Opinion
CIVIL ACTION No. 03-2178-KHV
November 24, 2003
MEMORANDUM AND ORDER
Plaintiff filed suit against her former employer, J.P. Heff, Inc., d/b/a/ J. Barleycorn's Bar Grill ("Barleycorn's"). Plaintiff seeks damages for pregnancy discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), 42 U.S.C. § 2000e et seq., and the Kansas Act Against Discrimination ("KAAD"), K.S.A. § 44-1001 et seq., and willful failure to pay compensation under K.S.A. § 44-315. This matter comes before the Court on Defendant's Motion To Dismiss Plaintiffs Complaint (Doc. #10) filed June 30, 2003. For reasons stated more fully below the Court finds that defendant's motion should be denied.
Factual Background
Plaintiff worked as a server at Barleycorn's, a bar and grill. Plaintiff alleges that on December 6, 2001, in violation of Title VII and the KAAD, defendant terminated her employment because she was pregnant. Plaintiff alleges that defendant was in an industry affecting commerce with 15 or more employees for each working day, in each of 20 or more calendar weeks in the current or preceding calendar year. Thus, plaintiff asserts that defendant is an employer under 42 U.S.C. § 2000e(b).
Defendant argues that the Court lacks subject matter jurisdiction over plaintiffs Title Vn claim because Barleycorn's is not an "employer" as defined in Title VII. Defendant asks the Court to convert its motion to dismiss to a motion for summary judgment under Fed.R.Civ.P. 56. In support of its motion, defendant has submitted a sworn affidavit by John P. Heffernon, defendant's sole shareholder and officer, along with payroll summaries for the period from January 3 through May 16, 2002. Heffernon states that Barleycorn's has two shifts of employees per day. On Sundays through Thursdays, an average of four employees work each shift, for a total of eight employees per day. On Fridays and Saturdays, an average of five employees work each shift, for a total often employees each day. At the relevant times, defendant never had 15 or more employees for each working day. From January 3 through May 16, 2002, Barleycorn's paid from 11 to 14 employees each week During that same time, payroll records indicate that Barleycorn's had 18 to 42 "active" employees.
In response to defendant's motion, plaintiff asserts that defendant's uncontroverted evidence reveals questions of material fact whether defendant is a Title Vn employer, thus precluding summary judgment. Alternatively, plaintiff filed an affidavit pursuant to Fed.R.Civ.P. 56(f) which states that defendant has not produced documents within its control so that plaintiff can adequately oppose defendant's statement of facts. Plaintiff thus asserts that the Court should overrule the motion for summary judgment or grant a continuance for further discovery.
Applicable Standards
A court may convert a Rule 12(b)(6) motion to dismiss into a summary judgment proceeding in order to consider matters outside of plaintiff's complaint. See Brown v. Zavaras, 63 F.3d 967, 969 (10th Cir. 1995); Jensen v. Johnson County Youth Baseball League, 838 F. Supp. 1437, 1440-42 (D. Kan. 1993) (Rule 12(b)(1) motion to dismiss, with supporting affidavits showing that defendants did not satisfy requisite number of employees for Title VII coverage, appropriately treated as Rule 56 summary judgment motion): see Wheeler v. Hurdman, 825 F.2d 257, 259(10th Cir. 1987) (question whether plaintiff qualified as employee is both jurisdictional question and aspect of discrimination claim; thus court properly treated as motion for summary judgment). Here, defendant submitted affidavits and other materials in support of its motion, and plaintiff submitted an affidavit in her memorandum in opposition. Because the Court will consider these extraneous materials, it treats defendant's motion as a Rule 56 motion for summary judgment.
Summary Judgment Standard
Summary judgment is appropriate 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 a judgment as a matter of law. Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 247(1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir. 1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Andersoa 477 U.S. at 248. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252.
The moving party bears the initial burden of showing that there is an absence of any genuine issue of material fact. CelotexCorp. v. Catrett, 477 U.S. 317, 323 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir. 1991). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l. Inc. v. First Affiliated Sees. Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). The nonmoving party may not rest on its pleadings but must set forth specific facts. Id.,
"[The Court] must view the record in the light most favorable to the parties opposing the motion for summary judgment" Deepwater Invs., Ltd, v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir. 1991). Summary judgment may be granted if the nonmoving party's evidence is merely colorable or is not significantly probative. Anderson, 477 U.S. at 250-51. Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52.
Analysis
Plaintiff claims that defendant discriminated against her on account of pregnancy when it terminated her employment in violation of Title YE and the KAAD. Plaintiff also asserts a state law claim for willful failure to pay compensation in violation of K.S.A. § 44-315. Defendant asserts that the Court lacks subject matter jurisdiction over plaintiffs Title Vn claim because it is not an "employer" as defined in Title VII. Plaintiff counters that material issues of fact preclude summary judgment, or in the alternative, that discovery is essential to determine if defendant is an "employer" for the purposes of Title VII
Title VII makes it unlawful for an "employer" to "refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." See 42 U.S.C. § 2000e-2(a)(1). Thus defendant is subject to Title VII only if, at the time of the alleged discrimination, it meets the statutory definition of "employer."i.e., "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).
Plaintiff alleges that defendant discriminated against her in 2001. Therefore, she must show that defendant employed 15 or more employees for each working day in each of 20 or more calendar weeks in 2000 or 2001. Defendant relies in part upon a payroll printout for the 20 weeks from January 3 through May 16, 2002, which reflects that during that time Barleycorn's paid 11 to 14 employees each week. The printout does not cover the two years that are germane in this case. It sheds no light on the issue whether defendant was an employer for Title VII purposes in 2000 or 2001.
Defendant also relies upon the affidavit of John P. Heffernon, which states that defendant uses on average only 8 or 9 employees per day. The Court uses the "payroll method" to determine whether a defendant is an employer under Title VII. Walters v. Metro. Ed. Enters., Inc., 519 U.S. 202 (1997). The "ultimate touchstone" is whether an employer has employment relationships with 15 or more individuals for each working day in 20 or more weeks during the years in question." Id. at 211-12. An employer may have an employment relationship with an employee even if that employee did not work during a particular week "[A]ll one needs to know about a given employee for a given year is whether the employee started or ended employment during that year and, if so, when. He [or she] is counted as an employee for each working day after arrival and before departure."Id. at 211. The affidavit does not indicate the number of employees with whom defendant had an employment relationship during the relevant period. It is possible that even if only eight or 10 employees worked each day, defendant had employment relationships with 15 or more employees during the relevant time period. See Edwards v. Esau Invs. Inc., No. 93-4130-DES, 1994 WL 606073 (D. Kan. 1994) (rejecting defendant's contention that hourly part-time workers be counted only in weeks in which they were present on each working day; court counts such employees in weeks where they appear on payroll).
It does not appear that beyond a doubt, plaintiff can prove no set of facts in support of her claim that defendant is a Title Vn employer. Thus the Court cannot dismiss plaintiffs claims at this time. To the extent that defendant seeks summary judgment on the jurisdictional issue, the Court finds that plaintiff should be allowed to complete discovery before this important issue is resolved. When defendant filed its motion for summary judgment, discovery had just begun and plaintiff filed an affidavit under Rule 56(f), asking the Court to delay any summary judgment ruling on this issue until the parties had an opportunity to complete discovery on the issue whether Barleycorn's was an "employer" for purposes of Title VII. See, e.g., Dunn v. Tutera Group, 181 F.R.D. 653, 660 (D. Kan. 1998) (declining to dismiss case on issue of Title VII employer because discovery had barely begun and discovery in Title VII action is especially important) fating Brown v. Hartshorne Pub. Sch. Dist., 864 F.2d 680, 682 (10th Cir. 1988)).
IT IS THEREFORE ORDERED that Defendant's Motion To Dismiss Plaintiffs Complaint (Doc. #10) filed June 30, 2003, also construed as a motion for summary judgment, be and hereby is OVERRULED.