United States District Court, D. Maryland, Southern Division
Charles B. Day United States Magistrate Judge
this Court is the Motion for Summary Judgment brought by
Defendants Robert F. Abner and A&A Gaming, LLC (ECF No.
28) ("Defendants' Motion"), the opposition and
reply thereto. The Court has reviewed Defendants' Motion,
related memoranda, and applicable law. No hearing is deemed
necessary. See Local Rule 105.6 (D. Md.). For the
reasons presented below, the Court GRANTS Defendants'
Haug ("Plaintiff) began working for A&A Gaming, LLC
("A&A Gaming"), an establishment located in
Chesapeake Beach, Maryland, as a
"cashier/bartender" on or about February 8, 2013.
Compl. 3. A&A Gaming is located in the same building as
the restaurant Bay Abner, Inc., also known as Abner's
Crab House. Abner Dep. 5:21-7:3; O'Donnell Dep. 7:8-10.
A&A Gaming employs about ten people and Bay Abner, Inc.
employs about twenty five. Abner Dep. 7:15-8:5. While working
at A&A Gaming, Plaintiffs supervisors were Bonnie
O'Donnell and Shawn Abner ("Shawn"). Def.'s
about March 28, 2013, while at work, Plaintiff was approached
by Robert Abner, owner of both A&A Gaming and Bay Abner,
Inc., and the two engaged in conversation. Compl. 3.
According to Plaintiff, Mr. Abner commented on Plaintiffs
body, stating that "she was slim" and asked whether
"she had a drug problem like his wife because she was so
slim." Id. at 3-4. Plaintiff alleges that Mr.
Abner then whispered in Plaintiffs ear "if she would
'fill in' for his wife" while his wife was out
of town. Id. at 4. Plaintiff then allegedly
indicated to Mr. Abner that his conduct was inappropriate and
unsettling, to which Mr. Abner laughed and walked away.
days later, on or about March 31, 2013, while Plaintiff was
outside the establishment on a smoke break, she again
conversed with Mr. Abner. Id. at 5. According to
Plaintiff, Mr. Abner stated that '"she was a smart
girl, and that she would be wise to take him up on his offer
to "fill in" for his wife, ' and that he would
'give her whatever she wanted' and 'he would keep
her happy.'" Id. at 6. Plaintiff alleges
that Mr. Abner then grabbed the back of her head and pulled
it towards him and said "that if she wanted her job, she
better think about his offer 'to fill in for his
wife.'" Id. After Plaintiff pushed Mr.
Abner's arm away and walked back inside, Plaintiff claims
that he followed her in and asked her how many kids she had.
Id. at 7. Plaintiff claims that she told him that
she had two children, to which Mr. Abner responded that
Plaintiff "knows how to make children and that is what
he wants." Id. Plaintiff then became
next day, Plaintiff told Shawn and Ms. O'Donnell about
the incident with Mr. Abner. Id. at 7-8. Plaintiff
asked that Mr. Abner not be anywhere in the building while
she was working, to which Ms. O'Donnell replied that that
would not happen because Mr. Abner owned the building
"but he said he is willing to apologize."
Id. at 9. Ms. O'Donnell also expressed,
according to Plaintiff, that Plaintiff should keep her mouth
shut because if Mr. Abner's wife found out, "she
will kick [Plaintiffs] ass." Id. Ms.
O'Donnell then instructed Plaintiff to take a couple of
days off. Id. Ms. O'Donnell testified that while
Plaintiff was out, she kept Plaintiffs shifts open and that
she "definitely wanted [Plaintiff] to come back" to
work. Defs.' Mot. 6-7. Plaintiff did not return to work.
Id. at 8.
filed a Complaint alleging three counts: (1) Defendants
violated 42 U.S.C. § 2000e-l-17 ("Title VII")
based on a "Hostile Work Environment"; (2)
Defendants violated Title VII based on "QuidPro
Quo Sexual Harassment"; and (3) intentional
infliction of emotional distress. Compl. 10-14. This Court
dismissed Plaintiffs cause of action for intentional
infliction of emotional distress.
filed this Motion for Summary Judgment, alleging that there
is no genuine dispute of material facts and Defendants are
entitled to judgment as a matter of law. Specifically,
Defendants argue: (1) Plaintiffs allegations do not satisfy
the requirements to establish a "hostile work
environment"; (2) Plaintiffs allegation do not satisfy
the requirements to establish "quidpro quo
sexual harassment"; (3) neither named Defendant, Mr.
Abner nor A& A Gaming, constitutes an
"employer" for purposes of Title VII.
Standard of Review
Court must grant summary judgment if "there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." Fed.R.Civ.P.
56 (a). A genuine dispute exists where "there is
sufficient evidence on which a reasonable jury could return a
verdict in favor of the non-moving party." Cox v.
Cnty. of Prince William, 249 F.3d 295, 299 (4th Cir.
2001) (citation omitted). When deciding summary judgment, the
Court "must draw all justifiable inferences in favor of
the nonmoving party, including questions of credibility and
of the weight to be accorded particular evidence."
Masson v. New Yorker Magazine, Inc., 501 U.S. 496,
520 (1991) (citation omitted). Summary judgment is not a
"disfavored procedural shortcut, but rather [is] an
integral part of the Federal Rules as a whole, which are
designed 'to secure the just, speedy and inexpensive
determination of every action.'" Celotex Corp.
v. Catrett, 477U.S. 317, 327 (1986) (quoting
purposes of Defendants' Motion, Defendants rely on
Plaintiffs version of events regarding the interactions
between Plaintiff and Mr. Abner, explaining that "these
disputes do not constitute disputes of material facts for
purposes of a summary judgment motion[.]" Defs.'
A&A Gaming constitutes an "employer" for
purposes of Title VII.
argue that neither Mr. Abner nor A&A Gaming constitute an
"employer" under Title VII. Plaintiff
"concedes that Title VII does not apply to individuals
and concedes that the action should be dismissed against
Robert Abner in his individual capacity." PL's
Opp'n 16; see Papanicolas v. Project Execution &
Control Consulting, LLC, 151 F.Supp.3d 628, 630 (D. Md.
2015) ("Title VII expressly does not apply to
individuals, nor to entities that do not meet the applicable
threshold number of employees."). Plaintiff maintains
that A&A Gaming is an employer for purposes of Title VII.
VII requires that an "employer" be defined as one
who is "engaged in an industry affecting commerce who
has fifteen or more employees for each working day in each of
twenty or more calendar weeks in the current or preceding
calendar year . . . ." 42 U.S.C.A. § 2000e(b). An
employer with fewer than fifteen employees "does not
satisfy Title VIFs statutory definition of employer and,
therefore, is not subject to discrimination actions founded
on Title VII." Tasciyan v. Med. Numerics, 820
F.Supp.2d 664, 671 (D. Md. 2011) (citation omitted).
"[T]he threshold number of employees for application of
Title VII is an element of a plaintiff s claim for relief,
not a jurisdictional issue." Arbaugh v. Y&H
Corp., 546 U.S. 500, 516 (2006).
argue that because A&A Gaming employs less than fifteen
people, it does not meet the definition of
"employer" under Title VII. Plaintiff alleges that
A&A Gaming meets the qualifications for
"employer" because A&A Gaming and Bay Abner,
Inc., both owned by Mr. Abner, constitute a single employer
under the "integrated employer test." PL's
Opp'n 14. The "integrated-employer test" seeks
to determine whether two separate entities can be considered
a "single employer" for Title VII purposes because
they are "so interrelated that they constitute a single
employer." Jarallah v. Thompson, 123 F.Supp.3d
719, 729 (D. Md. 2015), aff'd, 627 F.App'x
185 (4th Cir. 2015) (citations omitted). The
integrated-employer test requires: "(1) common
management; (2) interrelation between operations; (3)
centralized control of labor relations; and (4) degree of
common ownership/financial control." Id.
In deciding the common management element, courts look to
whether the separate corporations share a common manager who
runs day-to-day operations and has the authority to hire and
fire employees. See Hukill [v. Auto
Care, Inc.], 192 F.3d [437, ] 443 [4th Cir. 1999)];
Baker v. Stuart Broad. Co.,560 F.2d 389, 392 (8th
Cir. 1977) (finding common management and ownership where the
same individual was president of both corporations and ran
day-to-day operations). The second element-interrelation
between operations-can also be shown through evidence of a
common manager who runs day-to-day operations and through
employee transfers between locations. See Hukill 192
F.3d at 443. The third factor-control of labor operations-is
shown when a single party controls employment decisions
across multiple corporations. See Id. at 444
(finding no centralized control of labor relations when the
company had "no power to hire, fire, or supervise
employees" at the allegedly related companies).
Employment decisions include the power to hire, ...