F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAY 18 2004
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    BARBARA BURGETT,

                Plaintiff-Appellant,

    v.                                                   No. 03-4155
                                                 (D.C. No. 2:01-CV-156-DAK)
    UTAH VALLEY VETERINARY                                 (D. Utah)
    HOSPITAL; DR. CARL PEW;
    DR. KIM HAZEN; DR. JERALD
    BALL,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before EBEL , ANDERSON , and BRISCOE , Circuit Judge.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Plaintiff Barbara Burgett, proceeding pro se, appeals the district court’s

dismissal of her Title VII sexual-harassment action against Utah Valley

Veterinary Hospital (UVVH) and individual veterinarians. The district court

ruled that UVVH was not an employer covered by Title VII because it did not

have fifteen or more employees in each of twenty calendar weeks during the

relevant period, as required by 42 U.S.C. § 2000e(b).       See Walters v. Metro. Educ.

Enters., Inc. , 

, 205 (1997) (discussing § 2000e(b)). After allowing

Ms. Burgett two opportunities to provide sufficient admissible evidence on this

issue, the court determined that, based on the record before it, UVVH’s employee

numbers fell short of the requisite total, whether or not unpaid student workers

were counted as employees. Therefore, the court dismissed Ms. Burgett’s Title

VII claims and declined to exercise jurisdiction over her state law claims.

       On appeal, Ms. Burgett contends that: (1) the district court conducted an

erroneous analysis of the evidence she submitted and (2) the district court should

have ruled that, as a matter of law, the unpaid student workers were employees of

UVVH. Ms. Burgett’s issues concern “subject matter jurisdiction [that] is

dependent upon the same statute which provides the substantive claim,” thus the

jurisdictional claim and the merits of the case are “intertwined.”    Trainor v.

Apollo Metal Specialities, Inc.   , 

, 978 (10th Cir. 2002) (quotation

omitted) (concerning a claim under the Americans with Disabilities Act,


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42 U.S.C. §§ 12111-17). “When, as here, both parties submit evidence beyond

the pleadings, the motion is properly characterized as one for summary

judgment.” 

the district court’s order “     de novo , taking the facts

and the reasonable inferences to be drawn from them in the light most favorable

to the nonmoving party.”   

      Having reviewed the briefs, the record, and the applicable law, we

determine that Ms. Burgett has not provided evidence demonstrating that UVVH

had the minimum number of either paid or unpaid workers to qualify as a

Title VII employer. Like the district court, we conclude that this failure of proof

makes it unnecessary for us to determine the legal status of the unpaid workers

under Title VII. We therefore AFFIRM the district court’s dismissal for

substantially the same reasons stated by the district court in its orders of

January 27, 2003, and May 28, 2003.


                                                        Entered for the Court



                                                        David M. Ebel
                                                        Circuit Judge




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