Pawlowski v. Scherbenske et al
Filing
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ORDER adopting 35 Report and Recommendation; overruling 37 Objection to Report and Recommendation; granting 14 Defendant's Motion for Summary Judgment as to Plaintiff's Americans With Disabilities Act claims. Signed by U. S. District Judge Jeffrey L. Viken on 8/28/12. (SB)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
TERESA A. PAWLOWSKI,
Plaintiff,
vs.
MARLOW L. SCHERBENSKE,
individually, and KDT
ENTERPRISES, INC., d/b/a
WEATHERED VANE,
Defendants.
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CIV. 11-5065-JLV
ORDER OVERRULING
PLAINTIFF’S OBJECTIONS
AND ADOPTING REPORT
AND RECOMMENDATION
Pending before the court is defendants’ motion for summary
judgment. (Docket 14). The court referred the motion to Magistrate Judge
Veronica L. Duffy for resolution. (Docket 22). On April 13, 2012, Magistrate
Judge Duffy filed a report recommending the court grant defendants’ motion
for summary judgment on plaintiff’s Americans With Disabilities Act (“ADA”)
claim, 42 U.S.C. § 12101 et seq., and decline to exercise supplemental
jurisdiction over plaintiff’s state law claims. (Docket 35). Plaintiff timely
filed objections. (Docket 37). Defendants filed a response to plaintiff’s
objections.1 (Docket 38).
The court reviews de novo those portions of the report and
recommendation which are the subject of objections. Thompson v. Nix, 897
F.2d 356, 357-58 (8th Cir. 1990); 28 U.S.C. § 636(b)(1). The court may then
1
Fed. R. Civ. P. 72(b)(2) allows a party to respond to an opposing party’s
objections.
“accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).
For the reasons stated below, plaintiff’s objections are overruled. The court
adopts the report and recommendation of the magistrate judge in full with
one typographical correction.2
A.
MAGISTRATE JUDGE’S FINDINGS OF FACT
Plaintiff’s sole objection to the magistrate judge’s findings of fact is:
The Report relies solely on Defendants summary regarding the
number of employees to determine whether there was the requisite
number of employees for Plaintiff’s federal employment claim.
This was in error because Defendants failed to count employee
Beverly S.3
(Docket 37 at p. 2) (emphasis in original). The court’s resolution of
plaintiff’s objection will reference only those facts necessary to provide
context. The court adopts all other facts of the report and recommendation.
Plaintiff’s sole objection is Beverly was not counted as an employee of
KDT in the “numerosity requirement” of the ADA.4 Id. See also Docket 35
2
The caption of the report and recommendation mistakenly identifies Mr.
Scherbenske as “Scherbenski.”
3
Beverly S. is an employee of defendant KDT Enterprises, Inc., d/b/a
Weathered Vane (“KDT”), identified in defendants’ exhibits (Dockets 19-3 and
19-6) and plaintiff’s exhibits (Dockets 21-5, 26-5, and 29-2). Throughout the
remainder of this order, Beverly S. will be identified as “Beverly.”
4
For purposes of the ADA an employer is defined as “a person engaged in
an industry affecting commerce who has 15 or more employees for each
working day in each of 20 or more calender weeks in the current or preceding
calendar year . . . .” 42 U.S.C. § 12111(5)(A).
2
at p. 9. Defendants’ documents reflecting employee hire and release dates
are the basis for plaintiff’s objection. (Docket 37 at p. 3). See also Dockets
19-3 and 19-6 (sealed). Plaintiff argues the court must add Beverly to every
week’s employee totals for 2009 and 2010 because Beverly was “on payroll
from October 16, 2002 until December 28, 2010.” (Docket 37 at p. 3).
Plaintiff asserts adding Beverly to every week’s employee total would
increase KDT’s employee count above the minimum requirement of 15
employees for 31 weeks in 2009 and 23 weeks in 2010. Id.
The magistrate judge accepted defendants’ proof of the calculation of
employees on KDT’s payroll in 2009 and 2010.5 (Docket 25 at p. 15). See
also Dockets 19-4 and 19-5. Defendants’ calculations show an employee
named “Bev” as a “new” hire beginning on November 18 and ending on
December 24 in 2009, and as a “rehire” on October 28 and continuing
through the end of December of 2010. (Dockets 19-4 at lines 50-55 and 195 at lines 47-56 ). These employee entries are consistent with defendants’
2009 and 2010 time sheets. (Dockets 19-1 at pp. 46-51 and 19-2 at pp. 4351). The only “Bev” identified by either plaintiff, see Dockets 21-5, 26-5,
and 29-2, or defendants, see Dockets 19-3 and 19-6, is Beverly. The court
finds there was only one individual identified by the name “Bev” or “Beverly”
5
Plaintiff’s “proof did not contravene defendants’ facts; she merely shows
that 15 employees worked a total of 20 weeks during the entire year, but not all
during the same 20 weeks.” (Docket 35 at p. 15).
3
employed by KDT during the calendar years 2009 and 2010. The magistrate
judge properly included Beverly in the analysis in the report and
recommendation.
Plaintiff’s objection is overruled.
B.
MAGISTRATE JUDGE’S CONCLUSIONS OF LAW
Plaintiff did not file objections to the conclusions of law in the report
and recommendation. (Docket 37). The court finds the report and
recommendation to be an accurate and thorough recitation of the facts and
applicable case law. The court further finds the legal analysis of the report
and recommendation to be well-reasoned and a proper application of the
law to the facts of the case. The magistrate judge’s conclusions of law are
adopted by the court in accordance with 28 U.S.C. § 636(b)(1)(C).
ORDER
Based on the above analysis, it is hereby
ORDERED that plaintiff’s objections (Docket 37) are overruled.
IT IS FURTHER ORDERED that the report and recommendation
(Docket 35) is adopted in full with the typographical correction noted above.
IT IS FURTHER ORDERED that defendants’ motion for summary
judgment (Docket 14) as to plaintiff’s Americans With Disabilities Act claims
is granted.
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IT IS FURTHER ORDERED that count 1 of plaintiff’s complaint
(Docket 1) alleging violations of the Americans With Disabilities Act is
dismissed with prejudice.
IT IS FURTHER ORDERED that pursuant to 28 U.S.C. § 1367(c)(3)
the court declines to exercise supplemental jurisdiction over plaintiff’s state
law claims.
IT IS FURTHER ORDERED that count 2 of plaintiff’s complaint
alleging violations of the South Dakota Human Relations Act and count 3
alleging intentional infliction of emotional distress are dismissed without
prejudice.
IT IS FURTHER ORDERED that “[t]he period of limitations [for the
claims asserted in counts 2 and 3] shall be tolled while the claim[s] [were]
pending and for a period of 30 days after [they are] dismissed unless State
law provides for a longer tolling period.” 28 U.S.C. § 1367(d).
Dated August 28, 2012.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
UNITED STATES DISTRICT JUDGE
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