United States District Court, S.D. New York
May 11, 2005.
RHODA FITZGIBBONS, Plaintiff,
PUTNAM DENTAL ASSOCIATES, P.C., Defendant.
The opinion of the court was delivered by: WILLIAM CONNER, Senior District Judge
OPINION AND ORDER
Plaintiff Rhoda Fitzgibbons brings the instant action against
defendant Putnam Dental Associates, P.C. ("Putnam Dental"),
pursuant to Title VII of the Federal Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e et seq. ("Title VII"). Plaintiff
alleges that she was subjected to a hostile work environment and
was discriminatorily terminated from her employment at Putnam
Dental as a full-time receptionist and appointment coordinator.
Defendant moved for dismissal pursuant to FED. R. CIV. P.
12(b)(1) and 12(b)(6) on several asserted grounds, one of which
was that Putnam Dental employed less than fifteen employees
during the period relevant to this action, and is therefore not
covered by Title VII. In an Opinion and Order dated November 22,
2004, we declined to consider defendant's motion to dismiss on
the basis that Putnam Dental was not a covered employer subject
to Title VII and, instead, converted the motion to dismiss into a
motion for summary judgment to be resolved by this Court after
the parties had been given the opportunity to submit additional
evidence and supplemental briefs. Plaintiff, however, did not
file either additional evidence or a further brief. For the
reasons stated hereinafter, defendant's motion for summary
judgment is granted.
Plaintiff was employed as a receptionist and appointment
coordinator by Putnam Dental, a small dental practice located in
Brewster, New York, from July 19, 1999 until March 9, 2003.
(Complt. ¶ 7.) In her Complaint, plaintiff alleges that Putnam
Dental has continuously employed at least fifteen employees for
purposes of Title VII. (Id. ¶ 15.) However, defendant maintains
that at no time relevant to this action did it employ more than
fourteen employees. (Def. Mem. Supp. Summ. J. at 1.)
Plaintiff alleges that from approximately July 1999 until the
time of her termination from employment at Putnam Dental, she was
sexually harassed by her supervisor, Carl Ern, "including but not
limited to forcing Ms. Fitzgibbons to perform oral sex to his
person, despite the fact that Ms. Fitzgibbons expressed to him
that such conduct was unwelcome." (Complt. ¶ 12.) Plaintiff
asserts claims of sexual harassment under Title VII and
intentional infliction of emotional distress. She alleges that
her supervisor's actions created a hostile work environment and
that she was discriminatorily terminated from her employment as a
result. (Id. ¶¶ 18, 19.)
Plaintiff alleges that Putnam Dental was aware or should have
been aware of this harassment because she made numerous
complaints to defendant through its agents, servants and/or
employees. (Id. ¶¶ 13, 14.) In addition, plaintiff alleges that
defendant, in direct violation of Title VII, refused to take any
corrective action to end the hostile environment and did not
establish or adhere to an effective policy against sex
discrimination and harassment. (Id. ¶¶ 20, 21, 22.) As a direct
result of these violations, Fitzgibbons alleges that she has
"suffered both pecuniary and non-pecuniary damages in the form of
past and future pecuniary losses, emotional pain, suffering,
inconvenience, mental anguish, loss of enjoyment of work and
humiliation." (Id. ¶ 24.) With respect to her claim of
intentional infliction of emotional distress, plaintiff alleges
that further injuries were proximately caused by defendant's
intentional and malicious actions including "personal injury,
medical expense, pain and suffering, lost wages, out-of-pocket
expenses, for humiliation, indignity and injury to feelings,
damages for emotional and/or physical harm. . . ." (Id. ¶ 29.)
Plaintiff seeks, inter alia, compensatory and punitive damages,
a permanent injunction enjoining defendant from engaging in
employment practices that discriminate on the basis of sex and
requiring defendant to carry out policies, practices and programs to provide equal employment
opportunities. (Id. ¶¶ 25, 29.)
I. Summary Judgment Standard
Under FED. R. CIV. P. 56, summary judgment may be granted where
there are no genuine issues of material fact and the movant is
entitled to judgment as a matter of law. See FED. R. CIV. P.
56(c); Anderson v. Liberty Lobby, 477 U.S. 242, 247-50 (1986).
A fact is material only if, based on that fact, a reasonable jury
could find in favor of the non-moving party. Anderson,
477 U.S. at 248. The burden rests on the movant to demonstrate the absence
of a genuine issue of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). In deciding whether summary judgment is
appropriate, the court resolves all ambiguities and draws all
permissible factual inferences against the movant. See
Anderson, 477 U.S. at 255. To defeat summary judgment, the
nonmovant must go beyond the pleadings and "do more than simply
show that there is some metaphysical doubt as to the material
facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). The court's role at this stage of the
litigation is not to decide issues of material fact, but to
discern whether any exist. See Gallo v. Prudential Residential
Servs., L.P., 22 F.3d 1219, 1224 (2d Cir. 1994).
II. Applicability of Title VII
A. Fifteen Employee Threshold
Title VII prohibits employers from discriminating against any
individual "with respect to his compensation, terms, conditions
or privileges of employment, because of such individual's race, color, religion, sex or national origin."
42 U.S.C. § 2000e-2(a)(1). For purposes of Title VII, 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 year, and any
agent of such person." 42 U.S.C. § 2000e(b). In the present case,
Putnam Dental moves for summary judgment on the basis that Title
VII applies only to businesses with a minimum of fifteen
employees and alleges that, at all periods relevant to this
action, Putnam Dental employed no more than fourteen employees.
Defendant thus seeks dismissal of plaintiff's action on the
ground that Putnam Dental is not a covered employer subject to
Tile VII, the sole basis for this Court's jurisdiction. (Def.
Mem. Supp. Summ. J. at 3.)
A Title VII defendant may seek summary judgment on the
threshold issue of the number of employees required for Title VII
applicability where undisputed facts can be presented to defeat
coverage. Da Silva v. Kinsho Int'l Corp., 229 F.3d 358, 366 (2d
Cir. 2000). In support of defendant's assertion that it did not
employ the required fifteen employee threshold at any period
relevant to this action, defendant states that, although for
federal income tax purposes Putnam Dental had fifteen employees
in 2002 and sixteen employees in 2003, several of those
individuals do not constitute "employees" under Title VII.
(Def.Mem.Supp. Summ.J. at 3-4.) Specifically, defendant contends
that Dr. Carl Ern, Betsy Ern, Andrew Ern and Dr. Vincent
Cafarelli are not "employees" for Title VII purposes.
1. Dr. Carl Ern
Defendant contends that Dr. Ern was not an employee of Putnam
Dental at any time because he is the sole shareholder of Putnam
Dental, a professional corporation. (Id. at 4.) In Clackamas Gastroenterology Assocs., P.C. v. Wells, the Supreme Court held
that "the common-law element of control is the principal
guidepost that should be followed" in determining whether a
shareholder of a professional corporation is an "employee" within
the meaning of anti-discrimination statutes such as Title VII.
538 U.S. 440, 448 (2003). The Court explained that the focus of
such an inquiry is "whether the individual acts independently and
participates in managing the organization, or whether the
individual is subject to the organization's control." Id. at
449. Consequently, where an individual is a shareholder of a
professional corporation and has "control" over the corporation,
that individual is not an employee for Title VII purposes. See,
e.g., id. at 448 (holding that physicians actively engaged in
medical practice as shareholders and directors of professional
corporation should not be counted as "employees" where they
control the operation of their clinic, share profits and are
personally liable for malpractice claims, but remanded case to
lower court for further proceedings consistent with test laid out
in opinion to determine whether shareholder was an "employee");
Rodal v. Anesthesia Group of Onondaga, P.C., 369 F.3d 113, 123
(2d Cir. 2004) (recognizing that Clackamas set forth the proper
standard for determining whether shareholders in a professional
corporation are employees under anti-discrimination statutes);
Drescher v. Shatkin, 280 F.3d 201, 204 (2d Cir. 2002) (holding
president, sole director and sole shareholder of corporation, who
dominates affairs of business to such an extent as to control
"the very actions they would be complaining" about, was not an
"employee" for purposes of determining Title VII applicability).
In determining whether Dr. Ern is an "employee" for Title VII
analysis, we must consider the six factors set forth in
Clackamas: (1) "whether the organization can hire or fire the
individual or set the rules and regulations of the individual's
work;" (2) "whether and, if so, to what extent the organization
supervises the individual's work;" (3) "whether the individual
reports to someone higher in the organization;" (4) "whether and, if so, to what
extent the individual is able to influence the organization;" (5)
"whether the parties intended that the individual be an employee,
as expressed in written agreements or contracts;" and (6)
"whether the individual shares in the profits, losses, and
liabilities of the organization." 538 U.S. at 450-51 (quoting
EEOC Compliance Manual § 605:0009). However, the Court noted that
"these six factors need not necessarily be treated as
`exhaustive'" and "[t]he answer to whether a shareholder-director
is an employee or an employer cannot be decided in every case by
a `shorthand formula or magic phrase.'" Id. at 450 n. 10
(quotations and citations omitted).
In the case at bar, it is clear that Dr. Ern is not an
"employee" within the meaning of Title VII. Dr. Ern is the sole
shareholder of Putnam Dental and, as a result, has complete
control over decisions concerning Putnam Dental. (Def. Mem. Supp.
Summ. J. at 6.) No one has the right to fire Dr. Ern or set rules
or regulations pertaining to his work. (Id.) In fact, "Dr. Ern
determines for himself his role, duties, and responsibilities at
Putnam Dental." (Id.) Dr. Ern supervises his own work, and he
does not report to anyone at Putnam Dental. (Id.) Dr. Ern has
not entered into any employment contract with Putnam Dental.
(Id.) In addition, Dr. Ern shares in profits, losses and
liabilities of Putnam Dental and his "financial success depends
on the profitability of Putnam Dental." (Id.) Clearly, Dr. Ern
is not an "employee" within the meaning of Title VII.
2. Betsy Ern, Andrew Ern and Dr. Vincent Cafarelli
Defendant maintains that even though Betsy Ern, Andrew Ern and
Dr. Vincent Cafarelli are included as "employees" for federal
income tax purposes, they are not "employees" within the meaning
of Title VII. The definition of the term "employee" provided in
Title VII is not helpful in determining whether these individuals are in fact "employees" for
Title VII analysis because the Act states only that an "employee"
is an "individual employed by an employer." 42 U.S.C. § 2000e(f);
see also O'Connor v. Davis, 126 F.3d 112, 115 (2d Cir. 1997).
"However, it is well established that when Congress uses the term
`employee' without defining it with precision, courts should
presume that Congress had in mind `the conventional
master-servant relationship as understood by the common-law
agency doctrine.'" O'Connor, 126 F.3d at 115 (quotations and
citations omitted). The Supreme Court has instructed that, in
determining whether an individual is an "employee" for Title VII
purposes, "the ultimate touchstone under § 2000e(b) is whether an
employer has employment relationships with fifteen or more
individuals for each working day in twenty or more weeks during
the year in question." Walters v. Metro. Educ. Enter., Inc.,
519 U.S. 202, 211-12 (1997). Thus, courts have concluded that an
employment relationship should be "determined primarily by
looking to those individuals on the employer's payroll, commonly
referred to as the `payroll method.'" DeWitt v. Lieberman,
48 F. Supp. 2d 280, 292 (S.D.N.Y. 1999) (citing Walters,
519 U.S. at 209-10).
Turning to the employment status of the individuals that
defendant contends are not "employees" within the Title VII
framework, specifically Betsy Ern, Andrew Ern and Dr. Vincent
Cafarelli, plaintiff does not offer any evidence to support her
claim that these individuals should be included as employees in
the determination of whether the fifteen employee threshold has
been met. In particular, plaintiff has provided no evidence that
defendant did in fact have fifteen or more employees for each
working day in each of twenty or more calendar weeks in the
current or preceding year as required by 42 U.S.C. § 2000e(b).
For instance, one of the employees that plaintiff may have
included in alleging that the requisite fifteen employee
threshold is met is Betsy Ern. However, according to defendant,
Betsy Ern "performs only sporadic services for Putnam Dental, and does not even appear on Putnam Dental's regular payroll."
(Def. Mem. Supp. Summ. J. at 6-7 (emphasis in original).)
Furthermore, defendant contends that "[a]t no time during 2002 or
2003 did she perform services on each working day of any given
week, and the services that she did perform were undertaken at
limited, discrete times over the scattered course of a few days,
comprising far less than the twenty calendar week criterion."
(Ern Aff. ¶ 8.)*fn1 Similarly, defendant maintains that
Andrew Ern also "performed only a few discrete tasks for Putnam
Dental during discrete blocks of time, never working a full week
and working far less than twenty weeks during that year." (Id.
¶ 9.) In addition, defendant asserts that Dr. Cafarelli "never
worked for Putnam Dental on each working day (Putnam Dental is
open four days a week). Rather, he has always worked at most only
three days a week, and does not receive a salary, only a
commission based on work actually performed." (Id. ¶ 10.)
Notably, plaintiff does not contest or offer any evidence to
oppose defendant's assertion that Betsy Ern, Andrew Ern and Dr.
Vincent Cafarelli did not work "each working day in each of
twenty or more calendar weeks in the current or preceding year"
as required for an employee to be included in the determination
of whether the fifteen-employee threshold has been met.*fn2
Under FED. R. CIV. P. 56, the non-moving party must present to
the court "specific facts showing that there is a genuine issue
for trial." FED. R. CIV. P. 56(e). Consequently, even if we draw
all reasonable inferences in plaintiff's favor, we find that
plaintiff has failed to demonstrate that a factual dispute exists
with regard to whether defendant employed the requisite fifteen or
more employees necessary for it to be subject to Title VII.
Hosler v. Greene, 5 F. Supp. 2d 99, 102 (N.D.N.Y. 1998)
(internal citations omitted).
Dr. Ern, Betsy Ern, Andrew Ern and Dr. Vincent Cafarelli are
not "employees" as the term is contemplated by Title VII; thus,
Putnam Dental does not employ the required threshold number of
fifteen employees necessary for the application of Title VII.
Accordingly, defendant's summary judgment motion with respect to
plaintiff's Title VII claims is granted, and plaintiff's Title
VII claim against Putnam Dental is dismissed.
III. State Law Claims
A district court may decline to exercise supplemental
jurisdiction over a claim if it "has dismissed all claims over
which it has original jurisdiction." 28 U.S.C. § 1367(c)(3). When
determining whether to exercise supplemental jurisdiction, a
district court has "considerable discretion over what state law
claims it will include within its supplemental jurisdiction in a
particular case." Yaba v. Cadwalader, Wickersham & Taft,
931 F. Supp. 271, 275 (S.D.N.Y. 1996) (quoting Cushing v. Moore,
970 F.2d 1103, 1110 (2d Cir. 1992)). Accordingly, as all federal
claims have been dismissed, we exercise our discretion and
dismiss plaintiff's remaining state law claims without prejudice. CONCLUSION
For all of the foregoing reasons, defendant Putnam Dental,
P.C.'s motion for summary judgment is granted, and we decline to
exercise supplemental jurisdiction with respect to plaintiff
Rhoda Fitzgibbon's state law claims. The action is dismissed with
prejudice as to the Title VII claims, without prejudice as to the
state law claims, and without costs.