Shiflett v. Scores Holding Co. , 601 F. App'x 28 ( 2015 )

14-1594-cv
Shiflett v. Scores Holding Co.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
19th day of February, two thousand fifteen.
PRESENT: AMALYA L. KEARSE,
DEBRA ANN LIVINGSTON,
SUSAN L. CARNEY,
Circuit Judges.
____________________________________________________
ELIZABETH SHIFLETT,
Plaintiff-Appellant,
v. No. 14-1594-cv
SCORES HOLDING COMPANY, INC.,
Defendant-Appellee.
____________________________________________________
FOR APPELLANT: Matthew J. Blit, Levine & Blit, PLLC, New York, NY.
FOR APPELLEE: Neal S. Greenfield, Esq., New York, NY.
_____________________________________________________
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and
DECREED that the judgment of the district court is AFFIRMED.
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Plaintiff-Appellant Elizabeth Shiflett appeals from a final judgment entered pursuant to a
decision by the United States District Court for the Southern District of New York (Buchwald,
J.) granting summary judgment to Defendant-Appellee Scores Holding Company, Inc. (“Scores
Holding”) in her action alleging unlawful treatment based upon sex and race, and retaliation,
brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title
VII”), the New York State Human Rights Law, N.Y. Exec. Law. § 290 et seq., and New York
City Human Rights Law, N.Y. City Admin. Code § 8-101 et seq.
Beginning on or about October 2007 until March 2008, Shiflett worked as a cocktail
waitress at a club known as Scores West Side (“Scores West”), owned by Go West
Entertainment Inc. (“Go West”), which was dissolved by proclamation on July 28, 2010, after a
bankruptcy proceeding. She alleges that while working at Scores West she was harassed by her
manager and other employees based upon her sex and race, and that after she complained about
this conduct, she was terminated in retaliation. Shiflett brought this action against Scores
Holding, a company related to Go West, on June 14, 2013. Scores Holding filed a motion for
summary judgment on the ground that it was not her employer for purposes of Title VII. The
district court granted summary judgment to Scores Holding on Shiflett’s Title VII claims, and
exercised its discretion to dismiss her state law claims without prejudice. We assume the parties’
familiarity with the underlying facts, the procedural history, and the issues presented for review.
This Court reviews a district court’s grant of summary judgment de novo. Back v.
Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 122 (2d Cir. 2004). Summary
judgment is appropriate when, viewing the evidence in the light most favorable to the non-
moving party, Nabisco, Inc. v. Warner-Lambert Co., 220 F.3d 43, 45 (2d Cir. 2000), “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). “A dispute is not ‘genuine’ unless ‘the evidence is such that a
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reasonable jury could return a verdict for the nonmoving party.’” Nabisco, 220 F.3d at 45(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
Because, to the extent relevant here, Title VII makes it unlawful “for an employer . . .
to discriminate,” 42 U.S.C. § 2000e-2(a)(1) (emphasis added), “the existence of an employer-
employee relationship is a primary element of Title VII claims.” Gulino v. N.Y. State Educ.
Dep’t, 460 F.3d 361, 370 (2d Cir. 2006). Ordinarily, “a corporate entity is liable for the acts of a
separate, related entity only under extraordinary circumstances.” Murray v. Miner, 74 F.3d 402,
404 (2d Cir. 1996). In the context of Title VII, there are two “recognized doctrines that enable
an employee in certain circumstances to assert employer liability against an entity that is not
formally his or her employer.” Arculeo v. On-Site Sales & Mktg., LLC, 425 F.3d 193, 197 (2d
Cir. 2005). These doctrines are known as the “single employer” doctrine, and the “joint
employer” doctrine. Id.Under the single employer doctrine, “separate corporations under common ownership
and management . . . can be deemed to constitute a single enterprise.” Id. at 198. This Circuit
examines four factors in order to assess whether two nominally distinct entities are actually a
single employer: “(1) interrelation of operations, (2) centralized control of labor relations,
(3) common management, and (4) common ownership or financial control.” Cook v. Arrowsmith
Shelburne, Inc., 69 F.3d 1235, 1240-41 (2d Cir. 1995) (internal quotation marks omitted).
“Although no one factor is determinative[,] control of labor relations is the central concern.”
Brown v. Daikin Am. Inc., 756 F.3d 219, 227 (2d Cir. 2014) (internal quotation marks omitted).
Under the joint employer doctrine, an entity other than an employee’s formal employer
can be held liable not because it is part of a “single integrated enterprise,” but rather because the
two entities “handle certain aspects of their employer-employee relationship jointly.” Arculeo,
425 F.3d at 198 (internal quotation marks omitted). Under the joint employer doctrine, a court
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may conclude that “the employee is . . . constructively employed by” the defendant. Id. While
we have not yet “fully . . . described a test for what constitutes joint employment in the context
of Title VII,” id. at 199 n.7, factors courts have used to examine whether an entity constitutes a
joint employer of an individual include “commonality of hiring, firing, discipline, pay, insurance,
records, and supervision,” see, e.g., St. Jean v. Orient-Express Hotels Inc., 963 F. Supp. 2d 301,
308 (S.D.N.Y. Aug. 7, 2013) (internal quotation marks omitted).
After conducting an independent review of the record and the case law, we conclude that
the district court properly determined that Shiflett has not raised a material issue of fact as to
whether Scores Holding can be deemed her employer for purposes of Title VII under either the
single employer doctrine or the joint employer doctrine. While there is evidence that Scores
Holding and Go West had common ownership, the district court correctly concluded that this is
the only factor of the single employer test weighing in Shiflett’s favor. Even when viewing the
evidence in the light most favorable to Shiflett and making all reasonable factual inferences in
her favor, there is insufficient evidence to support a finding of the existence of any of the other
factors, common management, interrelation of operations, and centralized control of labor
relations.
Critically, none of the evidence indicates that Scores Holding controlled labor relations at
Scores West. For example, Shiflett refers to a printout from Scores Holding’s website from
October 27, 2006 as evidence that Scores Holding exerted control over hiring decisions at Scores
West. The website showed that Scores Holding offered assistance to clubs using the Scores
brand in attracting and training personnel. It would not be reasonable, however, to infer from
that website that Scores Holding actually exerted control over personnel decisions for those
clubs. Another piece of evidence highlighted by Shiflett is that she was given an employee
handbook that included the address and phone number for Scores Holding, which were the same
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address and phone number that belonged to Go West. Yet nothing in the handbook beyond the
mere listing of Scores Holding’s contact information indicated that Scores Holding exerted any
influence regarding labor relations at Scores West. Shiflett also highlights deposition testimony
given in a prior case by John Neilson, the then-director and president of Scores Holding. [A 216]
He testified that Richard Goldring, the individual who managed Scores West [A 220], would
“from time to time ask [his] advice on certain matters” related to Scores West. Jt. App’x 221.
When asked to give examples of the topics they spoke about, however, he explained that his
advice concerned questions such as “[s]hould we make this invitation red or blue, should I talk to
this person about doing a promotion, how can I make the club more profitable, how can I deal
with competitive issues, things like that.” Jt. App’x 221. But since in that deposition, Neilson
testified that he exercised no control over management or personnel decisions at Scores West, it
would not be reasonable to infer that he managed Scores West or exerted control over labor
relations at Scores West.
In sum, none of the evidence in this case is akin to “handling job applications, approving
personnel status reports, [or] exercising veto power over major employment decisions,” activities
which we have held to constitute evidence of centralized control of labor relations. Parker v.
Columbia Pictures Indus., 204 F.3d 326, 341 (2d Cir. 2000). When taking into account the
weakness of Shiflett’s case regarding the other factors in the “single employer” test, it was
proper for the district court to conclude that Shiflett has not raised a genuine issue of material
fact regarding whether Scores Holding can be deemed Shiflett’s employer under this test.
The same deficiencies in the evidence render Shiflett incapable of demonstrating that
there is a genuine issue of material fact regarding whether Scores Holding can be held liable
under the joint employer doctrine. As the district court explained, Shiflett does not allege that
she was hired, fired, or managed by an employee of Scores Holding. Nor is there evidence of
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any insurance or other records pertaining to Shiflett held by Scores Holding. Shiflett
acknowledges that Go West was the payor on her checks. Further, while Scores Holding and
Scores West did share a corporate office, that was not the location at which Shiflett worked.
We have considered each of Shiflett’s arguments on appeal and find them to be without
merit. For the foregoing reasons, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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