Tourangeau v. Nappi Distribs.
| Decision Date | 29 December 2022 |
| Docket Number | 2:20-cv-00012-JAW |
| Parties | MICHELE TOURANGEAU, Plaintiff, v. NAPPI DISTRIBUTORS, Defendant. |
| Court | U.S. District Court — District of Maine |
MICHELE TOURANGEAU, Plaintiff,
v.
NAPPI DISTRIBUTORS, Defendant.
No. 2:20-cv-00012-JAW
United States District Court, D. Maine
December 29, 2022
AMENDED [1] ORDER ON MOTION FOR SUMMARY JUDGMENT
JOHN A. WOODCOCK, JR., UNITED STATES DISTRICT JUDGE.
An employer-defendant brings a motion for summary judgment against an employee-plaintiff's claims pursuant to Federal Rule of Civil Procedure 56. The employee alleges that the employer violated the Equal Pay Act and the Maine Human Rights Act by discriminating against her on the basis of sex and violated Title VII of the Civil Rights Act by discriminating against her on the basis of sex and pregnancy. The employee additionally alleges that the employer violated the Maine Timely and Full Payment of Wages Act by failing to pay her owed commissions and incentives for her work. The employee further alleges retaliation under Title VII and the Maine Human Rights Act and brings claims of quantum meruit and unjust enrichment, alleging that while on leave she provided services at her workplace for which she did not receive owed compensation. The Court grants in part and denies in part the
motion because genuine issues of material fact preclude summary judgment as to most of the employee's claims.
I. PROCEDURAL HISTORY
On January 10, 2020, Michele Tourangeau filed a complaint against her former employer Nappi Distributors (Nappi), alleging unequal pay practices and related retaliation, sex and pregnancy discrimination, and sexual harassment. Pl.'s Compl. and Demand for Jury Trial (ECF No. 1) (Compl.). The Complaint expressly asserted claims under the Federal Fair Labor Standards Act, as amended by the Equal Pay Act (EPA), Title VII of the Civil Rights Act of 1964 (Title VII), including the Pregnancy Discrimination Act (PDA), the Maine Human Rights Act (MHRA), the Maine Timely and Full Payment of Wages Law (TFPWL), and common law. Id. ¶ 1.
On March 13, 2020, Nappi filed its answer and affirmative defenses. Answer, Affirmative Defenses and Jury Trial Demand (Def. Nappi Distributors) (ECF No. 7) (Answer). In its answer, Nappi asserted nineteen affirmative defenses but did not assert as affirmative defenses the statutory damages caps under Title VII or the MHRA. Id. at 14-16. Both Title VII and the MHRA provide for statutory caps depending on the number of employees employed by the employer. See 42 U.S.C. § 1981a(b)(3); 5 M.R.S. § 4613(2)(B)(8).[2]
On December 6, 2021, Nappi filed its motion for summary judgment and statement of material facts. Def.'s Mot. for Summ. J. (ECF No. 76) (Def.'s Mot.); Statement of Material Facts in Supp. of Def.'s Mot. for Summ. J. (ECF No. 77) (DSMF). On January 10, 2022, Ms. Tourangeau filed her opposition, Pl.'s Resp. in Opp'n to Def.'s Mot. for Summ. J. (ECF No. 86) (Pl.'s Opp'n). That same day, Ms. Tourangeau filed her opposing statement of additional material facts, Pl.'s Opposing and Additional Statement of Material Facts in Opp'n to Summ. J. at 1-64 (ECF No. 85) (PRDSMF), and her own statement of additional material facts. Pl.'s Additional Statement of Material Facts at 64-110 (ECF No. 85) (PSAMF). On February 7, 2022, Nappi replied, Def.'s Reply Mem. of Law in Supp. of Mot. for Summ. J. (ECF No. 89) (Def.'s Reply), and filed a response and objections to Ms. Tourangeau's additional statements of material fact. Consolidated Statements of Material Facts Including Def.'s Reply Statement of Material Facts in Supp. of Def.'s Mot. for Summ. J. at 1-49 (ECF No. 90) (DRPSAMF).
In its February 7, 2022 reply, Nappi objected to Ms. Tourangeau's response as longer than the twenty-page limitation in District of Maine Local Rule 7(d) and urged the Court to strike her response to the extent it exceeded twenty pages. Def.'s Reply at 1. On July 14, 2022, the Court issued an order on Nappi's objection, allowing
Nappi, if it chose to do so, to file a sur-reply. Order on Pl.'s Opp'n (ECF No. 103). On July 21, 2022, Nappi filed its request to submit a sur-reply and asked for three weeks to complete it. Notice of Intent to File Suppl. Reply in Supp. of Mot. for Summ. J. (ECF No. 104). The Court allowed Nappi its requested three weeks and on August 12, 2022, Nappi filed its sur-reply. Def.'s Sur-Reply Mem. of Law in Supp. of its Mot. for Summ. J. (ECF No. 105) (Def.'s Sur-Reply).
II. THE FACTS
A. Nappi Background and Pay Structure
Nappi is a beer and wine distributor based in Gorham, Maine. DSMF ¶ 1; PRDSMF ¶ 1. Nappi sells wine to essentially two types of accounts-businesses that sell wine to their customers for consumption at the business (on-premise accounts) and businesses that sell wine to their customers for consumption elsewhere (off-premise accounts). DSMF ¶ 2; PRDSMF ¶ 2. Accounts are organized into sales routes that are roughly-but not entirely-geographic.[3] DSMF ¶ 3; PRDSMF ¶ 3. Wine sales routes vary in terms of the percentage of on-premise and off-premise accounts. DSMF ¶ 4; PRDSMF ¶ 4.
Wine sales routes that have more on-premise accounts-particularly routes in summer vacation areas-tend to be more seasonal in terms of distribution and
volume. DSMF ¶ 5; PRDSMF ¶ 5. Wine sales routes in seasonal vacation areas experience much greater sales during the summer than the winter, when many onpremise accounts are closed for the season and there are fewer tourists. DSMF ¶ 6; PRDSMF ¶ 6. Nappi sells more wine in the routes in the southern part of Maine than in the northern routes due to demographics and extent of its portfolio available outside Cumberland and York counties. DSMF ¶ 7; PRDSMF ¶ 7.
Nappi currently has thirteen wine sales routes. DSMF ¶ 8; PRDSMF ¶ 8. Eleven wine sales routes are in the southern part of Maine and two are in the northern part of the state. DSMF ¶ 9; PRDSMF ¶ 9. Nappi assigns a wine sales representative to each wine sales route. DSMF ¶ 10; PRDSMF ¶ 10. Currently, Nappi employs eight male and five female wine sales representatives. DSMF ¶ 11; PRDSMF ¶11.
Nappi compensates its wine sales representatives through a combination of three methods, plus benefits: commissions, incentives, and possibly base salaries, if necessary. DSMF ¶ 12; PRDSMF ¶ 12. The majority of compensation for some wine sales representatives is paid on a commission of the percentage of gross dollars of products sold.[4] DSMF ¶ 13; PRDSMF ¶ 13. In addition, wine sales representatives typically have available to them a regular cadence of varying incentive programs for
specific product or portfolio distribution, display, and volume.[5] DSMF ¶ 14; PRDSMF ¶ 14.
The cost of incentive payments is shared between the suppliers and importers at ¶ 60/40 split with Nappi, which compensates the wine sales representatives selling the pertinent products once incentive program requirements have been met. DSMF ¶ 15; PRDSMF ¶ 15. Pursuant to Nappi's longstanding unwritten company policy, commissions and incentive compensation are paid when sales are fully finalized- which occurs when product is delivered by delivery or sales personnel and payment is received and reconciled.[6] DSMF ¶ 16; PRDSMF ¶ 16. Nappi strictly follows state laws which prohibit alcohol sales on a credit basis. DSMF ¶ 17; PRDSMF ¶ 17. “Final
sales” also allows Nappi to accurately record and calculate commissions due for its weekly payroll process. DSMF ¶ 18; PRDSMF ¶ 18.
Nappi compensates some wine sales representatives in part through salaries. DSMF ¶ 19; PRDSMF ¶ 19. Generally, Nappi does not pay base salaries to wine sales representatives, as their total annual compensation structure (commission and incentives) should be sufficient to compensate for the skills, experience, and responsibilities required of the position.[7] DSMF ¶ 20; PRDSMF ¶ 20. However, Nappi has used base salaries for some employees, especially but not limited to, those assigned to routes with sales opportunities that may not support a commission - and incentives - only structure, routes with significant seasonality, and northern routes, where only a portion of Nappi's product portfolio is available to sell.[8] DSMF ¶ 21; PRDSMF ¶ 21.
Since the onset of COVID-19 and its effect on primarily on-premise wine sales, Nappi has supplemented the incomes of several of its wine sales representatives with salaries to help the representatives weather the financial strain caused by reduced
sales and account closures.[9] DSMF ¶ 49; PRDSMF ¶ 49. However, the supplemental salary payments that began in 2020 because of the effects of COVID-19 are not and were not intended to be permanent, and they either already have been or will be phased out as wine sales return to more typical levels. DSMF ¶ 50; PRDSMF ¶ 50.
B. Michele Tourangeau's Hiring at Nappi and Nappi's Shift to 2% Commission
Michele Tourangeau began working for Nappi as a sales representative for the Wine Department in 2015. PSAMF ¶ 2; DRPSAMF ¶ 2. When Nappi hired Ms. Tourangeau, she had over twenty years of professional experience in the industry, although she had no specific experience as a wine sales representative and had never run a wine sales route.[10] DSMF ¶ 31; PRDSMF ¶ 31. Frank Nappi, Sr. owned and ran Nappi until he died a year or two ago. PSAMF ¶ 60; DRPSAMF ¶ 60. Mr. Nappi, Sr. told former Nappi Wine Sales Director Paul Carr he was totally responsible for hiring in the Wine Department.[11] PSAMF ¶ 61; DRPSAMF ¶ 61. Mr. Nappi, Sr.
instructed Mr. Carr to run the Wine Department like it was his business. PSAMF ¶ 62; DRPSAMF ¶ 62. Nappi President Frank Nappi, Jr. testified from 2000 to 2015, he had no role in determining the compensation of sales representatives-he only made suggestions. PSAMF ¶ 261; DRPSAMF ¶ 261. From 2015 to the present, Mr. Nappi, Jr. has not directly controlled compensation in the wine department. PSAMF ¶ 262; DRPSAMF ¶ 262.
At the time Mr. Carr extended a job offer to Ms. Tourangeau in October of 2014, Nappi was in the process of attempting to reduce the pay scale of...
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