Summary
denying motion to dismiss pursuant to Fed.R.Civ.P. 12(b) based on Da Silva
Summary of this case from Fernandez v. M L Milevoi Management, Inc.Opinion
No. 01 CV 2231 (ILG)
May 31, 2002
MEMORANDUM ORDER
Plaintiff Mary Rovira ("Rovira") commenced this action on April 10, 2001, alleging four causes of action against (i) her former employer, defendant New York Apparel Sales ("NYAS"), and (ii) Steve Forman ("Forman"), the sole-proprietor of NYAS. The first cause of action alleges that the defendants sexually harassed plaintiff, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The second, third and fourth causes of action — claiming negligent supervision, assault and constructive discharge — arise under state law.
NYAS and Forman now move to dismiss Rovira's claims. According to the defendants, the sexual harassment claim fails because NYAS does not have fifteen employees, a precondition to liability under Title VII. The defendants further argue that Rovira has failed to state a claim on each of her three state-law causes of action, and thus those claims also should be dismissed. For the reasons set forth below, the defendants' motion is denied.
BACKGROUND
The facts, as can be gleaned from Rovira's cursory complaint, are as follows. Rovira is a former employee of NYAS. (See Compl. ¶ 1.) Commencing on or about June 15, 2000, and continuing thereafter, "the defendants, their agents, servants and employees, sexually harassed" Rovira. (Id. ¶ 6.) Rovira also alleges that, as a result of the purported sexual harassment. (i) NYAS was "careless[,] reckless and negligent in the selection, investigation, hiring, training, supervision and direction of their [sic] employees" (Id. ¶ 13), and (ii) her resignation, which purportedly resulted from her desire to avoid being sexually harassed, amounted to constructive discharge (id. ¶¶ 19-20). Finally, Rovira alleges that Forman assaulted her. (Id. ¶ 16.) The, complaint however, is completely devoid of any details regarding the alleged assault or sexual harassment.
The defendants now move to dismiss the complaint for lack of subject-matter jurisdiction, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. According to the defendants, NYAS is a sole proprietorship with only one employee. (See Rodriguez-Nunci Aff. ¶ 4.) Accordingly, because Title VII requires an organization to employ at least fifteen people in order to fall within the statutory definition of an "employer," NYAS cannot be liable for sexual harassment under the statute, and thus the sexual harassment claim should be dismissed. (See Def. Mem. at 3-6.) With respect to Rovira's state-law claims, the defendants make the following argument:
Plaintiff invokes pendant [sic] jurisdiction in her complaint to allow this Court to consider claims arising under state law. Other than the invocation of pendant [sic] state claims by the Plaintiff, the complaint is completely devoid of any such claims. Thus, no state claims are asserted or articulated in plaintiffs complaint. Therefore, now that discovery is completed and the plaintiff has failed to amend her complaint to include and/or articulate said alleged state claims, plaintiffs assertion of pendant [sic] jurisdiction must be construed as waived and the plaintiff must be precluded from allowing this Court to exercise any type of supplemental jurisdiction.
(Id. at 6.)
In opposition to the defendants' motion. Rovira appears to concede that the sexual harassment claim must be dismissed, because NYAS does not employee fifteen people. (See Pl. Opp. at unnumbered page 1 ("Although defendant [sic] may have established cause for dismissal of the plaintiffs Title VII claim, there are still two viable state causes of action . . .").) Rovira does argue, however, that the Court should not dismiss her state-law claims. Apparently misconstruing the defendants' motion vis-a-vis those claims as a motion to dismiss under 28 U.S.C. § 1367(c)(3), Rovira asserts that, even if the Court dismisses her Title VII claim, it has the discretion to consider her pendent state-law claims. Rovira contends that the procedural history of this case renders it appropriate for the Court to exercise that discretion here, even after the Title VII claim is dismissed. (Id. at unnumbered pages 2-3.)
Curiously, Rovira nowhere mentions her fourth cause of action — the claim for constructive discharge — in her Memorandum of Law, instead insisting that, even if the Court dismisses the Title VII claim, "there are still two causes of action contained in the complaint which are viable under the law of the State of New York," namely, her second and third claims. (Pl. Opp. at unnumbered page 2 (emphasis added).) Furthermore, Rovira oddly describes her third claim as seeking redress for "the intentional infliction of mental emotional distress" (id.), even though that claim sounds in assault. The Court's resolution of the current motion, however, is the same regardless of whether this claim is construed as one for assault or one for intentional infliction of emotional distress.
Section 1367(c)(3), part of the supplemental jurisdiction statute, permits a court to decline to exercise supplemental jurisdiction over state-law claims once it has dismissed related federal claims.
DISCUSSION
I. The defendants' motion should be construed as a motion for summary judgment vis-a-vis the Title VII claim
Before addressing the merits of the defendants' motion, the Court must first address a procedural matter. The defendants have moved to dismiss Rovira's Title VII claim for lack of subject matter jurisdiction under Rule 12(b)(1). However, the Second Circuit recently held that the fifteen-employee requirement of Title VII is not jurisdictional; rather, that requirement goes to the merits of a Title VII claim. See Da Silva v. Kinsho Int'l Corp., 229 F.3d 358, 365 (2d Cir. 2000). In Da Silva, the district court dismissed a Title VII claim because the defendant did not satisfy Title VII's fifteen-employee requirement, but the court exercised jurisdiction over a number of related state-law claims, reasoning that the fifteen-employee requirement was not jurisdictional. Therefore, the dismissal of the Title VII claim did not divest the court of supplemental jurisdiction over the related state-law claims. No. 97 CIV. 9030, 2000 WL 8247, at *5-6 (S.D.N.Y. Jan. 4, 2000). The Second Circuit affirmed, ruling that the plaintiffs failure to demonstrate that the defendant satisfied the fifteen-employee requirement "is not a ground for dismissing for lack of subject matter jurisdiction or even for failure to state a claim; it is a ground for defeating her federal claim on the merits." 229 F.3d at 365.
Had the district court determined that the dismissal was jurisdictional, it could not have exercised supplemental jurisdiction over the related state-law claims absent some independent basis (e.g., diversity jurisdiction) to entertain those claims. See Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1188 (2d Cir. 1996) ("since a court must have original jurisdiction in order to exercise supplemental jurisdiction, a dismissal pursuant to Rule 12(b)(1) precludes a district court from exercising supplemental jurisdiction over related state claims").
Accordingly, the Court will not construe the defendants' motion with respect to the Title VII claim as a motion to dismiss for lack of subject matter jurisdiction. Rather, the Court construes the motion as a motion for summary judgment.
The Court also will not construe the motion as a motion to dismiss under Rule 12(b)(6), for two reasons. First, in Da Silva, the Second Circuit stated that the fifteen-employee requirement of Title VII "is not a ground for dismissing for . . . failure to state a claim," 229 F.3d at 365; a motion under Rule 12(b)(6) is exactly that type of motion, i.e., a motion to dismiss for failure to state a claim. Second, the defendants have submitted evidence outside the pleadings in support of their argument with regard to the fifteen-employee issue, and Rovira has had an opportunity to present evidence in response thereto. Accordingly, it is appropriate to consider the material outside the pleadings and consider the motion as a motion for summary judgment, instead of a motion to dismiss for failure to state a claim. See, e.g., Fonte v. Bd. of Managers of Cont'l Towers Condo., 848 F.2d 24, 25 (2d Cir. 1988); D'Jamoos v. Griffith, No. 00 CV 1361, 2001 WL 1328592, at *4 (E.D.N.Y. Aug. 1, 2001) (citation omitted).
II. Standard for Summary Judgment
Summary judgment "shall be rendered forthwith if the pleadings, depositions . . . together with the affidavits . . . 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 "moving party is entitled to judgment as a matter of law [if] the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985) (internal quotation marks and citations omitted). In deciding a summary judgment motion, a court need not resolve disputed issues of fact, but need only determine whether there is any genuine issue to be tried. Eastman Mach. Co. v. United States, 841 F.2d 469, 473 (2d Cir. 1988). A disputed fact is material only if it might affect the outcome of the suit under the governing law. A genuine factual issue exists if there is sufficient evidence favoring the nonmovant such that a reasonable jury could return a verdict in her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-249 (1986). "In assessing the record to determine whether there is a genuine issue of fact, the court is required to draw all inferences in favor of the party against whom summary judgment is sought." Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989).
III. The motion must be denied vis-a-vis the Title VII claim
The defendants argue that the Title VII claim must be dismissed because NYAS does not satisfy the fifteen-employee requirement in Title VII. That requirement is set out in 42 U.S.C. § 2000e(b), which states that an entity is an "employer" under Title VII only if it has "fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year. . . ." The defendants argue that there is no doubt that NYAS does not satisfy this standard, and thus the Title VII claim fails.
The Court notes that Rovira's sexual harassment claim is alleged against both NYAS and Forman. However, the Second Circuit has repeatedly held that individuals cannot be liable under Title VII. See Weeks v. N.Y. State (Div. of Parole), 273 F.3d 76, 81 n. 1 (2d Cir. 2001) ("individuals are not proper Title VII defendants") (citation omitted); Tomka v. Seiler, 66 F.3d 1295, 1313 (2d Cir. 1995), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) ("individual defendants with supervisory control over a plaintiff may not be held personally liable under Title VII"). Thus, it appears appropriate to dismiss the sexual harassment claim as against Forman. However, sua sponte dismissals are appropriate only after the plaintiff is given notice and an opportunity to be heard. See Wachtler v. County of Herkimer, 35 F.3d 77, 82 (2d Cir. 1994). Accordingly, Rovira is directed to show cause, on or before June 21, 2002, why her Title VII claim against Forman should not be dismissed.
The "current" calendar year for purposes of Section 2000e(b) is the year in which the allegedly discriminatory practice occurred. See, e.g., Komorowski v. Townline Mini-Mart Rest., 162 F.3d 962, 966 (7th Cir. 1998); Dumas v. Town of Mount Vernon, Ala., 612 F.2d 974, 979 n. 4 (5th Cir. 1980), overruled on other grounds by Larkin v. Pullman-Standard Div., Pullman, Inc., 854 F.2d 1549 (11th Cir. 1988); Vick v. Foote, Inc., 898 F. Supp. 330, 332 (E.D. Va. 1995), aff'd, 82 F.3d 411 (4th Cir. 1996); see also Robins v. Max Mara, U.S.A., Inc., 914 F. Supp. 1006, 1008 n. 2 (S.D.N.Y. 1996), abrogated on other grounds by Morelli v. Cedel, 141 F.3d 39 (2d Cir. 1998) (reaching same conclusion in ADEA case). Here, that year is 2000.
While the defendants may indeed be correct, the Court nevertheless is compelled to deny the motion. Amazingly, despite the fact that the defendants quote the operative language from Section 2000e(b) — defining an employer as an entity having fifteen or more employees for at least twenty weeks in a given year — the defendants have utterly failed to proffer any evidence from which the Court can conclude that NYAS did not employee fifteen or more people for twenty or more weeks in either 2000 or 1999. Indeed, the only evidence proffered by the defendants regarding NYAS's number of employees concerns the period of time immediately before, during, and immediately after Rovira's employment with NYAS. (See Forman Dep. p. 5, 11. 16-21 ("Q: Are there any other employees or were there any other employees back in, say, June to August of 2000 besides yourself and Mary Rovira? A: No.") (emphasis added); Rovira Dep. p. 7, 11. 16-19 ("Q: At the time you worked for Mr. Foreman [sic], who else worked there? A: At the time that I worked for Mr. Foreman [sic], it was just me and him, at the time.") (emphasis added).) The defendants have not proffered, for example, employment records demonstrating that NYAS did not employ fifteen people for twenty or more weeks in 2000 or 1999, nor have the defendants proffered an affidavit from Forman indicating the same. The defendants' evidence merely shows that, for a period of approximately twelve weeks in 2000, NYAS employed only two people; the Court cannot conclude from this evidence that NYAS did not, for example, employ 50 people for the entire year of 1999, thereby falling within Title VII's reach. Thus, the defendants simply have not satisfied their burden of proving that there is no "genuine issue" as to this "material fact." Adickes v. S.H. Kress Co., 398 U.S. 144, 159 (1970); Amaker v. Foley, 274 F.3d 677, 681 (2d Cir. 2001); Fed.R.Civ.P. 56(c). Accordingly, their motion must be denied.
Two points bear mentioning. First, the defendants place great emphasis on the fact that NYAS is a "sole proprietorship," and that Forman is NYAS's sole proprietor. However, this fact, standing alone, does not mean that NYAS cannot have more than fifteen employees. A sole proprietorship is simply "[a] business in which one person owns all the assets, owes all the liabilities, and operates in his or her personal capacity." Black's Law Dictionary 1398 (7th ed. 1999). There is no reason a sole proprietorship cannot employ more than fifteen people. Second, one portion of the Affidavit of Wilmer A. Rodriguez Nunci, the defendants' attorney, supports NYAS's argument that it has never had fifteen employees. (See Nunci Aff. ¶ 14 ("It is undisputed that defendant Forman had less [sic] than 15 employees for any period before, during or after plaintiffs 6 to 7 week term of employment.").) This assertion, however, does not appear to be based on personal knowledge, and contains no citation to evidence in the record. Accordingly, it cannot be considered in evaluating the defendants' motion. see, e.g., Kamen v. Am. Tel. Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986); Omnipoint Communications, Inc. v. Common Council of City of Peekskill, ___ F. Supp.2d ___, 2002 WL 999310, at *2 (S.D.N.Y. May 14, 2002) ("An attorney's affidavit which is not based on personal knowledge of the relevant facts should be accorded no weight on a motion for summary judgment.") (citing Wyler v. United States, 725 F.2d 156, 160 (2d Cir. 1983)).
IV. The motion to dismiss the state-law claims also must be denied
With respect to Rovira's pendent state-law claims, the defendants assert that "[o]ther than the invocation of pendant [sic] state claims by the Plaintiff the complaint is completely devoid of any such claims. Thus, no state claims are asserted or articulated in plaintiffs complaint. Therefore, now that discovery is completed and the plaintiff has failed to amend her complaint to include and/or articulate said alleged state claims, plaintiffs assertion of pendant [sic] jurisdiction must be construed as waived and the plaintiff must be precluded from allowing this Court to exercise any type of supplemental jurisdiction." (Def Mem. at 6.) This argument is frivolous. The complaint does indeed set out three state-law causes of action, namely, a claim for negligent supervision (see Compl. ¶¶ 12-14), a claim for assault (see id. ¶¶ 15-17), and a claim for constructive discharge (see id. ¶¶ 18-21). Regardless of the defendants' feelings regarding the potential merit of these claims, they are, in fact, alleged in the complaint. Accordingly, as the defendants have asserted no other reason why these claims ought to be dismissed, the defendants' motion to dismiss these claims must be denied.
Furthermore, to the extent Rovira is correct that the defendants' motion with respect to these claims actually is a request that the Court decline to exercise supplemental jurisdiction once it dismisses the Title VII claim see 28 U.S.C. § 1367(c)(3), the motion fails for an obvious reason: the defendants' motion vis-a-vis the Title VII claim has been denied, and hence exercising supplemental jurisdiction over the related, state-law claims is proper.