Opinion
01-CV-1775
September 26, 2002
MICHAEL E. BASILE, ESQ., HIGGINS, ROBERTS, BEYERL COAN, P.C. Schenectady, New York, Attorneys for the Plaintiff.
SHERI L. MORENO, ESQ., HEATHER P. BEHNKE, ESQ., NIXON PEABODY LLP, Albany, New York, Attorneys for the Defendants.
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff Michael Mangini ("Mangini" or "plaintiff") sues defendants, Bellevue Maternity Hospital, Inc., doing business as Bellevue Woman's Medical Center, Inc. ("Bellevue"), and Grace Jorgensen, M.D. ("Dr. Jorgensen"), (collectively, "defendants"), for violating Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq. ("Title VII"), and for violating the New York State Human Rights Law ("NYSHRL").
The defendants move to dismiss plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b)(1). Plaintiff opposes and cross-moves for discovery pursuant to Fed.R.Civ.P. 34, 37(a)(12). Oral argument was heard in Albany, New York on April 26, 2002. Decision was reserved.
II. FACTS
Bellevue is a health facility that provides medical services exclusively to women. Plaintiff, a male, was hired by Bellevue in 1980 as Chief Financial Officer and was promoted to Chief Executive Officer ("CEO") in 1984. Plaintiff remained the CEO until April 27, 2001 when he was informed of his termination by Dr. Grace Jorgensen. Shortly before his termination, Mangini was directed by Dr. Jorgensen to report to a woman, Anne Saile ("Saile"). Ms. Saile had been appointed to a newly created position of Executive Vice President. Mr. Mangini's interim replacement as CEO for the period of May through June of 2001 was a woman and his announced successor as acting CEO was also a woman. Dr. Jorgensen is a woman, the former President of the Board of Directors, former Chairperson of the Board of Directors of Bellevue, and was a majority shareholder. She held those positions at varying times during plaintiff's employment. While working for Bellevue, plaintiff claims that Dr. Jorgensen made various discriminatory comments against men. Plaintiff filed his charge in this case with the Equal Employment Opportunity Commission ("EEOC") on May 22, 2000. He was then issued a notice of dismissal and right-to-sue letter ninety-seven days later on August 27, 2001.
III. DISCUSSION
A. 12(b)(1) Motion to Dismiss Standard
If challenged, a plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists. See Luckett v. Bure, 290 F.3d 493, 497 (2d Cir. 2002), Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996). When a defendant moves to dismiss a cause of action pursuant to Fed.R.Civ.P. 12(b)(1), "the movant is deemed to be challenging the factual basis for the court's subject matter jurisdiction." Cedars-Sinai Medical Center v. Watkins, 11 F.3d 1573, 1583 (Fed. Cir. 1993). For purposes of such a motion, "the allegations in the complaint are not controlling . . . and only uncontroverted factual allegations are accepted as true." Id. "All other facts underlying the controverted jurisdictional allegations are in dispute and are subject to fact-finding by the district court." Id. at 1584. On such a motion, both the movant and the pleader are permitted to use affidavits and other pleading materials to support and oppose such motions. Zappia Middle E. Constr. Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000).
B. Subject Matter Jurisdiction
Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e, et seq. prohibits employers from engaging in discriminatory employment practices. 42 U.S.C. § 2000e(b) provides that only an "employer," defined as one who is "engaged in an industry affecting commerce who has fifteen or more employees," may be held liable under Title VII. "Industry affecting commerce" means "any activity, business, or industry in commerce or in which a labor dispute would hinder or obstruct commerce or the free flow of commerce." 42 U.S.C. § 2000e(h). The term "commerce" means "trade, traffic, commerce, transportation, transmission, or communication among the several States; or between a State and any place outside thereof . . . " Id. at (g). Bellevue argues that it does not meet Title VII's definition of "employer" because it is not engaged in an industry affecting commerce. It is the plaintiff's burden to show that Bellevue has more than a de minimus impact on the free flow of commerce. See Luckett, 290 F.3d at 497.
The plaintiff cites to Rodriguez v. Beechmont Bus Service, Inc., 173 F. Supp.2d 139, 147 (S.D.N.Y. 2001) for the proposition that an intrastate business can impact interstate commerce. While that proposition is correct, the facts of Rodriguez are distinguishable from the instant case. See United States v. Morrison, 529 U.S. 598, 609 (2000) (stating that intrastate activities that effect interstate commerce may be regulated by Congress). In Rodriguez, the defendant was a bus company that purchased its buses, parts and fuel in interstate commerce. Rodriguez, 173 F. Supp.2d at 147. Additionally, those buses used the same roads as other vehicles traveling interstate. Id. The court held in Rodriguez that the defendant had more than a de minimus impact on commerce. Id.
In this case, the plaintiff was the former CEO and CFO of Bellevue. (See Mangini Aff. ¶ 3.) He held those positions for over twenty years. As a result, plaintiff has sufficient knowledge of the defendants' contacts with interstate commerce. For purposes of this motion, plaintiff's affidavit will be taken as true. Discovery will not improve the plaintiff's position on this issue.
Plaintiff's affidavit does not dispute that Bellevue has no office, owns no property, and provides no services outside of New York State. Bellevue has a small 40-bed hospital in Niskayuna, New York, a urinary clinic in Colonie, New York and a physicians office in Guilderland, New York. (Yowell Aff. ¶ 2.)Further, plaintiff's affidavit does not dispute that Bellevue only provides health care in the State of New York. (See generally, Mangini Aff. ¶¶ 8, 9, 11.) As proof of defendants' interstate contacts, Mangini offers the following examples. He states that some of Bellevue's lab and other equipment came from outside of New York. (Id. at ¶ 11.) Mangini also states that a few employees may have second homes in other states or occasionally travel to other states for business relating to the hospital. (Mangini Aff. ¶¶ 12, 13, 14, 15.) However, with the exception of those few, all the employees of Bellevue are residents of the State of New York. Additionally, he claims that some of Bellevue's patients come from Vermont, Maine or Massachusetts. (Mangini Aff. ¶ 9.) However, these patients are in the distinct minority, the vast majority of the hospital's patients are from New York State. (See generally, id.) Even assuming that these examples and all the other information in plaintiff's affidavit with respect to his knowledge of Bellevue's interstate contacts is still true today, he has failed to meet his burden of showing by a preponderance of the evidence that jurisdiction exists.
Allison Yowell is Bellevue's current Chief Financial Officer.
Bellevue is a small, intrastate, not-for-profit business. While it may have some contacts with interstate commerce, they are too few and too little to create an impact on the free flow of commerce. Accordingly, plaintiff's federal claims are dismissed for lack of subject matter jurisdiction. See Johnson v. Alternatives, Inc., 2002 U.S. Dist. LEXIS 15667 (N.D.Ill. Aug. 22, 2002) (declining subject matter jurisdiction over claims because defendant had only a de minimus impact on the flow of commerce).
In view of the above, the remaining arguments of the defendants need not be considered.
C. Cross-Motion for Discovery
The plaintiff, as former CEO and CFO of Bellevue, has more than sufficient knowledge of Bellevue's contacts with interstate commerce. Therefore, discovery into this matter is unnecessary.
D. Supplemental Jurisdiction
Pursuant to 28 U.S.C. § 1367(c)(3), supplemental jurisdiction over plaintiff's pendent state law claims will not be exercised.
IV. CONCLUSION
Plaintiff's complaint must be dismissed for lack of subject matter jurisdiction. Additionally, plaintiff's cross-motion for discovery is denied.
Accordingly, it is
ORDERED that
1. The motion for summary judgment by defendants, Bellevue Maternity Hospital, Inc., Bellevue Woman's Medical Center, Inc., and Grace G. Jorgensen, M.D. is GRANTED;
2. The cross-motion for discovery by plaintiff Michael Mangini is DENIED;
3. The Title VII claim is DISMISSED with prejudice;
4. The NYSHRL claim is DISMISSED without prejudice; and
5. The complaint is DISMISSED in its entirety.
The clerk is directed to enter judgment accordingly.
IT IS SO ORDERED.