United States District Court, D. Rhode Island
MEMORANDUM AND ORDER
J. McConnell, Jr. United States District Judge.
McElroy's former employer Fidelity Investments
Institutional Services Company, Inc. ("Fidelity")
and Fidelity Financial Advisor Solutions ("FFAS")
move for summary judgment of Ms. McElroy's claims for
gender discrimination, retaliation, and breach of contract.
This motion raises issues of the applicable statute of
limitations for breach of a contract that contains
compensation provisions and the factual and legal elements
required to assert gender and family and medical leave claims
in the employment setting.
McElroy worked for Fidelity for almost seventeen years. In
2004, she began work as an internal wholesaler. Her primary
responsibilities were to prospect for new business within the
corporate market. She worked in FFAS, a business unit within
Fidelity now known as Fidelity InstiUitional Asset
Management. FFAS had two channels of distribution,
intermediary and direct. Within FFAS is the Fidelity
Institutional Liquidity Management Solutions group
2009, Ms. McElroy became regional vice president, a
wholesaler role in which Ms. McElroy's primary
responsibility was to manage existing client relationships.
She worked in the intermediary channel with banks and broker
dealers to provide updates, market information, product
information, and to assist intermediaries with opportunities
to bring in new business to Fidelity.
McElroy had a contract with Fidelity that set forth the plan
for the payment of commissions to her. The plan set
forth the calculation of commissions, bonuses, and other
incentives based on determinations by Fidelity of the plan
payout. In January 2012, Fidelity informed Ms. McElroy that
it had overpaid her 2011 commissions to the tune of $61,
149.29. Ms. McElroy requested information about the
overpayment, but no significant information was ever
forthcoming. When asked to sign a repayment letter, Ms.
McElroy refused. She objected to any deductions or repayment
claiming it would not be legitimate, Despite her
protestation, Fidelity unilaterally deducted 75% of the total
amount it alleged it overpaid Ms. McElroy from her paychecks.
beginning of the summer in 2012, Ms. McElroy's
supervisor, William Pickens,  informed her that Fidelity was
going to promote her by the end of that year at the next
promotional cycle. The promotion was to include a title
change and $50, 000 more in compensation. Mr. Pickens had the
same discussion with a male employee, Jason Campellone, who
was functioning in the same area of responsibility as Ms.
McElroy but was based in Atlanta and covered the Southeast
fall of 2012, Ms. McElroy, while serving as regional vice
president, informed her supervisor Mr, Perkins and his
supervisor Joyce Marsilia that she was pregnant and planned
to take a medical leave due to her pregnancy under the Family
and Medical Leave Act ("FMLA").
weeks later, at the end of 2012, Mr. Pickens informed Ms.
McElroy that the promotion and raise she had been expecting
was not going to take place. He told her that there would be
no promotions because Fidelity was experiencing challenging
market conditions. Despite this representation, Fidelity
promoted a male employee, James Scalisi, from a regional vice
president in the direct channel of the FILMS group to vice
president-the same level promotion that Fidelity had promised
to Ms. McElroy. Mr. Scalisi had not asked for parental or
other medical leave. Mr. Pickens acknowledged that the same
economic factors that affected Ms. McElroy's promotion
also affected Mr. Scalisi's position.
McElroy began her FMLA leave when her child was born in the
spring of 2013. In October 2013, after she returned from her
FMLA leave, she initially returned to her position as a
regional vice president. Shortly thereafter, Mr. Pickens
informed Ms. McElroy that a senior vice president in charge
of managing client relationships in New York and New Jersey
was vacating her position. This position was two pay grades
higher than Ms. McElroy's. He asked Ms. McElroy to cover
this position on a temporary basis while they searched for a
permanent employee. Fidelity describes this as a reward
"for ten years of solid work by giving her the interim
opportunity to take over a job two grades above her current
role, with the hope that she would win the spot on a
permanent basis." ECF No. 20-1 at 1.
McElroy agreed, despite the fact that she considered this
position less desirable than her existing position, as it
entailed extra travel and increased work responsibilities
while a new parent. Ms. McElroy served in this position for
eight months yet she never received the position's $375,
000 established base salary (which was $200, 000 greater than
the base salary of her old position).
January 2014, Ms. McElroy informed Mr. Pickens and Ms.
Marsilia that she would not apply to fill permanently the
position she was temporarily occupying and that she would
like to return to her old job as soon as they hired someone
permanently. Four months later, Ms. McElroy again inquired
about the status of Fidelity filling the position so that she
could return to her regular position. She explained that this
temporary position was causing her undue hardship. Mr.
Pickens told Ms. McElroy that Fidelity had eliminated her old
position, despite having assured her for weeks that it was
open and that Fidelity was holding it open for her.
McElroy resigned in May 2014. She claims that Fidelity
constructively discharged her. She did not receive any
McElroy filed suit against Fidelity and FFAS. She alleges in
her suit that Fidelity: l) discriminated against her for
being pregnant and for notifying her boss that she planned to
become pregnant again at some point in the future; 2)
retaliated against her because she previously took and would
likely again take FMLA leave; and 3) breached its contract
with her by recouping tens of thousands of dollars of an
alleged commission overpayment.
and FFAS have moved for summary judgment (ECF No. 20), to
which Ms. McElroy objects (ECF No. 34), and the Defendants
reply (ECF No. 39).
judgment is a drastic remedy because it deprives the parties
of the opportunity to have a jury determine the outcome as
enshrined in the Seventh Amendment to the United States
Constitution." Colman v. Faucher, 128 F.Supp.3d
487, 490 (D.R.I. 2015) (footnote omitted). Per Federal Rule
of Civil Procedure 56(a), the Court shall grant summary
judgment when there is "no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law." To determine whether there is a genuine
dispute as to a material fact, the Court must assess whether
"the evidence is such that a reasonable jury could
return a verdict for the nonmoving party." Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
Court must construe the facts in the light most favorable to
the nonmoving party, Audette v. Town of Plymouth,
Mass., 858 F.3d 13, 20 (1st Cir. 2017). Furthermore,
"[t]he Court does not 'weigh the credibility of the
testimony/ but presumes 'that a rational factfinder would
accept it as stated by the witness."' Delgado v.
Pawtucket Police Dep't, 747 F.Supp.2d 341, 349
(D.R.I. 2010) (quoting Gonzalez v. El Dia, Inc., 304
F.3d 63, 68 (1st Cir. 2002)). The moving party bears the
burden of identifying the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). Then, the burden shifts to the nonmoving
party to identify at least one genuine issue of material
fact. Mendes v. Medtronic, Inc., 18 F.3d 13, 15 (1st
assert that FFAS is not a properly named Defendant because it
is not a separately incorporated entity, but rather is merely
a division within Fidelity. Ms. McElroy does not present any
factual evidence or legal support for a separate claim
against this division of Fidelity. In fact, Ms. McElroy does
not dispute the fact that "FFAS is not and never was a
distinct corporate entity." ECF No. 21 ¶ 5;
see ECF No. 36 at 1 (not disputing this
fact). Therefore, the Court GRANTS the Motion for
Summary Judgment as to Defendant FFAS.
Breach of Contract Claim
McElroy asserts that Fidelity breached the Employee
Compensation Plan with her by its "unilateral assertion,
.. to seek reimbursement of what it claims were excess
commissions/incentives paid to Ms. McElroy ... as a result of
what [Fidelity] claims was a manual administrative
error." ECF No. 34-1 at 12; see ECF No. 1-1 ¶¶
49-54 (Count VI). Fidelity avers that Ms. McElroy did not
bring this claim for wages within the applicable statute of
limitations. Ms. McElroy counters that this "is not a
claim for unpaid wages, " but rather a breach of a
contractual obligation to Ms. McElroy "under the terms
of the variable compensation plan, by denying her the
contractual benefits to which she was due." ECF No. 34-1
argument turns on whether this is actually a breach of
contract claim or a Rhode Island Payment of Wages Act claim.
The Payment of Wages Act allows "[a]ny employee or
former employee . . . aggrieved by the failure to pay wages
and/or benefits or misclassification in violation of chapter
28-12 and/or 28-14" to bring suit to obtain relief. R.I.
Gen. Laws § 28-14-19.2(a). However, the statute of
limitations for such a claim is only three years.
Id. § 28-14-19.2(g). Fidelity claims that this
three-year limitations period-not the ten-year period
applicable to breach of contract claims-controls.
Rhode Island Supreme Court instructs that, in analyzing a
claim for purposes of determining the appropriate statute of
limitation, the Court is to "look to the substance of a
claim, rather than the pleading's nomenclature."
Bisbano v. Strine Printing Co,, Inc., 135 A.3d 1202,
1209 (R.I. 2016) (citing Martin v. Howard, 784 A.2d
291, 301 (R.I. 2001)).
McElroy alleges the following in her Complaint:
24. Commencing in 2012, Plaintiff was subject to a number of
unilateral reductions in her commissions, predicated on the
employer's assertion that she had been overpaid.
51. Plaintiff was entitled to certain compensation pursuant
to the Employers' Compensation Plan.
52. Plaintiff fulfilled her obligations under the
Employers' Compensation Plan, making her eligible for
certain variable incentive compensation.
53. The Defendants unilaterally reduced Plaintiffs
commissions in the year 2012 on its position that payments
made to the Plaintiff ...