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KELLER v. NISKAYUNA CONSOL. FIRE DIST. 1
June 8, 1999
CAROL J. KELLER, PLAINTIFF,
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
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.
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 ...