Opinion
Case No. 2:99 CV 0245C.
March 19, 2002
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The question before the court is whether Defendant Buzas Baseball, Inc., d/b/a Salt Lake Buzz Baseball Team ("the Buzz") is an employer for purposes of Plaintiff Heather Alwine's Title VII claims of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Plaintiff alleges sexual harassment and retaliation against the Buzz in violation of Title VII. The court, having reviewed the Stipulated Findings of Fact, the Amendment to Paragraphs 9 and 43 of the Stipulated Findings of Fact, the pleadings on file, and the legal memoranda that have been filed on the issue in this case, is now prepared to enter its conclusions of law. Conclusions of law are based on the parties' stipulated facts, which are adopted as Findings of Fact pursuant to Federal Rules of Civil Procedure, Rule 52(a). Because the court concludes that during 1997 the Buzz employed more than 15 employees, as discussed below, the findings of facts and conclusions of law will be limited to 1997.
FINDINGS OF FACT
A. Background
The Buzz is engaged in an industry affecting commerce. Buzas Baseball, Inc., is a Utah corporation which did business in 1996 and 1997 as the Salt Lake Buzz Baseball Team. Due to the nature of baseball, the Buzz had two kinds of employees: those working in permanent, full-time positions and those hired to work as game workers.
Games are scheduled so that the team plays a series of games at home, a "home stand," and then a series of games on the road. The first home game of the Buzz's 1997 baseball season was on Tuesday, April 8, 1997, and the baseball season continued until September 1, 1997. The Buzz's last home game was on Thursday, August 28, 1997. Home games were held on 72 different dates between April 8, 1997, and August 28, 1997. Buzz home games were held on each day from August 24 through August 28, 1997.
B. Permanent Employees
The permanent employees generally work Monday through Friday during the off-season. During the season, they may also work on Saturdays and Sundays when there are games scheduled. In 1997, the Buzz employed 13 people in permanent, full-time positions, except for the weeks beginning Sunday, March 23, and Sunday, March 30, 1997 when they had ten.
C. Game Workers
Most game workers fill out one employment application each year. Game workers who enter the pool of game workers during the season fill out applications before working any games. Game workers were scheduled if needed to perform functions such as official scorers, public address announcers, audio system operators, scoreboard operators, press box workers, on-field promotion people, ticket and program sellers, and novelty store workers. Game workers filling these jobs were supervised by permanent Buzz employees.
Before each game, individuals from the pool of prospective ushers and ticket takers called a "hotline" to see if they had been chosen to work a specific game. The message on the hotline stated that individuals designated to work the game may or may not work when they showed up at the ball park due to last minute changes in the need for personnel. In the event that game workers who were asked to work a game did not wish to work or were unavailable, other individuals would be contacted from the pool of prospective ushers and ticket takers.
In 1997, the Buzz pool of game workers who might work a game consisted of approximately 125 people, not all of whom would work any particular game; some of them might not work at all. More than three game workers are needed to staff any given home baseball game. In 1997, no game worker worked every game. None of the game workers was promised a particular work schedule or any number of games he or she would work during a season. In fact, no game worker was promised that he or she would work any games. Game workers, other than ushers and ticket takers, were sometimes scheduled for a home stand before the end of the previous home stand. It is unclear from the evidence whether this usually did or did not happen.
It was never necessary to formally fire a game worker because it was decided that if the worker was not suitable, it was simply a matter of not calling the worker again.
All game workers within the pools were assigned an employee number for purposes of the Buzz's payroll computer program. Each game worker would keep the same employee number throughout a season. Each game worker would remain on the computer payroll program throughout the season or until his or her name was removed from the computer payroll program. Sometimes game workers were left on the system for years whether they worked or not. There was no formal procedure for removal, so some people stayed in the system despite having never worked for the Buzz, having moved, or died. Game workers were paid by the hour for each hour they worked and were paid only for the hours they actually worked. They were generally paid after a home stand on the next payroll run of the Buzz.
D. Specific Game Workers
Nathan Kirkham was a game worker who worked with the audio system during some home games. Kirkham performed services for the Buzz in 1997 as follows:
1997
03/25/97 — 3.5 hours 04/05/97 — 2.5 hours 04/07/97 — 1.0 hours 04/08/97 — 4.5 hours 04/09/97 — 4.0 hours 04/10/97 — 3.75 hours 04/14/97 — 4.1 hours 04/15/97 — 3.5 hours 04/25/97 — 4.0 hours 04/28/97 — 3.2 hours 04/29/97 — 4.0 hours 04/30/97 — 3.5 hours 05/01/97 — 3.6 hours 05/02/97 — 4.8 hours 05/15/97 — 4.0 hours 06/03/97 — 3.75 hours 06/07/97 — 3.5 hours 06/16/97 — 3.6 hours 06/17/97 — 3.0 hours 06/23/97 — 3.75 hours 07/04/97 — 4.5 hours 07/05/97 — 3.5 hours 07/07/97 — 3.5 hours 07/10/97 — 3.8 hours 07/12/97 — 3.75 hours 07/22/97 — 5.10 hours 07/23/97 — 4.0 hours 07/24/97 — 7.5 hours 07/25/97 — 3.5 hours 08/04/97 — 4.0 hours 08/06/97 — 3.5 hours 08/07/97 — 4.5 hours 08/08/97 — 3.25 hours 08/21/97 — 4.8 hours 08/22/97 — 3.1 hours 08/24/97 — 4.0 hours 08/26/97 — 3.5 hours 08/27/97 — 4.0 hours 08/28/97 — 4.5 hours
Kirkham was only paid for the actual time that he worked.
Howard Nakagama performed services for the Buzz in 1997 as follows:
1997
04/07/97 — 4.0 hours 04/09/97 — 3.5 hours 04/13/97 — 5.0 hours 04/25/97 — 4.5 hours 04/27/97 — 4.1 hours 05/01/97 — 4.4 hours 05/02/97 — 4.4 hours 05/14/97 — 4.1 hours 05/15/97 — 4.0 hours 05/20/97 — 4.0 hours 05/23/97 — 4.2 hours 06/02/97 — 4.5 hours 06/03/97 — 4.8 hours 06/04/97 — 4.5 hours 06/05/97 — 4.0 hours 06/14/97 — 4.6 hours 06/15/97 — 3.6 hours 06/22/97 — 4.1 hours 06/24/97 — 4.3 hours 07/04/97 — 4.5 hours 07/05/97 — 4.0 hours 07/10/97 — 4.0 hours 07/11/97 — 4.0 hours 07/22/97 — 5.0 hours 07/23/97 — 4.5 hours 07/24/97 — 4.7 hours 07/25/97 — 4.0 hours 08/04/97 — 4.7 hours 08/05/97 — 3.5 hours 08/06/97 — 3.5 hours 08/11/97 — 3.7 hours 08/21/97 — 4.0 hours 08/22/97 — 4.0 hours 08/25/97 — 3.9 hours 08/26/97 — 3.4 hours
Nakagama was only paid for the time he actually worked.
CONCLUSIONS OF LAW
The question before the court is whether Defendant is an "employer" for Title VII purposes. Under Title VII, a person is an employer if it has "fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year." 42 U.S.C. § 2000e(b).
In a Title VII case, the Plaintiff "must establish for jurisdictional purposes, that" the employer falls within the statutory definition of an employer provided by § 2000e(b). Zinn v. McKune, 143 F.3d 1353, 1356 (10th Cir. 1998) see also Douglas v. E.G. Baldwin Assoc., Inc., 150 F.3d 604, 608 (6th Cir. 1998); Womble v. Bhangu, 864 F.2d 1212, 1213 (5th Cir. 1989); Owens v. Southern Development Council, Inc., 59 F. Supp.2d 1210, 1213 (N.D.Ala. 1999) (Whether a defendant meets Title VII's definition of "employer" is a threshold jurisdictional issue.") Therefore, to maintain her case, Plaintiff must present facts establishing the two jurisdictional requirements for an employer under Title VII: (1) that 15 or more individuals were employees of the Buzz for "every working day" of the calendar week from the day they were hired until the day they departed; and if so, (2) that these 15 or more of more employees were employed "on each working day" for 20 or more calendar weeks. 42 U.S.C. § 2000e(b); Walters v. Metropolitan Educational Enterprises, Inc., 519 U.S. 202, 208-209 (1997); see Zinn, 143 F.3d at 1356.
Walters v. Metropolitan Educational Enterprises, Inc., 519 U.S. 202 (1997) is attached to this Memorandum as Exhibit "1."
A. Were there 15 or more employees of the Buzz for "every working day" of the calendar week from the day they were hired until the day they departed?
Because the facts concerning the game workers are stipulated, whether and when game workers had an employment relationship is a question of law. See Duplan v. Harper, 188 F.3d 1195, 1200 (10th Cir. 1999) (whether a person was an employee was a question of law); Baker v. Flint Engineering Constr. Co., 137 F.3d 1434, 1441 (10th Cir. 1998) (the "ultimate determination of whether an individual is an employee" is a question of law).
In order to be counted as one of fifteen (15) employees in any calendar week for the purpose of meeting the jurisdictional minimum of Title VII, an employee must be employed "every working day" of the week. This does not mean that the employee must be present at work and receiving monetary compensation for each day. It does mean, however, that "the employer must have an employment relationship with the individual on the day in question." Walters, 519 U.S. at 208-209. The governing law concerning when and how to count part-time employees toward the 15-employee minimum is set forth in Walters v. Metropolitan Educational Enterprises, Inc., 519 U.S. 202, 117 S.Ct. 660, 136 L.Ed.2d 644 (1997).
In Walters, the plaintiff sued her former employer under Title VII for retaliatory discharge. The former employer argued that it was not an "employer" for Title VII purposes because it claimed it did not meet the 15-employee minimum. The employer had between 15 and 17 employees on the payroll the entire year, but it actually compensated 15 or more employees on each working day of only nine weeks. Walters, 519 U.S. at 205, 117 S.Ct. at 663. Somewhat similar to the Buzz in this case, the employer urged the court to apply a compensation-based approach where an employee would not be counted toward the 15-employee minimum unless he was actually working or being paid on a particular working day.
The Supreme Court rejected this approach. It held that whether a person is an employee for Title VII purposes is determined by the existence of an employment relationship between the employer and employee on the day in question. See id. at 206-08, 117 S.Ct. at 660. It noted that an "employment relationship is most readily demonstrated by the individual's appearance on the employer's payroll," Id. at 206, 117 S.Ct. at 660, but acknowledged that "an individual who appears on the payroll but is not an `employee' under traditional principles of agency law, . . . would not count." Id. at 211-12, 117 S.Ct. at 660 (citation omitted). This approach is typically referred to as the payroll test.
Based on this standard, the Supreme Court concluded that an employment relationship exists between an employer and a part-time employee from the date the employee begins employment to the last day the employee works. "Under the interpretation we adopt, . . . all one needs to know about a given employee for a given year is whether the employee started or ended employment during that year and, if so, when. He is counted as an employee for each working day after arrival and before departure." Id. at 211, 117 S.Ct. at 665-66.
Importantly, the Supreme Court also noted that "an employee who works irregular hours, perhaps only a few days a month, will be counted toward the 15-employee minimum for every week in the month." Id. at 210, 117 S.Ct. at 665.
Applying these principles, the Supreme Court in Walters found that the former employer was an "employer" for purposes of Title VII.
Another example of the application of the payroll test is Thurber v. Jack Reilly's, Inc., 717 F.2d 633 (1st Cir. 1983), which was cited by the Supreme Court in Walters. See Walters, 591 U.S. at 207, 117 S.Ct. at 663. In Thurber, the employer operated a small bar. Approximately nine employees reported to work each day. Some of the employees were full-time, but most were part-time employees. The employer maintained more than 15 total employees on the payroll, but no more than 11 employees ever reported for work on any given day. 717 F.2d at 634.
After reviewing the legislative history of the definition of "employer" and noting that Congress intended Title VII to have "broad effect," the First Circuit concluded that Congress did not intend "to require that employees report to work on each day that they are included [in the count]." Id. at 635. In finding the small bar to be an "employer" for Title VII purposes, the First Circuit acknowledged the concern that this interpretation "might sweep into the ambit of the statute a few truly `Mom and Pop' stores," but it concluded that "[t]he burden on such businesses . . . is the relatively modest one of forbearance from discrimination in employment. In our opinion, the inclusion of such stores offends less against the policy of the statute than does the exclusion of businesses such as the appellant." Id. The First Circuit reaffirmed Thurber in Vera-Lozano v. International Broadcasting, 50 F.3d 67 (1st Cir. 1995). A part-time employee is counted for each working day after starting and before ending. Walters, 591 U.S. at 211.
The Buzz also cites Revenue Ruling 55-19, promulgated under the Unemployment Compensation Act. Rev. Rul. 55-19, 1955-1 CB, to clarify the question of whether occasional part-time employees like the Salt Lake Buzz game-workers are considered employees "on every working day." In answer to the question of whether "a worker who is paid on a daily basis [will] always be construed to be `in employment' on a day-to-day-basis . . .'" Revenue Ruling 55-19 provides:
The existence of an employment relationship is the controlling factor. Whether or not an employment relationship, once established, continues depends upon the intention of the parties with respect to its continuation. For example, if the agreement between the parties contemplates the performance of services on 1 day each week, the employment relation continues and the employee should be counted in determining liability under the Act even though he is paid at the end of each day. On the other hand, where an employee works 1 day and the understanding between the parties is to the effect that the employer will communicate with the employee if and when his services are needed and that employee will work if not otherwise engaged, the employment relationship is terminated at the end of the day he worked. In the later instance, the employee should be counted in the employ of this employer only on the days he actually performs services for him.
Rev. Rul. 55-19, 1955-1 CB (emphasis added); see also Thurber v. Jack Reilly's Inc., 717 F.2d 633, 634 (1st Cir. 1983) (citing Rev. Rul. 55-19, 1955-1 CB).
This language, however, is inconsistent with the statement from Walters that "all one needs to know about a given employee for a given year is whether the employee started or ended employment during that year and, if so, when. He is counted as an employee for each working day after arrival and before departure." Walters, 519 U.S. at 211, 117 S.Ct. at 665-66. To the extent the Revenue Ruling is inconsistent with Walters, Walters must govern.
Therefore, the court reads Walters literally, that "all one needs to know about a given employee for a given year is whether the employee started or ended employment during that year and, if so, when. He is counted as an employee for each working day after arrival and before departure." Walters, 519 U.S. at 211, 117 S.Ct. at 665-66.
The court also finds instructive the Enforcement Guidance On Equal Employment Opportunity Commission Walters v. Metropolitan Educational Enterprises, Inc., 117 S.Ct. 660 (1997), which was issued by the Equal Employment Opportunity Commission ("EEOC") on May 2, 1997 (1997 WL 33159164) ("EEOC Guidance"). The EEOC Guidance explains how the EEOC believes Walters is to be applied. Once it is determined whether an individual is an employee, the EEOC Guidance provides four steps for counting employees: (i) determine the first and last day of the employer's workweek; (ii) if an employee began employment during either year in question, that employee is counted as an employee for each working day after arrival; (iii) if an employee ended employment during either year in question, that employee is not counted as an employee after his/her departure; and (iv) to determine the employee count for each week examined in the relevant years: a) calculate the number of workers who were on the payroll; b) subtract any workers who were on the payroll, but were not employees; and c) add any workers who were not on the payroll, but who qualified as employees of the employer.
The court finds that an employee relationship existed between the Buzz and Howard Nakagama, an official scorer, Nathan Kirkham, an audio operator. The court concludes that each had just one arrival date and one departure date each season and should be counted for each working day after he arrived and before he departed. Therefore, the Buzz had a minimum of 15 employees for each working day between the week of April 7, 1997, through August 22, 1997.
The Buzz argues that because no game worker was promised any particular schedule or number of games and each was paid after each home stand, the employment relationship did not continue throughout the season. The Buzz's position is incorrect. The lack of a particular schedule at most means they worked irregular hours, but the Supreme Court in Walters made it clear the Court should count those part-time employees who work irregular hours. Walters, 519 U.S. at 210, 117 S.Ct. at 665.
B. Were 15 or more employees employed "on each working day" for 20 or more calendar weeks?
The second jurisdictional element of a Title VII claim requires that the Buzz have 15 or more employees "on each working day" for 20 weeks. 42 U.S.C. § 2000e(b); Walters v. Metropolitan Educational Enterprises, Inc., 519 U.S. 202, 208-209 (1997); see Zinn, 143 F.3d at 1356. As stated earlier, under Walters it does not matter that these game workers did not work every day. "[A]n employee who works irregular hours, perhaps only a few days a month, will be counted toward the 15-employee minimum for every week in the month." Walters, 519 U.S. at 210, 117 S.Ct. at 665. "[A]ll one needs to know about a given employee for a given year is whether the employee started or ended employment during that year and, if so, when. He is counted as an employee for each working day after arrival and before departure." 519 U.S. at 211, 117 S.Ct. at 665-66 (emphasis added).
The court finds that because Nathan Kirkham and Howard Nakagama started work on or before the week of Monday, April 7, 1997, the court can count these game workers for each working day beginning on at least Monday, April 7, 1997, through their final week, ending on Friday, August 22, 1997. Because there were at least 20 calendar weeks when the Buzz had 15 employees for each working day, the Buzz is an employer for Title VII purposes.
The Buzz agrees that its normal work week is Monday through Friday. Stip. Facts ¶ 8.
CONCLUSION
Based on the stipulated facts, the Buzz satisfied the requirements for an employer during 1997 because it had 15 employees for 20 weeks in 1997. Therefore, the Buzz was an employer in 1996 and 1997 for purposes of Title VII.