Martinez v. Midwest Restoration LLC

Filing 45

ORDER denying as moot 42 Motion to File; granting 44 Amended Motion; granting 17 Motion for Summary Judgment. (cc: all counsel) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

OLGA MARTINEZ,
Plaintiff,
v.

Case No. 16-C-1538

MIDWEST RESTORATION LLC,
Defendant.

DECISION AND ORDER

Plaintiff Olga Martinez alleges that her former employer, Midwest Restoration LLC,
violated Title VII by discriminating against her on the basis of her sex in September 2014. On
September 29, 2017, Midwest filed a motion for summary judgment, arguing that it is not an
“employer” as defined by 42 U.S.C. § 2000e(b). Martinez submitted a motion for leave to file a surreply and subsequently amended her motion. The court will grant Martinez’ amended motion for
leave to file a sur-reply and deny her original request as moot. Viewing the evidence in the light
most favorable to her, however, the evidence she offers does not establish that Midwest had a
sufficient number of employees to meet Title VII’s definition of “employer.” Midwest’s motion
for summary judgment will therefore be granted.
I. Summary Judgment Standard
Summary judgment is appropriate when the moving party shows 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.
Fed. R. Civ. P. 56(a). All reasonable inferences are construed in favor of the nonmoving party.
Foley v. City of Lafayette, 359 F.3d 925, 928 (7th Cir. 2004). The party opposing the motion for

summary judgment must “submit evidentiary materials that set forth specific facts showing that
there is a genuine issue for trial.” Siegel v. Shell Oil Co., 612 F.3d 932, 937 (7th Cir. 2010)
(citations omitted). “The nonomoving party must do more than simply show that there is some
metaphysicial doubt as to the material facts.” Id. Summary judgment is properly entered against
a party “who fails to make a showing sufficient to establish the existence of an element essential
to the party’s case, and on which that party will bear the burden of proof at trial.” Parent v. Home
Depot U.S.A., Inc., 694 F.3d 919, 922 (7th Cir. 2012).
II. Applicability of Title VII
Title VII makes it “an unlawful employment practice for an employer . . . 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 race, color, religion, sex, or
national origin.” 42 U.S.C. § 2000e-2(a)(1). Midwest asserts that Martinez cannot establish a Title
VII violation as a matter of law because it is not an “employer” as defined by the statute. Title VII
defines the term “employer” as “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 . . . .” § 2000e(b). Midwest maintains that it did not employ
fifteen employees during 2013 and 2014. The plaintiff bears the burden of proving the number of
employees her employer had, “including the duration of their employment, ‘with some element of
precision.’” Wilson v. Comtrust LLC, 249 F. Supp. 2d 993, 997 (N.D. Ill. 2003) (quoting Norman
v. Levy, 767 F. Supp. 1441, 1449 (N.D. Ill. 1991)).
In support of its motion, Midwest submitted a declaration from its office manager, Brenda
Grams, who is responsible for maintaining personnel records for Midwest. ECF No. 19-1, ¶¶ 1–2.
2

Grams states in her declaration that she compiled the full employment records for Midwest for
calendar years 2013 and 2014. She then sets forth the number of employees Midwest employed in
each of the two-week pay periods over the two-year period based on her review of the company’s
payroll records. Id. ¶ 3. For the two-week pay period ending on January 9, 2013, through the period
ending on April 3, 2013, Grams states that Midwest employed only one employee, both full-time
and part-time. Id. ¶¶ 4–10. From April 17, 2013, through September 5, 2013, Midwest had three
employees, both full-time and part-time. Id. ¶¶ 11–21. Midwest then dropped down to two
employees until the pay period ending October 17, 2013, when it jumped back up to three. Id.
¶¶ 22–24. Beginning with the pay period ending October 30, 2013, until February 5, 2014, Midwest
had four employees. Id. ¶¶ 25–32. It then fluctuated between four and eight employees through the
remainder of the year. At no time, according to Grams, were there more than eight employees on
Midwest’s payroll. Id. ¶¶ 33–56.
Midwest’s approach is consistent with the payroll method of determining whether an
employer meets Title VII’s 15-employee threshold approved by the Supreme Court in Walters v.
Metropolitan Educational Enterprises, Inc., 519 U.S. 202 (1997). Under the payroll method, the
number of employees is determined by the number of individuals who appear in the employer’s
payroll. Id. at 206–07. The payroll method avoids the administratively unwieldy task of trying to
determine how many employees were actually working on each workday. Id. at 208. The latter
approach “would turn the coverage determination into an incredibly complex and expensive factual
inquiry.” Id. at 210. Yet the payroll approach poses other problems where, as here, the employer
uses temporary employees who do not appear on the employer’s own payroll.

3

Consistent with the payroll approach, Grams only counted the employees Midwest directly
employed. Midwest also uses temporary employees it obtains through temporary employment
agencies to conduct its business. Temporary employees can be considered employees of the
company they are placed with for determining whether such company has the requisite number of
employees to make it subject to Title VII. Butler v. Drive Auto. Indus. of Am., Inc., 793 F.3d 404,
408 (4th Cir. 2015). Grams has provided no information as to the number of temporary employees
who worked for Midwest during 2013 or 2014.
In support of her contention that Midwest had the requisite number of employees, including
temporary employees, for at least twenty weeks in 2014, Martinez retained Carrie Cappelle, an
associate accountant at Schenck SC, to create a spreadsheet that purports to summarize the total
number of employees Midwest had each week during the relevant time period. After reviewing the
employment records of two temporary staffing agencies that provided temporary employees to
Midwest, Cappelle concluded Midwest employed a total of sixty-nine temporary employees at
various times between February 3, 2014, and October 6, 2014. According to the spreadsheet,
Midwest employed as many as thirty-two temporary employees in one week, but there were only
five weeks in which at least fifteen temporary employees worked at Midwest. ECF No. 22-7.
After determining the number of temporary employees Midwest hired each week, Cappelle
added additional employees, increasing the weekly total by eleven or seventeen individuals. She
did so in order to account for what Martinez believes were additional employees directly employed
by Midwest. First, Cappelle added six employees to each week’s total based on a statement
contained in Midwest’s response to Martinez’ interrogatories. In particular, Midwest stated that it
had five permanent “job site employees” and employed “approximately five (5) or six (6) additional
4

employees at any given time in order to cover administrative, fill-in, and various other as-needed
job tasks.” ECF No. 22-4 at 2. Cappelle then added another five employees to each week’s total
based on the recollection of Plaintiff’s counsel that Midwest listed at least five managers on its
website in 2014. Finally, Cappelle added six workers for the weeks of May 26, 2014, through
October 6, 2014, because Midwest’s office manager, Brenda Grams, indicated Midwest employed
a minimum of six workers during these weeks. ECF No. 22-1. Martinez contends that when these
extra workers are added to the number of temporary employees already accounted for in the
spreadsheet, she has shown that it “is entirely possible and probable that there were fifteen (15)
workers per week over a period of twenty-one (21) weeks.” ECF No. 44-1.
Martinez has not met her burden to establish that Midwest had a sufficient number of
employees during the relevant time period. The Seventh Circuit’s decision in Ost v. West Suburban
Travelers Limousine, Inc., 88 F.3d 435 (7th Cir. 1996), is instructive on this point. There, the
plaintiff claimed the defendant satisfied the definition of an employer and submitted an affidavit
stating that “throughout her employment,” the defendant employed at least twelve full-time and
twelve part-time employees in the office. Id. at 439. The affidavit, however, failed to indicate
whether the employees were “employed within the same time period, how many employees worked
on particular days, or whether there were fifteen or more employees on each day of any particular
week.” Id. The Seventh Circuit concluded the plaintiff’s affidavit was “certainly too vague a
submission to carry her burden,” as her statements were made at a “level of generality” that was
insufficient to survive summary judgment. Id. at 439–40.
In this case, Martinez has similarly failed to present sufficient evidence to support her claim
that, in addition to the temporary employees that have been verified through the records provided
5

by two temporary agencies, Midwest employed an additional eleven to seventeen unidentified
employees every week who did not appear on the company’s payroll. As an initial matter, there is
no basis to include the five managers that were purportedly listed on Midwest’s website to the
employee count since the website, as it existed in 2014, only lists two managers. ECF No. 38-3.
Counsel’s vague recollection of what he thinks he saw on the website at some earlier point in time
is not evidence.
As to the remaining unnamed individuals, Cappelle’s decision to include them as additional
employees is based on Midwest’s answers to an interrogatory that asked in general how many
people Midwest directly employed over the relevant time frame. Cappelle’s decision finds no
support in the payroll records that Grams reviewed and upon which Grams’ declaration is based.
The payroll records on which Grams’ declaration is based establish that Midwest had only eight
direct employees for six weeks and seven employees for twelve weeks in 2014. For the balance of
the time shown, the number of employees ranged between four and six. ECF No. 19-1, ¶¶ 42–51.
When those are added to the temporary employees shown on Cappelle’s spreadsheet during the
same weeks, the totals still do not meet the required threshold of fifteen employees for at least
twenty weeks.
Even if the addition of the temporary employees shown on Cappelle’s spreadsheet,
combined with Midwest’s direct employees, did meet the required threshold, we still would lack
evidence sufficient to show that Midwest had the requisite “fifteen or more employees for each
working day in each of twenty or more calendar weeks in the current or preceding calendar year.”
§ 2000e(b). This is because the fact that a temporary employee was paid at the end of a week does
not mean that he or she worked for Midwest every day that week. Since temporary employees are
6

direct employees of the staffing company that places them and do not appear on Midwest’s payroll,
it is presumably only on days when they work at a Midwest job site that they would be considered
Midwest employees. Given this fact, Cappelle’s spreadsheet by itself is insufficient to establish that
the temporary employees worked for Midwest for the required number of weeks to make Midwest
subject to Title VII. It thus follows that Martinez has failed to provide evidence from which a
reasonable factfinder could conclude that Midwest employed at least fifteen individuals for twenty
or more weeks during the relevant time period. Accordingly, Midwest is not an “employer” under
Title VII.
III. Conclusion
For these reasons, Midwest’s motion for summary judgment (ECF No. 17) is GRANTED
and the case is dismissed. Martinez’ amended motion to file a sur-reply (ECF No. 44) is
GRANTED, and her motion to file an earlier version of her sur-reply (ECF No. 42) is DENIED
as moot. The Clerk of Court is directed to enter judgment forthwith.
SO ORDERED this 11th

day of May, 2018.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

7