Defendant Robert Boulware was the President of CAG and also
held shares in the company. See Complaint at ¶ 7. Defendant
James Sutton was the Director of Field Personnel for CAG, and
Defendant James Espiritu was the Assistant Laboratory Director.
Plaintiff filed her EEOC complaint on April 26, 1994. See
Defs' Exh. D. Plaintiff alleges that the discriminatory conduct
at issue occurred from 1992 through 1994 and contends that
during that period of time Defendants engaged in the following
allegedly discriminatory activities: (1) they refused to
compensate her for overtime or vacation, see Allen Dep. at 25;
(2) they docked her pay on holidays, see id.; (3) Espiritu
grabbed her feet, hair and hands on numerous occasions and
followed her, see id. at 25, 44, 46; (4) Boulware called her
names such as a "snot," a "spoiled brat," and a "little bitch,"
see id. at 25, 8687; (5) Sutton called her names such as a
"little bitch," "snot" and "brat," see id. at 26; (6) Jack
Ryan, a co-worker, referred to her as "missy," "cookie" and
"sweetie," see id. at 28-29; (7) Sutton and Boulware did not
respond to her complaints about Espiritu, see id. at 51-52,
54-56; (8) Boulware told Plaintiff that "women are inferior,"
see Complaint at ¶ 11; (9) they assigned her to perform menial
tasks which male employees were not required to perform, see
id. at ¶ 12:(10) a male employee who performed the same duties
as Plaintiff was provided with a larger salary, see id. at ¶
14; and (11) they did not permit Plaintiff to attend a training
course because she was a female, see id. at ¶ 24.
Defendants eventually moved to dismiss Plaintiffs complaint
for failure to prosecute pursuant to Rule 41(b) of the Federal
Rules of Civil Procedure. In an Order dated July 26, 2000, the
Court denied Defendants' motion, re-opened discovery for a
period of sixty days and provided the parties with sixty days
after the close of discovery to file motions. Subsequent to the
issuance of that Order, a discovery dispute arose between the
parties. A conference was held in Chambers on October 10, 2000;
and the Court, once again, ordered that the discovery period be
re-opened until October 24, 2000 and further ordered that the
parties had sixty days after the discovery period closed to file
motions pursuant to Local Rule 7.1(b).
A. Standard of Review
Under Rule 56(c) of the Federal Rules of Civil Procedure,
summary judgment is warranted if, when viewing the evidence
submitted, including the pleadings, depositions, answers to
interrogatories and affidavits, in the light most favorable to
the non-moving party, the Court determines that there is no
genuine issue of material fact and the movant is entitled to
judgment as a matter of law. See Fed.R.Civ.P. 56(c); Eastman
Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 456,
112 S.Ct. 2072, 119 L.Ed.2d 265 (1992); Raskin v. Wyatt Co.,
125 F.3d 55, 60 (2d Cir. 1997); Commander Oil Corp. v. Advance
Food Serv. Equip. ., 991 F.2d 49, 51 (2d Cir. 1993). A genuine
issue of fact exists when the evidence is such that a
"reasonable jury could return a verdict for the nonmoving
party." Rovtar v. Union Bank of Switz., 852 F. Supp. 180, 182
(S.D.N.Y. 1994) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, 212
(1986)). Moreover, in determining whether such a fact question
exists, the Court must draw all reasonable inferences in favor
of the non-moving party. See Schwapp v. Town of Avon,
118 F.3d 106, 110 (2d Cir. 1997).
Arguably, Defendants' motion for summary judgment may be
granted due to Plaintiffs failure to respond to the motion.
Rule 7.1(b)(3) of the Local Rules of the Northern District of
New York provides that "[f]ailure to file or serve any papers as
required by this Rule shall be deemed by the court as consent
to the granting or denial of the motion, as the case may be,
unless good cause is shown." However, the Second Circuit has
held that "[t]he fact that there has been no response to a
summary judgment motion does not, of course, mean that the
motion is to be granted automatically." Champion v. Artuz,
76 F.3d 483, 486 (2d Cir. 1996); see also Deshaies v. United Tech.
Corp. — Carrier Corp., No. 96-CV-1486, 1998 WL 59460, *2
(N.D.N.Y. Feb. 11, 1998). Therefore, the Court must review the
merits of Plaintiffs claims. Of course, since Plaintiff failed
to respond and provide the Court with a statement of material
facts as required by Local Rule 7.1(a)(3), the Court will deem
admitted the material facts set forth in Defendants' papers.
See Local Rule 7.1(a)(3).
B. Defendant CAG's Status as an "Employer"
Defendants contend that the claims against CAG should be
dismissed because the company does not qualify as an "employer"
within the meaning of 42 U.S.C. § 2000e(b). Section 2000-e(b)
provides that "[t]he term `employer' means a person engaged in
an industry affecting commerce who has fifteen or more employees
for each working day in each of twenty or more calendar weeks
in the current or preceding calendar year . . ."
42 U.S.C. § 2000e(b) (emphasis added).
Defendants assert that CAG did not employ more that fifteen
people during the relevant years of 1992-1994. Rather, CAG
"never had more than 13 full time employees." See Boulware
Aff. at ¶ 4. Defendants acknowledge that in addition to these
full-time employees, CAG also hired temporary employees in the
summer months of 1992 and 1993. See id. at ¶ 5. However, these
employees did not work more than three to four months out of the
year and, therefore, do not count toward the jurisdictional
prerequisite of 15 employees.*fn3 See id. at ¶¶ 32, 33; see
also Hosler v. Greene, 5 F. Supp.2d 99, 102 (N.D.N.Y. 1998)
(court found that the plaintiff had failed to come forward with
facts sufficient to support a finding that there was a genuine
issue as to whether the defendant hired fifteen or more
employees for twenty or more calendar weeks).
Defendants have provided sufficient evidence to support a
finding that CAG does not qualify as an "employer" and, as
discussed above, Plaintiff has failed to dispute this claim.
Accordingly, the Court grants Defendants' motion for summary
judgment on Plaintiffs Title VII claim asserted against CAG.
C. Individual Liability
It is well established that defendants may not be sued in
their individual capacities under Title VII.*fn4 See Whidbee
v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 74 (2d Cir.
2000) (court noted that it had previously held that "individuals
may not be held personally liable under Title VII") (citing
Tomka v. Seiler Corp., 66 F.3d 1295,
1313 (2d Cir. 1995)); Wrighten v. Glowski, 232 F.3d 119, 120
(2d Cir. 2000) (citation omitted). Thus, as a matter of law,
Plaintiff cannot maintain her Title VII claims against
Defendants Boulware, Sutton, Espiritu. See e.g. Wrighten, 232
F.3d at 120. Accordingly, the Court grants Defendants' motion
for summary judgment with respect to the claims asserted against
After carefully considering the entire file in this matter,
Defendants' submissions and the applicable law and for the
reasons stated herein, it is hereby
ORDERED that Defendants' motion for summary judgment is
GRANTED; and it is further
ORDERED that the Clerk of the Court enter JUDGMENT in
favor of Defendants and close this case.
IT IS SO ORDERED.