On Appeal from the United States District Court for the Western District of Pennsylvania - Erie D.C. Civil No. 86-00029 E.
Sloviter, Becker and Garth, Circuit Judges.
In her amended complaint, appellant Margaret J. Martin alleges that her employer United Way of Erie County (United Way) discriminated against her on the basis of her age and her sex in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621-634 (1985), and Title VII of the 1964 Civil Rights Act, as amended, 42 U.S.C. § 2000e to 2000e-17 (1981). The district court granted summary judgment to United Way on the DEA and Title VII claims on the ground that United Way was not engaged in an "industry affecting commerce" and on the ADEA claim on the additional ground that United Way was not an "employer" under the ADEA because it did not employ twenty or more employees for twenty or more weeks during the relevant years. Because we conclude that there exist genuine issues of material fact as to both grounds for the district court's grant of summary judgment, we reverse and remand for further proceedings.
Margaret J. Martin was employed part-time by United Way of Erie County, a non-profit corporation incorporated under the laws of Pennsylvania, from June 1981 through April 19, 1985. From May 1982 though April 19, 1985, Martin worked three-quarter time as an Assistant Communications Director for United Way. Martin was born February 2, 1935, and at all times material to the present litigation was between 40 and 70 years of age. Her performance at United Way was admittedly adequate. On April 19, 1985, Martin resigned from United Way.
Martin alleges that in early January 1985 she learned that the position of Communications Director would be open; United Way a advertised the opening in local papers and Martin submitted an application for the position on January 31, 1985. Martin was never given an interview for the position, but on February 13, 1985 she was called into the office of A. Gene Beer, United Way's Executive Director, who told her that the advertised position would not be filled due to a reorganization of United Way, and that in any event she did not fit the young and pretty image required for the position she sought. Beer stated that two new individuals would be hired for the Campaign and Communications Department, Stephen Babbitt as Campaign/Communications Executive Director for a period of one year only, and James Martin as Campaign and Communications Director with responsibilities equivalent to the Communications Director position Margaret Martin had originally sought. James Martin was younger than Margaret Martin and Margaret Martin alleges that both James Martin and Stephen Babbitt had inferior qualifications to hers. Beer later told Margaret Martin that no full-time work would be available to her, and, based upon this representation, Martin resigned from United Way. One week after Martin resigned, a young, slim woman was hired full-time for the position of Communicator. Martin also alleges that United Way discriminated against women in wages, hiring and promotion.
United Way moved to dismiss for lack of subject matter jurisdiction as well as failure to state a claim on the grounds, inter alia, that United Way was not engaged in an "industry affecting commerce" under the ADEA, 29 U.S.C. § 630(h), or under Title VII, 42 U.S.C. § 2000e(h), and that United Way was not an "employer" because it did not employee twenty employees for twenty weeks during the relevant years as required by the ADEA, 29 U.S.C. § 630(b). The district court conducted an evidentiary hearing at which evidence was presented on the questions of whether United Way was engaged in an "industry affecting commerce" and whether United Way had the requisite number of employees. Thereafter, United Way, at the district court's direction, filed a motion for summary judgment.
The district court, in granting United Way's motion for summary judgment, took judicial notice of the fact that "there are literally hundreds of organizations such as defendant operating throughout the United States as charitable organizations soliciting funds for charity and disbursing funds but with no industry or profit motive involved." App. at 285-86. The district court concluded that "trade in commerce as generally understood is controlling" but that "non-tax-paying, non-profit charitable corporations with but a single situs such as defendant were not embraced in these two statutes." App. at 286. As an additional ground for granting summary judgment to United Way on the ADEA count, the district court concluded that United Way did not employ the requisite number of employees. Martin appeals.
In an analogous situation, we cautioned the district court about pretermitting a ruling on the merits by an adverse ruling on jurisdiction that was intertwined with the merits. In Kulick v. Pocono Downs Racing Ass'n, Inc., 816 F.2d 895 (3d Cir. 1987), we held that the issue of whether state action existed to support a civil rights claim under 42 U.S.C. § 1983 was a matter to be resolved on the merits rather than as a matter of subject matter jurisdiction to be resolved under Fed. R. Civ. P. 12(b)(1). We stated that "elements of a claim that are called jurisdictional because they relate to Congress's jurisdiction remain questions of the merits, and the Supreme Court has made clear that a court may resolve them only in the manner that the court may resolve all other questions of the merits." Id. at 898.
As we pointed out in Kulick,
the Supreme Court has permitted courts to dismiss a claim for lack of jurisdiction if the federal claim is "made solely for the purpose of obtaining jurisdiction" or if the claim is "wholly insubstantial and frivolous." Bell v. Hood, 327 U.S. 682-83, 66 S. Ct. at 776. These exceptions do not permit a court to prejudge the facts alleged in the complaint, however, for court may dismiss for lack of jurisdiction only if claims are "insubstantial on their face." Hagans v. Lavine, 415 U.S. 528, 542 n.10, 94 S. Ct. 1372, 1382 n.10, 39 L. Ed. 2d 577 (1974) ...