Beach Erectors, Inc. v. United States Dep't of Transp.
| Decision Date | 07 September 2012 |
| Docket Number | 10 CV 5741 (DRH) (WDW) |
| Parties | BEACH ERECTORS, INC., Plaintiff, v. UNITED STATES DEPARTMENT OF TRANSPORTATION, UNITED STATES DEPARTMENT OF TRANSPORTATION DEPARTMENTAL OFFICE OF CIVIL RIGHTS, and JOSEPH AUSTIN Associate Director External Civil Rights Programs Division Departmental Office of Civil Rights, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
APPEARANCES:
TURNSTEAD SCHECHTER & CZIK LLP
Attorneys for Plaintiff
By: Marvin Schechter, Esq.
LORETTA E. LYNCH, UNITED STATES ATTORNEY
Attorneys for Defendants
By: Robert W. Schumacher, Assistant United States Attorney
Plaintiff Beach Erectors, Inc. ("plaintiff" or "Beach Erectors") commenced this action seeking declaratory and injunctive relief against the United States Department of Transportation (the "DOT"), the DOT Departmental Office of Civil Rights (the "OCR"), and OCR's Associate Director of the External Civil Rights Programs Division, Joseph Austin (collectively, "defendants"). Pursuant to the Administrative Procedure Act, 5 U.S.C. § 702, Beach Erectorsrequests judicial review of the OCR's decision to deny Beach Erectors's application for certification as a "disadvantaged business enterprise." Beach Erectors also claims that defendants violated its Equal Protection rights. Presently before the Court are plaintiff's motion and defendants' cross-motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth below, plaintiff's motion is denied and defendants' cross-motion is granted.
The following facts are taken from the parties' Local Civil Rule 56.1 Statements and the Administrative Record ("AR"), and are undisputed unless otherwise noted.
Beach Erectors is a "full service miscellaneous metal subcontractor and installer," whose business operation "consists of sales and installations of miscellaneous and architectural metal products." (Pl.'s 56.1 ¶ 1.) Karlise Murphy ("Ms. Murphy") is the "100% pro forma owner of Beach Erectors," (id. ¶ 3), and as the owner of 100% of the issued and outstanding shares of Beach Erectors stock, she is "empowered to manage the affairs of the corporation." (Id. ¶ 8.) Ms. Murphy is the President of Beach Erectors and the sole member of Beach Erectors's Board of Directors. Beach Erectors is certified as a Woman-owned Business Enterprise ("WBE") by the New York City Department of Small Business Services, the New York State Empire State Development, and the Port Authority of New York & New Jersey. (AR 456-58.)
On June 4, 2009, Beach Erectors applied to the New York Metropolitan Transit Authority("MTA") for a certification as a Disadvantaged Business Enterprise ("DBE").1
As part of Beach Erectors's application, Ms. Murphy completed the Certification Application, which indicated that Beach Erectors was established on June 26, 1989. (AR 135.) Ms. Murphy further indicated that, as President of Beach Erectors, she controlled the following areas of responsibility: (1) financial decisions, i.e., responsibility for acquisition of lines of credit, surety bonding, etc., (2) negotiating and contract execution, (3) hiring and firing of management personnel, (4) office management, (5) purchasing of major equipment, and (6) financial transactions. (AR 138.) Ms. Murphy stated that she and her husband, Robert J. Murphy ("Mr. Murphy"), whose title was listed as "Sales Rep," were both authorized to sign company checks, and that Mr. Murphy controlled "Marketing/Sales." (AR 138.) Ms. Murphy further indicated that the area of "Field/Production Operations Supervisor" was controlled by Robert Lester, a Field Supervisor, while the area of "Estimating and Bidding" was controlled by William Alesius and Ms. Murphy's son, Robert Murphy Jr. ("Mr. Murphy, Jr."), both of whom were Project Managers . (Id.)
Ms. Murphy's résumé was also submitted in connection with Beach Erectors'sapplication to the MTA for certification as a DBE. On her résumé, Ms. Murphy described her duties as President of Beach Erectors as including: (1) responsibility for all banking and financial decisions, (2) knowledge of upcoming projects, and assignment of those projects to selected estimators, (3) knowledge of progress and approval of all bids, estimates, and sales, (4) contract negotiations, (5) assignment of awarded projects to selected project managers, (6) bidding and contract negotiations, (7) overseeing estimating by others, (8) labor management, hiring and firing, and labor contracts, (9) insurance policies, (10) preparing documents for periodic audits by Ironworkers Local Union 580, as well as the workmen's compensation insurance provider and the general liability insurance provider, (11) purchasing of large equipment, (12) payroll, AP/AR, taxes, (13) government reporting and filings, and (14) applications for governmental and organizational certifications. (AR 427.)
Ms. Murphy's résumé also contained information about her prior work experience. Ms. Murphy served as the sole proprietor of Beach Fence Company between 1976 and 1986. (Id.; AR 102, 136.)2 In that capacity, her duties included "sales, estimates, contracts, personnel management, hiring and firing, job scheduling and supervision, payroll, AP/AR, taxes, insurance, [and] purchasing of materials and equipment." (AR 427.) From 1987 to 1989, Ms. Murphy served as the President of Beach Iron Erection Company, where her duties included "bidding and contract negotiations, estimating, labor management, hiring and firing, labor contracts, financial decisions, insurances, purchasing, job scheduling, payroll, AP/AR, [and] taxes." (Id.)
According to his résumé, Mr. Murphy has been a "Union ironworker" since 1973 and is "[e]xperienced in all size and type projects involving miscellaneous metals." (AR 428.) Mr. Murphy served as an Apprentice Ironworker from 1973 to 1975, and then as a Journeyman/Foreman from 1975 to 1986 with Local Union 580 Ornamental Iron Workers ("Local 580"). (Id.) As a foreman, Mr. Murphy's duties included "installation of miscellaneous metals items, field supervision of [the] labor force, coordination with [the] project manager, [and] record keeping." (Id.) From 1986 to 1989, Mr. Murphy worked as a Field Supervisor for Beach Iron Erection Company and was "[r]esponsible for the simultaneous oversight of several projects" as well as "[m]aterial deliveries to jobsite[s], labor management, [and] project coordination." (Id.) Beginning in 1989, Mr. Murphy worked in "Sales" for Beach Erectors. Mr. Murphy described his duties as including "knowledge of upcoming projects that may require miscellaneous metals, procuring drawings, plans and specifications for estimators . . . [making] representations to clients, [and] sales of prepared, packaged bids." (Id.)
Mr. Murphy, Jr. graduated from college in 1996 and worked as a Contractor Assistant for Kessler Construction, in Fort Collins, Colorado, between September 1996 and December 1997. In that capacity, his duties included "some oversight of several projects and employees, reporting job progress and problems to manager." (AR 429.) Mr. Murphy, Jr. worked as an Ironworker for Beach Erectors between January 1998 and December 1999 and worked on "[v]arious miscellaneous metal product installations involving diverse building site conditions and situations." (Id.) Since January 2000, Mr. Murphy, Jr. has worked as an Estimator for Beach Erectors, and his résumé describes his job duties as including "knowledge of upcoming projectsthat may require miscellaneous metals, take-offs and pricing, contract negotiations and project management." (Id.)
During a November 18, 2009 MTA eligibility review meeting, Ms. Murphy stated that before she started the Beach Fence Company in 1976, she worked as "a caterer, as a bookkeeper for a dry cleaning company, bell boy and . . . in a gas station." (AR 101.) With respect to her work for Beach Fence Company and Beach Iron Erection Company, Ms. Murphy stated that her "work experience was in administration[,] supervision and . . . management." (AR 102.) Ms. Murphy described her current job responsibilities as President of Beach Erectors as follows: (AR 103.) When asked whether she was "actually involved in any of the ironwork," Ms. Murphy answered "No." (AR 103-04.) Ms. Murphy further stated:
I think what you are getting at is that the work I'm telling you I do is administrative, but in overseeing my project managers and overseeing my laborer[s] and my contracts and all of that, I'm showing technical expertise. I have to know. For me to approve a contract, I have [to] know what is in the contract and I have to know the values of what is in the contract. I have to know how much time it would take to install the iron items in the contract. How can I oversee contracts and not have technical expertise?
(AR 105.) Ms. Murphy described the "chain of command" within Beach Erectors as follows:
Chain of command is myself at the top, and my three project managers on the next tier, my field supervisor below that and my field ironworkers below that. . . The ironworkers report to the field supervisor, the field supervisor reports to the project managers and they report to me.
(AR 105-06.) Ms. Murphy stated that the field supervisor "[g]enerally" makes on-site decisions and "[i]f there is a problem, he will come back to the project managers and if there is a problem there, he will come back to me." (AR 106.) Ms. Murphy further stated that a project manager generally handles any customer issues that may arise. (Id.)
Ms....
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