hourly and salaried employees. The Zimmerman court held that hourly paid workers should not be counted as employees "for days when they were neither working nor on paid leave." Zimmerman, 704 F.2d at 354. Implicit in this statement is the requirement that salaried and hourly employees be counted differently. Although the Zimmerman court explicitly declined to express an opinion on the correct method of counting salaried employees, they let stand the defendant's method in that case -- which on review reflects simple common sense -- which counted all salaried employees as employees "for every day of the week they are on the payroll, whether or not they were actually at work on a particular day." Id. at 353, 354 n. 6.
In light of Zimmerman, it is clear that neither Tyra nor Norman has applied the proper counting method or, for that matter, provided the court with documentation from which it could make its own count. Tyra relies on Karam's declaration in its effort to suggest that this court lacks jurisdiction over Norman's claims. According to Karam, he obtained the information for his count from Tyra's records for 1987, 1988 and 1989, including the employees' W-2 forms, reports filed with states where Tyra had employees (such as employer's contribution and wage reports, and payroll reports for each employee for every day worked), and tally sheets showing daily work of all Tyra employees in 1989. Karam then worked backwards, eliminating weeks from consideration where either less than fifteen employees were on the payroll, or less than fifteen employees actually worked on each day of the week (and where "none were on paid leave"). Using this method for each year in question, he found that there were only fourteen weeks in 1989 during which Tyra could possibly have had fifteen or more employees for each day of the week.
Although Tyra did not err by omitting from its count those weeks in which Tyra employed fewer than fifteen workers (as long as the three employees from part 1 of this opinion are included in counting to fifteen), the rest of Tyra's calculations are underinclusive, in that Tyra's method omits from the count salaried employees who were not actually working on any given day.
While Tyra's count tends toward systematic underinclusion of salaried employees, Norman's attempted count is grossly overinclusive on its face. Although she correctly points out the deficiency in Tyra's method of counting, her submission of Tyra's 1988 and 1989 W-2 Forms proves nothing more than the fact that Tyra employed at least 12 employees in 1988 and 45 employees in 1989 (in addition to the three persons held above to be Tyra employees). Relying on these figures alone as evidence of the number of employees for each working day would result in an invariably inflated jurisdictional count.
Furthermore, this court is unable to make its own count of employees from the evidence submitted by the parties. The only determination this court can make with regard to counting employees is that Tyra had an insufficient number of employees in 1987 to confer jurisdiction on this court based on Tyra's employment practices in 1987. Tyra maintains that it only issued two W-2 forms in 1987 and Norman fails to submit any evidence that Tyra employed any employees at all during that year. On the other hand, Tyra's 1988 and 1989 W-2 forms, which Norman did submit, demonstrate that, when William Soma, Michael Hamilton, and Lynn Jahncke are included as employees, Tyra may very well have had at least fifteen employees on the payroll during each of those two years. Given that we have no information on which employees were salaried and which were hourly and worked or were on paid leave for each day, however, we can make no findings as to whether in 1988 or 1989 Tyra had at least fifteen employees for every working day in twenty or more weeks.
Although it may be suggested that Norman has failed to carry her burden of demonstrating the existence of jurisdiction in response to Tyra's contention that it is lacking, it may in some sense also be suggested that Tyra has failed adequately to suggest the absence thereof in light of its own failure properly to address the relevant issues. In light of this failing on both sides, and in light of this court's preference for deciding motions on their merits, this court will continue this motion.
Although Norman has the burden of proving jurisdiction, in light of our findings that William Soma, Michael Hamilton, and Lynn Jahncke are employees for at least some part of 1987, 1988, or 1989, and that the evidence submitted by both sides fails to clarify the jurisdictional issue, this court finds that it is unable to make a finding either way as to its jurisdiction over Norman's case. Therefore, we continue this motion, and request that the parties submit further evidence and a new employee count in light of this court's findings and its concerns outlined above.
For the foregoing reasons, we find that William Soma, Michael Hamilton, and Lynn Jahncke were Tyra "employees" within the meaning of Title VII during at least some portion of 1988 or 1989. Beyond that however, we continue Tyra's motion to dismiss and order the parties to submit additional evidence and a revised count of employees in order to resolve the jurisdictional issue.