Opinion
00 Civ. 1568 (JGK)
June 25, 2001
OPINION AND ORDER
Plaintiff Jacquelyn K. Schade ("Schade"), who appears pro se, brings this action against Coty Inc. ("Coty"), Lancaster Worldwide ("Lancaster"), and Yue-Sai Kan Cosmetics Ltd. (USA) LP ("YSK Partnership"). The plaintiff alleges that the defendants discriminated against her on the basis of her age, national origin, race, color and sex and retaliated against her in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et. seq. ("ADEA"), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") Defendants Coty and YSK-Partnership now move for summary judgment pursuant to Fed.R.Civ.P. 56.
The plaintiff alleges that Lancaster is now doing business as Coty Inc., Yue-Sai Kan Cosmetics Ltd. (USA) LP. (Second Am. Compl. ¶ 5.b.)
For purposes of this motion, except where otherwise indicated, defendants Coty and YSK-Partnership will be referred to collectively as the "YSK defendants."
I.
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "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 that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317(1986); Gallo v. Prudential Residential Servs. Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994). "The trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution."Gallo, 22 F.3d at 1224. The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts which are material and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248(1986).In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus.' Co. v. Zenith Radio Corp., 475 U.S. 574, 587(1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655(1962)); see also Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). If the moving party meets its burden, the burden shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The nonmoving party must produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993); see also Scotto v. Almenas, 143 F.3d 105, 11415 (2d Cir. 1998) (collecting cases).
Where, as here, a pro se litigant is involved, although the same standards for dismissal apply, a court should give the pro se litigant special latitude in responding to a summary judgment motion. See McPherson v. Coombe, 174 F.3d 276, 279 (2d Cir. 1999) (courts "read the pleadings of a pro se plaintiff liberally and interpret them 'to raise the strongest arguments that they suggest'") (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). In particular, the pro se party must be given express notice of the consequences of failing to respond appropriately to a motion for summary judgment. See McPherson, 174 F.3d at 281; Vital v. Interfaith Med. Ctr., 168 F.3d 615, 62021 (2d Cir. 1999);Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996); Ruotolo v. IRS, 28 F.3d 6, 8 (2d Cir. 1994); Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988). In this case, by Notice to Pro Se Litigant Opposing Motion for Summary Judgment dated October 16, 2000, the plaintiff was advised of the procedures for responding to a motion for summary judgment, including the requirement to submit a response to the defendant's Rule 56.1 Statement and to submit counter-evidence and the plaintiff was provided with a copy of Rule 56. The plaintiff thereafter submitted a timely response to the motion, together with supporting affirmations.
II.
There is no dispute as to the following facts except where specifically noted. As of March 1996, the plaintiff was working in China and was an employee of Yue-Sai Kan Cosmetics (Shenzen) Ltd. ("YSK-China"), a Chinese corporation. (Second Am. Compl. ¶ 5.e.) Defendant Coty is a Delaware corporation with headquarters located at 1325 Avenue of the Americas, New York, New York. Coty manufactures and sells fragrances and cosmetics on a worldwide basis. (Second Am. Compl. ¶ 5.c; Affidavit of Stephen D. Ford, sworn to October 12, 2000 ("Ford Aff."), ¶ 1.)
On or about May 14, 1996, Coty became a general partner and acquired a majority interest in YSK-Partnership. (Second Am. Compl. ¶ 5.d; Ford Aff. ¶ 2.) YSK-Partnership owns 100% of the outstanding stock, YSK-China. (Second Am. Compl. ¶ 5.d; Ford Aff. ¶ 2.) YSK-Partnership, however, alleges that it acts as a holding entity and is not involved in any of the operations of YSK-China. (Ford Aff. ¶ 3.) After the acquisition of YSK-Partnership by Coty, the plaintiff was provided a letter dated June 11, 1996, offering the plaintiff the position of "Director Marketing Service" of YSK-China based in Shanghai, China, effective June 1, 1996. (Declaration of Patrick Bourgeois dated October 12, 2000 ("Bourgeois Decl."), ¶ 4 Ex. A.) The letter stated that the plaintiff was an employee of Lancaster and was seconded to YSK-China in China. (Bourgeois Decl. Ex. A.)
Prior to June 30, 2000, Lancaster Group GmbH, a German corporation and an affiliate of Coty, owned Lancaster. On June 30, 2000, Coty purchased all of the outstanding stock of Lancaster from Lancaster Group GmbH. Lancaster, with limited exceptions, has been an inactive corporation since the second half of 1996. (Ford Aff. ¶ 4.) In or about August 1996, when Lancaster became inactive, many of the employees on the Lancaster payroll, including the plaintiff, were transferred to Coty's payroll. (Affidavit of Barbara Taylor, sworn to October 11, 2000 ("Taylor Aff."), at ¶ 1; Affidavit of Robert J. Tracy, sworn to October 13, 2000 ("Tracy Aff."), ¶ 7 Ex. F.). The plaintiff received her last check from Lancaster on August 15, 1996, and her first paycheck from Coty on August 29, 1996, after the termination of the plaintiff's employment. (Taylor Aff. at ¶ 1; Tracy Aff. at ¶ 7 Ex. F.) Although the plaintiff was on the Lancaster payroll and, for a brief period of time, on the Coty payroll, the YSK defendants allege that at all times her job responsibilities were for YSK-China and that she was supervised by YSK-China executives. (Borgeois Decl. ¶ 5; Taylor Aff. ¶ 5.) The plaintiff alleges that her job responsibilities were for the YSK defendants, that she reported to and was supervised by executives of the YSK defendants and that she was an employee of the YSK defendants. (Second Am. Compl. ¶ 5.h; Affirmation of Jacquelyn K. Schade, dated October 27, 2000 ("Schade Aff."), ¶ 3.)
The plaintiff alleges that she was subjected to a number of discriminatory acts in her employment from about May 1996 to August 3, 1996. (Second Am. Compl. ¶ 7.) In particular, the plaintiff alleges that she was discriminated against when: (1) the plaintiff's age and photograph were published in a company employee directory distributed to employees on or about May 31, 1996; (2) the plaintiff's immediate supervisor, Kit Lin Fung, in or about July 31, 1996, told her at a meeting that the plaintiff "couldn't possibly know as much about Chinese Advertising as a Chinese Man;" and (3) Ms. Fung, in or about August 1, 1996, told the plaintiff that since the plaintiff was not Chinese, the plaintiff could not be objective with respect to determining her staff's bonus criteria. (Second Am. Compl. ¶ 13-18.) The plaintiff also asserts that she was unlawfully terminated on August 3, 1996, after she complained of the alleged discrimination to Patrick Bourgeois ("Bourgeois"), whom she alleges was the president of YSK-Partnership at the time. (Second Am. Compl. ¶ 21.) The YSK defendants allege that at the time Bourgeois terminated the plaintiff, Bourgeois was the Chief Executive Officer of YSK-China and that the plaintiff's termination was due to her poor performance and behavior. (Bourgeois Decl. ¶¶ 1, 8-14.)
On or about November 19, 1996, the plaintiff filed a pro se discrimination charge with the New York State Division of Human Rights ("NYSDHR") and the United States Equal Employment Opportunity Commission ("EEOC") alleging discrimination on the basis of age, sex, national origin, and retaliation. (Tracy Aff. Ex. A.) The plaintiff identified Coty and Lancaster as respondents. (Tracy Aff. Ex. A.) After investigating the plaintiff's charges, the EEOC was unable to conclude, based upon its investigations that the information obtained established statutory violations and it issued a right to sue letter dated January 14, 2000. (Tracy Aff. Ex. C.) The plaintiff then filed her original Complaint in this action on February 29, 2000. The plaintiff filed an Amended Complaint on March 16, 2000 and a Second Amended Complaint on July 10, 2000.
Following a pre-trial conference on August 30, 2000, Magistrate Judge Dolinger ordered that if the defendants intended to assert defenses based on the alleged failure of the plaintiff to name the correct corporate parties in her EEOC charge or in her complaint the defendants were to produce to the plaintiff by September 29, 2000, all documents reflecting the corporate relationships among the defendants since 1996 and any other documents in their possession pertinent to such a defense. See Magistrate Judge Dolinger's Order dated September 6, 2000. After serving the plaintiff the relevant documents, the YSK defendants filed the present motion.
III.
YSK-Partnership moves for summary judgment on the grounds that it cannot be named a defendant in this action because the plaintiff failed to name YSK-Partnership as a respondent in her EEOC complaint.
Before commencing an action pursuant to the ADEA or Title VII, a plaintiff must first file a complaint with the EEOC or an authorized state agency. See 29 U.S.C. § 626(d); 42 U.S.C. § 2000e-5(e), 2000e-5(f)(1). The object of this filing requirement is: (1) to provide notice to "the charged party of the alleged violation" and (2) to facilitate the "primary goal of securing voluntary compliance." Vital, 168 F.3d at 619 (quotations omitted); see also Gallagher v. Int'l Brotherhood of Elec. Workers, 127 F. Supp.2d 139, 143 (N.D.N.Y. 2000); Rivera v. Puerto Rican Home Attendants Servs., Inc., 922 F. Supp. 943, 946 (S.D.N.Y. 1996).
In general, a party not named as a respondent in the EEOC charge may not later be named as a defendant in a civil suit under the ADEA or Title VII. See Vital, 168 F.3d at 619; Johnson v. Palma, 931 F.2d 203, 209 (2d Cir. 1991); Gagliardi v. Universal Outdoor Holdings, Inc., No. 00 Civ. 6433, 2001 WL 332976, at *4 (S.D.N.Y. Apr. 2, 2001); Harrington v. Hudson Sheraton Corp., 2 F. Supp.2d 475, 477 (S.D.N.Y. 1998); Sharkey v. Lasmo (AUL Ltd.), 906 F. Supp. 949, 954 (S.D.N.Y. 1995). However, "[b]ecause these charges generally are filed by parties not versed in the, vagaries of Title VII [or the ADEA] and its jurisdictional and pleading requirements," courts have taken a "'flexible stance in interpreting Title VII's [or the ADEA's] procedural provisions.'" Johnson, 931 F.2d at 209 (quoting Egelston v. State University College at Geneseo, 535 F.2d 752, 754-55 (2d Cir. 1976)). Accordingly, there is an "identity of interest" exception to the general rule that a defendant must be named in the EEOC complaint, which permits a Title VII or ADEA action to proceed against an unnamed party "where there is a clear identity of interest between the unnamed defendant and the party named in the administrative charge." Id. (citations omitted); see also Vital, 168 F.3d at 619. To determine whether there is an identity of interest between the named and unnamed party, a court must consider the following four factors:
1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; 2) whether, under the circumstances, the interests of a named [party] are so similar as the unnamed party's that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; 3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; 4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party.Johnson, 931 F.2d at 209-10 (quoting Glus v. G.C. Murphy Co., 562 F.2d 880, 888 (3d Cir. 1977)). These factors are not to be applied mechanically, and no single factor is determinable. Melendez v. Int'l Serv. Systems, Inc., No. 97 Civ. 8051, 1999 WL 187071, at *3 (S.D.N.Y. Apr. 6, 1999);Dortz v. City of New York, 904 F. Supp. 127, 143 (S.D.N.Y. 1995).
In this case, the plaintiff does not dispute that the named respondents in her EEOC charge were Coty and Lancaster and that YSK-Partnership was not named in her EEOC charge. Applying the four factors set forth inJohnson, there is a sufficient identity of interests between the parties named in the plaintiff's EEOC complaint and YSK-Partnership to avoid dismissal of the plaintiff's Second Amended Complaint against YSK-Partnership. With respect to the first factor, the plaintiff cannot argue that she did not or could not ascertain YSK-Partnership's existence or what role YSK-Partnership had in the alleged discriminatory conduct at the time of her initial EEOC filing. The second factor weighs in the plaintiff's favor because YSK-Partnership's interests were similar to those of the named respondents. Indeed, as the owner of a majority interest in YSK-Partnership, Coty had an incentive to represent the interests of YSK-Partnership for purposes of conciliation and compliance. With Respect to the third factor, YSK-Partnership has not provided any evidence of actual prejudice as a result of its absence from the EEOC proceedings. At argument on the motion counsel for YSK-Partnership conceded that the EEOC did not conduct an investigation and did not make any attempts at conciliation with respect to the plaintiff's EEOC charge. In general, where the EEOC makes no investigatory or conciliatory efforts, courts will find that an unnamed party has not suffered any prejudice. See, e.g., Melendez, 1999 WL 187071, at *5;Brodie v. New York at City Transit Authority, No. 98 Civ. 6813, 1998 WL 599710, at *7 (S.D.N.Y. Sept. 10, 1998); Rivera, 922 F. Supp. at 948. In addition, YSK-Partnership admits it knew of the plaintiff's EEOC charges against Coty and Lancaster (Ford Aff. ¶ 7.) and thus, because it was aware of the corporate relationships between Coty, Lancaster, YSK-China and itself, had notice that it might be subject to suit. The fourth factor weighs in favor of YSK-Partnership because there is no evidence that YSK-Partnership represented to the plaintiff that the plaintiff's relationship with it would be through either of the named parties.
In weighing the four factors together, considering the evidence in the light most favorable to the plaintiff, and particularly in light of the notice that YSK-Partnership had of the EEOC proceeding and the lack of any prejudice, there is a sufficient identity of interest between the respondents named in the plaintiff's EEOC charge and YSK-Partnership. Therefore, the plaintiff's failure to name YSK-Partnership in her EEOC charge does not bar the plaintiff's claims against YSK-Partnership.
IV.
The ADEA and Title VII prohibit discriminatory employment practices by an "employer." The YSK defendants argue that they are entitled to summary judgment dismissing the plaintiff's claims against them because neither Coty nor YSK-Partnership was the plaintiff's employer. They contend that the plaintiff worked for YSK-China and that the YSK defendants were not involved in any of the alleged discriminatory actions at issue in the case. The plaintiff was terminated on August 3, 1996, before she ever received a paycheck from Coty, and the YSK defendants argue that all employment decisions with respect to the plaintiff were made by YSK-China personnel.
The ADEA defines "employer" as "a person engaged in an industry affecting commerce, who has twenty or more employees for each working day. . . . The term also means . . . any agent of such a person. . . ." 29 U.S.C. § 630(b). Title VII defines "employer" as "a person engaged in an industry affecting commerce, who has fifteen or more employees for each working day . . . and any agent of such a person. . . ." 42 U.S.C. § 2000e(b).
To the extent that Lancaster could be considered the plaintiff's employer, the plaintiff has never served Lancaster and Lancaster is not a party to this motion.
Under the doctrine of limited liability, a corporation is permitted "to organize in ways so as to isolate liabilities among separate entities."Murray v. Miner, 74 F.3d 402, 404 (2d Cir. 1996) (citing Frank v. U.S. West. Inc., 3 F.3d 1357, 1362 n. 2 (10th Cir. 1993)); see also Meng v. Ipanema Shoe Corp., 73 F. Supp.2d 392, 402 (S.D.N.Y. 1999); Balut v. Loral Electronic Systems, 988 F. Supp. 339, 344 (S.D.N.Y. 1997), aff'd, 166 F.3d 1199 (2d Cir. 1998). Accordingly, "a corporate entity is liable for the acts of a separate, related entity only under extraordinary circumstances." Murray, 74 F.3d at 404 (citation omitted). Similarly, "the law only treats the employees of a corporate entity as the employees of a related entity under extraordinary circumstances." Id. (citation omitted); see also Duffy v. Drake Beam Morin, Harcourt General, Inc., NO. 96 Civ. 5606, 1998 WL 252063, at *4 (S.D.N.Y. May 19, 1998); Balut, 988 F. Supp. at 344.
The exception to this rule, termed the "single employer doctrine," is only appropriate where there is "sufficient indicia of an interrelationship between the immediate corporate employer and the affiliated corporation to justify the belief on the part of an aggrieved employee that the affiliated corporation is jointly responsible for the acts of the immediate employer." Armbruster v. Quinn, 711 F.2d 1332, 1337 (6th Cir. 1983); see also Meng, 73 F. Supp.2d at 402; Herman v. Blockbuster Entertainment Group, 18 F. Supp.2d 304, 308 (S.D.N.Y. 1998),aff'd, 182 F.3d 899 (2d Cir.), cert. denied, 528 U.S. 1020 (1999). While this test was originally developed to determine whether two entities constituted a single employer in the context of labor disputes, it has been applied to determine whether a corporation which is affiliated with a corporate employer should be held liable as an "employer" under Title VII or the ADEA. See Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1240 (2d Cir. 1995).
The standards for establishing the employer-employee relationship under the ADEA and Title VII are the same. See, e.g., Duffy, 1998 WL 252063, at 4 (applying four-part test from Cook to an ADEA claim);Balut, 988 F. Supp. at 344 (same).
For the purpose of determining whether a corporation affiliated with an actual employer may be held liable as an "employer" under the "single employer doctrine," the Court of Appeals for the Second Circuit has adopted a "flexible four-part test aimed at determining the degree of interrelationship between the two entities." Cook, 69 F.3d at 1240. Under that test:
A parent and subsidiary cannot be found to represent a single, integrated enterprise in the absence of evidence of (1) interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control.Id., (quotation omitted). In assessing these factors for the purpose of determining whether an affiliated corporation is an "employer" for purposes of liability under Title VII or the ADEA, a court should focus its analysis on the second factor: centralized control of labor relations. See id. at 1241 (citing Trevino v. Celanese Corp., 701 F.2d 397, 404 (5th Cir. 1983)). Thus, the critical question to be answered is: "What entity made the final decisions regarding employment matters related to the person claiming discrimination?'" Cook, 69 F.3d at 1240 (internal quotation omitted).
Applying the single employer doctrine to the evidence in this case demonstrate that YSK-Partnership and Coty may not be held liable under Title VII and the ADEA as the plaintiff's "employer."
A.
In determining whether a sufficient interrelation of operation exists, a court should consider factors such as:
(1) whether the parent was involved directly in the subsidiary's daily decisions relating to production, distribution, marketing, and advertising; (2) whether the two entities shared employees, services, records and equipment; (3) whether the entities commingled bank accounts, accounts receivable, inventories, and credit lines; (4) whether the parent maintained the subsidiary's books; (5) whether the parent issued the subsidiary's paychecks; and (6) whether the parent prepared and filed the subsidiary's tax returns.Herman, 18 F. Supp.2d at 309 (citing Lusk v. Foxmeyer Health Corp., 129 F.3d 773, 778 (5th Cir. 1997)); see also Meng, 73 F. Supp.2d at 402-03.
During the relevant time period, the plaintiff was employed as the "Director Marketing Service" of YSK-China based in Shanghai, China. Nothing in the record suggests that YSK-Partnership or Coty and YSK-China had an interrelation of operations sufficient to treat the entities as a single employer. YSK-Partnership was merely a holding company and did not have any employees nor was it involved in any of YSK-China's operations. (Bourgeois Decl. ¶ 3; Ford Aff. ¶ 3.) Indeed, the plaintiff has presented no evidence with respect to YSK-Partnership on the issue of whether there is an interrelationship between YSK-Partnership and YSK-China under the single employer doctrine. During the relevant time period, Coty was not involved directly in YSK-China's day-to-day decisions relating to production, distribution, marketing and advertising. (Bourgeois Decl. ¶ 6; Reply Affidavit of Patrick Bourgeois sworn to November 2, 2000 ("Bourgeois Reply Decl."), ¶¶ 4-5; Ford Aff ¶ 5.) In addition, YSK-China and Coty did not commingle bank accounts, accounts receivable, inventories, or credit lines, nor did Coty prepare and file any tax returns for YSK-China during the plaintiff's time of employment at YSK-China. (Bourgeois Decl. ¶ 6; Ford Aff ¶ 5.) Moreover, although the plaintiff became a nominal employee of Lancaster in June 1996 and received paychecks from Lancaster through August, Lancaster charged back those payroll amounts to YSK-China. (Bourgeois Reply Decl. ¶ 7.) While the plaintiff was transferred to Coty's payroll in August 1996, she received only one paycheck from the Coty payroll and she received that paycheck after her termination on August 3, 1996. (Tracy Aff. Ex. F.)
In arguing that there is an interrelation of operations between Coty and YSK-China, the plaintiff points to an August 18, 2000 press release which states: "Coty, Inc. formed an alliance with Yue-Sai Kan Cosmetics in 1996 and operates the company through the Lancaster Group division. Coty, Inc.'s state-of-the-art manufacturing facility in Pudong, China — dedicated to the production of Yue-Sai, has an annual production capacity of over 60 million units." (Pl.'s Ex. 5). Although Coty formed an alliance with YSK-China in 1996, in that it became a general partner in YSK-Partnership and YSK-Partnership owned 100% of YSK-China's stock, the issue is the interrelationship of the entities during the time period the plaintiff alleges that the discriminatory acts occurred, namely May 1996 through August 1996. As discussed above, the evidence establishes without genuine dispute that during the relevant period YSK-China and Coty did not have an interrelation of operations such that they could be considered a single employer. The fact that since August 1996, there may have been more coordination between Coty and YSK-China (Bourgeois Reply Aff. ¶ 9; Pl.'s Ex. 5) is thus not relevant. Therefore, viewing the evidence in the light most favorable to the plaintiff, there were no interrelated operations between the YSK defendants and YSK-China.
The evidence also indicates that in 1996 Coty did not have a manufacturing facility in China and that the manufacturing facility mentioned in the press release referred to a factory built in 1998, after the plaintiff's termination in August 1996. (Bourgeois Reply Aff. ¶ 6.)
B.
With respect to control over labor relations, relevant factors include whether the subsidiary has a separate human resource department, whether the subsidiary "establishes its own policies and makes it own decisions as to the hiring, discipline, and termination of its employees," Duffy, 1998 WL 252063, at *4, whether employment applications are sent to the parent, whether the subsidiary must clear all major employment decisions with the parent, Cook, 69 F.3d at 1241, and whether the parent routinely shifts employees between the two companies. Johnson v. Flowers Industries. Inc., 814 F.2d 978, 981 (4th Cir. 1987); see also Meng, 73 F. Supp.2d at 403. The critical issue in this inquiry remains whether the affiliated corporation that the plaintiff seeks to hold liable as an employer "made the final decisions regarding employment matters related to the person claiming discrimination." Cook, 69 F.3d at 1240.
There is no evidence indicating that either YSK-Partnership or Coty was involved in the alleged discriminatory conduct, including the ultimate decision to terminate the plaintiff's employment. It is uncontroverted that, YSK-China had its own human resources department, its own employment policies, and made its own decisions as to hiring, discipline and firing of employees. (Bourgeois Decl. ¶ 7; Taylor Aff. ¶ 3.) Coty and YSK-China, at the time of the plaintiff's employment did not routinely shift employees between the two companies. (Bourgeois Decl. ¶ 7; Taylor Aff. ¶ 3; Ford Aff. ¶ 6.) Although during the relevant time period the plaintiff was on Lancaster's payroll, and for a brief period of time on Coty's payroll after her termination, the defendants have established that the plaintiff's job responsibilities were for YSK-China, she reported to, and was supervised by, YSK-China executives and any decisions with respect to the plaintiff's working conditions and termination were made by officers of YSK-China and not employees of Coty or YSK-Partnership. (Bourgeois Decl. ¶¶ 5, 7; Taylor Aff. ¶ 5; Ford Aff. ¶ 8 Bourgeois Reply Decl. ¶ 9.)
Moreover, the defendants have established that the allegedly discriminatory acts to which the plaintiff claims she was subjected all occurred at the hands of YSK-China employees and did not involve employees of Coty or YSK-Partnership. The employee directory that the plaintiff alleges discriminatorily included her picture and age was prepared and distributed by YSK-China prior to Coty's acquisition of the YSK-Partnership. (Bourgeois Decl. ¶ 16.) In addition, Ms. Fung and Mr. Bourgeois, both of whom allegedly made discriminatory remarks to the plaintiff, were employed by YSK-China, not Coty or YSK-Partnership. Although the plaintiff argues that Mr. Bourgeois, in his declaration dated October 12, 2000, admitted to being an employee for Coty for 20 years, this assertion is based on a mistaken reading of Mr. Bourgeois' declaration. Mr. Bourgeois' declaration states that Mr. Bourgeois was "employed in various assignments for the Coty Group of Companies" from 1993 to 2000 and that he "served as Chief Executive Officer" of YSK-China from July 1, 1996 to June 30, 1999. (Bourgeois Decl. ¶ 1.) Indeed, Mr. Bourgeois' reply declaration makes it clear that Mr. Bourgeois was not an employee of Coty, but at all times relevant was an officer of YSK-China. (Bourgeois Reply Decl. ¶¶ 2 9.) Furthermore, the evidence establishes that the decision to terminate the plaintiff's employment was made by Mr. Bourgeois, Ms. Fung, and Ms. Yue-Sai Kan, all officers of YSK-China, and the decision did not involve employees of Coty or YSK-Partnership. (Bourgeois Decl. ¶¶ 14-15; Bourgeois Reply Decl. ¶ 9; Ford Aff. ¶ 8.) Although Mr. Bourgeois contacted Barbara Taylor, Coty's Vice President of Human Resources, regarding any applicable United States employment issues surrounding the plaintiff's termination, Ms. Taylor acted only as a resource and did not take part in the actual decision to terminate the plaintiff's employment. (Bourgeois Decl. ¶ 15; Taylor Aff. ¶ 6-7.)
The plaintiff asserts that the YSK defendants were involved in supervising YSK-China in general and her work in particular, relying upon a memorandum dated June 5, 1996, from J.A. Rougeot, an executive at Coty. to a number of individuals, including the plaintiff, Ms. Yue-Sai Kan, and Mr. Bourgeois, concerning the agenda for a product strategy meeting held in July 1996 for YSK-China to be held in New York. (Pl.'s Ex. 4.) While the plaintiff attended the July 1996 meeting led by Mr. Bourgeois and Ms. Fung, YSK China employees (Pl.'s Ex. 4), the memorandum does not suggest that the plaintiff was being supervised by anyone at Coty and certainly not that any decisions with respect to the plaintiff's employment were being made by any employee of Coty or the YSK-Partnership.
According to the YSK defendants, some YSK-China employees were covered by group benefit plans that covered multiple companies affiliated with Coty. (Taylor Aff. ¶ 3.) However, a "common benefits package speaks only to economies of scale . . . and not to centralized control of labor relations." Kellett v. Glaxo Enterprises. Inc., 91 Civ. 6237, 1994 WL 669975, at *5 (S.D.N.Y. Nov. 30, 1994); see also Meng, 73 F. Supp.2d at 405; Duffy, 1998 WL 252063, at *5; Balut, 988 F. Supp. at 347.
The plaintiff also points to a letter submitted to the EEOC by counsel for the respondents in the administrative proceedings, in which counsel refers to the plaintiff as "a nominal employee of Coty." (Pl.'s Ex. 1.) In view of the rest of counsel's letter, the June 11, 1996 letter of employment received by the plaintiff (Bourgeois Decl. Ex. A), and the other evidence submitted on this motion indicating that the plaintiff was a nominal employee of Lancaster and not Coty, it is clear that counsel's statement in the EEOC response that the plaintiff was "a nominal employee of Coty" was a mistake. The undisputed evidence clearly establishes that all employment decisions with respect to the plaintiff, including the decision to terminate the plaintiff, were made by employees of YSK-China and the statement by counsel for the respondents in the EEOC administrative proceedings does not create a genuine issue of material fact.
Accordingly, because the evidence is clear that YSK-China employees engaged in the alleged discriminatory conduct in this case and the ultimate decision to terminate the plaintiff was made by YSK-China employees, the plaintiff has not shown that the YSK defendants had sufficient control over the labor decisions of YSK-China to subject those defendants to liability as an "employer" of the plaintiff.
C.
The last two prongs of the single employer test, common management and common ownership, "are less important as they represent ordinary aspects of the parent-subsidiary relationship" and "'the mere existence of common management and ownership are not sufficient to, justify treating a parent corporation and its subsidiary as a single employer.'" Meng, 73 F. Supp.2d at 403 (quoting Lusk, 129 F.3d at 778); see also Duffy, 1998 WL 252063, at *5. In this case there is evidence that YSK-Partnership owns 100% of YSK-China's stock and that Coty owns a majority interest in YSK-Partnership. However, in the absence of any meaningful participation by YSK-Partnership or Coty in YSK-China's employment and labor decisions, their ownership status with respect to YSK-China is insufficient to consider the entities an integrated single employer for purposes of the ADEA and Title VII. See, e.g., Herman, 18 F. Supp.2d at 313 (collecting cases)
In sum, the plaintiff has failed to produce evidence of the interrelation of corporate operations or centralized control over labor relations between either YSK Partnership and YSK-China or Coty and YSK-China, and the evidence is clear that the final decisions with respect to the plaintiff's employment and the alleged discriminatory actions were taken by employees of YSK-China and not by employees of the YSK defendants. Thus, the YSK defendants' motion for summary judgment is granted and the plaintiff's claims against the YSK defendants are dismissed.
CONCLUSION
For the foregoing reasons, the YSK defendants' motion for summary judgment pursuant to Fed.R.Civ.P. 56 is granted. The defendant Lancaster is named in the plaintiff's Second Amended Complaint. The parties, however, agree that Lancaster has never been served and issues as between Lancaster and the plaintiff have not been raised on this motion. Because of the plaintiff's pro se status, the complicated nature of the defendants' corporate relationship, and the plaintiff's past confusion concerning Lancaster's corporate status the Court finds that the plaintiff has shown good cause for the failure to serve Lancaster. See Fed.R.Civ.P. 4(m). Thus, the time to serve Lancaster is extended until 45 days form the date of this opinion.
SO ORDERED.