Woodbury v. Victory Van Lines et al
Filing
68
MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 11/6/2018. (c/m 11/07/2018 - jf3s, Deputy Clerk)
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
SHERA WOODBURY,
Plaintiff,
v.
VICTORY VAN LINES,
d/b/a Great Nations Van Lines, LLC, now
Great Nation Moving, LLC,
Civil Action No. TDC-16-2532
Defendant.
MEMORANDUM OPINION
Plaintiff Shera Woodbury, who is self-represented, has brought this action against her
former employer, Victory Van Lines (“Victory”), owned by Great Nation Moving, LLC (“Great
Nation”), and Great Nation’s principal owner, Sherif Yanuzov, 1 alleging that she was subjected
to employment discrimination on the basis of sex, national origin, and disability. On December
21, 2017, this Court issued a Memorandum Opinion dismissing all of Woodbury’s claims except
those brought against Victory pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”),
42 U.S.C. §§ 2000e to 2000e-17 (2012), and the Americans with Disabilities Act (“ADA”), 42
U.S.C. §§ 12112 to 12117 (2012). Pending before the Court is Victory’s Motion for Summary
Judgment on the grounds that it was not a “covered” employer under Title VII and the ADA
because it did not have 15 or more employees at the time of the alleged discrimination. Having
reviewed the submitted materials, the Court finds that no hearing is necessary. See D. Md. Local
R. 105.6. For the reasons set forth below, the Motion for Summary Judgment is DENIED.
1
The Court uses the spelling provided in the affidavit submitted by Yanuzov.
BACKGROUND
Woodbury worked as a relocation specialist for Victory, a moving company, from March
2012 until she was terminated on April 4, 2014. Woodbury is a woman, born in North America,
who suffers from a neurological disorder that causes seizures.
She alleges that Victory
discriminated against her based on these traits by subjecting her to unequal terms of employment
and by terminating her employment.
The Court has set forth the factual and procedural
background for Woodbury’s allegations in its December 21, 2017 Memorandum Opinion on the
Motion to Dismiss. Woodbury v. Victory Van Lines, 286 F. Supp. 3d 685, 690-91 (D. Md. 2017).
On April 18, 2017, Yanuzov and Victory filed a Motion to Dismiss or, in the Alternative,
for Summary Judgment in which Defendants asserted, as relevant here, that the Title VII and
ADA claims should be dismissed because Victory is not an employer under those statutes
because it lacked 15 employees at the time of the alleged discrimination. Attached to that
Motion were certain tax and pay records and an affidavit from Yanuzov, which Defendants
offered as evidence that Victory had fewer than 15 employees in the years 2013 and 2014. In her
memorandum in opposition to the motion, Woodbury asserted that she knows that Victory had
20 to 30 employees because she “has personally been responsible” for scheduling them, argued
that Yanuzov and his wife should be counted as employees, and claimed that Victory left out
relevant documents from its submission. Opp’n Mot. Dismiss at 2-3, ECF No. 38. The Court
declined to consider the submitted documents, see Fed. R. Civ. P. 12(d), denied the Motion to
Dismiss as to that argument, and granted the parties limited discovery on the number of Victory
employees in 2013 and 2014.
After the completion of the limited discovery period, Victory filed the pending Motion
for Summary Judgment on the grounds that Victory did not have 15 employees and thus is not
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subject to liability under Title VII or the ADA. In support of the Motion, Victory has submitted
an affidavit from Yanuzov stating that Victory has never employed 15 or more individuals at the
same time; Yanuzov never turned away any prospective employees because Victory was fully
staffed; and Yanuzov and his wife, Milena Zaimova, are the sole owners of Victory. Victory has
also submitted tax and pay records relating to 20 individuals for 2013 and 16 individuals for
2014. The records reveal that for 2013, 12 individuals worked for Victory for 20 or more weeks,
and that for 2014, 13 individuals worked for Victory for that length of time or more. In her
deposition testimony, however, Woodbury stated that she personally observed at least 10
additional employees who worked at Victory for more than 20 weeks in the relevant timeframe,
six of whom she identified by first name—“Vasko,” “Teti,” “Stanko,” “Emmanuel,” “Marlo,”
and “David”—and four of whom she pointed out in photographs but could not identify by name.
DISCUSSION
The sole issue in Victory’s Motion for Summary Judgment is whether Victory is a
covered employer under Title VII and the ADA based on its number of employees in 2013 and
2014. Victory asserts that it is not a covered employer because the pay records definitively
establish that it had fewer than 15 employees who worked more than 20 weeks during both
years; Victory’s owners are properly not counted as employees for purposes of this calculation;
and Woodbury’s asserted facts and evidence are insufficient to create a genuine dispute on the
number of Victory employees and the number of weeks they worked in the relevant years.
Woodbury counters that there is a genuine issue of material fact regarding the number of
employees based on her personal observations during her tenure at Victory, because Victory has
falsified and omitted employees from its pay records, and because the EEOC’s alleged finding
that Victory had more than 15 employees should bind this Court.
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Victory also argues that, if the Court finds that Victory is a covered employer, its Motion
should still be granted on the ground that Victory articulated a legitimate, non-discriminatory
reason for terminating Woodbury’s employment. Because discovery to date has been limited to
the issue of the number of employees at Victory, the Court will not consider this argument.
I.
Legal Standard
Under Federal Rule of Civil Procedure 56(a), the Court grants summary judgment if the
moving party demonstrates there is no genuine issue as to any material fact, and that the moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). In assessing the Motion, the Court views the facts in the light most
favorable to the nonmoving party, with all justifiable inferences drawn in its favor. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The Court may rely only on facts supported in
the record, not simply assertions in the pleadings. Bouchat v. Balt. Ravens Football Club, Inc.,
346 F.3d 514, 522 (4th Cir. 2003). A fact is “material” if it “might affect the outcome of the suit
under the governing law.” Anderson, 477 U.S. at 248. A dispute of material fact is only
“genuine” if sufficient evidence favoring the nonmoving party exists for the trier of fact to return
a verdict for that party. Id. at 248-49.
II.
EEOC Finding
The Court begins by addressing Woodbury’s argument that the Court is bound by a prior
determination by the EEOC that Victory had 15 or more employees in 2013 or 2014. In
asserting this argument, Woodbury relies on the Dismissal and Notice of Rights Letter (“Right to
Sue Letter”), issued by the EEOC on August 5, 2015, which stated that the EEOC closed its file
on Woodbury’s charge because it had “adopted the findings of the state or local fair employment
practices agency that investigated this charge.” Right to Sue Letter at 2, Opp’n Mot. Dismiss Ex.
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1, ECF No. 17-1. Woodbury argues that had the EEOC concluded that her case could not
proceed because Victory had less than 15 employees, the Right to Sue Letter would have stated
that conclusion, such as by checking the box noting that the case was closed because “[t]he
Respondent employs less than the required number of employees or is not otherwise covered by
the statutes.” Id. The Right to Sue Letter, however, does not purport to include an exhaustive
list of the reasons why the EEOC could have closed its investigation into Woodbury’s claims. In
fact, the Right to Sue Letter references the fact that Woodbury’s charge had been filed with the
Montgomery County Office of Human Rights (“MCOHR”), and that the EEOC had simply
adopted the MCOHR’s findings without necessarily conducting an independent investigation.
Thus, it is not reasonable to infer that the EEOC made a finding on whether Victory had 15 or
more employees.
Moreover, where Woodbury has not submitted any records reflecting
MCOHR’s specific findings, the Court lacks a basis to conclude that the MCOHR made a
finding whether Victory had 15 or more employees.
Even if Woodbury had shown that the EEOC or MCOHR had made a finding on the
number of Victory employees during the relevant time period, Victory is correct that such a
finding “would be, at best, a tentative conclusion.” Reply Mot. Summ. J. at 4, ECF No. 63.
Indeed, an EEOC Right to Sue letter does not resolve issues with finality: it informs the
charging party that the EEOC has found no violation of law but that the charging party may
nevertheless file suit seeking an independent determination by a federal court. See EEOC Form
161 (rev. Nov. 2009) (stating that, despite the EEOC’s failure to find reasonable cause, the
petitioner retains the right to “pursue [the] matter further” by filing a lawsuit within 90 days).
Notably, the United States Court of Appeals for the Fourth Circuit has held that an EEOC Letter
of Determination of Reasonable Cause, a separate form letter issued when the EEOC finds
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reasonable cause to conclude that discrimination has occurred, is “merely preparatory to further
proceedings.” Georator Corp. v. EEOC, 592 F.2d 765, 768 (4th Cir. 1979) (stating that an EEOC
determination of reasonable cause, standing alone, “is lifeless, and can fix no obligation nor
impose any liability on [the employer]”); see EEOC v. Harvey L. Walner & Assocs., 91 F.3d 963,
968 (7th Cir. 1996) (stating that an EEOC’s determination “is only an administrative prerequisite
to a court action and has no legally binding significance in the subsequent litigation”). EEOC
investigatory findings simply are not binding on federal courts in the private employment
context. See, e.g., Georator Corp., 592 F.2d at 768-69 (stating that the EEOC’s determination of
reasonable cause, while final, lack any binding effect); Moore v. Devine, 780 F.2d 1559, 1562
(11th Cir. 1986) (stating that the EEOC lacks the power to order remedial action in cases of
private-sector employment discrimination, so the issue of the binding nature of an EEOC
decision favorable to a private-sector employee never actually arise); McClure v. Mexia Indep.
Sch. Dist., 750 F.2d 396, 400 (5th Cir.1985) (noting that “EEOC determinations and findings of
fact” are “not binding on the trier of fact”).
Accordingly, there is no evidence that the EEOC or the MCOHR made any determination
as to the number of Victory employees in 2013 or 2014 and, even if either agency had, such a
finding would not override this Court’s independent review of the evidence presented by the
parties. Woodbury’s reference to the Right to Sue Letter therefore does not provide a basis upon
which to deny the Motion for Summary Judgment.
III.
Number of Employees
In seeking summary judgment, Victory argues that neither Title VII nor the ADA apply
to it because Victory had fewer than 15 employees during the years 2013 and 2014. Title VII
defines an “employer” as “a person engaged in an industry affecting commerce who has fifteen
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or more employees for each working day in each of twenty or more calendar weeks in the current
or preceding calendar year, and any agent of such a person.” 42 U.S.C. § 2000e(b). The ADA
contains a substantively identical definition. 42 U.S.C. § 12111(5)(A). The United States
Supreme Court has held that “the threshold number of employees for application of Title VII is
an element of a plaintiff’s claim for relief, not a jurisdictional issue.” Arbaugh v. Y & H Corp.,
546 U.S. 500, 516 (2006); see also Fox v. Gen. Motors Corp., 247 F.3d 169, 176 (4th Cir. 2001)
(“Because the ADA echoes and expressly refers to Title VII, and because the two statutes have
the same purpose—the prohibition of illegal discrimination in employment—courts have
routinely used Title VII precedent in ADA cases.”). Accordingly, a plaintiff must establish that
the defendant employer had the threshold number of employees to be subject to the requirements
of Title VII and the ADA in order to prevail on a discrimination claim under those statutes. See
Arbaugh, 546 U.S. at 515-16.
Woodbury does not dispute that Title VII and the ADA would not apply to Victory if it
had fewer than 15 employees in 2013 or 2014. She also does not dispute that 2013 and 2014 are
the relevant years of inquiry in this case, given that the alleged discriminatory acts occurred in
2014, Woodbury was fired in 2014, and Woodbury filed her charge of discrimination in June
2014. Instead she argues that there is a genuine issue of material fact as to whether Victory
employed fewer than 15 individuals in the years 2013 and 2014.
A.
Pay Records
Victory has submitted pay records which, it asserts, establish that it had fewer than 15
employees in the relevant years. Courts generally use the “payroll method” as a starting point to
evaluate the number of employees that a defendant employer has for purposes of Title VII or the
ADA. Walters v. Metro. Educ. Enters., Inc., 519 U.S. 202, 207 (1997). The “payroll method”
7
directs that, on any given day, all the individuals with whom an employer has an employment
relationship may qualify as “employees” of that employer. Id. at 206. Thus, if an individual
appears on the employer’s pay records for a particular date and receives a paycheck covering a
time period including that date, the person would qualify as an employee regardless of whether
he or she actually worked on that date. Id. To qualify as one of the requisite 15 employees to
establish that an employer is subject to Title VII and the ADA, an individual must be employed,
according to the payroll method and common law principles of agency and control, during “each
working day in each of 20 or more calendar weeks” in the relevant year. 42 U.S.C. § 2000e(b).
An individual’s appearance in the employer’s pay records, however, is not necessarily
dispositive: in addition to the payroll method, courts also consider principles of control and the
common law of agency when determining whether a particular individual is an “employee”
under the relevant statutes. See Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S.
440, 448 (2006) (stating that the common law element of “control” over a worker should serve as
the “principal guidepost” for determining whether an individual qualifies as an “employee”
under the ADA). Thus, “an individual who appears on the payroll but is not an ‘employee’
under traditional principles of agency law would not count” toward the minimum threshold of
employees. Walters, 519 U.S. at 211-12. The reverse is also true, as an individual who has a
traditional employment relationship with the employer but who does not appear on the payroll,
such as one who receives compensation in cash or “under the table,” would still count as an
employee under principles of control and the common law of agency. See Clackamas, 538 U.S.
at 448 (stating that the “common law’s definition of the master-servant relationship” provides
guidance in identifying which individuals qualify as employees); accord Jones v. Midlands
Neurology & Pain Assocs., P.A., No. 3:11-2623-CMC-SVH, 2012 WL 2917057, at *2-3 (D.S.C.
8
May 3, 2012) (holding that the plaintiff’s affidavit stating that the defendant had additional
employees not listed in pay records, including several paid “under the table,” created a genuine
issue of material fact precluding summary judgment for the defendant), report and
recommendation adopted, No. 3:11-2623-CMC-SVH, 2012 WL 2913224 (D.S.C. July 17, 2012).
Accordingly, while the Court begins its analysis by applying the payroll method, it is not
necessarily dipositive on the issue of the number of Victory employees for purposes of Title VII
and the ADA.
In accordance with the payroll method, Victory has provided tax documents and pay
records for the years 2013 and 2014. For the year 2013, the records reflect that Victory paid
wages to a total of four employees who received IRS Form W-2 from Victory (“W-2
employees”) and contractor fees to a total of 16 independent contractors who received IRS Form
1099 from Victory (“1099 contractors”). For the year 2014, the records reflect that Victory paid
wages to a total of four W-2 employees and contractor fees to a total of 12 1099 contractors.
Although Woodbury has asserted that the workers classified as independent contractors are
actually employees, the Court need not address that issue because Victory has conceded that, for
purposes of the analysis of the Motion, all of the 1099 contractors should be treated as W-2
employees.
With this assumption, the pay records reveal that Victory had 20 employees in 2013 and
18 employees in 2014. Both of these numbers exceed the requisite 15 employees to qualify as an
employer under Title VII and the ADA. Victory, however, asserts that the records further reveal
that not all of these personnel worked the requisite 20 weeks in a given year to qualify as
employees. 42 U.S.C. § 2000e(b).
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1.
2013
Victory argues that, for the year 2013, the following eight employees, out of the 20 listed
in the pay records for that year, failed to meet the 20-week threshold: Samuel Amaya, William
Alvarez Armando, Dusan Deletic, Robert W. Elmore, Michael F. Heffernan, Yonis Melendez
Sales, Robert N. Scribner, and Vasie Yosifou. Thus, in his affidavit, Yanuzov states that Victory
had “no more than twelve (12) total employees in 2013, even if all workers designated as 1099
independent contractors are considered ‘employees’ for the purposes of this inquiry.” Yanuzov
Aff. ¶ 9, Mot. Summ. J. Ex. A, ECF No. 60-1. The Court’s independent review of the submitted
records corroborates this statement.
Accordingly, Victory’s records, along with Yanuzov’s
supporting affidavit, appear to establish that only 12 Victory employees worked 20 weeks or
more in 2013.
Of the eight employees who failed to meet the 20-week threshold, Woodbury offers
testimony regarding only Heffernan and Deletic. Regarding Heffernan, Woodbury testified in
her deposition that he was employed by Victory for only a year or less, that she was not sure of
his specific dates of employment, and that he quit sometime in 2012. She therefore has not
created a genuine dispute of material fact as to the number of weeks Heffernan worked in 2013
or 2014.
As for Deletic, who is Woodbury’s ex-husband, Woodbury testified that he began work
with Victory some time before March 25, 2012 and that, based on the dates of their birthdays and
anniversary, Deletic was still employed by Victory in June 2013. This testimony is largely
consistent with the pay records, which show that Deletic received a paycheck on May 24,
2013—just over 20 weeks into the calendar year. Although the pay records show no other
paychecks issued to Deletic during 2013, Woodbury testified that up to the point of his
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departure, Deletic was a foreman for Victory who worked full time, at least 40 hours per week.
As Deletic’s wife at the time, she would have personal knowledge of his work schedule. She also
noted that he did not have legal immigration status. Thus, Woodbury’s testimony has created a
genuine issue of material fact whether Deletic actually was an employee for the requisite 20
weeks in 2013. However, Deletic would only raise the count of Victory employees in 2013 from
12 to 13, too few to render Victory a “covered employer” under Title VII and the ADA. Thus,
the Court’s analysis of Woodbury’s arguments relating to 2013 must continue.
2.
2014
Of the 16 workers identified in the 2014 pay records, Victory asserts that three failed to
meet the 20-week threshold:
Woodbury, Javier G. Martinez, and RoseMary McBath.
In
addition to the pay records, Yanuzov’s affidavit states that Victory had “no more than thirteen
(13) total employees in 2014, even if all workers designated as 1099 independent contractors are
considered ‘employees’ for the purposes of this inquiry.” Yanuzov Aff. ¶ 8.
The Court’s
independent review of the submitted records corroborates the conclusion that neither Woodbury
nor Martinez worked 20 weeks at Victory in 2014. In Woodbury’s deposition testimony, she
conceded that she was fired on April 4, 2014, just 13 weeks into the calendar year, and she never
mentioned Martinez or McBath. Accordingly, she has not raised a genuine dispute of material
fact as to the number of weeks worked by Victory’s employees in 2014.
However, upon consideration of the pay records, McBath could arguably be deemed to
have spent 20 weeks as an employee in 2014. The records show that McBath received 10
paychecks in 2014 on the following dates: August 6, 2014, August 20, 2014, September 8, 2014,
September 19, 2014, October 7, 2014, October 21, 2014, November 7, 2014, November 21,
2014, December 5, 2014, and December 23, 2014. The records therefore reveal that, at a
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minimum, McBath was in Victory’s pay records from August 6, 2014 through December 23,
2014, consisting of 19 weeks and 4 days of work. However, the August 6, 2014 paycheck likely
provides wages for work performed before that date, which could put her over the 20-week
threshold. Nevertheless, even with McBath counted as an employee, the pay record would only
reflect 14 employees in 2014. Thus, Woodbury has not created a genuine issue of material fact
whether the pay records reveal that Victory had 15 employees who worked 20 or more weeks in
2014.
B.
Owners
Woodbury argues that Victory’s calculation of the number of its employees from the pay
records is inaccurate because it does not count Yanuzov and his wife, Zaimova, as employees.
For 2013, because of the genuine dispute of material fact as to the number of weeks worked by
Deletic, if both are counted as employees, the total would be 15 employees that year. For 2014,
because of the genuine dispute of material fact as to the number of weeks worked by McBath, if
even one is counted as an employee, the total would be 15 employees for that year. Victory
counters that Yanuzov and Zaimova are properly classified as owners, not employees, during
2013 and 2014, and thus do not count toward the requisite 15 employees.
In Clackamas, the Supreme Court adopted from the EEOC Compliance Manual a nonexhaustive, six-factor test to determine whether a shareholder-director of a corporation is an
employee for purposes of Title VII. 538 U.S. at 449-50. The six factors include:
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;
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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.
Id. The test focuses on the “common-law touchstone of control” and assesses, through these
factors, whether an individual “is subject to the organization’s control,” or “whether the
individual acts independently and participates in managing the organization.” Id. at 449.
All
incidents of the individual’s relationship with the organization must be considered, with “no one
factor being decisive.” Id. at 451 (quoting Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318,
324 (1992)). In Clackamas, the issue was whether “four physicians actively engaged in medical
practice” and simultaneously serving as “shareholder and directors of a professional corporation”
should be counted as “employees” for purposes of the ADA. Id. at 442, 451. Without deciding
the issue, the court noted that the facts that the physicians controlled the operation of their clinic,
shared the profits, and were personally liable for malpractice claims weighed in favor of a
finding that they were not employees for purposes of the ADA. Id. at 451.
The Clackamas test has been applied to individuals with ownership interests outside the
context of shareholder-directors of a professional corporation. See Solon v. Kaplan, 398 F.3d
629, 632-33 (7th Cir. 2005) (stating that Clackamas “is not limited to the narrow question of
whether a share-holder director is an employee” and noting that the six factors “provide guidance
in resolving the more general issue of whether an individual is an employee” or an employer);
Walls v. Avpro, Inc., No. JFM-04-3042, 2005 WL 855931, at *2 n.1 (D. Md. Apr. 14,
2005) (citing Solon for the principle that the Clackamas test can be used to determine whether
certain individuals are owners or employees beyond the context of a professional corporation),
aff’d, 162 F. App’x 252 (4th Cir. 2006). Indeed, the source of the Clackamas factors—an EEOC
Compliance Manual—identifies them as relevant to whether “partners, officers, members of
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boards of directors, and major shareholders qualify as employees.” Clackamas, 538 U.S. at 44849 (citing EEOC Compl. Man. §§ 605:0008–605:00010 (2000)); Solon, 398 F.3d at 633.
Accordingly, the Court will apply the Clackamas test to aid its determination of whether
Yanuzov and Zaimova are owners or employees of Victory.
1.
Yanuzov
In his submitted affidavit, Yanuzov states that “at all times relevant to the events
described in the Complaint filed by Plaintiff Shera Woodbury . . . I was the owner and CEO of
the other defendant, Victory Van Lines d/b/a Great Nation Moving, LLC.” Yanuzov Aff. ¶ 2.
Yanuzov also asserts that he founded Victory in 2008, is currently its Chief Executive Officer
(“CEO”), makes the day-to-day decisions for the company, and has a 95 percent ownership
interest. Woodbury does not contest these statements and in fact has corroborated them by
stating in her deposition that Yanuzov is the “certain percentage owner” of Victory and that,
while she was employed by Victory, he was responsible for managing all the movers and
assigning them to trucks. Woodbury Dep. at 59-61, 118, Mot. Summ. J. Ex. F, ECF No. 60-6.
The pay records contain no evidence that Yanuzov drew a salary or received wages from Victory
in 2013 and 2014. In her deposition, Woodbury initially disputed that Yanuzov did not receive a
paycheck, but when asked how she knew that he was paid, she responded, “I don’t know for sure
but maybe I was just assuming when I said that.” Woodbury Dep. at 119.
Based on this evidence, all six Clackamas factors weigh in favor of finding that Yanuzov
was an owner, not an employee, of Victory in the years 2013 and 2014. Yanuzov (1) could not
be hired or fired by Victory; (2) was not supervised by Victory; (3) did not report to anyone
higher up in Victory; (4) had significant influence over Victory, as its founder, CEO, and
manager responsible for day-to-day decisions; (5) lacked an employment contract with Victory;
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and (6) shared in the profits, losses, and liabilities of Victory. Moreover, the Clackamas test
emphasizes the “common-law touchstone of control,” and Woodbury has not established a
genuine dispute of material fact relating to Victory’s assertion that Yanuzov had control of
Victory during the relevant time period. Clackamas, 538 U.S. at 449. The Court therefore finds
that Yanuzov was not an employee of Victory in 2013 and 2014 for the purpose of establishing
the threshold number of employees necessary for Victory to be deemed an employer under Title
VII and the ADA.
2.
Zaimova
As for Zaimova, Yanuzov has stated in his affidavit that Zaimova is his wife and a five
percent owner of Victory and thus shares in the profits, losses, and liabilities of Victory. Like
Yanuzov, Zaimova is not listed in the pay records for 2013 or 2014, and there is no evidence that
she drew a salary from Victory or had an employment contract. Thus, the fifth and sixth of the
Clackamas factors favor a finding that Zaimova was not an employee.
The first three Clackamas factors, which direct the Court to assess whether Victory or
someone higher up in the organization could hire, fire, or supervise Zaimova, also weigh in favor
of finding that Zaimova was an owner, not an employee. According to Woodbury, Zaimova
managed Victory’s accounts and books and reviewed all the documents and content submitted by
Victory’s movers at the end of each day. Thus, Zaimova had a managerial role in the company,
and there was no evidence that anyone had the power to hire, fire, or supervise her. Notably,
Woodbury has offered no evidence to suggest that Yanuzov had such power over Zaimova.
Rather, during her deposition, Woodbury stated that, although she was not specifically aware that
Zaimova had an ownership interest in Victory, she came to understand that Zaimova owned the
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company with Yanuzov because “if you’re married, you know, it’s sort of what’s yours is both of
yours.” Woodbury Dep. at 125.
Indeed, as to the fourth Clackamas factor, Zaimova’s marital relationship with Yanuzov
also signifies that she likely had more capacity to influence Victory than a typical five-percent
owner of a company. To the extent that the Clackamas test directs courts to focus “all incidents
of the relationship” of the individual to the company, Clackamas, 538 U.S. at 451, Zaimova, by
virtue of her marital relationship with Yanuzov, was better positioned than an ordinary minority
owner to influence personnel and management decisions during the relevant time period.
In Arbaugh v. Y&H Corporation, 380 F.3d 219 (5th Cir. 2004), rev’d on other grounds,
546 U.S. 500 (2006), the United States Court of Appeals for the Fifth Circuit concluded that the
spouses of two owners of the defendant corporation were not employees for purposes of Title
VII, even though they were included on the payroll and had taxes deducted from their wages,
because they were not supervised by others, shared in the profits, losses, and liabilities of the
corporation and, due to their partnership interest, could not be simply fired if the business
relationship with their husbands deteriorated. Id. at 229-30. By contrast, in Smith v. Castaways
Family Diner, 453 F.3d 971, 977-81 (7th Cir. 2006), the court held that the mother and husband
of the sole proprietor of restaurant were employees even though they managed the restaurant and
were not supervised by the proprietor, largely because they lacked an ownership interest in the
business. Id. at 972-73, 981. Here, where Zaimova had an ownership interest and could not
simply be terminated, and where she was not even on the payroll like the spouses in Arbaugh,
the Court concludes that she was not an employee of Victory in 2013 and 2014 for purposes of
Title VII and the ADA.
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D.
Additional Employees
Although the pay records show that Victory did not have 15 employees during 2013 and
2014 within the meaning of Title VII and the ADA, Woodbury argues that the records are
falsified or incomplete. While the submitted records appeared to have missing pages based on
gaps in the page numbers, Victory has addressed this issue by supplementing the record,
pursuant to the Court’s request, with the missing pages. See 2013 Pay R., Supp. Mot. Summ. J.
Ex. E, ECF No. 67-2; 2014 Pay R., Supp. Mot. Summ. J. Ex. C, ECF No. 67-1.
The
supplemental documents reveal that the originally omitted pages merely repeat information
contained in the preceding pages relating to each employee; summarize the total earnings for
each employee over the course of the year; and reflect what Victory refers to as “null data,”
which are system-generated notations by the Wells Fargo Business Payroll Services System
reflecting no earnings for pay periods in which an employee no longer worked for Victory. 2014
Pay R. at 2-3 & n.1.
As an initial matter, Woodbury has asserted that she knows that Victory employed more
than 15 employees during the relevant time period because at one point, Yanuzov turned away
her best friend’s boyfriend who needed a job because Victory already had 18 employees and was
“completely booked.” Woodbury Dep. at 76. In his affidavit, Yanuzov denies ever turning away
any prospective employee because Victory was fully staffed, and states that Victory never had 18
employees at one time. This dispute, however, is not sufficient by itself to raise a genuine
dispute of material fact as to the number of Victory employees in 2013 and 2014 because even if
Victory was fully staffed with 18 employees at a single point in time, that would not necessarily
mean that at least 15 of those 18 employees worked for 20 or more work weeks during a single
year.
17
Next, in support of her claim that the pay records either failed to include, or undercounted
the work performed by, certain Victory employees, Woodbury named 15 individuals who, she
alleges, worked for Victory during 2013, 2014, or both: herself, Yanuzov, Zaimova, Deletic,
“Daniel V,” “Vasko,” “Teti,” “Stanko,” Michael Heffernan, Lisa Fitzpatrick, “Emmanuel,”
“Carlos,” “Marlo,” “Jose,” and “David.” Woodbury Dep. at 42-64. She also pointed to four
unnamed men in a set of photographs from her wedding who, she claims, were employed by
Victory during some or all of the relevant time period.
As discussed above, Yanuzov and Zaimova are appropriately classified as owners, not
employees. Woodbury, Deletic, Heffernan, and Fitzpatrick are all in included in Victory’s pay
records, though there remains a genuine dispute of material fact as to the number of weeks
worked by Deletic in 2013. See supra part III.A.1. Victory also states that the individual
Woodbury identified as “Daniel V” is Daniel V. Hernandez, “Carlos” is Carlos A. Alarcon, and
“Jose” is Jose Jorge Alvarado, all of whom are also included in Victory’s pay records. This
leaves six named individuals as unaccounted for in Victory’s pay records—“Vasko,” “Teti,”
“Stanko,” “Emmanuel,” “Marlo,” and “David”—and the four unnamed men identified from
photographs.
Woodbury explained in her deposition that she knew these 10 individuals were employed
by Victory because she was personally responsible for running Victory’s office when Yanuzov
was away. When Yanuzov was out of the office, Woodbury scheduled which personnel were
assigned to a particular move, and when those individuals came into Victory’s office, Woodbury
gave them the moving truck keys and necessary supplies. At times, she had to make last-minute
changes to the schedule and find movers to handle particular jobs. There were sometimes five
moves per day, usually with three movers assigned to each truck. Woodbury knew the first name
18
of the foreman for each truck but did not know the names of the “minions” who constituted the
two other movers assigned to each truck. Woodbury Dep. at 63.
Although the information provided by Woodbury relating to some of these individuals is
too vague to rely upon, Woodbury gave more specific information about at least three of them,
including regarding her certainty that they accumulated 20 or more work weeks in 2013. She
specifically identified “Vasko” and his girlfriend “Teti,” with whom Woodbury and her husband
Deletic had double-dated. She testified that Vasko was a foreman who began working at Victory
before Woodbury joined the company in 2012 and worked full time during the duration of his
employment. Although initially Woodbury had difficulty remembering the exact date that Vasko
left and suggested it might have been at the end of 2012 or early 2013, she later pegged it to
when Deletic left because Vasko and Deletic left to form their own business. As discussed
above, Victory’s pay records show that Deletic received a paycheck on May 24, 2013, just over
20 weeks into the calendar year, and Woodbury testified that she was confident that Deletic
worked up through June 2013 based on when their birthdays and her anniversary fell on the
calendar. Woodbury also stated that she knew that Vasko worked 20 or more weeks in 2013
because she saw him at Victory’s office every day when he turned in paperwork for his moves
each day.
She also recalled receiving complaints from customers in 2013 about being
overcharged for moves for which Vasko was the foreman. Finally, Woodbury identified Vasko
in several photographs from her wedding which were exhibits at her deposition.
As for Teti, Vasko’s girlfriend, Woodbury testified that Teti was Victory’s receptionist
and sat in the office across from Zaimova. Woodbury stated that she met Teti a few days before
she got married on August 8, 2012, and that Teti started working at Victory that summer. She
testified that Teti left Victory in the summer of 2013 or later, based on her recollection that she
19
and Teti ran a five-kilometer race in Washington, D.C. that summer, while Teti was still
employed by Victory. According to Woodbury, she knew that Teti worked full time and for
more than 20 weeks in 2013 because Woodbury saw her every day, Teti transferred calls to
Woodbury, and Woodbury regularly walked past her desk to mark moves on the office calendar.
Woodbury and Teti also socialized together after work. Finally, Woodbury also identified Teti
in several of the photographs reviewed at her deposition.
Woodbury also provided detailed and unequivocal testimony about an employee named
Emmanuel. She described his physical appearance and testified that he was a Hispanic mover—
not a foreman—who worked full time at Victory during her entire tenure from 2012 until 2014.
She stated that she was certain that Emmanuel worked more than 20 weeks between January 1,
2013 and December 31, 2013 because she saw him loading and unloading materials onto and off
of trucks in a storage area that was attached to the office in which she worked. Woodbury saw
him doing so when she took regular smoking breaks in that storage area.
Viewed in the light most favorable to Woodbury, she has asserted sufficient facts to
establish that at least Vasko, Teti, and Emmanuel were employees of Victory in 2013. Although
her assertions are uncorroborated, she has offered specific details based on personal knowledge,
such as the fact that she and her husband double-dated with Vasko and Teti, that Vasko stayed at
Victory until he and her husband began a new business in approximately June 2013, that Teti
was a receptionist who sat across from Zaimova and was there every day, and that she regularly
saw Emmanuel loading trucks during her smoking breaks.
At the summary judgement stage, a non-moving party’s uncorroborated testimony can be
sufficient to raise a genuine dispute of material fact, especially when that testimony is specific
and consistent with the party’s other statements in the case. See, e.g., Davis v. Zahradnick, 600
20
F.2d 458, 460 (4th Cir. 1979) (per curiam) (holding that summary judgment is not warranted
when there is conflicting testimony requiring credibility determinations); United States v.
Currency, U.S., $147,900.00, 450 F. App’x 261, 266 (4th Cir. 2011) (reversing a grant of
summary judgment where the non-moving party provided a “specific and consistent,” but
uncorroborated, account about the source of a certain sum in question, because “corroboration is
unnecessary to establish a genuine issue of material fact”); Nilson v. Historic Inns Grp. Ltd., 903
F. Supp. 905, 908-09 (D. Md. 1995) (denying summary judgement in an employment
discrimination case because reconciling the conflicting testimony of two employees required a
credibility determination); see also Am. Metal Forming Corp. v. Pittman, 52 F.3d 504, 507 (4th
Cir. 1995) (holding that conflicting affidavits raise a genuine issue of material fact when they are
consistent with affiant’s prior testimony).
Here, Woodbury has provided more than just cursory, conclusory allegations that Victory
had additional employees not reflected in pay records. Woodbury’s testimony is detailed and
based on personal knowledge. The additional employees in question include her former husband
and two individuals with whom they double-dated and who attended their wedding. She had a
position at Victory that provided her with the ability to personally observe their work activities
during the relevant time period. She also offered a plausible explanation for the lack of formal
records for Vasko, Teti, and Emmanuel: that they did not have a legal right to work in the
United States. See Jones, 2012 WL 2917057, at *2-3 (holding that the plaintiff’s affidavit stating
that the defendant had additional employees not listed in pay records, including several paid
“under the table,” created a genuine issue of material fact precluding summary judgment for the
defendant). Finally, where it is undisputed that Victory was a moving company that had as many
as 15 individuals working three different moves on any given day, it is entirely plausible, if not
21
likely, that such a company would have had more than 15 employees who worked more than 20
weeks of the year, particularly
including administrative
staff such as Woodbury.
Thus,
Woodbury's testimony is sufficient to create a genuine issue of material fact on the issue of the
number of Victory employees in 2013.
CONCLUSION
For the foregoing reasons, Victory's Motion for Summary Judgment is DENIED.
separate Order shall issue.
Date: November 6,2018
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