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Stephanie Kutella v. Martin Venit

June 29, 2011


The opinion of the court was delivered by: Matthew F. Kennelly, District Judge:


Plaintiff Stephanie Kutella has sued her former employer, Martin Venit, alleging sexual harassment in violation of Title VII of the Civil Rights Act of 1964, violations of the Illinois Wage Payment and Collection Act, breach of contract, and intentional infliction of emotional distress. Venit has moved for summary judgment on Kutella's Title VII claim. For the reasons stated below, the Court grants the motion.


Venit has worked as a trader at the Chicago Mercantile Exchange (CME) since 2007. Venit hired Kutella as a clerk in October 2008. Kutella alleges that, during the course of her employment, Venit sexually harassed her, failed to pay her, and intentionally caused her to experience severe emotional distress. She resigned in March 2009.

Venit has moved for summary judgment on Kutella's Title VII claim. He argues that Kutella has offered insufficient evidence to support the contention that he qualifies as an "employer" within the meaning of Title VII.


Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). On a motion for summary judgment, the Court draws reasonable inferences in favor of the non-moving party. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "Summary judgment is not appropriate 'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).

Title VII prohibits employers from discriminating against employees based on sex. 42 U.S.C. § 2000e-2(a). The Act defines an "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 current or preceding calendar year." Id. § 2000e(b). "[T]he threshold number of employees for application of Title VII is an element of a plaintiff's claim for relief." Arbaugh v. Y&H Corp., 546 U.S. 500, 516 (2006).

"The United States Supreme Court has held that under 42 U.S.C. § 2000e(b) the payroll method should be used to determine whether an employment relationship exists between an individual and the alleged employer." Mizwicki v. Helwig, 196 F.3d 828, 831 (7th Cir. 1999) (citing Walters v. Metro. Educ. Enters., Inc., 519 U.S. 202, 205-07 (1997)). "Under the payroll method set forth in Walters, the plaintiff is required to show that at least fifteen employees were on the defendant's payroll for twenty weeks during the year of, or preceding, the alleged harassment." Id. at 832 (citations omitted); see also Smith v. Castaways Family Diner, 453 F.3d 971, 974 (7th Cir. 2006) ("Review of a defendant's payroll records is usually the starting point to determine whom the defendant employed during the relevant time period."). "[A]ll one needs to know about a given employee for a given year is whether the employee started or ended employment during that year and, if so, when. He is counted as an employee for each working day after arrival and before departure." Walters, 519 U.S. at 211.

The Seventh Circuit has applied these principles in two recent cases. First, in Ost v. W. Suburban Travelers Limousine, Inc., 88 F.3d 435 (7th Cir. 1996), the Seventh Circuit held that a plaintiff's affidavit stating that she had "determined that the defendant had at least twelve full time employees and at least twelve part time employees" did not satisfy the requirements of the payroll method, even though the plaintiff claimed to have based her conclusion on a review of time sheets and other business records. Id. at 439-40 (cited with approval in Mizwicki, 196 F.3d at 832). More recently, in Mizwicki v. Helwig, the Seventh Circuit affirmed a district court's grant of summary judgment in favor of the defendant because the plaintiff failed to introduce evidence regarding defendant's payroll for the relevant years and instead relied, "without any further documentary proof," on a witness's equivocal testimony that the defendant "may have had" the requisite number of employees. Mizwicki, 196 F.3d at 831-32. The Court noted that the plaintiff in Mizwicki was "in an even weaker position" than the plaintiff in Ost because the witness in that case "never testified to having reviewed timesheets, payroll or any other records before giving his estimate." Id. at 832.

The parties agree that the alleged discrimination in this case occurred in 2008 and 2009. Thus, to survive summary judgment, Kutella must provide evidence that Venit employed the requisite number of employees for twenty weeks in 2007, 2008, or 2009. See Komorowski v. Townline Mini-Mart & Rest., 162 F.3d 962, 965-66 (7th Cir. 1998) (interpreting the phrase "current or preceding calendar year"). To support her claim, Kutella relies on Venit's affidavit, her own affidavit, and documents produced by the CME Group, the legal representative of the CME.

Venit states in his affidavit that he employed only five employees in 2007 (Dan Starr, Nicole Pusateri, Brian Morgan, Paul Trainer, and James Urso*fn1 ); six employees in 2008 (Dan Starr, Nicole Pusateri, Brian Morgan, Paul Trainer, James Urso, and Stephanie Kutella); and two employees in 2009 (Dan Starr and Stephanie Kutella). Def.'s LR 56.1 Stat., Ex. 1 at 1-2. Venit also states that Brian Morgan, Paul Trainer, and James Urso worked part-time. Id. at 1.

In her affidavit, Kutella states that an additional eleven persons worked for Venit in his trading business "for substantial periods of time during 2007-2009." Pl.'s Resp. to Def.'s LR 56.1 Stat., Ex. 3 at 1. According to her, those persons are: trade checker and runner Jimmy Pusateri; clerk Jamie Ruggio; CME office worker "Amanda"; runners "Jonathan and Jose"; CME office worker "Max"; Danny Venit, the defendant's brother, who "handled a variety of tasks"; "the Defendant's cousin," an aspiring actor who flew into Chicago from Los Angeles every year to handle various tasks; "the Defendant's father," who "handl[ed] a number of responsibilities relating to Venit's trading throughout the duration of [Kutella's] employment"; and traders Jimmy Dailydis and Wally Posner, who "cover[ed] for Venit in his absence from the trading floor, and handle[d] many related tasks." Id. at 2-3. Kutella states that "[t]hese individuals worked for Venit during the same period that I was working for him, and I personally observed each of them carrying out tasks for Venit, and getting paid by Venit for their services." Id. at 1. In addition, Kutella states that Venit "owned a car wash, at which he employed at least five . . . individuals." Id. at 4. She further indicates that Venit "would regularly threaten to employ [her] at the car wash, as a demotion." Id.

Finally, Kutella relies on applications for "Non-Member Floor Access Badges" submitted on behalf of Venit for five additional persons. See Pl.'s Resp. to Def.'s LR 56.1 Stat., Ex. 2. The CME Group produced the applications in response to a subpoena requesting all documents memorializing "any clerk, trade checker, helper or personal assistant authorized or given clearance to enter the trading floor of the CME by CME trader Martin Venit during 2007, 2008 and 2009." Id., Ex. 1 at 1. The applications consist of the following: a September 2004 floor access application for Joseph Fern listing a "Term Date" of January 4, 2007, id., Ex. 2 at 8-9; an October 2004 floor access application for David Graziano, along with a September 2009 notation stating that Graziano's access was "outdated," id. at 6-7; an October 2008 floor access application for David Sternfield, id. at 4-5; a December 2009 floor access application for Patrick Anderson, id. at 2-3; and an April 2010 floor ...

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