United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
C. Nye Chief U.S. District Court Judge
before the Court are Defendants Western Wholesale Supply,
Inc. and Western Wholesale Installed Sales, L.L.C.'s
Motions to Dismiss. Dkt. 4; Dkt. 5. Also pending before the
Court is Plaintiff Brian Kinnebrew's Motion to Strike a
supplemental affidavit provided by Defendants in their Reply
to their Motions to Dismiss. The Court held oral argument on
July 1, 2019. Following discussion in open court, and for the
reasons set forth below, the Court DENIES the Defendants'
Motions to Dismiss and DENIES Kinnebrew's motion to
Wholesale Supply, Inc. ("Wholesale Supply") and
Western Wholesale Installed Sales, L.L.C. ("Installed
Sales") (collectively, the "Companies") are
building supply companies who do business out of the same
building in Idaho Falls, Idaho.
November 21, 2018, Kinnebrew filed a complaint in the instant
suit alleging the Companies discriminatorily fired him on the
basis of his disability. In doing so, argued Kinnebrew, the
Companies violated both the Americans with Disabilities
Act("ADA") and state law for
wrongful termination in contravention of public policy.
March 4, 2019, prior to filing an answer or any other
responsive pleading, the Companies filed separate Motions to
Dismiss asking the Court to dismiss all claims for lack of
jurisdiction. The Companies argue that the Americans with
Disabilities Act only applies to employers with more than 15
employees, and because Installed Sales has less than 15
employees the act does not apply. The Companies also argue
that Wholesale Supply and Installed Sales are separate and
distinct companies in all relevant aspects and are thus not a
"single employer" under the ADA. Thus, the
Companies argued, the Court has no jurisdiction over the
requests that the Court either deny the Motions, or that the
Court delay consideration under Federal Rule of Civil
Procedure 56(d) until appropriate discovery can be conducted
to determine whether the Companies are a "single
employer" and/or have the sufficient number of employees
to be held liable under the ADA.
Motion to Dismiss
has determined that the definition of "employer" in
the context of an ADA claim includes only persons or entities
who employ 15 or more employees. 42 U.S.C. §
12111(5)(A). If an employer does not meet this threshold
requirement, it is not subject to liability under the ADA.
Congress has also explained how to calculate who qualifies as
an employee for the 15 person requirement:
(b) 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.
Id. The Supreme Court has held that the threshold
number of employees is not a jurisdictional question but
"an element of a plaintiffs claim for relief."
Arbaugh v. Y&H Corp., 546 U.S. 500, 516
their initial Motions to Dismiss, the Companies argued that
the Court had no jurisdiction over the case because the
Companies are not an "employer" under the ADA.
However, at oral argument, the Companies conceded that the
Court has jurisdiction because the question of whether they
are an employer under the ADA is not a jurisdictional
question. Rather, it is a question pertaining to the merits
of the case. Because the Companies concede ...