Catherine Greenlees appeals the district court’s dismissal of her claim for lack of subject matter jurisdiction. Because the district court lacks subject matter jurisdiction over an employment agency that is sued in its capacity as an employer when the agency has fewer than fifteen employees, we affirm.
I.
Eidenmuller Enterprises (Eidenmuller) is a franchisee of Express Services, Inc. (Express), an Oklahoma-based employment placement company. Pursuant to the franchise agreement, Eidenmuller is paid a commission fee by Egress to screen and place temporary workers with companies in the Corpus Christi area. The local companies at which the temporary workers are placed pay Express directly for the services of the temporary workers; they do not pay Eidenmul-ler.
Catherine Greenlees was employed by Ei-denmuller as a permanent placement specialist and an employee supervisor. Her wages and benefits were paid by Eidenmuller, her job duties were assigned by Eidenmuller, and Eidenmuller established the terms and conditions of her employment and had sole authority to hire and fire her.
Eidenmuller terminated Greenlees. She sued, alleging discrimination in her termination. The district court dismissed for lack of jurisdiction on the ground that Eidenmul-ler did not meet the statutory definition of “employer.”
II.
A.
Title VII makes it unlawful for “employers,” “employment agencies,” or “labor organizations” to discriminate against an individual because of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a). The term “employer” is defined as follows:
The term “employer” means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person....
42 U.S.C. § 2000e(b). The district court found that Eidenmuller employed fewer than fifteen employees, and this finding was not clearly erroneous. Therefore, if Greenlees’s suit against Eidenmuller is in Eidenmuller’s capacity as an employer, we lack subject matter jurisdiction over the claim.
Womble v. Bhangu,
The term “employment agency” is defined as follows:
The term “employment agency” means any person regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer and includes an agent of such a person.
42 U.S.C. § 2000e(c). Unlike the definition of “employer” in § 2000e(b), the definition of “employment agency” does not include any size requirement for coverage under title VII.
It is unlawful for an employment agency “to fail or refuse to refer for employment or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(b). An employment agency may be classified as either an employer or an employment agency.
See Schattman v. Texas Employment Comm’n,
Schattman
held that an employment agency that is excluded from the definition of employer under title VII is not subject to title VII with respect to its actions as an employer.
Similarly, Greenlees has sued Eidenmuller in its capacity as her employer. Since Ei-denmuller employs fewer than fifteen employees, it does not fall within the statutory definition of employer under title VII because title VII excludes employers with fewer than fifteen employees from coverage.
Greenlees argues that under
Vick,
the court has jurisdiction. But
Vick
is distinguishable. In
Vick,
a client of the TEC, not a TEC employee, sued the TEC, alleging that it violated title VII by refusing to refer her for jobs because she was pregnant.
Our decision that we lack subject matter jurisdiction is supported by analogous case-law interpreting the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621
et seq.,
which is patterned after title VII. The ADEA definitions of “employer,”
id. §
630(b), and “employment agency,”
id.
§ 630(c), are similar, except that to qualify as an employer for purposes of federal subject matter jurisdiction under the ADEA, the employer must have twenty, rather than fifteen, employees, and employment agencies are prohibited from discriminating against “any individual” because of age.
Id.
§ 623(b). In
Brennan v. Paragon Employment Agency, Inc.,
Similarly, “[w]here ... a plaintiff attempts to hold the union liable in its employer capacity, it must fall under that definition, ... just as any other employer.”
Chavero v. Local 241, Div. of Amalgamated Transit Union,
Under Schattman and the plain language of title VII, Greenlees must be considered to be suing Eidenmuller in its capacity as an employer, not as an employment agency. Thus, the district court was correct in holding that it lacked subject matter jurisdiction.
B.
Greenlees contends that the district court erred by refusing to defer to the EEOC’s interpretation of its guidelines pursuant to
EEOC v. Arabian Am. Oil Co.,
There are two flaws with this position. The first, most obvious problem is that we defer to agencies only when the language of a statute is ambiguous. In the current situation, under
Schattman
and the plain language of title VII, there is no ambiguity that would warrant deference to an agency interpretation. We cannot accept jurisdiction on the basis of the EEOC’s belief that we should have jurisdiction when Congress has explicitly forbidden us from doing so.
See Boelens v. Redman Homes, Inc.,
Second, the usual deference afforded to agency interpretations is attenuated when applied to the EEOC, because Congress did not confer on the EEOC authority to promulgate rules or regulations under title VII.
See General Elec. Co. v. Gilbert,
III.
Eidenmuller never employed fifteen or more persons. Because Greenlees is suing Eidenmuller in its capacity as an employer, the district court lacked subject matter jurisdiction under title VII. Thus, we AFFIRM the judgment dismissing her claim.
Notes
District Judge of the Western District of Louisiana, sitting by designation.