Title VII Sexual Harassment Claim Dismissed Against Entity Held Not to be “Joint Employer”

In Toledo v. Brend Restoration, LLC et al, No. 21 Civ. 882 (GBD) (SN), 2023 WL 3381249 (S.D.N.Y. May 11, 2023), the court granted defendant’s motion for summary judgment on plaintiff’s sexual harassment claim asserted under Title VII of the Civil Rights Act of 1964.

This result turns on the application of the “joint employer” doctrine. From the decision:

The existence of an employer-employee relationship is a primary element of Title VII claims.” Gulino v. N.Y.S. Educ. Dep’t, 460 F.3d 361, 370 (2d Cir. 2006); Felder v. United States Tennis Ass’n, 27 F.4th 834, 838 (2d Cir. 2022). Here, Plaintiff attempts to establish an employment relationship between two subcontractors through the joint employer doctrine. “Pursuant to the ‘joint employer doctrine,’ an employee may assert Title VII liability against a ‘constructive employer’—an entity that shares in controlling the terms and conditions of a plaintiff’s employment.” Felder, 27 F.4th at 838 (citing Arculeo v. On-Site Sales & Mktg., LLC, 425 F.3d 193, 198 (2d Cir. 2005)). The joint employer doctrine requires a showing that Brend exercised “significant control” over Plaintiff. Felder, 27 F.4th at 843; Chavannes v. Bronx Parent Hous. Network, Inc., No. 21 Civ. 5060 (JGK), 2022 WL 4124762, at *4 (S.D.N.Y. Sept. 9, 2022); Pappas v. XP Controle Participacoes S.A., No. 19 Civ. 11137 (GHW), 2023 WL 317353, at *4 (S.D.N.Y. Jan. 18, 2023). “This means that an entity other than the employee’s formal employer” is that employee’s joint employer when it “has power to pay an employee’s salary, hire, fire, or otherwise control the employee’s daily employment activities, such that we may properly conclude that a constructive employer-employee relationship exists.” Felder, 27 F.4th at 843. “[T]he exercise of control is the guiding indicator,” id., and relevant factors include whether the purported joint employer had “control over an employee’s hiring, firing, training, promotion, discipline, supervision, and handling of records, insurance, and payroll[.]” Id. at 838.

To support her theory that Brend was her joint employer, Plaintiff alleges that before working at the 100 Vandam site, Brend required Plaintiff to fill out paperwork and attend a safety training, provided safety gear, work vests, hard hats, and identification cards bearing its logo. (Pl.’s. Mem. at 1, 10.) Plaintiff further alleges that she “worked side-by-side with Brend employees” and worked on the same tasks interchangeably. (Pl.’s Mem. at 10; Decl. Genesis Torres (“Torres Decl.”), Ex. C, ECF No. 107-3, at 4.) Plaintiff also alleges in a conclusory manner that Brend “conducted supervision, inspection, oversight and control” of Plaintiff’s work activities “from [Brend’s] administrative offices at 100 Vandam.” (Am. Compl. ¶ 42.)

Plaintiff has not alleged facts sufficient to show a joint employer relationship between subcontractor Unibud and subcontractor Brend. Plaintiff does not provide any evidence indicating that any Brend employees exercised control over hiring, disciplining, firing, or handling disputes between Unibud workers and Brend supervisors.2 “Indeed, [Plaintiff] does not even allege facts showing that [Brend was] involved in the decision of whether to hire or fire her.” Byron v. Bronx Parent Hous. Network, No. 21 Civ. 2568 (MKV), 2023 WL 2585824, at *3 (S.D.N.Y. Mar. 20, 2023) (quotation and brackets omitted); McHenry v. Fox News Network, LLC, 510 F. Supp. 3d 51, 82 (S.D.N.Y. 2020) (no joint employment relationship where plaintiff alleged in a conclusory manner that Fox Corp. made hiring and firing decisions for Fox News, controlled discipline, pay, insurance, records, supervised Fox News, and retained ultimate control over their employment).

Plaintiff’s most relevant—but nevertheless conclusory—allegation is that Brend “retained significant power to control the manner in which Plaintiff’s work was conducted, and what specific tasks she did at work.” (Pl.’s Mem. at 2.) However, Plaintiff never provides detail or evidence regarding how the Brend Defendants had power to exercise those methods of control over Plaintiff—she only alleges in a conclusory fashion that “Brend and only Brend was in complete control of Plaintiff’s work activities[.]” (Id. at 9.) Plaintiff’s supporting affidavits and her operative complaint similarly lack details or “hard evidence” outlining such control by Brend. Construing the evidence in the light most favorable to Plaintiff, Plaintiff has only provided evidence that Unibud hired her, that Unibud’s co-owner paid her in cash each day, and that Defendant Uribe, a Unibud foreman, controlled her daily activities at 100 Vandam. (Am. Compl. ¶¶ 13, 43, 44; Decl. Krzystof Zagroba (“Zagroba Decl.”), Ex. D, ECF No. 107-4, at 1-2; Torres Decl. at 3.) Because “Plaintiff’s allegations regarding [Brend’s] joint employment are entirely conclusory and consist only of a recitation of the legal standard,” she has not provided any factual evidence showing a joint employer relationship. Gonzalez v. City of New York, No. 15 Civ. 3158 (WFK)(CLP), 2015 WL 9450599, at *3 (E.D.N.Y. Dec. 22, 2015); Pappas, 2023 WL 317353, at *5. Thus, because an employer-employee relationship is a primary element of Title VII claims, Plaintiff’s Title VII claims against Brend are dismissed.

[Cleaned up.]

The court continued by noting that even if defendant Brend could be considered plaintiff’s joint employer, it was entitled to judgment in its favor because, inter alia, “there is no evidence that [Brend] either knew or should have known about any of the alleged discrimination.” Specifically, plaintiff did not complain of harassment to any of Brend’s employees, and “[t]he alleged sexual harassment Plaintiff suffered occurred via text and phone messages sent outside of work hours and off [site].”

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