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Prince v. Appleton Auto, LLC

United States District Court, E.D. Wisconsin

December 19, 2019

SHANNON C. PRINCE, Plaintiff,
v.
APPLETON AUTO, LLC, et al., Defendants.

          DECISION AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          Nancy Joseph United States Magistrate Judge.

         Shannon C. Prince files this lawsuit against his former employer, Applecars, LLC, Appleton Auto, LLC, and Scott McCormick. (Docket # 17.) Prince alleges that he was discriminated against based on his race. The defendants have moved for summary judgment on Prince's claims against Appleton Auto because Prince was not employed by the company and against McCormick because Prince has not shown that McCormick violated Title VII. As to Prince's former employer-Applecars-the defendants move for summary judgment on the ground that Applecars is not an “employer” under Title VII of the Civil Rights Act of 1694 because it had less than fifteen employees in twenty or more calendar weeks during the relevant time period. (Docket # 24.) For the reasons below, the defendants' motion for summary judgment is granted and the case is dismissed.

         BACKGROUND FACTS

         Prince was employed as a sales associate from February 2017 through July 25, 2017 with Applecars, LLC. (Am. Compl. ¶ 7, Docket # 17.) Applecars was formed for the purpose of operating a newly-created used car dealership in Appleton, Wisconsin. (Declaration of Robert Scott McCormick (“McCormick Decl.”) ¶ 2, Docket # 28.) Appleton Auto, LLC, is a limited liability company formed for the sole purpose of registering the tradename “Appleton Auto.” (Defs.' Proposed Findings of Fact (“DPFOF”) ¶ 6, Docket # 27 and Pl.'s Resp. to DPFOF (“Pl.'s Resp.”) ¶ 6, Docket # 33; McCormick Decl. ¶ 5.) Appleton Auto has never had any employees or operations and permits Applecars to use its tradename. (Pl.'s Resp. ¶ 6 and Defs.' Reply to Pl.'s Resp. ¶ 6, Docket # 40.) Thus, Applecars does business as Appleton Auto. (McCormick Decl. ¶ 2.)

         Applecars is affiliated with four other Wisconsin used car dealerships in four different cities: Wausau Auto, Antigo Auto, Green Bay Auto, and La Crosse Auto. (DPFOF ¶¶ 13-17.) The defendants assert that each dealership is independently and exclusively owned and operated by its own duly-formed Wisconsin limited liability company created to operate a used car dealership in a particular city. (Id.) Wausaup LLC does business as Wausau Auto. (McCormick Decl. ¶ 6; DPFOF ¶ 14 and Pl.'s Resp. ¶ 14.) Stewart 64 LLC does business as Antigo Auto. (McCormick Decl. ¶ 7; DPFOF ¶ 15 and Pl.'s Resp. ¶ 15.) Green Bay Auto, LLC does business as Green Bay Auto. (McCormick Decl. ¶ 8; DPFOF ¶ 16 and Pl.'s Resp. ¶ 16.) La Crosse Auto, LLC did business as La Crosse Auto. (McCormick Decl. ¶ 9; DPFOF ¶ 17 and Pl.'s Resp. ¶ 17.) La Crosse Auto ceased operation in 2019. (Id.) Capital M, Inc. is a Wisconsin corporation that provides management services to all the dealerships. (DPFOF ¶ 18 and Pl.'s Resp. ¶ 18; Pl.'s Proposed Findings of Fact (“PPFOF”), ¶¶ 2, 4-14, Docket # 33.)

         McCormick owns 100% of Capital M, La Crosse Auto, and Green Bay Auto. (PPFOF ¶ 36 and Defs.' Resp. to PPFOF (“Defs.' Resp.”) ¶ 36, Docket # 40.) McCormick effectively owns 80% of Wausaup; he individually owns 9.0688% of the company and Capital M, which McCormick owns entirely, owns 70.9312%. (Id. ¶ 37.) McCormick owns 80% of Applecars and 56.4706% of Stewart 64. (Id. ¶ 38.) McCormick is the only officer of Applecars, Appleton Auto, Green Bay Auto, La Crosse Auto, Wausaup, Stewart 64, and Capital M. (Id. ¶ 39.)

         The parties do not dispute that Applecars had only fifteen or more employees for eight full weeks in 2016 and for fifteen full weeks in 2017. (DPFOF ¶¶ 11-12 and Pl.'s Resp. ¶¶ 11-12.) Additionally, the parties do not dispute that if Green Bay Auto, Wausaup, or Stewart 64 were aggregated with Applecars in 2016 and 2017, Applecars would have fifteen or more employees for twenty or more weeks in each year. (PPFOF ¶ 43 and Defs.' Resp. ¶ 43.) Similarly, the parties agree that if La Crosse Auto were aggregated with Applecars in 2017, then Applecars would have fifteen or more employees for twenty or more weeks. (Id.)

         SUMMARY JUDGMENT STANDARD

         The court shall grant summary judgment if the movant shows that 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). “Material facts” are those under the applicable substantive law that “might affect the outcome of the suit.” See Anderson, 477 U.S. at 248. The mere existence of some factual dispute does not defeat a summary judgment motion. A dispute over a “material fact” is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

         In evaluating a motion for summary judgment, the court must draw all inferences in a light most favorable to the nonmovant. Matsushita Elec. Indust. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, when the nonmovant is the party with the ultimate burden of proof at trial, that party retains its burden of producing evidence which would support a reasonable jury verdict. Celotex Corp., 477 U.S. at 324. Evidence relied upon must be of a type that would be admissible at trial. See Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009). To survive summary judgment, a party cannot rely on his pleadings and “must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 248. “In short, ‘summary judgment is appropriate if, on the record as a whole, a rational trier of fact could not find for the non-moving party.'” Durkin v. Equifax Check Services, Inc., 406 F.3d 410, 414 (7th Cir. 2005) (citing Turner v. J.V.D.B. & Assoc., Inc., 330 F.3d 991, 994 (7th Cir. 2003)).

         ANALYSIS

         Prince alleges that his employer discriminated against him based on his race in violation of Title VII. As an initial matter, the defendants assert that summary judgment must be granted in favor of McCormick and Appleton Auto because Appleton Auto never employed Prince and because Prince does not assert that McCormick violated Title VII. (Defs.' Br. at 25-26, Docket # 26.) Prince does not address the defendants' arguments as to Appleton Auto and McCormick. (Pl.'s Br. in Opp., Docket # 31.) Thus, Prince concedes these arguments. See Palmer v. Marion Cty., 327 F.3d 588, 597-98 (7th Cir. 2003) (holding that claims not addressed in a summary judgment opposition brief are deemed abandoned). Even so, Prince does not dispute that McCormick was not involved in the decision to fire him, nor does he dispute that McCormick was unaware of Prince's discrimination claim until after his employment with Applecars ended. (DPFOF ¶¶ 46-47 and Pl.'s Resp. ¶¶ 46- 47.) Further, Prince does not dispute that Appleton Auto never had any employees or operations. (DPFOF ¶ 6 and Pl.'s Resp. ¶ 6.) Thus, summary judgment is granted in favor of McCormick and Appleton Auto.

         The sole question before me, then, is whether Applecars meets the definition of “employer” under Title VII. To be considered an “employer” under Title VII, one must have fifteen or more employees for twenty or more calendar weeks in the current or preceding calendar year. See 42 U.S.C. § 2000e(b). Again, the parties do not dispute that Applecars, on its own, does not meet this definition in either 2016 or 2017. (DPFOF ¶¶ 11- 12.) Additionally, the parties do not dispute that if Applecars were aggregated with several of the other entities, it would meet Title VII's definition of “employer” in both years. (PPFOF ¶ 43 and Defs.' Resp. ¶ 43.)

         “[T]iny employers” are exempted from antidiscrimination laws “not to encourage or condone discrimination” but to “spare very small firms from the potentially crushing expense of mastering the intricacies of the antidiscrimination laws, establishing procedures to assure compliance, and defending against suits when efforts at compliance fail.” Papa v. Katy Indus., Inc.,166 F.3d 937, 940 (7th Cir. 1999). The Papa court explained that there are three situations in which the policy behind the exemption of the small employer is vitiated by the presence of an affiliated corporation: (1) where the traditional conditions are present for “piercing the veil” to allow a creditor, voluntary or involuntary, of one corporation to sue a parent or other affiliate; (2) where an enterprise splits itself up into a No. of corporations, each with fewer than the statutory minimum No. of employees, for the express purpose of avoiding liability under the discrimination laws; and (3) where the ...


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