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KELBER v. FOREST ELEC. CORP.

July 7, 1992

Kelber, Plaintiff,
v.
Forest Electric Corp., et al., Defendants.


FREEH


The opinion of the court was delivered by: LOUIS J. FREEH

LOUIS J. FREEH, United States District Judge

 In this sex discrimination suit, defendants Forest Electric Corporation ("Forest Electric") and Forest Datacom Services ("Forest Datacom") move for summary judgment pursuant to Fed. R. Civ. P. 56(c). Plaintiff Laura Kelber ("Kelber") opposes the motion and argues that genuine issues of material fact preclude summary judgment. For the reasons stated below, defendants' motion is granted in part and denied in part. Because Kelber has presented no evidence suggesting that Forest Electric had any control over Forest Datacom's employment practices, all claims against Forest Electric are dismissed. Because Kelber has also failed to present any evidence supporting her disparate impact claim under Title VII, that claim must also be dismissed. However, material questions of fact remain in dispute with regard to Kelber's other Title VII claims. Accordingly, that claim will proceed to trial, along with Kelber's claim under the New York Human Rights Law. All other state law claims are dismissed.

 Kelber started working for Forest Datacom as a "journeyperson" electrician in November 1988. *fn1" (Defendants' 3(g) Statement PA.2; Opposition at 7). Forest Datacom initially assigned her to work at the Merrill Lynch building in the World Financial Center in Manhattan. Construction of that building had been completed, so Kelber was working in an enclosed, heated environment while attaching wiring and cabling for computer equipment. 9Opposition at 7).

 In December 1988 or January 1989, Kelber learned that she was pregnant. 9Defendants' 3(g) Statement PB.6). Because her work at the Merrill Lynch building did not require heavy lifting or other strenuous activity, Kelber felt she could continue working at that site or at another similar job for the remainder of her pregnancy. *fn2" (Opposition at 7).

 Kelber had missed work on numerous occasions while employed at the Merrill Lynch building. She did not report for work on January 16, 1989 because her son's day care was closed in observance of Martin Luther King's birthday. 9Kelber Notes at 3). Kelber also missed work on February 2, 7, 21, and 22, 1989 because her son was sick. 9Id. at 3-4).

 In mid-February 1990, Kelber was transferred by Forest Datacom to the Citispire building at 56th Street in Manhattan which, like the Merrill Lynch building, was already fully constructed. Although her assignments at Citispire included pulling computer wires and climbing six-foot ladders, Kelber did not believe her nine-week pregnancy would be jeopardized by working at that location. 9Kelber Notes at 3).

 Kelber only worked at Citispire for approximately two weeks, however, because in late February she was transferred again, to the Shearson American Express building on Greenwich and North Moore Street in Manhattan. The Shearson building was not completely constructed; on the contrary, the building was not even enclosed. At the outset of her assignment there, Kelber's supervisor warned her that she had too many absences, and that one more would result in her termination. 9Kelber Notes at 7). Nevertheless, Kelber became sick and missed work on several more occasions. 9Kelber Notes at 8-9) (referring to missing work on March 9, 20, and 21, 1990). On April 3, 1989, Kelber developed a 101 degree fever and telephoned her supervisor to report that she would be missing work again. Kelber's supervisor then told her that she was terminated due to excessive absences. 9Kelber Notes at 10). Two days later, Kelber discovered that her baby had been dead for approximately four weeks. 9Id.).

 On June 4, 1990, Kelber filed this action alleging that Forest Datacom had (1) subjected her to unequal treatment because of her sex and her pregnancy, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(c)(1), (2) and (d) [hereinafter "Title VII"] (Count 1); (2) implemented policies and procedures for assignment of work and termination of employees which have a disparate impact on pregnant women, in violation of Title VII (Count 2); (3) treated her in a manner which violated the New York Human Rights Law, N.Y. Exec. Law 296(1)(c) and (1-a)(c) (Count 3); (4) committed a prima facie tort by intentionally assigning her work which was inappropriate for a pregnant woman (Count 4); and (5) intentionally inflicted emotional distress on her by intentionally or recklessly assigning her to a job which was unsafe for a pregnant woman. 9Count 5). *fn3" Defendants now move to dismiss all of Kelber's claims.

 DISCUSSION

 1. Forest Electric

 It is undisputed that Kelber worked for Forest Datacom, not Forest Electric. Thus, Forest Electric may only be held liable for the discriminatory acts alleged in Kelber's complaint if Kelber demonstrates that Forest Electric and Forest Datacom have an "integrated economic relationship" and exercise common control over each other's employment practices. See Streeter v. Joint Industry Board, 767 F. Supp. 520, 527 and n.9 (S.D.N.Y. 1991). Because Kelber has failed to demonstrate any such relationship between the two companies, all claims against Forest Electric are hereby dismissed.

 Forest Electric is a wholly-owned subsidiary of JWP, Inc. ("JWP"). Forest Datacom is a division of Extel/JWPIS, Inc., another of JWP's wholly-owned subsidiaries. 9Defendants' 3(g) Statement PPA.1, A.2). As a result, the two companies share a corporate parent, and certain high level management employees perform functions for both companies. 9Rosenberg Dep., Plaintiff's Ex. 10 at 130-32). Forest Electric and Forest Datacom also share the same address, Seven Penn Plaza. 9Id. at 15). However, field operations personnel for the two companies are separate (Id. at 130), and nothing in the record indicates that employees of Forest Electric exercise any control over Forest Datacom's employment practices. Under these circumstances, we do not find that Forest Electric and Forest Datacom comprise an integrated economic unit for purposes of Title VII. *fn4" See Streeter, 767 F. Supp. at 527 n.9 (noting four factors relevant to determination of integrated enterprise: interrelationship of operations; common management, directors and boards; centralized control of labor relations and personnel; and common ownership and control).

 2. Title VII Claims

 The primary substantive provision of Title VII is § 703(a) of the Act, 42 U.S.C. § 2000e-2(a), which provides that it is an unlawful employment practice for an employer

 
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex or national origin; or
 
(2) to limit, segregate, or classify his employees or applicants for employment in any way which deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.

 In 1978, Title VII was amended by the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), which further provides that


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