Opinion
MO-00-CA-018
March 15, 2001
ORDER DISMISSING PLAINTIFF'S CLAIMS DUE TO LACK OF SUBJECT MATTER JURISDICTION
Before the Court are the Defendant's First Amended Motion for Summary Judgment and the Defendant's Supplemental Motion for Summary Judgment, filed with the Court on December 19, 2000 and January 19, 2001, respectively. No response was filed by the Plaintiff. After due consideration, the Court is of the opinion that it does not have subject matter jurisdiction over the Plaintiff's claims, and therefore the above-captioned case should be DISMISSED.
PROCEDURAL HISTORY
This case was filed on February 15, 2000. The Plaintiff filed an Amended Complaint on September 1, 2000. On November 15, 2000, the Plaintiff's attorney filed a Motion to Withdraw as Counsel on the grounds that the Plaintiff had failed to pay her attorney's fees. The Court granted the Motion to Withdraw at a hearing on December 15, 2000, and entered an Order to that effect on December 18, 2000. On February 7, 2001, the Court entered an Order requiring the Plaintiff to retain new counsel by February 20, 2001. Plaintiff failed to hire a lawyer by February 20, and Defendant's First Amended Motion for Summary Judgment consequently remained unopposed.
FACTUAL BACKGROUND
The Defendant is a product distributor of Kirby vacuum cleaners. See Robertson Aff. at 1. From April 22, 1999 to May 28, 1999, the Plaintiff contracted with the Defendant to be an independent dealer selling Kirby vacuum cleaners door to door. See Def.'s First Am. Mot. Summ. J. Ex. 3. The Plaintiff alleges that she was sexually harassed by another independent dealer named Rene Espinoza throughout the duration of her association with the Defendant. The alleged sexual harassment was in the form of offensive touching and propositioning. See Pl.'s First Am. Compl. at 3. The Plaintiff also alleges that she complained to the President of Robertson Sales Service, Inc., Mr. Reggy Robertson, on May 27, 1999, the day before she alleges she was fired. The undisputed evidence indicates, however, that the Plaintiff voluntarily ceased functioning as an independent dealer for the Defendant; she returned the vacuum cleaners in her possession and simply stopped showing up. See Hollander Dep. at 77-78, 83-84.
The Plaintiff apparently filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) on October 7, 1999. She received a notice of right to sue from the EEOC by letter dated January 31, 2000. The Plaintiff then brought the instant action in federal court.
DISCUSSION
The Plaintiff alleges four causes of action in her First Amended Complaint. The first is a claim for discrimination on the basis of sex in the form of the sexual harassment allegedly endured by the Plaintiff during her association with the Defendant. The second cause of action alleges retaliation for the Plaintiff's reporting the alleged sexual harassment to the Defendant's President, Mr. Robertson. The third claim alleged "offensive or provocative physical contact" under the Texas Penal Code; by Court Order dated December 18, 2000, this cause of action was dismissed for failure to state a claim upon which relief can be granted and construed instead as a claim for the intentional tort of assault. Finally, Plaintiff's fourth cause of action alleges intentional infliction of emotional distress.
In its Amended Motion for Summary Judgment, the Defendant questions this Court's jurisdiction over the Plaintiff's Title VII claims. Before the Court can reach the merits of the Plaintiff's claims, it is obligated to determine jurisdictional questions. See, e.g., Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574 (1999). Indeed, even if the parties remain silent, a federal court "is obliged to notice on its own motion the want of its own jurisdiction." 13 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3522 (2d ed. 1984). Because the Plaintiff seeks to invoke the jurisdiction of this Court, she has the burden of showing that her case is within its subject matter jurisdiction; in the absence of such a showing, it is presumed that the Court lacks subject matter jurisdiction over the case. See generally id.
The Fifth Circuit has expressed doubt as to "the propriety of summary judgment as a tool for disposing of a case on jurisdictional grounds when the district court does not actually purport to address the merits of the parties' dispute," unless the jurisdictional question is "inextricably intertwined" with the merits of the case. Gaspard v. Amerada Hess Corp., 13 F.3d 165, 168 (5th Cir. 1994). Thus, technically the proper vehicle for a challenge to the Court's subject matter jurisdiction in this case would have been a motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure. However, "in keeping with the policy set forth in Rule 12(h)(3) of preserving the defense, a lack of subject matter jurisdiction may be asserted at any time by any interested party, either in the answer, or in the form of a suggestion to the court prior to final judgment." 5A CHARLES ALAN WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1350 (2d ed. 1990) (footnotes omitted). Moreover, "[b]ecause of the importance of the Rule 12(b)(1) defense, courts should treat an improperly identified motion that actually challenges the court's authority or competence to hear the action as if it properly raised the jurisdictional point" Id. (footnote omitted). Professors Wright and Miller therefore specifically recommend treating a motion for summary judgment in this context as a "suggestion" of lack of subject matter jurisdiction. Id. The Court agrees with this thoughtful approach.
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., makes it unlawful for an employer to discriminate against an individual on the basis of sex with respect to the compensation, terms, conditions, or privileges of the individual's employment. See 42 U.S.C. § 2000e-2(a) (1994). An "employer" is defined 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, and any agent of such a person. . . ." Id. § 2000e(b). A corporation qualifies as a "person" for purposes of the definition of "employer." See id. § 2000e(a).
The Plaintiff's first two causes of action are brought against the Defendant, a corporation, pursuant to Title VII. Since the Defendant is being sued in its capacity as an employer, the Court must first determine whether the statutory definition of "employer" is satisfied. See Greenlees v. Eidenmuller Enters., Inc., 32 F.3d 197 (5th Cir. 1994). In the Fifth Circuit, this is a jurisdictional question. See id.; accord Scarfo v. Ginsberg, 175 F.3d 957 (11th Cir. 1999); Childs v. Local 18, International Brotherhood of Electrical Workers, 719 F.2d 1379 (9th Cir. 1983); Armbruster v. Quinn, 711 F.2d 1332 (6th Cir. 1983); contra Da Silva v. Kinsho Int'l Corp., 229 F.3d 358 (2d Cir. 2000); Ost v. West Suburban Travelers Limousine, 88 F.3d 435 (7th Cir. 1996). Thus, if Defendant Robertson Sales Service, Inc. does not qualify as an employer within the meaning of § 2000e(b), the Court must dismiss the Title VII claims for lack of subject matter jurisdiction.
Because the alleged sexual harassment and retaliation in this case occurred in 1999, the relevant time periods to be examined are 1999 and 1998. The Defendant argues that it had only four true employees: Reggy Robertson, President of Robertson Sales Service, Inc.; Donna Robertson, wife of Reggy Robertson; Jody Robertson; and Cody Robertson. See Robertson Aff. at 2. Since all other workers associated with Robertson Sales Service, Inc. were "independent dealers" who contracted with the company pursuant to an "independent dealer agreement," the Defendant argues that they should not be counted as employees for the purposes of § 2000e(b).
Assuming arguendo that the independent dealers were, in fact, the Defendant's employees (as opposed to independent contractors), the Court nevertheless finds that Robertson Sales Service, Inc. does not meet the statutory definition of an employer. In particular, an examination of the Defendant's records of all independent dealers associated with the company during 1999 and 1998 indicates that: (1) during 1999, there were at most 19 calendar weeks in which the Defendant had fifteen or more employees (including Reggy, Donna, Jody, and Cody Robertson) for each working day in a week; (2) during 1998, there were no calendar weeks in which the Defendant had fifteen or more employees for each working day in a week. See Def.'s First Am. Mot. Summ. J. Ex. 5 at 1-24. In arriving at these figures, the Court did not count toward the statutory minimum any independent dealer who either started or stopped working for the Defendant in the middle of a calendar week. See Walters v. Metropolitan Educ. Enters., Inc., 519 U.S. 202, 209 (1997) (explaining counting rules and clarifying that, pursuant to "for each working day" language in § 2000e(b), part-week employees do not count toward statutory minimum).
Thus, because the Defendant does not qualify as an employer under Title VII, the Court must dismiss the Plaintiff's sexual harassment and retaliation claims for lack of subject matter jurisdiction. See FED. R. CIV. P. 12(h)(3); see also Greenlees, 32 F.3d at 199-200 (affirming district court's dismissal of Plaintiff's Title VII claim due to lack of subject matter jurisdiction). The Court is then left only with the Plaintiff's state law claims for assault and intentional infliction of emotional distress. Lacking an independent basis for jurisdiction over these causes of action, the Court dismisses them as well. Cf Avitts v. Amoco Prod. Corp., 53 F.3d 690 (5th Cir. 1995) (directing district court to remand state law claims to state court after determining that district court lacked subject matter jurisdiction); Rhyne v. Henderson County, 973 F.2d 386, 395 (5th Cir. 1992) (district court's dismissal of state law claims was proper following dismissal of all federal questions that gave it original jurisdiction); see also Scarfo v. Ginsberg, 175 F.3d 957 (11th Cir. 1999) (district court's retention of jurisdiction over plaintiff's state law claims was improper after determining that subject matter jurisdiction over plaintiff's Title VII claims did not exist).
CONCLUSION
For the stated reasons, the Court finds that it lacks subject matter jurisdiction in the above numbered and-styled cause. Accordingly,
It is ORDERED that the above-captioned case is DISMISSED WITHOUT PREJUDICE.