                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-19-2003

Doe v. Goldstein's Deli
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-1361




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"Doe v. Goldstein's Deli" (2003). 2003 Decisions. Paper 43.
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                                                   NOT PRECEDENTIAL


           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT

                  ______________________

                         No. 02-1361

                  ______________________

                         JANE DOE

                               v.

GOLDSTEIN'S DELI; DANIEL DIEFFENBACH; CHARLES WELKI
               (D.C. Civil No. 01-cv-01324)

                     SARAH PARRISH

                               v.

GOLDSTEIN'S DELI; DANIEL DIEFFENBACH; CHARLES WELKI
               (D.C. Civil No. 01-cv-01325)

                  Jane Doe and Sarah Parrish,

                             Appellants
                  ______________________

        On Appeal from the United States District Court
            for the Middle District of Pennsylvania
                 (D.C. Civil No. 01-CV-01324)
                 (D.C. Civil No. 01-CV-01325)
            District Judge: Hon. William J. Nealon
                  ______________________

                 Argued: December 16, 2002

     Before: NYGAARD, ALITO and McKEE, Circuit Judges
                                  (Filed December 19, 2003)
                                  ______________________


CYNTHIA L. POLLICK, ESQ. (Argued)
The Employment Law Firm
126 Main S. Main Street, Suite 201
Pittston, PA 18640
Attorney for Appellant

KIMBERLY D. BORLAND, ESQ. (Argued)
Borland & Borland
69 Public Square, 11th Floor
Wilkes-Barre, PA 18701
Attorney for Appellee

ROBERT J. GREGORY, ESQ.
Equal Employment Opportunity
Commission
1801 L Street, N.W.
Washington, D.C. 20507
Attorney for Amicus-Appellant

                                  ______________________

                                         OPINION
                                  ______________________

McKEE, Circuit Judge.

         Jane Doe and Sarah Parrish appeal the district court’s dismissal of their Title VII

suit against Goldstein’s Deli, et al. The district court dismissed their complaint pursuant

to Fed R. Civ. P. 12(b)(1). For the reasons that follow, we will affirm the judgment of the

court.

                                               I.



                                               2
       Jane Doe and Sarah Parrish sued their employer, Goldstein’s Deli, Daniel

Dieffenbach and Charles Welki pursuant to Title VII of the Civil Rights Act of 1964, 42

U.S.C. §2000e et seq., alleging sexual harassment. The defendants moved for dismissal

under Fed. R. Civ. P. 12(b)(1), arguing that the district court lacked subject matter

jurisdiction because defendants did not fall within the definition of “employer” as

required under Title VII. Both parties conducted discovery, filed several briefs in support

of their positions and participated in an evidentiary hearing involving fourteen witnesses

conducted over the course of four days. Following those proceedings, the district court

granted the defendant’s motion to dismiss. This appeal followed.1

       We have jurisdiction over this appeal pursuant to 28 U.S.C. §1291. Our review of

a motion to dismiss is plenary. State Farm Mutual Automobile Insurance Co. v. Coviello,

233 F.3d 710, 713 (3d Cir. 2000). We review the factual findings of the district court for

clear error. See Carpet Group Int'l v. Oriental Rug Importers Ass'n, 227 F.3d 62, 69-70

(3d Cir. 2000) (explaining that “this Court reviews the District Court’s . . . findings of

jurisdictional facts for clear error”).

                                             II.

       We begin by recognizing the crucial distinction between 12(b)(1) motions that




   1
    The complaint names three defendants. However, the individual defendants are
named only because of their interest in Goldstein’s Deli; the employer that allegedly
discriminated. Accordingly, we will refer to the “defendant” in the singular throughout
this opinion.

                                              3
present a facial attack on the complaint and those that question the existence of subject

matter jurisdiction in fact, apart from the pleadings. Mortenson v. First Federal Sav. and

Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977). “[A]t issue in a factual 12(b)(1) motion is

the trial court’s jurisdiction–its very power to hear the case. . . .” Id. Therefore, a trial

court has an obligation to determine as a matter of law, if there is subject matter

jurisdiction. While the facial attack offers the plaintiff the safeguard of requiring the

court to consider the allegations of the complaint as true, the factual attack allows the

court to “weigh the evidence and satisfy itself as to the existence of its power to hear the

case.” Mortenson, 549 F.2d at 891. The court may consider and weigh evidence outside

of the pleadings to answer the jurisdictional question. Gould Electronics Inc. v. United

States, 220 F.3d 169, 178 (3d Cir. 2000) (citing Mortenson, 549 F.2d at 891). The

plaintiff always bears the burden of convincing the court, by a preponderance of the

evidence, that the court has jurisdiction. Id.; see also McNutt v. General Motors

Acceptance Corp., 298 U.S. 178, 189 (1936); Makarova v. United States, 201 F.3d 110,

113 (2d Cir. 2000). Here, plaintiffs argue that they have satisfied that burden and that a

preponderance of the evidence establishes that the defendant is an “employer” for

purposes of Title VII. They therefore claim that the defendant’s factual attack on their

complaint should not have been sustained by granting the motion to dismiss.

       The district court reviewed the defendant’s employment records for the 31 weeks

at issue in 1999. This included the weeks of June 4, 1999 to December 31, 1999. The



                                                4
court concluded that there were, at most, only 13 weeks during that period when the

defendant employed 15 or more employees. The court based its findings upon the

testimony of several witnesses who were affiliated with Goldstein’s Deli during 1999.

For example, Deborah Silinski testified that she did not begin working at the Deli until

September 17, 1999, thus eliminating her as a potential employee for the weeks of June

25 through September 17. Daniel Dieffenbach, a named defendant, was correctly

eliminated from consideration as an employee because he was actually the employer in

the sole proprietorship. The court concluded that the testimony of Douglas Hurley and

Dorothy Ciesla precluded them from being considered “employees” during significant

portions of the relevant period as well, and the record supports that conclusion.2 The

court viewed Anthony Roman’s testimony in context with defendant’s check register to

determine when Roman was actually paid. The court concluded that he was not an

employee prior to September 17, 1999.

       Finally, the court found, based on her own testimony, that Candice Karis began

work in mid November of 1999. There was some testimony that defendant employed a

worker named “Theresa” during the relevant period. The court correctly concluded that




   2
     According to Doug Hurley’s testimony, he began working at Goldstein’s Deli the
week of June 4, 1999 and quit working there on July 16, 1999, returning to employment
on September 10, 1999 to work until early October. Dorothy Ciesla’s testimony revealed
that she worked at Goldstein’s Deli from approximately the final week in May of 1999
until about July 11, 1999 and returned to employment with Goldstein’s for one week in
October.

                                             5
the record was insufficient to more specifically identify her or to support a finding that

she was an employee during the period in question. The court reached the same

conclusion regarding an alleged employee named “Jason.” Several witnesses could

neither identify him by last name nor verify when he actually worked at the Deli.3 After

the court considered all of the evidence of record it concluded that the plaintiffs had not

established that defendant had the requisite number of employees for 18 weeks of the 31

weeks at issue. The record only established a period of 13 weeks when Goldstein’s Deli

employed 15 or more employees. As a result, the district court concluded that the

plaintiffs had failed to establish that the defendant was an “employer” for the purposes of

Title VII. See 42 U.S.C. §2000e(b), and dismissed the complaint for lack of subject

matter jurisdiction.

       Doe and Parrish attempt to argue that the district court erred in not presuming

federal jurisdiction based upon their contention that defendant failed to properly

document its employees or the hours they worked, in violation of state and federal labor

statutes. They suggest that they established that defendant’s record keeping was

suspiciously inadequate during the period of the alleged harassment and that this should

have caused the court to draw an adverse inference in plaintiffs’ favor based on the




   3
     Although some witnesses remembered him as “Jason Buss,” others were only able to
remember him as “Jason.” The inconsistencies in identification and employment
verification rightfully gave the court pause in crediting his employment to any particular
week.

                                              6
absence of specific records. The argument has some force.

       “When the contents of a document are relevant to an issue in a case, the trier of

fact generally may receive the fact of the document's nonproduction or destruction as

evidence that the party that has prevented production did so out of the well-founded fear

that the contents would harm him.” Brewer v. Quaker State Oil Refining Corp., 72 F.3d

326, 334 (3d Cir. 1995)(citing Gumbs v. International Harvester, Inc., 718 F.2d 88, 96

(3d Cir. 1983); United States v. Cherkasky Meat Co., 259 F.2d 89 (3d Cir. 1958)). In

order for this rule to apply, the evidence in question must be in the party’s control and

there must have been an actual suppression or withholding of the evidence. Id. “No

unfavorable inference arises when circumstances indicate that the document or article in

question has been lost or accidentally destroyed, or where the failure to produce it is

otherwise properly accounted for.” Id. Even assuming that the failure to keep adequate

records of hourly employment constituted a violation of law,4 there is simply no evidence

to suggest that the action was taken to gain some kind of advantage. In fact, during his

deposition, Daniel Dieffenbach explained that the records of hours worked were not kept

for each employee because it was not necessary to do so once a payroll check was issued




   4
     Plaintiffs briefly point to the Fair Labor Standards Act, 29 USC §206, and the
Pennsylvania Minimum Wage Act, 43 PS §333.104 as requiring maintenance of payroll
records. While 29 C.F.R. §§516.2(a), 516.5(a) require that certain employment records
be kept by an employer, the defendant’s failure to produce them does not require the court
to draw an adverse inference which would presume subject matter jurisdiction over this
case.

                                              7
and the transaction was recorded in a checkbook register.

       The district court was clearly critical of the defendant’s record keeping. The court

remarked: “I don’t think the defense can take any great comfort in that finding, because I

think the record is- - is muddled and perhaps there were many records that if kept and

made available would have- - may possibly have supported plaintiff’s case, but I can’t say

it would have.” App. at 930-31. We agree that impropriety in the record keeping here

does not bridge the void in plaintiffs’ proof.

       Finally, the plaintiffs contend that the district court erred by “holding the

Appellants to a stringent standard in assessing a factual 12(b)(1) motion.” However, that

argument is simply without merit. Nothing suggests that the district court adopted an

incorrect standard of proof in reviewing this record. In fact, the court made clear that it

was applying the preponderance of the evidence standard in concluding that the plaintiffs

failed to establish that the defendant was an “employer” under Title VII. App. at 21. That

is the correct standard, and plaintiffs have not established that the court’s pronouncement

of that standard was other than an explanation of the standard of proof it was adopting.

                                             III.

       After a careful review of the evidence, the district court concluded that plaintiffs

had not established that defendant was an “employer,” as required under Title VII. As

noted above, the district court believed that the 15 employee requirement contained in the

definition of “employer” was jurisdictional and therefore dismissed the complaint for lack



                                                 8
of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1). However, we have recently

held that the 15 employer requirement is an element of plaintiffs’ cause of action, rather

than a jurisdictional requirement. See Nesbit v Gears Unlimited, Inc., 2003 WL

22390426, (3d Cir. 2003). The district court therefore erred in concluding that it did not

have subject matter jurisdiction.   However, we conclude that we can affirm on other

grounds. Gutherie v. Lady Jane Collieries, Inc., 722 F.2d 1141, 1145 n.1 (3d Cir.).

Because the plaintiffs did not object to the District Court’s decision to hold evidentiary

hearings concerning whether Goldstein’s was an “employer” within the meaning of 42

U.S.C. § 2000e(b), “we approach the case as if [the plaintiffs] had agreed to a bench trial

of the question.” Sharpe v. Jefferson Distributing Co., 148 F.3d 676, 678 (7 th Cir. 1998).

Because, as noted, the District Court’s findings of fact were not clearly erroneous we will

affirm the judgment of the district court based upon plaintiffs’ inability to establish an

element of their Title VII cause of action.

______________

TO THE CLERK OF THE COURT:

              Please file the foregoing Opinion.

                                                   ______________________
                                                   /s/ Theodore A. McKee,
                                                   Circuit Judge




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