                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT

                         _____________________

                              No. 99-10679
                         _____________________

           CINDY HILL,

                                           Plaintiff-Appellant,

           v.

           RESEARCH INSTITUTE OF AMERICA GROUP,

                                           Defendant-Appellee.

_________________________________________________________________

           Appeal from the United States District Court
                for the Northern District of Texas
                      Docket No. 5:98-CV-44-C
_________________________________________________________________

                           February 4, 2000

Before KING, Chief Judge, and POLITZ and DENNIS, Circuit Judges.

PER CURIAM:*

      Plaintiff-Appellant Cindy Hill (“Hill”) appeals the district

court’s dismissal of her suit against Defendant-Appellee Research

Institute of America Group (“RIAG”).    For the reasons stated

below, we AFFIRM.

      Hill was employed as a salesperson by RIAG.    She lived in

Lubbock, Texas, and covered the west Texas sales area for RIAG.

Hill alleges that RIAG violated the Family and Medical Leave Act

(“FMLA”), see 29 U.S.C. §§ 2601-2654, when it denied her leave to



  *
   Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
care for herself and her sick husband, and when it terminated her

employment.   Hill relied on the FMLA to form the basis of the

district court’s jurisdiction.     See 29 U.S.C. § 2617(a)(2).    RIAG

moved for dismissal under Fed. R. Civ. P. 12(b)(1), claiming that

the district court did not have jurisdiction to hear Hill’s

complaint because she was not an “eligible employee” within the

definition of the FMLA.    The district court agreed and dismissed

Hill’s complaint without prejudice.     Hill timely appeals.

      When a defendant’s motion for dismissal is based upon a lack

of jurisdiction, the burden lies with the party invoking the

court’s jurisdiction.     See Thomson v. Gaskill, 315 U.S. 442, 446

(1942).   Therefore, Hill bears the burden of showing that

jurisdiction does exist.     See Menchaca v. Chrysler Credit Corp.,

613 F.2d 507, 511 (5th Cir. 1980).     Because RIAG attacks the

factual base upon which jurisdiction is predicated, i.e., that

Hill is an eligible employee under the FMLA, Hill bears the

burden of submitting facts sufficient to support jurisdiction.1

See Irwin v. Veterans Admin., 874 F.2d 1092, 1096 (5th Cir.

1989).



  1
    We note that the district court’s consideration of evidence
outside of the pleadings does not serve to transform RIAG’s Rule
12(b)(1) motion into a motion for summary judgment. A Rule
12(b)(1) motion attacking the facts that form the basis of the
court’s jurisdiction will not be converted into a motion for
summary judgment unless those facts are “inextricably
intertwined” with the merits of the case. Moran v. Kingdom of
Saudi Arabia, 27 F.3d 169, 171 (5th Cir. 1994); see also Stanley
v. Cent. Intelligence Agency, 639 F.2d 1146, 1158 (5th Cir.
1981); see generally 2 James Wm. Moore et al., Moore’s Federal
Practice § 12.30 (3d ed. 1999).

                                   2
     A Rule 12(b)(1) motion to dismiss should be granted “only if

it appears certain that the plaintiff cannot prove any set of

facts in support of [her] claim that would entitle [her] to

relief.”   Home Builders Ass’n of Mississippi, Inc. v. City of

Madison, 143 F.3d 1006, 1010 (5th Cir. 1998).   The district court

“may base its disposition of a motion to dismiss for lack of

subject matter jurisdiction on (1) the complaint alone; (2) the

complaint supplemented by undisputed facts; or (3) the complaint

supplemented by undisputed facts plus the court’s resolution of

disputed facts.”   Robinson v. TCI/US West Communications, Inc.,

117 F.3d 900, 904 (5th Cir. 1997).   While we review the district

court’s decision to dismiss de novo, see Hager v. NationsBank

N.A., 167 F.3d 245, 247 (5th Cir. 1999), the court’s

“jurisdictional findings of fact” are reviewed for clear error.

Robinson, 117 F.3d at 904; see also Randel v. United States Dep’t

of the Navy, 157 F.3d 392, 395 (5th Cir. 1998).

     Under the FMLA, only an employee who is an “eligible

employee” within the meaning of the act may pursue a private

cause of action against an employer. See 29 U.S.C. § 2611.     An

eligible employee is an employee who has been employed for at

least twelve months, worked at least 1,250 hours in the last

twelve month period, and who reports to a worksite employing at

least fifty employees within seventy-five miles of the site.        See

29 U.S.C. § 2611(2).   RIAG argues that Hill is not an eligible

employee under the terms of the FMLA because she did not work at

a worksite that employed fifty employees within seventy-five


                                 3
miles of the site.

     The regulations accompanying the FMLA state that in the case

of employees with no fixed worksite, such as regional

salespersons, the worksite is the office the salesperson reports

to and from which assignments are made.       See 29 C.F.R.

§ 825.111(a)(2).   RIAG argues that Hill’s worksite was in Dallas,

Texas, because her supervisor, Jim Vorlop (“Vorlop”), resided in

Dallas and he was responsible for assigning work to Hill,

reporting her sales, and supervising her progress.       Hill argues

that her real worksite was one of two locations in New York,

because “her principal assigned work” came from RIAG’s New York

offices.

     The district court determined that Dallas was Hill’s

worksite for the purpose of determining whether she was an

eligible employee under the FMLA.       We can not say this

determination was clearly erroneous.       Although there is some

evidence indicating that Hill had periodic contact with RIAG’s

offices in New York, Hill’s deposition testimony indicates that

she reported her sales to Vorlop in Dallas, that her territory

was within his managerial region, that he monitored her sales,

and that he was responsible for monitoring her during

probationary employment periods.       Additionally, RIAG submitted

the affidavit of its human resources manager, who stated that

Hill was assigned work by, and reported her sales to, Vorlop.

     The district court further found that RIAG did not employ

fifty or more employees within seventy-five miles of Dallas.        An


                                   4
affidavit submitted by RIAG indicated that the company did not

have fifty or more employees within seventy-five miles of Dallas,

and Hill did not introduce any evidence that the requisite number

of employees worked within the Dallas area.

     Lastly, Hill argues that the district court erred by not

treating RIAG as an “integrated employer” as defined by the

FMLA’s accompanying regulations.       See 29 C.F.R. § 825.104(c)(2).

Because RIAG is an integrated part of another company, Hill

argues that the question of whether she was an eligible employee

should have been evaluated in light of her relationship with the

parent company.   However, given that Hill bears the burden of

showing that she was an eligible employee, her argument must

fail.   The record is wholly void of any evidence indicating that

RIAG is an integrated employer or that Hill was an eligible

employee of any company of which RIAG may be a part.

     The district court’s factual findings were not clearly

erroneous.   Because the district court’s findings meant Hill was

not an eligible employee within the meaning of the FMLA, she

could not sue for relief and the district court had no

jurisdiction to hear her claim.    Therefore, the district court

properly granted RIAG’s motion to dismiss.      We AFFIRM.




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