Fernandez v. M & L Milevoi Management, Inc.

• Decision Date: 07 March 2005
• Docket Number: No. 04-CV-2937 (ILG).,04-CV-2937 (ILG).
• Citation: 357 F.Supp.2d 644
• Parties: Pablo FERNANDEZ, Plaintiff, v. M & L MILEVOI MANAGEMENT, INC., Mario Milevoi, Lucia Milevoi, and John Milevoi, Defendants.
• Court: U.S. District Court — Eastern District of New York

357 F.Supp.2d 644

Pablo FERNANDEZ, Plaintiff, v. M & L MILEVOI MANAGEMENT, INC., Mario Milevoi, Lucia Milevoi, and John Milevoi, Defendants.

No. 04-CV-2937 (ILG).

United States District Court, E.D. New York.

March 7, 2005.

Laura Sager, Sharon Chatin-Pollak and John Guzman (law students), Washington Square Legal Services, Inc., New York, NY, Deborah Axt, Brooklyn, NY, for Plaintiff.

Todd H. Girshon, Matthew A. Steinberg, Jackson Lewis LLP, New York, NY, for Defendants.

MEMORANDUM AND ORDER

GLASSER, District Judge.

INTRODUCTION

Plaintiff Pablo Fernandez ("Plaintiff" or "Fernandez") filed this discrimination case against his former employer, M & L Milevoi Management ("M & L") and three of its agents (collectively, "Defendants"), under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") and 42 U.S.C. § 1981 ("Section 1981"). Plaintiff claims that he was terminated from his job as a porter in a residential building managed by Defendants because of his race and national origin. Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), Defendants now move to dismiss the complaint arguing that the Court lacks subject matter jurisdiction over the Title VII claim because M & L does not qualify as an "employer," the claims against the individual defendants should be dismissed because Title VII does not provide for individual liability, and the Section 1981 claim is barred by a three-year statute of limitations. In opposition, Plaintiff argues that even if M & L's status as an "employer" must await a determination on the merits, it does not, at this stage of the proceedings, divest the Court of subject matter jurisdiction. Further, pursuant to the Supreme Court's decision in Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 124 S.Ct. 1836, ___ L.Ed.2d ___ (2004), Plaintiff argues that his Section 1981 claim is governed by a four-year statute of limitations and is therefore timely.

For the reasons set forth below, Defendants' motion to dismiss the complaint is granted in part and denied in part.

BACKGROUND

In October 1998, M & L, through Mario L. Milevoi, hired Plaintiff, who was born in Ecuador, as a porter in a residential building (the "Building") located in Elmhurst, New York. (Compl. ¶ 20). In this position, Plaintiff was responsible for cleaning and maintaining the Building which M & L managed. (Id. ¶ 19). In or about May 2000, Mario Milevoi ceded day-to-day management control over the Building to his son, John, because of poor health. (Id. ¶ 21). Mario and John are of Yugoslav origin, as was the superintendent of the Building, Nreka Ulic. (Id. ¶ 27).

Mario Milevoi terminated Plaintiff's employment on May 25, 2001, advising him "you are a good person, but another man is coming to work the job." (Compl. ¶ 23). John Milevoi was the alleged decision-maker. (Id. ¶ 24). The next day, M & L replaced Plaintiff with a Caucasian man of Yugoslav origin. (Id. ¶ 26). That man was terminated one month later for poor job performance, and he was replaced by a Caucasian man of Yugoslav origin. (Id.)

As further evidence of discrimination, Plaintiff alleges that John Milevoi told Mr. Ulic not to rent apartments to "Blacks or Hispanics — just Koreans." (Compl. ¶ 29). Since in or about 1997, Defendants have not rented any apartments to individuals of Latino or Latina origin. (Id. ¶ 31).

Before instituting this suit, Plaintiff timely filed a charge of discrimination with the New York State Division of Human Rights, and also with the Equal Employment Opportunity Commission (the "EEOC"). (Compl. ¶ 9). Within ninety days after receiving a right to sue letter from the EEOC, Plaintiff filed this action. (Id. ¶ 11).

DISCUSSION

I. PLAINTIFF'S TITLE VII CLAIMS

Defendants move to dismiss Plaintiff's Title VII claim, pursuant to Fed.R.Civ.P 12(b)(1) and (6), on the grounds that: (1) the Court lacks subject matter jurisdiction over M & L because it is not an "employer" within the meaning of Title VII¹; and (2) Title VII does not impose liability on the individual defendants. Each of these arguments is addressed in turn.

A. Whether the Court Lacks Subject Matter Jurisdiction to Hear Plaintiff's Title VII Claim

In general, a court may grant a motion for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) when it lacks either a statutory or constitutional predicate to decide the case. Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000). Where the defendants challenge the factual basis of jurisdiction, the Court may consider affidavits and other material beyond the pleadings. Robinson v. Gov't of Malaysia, 269 F.3d 133, 141 n. 6 (2d Cir.2001).

In this case, Defendants argue that the Court lacks subject matter jurisdiction because M & L is not an "employer" as defined in Title VII. However, the Second Circuit has decided that specific issue against Defendants. In Da Silva v. Kinsho Int'l Corp., 229 F.3d 358, 365 (2d Cir.2000), the district court dismissed a Title VII claim because the defendant did not satisfy Title VII's fifteen-employee requirement, but the court exercised supplemental jurisdiction over certain related state-law claims, finding that the fifteen-employee requirement was not jurisdictional. Accordingly, the court held that dismissal of the Title VII claim did not divest it of supplemental jurisdiction over the related state-law claims. Da Silva v. Kinsho Int'l Corp., 210 F.Supp.2d 241, 246-47 (S.D.N.Y.2000). The Second Circuit affirmed, holding that the threshold number of employees established by the definition of "employer" set forth in Title VII is not a jurisdictional issue, provided that Plaintiff "makes a non-frivolous claim that Defendant is a covered employer." Da Silva, 229 F.3d at 366.

Here, M & L asserts the claim is frivolous based upon an affidavit that it employed less than fifteen persons. (Defs. Reply Mem. at 8). That claim is predicated upon a dictum in Da Silva suggesting that the words "brought under" in 42 U.S.C. § 2000e-5(f)(3) conferring jurisdiction upon district courts of actions "brought under" Title VII may be understood to exclude claims that frivolously seek to invoke "arising under" jurisdiction, citing Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946). Da Silva, 229 F.3d at 365. A reading of Bell, however, would readily reveal that it provides no support for Defendants' claim and might lead to the conclusion that the claim is, itself, frivolous. The plaintiff there sued FBI agents in a federal district court alleging federal question jurisdiction arising out of the Fourth and Fifth Amendments to the Constitution. The defendants moved for summary judgment on the grounds that the FBI agents acted within the scope of their authority, and that the searches and seizures were incident to a lawful arrest and therefore valid. They filed affidavits in support of their motion which was granted for want of federal jurisdiction and affirmed on appeal. The Supreme Court reversed and for reasons peculiarly applicable here:

Before deciding that there is no jurisdiction, the district court must look to the way the complaint is drawn to see if it is drawn so as to claim a right to recover under the Constitution and laws of the United States. For to that extent `the party who brings a suit is master to decide what law he will rely upon, and * * * does determine whether he will bring a `suit arising under' the * * * (Constitution or laws) of the United States....' (citation omitted)

X X X

Jurisdiction, therefore, is not defeated as respondents seem to contend, by the possibility that the averments might fail to state a cause of action on which petitioners could actually recover. For it is well settled that the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction. (emphasis added).

Bell, 327 U.S. at 681-82, 66 S.Ct. 773.

Da Silva is not to the contrary. There, too, the Court held that the plaintiff's "failure to prove single employer status is not a ground for dismissing for lack of subject matter jurisdiction or even for failure to state [a] claim; it is a ground for defeating her federal claim on the merits." 229 F.3d at 365.

Defendants argue in reply that Da Silva is not dispositive to the Court's determination of their motion filed under Fed.R.Civ.P. 12(b)(1) because "both prior and subsequent to Da Silva, courts in New York and elsewhere throughout the country have held that a defendant's inability to satisfy Title VII's definition of `employer' can be a jurisdictional defect."<sup>2</sup> (Defs. Reply Mem. at 8). The cases which Defendants cite, however, are inapposite. In Perez v. International Brotherhood of Teamsters, 2002 WL 31027580, at *3 (S.D.N.Y. Sept. 17, 2002), 2002 U.S. Dist. LEXIS 16985, at *8-9, the international union argued on a motion to dismiss that it was not plaintiff's employer because it did not control the terms and conditions of his employment, not that the defendant union failed to meet the fifteen-employee requirement. Moreover, and perhaps most significant, the court in Perez failed to cite, let alone distinguish, Da Silva. It merely cited to a district court case that pre-dated Da Silva for the proposition that "subject matter jurisdiction only exists in a Title VII employment discrimination case if the defendant meets the statutory definition of `employer.' "Perez, 2002 WL 31027580, at 3, 2002 U.S. Dist. LEXIS 16985, at *9 (citing Astarita v. Urgo Butts & Co., 1997 WL 317028, at *3 (S.D.N.Y. June 10, 1997))1997 U.S. Dist. LEXIS 8112. Further, Defendants' citations to Scarfo v. Ginsberg, 175 F.3d 957, 960 (11th Cir.1999), cert. denied, 529 U.S. 1003, 120 S.Ct. 1267, 146 L.Ed.2d 217 (2000), and Greenlees v. Eidenmuller Enterprises, Inc., 32 F.3d 197, 198 (5th Cir.1994), are startling in light of Da Silva's explicit rejection of the holding of those opinions which "ruled, with little or no discussion, that the requisite number of employees is...