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Payroll Count May Show Title VII ‘Employer’

A daycare teacher who alleges she was demoted then terminated in violation of Title VII and the Americans with Disabilities Act has raised a genuine issue of material fact that defendant daycare center is a covered employer, says a magistrate judge for the Norfolk U.S. District Court.

Plaintiff alleges she was demoted in 2009 and terminated in 2010 for engaging in protected activity in 2009. The question here is whether there is a genuine issue of material fact over whether defendant daycare met the numerosity requirement in 2008 (the year preceding plaintiff’s reassignment), 2009 (the year of her reassignment), or 2010 (the year of her termination).
Defendant met its initial burden on summary judgment with evidence of printouts of its purported weekly payroll transactions from January 2008 through December 2009. In 2008, the total number of employees paid in any given week never exceeded 14. In 2009, the totals indicate four weeks in which the center paid 15 or more employees. There is no ledger data for the week of April 19, 2009. Defendant also has submitted an affidavit from the former director of the center, who states the center never employed more than 14 individuals on a weekly basis for a period of time greater than 19 weeks.

Plaintiff, however, attacks the veracity of the ledger and questions its use as a means of determining the number of individuals employed in a given week. She has attached numerous exhibits in support of her position, including a State Tax Summary, records of time cards of an employee not listed in defendant’s records and an affidavit from another alleged employee not listed in defendant’s records.

Although a cursory review of the ledger suggests the center failed to meet the numerosity requirement in 2008 or 2009, whether an employee worked or was compensated during a given week is not dispositive of whether the defendant maintained an employment relationship with that individual. Viewing the evidence in the light most favorable to plaintiff, it seems apparent the ledger does not accurately depict the number of individuals with whom the center had an employment relationship during any given week in 2008 and 2009. There is also the issue of competing affidavits.

Based on the record before it, the court is unable to conclude, as a matter of law, that defendant was not an employer within the meaning of the ADA and Title VII during the years relevant to this suit.

Employer’s motion for summary judgment denied.

Evans v. Larchmont Baptist Church Infant Care Center Inc. (Stillman) No. 2:11cv306, Sept. 11, 2012; USDC at Norfolk, Va. VLW 012-3-453, 15 pp.

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