E.E.O.C. v. St. Francis Xavier Parochial School, 96-5239

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Citation: 117 F.3d 621,326 U.S. App. D.C. 67
• Docket Number: No. 96-5239,96-5239
• Parties: , 38 Fed.R.Serv.3d 532, 120 Ed. Law Rep. 915, 6 A.D. Cases 1720, 23 A.D.D. 43, 10 NDLR P 229 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Appellant, v. ST. FRANCIS XAVIER PAROCHIAL SCHOOL and St. Francis Xavier Church, Appellees.
• Decision Date: 18 July 1997

Page 621

117 F.3d 621 326 U.S.App.D.C. 67, 38 Fed.R.Serv.3d 532,
120 Ed. Law Rep. 915,
6 A.D. Cases 1720, 23 A.D.D. 43, 10
NDLR P 229 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Appellant,
v.
ST. FRANCIS XAVIER PAROCHIAL SCHOOL and St. Francis Xavier
Church, Appellees. No. 96-5239. United States Court of Appeals,
District of Columbia Circuit. Argued March 25, 1997.
Decided July 18, 1997.

Page 622

[326 U.S.App.D.C. 68] Appeal from the United States District Court for the District of Columbia (No. 94cv00314).

Barbara L. Sloan, Attorney, Equal Employment Opportunity Commission, Washington, DC, argued the cause for the appellant. J. Ray Terry, Jr., Deputy General Counsel, Equal Employment Opportunity Commission, Memphis, TN, was on brief.

Anthony P. Interdonato, Washington, DC, argued the cause for the appellees. James T. Reilly was on brief.

Before: SENTELLE and HENDERSON, Circuit Judges, and BUCKLEY, Senior Circuit Judge.

Opinion for the court filed by Circuit Judge KAREN LeCRAFT HENDERSON.

Separate concurring opinion filed by Circuit Judge SENTELLE.

KAREN LeCRAFT HENDERSON, Circuit Judge:

In a complaint naming two defendants--St. Francis Xavier Parochial School (School) and St. Francis Xavier Church (Church)--the Equal Employment Opportunity Commission (EEOC) initiated an action alleging violations of the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 (ADA). The district court dismissed the case for lack of subject matter jurisdiction because the School (where the alleged discriminatory acts took place) did not have enough employees to be covered under the ADA. In so holding, the district court rejected the EEOC's argument that the employees of the School and the Church, along with the employees of the non-party St. Francis Xavier Day Care Center (Day Care Center), should be aggregated in determining coverage under the ADA. Because coverage under the ADA forms an element of the plaintiff's cause of action rather than a prerequisite to the district court's jurisdiction, the district court erred in dismissing the case for lack of jurisdiction. Although we would be free to affirm the district court (assuming we agreed there were insufficient employees for ADA coverage), on the different legal ground of failure to state a claim, we decline to do so. At this stage of the litigation it is not possible to determine if the employees of the School, the Church and the Day Care Center should be considered together or, as the district court concluded, separately. Accordingly, dismissal was premature

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[326 U.S.App.D.C. 69] and we reverse and remand for further proceedings.

I.

In August 1992 the School placed an advertisement in the Washington Post for the position of part-time music teacher. Roberta Stein, who suffers from multiple sclerosis and is confined to a wheelchair, telephoned the School to inquire about the position. The content of the ensuing conversation is in dispute. Stein claims that Mildred Sherill, the School principal's secretary, first scheduled an interview with Stein but then canceled it after Stein inquired whether the building was wheelchair accessible. The School and the Church claim that the position had already been filled at the time Stein called and that, although Stein was told the building was not wheelchair accessible, this fact had nothing to do with her not being interviewed.

In February 1994 the EEOC filed an action claiming that the School and the Church had violated the ADA by failing to reasonably accommodate Stein in failing to provide a wheelchair-accessible interview site, 42 U.S.C. § 12112(b)(5)(A), and by discriminatorily refusing to hire Stein on the basis of her disability, 42 U.S.C. § 12112(a). In their Answer and Pre-Trial Statement, the School and the Church claimed they did not have the requisite 25 employees to be considered an "employer" under the ADA. ¹ Before trial the district court directed the parties to submit briefs on ADA coverage. In its briefs to the district court, the EEOC contended that the employees of the School should be aggregated with the employees of the Church and the employees of the non-party Day Care Center. The district court treated the briefs of the School and the Church as a motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Concluding that the employees should not be aggregated and that, even if they were, the 25 employee threshold would still not be met, the district court vacated the previously established trial dates and dismissed the case for lack of subject matter jurisdiction.

On appeal the EEOC argues that the district court erred in failing to aggregate the employees of the School, the Church and the Day Care Center. If the employees are aggregated, then, according to the EEOC, the 25 employee threshold will be met.

II.

The question whether the School and the Church have enough employees to be covered under the ADA does not affect the jurisdiction of the district court. Because the claim arises under the laws of the United States and is neither "immaterial and made solely for the purpose of obtaining jurisdiction" nor "wholly insubstantial and frivolous," Bell v. Hood, 327 U.S. 678, 682-83, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946), the district court has federal question jurisdiction pursuant to 28 U.S.C. § 1331. Dismissal under Rule 12(b)(1) was therefore erroneous.

We acknowledge that at least three circuits have treated the question whether an employer has sufficient employees to be covered under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (Title VII), ²

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[326 U.S.App.D.C. 70] as jurisdictional. McKenzie v. Davenport-Harris Funeral Home, 834 F.2d 930, 932-33 (11th Cir.1987); Armbruster v. Quinn, 711 F.2d 1332, 1335 (6th Cir.1983); Dumas v. Town of Mount Vernon Alabama, 612 F.2d 974, 979-80 (5th Cir.1980); see also Rogers v. Sugar Tree Prod., Inc., 7 F.3d 577, 579 (7th Cir.1993) (treating required number of employees under Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634, AS JURISDICTIONAL). NEVERTHELESS, NONE OF THE COUrts has explained whY the question is jurisdictional. Nothing in Title VII (or the ADA) expressly limits the district court's subject matter jurisdiction. More important, circuit precedent points in the opposite direction. In Haddon v. Walters, 43 F.3d 1488 (D.C.Cir.1995), we addressed an analogous coverage issue under Title VII. In Haddon a chef employed at the White House brought a Title VII claim against the White House Chief Usher. Whether the plaintiff was a covered employee under Title VII turned on whether the White House qualified as an "executive agenc[y] as defined in section 105 of Title 5." 42 U.S.C. § 2000e-16(a). The district court dismissed the case for lack of subject matter jurisdiction on the ground that the White House did not qualify as an executive agency within the meaning of section 2000e-16. We agreed that the White House did not qualify but rejected the district court's conclusion that it lacked jurisdiction. In so concluding, we relied on the Supreme Court's statement in Bell v. Hood, 327 U.S. at 682, 66 S.Ct. at 776:

Jurisdiction ... is not defeated ... by the possibility that the averments might fail to state a cause of action on which petitioners could actually recover.... Whether the complaint states a cause of action on which relief could be granted is a question of law and just as issues of fact it must be decided after and not before the court has assumed...