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Case 1:94-cv-00336-KAJ Document 439 Filed O3/11/2005 Page 1 pgéé I OM
82 Fed.Appx. 773 Page l
82 Fed.Appx. 773, 2003 WL 22998139 {3rd Cir.(Pa.))
(Cite as: 82 Fed.Appx. 773, 2003 WL 22998139 (3rd Cir.(Pa.}))
West Headnotes
Briefs and Other Related Documents
[1] Civil Rights €?·*1535
This case was not selected for publication in the 781:1535 Most Cited Cases
Federal Reporter.
· [1] Evidence €¤°78
NOT PRECEDENTIAL 1571:73 Most Cited Cases
Impropriety in employers record keeping,
Please use FIND to look at the applicable circuit specifically in documenting its employees and the
court rule before citing this opinion. Third Circuit hours they worked, did not warrant a presumption
Local Appellate Rule 28.3(a) and Internal tbatthe
Operating Procedure 5.3. (FIND CTA3 Rule 28.0 employer employed 15 or more people, as required
andC'l”A3 IOP APP I 5.3.) to be an "employer" for Title VII ptnposes, during
the relevant time periods. Civil Rights Act of 1964,
§ 701(b), 42 U.S.C.A. § 2000e{b).
United States Court of Appeals,
Third Circuit. [2] Civil Rights 6:*1111
Jane DOE, 7 Ski 111 Most Cited Cases
v. The 15-employee requirement contained in Title
GOLDSTEINS DELI; Daniel Dieffenbach; VII`s definition of "employer" is an element of a
Charles Welki (D.C. Civil No. 01-cv- plainti.f`fs' cause of action, rather than a
01324) jurisdictional requirement. Civil Rights Act of
Sarah Parrish, 1964, § 701(b), 42 U.S.C.A. § 2000e(b); Fed.Rules
v. Civ.Proc.Rule l2(b)(1), 28 U.S.C.A.
Goldstein's Deli; Daniel Dieflenbach; Charles *774 On Appeal Born the United States District
Welki (D.C. Civil No. 01-cv- Court for the Middle District of Pennsylvania.
01325) (D.C. Civil No. 01-CV-01324). (D.C. Civil No.
Jane DOE and Sarah PARRISH, Appellants. 01-CV-01325). District Judge: Hon. William J.
No. 02-1361. Nealon.
Argued Dec. 16,2002. Cynthia L. Pollick (Argued), 'I`he Employment Law
Decided Dec. 19, 2003. Firm, Pittston, PA, for Appellant.
Background: Employees sued employer and Kimberly D. Borland (Argued), Borland &.
individual defendants, alleging sexual harassment in Borland, Wilkes-Barre, PA, for Appellee.
violation of Title VH. The United States District
Court for the Middle District of Pennsylvania, Robert J. Gregory, Equal Employment Opportunity
William J. Nealon, J., dismissed, and employees Commission, Washington, DC, for
appealed. Amicus-Appellant.
Holding: The Court of Appeals, McKee, Circuit Before NYGAARD, ALITO and McKEE, Circuit
Judge, held that impropriety in employer's record Judges.
keeping did not warrant presumption that employer
employed 15 or more people. OPINION
Adirmed.
McKEE, Circuit Judge.
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82 Fed.Appx. 773, 2003 WL 22998139 (3rd Cir.(Pa.))
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**1 Jane Doe and Sarah Parrish appeal the district Cir.l977). "[A]t issue in a factual l2(b)(1) motion
courts dismissal of their Title VII suit against is the trial courts jurisdiction-its very power to hear
Goldsteirfs Deli, et ai. The district court dismissed the case .... " Io'. Therefore, a trial court has an
their complaint pursuant to Fed R. Civ. P. 12(b)(l). obligation to determine as a matter of law, if there is
For the reasons that follow, we will affirm the subject matter jurisdiction. While the facial attack
judgment ofthe court. offers the plaintiff the safeguard of requiring the
. court to consider the allegations of the complaint as
I. true, the factual attack allows the court to "weigh
Jane Doe and Sarah Parrish sued their employer, the evidence and satisfy itself as to the existence of ‘
Goldsteirfs Deli, Daniel Dieffenbach and Charles its power to hear the case." Mortensen, 549 F.2d at
Welki pursuant to Title VH of the Civil Rights Act 891. The court may consider and weigh evidence
of 1964, 42 U.S.C. § 2000e et seq., alleging sexual outside of the pleadings to answer the jurisdictional
harassment. The defendants moved for dismissal question. Gould Electronics Inc. v. United States,
under Fed.R.Civ.P. 12[b)[l), arguing that the 220 F.3d 169, 178 {3d Cir.2000) (citing Mortensen,
district court lacked subject matter jurisdiction 549 F.2d at 891). The plaintiff always bears the
because defendants did not fall within the definition burden of convincing the court, by a preponderance
of "employer" as required imder Title VII. Both of the evidence, that the court has jurisdiction. Id.;
parties conducted discovery, filed several briefs in see also McNair v. General Motors Acceptance
support of their positim and participated in an Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed,
evidentiary hearing involving fourteen witnesses 1135 (1936); Makarova v. United Stores, 201 F.3d
conducted over the course of four days. Following 110, 113 {2d Cir.2000). Here, plaintiffs argue that
those proceedings, the district court granted the they have satisiied that burden and that a
defendants motion to dismiss. This appeal preponderance of the evidence establishes that the
followed. [FNI] defendant is an "employer" for purposes of Title
VH. They therefore claim that the defendants
FN]. The complaint names three factual attack on their complaint should not have
defendants. However, the individual been sustained by granting the motion to dismiss.
defendants are named only because of their
interest in Goldstein's Deli; the employer **2 The district court reviewed the defendants
that allegedly discriminated. Accordingly, employment records for the 31 weeks at issue in
we will refer to the "defendant" in the 1999. This included the weeks of Iune 4, 1999 to
singular tbroughoutthis opinion. December 31, 1999. The court concluded that there
were, at most, only 13 weeks during that period
We have jurisdiction over this appeal pursuant to when the defendant employed 15 or more
28 U.S.C. § 1291. Om- review of a motion to employees. The court based its Endings upon the
dismiss is plenary. Stole Form Mutual Automobile testimony of several witnesses who were afhliated
Insurance Co. v. Covielio, 233 F.3d 710, 713 (3d with Goldsteirfs Deli during 1999. For example,
Cir.2000). We review the factual findings of the Deborah Silinski testified that she did not begin
district court for clear error. See *775Corpet working at die Deli until September 17, 1999, thus
Group Im"`! v. Orientoi Rug Importers Ass'n, 227 eliminating her as a potential employee for the
F.3d 62, 69-70 (3d Cir.2000) (explaining that "this weeks of June 25 through September 17. Daniel
Court reviews the District Courts Endings of Dieffenbac]1, a named defendant, was correctly
jurisdictional facts for clear error"). eliminated from consideration as an employee
because he was actually the employer in the sole
II. proprietorship. The court concluded that the
We begin by recognizing the crucial distinction testimony of Douglas Hurley and Dorothy Ciesla
between l2{b)(1) motions that present a facial precluded them from being considered "employees"
attack on the complaint and those that question the during signiticant portions of the relevant period as
existence of subject matter jurisdiction in fact, apart well, and the record supports that conclusion. [FN2]
from the pleadings. Mortensen v. First Federal The court viewed Anthony Roman's testimony in
Sov. ond Loon Assin, 549 F.2d 884, 891 (3d context with defendants check register to determine
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when Roman was actually paid. The court defendant failed to properly document its
concluded that he was not an employee prior to employees or the hours they worked, in violation of
September 17, 1999. state and federal labor statutes. They suggest that
they established that defendants record keeping was ‘
FN2. According to Doug Hurley's suspiciously inadequate during the period of the
testimony, he began working at Goldsteitfs alleged harassment and that this should have caused
Deli the week of June 4, 1999 and quit the court to draw an adverse inference in plaintiH`s'
working there on July I6, 1999, returning favor based on the absence of specific records. The
to employment on September 10, 1999 to argumenthas some force.
work until early October. Dorothy Cies1a's
testimony revealed that she worked at "When the contents of a document are relevant to
Goldstein's Deli from approximately the an issue in a case, the trier of fact generally may
final Week in May of 1999 until about July receive the fact of the doctnnenfs nonproduction or
ll, 1999 and returned to employment with destruction as evidence that the party that has
G0ldstein‘s for one week in October. prevented production did so out of the well-founded
fear that the contents would harm him." Brewer v.
Finally, the com found, based on her own Quaker Stare Oil Refining Corp., 72 F.3d 326, 334
testimony, that Candice Karis began work in mid (3d Cir.l995)(cit:ing Gumbs v. International
November of 1999. There was some testimony that Harvester, Inc., 718 F,2cl 88, 96 (3d Cir.1983);
defendant employed a worker named "Theresa" United States v. C}ierka.s·ky Meat C0., 259 F.2d 89
timing the relevant period. The court correctly (3d Cir.l95S)}. In order for this rule to apply, the
concluded that the record was insuiiicient *776 to evidence in question must be in the party‘s control
more specifically identity her or to support a finding and there must have been an actual suppression or
that she was an employee during the period in withholding of the evidence. Id. "No unfavorable
question. The court reached the same conclusion inference arises when circumstances indicate that
regarding an alleged employee named "Jason." the document or article in question has been lost or
Several witnesses could neither identify him by. last accidentally destroyed, or where the failure to
name nor verily when he actually worked at the produce it is otherwise properly accounted for." Id.
Deli. [FN3] After the court considered all of the Even assuming that the failure to keep adequate
evidence of record it concluded that the plaintiffs records of hourly employment constituted a
had not established that defendant had the requisite violation of law, [FN4] there is simply no evidence
number of employees for 18 weeks of the 31 weeks to suggest that the action was taken to gain some
at issue. The record only established a period of 13 lciud of advantage. In fact, during his deposition,
weeks when Goldstein‘s Deli employed 15 or more Daniel Dieffenbach explained that the records of
employees. As :1 result, the district court concluded hours worked were not kept for each employee
that the plaintiffs had failed to establish that the because it was not necessary to do so once a payroll
defendant was an "employer" for the purposes of check was issued and the transaction was recorded
Title VH. See 42 U.S.C. § 2000e(b), and dismissed inacheckbook register.
the complaint for lack of subject matter jurisdiction.
FN4. Plaiutijfs briefly point to the Fair
FN3. Although some witnesses Labor Standards Act., 29 USC § 206, and
remembered him as "Jason Buss," others the Pennsylvania Minimum Wage Act, 43
were only able to remember him as PS § 333.104 as requiring maintenance of
"Jason." The inconsistencies in payroll records. ‘While 29 C.F.R. §§
identilication and employment verification 516.201). 516.5(a) require that certain
rightfully gave tI1e court pause in crediting employment records be kept by an
his employment to any particular week. employer, the defendants failure to
produce them does not require the court to
[1] Doe and Parrish attempt to argue that the draw an adverse inference which would
district court erred in not presuming federal presume subject matter jurisdiction over
jurisdiction based upon their contention that this case. -
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**3 The district court was clearly critical of the question." Sharpe v. Jeferson Distributing Co.,
defendants record keeping. The court remarked: "I 148 F.3d 676, 678 (7th Cir.l998). Because, as
don*t think the defense can take any great comfort in noted, the District Court's findings of fact were not
that fmding, because I think the record is--is clearly erroneous we will affirm the judgment of the
muddled and perhaps there were many records that district court based upon plaintiffs inability to
if kept and made available would have-*777 may establish an element of thei.r Title VII cause of
possibly have supported plaintiffs case, but I can't action.
say it would have." App. at 930-31. We agree that
impropriety in the record keeping here does not 82 Fed.Appx. 773, 2003 WL 22993139 (3rd
bridge the void in plaintiffs proof Cir.{Pa.))
Finally, the plaintiffs contend that the district court Briefs and Other Related Documents (Back to
erred by "holding the Appellants to a stringent top)
standard in assessing a factual l2{`b){1) motion"
However, that argument is simply without merit. . 02-1361 (Docket)
Nothing suggests that the district court adopted an (Feb. 07, 2002)
incorrect standard of proof in reviewing this record.
In tact, the court made clear that it was applying END OF DOCUMENT
the preponderance of the evidence standard in
concluding that the plaintiffs failed to establish that
the defendant was an "emp1oyer" under Title V1].
App. at 21. That is the correct standard, and
plaintiffs have not established that the court's
pronouncement of that standard was other than an
explanation ofthe standard of proof it was adopting.
HI.
[2] After a careful review of the evidence, tl1e
district court concluded that plaintiffs had not
established that defendant was an "employer," as
required under Title VH. As noted above, the
district court believed that the 15 employee
requirement contained in the defmition of
"employer" was jurisdictional and therefore
dismissed the complaint for lack of subject matter
jurisdiction under Fed.R.Civ.P. l2(b)(1). However,
we have recently held that the 15 employer
requirement is an element of plaintiffs cause of
action, rather than a jurisdictional requirement See
Nesbit v. Gears Unlimited, Inc., 347 F.3d 72, 2003
WL 22390426, (3d Cir.2003) The district court
therefore erred in concluding that it did not have
subject matter jurisdiction. However, we conclude
that we can affirm on other grounds. Guthrie v.
Lady Jane Coliieries, Inc., 722 F.2d 1141, 1145 n.
l (3d Cin). Because the plaintiffs did not object to
the District Courts decision to hold evidentiary
hearings concerning whether Goldstein's was an
"employer" within the meaning of 42 U.S.C. §
2000e(b), "we approach the case as if [the
plaintiffs] had agreed to a bench trial of the
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