her briefing: even if we were to find that these persons were salaried employees, Norman still would bear the burden of proving with some element of precision the duration of their employment and accounting for any time periods during which they might not have been on the payroll. As Tyra's records for Lynn Jahncke and Phil Kogak indicate, to conclude that one was a salaried employee during some portion of 1989 does not necessarily mean that one was a salaried employee for all of 1989. With the exception of Jahncke and Kogak (and then only to the extent provided for in Tyra's own records), this alone is sufficient reason to exclude Soma, Hamilton, Ruzek, and Levy from the jurisdictional count.
B. The Jurisdictional Count
In our prior opinion we continued Tyra's motion to dismiss for lack of subject matter jurisdiction and requested both Tyra and Norman to submit additional evidence and a new jurisdictional count because, according to our reading of the Seventh Circuit's opinion in Zimmerman v. North American Signal Co., 704 F.2d 347 (7th Cir. 1983), neither party had properly framed the relevant issues. Tyra had taken a systematically underinclusive approach, counting salaried employees only when they were present at work or on paid leave, rather than counting them for every day of the week they were on the payroll regardless of whether they actually were at work. Norman had taken a systematically overinclusive approach, simply submitting to the court copies of Tyra's IRS W-2 forms for 1988 and 1989. Based on the evidence submitted by both parties, we were able to determine only that Tyra had had an insufficient number of employees in 1987 to confer subject matter jurisdiction on the basis of that year.
In Zimmerman, the Seventh Circuit accepted as a correct interpretation of the ADEA's jurisdictional provisions the defendant employer's contention that an hourly employee is to be counted only on those days that he is either present at work or on paid leave, and that a salaried employee is to be counted for each day that he is on the payroll. Under this approach, an hourly employee who works a 40-hour "week" Monday through Thursday would not be included in a count taken on Friday; if he were the threshold fifteenth employee, therefore, that week would not be counted toward the 20-week jurisdictional requirement. Zimmerman, 704 F.2d at 353-54; see 1 A. Larson & L. Larson, Employment Discrimination § 5.32(b), at 2-43 n. 36. Larson and Larson suggest that the more appropriate approach would be to count persons on the payroll, and regularly employed, rather than the number of people at work on a given day. Id at 2-43. Nonetheless, we look to Zimmerman for guidance.
In its supplemental briefing, Tyra presents a deliberately over-inclusive count to demonstrate that even on an inflated basis it never had enough employees to be subject to Title VII during either 1988 or 1989. According to the affidavit of Thomas Karam, Tyra's accountant, Karam counted each employee -- salaried or hourly -- as having worked for the entire work week if that employee worked or was on paid leave any day of that week, regardless of the number of days actually worked (Karam supp. aff. para. 2).
Karam's calculations, supported by documentary evidence in the form of corporate records and tax filings, demonstrate the absence of subject matter jurisdiction in this case.
Tyra's evidence indicates that it employed only two salaried and no hourly employees for the first ten months of 1988 and employed only three salaried and eight hourly personnel in November and December of that year (Karam supp. aff. para. 3 and attachment A). Even on this grossly overinclusive counting method, therefore, Tyra strongly suggests the absence of subject matter jurisdiction as to that year. Similarly, Tyra's evidence for 1989 indicates that, for each week of the first, second and third quarters of that year (39 weeks in all), Tyra employed at most 11 salaried and hourly personnel at any one time (Karam supp. aff. para. 4 and attachment B). Having demonstrated that it had employed fewer than fifteen employees for 39 weeks of 1989, Tyra did not present similar payroll schedules for the fourth quarter because, even if Tyra had employees in excess of the jurisdictional threshold for the 13 weeks of that quarter, it still would not have met the 20-week minimum for 1989.
Tyra having adequately suggested the absence of subject matter jurisdiction, the question becomes whether Norman has carried her burden of demonstrating that jurisdiction exists. This court must conclude that she has failed to do so, despite having been provided a second opportunity to make her case. Norman's supplemental briefing fails to address Tyra's jurisdictional count for 1988. With regard to Tyra's jurisdictional count for 1989, Norman neither contests Tyra's data nor presents an alternative count of her own, aside from arguing that the six persons whose status is discussed supra should have been included in the jurisdictional count.
Having concluded that Tyra did not improperly omit any employees, and having found that -- even with a deliberately over-inclusive method -- Tyra did not have enough employees for enough weeks to cross the jurisdictional threshold in 1989, we must further conclude that we have no subject matter jurisdiction over Norman's Title VII claim. Both that claim and her pendent state claims must therefore be dismissed.
Norman's Title VII claim is dismissed for lack of subject matter jurisdiction; accordingly, this court dismisses her pendent state claims as well.