In Crean v. 125 West 76th St. Realty Corp., 15-cv-3814, 2017 WL 217948 (S.D.N.Y. Jan. 17, 2017), the court dismissed the employment discrimination claims of plaintiffs (a Manhattan co-op superintendent and his wife).
Initially, the court dismissed the wife’s claim because there was no employer-employee relationship between her and the defendants.
It goes almost without saying that there can be no viable claim of employment discrimination (other than one relating to a refusal to hire) absent the existence of an employment relationship. Title VII, the ADEA, and the ADA define an “employee” as “an individual employed by an employer.” 42 U.S.C. § 2000e(f) (Title VII); 28 U.S.C. § 630(f) (ADEA); 42 U.S.C. § 12111(4) (ADA). Both the NYSHRL [New York State Human Rights Law] and NYCHRL [New York City Human Rights Law] prohibit an employer from discharging from employment or discriminating against a “person” in compensation or in the terms, conditions, or privileges of employment. N.Y. Exec. Law § 296(1); N.Y.C. Admin. § 8-107. It is well established in this Circuit that, for Title VII purposes, being hired and compensated by the putative employer are essential conditions to the existence of an employer-employee relationship. (Emphasis added.)
Notwithstanding the plaintiffs’ argument that the wife typed work-related reports for her husband, the court held:
Here, it is undisputed that [the wife] was never compensated by the Co-op for any services, nor is there any other evidence that [the wife] was ever hired by Defendants. Accordingly, because [the wife] was never an employee for the purposes of any of the federal or state law causes of action and thus is not eligible to assert her statutory claims, [the wife]’s claims are dismissed in their entirety.
Turning to the superintendent’s claims, the court held that the co-op was not an “employer” within the meaning of the relevant statutes because it did not have a sufficient number of employees.
Here’s the law:
Title VII, the ADEA, and the ADA define “employer” as “a person 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 year.” 42 U.S.C. § 2000e(b); 29 U.S.C. § 630(b); 42 U.S.C. § 2322(5)(A). NYSHRL and NYCHRL provide that an “employer” must have four or more persons in its employ. N.Y. Exec. Law § 292(5); N.Y.C. Admin. Code § 8-102(5). (Emphasis added.)
Applying the law, the court held:
Defendants have proffered evidence that they did not have more than three employees in 2014 or 2015, and also argue that they are not engaged in an industry affecting commerce because the Co-op only owns a single cooperative apartment building. … Plaintiffs proffer only conclusory assertions that employees of a management company that was contracted to provide services to the Co-op, and others who performed various particularized tasks “under contract” with the Co-op from time to time, directly or as employees or subcontractors of other entities, were employees of the Co-op in some general sense.