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VICKERY v. MINOOKA VOLUNTEER FIRE DEP'T

December 15, 1997

JESSICA VICKERY and JONATHAN R. VICKERY, Plaintiffs,
v.
MINOOKA VOLUNTEER FIRE DEPARTMENT, MINOOKA VOLUNTEER FIRE DEPARTMENT CHIEF DAVE CLARK, individually and in his official capacity, and BOARD OF TRUSTEES OF MINOOKA FIRE PROTECTION DISTRICT, Defendants.



The opinion of the court was delivered by: BUCKLO

 The plaintiffs, Jessica Vickery and Jonathan Vickery, brother and sister, brought suit against the defendants, Minooka Volunteer Fire Department (the "Department"), Department Chief Dave Clark, and the Board of Trustees of the Minooka Fire Protection District (the "Board"), alleging claims under Title VII, 42 U.S.C. § 2000e et seq., and Section 1983 of the Civil Rights Act, 42 U.S.C. § 1983. The defendants move to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The defendants' motion is granted in part and denied in part.

 Background

 The Minooka Fire Protection District (the "District") is a municipal corporation. Through its governing body, the Board, the District entered into an agreement with the Department to provide the residents of the District with fire protection and emergency ambulance service. The Department is a non-profit organization, fully run by volunteers. None of its firefighters/paramedics are compensated for their work for the Department.

 The Department, in turn, entered into a contract with Kurtz Ambulance Service, Inc. ("Kurtz") to provide the District with emergency ambulance service (the "Contract"). The Contract specified that Kurtz would provide the Department with six full-time firefighters/ paramedics. In return, the Department paid Kurtz a lump sum of $ 192,138.96.

 Ms. Vickery was hired by the Department as a volunteer firefighter/paramedic in 1995. Ms. Vickery was also a part-time paid employee of Kurtz until August, 1996. In July, 1996, she forwarded her resume to the Department for an open full-time paid position under the Contract, but was never offered an interview or considered for the position, while three male applicants were interviewed. Subsequently, on August 8, 1996, the defendants terminated Ms. Vickery as a volunteer.

 Mr. Vickery was also a volunteer firefighter/paramedic with the Department. According to the complaint, during his tenure there, he opposed the Department's unlawful discrimination against Diane Abbott, another volunteer for the Department. As a result of his opposition, he alleges that the Department retaliated against him by placing him on probation in February, 1996. The Department fired him on August 7, 1996.

 Lack of Subject Matter Jurisdiction

 On a motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction, the plaintiff has the burden of establishing that all jurisdictional requirements have been satisfied. Kontos v. United States Dep't of Labor, 826 F.2d 573, 576 (7th Cir. 1987). "Moreover, when the party moving for dismissal . . . challenges the factual basis for jurisdiction, the nonmoving party . . . must submit affidavits and other relevant evidence to resolve the factual dispute regarding the court's jurisdiction." Id.

 Title VII applies to any employer who "has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year." 42 U.S.C. § 2000e(b). All individuals who have an employment relationship with an employer are "employees" of that employer. Walters v. Metropolitan Educ. Enters., Inc., 519 U.S. 202, 136 L. Ed. 2d 644, 117 S. Ct. 660, 664 (1997). Whether or not an employment relationship exists is determined by the payroll method. Id. The payroll method essentially asks whether or not an individual appeared on the employer's payroll for twenty or more calendar weeks in the current or preceding calendar year. 117 S. Ct. 660 at 663.

 In this case, the Board has at most seven employees. The Board is comprised of five members who receive an annual check of $ 800 and it employs a part-time fire marshall and a part-time secretary. Therefore, it does not fall within the statutory definition of an employer.

 In addition, the Department does not have any employees. The Department hires firefighters/paramedics on a volunteer basis and does not compensate any of the individuals. Since there is no payroll, employment relationships do not exist between the firefighters/paramedics and the Department as defined by Walters.

 Besides the Board's five members and its two part-time employees, the only other persons compensated are employees of Kurtz. The plaintiffs claim that these employees are employees of both the District and the Department, while the defendants claim that Kurtz and its employees are independent contractors. Since the District is not a party to this suit, I only address the plaintiffs' claims against the Department.

 Independent contractors are not to be counted toward the fifteen employees required for Title VII jurisdiction. Ost v. West Suburban Travelers Limousine, Inc., 88 F.3d 435, 437-38 (7th Cir. 1996). To determine whether a person is an employee or ...


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