                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-2-2005

Carr v. Elizabeth
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4613




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Recommended Citation
"Carr v. Elizabeth" (2005). 2005 Decisions. Paper 1520.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1520


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                                                               NOT PRECEDENTIAL

                   IN THE UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                    Case No: 03-4613

                                WILLARD DALE CARR,

                                             Appellant

                                              v.

                              BOROUGH OF ELIZABETH




                     On Appeal from the United States District Court
                         for the Western District of Pennsylvania
                              District Court No.: 03-CV-0951
                     District Judge: The Honorable Arthur J. Schwab


                           Submitted Pursuant to LAR 34.1(a)
                                   January 21, 2005

                  Before: ALITO, M cKEE, and SMITH, Circuit Judges

                                (Filed: February 2, 2005)




                               OPINION OF THE COURT


SMITH, Circuit Judge.

       After the Borough of Elizabeth hired two full-time police officers without

notifying part-time police officer Willard Dale Carr that positions were available, Carr

claimed that the Borough violated the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 623. The Borough filed a motion to dismiss, contending that

subject matter jurisdiction was lacking because the Borough did not have the requisite

twenty employees to make it an employer for purposes of the ADEA. See 29 U.S.C. §

630(b). At the time the Borough filed its motion, the question of whether the employee

threshold for an employment discrimination claim is a jurisdictional prerequisite was

unsettled in this Circuit. See Nesbit v. Gears Unlimited, Inc., 347 F.3d 72, 77 (3d Cir.

2003) (listing cases). The majority of the circuits, however, had by then held that the

employee threshold was a jurisdictional requirement. Id. at 78. The District Court

followed the majority’s approach, treating the Borough’s submission as a Rule 12(b)(1)

motion.

       Consistent with the standard for resolving a Rule 12(b)(1) motion to dismiss, the

District Court made certain factual findings relevant to the employee threshold. See

Carpet Group Intern. v. Oriental Rug Importers, 227 F.3d 62, 69 (3d Cir. 2000). It

concluded that the Borough secretary was not an employee for purposes of the ADEA

because she fell within the statutory exception for “personal staff” of elected officials.

See 29 U.S.C. § 630(f). Without the Borough secretary as an employee, the Borough had

only nineteen employees. Accordingly, the District Court concluded that the Borough

did not constitute an employer for purposes of the ADEA and that subject matter

jurisdiction was lacking. Carr appealed.

       Apparently, the District Court was unaware of our decision in Nesbit v. Gears



                                              2
Unlimited, Inc., 347 F.3d 72 (3d Cir. 2003). In that case, this Court analyzed whether

Title VII’s “fifteen or more” employee requirement was “jurisdictional.” We determined

that the fifteen employee threshold was not jurisdictional; rather, it is a “substantive

element (whether an ‘employer’ exists) of a Title VII claim.” 347 F.3d at 83. Consistent

with that holding, we concluded that the District Court “should have resolved the issue

under the summary judgment standard.” Id. at 84.

       In light of Nesbit, and mindful that Title VII and the ADEA are similar in structure

and purpose,1 we conclude here that the District Court should not have applied a Rule

12(b)(1) standard, which allows a tribunal to inquire into the facts without viewing the

evidence in the light most favorable to the nonmoving party. 347 F.3d at 76-77. Instead,

the motion should have been treated as one for summary judgment. Accordingly, we will

vacate the District Court’s judgment and remand for further proceedings consistent with

Nesbit.




  1
  See Newman v. GHS Osteopathic, Inc., 60 F.3d 153, 157 (3d Cir. 1995); DiBiase v.
Smithkline Beecham Corp., 48 F.3d 719, 724 n.5 (3d Cir. 1995).
