Appeal from the United States District Court for the District of Columbia (No. 94cv00314)
Before: Sentelle and Henderson, Circuit Judges, and Buckley, Senior Circuit Judge.
Karen LeCraft Henderson, Circuit Judge
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Opinion for the court filed by Circuit Judge Henderson.
Separate concurring opinion filed by Circuit Judge Sentelle.
In a complaint naming two defendants-St. Francis Xavier Parochial School (School) and St. Francis Xavier Church (Church)-the Equal Employment Opportunity Commission (EEOC) initiated an action alleging violations of the Americans with Disabilities Act, 42 U.S.C. Section(s) 12101-12213 (ADA). The district court dismissed the case for lack of subject matter jurisdiction because the School (where the alleged discriminatory acts took place) did not have enough employees to be covered under the ADA. In so holding, the district court rejected the EEOC's argument that the employees of the School and the Church, along with the employees of the non-party St. Francis Xavier Day Care Center (Day Care Center), should be aggregated in determining coverage under the ADA. Because coverage under the ADA forms an element of the plaintiff's cause of action rather than a prerequisite to the district court's jurisdiction, the district court erred in dismissing the case for lack of jurisdiction. Although we would be free to affirm the district court (assuming we agreed there were insufficient employees for ADA coverage), on the different legal ground of failure to state a claim, we decline to do so. At this stage of the litigation it is not possible to determine if the employees of the School, the Church and the Day Care Center should be considered together or, as the district court concluded, separately. Accordingly, dismissal was premature and we reverse and remand for further proceedings.
In August 1992 the School placed an advertisement in the Washington Post for the position of part-time music teacher. Roberta Stein, who suffers from multiple sclerosis and is confined to a wheelchair, telephoned the School to inquire about the position. The content of the ensuing conversation is in dispute. Stein claims that Mildred Sherill, the School principal's secretary, first scheduled an interview with Stein but then canceled it after Stein inquired whether the building was wheelchair accessible. The School and the Church claim that the position had already been filled at the time Stein called and that, although Stein was told the building was not wheelchair accessible, this fact had nothing to do with her not being interviewed.
In February 1994 the EEOC filed an action claiming that the School and the Church had violated the ADA by failing to reasonably accommodate Stein in failing to provide a wheelchair-accessible interview site, 42 U.S.C. Section(s) 12112(b)(5)(A), and by discriminatorily refusing to hire Stein on the basis of her disability, 42 U.S.C. Section(s) 12112(a). In their Answer and Pre-Trial Statement, the School and the Church claimed they did not have the requisite 25 employees to be considered an "employer" under the ADA. *fn1 Before trial the district court directed the parties to submit briefs on ADA coverage. In its briefs to the district court, the EEOC contended that the employees of the School should be aggregated with the employees of the Church and the employees of the non-party Day Care Center. The district court treated the briefs of the School and the Church as a motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Concluding that the employees should not be aggregated and that, even if they were, the 25 employee threshold would still not be met, the district court vacated the previously established trial dates and dismissed the case for lack of subject matter jurisdiction.
On appeal the EEOC argues that the district court erred in failing to aggregate the employees of the School, the Church and the Day Care Center. If the employees are aggregated, then, according to the EEOC, the 25 employee threshold will be met.
The question whether the School and the Church have enough employees to be covered under the ADA does not affect the jurisdiction of the district court. Because the claim arises under the laws of the United States and is neither "immaterial and made solely for the purpose of obtaining jurisdiction" nor "wholly insubstantial and frivolous," Bell v. Hood, 327 U.S. 678, 682-83 (1946), the district court has federal ...