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March 27, 1995


ROBERT J. CINDRICH, United States District Judge

The opinion of the court was delivered by: ROBERT J. CINDRICH

I. Introduction

 This is an action in employment discrimination pursuant to Title I of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 et seq.1 Defendant, International Association of Bridge, Structural, and Ornamental Iron Workers, Local No. 3 (Local No. 3), sued here in its capacity as an employer rather than as a labor union, moves for summary judgment raising two issues: first, whether Local No. 3 is an "employer" within the meaning of the ADA for purposes of conferring subject-matter jurisdiction; second, whether the action is barred by plaintiff's failure to follow grievance procedures set forth in a collective bargaining agreement (CBA) between Local No. 3 and plaintiff's labor union. *fn2" For the reasons below, the motion of Local No. 3 will be granted.

  Plaintiff, who suffers from a hearing loss, filed suit alleging one count of discrimination in violation of the ADA. *fn3" According to the complaint, on March 16, 1993 plaintiff was terminated from her position as a clerk receptionist at the Local No. 3 office in Pittsburgh, Pennsylvania. Complaint P 13. Plaintiff, whose condition requires that she wear hearing aids, asserts that although she performed her job satisfactorily, Local No. 3 discharged her due to the impairment. Complaint P 10.

 Local No. 3 challenges the Court's jurisdiction to entertain this action, arguing that it does not fall within the statutory definition of "employer" since plaintiff has failed to produce any evidence that it has ever employed twenty-five or more employees. The requirement that Local No. 3 be an employer with at least twenty-five employees is a essential to the Court's jurisdiction. The record is clear that standing alone, Local No. 3 does not now, nor has it ever employed more than twenty-five employees.

 Plaintiff takes the position that for jurisdictional purposes, Local No. 3 and the International Association of Bridge, Structural and Ornamental Iron Workers (International Union) constitute one employer, and that aggregating the employees of each, the number exceeds twenty-five. Plaintiff argues that the question of whether the International Union has the right to control the activities of Local No. 3 is a material issue of fact.


 Summary judgment may be granted if, drawing all inferences in favor of the non-moving party, "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 judgment as a matter of law." Fed.R.Civ.P. 56(c). A fact is "material" if it may affect the outcome of a case under governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 The ADA is a comprehensive law prohibiting discrimination against disabled individuals in private and public employment, public accommodation and transportation, government services, and telecommunications. Title I of the ADA, enforced by the Equal Employment Opportunity Commission (EEOC), provides:

(a) General rule. No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

 42 U.S.C. § 12112(a). Section 101(2) defines "covered entity" as "an employer, employment agency, labor organization, or joint labor-management committee." 42 U.S.C. § 12111(2). Section 101(5) provides, in pertinent part:

(5) Employer. (A) In general. The term ... employer means a person engaged in an industry affecting commerce who has 25 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding year, and any agent of such person.

 42 U.S.C. § 12111(5)(A) (emphasis added).

 The term "employer" is defined in the ADA as it is in the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Principles developed in case law under Title VII are therefore instructive on the issue whether Local No. 3 is an "employer." See EEOC Policy Guide N-915-005, (BNA) 405:6867 (August 14, 1990). In a Title VII action, if an entity itself employs less than the statutory requisite number of employees, application of single entity or agency theory may increase the number of ...

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