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Opinions – 11/28/11: U.S. District Court, Maryland

Labor & Employment

Sex discrimination

BOTTOM LINE: Where undisputed evidence indicated that a company had fewer than 15 employees at the time sex discrimination allegedly occurred, the company was not an “employer” for purposes of Title VII, and the employee’s claim against it was dismissed.

CASE: Tasciyan v. Medical Numerics, No. 11-1467 AW (filed Oct. 28, 2011) (Judge WILLIAMS). RecordFax No. 11-1028-40, 17 pages.

FACTS: Talin Tasciayn, a biomedical engineer, brought an action against two divisions of her employer and the company that bought over the employer companies, alleging claims of sex discrimination and retaliation in violation of Title VII of the Civil Rights Act.

In 1999, Sensor Systems hired Tasciyan to participate in software development efforts regarding a product called MEDx. In 2003, Tasciyan began representing the company at the National Institute of Health (NIH) as one of two contractors on behalf of Medical Numerics providing support for MEDx. Tasciyan remained in this capacity until her dismissal from Sensor Systems in March 2009.

Tasciyan was the only female employee at Medical Numerics. During an October 2007 meeting, Tasciyan “half-jokingly” inquired whether she had been denied promotion because of her gender.

After Textron acquired Medical Numerics, a written evaluation system was introduced to provide a means for employees to self-evaluate and to voice their annual goals. In her January 2009 self-evaluation form, Tasciyan expressed concerns that the company’s decision not to promote her was due to her gender.

On Feb. 19, 2009, a Medical Numerics manager asked Tasciyan to remove her accusatory statements from the form and told her that “no one really reads these things.”

In early March 2009, Overwatch’s Human Resources Officer, Catherine Zako, served Tasciyan with a disciplinary report. The report stated that everything had progressed reasonably well until Jan. 5, 2011, the date of Tasciyan’s performance review. On March 10, 2009, the manager of Medical Numerics ordered Tasciyan to go home, but Tasciyan did not comply.

The following day, Tasciyan went to Overwatch, presumably to communicate with Catherine Zako, who was not in the office. Tasciyan was told to contact Bob Cuddyer of Textron. Cuddyer ordered Tasciyan to stay at home while he investigated her concerns. On March 16, 2009, Cuddyer called Tasciyan to inform her of her termination. On that same day, Tasciyan received a dismissal letter “on Textron stationery” bearing Cuddyer’s signature.

On June 18, 2009, Tasciyan filed a complaint with the Equal Employment Opportunity Commission. In her EEOC Intake Questionnaire, Tasciyan named as defendants Medical Numerics, Textron Systems, and Overwatch Geospatial Systems.

Tasciyan alleged that Medical Numerics and Overwatch were divisions of Sensor Systems, and that defendant Textron “bought over” Medical Numerics and Overwatch in 2007.

While Tasciyan alleged that Medical Numerics had more than 15 employees, other evidence indicated that Medical Numerics did not employ more than 14 employees.

The EEOC issued a Right to Sue Letter on March 22, 2011. On May 31, 2011, Tasciyan filed a complaint in district court. Count I asserted a claim for sex discrimination in violation of Title VII, and Count II asserted a claim for retaliation in violation of the same. The defendants moved to dismiss or for summary judgment.

The district court granted the motion in part and denied it in part.

LAW: The first matter considered was whether Medical Numerics was an “employer” under Title VII and, if not, whether Medical Numerics was integrated with Textron and Overwatch.

Title VII provides that it is unlawful for an “employer” to discriminate on the basis of sex. 42 U.S.C.A. §2000e–2. “Employer” means a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. Id. §2000e. Thus, an employer who employs fewer than 15 employees does not satisfy Title VII’s statutory definition of employer and is not subject to discrimination actions founded on Title VII. See Walters v. Metro. Educ. Enter., Inc., 519 U.S. 202, 212 (1997).

A plaintiff may, however, bring a Title VII claim against an employer with fewer than 15 employees where that employer is “integrated” with another employer with a sufficient number of employees. See, e.g., Glunt v. GES Exposition Servs., Inc., 123 F.Supp.2d 847, 874 (D.Md.2000).

Courts apply the “integrated employer test” to make this determination. Id. This test considers four factors between the parent and its subsidiary: (1) common management; (2) the interrelation between operations; (3) centralized control; and (4) the degree of common ownership and financial control. Id. Because the integrated employer test necessitates a fact-intensive inquiry, it is ordinarily inappropriate for courts to apply the integrated employer test at the motion to dismiss stage. Cf. Johnson v. Ross, 419 Fed. App’x. 357, 363 (4th Cir.2011).

In this case, however, a reasonable juror could only conclude that Medical Numerics was not an employer within the meaning of Title VII, as the undisputed evidence showed that Medical Numerics did not have 15 employees during the time that Tasciyan alleged it engaged in discriminatory conduct. For one, the senior director of Medical Numerics, Douglas Tucker, swore by affidavit that Medical Numerics employed no more than 14 employees in 2008 and 2009. Moreover, Tasciyan herself, in her EEOC Intake Questionnaire, wrote that Medical Numerics had only 12 employees. In addition, Tasciyan explicitly stated in her complaint that at the time that she was employed by Medical Numerics, it had 14 full-time employees. Finally, Tasciyan’s assertion that other employees augmented Medical Numeric’s staff was without merit.

Accordingly, the court granted Medical Numeric’s motion to dismiss or for summary judgment in relation to its argument that Medical Numerics was not, per se, an employer under Title VII.

COMMENTARY: The court also found that Tasciyan failed to state a claim for sex discrimination under Title VII, but that she did state a cognizable claim for retaliation under Title VII.

To prevail in Title VII claim of sex discrimination, a plaintiff must prove that: (1) she is a member of a protected group; (2) she applied for the position in question; (3) she was qualified for the position; and (4) she was rejected for the position under circumstances giving rise to an inference of unlawful discrimination. Brown v. McLean, 159 F.3d 898, 902 (4th Cir.1998); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Although the law contains no per se requirement that the plaintiff allege each element of the prima facie case, a complaint must contain sufficient factual matter to state a claim to relief that is plausible on its face.

Here, Tasciyan based her sex discrimination claim merely on allegations that she was the only female employee at Medical Numerics, that she was not promoted based on her sex, and that defendants retaliated against her when she complained in 2009 that she might not have been promoted because of her sex. These threadbare allegations failed to support the inference that Tasciyan actually applied for a promotion in 2009. And, even if they did, they still failed to support the inference that the defendants’ failure to promote Tasciyan was due to her gender.

To establish a claim of retaliation under Title VII, a plaintiff must show: (1) that she engaged in protected activity; (2) that her employer took an adverse employment action against her; and (3) that a causal connection existed between the protected activity and the adverse employment action. Davis v. Dimensions Health Corp., 639 F.Supp.2d 610, 616–17 (D.Md.2009).

Tasciyan alleged that she received a Ph.D. from a prestigious university, worked for her employer for approximately six years before her termination, and was the only female in the office. Tasciyan further alleged that in January 2009, she communicated to her employer in her evaluation form her belief that she had been denied promotion because of her sex. Tasciyan asserted that the manager of Medical Numerics ordered her to remove her complaints from the evaluation form on Feb. 19, 2009, and that her employer terminated her on March 16, 2011.

These allegations, albeit lacking, sufficed to state a facially plausible claim for retaliation under Title VII. The key question was whether the allegations sustain the inference that Tasciyan’s belief was reasonable. Although a close call, it was at least somewhat plausible that the sole female employee in an office, untutored in the law, could have a reasonable belief that her employer’s failure to promote her constituted unlawful discrimination. Given Tasciyan’s educational credentials, length of service, and sexual singularity, it was plausible that discovery could reveal facts further substantiating the reasonableness of Tasciyan’s belief that her employer discriminatorily failed to promote her.

Accordingly, Tasciyan’s claim for sex discrimination under Title VII was dismissed, and defendants’ motions to dismiss or for summary judgment in relation to the retaliation claim was denied.

PRACTICE TIPS: An employee may satisfy the first element of a retaliation claim under Title VII of the Civil Rights Act by showing that she “opposed” a practice that Title VII prohibits. Such opposition almost always arises when an employee communicates to her employer her reasonable belief that that the employer has engaged in discrimination. Note that whether a person plausibly has a reasonable belief that her employer has discriminated against her is a separate inquiry from whether a person has stated a plausible claim for relief for sex discrimination.