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ELIAS v. NAPERVILLE EYE ASSOCS.

June 18, 1996

HELENE R. ELIAS, Plaintiff,
v.
NAPERVILLE EYE ASSOCIATES, LTD., Defendant.



The opinion of the court was delivered by: NORGLE

 CHARLES R. NORGLE, SR., District Judge:

 Before the court is Defendant Naperville Eye Associates, Ltd.'s ("Naperville") Motion to Dismiss for Lack of Subject Matter Jurisdiction. For the following reasons, the motion is granted.

 I. Facts

 The parties do not dispute the facts pertinent to this motion. Plaintiff Helene R. Elias ("Elias") worked for Naperville in a management position. Naperville discharged Elias on January 23, 1995. At the time of her discharge, Elias was fifty six years old.

 Naperville's payroll records indicate that it "had on its payroll twenty or more employees during twenty or more weeks in 1994 and 1995." (Pl's. Supplemental. Resp. at 1.) However, on no day did Naperville ever "have twenty or more employees actually at work on each workday twenty or more workweeks in 1994 or 1995." (Pl's. Supplemental. Resp. at 1.) These facts were stipulated by counsel in open court. Naperville argues that these facts demonstrate that it is not an "employer" as defined by the ADEA. The court agrees.

 II. Discussion

 Naperville brings this motion pursuant to Federal Rule of Civil procedure 12(b)(1), which allows a party to move the court to dismiss based on a lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Once jurisdiction is questioned, the plaintiff bears the burden of establishing that all jurisdictional requirements have been satisfied. EEOC v. City of Evanston, 854 F. Supp. 534, 536 (N.D. Ill. 1994). In considering a motion to dismiss for lack of subject matter jurisdiction, the court must accept the complaint's well-pleaded factual allegations as true and draw reasonable inferences from those allegations in the plaintiff's favor. Rueth v. EPA, 13 F.3d 227, 229 (7th Cir. 1993). However, the court may also "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." Capitol Leasing Co. v. FDIC, 999 F.2d 188, 191 (7th Cir. 1993). Under a Rule 12(b)(1) motion, the court must exercise discretion to resolve jurisdictional factual issues. See Pratt Central Ltd. Partnership v. Dames & Moore, Inc., 60 F.3d 350, 354 (7th Cir. 1995).

 Congress limited the ADEA to apply only to "employers." According to the ADEA, "the term employer means a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year." 29 U.S.C. § 630(b). The statute, however, does not establish a working method for courts to count employees and determine whether the required floor of twenty employees is met. As a result, two methods materialized.

 Some circuits other than the Seventh Circuit adopted a "payroll method" of counting employees. This method, to which the EEOC and Elias subscribe, involves summing the total number of employees maintained on the employer's payroll within a given week. If the court were to employ this method, it would likely find Naperville to be an "employer." Yet, this circuit declines to use such a method.

 Instead, the United States Court of Appeals for the Seventh Circuit utilizes what this court terms the "workplace method." See Zimmerman v. North Am. Signal Co., 704 F.2d 347, 352-54 (7th Cir. 1983). According to the "workplace method":

 
[A company's] salaried workers are counted 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. Its hourly paid workers are counted as employees only on days when they are actually at work and on days of paid leave. Thus an hourly paid worker who worked Monday through Thursday is not counted as an employee on Friday, regardless of the number of hours he worked that week and regardless of whether he is a permanent employee who will return next week or a temporary employee who will not.

 Zimmerman, 704 F.2d at 353. The Seventh Circuit endorsed its previous Zimmerman decision -- and, in turn, reaffirmed its confidence in the "workplace method" -- less than a year ago, on July 18, 1995. See EEOC v. Metropolitan Educ. Enters., Inc., 60 F.3d 1225 (7th Cir. 1995) ("We are not persuaded that subsequent events dictate overruling Zimmerman,. . . and therefore reject the . . . invitation to do so"). The "workplace method" requires that a court count only those weeks where at least twenty employees are at the workplace or on paid leave for each of the seven days of the week. Id. at 1227. If twenty employees are not physically working or ...


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