United States District Court, E.D. Pennsylvania
HOWARD M. GOLDSTEIN, Plaintiff,
CARLINO DEVELOPMENT GROUP, INC., Defendant.
MITCHELL S. GOLDBERG, District Judge.
Plaintiff, Howard M. Goldstein, brought this action against his former employer, Carlino Development Group, Inc. ("CDG"), alleging discrimination and retaliation in violation of the Americans with Disabilities Act ("ADA"). Before me is CDG's motion for summary judgment, wherein CDG argues that it is not an "employer" subject to the requirements of the ADA because it employed fewer than fifteen people during the relevant time period. Because there are material factual disputes regarding the number of persons employed by CDG, summary judgment will be denied.
I. FACTUAL AND PROCEDURAL BACKGROUND
Unless otherwise indicated, the following facts are undisputed.
Plaintiff began his employment as the Chief Financial Officer ("CFO") of CDG, a real estate development and management company, on July 24, 2006. (Am. Compl. ¶ 9; Def.'s Mot. Summ. J., Appx. 3.) In April of 2009, Plaintiff began suffering from advanced degenerative disc disease that required surgery. (Am. Compl. ¶ 39.) The surgery was unsuccessful and Plaintiff continued to suffer from the disc disease that eventually caused him to walk with a pronounced limp. (Id. at ¶ 40.) Plaintiff was terminated by CDG President Peter W. Carlino and Vice President David A. Binder on June 16, 2009. (Id. at ¶ 47.) Plaintiff claims he was fired because of his disability and sued CDG under the ADA.
CDG's motion asserts that it is not an employer subject to liability under the ADA because it did not employ fifteen or more employees during the relevant time period, as required by the ADA. Plaintiff responds that CDG did employ more than fifteen employees because CDG and a separate entity, Carlino Development Group New Morgan Management, Inc. ("CDG-NMM") were sufficiently connected to combine their employees for counting purposes under the ADA's "covered entity" provision.
II. STANDARD OF REVIEW
A. Summary Judgment
A party moving for summary judgment bears the initial burden of demonstrating that there are no genuine issues of material fact and that judgment is appropriate as a matter of law. FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once a properly supported motion for summary judgment has been made, the burden shifts to the non-moving party, who must set forth specific facts showing that there is a genuine issue of material fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). An issue is "genuine" if a reasonable jury could rule in favor of the non-moving party based on the evidence presented. Kaucher v. Cnty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006). The non-moving party cannot avert summary judgment with speculation or conclusory allegations, but rather must cite to the record. Ridgewood Bd. of Educ. v. N.E. for M.E., 172 F.3d 238, 252 (3d Cir. 1999); FED. R. CIV. P. 56(c). On a motion for summary judgment, the court considers the evidence in the light most favorable to the non-moving party. Anderson, 477 U.S. at 256.
B. "Employer" under the ADA
The ADA's prohibitions of discrimination and retaliation apply only to "covered entities." 42 U.S.C. § 12112(a). The ADA defines a "covered entity" to include an "employer." 42 U.S.C. § 12111(2). An "employer" is defined as "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, and any agents of such person[.]" Id. at § 12111(5). The relevant contested portion of the ADA requirement here is whether CDG maintained "15 or more employees."
The United States Court of Appeals for the Third Circuit has determined that the fifteen-employee requirement of Title VII is a threshold substantive element of a plaintiff's claim. Nesbit v. Gears Unlimited, Inc., 347 F.3d 72, 83 (3d Cir. 2003); see also Arbaugh v. Y&H Corp., 546 U.S. 500, 516 (2006) (clarifying that the numerosity requirement is a substantive element of a Title VII claim). In Nesbit, the Third Circuit also held that "the ADA's fifteen-employee requirement is in all relevant respects indistinguishable from Title VII's." Id. at 77. Thus, CDG must demonstrate that, even accepting all evidence in the light most favorable to Plaintiff, as a matter of law CDG had fewer than fifteen employees during the relevant time period.
Plaintiff's employment with CDG ended in June 2009, and as such the relevant years to assess CDG's employee population are 2009 (the current calendar year) and 2008 (the preceding calendar year). See Walters v. Metro. Educ. Enters. Inc., 519 U.S. 202, 205 (1997) (focusing on the year in which ...