Shelby v. Kwik Kar et al

Filing 75

Memorandum Opinion and Order: The Court GRANTS summary judgment under Federal Rule of Civil Procedure 56(f)(3) in favor of Defendant, and Plaintiffs claims are hereby DISMISSED, with each party to bear its own costs. (Ordered by Judge Jane J. Boyle on 5/2/2019) (svc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
SHERIDON SHELBY,

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Plaintiff,
v.
KWIK KAR / GUIDE STAR,
Defendant.

CIVIL ACTION NO. 3:18-CV-0532-B

MEMORANDUM OPINION AND ORDER
This is an employment-discrimination case. On January 7, 2019, after receiving a status
report, the Court became concerned that the employer did not have the requisite number of
employees to be covered by Title VII of the Civil Rights Act of 1964, and ordered limited discovery
into that issue. Doc. 69, Order, 1–2. On March 14, 2019, the Court requested supplemental briefing,
and notified the parties that it planned to sua sponte consider summary judgment if there continued
to be no dispute as to that issue. Doc. 72, Order, 5 (citing Fed. R. Civ. P. 56(f)(3)).
Reviewing the available evidence, the Court concludes that there is no genuine issue of
material fact in dispute that Title VII does not cover Plaintiff’s former employer. As such, the Court
GRANTS summary judgment for Defendant.
I.
BACKGROUND
Pro se Plaintiff Sheridon Shelby brings an employment-discrimination claim for alleged
discrimination that took place from January to September 2017, when he was fired from his
employment at Defendant Kwik Kar. Doc. 3, Compl., 8 (EEOC form describing the discrimination
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from January 31, 2017 to September 8, 2017). Plaintiff worked at the Kwik Kar on 5020 Lemmon
Avenue, which was sold while the alleged discrimination took place. Doc. 59, Ans., 1; Doc. 71, Pl.’s
Resp., 4 (Texas Workforce Commission appeal form). He alleges that he was discriminated against
for being black, while Hispanic employees were preferentially treated, even those who he alleges were
undocumented immigrants.1 Doc. 3, Compl., 1–4. Plaintiff has sued the new owners, who bought the
business on June 27, 2017. Doc. 59, Ans., 1; Doc. 73-1, Def.’s Suppl. App., 12 (buyer’s settlement
statement showing the purchase of 5020 Lemmon Avenue through RMEE Inc.2). Plaintiff reports
that another entity, GideStar (sometimes referred to as Guide Star), was also involved in the
business, as it was listed as paying Plaintiff’s payroll taxes. Doc. 71, Pl.’s Resp., 1. Indeed, both entities
are owned by Laila Sajan. Doc. 67, Def.’s Initial Disclosures, 1 (describing a “Gidestar, Inc.” and
RMEE, Inc. d/b/a Kwik Kar on Lemmon). But Defendant denies that Plaintiff and Kwik Kar were
associated with GideStar.3 Doc. 59, Ans., 1.

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As the Fifth Circuit has instructed, this Court has liberally construed this pro se complaint, taking
all well-pleaded allegations as true. See Johnson v. Atkins, 999 F.2d 99, 100 (5th Cir. 1993) (per curiam). But
insofar as Plaintiff includes these allegations about undocumented workers in an attempt to have this Court
enforce federal immigration laws, the Court finds no indication that Congress has intended civilians to have
a private right of action to enforce federal immigration law. See Tex. Health & Human Servs. Comm’n v. United
States, 193 F. Supp. 3d 733, 739 (N.D. Tex. 2016) (citing Alexander v. Sandoval, 532 U.S. 275, 286 (2001)).
Nor does Plaintiff point the Court to such authority. See id. (“[C]ourts presume that Congress did not intend
to create a private right of action. To overcome this presumption, a plaintiff must demonstrate ‘that Congress
affirmatively contemplated private enforcement when it passed the relevant statute.’” (quoting La. Landmarks
Soc’y, Inc. v. City of New Orleans, 85 F.3d 1119, 1123 (5th Cir. 1996)) (internal citations omitted)).
2

Throughout this opinion, references to Kwik Kar also refer to RMEE, Inc., as they are the same.
Doc. 73-1, Def.’s Suppl. App., 2 ¶ 2.
3

And to date, the only individuals who have appeared in court for Defendant are Rahil Sajan and
Munira Sajan, Doc. 40, Elec. Minute Entry; although Laila Sajan is listed as reachable through Defendant’s
attorney. Doc. 67, Def.’s Initial Disclosures, 1.

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As discussed above, on January 7, 2019, the Court became concerned that Defendant did
not have the requisite number of employees to be covered by Title VII, and ordered limited discovery
into that issue. Doc. 69, Order, 1–2. Both parties responded. Doc. 70, Def.’s Resp; Doc. 71, Pl.’s
Resp. On March 14, 2019, the Court requested supplemental briefing, and notified the parties that
it planned to sua sponte consider summary judgment if there continued to be no dispute as to that
issue. Doc. 72, Order, 5 (citing Fed. R. Civ. P. 56(f)(3)). Defendant responded with additional
evidence (Doc. 73); Plaintiff reiterated his request for a jury trial and outlined his evidence for
discrimination, but did not argue that the numerosity requirement was met (Doc. 74). As the time
for additional briefing has passed, the Court now considers the numerosity issue.
II.
LEGAL STANDARD
At the summary-judgment stage, the court considers whether there are genuine issues of
material fact in dispute. At this stage, the pleadings are not summary judgment evidence. Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). The nonmoving party must “go beyond the
pleadings and by [his] own affidavits, or by the depositions, answers to interrogatories, and
admissions on file, designate specific facts showing that there is a genuine issue for trial.” Giles v.
General Elec. Co., 245 F.3d 474, 493 (5th Cir. 2001) (quoting Celotex Corp. v. Catrett, 477 U.S. 317,
324 (1986)). A court is to resolve all factual controversies in favor of the non-movant, “but only
when there is an actual controversy, that is, when both parties have submitted evidence of
contradictory facts. We do not, however, in the absence of any proof, assume that the nonmoving
party could or would prove the necessary facts.” Liquid Air, 37 F.3d at 1075.

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III.
ANALYSIS
Anti-discrimination employment law does not apply to all businesses. It applies only to
employers with fifteen or more employees for the year in which the discriminatory acts took place,
and the preceding year. 42 U.S.C. § 2000e(b) (“The term ‘employer’ means a person engaged in an
industry affecting commerce who has fifteen or more employees for each working day in each of
twenty or more calendar weeks in the current or preceding calendar year. . .”); Tex. Labor Code
§ 21.002 (substantively similar definition); see also Vance v. Union Planters Corp., 209 F.3d 438, 446
(5th Cir. 2000) (holding the “current year” in § 2000e(b) refers to the year in which the
discriminatory acts took place). This “numerosity requirement” is an indispensable element of an
employment discrimination claim. See Arbaugh v. Y&H Corp., 546 U.S. 500, 516 (2006). Put simply,
unless Defendant had over fifteen workers in 2016 and 2017, Plaintiff cannot bring a claim.
If there is a question as to whether a particular defendant is an employer under Title VII,
courts in the Fifth Circuit look to two tests: (1) the hybrid economic realities/common law control
test; and (2) the single employer test. Davenport v. HansaWorld USA, Inc., 23 F. Supp. 3d 679, 692
(S.D. Miss. 2014) (applying these two tests to determine whether an additional defendant had
employer status). For the hybrid economic realities/common law control test, a court first determines
whether the defendant falls within the statutory definition of an employer and then considers the
potential employer’s right to control the employee’s conduct:
Determining whether a defendant is an “employer” under Title VII involves a
two-step process. First, the court must determine whether the defendant falls within
Title VII’s statutory definition of an “employer.” Title VII defines an “employer” as
“a person engaged in an industry affecting commerce who has fifteen or more

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employees . . . , and any agent of such a person. . . .” If the defendant meets this
definition, the court must then analyze whether an employment relationship exists
between the plaintiff and the defendant.
To determine whether an employment relationship exists within the meaning of Title
VII, we apply a hybrid economic realities/common law control test. The most
important component of this test is the right to control the employee’s conduct.
When examining the control component, we have focused on whether the alleged
employer has the right to hire, fire, supervise, and set the work schedule of the
employee. . . . The economic realities component of the test focuses on whether the
alleged employer paid the employee’s salary, withheld taxes, provided benefits, and
set the terms and conditions of employment.
Schirle v. Sokudo USA, L.L.C., 484 F. App’x 893, 897 (5th Cir. 2012) (quoting Muhammad v. Dallas
Cnty. Cmty. Supervision & Corrs. Dep’t., 479 F.3d 377, 380 (5th Cir. 2007)).
In addition to this test, “superficially distinct entities may be exposed to liability upon a
finding that they represent a single, integrated enterprise”; in other words, this is the single employer
test. Schirle, 484 F. App’x at 898 (quoting Trevino v. Celanese Corp., 701 F.2d 397, 404 (5th Cir.
1983). “Factors considered in determining whether distinct entities constitute an integrated
enterprise are (1) interrelation of operations, (2) centralized control of labor relations, (3) common
management, and (4) common ownership or financial control.” Trevino, 701 F.2d at 404. “Courts
applying this four-part standard in Title VII and related cases have focused on the second factor:
centralized control of labor relations.” Id. This boils down to the question of: “What entity made the
final decisions regarding employment matters related to the person claiming discrimination?” Id.
Both parties were required to submit a brief at the close of the limited discovery period and
present evidence as to the number of employees Defendant employed at the time of the alleged
discrimination. Doc. 69, Order, 1–2. Defendant attached a print-out of a wage report from July 2017
to September 2017, but it was not authenticated. Doc. 70-1, Def.’s Ex. A. Plaintiff also responded

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to the Court’s request. He did not appear to dispute the fact that there were less than fifteen
employees at the time of the alleged discrimination. See generally Doc. 71, Pl.’s Resp. He did describe
the confusion that has resulted because the name of his employer has been alternatively listed as
Kwik Kar and Guide Star in documents with the Equal Employment Opportunity Commission and
the Texas Workforce Commission. Id. at 7. For example, it is alleged that GideStar paid Plaintiff’s
payroll taxes, and thus was at least peripherally involved in the Kwik Kar business. And Plaintiff
correctly pointed out that the EEOC Charge Form placed Kwik Kar in a category of employers with
“15-100” employees. See Doc. 3, Compl., 8. Thus, out of an abundance of caution, the Court
requested supplemental briefing as to whether GideStar might have been sufficiently intertwined
with Kwik Kar as to also be considered Plaintiff’s employer.
The Court has reviewed the supplemental briefing provided, and can find no evidence that
Plaintiff was employed by an entity with more than the requisite fifteen employees to be covered by
the statute. Neither Kwik Kar nor GideStar had enough employees to be employers under the Act.
See Schirle, 484 F. App’x at 897 (describing the first step of the hybrid economic realities test as an
inquiry into numerosity); Doc. 73-1, Def.’s Suppl. App., 2 ¶¶ 5, 9 (Sajan Aff.); id. at 10 (Gidestar’s
2016 annual report showing only seven employees); id. at 14–15 (RMEE’s quarterly tax returns
showing a maximum of nine employees for 2017). In fact, GideStar appears to have been defunct by
the time of the alleged discrimination. Id. at 2 ¶¶ 6–8 (Sajan Aff.); id. at 7 (Gidestar’s 2016 tax
return). In any event, there is insufficient evidence of the four factors—(1) interrelation of
operations, (2) centralized control of labor relations, (3) common management, and (4) common
ownership or financial control—to combine Kwik Kar with any other entity. See Trevino, 701 F.2d

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at 404. In other words, Plaintiff has not met his burden to show that GideStar and Kwik Kar should
be treated as a single employer.
As the numerosity requirement for a Title VII claim is not met, the Court GRANTS
summary judgment under Federal Rule of Civil Procedure 56(f)(3) in favor of Defendant, and
Plaintiff’s claims are hereby DISMISSED, with each party to bear its own costs.4 A final judgment
will follow.

SO ORDERED.
SIGNED May 2, 2019.
_________________________________
JANE J. BOYLE
UNITED STATES DISTRICT JUDGE

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To the extent Plaintiff’s claims include any remaining state- or common-law causes of action, the
Court declines to exercise supplemental jurisdiction over them per 28 U.S.C. § 1367(c)(3).

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