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May 5, 1983

JACK WEBER, Plaintiff,
GEORGE COOK, LTD., Defendant.

The opinion of the court was delivered by: POLLACK

Milton Pollack, District Judge.

Plaintiff, Jack Weber, brings suit pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et. seq. alleging that he was improperly discharged from his emplyment by defendant. Plaintiff alleges that he had worked for defendant as a manufacturers' representative responsible for sales of sportswear to golf and tennis shops in and around the metropolitan New York area from 1971 until his termination on June 16, 1981. Additionally plaintiff claims that he had been promoted to Northeast Regional Sales Manager in 1974. Plaintiff complains that his discharge was the result of defendant's knowing and willful desire to terminate older manufactures' representatives and replace them with younger individuals. Plaintiff was 68 years old at the time of his discharge.

 Defendant moves for summary judgment on the ground that the Court lacks subject matter jurisdiction because defendant is not an employer as defined by Section 11(b) of the ADEA, 29 U.S.C. § 630(b), which provides:

 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. Defendant denies that it satisfies the definition of employer on the ground that it did not have twenty or more employees for twenty or more weeks in either 1980 or 1981, the years covered by the statute in this case. *fn1" Defendant concedes that it employed fifteen employees for at least twenty weeks in 1980 and fourteen employees for at least twenty weeks in 1981. Plaintiff asserts that some individuals which defendant classifies as independent contractors or officers are employees for the purposes of the ADEA.

 Since it appeared to the Court that the parties had raised a factual dispute concerning the relationship between certain individuals and the defendant corporation, the Court conducted a full evidentiary hearing to determine if subject matter jurisdiction was present in this case. On April 22, 1983, the Court heard testimony from plaintiff, Mr. Reed Cook, Executive Vice-President of defendant, and Mr. Larry Townsend, a sales representative for defendant. After carefully weighing the documentary evidence and assessing the credibility of witnesses, the Court determined at the close of the hearing that even when viewed most favorably to plaintiff the evidence supported a finding that no more than nineteen employees were employed for twenty or more weeks in either 1980 or 1981. Accordingly plaintiff's claim is dismissed for want of subject matter jurisdiction. The following discussion sets forth the reasoning in support of the Court's decision rendered at the close of the hearing.

 Individuals Claimed to be Employees.

 As noted above, defendant concedes fifteen employees in 1980 and fourteen in 1981. Every additional individual that plaintiff claims was an employee in 1981 was also claimed to be an employee for the same reasons in 1980. Thus if a determination of the number of employees in 1980 fails to establish federal jurisdiction, there will be an insufficient number in 1981, as well. In addition to the fifteen conceded employees plaintiff claims that George cook, Lorraine Cook, Reed Cook, (hereinafter, The Cooks), Larry Townsend, Shepard Richard, John Tallale, plaintiff and twenty-five sales representatives were also employees in 1980.

 The Cooks.

 The Cooks are officers of and shareholders in the defendant corporation. The Cooks received salaries for their services as officers for all weeks in 1980 and 1981. They received W-2 forms and were listed on defendant's Employer Quarterly Tax and Wage Reports as employees. As paid, active officers, the Cooks were employees of the defendant for the purposes on the ADEA in 1980 and 1981. See Zimmerman, supra, at 5-6; EEOC v. First Catholic Slovak Ladies Ass'n, 694 F.2d 1068, 30 Fair Empl. Prac. Cas. (BNA) 819 (6th Cir. 1982).

 Jack Weber.

 Up until the evidentiary hearing, defendant included Jack Weber, the plaintiff, in the list of individuals conceded to be employees. Defendant retracted this concession on the basis of the Seventh Circuit opinion in Zimmerman which was handed down on March 31, 1983. The Zimmerman decision excluded from the category of employee those individuals paid on an hourly basis who only worked part of the work week. Plaintiff was primarily employed as an independent sales representative in the New York metropolitan area and received remuneration in the form of commissions. Secondarily, plaintiff received a salary of $1200.00 per year to compensate him for supervising other salesmen who performed in plaintiff's territory. Plaintiff received w-2 forms for this supplemental income and was included as an employee on defendant's Employer Quarterly Tax and Wage Reports. Defendant argues that plaintiff only performed supervisory services on a few days each year and that Zimmerman requires that he not be included as an employee.The Court notes that Zimmerman distinguished between part-time employees paid on an hourly basis and those, like plaintiff, who are paid a salary. Only the former were excluded from the definition of employee under the ADEA. In any event, for the purposes of this motion, the Court will include plaintiff in the employee category under 29 U.S.C. § 630(b).

 The addition of the Cooks and plaintiff brings to nineteen the number of employees engated by defendant in 1980.While the Court recognizes that the term "employee" should be construed liberally to effectuate the purpose of the ADEA, see First Catholic Slovak Ladies, supra., the statute firmly requires that twenty employees be present for at least twenty weeks during one of the relevant years. As shown below, none of the remaining persons suggested to be employees by plaintiff meet even a liberal definition of employee.

 John Tallale.

 Defendant's payroll records indicate that John Tallale, a high school student in Miami, Florida, was employed for fourteen weeks in 1980. His employment terminated on April 1, 1980 when he resigned from the company. Defendant's Employer Quarterly Tax and Wage Report confirms that Tallale was an employee for only fourteen weeks in 1980.Plaintiff claims that Tallale was employed for twenty-three weeks, relying on IRS Form 6199, entitled "Certification of Youth Participating in a Qualified Cooperative Education Program". Form 6199, which is signed by a school official at Tallale's high school indicates that Tallale was enrolled in the program for twenty-three weeks. Obviously the duration of Tallale's enrollment in a school -- jobs program is not binding on the defendant.Tallale's duration as an employee is measured by the length of time that he actually worked, not the ...

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