Opinion
02 C 1476.
February 5, 2003
OPINION
This is a motion for summary judgment by one of two defendants in a Title VII case, and its basis is that defendant East Point Condominium Association is not an employer within the meaning of the law. In short, is it clear that East Point did not maintain at least 15 employees for 20 weeks in 1999 or 2000 (the years in which the alleged discrimination occurs)? Payroll records are used to determine whether this is so. Mizwicki v. Gerald Helwig, D.C., 196 F.3d 828 (7th Cir. 1999).
According to East Point, its payroll records (organized bi-weekly) show less than 15 people except for two two-week periods in 1999 and nine two-week periods in 2000. For 2000, this means the 15 employees were on board for 18 weeks, not 20. The payroll records show that in 1999, the employee group ranged from 12 to 15, most often the number was 13. In 2000, the range was 13 to 16, most often 14. To this, the plaintiff answers that East Point's answers to interrogatories admitted 15 or more employees for 36 weeks, but East Point corrected its answers. If we leave aside the original interrogatory responses, which I believe East Point is entitled to do in the interests of justice, this leaves only an argument based on Walters v. Metropolitan Educ. Enterprises, 519 U.S. 202 (1997), which requires that persons who are employed be counted even on days when they are not paid.
A challenge is raised to the records on the ground that they are hearsay and there was no affidavit establishing that they are business records. But such an affidavit was filed with the reply brief, without objection, and I do consider the records. In any event, plaintiff seeks to rely on the records as well.
The entire argument on this point is as follows:
By using the "payroll" method of counting employees which was sanctioned in Walters, supra, and East Point's own payroll information, one reaches the clear conclusion that East Point is an "employer" for purposes of this litigation. At the very least, there is a factual question as to whether East Point is an "employer" subject to Title VII liability in this litigation.
This is an utterly undeveloped argument. Not a single employee who should be counted despite not being paid is cited. No examples of how "one reaches the clear conclusion" are given. Courts are not obliged to consider such undeveloped arguments which would require a detailed examination of each record to determine whether, for one example, a single individual's name appears on a payroll list for 20 weeks, even though that person is paid for 10 weeks and counted by East Point as an employee for 10. In such a case, there may be a fact question as to whether that individual is an employee. But no example is given, and I find that the argument is forfeit.
The motion for summary judgment in favor of East Point Condominium Associates, Inc. is granted.