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PERSAUD v. ASH & PETERKIN CENTRAL LOCK

United States District Court, S.D. New York


January 19, 2005.

STEVE PERSAUD, Plaintiff,
v.
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 employees.

  FACTS

  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 stating:

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).

  Respectfully submitted,

20050119

© 1992-2005 VersusLaw Inc.



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