Indeed, the lack of jurisdiction is so fundamental a defect that the rule
permits the judge to recognize it sua sponte at any time. Id.
II. The American Legion's Motions
Again, the American Legion maintains dismissal against it is
appropriate under Rule 12(b)(1) for two reasons: (1) it is not
plaintiff's "employer" under 42 U.S.C. § 2000e(b) and the NYHRL; and
(2) plaintiff never exhausted her administrative remedies. The American
Legion postulates dismissal under Rule 12(b)(6) is appropriate because
plaintiff makes no substantive allegations connecting it with Post 489's
challenged actions, nor does New York law does not recognize her claim
for wrongful termination.
As explained infra, the American Legion was not plaintiff's employer
under Title VII. 42 U.S.C. § 2000e-2 (a) states in relevant part that
"[i]t shall be an unlawful employment practice for an employer . . . to
discriminate against any Individual with respect to his compensation,
terms conditions, or privileges of employment because of such
individual's . . . sex." (Emphasis supplied). It is true that an employee
may have more than one employer for the purpose of Title VII liability,
and that those employers need not be "an integrated enterprise," Streeter
v. Joint Industry Board of Elec. Industry, 767 F. Supp. 520, 527
(S.D.N.Y. 1991), nor have a "joint employer relationship." Dortz v. City
of New York, 904 F. Supp. 127, 145 (S.D.N.Y. 1995). A determination of
whether Post 489 is an agency of the American Legion, however, is not
dispositive of the present motion: the germane issue is the relationship
between the American Legion and the plaintiff and whether the former
controlled at least some of the latter's working conditions.
In making this determination, courts look to see whether an entity has
"authority to hire or fire . . ., to supervise . . . work or conditions
of employment, to determine [the] rate or method of pay, or to maintain
records of . . . employment." Kern v. City of Rochester, Fire Dept.,
93 F.3d 38, 45 (2d Cir. 1996). Other indicia include dictating personnel
policies and controlling budgets. See Houston v. Fidelity
(Nat.Fin.Services), No. 95-Civ-7764, 1997 WL 97838, at *12 (S.D.N.Y.
Mar. 6, 1997). The American Legion has provided ample documentation
evincing that a Title VII employer-employee relationship did not exist
between it and plaintiff. There was no integrated economic relationship
between it and Post 489, nor did it enjoy authority or control over the
post's employment practices affecting plaintiff.
Plaintiff has not linked the American Legion with the American
Legion-NY or Post 489's operations, labor relations, management, and
ownership or financial control. The American Legion does not share
offices, bank accounts or equipment with any local post. Each department
and local post is responsible for it own funds, accounts and records. Nor
is there any evidence of an interrelationship between the administrative
operations of the American Legion and Post 489.
The American Legion, American Legion-NY and Post 489 do not share
management, either. Each has its own management organization, boards of
directors and/or officers. Local posts enjoy exclusive control over their
government, administration and activities. The American Legion is
powerless to intercede in the affairs and operations of the local posts;
rather, its authority is limited to the formation and termination of a
local post's charter.
Additionally, the American Legion does not have control over labor
relations and personnel of Post 489 or the American Legion-NY. Each local
post ascertains its employment needs and establishes its own terms and
conditions of employment. The American Legion does not participate in
hiring, training, wage payment, supervision or disciplining of any of the
local posts' employees. The American Legion and Post 489 have individual
identification numbers, these entities do not have common ownership or
consolidated financial control. Each has its own accounting system,
financial records, and bank accounts.
The American Legion's motion to dismiss attacks the factual existence
of the court's subject matter jurisdiction, so the question is whether
plaintiff had an opportunity to submit evidence establishing subject
matter jurisdiction. Plaintiff presented an affidavit and memorandum of
law to support her position, but never filed a reply or requested further
time to present additional evidence. Plaintiff had an opportunity to
refute the American Legion's motion, but did not; therefore, upon
consideration of the record, the court finds it lacks subject matter
jurisdiction over plaintiff's Title VII claim against the American
Legion. Moreover, because the court grants the instant Rule 12(b)(1)
motion, it cannot exercise supplemental jurisdiction over plaintiff's
related state claims against that defendant. The American Legion's Rule
12(b)(6) is denied as moot.
III. The American Legion-NY's Motions
The American Legion-NY presents two motions: one pursuant to Rule 12
(c) for judgment on the pleadings, and another under 12(h)(3) for
dismissal for lack of subject matter jurisdiction. The American Legion-NY
notes that plaintiff raises Title VII claims against it identical to
those she made against the American Legion. As the parties' arguments are
the same, the results are the same: the American Legion-NY was not
plaintiff's employer. Post 489 and it were separate entities and neither
participated in the financial, ownership, control or employment policies
of the other.
The American Legion-NY's motion to dismiss for lack of subject matter
jurisdiction is granted, and it motion pursuant to Rule 12(c) for
judgment on the pleadings is denied as moot. Upon dismissal of
plaintiff's federal claim, her state law claims against this defendant
must also be dismissed. See generally West Hartford v. Operation Rescue,
915 F.2d 92 (2d Cir. 1990).
After consideration of the foregoing, the American Legion's motion to
dismiss the complaint under Rule 12(b)(1) is GRANTED, and its motion to
dismiss the complaint under Rule 12(b)(6) is DENIED as moot. The
American Legion-NY's motion for judgment on the pleadings pursuant to
Rule 12(c) is GRANTED, and its motion under Rule 12(h)(3) is DENIED as
IT IS SO ORDERED.
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