United States District Court, E.D. Wisconsin
SHANNON C. PRINCE, Plaintiff,
APPLETON AUTO, LLC, et al., Defendants.
DECISION AND ORDER ON DEFENDANTS' MOTION FOR
Joseph United States Magistrate Judge.
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.
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.)
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 #
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.)
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.
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
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)).
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.
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.)
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 ...