Potsko v. Breckenridge Family Dental, PLLC et al

Filing 23

ORDER denying 6 Motion to Dismiss for Lack of Jurisdiction. By Judge R. Brooke Jackson on 02/25/13. (alvsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No. 12-cv-01631-RBJ
SHELLY R. POTSKO,
Plaintiff,
v.
BRECKENRIDGE FAMILY DENTAL, PLLC,
a Colorado professional limited liability company, and
DILLON FAMILY DENTAL, PLLC,
a Colorado professional limited liability company,
Defendants.

ORDER

This matter is before the Court on defendants’ Motion to Dismiss for Lack of Subject
Matter Jurisdiction [docket #6].
Facts
The plaintiff, Shelly R. Potsko, was employed as a dental assistant at Breckenridge
Family Dental (“BFD”). Ms. Potsko’s role as dental assistant at BFD also included handling
matters for Dillon Family Dental (“DFD”). She reported to both Dr. Gregory Jungman out of the
DFD office and Dr. Robert Meister out of the BFD office. Ms. Potsko alleges that other
employees were also required to work at both locations and that, in many respects, the operations
of BFD and DFD were integrated.

1

During her employment with BFD, Ms. Potsko alleges that she was subjected to sexual
discrimination and harassment by Dr. Meister, and that she subsequently complained of the
offensive behavior to both Drs. Meister and Jungman.
Ms. Potsko was terminated on November 29, 2010. After exhausting her administrative
remedies with the Equal Employment Opportunity Commission, Ms. Potsko filed this lawsuit,
asserting claims under Title VII of the Civil Rights Act of 1964 for sexual discrimination and
harassment and for retaliation.
Standard of Review
Under Federal Rule of Civil Procedure 12(b)(1), a court may dismiss the complaint for
lack of subject matter jurisdiction. Rule 12(b)(1) motions may come in two forms: either “a
facial attack on the complaint’s allegations as to subject matter jurisdiction [that] questions the
sufficiency of the complaint” or “a factual attack” on the facts upon which the subject matter
jurisdiction depends. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995).
On a factual attack under Rule 12(b)(1), the court “has wide discretion to allow affidavits,
other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts.” Id.
Nonetheless, where resolution of the jurisdictional question “is intertwined with the merits of the
case,” the court must convert the Rule 12(b)(1) motion into a Rule 12(b)(6) motion or a Rule 56
summary judgment motion. Id.; Fed. R. Civ. P. 12(d).
Conclusions
Defendants argue that subject matter jurisdiction does not exist because, under 42 U.S.C.
§ 2000e(b), BFD is not an “employer” that “has fifteen or more employees for each working day
in each of twenty or more calendar weeks in the current or preceding calendar year.” Ms.

2

Potsko, however, argues that BFD and DFD have a single- or joint-employer relationship that
satisfies the numerical requirement of Title VII.
The Court does not find it necessary to reach the question of whether BFD and DFD
share a single- or joint-employer relationship satisfying the numerical requirement of Title VII.
In Arbaugh v. Y & H Corp., 546 U.S. 500 (2006), the Supreme Court considered “whether the
numerical qualification contained in Title VII's definition of ‘employer’ affects federal-court
subject-matter jurisdiction or, instead, delineates a substantive ingredient of a Title VII claim for
relief.” 546 U.S. at 503. The Court held that the “numerical threshold does not circumscribe
federal-court subject-matter jurisdiction,” because that threshold appears in a provision separate
from Title VII’s jurisdictional provision. Id. at 504,515. Therefore, “the threshold number of
employees for application of Title VII is an element of a plaintiff's claim for relief, not a
jurisdictional issue.” Id. at 516.
Accordingly, because defendants’ status as an “employer” under Title VII is a question
on the merits and not a question of subject matter jurisdiction, the Court DENIES defendants’
Rule 12(b)(1) motion.1

1

Defendants urge the Court not to convert their Motion to Dismiss into one for summary
judgment, as Ms. Potsko has suggested. The Court notes that, even if it were to convert the Rule
12(b)(1) motion into a Rule 12(b)(6) motion to dismiss for failure to establish an element of the
Title VII claims, the motion should be treated as one for summary judgment under Rule 56
because it contains matters outside the pleadings. Fed. R. Civ. P. 12(d). A motion for summary
judgment would similarly be denied at this preliminary stage in the proceedings so that the
parties may have a thorough opportunity to conduct discovery.
3

Order
Defendants’ Motion to Dismiss for Lack of Subject Matter Jurisdiction [docket #6] is
DENIED.
DATED this 25th day of February, 2013.
BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge

4