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LATTANZIO v. SECURITY NATL. BANK

June 17, 1993

BETTY LATTANZIO
v.
SECURITY NATIONAL BANK



The opinion of the court was delivered by: BY THE COURT; J. CURTIS JOYNER

 JOYNER, J.

 Juen 17, 1993

 I. INTRODUCTION

 Betty Lattanzio initiated this employment discrimination action against Security National Bank (the Bank) pursuant to Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e et seq and the Pennsylvania Human Relations Act (PHRA), 43 Pa. C.S.A. § 951 et seq. Lattanzio alleges that the Bank discriminated against her on the basis of her age and sex in discharging her from employment on December 19, 1990.

 Before the Court is the Bank's motion to dismiss the complaint under Fed.R.Civ.P. 12(b)(1) and (6). The Bank contends that because it employed fewer than fifteen individuals during 1989 and 1990, the Plaintiff's complaint fails to state a cause of action and this Court lacks subject matter jurisdiction under Title VII. Lacking a jurisdictional foundation under federal law, the Bank further asserts that the Plaintiff's pendent claims under the PHRA, 43 Pa. C.S.A. § 951, et seq must also be dismissed.

 II. BACKGROUND

 On or about June 1, 1988, the Bank hired Lattanzio as Vice-President and she served in that capacity until August, 1990 when the then-President of the Bank resigned. The Bank subsequently promoted Lattanzio to Executive Vice-President in charge of the Bank's day-to-day operations. Although Lattanzio applied for the position of bank president and had more than twenty years of experience in the banking industry, the bank hired a thirty-four-year-old male candidate with only ten years experience in the field. After two months in this position, the new President terminated Lattanzio's employment without prior notice or explanation. Lattanzio, 56 years old at the time of her firing and who had received numerous honors, accolades and pay raises throughout her tenure with the Bank, then filed complaints raising sex and age discrimination claims with both the Pennsylvania Human Relations and the Equal Employment Opportunity Commissions. After receiving the right to sue letter from the EEOC, Lattanzio commenced this lawsuit.

 III. STANDARD

 In considering a motion to dismiss for failure to state a claim upon which relief may be granted, the court must accept all of the allegations recited in the complaint as true and construe them in a light most favorable to the plaintiff. Hough/Lowe Associates, Inc. v. CLX Realty Co., 760 F. Supp. 1141 (E.D.Pa. 1991), citing Angelastro v. Prudential-Bache Securities, Inc., 764 F.2d 939 (3rd Cir. 1985). In order to prevail on a motion to dismiss, the defendant must establish that the plaintiff can prove no set of facts which would entitle her to relief. Hendrix v. Fleming Companies, 650 F. Supp. 301 (W.D.Okla. 1986), citing inter alia Haines v. Kerner, 404 U.S. 519, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1971); see also Oatess v. Sobolevitch, 914 F.2d 428, 431 (3rd Cir. 1990)(Note 8). However, where the motion is one to dismiss for want of jurisdiction, the burden of proving that the requisite jurisdiction exists rests upon the plaintiff who must submit affidavits and other relevant evidence to resolve the factual dispute concerning this issue. Norman v. Levy, 756 F. Supp. 1060, 1062 (N.D.Ill. 1990).

 IV. DISCUSSION

 Title VII prohibits employees from engaging in unlawful employment practices against any individual. 42 U.S.C. §§ 2000e, 2(a)(1), (a)(2). However, to fall within Title VII's purview, an employer must be "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 preceeding calendar year..." 42 U.S.C. § 2000e(b). Title VII vaguely defines "employee" as "an individual employed by an employer...." 42 U.S.C. § 2000e(f).

 Resolution of the Defendant's motion to dismiss for want of subject matter jurisdiction hinges upon first determining who is considered an "employee" under Title VII, and second, whether or not the Bank had fifteen or more employees during either 1989 or 1990. See Norman v. Levy, 767 F. Supp. 1441, 1443 (N.D.Ill. 1991); see also Nationwide Mutual Insurance Co. v. Darden, U.S. , 117 L. Ed. 2d 581, 112 S. Ct. 1344, 1348 (1992). Specifically, Lattanzio alleges that five individuals, Carolyn Gibbs, James J. Lennon, Howard E. Kalis, III, Robert Hartenstine and Joseph M. Wheeler should be considered "employees" under Title VII. Any two of these five, if found to be "employees," brings the Bank within Title VII's purview.


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