The entities are operated by different staffs and each has its own principal or administrator. They have different employment contracts and practices.
The School is a separate entity, located in a building that is a block away from the Church and Day Care Center. There is some sharing of space: a room in the lower Church is occasionally used by the School for assemblies, but that use is limited by the needs of the Church and the Day Care Center. Pl.'s Mem., Ex. 5 at 37-38. The schoolchildren eat lunch in a room that is also used by the Day Care Center; however, the School and the Day Care Center do not use the room at the same time. Def.'s Mem. at 6. This minimal sharing of space is not sufficient to render the entities interrelated. Cf. Doe, 852 F. Supp. at 1250-51 (legal arm of corporation that received at least 90% of cases from the corporation and shared office suite, resources, fax and phone numbers, and printing services with corporation is sufficiently interrelated).
2. Common Management
Plaintiff conflates the second and third prongs of the test and does not advance any bases for a finding of common management aside from defendants' hiring practices, which are discussed below. The focus of this factor, however, is on the existence of common directors and officers for different entities. Fike, 514 F. Supp. at 727 (citations omitted). Here, there are separate management structures for the Church, the Day Care Center, and the School. These structures do not continuously monitor one another. The circumstances present here do not warrant a finding of common management. See Harris v. Palmetto Tile, Inc., 835 F. Supp. 263, 268 (D.S.C. 1993) (record does not support finding of single employer where different managers "controlled the daily operations and employment practices" of the entities); cf. Cook, 69 F.3d at 1241 (finding common management where one corporation ran the other "in a direct, hands-on fashion, establishing the operating practices and management practices").
3. Centralized Control of Labor Operations
"It is well settled that the 'control' required to meet the test of centralized control of labor relations is not potential control, but rather actual and active control of day-to-day labor practices." Fike, 514 F. Supp. at 727. Plaintiff has not met this burden.
The enterprises here have separate employees, directors, and employment practices. The sole way in which the Church is involved with the labor practices of the School is in the final phases of hiring. Plaintiff asserts that the Pastor "interviews all applicants for the School," but plaintiff's own exhibits contradict this assertion. Rather, the principal and assistant principal screen resumes and conduct interviews; the Pastor does not become involved until the end of the process, after the principal and assistant principal have selected two or three finalists, at which point he gives his input. Pl.'s Mem., Ex. 5 at 8; id., Ex. 3 at 2. When there is a disagreement, the Pastor makes the final decision. Id., Ex. 1 at 12; cf. Cook, 69 F.3d at 1241 (finding centralized control of labor relations where all applications for employment and personnel status reports for one corporation were channeled through the other). The entities have different administrators and distinct labor pools. Cf. Armbruster, 711 F.2d at 1338 (control of labor found where employees were routinely transferred between corporations). Plaintiff does not present adequate evidence of day-to-day active control by the Church of the School's labor relations to justify a finding that the entities should be treated as a single employer.
4. Common Ownership or Financial Control
The parties agree that there is common ownership of the property and the buildings in which the Day Care Center, the Church, and the School are located, Pl.'s Mem., Ex. 5 at 39; Def.'s Resp. to Pl.'s Mem. at 2, and that the Pastor must sign the School's budget. Pl.'s Mem., Ex. 5 at 39. Nonetheless, the Parish is part of the Archdiocese of Washington, which is the corporate entity that owns the property and the buildings. Further, as mentioned above, the Archdiocese has ultimate control over the School's budget. See discussion, supra note 3. The Archdiocese is not a party to this action.
Even though the Archdiocese, rather than the Parish, is the owner and locus of financial control, the Parish does have some intermediary supervisory power over the School. However, given (1) the Archdiocese's ultimate control over the School's budget, (2) the Archdiocese's status as owner of the property and buildings, and (3) the fact that the School, the Church, and the Day Care Center have separate budgets, see Pl.'s Mem., Ex. 2, the Court finds that this factor does not support a finding that the entities constitute a single employer. Cf. Armbruster, 711 F.2d at 1338-39 (court found "significant measure of control" where one corporation "'handled'" the other's accounts receivable, provided it with administrative backup, handled its payroll and cash accounting, monitored all sales shipments, and kept its bank accounts near the headquarters even though the corporation was in another state).
Accordingly, the Court declines to apply the integrated enterprise doctrine to consolidate defendants into constituting a single employer.
C. Counting Employees
Even if defendants could be considered to be a single employer for purposes of the Act, plaintiff still has not cleared the jurisdictional threshold of establishing that defendants had 25 employees during the relevant time period once the total number is adjusted to account for part-time and hourly employees. The parties offer varying (and sometimes self-contradictory) estimates: 27, including part-time employees, Def.'s Mem. at 4; 24, excluding 4 part-time employees, id. ; 41, including part-time employees, Pl.'s Mem. at 5; 39, including part-time employees, Pl.'s Resp. at 3; 33, excluding part-time employees, id. Plaintiff has attached two exhibits that list the employees, but Exhibit Three does not specify whether it applies to the relevant time period and it does not indicate whether the Parish employees worked full-time or part-time. Exhibit Four is similarly unhelpful; it lists the employees for the 1992-93 school year, but the relevant calendar years are 1991 and 1992, considered from January 1, 1991, through December 31, 1992. See McGraw v. Warren County Oil Co., 707 F.2d 990, 991 (8th Cir. 1983) (holding that identical language in the ADEA refers to the period from January 1 through December 31 and not any 12 consecutive months).
The ADA confers jurisdiction where the employer has "25 or more employees for each working day" but does not specify the method for counting employees. Courts have adopted two methods. The payroll method looks at the number of employees who were on the payroll in a given calendar week.
Thurber v. Jack Reilly's, Inc., 717 F.2d 633, 634-35 (1st Cir. 1983), cert. denied, 466 U.S. 904, 104 S. Ct. 1678, 80 L. Ed. 2d 153 (1984); Dumas v. Town of Mount Vernon, 612 F.2d 974, 979 n.7 (5th Cir. 1980); Edwards v. Esau Invs., 1994 U.S. Dist. LEXIS 15960, 66 Fair Empl. Prac. Cas. (BNA) 711 (D. Kan. 1994); Cohen v. S.U.P.A., 814 F. Supp. 251, 256 (N.D.N.Y. 1993); Gorman v. North Pittsburgh Oral Surgery Assocs., 664 F. Supp. 212, 214 (W.D. Pa. 1987); Lynn v. JER Corp., 573 F. Supp. 17, 20 (M.D. Tenn. 1983). The result of this approach is that all hourly and part-time employees count toward the jurisdictional minimum even though they are not present at work on each day of the work week.
The other approach, followed in more recent cases, interprets the phrase to mean that all salaried employees count, but that hourly and part-time workers count toward the jurisdictional minimum only on days when they are physically present at work or on paid leave. EEOC v. Metropolitan Educ. Enters., Inc., 60 F.3d 1225 (7th Cir. 1995), cert. granted, 116 S. Ct. 1260, 134 L. Ed. 2d 209 (1996); EEOC v. Garden and Assocs., Ltd., 956 F.2d 842 (8th Cir. 1992); Zimmerman v. North American Signal Co., 704 F.2d 347, 353-54 (7th Cir. 1983); Goudeau v. Dental Health Servs., 901 F. Supp. 1139, 1143-44 (M.D. La. 1995); Richardson v. Bedford Place Hous. Phase I Assocs., 855 F. Supp. 366 (N.D. Ga. 1994); Young-Gerhard v. Sprinkle Masonry, 856 F. Supp. 300, 301-02 (E.D. Va. 1994);
Lord v. Casco Bay Weekly, 789 F. Supp. 32, 34-35 (D. Me. 1992); EEOC v. Argent Indus., 746 F. Supp. 705 (S.D. Ohio 1989). The Court finds that this unquestionably is the more logical construction of the statute.
Generally, judicial construction of plain language ends the matter conclusively, at least in the absence of "a clearly expressed legislative intent to the contrary." Qi-Zhuo v. Meissner, 315 U.S. App. D.C. 35, 70 F.3d 136, 140 (D.C. Cir. 1995) (citations omitted). Plaintiff urges, however, that the legislative history of the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. §§ 2601 et seq., is reason enough for the Court to adopt the payroll approach to identifying employees. The FMLA's definition of "employer" closely tracks the definition in the ADA. The Senate Report for the FMLA states:
The quoted language parallels language used in Title VII of the Civil Rights Act of 1964 and is intended to receive the same interpretation. As most courts and the EEOC have interpreted this language, "employs * * * employees for each working day" is intended to mean "employ" in the sense of maintain on the payroll. It is not necessary that every employee actually perform work on each working day to be counted for this purpose.
S. Rep. No. 3, 193d Cong., 1st Sess. 21-22 (1993). The Court finds plaintiff's argument unpersuasive. First, the legislative history refers to Title VII and the FMLA and seems, at best, inconclusive on its application to the ADA. Second, "the interpretation given by one Congress (or a committee or Member thereof) to an earlier statute is of little assistance in discerning the meaning of that statute." Pub. Employees Retirement Sys. v. Betts, 492 U.S. 158, 109 S. Ct. 2854, 2862, 106 L. Ed. 2d 134 (1989). Furthermore, as the D.C. Circuit has stated in an analogous context:
For the language of the report to be controlling, it would have to be "either (1) an authoritative interpretation of what the [previously enacted] statute meant, or (2) an authoritative expression of what . . . Congress intended." It could not be the first because only the courts and not the legislature can "say what an enacted statute means." It could not be the latter, because, by enacting the existing language . . . Congress was reenacting the "settled judicial interpretation" . . . . "Reenacting precisely the same language would be a strange way to make a change" . . . . The legislative history of a reenactment cannot change existing law.