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Shelby v. Kar

United States District Court, N.D. Texas, Dallas Division

May 2, 2019

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

          MEMORANDUM OPINION AND ORDER

          JANE J. BOYLE UNITED STATES DISTRICT JUDGE.

         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 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.

         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.

         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 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 ...


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