United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
J. BOYLE UNITED STATES DISTRICT JUDGE.
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)).
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.
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 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. 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.). 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. Doc. 59, Ans., 1.
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.
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.
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.
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
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 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 Fed.Appx. 893,
897 (5th Cir. 2012) (quoting Muhammad v. DallasCnty. Cmty. Supervision & Corrs. Dep't., 479
F.3d 377, 380 ...