Opinion
Case No. 00-7245-CIV-FERGUSON
March 4, 2002
ORDER GRANTING DEFENDANT'S RENEWED MOTION FOR SUMMARY JUDGMENT FOR LACK OF SUBJECT MATTER JURISDICTION
Joann Lombardi ("Plaintiff") filed this lawsuit against six business entities ("Defendants") alleging that she was sexually harassed and received compensation different from that paid to similarly situated male employees. The cause is before the Court an the Defendants' Renewed Motion for Summary Judgment for Lack of Subject Matter Jurisdiction [D.E. 79].
FACTUAL BACKGROUND
The Plaintiff claims that on or about March 10, 1994 she began her employment as a receptionist for each of the related entities: Lady of America Franchise Corporation ("LOA"); Lady of America, Inc.; FLAC, Inc; Franchise Consulting Corporation; South Florida LOA ADI, Inc.; and National Media Consulting Corp ("Defendants"); that during her employment she endured unsolicited sexual advances, was discriminated against and denied the same benefits as that of similarly situated male employees. The Plaintiff further claims that when she complained about the discrimination, the harassment increased and culminated in her constructive discharge from the company in August of 1999. She brought this action on August 29, 2000 pursuant to Title VII under the Civil Rights Act of 1964 ("Title VII"), the Equal Pay Act and the Florida Civil Rights Act.
On December 12, 2000, the Defendants filed a motion to dismiss for lack of subject matter jurisdiction. The Defendants' motion argues that Plaintiff's aggregation of the six named Defendants was improper and that the Plaintiff's actual employer, LOA, did not have the requisite fifteen employees to fall under the purview of Title VII. This Court denied the Defendants' motion without prejudice, to be renewed after the conclusion of discovery. After a May 29, 2001 status conference an Order was entered requiring subject matter jurisdiction discovery to be completed by July 13, 2001. The Court subsequently granted the Plaintiff's motion for an enlargement of time, until August 27, 2001, to conduct discovery on subject matter jurisdiction. The Defendants now renew their earlier motion for summary judgment alleging a lack of subject matter jurisdiction.
In an unsworn statement, the Plaintiff says "[t]o the best of [her] recollection" more than fifteen individuals "worked for [LOA] during the time she was discriminated against." The Plaintiff also states that the Defendants' enterprise consisted of several corporations that, once aggregated, employed fifteen or more employees. In support of her claims, the Plaintiff attached excerpts from the 1996 and 1999 Bond's Franchise Guide which stated that LOA, throughout those years, had between ten and thirteen company owned units with a corporate staff of twenty individuals.
The Defendants' reply memorandum included LOA's quarterly reports, from January 1, 1994 through April 1, 2000, submitted to the Florida Division of Unemployment Compensation which reflected that it did not have fifteen employees during the relevant time period. The reply also included Roger Wittenberns' uncontroverted affidavit which stated that he was the sole employee and/or officer of the remaining Defendants, Lady of America, Inc.; FLAC, Inc; Franchise Consulting Corporation, South Florida LOA ADI, Inc.; and National Media Consulting Corp. These documents were also previously forwarded to the EEOC by the Defendants in support of its lack of jurisdiction argument. The EEOC subsequently sent Plaintiff a letter stating that its file was being closed since the EEOC was unable to conclude from the information obtained that a violation of Title VII occurred.
Def. Ex. B.
STANDARD FOR SUMMARY JUDGMENT
Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A factual dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Similarly, a fact is "material" if it might affect the outcome of the suit under the governing substantive law. Anderson, 477 U.S. at 247.In considering this motion for summary judgment, the Court must examine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that the defendant should prevail as a matter of law." Id. at 243. The movant bears the initial burden of showing the absence of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In deciding whether the movant has met this burden, the Court must view the evidence and all factual inferences in the light most favorable to the non-movant. Miranda v. B B Cash Grocery Store, Inc., 975 F.2d 1518, 1532 (11th Cir. 1992). "If reasonable minds could differ on the inferences arising from undisputed facts, summary judgment should be denied." Id. at 1534.
Once the initial burden is met, the non-movant must come forward with specific facts showing that there is a genuine issue for trial that precludes summary judgment. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The evidence presented cannot consist of conclusory allegations, legal conclusions or evidence which would be inadmissable at trial. Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991). Likewise, "a mere scintilla of evidence supporting a position will not suffice; there must be enough of a showing that the jury could reasonably find for the [non-movant]" Anderson, 477 U.S. at 252. Failure to make a showing sufficient to establish the existence of any essential element of a claim is fatal and requires the entry of summary judgment. Celotex Corp., 477 U.S. at 322-323.
ISSUE PRESENTED
The single issue is whether the plaintiff made a showing, sufficient to defeat a summary judgment motion, that the defendants had common ownership and management and employed the requisite number of employees for the length of time required by Title VII to confer subject matter jurisdiction.
DISCUSSION
The Eleventh Circuit treats the question of whether a defendant meets the statutory definition of an "employer" as a threshold jurisdictional matter under Title VII. See Virgo v. Riviera Beach Assoc., Ltd., 30 F.3d 1350 (11th Cir. 1994). Title VII defines an "employer" as "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 a person . . . ." 42 U.S.C. § 2000e(b). Section 760.10 of the Florida Statutes also prohibits discriminatory employment practices. This statute is patterned after Title VII and defines an employer with the same statutory language. See Weaver v. Leon County Classroom Teachers Assoc., 680 So.2d 478 (Fla. 1st DCA 1996). Because of the statutes' similarity, federal case law dealing with Title VII claims also applies to the Florida counterpart. See Sinclair v. DeJay Corp., 170 F.3d 1045 (11th Cir. 1999); King v. Auto Truck Indus. Parts and Supply, Inc., 21 F. Supp.2d 1370 (N.D. Fla. 1998).
The Eleventh Circuit applies the standard promulgated by the National Labor Relations Board ("NLRB") to evaluate if two or more entities should be consolidated and treated as an integrated employer. See Lyes v. City of Riviera Beach, 166 F.3d 1332 (11th Cir. 1999); McKenzie v. Davenport-Harris Funeral Home, 834 F.2d 930 (11th Cir. 1987). The NLRB's four criteria for aggregation are (1) interrelation of operations, (2) centralized control of labor relations, (3) common management and (4) common ownership or financial control. Id. at 933.
In the following sworn affidavit excerpt, Wittenberns stated that all of the corporations, with the exception of FLAC, Inc., were formed for the purpose of perpetuating LOA's business:
9. Franchise Consulting Corporation was formed with the intent of providing franchise consulting services to Lady of America franchisees, however, that business was never developed prior to dissolution of the corporation . . .
11. South Florida LOA ADI, Inc. was formed to collect advertising funds from franchisees . . .
13. National Media Consultant Corp. was formed to obtain advertising contributions from vendors to offset the cost of advertising for new franchisees.
14. Lady of America, Inc. is a Texas Corporation that performed a similar function to Lady of America Franchise Corporation, prior to the formation of Lady of America Franchise Corporation in 1992.
Supplemental Aff. of Wittenberns.
Based on these statements it is clear that the Defendants' operations are interrelated as the franchises were created to provide specific services for the furtherance of LOA. Further, Wittenherns' affidavit unambiguously states that he was the sole owner of all the named Defendant corporations and was an officer or president of each of these corporations:
2. I am a director and the president of Lady of America Franchise Corporation . . .
6. I was an officer and sole employee of FLAC, Inc., a Florida corporation, which was dissolved on September 22, 2000 . . .
8. I was an officer and sole employee of Franchise Consulting Corporation, a Florida corporation, which was dissolved on September 22, 2000 . . .
10. I was an officer and sole employee of South Florida LOA ADI, Inc., a Florida corporation which was dissolved on September 22, 2000 . . .
12. I was the president and sole employee of National Media Consultants Corp., a Florida corporation which was dissolved on October 16, 1998.Id.
Based on Wittenberns' affidavit at least five of the six corporate Defendants operated as one business unit under the NLRB test as they were owned, operated and managed by the same person, and formed for the purpose of perpetuating LOA's business endeavors. While this Court finds that the entities named as Defendants are sufficiently interrelated to warrant aggregation, the Plaintiff must show that the Defendants employed fifteen or more employees for each working day in twenty or more calendar weeks during the relevant period for this claim to fall under the purview of Title VII. 42 U.S.C. § 2000e(b); see also Scarfo v. Ginsberg, 175 F.3d 957 (11th Cir. 1999).
The Defendants argue that with the exception of LOA, the other entities only had one employee — Witterberns. Furthermore, Wittenberns' sworn affidavit stated that LOA had never employed fifteen or more employees for twenty weeks or more in a calendar year. Wittenberns also submitted LOA's Florida Division of Unemployment Compensation Employer's Quarterly Reports, from January 1, 1994 through April 1, 2000, which shows that LOA had never employed fifteen or more employees for twenty weeks or more in a calendar year. Although there are some documented instances of LOA employing more than fifteen employees, the same documents show that during these periods none of the employees worked for the requisite twenty calendar weeks. Quarterly reports submitted to a governmental agency, such as the Florida Division of Unemployment Compensation, are adequate evidence of the number of employees in a business entity. See DeShiro v. Branch, 1 F. Supp.2d 1357 (M.D. Fla. 1998). Accordingly, LOA's quarterly reports may be considered as evidence in determining that the Defendants, even when aggregated, do not fall under the purview of Title VII.
In the quarters ending on March 31, 1997 and June 30, 1997 the reports show that LOA had as many as seventeen, eighteen, or nineteen employees in some months. The "weeks worked" column, however, indicates that none of these employees worked for more than thirteen weeks which is far below Title VII's twenty calendar week requirement.
To rebut the Defendants argument that it did not have the requisite number of employees during the relevant time period, the Plaintiff's unsworn affidavit cites to excerpts from the 1996 and 1999 Bond's Franchise Guides. The Guide's "Disclaimer" states that it "is based on data submitted by the franchisers themselves". Plaintiff therefore claims that LOA submitted the data to the Guides which indicate that in 1996 and 1999 LOA had a corporate staff of twenty individuals.
Because Bond's Franchise Guide is not produced by the Defendants but rather by a third party publisher the Defendants argue that, absent any evidence that the information in the Guide was obtained from LOA employees or agents, it should be deemed as inadmissible hearsay. Further, the Plaintiff's affidavit fails to state that she has personal knowledge as to how the Guide derived LOA's employee statistics. No LOA employee or agent with authority to make statements to the Guide was identified by the Plaintiff. Therefore the Defendants argue that the Plaintiff's unsworn affidavit does not create a question of fact because the Plaintiff lacks personal knowledge of the information used in the Guide. See Murrell v. Bennett, 615 F.2d 306 (5th Cir. 1980) (statements in an affidavit that are unsupported by personal knowledge are not competent evidence to defeat summary judgement); see also Fed.R.Civ.P. 56(e).
The Defendants' argument asserting the inadmissibility of the Guide, in opposition to a summary judgment motion, is unpersuasive. Courts may consider inadmissible hearsay when determining whether material facts are at issue. See Church of Scientology Flag Serv. v. City of Clearwater, 2 F.3d 1514, 1530 (11th Cir. 1993) (holding that newspaper articles, "even if inadmissible at trial, were appropriately submitted by the non-moving party in opposition to the motion for summary judgment"); Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013, 1015 (11th Cir. 1986) (holding that the employer's assertion that an employee's letter, attached as an exhibit to a corporate representative's deposition, "is inadmissible hearsay does not undercut the existence of any material facts the letter may put into question").
Nevertheless, the Plaintiff's reliance on this publication is misplaced because it does not answer the dispositive question of whether there were more than fifteen employees for the requisite twenty calendar weeks. Consequently, the Guide does not controvert the Defendants' quarterly reports nor answer the question of whether the Defendants, viewed in the aggregate, had more than fifteen employees for the relevant twenty calendar weeks.
The Plaintiff further relies on her unsworn affidavit to allege that "[t]o the best of [her] recollection" more than fifteen individuals "worked for [LOA] during the time she was discriminated against." Simply because the Plaintiff remembers these individuals during her five (5) year employment span does not create a question of fact as to whether fifteen of the employees named worked during each day of the same twenty week period for each year the Plaintiff is claiming a violation of Title VII. As the fact-finder with the duty to weigh the evidence regarding subject matter jurisdiction, which does not implicate an element of the cause of action, this Court concludes that the Plaintiff has failed to make the required showing of jurisdiction. See Scarfo, 175 F.3d at 961.
Plf. Ex. A.
The jurisdictional analysis set forth above applies equally to the claims under Florida law in Counts VII and VIII. The Plaintiff's inability to establish subject matter jurisdiction for the Title VII claims is similarly fatal to her Fla. Stat. § 760.10 claims.
Having duly considered the motions, responses and pertinent parts of the record, and having heard oral arguments, it is
ORDERED AND ADJUDGED that the Defendants' Renewed Motion for Summary Judgment for Lack of Subject Matter Jurisdiction [D.E. 79] is GRANTED. Accordingly only Counts IV, V and VI under the Equal Pay Act remain.