In Vitti v. Macy’s Incorporated, 17‐3493‐cv, 2018 WL 6721091 (2d Cir. Dec. 21, 2018) (Summary Order), the 2nd Circuit affirmed the dismissal of plaintiff’s employment discrimination claims against Macy’s Inc. and Clinique.
In this case, plaintiff – who worked in the Clinique department of Macy’s Herald Square store in New York City – asserts claims of wrongful termination, failure to accommodate, retaliation, and hostile work environment.
Noting that “[b]ecause only employers can be liable under Vitti’s causes of action,” the court turned to the “predicate question [of] whether Clinique employed Vitti.”
In addressing this issue, the court summarized the law of joint employment:
In a joint employer relationship, “an employee, formally employed by one entity, who has been assigned to work in circumstances that justify the conclusion that the employee is at the same time constructively employed by another entity, may impose liability for violations of employment law on the constructive employer, on the theory that this other entity is the employee’s joint employer.” Arculeo v. On-Site Sales & Marketing, LLC, 425 F.3d 193, 198 (2d Cir. 2005). “A joint employer relationship may be found to exist [if] there is sufficient evidence that the respondent had immediate control over the other company’s employees.” NLRB v. Solid Waste Servs., Inc., 38 F.3d 93, 94 (2d Cir. 1994) (per curiam). “Relevant factors include commonality of hiring, firing, discipline, pay, insurance, records, and supervision.”
Applying the law to the facts, the court explained:
Macy’s was Vitti’s sole employer. Macy’s paid Vitti’s salary, provided her with a wage statement and insurance, approved her medical leave, and required her to sign its code of conduct. Macy’s also assigned Vitti to the Clinique counter, set her work schedule, supervised her, disciplined her, and ultimately fired her.
In contrast, there is no evidence that Clinique had close managerial control of Vitti. While Vitti worked the Clinique counter, received product training from Clinique, and received Clinique’s Professional Image Standards manual, the record lends no support to her conclusion that Clinique exerted personnel control. Clinique never paid or insured Vitti, never disciplined her, and has no records associated with her employment.
Therefore, it concluded, “Clinique did not employ Vitti and is entitled to summary judgment on all Vitti’s claims.”