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Axakowsky v. NFL Productions, LLC

United States District Court, D. New Jersey, Camden Vicinage

November 14, 2018

NFL PRODUCTIONS, LLC d/b/a NFL FILMS, et al., Defendants.

          DEREK T. SMITH LAW GROUP, P.C. By: Caroline H. Miller, Esq. Counsel for Plaintiff

          PROSKAUER ROSE LLP By: Michelle A. Annese, Esq. Elise M. Bloom, Esq. Counsel for Defendants



         This matter comes before the Court upon Defendants' Motion for Partial Summary Judgment. In this Title VII hostile work environment suit, the issues raised by the motion are: (1) whether Plaintiff was an employee of Defendants or an independent contractor, and (2) if Plaintiff was an independent contractor, has she nevertheless stated a claim under the New Jersey Law Against Discrimination, N.J.S.A. § 10:5-12(l). For the reasons set forth herein, the Court holds that a reasonable factfinder could only conclude that Plaintiff was an independent contractor, and that Plaintiff's NJLAD claim fails as a matter of law. Accordingly, Defendants' motion will be granted.[1]

         I. Facts

         Plaintiff Nadia Axakowsky is an “actress, singer, voiceover talent, and TV Host.” (Statement of Undisputed Facts ¶¶ 111-113, 7-12)[2] She maintains her own website, “” (Id. ¶ 110) Parties who wish to “book” her services do so through her agent. (Id. ¶¶ 114-16)

         Axakowsky first began working for Defendant NFL Productions “after she submitted a cassette tape with a sample of her talent and auditioned.” (Statement of Undisputed Facts ¶ 14) “Plaintiff was selected because . . . she had the right talent for the project.” (Id. ¶ 16)

         From 2003 through September 2016, Axakowsky regularly provided voice services to NFL Productions by “reading billboards, ” which are 10 to 15 second scripted advertisements. (Statement of Undisputed Facts ¶ 19-20) “If there were billboards to be read, they would be read” during a once-weekly recording session which lasted, “at most, 1.5 hours, depending on the number of billboards.” (Id. ¶¶ 22-23) (emphasis added) The advertisers, not NFL Productions, determined whether there were billboards to be read on any given week. (Id. ¶ 24) “If there were no billboards, Plaintiff's services would not be needed and she would be informed as such” by NFL Productions. (Id. ¶ 30)

         “NFL Productions, in advance of each recording session, provided Plaintiff with a copy of the script for each of the billboards that she would read during the session, ” however, “[t]he advertiser was the final and ultimate approver of the billboard.” (Statement of Undisputed Facts ¶¶ 32-33) Depending on the advertiser, Axakowsky might be asked to read a billboard in “a soccer mom voice” (Axakowsky Dep. p. 110)[3], or “with high energy” and “a sense of excitement” (Miller Decl. Ex. 12), or with an intonation matching the advertiser's other commercials. (Id. Ex. 13)[4]

         Axakowsky recorded almost all of the billboards at NFL Productions' studios in Mount Laurel, New Jersey. (Statement of Undisputed Facts ¶ 39) She used the recording equipment in the studio provided by NFL Productions, not her own equipment. (Id. ¶ 42)

         “During a recording session, both [Defendant] McLoughlin [who directed the billboards] and an audio engineer were present.” (Id. ¶¶ 4-5, 37) “Plaintiff could ask for a billboard to be played back so that she could hear it.” (Id. ¶ 35) “If she was not satisfied with how the recording sounded, Plaintiff could ask to rerecord it.” (Id. ¶ 36) “McLoughlin informed Plaintiff that she needed to read the billboard within 10 to 15 seconds - the industry standard for billboards - and to reread the billboard if, for example, she misread a script and it failed to match what the client had requested.” (Id. ¶ 38)[5] McLoughlin testified that his duties as Director of Postproduction included “quality control, ”-- i.e., “[w]hen we finish a program, show, segment, it would need to be looked at before it went out to broadcast to make sure it was technically sound. There were no mistakes, no curses, no errors.” (McLoughlin Dep. p. 16)

         “Plaintiff was initially paid a fixed fee of $500 for each session.” (Statement of Undisputed Facts ¶ 58) “Following each recording session, ” Axakowsky would get paid by “submit[ing] an invoice to NFL Productions” which NFL Productions would pay. (Id. ¶¶ 54, 55) At some unspecified time, Axakowsky “requested an increase of her rate to $600 per session, ” which NFL Productions “agreed to pay.” (Id. ¶ 63) For the majority of the time Axakowsky provided voiceover services to NFL Productions, she would only be paid if a recording session occurred, or if the session was cancelled within 24 hours of it being scheduled to occur. (Id. ¶¶ 60-61, 65) However, there was a period of about one year-- from July 2015 to July 2016--where NFL Productions “guaranteed payment [of $600] for one recording session per week regardless of whether the session occurred.” (Id. ¶ 62-63) “During the time that she provided voiceover services to NFL Productions, Plaintiff continued to audition” for other voiceover work. (Id. ¶ 117)

         For the tax years 2011 through 2016, NFL Productions issued Axakowsky a Form 1099 rather than a W-2. (Statement of Undisputed Facts ¶¶ 72-73) NFL Productions did not provide Axakowsky with an email address[6], nor telephone number, nor any health, dental or retirement benefits. (Id. ¶¶ 50, 52) For the period 2013 through 2016, Axakowsky received health, dental and retirement benefits through her union, the Screen Actors Guild. (Axakowsky Dep. p. 65-67)

         In May, 2016, Defendant Adamo, Vice President of Media & Operations at NFL Productions, wrote the following employment recommendation for Axakowsky:

To whom it may concern;
Nadia Axakowsky has been employed by the NFL since 1996, working as a voice-over talent I have personally worked with Nadia since 2003, after 1 selected her to be the voice of NFL Network. She is prompt, dependable, collaborative, and works very hard at her craft. We have used her for other shows as well, including Super Bowl, Combine, Draft and all our major events She is our "go to" person because she is always ready and able to work and always gives it her professional best.
I wholeheartedly recommend working with Nadia, as she is an honest, pleasant person whom we have come to know and respect. Despite her pending move to Vermont, she will always have a job with NFL Network because, after 12 years since we launched, her voice is synonymous with the network!
Should you have any other questions, please feel free to call me as I would be happy to speak on her behalf.

(Miller Decl. Ex. 5)[7]

         Axakowsky also testified at her deposition that, during a conversation where Axakowsky complained about her agent not finding her additional work, Defendant McLoughlin once told Axakowsky that she could not be the “billboard girl” for the NFL while also working for another sports network. (Axakowsky Dep. p. 87)

         II. Summary Judgment Standard

         Summary judgment shall be granted 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 fact is “material” only if it might impact the “outcome of the suit under the governing law.” Gonzalez v. Sec'y of Dept of Homeland Sec., 678 F.3d 254, 261 (3d Cir. 2012). A dispute is “genuine” if the evidence would allow a reasonable jury to find for the nonmoving party. Id.

         In determining the existence of a genuine dispute of material fact, a court's role is not to weigh the evidence; all reasonable inferences and doubts should be resolved in favor of the nonmoving party. Melrose, Inc. v. City of Pittsburgh, 613 F.3d 380, 387 (3d Cir. 2010). However, a mere “scintilla of evidence, ” without more, will not give rise to a genuine dispute for trial. Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001). Moreover, a court need not adopt the version of facts asserted by the nonmoving party if those facts are “utterly discredited by the record [so] that no reasonable jury” could believe them. Scott v. Harris, 550 U.S. 372, 380 (2007). In the face of such evidence, summary judgment is ...

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