Shepherdson v. Local Union No. 401, Civ. A. No. 92-5032.

• Decision Date: 28 May 1993
• Docket Number: Civ. A. No. 92-5032.
• Citation: 823 F. Supp. 1245
• Parties: Susan I. SHEPHERDSON v. LOCAL UNION NO. 401 OF INTERNATIONAL ASSOCIATION OF BRIDGE STRUCTURAL AND ORNAMENTAL IRONWORKERS, et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

823 F. Supp. 1245

Susan I. SHEPHERDSON v. LOCAL UNION NO. 401 OF INTERNATIONAL ASSOCIATION OF BRIDGE STRUCTURAL AND ORNAMENTAL IRONWORKERS, et al.

Civ. A. No. 92-5032.

United States District Court, E.D. Pennsylvania.

May 28, 1993.

Rosemarie Rhodes, Harper & Paul, Philadelphia, PA, for plaintiff.

Robert M. Abramson, Abrams, Abramson & Tabb, Elkins Park, PA, Laurence E. Gold, Connerton, Ray & Simon, Washington, DC, Victor J. Van Bourg, Van Bourg, Weinberg, Roger & Rosenfeld, San Francisco, CA, Richard Kirschner, Richard Kirschner & Associates, Philadelphia, PA, for defendants.

MEMORANDUM OPINION AND ORDER

VANARTSDALEN, Senior District Judge.

I. INTRODUCTION

Two of the defendants have moved to dismiss plaintiff's employment discrimination action brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Title VII), for harassment and discharge because of plaintiff's sex, and one defendant has moved for judgment on the pleadings and in the alternative for summary judgment (motion for judgment). The critical issue raised by the first motion is whether plaintiff's employer had fifteen or more employees during the relevant periods of time. That issue depends, in turn, upon whether for jurisdictional purposes certain paid instructors for an Apprentice Training Fund (the Fund) are to be counted as employees of Local Union No. 401 of the International Association of Bridge Structural and Ornamental Ironworkers (Local 401), or, alternatively, whether the employees of the International Association of Bridge Structural and Ornamental Ironworkers Union (the International) may be included with those of Local 401 to meet the statutory minimum. The question of whether the International's employees may be included with those of Local 401 for jurisdictional purposes has implications for resolution of the International's motion for judgment. If the International's employees cannot be included with those of Local 401 for jurisdictional purposes, then the International is entitled to summary judgment.

In consideration of the affidavits, deposition testimony, and exhibits appended thereto, I conclude that plaintiff has failed to establish that her employer, Local 401, had fifteen or more employees during the relevant periods of time. In addition, plaintiff has failed to show that the International can be considered her employer under a single entity or agency theory. Finally, I conclude that as a matter of law, the International cannot be considered plaintiff's employer. This action must therefore be dismissed. All parties have been given reasonable opportunity for discovery and to present all material relevant to the pending motions. (See Order of December 23, 1992, filed Doc. No. 6).

II. PROCEDURAL HISTORY

Plaintiff's complaint was filed on August 28, 1992. She alleges that she was hired by the defendant, Local 401, on or about February, 1988 and that her employment was terminated on March 23, 1992. (Complaint, ¶¶ 9, 15). According to her complaint, throughout her employment with Local 401 she was sexually harassed by her immediate supervisor, Joseph J. Dougherty (Dougherty), who was and is the Financial Secretary-Treasurer-Business Representative of Local 401. (Complaint, ¶¶ 10, 11). She alleges further that she was "sexually harassed and terminated because of her sex, female, in violation of Title VII of the Civil Rights Act of 1964, as amended, Section 2000e et seq." (Complaint ¶ 17). In addition, plaintiff alleges in the complaint that she objected to Dougherty about the sexual harassment and advised a vice president of the International and the attorney for Local 401 of Dougherty's conduct, but that the conduct "did not stop." (Complaint, ¶¶ 13, 14). The complaint names Local 401, the International, and Dougherty as defendants. Plaintiff seeks relief under Title VII and also under various state common law causes of action, asserting that the court has pendent jurisdiction over her state law claims.

On November 23, 1992, Local 401 and Dougherty filed a joint motion to dismiss the complaint, asserting that Local 401 is not an "employer" within the definition of Title VII because during all relevant times Local 401, the alleged employer, had less than fifteen employees. (filed Doc. No. 3). Attached to the motion was an affidavit by Joseph J. Dougherty. The affidavit had attached as exhibits a copy of the current union contract between the Steel Erectors' Association of Metropolitan Philadelphia and Vicinity (the employers' bargaining agent for the applicable industry and jurisdiction), and Local 401, (filed Doc. No. 3, Ex. 1), a copy of the Constitution of the International Association of Bridge, Structural and Ornamental Iron Workers, (filed Doc. No. 3, Ex. 2) (referred to as the constitution or the International's constitution), and a copy of Local 401's By-Laws. (filed Doc. No. 3, Ex. 3). Plaintiff responded to this motion citing the constitution and attaching her affidavit to the response. (filed Doc. No. 4, Exs. A & B).

On March 22, 1993, the International filed a motion for judgment on the pleadings or, in the alternative, for summary judgment, with an attached affidavit of Leroy E. Worley, General Secretary of the International, and a copy of the International's constitution. (filed Doc. No. 9).¹ In addition, the oral deposition of Dougherty was taken and submitted with the supplemental brief of Local 401 on April 14, 1993. (filed Doc. No. 10). Plaintiff has not filed any response to the International's motion for judgment.

III. STATUTORY TERM "EMPLOYER"

Title VII makes it unlawful for an "employer," as defined in the statute, to, inter alia, "discharge any individual, or otherwise to discriminate against any individual with respect to her compensation, terms, conditions, or privileges of employment, because of such individual's ... sex." 42 U.S.C. § 2000e-2(a)(1). The statute defines "employer," insofar as presently relevant, as follows:

(b) The term "employer" means a person² engaged in an industry affecting commerce 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, and any agent of such a person....

42 U.S.C. § 2000e(b).

The sole contention by defendants Local 401 and Dougherty in the present motion to dismiss is that plaintiff's alleged employer, Local 401, (Complaint ¶ 9), is not an "employer" within the statutory definition because it never had fifteen or more employees during the relevant periods of time, and because Local 401 is not an employer within the statutory definition, Dougherty is not an agent of such an employer under Title VII. (Local 401 and Dougherty's Mot. to Dismiss, filed Doc. No. 3; see also International's Mot. for Judgment, filed Doc. No. 9). Plaintiff's employment terminated on March 23, 1992, and therefore the relevant time period for counting the requisite number of employees is calendar year 1991 through calendar year 1992.³ As will be later detailed, and as I believe plaintiff concedes, Local 401 would have had fifteen or more employees during the relevant time period only if (1) instructors for the Fund are included as Local 401 employees; or (2) employees of the International are included as Local 401 employees either under the theory that Local 401 and the International constitute a single employer for purposes of Title VII or under an agency doctrine.

IV. SUBJECT MATTER JURISDICTION

Defendants Local 401 and Dougherty have challenged the court's subject matter jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(1). Unless the instructors for the Fund or the employees of the International are counted in calculating whether Local 401 had fifteen or more employees at any relevant time, plaintiff may not proceed with this action against defendants Local 401 and Dougherty. The statutory requirement that Local 401 be an employer having at least fifteen employees is a necessary condition to maintaining this action and therefore, essential to the court's subject matter jurisdiction.

Defendant, the International, filed a motion for judgment, but has not directly challenged the court's subject matter jurisdiction. However, determination of whether the court has jurisdiction as to Ms. Shepherdson's suit against defendants Local 401 and Dougherty necessarily calls into question the court's subject matter jurisdiction over plaintiff's claim against the International under the single entity and agency theories.

"A federal court is bound to consider its own jurisdiction preliminary to consideration of the merits," Trent Realty Assoc. v. First Fed. Sav. & Loan Ass'n, 657 F.2d 29, 36 (3d Cir.1981), because the federal courts are courts of limited jurisdiction. Employers Ins. of Wausau v. Crown Cork & Seal Co., 905 F.2d 42, 45 (3d Cir.1990). Although the International did not move pursuant to Rule 12(b)(1) to dismiss the action against it, I will consider, sua sponte, the court's subject matter jurisdiction as to Ms. Shepherdson's suit against the International.

When a court raises the issue of its subject matter jurisdiction, the plaintiff must have "an opportunity to present facts by affidavit or by deposition, or in an evidentiary hearing, in support of her jurisdictional contention." Local 336, American Fed. of Musicians, AFL-CIO v. Bonatz, 475 F.2d 433, 437 (3d Cir.1973). The Court of Appeals for the Third Circuit provided in Bonatz that this opportunity should occur after subject matter jurisdiction is challenged. In accordance with Bonatz, I am satisfied that the plaintiff has had the full opportunity to support a contention of subject matter jurisdiction as to the International. That issue though not raised formally is inextricably intertwined with her contention of jurisdiction as to Local 401, and the International's position on its employer status is directly raised and at issue in the International's motion for judgment.

Where...