Grant v. Doctor's Associates, Inc. et al

Filing 54

MEMORANDUM & ORDER: Defendants motion 49 for summary judgment is granted and Grants Title VII claim is dismissed with prejudice. The remaining state law claims are dismissed without prejudice to renewal in state court. The complaint is accordingly dismissed in its entirety and the Clerk of the Court is directed to close this case. Ordered by Judge Frederic Block on 3/13/2015. (Innelli, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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COLEENIA GRANT,
Plaintiff,
-againstPEXIE ENTERPRISES, INC., and
CARL A. LASHLEY,

MEMORANDUM AND ORDER
13-CV-3584 (FB) (LB)

Defendants.
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Appearances:
For the Plaintiff:
ALEX UMANSKY
Phillips & Associates, PLLC
30 Broad Street, 35th Floor
New York, NY 10004

For the Defendants:
FREDERICK K. BREWINGTON
556 Peninsula Boulevard
Hempstead, NY 11550

BLOCK, Senior District Judge:
Plaintiff Coleenia Grant (“Grant”) brings this action against Pexie Enterprises,
Inc. (“Pexie”), the corporate owner and operator of a Subway franchise in Queens, New
York, and Carl A. Lashley (“Lashley”), the owner of Pexie (collectively,
“Defendants”). Grant alleges gender discrimination in violation of Title VII of the
Civil Rights Act (“Title VII”) and New York City Human Rights Law (“NYCHRL”)
§ 8-107, as well as various state law tort claims. Defendants have counterclaimed,
alleging the state law torts of malicious prosecution and abuse of process.

Defendants now move for summary judgment on Grant’s Title VII claim on the
grounds that they are not “employers” under Title VII. In addition, Grant cross-moves
to dismiss Defendants’ counterclaims for failure to state a claim. For the reasons that
follow, the Court grants Defendants’ motion and dismisses Grant’s federal claim.
Because the Court declines to exercise supplemental jurisdiction over the remaining
state law claims, Grant’s motion is denied as moot.
I.
The parties agree that Grant worked for Pexie as a “sandwich artist” for
approximately one week in 2012, but what happened during that week is sharply
disputed. Grant alleges that Lashley, her boss at Pexie, engaged in a pattern of sexual
harassment and hostile behavior which ultimately forced her to report him to the police
and resign from her job. Defendants deny these allegations and counter that Grant
knowingly made false assertions – both in her complaint and to the police – in order to
defame Lashley and extort money from him.
Grant filed this lawsuit on June 25, 2013. On May 23, 2014, Defendants moved
to dismiss Grant’s federal claim on the grounds that they employed less than fifteen
employees at all relevant times and so are not subject to liability under Title VII. See
42 U.S.C. § 2000e(b) (“The term ‘employer’ means a person . . . who has fifteen or
more employees for each working day in each of twenty or more calendar weeks in the

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current or preceding calendar year.”). In support of their motion, Defendants submitted
(1) an affidavit from Lashley stating that he has never employed fifteen or more
employees at one time, and (2) quarterly federal and New York State tax returns for
2012 and 2013, which demonstrate that Pexie employed no more than ten employees
during any one quarter of 2012 or 2013.
On January 8, 2015, the Court notified the parties that it was converting
Defendants’ motion to dismiss into a motion for summary judgment pursuant to Federal
Rule of Civil Procedure 12(d), and ordered the parties to submit “all pertinent materials
directed to the question of whether defendants fall within the statutory definition of
‘employer’ under Title VII.” See Mem. & Order, Docket Entry No. 51 (Jan. 8, 2015),
at 3. Defendants thereafter submitted a payroll summary and chart listing all persons
employed by Pexie from June to December of 2012, which demonstrate that Pexie
employed no more than eight employees per month during this period. Grant has
submitted no evidence in opposition to either the motion to dismiss or the converted
motion for summary judgment.
II.
A court may grant summary judgment only if “there is no genuine dispute as to
any material fact and . . . the movant is entitled to judgment as a matter of law.” FED.
R. CIV. P. 56(a). An issue of fact is genuine “if the evidence is such that a reasonable

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jury could return a judgment for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
Defendants’ federal and state tax returns clearly establish that Pexie employed
no more than ten employees at any given time during 2012, the year in which Grant
worked for Pexie. Nevertheless, Grant argues that summary judgment is inappropriate
because Defendants have offered no evidence about how many employees they had in
2011, thus failing to establish that they had less than fifteen employees during “the
current or preceding calendar year.” 42 U.S.C. § 2000e(b) (emphasis added).
This argument is unavailing. Grant bears the burden of establishing Title VII’s
employee-numerosity requirement at trial, not Defendants. See Arbaugh v. Y&H Corp.,
546 U.S. 500, 516 (2006) (“[T]he threshold number of employees for application of
Title VII is an element of a plaintiff’s claim for relief.”). When the nonmoving party
bears the burden of proof at trial, “the burden on the moving party may be discharged
by ‘showing’ – that is pointing out to the district court – that there is an absence of
evidence to support the nonmoving party’s case.” PepsiCo, Inc. v. Coca-Cola Co., 315
F.3d 101, 105 (2d Cir. 2002) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986)). This showing can be made either by “point[ing] to evidence that negates [the]
opponent’s claims” or by “identify[ing] those portions of [the] opponent’s evidence that
demonstrate the absence of a genuine issue of material fact.” Salahuddin v. Goord, 467
F.3d 263, 272-73 (2d Cir. 2006).
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Defendants’ evidentiary submissions are sufficient to show an absence of
evidence to support Grant’s Title VII claim. While Defendants have concededly
offered no tax return data from 2011, they have submitted an affidavit from Lashley,
who states that “[a]t no time during my ownership of the Subway Restaurant have I
employed more than fifteen employees” and that “[t]he abovementioned Subway
Restaurant has never . . . employed fifteen or more employees at one time.” Decl. of
Carl A. Lashley, Docket Entry No. 45-3 (May 23, 2014), ¶¶ 2,3. This affidavit – when
considered in combination with the tax return data – suffices to shift the burden of
establishing a triable issue of fact to Grant. See Feldman v. Sanders Legal Grp., 914
F. Supp. 2d 595, 600 (S.D.N.Y. 2012) (holding that defendant’s affidavit stating that
he was not a “debt collector” under the Fair Debt Collection Act, taken in conjunction
with memorandum of law noting plaintiff’s lack of evidence regarding defendant’s
“debt collector” status, was sufficient to shift summary judgment burden to plaintiff).
Grant has been on notice that Defendants were contesting their Title VII
“employer” status since at least December 24, 2013, when Defendants requested a premotion conference regarding their anticipated motion to dismiss. She therefore had
ample opportunity to obtain evidence regarding Defendants’ “employer” status prior
to the close of discovery on May 14, 2014. Accordingly, her failure to offer any
evidence establishing a triable issue of fact as to Defendants’ liability under Title VII
warrants summary judgment in Defendants’ favor. See Celotex Corp., 477 U.S. at 322
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(“[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after
adequate time for discovery and upon motion, against a party who fails to make a
showing sufficient to establish the existence of an element essential to that party’s case,
and on which that party will bear the burden of proof at trial.”).
III.
Having dismissed the sole federal claim, the Court must decide whether to
exercise supplemental jurisdiction over the remaining state law claims and
counterclaims. See 28 U.S.C. § 1367(c) (district court “may decline to exercise
supplemental jurisdiction over a claim” if, inter alia, “the district court has dismissed
all claims over which it has original jurisdiction”). The Second Circuit has identified
several factors to be considered in determining whether to exercise supplemental
jurisdiction, including (1) “the doctrine of preemption,” (2) “judicial economy,
convenience, fairness, and comity,” (3) the existence of “novel or unresolved questions
of state law,” and (4) “the state’s interest in the administration of its government.”
Valencia v. Lee, 316 F.3d 299, 305-306 (2d Cir. 2003) (internal quotation marks and
citations omitted). “[I]n the usual case in which all federal-law claims are eliminated
before trial, the balance of factors . . . will point toward declining to exercise
jurisdiction over the remaining state-law claims.” Id. at 305 (quoting Carnegie-Mellon
University v. Cohill, 484 U.S. 343, 350 n.7 (1988)).
Here, none of the factors elucidated by the Second Circuit counsel in favor of
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retaining supplemental jurisdiction. First, Grant’s remaining discrimination claims are
asserted under the NYCHRL, which “sets out a different, more liberal standard [than]
Title VII,” Vuona v. Merrill Lynch & Co., 919 F. Supp. 2d 359, 393 (S.D.N.Y. 2013),
and which must be construed “broadly in favor of discrimination plaintiffs, to the extent
that such a construction is reasonably possible.” Albunio v. City of New York, 16
N.Y.3d 472, 477-78, 947 N.E.2d 135, 137 (2011). Comity therefore suggests that state
courts should resolve these local law claims. See, e.g., Thomas v. City of New York,
953 F. Supp. 2d 444, 462 (E.D.N.Y. 2013) (declining to exercise supplemental
jurisdiction over NYCHRL claims in the interest of comity). Second, while discovery
in this case has been completed, it does not appear that any further discovery would
need to be conducted if the state law claims were litigated in state court. See Adee
Motor Cars, LLC v. Amato, 388 F. Supp. 2d 250, 255 (S.D.N.Y. 2005) (declining to
exercise jurisdiction over state law claims after the close of discovery where there was
no indication that discovery would need to be repeated in state court).
Accordingly, both Grant’s and Defendants’ state law claims are dismissed,
without prejudice to refiling in state court. Grant’s motion to dismiss Defendants’
counterclaims is therefore denied as moot.
IV.
For the foregoing reasons, Defendants’ motion for summary judgment is granted
and Grant’s Title VII claim is dismissed with prejudice. The remaining state law claims
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are dismissed without prejudice to renewal in state court. The complaint is accordingly
dismissed in its entirety and the Clerk of the Court is directed to close this case.
SO ORDERED.
/s/ Frederic Block_____
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
March 13, 2015

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