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RICHARD v. BELL ATL. CORP.

September 10, 1997

IRIS RICHARD, ET. AL., Plaintiffs,
v.
BELL ATLANTIC CORPORATION, INC., ET. AL., Defendants.



The opinion of the court was delivered by: URBINA

 Denying Defendant Bell Atlantic Corporation's Motion for Summary Judgment; Granting Individual Defendants' Motion to Dismiss; Granting Defendant Bell Atlantic-Delaware's Motion to Dismiss; Denying Defendant Bell Atlantic Corporation's Motion to Strike Plaintiffs' Class Allegations

 On April 4, 1997, the above-captioned case was re-assigned from the late Honorable Charles R. Richey to the undersigned member of the Court. This matter comes before the Court on four pending motions in this putative, race discrimination class action against Bell Atlantic Corporation ("BAC"), its subsidiaries, and several individuals: (1) defendant Bell Atlantic Corporation's motion for summary judgment; (2) defendants Raymond Smith, Charles Crist, and Kevin Pennington's ("the individual defendants'") motion to dismiss; (3) defendant Bell-Atlantic-Delaware's motion to dismiss; and (4) the defendants' motion to strike the plaintiffs' class allegations. Upon consideration of the parties' submissions, the relevant law, and the entire record there, the Court denies Bell Atlantic Corporation's motion for summary judgment; grants the individual defendants' motion to dismiss; grants Bell-Atlantic-Delaware's motion to dismiss; and denies the defendants' motion to strike the plaintiffs' class allegations.

 I. BACKGROUND

 Forty-eight purported current and former employees of BAC filed a four-count class action complaint against BAC under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et. seq., as amended, and 42 U.S.C. § 1981. Specifically, plaintiffs' Count I and II allege employment discrimination on account of race and retaliation under Title VII. Plaintiffs' Count III alleges employment discrimination under § 1981. Finally, Count IV alleges a common law claim of intentional infliction of emotional distress. *fn1"

 II. DISCUSSION

 A. Summary Judgment Standard

 The court may enter summary judgment if the moving party demonstrates that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Rule 56(c) provides that "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there is no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A dispute over a material fact is genuine when the evidence is such that a reasonable jury could find for the non-moving party. Id. at 248. "Only disputes over facts that might properly affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id.

 In summary judgment, the moving party has the burden of pointing out to the district court that the pleading, depositions, answers to interrogatories, admissions on file, and affidavits demonstrate the nonexistence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Once the moving party made a properly supported motion, the non-moving party must do more than merely show there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986).

 The adverse party must go beyond the pleading. Drawing from affidavits, depositions, and answers to interrogatories the nonmovant must designate specific facts showing there is a genuine issue for trial. Celotex, 477 U.S. at 324. Rule 56(c) requires the court to enter summary judgment against a nonmovant who fails to make a showing sufficient to establish the existence of an essential element to the party's case, and on which the party has the burden of proof. Id. at 322. The mere existence of a scintilla of evidence in support of the adverse party's position is not sufficient to defeat summary judgment. Anderson, 477 U.S. at 252. The nonmovant party must point to the court evidence that allows a reasonable jury to find in its favor. Id. A court must view the facts in the light most favorable to the non-moving party and allow it the benefit of all reasonable inferences to be derived from the evidence in record. Anderson, 477 U.S. at 249.

 B. Bell Atlantic Corporation's Motion for Summary Judgment

 The limited discovery period has ended, the plaintiffs have filed an amended complaint, and BAC (and the other defendants) have filed an answer. BAC has renewed its motion in the form of a summary judgment motion, again arguing that it is not, and has never been, an "employer" of the plaintiffs pursuant to Title VII and § 1981. As in its original motion, BAC argues that all of the plaintiffs are or were employed by its subsidiaries, not by BAC, and therefore BAC should be dismissed from this lawsuit.

 In his November 25 Memorandum Opinion, Judge Richey adopted the "integrated enterprise" test in order to determine whether there is a genuine issue regarding BAC's status as an employer of the plaintiffs. See Richard v. Bell Atlantic Corp., 946 F. Supp. 54, 62 (D.D.C. 1996). *fn2" A court must consider four factors when applying the "integrated enterprise" test, including (1) interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control. Id. at 61.

 Judge Richey further ruled that evidence tending to show "centralized control of labor relations" should be the focus of the Court's analysis. 946 F. Supp. at 62. Therefore, the central question on summary judgment is whether there is a genuine issue that the parent controls the day-to-day employment decisions of the subsidiaries that employ or employed the plaintiffs. Id.

 The evidence submitted by the plaintiffs in opposition to BAC's summary judgment motion is, for the most part, disorganized, confusing and unauthenticated. As discussed below, plaintiffs have not submitted significantly probative evidence showing that the operations of BAC and its subsidiaries are interrelated. However, they have pointed to several facts suggesting that BAC has directly impacted material aspects of the plaintiffs' employment with their respective subsidiaries, such as in the areas of performance evaluations, promotions, and transfers. *fn3" There also is evidence of common ownership and common management in the human resources area. Because the plaintiffs appear to have raised a genuine issue as to three out of the four factors of the integrated enterprise test, particularly with regard to the most important factor (centralized control of labor relations), BAC's summary judgment motion must be denied.

 1. Interrelation of Operations

 2. Centralized Control of Labor Relations

 The centralized control of labor relations factor is the most important one in the integrated enterprise test. Based on the evidence in the record, the court concludes that this factor weighs in the plaintiffs' favor for four reasons: (1) BAC directly participates in the evaluation of its subsidiary employee's performance; (2) BAC drafted and implemented a comprehensive employment policy used by its subsidiaries; (3) BAC development and implement alleged discriminatory testing procedures used by its subsidiaries; and (4) BAC has influence and/or control over the transfer or promotion opportunities of its subsidiaries' employees.

 a. BAC's Direct Participation in the Evaluation of its Subsidiary Employees' Performance

 There remains a genuine issue as to whether BAC is directly involved in the evaluation of its subsidiaries' employees' performance. While BAC argues that "the undisputed record evidence shows that BAC has no involvement in preparing performance evaluations of subsidiaries' employees (other than for a few high-level managers, which the law permits)," *fn4" plaintiff Iris Richard has submitted a copy of a written performance evaluation she received in 1992. See Exhibit 10 to Amended Complaint. That performance evaluation is captioned, "Bell Atlantic Corporation Internal Auditing Department," suggesting that BAC was directly involved in the evaluation of her work. Id. (emphasis added). BAC has made no attempt to contest the authenticity or significance of Exhibit 10.

 Additionally, BAC concedes that its Human Resources Department has "consultative involvement" with respect to all decisions concerning the hiring, discipline, promotion, evaluation, work assignments, training, and discharge of non-union employees of the subsidiaries, *fn5" thereby undermining BAC's argument that it has "no involvement in preparing performance evaluations of subsidiaries' employees." The Court concludes that there is a genuine dispute over BAC's involvement in the evaluation of its subsidiaries' employees.

 b. BAC's Drafting and Implementation of Comprehensive, Mandatory Employment Policies Used by Its Subsidiaries.

 BAC acknowledges that its Human Resources Department has drafted the "Bell Atlantic Associate Appraisal and Development Plan" ("The Plan") that is applicable to all "bargaining-unit employees" of BAC subsidiaries. See Exhibit 16 to Amended Complaint; BAC's Reply to Material Facts at 4, P 5; Pennington Dec. at P 16; Answer at P 16. The Plan states that its objective "is to provide organizations throughout Bell Atlantic with a consistent means of evaluating associate performance relative to corporate and functional requirements." Exh. 16.

 The Plan is comprehensive, spanning fifteen, single-spaced pages touching on virtually every criterion by which an employee can be evaluated. Supervisors are required to evaluate employees on their integrity and ethics compliance, equal employment opportunity/diversity, safety compliance, attendance, punctuality, job performance, and customer satisfaction. Through so-called "decision criteria," the Plan details the precise manner in which supervisors are to determine whether their employees are complying with each of these requirements. Supervisors appraise compliance by indicating on an evaluation form, with respect to each criterion, whether the associate "Exceeds Requirements," "Meets All Requirements," "Meets Some, But Not All Requirements," or "Does Not Meet Requirements."


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