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EEOC v. ST. FRANCIS XAVIER PAROCHIAL SCH.

June 4, 1996

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
ST. FRANCIS XAVIER PAROCHIAL SCHOOL and ST. FRANCIS XAVIER CHURCH, Defendants.



The opinion of the court was delivered by: HARRIS

 A jury trial of the instant action was scheduled to commence on March 5, 1996. The parties' pretrial statements, submitted for a conference held on February 28, 1996, alerted the Court to the fact that the parties contemplated trying the issue of subject matter jurisdiction to the jury. Because this issue raises questions of law, not properly susceptible to resolution by a jury, the Court requested that the parties brief the issue of jurisdiction.

 Before the Court are "Plaintiff's Memorandum on Subject Matter Jurisdiction," "Memorandum of Defendants," "Plaintiff's Reply Memorandum on Subject Matter Jurisdiction," and "Defendants' Response to Plaintiff's Memorandum." Because plaintiff carries the burden of demonstrating subject matter jurisdiction, the Court treats defendants' memorandum as a motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Upon consideration, the Court grants defendants' motion and dismisses the case for lack of subject matter jurisdiction. Although "findings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12 or 56," Fed. R. Civ. P. 52(a), the Court nonetheless sets forth briefly its analysis.

 Background

 This action arises from a phone call placed by Roberta A. Stein to defendant St. Xavier Parochial School (the "School") on August 17, 1992, in response to an advertisement for a part-time music teacher that defendant had published in The Washington Post. Ms. Stein has multiple sclerosis and uses a wheelchair. She claims that the School discriminated against her in employment because of her disability. Plaintiff, the Equal Employment Opportunity Commission ("EEOC"), filed the instant action against both the School and St. Francis Xavier Church (the "Church") on her behalf.

 The parties agree that a telephone conversation took place between Ms. Stein and the principal's secretary, Mrs. Mildred Sherrill, but there is disagreement about the content of that conversation. Plaintiff's version is as follows: When Ms. Stein called the School, Mrs. Sherrill informed her that the School was in the process of scheduling appointments for interviews. Mrs. Sherrill inquired whether Ms. Stein had an educational background in music and, when Ms. Stein said yes, scheduled an interview for 10:00 a.m. on August 18, 1992. Ms. Stein then asked whether the building was wheelchair accessible; Mrs. Sherrill put her on hold for several minutes. When Mrs. Sherrill returned, she told Ms. Stein that the interview had been canceled. Ms. Stein then suggested that the School accommodate her by conducting the interview outside; she was again put on hold, after which she was told that the School would not make this accommodation. Ms. Stein then asked, "You mean you won't even make an accommodation for an interview because of my disability?" to which Mrs. Sherrill responded, "I wouldn't put it that bluntly" and informed Ms. Stein that she should direct further questions to the principal. Pl.'s Pretrial Statement at 2-3.

 Defendants allege that when Ms. Stein called, she indicated that she was calling about the advertisement and asked whether the building was wheelchair accessible. Mrs. Sherrill advised her that the building was not accessible and that the position had already been filled. Ms. Stein became upset and asked whether Mrs. Sherrill had said that the position had been filled because Ms. Stein had indicated that she is handicapped. Mrs. Sherrill denied this motive, and Ms. Stein became upset. Mrs. Sherrill placed Ms. Stein on hold to let her calm down; when she picked up the phone, she asked Ms. Stein, who had not identified herself, to leave her name and phone number so that the principal could call her, but Ms. Stein said that she would call back later. Def.'s Pretrial Statement at 1-2.

 Plaintiff brought this action under Title I of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq., alleging that defendants failed to make a reasonable accommodation that would have allowed Ms. Stein to interview and failed to hire her because of her disability. The ADA incorporates by reference certain provisions of Title VII of the Civil Rights Act of 1964. See 42 U.S.C. § 12111(7) (incorporating by reference 42 U.S.C. §§ 2000e(g), (h); 42 U.S.C. § 12117 (incorporating 42 U.S.C. §§ 2000e-4 - 2000e-9)). Plaintiff also seeks damages pursuant to 42 U.S.C. § 1981a.

 Analysis

 The ADA defines an "employer" as "a person engaged in an industry affecting commerce who has 25 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding year." *fn1" 42 U.S.C. § 12111(5)(A). Defendants' memorandum sets forth two challenges to the Court's exercise of subject matter jurisdiction in this case. Defendants assert that (1) they are not covered by Title I of the ADA because they are not an industry affecting commerce with 25 or more employees; and (2) that the exemption for religious entities in Title III of the ADA (which relates to public accommodations) by implication exempts defendants from the provisions of Title I.

 I. The Definition of "Employer"

 A. Industry Affecting Commerce

 As noted above, the ADA covers employers who are "engaged in an industry affecting commerce." The ADA refers to 42 U.S.C. § 2000(e): "The term 'industry affecting commerce' means any activity, business, or industry in commerce or in which a labor dispute would hinder or obstruct commerce or the free flow of commerce."

 Defendants contend that the School is not an "industry affecting commerce" under this definition. Nonetheless, the School and its employees have engaged in activities that affect commerce. The School purchased supplies and books from companies outside of the District of Columbia. During 1992, approximately five of its employees commuted to the School from outside of the District. Employees made interstate telephone calls and mailed letters to locations outside of the District of Columbia. Pl.'s Mem., Ex. 1; see, e.g., Martin v. United Way of Erie County, 829 F.2d 445 (3d Cir. 1987) (finding effect on interstate commerce where defendant purchased products and supplies from outside of Pennsylvania and where employees traveled out of state on employer's business and made interstate telephone calls). The effect of the School's conduct on interstate commerce is sufficiently "substantial" to place it within the ambit of the Act. However, Plaintiff has not provided any evidence that the other defendant, the Church, engaged in activities that affect interstate commerce, and so this issue is inconclusive as to that defendant (although the Court presumes that some of the same factors exist with respect to the Church).

 B. "Integrated Enterprise" Theory

 Title I of the ADA applies to the School only if it had 25 or more employees during the current or preceding calendar year. "Current calendar year" is defined as the year in which the alleged discrimination occurred. Cf. Musser v. Mountain View Broadcasting, 578 F. Supp. 229, 230 (E.D. Tenn. 1984) (interpreting identical language in the Title VII context). Because Ms. Stein made the telephone call on August 17, 1992, the years relevant to this action are 1991 and 1992.

 It is undisputed that the School employed fewer than 25 employees at all times pertinent to this action. Recognizing this, plaintiff argues that pursuant to the "single employer doctrine," the Court has subject matter jurisdiction because the School, the Church, and the Parish's Day Care Center together allegedly employ more than the ...


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