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KELLER v. NISKAYUNA CONSOL. FIRE DIST. 1

June 8, 1999

CAROL J. KELLER, PLAINTIFF,
v.
NISKAYUNA CONSOLIDATED FIRE DISTRICT 1; BOARD OF FIRE COMMISSIONERS OF NISKAYUNA CONSOLIDATED FIRE DISTRICT 1; THE SCHENECTADY COUNTY CIVIL SERVICE COMMISSION; AND JOSEPH BATTISTE, INDIVIDUALLY AND AS CHIEF OF NISKAYUNA CONSOLIDATED FIRE DISTRICT 1, DEFENDANTS.



The opinion of the court was delivered by: Kahn, District Judge.

    MEMORANDUM-DECISION AND ORDER

Presently before the Court is a motion brought by defendants Niskayuna Consolidated Fire District 1 ("Fire District"), Board of Fire Commissioners of Niskayuna Consolidated Fire District 1 ("the Board of Fire Commissioners") and Joseph Battiste ("Battiste") (hereinafter collectively referred to as "defendants") pursuant to Fed.R.Civ.P. 12(b)(1) to dismiss plaintiff's first cause of action. This claim alleges that defendants engaged in sex discrimination in their hiring practices in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq. (1988). The defendants argue that jurisdiction is lacking because the Fire District is not an "employer" within the meaning of Title VII.

By Order filed on October 21, 1998, this Court found that discovery should be allowed on the jurisdictional issue and referred the action to Magistrate Judge David R. Homer. Discovery has now been completed, and the defendants have filed further evidence in support of their motion. Plaintiff has not filed any further submissions in opposition.

It is noted that plaintiff objects to defendants' reliance on matters outside the complaint in support of their motion to dismiss. When subject matter jurisdiction is challenged under Rule 12(b)(1), evidentiary matter may be presented in support of the motion by affidavit or otherwise. See Kamen v. American Tel. & Tel. Co., 791 F.2d 1006, 1010 (2d Cir. 1986). Further, a court may resolve disputed jurisdictional fact issues, so long as those issues are sufficiently independent of the merits of plaintiff's underlying allegations. See Antares Aircraft v. Federal Republic of Nigeria, 948 F.2d 90, 96 (2d Cir. 1991); Lawrence v. Dunbar, 919 F.2d 1525, 1529-30 (11th Cir. 1990) (per curiam) (holding that where jurisdiction is "inextricably intertwined" with the merits of the lawsuit, such that a decision on one would effectively decide the factual issues of the other, court may not resolve factual dispute).

Plaintiff argues that the defendants' motion, which asserts that the Fire District is not a Title VII employer, does not involve a jurisdictional question. However, the Supreme Court referred to the term "employer" as it is used in Title VII as "jurisdictional." See E.E.O.C. v. Arabian American Oil Co., 499 U.S. 244, 248-49, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991). Further, one court in this Circuit has expressly held that

  [i]n order to permit a court to exercise jurisdiction
  over a defendant in a Title VII case, the defendant
  must meet the statutory definition of an "employer."

Serrano v. 900 5th Avenue Corp., 4 F. Supp.2d 315, 316 (S.D.N Y 1998); see also Guadagno v. Wallack Ader Levithan Assoc., 932 F. Supp. 94, 96 (S.D.N.Y. 1996) (holding that "employer" definition must be satisfied for the court to have jurisdiction). Thus, defendants' motion to dismiss does present a question of subject matter jurisdiction and is properly brought under Fed.R.Civ.P. 12(b)(1).

II. Background

The Fire District is both a political subdivision and an incorporated entity within the Town of Niskayuna, New York. The Board of Fire Commissioners is its governing body. Battiste, the Fire District Chief, is charged with the direction and oversight of operations including the provision of fire and paramedic service within the relevant geographic area.

Plaintiff alleges that since 1987, she has repeatedly applied for a job with the defendants as a paid firefighter/paramedic. She further alleges that she has taken the Civil Service eligibility test on three occasions and passed each time. On two occasions, she was interviewed. However, she has not yet been offered a position. She alleges that defendants did not offer her a job because of her gender.

II. Discussion

The Title VII prohibition on employment discrimination 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) (1988). The "[c]urrent or preceding calendar year" referred to are the years current to and preceding the year of the alleged discrimination. Guadagno, 932 F. Supp. at 96. In this case, that year was 1995. See Matthews Aff.Ex. A.

In support of their motion, defendants argue that only eleven persons were on the payroll in 1994 and 1995. Plaintiff argues that, in addition to these eleven, the Fire District also employed four individuals serving as Treasurer, Secretary, Attorney and Fire Surgeon, five individuals serving on the Board of Commissioners and a number of volunteer firefighters. Defendants counter that the Treasurer, Secretary, Attorney and Fire Surgeon are independent contractors, not employees, and ...


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