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Case 1:10-cv-00316-NT Document 44 Filed 07/19/11 Page 1 of 18 PageID #: 439





Plaintiff )

) 1:10-cv-00316-GZS



OF NEW ENGLAND, INC., ) ) Defendant )


Ashley Alden has sued her former employer, Office Furniture Distributors of New England, Inc., alleging breach of contract, violation of 10 M.R.S. § 1342 (pertaining to sales representatives contracts), and defamation. Office Furniture Distributors has moved for summary judgment (Doc. No. 27) on all three counts. The Court referred the motion for report and recommendation pursuant to 28 U.S.C. § 636. I now recommend that the Court grant the motion, in part.


“The court shall grant summary judgment if the movant shows that 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 party asserting that a fact cannot be or is genuinely disputed must support the

assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or Case 1:10-cv-00316-NT Document 44 Filed 07/19/11 Page 2 of 18 PageID #: 440 (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1). By local rule, summary judgment facts are introduced by means of “a separate, short, and concise statement of material facts,” which statements must be supported by record citations. D. Me. Loc. R. 56(b), (c). The Court‟s review of the record is guided by the moving party‟s statement, the non-moving party‟s opposing statement, including any additional statement, and the moving party‟s limited reply statement. D. Me. Loc. R. 56(b), (c), (d); see also Toomey v. Unum Life Ins. Co., 324 F. Supp. 2d 220, 221 n.1 (D. Me. 2004) (explaining "the spirit and purpose" of Local Rule 56). Appropriate record sources include “depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c)(1)(A).

Because many factual disputes depend on circumstantial evidence, to determine whether a fact is established, circumferentially, the Court will draw all reasonable inferences in favor of the non-movant that can be supported by the record sources she cites. However, where the nonmovant bears the burden of proof, she still must present “definite, competent evidence” from which a reasonable person could find in her favor. United States v. Union Bank for Sav. & Inv.

(Jordan), 487 F.3d 8, 17 (1st Cir. 2007). If the Court‟s guided review of the record reveals evidence sufficient to support a judgment in favor of the non-moving party on one or more of her claims, then there is a trial-worthy controversy and summary judgment must be denied to the extent there are supported claims. Unsupported claims are properly dismissed. Celotex Corp. v.

Catrett, 477 U.S. 317, 323-24 (1986) (“One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses.”).

–  –  –

The summary judgment issues are (A) whether Office Furniture Distributors owes Alden unpaid commissions; (B) whether Office Furniture Distributors maintains a fixed office in Maine; and (C) whether Office Furniture Distributors defamed Alden.

–  –  –

Ashley Alden‟s employment was governed by a sales employee agreement dated September 1, 2009, naming Office Furniture Distributors of New England as employer and Ashley Alden as employee. (Def.‟s Statement 10.) The employment agreement stated that Office Furniture Distributors would pay “a thirty (30%) percent commission on all office supply and office furniture sales made by Employee.” (Id. 10) Office Furniture Distributors terminated Alden‟s employment on March 8, 2010. (Id. 15.) Alden worked roughly six months for Office Furniture Distributors and over that period her cumulative commissions on sales, as calculated by Office Furniture Distributors, fell short of her cumulative weekly draw.1 Alden has not identified any evidence that she objected, during the course of her employment, to the manner of commission calculation, or that she demanded more pay than she received. (Id. 20-22; Mee Decl. Ex. 7, Doc. No. 28-10.) Office Furniture Distributors explains that it calculated sales commissions based on net proceeds or what Office Furniture Distributors refers to as “gross profit” for each transaction.

(Def.‟s Statement 23, 25; Tortorella Decl. 13, Doc. No. 28-2; Danizio Dec. 15, Doc. No.

28-1.) Office Furniture Distributors states that it is widely known that salespersons in this trade Alden‟s base pay consisted of a weekly “draw” of $500. Commissions could enhance this payment if they

exceeded the draw:

Employer shall pay Employee a thirty (30%) percent commission on all office supply and office furniture sales made by Employee. The commissions payable under this Section 5(c) shall be credited first against the cumulative amount of Draws paid to Employee and not previously credited against under this sentence.

(Sales Employment Agreement § 5(c), Mee Decl. Ex. 1, Doc. No. 28-4.) Case 1:10-cv-00316-NT Document 44 Filed 07/19/11 Page 4 of 18 PageID #: 442 are paid commissions based on the “gross profit or net sale” rather than “the gross sale.” (Def.‟s Statement 23.) Alden responds simply that she does not have knowledge to respond to this assertion. She fails to introduce any contrary evidence, such as evidence that Office Furniture Distributors paid commissions to any of its associates based on sales price rather than the gross profit margin. Office Furniture Distributors has filed commission reports indicating that Alden‟s sales activity did not even generate a 30% gross profit for the company. (Mee Decl. Ex. 7, Doc.

No. 28-10.) Alden has introduced this report as well. (Languet Aff. Ex. 17, Doc. No. 30-20.) Although Office Furniture Distributors‟s representations concerning costs are not backed by any documents, Alden does not appear to have conducted any discovery into how Office Furniture Distributors calculated its costs for sales Alden participated in.

In addition to the issue of how Office Furniture Distributors calculated Alden‟s commissions, there is an issue whether the invoiced commission list for Alden‟s sales activity captures all of Alden‟s sales. (See Languet Aff. Ex. 17, Doc. No. 30-20.) Alden issued a few quotes to customers prior to her termination that were not finalized as of her termination. (Def.‟s Statement 28.) For each customer, Office Furniture Distributors has provided a reason why the sale was not credited to Alden. Alden‟s responsive statement is also noted.

Waltz Pharmacy—a January 2010 quote that Alden did not finalize and a future sale that Anne Tortorella handled roughly one year after Alden‟s termination. (Id. 30.) Alden denies this statement but fails to cite any record evidence that she is entitled to a commission for this sale.

On Target—an October 2009 quote that Alden did not finalize and a future sale that Tortorella and another salesperson facilitated without Alden‟s involvement. (Id. 31.) Alden

–  –  –

denies this statement and cites a March 31, 2010, invoice for roughly $6500 (not including tax) that identifies her as the salesperson. (Languet Aff. Ex. 18, Doc. No. 30-21.) Cedar Works—a March 5, 2010, invoice and an assertion that Alden‟s involvement was ancillary and resulted in an incorrect order. (Def.‟s Statement 32.) Alden offers a qualification and a denial, but no record citation. However, in paragraph 21 of her additional statement, Alden cites a March 5, 2010, invoice identifying her as salesperson and a sale of approximately $4500.

(Languet Aff. Ex. 15, Doc. No. 30-18.) Verso Paper—a January 11, 2010, quote that Alden did not finalize and that Tortorella finalized after sending additional quotes. (Def.‟s Statement 33.) Alden denies this statement and cites a commission list that gives her credit for prior and subsequent sales to Verso Paper, presumably to counter Tortorella‟s affidavit statement that Alden only participated in the Verso Paper account by Tortorella‟s invitation. (Languet Aff. Ex. 17, Doc. No. 30-20.) The record cited by the parties does not divulge the particulars of any resulting invoice.

Dead River—A January 27, 2010, quote that Alden did not finalize. According to Office Furniture Distributors, it has not made a sale to Dead River in over two years. (Def.‟s Statement 35.) Alden denies this and cites an April 1, 2009, invoice for under $200 (not including tax), an April 30, 2009, invoice for roughly $350, an August 27, 2009, invoice for roughly $380, and a January 15, 2010, invoice for roughly $400. (Languet Aff. Ex. 13, Doc. No. 30-16.) Alden also includes July and August 2010 invoices identifying Tortorella as the salesperson. The Tortorella invoices appear to relate to a single sale for approximately $1,000. (Id.) The record does not indicate whether Alden ever received credit for the April 2009 sales, which predated her employment with Office Furniture Distributors. The absence of evidence does not help Alden, as she bears the burden of proof. The record also offers no explanation for why Alden would be

–  –  –

entitled to credit for Tortorella‟s sales in July and August 2010. This leaves only the August 27, 2009, invoice and the January 15, 2010, invoice. The record reflects a credit for the January 15, 2010, sale. There is no credit on the commission list for the August 27 sale. At best, Alden is owed a commission credit for this $380 sale.

Fabian Oil—a January 28, 2010, quote that came to involve an incorrect product order and added costs. (Def.‟s Statement 36.) Alden denies this statement but offers no record citation for her denial.

Lincoln Health Access—Alden has submitted the final page of a multi-page, $70,000 quote of February 2009, which she issued to this potential customer. However, she offers no evidence that the sale was ever consummated. (Pl.‟s Add‟l Statement 22, citing Languet Aff.

Ex. 16, Doc. No. 30-19.) Based on the parties‟ statements, it appears that, at most, a fact question exists concerning the payment or credit of a commission on roughly $11,380 in sales. Alden has not offered a statement concerning how that commission would be calculated.2 Instead, she has argued in her memorandum that she should have been paid 30% of the sales price for all of her sales, which would result in an obvious discrepancy between what she was due and what she was paid.

However, if that theory of the case does not pan out for her, Alden has failed to offer the Court any statement or record citation that would enable the Court to find that the pay Alden received from Office Furniture Distributors fell short of a commission calculated based on 30% of sales profit. In other words, the only way that the Court could reasonably infer the existence of a Judging from the invoiced commission list, a commission for this level of gross sales might be as low as $600 or as high as $800, depending on the costs of the sales and assuming that commissions are to be based on gross profit. If the Court used $800 as the measure, that would push Alden‟s total commission credit just over $7,000, relying on the invoiced commission list (Doc. No. 30-20). Office Furniture Distributors has introduced a “commission recap” report (Doc. No. 28-10), which suggests that this level of additional commission credit would not result in a commission computation in excess of Alden‟s cumulative weekly draw, unless this court used her sales price method of computation. The commission recap report also shows that the company‟s gross profit was consistently less than 30 % for Alden‟s sales.

Case 1:10-cv-00316-NT Document 44 Filed 07/19/11 Page 7 of 18 PageID #: 445 commission calculation in excess of Alden‟s cumulative weekly draws would be if the Court accepted that Alden‟s commissions were 30% of sales price rather than 30% of sales profit.

–  –  –

Defendant Office Furniture Distributors of New England is a Massachusetts corporation.

(Pl.‟s Add‟l Statement 1; Def.‟s Reply Statement 1.) While Alden worked for Office Furniture Distributors she “reported” to work at 257 Water Street, Augusta, Maine. Though Alden did not have her own office space or desk at that location, others in the organization did.

(Def.‟s Statement 11; Alden Dep. at 19, Doc. No. 28-12.) Outside the building is a sign bearing the name “Transco Union Office.” (Def.‟s Statement 11.) This sign alludes to a business incorporated under the name “Transco Union Office Solutions,” a business entity established by Anne Tortorella and acquired from her (allegedly by Office Furniture Distributors) in September 2009. (Id. 4, 6.) Office Furniture Distributors explains that it operates under the Transco Union Office name in Maine. (Id. 8.) Prior to working for Office Furniture Distributors, Alden was hired by Anne Tortorella to work for Transco Union Office Solutions beginning in 2008. Alden‟s employment with Office Furniture Distributors began in 2009 upon Tortorella‟s sale or transfer of Transco Union Office Solutions to Office Furniture Distributors or its principal(s). (Id. 10; Alden Aff. 2, Doc. No.

30-3.) Although Alden‟s W-2 form identified Office Furniture Distributors as her employer, the pay stubs associated with Alden‟s compensation named her employer as Union Office Interiors.

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