Sandoval v. American Building Maintenance Indus., Civil No. 06-1772 (RHK/JSM).

Citation552 F.Supp.2d 867
Decision Date06 May 2008
Docket NumberCivil No. 06-1772 (RHK/JSM).
PartiesFrancisca SANDOVAL, et al., Plaintiffs, v. AMERICAN BUILDING MAINTNANCE INDUSTRIES, INC., et al., Defendants.
CourtUnited States District Courts. 8th Circuit. United States District Court of Minnesota

Brendan D Cummins, Justin D Cummins, Kelly A Jeanetta, M William O'Brien, Miller O'Brien Cummins, PLLP, Mpls, MN, for Plaintiffs.

Jacqueline A Mrachek, Greene Espel, Mpls, MN, for Defendants.

ORDER

RICHARD H. KYLE, District Judge.

Before the Court are Plaintiffs' Objections to the March 20, 2008, Report and Recommendation of Magistrate Judge Janie S. Mayeron, in which Judge Mayeron has recommended that Defendants' Motion for Summary Judgment be granted. The summary judgment proceedings before Judge Mayeron were thoroughly briefed by the parties and Judge Mayeron heard extensive oral argument on January 18, 2008. The undersigned has reviewed denovo the Report and Recommendation and Plaintiffs' Objections thereto; that review has included a review of the briefs submitted to Judge Mayeron and a transcript of the January 18th oral arguments, and the briefs submitted to the undersigned with respect to the pending Objections. Based on this de novo review, the undersigned is satisfied that Judge Mayeron's recommendation is fully supported by the facts before her as well as applicable and controlling legal authority and should be adopted. In view of Judge Mayeron's exhaustive analysis of both the factual record and legal issues, the undersigned can see no benefit of issuing a second opinion which would reach the same result as Judge Mayeron.

Accordingly, and upon all the files, records and proceedings herein, IT IS ODERED:

1. The Objections (Doc. No. 198) are OVERRULED;

2. The Report and Recommendation (Doc. No. 195) is ADOPTED;

3. Defendants' Motion for Summary Judgment (Doc. No. 147) is GRANTED; and

4. The Amended Complaint (Doc. No. 25) is DISMISSED WITH PREJDICE.

LET JUDGMENT BE ENTERED ACORDINGLY.

REPORT AND RECOMMENDATION

JANIE S. MAYERON, United States Magistrate Judge.

The above matter came on before the undersigned upon Defendants' Motion for Summary Judgment [Docket No. 147]. M. William O'Brien, Esq. and Justin Cummins, Esq. appeared on behalf of plaintiffs; Jacqueline Mrachek, Esq. and Nancy Brasel, Esq. appeared on behalf of defendants. This matter has been referred to the undersigned Magistrate Judge for a Report and Recommendation by the District Court pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(c).

I. INTRODUCTION

Plaintiffs in this action, Francisca Sandoval, Ines Hernandez, Miriam Pachecho, Eva Reyes, Arminda Gomez, Nidia Guerrero, Lucila Marquez, Maria Perez, Azucena Garcia, Estela Laureano, and Marlene Giron, have sued defendant American Building Maintenance Industries, Inc. ("ABMI"), alleging sexual harassment and other employment-related claims under Title VII of the Civil Rights Act and the Minnesota Human Rights Act ("MHRA"). Plaintiffs Garcia, Laureano and Giron also have asserted these claims against defendant American Building Maintenance Co. of Kentucky ("ABM Kentucky" or "ABM").

ABMI now moves for summary judgment against all plaintiffs on the grounds that it has never been plaintiffs' employer, nor can it be liable for the actions of ABM Kentucky, one of its subsidiaries. In addition, both defendants moved for summary judgment on grounds that none of the plaintiffs can make out claims of sexual harassment, retaliation and gender discrimination.

For the reasons set forth below, the Court recommends that Defendants' Motion for Summary Judgment be granted.

II. STANDARD OF REVIEW FOR SUMMARY JUDGMENT

Summary judgment is proper if, drawing all reasonable inferences favorable to the non-moving party, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, All U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., All U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Unigroup, Inc. v. O'Rourke Storage & Transfer Co., 980 F.2d 1217, 1219 (8th Cir.1992). "[S]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy, and inexpensive determination of every action." Celotex, All U.S. at 327, 106 S.Ct. 2548. "`Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.'" DePugh v. Smith, 880 F.Supp. 651, 656 (N.D.Iowa 1995) (quoting Anderson, All U.S. at 248, 106 S.Ct. 2505).

The party moving for summary judgment bears the burden of showing that the material facts in the case are undisputed. Celotex Corp., All U.S. at 322-23, 106 S.Ct. 2548; see also Mems v. City of St. Paul, Dep't of Fire & Safety Servs., 224 F.3d 735, 738 (8th Cir.2000). If the moving party has carried its burden, the nonmoving party must demonstrate the existence of specific facts in the record that create a genuine issue for trial. Anderson, All U.S. at 256, 106 S.Ct. 2505; Krenik v. County ofLeSueur, All F.3d 953, 957 (8th Cir.1995). "The nonmoving party may not rest on mere allegations or denials, but must show through the presentation of admissible evidence that specific facts exist creating a genuine issue for trial." Minnesota Laborers Health & Welfare Fund v. Swenke, 2003 WL 21521755, *1, 2003 U.S. Dist. LEXIS 11439, *4-5 (D.Minn.2003) (citations omitted). The non-moving party "must substantiate his allegations with sufficient probative evidence that would permit a finding in [their] favor based on more than mere speculation, conjecture, or fantasy." Wilson v. Int'l Bus. Mack Corp., 62 F.3d 237, 241 (8th Cir.1995).

When deciding a motion for summary judgment, a court can only consider admissible evidence. See Henthorn v. Capitol Commc'ns, Inc., 359 F.3d 1021, 1026 (8th Cir.2004); see also Stuart v. Gen'l Motors Corp., 217 F.3d 621, 636 n. 20 (8th Cir. 2000) ("To be considered on summary judgment, documents must be authenticated by and attached to an affidavit made on personal knowledge setting forth such facts as would be admissible in evidence or a deposition that meets the requirements of Fed.R.Civ.P. 56(e).").

III. ABMI'S LIABILITY

Defendant ABMI seeks summary judgment on plaintiffs' Title VII and MHRA claims on grounds that it is not plaintiffs' employer.1 See Memorandum of Law in Support of Defendants' Motion for Summary Judgment ("Defs.' Mem.") at pp. 17-23. Liability under Title VII and the MHRA only apply to a plaintiffs "employer." See 42 U.S.C. § 2000e-2(a); Minn. Stat. § 363A.08, subd. 2. In opposition, plaintiffs argued that ABMI was plaintiffs' sole employer, or in the alternative, ABMI is a joint employer or integrated enterprise with ABM Kentucky. See Plaintiffs' Memorandum of Law in Support of Summary Judgment ("Pls.' Mem.") at pp. 98-101.

A. Factual Background

The undisputed facts bearing on ABMI's motion for summary judgment are as follows.

1. General Background

In December 2004, American Building Maintenance Co. of Illinois ("ABM Illinois"), which had been operating in Minnesota since April 2001 under the assumed name of "ABM Janitorial Services," entered into an agreement to transfer all of its operations in Minnesota, and other Midwestern states to ABM Kentucky. See Affidavit of Jacqueline Mrachek ("Mrachek Aff."), Ex. 13 (Certificate of Assumed Name), Ex. 15 (Written Consent of the Sole Shareholder of ABM Illinois). At that point, both ABM Kentucky and ABM Illinois became wholly-owned subsidiaries of ABM Janitorial Services, Inc., which in turn, is a wholly-owned subsidiary of ABMI. See Affidavit of Maria Natoli Miller2 ("Miller Aff"), 114; see also Mrachek Aff, Ex. 40 (Southard, Dep.), Deposition Exhibit ("Dep.Ex.") 1 (Southard's business card). ABMI owns all of the shares of ABM Kentucky, which has a fixed value of $2,500. See Affidavit of Justin D. Cummins ("Cummins Aff"), Ex. 246 at pp. ABM07222-ABM7223.

On December 12, 2004, the Minnesota Secretary of State issued a "Certificate of Authority to Transact Business" in Minnesota to "American Building Maintenance Co. of Kentucky." Mrachek Aff, Ex. 12. The state of incorporation for ABM Kentucky is California. Id. According to the Minnesota Department of Employment and Economic Development, ABM Kentucky, d/b/a ABM Janitorial Services, became the successor employer to ABM Illinois effective January 1, 2005. Id., Ex. 18 (Unemployment Tax Liability Determination, ABM06661). ABM Kentucky operates in Minnesota under the name of "ABM Janitorial Services" and occasionally under the name of "American Building Maintenance Co." See Miller Aff., ¶ 2.

On January 31, 2006, the Minnesota Secretary of State issued a "Foreign Corporations Certificate of Revocation" for ABM Kentucky arising out its failure to file an annual report in violation of Minnesota Law. See Cummins Aff., Ex. 256, PABM 002970. The failure by ABM Kentucky to file an annual report stemmed from the illness of the individual who was in charge of filing the annual report with the Minnesota Secretary of State. See Mrachek Aff, Ex. 19 (Request for Admission No. 32). On July 11, 2006, the Minnesota Secretary of State issued a "Certificate of Reinstatement" allowing ABM Kentucky to conduct business in Minnesota. Id., ABM07908. As of March, 2007, ABM Kentucky has gone by the name of ABM Janitorial Services-North Central. See Miller Aff., ¶ 2.

As stated previously, the assumed name "ABM Janitorial Services" had been used by ABM Illinois since April 2001 and then by ABM Kentucky after the transfer of ABM Illinois' operations in Minnesota and other states to ABM Kentucky. See Miller Aff., ¶ 2; Mrachek Aff., Ex. 13 (Certificate of Assumed Name); Cummins Aff Ex. 258, PABM 002951 (Business Organizations Inquiry). The...

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