Stolarik v. N.Y. Times Co.

• Decision Date: 31 August 2018
• Docket Number: 17 Civ. 5083 (PGG)
• Parties: Robert STOLARIK, Plaintiff, v. The NEW YORK TIMES COMPANY, Michele McNally, Trustees of the Newspaper Guild of New York - New York Times Pension Plan, Newspaper Guild of New York – New York Times Pension Plan, Trustees of the Guild-Times Adjustable Pension Plan, and Guild - Times Adjust Able Pension Plan, Defendants.
• Court: U.S. District Court — Southern District of New York

323 F.Supp.3d 523

Robert STOLARIK, Plaintiff,

v.The NEW YORK TIMES COMPANY, Michele McNally, Trustees of the Newspaper Guild of New York - New York Times Pension Plan, Newspaper Guild of New York – New York Times Pension Plan, Trustees of the Guild-Times Adjustable Pension Plan, and Guild - Times Adjust Able Pension Plan, Defendants.

17 Civ. 5083 (PGG)

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

Signed August 31, 2018

Lee Frederick Bantle, Sherie Nan Buell, Bantle & Levy LLP, New York, NY, for Plaintiff.

Allan S. Bloom, Gregory I. Rasin, Myron D. Rumeld, Russell Laurence Hirschhorn, Proskauer Rose LLP, New York, NY, Michelle A. Annese, Proskauer Rose LLP, Newark, NJ, for Defendants.

MEMORANDUM OPINION & ORDER

PAUL G. GARDEPHE, U.S.D.J.:

Plaintiff Robert Stolarik – a photographer who formerly worked for The New York Times – brings this action against The New York Times (the "Times"), Michelle McNally – the Assistant Managing Editor for Photography at the Times – and the Trustees of the Newspaper Guild of New York-New York Times Pension Plan, the Newspaper Guild of New York-New York Times Pension Plan, the Guild-Times Adjustable Pension Plan, and the Trustees of the Guild-Times Adjustable Pension Plan (collectively, the "Plan Defendants"), alleging that the Times improperly classified him as a freelance photographer and independent contractor and discriminated against him on the basis of age and arrest record. (Am. Cmplt. (Dkt. No. 21) ¶¶ 1, 5-10, 26, 44)

The Amended Complaint asserts claims for failure to pay overtime compensation in violation of the Fair Labor Standards Act (the "FLSA") and New York Labor Law (the "NYLL"); failure to pay Plaintiff the "agreed-to wages and benefits for a staff photographer of [t]he Times set forth in the governing collective bargaining agreement" in violation of Article 6 of NYLL § 190; discrimination based on age and arrest record, and retaliation in violation of the New York City Human Rights Law (the "NYCHRL"); breach of quasi-contract arising out of the Times' failure to pay Plaintiff "a salary equivalent to that of staff photographers at [t]he Times;" and denial of benefits pursuant to the Employment Retirement Income Security Act ("ERISA") § 502(a)(1)(B). (Id. ¶¶ 144-191)

The Times has moved to dismiss the Amended Complaint's Third and Tenth Causes of Action, which allege claims for unpaid wages pursuant to Article 6 of NYLL § 190 and unjust enrichment. (Times Mot. (Dkt. No. 42) ) Because these claims are predicated on rights created by the collective bargaining agreement ("CBA"), the Times argues that they are preempted by Section 301 of the Labor Management Relations Act (the "LMRA"), 29 U.S.C. § 185(a). (Times Br. (Dkt. No. 43) at 5-7)¹ The Times further contends that Plaintiff's claims must be dismissed for failure to exhaust remedies available under the CBA. (See id. )

The Plan Defendants have moved to dismiss the Amended Complaint's Eleventh Cause of Action for benefits under Section 502(a)(1)(B) of ERISA. (Plan Mot. (Dkt. No. 47) ) The Plan Defendants contend that (1) Plaintiff's claim for benefits is barred by the applicable six-year statute of limitations; and (2) in the alternative, the Trustees' conclusion that Plaintiff is not eligible for benefits was not arbitrary and capricious. (Plan Br. (Dkt. No. 48) )

For the reasons stated below, the Times' motion to dismiss will be granted. The Plan Defendants' motion to dismiss will be converted into a motion for summary judgment, and that motion will be granted,

BACKGROUND

I. CLASSIFICATION AS AN INDEPENDENT CONTRACTOR ²

Plaintiff Robert Stolarik is a 48-year-old photographer who worked for the Times for more than fourteen years. (Am. Cmplt.

(Dkt. No. 21) ¶ 17) Plaintiff first began working for the Times as a freelance war zone photographer in Colombia in or about 2000. (Id. ¶ 18) He continued working for the Times in Colombia and Venezuela until June 2002, when he returned to the United States. (Id. ) After a brief hiatus, Plaintiff resumed work for the Times in 2004, and was assigned to the Metro desk. (Id. ¶ 20)

Between 2004 and 2012, Plaintiff worked full-time for the Times, generally on assignment for more than 250 days per year, He often worked more than eight hours a day and 40 hours per week. (Id. ¶¶ 22, 30) Plaintiff sometimes worked twenty-eight or more consecutive days for the Times during this period. (Id. ¶ 23) After 2012, the number of Plaintiff's assignments for the Times gradually diminished. (Id. ¶¶ 25, 30)

Plaintiff alleges that despite his "hard work, his full-time schedule, and his enormous success, he was always improperly classified by [t]he Times as a ‘freelance’ photographer who received no benefits and was paid via IRS Form 1099-MISC." (Id. ¶¶ 28, 40) As a result, Plaintiff "incur [red] additional tax expenses and liabilities while [t]he Times saved money that [it was] legally obligated to pay." (Id. ¶ 29) Plaintiff claims that the Times misclassified him as an independent contractor in order to avoid the cost of providing him full wages, overtime pay, and employee benefits. (Id. ¶¶ 29, 41)

Plaintiff contends that – despite his classification as an independent contractor – he was a Times employee, (Id. ¶ 40) He cites the following facts and circumstances in support of his claim:

he worked on a continuous basis for the Times, rather than on a temporary basis;

he received assignments directly from Times editors, "in the same manner as staff photographers classified as employees of the Times";

he "performed services identical to people whom defendants treated as employees," and the services he performed were of the kind that employees historically performed in photographic journalism;

the Times exercised a high degree of control over his work, providing detailed instructions and dictating his assignments and hours worked;

the Times sometimes loaned equipment to Plaintiff "from stock of equipment designated for Times staff photographers";

the Times "had discretion over when and how long [he] worked";

the type of work Plaintiff performed was integral to the regular business of the Times; and

Plaintiff could not realize profits and losses independent from the Times, and he depended upon the regular payments he received from the Times for his income.

(Id. ¶¶ 35-40)

Plaintiff asserts two causes of action against the Times related to its alleged misclassification of him as an independent contractor. (See id. ¶¶ 160-61, 184-87)

In the Third Cause of Action, Plaintiff asserts a claim for unpaid wages pursuant to Article 6 of the NYLL, § 190 et seq. (Id. ¶¶ 157-62) Plaintiff alleges that "[f]rom approximately 2004 to 2014, [the Times] knowingly employed Plaintiff as a staff photographer", yet the Times "failed to pay Plaintiff the agreed-to wages and benefits for a staff photographer of the Times." (Id. ¶ 60) "[B]y paying Plaintiff approximately $25 per hour instead of the salary set forth in the governing collective bargaining agreement of approximately $100,000 per year[,] and by not providing [Plaintiff] with the benefits of a staff photographer," Plaintiff claims that the Times "unlawfully deducted from [his] wages" in violation of Article 6 of the NYLL § 190, et. seq. (Id. ) Plaintiff further alleges that the Times' "failure to pay Plaintiff the agreed-to wage for the time he worked ... was willful and not in good faith, and a breach of implied contract." (Id. ¶ 161)

In the Tenth Cause of Action, Plaintiff asserts a claim for unjust enrichment. (See id. at 181-87) Plaintiff asserts that the Times accepted his "full-time services as a staff photographer for the Times," but "denied Plaintiff a salary equivalent to that of staff photographers at the Times, and denied Plaintiff the benefits provided to staff photographers at the Times." (Id. ¶¶ 182, 184) Plaintiff further alleges that the Times improperly paid him "via 1099 forms instead of W-2 forms, causing [him] to incur additional tax expenses and liabilities." (Id. ¶ 183) In failing to pay Plaintiff the salary and benefits of a staff photographer, Plaintiff contends that the Times breached its implied contract with Plaintiff and was unjustly enriched at Plaintiff's expense. (Id. ¶¶ 185-86)

II. DENIAL OF BENEFITS ³

A. Plaintiff's Freelance Agreement with the Times

On April 2, 2004, Plaintiff entered into a freelance agreement with the Times (the "Freelance Agreement"). (Id. at ¶ 5; Costello Decl., Ex. D (Freelance Agreement) (Dkt. No. 49-4) at 3) The Freelance Agreement states that it is an "agreement between [Plaintiff] and The New York Times Company ("The Times") for freelance photography services [Plaintiff] may be commissioned to provide on assignment to the Newspaper." (Costello Decl., Ex. D (Freelance Agreement) (Dkt. No. 49-4) at 2) The Freelance Agreement provides as follows:

9. You are an independent contractor, and as such you do not receive any benefits as an employee of The Times. The Times will provide you with IRS form 1099 at the end of the year reflecting all amounts paid to you for that year.

10. This letter constitutes the entire agreement between you and The Times regarding your freelance photography services from this date forward, and supersedes all prior agreements on this subject matter. Either party may terminate this agreement upon thirty (30) days written notice to the other. No amendment or waiver shall be valid unless in writing and signed by both you and The Times.

11. This agreement has been made in accordance with New York State laws and will be construed under those laws. Any action to enforce this agreement shall be brought exclusively in the federal or state courts in the City of New York.

(Id. at 3) The last page of the Freelance Agreement bears Plaintiff's signature. (See id. )

B. The Plans

Defendants Newspaper Guild of New York-New York Times Pension Plan (the "Guild Plan") and Defendant Guild-Times Adjustable Pension Plan (the "APP Plan") are employee pension benefit plans jointly administered by the Times and the Newspaper Guild of New...