Keller v. Niskayuna Consol. Fire Dist. 1

• Citation: 51 F.Supp.2d 223
• Decision Date: 08 June 1999
• Docket Number: No. 97-CV-262 (LEK/DRH).,97-CV-262 (LEK/DRH).
• Parties: Carol J. KELLER, Plaintiff, v. NISKAYUNA CONSOLIDATED FIRE DISTRICT 1; Board of Fire Commissioners of Niskayuna Consolidated Fire District 1; the Schenectady County Civil Service Commission; and Joseph Battiste, Individually and as Chief of Niskayuna Consolidated Fire District 1, Defendants.
• Court: U.S. District Court — Northern District of New York

51 F.Supp.2d 223

Carol J. KELLER, Plaintiff, v. NISKAYUNA CONSOLIDATED FIRE DISTRICT 1; Board of Fire Commissioners of Niskayuna Consolidated Fire District 1; the Schenectady County Civil Service Commission; and Joseph Battiste, Individually and as Chief of Niskayuna Consolidated Fire District 1, Defendants.

No. 97-CV-262 (LEK/DRH).

United States District Court, N.D. New York.

June 8, 1999.

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Harris, Beach & Wilcox, L.L.P., Albany, NY, Mark J. McCarthy, of counsel, for plaintiff.

Schenectady County Attorney's Office, Schenectady, NY, Robert A. DePaula, of counsel, for defendant Schenectady County Civil Service Commission.

Gordon, Siegel, Mastro, Mullaney, Gordon & Galvin, P.C., Schenectady, NY, Joan L. Matthews, Ass't Attorney General, of counsel, for remaining defendants.

MEMORANDUM-DECISION AND ORDER

KAHN, District Judge.

Presently before the Court is a motion brought by defendants Niskayuna Consolidated Fire District 1 ("Fire District"), Board of Fire Commissioners of Niskayuna Consolidated Fire District 1 ("the Board of Fire Commissioners") and Joseph Battiste ("Battiste") (hereinafter collectively referred to as "defendants") pursuant to Fed.R.Civ.P. 12(b)(1) to dismiss plaintiff's first cause of action. This claim alleges that defendants engaged in sex discrimination in their hiring practices in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e, et seq. (1988). The defendants argue that jurisdiction is lacking because the Fire District is not an "employer" within the meaning of Title VII.

By Order filed on October 21, 1998, this Court found that discovery should be allowed on the jurisdictional issue and referred the action to Magistrate Judge David R. Homer. Discovery has now been completed, and the defendants have filed further evidence in support of their motion. Plaintiff has not filed any further submissions in opposition.

It is noted that plaintiff objects to defendants' reliance on matters outside the complaint in support of their motion to dismiss. When subject matter jurisdiction is challenged under Rule 12(b)(1), evidentiary matter may be presented in support of the motion by affidavit or otherwise. See Kamen v. American Tel. & Tel. Co., 791 F.2d 1006, 1010 (2d Cir.1986). Further, a court may resolve disputed jurisdictional fact issues, so long as those issues are sufficiently independent of the merits of plaintiff's underlying allegations. See Antares Aircraft v. Federal Republic of Nigeria, 948 F.2d 90, 96 (2d Cir.1991); Lawrence v. Dunbar, 919 F.2d 1525, 1529-30 (11th Cir.1990) (per curiam) (holding that where jurisdiction is "inextricably intertwined" with the merits of the lawsuit, such that a decision on one would effectively decide the factual issues of the other, court may not resolve factual dispute).

Plaintiff argues that the defendants' motion, which asserts that the Fire District is not a Title VII employer, does not involve a jurisdictional question. However, the Supreme Court referred to the term "employer" as it is used in Title VII as "jurisdictional." See E.E.O.C. v. Arabian American Oil Co., 499 U.S. 244, 248-49, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991). Further, one court in this Circuit has expressly held that

[i]n order to permit a court to exercise jurisdiction over a defendant in a Title VII case, the defendant must meet the statutory definition of an "employer."

Serrano v. 900 5th Avenue Corp., 4 F.Supp.2d 315, 316 (S.D.N.Y.1998); see also Guadagno v. Wallack Ader Levithan Assoc., 932 F.Supp. 94, 96 (S.D.N.Y.1996) (holding that "employer" definition must be satisfied for the court to have jurisdiction). Thus, defendants' motion to dismiss does present a question of subject matter jurisdiction and is properly brought under Fed.R.Civ.P. 12(b)(1).

It is also clear that any disputed factual issues may be resolved at this time since the jurisdictional question is independent of the merits of plaintiff's discrimination claim. Defendants' jurisdictional argument depends, as discussed more fully below, on whether the Fire District had at least fifteen employees during the relevant period, not on whether there have been any discriminatory hiring practices. In sum, it is appropriate to consider the submitted evidence and to resolve disputed fact issues underlying the jurisdictional question. It is further noted that the burden of proving jurisdiction is on the party asserting it. Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir.1994).

II. Background

The Fire District is both a political subdivision and an incorporated entity within the Town of Niskayuna, New York. The Board of Fire Commissioners is its governing body. Battiste, the Fire District Chief, is charged with the direction and oversight of operations including the provision of fire and paramedic service within the relevant geographic area.

Plaintiff alleges that since 1987, she has repeatedly applied for a job with the defendants as a paid firefighter/paramedic. She further alleges that she has taken the Civil Service eligibility test on three occasions and passed each time. On two occasions, she was interviewed. However, she has not yet been offered a position. She alleges that defendants did not offer her a job because of her gender.

II. Discussion

The Title VII prohibition on employment discrimination applies to any employer 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." 42 U.S.C. § 2000e(b) (1988). The "[c]urrent or preceding calendar year" referred to are the years current to and preceding the year of the alleged discrimination. Guadagno, 932 F.Supp. at 96. In this case, that year was 1995. See Matthews Aff.Ex. A.

In support of their motion, defendants argue that only eleven persons were on the payroll in 1994 and 1995. Plaintiff argues that, in addition to these eleven, the Fire District also employed four individuals serving as Treasurer, Secretary, Attorney and Fire Surgeon, five individuals serving on the Board of Commissioners and a number of volunteer firefighters. Defendants counter that the Treasurer, Secretary, Attorney and Fire Surgeon are independent contractors, not employees, and that the other parties, because they are unpaid volunteers, also do not qualify as employees. These arguments are addressed below.

A. Independent Contractors

The defendants assert that the four parties employed by the Fire District as Treasurer, Secretary, Attorney and Fire Surgeon are independent contractors, not employees. It is established that the scope of the term "employee" as it is used in Title VII, is determined by reference to common law agency principles. See Frankel v. Bally, Inc., 987 F.2d 86, 90 (2d Cir.1993). Thus, a party which is found to be an "independent contractor," as that term is understood by the common law of agency, is not an "employee" for Title VII purposes. See O'Connor v. Davis, 126 F.3d 112, 115 (2d Cir.1997).

This Court notes that, because it is undisputed that defendants have only eleven individuals on the payroll, plaintiff must either demonstrate that all four individuals alleged to be independent contractors are in fact employees or else show that the volunteer workers are employees in order to meet the fifteen employee requirement. For the reasons given below, this Court concludes that at least three of the four positions are independent contractors. Plaintiff's Title VII claim must therefore be dismissed unless it is found that either the Commissioners or the volunteer firefighters are properly considered to be employees.

In Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751-52, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989), the Supreme Court set out a number of factors relevant to the determination of whether a hired party is an employee or an independent contractor under the common law of agency:

In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.

Id.; see also Aymes v. Bonelli, 980 F.2d 857, 860-61 (2d Cir.1992) (applying Reid test); O'Connor, 126 F.3d at 115 (applying Reid test in Title VII claim). Although no one factor is dispositive, Aymes v. Bonelli, 980 F.2d at 861, certain factors should be given more weight in the analysis because they will usually be highly probative of the true nature of the employment relationship. Id. These include: (1) the hiring party's right to control the manner and means of creation; (2) the skill required; (3) the provision of employee benefits; (4) the tax treatment of the hired party; and (5) whether the hiring party has the right to assign additional projects. Id.

Defendants present substantial evidence to support their contention that the Treasurer is an independent contractor. Stephanie Bell ("Bell"), who is currently the Treasurer, asserts that her work is not directed by the Fire District and that she determines payroll calculations and other financial obligations of the Fire District on her computer at home. George Williams ("Williams"), who was Treasurer during 1994 and 1995, confirms that this was the practice during that time as well. Williams...