Plaintiff does list the last names of twenty-four of the purported “CPC/Comtrust” employees and
seven of the Ministry employees. She also fails to list the dates in which any of the people were
supposedly employed by “CPC/Comtrust” or the Ministry.
2. The Deposition Testimony

To support her claims thal Defendants are “employers” under Title VII, Plaintiff also
relies upon the deposition testimony of three people: (1) John Abdul-Haqq, a personal assistant
of W. Deen Mohammed for the Ministry; (2) Mandy Carter, a secretary for the Ministry; and (3)
Rasheedah McCamury, an administrative assistant for the Ministry. Specifically, Plaintiff cites
to portions of the transcript where the deponents state that certain people were employed by one
or more Defendants. The deponents do not supply the dates that Defendants employed these
people or the duration of their employment.

LEGAL STANDARD

Summary judgment is proper only when the evidence in the record shows that “there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(c). The party moving for summary judgment has the initial burden of
submitting affidavits and other evidentiary material which show the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265
(1986).' Once a movant meets that initial burden, the burden shifts to the non-movant to present
“appropniate evidence demonstrating that there was a pending dispute of material fact.” Adler v.

Glickman, 87 F.3d 956, 959 (7" Cir. 1996). In order to meet this burden, the nonmoving party

' A genuine issue of material fact exists when “there is sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc.,
477 U.S, 242, 249 (1986),



ANSWER: The grcatest number of employees who worked for

Comtrust, LLC, during the time that Plaintiff was employed with

Defendant during calendar years 2000 and 2001 was 10; for

Collective Purchasing Conference, LLC, it was 8; and for the

Ministry of W. Deem Mohammed, it was 8.
(R. 17-1, Pl.’s App. in Op. to Defs.’ Mot. for Summ. J., Ex. 6.) Plaintiff claims that this answer
is inconsistent with W. Deen Mohammed's deposition testimony, where he estimated the number
of employees at six or seven for the Ministry and anywhere from three to five for CPC.

These statements cannot be deemed material. The greatest number of employees is

irrelevant to a Title VI determination of whether a defendant is an “employer” of 15 or more
individuals for at least 20 weeks oul of the year. See 42 U.S.C. §2000e. The statements are not

even inconsistent. It is highly likcly that Defendants’ “greatest number” of employees was more
than the number of employees they maintained for at least twenty weeks out of the year.

Plaintiff points out other instances where Defendants” evidence has been purportedly
inconsistent. Plaintiff submits that these inconsistencies “call[] truthfulness into question,
[which] precludes summary judgment” since “‘a fact-finder may infer intentional discrimination
from an employer's untruthfulness.” (R, 16-1, Pl.’s Resp. to Defs.’ Mot. for Summ. J. at 5.)
Plaintiff misses the point. It is true that evidence might call into question a proffered non-
discriminatory reason for termination. But even if Defendants had admitted to intentional
discrimination, there would be no federal cause of action against them under Title VIL. The issuc
is whether Defendants were “employcrs” as defined by 42 U.S.C. §2000e. It is Plaintiff's burden
to prove that they were. Plaintiff's evidence is simply vague and not compelling. There is no

credibility issue that would preclude the entry of summary judgment because Plaintiff has not

established that there is a question of material fact with respect to the number of Defendants’



on the employer's payroll during the applicable time period. /d. at 211-12; 117 S.Ct. at 666.
Plaintiff bears the burden of proving the number of employees, including the duration of their
employment, “with some element of precision.” Norman v. Levy, 767 F.Supp. 1441, 1449 (N.D.
Ml. 1991).

The Seventh Circuit addressed a similar issue in Ost v. West Suburban Travelers
Limosine, Inc., 88 F.3d 435, 439 (7" Cir. 1996). In Ost, the plaintiff submitted an affidavit that
listed twenty-four employees. Her affidavit, however, failed to address whcther the employees
were “employed within the same time period, how many employees worked on particular days,
or whether there were fifteen or more cmployees on each day of any particular week.” /d. The
Seventh Circuit found the affidavit to be “too vague a submission to carry her burden.” Jd. The
statement that a number of employees worked “throughout [plaintiff's] employment” was at a
“level of generality” that was insufficient to survive summary judgment. Jd. at 440.

As in Ost, Plaintiff's evidence of the number of Defendants’ employees here is lacking.’
Plaintiff's evidence consists of little besidcs a list of people that were purportedly employed by
Defendants sometime during the years of 2000 and 2001. The deposition testimony cited by
Plaintiff lacks the same specificity. Nowhere does Plaintiff inform the Court of when these
supposed employees worked for Defendants or the duration of their employment. Plaintiff has
not produced sufficient evidence to meet her burden of establishing that any Defendant employed

at least fifteen individuals for twenty weeks or more in the current or preceding years.

2 Even though they do not bear the burden of proof, Defendants brought forth evidence
showing that they do not employ more than fifteen individuals through an affidavit and payroll
printouts. The payroll printouts do break the individuals’ employment down by time period.
They clearly show that Defendants did not individually employ more than fifteen employees
during these periods of time.



may not simply rely on “mere allegations” that a genuine issue of fact exists. /d. It must instead
counter the evidence submitted by the movant by providing “materials of evidentiary quality” to
create matcrial factual issues. /d. A non-movant must do more than raise mere “metaphysical
doubt” concerning the cxistence of a genuine issue of fact, Walker v. Shansky, 28 F.3d 666, 671
(7th Cir. 1994), and must present more than a “scintilla of evidence,” Associated Milk Producers,
Inc. v, Meadow Gold Dairies, 27 F.3d 268, 270 (7th Cir. 1994), in order to oppose a motion for
summary judgment,
ANALYSIS

Title VII liability attaches only to an “employer.” Title VIT defines “employer” as
someone who has “fifteen or more employces” for each working day for twenty weeks or more
during the current year or preceding year. 42 U.S.C. §2000e(b). Defendants’ motion for
summary judgment argues that Plaintiff cannot establish that any Defendant is a Title VII
“employer” because she cannot demonstrate that Defendants individually employed more than
fifteen people during this time frame or that there is cause to aggregate their number of
employees, Plaintiff counters that Defendants are ‘Title VII “employers” both independently and
collectively.
L No Defendant Is Individually An “Employer” Under Title VII

Each Defendant is “subject to Title VII... only if, at the time of the alleged [violation], it

met the statutory definition of ‘employer.’” Walters v. Metropolitan Educ. Enters., Inc., 519
US. 202, 205, 117 S.Ct. 660, 663, 136 L.Ed.2d 644 (1997). The Supreme Court has adopted the

“payroll method” to determine the number of employees that a defendant has under Title VIL

See id, at 207, 117 S.Ct. at 664. Simply put, this test looks at the number of employces that were



of an integration analysis. Jd. at 942.

Even if Papa were factually distinguishable, the Court is still bound by the law that the
Seventh Circuit articulated. To that end, Plaintiff does not argue that any of the Papa exceptions
apply. Indeed, there is no evidence to suggest that Defendants organized separately in order to
escape Title VII's provisions or that some parent company directed the discriminatory act. That
leaves the traditional exception of picrcing the corporate veil.

The only evidence that even slightly suggests that the Court should pierce the corporate
veil is that Comtrust and CPC share the same letterhead and office space. Even if this were
enough, the aggregate number of cmployces for the two companies is still less than the requisite
fifteen under 42 U.S.C. §2000e. Plaintiff would need to combine the Ministry’s employecs with
those of Comtrust and CPC to meet the “employer” definition under Title VIL Plaintiff has come
forth with no evidence, however, that supports her position that the Ministry’s corporate veil
should be pierced. Accordingly, Plaintiff has not shown that Defendants’ employees should be
aggregated. Defendants are therefore not a collective “employer” under Title VIL.

Ill. Credibility

Plaintiff argues that the Court should discount Defendants’ evidence of their number of
employees because, she claims, the credibility of this evidence is in question. Plaintiff contends
that there are “enormous” contradictions between the affidavit submitted by Defendants, the
depositions, and the other discovery. (R. 16-1, Pl.’s Resp. to Defs.’ Mot. for Summ. J. at 5.)
Plaintiff points to one response by Defendants in particular:

INTERROGATORY #3: State the greatest number of employees
who worked for defendants in the calendar years of 2000 and 2001.



1 i
‘Minute Order Porm (08/97)

United States District Court, Northern District of Illinois

KZ
Name of Assigned Judge

, Sitting Judge if Other
or Magistrate Judge Amy J. St. Eve than Assigned Judge
CASE NUMBER 02 C 3599 DATE 2/6/2003

CASE Wilson vs. Comtrust
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) stale briefly the nature
MOTION: of the motion being presented.)
DOCKET ENTRY;
(1) Oo Filed motion of [ use listing in “Motion” box above,]
(2) oO Brief in support of motion due
(3) go Answer brief to motion due. . Reply to answer briefdue
4 oO Ruling/Hearing on setfor at
(5) oO Status hearing[held/continued to) [set for/re-set for] on set for at
(6) QO Pretrial conference{held/continued to] [set for/re-set for] on set for at
(7) 6 Trial{set for/re-set for] on at.
(8) oO (Bench/Jury tial] [Hearing] held/continucd to at
(9) oO This case is dismissed | with/without] prejudice and without costs[by/agreement/pursuant to]
OERCP4(m) OO Local Rule 41.1 OO FRCP41(a)(1) CO FRCP41(a)(2).
qo [Other docket entry] Enter Memorandum Opinion and Order. Defendants’ motion for summary judgment
is granted. Plaintiff's breach of contract claim is dismissed for lack of subject matter jurisdiction.
(ung) We?

(11) ff (For further detail see order attached to the original minute order.]

No notices required, advised in open court

No notices required,

umber of ntices
Notices muiled by judge’s staff, 07 2003
Natitied counsel by telephone FEB O ‘iene

wo | Dockcting to mail notices. " \ ms
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Copy to judge/magistrate judge.

‘date mailed notice
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employees. Because they are not “employers” under 42 U.S.C. §2000e, Defendants are entitled
to judgment as a matter of law. Papa, 166 F.3d at 943 (whether defendant is employer is not a
jurisdictional question, but is instead properly addressed in deciding a motion for summary
judgment).
CONCLUSION

This Court finds that there is no dispute of material fact and that Defendants are entitled
to judgment as a matter of law. Plaintiff has not met her burden of producing evidence of a
critical element of her Title VII claims: that each Defendant, either individually or collectively, is
an “employer” under 42 U.S.C. §2000e. Accordingly, judgment is entered in favor of
Defendants on the religious discrimination and retaliation counts. The Court also dismisses

Plaintiff's state common law breach of contract action for lack of subject matter jurisdiction.”

DATED: February 6, 2003 ENTERED

(}, | hb.

AMY J. STS
United States District Judge

3 “(T]he general rule is that, when all federal claims are dismissed before trial, the district
court should relinquish jurisdiction over pendent state-law claims rather than resolving them on
the merits.” Wright v. Associated Ins. Cos., Inc., 29 F.3d 1244, 1251 (7" Cir.1994), Plaintiff has
not argued that any exception to this rule applies or that judicial economy, convenience, faimess
or comity should compel this Court to maintain federal jurisdiction of this state law claim.
Accordingly, the Court dismisses the state common law breach of contract claim.

10



Accordingly, Defendants individually are not “employers” under Title VIL.
IL. There Is No Reason To Aggregate Defendants’ Employees

Plaintiff next argues that the facts of the case warrant aggregating the employees of the
three companies in order to find that they are subject to Title VIT. Defendants counter that there
is no cause to aggregate Defendants’ employees under Papa v. Katy Indus., Inc., 166 F.3d 937
(7" Cir. 1999). This Court agrees that Papa is controlling and that an aggregation of Defendants’
employees is not warranted.

In Papa, Judge Posner found that there were only three scenarios where a court should
aggregate the employecs of separate companies for the purposes of defining “employer” under
Title VII: (1) where the traditional conditions exist to “pierce the corporate veil;” (2) where the
enterprise has split itself into separate companies with the express purpose of avoiding liability
under Title VI; and (3) where the parent corporation may have directed the discriminatory act.
Id. at 940-41.

Instead of arguing that one of these exceptions apply, Plaintiff attempts to distinguish
Papa on the grounds that she worked for all three affiliates, rather than just one. Plaintiff further
points to evidence of the overlap of the companies: some employees, including her, worked for
more than one of the entities; one employee acied as a supervisor at both CPC and Comtrust;
CPC and Comtrust shared the same office building; CPC and Comtrust sometimes referred to
thomselves, including on Ictterhead, as “CPC/Comtrust;” all three companies were created by the
same person; and all three companics used the same accounting firm. (R. 18-1, Pl.’s Statement

of Add'] Material Facts 3.) None of this evidence helps Plaintif(’s position, however, because

the Seventh Circuit explicitly condoned much of this type of overlap in rejecting the application



secretary for Comtrust, (/d. 18.) Plaintiff then worked at the Ministry from May 18 until
September 14, 2001. (/d. 19.) Plaintiff was issued separate W-2 Statements that reflected the
wages she earned with CPC and the Ministry. (/d. 28.)
Tl. Number of Defendants’ Employees

A. Evidence Submitted by Defendants

Defendants submitted various pieces of evidence that show that none of the Defendants
employed more than fifteen people at a time during the years at issue. W. Deen Mohammed
states in an affidavit that Comtrust had six to seven employees, CPC had three to five employees,
and the Ministry had five employees. (R. 11-1, Defs.’ Statement of Uncontested Facts, Ex. D
411.) Defendants also submit computer printouts of the Ministry’s payroll from January 24 to
October 18, 2001, CPC’s payroll from March 8 to October 18, 2001, and Comtrust’s payroll
from March 8 to October 18, 2001. (R. 20-1, Defs.’ Resp. to Pl.’s Statement of Add’l Material
Facts, Ex. J.) These payroll submissions also show that no Defendant employed more than
fifteen people at any given time.

B. Evidence Submitted by Plaintiff

Plaintiff relies upon two pieces of evidence in attempting to establish that Defendants did
employ more than fifteen people during the relevant times: (1) her affidavit and (2) deposition
testimony of Defendants’ employees.

1, Plaintiffs Affidavit
Plaintiff's affidavit lists thirty-one people that she recalls working at “CPC/Comtrust”

during 2000 and 2001, (R. 18-1, Pl.’s Resp. to Defs.’ Statement of Uncontested Facts, Ex. 5, 7.)

Her affidavit also names twelve people that she remembers working for the Ministry. (/d. 8.)



BACKGROUND
L Parties

Defendant Collective Purchasing Conference (“CPC”) is an Illinois limited liability
corporation thal was organized in 1997. It collects money from investors to purchase Shea
butter, which it distributes to other organizations. (R. 18-1, Pl.’s Resp. to Defs.’ Statement of
Uncontested Facts 49.) CPC owns a building at 2979 W. 167TM Street in Hazel Crest, Illinois,
which it uses for its offices, (R. 11-1, Def.’ Statement of Uncontested Facts 9/7, 10.)

Defendant Comtrust, LLC (“‘Comtrust”) is a meat market store that sells both retail and
wholesale. (R. 18-1, Pl.’s Resp. to Defs.’ Statement of Uncontested Facts 6.) Tt was organized
in 2000 as an Illinois limited liability corporation. (R. 11-1, Defs.’ Statement of Uncontested
Facts 5.) Comtrust is located in the building owned by CPC at 2979 W. 167" Street in Hazel
Crest, Illinois. (/d. 7.)

Defendant The Ministry of W. Deen Mohammed (the “Ministry”) is a not-for-profit
association that was organized in 1988. (R. 11-1, Defs.’ Statement of Uncontested Facts [1 1.)
The Ministry primarily solicits funds for charitable purposes and finances and supports W. Decn
Mohammed’s ministry. (/d. 912.) The Ministry is located at 929 W. 171% Street in Hazel Crest,
Minois. (/d. 13.) W. Deen Mohammed is the President and CEO of all three Defendants. (R.
11-1, Defs.’ Statement of Uncontested Facts 4.)

At various times, Plaintiff Renee Wilson was employed by each of the Defendants.
Plaintiff worked as a secretary for CPC from November 16, 2000 until May 18, 2001, and again

from September 14, 2001 until October 18, 2001. (R, 11-1, Defs.’ Statement of Uncontested

Facts 417, 20.) From March 8 until May 18, 2001, Plaintiff spent one day a week working as a



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

RENEE WILSON,

Plaintiff,
No. 02 C 3599

COMTRUST LLC, COLLECTIVE
PURCHASING CONFERENCE, LLC,
and MINISTRY OF W. DEEN
MOHAMMED,

Defendants.

MEMORANDUM OPINI' DER
AMY J. ST. EVE, Judge:

Plaintiff Renee Wilson filed a three count complaint against Defendants Comtrust LLC,
Collective Purchasing Conference, LLC, and The Ministry of W. Deen Mohammed for religious
discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e
et seq., and state common law breach of contract after she was terminated from her employment.
Defendants filed a motion to dismiss on the basis that they are not “employers” as defined by 42
U.S.C. §2000e(b). The Court converted Defendants’ motion into one for summary judgment and
allowed a limited discovery period. That discovery period has now concluded and the parties
have completed their briefing. It is now clear that there is no genuine issue of material fact as to
Defendants’ status as Title VII “employers” and that Plaintiff cannot meet her burden of
establishing this critical element. Accordingly, the Court enters judgment in favor of Defendants
on the discrimination and retaliation counts. The Court also dismisses Plaintiff's pendent breach

of contract claim for lack of subject matter jurisdiction.

DOCKETED

FER 07 2002

A