EEOC v. Regency Windsor Management Co.

• Decision Date: 02 August 1994
• Docket Number: No. 1:93-CV-361.,1:93-CV-361.
• Citation: 862 F. Supp. 189
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. REGENCY WINDSOR MANAGEMENT CO. and Regency Oakbrook, Ltd., jointly and severally, Defendants.
• Court: U.S. District Court — Western District of Michigan

862 F. Supp. 189

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. REGENCY WINDSOR MANAGEMENT CO. and Regency Oakbrook, Ltd., jointly and severally, Defendants.

No. 1:93-CV-361.

United States District Court, W.D. Michigan, Southern Division.

August 2, 1994.

Laura A. Brodeur, EEOC, Detroit Dist. Office, Detroit, MI, for plaintiff.

Terry J. Mroz, McShane & Bowie, Grand Rapids, MI, for defendants.

MEMORANDUM OPINION

McKEAGUE, District Judge.

This is an action under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. Plaintiff Equal Employment Opportunity Commission ("EEOC") alleges defendant employers Regency Windsor Management Co. ("Windsor") and Regency Oakbrook Ltd. ("Oakbrook") unlawfully discharged Dorothy Wright from employment because of her age. Now before the Court are three motions for summary judgment.

I. OAKBROOK'S MOTION FOR SUMMARY JUDGMENT

On February 25, 1994, the Court issued an order granting plaintiff leave to amend its complaint so as to add Oakbrook as a defendant in this case. Oakbrook now asks the Court to dismiss the claim against it as barred by the applicable statute of limitations. Under 29 U.S.C. § 626(e), in relevant part, an action under the ADEA must be commenced within two years after the claim accrued. Dorothy Wright was discharged on May 16, 1991. The claim against Oakbrook will thus be time-barred unless the amended complaint is deemed to relate back to the date the original complaint was filed, May 10, 1993. Oakbrook contends the prerequisites to relation back, set forth at Fed.R.Civ.P. 15(c)(3), are not satisfied here.

Under Rule 15(c)(3), in relevant part, an amendment of a pleading which changes the party or the naming of the party against whom a claim is asserted relates back to the date of the original pleadings if, within 120 days after the filing of the original complaint, the party to be brought in by amendment (A) had received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against it.

Here, the original complaint named Windsor only as the defendant employer. Dorothy Wright served as a leasing consultant/leasing manager of an apartment complex in Battle Creek owned by Oakbrook. The apartment complex was managed by Oakbrook's agent, Windsor. When it became apparent during discovery that both Oakbrook and Windsor, and both of them jointly, might satisfy the definition of "employer" under the ADEA, plaintiff moved and was permitted to add Oakbrook.

Having reviewed the parties' briefs and heard the parties' arguments on this point, the Court is persuaded that the requirements of Rule 15(c)(3), as set forth above, are satisfied. Considering the agency relationship between Oakbrook and Windsor, and the shared responsibilities for management of the Battle Creek apartment complex, the Court concludes that Oakbrook was aware of this litigation early on, must have known that it could or should properly have been named as defendant, and is not prejudiced in maintaining a defense on the merits.

In the Sixth Circuit, however, Rule 15(c) has been construed as permitting only correction of misnomers, not the addition or substitution of new parties. Leitch v. Lievense Ins. Agency, 928 F.2d 1448, 1449-50 (6th Cir.1991); Marlowe v. Fisher Body, 489 F.2d 1057, 1064 (6th Cir.1973); Lee v. Toshiba Machine Co. of America, 804 F.Supp. 1029, 1034-35 (E.D.Tenn.1992). "An amendment which adds a new party creates a new cause of action and there is no relation back to the original filing for purposes of limitations." Leitch, supra, 928 F.2d at 1449.

Plaintiff's first amended complaint does not correct a "misnomer;" it adds a party. To the extent plaintiff may have erred in its determination that Windsor alone was Dorothy Wright's employer, it is an error for which Rule 15(c) provides no remedy. It was plaintiff's responsibility to investigate and discover the pertinent facts and it is not entitled to any tolling of the limitation period while doing so. Lee, supra, 804 F.Supp. at 1035. Moreover, to the extent plaintiff impliedly argues Oakbrook should be equitably estopped from asserting the statute of limitations because its agent Windsor "sandbagged" or failed to reveal the true relationships of the parties, the argument must be rejected because not adequately supported — legally or factually. See id.

Accordingly, the Court concludes the claim against Oakbrook does not relate back and is therefore time-barred. Oakbrook's motion for summary judgment will be granted.

II. WINDSOR'S "SECOND" MOTION FOR SUMMARY JUDGMENT

Defendant Windsor moves for summary judgment contending it was not Dorothy Wright's employer. Windsor argues Oakbrook was Wright's actual employer and that it merely served as agent through which Oakbrook's supervisory control was exercised. Plaintiff EEOC responds by acknowledging that Oakbrook may very well have been the actual employer, but maintains that Windsor may also be liable under the ADEA as an agent of the employer or as a "joint employer."

"Employer" is defined under the ADEA as follows:

A person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year.... The term also means (1) any agent of such a person....

29 U.S.C. § 630. Thus, Windsor's status as Oakbrook's agent may qualify it for treatment as an employer if Oakbrook was an "employer" as defined by the ADEA. In support of its own motion for summary judgment, however, Oakbrook has conclusively demonstrated that it did not employ twenty or more persons for each of twenty or more calendar weeks in 1991. It follows that Oakbrook was not an employer under the ADEA. See Zimmerman v. North American Signal Co., 704 F.2d 347, 353-54 (7th Cir.1983); Rogers v. Sugar Tree Products, Inc., 824 F.Supp. 755, 760 (N.D.Ill.1992); Lord v. Casco Bay Weekly, Inc., 789 F.Supp. 32, 34 (D.Me.1992). Windsor cannot therefore be deemed an employer based solely on its agency relationship with Oakbrook.

Windsor may nonetheless be deemed an employer under the joint employer doctrine. Whether Windsor exercised sufficient control over employees to constitute a joint employer is a factual determination requiring the Court to consider such factors as authority to hire, fire and discipline employees, promulgation of work rules and conditions of employment, issuance of work assignments and instructions, and supervision of employees' day-to-day activities. Rivas v. Federacion De Asociaciones Pecuarias, 929 F.2d 814, 820-21 (1st Cir.1991).

Not surprisingly, the parties' respective evaluations of the above factors yield opposite results. Consistent with this disparity, this Court's review of the voluminous filings in this case leads to the settled conclusion that genuine issues of material fact remain. It is clear only that Oakbrook and Windsor shared authority to control the compensation, terms, conditions and privileges of employment for workers at the apartment complex. Oakbrook clearly appears to have been the direct employer. Whether Windsor exercised sufficient control to be deemed a joint employer is a question for the trier of fact. Accordingly, defendant Windsor's second motion for summary judgment must be denied.

III. WINDSOR'S "FIRST" MOTION FOR SUMMARY JUDGMENT

Defendant Windsor's first motion for summary judgment attacks plaintiff's age discrimination claim on the merits. Plaintiff's claim rests essentially on two evidentiary theories: direct evidence and circumstantial evidence.

A. Direct Evidence

"Direct evidence of discrimination allows a plaintiff to proceed without meeting the requirements of a prima facie case set forth in McDonnell Douglas Corp v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)." LaPointe v. United Autoworkers Local 600, 8 F.3d 376, 379 (6th Cir.1993). See part B, infra.

Dorothy Wright, leasing manager, was 62 years old at the time of her discharge. She was an at-will employee. She had been employed in a similar capacity since 1986. She was terminated on May 16, 1991, by Thomas Baragar, resident manager of the apartment complex, an Oakbrook employee. The termination letter indicates she was discharged because of her negative and uncooperative attitude and discourteous manner.

The direct evidence that she was terminated because of her age consists of evidence that Randall Nordman, Windsor's direct manager, favored filling leasing agent positions with youthful persons. Nordman was Thomas Baragar's superior. According to a statement given by Larry Bush, who occupied Baragar's position until November 1989, Nordman had repeatedly stressed to him "that younger people should be working as leasing agents".... "to attract the `yuppie' clientele" in the Battle Creek area. While Nordman never actually told Bush to terminate Wright, Bush believed he had implied this desire. When Bush defended Wright as a good employee, Nordman is said to have responded that "she did not meet the company's needs."

In his deposition, Nordman testified he did not specifically recall having such discussions with Bush. He did not direct Bush or Baragar to discharge Wright, although he did ultimately approve or agree with Baragar's decision to do so. Nordman acknowledged that Wright was a good leasing agent. He also acknowledged that he had expressed to both Bush and Baragar his impression that young leasing agents were more effective in relating to the renting population Oakbrook hoped to attract, i.e., young professional people or young people with families. Nordman explained that he did not mean to suggest that Wright should be replaced; only that if changes were contemplated in the future, and all other things being equal, younger leasing agents...