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February 4, 2002


The opinion of the court was delivered by: Franklin S. Van Antwerpen, U.S. District Judge


Defendants moved summary judgment on all of Plaintiff's federal and state statutory claims and state common law claims. Thereafter, Defendants moved to dismiss Plaintiff's federal action for lack of subject matter jurisdiction. Specifically with regard to jurisdiction, Defendants contend that the Township employs less than 15 employees and is therefore not an "employer" under Title VII of the Civil Rights Act (Title VII), as defined in 42 U.S.C. § 2000e(b). Defendants further state that Plaintiff was not an "employee" as defined under the Equal Pay Act (EPA) of the Fair Labor Standards Act, 29 U.S.C. § 203(e)(2)(C), inasmuch as she was an appointee of the elected Board of Supervisors of the Township, a public agency, serving at the Board's pleasure (i.e., not as a civil servant) as its personal staff member, directly involved in policymaking and legislative functions.

Because we now find that Plaintiff is not covered under either Title VII or the EPA for the reasons Defendants assert, we must dismiss Plaintiff's federal claims. Consequently, she has no basis for asserting federal subject matter jurisdiction, and we must remand her remaining claims to state court. We may not discuss the merits of any of these remaining claims, since without subject matter jurisdiction, we maintain no authority in this matter.


• Subject Matter Jurisdiction

Federal procedural guidelines dictate that we may consider jurisdiction at any time.*fn1 Fed.R.Civ.P. 12(b)(1), 12(h)(3); In Re: Orthopedic "Bone Screw" Products Liability Litigation 132 F.3d 152, 155 (3rd Cir. 1997) ("Bone Screw") citing Underwood v. Maloney, 256 F.2d 334 (3d Cir.), cert. denied, 358 U.S. 864, 3 L.Ed.2d 97, 79 S.Ct. 93 (1958). If we determine that a case before us lacks subject matter jurisdiction, we have no authority under the Constitution to decide the case on its merits. Bone Screw, 132 F.3d at 155. Where a case has been removed from state court, like this case, it must be remanded without prejudice if jurisdiction is lacking. See Bradgate Associates v. Fellows, Read & Associates, 999 F.2d 745, 750-51 (3d Cir. 1993) (finding that, where the district court lacks subject matter jurisdiction, it must remand a removed state court case). Plaintiff bears the ultimate burden of persuading us that we have subject matter jurisdiction over her case under Rule 12(b)(1). Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3rd Cir.), cert. denied, 501 U.S. 1222 (1991).

• Title VII Jurisdiction

A plaintiff may only raise Title VII claims against a defendant if that defendant is an "employer" as defined by the statute. 42 U.S.C. § 2000e(b). Defendants claim that Upper Hanover Township is not a Title VII-qualified "employer," defined as follows: "The term `employer' means a West Pageg 506 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, and any agent of such a person." 42 U.S.C. § 2000e(b). Specifically, Defendants affirm that the Township employed between four and five employees during the relevant period.

At oral argument before us on January 29, 2002, Plaintiff conceded that the Township employed less than fifteen employees.*fn2 Hence, Plaintiff's claims under Title VII must be dismissed. Colorado Springs Amusements, Ltd. v. Rizzo, 524 F.2d 571, 576-577 (3rd Cir. 1975) ("It is neither alleged nor in any way suggested that any of the owners employ [fifteen or more] persons. There is thus no violation of the Civil Rights Act.").

Plaintiff contends that even if jurisdiction does not exist with respect to the Township itself, she can still maintain a Title VII suit against members of the Township Board of Supervisors in their official capacities under Verde v. City of Philadelphia, 862 F. Supp. 1329 (E.D.Pa. 1994). Plaintiff misunderstands Verde, which in any event is not binding upon us. The Verde decision holds, "A suit against a defendant in his official capacity . . . `generally represents only another way of pleading an action against an entity of which an officer is an agent.'" Id. at 1332, citing Kentucky v. Graham, 473 U.S. 159, 165-166,105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). See also Duffy v. Southeastern Pennsylvania Transp. Co., 1995 WL 299032 at *2 (E.D.Pa. 1995) ("The official-capacity claims against Sharpe and Evans, in contrast to the personal-capacity claims, are simply another way of asserting claims against SEPTA itself."). Thus, Plaintiff's claims against the Township provide the foundation necessary to her claims against the Board members in their official capacities. The latter must likewise be dismissed since the Township, not a Title VII "employer," is not within our jurisdiction.*fn3

As Plaintiff notes, we must give effect to explicit statutory language (Smith v. Fidelity Consumer Discount Co., 898 F.2d 907, 909-910 (3rd Cir. 1990)) and must avoid construction of such language that would lead to "absurd or unreasonable results." Robert T. Winzinger, Inc. v. Management Recuiters, Inc., 841 F.2d 497, 500 (3rd Cir. 1988). It would be absurd to allow Title VII suits against individuals in their official capacities when the organizations they represent are clearly not covered by the statute. Such a course of action would essentially disembowel Title VII's fifteen employee jurisdictional minimum. The law is clear: plaintiffs may not maintain Title VII suits against entities or agents of those entities in their official capacities where such entities employ less than fifteen people. All of Plaintiff Marburger's Title VII claims are accordingly dismissed.

• EPA Jurisdiction

The EPA exists within the Fair Labor Standards Act (FLSA) and its jurisdictional parameters are those of the FLSA generally, as outlined in 29 U.S.C. § 203(e). 29 C.F.R. § 1620.1(a) (1987); 29 C.F.R. § 800.105 (1984). The Township, a political subdivision of the Commonwealth of Pennsylvania, invokes 29 U.S.C. § 203(e)(2)(C), defining "employees" protected under the FLSA:

(2) In the case of an individual employed by a public agency, such term means. . . .
(C) any individual employed by a State, political subdivision of a State, or an interstate governmental agency, other than such an individual —
(i) who is not subject to the civil service laws of the State, political subdivision, or agency which employs him; and

(ii) who —

(I) holds a public elective office of that State, political subdivision, or agency,
(II) is selected by the holder of such an office to be a member of ...

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