Geraci v. Restaurant at Apple Greens, Inc. et al

Filing 67

ORDER granting 42 , 44 and 46 Motions for Summary Judgment. Plaintiff's ADEA claims (first and second causes of action) are DISMISSED with prejudice; Plaintiff's NYHRL claims (third, fourth, and fifth causes of action) are DISMISSED without prejudice. Signed by Judge Brenda K. Sannes on 3/27/2019. (rjb, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
THERESA GERACI,
Plaintiff,

1:16-cv-01385 (BKS/DJS)

v.
THE RESTAURANT AT APPLE GREENS, INC.; APPLE
GREENS GOLF COURSE, INC.; AMENIA STEAK
HOUSE, INC.; and JUSTINIONO RODRIGUEZ,
individually,
Defendants.
Appearances:
For Plaintiff:
Steven Fingerhut
H. Joseph Cronen
Phillips & Associates, PLLC
45 Broadway, Suite 620
New York, NY 10006
For Defendant The Restaurant at Apple Greens, Inc. and Amenia Steak House, Inc.:
Ryan T. Donovan
Ryan E. Manley
Harris, Conway & Donovan, PLLC
5 Clinton Square
Albany, NY 12207
For Defendant Apple Greens Golf Course, Inc.:
Benjamin W. Hill
Joshua R. Friedman
Dreyer Boyajian LLP
75 Columbia Street
Albany, NY 12210
For Defendant Justiniono Rodriguez:
Samuel C. Breslin
Breslin Law Group, PLLC
5 Clinton Square, Suite 4
Albany, NY 12207

Hon. Brenda K. Sannes, United States District Judge:
MEMORANDUM-DECISION AND ORDER
I.

INTRODUCTION
Plaintiff Theresa Geraci brings this action against Defendants The Restaurant at Apple

Greens, Inc. (the “Apple Greens Restaurant” or “Restaurant”), Apple Greens Golf Course, Inc.
(the “Apple Greens Golf Course” or “Golf Course”), Amenia Steak House, Inc. (“Amenia,” and
together with the Restaurant and the Golf Course, the “Entity Defendants”), and Justiniono
“Justin” Rodriguez, alleging discrimination in employment on the basis of age. (Dkt. No. 4). She
brings claims for discrimination and retaliation against the Entity Defendants under the Age
Discrimination in Employment Act of 1967 (“ADEA”), as amended, 29 U.S.C. §§ 621–634;
additionally, she asserts claims for discrimination and retaliation against all Defendants and an
aiding-and-abetting claim against Defendant Rodriguez under the New York Human Rights Law
(“NYHRL”), N.Y. Exec. Law §§ 290–301. (Id. ¶¶ 59–74). Plaintiff seeks compensatory and
punitive damages and declaratory relief. (Id. at 12–13). Defendants move for summary judgment
under Rule 56 of the Federal Rules of Civil Procedure, (Dkt. Nos. 42, 44, 46), arguing, among
other things, that Plaintiff’s federal statutory claims fail because of the lack of interconnection
between the Entity Defendants and the small number of individuals they employed during the
relevant time period, (Dkt. No. 42-11, at 12–14; Dkt. No. 44-2, at 9–16).
The Court held oral argument on the motions on December 11, 2018. Before oral
argument, the Court issued a text order directing the parties to “be prepared to address whether
there is a material issue of fact regarding whether the 20-employee minimum in 29 U.S.C. 630(b)
has been met with respect to the Defendants Restaurant at Apple Greens, Inc. and Amenia Steak
House, Inc.” (Dkt. No. 61). After oral argument, the Court allowed the parties to supplement the
record on the number of employees at the Restaurant and Amenia, and granted Plaintiff’s later
2

request for an extension of time to supplement the record. (Dkt. No. 63). Plaintiff and
Defendants Apple Greens Restaurant and Amenia have submitted supplemental briefing and
evidence on that issue. (Dkt. Nos. 64, 65, 66). For the reasons set forth below, the motions are
granted.
II.

FACTS 1
A.

Defendants’ Businesses
1.

Apple Greens Restaurant and Golf Course

David and Judi Roehrs have owned and managed Defendant Apple Greens Golf Course
in Highland, New York, since 1995. (Dkt. No. 44-4, ¶ 3). In 1997 or 1998, the Roehrs
constructed a building on the Golf Course, which they eventually used as a restaurant. (Id. ¶ 4).
In 2003, they decided to leave the restaurant business and started leasing the building to other
businesses. (Id. ¶ 5). In 2010, Maria Intrieri entered into a lease agreement with Clintondale
Food & Catering, Inc., a corporation wholly owned by the Roehrs, to lease the building for the
purpose of operating her restaurant business, Defendant Apple Greens Restaurant. (Id. ¶ 6). As
discussed in further detail below, Plaintiff worked at Defendant Apple Greens Restaurant in
October and November 2014 and then again from April to December 2015. (Dkt. No. 42-8, at
55, 75, 140, 158). Plaintiff testified that she did not meet or see Intrieri at the Restaurant in 2014,
and that Intrieri “didn’t have a role.” (Dkt. No. 42-8, at 75–76). Plaintiff learned at some point
that Intrieri was the Restaurant’s owner, but she “never ever saw Maria” at the Restaurant in
2014 or 2015. (Id. at 149). Intrieri testified that, when the Restaurant first opened in 2010, she

The facts have been drawn from Defendants’ statements of material facts (Dkt. Nos. 42-10, 44-1, 46-2), Plaintiff’s
responses thereto (Dkt. Nos. 50, 53, 56), Plaintiff’s counterstatements of facts (Dkt. Nos. 50, 53, 56), Defendant
Golf Course’s reply thereto (Dkt. No. 57), the parties’ supplemental declarations (Dkt. Nos. 64-2, 66-1), and the
attached exhibits and affidavits. The facts are undisputed or taken in the light most favorable to Plaintiff, unless
otherwise noted.
1

3

“was there and helped clean, dish wash, order food”; she “was not there full-time but [she] was
frequently going to The Restaurant.” (Dkt. No. 44-3, at 20–21, 32).
The Restaurant, which Intrieri has owned since 2010, is a separate legal entity from the
Roehrs-owned Golf Course; neither the Golf Course nor the Roehrs have any ownership interest
in the Restaurant. (Dkt. No. 44-1, ¶¶ 12–13, 49; Dkt. No. 44-3, at 16). They do not share any
employees. 2 (Dkt. No. 44-1, ¶ 75). The Golf Course does not have a liquor license and is not
named on the Restaurant’s liquor license. (Dkt. No. 44-1, ¶ 53). According to Plaintiff’s
testimony, the Restaurant would close when the Golf Course was closed. (Dkt. No. 42-8, at 86–
87). Mr. Roehrs testified, however, that the Restaurant’s operating hours were at the Restaurant’s
discretion and that the Restaurant was sometimes open when the Golf Course was closed. (Dkt.
No. 44-3, at 91, 95–96). Plaintiff acknowledged that the Golf Course did not “specifically set our
schedule.” (Dkt. No. 42-8, at 86). As a courtesy between the two companies, the Golf Course
offered free rounds of golf to Restaurant employees, and the Restaurant offered discounted food
and beverages to Golf Course employees. (Dkt. No. 44-1, ¶ 59). The Roehrs regularly ate at the
Restaurant and paid for their meals, albeit at a discounted rate. (Dkt. No. 44-4, ¶ 7; Dkt. No. 428, at 83–84).
The Golf Course organized weekly fundraising events called “outings.” (Dkt. No. 42-8, at
347–49). A group would rent the course, and the Restaurant would provide food and beverage
service to the golfers. (Id.). 3 The Golf Course would provide a list of outings in advance and
coordinate with the Restaurant about ordering food and beverages. (Id. at 87). During the
outings, Restaurant staff would ride around the Golf Course and serve beverages to the golfers.

2

Defendant Rodriguez was not an employee of the Golf Course. (Dkt. No. 44-1, ¶ 26).

Plaintiff testified that, during such outings, the Restaurant could serve other customers if the Golf Course remained
open, but for big outings, “the whole golf course [was] shut down for outside golfers.” (Dkt. No. 42-8, at 349).

3

4

(Id. at 58). Plaintiff testified that for such outings Restaurant staff used “the carts from the golf
course,” and that for “a big outing . . . more than one cart” was needed. 4 (Dkt. No. 42-8, at 57–
58; see also id. at 315–16). Restaurant staff received tips for the food and alcohol served during
the outings. (Id. at 316–17). The Golf Course did not receive any of the profits from the
Restaurant’s sale of beverages to golfers from the beverage cart. 5 (Dkt. No. 44-1, ¶ 55).
The Golf Course and the Restaurant had a profit-sharing arrangement, whereby the Golf
Course received 10 percent of profits made by the Restaurant from catering certain nongolf
events (such as weddings or baby showers) held on the grounds of the Golf Course; the 10
percent share was compensation for use of the Golf Course’s pavilion, tables, and chairs. (Id.
¶ 56; Dkt. No. 44-3, at 99–100). For such catering events, the Golf Course did not have any input
on the choice of food and beverages provided by the Restaurant; customers would arrange the
food menu directly with the Restaurant without any involvement from the Golf Course. 6 (Dkt.
No. 44-1, ¶¶ 57–58).
Plaintiff has acknowledged that Mr. Roehrs did not have a human resource role at the
Restaurant. (Dkt. No. 42-8, at 337–38). Similarly, Mr. Roehrs explained that he and his wife
“had absolutely no role in the Restaurant’s hiring/firing of employees, human resources,
Defendant Golf Course disputes this; according to its witnesses, the “Restaurant used its own beverage cart and
was generally not permitted to use the Golf Course’s carts except as a courtesy when the Restaurant’s beverage cart
broke down.” (Dkt. No. 57, ¶ 9; Dkt. No. 44-3, at 115–16). The Court notes that Plaintiff and her daughter Caroline
Spiegel testified that the beverage cart was owned by the Restaurant, (Dkt. No. 42-8, at 357; Dkt. No. 42-9, at 13),
and that the lease between Clintondale Food & Catering and Intrieri permitted the Restaurant to use and operate a
motorized “beverage cart,” (Dkt. No. 44-4, at 11). As discussed below, see infra Part IV.B.1, the ultimate ownership
of the carts is not material.
4

According to Plaintiff’s testimony, Geraldine Rifenburgh and Defendant Rodriguez told her that Mr. Roehrs “took
a percentage of the profits from the outing, from the restaurant part of it.” (Dkt. No. 42-8, at 346). Defendants
dispute this, citing Mr. Roehrs’ testimony that the Golf Course did not receive any percentage of the Restaurant’s
profits from the outings. (Dkt. No. 44-3, at 99).
5

In her affidavit, Kerri Spiegel—one of Plaintiff’s daughters who also worked at Amenia—asserted that “Mr.
Roehrs and other employees of the Golf Course would give [her] instructions regarding events on the Golf Course
which we were required to cater.” (Dkt. No. 48-4, ¶ 21). Kerri Spiegel, however, does not provide any context or
explain what the instructions were.

6

5

accounting, tax filing, purchasing, staffing, payroll, or any other meaningful function besides that
of landlord of the Restaurant Premises.” (Dkt. No. 44-4, ¶ 19). Plaintiff does not dispute that the
Restaurant and the Golf Course maintain entirely separate payroll systems, employee records,
and insurance. 7 (Dkt. No. 50, ¶¶ 62–64).
According to Plaintiff’s testimony, the Restaurant did not require employees to wear a
uniform, and Plaintiff was free to wear what she wanted. (Dkt. No. 42-8, at 335). She testified,
however, that the Golf Course “had a problem with short shorts out on the beverage carts” and
asked Restaurant employees not to wear short shorts on the Golf Course. (Id. at 336). Further,
Plaintiff testified that she was told by Defendant Rodriguez that Ms. Roehrs “didn’t want
anybody wearing provocative clothes” inside the restaurant. (Id. at 336–37). At his deposition,
Mr. Roehrs stated that he “[n]ever” enforced a dress code at the Restaurant but explained that the
Golf Course had a dress code for anyone—including Restaurant employees—that set foot on the
Golf Course. (Dkt. No. 44-3, at 118–19).
2.

Amenia Steak House

Plaintiff worked at Defendant Amenia from November 2014 to March 2015. (Dkt. No.
42-8, at 95–97). Amenia is a one-story steak house owned by Intrieri and Geraldine Rifenburgh.
(Dkt. No. 42-8, at 98–99, 117-18; Dkt. No. 44-3, at 15–16; Dkt. No. 42-1, ¶ 2). It opened in
September 2014. (Dkt. No. 44-3, at 42). Plaintiff testified that Intrieri “didn’t really have a role”
at the steak house; she was “the actual owner” but “never an active owner.” (Dkt. No. 42-8, at
116–17). Similarly, Intrieri testified: “I was going there but I was not exactly a worker. I was just
paying attention to make sure that everything was functioning properly and Geraldine was

Based on Mr. Roehrs’ purported intervention in Plaintiff’s shift change and the Roehrs’ purported enforcement of a
dress code at the Restaurant, Plaintiff disputes the assertion that “[n]o Golf Course owner or employee played any
role in the Restaurant’s labor relations.” (Dkt. No. 50, ¶ 61). Plaintiff’s factual assertions are addressed below. See
infra Part IV.B.

7

6

there.” (Dkt. No. 44-3, at 44). She added: “I was the owner and I was there not doing any work
but to make sure everything was functioning properly and that [t]he [r]estaurant was
functioning.” (Id.). The Golf Course had no involvement in Amenia’s business, and no Golf
Course owner or employee had any financial interest in it. (Dkt. No. 44-1, ¶¶ 29, 51).
3.

Number of Employees at the Restaurant and Amenia
a.

October–November 2014

Intrieri testified that there were “about seven” workers at Amenia when the steak house
opened in September 2014. (Dkt. No. 44-3, at 45). That month, Plaintiff applied for a position at
the Apple Greens Restaurant and was then hired and trained by employee Jacquelyn Borello.
(Dkt. No. 42-10, ¶ 4; Dkt. No. 42-4, ¶ 9; Dkt. No. 42-8, at 40, 49–55, 310). When Plaintiff first
started at the Restaurant in October and November 2014, she worked with Defendant Rodriguez
and two other individuals: Fernando Linares, a cook; and David Soto, a dishwasher. 8 (Dkt. No.
42-8, at 74). She explained that “[f]or the most part, it was just [Defendant Rodriguez] and
myself the majority of the time” and that there were no other servers or bartenders that worked at
the Restaurant during that time. (Id. at 74–75). The Restaurant closed down for the 2014 season
around Thanksgiving of that year. (Id. at 75).
b.

November 2014–March 2015

Plaintiff began filling in for shifts at Amenia at the end of November 2014 and worked
there full time from December 2014 to the end of March 2015. (Id. at 90–97, 100, 140). On her
first day, the only other people working there were Defendant Rodriguez (who “was cooking”), a
girl named Jeanie, and a “young guy” who had “just walked in the door that day.” (Id. at 93–94).
Plaintiff “assum[ed] the restaurant just opened because there really wasn’t any workers.” (Id. at
These nondefendants’ last names are specified in Plaintiff’s supplemental declaration and Defendants’ paycheck
records. (See Dkt. No. 64-2, ¶ 5; Dkt. No. 64-1).

8

7

94). Later, in December, “it built up to more employees,” (id.), but Plaintiff could not “remember
exactly who was there,” (id. at 95). She recalled a manager named Jenny, who “was here and
there, but for the most part, . . . was out with a back injury.” (Id. at 94). Plaintiff’s two daughters,
Caroline and Kerri Spiegel, also worked at Amenia in December 2014. (Id. at 94–95).
Plaintiff testified the following individuals worked at Amenia from December 2014 to
March 2015: Defendant Rodriguez (cook); David Soto (dishwasher); Fernando Linares (cook);
Javier Padilla (cook); Oscar Hernandez (cook); Michelle Mayer (server/bartender); Michelle
Mayer’s niece, Michelle (server); Michelle Mayer’s daughter, Aryanna Lawrence (hostess);
Michelle Mayer’s son, George Mayer (server); Plaintiff’s daughter, Caroline Spiegel; Plaintiff’s
daughter, Kerri Spiegel; Christine Pizzuti (server); Caroline (hostess); and Kathy Colletti
(server). 9 (Dkt. No. 42-8, at 99–109, 113–15). In her supplemental declaration, Plaintiff lists the
aforementioned individuals and adds three names: Maria Intrieri; Geraldine Rifenburgh; and
Geremy Mayer (server). 10 (See Dkt. No. 64-2, ¶ 5). She further asserts:
Based on my memory, I believe that with the exception of
Kathy Colletti and Geraldine Rifenburgh, each of the
employees listed . . . worked at [Amenia] throughout my entire
time as an employee there from approximately December 2014
through April 2015 11 which was a period of approximately 5
months.
(Id. ¶¶ 6–8).

Although Plaintiff did not provide the last names of all these individuals at her deposition, their last names are
specified in her supplemental declaration and Defendants’ paycheck records. (See Dkt. No. 64-2, ¶ 5; Dkt. No. 641). The court reporter transcribed Michelle Mayer’s last name as “Maher,” (see Dkt. No. 42-8, at 101), but
Plaintiff’s supplemental declaration and Defendants’ paycheck records spell it as “Mayer,” (see Dkt. No. 64-2, ¶ 5;
Dkt. No. 64-1). Other names were similarly misspelled in the deposition transcript. For the sake of consistency, the
Court uses the spelling found in Defendants’ paycheck records.
9

10
The list of coworkers in Plaintiff’s supplemental declaration references a “Gerardo Padilla (Cook)” but does not
identify anyone named Javier. (Dkt. No. 64-2, ¶ 5). By contrast, at her deposition, Plaintiff made no mention of a
“Gerardo” and described Javier as a cook. (Dkt. No. 42-8, at 101). Accordingly, based on Defendants’ records and
Plaintiff’s concordant testimony, the Court has referred to the cook as Javier, not Gerardo, Padilla.
11

Plaintiff testified, however, that she left Amenia on March 28, 2015. (Dkt. No. 42-8, at 140).

8

Kathy Colletti asserted in an affidavit submitted by Plaintiff that she worked at Amenia
from January to March 2015. (Dkt. No. 48-3). In her affidavit, Kerri Spiegel stated that she
began working at Amenia “around the end of 2014 during the winter time,” (Dkt. No. 48-4,¶ 3),
and she apparently worked there until March or April 2015, (see id. ¶¶ 10–11). Caroline Spiegel
averred that she worked at Amenia from November 2014 to March 2015. (Dkt. No. 48-5).
c.

April–December 2015

Plaintiff returned to work at Apple Greens Restaurant in April 2015 and worked there
until December 2015. (Dkt. No. 42-8, at 140, 158). According to her testimony, Plaintiff worked
with 10 or 11 other individuals at the Restaurant during that period. (Dkt. No. 42-8, at 159). She
specifically named the following individuals: Defendant Rodriguez (cook); Germania Soto
(cook), Intrieri’s niece; Guzman Soto (dishwasher/cook), Intrieri’s nephew and Germania’s
brother; Javier Padilla (cook); Jacquelyn Borello; Justin Swisher; Kerri Spiegel; Caroline
Spiegel; and Katlyn, Borello’s cousin. (Id. at 154, 160–62, 266). In her supplemental declaration,
Plaintiff lists the aforementioned individuals and adds Maria Intrieri. (See Dkt. No. 64-2, ¶ 9).
She further asserts:
10. Based on my memory, I believe that with the exception of
Caroline Spiegel and Kerri Spiegel, each of the employees
listed . . . worked at Apple Greens Restaurant throughout my
entire time as an employee there from approximately April
2015 through December 2015 which was a period of
approximately 9 months.
11. I believe Caroline Spiegel worked at Apple Greens Restaurant
from about August 2015 through October 2015, and Kerri
Spiegel worked at Apple Green Restaurant from about April
2015 through August 2015.
(Id. ¶¶ 10–11).
Defendants submitted paycheck records for the Restaurant and Amenia covering the
April–December 2015 period. (Dkt. No. 66-2 (list of “Paychecks for All Employees” at the
9

Apple Greens Restaurant); Dkt. No. 66-3 (list of “Paychecks for All Employees” at Amenia); see
Dkt. No. 66-4 (chart created by Geraldine Rifenburgh showing months in which each employee
of the Apple Greens Restaurant and Amenia received a paycheck)). In a supplemental
declaration, Geraldine Rifenburgh explained that her “computer suffered from a virus in March
of 2015 and as a result, [she] lost all employment data in the software from January through
March of 2015.” (Dkt. No. 66-1, ¶ 5). She stated that “at no point between January and March of
2015 did [Amenia] have 20 employees on the payroll,” and that “[a]t no time in 2015 did
[Amenia] and Apple Greens Restaurant combined have 20 or more employees on the payroll.”
(Id. ¶¶ 6, 9).
According to the paycheck records, Amenia employed the following individuals for the
entire April–December 2015 period: Fernando Linares; George Mayer; Geraldine Rifenburgh;
Geremy Mayer; Javier Padilla; and Michelle Mayer. Additionally, Jorge Luis Crisanto worked
there from May to December 2015; Caroline Berghahn from July to August 2015; Dana Decker
in May 2015; David Soto in May 2015; and Oscar Hernandez from July to December 2015. (See
Dkt. Nos. 66-3, 66-4). Further, according to the records, Geraldine Rifenburgh and Defendant
Rodriguez worked at the Apple Greens Restaurant from April to December 2015; Jacquelyn
Borello 12 from April to August 2015; Kerri Spiegel from May to August 2015; and Plaintiff from
May to November 2015. (See Dkt. Nos. 66-2, 66-4).
d.

January–December 2016

Geraldine Rifenburgh stated in her supplemental declaration that “[a]t no time in 2016
did [Amenia] and Apple Greens Restaurant combined have 20 or more employees on the
payroll.” (Id. ¶ 10). Defendants’ paycheck records indicate that between 10 and 12 employees

12

The records list Borello as “Jacquelyn Swisher,” after her boyfriend’s last name. (See Dkt. Nos. 66-2, 66-4).

10

worked at Amenia from January to December 2016. (See Dkt. Nos. 66-3, 66-4). They also show
that between 0 and 7 employees worked at the Apple Greens Restaurant during that time. (See
Dkt. Nos. 66-2, 66-4). Per these records, if the employees of the Restaurant and Amenia are
combined, a maximum of 18 employees worked there at any one time that year. (See Dkt. Nos.
66-2, 66-3, 66-4).
B.

2014 Seasonal Work at the Restaurant

In September 2014, Borello posted a Craigslist advertisement “on behalf of Apple Greens
looking for a waitress.” (Dkt. No. 42-10, ¶ 3; Dkt. No. 42-4, ¶¶ 1, 9). Plaintiff responded to the
advertisement via email, indicating that she was interested in the position. (Dkt. No. 42-10, ¶ 4;
Dkt. No. 42-4, ¶ 9). In the course of their email exchange, Borello inquired about Plaintiff’s age
for alcohol service purposes, and Plaintiff responded that she was “a young 47 yr old hard
worker.” (Dkt. No. 42-10, ¶ 5; Dkt. No. 42-4, ¶ 10). Borello interviewed Plaintiff at the
Restaurant and described the job requirements, including bar and food service. (Dkt. No. 44-1,
¶¶ 15–18). Borello also advised Plaintiff that the Restaurant closed down in December and
reopened for business in the spring. (Id. ¶ 19). At the conclusion of the interview, Borello offered
Plaintiff the job, and Plaintiff accepted. 13 (Id. ¶ 21). Borello trained Plaintiff, (Dkt. No. 42-8, at
310), and in October 2014 Plaintiff started working at the Restaurant, (id. at 40).
Plaintiff worked weekdays—Mondays through Fridays, from 9 a.m. to 6 p.m.—while
Borello, who was a full-time schoolteacher during the week, worked on weekends. (Dkt. No. 4210, ¶¶ 8–9; Dkt. No. 50, ¶ 3). Plaintiff earned $5 per hour, plus tips. (Dkt. No. 50, ¶ 3). She
usually worked with Defendant Rodriguez, who served as the Restaurant’s main cook but held
himself out as the Restaurant’s owner. (Dkt. No. 44-1 ¶ 23; Dkt. No. 42-8, at 76, 81, 180–81,
13
No Golf Course owner or employee was involved in the interviewing or hiring of Plaintiff or any other Restaurant
employee. (See Dkt. No. 44-1, ¶ 22).

11

323). Additionally, Plaintiff viewed Defendant Rodriguez as her manager. (Dkt. No. 42-8, at
181). He would pay her wages, other than tips. (Id. at 77–78). She would inform him if she could
not work one of her shifts. (Id. at 165). And he would ask that “a certain amount of people” work
specific shifts; the servers would decide among themselves who would work which days. (Id. at
122–23). The Restaurant and Golf Course shut down for the winter in December 2014. (Dkt. No.
42-8, at 75; Dkt. No. 57, ¶ 5).
C.

2014/2015 Seasonal Work at Amenia

According to Plaintiff’s testimony, in fall 2014, Borello had told her that Defendant
Rodriguez “was opening a steak house,” and that Plaintiff could work there “in the in-between
season” if she wanted to. (Dkt. No. 42-8, at 90–91). Plaintiff further testified that, as the season
went on, Defendant Rodriguez told her he was “shorthanded” at the steak house and “didn’t have
enough staff,” and he asked her if she “wanted to make extra money.” (Id. at 91). Plaintiff
accepted the offer and started working at the Amenia steak house as a waitress and bartender in
November 2014, while she was still working at the Apple Greens Restaurant. (Id. at 91–93).
When the Apple Greens Restaurant closed down for the season, Plaintiff started working at
Amenia full time, five to six days a week. (Id. at 95, 100).
According to Plaintiff, Defendant Rodriguez was the “head cook” at Amenia. 14 (Id. at
94). He also managed the business and initially paid employees in cash. (See id. at 117–18; Dkt.
No. 48-3; Dkt. No. 48-4, ¶ 8; Dkt. No. 48-5). Plaintiff testified that, at Defendant Rodriguez’
invitation, she hired her daughter Kerri Spiegel to work at Amenia full time in December 2014.
(Dkt. No. 42-8, at 101–02). Plaintiff likewise hired her daughter Caroline Spiegel for a part-time
position at Amenia. (Id. at 113). Plaintiff worked at Amenia until the end of March 2015, as the
14
Defendant Rodriguez disputed that account, testifying that he was only a customer at Amenia and never worked
there. (Dkt. No. 46-2, at 54–57, 68–69).

12

Restaurant and the Golf Course were reopening at the beginning of April 2015. (Dkt. No. 42-8,
at 95, 140–41; Dkt. No. 57, ¶ 5). Plaintiff was not terminated from Amenia, (Dkt. No. 42-10,
¶ 15); instead, she left to return to work at the Restaurant because the hours and days were better
and more consistent than at the steak house, (Dkt. No. 42-8, at 96). Plaintiff did not work at
Amenia again after March 2015. (Dkt. No. 42-10, ¶ 13).
D.

2015 Seasonal Work at the Apple Greens Restaurant

When she returned to the Restaurant in April 2015, business was slow, but it picked up in
May, at which point Plaintiff was “back to working full-time.” (See Dkt. No. 42-8, at 147, 151).
Plaintiff’s paychecks were signed by Intrieri. (Dkt. No. 42-8 at 148–49).
At the end of June or early July 2015, Borello, who did not teach during the summer,
asked Plaintiff if she would trade a weekday shift for one of Borello’s weekend shifts, but
Plaintiff declined. (Dkt. No. 42-10, ¶ 17; Dkt. No. 57, ¶ 14; Dkt. No. 42-8, at 314). Plaintiff felt
that she should not have to “keep switching days because [Borello was] off from school.” (Dkt.
No. 42-8, at 191). According to Plaintiff, Defendant Rodriguez initially reassured her that
Borello was “not taking any days,” as Borello “had enough shifts.” (Id. at 190, 192). Eventually,
however, Borello ended up taking Plaintiff’s Thursday shift. (Id.).
At her deposition, Plaintiff explained that she learned about the shift change because
Defendant Rodriguez “came in talking about it” after “sitting outside with Dave and Judy
[Roehrs].” (Id. at 189). She remembered that Defendant Rodriguez “came in all pissed off and
said [Borello] is taking one of your shifts, she is quicker than you, and you need a day off
anyway, you’re older.” (Id.). Plaintiff could not explain Defendant Rodriguez’s reversal, (id. at
187), but she surmised that Mr. Roehrs had a role in the shift change:
Q.
A.

And what do you think Mr. Roehrs’ input was?
I don’t really know what happened. I saw them all talking
outside. I don’t know what he said.
13

Q.
A.
Q.
A.
Q.
A.

So you don’t—
I can’t say what he said, but I know whatever he said made
Justin angry.
Okay. And did Justin tell you what he said?
No.
How do you know what Mr. Roehrs [sic] made Justin angry?
Because I saw him come through the door and he was pissed
off.

....
Q. What did he do that made you think he was pissed off? Was
it his tone, did he throw something; what did he do?
A. His tone, he was pissed off, you know, he was speaking
loudly. I mean, he was pissed off.
(Dkt. No. 42-8, at 192–93).

Text messages between Plaintiff and Borello indicate that they had a strained work
relationship. (See generally Dkt. No. 42-6). For example, on August 19, 2015, Borello asked
Plaintiff why she was not “put[ting] stock away,” noting that it was “part of the job”; Plaintiff
responded that she did, and Borello replied, “You actually don’t. It will be here for you to put
away Friday. And if it isn’t I’ll find someone who will do what they have to do here. Everything
you are asked to do, you stop doing. It’s ridiculous.” (Id. at 3–4). In her declaration submitted in
support of summary judgment, Borello states that Plaintiff “was not a good employee” and that
she “constantly failed to do her side work including the stocking of coolers, would cut her shifts
short, would show up for work late, would drink alcohol during her shift, leave the doors
unlocked, leave the air conditioning running and take alcohol from the Restaurant at the end of
the night.” (Dkt. No. 42-4, ¶ 20). Plaintiff disputes these assertions, stating that she “was always
a good employee and never received any discipline due to performance issues or issues of
insubordination,” and that she “never received any verbal or written warnings, nor any write-ups,
from management.” (Dkt. No. 48-2, ¶ 2).

14

E.

Age-Related Comments

It is undisputed that no one at the Restaurant made any comments in 2014 about
Plaintiff’s age or about needing younger staff. (Dkt. No. 44-1, ¶ 36). Likewise, it is
uncontroverted that Intrieri, Rifenburgh, and Borello never made comments about Plaintiff’s age.
(Dkt. No. 42-10, ¶ 21). Plaintiff, however, testified that Defendant Rodriguez started making
age-related comments to her while she worked at Amenia. (Dkt. No. 42-8, at 111). Asked to
describe the first time such comments were made, Plaintiff recounted the conversation as
follows:
Put your glasses on, you need them to read, don’t you need them to
read, he would say, especially if we got really, really busy, he’s
like hurry up, old lady, got to keep up, got to keep up. He would be
yelling from the kitchen, because, like I said, we were really shortstaffed a lot and the food would start piling up in the back, and
he’s like, hurry up, you’re old, get the food out, it has got to go out,
and we were always backed up because we didn’t have enough
workers.
(Id. at 112–13; see also Dkt. No. 48-2, ¶ 6). Plaintiff also recalled that Defendant Rodriguez
made age-related comments to another Amenia server who was a couple of years younger than
her. (Dkt. No. 42-8, at 114).
Initially, although she found the age-related comments “offensive and hurtful,” Plaintiff
did not complain because she was “not comfortable standing up for [herself],” as she was “a
relatively new employee” and “hoped it wouldn’t continue.” (Dkt. No. 48-2, ¶ 7). After she
returned to the Restaurant in 2015, “Defendant Rodriguez’s comments to [her] about [her] age
became more frequent during the summer time,” and “he began regularly commenting on her
need to wear reading glasses” and stated that Plaintiff should be put in a nursing home. (Id. ¶ 8).
He made “offensive comments” about Plaintiff’s age two to three times per week between
summer 2015 and her last day of work. (Id.).

15

Defendant Rodriguez made similar comments about Plaintiff’s age to her daughters Kerri
Spiegel and Caroline Spiegel. (Dkt. No. 48-4, ¶¶ 12–18; Dkt. No. 48-5). For example, he would
ask Kerri Spiegel when she was “taking [her] Mom to Florida” because that is where “old people
belong.” (Dkt. No. 42-8, at 245–46). When Plaintiff would come to work later in the day,
Defendant Rodriguez would ask Kerri Spiegel if “that old lady was going to make it out of bed.”
(Dkt. No. 48-4, ¶ 13). He used to tell Kerri Spiegel that “we need to find an older rich man for
your mother because she’s too old to work.” (Id. ¶ 16). Additionally, Defendant Rodriguez told
Kathleen Colletti, another employee of the steak house, that, when she wore her glasses on her
head, she looked “old like Theresa,” referring to Plaintiff. (Dkt. No. 48-3).
Besides age-related comments, Plaintiff testified that Defendant Rodriguez treated her
differently because of her age. (Dkt. No. 42-8, at 202). She mentioned that he “didn’t really want
[her] out on the golf carts for outings because there were younger girl[s]” available. (Id.; see also
Dkt. No. 48-4, ¶ 15).
Beginning around September 2015, Plaintiff started objecting and complaining to
Defendant Rodriguez in response to his age-related comments. (Dkt. No. 48-2, ¶ 9). She told
him, “[S]top calling me old, I look good for my age. I’m just as quick as all of the younger
people here.” (Dkt. No. 42-8, at 171). Plaintiff would also say, “[S]top making fun of me. . . .
[Y]ou’re going to be my age sometime, you are old, you’re getting old, you know.” (Id. at 256).
She referred to him as an “old guy,” (id. at 254–55), but it was merely a reference to the way in
which he would taunt her, (Dkt. No. 48-2, ¶ 10). Plaintiff did not perceive these conversations as
playful banter. (Dkt. No. 42-8, at 256). She objected to his age-related comments on a weekly
basis. (Dkt. No. 48-2, ¶ 9).

16

F.

Termination

At the end of the Restaurant’s winter season in December 2015, Plaintiff, who wanted to
return in the spring, asked Defendant Rodriguez whether she would be coming back, and he said,
“[Y]es, I will see you in the spring.” (Dkt. No. 42-8, at 181, 334). Plaintiff also asked about
working at Amenia, but he told her there was no vacancy at the steak house. (See id. at 97–98).
The Golf Course and the Restaurant reopened in February 2016. (Dkt. No. 57, ¶ 54).
Defendant Rodriguez, however, ignored Plaintiff’s calls and text messages seeking to resume
working at the Restaurant. (Id. ¶ 55). On February 28, 2016, Borello sent Plaintiff the following
text message:
Hi Theresa, I’m not sure if you still have my number, but if not this
is Jacquelyn from apple greens. I hope you had a nice winter. I
know you have been wondering about this year so I just wanted to
get in touch with you regarding this season. Unfortunately it really
didn’t work out last year so we do not plan on bringing you back to
work. I apologize and wish you luck.
(Dkt. No. 42-6, at 14).
According to Defendants, in February 2016, Borello, Intrieri, and Rifenburgh met to
discuss opening the Restaurant for the season, and they decided not to bring Plaintiff back
because of Plaintiff’s “conduct during the 2015 season.” 15 (Dkt. No. 42-4, ¶ 29; see also Dkt.
No. 42-1, ¶¶ 28–29). Plaintiff believes that the Restaurant did not rehire her because of her age
“due to the fact that [Defendant Rodriguez] called [her] old all the time and [she] was the oldest
person working there.” (Dkt. No. 42-8, at 174). Further, Plaintiff asserts that her termination was
the result of her complaining to Defendant Rodriguez about his age-related comments. (Dkt. No.
50, ¶ 46, at 10; see Dkt. No. 42-8, at 170–71, 256).

Defendants assert that no Golf Course owner or employee participated in the decision not to rehire Plaintiff. (See
Dkt. No. 44-1, ¶¶ 41, 68; Dkt. No. 42-4, ¶ 6; Dkt. No. 44-4, ¶ 19).

15

17

III.

STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56(a), summary judgment may be granted only if

all the submissions taken together “show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986).
The moving party bears the initial burden of demonstrating “the absence of a genuine issue of
material fact.” Celotex, 477 U.S. at 323. A fact is “material” if it “might affect the outcome of
the suit under the governing law,” and is genuinely in dispute “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248; see
also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005) (citing Anderson). The
movant may meet this burden by showing that the nonmoving party has “fail[ed] 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.” Celotex, 477 U.S. at 322; see also Selevan
v. N.Y. Thruway Auth., 711 F.3d 253, 256 (2d Cir. 2013) (summary judgment appropriate where
the nonmoving party fails to “‘come forth with evidence sufficient to permit a reasonable juror to
return a verdict in his or her favor on’ an essential element of a claim” (quoting In re Omnicom
Grp., Inc. Sec. Litig., 597 F.3d 501, 509 (2d Cir. 2010))).
If the moving party meets this burden, the nonmoving party must “set out specific facts
showing a genuine issue for trial.” Anderson, 477 U.S. at 248, 250; see also Celotex, 477 U.S. at
323–24; Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). “When ruling on a summary
judgment motion, the district court must construe the facts in the light most favorable to the nonmoving party and must resolve all ambiguities and draw all reasonable inferences against the
movant.” Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003). Still, the
nonmoving party “must do more than simply show that there is some metaphysical doubt as to
18

the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986),
and cannot rely on “mere speculation or conjecture as to the true nature of the facts to overcome
a motion for summary judgment,” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir.1986)
(quoting Quarles v. Gen. Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985)). Furthermore, “[m]ere
conclusory allegations or denials . . . cannot by themselves create a genuine issue of material fact
where none would otherwise exist.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (quoting
Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995)).
IV.

DISCUSSION
The ADEA makes it “unlawful for an employer . . . to fail or refuse to hire or to discharge

any individual or otherwise discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C.
§ 623(a)(1). In relevant part, the “term ‘employer’ means a person engaged in an industry
affecting commerce who has twenty or more employees for each working day in each of twenty
or more calendar weeks in the current or preceding calendar year.” Id. § 630(b). Thus, a
“business must have at least twenty ‘employees’ to be an ‘employer’” subject to the ADEA’s
requirements. Morelli v. Cedel, 141 F.3d 39, 44 (2d Cir. 1998) (quoting 29 U.S.C. § 630(b)). The
“twenty-employee minimum is an element of a claim under the ADEA,” Downey v. Adloox Inc.,
238 F. Supp. 3d 514, 524 (S.D.N.Y. 2017), which the plaintiff bears the burden of proving. The
current “calendar year” is the period between January and December of the year in which the
alleged violation occurred. See Rogers v. Sugar Tree Prod., Inc., 7 F.3d 577, 580 (7th Cir. 1993),
abrogated on other grounds by Papa v. Katy Indus., Inc., 166 F.3d 937 (7th Cir. 1999); see also
Centeno v. 75 Lenox Realty LLC, No. 14-cv-1916, 2017 WL 9482090, at *11 n.19, 2017 U.S.
Dist. LEXIS 15008, at *29–30 n.19 (E.D.N.Y. Feb. 1, 2017) (assessing whether the employee
minimum requirement was met either in the year when the alleged acts occurred or in the
19

preceding year), report and recommendation adopted, 2017 WL 1214451, 2017 U.S. Dist.
LEXIS 50819 (E.D.N.Y. Mar. 31, 2017).
To determine whether “an employer ‘has’ an employee on any working day,” the relevant
inquiry is whether “the employer has an employment relationship with the individual on the day
in question.” Walters v. Metro. Educ. Enters., Inc., 519 U.S. 202, 206–07 (1997) (adopting the
so-called “payroll method” to determine the number of individuals employed by a defendant in
Title VII cases, and noting that this method “has also been adopted by the EEOC under the Age
Discrimination in Employment Act of 1967, which defines ‘employer’ in precisely the way Title
VII does”). The focus is on “whether the employer has an employment relationship with the
employee on the day in question, and not whether the employee actually performs work or
receives compensation on the day in question.” Frederick v. United Bhd. of Carpenters &
Joiners of Am. (UBCJA) Local 926, 558 F. App’x 83, 86 (2d Cir. 2014).
While “the employment relationship is most readily demonstrated by the individual’s
appearance on the employer’s payroll,” “what is ultimately critical . . . is the existence of an
employment relationship, not appearance on the payroll; an individual who appears on the
payroll but is not an ‘employee’ under traditional principles of agency law would not count
toward the . . . minimum.” Walters, 519 U.S. at 206, 211 (citation omitted); Keller v. Niskayuna
Consol. Fire Dist. 1, 51 F. Supp. 2d 223, 230–31 (N.D.N.Y. 1999) (observing that “Walters does
not establish that only a wage or salary will establish an ‘employment relationship’”). Under the
payroll method, employees are counted so long as they are on the employer’s payroll, even if
they do not work or get paid in a particular week. See Walters, 519 U.S. at 207, 211–12. Thus,
“an employee who works irregular hours, perhaps only a few days a month, will be counted
toward the 15-employee minimum for every week in the month.” Id. at 210. Put simply, “all one

20

needs to know is whether the employee started or ended employment during that year and, if so,
when. He is counted as an employee for each working day after arrival and before departure.” Id.
at 211.
A.

Restaurant and Amenia

Defendants Restaurant and Amenia assert that the alleged violation occurred in March
2016, when she was “terminated”; therefore, they argue that the relevant time period under the
ADEA (i.e., the period spanning the current and preceding calendar years) is 2015–2016. (Dkt.
No. 42-11, at 13 (quoting Dkt. No. 4, ¶ 46)). Although Plaintiff did not contest that point in her
opposition, she asserts in her supplemental briefing that the alleged discriminatory acts occurred
in 2015 and 2016, and therefore that 2014, 2015, and 2016 are the relevant years for analyzing
whether the 20-employee minimum is satisfied. (Dkt. No. 65, at 6). For summary judgment
purposes, the Court will analyze whether the employee-minimum threshold requirements are
satisfied in each of the three years in question.
Plaintiff contends that the Restaurant and Amenia are an integrated employer and
together have more than 20 employees; thus, according to Plaintiff, the Restaurant and Amenia
jointly satisfy § 630(b)’s 20-employee minimum. (Dkt. No. 52, at 18–20). Defendants challenge
this view and note that, even if the employees of Restaurant and Amenia are aggregated for
§ 630(b) purposes, the record evidence shows that they had less than 20 employees during the
relevant time period. (Dkt. No. 42-11 at 13–14).
1.

Number of Employees in 2014

For 2014, the only evidence before the Court is deposition testimony from Plaintiff and
Intrieri about the number of employees at the Restaurant and Amenia in fall 2014. Plaintiff
testified that, when she worked at the Restaurant in October and November 2014, “it was just
[Defendant Rodriguez] and [her]self the majority of the time,” although she occasionally worked
21

with two other individuals, Fernando Linares and David Soto. (Dkt. No. 42-8, at 74–75). Intrieri
testified that there were “about seven” workers at Amenia when the steak house opened in
September 2014. (Dkt. No. 44-3, at 45). Therefore, there were at most 11 employees working at
the Restaurant and Amenia in fall 2014. In December 2014, only Amenia was open, and it is
undisputed that Amenia did not have 20 or more employees in December 2014. Accordingly,
there can be no genuine dispute about the fact that the combined restaurants did not satisfy the
threshold number of employees in 2014.
2.

Number of Employees in 2015

Only Amenia was open from January to March 2015. Since Plaintiff does not assert that
Amenia ever had 20 or more employees, it follows that the employee-minimum threshold cannot
be satisfied for any week during this three-month period. Further, even assuming that the
Restaurant could have employees while it was closed and that the employees it had in 2014 were
on the payroll during the months it was closed, the employee minimum would still not be met.
Plaintiff testified that she worked with Jacquelyn Borello, Defendant Rodriguez, Fernando
Linares, and David Soto at the Restaurant in October and November 2014; and she specified that
no other servers or bartenders worked at the Restaurant during that time. (See Dkt. No. 42-8, at
49–55, 74–75). Since Plaintiff’s list of individuals who worked at Amenia between December
2014 and March 2015 already includes Defendant Rodriguez, Fernando Linares, and David Soto,
(see Dkt. No. 64-2, ¶ 5), counting these three individuals as Restaurant employees during the
January–March 2015 period does not change Plaintiff’s tally. And adding Jacquelyn Borello to
Plaintiff’s list—which has 18 individuals excluding Intrieri (as to Intrieri’s treatment as a
nonemployee owner, see below)—yields a total of 19 employees combined.
Plaintiff left Amenia at the end of March 2015 and resumed working at the Restaurant in
April 2015. She submitted evidence, including deposition testimony and affidavits, about the
22

number of individuals who worked at the Restaurant from April to December 2015. She did not,
however, proffer evidence of the number of individuals who worked at Amenia during that time;
the only such evidence comes from Defendants’ paycheck records.
Plaintiff claims that she worked with 10 other individuals at the Restaurant in 2015. But
one of the individuals she lists is Maria Intrieri, the owner of the Restaurant. Under controlling
precedent, analyzing whether an owner is an employee must “focus on the common-law
touchstone of control.” Clackamas Gastroenterology Assocs., P. C. v. Wells, 538 U.S. 440, 449–
50 (2003). Courts consider, among relevant factors, whether: (1) “the organization can hire or
fire the individual or set the rules and regulations of the individual’s work”; (2); “the
organization supervises the individual’s work,” and, if so, to what extent; (3) “the individual
reports to someone higher in the organization”; (4) “the individual is able to influence the
organization,” and, if so, to what extent; (5) “the parties intended that the individual be an
employee, as express in written agreements or contracts”; and (6) the individual shares in the
profit, losses, and liabilities of the organization.” Id. (quoting EEOC Compliance Manual
§ 605:0009). Plaintiff has not presented evidence supporting any of these six factors. If anything,
the record indicates that Intrieri was a nonemployee owner of the Restaurant as well as Amenia.
(See Dkt. No. 42-8, at 75–76, 116–17 (Plaintiff testifying that Intrieri did not have a role at the
Restaurant or Amenia and that she was “never an active owner”); Dkt. No. 44-3, at 44 (Intrieri
testifying that she “was the owner” at Amenia and “was there not doing any work but to make
sure everything was functioning properly”)). Accordingly, Intrieri cannot be counted toward the
employee-minimum threshold. See Fitzgibbons v. Putnam Dental Assocs., P.C., 368 F. Supp. 2d
339, 343 (S.D.N.Y. 2005) (finding that a sole shareholder of a dental practice was not an
employee under Title VII).

23

Viewing the evidence in the light most favorable to Plaintiff and drawing all reasonable
inferences in her favor, the Court accepts as true Plaintiff’s assertions that seven of the listed
individuals—Defendant Rodriguez, Javier Padilla, Germania Soto, Guzman Soto, Jacquelyn
Borello, Justin Swisher, and Katlyn—worked at the Restaurant the entire time from April to
December 2015; that Caroline Spiegel worked there from August to October 2015; and that Kerri
Spiegel worked there from April to August 2015. (See Dkt. No. 64-2, ¶¶ 9–11). Further, because
Caroline and Kerri Spiegel worked at Amenia before April 2015, and crediting all reasonable
inferences in favor of Plaintiff, the Court will count them as having been continuously employed
by the purported joint enterprise until their last month of employment. See Walters, 519 U.S. at
207, 211–12 (explaining that, under the payroll method, an individual is “counted as an
employee for each working day after arrival and before departure,” whether or not she worked or
was paid). Therefore, the Court counts Caroline Spiegel as an employee of the Restaurant from
April to October 2015, and Kerri Spiegel as an employee of the Restaurant from April to August
2015.
For Amenia’s employee headcount, the Court draws the same reasonable inferences in
favor of Plaintiff. 16 According to her supplemental declaration, Plaintiff worked with David
Soto, Oscar Hernandez, and a hostess named Caroline at Amenia between December 2014 and

Plaintiff argues that Defendants’ paycheck records are incomplete because some of the individuals she remembers
working with do not appear in the records. (See Dkt. No. 65, at 7–10). But Plaintiff left Amenia at the end of March
2015, and she has not proffered evidence of who worked at Amenia after she left. At any rate, the Court has
accounted for the possibility that the records are incomplete by: (1) crediting Plaintiff’s evidence of the number of
employees at the Restaurant during the April–December 2015 period, including employees who were not listed in
Defendants’ records; and, as described above, (2) supplementing Amenia’s paycheck records by inferring that the
employees who worked at Amenia before April 2015 according to Plaintiff and received paychecks during the
April–December 2015 period according to the records were continuously employed. That leaves only four
employees that Plaintiff recalls worked at Amenia before she left in March 2015 who are not on the Court’s chart:
two servers (Jeanie and Christine Pizzuti); a host/busser (Aryanna Lawrence); and a manager (Jenny). Even if a jury
could infer that Amenia continued employing these individuals through some date beyond March 2015, absent any
record evidence, the jury would have to engage in pure speculation to find that the two entities combined had
“twenty or more employees for each working day in each of twenty or more calendar weeks.” 29 U.S.C. § 630(b).
16

24

March 2015. (See Dkt. No. 64-2, ¶ 5). Because Defendants’ paycheck records for Amenia show
that David Soto received paychecks in May 2015, the Court counts him as an employee of
Amenia from April to May 2015. (See Dkt. Nos. 66-3, 66-4). Similarly, because Oscar
Hernandez received paychecks from July to December 2015, the Court counts him an employee
of Amenia from April to December 2015. (See id.). Defendants’ records show that a Caroline
Berghahn received paychecks in July and August 2015. (See id.). Crediting Plaintiff’s assertion
that a hostess with the same first name worked at Amenia before April 2015, the Court counts
her as continuously employed from April to August 2015. In addition to these three individuals,
Defendants’ records show that five individuals 17—Geraldine Rifenburgh, Fernando Linares,
Michelle Mayer, Geremy Mayer, and George Mayer—received paychecks from April to
December 2015, that Dana Decker was paid in May 2015, and that Jorge Luis Crisanto received
paychecks from May to December 2015. (See id.).
All in all, this evidence, viewed in the light most favorable to Plaintiff with all reasonable
inferences drawn in her favor, shows the following number of employees at the purported joint
enterprise formed by the Restaurant and Amenia from April to December 2015:

17
The records also indicate that Javier Padilla received paychecks from Amenia from May to December 2015, (see
Dkt. Nos. 66-3, 66-4), but the Court has already counted him as an employee of the Restaurant.

25

Theresa Geraci
Justin Rodriguez
Jacquelyn Borello
Javier Padilla
Germania Soto
Guzman Soto
Justin Swisher
Katlyn
Caroline Spiegel
Kerri Spiegel
David Soto
Oscar Hernandez
Caroline Berghahn
Geraldine Rifenburgh
Fernando Linares
Michelle Mayer
Geremy Mayer
George Mayer
Dana Decker
Jorge Luis Crisanto
TOTAL

Apr15
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
18

May15
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
20

Jun15
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
18

Jul15
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
18

Aug15
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
18

Sep15
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
16

Oct15
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
16

Nov15
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
15

Dec15
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
15

As the chart shows, the only month when the Restaurant and Amenia together employed
20 workers was May 2015. Even interpreting all of the evidence in the light most favorable to
Plaintiff, and allowing for some leeway in delineating time periods—for example, by inferring
that the four individuals not on this chart, whom Plaintiff identified as Amenia employees as of
March 2015, continued working at Amenia through some later date (see supra note 16)—no
reasonable jury could find on the record evidence that Plaintiff has met the 20-week, 20employee minimum. Plaintiff argues that Defendants’ records are incomplete, but the 20employee minimum is an element of a claim under the ADEA,” Downey v. Adloox Inc., 238 F.
Supp. 3d 514, 524 (S.D.N.Y. 2017), which a plaintiff bears the burden of proving. Plaintiff has
failed to raise a genuine issue of fact as to this element of her case for the year 2015.

26

3.

Number of Employees in 2016

The only evidence before the Court regarding the number of employees in 2016 comes
from Defendants’ paycheck records. Plaintiff concedes that these records do not show that
Defendants met the 20-employee minimum. (Dkt. No. 65, at 9). These show that, at a maximum,
the two restaurants had 18 workers on their staff at any one time during that year. (See Dkt. Nos.
66-2, 66-3, 66-4). Thus, Plaintiff has failed to raise a genuine dispute of material fact concerning
the number of employees who worked at the Restaurant and Amenia in 2014, 2015 and 2016.
The Court concludes that the Restaurant and Amenia, taken separately or together, are not
employers subject to liability under the ADEA.
B.

Restaurant and Golf Course

Whereas neither the Restaurant nor Amenia satisfies the 20-employee minimum, the
Court assumes the Golf Course alone had more than 20 employees during the relevant period. 18
Plaintiff argues that the Restaurant and the Golf Course are an integrated employer for § 630(b)
purposes and therefore both subject to liability under the ADEA. 19 (See Dkt. No. 52, at 16–20).
Defendants demur, arguing that the “Restaurant and the Golf Course are in all respects separate
businesses.” (Dkt. No. 44-2, at 7).
Under Title VII—which, like the ADEA, applies only to employers with a threshold
number of employees—a plaintiff may assert an employment discrimination claim against an
Although the parties did not put forth evidence concerning the number of employees at the Golf Course during the
relevant period, Defendants did not counter Plaintiff’s assertion that the Golf Course had more than 20 employees.
(Compare Dkt. No. 49, at 11, with Dkt. No. 58).
18

The Court notes that Plaintiff does not specifically argue that the Restaurant and the Golf Course are a “joint
employer.” Under the joint employer doctrine, which is distinct from the integrated enterprise doctrine, a joint
employer relationship “involves separate legal entities that ‘handle certain aspects of their employer-employee
relationship jointly.’” Griffin v. Sirva Inc., 835 F.3d 283, 292 (2d Cir. 2016) (quoting Clinton’s Ditch Coop. Co. v.
NLRB, 778 F.2d 132, 137 (2d Cir. 1985)). “A joint employer relationship may be found to exist where there is
sufficient evidence that the respondent had immediate control over the other company’s employees.” NLRB v. Solid
Waste Servs., Inc., 38 F.3d 93, 94 (2d Cir. 1994). As discussed below, see infra Part IV.B.2, Plaintiff has not raised a
triable issue of fact concerning the Golf Course’ control over the Restaurant’s employees.
19

27

entity other than her direct employer if that entity and her direct employer are an “integrated
enterprise.” Parker v. Columbia Pictures Indus., 204 F.3d 326, 341 (2d Cir. 2000) (“To prevail
in an employment action against a defendant who is not the plaintiff’s direct employer, the
plaintiff must establish that the defendant is part of an ‘integrated enterprise’ with the employer,
thus making one liable for the illegal acts of the other.”). Although the parties disagree whether
this “integrated enterprise” doctrine applies in ADEA cases, (compare Dkt. No. 44-2, at 11, with
Dkt. No. 49, at 11–14), Defendants argue that, in any event, the Restaurant and the Golf Course
are not an integrated enterprise. (Dkt. No. 44-2, at 12).
Under the Second Circuit’s integrated enterprise test, two separate entities “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.” Brown v. Daikin Am. Inc., 756 F.3d 219, 226 (2d Cir. 2014)
(quoting Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1240 (2d Cir. 1995)). 20 “Although
no one factor is determinative . . . control of labor relations is the central concern.” Id. (quoting
Murray v. Miner, 74 F.3d 402, 404 (2d Cir. 1996)). The Court examines each factor in turn
below.
1.

Interrelation of Operations

To determine whether two entities’ operations are interrelated, courts examine whether:
(1) one entity is involved in the other’s daily production, distribution, marketing, and advertising
decisions; (2) the entities share employees, services, records, and equipment; (3) the entities
commingle bank accounts, inventories, and lines of credit; (4) one entity maintains the other’s

Although the integrated enterprise test typically applies to parent–subsidiary relationships, courts have applied it
outside of that context. See Centeno v. 75 Lenox Realty LLC, No. 14-cv-1916, 2017 WL 9482090, at *10, 2017 U.S.
Dist. LEXIS 15008, at *27 (E.D.N.Y. Feb. 1, 2017), report and recommendation adopted, 2017 WL 1214451, 2017
U.S. Dist. 50819 (E.D.N.Y. Mar. 31, 2017).
20

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books; (5) one entity issues the other’s paychecks; and (6) one entity prepares and files tax
returns for the other. See Ferguson v. New Venture Gear, Inc., No. 04-cv-1181, 2009 WL
2823892, at *2, 2009 U.S. Dist. LEXIS 78111, at *6–7 (N.D.N.Y. Aug. 31, 2009).
It is undisputed that the Restaurant and the Golf Course do not share employees and that
they maintain entirely separate payroll systems, employee records, and insurance. (Dkt. No. 441, ¶ 75; Dkt. No. 50, ¶¶ 62–64). Additionally, there is no evidence that the Golf Course was
involved in the Restaurant’s day-to-day operational decisions, that the Golf Course maintained
the Restaurant’s books, or that the Golf Course filed the Restaurant’s tax returns. Although the
record shows that the Golf Course was the Restaurant’s landlord, (Dkt. No. 44-4, ¶ 6), that the
Restaurant provided food and beverages to golfers for the Golf Course’s outings, (Dkt. No. 42-8,
at 58, 87, 347–49), and that the Golf Course charged the Restaurant a 10-percent fee for catering
events on the Golf Course’s grounds, (Dkt. No. 44-1, ¶ 56), these facts, even viewed in the light
most favorable to Plaintiff, do not suggest the lack of an arm’s-length relationship between the
two entities, see Lihli Fashions Corp., Inc. v. NLRB, 80 F.3d 743, 747 (2d Cir. 1996)
(“Ultimately, single employer status depends on all the circumstances of the case and is
characterized by absence of an arm’s length relationship found among unintegrated companies.”
(internal quotation marks omitted)).
Plaintiff nevertheless argues that the Restaurant and the Golf Course had interrelated
operations because “the Restaurant regularly used the Golf Course’s equipment” when
Restaurant employees delivered drinks to golfers using the Golf Course’s carts. (Dkt. No. 49, at
15). More generally, Plaintiff testified that the Restaurant would close when the Golf Course was
closed. (See id. at 86–87). 21 Even if credited, this evidence does not raise triable issues of fact
Plaintiff also testified that, when the Golf Course was closed to “outside golfers” during big outings, the
Restaurant would only serve outing patrons. (See Dkt. No. 42-8, at 349).
21

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concerning interrelated operations. The fact that the Restaurant’s business hours were affected by
the Golf Course’s schedule is unremarkable, given the Restaurant’s location inside the Golf
Course. Further, the record indicates that the Restaurant’s use of a “beverage cart” was permitted
under the lease between the Restaurant’s owner and its corporate landlord. (Dkt. No. 44-4, at
11); see Swallows v. Barnes & Noble Book Stores, Inc., 128 F.3d 990, 994 (6th Cir. 1997)
(explaining that the provisions by which “Barnes & Noble paid TTU for the use of its building
and for utilities” and “received maintenance services from TTU” were “nothing more than
standard contractual lease terms” and did “not show interrelation of operations”). In any event,
regardless of who owned the beverages carts, the record is clear that the Restaurant and the Golf
Course operated within their respective spheres, and that the role of Restaurant employees was to
serve food and beverages only. (See Dkt. No. 42-8, at 58, 87). Contrary to Plaintiff’s contention,
(see Dkt. No. 49, at 15), the fact that golfers tipped Restaurant employees for drinks does not
mean that Restaurant employees were paid by the Golf Course. Also, it is undisputed that
Plaintiff’s paychecks were issued by the Restaurant, not the Golf Course, (see Dkt. No. 42-8 at
148–49), and that the Golf Course did not receive any of the profits from the Restaurant’s sale of
beverages to golfers. (Dkt. No. 44-1, ¶ 55).
Lastly, Plaintiff argues that “the Golf Course enforced a dress code at the Restaurant.”
(Dkt. No. 49, at 15). The evidence for that proposition is muddled, as Plaintiff herself testified
that the Restaurant did not require employees to wear a uniform and that she was free to wear
what she wanted. (Dkt. No. 42-8, at 335). Nevertheless, viewing the evidence in the light most
favorable to Plaintiff, the Court credits Plaintiff’s testimony that Ms. Roehrs “didn’t want
anybody wearing provocative clothes” inside the Restaurant. (Id. at 336–37; see also Dkt. No.
51-4, ¶ 20). Even assuming that the Golf Course enforced its dress code on all persons inside the

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property, including Restaurant employees, that fact does not establish interrelated operations
under the circumstances of this case. Cf. Narjes v. Absolute Health Servs., Inc., No. 17-cv-739,
2018 WL 3208180, at *5 (N.D. Ohio June 29, 2018) (rejecting, in an analogous FLSA case, the
argument that a defendant’s “statements concerning Plaintiff’s failure to adhere to the dress
code” was “proof of interrelated operations” between the defendant and the plaintiff’s employer).
Because evidence of interrelated operations is lacking, this factor does not support a
finding that the Golf Course was Plaintiff’s employer. See Herman v. Blockbuster Entm’t Grp.,
18 F. Supp. 2d 304, 309 (S.D.N.Y. 1998) (finding that Blockbuster’s performance of
“management services,” including payroll processing and information technology, for another
company evidenced a “limited interrelationship” which was “insufficient to support a finding of
interrelated operations,” given that “[m]ost significant operations at the two corporations were
separate and distinct”), aff’d, 182 F.3d 899 (2d Cir. 1999).
2.

Centralized Control of Labor Relations

Centralized control of labor relations includes “tasks such as handling job applications,
approving personnel status reports, and exercising veto power over major employment
decisions.” Parker v. Columbia Pictures Indus., 204 F.3d 326, 341 (2d Cir. 2000); see also
Laurin v. Pokoik, No. 02-cv-1938, 2004 WL 513999, at *6, 2004 U.S. Dist. LEXIS 4066, at *19
(S.D.N.Y. Mar. 15, 2004) (“Centralized control over labor relations, the most important prong in
the single-employer inquiry, can include such factors as whether the companies have separate
human resources departments and whether the entity establishes its own policies and makes its
own decisions as to the hiring, discipline, and termination of its employees.” (internal quotation
marks omitted)). “In determining whether a plaintiff adequately alleges centralized control over
labor relations . . . the central question is ‘[w]hat entity made the final decisions regarding
employment matters related to the person claiming discrimination?’” Brown, 756 F.3d at 227
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(alteration in original) (quoting Cook, 69 F.3d at 1240). Although a “plaintiff need not
demonstrate that the [separate entity] exercises ‘day-to-day control’ over labor relations,” she
must show that the separate entity’s “involvement ‘is sufficient and necessary to the total
employment process, even absent total control or ultimate authority over hiring decisions.’”
Turley v. ISG Lackawanna, Inc., 774 F.3d 140, 156–57 (2d Cir. 2014) (first quoting Solis v.
Loretto-Oswego Residential Health Care Facility, 692 F.3d 65, 76–77 (2d Cir. 2012); then
quoting Cook, 69 F.3d at 1241).
It is uncontested that the Restaurant and the Golf Course do not have shared employees,
that they maintain entirely separate payroll systems, employee records, and insurance, and that
the Golf Course was not consulted with regard to the Restaurant’s decisions to hire and not rehire
Plaintiff. (Dkt. No. 50, ¶¶ 62–64, 66–68, 75). Plaintiff also acknowledges that Mr. Roehrs, one of
the Golf Course’s owners, did not have a human resources management role at the Restaurant.
(Dkt. No. 42-8, at 337–38). Yet Plaintiff contends that the Golf Course “controlled” her schedule
and that it “directed the Restaurant to take away Plaintiff’s Thursday shift.” (Dkt. No. 49, at 14–
15). These contentions are unsupported by the record evidence. Plaintiff testified that the Golf
Course did not “specifically set our schedule.” (Dkt. No. 42-8, at 86). The fact that the
Restaurant decided to close when the Golf Course was closed does not establish that the Golf
Course controlled Restaurant employees’ schedules; it merely indicates that the Restaurant’s
business was affected by the Golf Course’s operations. Further, at her deposition, Plaintiff
conceded that she did not have any personal knowledge of Mr. Roehrs’ role in the Restaurant’s
decision to transfer Plaintiff’s Thursday shift to Borello. (See Dkt. No. 42-8, at 192–93 (Plaintiff
testifying concerning Mr. Roehrs’ role, stating, “I don’t really know what happened. I saw them
all talking outside. I don’t know what he said”)).

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Given the absence of evidence of centralized control of labor relations—the most
important issue in the integrated enterprise analysis—this factor does not support a finding that
the Golf Course was Plaintiff’s employer.
3.

Common Management

Although Plaintiff argues that common management weighs in her favor, she does not
identify any facts distinct from those she invokes in support of her argument about centralized
control of labor relations. (See Dkt. No. 49, at 14–15). Thus, as discussed above, this factor does
not support Plaintiff’s claim.
4.

Common Ownership or Financial Control

The parties do not dispute that the Restaurant and the Golf Course have entirely separate
ownership. (Dkt. No. 44-1, ¶¶ 12, 13). Further, there is no evidence that the Golf Course
exercised any financial control over the Restaurant. Therefore, this fourth factor does not support
a finding that the Golf Course was Plaintiff’s employer.
In sum, Plaintiff has failed to raise a genuine issue of material fact as to whether the
Restaurant and the Golf Course are a single integrated enterprise. Since there is no basis for
aggregating Restaurant and Golf Course employees for purposes of the ADEA employee
threshold, and since the Restaurant and Amenia do not meet the 20-employee minimum, the
Court grants summary judgment in favor of the Entity Defendants on Plaintiff’s ADEA claims.
C.

Remaining State-Law Claims

Having dismissed the ADEA claims, the Court declines, in its discretion, to retain
supplemental jurisdiction over Plaintiff’s state-law claims. See 28 U.S.C. § 1367(c)(3);
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988) (stating that, “in the usual case in
which all federal-law claims are eliminated before trial, the balance of factors to be considered
under the pendent jurisdiction doctrine . . . will point toward declining to exercise jurisdiction
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over the remaining state-law claims”). With the dismissal of the federal claims prior to the
investment of significant judicial resources, the “traditional ‘values of judicial economy,
convenience, fairness and comity’” weigh in favor of declining to exercise supplemental
jurisdiction. Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (quoting
Cohill, 484 U.S. at 350). Accordingly, Plaintiff’s NYHRL claims are dismissed without
prejudice.
V.

CONCLUSION
For these reasons, it is hereby
ORDERED that Defendants’ motions for summary judgment (Dkt. Nos. 42, 44, 46) are

GRANTED; and it is further
ORDERED that Plaintiff’s ADEA claims (first and second causes of action) are
DISMISSED with prejudice; and it is further
ORDERED that Plaintiff’s NYHRL claims (third, fourth, and fifth causes of action) are
DISMISSED without prejudice.
IT IS SO ORDERED.
Dated: March 27, 2019
Syracuse, New York

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