Mota v. Imperial Parking Systems Inc. et al, No. 1:2008cv09526 - Document 31 (S.D.N.Y. 2010)
Court Description: OPINION AND ORDER. For the reasons stated above, we find for defendants on all counts. SO ORDERED. (Signed by Judge Naomi Reice Buchwald on 8/24/10) Copies Mailed By Chambers. (djc)
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lJSDC SDNY DOCUMENT Mota v. Imperial Parking Systems Inc. et al Doc. 31 ELECTRONICALLY FILED UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK DOC#: --x 1 I ,DATE ï½ ï½ ï½ ï½ ï½ ï¼ºï½ ï¼¨ï½¾ï¼ ï½¾ï¼¹ OSCAR MOTA, Plaintiff, OPINION AND ORDER 08 Civ. 9526 against IMPERIAL PARKING SYSTEMS, et al., Defendants. x NAOMI REICE BUCHWALD UNITED STATES DISTRICT JUDGE Plaintiff Oscar Mota brings this suit seeking unpaid overtime wages under the Fair Labor Standards Act ("FLSA H ) the New York Labor Laws. and He also seeks to recover for an alleged failure to pay him a commission pursuant to an agreement allegedly memori ized in a letter from defendant William Lerner dated March 1, 2004. Systems, Inc. ("Imperial H) Defendants include Imperial Parking and 24 individual garages, as well as William Lerner, Jack Lerner, and Robert DeLuise as individuals. Defendants dispute Mota's overtime claim on the grounds that he was, during the relevant periods! an exempt employee under the FLSA and thus not eligible for overtime payment. Further, defendants maintain that the document alleged as the basis of the commission agreement is a forgery and therefore is not a binding agreement. 1 Dockets.Justia.com on June 21 A bench trial was held in this act Due 2010. to the unavailability of one s' witnesses, trial was adjourned until July 15, 2010, when clos The following Opinion constitutes our arguments were held. 1 of fact and conclusions of law. As discussed below, we f defendants on all counts. for f BACKGROUND I. Parties iff Oscar Mota was employed by defendant Imperial May 2003 through August 2007. from Imperial is the of approximately 90 100 parking garages in New York and employing approximately 600 individuals as parking New garage at s, managers, maintenance staff, and supervisors. Trial 32 0 : 6 i 2 TT2 33 9 : 16 1 7 . the owners son, William, ("TT2") , June 22, 2 010 i TT2 Defendants Jack and William Lerner are Jack Lerner founded the company and his is now the President of the corporation. 1 Both sides submitted direct by affidavit and presented their witnesses for cross examination at trial. Plaintiff's witnesses included plaintiff Oscar Mota and employees Lenny Almont.e and Angel Orta. Plaintiff submitted direct for two other employees, but did not call them to the stand for crossexamination. That testimony will therefore be disregarded. Defendants' witnesses included defendants william Lerner and Robert DeLuise, as well as Betty Rotoli and Alex Etienne. Defendant also submitted from Imperial employee Saul Arichavala, but that testimony was withdrawn due to Arichavala's inability to appear at trial. 2 Defendant Robert DeLuise was the General Manager at Imperial during Mota's employment and has since retired. II. Claims Plaintiff's defendants. the FLSA. complaint twelve includes claims against rst, plaintiff seeks unpaid overtime wages under Second, plaintiff brings a similar claim under New York Labor Laws. Plaintiff's third claim, for a spread of Fourth and fifth, plaintiff hours violation, was withdrawn. claims that Imperial took improper deductions from his wages, in violation of both FLSA and the New York Labor Laws. aintiff's sixth through twelfth claims 1 stem from the alleged agreement to pay a commission and include: contract based on the March letter; (7) (6) breach breach implied contract based on discussions at a meeting where plaintiff alleges he received the March letter, and further a breach of the implied covenant of good f th and f r dealing; (8) recovery in quantum meruit based on defendants' promises to pay under the terms of the March letter; (9) unj ust enrichment, as well as detrimental reliance and promissory estoppel; violation of New York Labor Law §§ to (11 ) pay earned commissions; 191, 193, and 198 for fraudulent (10) ilure inducement to contract because defendants "intentionally, knowingly induced plaintiff to agree to contract with Defendants, with terms that 3 defendant [s] never intended to honor, 11 negligent misrepresentation based Complaint on the ï½¾ï¼ 7 i and (12) violation of defendants' duty of care in properly representing employment terms and conditions. Defendants counter that plaintiff's first and second causes of action should be dismissed because Mota was an exempt employee within the meaning of the FLSA and the regulations promulgated pursuant to that statute, as well as under New York law, and is thus not entitled to overtime wages. Further, they argue that there is no evidence to support a finding of any improper deductions from plaintiff's salary, requiring the dismissal of plaintiff's fourth and fifth claims. Finally, defendants urge that plaintiff's sixth through twelfth causes of action for commissions should be dismissed because they are based on a forged document and have no merit. DISCUSSION While the complaint in this action includes twelve causes of action, there are really two fundamental issues in dispute. First, we must determine whether Mr. Mota should be exempt under the FLSA and the New York Labor Law because he qualifies as an executive or administrative employee. 2 If Mota is properly The parties do not dispute that the New York Labor Law and the FLSA are identical in all material respects for the purposes of the exemption determination here. 2 4 classified as exempt, he is not entitl to overtime pay, and the defendants are therefore not liable for any unpaid overtime claims or other damages stemming from such a failure to pay. For the reasons set out below, we find that he is exempt, and thus find for defendants on Mota's first and second claims. Second, the parties contest whether there was a valid contract in place that would entitle the plaintiff to a bonus based on the earnings of the garages assigned to him. While defendants acknowledge that Lerner made an offer in April 2004 to pay a commission, it is on different terms and pursuant to a fferent document than that put forth by plaintiff. At the close of trial, plaintiff refused to acknowledge the April letter's terms, instead relying on the March 2004 letter and its terms. We find that the signature on the March letter is a forgery, and therefore cannot form the basis of reI plaintiff's claims. f on any of As set out below, plaintiff has not proven any facts necessary to recover on any of his other claims related to commission payments, and thus we defendants and dismiss the complaint in its entirety. We discuss each of these larger issues se atim. 5 find for I. Whether Mota is an exempt employee and thus not entitled to overtime pay We turn first to the issue of plaintiff's status under the labor laws. Pursuant to the FLSA, employers must pay an employee at a rate of "not less than one and onehalf times the regular rate at which he is employed" for any hours worked in excess of forty hours in a given week. 29 U.S.C. § 207 (a) . This general rule does not apply, however, to several types of employees, including "administrative" employees and "executive" employees, who are exempt from the overtime requirements. U.S.C. § 213(a) (1) i 29 see also Reiseck v. Universal Communicat of Miami, Inc., 591 F.3d 101, 105 06 (2d Cir. 2010) (discussing the administrative exemption); ï½¾ï¼ï¼ Donovan v. F.2d 516, exemption) . 518 (2d Cir. 1982) (discussing ., 675 the executive "It is the employer's burden to demonstrate that it is entitled to a particular exemption," Kahn v. Superior Chicken & Ribs, Inc., 331 F.Supp.2d 115,117 (E.D.N.Y. 2004) Pirnie ï½¾ï¼ Inc., 949 F.2d 611, 614 (citing (2d Cir. 1991) ), and any exemption is to be "construed narrowly against the employer. II Id. (citing Arnold v. Ben Inc., 361 U.S. 388, 392, 80 S.Ct. 453, 4 L.Ed.2d 393 (1960) i Martin, 949 F.2d at 614)) . The question of how the aintiff spent his working time is a question of fact, while the question of whether his particular 6 activities excluded him from the overtime benefits is a Mullins v. question of law. Ci F.Supp.2d 339, 353 (citing Icicle Seafoods et ., 475 U.S. (1986) ) . 709, 714, the FLSA of New York, 523 Inc. v. 106 S.Ct. 1527, 89 L.Ed.2d 739 Defendants assert that Mota is exempt under the executive exemption, the administrative combination of those two categories. (allowing for combination exemption) exemption, See 29 C.F.R. Mota or some § 54l.708 contests assertion and further argues that even if he this is properly classified as an exempt employee, defendants are not entitled to the exemption because of impermissible deductions from his pay that warrant the revocation of any exempt status. er fully considering all of the pret al submissions and the testimony at trial, we find that plaintiff was properly classified as an exempt employee and that no improper deductions warranting the revocation of the exemption were in fact taken from his paycheck. We make this finding based chiefly on evidence from the plaintiff himself, but also include evidence proffered by the defendants in carrying their burden. A. Exemptions An exempt executive employee: (1) [is] compensated on a salary b asis at a rate of [has] primary not less than $455 per week ... ; (2) duties involving the management of the enterprise in 7 which the employee is employed or of a customarily recognized department or subdivision thereof i (3) customarily and regularly directs the work of two or more other employees; and (4) ... has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight. 29 C.F.R. § 541.100 (a). Suggestions regarding employment decisions are still deemed to have "particular weight" "even if a higher level manager's recommendation has more importance and even if the employee does not have authority to make the ultimate decision as to the employee's change in status." 29 C.F.R. § 54l.105. An exempt administrative employee is one who is: (1) Compensated on a salary or fee basis at a rate of not less than $455 per week ... j (2) Whose primary duty is the performance of fice or nonmanual work directly related to the management or general business operations of the employer or the employer's customers i and (3) Whose primary duty includes the exercise of discretion and independent judgment with respect to matters of significance. 29 C.F.R. § 541.200(a). The exercise of discretion component of this analysis requires that plaintiff be involved "the comparison and the evaluation of possible courses of conduct, and acting or making a decision have been considered." 29 C.F.R. ter the various possibilities § 541.202(a). While duties covered under this exemption must be more than simply clerical, 29 C.F.R. § 541.202(e), the fact that such independent judgment 8 the form of a is reviewable by management or demonstrated recommendation to management does not take the employee out of 29 C.F.R. the coverage of the exemption. B. § 541.202(c). Plaintiff Mota is an exempt employee under the FLSA. We now application Imperial. of turn to these plaintiff Oscar classifications Mota, to his and to the position at While plaintiff admitted that he was paid a "flat weekly amount," Mota Aff. ï½¾ï¼ 53, 63 67, and that his compensation was intended to be a salary covering his 60 hours of assigned work, Trial Transcript vol. 1("TT1"), 106:22, June 21, 2010,3 he presents a characterization of his primary duties that is diametrically opposed to that presented by defendants. Plaintiff has testified that he was a "checker" with no managerial authority or discretion whatsoever, though over the course of his testimony he discussed many instances of acting with authority he claimed not to have possessed. Defendants have offered testimony that Mota was a supervisor tasked with the same management authority as the two other supervisors employed by Imperial at the time: Alex Etienne and Anthony Marzouka. This authority, defendants maintain, included the ability to hire and fire workers and to otherwise manage their TTl 173:410 (plaintiff's testimony that he didn't ask for time and --'---a half for working more than 40 hours "because they have me for 60 hours on salary rate") . 9 The description assigned garages and influence company policy. by provided defendants would certainly result Mota's so find that classification as an exempt employee, but we based on Mota's testimony in one, he should be considered an exempt employee. 1. Evidence proffered or undisputed by the plaintiff a) Pay and Employment Status Plaintiff testified that when he was first hired by Imperial he was paid an hourly wage and received time and a half excess of 40 hours per week (his pay for his hours worked "overtime pay"), but that in October 2003 he began receiving a "flat weekly amount" of $800 per week for his 60 hours of scheduled work per week, without overtime pay.4 Mota Aff. , 53. Mota's pay increased over the course of his employment, but this pay structure remained in terminated in August 2007. It is also ace until Mota's employment was Mota Aff. " undisputed 6364, 6667, 7072. that pI ntiff signed "Acknowledgment of Ineligibility For Overtime Wages," February 5, 2004, ter Imperial participation in a class action I employer. 5 TTl 2628; became aware igation against of an dated Mota's s previous TTl 182; Affidavit of Betty Rotoli 4 Although in Mota's Affidavit he states that he did not receive overtime pay at the time he was paid hourly, Mota Aff. '1 51, he later admitted that he had received overtime payment while being an hourly employee, TTl 180:12 18. The Acknowledgement is signed by Oscar Mota and reads: 10 ("Rot l Plaintiff does not contest that he Aff.II), Exh. C. signed the agreement, but alleges that he was forced to sign it or Mota also acknowledges that he did not sk losing his job. complain regarding his lack of overtime pay over the course of the nearly four year period of his subsequent employment. TTl 173:49. b) Job title and relative responsibility While "job title alone is insufficient to establish the exempt status of an employee," 29 C.F.R. § 541.2, there are so many references to plaintiff as a supervisor in plaintiff's own testimony, as well as in the documents he submitted in conjunction with his direct testimony, that it is impossible not to contrast these references with the documentation referring to Mota as a commencement of this lawsuit. total lack of any "checker" prior to the Further, plaintiff's job title is significant in that plaintiff did not dispute that the other two individuals authority. who were called "supervisors" held management TTl 15:15 16:7. I acknowledge and agree that I am an executive and administrative employee of Imperial Parking Systems and, as such, I am neither eligible for nor entitled, whether under the Fair Labor Standards Act, any wage order promulgated by the New York State Department of Labor and the Division of Labor Standards, or any federal, state, municipal or local statute, law regulation, rule, code or ordinance, to any premium wage or additional compensation or remuneration of any type for overtime work, work performed beyond my normal work schedule or work performed beyond any specif ied work periods. Rotoli Aff. Exh. C. 11 fendant's job title was that of supervisor, We find that and that he was treated similarly to other supervisors at Imperial who were concededly exempt employees. iff's own admissions as to his finding, we look first to pl title and re ive degree of responsibility at Imperial. to work at Imperial. 6 on his applicat shared was simil Further, y given a company car; (3) a similar Imperial i that included only and (5) was of (4 ) a commission bonus at the same even acknowledged covering the garages of While Mota insists attended supervisors and officers of time and on the same terms as the other supervisors.7 when one was fired or arYi was listed on the same work schedule as the other supervisorsi meet aintiff points of comparison with Et and Marzouka, including that he: (1) rece (2) There ntiff listed "supervisor/general manager" is no dispute that agreed that In making this Plaintiff other supervisors other was on vacation. TTl 105. he had much less authority than the Mota testified that he had done so, and that his prior job at ParkRight Corp. had been as a general manager. Plaintiff described his duties at ParkRight as including: having to \\go to the garage supervisors and inspect the places, go to the offices and report to my officials, check the cars, check maintenance, check the monthly list to make sure the revenue was in, and any information about the cars, any due payments, the painting, how the looks, the sidewalks, the lifts, if there is any signs needed or broken." TTl 9:13 19. Plaintiff testified that, because he was by himself, he was given the title of general manager. Id. 7 See TTl 183:5 10 (salary); TTl 36:4 (plaintiff acknowledging car); TTl 17:320 (meetings); TTl 157158 (commission bonus offer). Defendants also offered testimony that Mota (1) was provided with a company cell phone and an expense account; (2) did not have to wear the Imperial uniform worn by parking attendants and managers; and (3) received a Christmas bonus that was s structured to those of the other managers. TT2 290: 14 15 (cell, account); TT2 301:25 303:14 (Christmas bonuses). 12 other supervisors, he does not present a plausible theory as to why that would be the case, given above similarities. Our finding is also consistent with the numerous documents evidence that refer to Mota as a "supervisor." to his acknowledged employment In addition ication for the position of "supervisor/general manager," his work schedule is listed on a and he is listed on the document entitled "Supervisor e,lI garage telephone list as of contact for 26 garages, which is approximately the same number as the other supervisors, Mota Aff. Exh. A. 8 Further, defendants submitted and plaintiff acknowledged writing two letters to de supervisor. s in which Mota called himself a The first was submitted as a plaintiff's notebooks part of one is dated May 3, 2005 and requests a raise because his duties had doubled since his beginning work as a supervisor at that he may have Mota Aff. Exh. F. Mota testifi doing the job of supervising without a supervisor, but it is the duties actually performed relevant to this analysis. TT 1 In the second 1 04 : 1 7 10 5 : 5 . letter, dated August 30, 2006, Mota (1) de supervi sor , (2 ) are himself as a ifically stated that he was doing the same work as Etienne and Marzouka, and (3) reque a se. Rotoli The fact that several of Imperial's garages have sor contacts listed on the telephone list does not obviate the s ficance of Mota's inclusion on the list for the 26 garages as a comparison point with the other supervisors. 8 13 F; TTl 10405. Aff. stand, pI On ntiff explained his intention in writing the letter, stating that he "was asking a raise as a supervisor." TTl 105:22. Again, there is no document describing Mota as a "checker" or distinguishing him from the other supervisors prior to commencement of this lawsuit. c) Recommendations to management Plaintiff management bus on clearly matters made numerous important to recommendations the ss, many of which were followed. to operation of the While Mota maintains that he had no authority to hire and fire or disc employees, he has acknowledged that his performance and discipl was followed. ine ce about employee Specifically acknowledged recommendations regarding whether an employee (1) should be made to either pay should be transferred; and cost of damage or be fired; (2) (3) was generally doing his job correctly and on time; and he also testified that he reported on whether a manager was "doing good" and whether certa employees warranted a raise. 9 TTl 129:611 (payor be fired); TTl 137:8 138:8 (transfers) i TTl 61:17 25 (general feedback and lateness); TTl 122 (manager feedback). Plaintiffl S notebooks and employee notices also included a number of notations regarding such activities. See TTl 40: 13 14 (reporting failure to wear uniform) i TTl 80: 1724 (reporting failure to clean premises, collect money general rudeness and lateness) i TTl 9395 (citing employee for "terrible job"); TTl 98 (recommending transfer for poor attitude) i TTl 113:25114:4 (recommending increase for certain employees based on performance) . I 14 It is also undisputed that Mota regularly wrote and signed employee warning, transfer, and termination notices, many of which were submitted into evidence by defendants. Plaintiff acknowledges writing and signing these forms, but claims that he was merely taking dictation as to the contents of the notices Other documentary from either DeLuise or William Lerner. evidence of his authority includes several of Mota's notebooks where he kept a log of his daily activities. references to employment actions in There are repeated those notebooks, but plaintiff again insists that any such action was taken at the explicit direction of DeLuise or Lerner. As discussed below, we find Mota's assertion that all employment actions were strictly dictated to him completely implausible. Further, Mota has never disputed that his suggestions about financial issues and pricing relative to the competition were followed. See e.g., ï½¾ï¼ Mota Aff. 141. Indeed, Mota has made much over the course of this litigation of his various revenueraising recommendations, looking at prices, more income and "put out fliers;" specifically that comparing the prices, revenue (3) from (5) (1) "went around giving specials to get monthlies, transients;" (2) recommended to defendants that they "raise the parking lot to 30 cars;" and new he (4) increase "the garages' raise "late fees" and "SUVs;" rates a little bit more, not to affect to the point that they go to another place" in an effort 15 e; I mean, close to the pay range." to "be compat 162:1; see also TTl 146 (suggestions that rates need to be (discussing revenue raising measures). changed); TTl 125:612 so acknowledges that he was making these recommendations Mota TTl 125:13 126:6. prior to any offer of a commission. not TTl 161:12 doubt that functioning of profits increasing the company, and was essent Mota's own We do to the testimony demonstrates his discretion to formulate and recommend changes in company policy in this regard. While Mota's acknowledgements may not be commensurate with the full authority described in testimony offered by defendants, it certainly amounts to a showing that defendants gave Mota's opinions setting, on important marketing, matters, including "particular weight," The rate and that Mota significance. 1o exercised discretion as to matters 2. personnel, Inconsistencies above findings inconsistencies within are so informed plaintiff's by depiction rampant his We further emphasize that plaintiff's argument that he is not an exempt employee rests on his assertion that he was employed as a "checker" and that such a checker would not be an exempt employee does not refute defendants' proof regarding the nature of his responsibility. As set out above, over the course of his testimony, Mota stated that a part of the checker's job was monitoring employee performance and making recommendations regarding increasing revenue. TTl 108:20109:6 (employee performance); TTl 126:27 (making recommendations to increase revenue as associated with checker duties) . Thus Mota's insistence that he was not a supervisor, but rather a "checker" does not warrant a different result given his description of his activities. 10 16 respons Mota' s live testimony was not lities at Imperial. only internally inconsistent, but was also often inconsistent with his rect testimony by affidavit. ion that he Plaintiff has maintained throughout the lit was a "checker assigned to report on the garages. 1'1 position his testimony regarding the scope of the "che changed between his However, fidavit testimony and cross examination l as well as over the course of his testimony on cross, both as to s for which he was responsible and the number of nature of his dut Plaintiff/s rect testimony was that he was assigned to report on the conditions of 26 garages. However I stated, on cross plaintiff Mota Aff. ï½¾ï¼ 19. the first time, the 26 garages were only assigned for purposes of earning commission insisted he was actually respons checking all 90 100 garages run by Impe plaintiff's f 11 for Nowhere ln t or any other testimony heard at t is an assertion made or supported. As to fidavit st nature his responsibilities l aintiff/s that 75% of his time was spent checking the printout from the TicketTech machine listing the cars in the lot against cars actual parked in a given lot to identify See TTl 2425 (assigned to 26 garages, but responsible for inspecting the lots of the other supervisors as well) i TTl 26:1727:2 (assigned to physically all 90100 garages) . 17 tracking and billing errors, Mota Aff. ï½¾ï¼ 93 97, and that only 10% of his time was spent checking the physical condition of the lots, Mota Aff ï½¾ï¼ 98. On the stand, plaintiff first stated that he had to: Inspect the garage for painting, if he finds painting on the walls, the lifts are leaking. If the employees are giving proper tickets to the cars, for me to go take it up with a report... Check the monthly lease, to match the cars on the list. Any broken pavement, any broken light bulbs. If employees wear proper they have their uniform on as the policy that Imperial requires. TTl 10:1911:2. Later, he agreed that his "only duties were to report on the conditions of the lots under [his] supervision." TTl 35:69. Later he added that he checked "the employees, how they moving the cars, how the cars are parked, if they there or not" and stated that he was responsible for checking the time system on the computer to see if employees arrived in an effort to determine whether employees should be paid for the day. 60:2562:9. TTl Plaintiff also admitted that he was responsible for calling outside mechanical contractors when there was a problem, checking to make sure that payroll was correct, and serving as the contact contracts. 12 person for customers in setting up monthly While these subsequentlydescribed duties are all very different from those described initially by Mota on the stand, we also note that all of these duties are outside of what See TTl 102:2022 (discussing elevator repair contractor); (payroll); TTl 146 (monthlies). 12 18 TTl 146 plaintiff's affidavit stated he spent threequarters of his time doing: namely checking the printed ticket against the cars in 13 the lot and identifying discrepanc are also inconsistencies between written documents created by Mota during his time at Imperial and his testimony on the stand at trial. defendants on First, in his letter to ing a raise, Mota stated that he had August 30, 2006 Rotoli Aff. Exh. F. same duties as Etienne and Marzouka. When s letter on confronted with stand, however, Mota denied indicat that he wrote the letter for having similar dut the purpose of obtaining a raise and that it wasn't a true statement. TTl 148 149. Second, plaintiff's own notebooks to the training of a re new supervisor, isted on the stand that supervisor around. 14 Finally, was mere but pI showing iff new TTl 142. plaintiff's internally consistent. testimony on stand was not In addition to the examples cited above, Mota went back and forth on whether he was only supposed to file a report at end of day or rather required to call the Less signi Mota was also inconsistent regarding the time he spent traveling between locations, with his affidavit stating that he spent 5% of his time in transit, while he testified on the stand to spending 1015% of his time between garages. TTl 188:4. 14 The notation in Mota's notebook reads: "As Bobby requests, check on new supervisor to be hired. Train him. Met at 2 p. m." TT142: 13 15 i Mota Aff. Exh. I. 19 1 Also, when confronted with seek instruction. 15 of ce letter, Mota insisted that he had "never seen t Court document before," reaffirmed this insistence after fied lit that this would include s even s of ion, but then changed his answer after his lawyer asked him the same question again. to signals TTl 200 01. Re from his lawyer in this way does not buttress plaintiffts credibility in the eyes of the Court. While all of this is sufficient to iff's credibility into doubt, we note that istenc s are not limited to the plaintiff's own testimony, rather extend to his entire case. While Mota widened the primary acti vi ties included in other witnesses did not. s of duties beyond s fidavit, plaintiff's Mr. Almonte, a at Imperial who testified for the duties as only to check the cars then to ask Almonte about any mis r garage manager ntiff described Mota's t the printed ticket and cars. TTl 210:1723. When Mr. Almonte was asked whether Mota would observe the location itself t for example for "No t or lights out that was my " t Almonte responded, TTl 212:19. Another former 15 For example, within the same regarding what he would do when faced with a car that was not , plaintiff first stated that he would "only have to send a report in" then testified that he would have to "call the office." TTl 63:17 (report) i TTl 66:11 (call). As discussed below, the ridiculous but consistent assertion in this exchange was that Mota would under no circumstances either inquire of the garage manager or attendant as to whether the car should instead be parked correctly or take any action with regard to the employee without consulting DeLuise or Lerner first. 20 Imperial garage manager called by the plaintiff, Angel Orta, stated that Mota was responsible for checking the printed ticket TT2 225:25226:1. and for damage in the garage. called Mota a "checker I" so stated that when there was a he maintenance problem he would superiors," meaning Mota. 3. While he "always report to one of my TT2 230:1 8. Implausibility In addition to these findings, we take into account the implausibility of Mota's testimony as to his limited authority, which stands in stark contrast to the defendants' evidence regarding numerous employee his job warning duties. and Defendants termination acknowledged writing and signing. proffered notices, which plaintiff Despite this acknowledgement, however, Mota insisted that he had no discretion in writing the notices and that they were strictly dictated to him by Defendant DeLuise or Defendant William Lerner. ther TTl 35:69; TTl 33:1534:19. First, we find Mota's description method generally implausible. Code of Federal exemption on the the required dictation As implied by the emphasis in the Regulations' employee's treatment role of the executive in influencing personnel decisions, such decisions are for good reason generally reserved to those in a supervisory role. It would thus certainly be odd for Imperial management to decide that an employee whose sole 21 duty is to report on the condition of the lots should also act as a middle man for writing and distributing responsible employment action notices. Further, the dictation process depicted by Mota was irrational as it would have created more work for his superiors than an initial write up by Mota himself. 16 Second, several portions plaintiff's testimony regarding personnel actions were very specific but similarly incredible: (a) plaintiff's description of what was required of him upon being confronted with cars that were not parked straight and a eeping worker were absurd;l7 (b) though Mota acknowledged writing an employee a warning notice when an employee was found to be storing a "big sofa" at the garage, he insisted that he had no personal knowledge of the basis for the warning, i.e. of the "big sofa's" presence in the garage, despite his alleged duty to physical inspect the garage i 18 and (c) Mota insisted that he could tell which of Lerner or DeLuise had dictated a This number of employees about whom Mota might have reported is not clear from the testimony, but it is no doubt a substantial number given Mota's assertion that he was assigned 26 garages but actually responsible for reporting on all 90 100 garages, many of which had at least one or potentially many more employees working multiple shifts. 17 His assertion that, rather than simply telling the attendant to park the car straight or waking up the sleeping worker he would have to file a report or speak with a supervisor and take no other action, is completely implausible. Presumably, the reason to park a car straight is to avoid a collision with an adjacent car when the angled car is moved. Further, Mota's testimony that he would watch a sleeping attendant from 3 a.m. to 6 a.m. when he could call a superior, rather than simply wake the attendant, is obvious contrived. See TTl 63:6 64:21 (parked straight); TTl 4549 (sleeping worker) . 18 TTl 37:2438:13; TTl 55; TTl 57. 16 I 22 notice ing to five to ten years ago "because of the statement is on the document. u19 Adding to the implausibil of pl iff's depiction of he was aware of the overtime laws his duties is the fact and of the requirements regarding overtime pay while working at Imperial. As established on crossexamination[ Mota received notice of and joined a class action suit against his former employer soon acknowledged after starting at Imperi Mota so he understood that he was receiving his salary for the 60 hours of work per week that he was assigned[ and that he was to stop receiving overt ary in October 2003. pay when was shifted to a This knowledge [ coupled with the fact that Mota signed the Acknowledgment and did not raise an overtime issue with respect to those 20 hours at any time during his nearly four years of employment on a ary basis[ makes his assertion now that he was in fact owed overtime pay dubious at best. 4. See TTl 173:4 10. Defendant's evidence implausibility of Mota's testimony is contrasted by e evi submitted by defendants that supports Mota's exempt status. TTl 41. We note that despite questioning in this regard, Mota was unable to provide any articulated basis for the distinction aside from the quotation above. 19 23 Defendant William Lerner testified to Imperial's managerial structure and Mota's place as one of three supervisors, reporting to the General Manager and holding full authority to manage the dayto day activities and personnel deci ons at his 26 assigned garages. Supervisor Alex Etienne supported this description, describing his own authority to hire and fire without permission from his superiors, and testified that Mota had similar authority. testimony as well. Defendant DeLuise supported this Both Lerner and DeLuise testified that they did not dictate the contents of the employment action notices to Mota, and that it would have been totally infeasible to do so. We credit I of this testimony and find that Mota had at the very least significant input into employment decisions, and likely had discretion to make these decisions on his own. The voluminous documentary support pointed to by defendants in carrying their burden has been chronicled above and need not be repeated here. Regardless of his precise level of authorization, Mota falls within the exemption from overtime pay. * * * In sum, based on (1) Mota's own statements regarding his pay structure, job duties, and relative responsibilities; (2) his inconsistencies in describing his duties; implausibility of his depiction 24 and (3) the his lack of authority, especially in comparison to the credible evidence submitted by defendantsi we find that Mota was an exempt employee under the labor laws and thus was not entitled to overtime wages for hours worked in excess of 40 hours per week. c. Deductions As discussed above, the regulations promulgated under the authori ty of the FLSA require that an employee be paid on a This in turn requires that such pay not be salary basis. subject to deductions based on the "quantity and quality of the work performed. I! 29 C.F.R. §541.602 (a). Plaintiff here has argued that he was subject to impermissible deductions from his pay, and thus should be classified as nonexempt. However, deductions only affect an employee's otherwise exempt status if "there is either [1] an actual practice of making such deductions or [2] an employment policy that creates a 'significant likelihood' of such deductions.1! v. Simpson, 330 Fed. App'x 218, 220 ColemanEdwards (2d Cir. 2009) (Summary Order) (citing Auer v. Robbins, 519 U.S. 452, 455, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997)) i see also 29 C.F.R. §541.603 (a). A single punitive pay deduction for missed work is not sufficient to demonstrate such a practice or policy, and "a deduction of one or more full days in response to an employee's absence for personal reasons will not af ct his or her status as an exempt 25 employee." ColemanEdwards, 330 Fed. App'x at 220 (c C.F.R. §541.602 (b) (1)). ing 29 A "policy" of deductiontaking requires that employees "be able to 'point to [a] rule that states [s] that if they commit[J a specific infraction, their pay [will] be docked. ,,, Kelly v. City of Mount Vernon, 162 F.3d 765, 768 (2d Cir. 1998) (quoting Ahern v. County of Nassau, 118 F. 3d 118, 122 (2d Cir. 1997)). Aside from broad allegations in his affidavit that Imperial took deductions from his paycheck,20 Mota testified to only two other categories of deductions: (1) deductions "from my days out, I was out, stuff like that," TTl 169:24; and (2) one specific deduction of $280, which occurred within a month of his hiring at Imperial, and have no evidence of that." Mota Aff. ï½¾ï¼ which Mota acknowledges, "I don't TTl 170:57, see also TTl 205:1112; 127128 (explaining $280 deduction further). The only general practice of deductions alleged is for days missed for unexplained absences,21 which, as set out above, does not come within the definition of improper deductions for the purposes of this analysis. Moreover, Rotoli testified from her knowledge of the payroll for Imperial that the only regular deductions taken from plaintiff's paycheck were for union dues and garnishments for child support. TT2 369:21 23. With See Mota Aff. ï½¾ï¼ 122128. Defense witness Rotoli also acknowledged that when an employee missed a full day's work without explanation, he would not be paid for that day of work. See TT2 369 70. 20 21 26 respect to the $280 deduction, even according to plaintiff/s own testimony l i t was taken at the time when he was being paid hourly and receiving payments for overtime. TTl 180:15 23 (originally paid hourly and received overtime, then switched to salary in October 2003). Thus Mota has failed to establish either an actual practice of deductions or any semblance policy of taking improper deductions I a and accordinglYI there is no evidence of any intention on the part of defendants not to pay Mota on a salary basis. 22 Accordingly, Mota/s exempt status will remain intact. II. Whether Mota is entitled to a commission based on profits at his assigned garages The collection claims raised here relate to an alleged promise to pay a commission l though on what terms and for what period the part s disagree. Mota maintains that the commission promise was based on a written letter l dated March I, 2004 1 which stated: To Oscar Mota This certifies that you will receive 1% commission of [sic] the profits made from all your assign [sic] garages at the end of each year. My proposition is We note that Mota testified that he was forced to sign the Acknowledgement for fear of being fired. Mota Aff. ï½¾ï¼ 5556. However, we do not see how such an assertion would negate his understanding that the defendants intended to treat him as a salaried, exempt employee, which is all the document sought to convey. We do not base our finding of Mota's exempt status on this document, but we note its consistency with the other indicators of Imperial's intent regarding Mota's exempt status. 22 27 [sic] to increase revenue in each garage. Please be guided accordingly. [Scrawl] William Lerner President Affidavit of Oscar Mota appears on Imperial ("Mota Aff.") letterhead signature, allegedly by Lerner. and Exh. J. includes The letter a scrawled Lerner testified that he did not write or sign the letter and insists that it is a forgery. Affidavit of William Lerner ("Lerner Aff.") ¢ 7. Instead, defendants offer another memorandum, dated April 29, 2004, which they present as the only offer of a commission that was ever made. Marzouka, It is addressed to Alex Etienne, Anthony and Oscar Mota and is unsigned but lists William Lerner in the "From:" letterhead. 23 heading. The memorandum is not on This letter states: This is to reiterate what we talked about yesterday. For every dollar that you raise in any of your garages on an annual basis I will give you 1% as a bonus at the end of the year. E.g. if you increase the bottom line in each of your garages by $1,000 per month X 12 months $12,000 X 18 locations $216,000 X 1% $2,160.00. I want you to put this memo in your pocket so you know that you have a guarantee from me at the end of December 2004. In addition, the supervisor whose garages have increased the most percentage wise over 2003 will get a very LARGE bonus from the company. This way the three of you can have a fun Defendants' witness Betty Rotoli testified that she transcribed Lerner's letter, as dictated by him, and distributed it to Etienne, Marzouka, and Mota. She also testified that she had never seen the March letter prior to the commencement of this litigation. She further stated that it was normal practice to use letterhead for letters unless they were internal memos, in which case they were not typed on letterhead and did not include a signature. TT2 355356. 23 28 competition to see who is the most effective supervisor in the company. There is nothing arbitrary about this competition where I can say I do not like how the place looked or I do not like the men you have in the garages. It comes down to dollars and cents. Good luck and may the best man win. Affidavit of William Lerner ("Lerner Aff.") Exh. A. Defendants' memorandum is more limited than plaintiff's in two respects: (1) the percentage offered is of only the increase in the profits; and (2) the offer is limited to the year 2004. that no commission or bonus was ever It is undisputed id to Mota, Etienne, or Marzouka under the terms of either. In the alternative to his breach of contract claim, plaintiff makes several other arguments based on the terms set out in the March letter. A. Breach of Contract claim To prevail on a breach law, a contract claim under New York plaintiff must prove the following elements: contract, (2) (1) performance of the contract by one party, a (3) breach by the other partYI and (4) damages. See Terwilliger v. Terwill omitted) i 206 245 46 ________ï½¾ (2d Cir. 2000) ( tations __ï½¾ï¼¬ï¼ 286 F.Supp.2d 302, 306 (S.D.N.Y. 2003) (citation omitted). Defendants contend that the ï½¾ ______ï½¾ F.3d 240 1 document submitted by Mota as the basis of 29 s contract claim, the March letter, was not written by defendant Lerner and bears a forged signature, rendering it unenforceable. We agree. "Under [New York] State law and general contract law, a forged signature renders a contract void ab initio. Because there can be no meeting of the minds of the parties when a forgery has been perpetrated, no contract existed in the case at hand. 320 F. 3d 362, /I 370 (2d C 2003) (quoting Orlosky v. Empire Sec. Sys., 230 A.D.2d 401, 403, 657 N.Y.S.2d 840, 842 (3rd Dep't 1997) (internal quotation marks removed) . Defendant does not bear the burden of proof that the document is a forgery. proponent of the Rather, "the burden is placed on the dence to authenticate the evidence it seeks to have admitted and to establi of fact. /I its credibility with the trier D&N Property Management & Development Corp., Inc. v. Copeland Companies, ( S ummary Orde r) 56 Fed. App'x (citing Fed. R. 545, 546 (2d Cir. 2003) Evid. 901; United States v. Almonte, 956 F.2d 27,2930 (2d Cir. 1992) (per curiam»). As discussed below, defendants have submitted testimony drawing the authenticity of the March I, 2004 letter into doubt, plaintiff has offered no proof that the March letter was 30 and fact authentic aside from Mota's testimony, which as discussed above, credibility.24 we find to be lacking 1. The March 1, 2004 letter is a forgery First, we note the regarding the March letter. the March letter, nor evidence submitted by defendants Lerner testified that did not write had he ever seen it before this litigation, and as discussed above, introduced the April letter as evidence of a different offer. Lerner f. ï½¾ï¼ 7. Rotoli, who generally types Lerner's letters as he dictates them, testified that she did not type the March letter, nor had she ever seen it before. In contrast, she testified that she had typed and distributed Lerner's April letter. TT2 355 357 . Supervisor Alex Etienne testified that he had not received a letter similar to the March letter, but that he had received a copy the April letter. TT2 475480. Second, we find that the suggestion that Lerner would offer Mota not just one percent of the increase in profits at s assigned garages, but rather one percent of all profits at the garages he supervised, mere months after he was hired and for an indefinite period into the future, completely implausible. Third, we find that the grammatical errors in the March letter support the finding that it is a forgery.25 Plaintiff 24 We note that our finding that the letter was a forgery undermines the plaintiff'S credibility even further. See v. Es 455 F.Supp.2d 256 260 (S.D.N.Y. 2006) (finding plaintiff forged defendant's name on an agreement and that such forgery undermined the plaintiff's credibility). 1 31 argued that the fact that the March letter appears to be on company letterhead supports its authenticitYi however, this was amply refuted. Initially, we note that the only March letter in evidence is a copy, not an original. Apart from best evidence and authenticity issues, there is no reason to assume that Mota did not have access to company letterhead. Also, defendants offered into evidence another document appearing to be on company letterhead that also appears to be a forgery. 26 We find that the signature on this second document bears a striking resemblance to that of Mota on the numerous 2S The grammar errors include the substitution of "of" for "on," the omission of the suffix on "assign," and the phrase "my proposition is to increase revenue. " Mota Af f. Exh. J. 26 Defendants submitted a letter, dated April 24, 2006, that is addressed to the Union Local 272 and includes the following text: This letter is to veri that Oscar Mota is employed in our firm since may [sic] 2003 as a field supervisor and his position was considered permanent. He has been a moderate employee and his salary was $2030.00 biweekly calculated on 134 hrs biweekly including overtime pay. Due to financial changes in our firm and lack of work we have changed the above employee to parking attendant effective Sat 04/29/2006 and his pay has changed to fix [sic] salary rate of $1015.00 bi weekly [sic] calculated on 80 hrs biweekly basis. This decision considers [sic] the 5 day notice and seniority agreement as per Union Local 272. Any question do not hesitate to call [sic] Sincerelly [sic] [Signature] Manuel Bautista Human resources Adm. [sic] 650 Parking Corp. Defendant's Exh. S. The letter is signed and appears to be on Imperial letterhead. However, Rotoli testified that 1) she saw the letter for the first time in the process of reviewing documents produced by Mota in conjunction with this litigation; 2) Bautista was a garage manager at 345 East Garage Corp, never had the title of Human Resources Administrator nor had any affiliation with 650 Parking Corp., and did not have the authority to write such a letter nor any access to letterhead in the garage; and 3) the signature "does not look like his signature," based on her comparison with the endorsed payroll checks in his personnel file, which were also submitted into evidence. TT2 375379. We agree that the large, sprawling Bautista signature on the letter is strikingly different than the uniformly small, neat signature on the paychecks. See Defendants' Exh. T. 32 Further, it evidence. submitted employment action bears no resemblance at all to other examples produced in Court of alleged signer's signature and as testified to by Rotoli. Rotoli f. Exh. B; TT2 375 379; Defendants' Exhs. 8, T. 2. The evidence offer ever made supports defendants' letter defendants. supervisors where they learned fer, though Especially witness Rot the the maintains that the meeting was in the letter is the correct one. 27 light of t credibility finding above, Is in the s of testimony from defendants' i that she typed the April letter and gave it to all three supervisors at Lerner's direction where the terms offered by the only commis March and that his version assertion only Mota has acknowledged that he attended a meeting with the other two defendants' the conclusion We find that the evidence supports April letter represents as offer was discussed, as lowing a meet well as Etienne's acknowledgment that he attended that meeting and received letter. TT2 469:2125 (meeting) i Further, Mota's understanding ther the percentage of TT2 477:22 (letter) what he was entitled to full profits aintiff's submissions to the Court or the as argued in age of the TTl 157-158 (discussing meeting where offer was made) j TTl 200:17-201:3 (refusing to acknowledge having seen Lerner's April letter). 27 33 increase, as described in the April letter TTl 164 67 (discussion profit culations) is variable. See 28 We also find the offer of one percent of the increase in profits for the one year period in the April letter to be a much more plausible bonus structure than the much broader suggest of Mota. 29 3. Because plaintiff's proffered contract is a forgery, there is no enforceable contract to for.m the basis of plaintiff's breach of contract claim. These facts leave us wi 2004 letter is a unenforceable. forgery, the conc ion that the March 1, and void thus only evidence of an ab initio and by defendants regarding a commission payment is that memorialized in letter, which is on pI iffs. April fferent terms than that offered by Since Mota has continued to deny the April of there was no meeting of the minds between Mota and defendants regarding the commission payments and no contract was formed. Mota first insisted that he was entitled to one percent of total profits, but when given a mathematical hypothetical by the Court, answered that he would have expected to be given one percent of the increase in profits. TTl 164:17 168:9. 29 Defendants have admitted that they have never paid any such commission, but have stipulated that Mota's commission would amount to $23.26. TT2 255. We have no other evidence of what the payment owed might be, and no evidence that it is anything other than such a de amount. Indeed plaintiff's only testimony regarding how much he might be owed is that he thought he was successful in boosting because the garages seemed "pretty full." TTl 162. He also stated that his sense of what he was owed came from his inner perception of what was due him as fair compensation. TTl 163/1415 ("Inner me. Just me, how I figured out. 1/) ¢ No effort was made by Mota's counsel to use financial records to ascertain a more precise and supported analysis. 28 34 so leads us to find for defendants on This result plaintiff's implied contract and labor law c im regarding Any argument that the parties reached an commissions owed. 30 agreement with respect to the terms of the commission payments is refuted by the analysis above. B. Plaintiff's alternative arguments regarding commission payment do not allow for recovery_ ternat Plaintiff makes several arguments in the breach of contract commission claim regarding payment. 31 However, his the to his entitlement plaintiff has to a maintained throughout this litigation that the March letter memorializes only commission promise made by Imperial. plaintiff's ed insistence that Because of this document is the 30 "Wages, wi thin the meaning of the New York Labor Law, do not include bonuses, profit sharing, or other forms of incentive compensation unless the incentive compensation is already earned by the employee." Morgan Chase & Co., No. 08 Civ. 3391 (WHP), 2010 WL 815123, at *4 (S.D.N.Y. Mar. 8, 2010) (citing Truelove v. Northeast Capital & Advisory, Inc., 738 N.E.2d 770, 77172, 95 N.Y.2d 220 (N.Y. 2000) i Qean Witter Reynolds, Inc. v. Ross, 429 N.Y .. ï½ ï½¾ï¼²ï½¤ï¼ 653, 658, 75 ï½ ï½¾ï½ ï¼®ï¼²ï½¤ï¼ 373, (1st Dep't 1980)). "An employee I s incentive compensation is \ earned' when the employee acquires a vested interest in the award and its payment is not conditioned [ 1 on some occurrence or [otherwise) left to the discretion of the employer. Bonuses and similar incentive compensation generally become vested by contract or by the awarding of a specified amount." Id. (quoting Aledia v. HSH Nordbank AG, No. 08 Civ. 4342(BSJ), 2009 WL 855951, at *3 (S.D.N.Y. Mar. 25, 20(9)). Because we have found that no binding contract exists and no commission was ever paid to plaintiff, there can be no vested interest in the payment. 31 We note that regardless of whether plaintiff can pursue any alternative theory and regardless of the merit of any of these claims, we find that the maximum recoverable amount of damages in this action would be $23.26 plus any interest that has accrued. This amount was stipulated to by the defendants as the amount that would have been due under the defendants' proffered agreement. Though plaintiff cross examined defendant William Lerner regarding copies of his tax returns, no evidence was entered that would indicate that the amount actual owed to Mota under the terms of this agreement is anything other than such a minimus amount. 35 embodiment his ternat the agreement,32 he is not permitted to recover on theories when we have found that this document is in fact a forgery. 33 Accordingly, there lS predicate claims based on any such promise, plaintiff's aims estoppel, for fraudulent misrepresentation. 34 detrimental inducement, Additionally, reliance, and no factual including promissory negligent intiff was paid his 1 salary through the time of his termination, so there can be no claim of unjust enrichment or quantum meruit because he was fully paid the performance of his services. 35 Plaintiff's most recent affirmation of its reliance on the March letter came at Closing Arguments. There, the Court asked "[Are you] arguing that the document that Mr. Mota relied on is genuine and that it entitled him to one percent of the profits of the garages to which he was assigned?" Plaintiff's counsel replied, "Yes, your Honor." Closing Argument Transcript ("CAT") 10:59, July 15, 2010. 33 We note that plaintiff's prosecution of this suit based on a forged document could warrant sanctions. See Fed. R. Civ. P. 11 (requiring that every pleading, motion, and other paper of a party represented by an attorney be signed by at least one attorney and that such pleading or paper be "well grounded in fact") i see also Pope v. Federal Exp. ï½ ï½¾ï¼¬ï¼ 974 F. 2d 982, 984 (8th Cir. 1992) (approving of the sanction of dismissal "based on the district court I s finding that manufactured evidence and perjured testimony had been introduced in an attempt to enhance the case through fraudulent conduct") . 34 We also note that plaintiff's negligent misrepresentation claim further fails because "under New York law, a plaintiff may recover for negl misrepresentation only where the defendant owes her a fiduciary duty." Muller Paisner v. TIAA 289 Fed. App'x 461, 465 (2d Cir. 2008) (citations ourts have routinely held that the employeremployee relationship does not constitute a relationship sufficient to support a claim for negligent misrepresentation." Kwon v. Yun, 606 F.Supp.2d 344, 356 57 (S.D.N.Y. 2009) (citing and describing cases) i Madera v. 99 Civ. 4005 (MBM), 2002 U.S. st. LEXIS 12000, at *2425 (S.D.N.Y. Jul. 2, 2002) (dismissal of negligent misrepresentation claim where corporate officer made representations concerning promotions) . 35 "In order to recover in quantum meruit under New York law, a claimant must establish '(1) the performance of in good faith, (2) the acceptance of the services by the person to whom they are rendered, (3) an expectation of compensation therefore, and (4) the reasonable value of the services.'" 584 F.3d 509 (2d Cir. (quoting セ]ï¼ï¼º . . . .ï½¾ï¼½ï¼ ï½ ï¼½ï½¾ï¼¬ï¼ 418 F.3d 32 36 CONCLUSION above, we find for defendants on all For the reasons counts. SO ORDERED. Dated: New York, New York August 24/ 2010 UNITED STATES DISTRICT JUDGE Copies of the foregoing Order have been mailed on this date to the following: Michael A. Faillace, Esq. Michael Faillace & Associates/ P.C. 110 East 59th Street, 32 Floor New York, NY 10022 Douglas E. Rowe, Esq. Certilman Balin Adler & Hyman, LLP 90 Merrick Avenue East Meadow, NY 11554 168, 175 (2d Cir. 2005)). "A claimant seeking relief under a theory of unjust enrichment in New York must demonstrate \ (1) that the defendant benefited; (2) at the plaintiff's expense, and (3) that equity and good conscience resti tution. Id. ( In re Mid Is land Hosp. 276 F.3d 123, 129 (2d Cir. 2002)). These claims can be analyzed together as a single quasi contract claim. Zikakis v. Staubach Retail Services, Inc., No. 04 Civ. 9609 (NRB) , 2005 WL 2347852, at *5 (S.D.N.Y. Sept. 26, 2005) (citations omitted). In addition to the above finding, we do not hesitate to find that and good conscience in no way entitle plaintiff to relief here. I II I 37
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