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LINSKEY v. HEIDELBERG EASTERN

May 18, 1979

James M. LINSKEY, Plaintiff,
v.
HEIDELBERG EASTERN, INC., et al., Defendants



The opinion of the court was delivered by: COSTANTINO

MEMORANDUM OF DECISION AND ORDER

Plaintiff, James Linskey ("Linskey"), was an employee of Heidelberg Eastern, Incorporated ("Heidelberg") for 14 years before his discharge on October 31, 1975. In 1961, Heidelberg hired Linskey as an Assistant Treasurer. By 1975, Linskey, then 55 years of age, had advanced to become the Treasurer of Heidelberg. As Treasurer, Linskey was the second highest ranking officer in Heidelberg and was responsible for fiscal affairs. He contends that he was eventually discharged as a result of the discriminatory practices of the defendants.

 Heidelberg is a subsidiary of the East Asiatic Company, Incorporated ("EAC, American"). EAC, American is a subsidiary of East Asiatic Company, Limited. ("EAC, Denmark"). Both Heidelberg and EAC, American are domestic corporations doing business in New York. EAC, Denmark is a foreign corporation incorporated under the laws of Denmark.

 Linskey commenced this action pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e Et seq., and the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 Et seq. Jurisdiction is based on 42 U.S.C. § 2000e-5(f)(3) and 29 U.S.C. § 626(c). He asserts two claims for relief founded on his general belief that Heidelberg, EAC, American and EAC, Denmark discharged him because he was an older American citizen, and not a Danish citizen. Thus, he bases his first claim on an assertion of national origins discrimination in violation of Title VII and his second claim on a violation of the age discrimination provisions of the ADEA.

 Defendants EAC, American and EAC, Denmark now move pursuant to Fed.R.Civ.P. 12(b) and 56 either to dismiss the complaint or for summary judgment. They make three arguments. First, they contend that Title VII and the ADEA do not provide a cause of action against a non-employer. They argue that Heidelberg, as Linskey's immediate employer, is the only party against whom a cause of action could possibly arise. Second, EAC, Denmark contends that an international treaty between Denmark and the United States exempts EAC, Denmark, as a Danish Corporation, from the provisions of Title VII and the ADEA. Third, EAC, American and EAC, Denmark move to strike allegations of the complaint which seek recovery for sex discrimination against women in violation of Title VII.

 The court finds that Linskey has stated a cause of action against EAC, American and EAC, Denmark and that the provisions of the Danish-American treaty do not exempt EAC, Denmark from liability. However, Linskey's cause of action does not extend to women and therefore, the court strikes the allegations in the complaint alleging sex discrimination against women.

 I. ARE PARENT CORPORATIONS "EMPLOYERS"?

 Title VII prohibits discrimination by an "employer" on the basis of a person's race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(1). An "employer" is defined in pertinent part as "a person engaged in an industry affecting commerce . . . and any agent of such a person." 42 U.S.C. § 2000e(b). A "person" is defined to include one or more corporations. 42 U.S.C. § 2000e(a). Similarly, the ADEA prohibits age discrimination by an "employer", 29 U.S.C. § 623(a), and defines "employer" in pertinent part as "a person engaged in an industry affecting commerce . . . (and) any agent of such a person." 29 U.S.C. § 630(b). A "person" is defined to include one or more corporations. 29 U.S.C. § 630(a).

 EAC, American and EAC, Denmark contend that those provisions extend only to Heidelberg as the immediate employer of Linskey. They argue that EAC, American and EAC, Denmark cannot be considered, together with Heidelberg, as the single employer of Linskey under either Title VII or the ADEA. They claim that the plain meaning of the statutory scheme precludes the assertion that the existence of a parent-subsidiary relationship combined with some degree of corporate control over the subsidiary would allow either EAC, American or EAC, Denmark to be considered Linskey's "employer".

 The question presented has produced different results in the courts. Some courts have refused to consider a parent and subsidiary a single employer for these purposes. See Hassell v. Harmon Foods, Inc., 336 F. Supp. 432 (W.D.Tenn.1971), Aff'd, 454 F.2d 199 (6th Cir. 1972). Others, however, have held a parent corporation responsible for the alleged discriminatory practices under both Title VII, See Baker v. Stuart Broadcasting Co., 560 F.2d 389 (8th Cir. 1977); Equal Employment Opportunity Comm. v. Upjohn Corp., 445 F. Supp. 635 (N.D.Ga.1977), and the ADEA; See Marshall v. Arlene Knitwear, Inc., 454 F. Supp. 715 (E.D.N.Y.1978); Brennan v. Ace Hardware Corp., 362 F. Supp. 1156 (D.Neb.1973), Aff'd, 495 F.2d 368 (8th Cir. 1974); Woodford v. Kinney Shoe Corp., 369 F. Supp. 911 (N.D.Ga.1973). In light of the remedial nature of the ADEA and Title VII, and the liberal interpretation to be granted accordingly, See e.g. Marshall v. Arlene Knitwear, Inc., supra, the court finds that EAC, American and EAC, Denmark, as parent corporations of Heidelberg, can be regarded as one entity for the purposes of this action. Accordingly, the motion to dismiss for failure to state a cause of action pursuant to Fed.R.Civ.P. 12(b)(6) is denied.

 EAC, American and EAC, Denmark, move in the alternative for summary judgment pursuant to Fed.R.Civ.P. 56 on this argument. The basic principles applicable to a motion for summary judgment are well established. In general, for a court to grant the motion, there must be no genuine issue as to any material fact. Fed.R.Civ.P. 56(c); Heyman v. Commerce and Indus. Ins. Co., 524 F.2d 1317 (2d Cir. 1975). The court cannot try issues of fact, but must determine whether there are factual issues to be tried. Id. at 1319-20. In making its determination, the court must draw all reasonable inferences and resolve all ambiguities in favor of the non-movant. Id. at 1320.

 This is not to say that the non-moving party may remain idle. Simple, conclusory statements alleging the existence of a factual issue are insufficient to defeat a motion for summary judgment. Donnelly v. Guion, 467 F.2d 290, 293 (2d Cir. 1972). The opposing party cannot withhold its evidence until trial. Rather it must come forward with evidence to support its claim of a factual issue. Beal v. Lindsay, 468 F.2d 287 (2d Cir. 1967); Donnelly v. Guion, supra.

 There are two bases upon which Linskey may seek to establish the liability of EAC, American or EAC, Denmark for the actions of Heidelberg. Equal Employment Opportunity Comm. v. Upjohn Corp., supra at 639. If Linskey meets his burden of alleging a material issue of fact under either test, then summary judgment would be inappropriate, regardless of the test ultimately used at trial.

 First, Linskey may seek to prove that the activities between and management of the parent corporation and its subsidiary were so closely related as to constitute an integrated enterprise. This test utilizes the National Labor Relations Board's "single employer" standards. See Radio and Television Broadcast Technicians Local Union 1264 v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 85 S. Ct. 876, 13 L. Ed. 2d 789 (1965). Under this test, the following factors are controlling: (1) interrelation of operations, (2) common management, (3) common control of labor relations, and (4) ...


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