ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Civil No. 76-52).
Seitz, Chief Judge, Van Dusen and Weis, Circuit Judges.
Plaintiff, Nancy Canavan, appeals from an order granting defendants' 12(b)(6) motion to dismiss her complaint for lack of subject matter jurisdiction.
Rather than answer the complaint in the district court, defendants filed a motion to dismiss accompanied by affidavits and exhibits. Plaintiff had an opportunity to file an opposing brief, but advised the district court that she was unable to do so without an opportunity to proceed with discovery on the factual allegations concerning jurisdiction raised in defendants' affidavits. She therefore requested that the court withhold decision on the motion pending discovery. The court refused this request because it thought that "additional discovery may further illustrate but will not cure a problem which is already sufficiently crystallized."
The complaint contained three counts: count I charged defendants with violating Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq.; count II alleged a conspiracy on the part of defendants to deprive plaintiff and others similarly situated of equal employment opportunities in violation of 42 U.S.C. § 1985(3); and count III sought relief under § 4 of the Clayton Act for a violation of § 1 of the Sherman Act. While the court dismissed the entire complaint on jurisdictional grounds the defect identified by the court related solely to count I. In their brief defendants have avoided making any contention regarding lack of jurisdiction on the remaining counts. It therefore appears that there is no record basis whatsoever for dismissal of counts II and III at this time and the court erred in dismissing those counts on this record. We, of course, express no view as to whether on remand counts II and III could withstand a 12(b)(6) motion to dismiss for lack of subject matter jurisdiction; we only hold that there is no basis in the record on this appeal upon which the dismissal could be sustained.
We now turn to the Title VII claim which was the basis for the district court's opinion that it lacked subject matter jurisdiction over the action.
In count I of her complaint, plaintiff alleged that she was employed by Beneficial Finance Corporation and/or Beneficial Management Corporation (Management) from 1951 through March 1975. Beneficial Finance Corporation was alleged to be a Delaware Corporation engaged in the business of "consumer financial services" through approximately 1800 offices nationally. Management was alleged to be a wholly-owned subsidiary of Beneficial Finance Corporation which is engaged in the business of providing supervision, cost, audit, accounting and other services to its parent. An officer of Beneficial Corporation filed an affidavit which alleged that there is no "Beneficial Finance Corporation," but that Beneficial Corporation (Beneficial), which is a holding company maintaining stock ownership of numerous local finance company subsidiaries, was probably intended to be named by plaintiff.
The allegations of sex discrimination against plaintiff were that her seniority was calculated in a discriminatory manner "for a number of years," that during the period of her employment she was not given an opportunity to train for a management position though she performed managerial duties, and that in February 1975 her request to fill a vacancy as an assistant manager was denied. Plaintiff also alleged that she had satisfied all conditions precedent to filing suit in district court and appended a copy of the right-to-sue letter issued by the EEOC.
From an affidavit filed by Bernard McCrory, the manager of Beneficial Finance Company of Allegheny County (Allegheny), it appears that the February 1975 incident alleged by plaintiff occurred while plaintiff was an employee of Allegheny which is a wholly-owned subsidiary of Beneficial engaged in the consumer loan business in Pittsburgh. The affidavit also listed seven different Beneficial subsidiaries in the Pittsburgh area for whom plaintiff worked from 1951 to 1975 with the dates of employment and termination of each. McCrory attached an employment contract between Management and plaintiff which was executed on November 19, 1974 and which by its terms was assignable to any Beneficial affiliate.*fn1 McCrory indicated that "the practice of consumer finance subsidiaries in the Pittsburgh area is to have an employee enter into an employment contract with Beneficial Management Corporation. Immediately thereafter, and pursuant to the terms of the aforesaid contract, the local consumer finance subsidiary for whom the individual will be working is designated as the employer in a Rider to the employment contract." McCrory attached a copy of a Rider agreement by which plaintiff had been assigned to Allegheny on January 13, 1975.
McCrory also attached a copy of plaintiff's charge of discrimination which had been filed with the EEOC, the relevant portion of which appears below:
An officer of Management filed an affidavit which indicated that one of the staff services it provides to Allegheny and other consumer finance subsidiaries of Beneficial is the calculation of seniority and that ...