Phelps v. Brighter Choice Foundation, Inc.

Filing 31

MEMORANDUM-DECISION and ORDER - That the Foundation's 16 Motion for Summary Judgment is DENIED. Signed by Chief Judge Gary L. Sharpe on 9/24/2013. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
KIRSTIE PHELPS,
Plaintiff,

1:12-cv-1494
(GLS/CFH)

v.
BRIGHTER CHOICE
FOUNDATION, INC. et al.,
Defendants.
________________________________
HELEN DANCIU,
Plaintiff,

1:12-cv-1496
(GLS/CFH)

v.
BRIGHTER CHOICE
FOUNDATION, INC. et al.,
Defendants.
________________________________
BRENDA ROBICHAUD,
Plaintiff,

v.
BRIGHTER CHOICE
FOUNDATION, INC. et al.,
Defendants.
________________________________

1:13-cv-246
(GLS/CFH)

APPEARANCES:

OF COUNSEL:

FOR THE PLAINTIFFS:
D’Orazio, Peterson Law Firm
125 High Rock Avenue
Saratoga Springs, NY 12866

GIOVANNA A. D’ORAZIO, ESQ.
SCOTT M. PETERSON, ESQ.

FOR THE DEFENDANTS:
Brighter Choice Foundation, Inc.
Bond, Schoeneck Law Firm
111 Washington Avenue
Albany, NY 12210-2280

NICHOLAS J. D’AMBROSIO,
JR., ESQ.

Brighter Choice Charter School for
Girls
Goldberg, Segalla Law Firm
8 Southwoods Boulevard
Suite 300
Albany, NY 12211-2526

LATHA RAGHAVAN, ESQ.

Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Background
Plaintiff Kirstie Phelps brought this action against defendant Brighter
Choice Foundation, Inc. (“the Foundation”) pursuant to Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e-17 (“Title VII”), and the
Family and Medical Leave Act, 29 U.S.C. §§ 2601-2654 (“FMLA”).
(Compl., Dkt. No. 1.) An amended complaint added defendant Brighter
2

Choice Charter School for Girls (“the School”), alleging the same claims.
(Am. Compl., Dkt. No. 4.) Phelps seeks damages for employment
discrimination on the basis of race and pregnancy, and claims that her
rights under the FMLA were violated when she was terminated prior to
taking maternity leave. (Id.) The Foundation moves for summary
judgment pursuant to Fed. R. Civ. P. 56. For the reasons that follow, the
Foundation’s motion for summary judgment is denied.
II. Standard of Review
On a motion for summary judgment the court must construe the
properly disputed facts in the light most favorable to the non-moving party,
see Scott v. Harris, 550 U.S. 372, 380 (2007), and may grant summary
judgment only where “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); see O'Hara v. Nat’l Union Fire Ins. Co. of Pittsburgh, 642
F.3d 110, 116 (2d Cir. 2011). However, “[o]nly in the rarest of cases may
summary judgment be granted against a [party] who has not been afforded
the opportunity to conduct discovery.” Hellstrom v. U.S. Dep’t of Veterans
Affairs, 201 F.3d 94, 97 (2d Cir. 2000). Under Rule 56(d),
[i]f a nonmovant shows by affidavit or declaration that, for specified
3

reasons, it cannot present facts essential to justify its opposition, the
court may: (1) defer considering the motion or deny it; (2) allow time to
obtain affidavits or declarations or to take discovery; or (3) issue any
other appropriate order.
Fed. R. Civ. P. 56(d).
In addressing an argument urging a denial of summary judgment for
lack of discovery, the court is drawn between competing policy interests.
On the one hand, the court must balance the salutary purpose of summary
judgment, which is aimed at resolving legally insufficient disputes absent
the expense of a fully litigated matter. Alternatively, the court must
consider the equally salutary public policy of allowing both parties,
especially the non-movant, a full and fair opportunity to marshal evidence
in order to address their respective positions to the court on a Rule 56
motion. The Second Circuit has fashioned a rule which seeks to temper
these equally important interests. When such an argument is raised, the
non-movant must submit an affidavit in compliance with Fed. R. Civ. P.
56(d) detailing: “(1) what facts are sought and how they are to be obtained,
(2) how those facts are reasonably expected to create a genuine issue of
material fact, (3) what effort the affiant has made to obtain them, and (4)
why the affiant was unsuccessful in those efforts.” Hudson River Sloop

4

Clearwater, Inc. v. Dep’t of the Navy, 891 F.2d 414, 422 (2d Cir. 1989); see
Hoffmann v. Airquip Heating & Air Conditioning, 480 F. App’x. 110, 111-12
(2d Cir. 2012); Gurary v. Winehouse, 190 F.3d 37, 43 (2d Cir. 1999).
III. Discussion
The Foundation, in its motion for summary judgment, claims that: (1)
the Foundation is not an employer within the coverage of the FMLA or Title
VII; (2) the Foundation was not Phelps’s employer; and (3) the Foundation
and the School are not a joint employer or an integrated enterprise (single
employer) under either the FMLA or Title VII. (Dkt. No. 16.) Phelps
opposes this motion, alleging that there are issues of fact pertaining to
whether defendants are a single employer or joint employers and, thus,
whether Phelps was an employee of the Foundation within the coverage of
the FMLA and Title VII. (Dkt. No. 20, Attach. 5 at 5-19.) Furthermore,
Phelps claims that the Foundation’s motion should be denied pursuant to
Fed. R. Civ. P. 56(d) (formerly Fed. R. Civ. P. 56(f)) because discovery has
yet to occur and Phelps does not have the necessary facts to properly
oppose the Foundation’s motion. (Id. at 20-23.)
In the case at hand, the requirements of Rule 56(d) are satisfied and,
as a result, summary judgment is denied. Phelps filed an affidavit pursuant
5

to Rule 56(d), in which her counsel explained that Phelps was actively
seeking facts related to the relationship between the Foundation and the
School. (Dkt. No. 20.) These facts included: (1) any agreements or
memoranda between defendants defining this relationship; (2) documents
or communications evidencing the involvement of the Foundation in hiring
and firing decisions at the School, including with respect to Phelps’s
termination; (3) documents reflecting the role of M. Christian Bender1 at the
School and the Foundation; (4) a copy of the Foundation’s bylaws; and (5)
communications between the School and the Foundation with respect to
personnel decisions during the relevant time period. (Id. ¶ 13.) Phelps
also seeks “the categories of documents identified in the Foundation’s Rule
26 disclosures which allegedly would substantiate the claims made in Mr.
Bender’s affidavit.” (Id.)
Phelps reasonably expects these facts to create a genuine issue of
material fact by demonstrating that the Foundation and the School were a
single employer or joint employers thereby falling under the coverage of
Title VII and the FMLA, (Dkt. No. 20, Attach. 5 at 5-19), and that the
1

Mr. Bender is the acting Executive Director of the Foundation and
the Chair of the School’s Board of Directors. (Dkt. No. 16, Attach. 2 ¶¶ 1,
13.)
6

Foundation was Phelps’s employer, (id. at 19-20). In the Foundation’s
motion, it relies heavily on an affidavit by Mr. Bender. (Dkt. No. 16.)
However, there is conflicting evidence with regard to several of Mr.
Bender’s statements concerning other common officers shared by the
Foundation and the School. While the Foundation claims that Mr. Bender
is currently the only common officer between the School and the
Foundation, (Dkt. No. 16, Attach. 4 at 3), the Foundation also admits that
Ron Racela had involvement with both defendants for at least some period
of time as he transitioned from a job with the School to a job with the
Foundation. (Dkt. No. 24, Attach. 2 ¶¶ 7-9.) The court agrees with Phelps
that further information regarding this overlap in personnel is necessary to
determine whether the two defendants were a single employer or joint
employers and whether the Foundation was Phelps’s employer.
Moreover, Phelps asserts that she cannot confirm or deny this and
other allegations made by the Foundation without further discovery
because “Mr. Bender [did] not attach any documents or evidence
substantiating or providing any direct evidence of his claims that the
School and Foundation are wholly separate entities.” (Dkt. No. 20 ¶ 17.)
The court agrees with Phelps that Mr. Bender’s subjective assertions are
7

insufficient to remove all issues of fact related to the two defendants’
employment practices and additional discovery would give, at the very
least, a more accurate depiction of how the School and the Foundation
interact.
Phelps’s Rule 56(d) affidavit also details the discovery efforts taken
by Phelps thus far. (Id. ¶¶ 5-13.) It should be emphasized that the motion
presently before the court was brought prior to any discovery taking place
and long before the discovery deadline will be reached. (Id. ¶¶ 5, 19); see
Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d
919, 927-28 (2d Cir. 1985) (“A party who both fails to use the time
available and takes no steps to seek more time until after a summary
judgment motion has been filed need not be allowed more time for
discovery absent a strong showing of need.” (emphases added));
Desclafani v. Pave-Mark Corp., No. 07 Civ. 4639, 2008 WL 3914881, at *8
(S.D.N.Y. Aug. 22, 2008) (a request for additional discovery pursuant to
Rule 56(f) was denied where the plaintiff was already “given an opportunity
to take discovery” and failed to do so). A day before the summary
judgment motion was brought, Phelps served the Foundation with its first
set of interrogatories and request for production of documents, to which the
8

Foundation sought an extension to respond. (Dkt. No. 20 ¶¶ 9-11.)
Phelps’s counsel also notes that Phelps never received the School’s initial
disclosures, (id. ¶ 8), and that the Foundation’s initial disclosures “did not
include any documents but identified various categories of documents
relevant to its claims on its motion for summary judgment,” none of which
were provided with the summary judgment motion, (id. ¶ 7).
Phelps’s counsel further notes that Phelps has not had an
opportunity to depose witnesses, including Mr. Bender, even though
“[m]uch of the Foundation’s motion is premised upon Mr. Bender’s
subjective belief that his role as Chairman of the Board of the School (and
its concomitant financial and personnel duties) is completely separate from
his role as the Foundation’s Executive Director.” (Id. ¶ 18); see Hellstrom,
201 F.3d at 97 (reversing the trial court’s grant of defendant’s motion for
summary judgment because plaintiff “was denied the opportunity to
conduct discovery of any sort, and was even precluded from taking
depositions”). The court finds that in spite of Phelps’s efforts at discovery,
she has not been afforded the discovery she deems necessary to defend

9

the pending motion.2
Accordingly, the court finds that Phelps satisfied the burden set out in
Rule 56(d) and, as a consequence, the Foundation’s motion for summary
judgment is denied.
IV. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the Foundation’s motion for summary judgment (Dkt.
No. 16) is DENIED; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
September 24, 2013
Albany, New York

2

The court notes that Phelps’s affidavit must also demonstrate why
she was unsuccessful in obtaining discovery. Fed. R. Civ. P. 56(d);
Hudson River Sloop Clearwater, 891 F.2d at 422. It is clear from
counsel’s affidavit and the record that Phelps was unsuccessful in this
instance because of the timing of the present motion for summary
judgment.
10