The plaintiff in Zimmerman advanced the theory that all hourly and part-time workers should be counted as employees under the Age Discrimination in Employment Act (ADEA) for each week that they are on the payroll. Zimmerman, 704 F.2d at 353. The Seventh Circuit rejected this interpretation. It held that hourly and part-time workers are considered employees under the ADEA only on days when they are either physically present at work or on paid leave. Id. at 353. The court based this finding on the language in section 11 of the ADEA, which provides that an employer must have twenty or more employees for each working day of a week before that week can be counted toward the jurisdictional minimum. Id. at 353-54. The court reasoned that the plaintiff's proffered interpretation would render the "for each working day" language meaningless surplusage. Id.
The EEOC maintains that Zimmerman is contrary to the language, intent and purpose of Title VII and the ADEA. The EEOC alleges that public policy, principles of statutory construction, and Title VII's legislative history suggest that the method of counting employees should focus on whether an employee is on the employer's payroll rather than the employee's particular work schedule. The EEOC points to a number of decisions that have adopted the method of counting employees that the EEOC advocates, see Evans v. Davie Truckers, Inc., 38 Fair Empl. Prac. Cas. (BNA) 1553, 1554 (M.D.N.C. 1984), aff'd, 769 F.2d 1012 (4th Cir. 1985); Thurber v. Jack Reilly's, Inc., 717 F.2d 633, 634-35 (1st Cir. 1983), cert. denied, 466 U.S. 904, 80 L. Ed. 2d 153, 104 S. Ct. 1678 (1984); Pascutoi v. Washburn-McReavy Mortuary, Inc., 11 Fair Empl. Prac. Cas. (BNA) 1325, 1327 (D. Minn. 1975), aff'd, 566 F.2d 1178 (8th Cir. 1977), and others which soundly criticize the approach adopted in Zimmerman, see e.g., Wright v. Kosciusko Medical Clinic, 791 F. Supp. 1327, 1332 (N.D. Ind. 1992). The EEOC asks that this court modify the holding of Zimmerman to include all employees on the payroll, regardless of whether they were actually at work on a particular day.
This court cannot, however, modify Seventh Circuit precedent. That issue is properly left to the Seventh Circuit on appeal. It is true that Zimmerman was an ADEA case, while this case involves Title VII; accordingly, Zimmerman is not binding authority per se. Nonetheless, it is well settled that cases interpreting Title VII can be used in interpreting the ADEA, and vice versa. "Because Title VII and the ADEA share 'a similar purpose -- to stamp out discrimination in various forms -- cases construing the definitional provisions of one [statute] are persuasive authority' when interpreting the provisions of the other." Hayden v. La-Z-Boy Chair Co., 9 F.3d 617, 619 (7th Cir. 1993), cert. denied, 128 L. Ed. 2d 47, 114 S. Ct. 1371 (1994), quoting Hyland v. New Haven Radiology Assoc., P.C., 794 F.2d 793, 796 (2d Cir. 1986), citing Lorillard v. Pons, 434 U.S. 575, 584, 55 L. Ed. 2d 40, 98 S. Ct. 866 (1978) ("the prohibitions of the ADEA were derived in haec verba from Title VII"). While the Seventh Circuit has not addressed this issue in the context of Title VII, § 11 of the ADEA and § 701(b) of Title VII are virtually identical. We will therefore apply the employee counting method first set forth in Zimmerman and later applied in the Title VII context by this court in Norman v. Levy, 767 F. Supp. 1441, 1449 (N.D. Ill. 1991).
The parties have stipulated that there were fifteen employees either present at work or on paid leave each day of the working week for only nine weeks of 1990 (Stip., P 11). Since this falls below the jurisdictional minimum of twenty weeks, Metropolitan cannot be subject to Title VII liability for the calendar year 1990.
Metropolitan does not qualify as an employer under Title VII. The court therefore lacks jurisdiction over the subject matter of this case. The case is dismissed with prejudice.
JAMES B. MORAN
Chief Judge, U.S. District Court
August 29, 1994.