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Gizoni v. Affinity Human Resources

United States District Court, E.D. Michigan, Southern Division

September 25, 2017

CYNTHIA GIZONI, Plaintiff,
v.
AFFINITY HUMAN RESOURCES, JERRY HAMLING, and TOMMY ATAMONOFF, Defendants.

          ORDER GRANTING DEFENDANTS' CONVERTED MOTION FOR SUMMARY JUDGMENT [36] [15]

          NANCY G. EDMUNDS, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendants' motion for summary judgment, which was converted from a motion to dismiss. (See Dkt. 15; Dkt. 31; Dkt. 36.) For the following reasons, Defendants' converted motion is GRANTED.

         I. Background

         A. Procedural Background

         Plaintiff Cynthia Gizoni asserts employment discrimination and retaliation claims under Michigan's Elliott-Larsen Civil Rights Act (“ELCRA”) and Title VII. Defendants include Affinity Human Resources (“Affinity”) and two of Affinity's agents, Jerry Hamling and Tommy Atamanoff. In lieu of filing an answer, Defendants moved under Fed.R.Civ.P. 12(b)(6) to dismiss Plaintiff's Title VII claims for failure to state a claim.[1] Defendants also asked the Court to decline to exercise supplemental jurisdiction over the state law claims if the Title VII claims were dismissed.

         Defendants' motion to dismiss argued that the Title VII claims fail as a matter of law because the Complaint never alleges that Defendants are “employers” under Title VII, which is a requirement for liability. Title VII defines an “employer” as an individual or entity with “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). To support their motion, Defendants submitted an affidavit from Hamling, the CEO of Affinity, averring that Defendants have never employed fifteen or more people. (Dkt. 15, at 12-13.) Defendants also submitted a payroll detail register corroborating that averment. (Dkt. 24-1.)

         In her Response to Defendants' motion to dismiss, Plaintiff agreed with Defendants' arguments regarding supplemental jurisdiction and conceded that Defendants must qualify as employers to be held liable under Title VII; however, she argued that she was entitled to discovery on the issue before the Court dismissed her case. (Dkt. 21, at 10-11.) Following a hearing, the Court agreed with Plaintiff and issued an Order Converting Defendants' Motion to Dismiss into a Motion for Summary Judgment and Holding It in Abeyance Pending the Completion of Limited Discovery. (Dkt. 31.) This Order permitted Plaintiff to request documents showing the number of Defendants' employees, and to take a two-hour deposition of an officer with knowledge of how many people Defendants employed. Plaintiff has since deposed Hamling and received documents in response to discovery requests, and Defendants filed supplemental briefing incorporating the limited discovery. (Dkt. 36) The Court ordered Plaintiff to respond to Defendants' supplemental brief by a certain date, but she did not do so. Defendants' converted motion is now ripe for disposition.

         B. The Parties' Evidentiary Submissions

         As discussed above, Defendants submitted the following evidence with their motion to dismiss: (1) an affidavit from Hamling averring that Defendants have never employed fifteen or more people; and (2) a payroll detail register that corroborates that averment. With their supplemental brief, Defendants have also submitted a transcript from Hamling's deposition, which corroborates his affidavit. (See Dkt. 36-1.) Plaintiff has not submitted any evidence aside from images of Affinity's website, which do not say anything about Defendants' number of employees.

         II. Applicable Standard

         Summary judgment is proper when "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). When reviewing the record, “the court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor.” U.S. SEC v. Sierra Brokerage Servs., Inc., 712 F.3d 321, 327 (6th Cir. 2013) (citation omitted). “[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine, ' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

         III. Analysis

         A. Title VII

         As stated above, the parties agree that Title VII imposes potential liability for unlawful employment practices on “employers.” 42 U.S.C. § 2000e-2(a). Title VII defines an “employer” as an individual or entity with “fifteen or more employees for each working day in each of twenty or ...


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