Carr v. Borough of Elizabeth

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Precedential or Non-Precedential: Non-Precedential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.
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NOT PRECEDENTIAL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).