Opinion
C. A. 2:23-6389-RMG-PJG
04-29-2024
Setino West, Plaintiff, v. Fine Rugs of Charleston, Inc., Defendant.
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT UNITED STATES MAGISTRATE JUDGE
The plaintiff, Setino West, filed this action pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e, et seq., against his former employer, Defendant Fine Rugs of Charleston, Inc. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on the defendant's opposed motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction. (ECF Nos. 6 & 8.) The defendant contends that it is not an “employer” within the meaning of Title VII because it employs fewer than fifteen persons. See 42 U.S.C. § 2000e(b) (defining “employer” as “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”). The defendant offers an affidavit and several exhibits in support. (ECF No. 6-1.)
The United States Supreme Court, however, has squarely held that the issue of whether an employer has fifteen or more employees “is an element of a plaintiff's claim for relief, not a jurisdictional issue.” Arbaugh v. Y&H Corp., 546 U.S. 500, 516 (2006); see also Barbara T. Lindemann & Paul Grossman, Employment Discrimination Law 22.I.A.1.a. (6th ed. 2020). The defendant's motion is therefore not properly brought via Rule 12(b)(1).
Because the numerosity requirement is an element of the plaintiff's claim rather than a jurisdictional fact, it is not, contrary to the defendant's assertion, “an issue for the court to resolve.” (Def.'s Mem. Supp. Mot. Dismiss at 2, ECF No. 6 at 2); cf, Arbaugh, 546 U.S. at 514 (“[I]n some instances, if subject-matter jurisdiction turns on contested facts, the trial judge may be authorized to review the evidence and resolve the dispute on her own. If satisfaction of an essential element of a claim for relief is at issue, however, the jury is the proper trier of contested facts.”) (citations omitted).
RECOMMENDATION
The defendant's motion to dismiss for lack of subject matter jurisdiction should therefore be denied.
The parties' attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.' ” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court 901 Richland Street Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).