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VILLASENOR v. INDUST. WIRE & CABLE

June 13, 1996

JULIAN VILLASENOR, Plaintiff,
v.
INDUSTRIAL WIRE & CABLE, INC., and CARL CALABRESE, Defendants.



The opinion of the court was delivered by: ASPEN

 MARVIN E. ASPEN, Chief Judge:

 I. Background

 According to the complaint Villasenor has poliomyelitis, a viral disease of the central nervous system, and is an individual with a "disability" under the ADA, 42 U.S.C. § 12102(2). Compl. P 3. Wire & Cable employed Villasenor, without any special accommodation, from November 1993 until his termination in April 1994. Compl. P 10; Calabrese 1/22/96 Aff. P 4. The plaintiff contends that during his employment with Wire & Cable the company engaged in unspecified "unlawful employment practices," and terminated him in April 1994 because of his disability. Compl. P 9. In addition, he alleges that Calabrese "discriminated, assaulted and insulted" him, and "engaged in outrageous conduct of taunting, annoying and otherwise verbally abusing the plaintiff." Id. P 14. Because of this alleged misconduct, Plaintiff contends, he suffered severe emotional distress. Id. P 15, 17.

 Plaintiff subsequently filed a charge of disability discrimination with the Equal Employment Opportunity Commission, and was issued a right to sue letter on September 30, 1995. Compl. PP 7-8. He filed the instant action in December 1995, alleging that the defendants discriminated against him in violation of the ADA (Count I) and intentionally inflicted emotional distress upon him (Count II). *fn2" The defendants now raise several arguments in support of dismissal, although we need only address their contention that Wire & Cable did not employ a sufficient number of persons to be considered an "employer" under the ADA.

 II. Standard for Reviewing Motions to Dismiss Under Rule 12(b)(1)

 Rule 12(b)(1) motions to dismiss are premised on either facial attacks or factual attacks to jurisdiction. "A facial attack is a challenge to the sufficiency of the pleading itself. . . . A factual attack, on the other hand, is not a challenge to the sufficiency of the pleading's allegations, but a challenge to the factual existence of subject matter jurisdiction." United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.), cert. denied, 130 L. Ed. 2d 121, 115 S. Ct. 188 (1994). When reviewing a motion raising a facial attack to jurisdiction, we must accept the well-pleaded allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir. 1995). However, when presented with a factual attack to jurisdiction, we may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists." Id. (quoting Capitol Leasing Co. F.D.I.C., 999 F.2d 188, 191 (7th Cir. 1993)). *fn3"

 In answering a properly supported Rule 12(b)(1) factual attack, a plaintiff cannot simply rest on the allegations in the pleadings. Rittmeyer v. Advance Bancorp, Inc., 868 F. Supp. 1017, 1021 (N.D. Ill. 1994). Rather, because the party invoking jurisdiction bears the burden of establishing its requirements, Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351 (1992), the plaintiff must come forward with "competent proof" supporting its jurisdictional allegations, NLFC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 237 (7th Cir.), cert. denied, 132 L. Ed. 2d 257, 115 S. Ct. 2249 (1995); see Kontos v. United States Dept. of Labor, 826 F.2d 573, 576 (7th Cir. 1987); Rittmeyer, 868 F. Supp. at 1021. In other words, the plaintiff must prove to the court by "a preponderance of the evidence or 'proof to a reasonable probability that jurisdiction exists.'" NLFC, 45 F.3d at 237 (quoting Gould v. Artisoft, Inc., 1 F.3d 544, 547 (7th Cir. 1993)).

 III. Discussion

 Wire & Cable, the only defendant implicated in the ADA claim raised in Count argues that it does not fit into the ADA's definition of an employer:

 
An employer means a person engaged in an industry affecting commerce who has 25 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding year, and any agent of such person.

 42 U.S.C. § 12111(5). *fn4" Therefore, Wire & Cable maintains, we should dismiss Count I because we are without jurisdiction to hear it, and we should decline to exercise our supplemental jurisdiction over Count II.

 It is a jurisdictional prerequisite to Villasenor's ADA claim that Wire & Cable be an "employer" under the statute. E.E.O.C. v. Chemtech Int'l Corp., 890 F. Supp. 623, 625 (S.D. Tex. 1995); Doe v. William Shapiro, Esq., 852 F. Supp. 1246, 1249 (E.D. Pa. 1994); see Rogers v. Sugar Tree Products, Inc., 7 F.3d 577, 579 (7th Cir. 1993) (construing employer status as jurisdictional under ADEA). In this case the plaintiff was terminated in 1994, and therefore the relevant calendar years for our consideration are 1993 and 1994. *fn5" Thus, Wire & Cable must have employed ...


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