United States District Court, S.D. New York
January 19, 2005.
STEVE PERSAUD, Plaintiff,
ASH & PETERKIN CENTRAL LOCK, Defendant.
The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge
REPORT AND RECOMMENDATION
To the Honorable Deborah A. Batts, United States District Judge:
Pro se plaintiff Steve Persaud brought this action against defendant
Ash & Peterkin Central Lock Co. ("Peterkin") pursuant to Title VII,
42 U.S.C. § 2000e, et al., alleging discriminatory termination because of
his race ("Indian") and national origin ("Guyanese"). (Dkt. No. 2:
Compl. ¶¶ 4, 7.)
Presently before the Court is defendant Peterkin's motion to dismiss,
on the ground that it employed fewer than 15 employees. (Dkt. No. 3:
Notice of Motion & Peterkin Aff. ¶ 4 & Exs. A-B.)
When the motion was referred to me for a Report and Recommendation, by
Order dated December 8, 2004, I indicated that I "will consider the
motion as one for summary judgment," gave Persaud the Notice required by
S.D.N.Y. Local Civil Rule 56.2, and gave him additional time, until
December 28, 2004, to respond to the motion. (Dkt. No. 6.) Plaintiff
Persaud signed the acknowledgment receipt for the certified mail of that Order. To date,
however, he has not responded to the motion.
For the reasons set forth below, defendant Peterkin's summary judgment
motion should be granted because Peterkin employed fewer than 15
Persaud alleges that from September 11, 2001 until he was fired on May
24, 2002, he was discriminated against and fired because of his race and
national origin. (Dkt. No. 2: Compl. ¶¶ 5-8 & Attached N.Y.S.D.H.R.
Compl. ¶¶ 3-4.)
Richard Peterkin, President of defendant, submitted an affidavit
At the time of Plaintiff's termination, Defendant had
10 employees on its payroll, and at no time in its
entire existence has Defendant ever had fifteen (15)
or more employees on its payroll for each working day
in each of twenty or more calendar weeks of a year.
(Dkt. No. 3: Peterkin Aff. ¶ 4.) Mr. Peterkin attached to his affidavit
copies of payroll records for 2001 and 2002. (Peterkin Aff. ¶ 4 & Exs.
A-B.) The Court's review of those payroll records (from the Paychex
payroll preparation firm) confirms Mr. Peterkin's affidavit statement that
the company did not employee fifteen or more employees for twenty or more
calendar weeks in the year of the alleged harassment. Indeed, during that
two year period, Peterkin only had fifteen employees in one week (week
ending 12/14/01). (Peterkin Aff. Ex. A.)
Plaintiff Persaud has not produced any evidence contradicting the
Peterkin affidavit. Indeed, plaintiff Persaud has not responded to the
motion at all. ANALYSIS
Title VII defines an employer as having fifteen employees:
The 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). Thus, "[a]n employer is not covered by Title VII
unless it employs `fifteen or more employees for each working day in each
of twenty or more calendar weeks in the current or preceding calendar
year.'" Drescher v. Shatkin, 280 F.3d 201
, 202-03 (2d Cir. 2002) (quoting
42 U.S.C. § 2000e(b)). While not "jurisdictional," defendant's proof that
it employed fewer than fifteen employees entitles the Court to grant
defendant summary judgment. See, e.g., Da Silva v. Kinsho Int'l Corp.,
229 F.3d 359, 365-66 (2d Cir. 2000) (A "Title VII defendant wishing to
defeat a plaintiff's claim on the ground that it lacks fifteen employees
is normally entitled to seek dismissal if the complaint shows on its face
that the element of statutory coverage is lacking, or to seek summary
judgment on that issue if undisputed facts can be presented to defeat
coverage.") (fn. omitted); see also, e.g., Drescher v. Shatkin,
280 F.3d 201
, 202 (2d Cir. 2002) (Affirming decision of district court
where employer "did not have fifteen or more employees for twenty or more
calendar weeks in the year of the harassment or the year preceding and
therefore was not within the coverage of Title VII."); Gaugaix v.
Laboratoires Esthederm USA, Inc., 98 Civ. 4465, 2001 WL 11069 at *1
(S.D.N.Y. Jan. 4, 2001) ("[I]n connection with its motion for
reconsideration [defendant] has submitted payroll records that
conclusively show that [defendant] never employed more than fifteen
people. This new evidence . . . warrant[s] granting [defendant's] motion
for summary judgment."). CONCLUSION
For the reasons set forth above, because defendant Peterkin employed
fewer than fifteen employees, the Court should grant defendant summary
judgment to defendant dismissing the complaint.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules
of Civil Procedure, the parties shall have ten (10) days from service of
this Report to file written objections. See also Fed.R.Civ.P. 6. Such
objections (and any responses to objections) shall be filed with the
Clerk of the Court, with courtesy copies delivered to the chambers of the
Honorable Deborah A. Batts, 500 Pearl Street, Room 2510, and to my
chambers, 500 Pearl Street, Room 1370. Any requests for an extension of
time for filing objections must be directed to Judge Batts. Failure to
file objections will result in a waiver of those objections for purposes
of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); IUE AFL-CIO
Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert.
denied, 513 U.S. 822, 115 S. Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85,
89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert.
denied, 506 U.S. 1038, 113 S. Ct. 825 (1992); Small v. Secretary of Health
& Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson,
714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
72, 6(a), 6(e).
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