O'Brien v. Wisniewski et al

Filing 27

MEMORANDUM AND ORDER (see attached). With respect to the issue of whether Defendant Wiz Leasing employed at least fifteen (15) employees during the requisite period described in Title VII, 42 U.S.C. § 2000e(b), Defendant Wiz Leasing is directed to file and serve evidentiary material which will show the names and numbers of individuals who were its employees (during the relevant period) on or before May 17, 2013. Plaintiff may file and serve her response to said submissions on or before May 29, 2013. All proceedings are STAYED pending these submissions and the Court's further Order. Signed by Judge Charles S. Haight, Jr. on April 29, 2013. (Dorais, L.)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
KAREN O’BRIEN,
Plaintiff,
v.

3:10 - CV- 120 (CSH)

LEONARD WISNIEWSKI and WIZ
LEASING, INC.,

APRIL 29, 2013

Defendants.

MEMORANDUM AND ORDER

HAIGHT, Senior District Judge:
This action, brought by a Connecticut domiciliary against her former Connecticut employer
corporate employer and its president, was removed by Defendants from a Connecticut state court to
this Court. Defendants move for summary judgment dismissing all of Plaintiffs' claims. For the
reasons stated infra, and pursuant to its inherent power to regulate its calendar, the Court declines
to consider Defendants' summary judgment motion at this time, and makes a direction for further
submissions.
From March 2003 to September 2008, Plaintiff Karen O'Brien was employed by the
corporate Defendant Wiz Leasing, Inc. ("Wiz Leasing"), a car dealership in Milford, Connecticut,
owned and operated by the individual Defendant, Leonard Wisniewski ("Wisniewski). O'Brien
worked first as a title clerk, and then as officer manager at Wiz Leasing.
On December 18, 2009, O'Brien filed a complaint against both Defendants in the Connecticut
Superior Court for the Judicial District of Ansonia/Milford. O'Brien's complaint alleged six counts:
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two counts of malicious prosecution (one count against each Defendant); two counts of intentional
infliction of emotional distress (one count against each Defendant); and two counts for sex
discrimination, sexual harassment and retaliation, against Defendant Wiz Leasing only – one of those
counts alleging violation of Conn. Gen Stat. § 46a-60, and the other alleging violations of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. For the purposes of this Memorandum
and Order, it is not necessary to recite the details of Plaintiffs' allegations in support of those counts
against Defendants.
By Notice of Motion filed on January 10, 2010 [Doc. 1], Defendants removed the action from
the Connecticut state court to this Court. In support of that removal, Defendants asserted that this
Court had original jurisdiction over the action pursuant to "28 U.S.C. § 1332." That reference is
clearly erroneous; § 1332 confers jurisdiction on federal district courts in cases of diverse
citizenship, and there is no indication in the case at bar that all parties are anything other than
citizens of Connecticut. Later submissions in the case, such as an early Report of Parties' Planning
Meeting [Doc. 7], make it plain that the only basis for Defendants' removal of the action from state
court is 28 U.S.C. § 1331, which confers subject matter jurisdiction upon federal district courts in
"all civil actions arising under the Constitution, laws or treaties of the United States." The only
federal law implicated by the case at bar is Title VII of the 1964 Civil Rights Act, which Count Six
of O'Brien's complaint alleges Defendant Wiz Leasing violated. But for that alleged violation,
Defendants would have no basis for removing the case to this Court, in derogation of Plaintiff's
preference for the state court as manifested by her filing the complaint in that court.
Defendants now move under Fed. R. Civ. P. 56 for summary judgment dismissing all six
counts in Plaintiff's complaint. Their brief [Doc. 17-1] at 29 says in support of summary judgment
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on Count Six: "Since the plaintiff has not created an issue of material fact as to whether Wiz Leasing
employed more than fifteen employees in 2007 or 2008, this Court must grant summary judgment
on Count Six." That contention is based upon the definition in Title VII of 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 calendar year."
42 U.S.C. § 2000e(b). It is well settled that an employer of less than fifteen employees is not
covered by or subject to Title VII. Defendants move for summary judgment on that ground because,
according to their brief, at her deposition Plaintiff "could name only twelve people that had worked
for Wiz Leasing, including herself and Mr. Wisniewski, four of whom she identified as independent
contractors, which she knew from working as the office manager," [Doc. 17-1] at 29.
This asserted ground for summary judgment on Count Six is problematic for two reasons.
First, there is something unseemly about a defendant removing a case from state to federal court on
the sole basis of plaintiff's assertion of a claim under a federal statute and then, having achieved the
removal, contending that the federal statute does not apply to the case. Second, it is disingenuous
for Defendants at bar to suggest that the statutory requisite of at least fifteen Defendants' employees
was not present upon Plaintiff's seeming inability to name that many at her deposition. Defendants
know how many employees they had and during what periods of time. If one indulges the
assumption that Defendants are law-abiding, they have IRS-generated documents squarely
addressing that question.
In Arbaugh v. Y & H Corp., 546 U.S. 500 (2006), the Supreme Court confronted the question
"whether the numerical qualification contained in Title VII's definition of 'employer' affects federalcourt subject-matter jurisdiction or, instead, delineates a substantive ingredient of a Title VII claim
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for relief." Id. at 503. The Court held that "the employee-numerosity requirement relates to the
substantive adequacy of Arbaugh's Title VII claim, and therefore could not be raised defensively late
in the lawsuit, i.e., after Y&H had failed to assert the objection prior to the close of trial on the
merits." Id. at 504. In arriving at that decision, the Court distinguished between "the objection that
a federal court lacks subject-matter jurisdiction," which "may be raised by a party, or by a court on
its own initiative, at any stage in the litigation," and "the objection that a complaint 'fail[s] to state
a claim upon which relief can be granted,’" which "may not be asserted post-trial." Id. at 506-507.
The Court let stand a jury verdict in plaintiff's favor of state law claims where the employer did not
raise the numerosity objection until a post-verdict motion to dismiss, on the ostensible ground of lack
of subject matter jurisdiction.
The Supreme Court in Arbaugh cited approvingly, among conflicting circuit court cases, the
decision of the Second Circuit in Da Silva v. Kinsho International Corp., 229 F.3d 358 (2000),
which affirmed as a permissible act of discretion the district court's deciding that the numerosity
requirement had not been met on a Title VII claim but asserting pendent jurisdiction over state law
claims and allowing a jury's verdict in favor of plaintiff on those claims to stand. Judge Newman's
opinion said of the plaintiff: "Her ultimate failure to prove single employer status is not a ground for
dismissing for lack of subject matter jurisdiction or even for failure to state claim; it is a ground for
defeating her federal claim on the merits." Id. at 365. Judge Newman then went on to say:
Of course, 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.
Whether such an employer remains exposed in federal court to
liability for state law claims on the basis of supplemental jurisdiction
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after the federal case is dismissed, will depend on the usual factors
guiding a district court's discretion to exercise such jurisdiction.
Id. at 365-366 (citations and footnote omitted).
The Defendants at bar say in their brief [Doc. 17-1] at 29 n. 24, with non-disarming
simplicity, that "[g]ranting summary judgment on Count Six does not deprive this Court of subject
matter jurisdiction, or its ability to rule on Counts One through Five on the merits," and "the
defendants respectfully request this Court to grant summary judgment on all counts rather than
remand to state court." It is not as simple as that. If at the pertinent times there is no question that
Wiz Leasing did not have at least the statutorily required fifteen employees, a fact Wiz Leasing had
to know, then Defendants' removal of the case from state court was improvidently, perhaps
abusively, made. To support their motion for summary judgment, Defendants cannot cast upon
Plaintiffs the burden of showing that this material fact exists; rather, the Court grants summary
judgment only if "the movant shows that there is no genuine issue as to any material fact and the
movant is entitled to judgment as a matter of law." Rule 56(a) (emphasis added). In the case at bar,
Defendants would be entitled to judgment as a matter of law dismissing Plaintiff's Title VII claim
if there is no genuine dispute as to the material fact of a statutory insufficiency in the number of
Defendants' employees, but Defendant Wiz Leasing as the moving party must make that showing
by means of evidentiary material that would be admissible at trial. If it should appear that the
Plaintiff's federal claim must be dismissed on this ground, the Court will consider whether or not to
exercise its discretion in keeping jurisdiction over the pendent state claims.
In these circumstances, this Court, in the interest of fairness, proper governance of the case,
and sensible expenditure of judicial resources, makes this Order:

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1. Defendants are directed to file and serve evidentiary material which will show the names
and numbers of individuals who were employees of Defendant Wiz Leasing during the periods of
time specified by § 2000e(b) of Title VII, together with any additional evidence which will allow
Plaintiff to offer a contention and the Court to decide whether, at those pertinent times:
(a)

There is no genuine dispute that Wiz Leasing did not have at least fifteen
employees; or

(b)

There is no genuine dispute that Wiz Leasing had at least fifteen employees;
or

(c)

There is a genuine dispute that as to whether or not Wiz Leasing had at least
fifteen employees.

2. Defendants are directed to make the submissions described in Paragraph (1) no later than
May 17, 2013.
3. Plaintiff is directed to file and serve her further responsive submissions no later than May
29, 2013.
4. All proceedings in this case are STAYED pending these submissions and the Court's
further Order.
It is SO ORDERED.
Dated: New Haven, Connecticut
April 29, 2013
/s/Charles S. Haight, Jr.
CHARLES S. HAIGHT, JR.
SENIOR UNITED STATES DISTRICT JUDGE

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