Martin v. Performance Trans. Inc.

408 F.Supp.3d 272

Anthony MARTIN, Plaintiff,

v.PERFORMANCE TRANS. INC., et al., Defendants.

17-CV-6471L

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

Signed October 4, 2019

Anthony Martin, Rochester, NY, pro se.

Ryan Charles Woodworth, The Woodworth Law Firm, Rochester, NY, for Plaintiff.

Frank W. Miller, The Law Firm of Frank W. Miller, East Syracuse, NY, for Defendants.

DECISION AND ORDER

DAVID G. LARIMER, United States District Judge

Plaintiff Anthony Martin brings this action against five corporations and one individual, alleging claims of unlawful retaliation under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. , and 42 U.S.C. § 1981. When the complaint was filed, plaintiff was represented by counsel. On November 6, 2018, the Court granted counsel's motion to withdraw (Dkt. #29, #33). Since then, plaintiff has prosecuted the action pro se .

The five corporate defendants (collectively "corporate defendants") are Performance Trans. Inc. ("PTI"), Trucking Support Services LLC, First Global Express, LLC, Distribution Cooperative Network ("DCN"), and Velocity Tran. Inc. ("VTI"). The individual defendant is John Kasap.¹ Defendants, all of whom are represented by the same attorney, have moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.

On January 3, 2019, the Court issued an order (Dkt. #34) giving the parties notice that the Court was converting defendants' motion to a motion for summary judgment under Rule 56, pursuant to Rule 12(d). In that order, the Court gave both sides an opportunity to submit additional materials in support of their respective positions, which they have done.

BACKGROUND

The complaint alleges that plaintiff, an African-American male, was hired by defendants in May 2015 as a truck driver. Plaintiff alleges that all five corporate defendants were his employers, and that Kasap was his direct supervisor. Complaint ¶¶ 4-16, 21.

Plaintiff alleges that on December 14, 2015, he filed a charge of unlawful race discrimination against PTI with the New York State Division of Human Rights ("DHR"). Complaint ¶ 23. That DHR complaint does not appear to be in the record, so it is unclear what the exact nature of the charge was, but on May 9, 2016, the DHR issued a Determination and Order (Dkt. #26-6) dismissing the complaint.

The DHR stated that plaintiff had filed a complaint against PTI alleging claims of discrimination based on national origin, race/color, and disability. In dismissing the complaint, the DHR stated that it had found insufficient evidence to support plaintiff's allegations of unlawful discrimination based on his race, color, or national origin, and that the DHR's "[i]nvestigation also did not show that Complainant was denied any reasonable accommodation for his disability." Id. at 2. The DHR stated that its "[i]nvestigation showed that [plaintiff] had refused loads from [PTI] for reasons unrelated to any protected category, which impacted his word assignments and pay." Id.

The complaint in this action alleges that on December 16, 2015, during a private conversation with Kasap, Kasap said to plaintiff, "I cannot believe you filed a complaint with the division of human rights. Now I have to hire two lawyers to fight your case." Complaint ¶ 26. Plaintiff also alleges that on December 18, he was informed by defendants via a text message that he would be going out on Sunday, December 20, for a December 21 delivery. Complaint ¶¶ 28, 29. Plaintiff further alleges that about eight minutes later, he received another text message stating, "NEVER MIND. PLANS ARE CANCELLED." Plaintiff states that he was not given any more work assignments, and that he was effectively terminated as of December 18, 2015. Complaint ¶¶ 31, 34.

On January 7, 2016, plaintiff filed another DHR complaint against PTI, alleging discrimination on account of his national origin and race/color, and unlawful retaliation for his having opposed unlawful discrimination. On May 11, 2017, the DHR issued a Determination and Order (Dkt. #26-6 at 4) dismissing the complaint. The DHR specifically found that "[a]lthough Complainant alleges that [PTI] terminated his employment because of the [DHR] complaint that was filed on December 14, 2015, the documentation shows that [PTI] made the decision to sever its business relationship with Complainant prior to that date due to requirements by its insurance carriers," and that the DHR's investigation did not show that PTI terminated plaintiff's employment in retaliation for his prior DHR complaint. Id.

Plaintiff filed a third DHR complaint on September 30, 2016, against the corporate defendants. On March 13, 2017, the DHR issued a Determination and Order (Dkt. #26-6 at 6) dismissing that complaint as well. It appears that, other than naming all five corporate defendants, plaintiff's September 2016 complaint was quite similar to the January 2016 complaint against PTI, because the substance of the DHR's March 2017 Decision and Order is virtually identical to its May 2017 Decision and Order.

Plaintiff filed this action on July 17, 2017. The complaint asserts a claim of unlawful retaliation under Title VII, and a claim of unlawful retaliation under § 1981. Both claims are apparently based on plaintiff's December 14, 2015 DHR complaint. See Complaint § 35. Plaintiff seeks compensatory damages for lost wages and benefits and for pain and suffering, punitive damages, and other costs.

DISCUSSION

I. Title VII Claim

Defendants assert that plaintiff's Title VII claim should be dismissed because plaintiff has failed to show that the defendants meet the employee numerosity requirement of Title VII.

By its terms, Title VII applies only to employers who have fifteen or more employees. See 42 U.S.C. § 2000e(b) ("The term ‘employer’ means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year"); see also Arculeo v. On-Site Sales & Mktg., LLC , 425 F.3d 193, 195 (2d Cir. 2005) ("An employer is not covered by the provisions of Title VII, unless the employer has at least fifteen employees"). That fifteen-employee threshold is a substantive element of a Title VII claim. See Arbaugh v. Y & H Corp. , 546 U.S. 500, 504, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) ("[T]he employee-numerosity requirement relates to the substantive adequacy of [plaintiff's claim]").

In support of their motion, defendants have submitted affidavits of several principals of the corporate defendants, stating that those defendants had no employees at all in 2014 or 2015, when the events giving rise to plaintiff's claims occurred. See Igor Kasap Aff. (Dkt. #26-8); Irina Ignatovets Aff. (Dkt. #26-9); Robert Lefebvre Aff. (Dkt. #26-10). The gist of their statements is that the corporate defendants entered into contracts with independent contractors (including plaintiff), who were not defendants' employees. Plaintiff has not refuted those assertions.

Title VII generally "cover[s] ‘employees,’ not independent contractors." Eisenberg v. Advance Relocation & Storage, Inc. , 237 F.3d 111, 113 (2d Cir. 2000). Although "the statute defines an employee circularly as ‘an individual employed by an employer’ " Salamon v. Our Lady of Victory Hosp. , 514 F.3d 217, 226 (2d Cir. 2008) (quoting 42 U.S.C. § 2000e(f), the Supreme Court has set forth a non-exhaustive list of factors indicative of whether a plaintiff is (or was) an employee or an independent contractor. See Community for Creative Non-Violence v. Reid , 490 U.S. 730, 751-52, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989). In general, the analysis is based on the common law of agency. See Salamon , 514 F.3d at 226-27 (citing Reid). "Once a plaintiff is found to be an independent contractor and not an employee–whether on summary judgment or after a trial–the Title VII claim must fail." Id. at 226.

Not only has plaintiff failed to refute defendants' assertion that he was an independent contractor rather than an employee, the evidence in the record supports defendants' assertion. Defendants have submitted a copy of a "Delivery Vendor Agreement for Transportation Services" between DCN and plaintiff on October 15, 2015, setting forth the terms of their relationship, including plaintiff's provision of transportation services, compensation, and so on. The agreement specifically states that both parties agreed that plaintiff's relationship with DCN was "that of an independent contractor and [that] any and all services provided by [plaintiff] shall be provided in such capacity." (Dkt. #26-5 at 2). The agreement further states that plaintiff would not "be considered [an] employee[ ] of DCN at any time, under any circumstances or for any purpose." Id.² In addition, plaintiff himself has submitted copies of checks that he received in December 2015, bearing the heading, "FOR INDEPENDENT CONTRACTOR SERVICES PROVIDED TO Velocity Trans. Inc." (Dkt. #43 at 7, 8.) Thus, there is no basis for a Title VII claim against the corporate defendants.

In addition, individuals are not subject to liability under Title VII. See Cayemittes v. City of New York Dep't of Housing Pres. & Dev. , 641 Fed.Appx. 60, 61-62 (2d Cir. 2016) ("Title VII does not provide for individual liability") (citing Raspardo v. Carlone , 770 F.3d 97, 113 (2d Cir. 2014) ); Sassaman v. Gamache , 566 F.3d 307, 315-16 (2d Cir. 2009) (stating that "individuals are not subject to liability under Title VII"). Plaintiff's Title VII claim against defendant Kasap must therefore be dismissed as well.

II. Section 1981 Claim

Section 1981 of Title 42 prohibits discrimination based on race in the making and enforcement of contracts. The statute applies to both public and private actors. Juarez v. Northwestern Mut. Ins. Co., Inc. , 69 F.Supp.3d 364, 367 (S.D.N.Y. 2014).

Unlike Title VII, § 1981 does not contain an employee numerosity requirement, see Bland v. Booth , 19-CV-63, ...