Todd BROWN, Plaintiff-Appellant, v. DAIKIN AMERICA INC., Daikin Industries Ltd., Defendants-Appellees.
Docket No. 12-2955-cv.
United States Court of Appeals, Second Circuit.
Decided: June 27, 2014.
756 F.3d 219
Before: LYNCH, LOHIER, and CARNEY, Circuit Judges.
Argued: March 5, 2013.
Jerome P. Coleman (Adriana S. Kosovych, on the brief), Putney, Twombly, Hall & Hirson LLP, New York, NY, for Defendants-Appellees.
SUSAN L. CARNEY, Circuit Judge:
This case involves claims of race and national origin discrimination arising from the termination of an individual‘s employment with the New York-based wholly-owned subsidiary of a Japanese corporation. The District Court dismissed the actions against the corporate parent and subsidiary for failure to state a claim. We conclude that, under the standards articulated in Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235 (2d Cir.1995), the plaintiff, Todd Brown, sufficiently alleged that the corporate parent was part of a “single integrated enterprise” with its American subsidiary to be properly named as a co-defendant in a discriminatory discharge suit under Title VII and the New York
We agree with the District Court, however, that Brown‘s claim for breach of contract does not survive defendants’ motions to dismiss because he failed to allege that either defendant maintained a written policy of terminating employees only for cause. Accordingly, we AFFIRM the judgment of the District Court dismissing Brown‘s contract claim.
BACKGROUND
We recite the facts as alleged in Brown‘s Complaint and Amended Complaint, noting any relevant differences.1 We accept these facts as true for purposes of reviewing the District Court‘s grant of defendants’ motions to dismiss. See Gatt Commc‘ns, Inc. v. PMC Assocs. L.L.C., 711 F.3d 68, 74 (2d Cir.2013).
Brown—who is white and of United States national origin—is a former employee of Daikin America, Inc. (“Daikin America“), a Delaware corporation that is headquartered in Rockland County, New York, and engaged in the manufacture and sale of chemical products. Daikin America is a wholly-owned subsidiary of Daikin Industries Ltd. (“DIL“), a Japanese corporation based in Osaka, Japan.2 Brown worked in Daikin America‘s New Business Development Group (“the Group“) from approximately 2001 until 2009, when he was discharged as part of a company-wide reduction in force. During his time at Daikin America, Brown‘s performance reviews were consistently positive. Brown is fluent in Japanese and familiar with Japanese business culture. Before beginning work at Daikin America, he worked for a Japanese company for six years, during which he spent two years living and working in Japan.
In February 2009, when Brown‘s employment with Daikin America ended, the Group consisted of six employees, three of whom were white Americans, and three of whom were Japanese citizens of Japanese national origin. Each of the Japanese employees in the Group previously worked for DIL in Japan, but was assigned to Daikin America “to act as [Daikin America‘s] employee[ ]” while in the United States. Complaint (“Compl.“) ¶¶ 8, 21. Such inter-company “rotational” assignments lasted a period of years.3 As a
Brown alleges that, for discriminatory reasons, Daikin America did not consider terminating any of the Japanese rotational employees or any employees of Japanese national origin who had been hired directly by Daikin America.5 Brown further alleges that DIL and Daikin America maintained a policy of terminating employees only for cause, and that he accepted and remained at his job at Daikin America in part because of this policy.
After exhausting his administrative remedies with the Equal Employment Opportunity Commission, Brown filed a complaint against DIL and Daikin America in June 2010. In it, Brown contended that DIL and Daikin America violated Title VII of the Civil Rights Act of 1964 (“Title VII“),
Daikin America filed an answer to Brown‘s Complaint and DIL moved to dismiss under
Daikin America moved to dismiss the Amended Complaint, and the District Court granted the motion in a bench opinion issued on June 22, 2012. Disapproving as “manipulative” Brown‘s omission from the Amended Complaint of his earlier allegations about the employee rotational program, the District Court chose to include those allegations in its analysis of the Amended Complaint for purposes of deciding the motion to dismiss. In light of these allegations, the District Court ruled that Brown had not plausibly alleged that his discharge occurred under circumstances giving rise to an inference of discrimination. The court explained that Brown was not similarly situated to the Japanese employees assigned to work at Daikin America because, unlike those colleagues, he was not a rotational employee. Because Brown had failed to allege that he was treated differently than Japanese employees who were similarly situated, he had failed to state claims cognizable under Title VII and the NYSHRL. The District Court dismissed Brown‘s breach of contract claim against Daikin America for the same reasons that it gave in support of its earlier dismissal of the parallel claim against DIL.
Brown now timely appeals from the judgment entered after dismissal with prejudice of both complaints.6
DISCUSSION
We review de novo the grant of a motion to dismiss pursuant to
I. Title VII and NYSHRL Claims
Title VII makes it unlawful for an employer “to discharge any individual, or oth-
Brown‘s claims against DIL turn at the threshold, however, on whether DIL may be held liable as an “employer” under the relevant provisions of Title VII and the NYSHRL. Accordingly, we turn first to this question, which we answer in the affirmative. We then address whether, in the Complaint and Amended Complaint considered together, Brown has stated a plausible claim of discrimination against DIL and Daikin America.
A. DIL‘s liability as Brown‘s “employer”
“[T]he existence of an employer-employee relationship is a primary element of [a] Title VII claim[].” See Gulino v. N.Y. State Educ. Dep‘t, 460 F.3d 361, 370 (2d Cir.2006); see also
“To prevail in an employment action against a defendant who is not the plaintiff‘s direct employer, the plaintiff must establish that the defendant is part of an ‘integrated enterprise’ with the employer, thus making one liable for the illegal acts of the other.” Parker v. Columbia Pictures Indus., 204 F.3d 326, 341 (2d Cir.2000). In essence, a court must consider whether “an employee, formally employed by one entity, ... has been assigned to work in circumstances that justify the conclusion that the employee is at the same time constructively employed by another entity.” Arculeo v. On-Site Sales & Mktg., L.L.C., 425 F.3d 193, 198 (2d Cir.2005). Whether two related entities are sufficiently integrated to be treated as a single employer is generally a question of fact not suitable to resolution on a motion to dismiss. See, e.g., Knowlton v. Teltrust Phones, Inc., 189 F.3d 1177, 1184 (10th Cir.1999); Salemi v. Boccador, Inc., No. 02 Civ. 06648(GEL), 2004 WL 943869, at *4 (S.D.N.Y. Apr. 29, 2004).
In Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235 (2d Cir.1995), we adopted a four-part “single-employer” test to determine when, for Title VII purposes, a parent company such as DIL may be considered the employer of its subsidiary‘s employees. Id. at 1241. Under this test, “[a] parent and subsidiary cannot be found to represent a single, integrated enterprise in the absence of evidence of (1) interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control.” Id. at 1240 (quoting Garcia v. Elf Atochem N. Am., 28 F.3d 446, 450 (5th Cir.1994)). “Although no one factor is de-
Here, the District Court ruled that Brown sufficiently alleged that DIL and Daikin America maintained interrelated operations and were under common ownership.8 The court nonetheless held that Brown failed adequately to allege that the two entities constituted a single integrated enterprise because he did not plausibly allege centralized control of labor relations and common management. Accepting Brown‘s well-pled allegations as true, we conclude that the District Court erred in this respect.
To satisfy the single-employer test, a plaintiff need not allege that the parent exercises “total control or ultimate authority over hiring decisions,” so long as he alleges that there is “an amount of participation [by the parent] that is sufficient and necessary to the total employment process.” Cook, 69 F.3d at 1241 (internal quotation marks omitted). In determining whether a plaintiff adequately alleges centralized control over labor relations—the most important prong in the four-part test—the central question is “[w]hat entity made the final decisions regarding employment matters related to the person claiming discrimination?” Id. at 1240 (citations omitted). For example, in Cook our Court found that a parent corporation had the requisite degree of control over labor relations to be held liable along with its subsidiary as the plaintiff‘s employer where (a) the parent processed applications for employment for the subsidiary and approved personnel status reports; (b) the subsidiary “cleared all major employment decisions” with the parent; and (c) the plaintiff was hired and fired by employees of the parent. Id. at 1241.
Similarly, in Parker v. Columbia Pictures Industries, 204 F.3d 326 (2d Cir.2000) (Sotomayor, J.), we found a genuine issue of material fact regarding whether two entities constituted an integrated enterprise sufficient to hold both liable as the plaintiff‘s employer under the NYSHRL and the Americans with Disabilities Act,
Here, Brown alleged that DIL “closely directed the operations of its wholly owned subsidiary, Daikin America” and that DIL‘s approval “was required as to all significant actions by Daikin America.” Compl. ¶ 5. Brown charged that DIL “immuniz[ed]” Japanese rotational employees from discharge by directing Daikin America to discharge only employees who were not Japanese, id. ¶ 39, and by prohibiting Daikin America from reassigning or discharging Japanese rotational employees, id. ¶ 25. Taken together, these allegations sufficiently suggest that DIL exercised centralized control over Daikin America‘s decisions about which employees to terminate in the course of the workforce reduction, and that DIL, by protecting Japanese employees from discharge, effectively ensured that employees of other races or national origins, like Brown, would be terminated.
We recognize that Brown does not plead facts suggesting that DIL had significant responsibility for other aspects of Daikin America‘s labor relations. Cf. Cook, 69 F.3d at 1241. For instance, Brown does not allege that DIL participated in the decision to hire him or expressly directed Daikin to end his employment. Nor, for that matter, does he allege common management. Nonetheless, at this early stage in the litigation, the control that Brown alleged DIL to have exercised over Daikin America‘s employment actions—lying at the core of Brown‘s charges of discrimination—is adequate to sustain the action against DIL.
Because Brown has pleaded facts that, if true, demonstrate that Daikin America and DIL conducted interrelated operations, had common ownership, and were subject to centralized control of labor relations, we conclude that he has plausibly alleged that DIL and Daikin America both were his employer for purposes of his Title VII and NYSHRL claims.
B. Plausible claim of race or national origin discrimination
We next address defendants’ contention that Brown has failed to state a claim of race or national origin discrimination. It has been suggested that whether a Title VII plaintiff must plead a prima facie case under the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (93 S.Ct. 1817, 36 L.Ed.2d 668) (1973), to survive a motion to dismiss, or whether the plaintiff must simply allege facts sufficient to raise a right to relief above the speculative level, is not an entirely settled question in our Circuit.10 We are skeptical of
To state a prima facie case of discriminatory discharge under Title VII, a plaintiff must allege that: (1) he falls within a protected group; (2) he held a position for which he was qualified; (3) he was discharged; and (4) “the discharge occurred under circumstances giving rise to an inference of discrimination.” Windham v. Time Warner, Inc., 275 F.3d 179, 187 (2d Cir.2001) (internal quotation marks omitted). A plaintiff may demonstrate circumstances giving rise to an inference of discrimination by alleging that he was treated less favorably than similarly situated employees of other races or national origins. See Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir.2000).
Here, defendants do not dispute that Brown adequately alleged the following: that he is a member of a protected class, was qualified to hold his job, and suffered an adverse employment action when defendants terminated his employment. Instead, defendants argue that Brown‘s allegations do not support an inference of discrimination because the Japanese rotational employees at Daikin America were not “similarly situated” to Brown and the other American employees. Therefore, defendants argue, the companies had no duty to consider the Japanese employees for termination as part of the workforce reduction, and Brown has not provided a basis for inferring that his termination was discriminatory. We are not persuaded.
Defendants first argue that the Japanese employees were not similarly situated to Brown because they were employed by DIL, and Brown was employed by Daikin America. As we have said above, however, for purposes of the workforce reduction, DIL and Daikin America constituted a single integrated enterprise. Therefore, Brown has adequately alleged that he and the Japanese employees had a common employer. See Compl. ¶ 8 (alleging that the Japanese rotational employees were assigned “for a period of years to Daikin America to act as its employees” (emphasis added)); Am. Compl. ¶ 21 (alleging that Daikin America “did not terminate any of its employees of the Japanese race and/or of Japanese national origin” (emphasis added)).
Defendants next argue that Brown failed to allege plausibly that he and the Japanese employees were similarly situated because he did not plead any facts about the Japanese employees’ “job function, experience, qualifications, [or] rate of pay.” Appellees’ Br. at 20. Employees may be similarly situated, however, if they are “subject to the same standards governing performance evaluation and discipline.” Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 96 (2d Cir.1999) (internal quotation marks omitted). Here, Brown alleges that he worked in the New Business Development Group with three Japanese employees, two of whom reported to the same supervisor as he did. Drawing all reasonable inferences in Brown‘s favor, as we must, both Brown and the Japanese employees in the Group are plausibly alleged to be subject to the same performance evaluation and disciplinary standards, and therefore similarly situated in their employment circumstances.11
Finally, defendants argue that even if Brown was similarly situated to the Japanese employees, he fails to state a claim because there were other plausible, non-discriminatory reasons for the allegedly disparate treatment. This argument—in some ways a repackaging of defendants’ first argument—also fails. That there may be other explanations for the defendants’ employment decisions does not render Brown‘s allegations of discrimination inadequate as a matter of law. Whether there existed non-pretextual, non-discriminatory explanations for the defendants’ employment decisions—a question as to which the defendants bear the burden of production, see McDonnell Douglas, 411 U.S. at 802-03—is not properly decided on a motion to dismiss for
We conclude, therefore, that Brown has stated a plausible claim of discrimination against both DIL and Daikin America. Accordingly, we vacate the District Court‘s dismissal of Brown‘s Title VII claim against DIL and Daikin America, and remand for further proceedings consistent with this opinion. For the same reasons, we also vacate and remand the District Court‘s dismissal of Brown‘s NYSHRL claim against both defendants.
II. Breach of Implied Contract
Finally, we briefly address Brown‘s claim that Daikin America and DIL breached an implied term of his employment contract by terminating his employment without cause. In this regard, Brown alleges that it was the policy of both Daikin America and DIL not to terminate employees for economic reasons, but only “for cause,” and that he accepted and remained at his job in part in reliance on this policy.
Under New York law, “‘employment for an indefinite or unspecified term’ is presumed to be ‘at will and ... freely termina[ble] by either party at any time without cause or notice.‘” Reddington v. Staten Island Univ. Hosp., 511 F.3d 126, 137 (2d Cir.2007) (quoting Horn v. N.Y. Times, 100 N.Y.2d 85, 91, 760 N.Y.S.2d 378, 790 N.E.2d 753 (2003)) (alterations in original). An employee may rebut the presumption of at-will employment, however, by demonstrating an “express limitation in the individual contract of employment curtailing an employer‘s right to terminate at will.” Baron v. Port Auth. of N.Y. & N.J., 271 F.3d 81, 85 (2d Cir.2001) (internal quotation marks omitted). As we have observed, “[t]he New York Court of Appeals has admonished that this is a ‘difficult pleading burden’ and that ‘[r]outinely issued employee manuals, handbooks and policy statements should not lightly be converted into binding employment agreements.‘” Id. (internal citations, footnote, and alteration omitted).
Here, we see no basis for concluding that the employment relationship between Brown and defendants was anything other than at will. Brown‘s employment was not governed by a written contract. Brown did not allege that Daikin America or DIL had an express written policy limiting their rights to discharge employees. Rather, Brown asserts merely that he was “reassured on several occasions by his superiors that the policy of Daikin America and DIL was not to terminate on the basis of ... financial difficulties, and that he should not fear termination on such basis.” Compl. ¶ 19; see also Am. Compl. ¶ 16. This allegation is insufficient to establish
CONCLUSION
For the foregoing reasons, we AFFIRM the District Court‘s dismissal of Brown‘s breach of contract claim, VACATE the District Court‘s judgment dismissing Brown‘s Title VII and NYSHRL claims, and REMAND for further proceedings consistent with this opinion.