Scarfo v. Ginsberg

organization, for no organization, otherwise, would risk lives illicit or members central or valuable

.its filled the

way. The fact that De Varón importation in the

role of swallower totally ignored consid-

scheme cannot be player. a minor

ering whether she was reasons, I would foregoing all the

For the district court’s denial of De

reverse par- 3B1.2 minor request

Varon’s reduction, remand for the

ticipant whether De Varón met

court to consider demonstrating that she was

her burden of culpable participants other

less than most

in the offense. Plaintiff-Appellant, SCARFO,

Elaine A. App Cross- ellee, 94, Inc., al., GINSBERG, et

Victor Defendants-Ap Corporations,

Florida

pellees, Cross-Appellants.

No. 97-5244. Appeals,

United States Court

Eleventh Circuit.

May Gables, Weisberg, Elliot Coral

Robert FL, Orlando, FL, Chapman, Martha A. Plaintiff-Appellant, Cross-Appellee. Anania, Jay Baumgarten, Maurice Miami, FL, Blackwell, Bandklayder & Cross-Appellants. Defendants-Appellees, HATCHETT, Judge, Before Chief RONEY, BARKETT, Judge, and Circuit Judge. Circuit Senior HATCHETT, Judge: Chief appeals Elaine the district court’s Scarfo appel- grant summary judgment lees on her claims of sexual harassment employee discrimination violation Rights Title VII of the Civil Act of (1997). seq 2000e et. §§ 42 U.S.C. Scarfo court erred in contends the district concluding that it lacked her Title claims. We over VII affirm.

I. FACTS partially Ginsberg Victor owned or corporate appellees owned the DBG Inc.; 95, Inc.; 96, Inc.; DBG DBG corporations number of not named in this (Dr. Build, lawsuit, including Dr. Inc. Build); Systems, Dreamline Inc. Cabinet (Gal- (Dreamline) Frame, Galaxy Inc Frame). axy corporations None of these employed 15 or more for at was a least 20 weeks 1992. Scarfo secretary receptionist for DBG Dr. alleged Build and Dream Line. She throughout employment, Ginsberg her sexually subjected her to unwelcome offen- sive conduct. Scarfo,

According to two or more of above combined constituted 96, Inc.; purposes. corporations, and related her Build; Galaxy Dr. Dreamline Moreover, Frame. Ginsberg contends that personnel were em- part-time and various A magistrate judge report issued a rec- pursuant to Title VII ployees ommending the denial of the 2000e(b). 42 U.S.C. motions, summary judgment finding that

genuine issues of material fact existed re- garding subject jurisdiction. The II. HISTORY PROCEDURAL district court issued an order adopting the 26, 1993, Scarfo filed com- On October report magistrate judge’s and recommen- 94, Inc.; plaint against Ginsberg, DBG dation and set the case for trial. (the 96, Inc., Inc.; DBG and DBG 2, 1996, February On appellees filed (1) appellees) alleging Ginsberg: that dis- a motion to continue the trial on the against employment criminated her in her ground that the determination of whether (2) sex; subjected on the basis of her her they employers were under Title VII was and to sexual harassment created hostile subject jurisdiction issue that a (3) environment; discharged work and her jury. court should decide rather than a At retaliation, in violation of Title VII of conference, pretrial Act of Rights Civil U.S.C. motion, granted appellees’ referred the seq. 2000e et. brought Scarfo also Flori- matter magistrate judge, to the and direct- battery, da state law claims for intentional ed the magistrate judge to hold an eviden- infliction of emotional distress invasion tiary hearing report and to file a privacy. on recommendation the issue subject jurisdiction existed under 23, 1995, January On Title VII. summary judgment, contending moved for 2, 1996, magistrate On December that the district court lacked mat- judge report recommending issued a that ter over Searfo’s Title VII the district court dismiss the case for lack opposed appellees’ claims. Scarfo mo- magis- The tions, arguing that sufficient evidence ex- trate judge based the recommendation on isted in the record to create an issue of finding corporations that certain Ginsberg material fact as to whether had joined a single employer, should be as but employed or more for employees Galaxy Frame should be excluded during year. weeks the relevant single employer framework because its per- Title VII “a defines operations significantly “business were less industry affecting in an engaged son com- companies. integrated with the other” merce who had fifteen or more Moreover, judge magistrate deter- working day twenty each in each of or Ginsberg employee mined that was not an in the current or more calendar weeks determining the number of proceeding year, any agent employees, finding Ginsberg’s activi- 2000e(b) person.” such a U.S.C. ties were those of an owner rather than an (1998). employee. magistrate judge The then rec- ommended that the district court dismiss argues Ginsberg owned and Scarfo Scarfo’s lawsuit. operated corporations a number of group together single court should as a objections mag- After filed to the employer, separately, viewed as her report recommenda- judge’s istrate tion, joint employer, purposes. for Title VII parties after the June argues argu- Scarfo also had briefed the issue and had oral ment, determining Title VII in this an order of the district court issued dismissal, of the combination of the In its order of case consists dismissal. 94, Inc.; 95, Inc.; appellees DBG district stated: the facts tends that the contention should has reviewed all of The Court they have raised applied a Rule not be addressed because parties presented and appeal. first time on standard de- this issue for the summary judgment circuit, however, jurisdictional Under the law of this dispositive the two ciding (1) parties owner Victor cannot waive the defendant issues: diction, we consider mat- employee Ginsberg was not (2) any during .... claims at time corporations and Gal- ter defendant Frame, Property which the Latin American corporation litigation. Inc. a See axy Marina, Casualty as related to the named & Ins. Co. plaintiff alleges Hi-Lift Cir.1989). 1477, 1479 pleading juris- defendant VII, Therefore, is- high- was not so we address diction under companies to the other sue. ly interrelated “single a they could be deemed subject Attacks on matter employer.” (1) attacks, in facial and come two forms: court also dismissed the state The district (2) Dunbar, factual attacks. Lawrence v. claims, in prejudice refiling law without to (11th Cir.1990) (citing 919 F.2d 1529 appeal, and state court. Scarfo filed this Chrysler Corp., Menchaca v. Credit 613 cross-appealed. appellees (5th Cir.1980)).

III. ISSUES complaint Facial on a attacks merely court to look and see “require the (1) The issues we discuss are: whether plaintiff sufficiently alleged has subject the district court had matter subject jurisdiction, matter and basis of un- diction over Scarfo’s Title VII claims [plaintiffs] complaint in are allegations doctrine; employer” “single der the taken as true for the of the mo (2) its whether district abused Dunbar, tion.” Lawrence v. dismissing discretion in Scarfo’s state law (11th Cir.1990). 1525, 1529 Factual at claims. “the tacks existence fact, irrespective matter in IV. OF REVIEW STANDARD pleadings, matters outside review the district court’s We affidavits, testimony such as pleadings, findings facts for clear Lawrence, 919 F.2d at are considered.” Develop error. See Eaton v. Dorchester in explained 1529. This circuit has (11th ment, Inc., Cir. attack, presumption of truthful 1982). review the We district court’s dis afforded a under Federal ness of the state claims for missal abuse 12(b)(6) Rule of Civil Procedure does not L.A. Draper discretion. See & Son attach, weigh and the court is free to Frye, Wheelabrator — evidence, stating: (11th Cir.1984). upon subject [in a factual attack jurisdiction] may proceed the trial court V. DISCUSSION 12(b)(6) as it never could under or Fed. Single Employer A. 56. Because at issue in a factu- R.Civ.P. 12(b)(1) contend, appellees The for the al motion is the trial court’s appeal, very power to first time on the district court hear —it’s authority authority to it lacked consider whether had case—there is substantial weigh the trial court free to the evi- under the “sin is gle employer” only satisfy doctrine because one of dence itself as to the exis- argues power the four that Scarfo tence of its to hear the case. short, collectively “single employer” presumptive constitute a no truthfulness at- plaintiffs allegations, and the was named as defendant. Scarfo con- taches 20 or more calendar ing day facts will each of disputed material existence or preceding weeks the current evalu- the trial court from preclude not year,” inapplicable, Title VII is and the jurisdiction- the merits of ating for itself jurisdic- court lacks district al claims. claims. tion over Scarfo’s See U.S.C. Lawrence, F.2d at 1529 Wil 2000e(b).2 con- Whether Tucker, 404, 412-13 liamson v. under Title VII does stitute Cir.1981)). implicate an element cause that under Garcia v. argues Searfo Virgo, action. 30 F.3d at 1359. Rath- See fact-finder, jury, Copenhaver, er, appellees constitute an em- em “single should have determined applies ployer addresses whether Title VII purposes. Title VII ployer” issues for Thus, appellees’ motions to this case. Cir.1997). rea Garcia’s F.3d 1256 jurisdic- dismiss for lack of however, inapposite this case. soning, is properly under Feder- tion are considered 12(b)(1). al Rule of Procedure When Civil was whether The issue Garcia disputes regarding faced with factual sub- if the jury should determine court or the ject jurisdiction, persons similarly well as other plaintiff, as may weigh serves as the fact-finder situated, “indepen- “employees” were evidence, provided the Age under the Discrimi- dent contractors” im- jurisdiction does not (ADEA), Employment Act nation plicate an element of the of action. cause comprised employees required the 20 thus 12(b)(1) (1998). Because Fed.R.Civ.P. employer sta- to elevate the defendant subject matter addresses the jur- necessary to confer tus case, jury of a hear a a power court to court, on the court. The Garcia isdiction regarding does not resolve factual issues scenario,” noting “the unusual factual held Instead, jurisdiction. that subject matter “employ- plaintiff whether the was an that duty is for the court. This determination plaintiffs ADEA was an element the ee” of employer is different from the intertwined and, therefore, any of material claim issues employee issues Garcia considered. jury. fact were for the case, jury In a reach the this before could at 1267.1 “employees” of whether 15 or more issue contrast, In the status appellees, worked for the impli “employers” in this case does not compa- which of the needed to determine an element of the Title VII cause of cate In counting purposes. it could use for nies case, appellees action. In this the contend words, in where the court other with they “single employer” are not a plaintiff if clearly had the 42 meaning of Title See U.S.C. “in- the VII. rather than proved “employee” status 2000e(b). status, appellees consti Whether the issue dependent contractor” “employer” “employee” within the definition of in fact an tute whether was In a threshold issue. cause of action. Title VII is was an element of the Associates, Ltd., case, Beach consti- Virgo v. Riviera (11th Cir.1994). only jurisdic- Unless tute an concerns F.3d jurisdiction are for employer regarding “who tion. Issues constitute work- the court. 15 or more for each has Galaxy poses; Frame "employer” "employee” however it found In 1. because the ADEA’s three oth- issues were intertwined not be combined with these should "employee” "employer” during definitions of overlapped. employer corporations as Scarfo’s er at 1265 n. 9. year. court determined The district high degree a the evidence did not establish found that DBG Dr. 2. The district court Frame, Galaxy between interrelatedness 95, Build Dreamline Cabinets constituted and Dreamline Cabinets. Dr. Build pur- VII single in 1992 for Title question. disputed If the facts B. decide State Law Claims relation to the elements of the bear no if contends that even action, judge is the fact finder. cause properly dismissed her Title district court If, hand, disputed facts on the other juris for lack of VII claims relating to are intertwined diction, authority jurisdic to retain it had relating to the elements of with facts appel claims. The tion over her state law action, disputed questions cause of lees contend that once the district fact are to decide. claims, it had no dismissed the federal In this case we must decide the dis- discretion to retain puted facts defen- regarding whether the 1367(a) provides Title 28 U.S.C. dant is an of Title in which the district courts any action liability only subject involve they may exer original jurisdiction,” “have jurisdiction or rather “a substan- involve jurisdiction over state supplemental cise claim[,] tive element of Title inter- [a VII] law claims related to the federal claim. question [subject twined with the mat- however, appeals, The federal courts of jurisdiction,” becoming a matter ter] thus uniformly held that once the district have jury. Copenhaver, for the Garcia v. juris court determines that (11th Cir.1997). Gar- plaintiffs federal claims does diction over very this circuit addressed this same cia> exist, plaintiffs courts must dismiss question in the context of the ADEA and Theatrical, state law claims. See Musson disputed repre- concluded that issue Express Corp., Inc. v. Federal an “attack [which] sented Cir.1996); Randolph implicates also merits Rent-A-Car, Budget question cause of action” and thus was a Cir.1996); Corp. Hadbury, Toste Farm jury. at I for the believe Gar- (1st Cir.1995); 646 n. 11 reasoning applies cia’s to this case. (5th Bhangu, v. Womble Therefore, I would reverse the district Cir.1989) (holding that where the district court’s dismissal and remand to allow a appellee court determines that the was not jury to decide claim Scarfo’s on the merits. an within meaning the of Title support position, majority To its the claim VII dismisses the Title VII for Dunbar, quotes from Lawrence v. subject jurisdiction, lack of the dis Cir.1990), suggesting that trict court must dismiss the state law that, party Lawrence holds where a claims). Therefore, the district court did subject mounts a factual to mat- in dismissing not abuse its discretion Scar- “ jurisdiction, ter ‘the trial court is free to fo’s state law claims. ... weigh the [and] evaluate] evidenced itself the merits of VI. CONCLUSION ” (quoting claims.’ Williamson reasons, foregoing For the affirm we Tucker, Cir.1981)). judgment. district court’s statement, however, comprises only This AFFIRMED. in part holding of the Lawrence. The goes clearly on to state that when a BARKETT, Judge, dissenting: Circuit subject factual defendant’s attack on mat- “ I agree pure questions implicates of law relat- ter an ele- ‘also actionf, ing proper to are de- ment of the cause of t]he However, by ... judge. cided when the course of action the district court is existence of to find exists and deal facts, disputed objection turns on the resolution of with as direct attack on the depending dispute, plaintiffs [by applying substance of the merits of the case 12(b)(6) province jury summary it be the of the the Rule to Rule 56 here, we face which is alleged] inquiry the distinct to the facts standard judgment Williamson, Ginsberg’s challenge to the ...,’” whether id. “intertwined,” 415) is, alleged jurisdiction is itself to take the facts court’s at —'that non-moving question, favorable to the an additional factual but light most not with and, disputed are material party, there the cause of action. with an element of facts, jury to the clear, the case send analysis And as the Garcia makes decision. employer both the defendant’s status and plaintiffs employee status for here, therefore, is key inquiry The of Title VII are substantive elements to the Ginsberg’s challenge cause of action “intertwined” ground that he jurisdiction on court’s jurisdiction. question with the statutory not meet the definition does impli- Title also an under VII Garcia, emergency In room doctor cause of ac- an element of Scarfo’s cates Copenhaver/Bell contracted with to work implicitly recognizing majority, The tion.1 hospitals. client one of its so, explanation this is asserts without F.3d at 1258. When Garcia sued under ‘employers’ that “the status ADEA, precluded a Magistrate an element implicate case does not by dismissing the case determination cause of action.” of the for lack of Garcia, however, Ginsberg, at holds finding many on its Based opposite. the exact Copenhav- with physicians under contract majority attempts distinguish The contractors, independent Mag- er were by suggest- at hand from the case Garcia Copenhaver em- istrate concluded that ing under the facts of fewer than 20 and was ployed Copenhaver was an question of whether not an within therefore purposes was “in- “employer” for Title VII the ADEA. See id. at 1260.2 meaning of of whether question tertwined” with the precisely is what This “employee.” was Garcia however, majority, did here. Unlike however, that where a defendant we held dismissal, reversed the this court Garcia challenges the court’s erred in not Magistrate holding by arguing that he is not statuto- diction jury. the case to the The Garcia sending must be ry employer, questions involving a characterized the case as court This by jury, the not the court. resolved jurisdic- attack on “factual” applicable here. The holding squarely is tion, power to make under which “a court’s Garcia, the question the of fact weigh of facts and to the evidence findings “in- plaintiffs “employee” status was also attack on on whether the depends that of the defendant’s tertwined” with implicates the merits jurisdiction also wholly irrelevant to “employer” status was of action.” Id. at plaintiffs cause irrelevant to holding [the] the that case is of 1264, contrary actually supports a Virgo conclusion majority’s v. Riviera 1. The reliance "[wjheth Ltd., Associates, majority’s to the bald assertion 30 F.3d 1350 Beach ‘employer’ 1994), an with Virgo may er the constitute no avail. Cir. is thus to a threshold definition of Title is question in the proposition that the stand for the Ginsberg, at jurisdictional issue.” "employer” is an for whether a defendant 1359). issue, (citing Virgo,30 F.3d at purposes but Title VII is possibility the that this it does not foreclose 630(b) (defining § 29 U.S.C. plain 2. See also inquiry implicates an element of a also fact, "employer” purposes the ADEA as "a for of Title VII. In tiff’s cause of action under industry affecting engaged com- Virgo’s emphasis person in an suggests, on the as Garcia twenty or more merce who has question of a defendant’s factual nature of the status, working day twenty or more in each of the fact each "employer” combined with decided, preceding in the current or calendar weeks Virgo was "Title VII did when year”). at permit by jury,” trials added).3 Copenhaver’s jurisdictional challenge im- (emphasis To make this determination, plicated the court examined both claim. the merits of Garcia’s Copenhaver words, was an language other because “employee” purposes and Garcia an provided ADEA “the basis for both the sepa Treating question the ADEA. each ... and the ... rately, ques concluded that each court relief,” substantive claim for id. at of an tion a substantive element “[was] the court found the elements of the claim with the ADEA claim and intertwined jurisdictional ques- intertwined with the jurisdiction.” Id. at 1264. It question of tion. this conclusion on the basis that reached The court’s rationale was based on the and the mer question “[t]he fact that a challenges defendant who his or considered inter its of an action will be her own as an status under the provides twined where ... ‘a statute statute denying plain- is effect jurisdic basis for both the statutory tiff has a claim for relief. Such a plaintiffs tion of the federal court and ” at goes substantive claim for relief.’ Id. to one of the elements of Gasoline, Valley claim, Sun Inc. qualitative- and is thus Enterprises, Ernst 139— ly types jurisdic- different than other (9th Cir.1983)). challenges only pow- tional which go to the er of the court to hear the claim at all. Looking to see if the statute provided Tucker, See Williamson v. basis for both the (“[A]s Cir.1981) general rule claim, substantive Garcia noted claim cannot be dismissed for lack of sub- only that “a can if recover he is ject because of the ab- prove ‘employer’ able to discriminated action.”). sence of a federal cause of Al- against age.” on the basis of Id. him/her case, though, ordinary courts are But “in order to determine a defendant jurisdictional challenges free to resolve and, qualifies ‘employer’ as an consequent- participation ADEA claims without the ly, apply,” whether ADEA will even jury, the same cannot be said of chal- court found it necessary to “turn to the lenges that go also to the merits of the section,” ADEA’s definition at id. claim. See 104 F.3d at 1261. Be- which defines an “employer” cause the court in Garcia found that of the statute.5 Because “the section of ‘employer’ “whether or not one is an anis relief, provides ADEA that the substantive claim,” element of an ADEA § it concluded dependent is intertwined and on the jury, section of ADEA that “the scope judge, that defines the rather than the act, 630,”6 disputed question.” court concluded that should decide the 630(b) (explaining (defining "employer” at 1261 5. See 29 U.S.C. Cf. attacks,” part person that "facial engaged industry in contrast to "factual in as "a in an " attacks,” 'required merely affecting twenty the court to look commerce has or more who plaintiff sufficiently and see if working day [the] has al- for each in each of leged jurisdiction, twenty a basis of or more calendar weeks in the current ...”). allegations complaint preceding year and in his are taken or ”) as true for the of the motion.' Lawrence, 1529). (quoting F.2d at 919 Garcia, ("An analysis 6. 104 F.3d at 1263 of the two sections is circular as the two sections Specifically, dependent 4. plaintiff court found under are on one another. For a ADEA, 623(a)(1) act, plaintiff § plaintiff prove of the "a must to recover under the must 1) 2) prove: employer, part 'employer' an failed or refused to as of his claim that an dis- individual, 3) 4) discharge, any against prove hire or to with a criminated To him/her. terms, respect tions, compensation, 'employer,' plaintiff to his defendant condi- is an must 5) satisfy 'employer' privileges employment, or of because the definition of set forth in 630(b).”). age.” § of such individual's Id. at 1262-63.

965 case, court is to evaluate such a district at 1263.7 lack of assertion of defendant’s Garcia, Ginsberg chal- defendant As 12(b)(6) mo- jurisdiction as a Rule on the of the court lenged summary judgment,10 tion or a motion requi- employ that he did not grounds if there are the case to the and send the stat- employees to meet site number In fact.11 this disputed issues of material under of an utory definition case, it court said was although district Garcia, only can As Title VII. summary judgment Rule 56 applying the “employ- prove an if is able to recover she standard, the evidence weighed it instead respect her with against discriminated er” if is to be fact-finder. But evidence as a as employment. And her the terms of implicate when the issues weighed in order to determine of action elements of the cause both the as qualifies defendant must be jurisdiction, this and the court’s Title will even consequently judgment jury. Summary by done to Title VII’s also look we must apply, only if appropriate have thus would been section, 42 this case U.S.C. definitional disputed issues of material there were no pur- 2000e, which defines and, clearly in this case as the record fact— lan- Because the poses of statute.8 demonstrates, the case here. this was not basis provides “the Title VII thus guage of erred in dis- court therefore The district ... for both evalua- the case on its own missing based relief,” claim for the ... substantive evidence, should have sent tion the elements 104 F.3d at jury for decision. For the the case to the jurisdic- with the claim are intertwined reasons, ma- I from the dissent foregoing question.9 tional reverse the dis- opinion and jority would case on of the impli- trict court’s dismissal if the attack cases hold that Our a trial on action, remand for grounds dictional of the cause cates an element “ Title VII claim. merits of exists Scarfo’s find are ‘to courts objection as a direct with the and deal on the merits

attack ” Tuck- v. Id. Williamson case.’ (5th Cir.1981)).

er, 415 F.2d de Puer reason, Pecuarias de Asociaciones Federacion that the court should this it held 7. For (1st Rico, Cir. n. 15 F.2d challenge to the defendant’s have evaluated 1991)). jurisdiction under the standard of the court’s 12(b)(6) Rule or Rule 56. implicate Only does if the attack 10. court treat the case the trial merits of the 2000e(b) "employ- (defining 42 U.S.C. See 12(b)(1) to dismiss and motion issue as a industry engaged in af- person er” as "a " satisfy itself as to 'weigh the evidence or more ” fecting has fifteen commerce who case:' power to hear the of its the existence working day in each employees for each Dunbar, 919 F.2d (quoting Lawrence the current weeks in twenty or more calendar 1990)). Cir. ”). year.... preceding calendar standard, takes the the court 11. Under true, identity noted the in Garcia itself 9. The court and must alleged by the facts statutes, and genuine of the two issue between the structure finds a deny motion if it Brown, extensive on the more this reason drew fact. See material Maniccia Cir.1999). On this guidance.” VII cases "for standard, (" provisions existence of scintilla mere "[t]he at 1264 'As the substantive F.3d posi- plaintiff’s support verba from of the haeca the ADEAwere derived in of evidence insufficient; be evi- VII, there must statutory will be definition tion as was reasonably find (which could scope on which "employer,” dence relates King Corp. v. Weav- Burger plaintiff.” we look to for the er, portions), law's substantive Cir.1999) (inter- the Title VII term in constructions of the omitted). ”) quotation marks (quoting Rivas v. nal guidance.’ ... context for

Case Details

Case Name: Scarfo v. Ginsberg

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: May 14, 1999

Citation: 175 F.3d 957

Docket Number: 97-5244

Court Abbreviation: 11th Cir.