Opinion
Case No. 2:99-CV-0245C
June 20, 2001
ORDER
This matter is before the court on Defendants', Joseph J. Buzas, et al ("Buzz" or "Defendants"), motion for partial summary judgment. The facts are set forth in the parties' pleadings and past orders of the court and will not be repeated except as necessary to explain the court's decision. Defendants have moved for partial Summary Judgement to dismiss Alwine's Title VII claims, arguing that this court lacks subject matter jurisdiction under the Act because the Buzz is not an employer within the meaning of Title VII. The court has considered the arguments of counsel presented at a May 10, 2001 hearing, along with the memoranda and supporting documents filed by the parties, and finds as follows.
Analysis
1. Standard of Review
Summary judgment is proper "if 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). The party seeking summary judgment bears the initial burden of demonstrating that there is an absence of evidence to support the non-moving party's case. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). In applying this standard, the court must construe all facts and reasonable inferences therefrom in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Pueblo of Santa Ana v. Kelly, 104 F.3d 1546, 1552 (10th Cir. 1997).
Once the moving party has carried its burden, Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by . . . affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324 (quoting Fed.R.Civ.P. 56(e)); see also Gonzales v. Millers Cas. Ins. Co., 923 F.2d 1417, 1419 (10th Cir. 1991). The non-moving party must set forth specific facts showing a genuine issue for trial; mere allegations and references to the pleadings will not suffice. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
2. Title VII
a. The Scope of the Statute and the Question of Jurisdiction
The Buzz asserts that it is not an "employer" for the purposes of Title VII liability. Title VII provides: "The term `employer' means 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. . . ." 42 U.S.C. § 2000e(b). Defendants correctly argue that this provision is jurisdictional, and that the court lacks subject matter jurisdiction unless the facts clearly show that the Buzz is an employer as defined by the statute. This point cannot be overstated, however, because § 2000e(b) is both a jurisdictional requirement and an element of the substantive claim.
In this case, the court is faced, as discussed below, with a motion for partial summary judgment that requires a factual determination regarding whether certain persons were employees of the Buzz such that they would count toward the statutory minimum. And, as discussed below, neither party has at this juncture provided the court with enough information that would enable it to make such a determination. In short, the Buzz has not met its burden of proving that is no genuine issue exists regarding the requisite number of employees.
In Zinn v. McKune, the Tenth Circuit noted that a plaintiff in a Title VII case "must establish, for jurisdictional purposes, that" the employer falls within the statutory definition provided by § 2000e(b). 143 F.3d 1353, 1356 (10th Cir. 1998). Defendants argue that Zinn stands for the proposition that the court lacks subject matter jurisdiction unless there is a clear showing that the defendant has the requisite number of employees required under the statute. This is, in part, correct. In a case such as this, however, where there is an open question regarding the number of employees, the court maintains jurisdiction over a Title VII claim until it can make the factual determination regarding whether the Buzz is an employer under the definition of the statute. "A federal court has jurisdiction to determine its jurisdiction." Sierra Club v. Yuetter, 911 F.2d 1405, 1421 (10th Cir. 1990), citing Familia de Boom v. Arosa Mercantil, S.A., 629 F.2d 1134, 1137 (5th Cir. 1980), cert. denied, 451 U.S. 1008 (1981). Moreover, "[i]t is well established that the district court may hold an evidentiary hearing or make other orders necessary to evaluate its jurisdiction." Sierra Club, 911 F.2d at 1421, citing Sherman v. American Fed'n of Musicians, 588 F.2d 1313, 1314 (10th Cir. 1978), cert. denied, 444 U.S. 825 (1979).
In Zinn, the parties did not dispute that the defendant was an "employer" under the definition of § 2000e(b); the issue in that case was whether the plaintiff was an "employee" for the purposes of the statute under 42 U.S.C. § 2000e(f). 143 F.3d at 1357. Therefore, the Zinn court did not address the issue presently before this court: whether the court retains jurisdiction over a Title VII claim to resolve a factual dispute regarding whether the defendant has a sufficient number of employees for a sufficient amount of time to make it liable under Title VII.
In addressing the issue of whether a person is an "employee" under § 2000e(f), the Tenth Circuit has clearly held that when "subject matter jurisdiction is dependent upon the same statute which provides the substantive claim in the case, the jurisdictional claim and the merits are considered to be intertwined." Wheeler v. Hurdman, 825 F.2d 257, 259 (10th Cir. 1987), cert. denied, 484 U.S. 986 (1987), citing Clark v. Tarrant County, 798 F.2d 736, 742 (5th Cir. 1986) (finding that same rule applied to determination of whether defendant was an "employer" under § 2000e(b)). The same logic is applicable to a determination of whether a defendant is an "employer" under § 2000e(b).
Although the Tenth Circuit has not addressed this issue directly, its sister circuits as well as district courts within the Tenth Circuit have clearly determined that a district court has jurisdiction over a Title VII claim in order to assess whether the defendant has the requisite number of employees for the requisite time; indeed, several courts have found the jurisdictional question so intertwined with the merits that they treat it as a substantive element of the case which the plaintiff must prove. See, e.g., Komorowski v. Townline Mini-Mart Restaurant, 162 F.3d 962, 964 (7th Cir. 1998); Sharpe v. Jefferson Distrib. Co., 148 F.3d 676, 677-78 (7th Cir. 1998), abrogated on other grounds by Papa v. Katy Indus., Inc., 166 F.3d 937 (7th Cir. 1999); E.E.O.C. v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 623-24 (D.C. Cir. 1997); Clark, 798 F.2d at 742; Cf. Garcia v. Copenhaver, Bell Assocs., 104 F.3d 1256, 1261-64 (11th Cir. 1997) (noting, in instance where court had to determine whether defendant was "employer" under ADEA, that difference existed between "facial" and "factual" attacks on issue of subject matter jurisdiction such that "factual" attacks must be determined by trier of fact). In Sharpe, the Seventh Circuit held that Title VII merely requires a plaintiff to "present a non-frivolous claim under federal law; no more is necessary for subject-matter jurisdiction. A plaintiff's inability to demonstrate that the defendant has 15 employees is just like any other failure to meet a statutory requirement." Sharpe, 148 F.3d at 677. While not stating the point this strongly, several district courts in the Tenth Circuit have held that the jurisdictional reach of Title VII under § 2000e(b) is a factual issue that must be determined by the trier of fact. See Morris-Eberhart v. J.G. Mathena Assoc., Inc., 186 F.R.D. 619, 620-21 (D. Kan. 1999); Saxon v. Thompson Orthodontics, No. 98-2401-JWL, 1999 WL 232913, at *1, *3 (D. Kan. Mar. 31, 1999); Smith v. Norwest Fin. Wyoming, Inc., 964 F. Supp. 327, 330-31 (D. Wyo. 1996). As such, this "district court may hold . . . evidentiary hearing[s] or make other orders necessary to evaluate its jurisdiction." Sierra Club, 911 F.2d at 1421.
On appeal, the Tenth Circuit affirmed this decision without ever mentioning or questioning federal jurisdiction. See Smith v. Norwest Fin. Wyoming, Inc., 129 F.3d 1408 (10th Cir. 1997).
b. Facts in Dispute
Given the discussion above, on the record now before it, the court finds that there are material facts still in dispute regarding the issue of whether the Buzz is an employer for the purposes of Title VII. The court has not been presented enough evidence to determine the employment status of several individuals who might count toward the statutory minimum requirement — including the individuals who were trained to operate the Buzz's novelty store, run ticket booths, as well as those who served as scorers, announcers, scoreboard operators, and audio operators.
To provide just a brief example of the factual matter still in dispute, the court has not been provided with sufficient undisputed evidence to determine whether two individuals, Craig Carter and Lawrence McNeal were associated with the Buzz as contractors or employees. The employment status of Carter and McNeal might well be crucial to the disposition of this case because the Buzz concedes that in 1997 it "employed 13 people in year round positions" (not including Carter or McNeal). (See Defs.' Mem. in Supp. of Mot. for Summ. J. at 4, ¶ 12.) If Carter and McNeal can be considered employees of the Buzz during 1997, therefore, the Buzz would have had a total of at least fifteen employees for that year and would be subject to the requirements of Title VII.
Defendants insist that Carter and McNeal were not employees, but rather independent consultants or contractors. Title VII does not protect or encompass the engagement of independent contractors. See Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1069 (10th Cir. 1998); Lambertsen v. Utah Dept. of Corrections, 79 F.3d 1024 (10th Cir. 1996); Tessler v. KHOW, No. 95-B-2414, 1997 WL 458489, at *4 (D. Colo. Apr. 21, 1997). Typically, this issue is raised where there is some doubt as to the employee/independent consultant status of the plaintiff in a Title VII suit. This potential distinction applies equally, however, to the issue of how many employees are employed by an employer, as Title VII uses the same term "employee" to describe both a potential plaintiff and the fifteen persons which must be under the control of an employer for that employer to qualify for Title VII coverage. See 42 U.S.C. § 2000e(b) and (f). Alwine argues that Carter and McNeal are employees and that Defendants have not sufficiently demonstrated that there is an absence of evidence to support the non-moving party's case.
Such a determination is very fact intensive. The Tenth Circuit has adopted a "hybrid" test in examining the issue of whether an individual is an employee for purposes of Title VII. See Lambertsen, 79 F.3d at 1028.
Under the hybrid test, the main focus of the court's inquiry is the employer's right to control the `means and manner' of the worker's performance. . . . However, the hybrid test also looks at other factors, including: (1) the kind of occupation at issue, with reference to whether the work usually is done under the direction of a supervisor or is done by a specialist without supervision; (2) the skill required in the particular occupation; (3) whether the employer or the employee furnishes the equipment used and the place of work; (4) the length of time the individual has worked; (5) the method of payment, whether by time or by job; (6) the manner in which the work relationship is terminated; (7) whether annual leave is afforded; (8) whether the work is an integral part of the business of the employer; (9) whether the worker accumulates retirement benefits; (10) whether the employer pays social security taxes; and (11) the intention of the parties. . . . No single factor is conclusive. Rather, the courts are to look at the totality of circumstances surrounding the working relationship between the parties.
Id. (citations and footnotes omitted). The parties have introduced little to no information on the second, sixth, seventh, and ninth factors, and the court finds significant factual questions are present with regard to the first, third, fourth, fifth, eighth, tenth, and eleventh factors, as well as the overall "means and manner of control" element.
For instance, the parties have introduced surprisingly little information about the means and manner by which the Buzz controlled Carter and McNeal's job performance. On the one hand, the Buzz assert that Carter and McNeal reviewed applications and selected workers by themselves, and that "Mr. Carter and Mr. McNeal were solely responsible for determining how many game day workers would be needed based upon the variety of circumstances surrounding each home game." (See Defs.' Mem. in Supp. at Statement of Undisputed Facts ¶¶ 22-23; Carter Aff. at ¶¶ 6-7, attached as Ex. D.) This gives the impression that the Buzz did little to control Carter and McNeal, and that Carter and McNeal were not subject to instructions from Buzz supervisors. On the other hand, as Alwine's counsel suggested at oral argument, this degree of freedom does not seem out of line with the degree of freedom one might suspect from an in-house human resources manager. And Defendants have not introduced any information which would suggest that Carter and McNeal's jobs were utterly uncontrolled by the Buzz. Therefore, the evidence on the "means and methods of control" test is inconclusive at best, and the Buzz has not met its burden of demonstrating that there is an absence of evidence to support the non-moving party's case. See Celotex, 477 U.S. at 324. This court must construe all facts and reasonable inferences therefrom in the light most favorable to the nonmoving party. See Pueblo of Santa Ana, 104 F.3d at 1552. As such, summary judgment would not be appropriate in this instance.
Order
For the reasons set forth above, Defendants' motion for partial summary judgment is DENIED. The trial in this matter will be bifurcated, with the jurisdictional issue concerning the number of "employees" necessary for Defendants to be liable under Title VII to be tried first, and the remaining issue of potential liability to be decided, if at all, after the jurisdictional issue is resolved. The parties are further ordered to submit simultaneous motions and memoranda concerning whether the first stage of trial should be decided by the court or by a jury on or before July 6, 2001.