Tortorici v. Bus-Tev, LLC

Background

Carmelo Tortorici sued Bus-Tev, LLC, doing business as Early Morning Seafood (EMS), and Eric Tevrow. Tortorici alleged that the defendants violated the Fair Labor Standards Act (FLSA) by not paying overtime; violated the New York Labor Law (NYLL) by not paying overtime and spread-of-hours compensation, not providing required wage statements, and retaliating against him; and violated the New York State Human Rights Law and New York City Human Rights Law by creating a hostile work environment.

Tortorici worked for EMS as Vice President of Sales for about four and a half years. He agreed that selling seafood and developing client accounts were important parts of his job, but he also testified that he performed warehouse work, drove or trained drivers, chauffeured Tevrow, and represented EMS in labor matters. His compensation included sales commissions for much of his employment. He also testified that he regularly traveled to client locations to make sales and was rarely supervised.

The defendants moved for summary judgment, which asks whether the evidence requires a trial or instead entitles one side to judgment as a matter of law. Magistrate Judge Katharine H. Parker recommended granting the motion. Tortorici objected, but Judge Crotty found the objections mostly conclusory or repetitive and reviewed the recommendation for clear error.

Wage-and-hour claims

The court held that the outside-sales exemption applied under both the FLSA and the NYLL. That exemption excludes employees whose primary duty is making sales and who regularly perform that duty away from the employer’s place of business.

The court relied on Tortorici’s testimony that he was hired primarily to sell seafood, made sales and filled related orders six days a week, worked largely without supervision, and received a significant portion of his compensation through commissions. Although he performed other duties, he acknowledged that those duties took less than half of his work time. The court also treated deliveries to his own clients as work incidental to his outside sales. Because the evidence showed that he regularly performed sales duties away from EMS’s offices, the court concluded that the exemption barred his FLSA and NYLL wage-and-hour claims.

The court therefore granted the defendants summary judgment on those claims and dismissed them with prejudice.

Remaining state-law claims

After dismissing the only federal claim, the court declined to exercise supplemental jurisdiction over Tortorici’s remaining state-law claims for retaliation, hostile work environment, and failure to provide wage statements. Supplemental jurisdiction is a federal court’s authority to hear related state-law claims alongside federal claims. The court concluded that the usual considerations—including judicial economy, convenience, fairness, and respect for state courts—favored allowing the remaining claims to be pursued in state court. It noted that the discovery from the federal case could be used there.

The court did not resolve the merits of those remaining claims in its final ruling. It dismissed them without prejudice. The magistrate judge had discussed alternative merits analyses for those claims if the federal wage claim survived, but that alternative did not become the basis for the final disposition.

Disposition

Judge Paul A. Crotty adopted Magistrate Judge Parker’s Report and Recommendation in full. The court granted defendants summary judgment on Tortorici’s FLSA and NYLL wage-and-hour claims and dismissed those claims with prejudice. The court declined to exercise jurisdiction over the remaining state-law claims and dismissed them without prejudice. The clerk was directed to close the motion and the case.