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SHEPHERDSON v. LOCAL UNION NO. 401 OF INTL. ASSN.

May 27, 1993

SUSAN I. SHEPHERDSON
v.
LOCAL UNION NO. 401 OF INTERNATIONAL ASSOCIATION OF BRIDGE STRUCTURAL AND ORNAMENTAL IRONWORKERS, et al.



The opinion of the court was delivered by: BY THE COURT; DONALD W. VANARTSDALEN

 VanARTSDALEN, S.J.

 May 27, 1993

 I. INTRODUCTION

 Two of the defendants have moved to dismiss plaintiff's employment discrimination action brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Title VII), for harassment and discharge because of plaintiff's sex, and one defendant has moved for judgment on the pleadings and in the alternative for summary judgment (motion for judgment). The critical issue raised by the first motion is whether plaintiff's employer had fifteen or more employees during the relevant periods of time. That issue depends, in turn, upon whether for jurisdictional purposes certain paid instructors for an Apprentice Training Fund (the Fund) are to be counted as employees of Local Union No. 401 of the International Association of Bridge Structural and Ornamental Ironworkers (Local 401), or, alternatively, whether the employees of the International Association of Bridge Structural and Ornamental Ironworkers Union (the International) may be included with those of Local 401 to meet the statutory minimum. The question of whether the International's employees may be included with those of Local 401 for jurisdictional purposes has implications for resolution of the International's motion for judgment. If the International's employees cannot be included with those of Local 401 for jurisdictional purposes, then the International is entitled to summary judgment.

 In consideration of the affidavits, deposition testimony, and exhibits appended thereto, I conclude that plaintiff has failed to establish that her employer, Local 401, had fifteen or more employees during the relevant periods of time. In addition, plaintiff has failed to show that the International can be considered her employer under a single entity or agency theory. Finally, I conclude that as a matter of law, the International cannot be considered plaintiff's employer. This action must therefore be dismissed. All parties have been given reasonable opportunity for discovery and to present all material relevant to the pending motions. (See Order of December 23, 1992, filed Doc. No. 6).

 II. PROCEDURAL HISTORY

 On November 23, 1992, Local 401 and Dougherty filed a joint motion to dismiss the complaint, asserting that Local 401 is not an "employer" within the definition of Title VII because during all relevant times Local 401, the alleged employer, had less than fifteen employees. (filed Doc. No. 3). Attached to the motion was an affidavit by Joseph J. Dougherty. The affidavit had attached as exhibits a copy of the current union contract between the Steel Erectors' Association of Metropolitan Philadelphia and Vicinity (the employers' bargaining agent for the applicable industry and jurisdiction), and Local 401, (filed Doc. No. 3, Ex. 1), a copy of the Constitution of the International Association of Bridge, Structural and Ornamental Iron Workers, (filed Doc. No. 3, Ex. 2) (referred to as the constitution or the International's constitution), and a copy of Local 401's By-Laws. (filed Doc. No. 3, Ex. 3). Plaintiff responded to this motion citing the constitution and attaching her affidavit to the response. (filed Doc. No. 4, Exs. A & B).

 On March 22, 1993, the International filed a motion for judgment on the pleadings or, in the alternative, for summary judgment, with an attached affidavit of Leroy E. Worley, General Secretary of the International, and a copy of the International's constitution. (filed Doc. No. 9). *fn1" In addition, the oral deposition of Dougherty was taken and submitted with the supplemental brief of Local 401 on April 14, 1993. (filed Doc. No. 10). Plaintiff has not filed any response to the International's motion for judgment.

 III. STATUTORY TERM "EMPLOYER"

 Title VII makes it unlawful for an "employer," as defined in the statute, to, inter alia, "discharge any individual, or otherwise to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex." 42 U.S.C. § 2000e-2 (a)(1). The statute defines "employer," insofar as presently relevant, as follows:

 
(b) The term "employer" means a person *fn2" 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, and any agent of such a person. . . .

 42 U.S.C. § 2000e(b).

 The sole contention by defendants Local 401 and Dougherty in the present motion to dismiss is that plaintiff's alleged employer, Local 401, (Complaint P 9), is not an "employer" within the statutory definition because it never had fifteen or more employees during the relevant periods of time, and because Local 401 is not an employer within the statutory definition, Dougherty is not an agent of such an employer under Title VII. (Local 401 and Dougherty's Mot. to Dismiss, filed Doc. No. 3; see also International's Mot. for Judgment, filed Doc. No. 9). Plaintiff's employment terminated on March 23, 1992, and therefore the relevant time period for counting the requisite number of employees is calendar year 1991 through calendar year 1992. *fn3" As will be later detailed, and as I believe plaintiff concedes, Local 401 would have had fifteen or more employees during the relevant time period only if (1) instructors for the Fund are included as Local 401 employees; or (2) employees of the International are included as Local 401 employees either under the theory that Local 401 and the International constitute a single employer for purposes of Title VII or under an agency doctrine.

 IV. SUBJECT MATTER JURISDICTION

 Defendants Local 401 and Dougherty have challenged the court's subject matter jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(1). Unless the instructors for the Fund or the employees of the International are counted in calculating whether Local 401 had fifteen or more employees at any relevant time, plaintiff may not proceed with this action against defendants Local 401 and Dougherty. The statutory requirement that Local 401 be an employer having at least fifteen employees is a necessary condition to maintaining this action and therefore, essential to the court's subject matter jurisdiction.

 Defendant, the International, filed a motion for judgment, but has not directly challenged the court's subject matter jurisdiction. However, determination of whether the court has jurisdiction as to Ms. Shepherdson's suit against defendants Local 401 and Dougherty necessarily calls into question the court's subject matter jurisdiction over plaintiff's claim against the International under the single entity and agency theories.

 "A federal court is bound to consider its own jurisdiction preliminary to consideration of the merits," Trent Realty Assoc. v. First Fed. Sav. & Loan Ass'n, 657 F.2d 29, 36 (3d Cir. 1981), because the federal courts are courts of limited jurisdiction. Employers Ins. of Wausau v. Crown Cork & Seal Co., 905 F.2d 42, 45 (3d Cir. 1990). Although the International did not move pursuant to Rule 12(b)(1) to dismiss the action against it, I will consider, sua sponte, the court's subject matter jurisdiction as to Ms. Shepherdson's suit against the International.

 When a court raises the issue of its subject matter jurisdiction, the plaintiff must have "an opportunity to present facts by affidavit or by deposition, or in an evidentiary hearing, in support of [her] jurisdictional contention." Local 336, American Fed. of Musicians, AFL-CIO v. Bonatz, 475 F.2d 433, 437 (3d Cir. 1973). The Court of Appeals for the Third Circuit provided in Bonatz that this opportunity should occur after subject matter jurisdiction is challenged. In accordance with Bonatz, I am satisfied that the plaintiff has had the full opportunity to support a contention of subject matter jurisdiction as to the International. That issue though not raised formally is inextricably intertwined with her contention of jurisdiction as to Local 401, and the International's position on its employer status is directly raised and at issue in the International's motion for judgment.

 Where jurisdiction is challenged, ordinarily the burden is on the plaintiff to prove that the court has jurisdiction.

 
When the party moving for dismissal under Rule 12(b)(1) challenges the factual basis for jurisdiction, the nonmoving party (i.e., the plaintiff) must submit affidavits and other relevant evidence to resolve the factual dispute regarding the court's jurisdiction.

 Kontos v. United States Dept. of Labor, 826 F.2d 573, 576 (7th Cir. 1987). Determination of whether the alleged "employer" meets the statutory definition and thus provides subject matter jurisdiction is a matter to be decided by the court.

 In Mortensen v. First Federal Savings and Loan Ass'n, 549 F.2d 884 (3d Cir. 1977), the Court of Appeals for the Third Circuit stated:

 
Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction -- its very power to hear the case -- there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims. Moreover, the plaintiff will have the burden of proof that jurisdiction does in fact exist.

 549 F.2d at 891. Those principles apply to a Title VII sex discrimination case raising, as here, the factual issue of the requisite number of fifteen employees. See Norman v. Levy, 767 F. Supp. 1441, 1443 (N.D. Ill. 1991) (quoting the above passage from Mortensen, together with citations to similar cases in the Seventh Circuit.).

 Attached to plaintiff's brief in opposition to the motion of Local 401 to dismiss is plaintiff's own affidavit and a copy of the International's constitution. (filed Doc. No. 4, Exs. A & B). The facts relevant to both the motion to dismiss and the motion for judgment do not appear to be in serious dispute or contention. Plaintiff first contends that her affidavit and the materials submitted by defendants establish that the instructors for the Apprentice Training Program were employees of Local 401 for the purpose of determining if the statutory minimum of fifteen employees existed during the relevant time. Secondly, plaintiff contends that the International's constitution establishes, on its face, either that the International has such "complete control over the affairs of Defendant Local 401," (filed Doc. No. 4, at 8), that Local 401 and the International must be considered a single employer under Title VII, or that the constitution created an agency relationship between the International and Local 401, and therefore, the International's employees must be counted along with Local 401's employees. *fn4" Based on these arguments, plaintiff asserts that Local 401 is an employer as defined by the statute. After consideration of the briefs, affidavits, and depositions submitted on this matter, I have determined that plaintiff's contentions are not valid.

 V. SINGLE ENTITY AND AGENCY THEORY

 In a Title VII action, if an entity itself employs less than the requisite fifteen employees, application of single entity or agency theory may increase the number of employees in satisfaction of the jurisdictional minimum. Plaintiff cites Publicker Indus., Inc. v. Roman Ceramics Corp., 603 F.2d 1065 (3d Cir. 1979), Nation v. Winn-Dixie Stores, Inc., 567 F. Supp. 997 (N.D. Ga. 1983), Fanfan v. Berwind Corp., 362 F. Supp. 793, 795 (E.D. Pa. 1973), and Williams v. New Orleans Steamship Ass'n, 341 F. Supp. 613 (E.D. La. 1972), to support her assertion that the single employer theory applies to the International and Local 401. Although corporate law doctrines aid in determining whether under Title VII two entities can be considered a single employer, for jurisdictional and substantive purposes, see Armbruster v. Quinn, 711 F.2d 1332, 1337 (6th Cir. 1983), defendant correctly points out that Publicker and Fanfan do not aid in resolving the present issue. (filed Doc. No. 10, at 18-19). *fn5" Williams and Winn-Dixie, however, shed light on the appropriate method of analysis.

 The district court in Williams determined that the New Orleans Steamship Association and its member companies constituted a single employer under Title VII. The Association controlled employment determinations within the locale and established employment policies and practices for the member companies. This influence on and control over employment decisions determined the Association and member companies' status as a single employer. 341 F. Supp. at 616. Similarly, the lack of control and influence over employment decisions resulted in a determination by the district court in Winn-Dixie Stores that the parent corporation could not be liable for the acts of the ...


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