Jane Doe v. Goldstein's Deli

NOT PRECEDENTIAL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

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(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.

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1The 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
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

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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

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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
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

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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
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

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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.
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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

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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

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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 (7th 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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