Bluff's Vision Clinic, P.C. v. Krzyzanowski

• Decision Date: 15 November 1996
• Docket Number: No. S-94-787,S-94-787
• Citation: 555 N.W.2d 556,251 Neb. 116
• Parties: , 72 Fair Empl.Prac.Cas. (BNA) 1042 BLUFF'S VISION CLINIC, P.C., Appellee, v. Susan KRZYZANOWSKI, Appellant.
• Court: Nebraska Supreme Court

Page 556

555 N.W.2d 556

251 Neb. 116, 72 Fair Empl.Prac.Cas. (BNA) 1042

BLUFF'S VISION CLINIC, P.C., Appellee, v. Susan KRZYZANOWSKI, Appellant.

No. S-94-787.

Supreme Court of Nebraska.

Nov. 15, 1996.

Syllabus by the Court.

1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question that does not involve a factual dispute is a matter of law; therefore, an appellate court reaches a conclusion independent from that of the trial court.

2. Federal Acts: Civil Rights: Fair Employment Practices. Because the Nebraska Fair Employment Practice Act is patterned after title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1994), it is appropriate to consider federal court decisions construing similar federal legislation.

3. Fair Employment Practices. In determining whether an entity has the requisite number of employees to qualify as an employer, federal courts have looked to (1) the actual number of employees the entity has for the time period in question and (2) whether the entity is sufficiently related to another entity so that combining the two would result in the requisite number of employees.

4. Fair Employment Practices. Before reaching the issue of whether to combine entities for identifying the number of employees to qualify as an employer, a determination must be made as to whether the entity in question has enough employees to meet the statutory requirement in and of itself. In making this determination, federal courts have generally agreed that part-time employees may be counted.

5. Fair Employment Practices: Words and Phrases. The payroll method of identifying the number of employees to qualify an as employer counts an employee on a given day if he or she was on the payroll that day. An employee does not have to physically report to work each day in order to be counted toward the jurisdictional prerequisite.

6. Fair Employment Practices: Words and Phrases. The workplace method of identifying the number of employees to qualify as an employer focuses on the statutory language "for each working day." Under this method, an employee is only counted toward the jurisdictional prerequisite if he or she physically reported to work that day or was on paid leave from work.

7. Federal Acts: Civil Rights: Fair Employment Practices. The payroll method of identifying the number of employees to qualify as an employer is considered to be more consistent with the remedial purpose of title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1994).

Tylor J. Petitt, of Van Steenberg, Chaloupka, Mullin, Holyoke, Pahlke, Smith, Snyder & Hofmeister, P.C., Scottsbluff, for appellant.

James M. Worden and Howard W. Olsen, Jr., of Simmons, Olsen, Ediger, Selzer, Ferguson & Carney, P.C., Scottsbluff, for appellee.

WHITE, C.J., and CAPORALE, LANPHIER, WRIGHT, CONNOLLY, and GERRARD, JJ., and RIST, District Judge.

LANPHIER, Justice.

Appellant Susan Krzyzanowski filed a complaint against her employer, appellee Bluff's Vision Clinic, P.C. (Bluff's), for employment discrimination pursuant to the Nebraska Fair Employment Practice Act (Act), Neb.Rev.Stat. § 48-1101 et seq. (Reissue 1993). After a hearing, the Nebraska Equal Opportunity Commission (NEOC) found that Bluff's was an "employer" as defined in the Act, because it and a "related" entity, The Meat Shoppe, Inc., together employed the statutory requisite of 15 or more people each week during the time period in question. Bluff's appealed to the district court, which found that Bluff's was not an "employer" because it did not employ 15 people and that combining it with the other entity was improper. At issue is the method of counting employees: the "payroll" method, the count of those on the payroll each day, or the "workplace" method, the count of those who actually show up to work each day. Krzyzanowski appealed to the Nebraska Court of Appeals, which found that by using the payroll method, Bluff's did meet the statutory definition of "employer." Bluff's Vision Clinic v. Krzyzanowski, 4 Neb.App. 380, 543 N.W.2d 761 (1996). Bluff's petitioned for further review of that order. We conclude, by also using the payroll method, that Bluff's is an employer under the Act and thus the NEOC had jurisdiction. The judgment of the Court of Appeals is therefore affirmed.

BACKGROUND

On June 21, 1993, Krzyzanowski filed a complaint with the NEOC, charging Bluff's with employment discrimination on the basis of gender and with retaliation. Bluff's moved to dismiss the complaint for lack of jurisdiction, stating that they were not an "employer" as defined in the Act.

A hearing was held on the motion. On October 27, 1993, the NEOC hearing examiner denied Bluff's motion to dismiss. The NEOC hearing examiner then held a public hearing, and on February 25, 1994, the examiner ruled that the NEOC had jurisdiction because Bluff's met the statutory definition of employer under the Act. The Act defines employer in part as "a person engaged in an industry 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." § 48-1102(2). Bluff's employed 15 or more people each week during the time period in question, but some of the employees were only part-time workers.

During the first quarter of 1991, Bluff's employed 11 full-time employees and 5 part-time employees. However, at least three part-time employees did not work 2 days of each week. Thus, even though Bluff's paid more than 15 people for each of these weeks, Bluff's did not have 15 people working on at least 2 days of these weeks. The same type of result occurs for the remaining quarters of 1991 and 1992. Bluff's Vision Clinic v. Krzyzanowski, supra.

The NEOC hearing examiner did not specifically address the method of counting part-time workers, but held that Bluff's did not employ the requisite 15 employees. However, the examiner held that Bluff's could be consolidated with another entity, The Meat Shoppe, and that by counting the employees of both entities, there was jurisdiction. The examiner for the NEOC further held that Bluff's had intentionally discriminated against Krzyzanowski. On March 4, 1994, the NEOC ordered that the hearing examiner's findings and conclusions be entered as the official final order of the NEOC.

On April 1, 1994, Bluff's filed an appeal of the NEOC's decision to the district court for Scotts Bluff County. One of the issues on appeal was the conclusion by the NEOC that it had jurisdiction over the parties. On July 27, the district court for Scotts Bluff County reversed the NEOC's decision and dismissed Krzyzanowski's complaint, stating that there was not sufficient evidence to indicate Bluff's was an employer so as to obtain jurisdiction in the NEOC and that the combination of entities was not proper.

Krzyzanowski appealed the district court's decision on jurisdiction to the Court of Appeals. The Court of Appeals applied the payroll theory of counting part-time employees, and reversed the decision of the district court and remanded the matter for further proceedings. Bluff's Vision Clinic v. Krzyzanowski, supra. It is from this order that Bluff's petitions for further review.

ASSIGNMENTS OF ERROR

Krzyzanowski asserts that the district court erred in its determination that the NEOC lacked jurisdiction to resolve the parties' dispute.

In its petition for further review, Bluff's asserts that (1) the Court of Appeals erred in applying the payroll theory of counting employees because that issue was not argued before the district court and (2) the Court of Appeals erred in adopting the payroll theory for counting part-time employees.

STANDARD OF REVIEW

A jurisdictional question that does not involve a factual dispute is a matter of law; therefore, an appellate court reaches a conclusion independent from that of the trial court. In re Interest of Krystal P. et al., 248 Neb. 905, 540 N.W.2d 316 (1995); In re Interest of Alex T. et al., 248 Neb. 899, 540 N.W.2d 310 (1995); Jones v. State, 248 Neb. 158, 532 N.W.2d 636 (1995).

ANALYSIS

Bluff's denies that the NEOC has jurisdiction because Bluff's does not qualify as an "employer" as defined in § 48-1102. Bluff's further argues that it does not meet the definition of "employer" because it does not employ the requisite number of employees. Krzyzanowski, however, argues that Bluff's does meet the definition of "employer" because (1) part-time employees should be counted toward the jurisdictional prerequisite or, alternatively, (2) The Meat Shoppe should be combined with Bluff's because the two entities are sufficiently interrelated.

Bluff's argues that the Court of Appeals erred in applying the payroll theory to determine whether it was an "employer" because the only issue before that court was whether combining the entities was proper. However, the determination of "employer" for purposes of the Act is a jurisdictional question and thus a matter of law. In deciding a matter of law, we reach a conclusion independent from that of the trial court on the jurisdictional issue. In re Interest of Krystal P. et al., supra; In re Interest of Alex T. et al., supra; Jones v. State, supra.

In order for the NEOC to have jurisdiction, Bluff's must meet the definition of "employer" under the Act. Employer is defined as "a person engaged in an industry 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." § 48-1102. Because the Act is patterned after title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1994), it is appropriate to consider federal court decisions construing similar federal legislation. City of Fort Calhoun v. Collins, 243 Neb. 528, 500 N.W.2d 822 (1993); Airport Inn v. Nebraska Equal Opp. Comm., 217 Neb. 852, 353 N.W.2d 727 (1984); Zalkins Peerless Wiping Co. v. Nebraska Equal Opp. Comm., 217 Neb. 289, 348 N.W.2d 846 (1984).

In determining...