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NORMAN v. LEVY

December 12, 1990

PATRICIA NORMAN, Plaintiff,
v.
DR. DONALD LEVY, TYRA COSMETICS, INC., AND LYNN JAHNCKE, Defendants



The opinion of the court was delivered by: MORAN

 JAMES B. MORAN, CHIEF UNITED STATES DISTRICT JUDGE

 Plaintiff, Patricia Norman ("Norman"), is suing defendants, Dr. Donald Levy, Tyra Cosmetics, Inc., and Lynn Jahncke (collectively, "Tyra"), claiming that she was the victim of sex discrimination while employed by Tyra. Tyra has moved to dismiss this action for lack of subject matter jurisdiction. Inasmuch as neither side to this dispute has properly framed the relevant issue or presented evidence from which this court can make its own assessment, this court continues Tyra's motion and orders the parties to submit further evidence in accordance with the opinion herein.

 BACKGROUND

 On January 9, 1990, Norman filed a five-count complaint against Tyra alleging discriminatory employment practices based upon sex, breach of contract, interference with contract relations, defamation, and battery. Tyra responded by filing a consolidated motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Tyra asserts that this court does not have federal jurisdiction over Norman's Title VII count, nor pendent jurisdiction over the remaining counts, because Tyra is not an "employer" within the meaning of Title VII. 42 U.S.C. § 2000e(b)(1988).

 In support of its motion, Tyra has filed the declaration of Thomas E. Karam, Tyra's accountant and vice president, in which Karam attempts to demonstrate that Tyra never had enough employees during 1987, 1988, or 1989 to qualify as an "employer" under Title VII. In lieu of filing an answer to Tyra's motion to dismiss, Norman has filed a motion to strike Karam's declaration. As Tyra correctly contends, in a purely technical sense a motion to strike is not responsive to a 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. Nevertheless, inasmuch as the substance of Norman's filing is intended to address the jurisdictional issue at hand, this court will consider her motion to strike to be the functional equivalent of a response to Tyra's motion to dismiss. *fn1"

 DISCUSSION

 Tyra argues that Norman's complaint should be dismissed because this court does not have subject matter jurisdiction to hear her case. See Fed. R. Civ. P. 12(b)(1); Burke v. Friedman, 556 F.2d 867 (7th Cir. 1977). As the party alleging jurisdiction, Norman bears the burden of proof once jurisdiction is challenged and therefore "must submit affidavits and other relevant evidence to resolve the factual dispute regarding the court's jurisdiction." Kontos v. United States Dep't of Labor, 826 F.2d 573, 576 (7th Cir. 1987). See also Western Transp. Co. v. Couzens Warehouse & Distribs., Inc., 695 F.2d 1033, 1038 (7th Cir. 1982). Norman contends that this court has jurisdiction over her sexual employment discrimination claim pursuant to 42 U.S.C. Sec. 2000e-5 (Title VII) and 28 U.S.C. Sec. 1343(a)(4). *fn2" In order to come within the purview of Title VII as an "employer," Tyra must be "a person 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. . . ." 42 U.S.C. § 2000e(b). *fn3" Application of this jurisdictional standard is a two-step process. First, this court must determine all persons who had the status of an "employee" within the meaning of Title VII at any time during the years in question. Second, this court must confirm that Tyra had at least the minimum number of employees for the minimum number of weeks, distinguishing between hourly and salaried employees where necessary, to satisfy the jurisdictional threshold.

 1. Employees

 Norman and Tyra dispute the employee status of four persons who allegedly worked for Tyra during 1987, 1988 or 1989. Title VII broadly defines an "employee" as "an individual employed by an employer," 42 U.S.C. § 2000e(f), and courts often consider whether a person performed "traditional employee duties" in determining employee status. See, e.g., Chavero v. Local 241, Div. of Amalgamated Transit Union, 787 F.2d 1154, 1157 (7th Cir. 1986)(board members did not perform traditional employee duties); EEOC v. First Catholic Slovak Ladies Ass'n, 694 F.2d 1068, 1070 (6th Cir. 1982), cert. denied, 464 U.S. 819, 78 L. Ed. 2d 90, 104 S. Ct. 80 (1983) (persons who were both directors and officers held to be employees because they maintained records, prepared financial statements, managed the office and drew salaries). Following this broad approach, the Seventh Circuit has counted active, compensated officers as employees under the analogous provisions of the Age Discrimination in Employment Act, 29 U.S.C. § 630(b). Zimmerman v. North Am. Signal Co., 704 F.2d 347, 351-52 (7th Cir. 1983).

 Norman contends that Karam's count is fatally flawed because it failed to include William Soma (Tyra's President), Michael Hamilton, Lynn Jahncke, and Karam himself as employees. *fn4" In partial substantiation of her allegations, Norman submits an affidavit in which she avers that William Soma told her that he was a compensated officer and employee of Tyra and that Michael Hamilton admitted to her that he was a vice-president of Tyra who was compensated for his employment duties (Norman Aff. at para. 4, 6). Tyra argues that these statements in Norman's affidavit are incompetent because they are inadmissible hearsay. Tyra is wrong. These statements are not hearsay; they are admissions by a party-opponent. See Fed. R. Evid. 801(d)(2). Because Tyra has submitted no evidence to rebut the substance of Norman's affidavit, we find that both William Soma and Michael Hamilton were Tyra employees during some part of 1988 or 1989.

 Norman also submits evidence that Lynn Jahncke was a Tyra employee during both 1988 and 1989. Among this evidence are documents signed by Jahncke on behalf of Tyra in 1988, and a letter from Tyra's attorney to Norman's attorney on August 7, 1989, which states not only that Jahncke was an employee before Norman worked for Tyra, but also that Jahncke took over Norman's job after Norman was discharged around April 3, 1989. Again, Tyra's failure to rebut these contentions with any evidence compels us to find that Jahncke was a Tyra employee during some portion of 1988 and 1989.

 Finally, Norman suggests that Karam himself may be considered to be a Tyra "employee" for purposes of Title VII. Norman's contention, made for the first time in her reply brief, is no more than a mere afterthought for which she fails to demonstrate any evidence to support a finding in ...


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