entities to be an integrated enterprise for the purpose of determining whether the enterprise comes within the definition of an employer under the federal anti-discrimination laws. See Rogers v. Sugar Tree Products, Inc., 7 F.3d 577, 582 (7th Cir. 1993). Consequently, Robins argues, the number of Max Mara USA's employees must be added to the number of Fashion Group's employees in determining whether the combined Max Mara USA/Fashion Group entity has enough employees to come within the ambit of Title VII, the ADEA, and the ADA. Plaintiff's Memorandum of Law in Opposition to Motion to Dismiss ("Pl. Mem.") at 4; Affidavit of Fred Robins ("Robins Aff.") PP 4, 12.
C. Whether or Not Max Mara and Fashion Group Are an Integrated Enterprise, Plaintiff Has Not Met the Jurisdictional Requirements
The Court need not decide whether Max Mara USA and Fashion Group constitute an integrated enterprise. If they are not an integrated enterprise, then Plaintiff may not sue under the federal anti-discrimination laws because Max Mara USA does not have the minimum number of employees required for it to be covered by the laws. Gleeson Aff. P 5. However, even if Max Mara USA and Fashion Group are an integrated enterprise, two factors still preclude Robins from suing under the federal antidiscrimination laws. First, the integrated enterprise (assuming one exists) is controlled by Fashion Group, an Italian company. Robins Aff. PP 33, 47, 49, 66. Second, Fashion Group did not have any employees in the United States for 20 weeks or more in either 1991 or 1992. The role of these factors is discussed below.
1. Exemptions for Foreign Companies The anti-discrimination statutes contain certain exemptions for foreign employers. "The prohibitions of [the ADEA] shall not apply where the employer is a foreign person not controlled by an American employer." 29 U.S.C. § 623(h)(2). Further, Title VII and the ADA do "not apply with respect to the foreign operations of an employer that is a foreign person not controlled by an American employer." 42 U.S.C. §§ 2000e-1(c)(2), 12112(c)(2)(B). This language has been held to mean that "the relevant group for purposes of [Title VII] [is] the foreign corporation's employees in the United States, not its global total of employees." Rao v. Kenya Airways, Ltd., 94 Civ. 6103, 1995 U.S. Dist. LEXIS 8416, *4, 1995 WL 366305, at *2 (S.D.N.Y. June 20, 1995).
2. Treatment of Integrated Enterprises Comprising Foreign and Domestic Components
Neither the Court nor the parties have located any decisions in which a court, faced with an employee attempting to support an assertion of jurisdiction by aggregating the number of employees, found that a domestic company and a foreign company constituted an integrated enterprise.
The question, then, appears to be one of first impression. If an integrated enterprise (comprising foreign and domestic components) is controlled by the foreign component, then that enterprise shall be treated as a foreign company for the jurisdictional purposes of the anti-discrimination statutes. Robins thus "may not . . . include defendant's foreign employees in calculating defendant's total number of employees." Rao, 1995 U.S. Dist. LEXIS 8416 at *4, 1995 WL 366305 at *2. Only those employees of the enterprise (whether on the payroll of the foreign or the domestic component) who work in the United States for twenty or more calendar weeks per year are to be counted for purposes of determining whether the enterprise is covered by the provisions of the ADA, ADEA and Title VII.
3. Application to Max Mara and Fashion Group
Despite more than 18 months of discovery, Robins has not shown that Fashion Group had any employees in the United States for 20 weeks or more during either 1991 or 1992.
Because of this absence of employees in the United States for a sufficient length of time, and because "foreign employees of a foreign corporation are not considered employees for purposes of the [anti-discrimination laws]," Rao, 1995 U.S. Dist. LEXIS 8416 at *4, 1995 WL 366305 at *2, a finding that Max Mara and Fashion Group are an integrated enterprise would not help Robins reach the jurisdictional minimum number of employees. Consequently, Robins has not met his burden of proving the prerequisites to the exercise of this Court's jurisdiction over his discrimination claims.
IV. Jurisdiction Over Claims Under 42 U.S.C. §§ 1985(3) and 1986
Defendants contend that Robins has failed to state a claim under 42 U.S.C. §§ 1985(3) and 1986 because all of the alleged conspirators are members of the same entity and because "their alleged wrongful acts were committed while acting within the scope of their employment." Def. Mem. at 17. In the context of actions under 42 U.S.C. § 1985(3), the Second Circuit applies "the familiar doctrine that there is no conspiracy if the conspiratorial conduct challenged is essentially a single act by a single corporation acting exclusively through its own directors, officers, and employees, each acting within the scope of his employment." Herrmann v. Moore, 576 F.2d 453, 459 (2d Cir.), cert. denied, 439 U.S. 1003, 58 L. Ed. 2d 679, 99 S. Ct. 613 (1978). See also Girard v. 94th Street and Fifth Avenue Corp., 530 F.2d 66, 70-71 (2d Cir.), cert. denied, 425 U.S. 974, 48 L. Ed. 2d 798, 96 S. Ct. 2173 (1976); Dombrowski v. Dowling, 459 F.2d 190 (7th Cir. 1972); Rini v. Zwirn, 886 F. Supp. 270, 291-92 (E.D.N.Y. 1995).
Despite Plaintiff's attempt through his Memorandum to avoid the application of this principle, Defendants were clearly acting in the scope of their employment. Robins contends that Defendants "were driven by deep personal malice against plaintiff . . . which transcended the bounds of their duty as officers and directors of their respective corporations." Pl. Mem. at 15. However, under New York law, conduct that "in some way further[s] the interest of the employer, and [does] not solely benefit the employee" is considered to be within the scope of employment. See In re Ivan F. Boesky Sec. Litig., 36 F.3d 255, 265 (2d Cir. 1994). Employee conduct falls within the scope of employment unless the "conduct is brought on by a matter wholly personal in nature, the nature of which is not job-related." Stavitz v. City of New York, 98 A.D.2d 529, 531, 471 N.Y.S.2d 272 (1st Dep't 1984); see also Longin v. Kelly, 875 F. Supp. 196, 202 (S.D.N.Y. 1995) (citing Stavitz).
In the instant case, for example, Robins states that Defendants Fornaciari (President of Max Mara USA), Maramoti (President of Fashion Group) and the corporate Defendants "instigated or approved the discriminatory actions and age bias of defendants Kaferstein and Mantovani." Am. Cplt. P 54. Robins further alleges that Defendant Picone (former chairman and CEO of Max Mara USA) was induced by Fashion Group and Maramoti to "approve the interference with and violation of the commitments and agreements that defendant Picone had made to plaintiff." Am. Cplt. P 112. Assuming that the allegations are true, the conduct of the individual Defendants in some way furthered the interests of their employers. Defendants were thus acting within the scope of their employment, and therefore the Court need not decide whether the alleged conspirators were members of a single entity. Plaintiff's actions under 42 U.S.C. §§ 1985(3) and 1986 are dismissed for failure to state a claim upon which relief may be granted.
For the foregoing reasons, Defendants' motion to dismiss is granted with respect to Plaintiff's claims under Title VII, the ADA, the ADEA, and 42 U.S.C. § § 1985(3) and 1986. The state law claims will be addressed in a separate opinion.
Shira A. Scheindlin
Dated: New York, New York
January 16, 1996