Opinion
06 Civ. 2575 (GBD).
December 1, 2006
MEMORANDUM DECISION AND ORDER
Pro se Plaintiff Elwin A. Gentle sued his former employer, A. Heller Metals, Inc. ("Heller"), for race discrimination under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Heller moved for judgment on the pleadings pursuant Rule 12(c) of the Federal Rules of Civil Procedure, or, alternatively, for summary judgment pursuant to Rule 56. This Court referred Heller's motion to Magistrate Judge Ronald L. Ellis for a Report and Recommendation ("Report").
Magistrate Judge Ellis recommended that Heller's motion for judgment on the pleadings be granted because plaintiff failed to allege any facts establishing that Heller was a covered employer subject to the provisions of Title VII. Magistrate Judge Ellis advised the parties that failure to file timely objections to the Report would result in a waiver of those objections and preclusion of appellate review. Neither party filed objections and the time to do so has expired.
The Court may accept, reject or modify, in whole or in part, the findings and recommendations set forth within the Report. 28 U.S.C. § 636(b)(1). When there are objections to the Report, the Court must make a de novo determination of those portions of the Report to which objections are made. Id.; Rivera v. Barnhart, 432 F.Supp.2d 271, 273 (S.D.N.Y. 2006). When no objections to a Report are made, the Court may adopt the Report if "there is no clear error on the face of the record."Adee Motor Cars, LLC v. Amato, 388 F.Supp.2d 250, 253 (S.D.N.Y. 2005) (citation omitted). The Court has reviewed the Report and finds that the Magistrate Judge's conclusion that Heller is not a covered employer subject to the provisions of Title VII is not clearly erroneous. Dismissal of this case is therefore appropriate.
Title VII makes it unlawful "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . .," because of, inter alia, "such individual's race." 42 U.S.C. § 2000e-2(a)(1). An "employer" is defined as "a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calender weeks in the current or preceding calender year." 42 U.S.C. § 2000e(b). This "employee-numerosity requirement relates to the substantive adequacy of [a plaintiff's] Title VII claim,"Arbaugh v. Y H Corp., ___ U.S. ___, 126 S.Ct. 1235, 1238 (2006), and, therefore, "a Title VII defendant wishing to defeat a plaintiff's claim on the ground that it lacks fifteen employees is normally entitled to seek dismissal if the complaint shows on its face that the element of statutory coverage is lacking. . . ." Da Silva v. Kinsho Intern. Corp., 229 F.3d 358, 365-66 (2d Cir. 2000).
In this case, plaintiff failed to allege any facts establishing that Heller had the requisite number of employees. Conversely, Heller submitted documentation indicating that it had no more than nine employees at anytime during the relevant period. Plaintiff does not contend otherwise. Therefore, since no valid claim for relief under Title VII exists, the Report properly recommended that plaintiff's case be dismissed.
Magistrate Judge Ellis's recommendation that plaintiff's claim be dismissed because Heller does not qualify as an "employer" subject to liability under Title VII is adopted. Heller's motion for judgment on the pleadings is GRANTED. This case is DISMISSED.
SO ORDERED: