Wrightv.Ad Pepper Media U.S., LLC

INDEX NO. 152538/2015 (N.Y. Sup. Ct. 2019)
INDEX NO. 152538/20152019 N.Y. Slip Op. 31898

INDEX NO. 152538/2015





The following e-filed documents, listed by NYSCEF document number (Motion 001) 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43 were read on this motion to/for JUDGMENT - SUMMARY. Upon the foregoing documents, the motion is granted in part.

Plaintiff claims in his first cause of action that defendant terminated plaintiff's employment on April 4, 2014 in retaliation for making a complaint of discrimination to his supervisor on April 2, 2014 in violation of the New York City Human Rights Law, N.Y.C. Admin. Code § 8-107(7). Defendant points to a documented history of perceived poor performance for at least six months prior to plaintiff's termination. However, while it may be true that plaintiff's employer was dissatisfied with plaintiff's job performance for an extended period of time, plaintiff's employer apparently did not make the decision to suspend plaintiff's employment until the day he first made a complaint of discrimination on April 2, 2014 and then terminated plaintiff's employment two days later on April 4, 2014. Under the circumstances presented, although defendant may have proffered legitimate, non-retaliatory reasons for discharging plaintiff, there are triable issues of fact as to whether plaintiff's complaint of discrimination was a motivating factor in the decision to terminate based on the temporal proximity between the complaint of discrimination and the adverse employment action. Hicks v. Baines, 593 F.3d 159, 170 (2d Cir. 2010) (holding that causation can be established by showing that the protected activity was followed closely by discriminatory treatment); Teran v. Jetblue Airways Corporation, 132 A.D.3d 493, 494 (1st Dept. 2015) (holding that summary judgment was not appropriate where plaintiff "raised triable issues of fact as to her retaliation cause of action, since the record show[ed] that she formally complained about the sexual harassment and was constructively discharged within a short time thereafter, permitting an inference of a causal connection between her complaint and the constructive discharge."); Krebaum v. Capital One, N.A., 138 A.D.3d 528, 352-353 (1st Dept. 2016) (holding "[t]he temporal proximity of plaintiff's complaint of discrimination and his termination of his employment one month later indirectly show[ed] the requisite causal connection required for a retaliation claim.").

Triable issues of fact regarding such causal connection is also raised by defendant's own deposition testimony. For instance, in response to a question regarding the factors considered in the decision to terminate plaintiff's employment, plaintiff's former supervisor stated: "Q: How did you react when he raised this issue of discrimination? A: "Well, shock and disappointment.... I needed time to absorb his actions. So, I had to suspend him and consider his position.... I just had to consider everything that he just said, because it took me by surprise." EBT of Ryan Gilbert, December 12, 2016 at p. 119-121. Defendant apparently failed to conduct an investigation of the alleged discrimination in the two-day period between the discrimination complaint and the decision to terminate. Instead, it appears that defendant may have simply concluded summarily that the complaint of discrimination was not made in good faith. While it is possible that plaintiff's complaint of discrimination was not made in good faith, which would potentially defeat plaintiff's retaliation claim, such a question is for a jury and not the court to decide, particularly in light of plaintiff's assertions that similarly situated individuals outside of plaintiff's protected category were treated differently.

Accordingly, defendant's motion for summary judgement on plaintiff's first cause of action is denied.

Plaintiff's second cause of action alleges breach of contract for failing to pay certain bonuses. This cause of action is dismissed. The purported contract language regarding the bonus payments make it clear that such payments are discretionary. As a result, plaintiff has no enforceable contractual rights to any bonus compensation.

Plaintiff's third and sixth causes of action are both claims for commissions under a breach of contract theory and violation of State wage law theory, respectively. Summary judgement on these commissions claims is granted in part to the extent described below.

Defendant is correct that an employer has a virtually unfettered right to prospectively alter the terms of compensation of its at-will employees. Conversely, however, an employer does not have the right to alter an employee's wages retroactively.

The contract states, in pertinent part, that plaintiff will be paid "a" percentage commission based on the override commission paid to the company by the merchants. What that percentage/commission rate will be, therefore, was left ambiguous in the contract. However, it appears that the practice of the employer, which can create an expectation of wages under both contract and statutory wage laws, was that override commissions paid to defendant by defendant's clients were 5% and that the account managers split those override commissions equally. See, EBT of Ryan Gilbert at p. 48-49. It also appears that in October/November 2013, defendant exercised its right to reduce plaintiff's share of these commissions prospectively. See, EBT of Ryan Gilbert at p. 51.

There does not appear to be any triable issues of fact that defendant failed to pay plaintiff the commissions he may have earned in 2013. Indeed, it appears that commissions paid to plaintiff for 2013 appear to have exceeded the $6,000 estimate/target. However, there appears to be triable issues of fact as to whether plaintiff was entitled to at least some portion of the 5% commission on overrides paid to defendant by its clients in 2014 prior to plaintiff's termination in April 2014, if any. Further, while defendant had the right to reduce the commission rate applicable to plaintiff prospectively in 2014, defendant had an obligation to convey this decision to reduce the rate to the plaintiff in some manner. There are triable issues of fact, therefore, as to whether plaintiff earned commissions in the first quarter of 2014 and the percentage commission rate applicable thereto. Summary judgement is granted, therefore, except in relation to alleged commissions earned by plaintiff from January 1, 2014 to April 4, 2014 based on override commissions paid to defendant by its clients during that period, if any.

Plaintiff's fourth, fifth and seventh causes of action each allege technical paperwork violations of New York wage and hour laws, which have no merit or damages. Indeed, plaintiff, recognizing the deficiencies of some of these claims, withdraws and discontinues his fifth and seventh causes of action through his Memorandum of Law in Opposition to Defendant's Motion for Summary Judgement (NYSCEF Doc. No. 41). Plaintiff's fourth cause of action is equally without merit and is dismissed.

ORDERED that defendant's motion for summary judgment is granted to the extent of granting partial summary judgment in favor of defendant and against plaintiff on the second, fourth, fifth and seventh causes of action; and it is further

ORDERED that the action shall continue as to the first, third and sixth causes of action; and it is further

ORDERED that counsel are directed to appear for a pre-trial conference in Room 684 on September 19, 2019, at 2:30 PM. 7/1/2019


/s/ _________

, J.S.C.