each of the seven days of the week. Id. at 1227. If twenty employees are not physically working or on paid leave each day of a week, then that week will not count; that is, the week cannot be used in the determination of whether the defendant is an "employer."
Applying the Seventh Circuit's "workplace method" of employee number calculation to the instant case, the court finds that Naperville is not an "employer" subject to liability under the ADEA. Elias alleges that the discrimination took place on January 23, 1995. Thus, the two years relevant to the "employer" inquiry are 1995, "the current year," and 1994, "the preceding year." 29 U.S.C. § 630(b). Looking at both those years, the court finds that, while Naperville did have on its payroll twenty or more employees each week for twenty or more weeks in 1994 and 1995, it never had twenty workers physically present at its office working (or on paid leave) on any single day in either of the two years. Thus, Naperville did not meet the minimum jurisdictional requirement; Naperville did not employ twenty people for at least twenty calendar weeks in either 1994 or 1995. Put simply, Naperville was not an "employer" -- as defined by the ADEA -- in either of the relevant years.
Since Naperville does not meet the definition of an "employer," it cannot be subjected to liability under the ADEA. Schaefer v. Transp. Media, Inc., 859 F.2d 1251, 1255 (7th Cir. 1988). As such, the court is without subject matter jurisdiction to entertain the lawsuit. Zimmerman, 704 F.2d at 350-51; City of Evanston, 854 F. Supp. at 536. Elias alleges federal question jurisdiction pursuant to 28 U.S.C. § 1331, which grants the court "original jurisdiction of all civil actions arising under . . . the laws . . . of the United States." Yet, the federal law out of which the lawsuit supposedly "arises," the ADEA, does not apply to Naperville. Therefore, Elias' jurisdictional allegation is erroneous. Elias has not met her burden of establishing another basis for jurisdiction and, accordingly, the court dismisses the Complaint with prejudice.
The court's determination will not be a surprise to Elias. In her Complaint, Elias alleges, "a determination that Naperville . . . is an ADEA employer may involve the application of legal standards which are inconsistent with certain precedents in the Seventh Circuit Court of Appeals." (Compl. at P5.) In her Supplemental Response, Elias "maintains that Zimmerman is wrong and that [Naperville] should be held to be an ADEA employer . . . . Nonetheless, Zimmerman controls here. Plaintiff intends to see the overruling of Zimmerman. " (Pl's. Supplemental Resp. at 1.)
While the instant motion is not agreed, the facts and controlling law are conceded. At no small cost to Naperville, Elias admittedly seeks to have the Seventh Circuit consider again whether Zimmerman should be the prevailing rule. Yet, as impliedly acknowledged by Elias, the "workplace method" is alive and well in the Seventh Circuit at the time of litigation before this district court. Applying the undisputed facts with the undisputed applicable Seventh Circuit "workplace method" of counting employees, the court finds that it is without subject matter jurisdiction and, accordingly, dismisses the Complaint with prejudice.
IT IS SO ORDERED.
CHARLES RONALD NORGLE, SR., Judge
United States District Court
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