Opinion
98-CV-0832E(Sc).
March 11, 2002
MEMORANDUM and ORDER
Plaintiff, proceeding pro se, commenced this action by Complaint filed December 29, 1998 alleging violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981 in that he had been discriminated against, denied promotions and terminated on account of his race. Presently before this Court is a motion by defendant Braun Horticulture, Inc. ("Braun") for summary judgment brought pursuant to Rule 56 of the Federal Rules of Civil Procedure ("FRCvP"). For the reasons which follow, defendant's motion will be granted.
Plaintiff was represented by counsel when the Complaint was filed; however, he informed this Court by letter dated January 14, 2000 that he would be proceeding pro se.
Plaintiff, a black male, began working for defendant in March 1988 and became a sales representative on January 1995 and remained such until August 1, 1997. Plaintiff claims that, starting sometime in 1995, he was singled out and treated in a differential manner because of his race. He first claims that defendant promoted Don Church — a man whom plaintiff had trained — over plaintiff because of plaintiff's race. Plaintiff also claims that he was the subject of racial jokes. Plaintiff's final claim is that he was fired because of his race. According to plaintiff, defendant transferred his job from Niagara Falls, N Y to Toronto, Canada and gave him the option of either immediately transferring to Toronto or of being fired. Plaintiff alleges that defendant used this transfer option as a pretext to terminate him because of his race — Caucasian employees were not transferred against their will — and because defendant knew that he could not immediately transfer due to immigration procedures that needed to be followed.
Defendant has moved for summary judgment on the ground that plaintiff has failed to state a claim under Title VII because Braun does not meet the statutory definition of an employer in that it did not have "fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year." 42 U.S.C. § 2000e(b). Defendant has also moved for summary judgment on the following grounds — (1) plaintiff failed to apply for the position for which he felt he had been passed up and the person who had been promoted had more seniority than he, (2) plaintiff did not state a failure to promote claim in his EEOC charge and such claim is therefore unexhausted, (3) plaintiff's failure to promote claim is time barred and (4) plaintiff has failed to establish a prima facie case of discriminatory termination, disparate treatment or hostile work environment. This Court opines that plaintiff has shown that a genuine issue exists as to whether defendant has the requisite number of employees to meet the statutory definition of an employer. However, plaintiff has not met his burden as to defendant's other grounds. Accordingly, summary judgment will be granted in favor of defendant on such grounds.
FRCvP 56(c) states that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The party seeking summary judgment bears the burden of demonstrating to the court the "lack of a genuine triable issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). A fact is material if it "might affect the outcome of the suit under the governing law" and is genuine if it "is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, 477 U.S. 242, 247-248 (1986). When ruling on a motion for summary judgment the court must view the facts in the "light most favorable to the opposing party." Adickes v. Kress Co., 398 U.S. 144, 157 (1970). However, the opposing party may not rest upon conclusory statements in his pleadings, but rather is required to "set forth specific facts showing that there is a genuine issue for trial." FRCvP 56(e).
Defendant has submitted timesheets, payment records and affidavits attesting to the fact that it never had the requisite number of employees to meet Title VII's definition of an "employer." In addition, when the EEOC issued plaintiff his right-to-sue letter on September 30, 1998, it noted that it was not pursuing its own claims against defendant because defendant did not have enough employees to meet the definition of an employer. Plaintiff has not submitted any papers replying to this argument but has argued that, notwithstanding the number of employees in defendant's Niagara Falls plant, that defendant has a second plant in Ontario, Canada and that the number of employees from the two plants should be combined to determine whether defendant has sufficient employees to be covered by Title VII.
Braun's American plant and Canadian plant are not owned by the same corporation. Rather, Braun Nursery Limited — the Canadian plant — is the parent corporation of Braun Horticulture Incorporated — the Niagara Falls plant. Plaintiff does not dispute this. In order for a parent corporation to be liable for the acts of the subsidiary, the two companies must be so interrelated that they are in effect a single entity. Armbruster v. Quinn, 711 F.2d 1332, 1337 (6th Cir. 1983). In order to determine whether this degree of interrelation exists, courts are to look for "evidence of (1) interrelation of operations, (2) centralized control of labor relations, (3) common management, and (3) common ownership or financial control" with the central focus being on centralized control of labor relations. Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1240-1241 (2d Cir. 1995). A high degree of interrelation between a parent and its subsidiary can result in a court's looking at the number of employees employed by both the parent and the subsidiary to determine if together they have the requisite number of employees for Title VII purposes. Da Silva v. Kinsho International Corp., 229 F.3d 258, 360 (2d Cir. 2002); Dewey v. PTT Telecom, 94 Civ. 5983, 1995 U.S. Dist. LEXIS 10028 at *4-10 (S.D.N.Y. July 19, 1995).
Plaintiff argues that Braun Nursery Limited is really a single employer with divisions in the United States and in Canada. In support of this argument plaintiff points to the fact that he worked both in the United States and in Canada and, no matter where he worked, his paychecks came from Braun Horticulture and, when he worked out of the Niagara Falls branch, his supervisors were in the Canadian plant. He also points out that the company letterhead, marketing materials, sales order forms, product labeling and packaging similarity convey the one-company idea.
This Court opines that this movement of employees back and forth between the two offices and plaintiff's having been supervised by personnel in the Ontario office are strong enough evidence of centralization of labor relations to create a genuine issue as to whether the two Braun companies are interrelated, especially when considered together with the fact that defendant fired plaintiff for refusing to move to Canada. Although plaintiff would still have to prove this interrelatedness at trial, his success in this regard would result in this Court combining the number of employees at the Ontario and Niagara Falls plants so as to raise the number of employees above the threshold level and qualify Braun Horticulture as an "employer" who must comply with Title VII. With this jurisdictional hurdle having been overcome by plaintiff, this Court can now consider defendant's other grounds for summary judgment.
This Court's own research has revealed that Braun Horticulture, Inc. has its chief executive officer and principal executive officer located in Ontario as well.
Defendant has offered deposition and affidavits stating that plaintiff had not applied for the superior position and that the job was given to another who had more experience than had plaintiff. Plaintiff has not responded or in any way tried to show that he did in fact apply for the job or, that even if he had, he was better qualified for the job. Defendant has also submitted depositions and affidavits showing that plaintiff cannot succeed on a discriminatory termination claim because his position was not filled by a non-member of the protected class — Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000) — in that the position was eliminated and therefore not filled. Defendant also argues that plaintiff's 1981 claim must fail for similar reasons because he has not come forward with evidence to support this claim. Finally, defendant has put in evidence that plaintiff's work environment was not sufficiently objectively hostile to support a hostile-work environment claim and, again, plaintiff has not put forth any evidence to dispute such.
This Court had originally set August 24, 2001 as a date to hear this motion. However, on August 22, 2001 the Second Circuit Court of Appeals decided Irby v. New York City Transit Authority, 262 F.3d 412 (2d Cir. 2001), which states that a district court cannot grant summary judgment dismissing the claims of a pro se plaintiff unless such plaintiff has been given notification of what is required of him in order to defeat such motion. Plaintiff had already received such notice; however, defendant — wishing to protect against the overturning of any granting to it of summary judgment for failure to comply with Irby, — asked for an adjournment so that plaintiff could again be given such notice. The undersigned is convinced that plaintiff has received notice, sufficient to comport with Irby, of the requirements necessary to properly defend against a granting of summary judgment.
Defendant has met its burden to show that there is no genuine issue of material fact on all of plaintiff's claims. Plaintiff, however, has not responded in kind. Therefore and because "there is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party" — Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-250 (1986) — summary judgment will be granted in favor of defendant on all of plaintiff's claims.
Accordingly it is hereby ORDERED that defendant's motion for summary judgment is granted and that this case shall be closed.