Lord v. Casco Bay Weekly, Inc.

• Decision Date: 06 May 1992
• Docket Number: Civ. No. 91-0356-P-C.
• Citation: 789 F. Supp. 32
• Parties: Robert M. LORD, Plaintiff, v. CASCO BAY WEEKLY, INC., et al., Defendants.
• Court: U.S. District Court — District of Maine

789 F. Supp. 32

Robert M. LORD, Plaintiff, v. CASCO BAY WEEKLY, INC., et al., Defendants.

Civ. No. 91-0356-P-C.

United States District Court, D. Maine.

March 30, 1992.

Denial of Motion for Reconsideration May 6, 1992.

Richard S. Slosberg, Portland, Me., for plaintiff.

Deborah H. Mann, Jensen, Baird, Gardner & Henry, Portland, Me., for defendant.

GENE CARTER, Chief Judge.

MEMORANDUM OF DECISION AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

In this action brought under the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq., and the Maine Human Rights Act, 5 M.R.S.A. § 4551 et seq., Defendants Casco Bay Weekly, Inc. ("Casco Bay Weekly" or "Defendant") and Monte Paulsen, editor and publisher of Casco Bay Weekly, have moved to dismiss Plaintiff Robert M. Lord's Complaint for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). For the reasons that follow, the Court will grant Defendants' Motion to Dismiss on the basis of lack of subject matter jurisdiction.

I. Facts

Plaintiff, age 58, has been employed by Casco Bay Weekly since June 1990. He was hired as the circulation manager by Casco Bay Weekly's predecessor in March 1990. At that time, the paper was owned by Mogul Media, Inc. of which Gary Santaniello was president and publisher. Defendant Monte Paulsen was a minority partner and editor. On June 6, 1990, Mogul's assets were purchased by Dodge Morgan, who also owns the Maine Times and the Maine Publishing Corporation. Shortly thereafter, Mr. Santaniello left Casco Bay Weekly and Defendant Paulsen remained as both publisher and editor.

Casco Bay Weekly currently employs twelve full-time employees and four part-time employees. In addition, six freelance writers are employed as independent contractors. Although the employment records of Casco Bay Weekly prior to Mr. Santaniello's sale of the paper are not available, both Casco Bay Weekly's office manager, Robyn Barnes, and Defendant Paulsen state that the predecessor paper never had as many as twenty employees. Similarly, Casco Bay Weekly has never had as many as twenty employees at any time.

Over the course of his employment, Plaintiff's position became more limited in scope and he was placed on part-time status. On April 29, 1991, he sought administrative relief from the alleged age discrimination by Defendants from the United States Equal Employment Opportunity Commission and the Maine Human Rights Commission. The latter Commission conducted an investigation, issued a report of its findings, and dismissed Plaintiff's claim on January 13, 1992. Plaintiff had filed his Complaint with this Court on November 12, 1991.

II. Discussion

A.

The plaintiff has the burden of demonstrating that the Court has subject matter jurisdiction when a defendant makes a motion to dismiss under Rule 12(b)(1). See Rogers v. Stratton Industries, Inc., 798 F.2d 913, 915 (6th Cir.1986); Equal Employment Opportunity Commission v. Argent Industries, Inc., 746 F.Supp. 705, 708 (S.D.Ohio 1989); 13 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3522, at 63-65 (1984).¹ To establish subject matter jurisdiction under the ADEA, a plaintiff must show that an employer is:

a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year.

29 U.S.C. § 630(b) (1988).² To determine whether an employer meets the jurisdictional minimum set forth under the ADEA, the Court must determine the proper method for counting the number of employees.³ In the absence of guidance from the Court of Appeals for the First Circuit, the Court adopts the test applied by the Court of Appeals for the Seventh Circuit, which held that first, salaried workers are counted as employees for every day of the week that they are on the payroll. See Zimmerman v. North American Signal Co., 704 F.2d 347, 353-54 (7th Cir.1983). Moreover, with respect to hourly paid workers, the Zimmerman Court held that:

hourly paid workers are counted as employees only on days when they are actually at work and on days of paid leave. Thus an hourly paid worker who worked Monday through Thursday is not counted as an employee on Friday, regardless of the number of hours he worked that week and regardless of whether he is a permanent employee who will return the next week or a temporary employee who will not.

Id. at 353.⁴ Thus, only those part-time hourly paid employees who work each day of the work week are to be included when counting the number of employees during a week.⁵ See also McGraw v. Warren County Oil Co., 707 F.2d 990, 991 (8th Cir.1983) ("paid hourly workers are not employees on days not worked"); Argent Industries, 746 F.Supp. at 708-09.

Although the ADEA is not explicit with respect to interpreting the "current or preceding calendar year," courts have held that it should be calculated at the time of the alleged discrimination. See McGraw, 707 F.2d at 990; Weber, 563 F.Supp. at 599. Thus, because Plaintiff stated in his Complaint that the alleged discriminatory conduct has occurred since June 1990, Defendant determined the current calendar year as 1991 and the preceding year as 1990. See Memorandum in Support of Motion to Dismiss ("Defendants' Memorandum") at 5.

On this basis, Defendant determined that the maximum number of employees that it employed during calendar year 1991 for any work week was fourteen salaried employees and three part-time hourly employees.⁶ In 1990, from the sale of Casco Bay Weekly to the end of the year, the maximum number of employees in any week was twelve full-time salaried employees and three part-time hourly employees. In both calendar years, Defendants state that the part-time hourly employees never worked each day of the work week and, hence, they were not included in the number of employees for each week. Id. Even if these employees had been counted, the maximum number of employees still would have fallen short of the jurisdictional requirement under the ADEA.⁷

B.

Plaintiff has failed to meet his burden in establishing subject matter jurisdiction under the ADEA. He has presented no evidence that Defendants had the requisite number of employees. Based on the record,⁸ the Court finds that Defendant Casco Bay Weekly is not an employer under the ADEA because it does not meet the jurisdictional requirement of "twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year." First, the record reveals that between June 8, 1990 and January 31, 1992, Casco Bay Weekly never employed more than seventeen employees, including both full-time and part-time, who met the jurisdictional threshold under the ADEA. Second, although Plaintiff alleges that the six independent contractors employed by Casco Bay Weekly may, in fact, be employees, he has failed to offer any evidence supporting this bare allegation. See Plaintiff's Opposition at 2. Lastly, the sole employee of Maine Publishing Corporation, Seth Sprague, has already been counted as an employee of Casco Bay Weekly so that the threshold number of requisite employees is not raised by combining the employees of the corporation and Casco Bay Weekly and, hence, still falls short of the jurisdictional requirement of twenty employees under the ADEA.

The Court concludes that Plaintiff has failed to meet his burden in showing that Defendants fit the statutory definition of employer under the ADEA and the Court will dismiss the federal claim under Count I against both Casco Bay Weekly and Monte Paulsen.⁹ Having dismissed the federal claim, the Court will not exercise supplemental jurisdiction to hear the related state law claims under Counts II, III, and IV. See 28 U.S.C. § 1367(c)(3) (Supp.1991). Therefore, Plaintiff's Complaint will be dismissed in its entirety without prejudice.

Accordingly, it is ORDERED that Defendants' Motion to Dismiss pursuant to Rule 12(b)(1) be, and it is hereby, GRANTED.

So ORDERED.

MEMORANDUM OF DECISION AND ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION

Plaintiff Robert M. Lord brought suit against Defendants Casco Bay Weekly, Inc. and Monte Paulsen alleging age discrimination in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq., and the Maine Human Rights Act, 5 M.R.S.A. § 4551 et seq. On March 30, 1992, this Court granted Defendants' Motion to Dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). On April 9, 1992, Plaintiff filed a Motion for Reconsideration and to Vacate or for Relief from Judgment.

Although Plaintiff did not specifically invoke any federal rule as the procedural basis for its Motion, the Court finds that Plaintiff's Motion for Reconsideration arises under Federal Rule of Civil Procedure 59(e).¹ As this Court has previously noted: "The proper procedural device to challenge the legal correctness of a decision of this Court is a motion to amend or alter judgment pursuant to Fed.R.Civ.P. 59(e)." United States v. Belanger, 598 F.Supp. 598, 601 (D.Me.1984). See also Feinstein v. Moses, 951 F.2d 16, 19 n. 3 (1st Cir.1991) ("Where, as in this case, the petition sought to set aside the judgment of dismissal as legally erroneous, it is properly treated as a motion brought under Rule 59(e)."); Appeal of Sun Pipe Line Co., 831 F.2d 22, 24 (1st Cir.1987) ("Notwithstanding that Defendant did not denominate any particular rule as the springboard for its reconsideration motion, it is settled in this circuit that a motion which asked the court to modify its earlier disposition of a case because of an allegedly erroneous legal result is brought under Fed.R.Civ.P. 59(e)."), cert. denied, 486 U.S. 1055, 108 S.Ct. 2821, 100 L.Ed.2d 922 (1988).

The district court has substantial discretion to grant or to deny a motion brought under Rule 59(e). See United States v....