Villasenor v. Industrial Wire & Cable, Inc.

• Decision Date: 13 June 1996
• Docket Number: No. 95 C 7432.,95 C 7432.
• Citation: 929 F. Supp. 310
• Court: U.S. District Court — Northern District of Illinois
• Parties: Julian VILLASENOR, Plaintiff, v. INDUSTRIAL WIRE & CABLE, INC., and Carl Calabrese, Defendants.

929 F. Supp. 310

Julian VILLASENOR, Plaintiff, v. INDUSTRIAL WIRE & CABLE, INC., and Carl Calabrese, Defendants.

No. 95 C 7432.

United States District Court, N.D. Illinois, Eastern Division.

June 13, 1996.

Manuel R. Ribbeck, Ribbeck Maravi, P.C., Chicago, IL, for plaintiff.

Adrianne Clarise Mazura, Holly Ann Hirst, Rudnick & Wolfe, Chicago, IL, for defendants.

MEMORANDUM OPINION AND ORDER

ASPEN, Chief Judge:

Plaintiff Julian Villasenor brings this two-count complaint against Industrial Wire & Cable Corporation ("Wire & Cable")¹ and its Vice President Carl Calabrese, alleging a violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12213, and state tort law. Presently before this court is the defendants' motion to dismiss the complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the reasons set forth below, the motion is granted.

I. Background

According to the complaint Villasenor has poliomyelitis, a viral disease of the central nervous system, and is an individual with a "disability" under the ADA, 42 U.S.C. § 12102(2). Compl. ¶ 3. Wire & Cable employed Villasenor, without any special accommodation, from November 1993 until his termination in April 1994. Compl. ¶ 10; Calabrese 1/22/96 Aff. ¶ 4. The plaintiff contends that during his employment with Wire & Cable the company engaged in unspecified "unlawful employment practices," and terminated him in April 1994 because of his disability. Compl. ¶ 9. In addition, he alleges that Calabrese "discriminated, assaulted and insulted" him, and "engaged in outrageous conduct of taunting, annoying and otherwise verbally abusing the plaintiff." Id. ¶ 14. Because of this alleged misconduct, Plaintiff contends, he suffered severe emotional distress. Id. ¶ 15, 17.

Plaintiff subsequently filed a charge of disability discrimination with the Equal Employment Opportunity Commission, and was issued a right to sue letter on September 30, 1995. Compl. ¶¶ 7-8. He filed the instant action in December 1995, alleging that the defendants discriminated against him in violation of the ADA (Count I) and intentionally inflicted emotional distress upon him (Count II).² The defendants now raise several arguments in support of dismissal, although we need only address their contention that Wire & Cable did not employ a sufficient number of persons to be considered an "employer" under the ADA.

II. Standard for Reviewing Motions to Dismiss Under Rule 12(b)(1)

Rule 12(b)(1) motions to dismiss are premised on either facial attacks or factual attacks to jurisdiction. "A facial attack is a challenge to the sufficiency of the pleading itself.... A factual attack, on the other hand, is not a challenge to the sufficiency of the pleading's allegations, but a challenge to the factual existence of subject matter jurisdiction." United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 188, 130 L.Ed.2d 121 (1994). When reviewing a motion raising a facial attack to jurisdiction, we must accept the well-pleaded allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir.1995). However, when presented with a factual attack to jurisdiction, we "may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists." Id. (quoting Capitol Leasing Co. v. F.D.I.C., 999 F.2d 188, 191 (7th Cir.1993)).³

In answering a properly supported Rule 12(b)(1) factual attack, a plaintiff cannot simply rest on the allegations in the pleadings. Rittmeyer v. Advance Bancorp, Inc., 868 F.Supp. 1017, 1021 (N.D.Ill.1994). Rather, because the party invoking jurisdiction bears the burden of establishing its requirements, Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992), the plaintiff must come forward with "competent proof" supporting its jurisdictional allegations, NLFC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 237 (7th Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 2249, 132 L.Ed.2d 257 (1995); see Kontos v. United States Dept. of Labor, 826 F.2d 573, 576 (7th Cir.1987); Rittmeyer, 868 F.Supp. at 1021. In other words, the plaintiff must prove to the court by "a preponderance of the evidence or `proof to a reasonable probability that jurisdiction exists.'" NLFC, 45 F.3d at 237 (quoting Gould v. Artisoft, Inc., 1 F.3d 544, 547 (7th Cir.1993)).

III. Discussion

Wire & Cable, the only defendant implicated in the ADA claim raised in Count I, argues that it does not fit into the ADA's definition of an employer:

An employer means a person engaged in an industry affecting commerce who has 25 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding year, and any agent of such person.

42 U.S.C. § 12111(5).⁴ Therefore, Wire & Cable maintains, we should dismiss Count I because we are without jurisdiction to hear it, and we should decline to exercise our supplemental jurisdiction over Count II.

It is a jurisdictional prerequisite to Villasenor's ADA claim that Wire & Cable be an "employer" under the statute. E.E.O.C. v. Chemtech Int'l Corp., 890 F.Supp. 623, 625 (S.D.Tex.1995); Doe v. William Shapiro, Esq., 852 F.Supp. 1246, 1249 (E.D.Pa.1994); see Rogers v. Sugar Tree Products, Inc., 7 F.3d 577, 579 (7th Cir.1993) (construing employer status as jurisdictional under ADEA). In this case the plaintiff was terminated in 1994, and therefore the relevant calendar years for our consideration are 1993 and 1994.⁵ Thus, Wire & Cable must have employed at least twenty-five workers for twenty or more weeks during the calendar years of either 1993 or 1994 in order to be considered an "employer" under the ADA.

Our inquiry is hampered somewhat by the United States Supreme Court's grant of a writ of certiorari in E.E.O.C. v. Metropolitan Educ. Enters., Inc., 60 F.3d 1225 (7th Cir. 1995), cert. granted, ___ U.S. ___, 116 S.Ct. 1260, 134 L.Ed.2d 209 (1996). In Metropolitan the Seventh Circuit reaffirmed its position that hourly and part-time employees who were not at the workplace or on paid leave for each day of a work week could not be counted as "employees" under Title VII. 60 F.3d at 1228-30. This view conflicts with that of the First Circuit Court of Appeals, which takes the position that an employee on the payroll for a given week is counted as an "employee" under Title VII for the entire week, regardless of the number of days actually worked during that week. Thurber v. Jack Reilly's, Inc., 717 F.2d 633, 634-35 (1st Cir.1983), cert. denied, 466 U.S. 904, 104 S.Ct. 1678, 80 L.Ed.2d 153 (1984).⁶ The Supreme Court has now decided to resolve this circuit-split.

Wire & Cable argues, however, that we need not take sides in the dispute — although we actually have no choice, given that we are bound by Seventh Circuit precedent unless and until a subsequent decision by that court or the Supreme Court undermines its holding. Even if we were to utilize the more generous "payroll method," Wire & Cable maintains, it would still not fall under the ADA's definition of an employer. In support of its motion, Wire & Cable submits weekly payroll records for all of its employees during 1993-94. Based on these submissions the defendant contends that during 1993 there were no weeks during which it employed twenty-five or more employees, and that only seven such weeks existed in 1994. Therefore, the defendant contends, we do not have jurisdiction over Count I.

Villasenor responds with an affidavit, in which he claims to have knowledge of other employees at Wire & Cable who are not accounted for in the company's payroll records. Specifically, he contends that he trained two other employees, Jenaro Barajas and Emilio Carrillo, and that these individuals worked for Wire & Cable during 1993 and 1994. Villasenor Aff. ¶ 4. In addition, the plaintiff points to five other employees, including himself, who are not accounted for during certain weeks that they worked in 1993 and 1994. Id. ¶ 5. Finally, Villasenor claims to have personal knowledge of four sales employees and two payroll employees who are not listed in the defendant's payroll records, but who nonetheless worked in 1993 and 1994. Id. ¶¶ 6-7. However, he does not identify these persons by name, nor does he explain how he knows they performed work for the defendant. After considering all of these other employees, the plaintiff concludes that Wire & Cable employed the requisite number of employees for more than twenty weeks during 1994, and argues that jurisdiction is therefore proper.

We first address the propriety of counting Barajas and Carrillo for each and every week in 1993 and 1994. In its reply brief Wire & Cable admits that these two individuals worked for it during some weeks of 1993 and 1994,⁷ but contends that they were not in its employ for the entire two-year period. In addition to the several weeks they were included in the payroll records, the defendant also admits that these two hourly employees worked other weeks during 1993, and submits "Form 1099's" for each of them. Defs.' Reply, Ex. B6. These "Form 1099's", the veracity of which the plaintiff has not challenged, along with Defendant Calabrese's affidavit of May 9, 1996, indicate that Jenaro Barajas worked for one week in June 1993 and four weeks in July 1993,⁸ although this information was not included in Wire & Cable's original payroll records. However, adding Barajas to the number of employees for those weeks does not raise the total for any of the five weeks above the 25-employee threshold. Similarly, adding Carrillo to the number of employees for the sixteen weeks indicated on his 1993 Form 1099's fails to raise any of those totals above twenty-five.⁹

As for 1994, both Barajas and Carrillo were included in Wire & Cable's payroll for many of the...