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Zimmerman v. North American Signal Co.

March 31, 1983

SAM ZIMMERMAN, PLAINTIFF-APPELLANT,
v.
NORTH AMERICAN SIGNAL COMPANY, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 81-C-348 -- Susan Getzendanner, Judge.

Author: Eschbach

Before ESCHBACH and COFFEY, Circuit Judges, and WISDOM, Senior Circuit Judge.*fn*

ESCHBACH, Circuit Judge. The appellant, Sam Zimmerman, brought suit against the appellee, North American Signal Company ("North American"), alleging unlawful age discrimination under the Age Discrimination in Employment Act ("the Act"), 29 U.S.C. §§ 621-634. The district court held that North American was not an "employer" as defined by § 11(b) of the Act, 29 U.S.C. § 630(b), and that the court therefore lacked subject matter jurisdiction. For the reasons below, we affirm.

I

North American Signal Company assembles and distributes emergency warning lights and sirens. Sam Zimmerman, Julius Neiman and William Wisbrod each own approximately one third of the corporation's stock. Zimmerman was employed by North American as vice president from 1963 until January 26, 1979, when his employment was terminated. Zimmerman alleges that, at the time of the termination, he was 67 years old and that North American discharged him solely because of his age. Zimmerman continued in his position as a director until April, 1979. His stock ownership apparently remains unaffected.

Zimmerman filed suit in district court on January 22, 1981. After several extensions of time, North American moved to dismiss on April 17, 1981, asserting, inter alia, that North American had too few employees to meet the Act's jurisdictional definition of "employer." Zimmerman and North American filed several memoranda and affidavits in the ensuing months. On September 8, 1981, a status hearing was held, at which both parties said that the Motion to Dismiss was fully briefed. The court granted North American's Motion to Dismiss on September 15, 1981, finding no genuine factual dispute on the jurisdictional issue, deciding that the method used by North American to compute the number of its employees was correct, and holding that North American was not an "employer" as defined by the Act.

On September 23, 1981 Zimmerman filed a Motion to Vacate the dismissal order of September 15, to reconsider North American's Motion to Dismiss, and to permit discovery on the jurisdictional issue. Again, both parties filed several memoranda and affidavits. On February 9, 1982 the court denied Zimmerman's motion.

II

Zimmerman raises several issues on appeal. First he contends that the district court erred in granting the defendant summary disposition on the jurisdictional matter when there were genuine issues of material fact. Next, he asserts that the district court used an incorrect method in counting the number of employees North American had during each week of the relevant period. Finally he claims that the district court erred in refusing to grant his Motion to Vacate the dismissal so he could conduct discovery on the jurisdictional issue and so he could present his theory that employees of an allegedly related corporation should also be included in the employee count.

III

A. The Propriety of Summary Disposition of the Jurisdictional Issue

North American moved to dismiss for lack of subject matter jurisdiction, asserting that it was not an "employer" as defined by § 11(b) of the Act, 29 U.S.C. § 620(b). North American presented the district court and Zimmerman with copies of its employment records for the relevant years, 1978 and 1979, submitted its analysis of the data, and concluded that it did not have the requisite number of employees for the requisite number of weeks to be considered an "employer" under the Act.*fn1 Zimmerman challenged North American's conclusion on four grounds, claiming that certain employees were missing from the employment records, that certain officers and directors should be counted as employees, that certain persons listed as employees on North American group medical plan should be counted as employees, and that the method used to calculate the number of employees for each week was incorrect.

The last three challenges present legal, not factual, questions. There is no substantial dispute that the persons Zimmerman claims to include in his count were, in fact, directors, officers or listed on the medical plan. Only the legal issue of which, if any, of these are "employees" under the Act is presented.

§§ immerman's first basis for challenge, however, goes to the accuracy of North American's employment records. Zimmerman claims to have personal knowledge that certain employees were on vacation during certain weeks, that this was not reflected in North American's records, and he asserts that these employees should be counted as employees for each day of their vacation. North American attempts to refute Zimmerman's recollections. However, the resolution of this minor factual dispute would have no effect on the jurisdictional issue. For the reasons we discuss below, we resolve the legal issues presented in this case in favor of North American. Even if we were to assume that Zimmerman was correct in his recollections about vacationing employees, counting all these persons as "employees" for each day Zimmerman says they were on vacation would not raise the ...


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