Agerbrink v. Model Serv. LLC

293 F.Supp.3d 470

Eva AGERBRINK, Plaintiff,

v.MODEL SERVICE LLC et al., Defendants.

14–CV–7841 (JPO)

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

Signed March 14, 2018

Cyrus E. Dugger, The Dugger Law Firm, PLLC, New York, NY, for Plaintiff

Matthew Savage Aibel, Ronald M. Green, Evan J. Spelfogel, Epstein, Becker & Green, P.C., New York, NY, for Defendants.

OPINION AND ORDER

J. PAUL OETKEN, District Judge:

Plaintiff Eva Agerbrink is a fit model. She signed a representation contract with Defendant Model Service LLC ("MSA"), but left on bad terms. Agerbrink claims that MSA misclassified her as an independent contractor when she was really an employee. She also sues for unjust enrichment because MSA withheld some of her earnings after she left. MSA counterclaims for breach of contract and tortious interference with a business relationship.

Before the Court are the parties' cross-motions for summary judgment. Both Agerbrink and MSA move for summary judgment on the employee-versus-independent-contractor issue. Agerbrink also moves for summary judgment as to MSA's counterclaims. Finally, Agerbrink moves for summary judgment that she is entitled to $13,768.15 withheld by MSA.

For the reasons that follow, the Court grants summary judgment for MSA on the misclassification issue, concluding that Agerbrink was not an employee of MSA. The Court also grants summary judgment for Agerbrink on MSA's tortious interference counterclaim, but denies summary judgment as to MSA's breach of contract counterclaim. Finally, the Court grants summary judgment on the withheld earnings, concluding that Agerbrink is entitled to at least $13,768.15.

I. Background

The following facts are taken from the parties' consolidated Rule 56.1 Statements and are not disputed unless otherwise noted. (See Dkt. No. 265 ("CSUF").)

Plaintiff: Plaintiff Eva Agerbrink is a fit model. Fit models are used by fashion designers and manufacturers to check the fit, drape, and look of clothes. (CSUF ¶ 3.)

Defendants: Defendant Model Service LLC, also known as MSA Models, is a model management company. Defendant Susan Levine is MSA's owner and president. (CSUF ¶ 325.) Defendant William Ivers is MSA's chief operating officer. (CSUF ¶ 327.) For simplicity, "MSA" in this opinion refers to all three Defendants.

The fit-model hiring process: Apparel companies hire models primarily on the basis of the model's physical measurements and proportions. MSA employed "model bookers" whose job was to find work for MSA's models. (CSUF ¶ 46.) When a client wanted to hire a fit model, it would contact MSA. (CSUF ¶ 16.) MSA would respond with suggestions of specific models, including body measurements and photos. (CSUF ¶ 16.) MSA would then send models to the clients for a free "go-see." (CSUF ¶ 16.) A go-see is a cross between a job interview and an audition: the model tries on clothing and the client decides if it wants to hire the model. (CSUF ¶ 17.) If the go-see went well, the client would contact MSA and hire the model. (CSUF ¶ 18.)

MSA's communication structure: MSA acted as an intermediary between the models and clients on matters of scheduling and pricing, though the parties dispute the extent to which the models communicated directly with clients. (CSUF ¶¶ 47, 49, 52, 151.) MSA kept records of appointments, hours worked, and model availability. (CSUF ¶¶ 48–51.) MSA bookers would typically send Agerbrink her daily schedule about a day in advance. (CSUF ¶¶ 55, 59.)

Payment: Agerbrink worked on an hourly basis. (CSUF ¶ 262.) After a job, Agerbrink would submit vouchers to MSA listing the hours worked, and MSA would then bill the client. (CSUF ¶¶ 160–61.) Clients would send payment to MSA, MSA would deduct its fee, and MSA would pay the remainder to Agerbrink. (CSUF ¶ 110.) The clients' checks were made out to MSA. (CSUF ¶ 174.)

Agerbrink's obligations under the contract: Agerbrink entered into a three-year "exclusive" contract with MSA in March of 2013. (CSUF ¶¶ 371, 392.) The contract required Agerbrink to use her "best efforts" to further her fit-modeling career. (Dkt. No. 223–1 ¶ 4.) Agerbrink also agreed to seek MSA's counsel regarding all fit-modeling matters and to refer any fit-modeling inquiries to MSA. (Id. ) Agerbrink also agreed to perform her services in a professional and timely manner. (Id. ) The contract provided that MSA would receive a commission of twenty percent of Agerbrink's hourly rate, including payments from clients to which Agerbrink was introduced by MSA. (CSUF ¶ 369; Dkt. No. 223–1 ¶¶ 5, 14.) MSA agreed to advise Agerbrink regarding public relations and the general practices of the modeling industry. (Dkt. No. 223–1 ¶ 2.)

Contractual references to employees or independent contractors: The contract loudly exclaimed that "[Agerbrink] IS AN INDEPENDENT CONTRACTOR, AND NOTHING HEREIN SHALL CREATE A PARTNERSHIP OR FIDUCIARY OR EMPLOYER/EMPLOYEE RELATIONSHIP BETWEEN MSA AND [Agerbrink]." (Dkt. No. 223–1 ¶ 6.) It further provided that MSA would not supervise Agerbrink's professional activities and would not control the terms and conditions that govern Agerbrink's relationships with clients. (Dkt. No. 223–1 ¶ 5.) Agerbrink's payment vouchers referred to the apparel companies as "employers." (CSUF ¶¶ 165–66.)

Agerbrink's tenure with MSA: Agerbrink signed a three-year contract with MSA in March of 2013. (CSUF ¶¶ 371, 392.) Agerbrink worked with MSA for fifteen months, until June of 2014. (CSUF ¶ 395.) During that time, Agerbrink booked only two jobs: a standing booking with a company called QVC for every Wednesday, Thursday, and Friday, and a standing booking with a company called Carol Hochman for Tuesdays. (CSUF ¶¶ 39–41, 417.) A standing booking is a repeating appointment which the model was to keep free for a specified client. (CSUF ¶ 39.)

The QVC job: QVC is located in Westchester, Pennsylvania. (CSUF ¶ 462.) QVC offered Agerbrink a $105 hourly rate, which was lower than her usual rate. (CSUF ¶¶ 158, 465.) MSA's attempts to negotiate a higher rate were unsuccessful. (CSUF ¶ 467.) Due to the lower-than-usual hourly rate, MSA agreed to lower its commission from twenty percent to fifteen percent. (CSUF ¶ 471.) Agerbrink usually worked for QVC between twelve and twenty-two hours per week. (CSUF ¶ 473.) The parties dispute the extent to which Agerbrink communicated directly with QVC, but they agree that Agerbrink and QVC communicated at times without MSA serving as an intermediary. (CSUF ¶ 475.) In June of 2014, Agerbrink decided that the QVC rate was too low, and she stopped working for QVC. (CSUF ¶¶ 490, 496–98.)

Agerbrink's expenses: Agerbrink paid $750 for professional photographs. (CSUF ¶¶ 549–51.) Agerbrink also paid $240 per year to be featured on MSA's website. (CSUF ¶ 205.) While working for QVC, Agerbrink paid for her own travel expenses and for a rental apartment in Pennsylvania. (CSUF ¶¶ 559–60.)

Agerbrink's departure from MSA for Caché: Agerbrink last did work through MSA in June of 2014, though her contract ran until March of 2016. (CSUF ¶¶ 109, 114.) In June of 2014, Agerbrink took a permanent job with a company called Caché. (CSUF ¶¶ 244–45.) MSA's attorney wrote to Agerbrink claiming that Agerbrink was still under contract with MSA and that MSA was entitled to twenty percent of her earnings from her job with Caché. (CSUF ¶ 114.) MSA threatened to withhold $17,946.41 in client payments held by MSA. (CSUF ¶ 116.) Agerbrink stopped working at Caché in February of 2015. (CSUF ¶ 507.)

This lawsuit: A full retelling of this case's history would take a while. The background necessary for this opinion, however, is minimal. While this suit started off as a putative class action, the only remaining claims are Agerbrink's individual claims and MSA's counterclaims. The thrust of Agerbrink's claim is that, as an employee, she was covered by the Fair Labor Standards Act ("FLSA") and the New York Labor Law ("NYLL"). The threshold issue—and the key issue in this opinion—is whether Agerbrink was an employee of MSA.

II. Legal Standard

Summary judgment is appropriate where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."

Fed. R. Civ. P. 56(a). A fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "On summary judgment, the party bearing the burden of proof at trial must provide evidence on each element of its claim or defense." Cohen Lans LLP v. Naseman , No. 14 Civ. 4045, 2017 WL 477775, at *3 (S.D.N.Y. Feb. 3, 2017) (citing Celotex Corp. v. Catrett , 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). "If the party with the burden of proof makes the requisite initial showing, the burden shifts to the opposing party to identify specific facts demonstrating a genuine issue for trial, i.e. , that reasonable jurors could differ about the evidence." Clopay Plastic Prods. Co. v. Excelsior Packaging Grp., Inc. , No. 12 Civ. 5262, 2014 WL 4652548, at *3 (S.D.N.Y. Sept. 18, 2014). The court views all "evidence in the light most favorable to the non-moving party," and summary judgment may be granted only if "no reasonable trier of fact could find in favor of the nonmoving party." Allen v. Coughlin , 64 F.3d 77, 79 (2d Cir. 1995) (second quoting Lund's, Inc. v. Chem. Bank , 870 F.2d 840, 844 (2d Cir. 1989) ) (internal quotation marks omitted).

III. Discussion

Both Agerbrink and MSA move for summary judgment on the employee-versus-independent-contractor issue. Agerbrink also moves for summary judgment as to MSA's counterclaims. Finally, Agerbrink moves for summary judgment as to the money withheld by MSA. Each is discussed in turn.

A. The Competing Motions for Summary Judgment on the Employee–Versus–Independent–Contractor Issue

The principal issue in this case is whether Agerbrink was an employee of MSA. Both parties move for summary judgment on this point. Since the FLSA standard is somewhat...