United States District Court, W.D. Virginia, Danville Division
BRANDIR. TAYLOR, Plaintiff,
CARDIOLOGY CLINIC, INC., and HEALTHCARE MANAGEMENT SERVICES, INC., Defendants.
JACKSON L. KISER, SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendants' motion for
summary judgment. The parties have fully briefed the motion,
and I have reviewed counsel's arguments and the relevant
filings, including the materials permitted under my Order of
July 8, 2016 [ECF No. 72]. For the reasons stated herein, I
will grant Defendants' motion.
STATEMENT OF FACTS AND PROCEDURAL
October 3, 2014, Brandi R. Taylor ("Plaintiff) filed the
present action against Cardiology Clinic, Inc.,
("Cardiology Clinic") and Healthcare Management
Services, Inc., ("HMS") (together,
"Defendants"). Under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title
VII"), she alleges that Defendants unlawfully fired her
for being pregnant. (See Compl. ¶¶ 20-24, Oct. 3,
2014 [ECF No. 1].) Defendants move for summary judgment,
arguing that they had too few Title VII "employees"
to be a Title VII "employer."
were formally-independent but closely-related entities. Suman
Chauhan ("Dolly") was "the president and owner
of [HMS], " "the only officer and sole director of
the corporation" as well as the "sole
shareholder." (Dep. of Suman Chauhan 24:02-17, 25:09-14,
Jan. 14, 2016 [ECF No. 58-11] (hereinafter "Dolly's
Jan. Dep.").) Dr. Ajit Chauhan, Dolly's husband, was
the sole shareholder, sole director, and sole officer of
Cardiology Clinic (id at 24:18-23, 25:01-05, 25:15-18),
though Dolly drew a paycheck for "supervising] and
managing] the office" as Cardiology Clinic's office
manager (id at 24:24-25, 25:19-22).
offices were on the same site in Danville (id at 21:09-23),
and Defendants had a "business relationship"
(id. at 9:12-13). In short, HMS "leased medical
health care workers for a medical practice, ... the
Cardiology Clinic." (Id. at 9:15-18, 20:19-21.)
HMS "manag[ed] and provid[ed] the staffing, the hiring
and the firing and all HR-related issues with those leased
employees." (Id. at 21:01-03.) The
companies' 2013 quarterly reports to the Virginia
Employment Commission ("VEC") reflect this
relationship. For that year, only Dolly and Dr. Chauhan
are listed on Cardiology Clinic's reports (Defs.'
Mot. for Summ. J. ex. F, at pgs. 2, 5, 8, 11, May 20, 2016
[ECF No. 58-7] (hereinafter "Cardiology Clinic's
Quarterly Tax Reports")), while HMS' reports reveal
a monthly average of just over thirteen "employees"
(as termed by the reports). (See Defs.' Mot. for Summ. J.
ex. E, at pgs. 2, 4, 6, May 20, 2016 [ECF No. 58-6]
(hereinafter "HMS' Quarterly Tax Reports").)
The biweekly payroll journals refelect similar
numbers. (Compare Defs.' Mot. for
Summ. J. ex. B, May 20, 2016 [ECF No. 58-3] (hereinafter
"Cardiology Clinic's 2013 Payroll Journals"),
with Defs.' Mot. for Summ. J. ex. C, May 20,
2016 [ECF No. 58-4] (hereinafter "HMS' 2013-14
Payroll Journals") (this average not accounting for
adjustments on the exhibit's cover sheet)).
January 2014, however, HMS dissolved. (Dolly's Jan. Dep.
at 9:23-25, 10:01-02.) Cardiology Clinic absorbed several,
but not all,  of HMS' employees and added some
others. (See id. at 13:19-25, 14:05-07.
Compare Cardiology Clinic's Quarterly Tax
Reports at pg. 14, with HMS' Quarterly Tax
Reports at pg. 10.) Essentially, Cardiology Clinic began to
staff itself. Having been a medical assistant at HMS
since July 2013, Plaintiff was not among those retained by
Cardiology Clinic in January 2014. (See Dep. of Brandi R.
Taylor 9:11-17, 38:10-39:05, Feb. 1, 2016 [ECF No. 65-1]
(hereinafter "Pl.'s Taylor Dep.").) For reasons
explained elsewhere, see supra note 2, Plaintiff
claims this to have been a discriminatory firing on account
of her pregnancy (see Compl. ¶¶| 20-24).
number of Defendants' employees, Plaintiff testified at
her deposition that there were fifteen to sixteen-counting
Dolly and Dr. Chauhan-while she was employed. (Dep. of Brandi
R. Taylor 58:17-59:04, Feb. 1, 2016 [ECF No. 58-10].) She
also testified that Defendants had several employees who do
not appear on Defendants' VEC reports or payroll
journals. "[I]n cardiolites, " there was an
"Amanda" ("Amanda LNU" [Last Name
Unknown]) of whose last name Plaintiff was
uncertain. (Pl.'s Taylor Dep. at 18:13-14.)
"She was there when [Plaintiff] got there and she was
there when [Plaintiff] left." (Id. at
18:21-24.) Amanda LNU worked about "three days a week, .
. . Monday through Thursday ... or Tuesday through
Thursday." (Id. at 19:04-06.) "Laura
Fallon" was another. (Id. at 18:14-15.)
Plaintiff contends she started and ended while Plaintiff was
there (id at 21:01-08), but Plaintiff seemed unfamiliar with
other details (see id. at 24:12-13). "Kimberly
Crane" worked "for the front office, "
"checking in, checking out patients." (Id.
at 23:08-16.) Plaintiff testified that she started after
Plaintiff and departed before her. (Id. at
23:17-20.) Handwritten in, Crane appears on a schedule for
September 23-27, 2013, set to work 9:00 a.m. to 5:35 p.m., a
total of 8.58 hours that week. (Mem. in Opp'n to Mot. for
Summ. J. ex. 7, at pg. 2, June 17, 2016 [ECF No. 65-7]
(hereinafter "Schedule of Sept. 23-27,
2013".) "Sharon Scearce" is also
handwritten into that schedule, though for no days and no
hours. (Id.) "Lori Dixon" appears,
scheduled for Monday from 9:54 a.m. to 5:05 p.m. with a total
of 7.18 hours in the week of October 21-25, 2013. (Mem. in
Opp'n to Mot. for Summ. J. ex. 10, at pg. 2, June 17,
2016 [ECF No. 65-10].)
II. STANDARD OF REVIEW
"court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). Insofar as the facts are genuinely
disputed, they are "viewed in the light most favorable
to the nonmoving party . . . ." Ricci v.
DeStefano, 557 U.S. 557, 586 (2009) (quoting Scott
v. Harris, 550 U.S. 372, 380 (2007)). "A genuine
dispute exists 'if the evidence is such that a reasonable
jury could return a verdict for the nonmoving
party.'" Wilkins v. Montgomery, 751 F.3d
214, 220 (4th Cir. 2014) (quoting Shaw v. Stroud, 13
F.3d 791, 798 (4th Cir. 1994)). To that end, the nonmoving
party must have in her favor "specific
facts"-"more than conclusory allegations, mere
speculation, the building of one inference upon another, or
the mere existence of a scintilla of evidence." Dash
v. Mavweather, 731 F.3d 303, 311 (4th Cir. 2013). All in
all, summary judgment is appropriate "[w]here the
unresolved issues are primarily legal rather than
factual." See Koehn v. Indian Hills Cmty.
Coll., 371 F.3d 394, 396 (8th Cir. 2004). A court's
task is simply "to determine whether there are issues to
be tried." 10A Charles Alan Wright, Arthur R. Miller
& Mary Kay Kane, Federal Practice and Procedure
§ 2712, at 206 (2007).
entity can be held liable in a Title VII action only if it is
an 'employer' of the complainant." Butler v.
Drive Auto. Indus, of Am., Inc., 793 F.3d 404, 408 (4th
Cir. 2015). This requirement begets the
"employee-numerosity requirement, " by which
Congress intended "[t]o spare very small businesses from
Title VII liability . . . ." Arbaugh v. Y&H
Corp., 546 U.S. 500, 504-05 (2006). To be a Title VII
"employer, " an entity must "ha[ve] fifteen or
more employees for each working day in each of twenty or more
calendar weeks in the current or preceding calendar
year." 42 U.S.C. § 2000e(b) (2016). A plaintiff
"bears the burden of proving the number of employees,
including the duration of their employment, 'with some
element of precision.'" Wilson v. Comtrust
LLC, 249 F.Supp.2d 993, 997 (N.D. Ill. 2003) (quoting
Norman v. Levy, 767 F.Supp. 1441, 1449 (N.D. Ill.
argument, Plaintiffs counsel conceded that, in this case, the
only year in issue is 2013. Accordingly, the question is
whether Defendants had requisite Title VII
"employees" in that year to be a Title VII
"employer." Before getting to the headcount, I
consider whether the Chauhans are to be
Except for Dolly as Cardiology Clinic's office
manager, the Chauhans were not Defendants'
first determine whether Dolly-the president, owner, and sole
shareholder and director of HMS-and Dr. Chauhan-the sole
shareholder, officer, and director of Cardiology Clinic-were
"employees" of either entity.
answer to whether a shareholder-director is an employee or an
employer cannot be decided in every case by a shorthand
formula or magic phrase." Echevarria v. Insight
Med., PC, 72 F.Supp.3d 442, 457 n.10 (S.D.N.Y. 2014)
(citation and internal quotation marks omitted). Rather,
"the focus of inquiry should be on 'the common4aw
touchstone of control.'" Bragg v. Orthopaedic
Assocs. of Va., Ltd., No. CIV A 206CV347, 2007 WL
702786, at *3 (E.D. Va. Mar. 2, 2007) (quoting Clackamas
Gastroenterology Assocs. v. Wells
("Clackamas"), 538 U.S. 440, 449
(2003)). With that focus, the Supreme Court has
identified six nonexclusive factors, which collapse
neatly into the following:
"[A]n employer is the person, or group of persons, who
owns and manages the enterprise. The employer can hire and
fire employees, can assign tasks to employees and supervise
their performance, and can decide how the profits and losses
of the business are to be distributed. . . ." When
deciding whether shareholder-directors were employees, no one