Pawlowski v. Scherbenske

• Citation: 891 F.Supp.2d 1077
• Decision Date: 28 August 2012
• Docket Number: No. CIV. 11–5065–JLV.,CIV. 11–5065–JLV.
• Parties: Teresa A. PAWLOWSKI, Plaintiff, v. Marlow L. SCHERBENSKE, individually, and KDT Enterprises, Inc., d/b/a Weathered Vane, Defendants.
• Court: U.S. District Court — District of South Dakota

891 F.Supp.2d 1077

Teresa A. PAWLOWSKI, Plaintiff,

v.Marlow L. SCHERBENSKE, individually, and KDT Enterprises, Inc., d/b/a Weathered Vane, Defendants.

No. CIV. 11–5065–JLV.

United States District Court,

D. South Dakota,

Western Division.

Aug. 28, 2012.

Rebecca L. Mann, Shiloh M. MacNally, Gunderson, Palmer, Nelson & Ashmore, LLP, Rapid City, SD, for Plaintiff.

Jane Wipf Pfeifle, Lynn, Jackson, Shultz & Lebrun, PC, Rapid City, SD, for Defendants.

ORDER OVERRULING PLAINTIFF'S OBJECTIONS AND ADOPTING REPORT AND RECOMMENDATION

JEFFREY L. VIKEN, District Judge.

Pending before the court is defendants' motion for summary judgment. (Docket 14). The court referred the motion to Magistrate Judge Veronica L. Duffy for resolution. (Docket 22). On April 13, 2012, Magistrate Judge Duffy filed a report recommending the court grant defendants' motion for summary judgment on plaintiff's Americans With Disabilities Act (“ADA”) claim, 42 U.S.C. § 12101 et seq., and decline to exercise supplemental jurisdiction over plaintiff's state law claims. (Docket 35). Plaintiff timely filed objections. (Docket 37). Defendants filed a response to plaintiff's objections.¹ (Docket 38).

The court reviews de novo those portions of the report and recommendation which are the subject of objections. Thompson v. Nix, 897 F.2d 356, 357–58 (8th Cir.1990); 28 U.S.C. § 636(b)(1). The court may then “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). For the reasons stated below, plaintiff's objections are overruled. The court adopts the report and recommendation of the magistrate judge in full with one typographical correction.²

A. MAGISTRATE JUDGE'S FINDINGS OF FACT

Plaintiff's sole objection to the magistrate judge's findings of fact is:

The Report relies solely on Defendants summary regarding the number of employees to determine whether there was the requisite number of employees for Plaintiff's federal employment claim. This was in error because Defendants failed to count employee Beverly S.³

(Docket 37 at p. 2) (emphasis in original). The court's resolution of plaintiff's objection will reference only those facts necessary to provide context. The court adopts all other facts of the report and recommendation.

Plaintiff's sole objection is Beverly was not counted as an employee of KDT in the “numerosity requirement” of the ADA.⁴Id. See also Docket 35 at p. 9. Defendants' documents reflecting employee hire and release dates are the basis for plaintiff's objection. (Docket 37 at p. 3). See also Dockets 19–3 and 19–6 (sealed). Plaintiff argues the court must add Beverly to every week's employee totals for 2009 and 2010 because Beverly was “on payroll from October 16, 2002 until December 28, 2010.” (Docket 37 at p. 3). Plaintiff asserts adding Beverly to every week's employee total would increase KDT's employee count above the minimum requirement of 15 employees for 31 weeks in 2009 and 23 weeks in 2010. Id.

The magistrate judge accepted defendants' proof of the calculation of employees on KDT's payroll in 2009 and 2010.⁵(Docket 25 at p. 15). See also Dockets 19–4 and 19–5. Defendants' calculations show an employee named “Bev” as a “new” hire beginning on November 18 and ending on December 24 in 2009, and as a “rehire” on October 28 and continuing through the end of December of 2010. (Dockets 19–4 at lines 50–55 and 19–5 at lines 47–56). These employee entries are consistent with defendants' 2009 and 2010 time sheets. (Dockets 19–1 at pp. 46–51 and 19–2 at pp. 43–51). The only “Bev” identified by either plaintiff, see Dockets 21–5, 26–5, and 29–2, or defendants, see Dockets 19–3 and 19–6, is Beverly. The court finds there was only one individual identified by the name “Bev” or “Beverly” employed by KDT during the calendar years 2009 and 2010. The magistrate judge properly included Beverly in the analysis in the report and recommendation.

Plaintiff's objection is overruled.

B. MAGISTRATE JUDGE'S CONCLUSIONS OF LAW

Plaintiff did not file objections to the conclusions of law in the report and recommendation. (Docket 37). The court finds the report and recommendation to be an accurate and thorough recitation of the facts and applicable case law. The court further finds the legal analysis of the report and recommendation to be well-reasoned and a proper application of the law to the facts of the case. The magistrate judge's conclusions of law are adopted by the court in accordance with 28 U.S.C. § 636(b)(1)(C).

ORDER

Based on the above analysis, it is hereby

ORDERED that plaintiff's objections (Docket 37) are overruled.

IT IS FURTHER ORDERED that the report and recommendation (Docket 35) is adopted in full with the typographical correction noted above.

IT IS FURTHER ORDERED that defendants' motion for summary judgment (Docket 14) as to plaintiff's Americans With Disabilities Act claims is granted.

IT IS FURTHER ORDERED that count 1 of plaintiff's complaint (Docket 1) alleging violations of the Americans With Disabilities Act is dismissed with prejudice.

IT IS FURTHER ORDERED that pursuant to 28 U.S.C. § 1367(c)(3) the court declines to exercise supplemental jurisdiction over plaintiff's state law claims.

IT IS FURTHER ORDERED that count 2 of plaintiff's complaint alleging violations of the South Dakota Human Relations Act and count 3 alleging intentional infliction of emotional distress are dismissed without prejudice.

IT IS FURTHER ORDERED that “[t]he period of limitations [for the claims asserted in counts 2 and 3] shall be tolled while the claim[s] [were] pending and for a period of 30 days after [they are] dismissed unless State law provides for a longer tolling period.” 28 U.S.C. § 1367(d).

REPORT AND RECOMMENDATION

VERONICA L. DUFFY, United States Magistrate Judge.

INTRODUCTION

This matter is before the court on plaintiff Teresa Pawlowski's complaint alleging that defendants discriminated against her on the basis of her disability in violation of the Americans With Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq. Ms. Pawlowski also asserts state law claims alleging that defendants violated the South Dakota Human Relations Act, SDCL §§ 20–13–1 et seq., and committed the common law tort of intentional infliction of emotional distress. Pending before the court is defendants' motion for summary judgment urging dismissal of Ms. Pawlowski's ADA claim for failure to state a claim on which relief can be granted.¹ The district court, the Honorable Jeffrey L. Viken, referred defendants' motion to this magistrate judge for a recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B).

FACTS

The sole issue presented by defendants' motion is whether any of the named defendants is an “employer” under the ADA by reason of employing at least 15 employees for at least 20 weeks in a year. The following recitation of facts is limited to that issue.

Defendant Marlow Scherbenske is married to Janet Scherbenske, who is not named as a party herein. On March 18, 2004, the Scherbenskes incorporated KTD Enterprises, Inc. (“KTD”). Marlow is the president of KTD and Janet is the vice president. Marlow and Janet are the sole shareholders and directors of KTD. KTD does business under the name “Weathered Vane,” which is a retail store that sells gifts, gourmet food, and decorating items. Janet and Marlow manage Weathered Vane jointly, splitting the duties. Together, they make all policies and management decisions. Neither has the power or ability to fire the other. There is no supervisor to which either Marlow or Janet must answer. Neither Marlow nor Janet have employment agreements with Weathered Vane, although both receive payroll checks from KTD.

The employee workweek at Weathered Vane is Sunday through Saturday. All employees except Clay Soby keep track of their time by recording it on a time sheet posted in the stock room. Janet then enters the information from these time sheets into Excel and QuickBooks, and then transmits that information to Weathered Vane's accountant who calculates payroll taxes for the employees and the business and pays the Internal Revenue Service. Janet then issues paychecks to the employees based on the information from the time sheets and the withholding calculation. She uses this same information in sending reports for unemployment insurance, worker's compensation reports, and the corporate tax return. Because Clay Soby did not submit time sheets, his paychecks are not issued by this procedure.

Clay Soby is an acquaintance of Janet and Marlow who has specialized knowledge of computers. He has a regular, full-time job with another employer other than Weathered Vane. Mr. Soby did computer work for Weathered Vane, coming to Weathered Vane after he finished his hours at his regular job. The work he did for KTD consisted of cleaning out and updating KTD's computers.

Plaintiff and defendants dispute whether Mr. Soby came “often” or only once or twice a year. Because Mr. Soby did not have an independent business, the South Dakota Department of Labor advised KTD (following an audit) that it should withhold payroll taxes from Mr. Soby's pay. Thereafter, KTD did withhold payroll taxes from pay earned by Mr. Soby.

The parties disagree over whether Mr. Soby is an employee of KTD. They also disagree over the method of how the employees of KTD should be calculated. Defendants' calculation results in the conclusion that KTD did not have 15 or more employees for 20 weeks or more in either 2009 or 2010. Plaintiff's calculation results in the conclusion that KTD did have 15 or more employees for 20 weeks or more in either 2009 or 2010.

Defendants used the data in her QuickBooks program to create a document for this litigation showing the hire and release date for all employees. Defendants also prepared, for this litigation, a spreadsheet showing the name of each employee who worked during 2009 and 2010, and noting start and termination dates in one column of the chart....