.

To defeat a particular contract provision, a plaintiff must show that she was fraudulently induced into agreeing to that particular provision. See, e.g., Stamm v. Barclays Bank, 960 F. Supp. 724, 729-30 (S.D.N.Y. 1997) (dealing with a forum selection clause and choice of law clauses in contract and finding that "[a] claim of fraud in the inducement of a contract is insufficient to invalidate . . . clause[s] in the contract. Rather, it is the inclusion of those specific clauses plaintiffs seek to avoid that must have been induced by fraud" and "plaintiffs must plead specific fraudulent acts or statements by which defendants induced their consent to these clauses" to overcome the validity of them); see also, e.g., Scherk v. Alberto-Culver Co., 417 U.S. 506, 519 n. 14, 94 S.Ct. 2449, 2457 n. 14 (1974) (involving arbitration clause).

It is well-established that the parties to a contract may waive the right to a jury trial. See, e.g., Herman Miller v. Thom Rock Realty Co., 46 F.3d 183, 189 (2d Cir. 1995); Morgan Guar. Trust Co. v. Crane, 36 F. Supp.2d at 603. Jury trial waivers are regularly enforced where the waiver is "knowing, voluntary" and "intentional." See, e.g., Morgan Guar. Trust Co. v. Crane, 36 F. Supp.2d at 603; Oei v. Citibank, N.A., 957 F. Supp. 492, 523 (S.D.N.Y. 1997). To determine whether a waiver is knowing and voluntary, courts turn to: "(1) the negotiability of contract terms and negotiations between the parties concerning the waiver provision; (2) the conspicuousness of the waiver provision in the contract; (3) the relative bargaining power of the parties; and (4) the business acumen of the party opposing the waiver." Morgan Guar. Trust Co. v. Crane, 36 F. Supp.2d at 603-04; Oei v. Citibank, N.A., 957 F. Supp. at 523; Sullivan v. Ajax Navigation Corp., 881 F. Supp. 906, 911 (S.D.N.Y. 1995).

Here, Brown cannot claim that the jury waiver was not sufficiently conspicuous or that she could not have negotiated about the clause if she tried; the simple fact of the matter is she never read the contract. (See pages 37-38 above.) Brown has a Harvard M.B.A. and worked as an investment banker before she decided to become a commercial real estate broker. (See page 3 above.) Her argument that she did not knowingly waive her right to a jury trial because she did not read the contract has no merit. See, e.g., Tuskey v. Volt Info. Sci., Inc., 00 Civ. 7410, 2001 WL 873204 at *3-4 (S.D.N.Y. Aug. 3, 2001) (enforcing arbitration clause despite plaintiff's allegations that there was no "level playing field" and that no one "explained [the clause] to her" because "[c]ontract law is clear that parties are `conclusively' bound by the contracts they sign whether or not the party has read the contract as long as there is no fraud, duress or some other wrongful act of the other party."); Smith v. Lehman Bros., Inc., 95 Civ. 10326, 1996 WL 383232 at *1 (S.D.N.Y. July 8, 1996) (rejecting plaintiff's claims that "he was never provided with a copy of the application nor was he aware of the arbitration provision. As such assertions alone do not constitute economic duress, coercion, or fraud, [plaintiff] is conclusively presumed to have assented to submit his claims to arbitration."); Maye v. Smith Barney, Inc., 897 F. Supp. 100, 108 (S.D.N.Y. 1995); Barclays Bank v. Heady Elec. Co., 174 A.D.2d 963, 965, 571 N.Y.S.2d 650, 653 (3d Dep't) ("[E]ven if [defendant] had neglected to read the documents containing the bury] waiver provisions, this alone would not affect their validity."), appeal denied, 78 N.Y.2d 1072, 576 N.Y.S.2d 221 (1991); James Talcott, Inc. v. Wilson Hosiery Co., 32 A.D.2d 524, 525, 299 N.Y.S.2d 460, 461-62 (1st Dep't 1969) ("Not to have read the contract . . . furnishes no basis for his repudiation of any of its terms. The jury waivers in the [contract] are enforceable and must be given effect." (quotations citations omitted); see also cases cited at pages 37-39 above.

The contractual waiver of a jury trial applies to all of Brown's claims, including those arising under federal and state discrimination statutes. See, e.g., Gateson v. ASLK-Bank, N.V., 94 Civ. 5849, 1995 WL 387720 at *4-5 (S.D.N.Y. June 29, 1995); Cherry v. Wertheim Schroder Co., 868 F. Supp. 830, 833 (D.S.C. 1994); cf., Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 121-24, 121 S.Ct. 1302, 1312-13 (2001) (enforcing arbitration clause in employment contract for employment discrimination claim); Green Tree Financial Corp.-Alabama v. Randolph, 531 U.S. 79, 89-92, 121 S.Ct. 513, 521-23 (2000).

Brown therefore is not entitled to a jury trial, and her jury trial demand should be stricken.

IV. CW'S SUMMARY JUDGMENT MOTION SHOULD BE DENIED ON BROWN'S CLAIM THAT CW BREACHED HER MAY 3, 1999 EMPLOYMENT CONTRACT AND COMMISSION RIDER BY FAILING TO PAY HER COMMISSIONS

Brown has sued for commissions contractually owed to her for the N.Y. Foundation deal, and under New York Labor Law §§ 191, 193, 198. (See Compl. ¶¶ 93-107; see also pages 1, 24 above.)

The relevant provisions entitling Brown to commissions are contained in the May 3, 1999 Employment Contract and Commissions Rider, which provided as follows:

CW shall pay Employee and Employee accepts as his full and only compensation for all his services rendered, the percentages of the commissions and fees collected by CW on transactions . . . . and as determined in accordance with the Schedule of Compensation annexed hereto and made part hereof. . . . Notwithstanding anything to the contrary in the Schedule of Compensation attached hereto, if Employee is the sole procuring cause of any brokerage or fee production for CW during the first two (2) years of Employee's employment under the Contract, then, in such event only, twenty-five (25%) percent of any such commissions or fees earned by CW (i.e., 12.5% net) will be paid to Employee in addition to the draw advances set forth in the attached Drawing Account Rider. . . .

(Dkt. No. 28: CW Ex. 19: Brown Employment Agreement ¶ 3 Commission Rider, emphasis added.

CW's summary judgment motion argues that "CW never received any commissions from the Foundation deal, and, therefore, was under no obligation to pay [Brown] commissions." (Dkt. No. 26: CW Br. at 10.) Brown does not dispute that CW has not received commissions on the N.Y. Foundation deal. (See Dkt. No. 32: Brown Br. at 19.) Rather, Brown argues (1) that the Rider's provision that Brown is entitled to a portion of commissions "earned" is to be distinguished from commissions "collected," and that (2) CW has failed to seek commissions owed to it, "in breach of the implied covenant of good faith and fair dealing" (Brown Br. at 19).

While it seems counter-intuitive that CW would fail to collect commissions that would be split 87.5% to CW and only 12.5% to Brown, there are disputed issues of fact (and inferences therefrom) as to why CW has not sought and collected commissions to which it clearly is entitled from New York Foundation, and thereby breached its obligation to act in good faith (such term being implied in all contracts, including Brown's employment agreement) towards Brown when it did not seek to collect commissions from New York Foundation. (See pages 16-17 above.)

Accordingly, the Court should deny CW's summary judgment motion on this issue.

V. CW'S SUMMARY JUDGMENT MOTION SHOULD BE DENIED AS TO BROWN'S TITLE VII SEX DISCRIMINATION CLAIMS

A. Legal Principles Governing Title VII Actions³¹

31 For additional cases authored by this Judge discussing the legal principles governing employment discrimination actions, in language substantially similar to that in this entire section of this Report Recommendation see, e.g., Kennebrew v. New York City Housing Authority, 01 Civ. 1654, 2002 WL 265120 at *7-10 (S.D.N.Y. Feb. 26, 2002) (Peck, M.J.); Williams v. NYC Dep't of Sanitation, 00 Civ. 7371, 2001 WL 1154627 at *9-12 (S.D.N.Y. Sept. 28, 2001) (Peck, M.J.); Gonzalez v. New York City Transit Auth., 00 Civ. 4293, 2001 WL 492448 at *10 (S.D.N.Y. May 9, 2001) (Peck, M.J.), aff'd No. 01-7907, 32 Fed. Appx. 10, 2002 WL 562295 (2d Cir. Apr. 16, 2002); Cobian v. New York City, 99 Civ. 10533, 2000 WL 1782744 at *11 (S.D.N.Y. Dec. 6, 2000) (Peck, M.J.), aff'd, No. 01-7575, 23 Fed. Appx. 82, 2002 WL 4594 at *1 (2d Cir. Dec. 21, 2001); Austin v. Ford Models, Inc., 98 Civ. 3731, 2000 WL 1752966 at *8 (S.D.N.Y. Nov. 29, 2000) (Peck, M.J.), aff'd No. 01-7030, 22 Fed. Appx. 76, 2001 WL 1562070 at *1 (2d Cir. Dec. 4, 2001), petition for cert. filed, No. 01-10542, ___ U.S.L.W. ___ (U.S. May 28, 2002); Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d 343, 354 (S.D.N.Y. 1999) (Wood, D.J. Peck, M.J.); Lediju v. New York City Dep't of Sanitation, 173 F.R.D. 105, 113-14 (S.D.N.Y. 1997) (Leisure, D.J. Peck, M.J.); Hernandez v. New York City Law Dep't, 94 Civ. 9042, 1997 WL 27047 at *12 (S.D.N.Y. Jan. 23, 1997) (Peck, M.J.); Burger v. Litton, 91 Civ. 0918, 1996 WL 421449 at *8 (S.D.N.Y. Apr. 25, 1996) (Peck, M.J.), report rec. adopted, 1996 WL 609421 (S.D.N.Y. Oct. 22, 1996) (Knapp, D.J.).

Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against any individual "with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Brown alleges that CW violated Title VII by discriminating against her based on her sex (Dkt. No. 7: Am. Compl. ¶¶ 4, 65-84.)

Under the familiar McDonnell Douglas burden-shifting analysis, the plaintiff has the burden at the outset of "proving by the preponderance of the evidence a prima facie case of discrimination." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093 (1981); see, e.g., Reeves v. Sanderson Plumbing, 530 U.S. 133, 142, 120 S.Ct. 2097, 2106 (2000); O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 310, 116 S.Ct. 1307, 1309 (1996); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 2746-47 (1993); McDonnell Douglas v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824 (1973).³² Establishment of a prima facie case "`in effect creates a presumption that the employer unlawfully discriminated against the employee.'" St. Mary's v. Hicks, 509 U.S. at 506, 113 S.Ct. at 2747 (quoting Texas v. Burdine, 450 U.S. at 254, 101 S.Ct. at 1094).³³

32 See also, e.g., Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir. 2000); Austin v. Ford Models, Inc., 149 F.3d 148, 152 (2d Cir. 1998); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994).

33 See also, e.g., Scaria v. Rubin, 117 F.3d 652, 654 (2d Cir. 1997); Fisher v. Vassar College, 114 F.3d 1332, 1335 (2d Cir. 1997) (en banc), cert. denied, 522 U.S. 1075, 118 S.Ct. 851 (1998).

Once a plaintiff claiming employment discrimination establishes a prima facie case, the burden shifts to the defendant to rebut the presumption of discrimination by articulating a legitimate, non-discriminatory reason for its employment decision. E.g., Reeves v. Sanderson Plumbing, 530 U.S. at 142-43, 120 S.Ct. at 2106; O'Connor v. Consolidated Coin, 517 U.S. at 310, 116 S.Ct. at 1309; St. Mary's v. Hicks, 509 U.S. at 506-07, 113 S.Ct. at 2747; Texas v. Burdine, 450 U.S. at 253-54, 101 S.Ct. at 1093-94; McDonnell Douglas v. Green, 411 U.S. at 802, 93 S.Ct. at 1824.³⁴ The burden on the defendant at this phase is one of production rather than persuasion. E.g., Reeves v. Sanderson Plumbing, 530 U.S. at 142, 120 S.Ct. at 2106; St. Mary's v. Hicks, 509 U.S. at 507, 113 S.Ct. at 2747; Texas v. Burdine, 450 U.S. at 257, 101 S.Ct. at 1096.³⁵

34 See also, e.g., Schnabel v. Abramson, 232 F.3d at 88; Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000); Austin v. Ford Models, Inc., 149 F.3d at 152; Stein v. Trustees of Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997); Scaria v. Rubin, 117 F.3d at 654; Fisher v. Vassar College, 104 F.3d at 1335; Chambers v. TRM, 43 F.3d at 38.

35 See also, e.g., Austin v. Ford Models, Inc., 149 F.3d at 153; Scaria v. Rubin, 117 F.3d at 654; Fisher v. Vassar College, 114 F.3d at 1335.

"Any legitimate, non-discriminatory reason will rebut the presumption triggered by the prima facie case." Fisher v. Vassar College, 114 F.3d at 1335-36. "`It is important to note . . . that although the McDonnell Douglas presumption shifts the burden of production to the defendant, "[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff."'" Fisher v. Vassar College, 114 F.3d at 1335 (quoting St. Mary's v. Hicks, 509 U.S. at 507, 113 S.Ct. at 2747); accord, e.g., Reeves v. Sanderson Plumbing, 530 U.S. at 142-43, 120 S.Ct. at 2106.

If the defendant articulates a non-discriminatory reason, the McDonnell Douglas burden-shifting framework drops out of the picture. E.g., Reeves v. Sanderson Plumbing, 530 U.S. at 142-43, 120 S.Ct. at 2106; St. Mary's v. Hicks, 509 U.S. at 510, 113 S.Ct. at 2749; Texas v. Burdine, 450 U.S. at 253, 101 S.Ct. at 1093-94.³⁶ "Moreover, although the presumption of discrimination `drops out of the picture' once the defendant meets its burden of production, . . . the trier of fact may still consider the evidence establishing the plaintiff's prima facie case `and inferences properly drawn therefrom . . . on the issue of whether the defendant's explanation is pretextual.'" Reeves v. Sanderson Plumbing, 530 U.S. at 143, 120 S.Ct. at 2106 (quoting Texas v. Burdine, 450 U.S. at 255 n. 10, 101 S.Ct. at 1095 n. 10).

36 See also, e.g., Weinstock v. Columbia Univ., 224 F.3d at 42; Scaria v. Rubin, 117 F.3d at 654; Fisher v. Vassar College, 114 F.3d at 1336.

The Supreme Court clarified the standard at this stage of the McDonnell Douglas analysis:

[I]n St. Mary's Honor Center . . . . we held that the factfinder's rejection of the employer's legitimate, nondiscriminatory reason for its action does not compel judgment for the plaintiff. The ultimate question is whether the employer intentionally discriminated, and proof that "the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff's proffered reason . . . is correct." In other words, "[i]t is not enough . . . to disbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination."

In reaching this conclusion, however, we reasoned that it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation. . . .

Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive. In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent with the general principle of evidence law that the factfinder is entitled to consider a party's dishonesty about a material fact as "affirmative evidence of guilt." Moreover, once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision. Thus, a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false. may permit the trier of fact to conclude that the employer unlawfully discriminated.

This is not to say that such a showing by the plaintiff will always be adequate to sustain a jury's finding of liability. Certainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory. For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred. To hold otherwise would be effectively to insulate an entire category of employment discrimination cases from review under Rule 50 [or Rule 56], and we have reiterated that trial courts should not "`treat discrimination differently from other ultimate questions of fact.'"

Whether judgment as a matter of law [or summary judgment] is appropriate in any particular case will depend on a number of factors. Those include the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law.

Reeves v. Sanderson Plumbing, 530 U.S. at 146-49, 120 S.Ct. at 2108-09 (emphasis added citations omitted).

After Reeves, the Second Circuit has made clear that merely proving a prima facie case and disproving the employer's explanation for its conduct at the third step of the McDonnell Douglas analysis will not preclude summary judgment in all cases; rather, a case-by-case analysis is necessary:

In examining the impact of Reeves on our precedents, we conclude that Reeves prevents courts from imposing a per se rule requiring in all instances that a [Title VII] claimant offer more than a prima facie case and evidence of pretext. . . . But the converse is not true; following Reeves, we decline to hold that no [Title VII] defendant may succeed on a summary judgment motion so long as the plaintiff has established a prima facie case and presented evidence of pretext. Rather, we hold that the Supreme Court's decision in Reeves clearly mandates a case-by-case approach, with a court examining the entire record to determine whether the plaintiff could satisfy his "ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff."

Schnabel v. Abramson, 232 F.3d at 90 (emphasis added).³⁷

B. Application of Those Principles to Brown's Title VII Sex Discrimination Claim³⁸

37 See also, e.g., Roge v. NYP Holdings, Inc., 257 F.3d 164, 167-68 (2d Cir. 2001); Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 469-70 (2d Cir.), cert. denied, 122 S.Ct. 460 (2001); James v. New York Racing Ass'n, 233 F.3d 149, 156-57 (2d Cir. 2000); Weinstock v. Columbia Univ., 224 F.3d at 42 ("In short, the question becomes whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination."); Weiser v. Forest Pharm., Inc., 99 Civ. 1809, 2001 WL 293951 at *7-8 (S.D.N.Y. Mar. 26, 2001); Tanay v. Saint Barnabas Hosp., 99 Civ. 9215, 2001 WL 262695 at *4 (S.D.N.Y. Mar. 15, 2001); Bennett v. Watson, Wyatt Co., 136 F. Supp.2d 236, 245 (S.D.N.Y.), reconsideration denied, 156 F. Supp.2d 270 (S.D.N.Y. May 18, 2001); Connell v. Consolidated Edison Co., 109 F. Supp.2d 202, 207-08 (S.D.N.Y. 2000) (Chin, D.J.) ("The key is whether there is sufficient evidence in the record — whether it consists of just the prima fade case and proof of pretext alone or those items together with additional evidence — to support an inference of discrimination.").

38 The parties have offered no separate analysis of Brown's discrimination claims under the New York State and New York City Human Rights Laws. (See Dkt. No. 26: CW Br. at 21; Dkt. No. 32: Brown Br. at 8-16.) The only reference to those claims in CW's brief is a footnote, stating that "[w]ith respect to whether an employer may be liable for discriminatory treatment of an employee, claims under the NYSHRL and the NYCHRL follow the body of Title VII law." (CW Br. at 17 n. 8.) CW is not entirely correct. As this Court has pointed out several times, "while the cases . . . employ the same `federal' analysis to NYCHRL claims, the `legislative history' of the NYCHRL makes clear that it is to be even more liberally construed than the federal and state anti-discrimination laws." Kennebrew v. New York City Housing Auth., 01 Civ. 1654, 2002 WL 265120 at *7 (S.D.N.Y. Feb. 26, 2002) (Peck, M.J.) (quoting Burger v. Litton, 91 Civ. 0918, 1996 WL 421449 at *18-19 (S.D.N.Y. Apr. 25, 1996), report rec. adopted, 1996 WL 609421 (S.D.N.Y. Oct. 22, 1996) (Knapp, D.J.)); accord, e.g., Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d 343, 355 n. 5 (S.D.N.Y. 1999) (Wood, D.J. Peck, M.J.); Hernandez v. New York City Law Dep't Corp. Counsel, 94 Civ. 9042, 1997 WL 27047 at *13-19 n. 10 (S.D.N.Y. Jan. 23, 1997) (Peck, M.J.); see also Torres v. Pisano, 116 F.3d 625, 629 n. 1 (2d Cir.) (quoting Burger), cert. denied, 522 U.S. 997, 118 S.Ct. 563 (1997). Because the parties have only analyzed the case under the federal Title VII standard, however, for purposes of this motion the Court also will consider only the applicable Title VII standard.

Title VII makes it unlawful for an employer to "discharge any individual, or otherwise to discriminate against any individual . . . because of such individual's . . . sex." 42 U.S.C. § 2000e-2(a)(1). As amended by the Pregnancy Discrimination Act, the "terms `because of sex' or `on the basis of sex' include . . . because of or on the basis of pregnancy, childbirth, or related medical conditions." 42 U.S.C. § 2000e(k); see California Fed. Sav. Loan Ass'n v. Guerra, 479 U.S. 272, 277 n. 6; 107 S.Ct. 683, 687 n. 6 (1987) ("Congress passed the Pregnancy Discrimination Act of 1978 (PDA), 42 U.S.C. § 2000e(k) . . . [which] specifies that sex discrimination [under Title VII] includes discrimination on the basis of pregnancy."); accord, e.g., Kennebrew v. New York City Housing Auth., 2002 WL 265120 at *7.

Brown alleges that CW discriminated against her because of her pregnancy in violation of Title VII by (1) creating a hostile work environment, and (2) engaging in disparate treatment during her employment and by discriminatory discharge. (Dkt. No. 1: Compl. ¶¶ 65-84.)

CW moves for summary judgment on Brown's sex discrimination claim but asserts that Brown's "pregnancy discrimination [claims] in violation of these same anti-discrimination laws" "are not the subject of this [summary judgment] motion." (Dkt. No. 26: CW Br. at 1 n. 1; see also Dkt. No. 37: CW Reply Br. at 7.) The evidence, however, largely overlaps, and the case will be tried to the Court, not a jury. There clearly are disputed issues of material fact as to Brown's treatment at CW, performance at CW, and the reasons for her termination (and whether they were pretextual). Because of this, particularly where, as here, the trial will be to the Court, the Court should deny CW's summary judgment motion as to Brown's Title VII gender (as distinct from pregnancy) discrimination claim.

VI. SUMMARY JUDGMENT SHOULD BE GRANTED TO CW ON ITS COUNTERCLAIM FOR PAYMENTS ISSUED TO BROWN WHILE SHE WAS ON UNPAID MATERNITY LEAVE

CW has moved for summary judgment on its counterclaim to recover payments to Brown while she was on unpaid maternity leave. (Dkt. No. 26: CW Br. at 7.)

Although Brown concedes that she had agreed her maternity leave was to be unpaid and confirmed this in writing (CW Brown 56.1 Stmts. ¶¶ 49-51; Dkt. No. 28: CW Ex. 50: 8/16/99 Giardana Letter to Brown; Giadina Dep. at 59), Brown continued to receive bi-weekly payments while she was on maternity leave (CW 56.1 Stmt. ¶¶ 51, 53). Brown argues that despite the fact that she had agreed her leave was to be unpaid, she was nevertheless entitled to her draw because the "May 3, 1999 contract entitling her to bi-weekly payments [which] was not modified by any agreement not to pay Plaintiff during her leave since paragraph 13 of [the] contract required that any modification be in a writing signed by Plaintiff and no such signed modification was entered into." (Brown 56.1 Stmt. ¶¶ 49-51.)

In fact, Brown's agreement to take unpaid maternity leave was not a modification of her employment contract but was consistent with that agreement. Under the express language of her Employment Contract, Brown was entitled only to "the standard CW fringe benefits generally extended to other CW brokerage employee of like status and responsibility and in accordance with CW's policy as maybe determined from time to time during the term of this Agreement." (CW Ex. 19: Broker-Salesperson Employment Contract for Brown ¶ 1.) The evidence demonstrates that for employees not covered by the FMLA, maternity leave would be unpaid unless the employee qualified for disability leave. (Giardina Dep. 31-35.)

Here, Brown recognizes and acknowledges that she agreed to take unpaid maternity leave pursuant to the oral arrangements she made with CW, which were confirmed by CW in writing (see page 52 above). The agreement for unpaid maternity leave was not a prohibited modification of the employment contract, but was consistent with the benefits language of that agreement. CW therefore is entitled to return of the bi-weekly payments erroneously paid to Brown. Summary judgment should be granted for CW on its counterclaim.³⁹

39 However, Brown is entitled to an offset. According to CW's January 11, 2000 termination letter to Brown, her employment was terminated effective January 24, 2000. (Brown Ex. 28: 1/11/00 Wassel Letter to Brown; see also page 23 above.) The Employment Contract requires fourteen days prior notice for termination. (See page 10 above.) Brown therefore is entitled to compensation for the January 10-January 24, 2000 period and can use these amounts owed to her to offset the amounts erroneously disbursed to her while she was on unpaid maternity leave.

VII. SUMMARY JUDGMENT IN FAVOR OF CUSHMAN WAKEFIELD OF NEW YORK, INC. SHOULD BE DENIED

Defendants allege that Brown "was never employed by CW New York, and therefore it is not a proper party to this action." (Dkt. No. 26: CW Br. 24.) Brown alleges that "issues of fact exist" as to whether "CW, Inc." and "CW of New York" were a "single employer." (Dkt. No. 32: Brown Br. at 23.)

This part of defendants' summary judgment motion is much ado about nothing at this stage of the case. Any trial will be to the Court, not a jury (see pages 39-43 above); the length and complexity of the trial will not be affected at all whether or not CW of New York is a co-defendant with CW. Counsel, witnesses and all documentary evidence will remain the same,⁴⁰ regardless of whether CW of New York is a party to the lawsuit. Accordingly, on the particular facts of the situation facing this Court, the Court in its discretion should deny defendants' motion for summary judgment dismissing CW of New York. See Hogan v. Metromail, 99 Civ. 11204, 2002 WL 373245 at *13) (S.D.N.Y. Mar. 8, 2002) (Peck, M.J.).

40 Indeed, if defendants' submissions are correct, CW-NY is a "paper" company — it has no employees and "exists in name only." (Dkt. No. 38: Kilbridge 4/26/02 Aff. ¶¶ 2-5.)

CONCLUSION

For the reasons set forth above, the Court should:

• GRANT CW's summary judgment motion in part on Brown's breach of contract claim since Brown was an employee at will and not employed for a term of two years, and the Employment Agreement was valid;

• DENY CW's summary judgment motion in part on Brown's breach of contract claim, as to Brown's claim for commissions;

• GRANT CW's summary judgment motion on its counterclaim for repayment of the payments it made to Brown while she was on unpaid maternity leave;

• DENY CW's summary judgment motion on Brown's Title VII (and NYSHRL and NYCHRL) sex discrimination claims, since the claims significantly overlap with Brown's pregnancy discrimination claims, on which CW has not moved for summary judgment;

• DENY defendants' motion to dismiss C W-NY; and

• GRANT defendants' motion to strike Brown's jury demand.

SCHEDULING ORDER

The Joint Proposed Pretrial Order is due September 3, 2002.⁴¹

41 The Pretrial Order remains due on that date even if objections are filed to this Report Recommendation.