Thus, the factual dispute here is for the court to resolve. See Norman v. Levy, 767 F. Supp. 1441, 1443 (N.D.Ill. 1991) (finding that the court could consider conflicting evidence in determining whether the 15-employee minimum was met). Haavistola v. Community Fire Co. of Rising Sun, Inc., 6 F.3d 211 (4th Cir. 1993) is not to the contrary.

They disagree, however, on the status of part-time or hourly workers. Defendants maintain that the court is required to follow the method of counting employees set forth in Zimmerman v. North American Signal Co., 704 F.2d 347, 353-54 (7th Cir. 1983), and applied by this court in Norman v. Levy, 767 F. Supp. 1441, 1449 (N.D.Ill. 1991). The EEOC, on the other hand, argues that Zimmerman was wrongly decided and that the court should employ a different method for counting employees.

Id. (quoting Norman v. Levy, 767 F.Supp. 1441, 1449 (N.D. Ill. 1991)). Because Plaintiff alleges that Defendant violated Title VII in 2021, the Court must analyze whether Defendant had sufficient employees “for each working day in each of twenty or more calendar weeks in the current or preceding calendar year”-so here, in either 2020 or 2021.

Midwest maintains that it did not employ fifteen employees during 2013 and 2014. The plaintiff bears the burden of proving the number of employees her employer had, "including the duration of their employment, 'with some element of precision.'" Wilson v. Comtrust LLC, 249 F. Supp. 2d 993, 997 (N.D. Ill. 2003) (quoting Norman v. Levy, 767 F. Supp. 1441, 1449 (N.D. Ill. 1991)). In support of its motion, Midwest submitted a declaration from its office manager, Brenda Grams, who is responsible for maintaining personnel records for Midwest. ECF No. 19-1, ¶¶ 1-2. Grams states in her declaration that she compiled the full employment records for Midwest for calendar years 2013 and 2014.

A plaintiff "bears the burden of proving the number of employees, including the duration of their employment, ‘with some element of precision.’ " Wilson v. Comtrust LLC, 249 F.Supp.2d 993, 997 (N.D.Ill.2003) (quoting Norman v. Levy, 767 F.Supp. 1441, 1449 (N.D.Ill.1991) ). "Courts consistently have held that the phrase ‘current calendar year’ refers to the year in which the alleged discrimination occurred."

Plaintiff bears the burden of proving the number of employees, including the duration of their employment, "with some element of precision." Norman v. Levy, 767 F. Supp. 1441, 1449 (N.D. Ill. 1991). The Seventh Circuit addressed a similar issue in Ost v. West Suburban Travelers Limosine, Inc., 88 F.3d 435, 439 (7th Cir. 1996).

The Defendant cites on page 26-27 of its supporting memorandum to Burke v. Friedman, 556 F.2d 867 (7th Cir.1977); Rogers v. Sugar Tree Products, Inc., 824 F.Supp. 755 (N.D.Ill.1992) ( aff'd, 7 F.3d 577 (7th Cir.1993)); Norman v. Levy, 767 F.Supp. 1441 (N.D.Ill.1991); Holland v. Ernst & Whinney, 44 Fair Empl. Prac. Cas. (BNA) 474, 1984 WL 1069 (1984); Bonomo v. National Duckpin Bowling Congress, Inc., 469 F.Supp. 467 (D.Md.1979). In Holland the plaintiff admitted in his complaint that he was a partner of the defendant-not an employee.

Resolution of the Defendant's motion to dismiss for want of subject matter jurisdiction hinges upon first determining who is considered an "employee" under Title VII, and second, whether or not the Bank had fifteen or more employees during either 1989 or 1990. See Norman v. Levy, 767 F. Supp. 1441, 1443 (N.D.Ill. 1991); see also Nationwide Mutual Insurance Co. v. Darden, ___ U.S. ___, ___, 112 S.Ct. 1344, 1348, 117 L.Ed.2d 581 (1992). Specifically, Lattanzio alleges that five individuals, Carolyn Gibbs, James J. Lennon, Howard E. Kalis, III, Robert Hartenstine and Joseph M. Wheeler should be considered "employees" under Title VII.

Those principles apply to a Title VII sex discrimination case raising, as here, the factual issue of the requisite number of fifteen employees. See Norman v. Levy, 767 F. Supp. 1441, 1443 (N.D.Ill. 1991) (quoting the above passage from Mortensen, together with citations to similar cases in the Seventh Circuit.). Attached to plaintiff's brief in opposition to the motion of Local 401 to dismiss is plaintiff's own affidavit and a copy of the International's constitution. (filed Doc. No. 4, Exs. A B). The facts relevant to both the motion to dismiss and the motion for judgment do not appear to be in serious dispute or contention. Plaintiff first contends that her affidavit and the materials submitted by defendants establish that the instructors for the Apprentice Training Program were employees of Local 401 for the purpose of determining if the statutory minimum of fifteen employees existed during the relevant time.