BLD-184                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 13-1216
                                      ___________

                                  ROBERT BROWN,
                                         Appellant

                                            v.

                                HENRY COLLINS
                      ____________________________________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                            (D.C. Civil No. 2-12-cv-02265)
                     District Judge: Honorable Petrese B. Tucker
                     ____________________________________

                  Submitted for Possible Summary Action Pursuant to
                       Third Circuit LAR 27.4 and I.O.P. 10.6
                                     April 4, 2013

       Before: SCIRICA, HARDIMAN and GREENAWAY, JR., Circuit Judges

                             (Opinion filed: April 17, 2013 )
                                       _________

                                       OPINION
                                       _________

PER CURIAM

      Robert Brown, proceeding pro se, sued defendant Henry Collins under Title VII of

the Civil Rights Act of 1964, alleging that he had been employed by Collins as a janitor

for several years but was paid below minimum wage for his work. Collins moved for
judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c), arguing among other things

that because he had never employed fifteen or more employees, he was not an

“employer” for purposes of coverage under Title VII. See 42 U.S.C. § 2000e(b). The

District Court determined that because Collins did not meet the § 2000e(b) threshold, it

lacked subject matter jurisdiction over the action. Accordingly, the District Court granted

Collins‟ motion and dismissed the suit with prejudice. Brown now appeals.

       We have jurisdiction pursuant to 28 U.S.C. § 1291.1 We review de novo the

District Court‟s grant of a motion for judgment on the pleadings under Rule 12(c).

DiCarlo v. St. Mary Hosp., 

, 259 (3d Cir. 2008). “Judgment will only be

granted where the moving party clearly establishes there are no material issues of fact,

and that he or she is entitled to judgment as a matter of law.” Id.

       The District Court erred in its determination that it lacked subject matter

jurisdiction. “[T]he fifteen-employee threshold is a substantive element (whether an

„employer‟ exists) of a Title VII claim and is not jurisdictional.” Nesbit v. Gears

Unlimited, Inc., 

, 83 (3d Cir. 2003). However, we conclude that we can

affirm on other grounds. Murray v. Bledsoe, 

, 247 (3d Cir. 2011). Because

Collins was not an “employer” for the purposes of Title VII, see 42 U.S.C. § 2000e(b), he

was entitled to judgment as a matter of law. See Nesbit, 347 F.3d at 89. Accordingly,

1
  Although the District Court‟s docket indicates that Collins‟ answer included a
counterclaim, Collins did not caption it as such and we construe that filing merely as
preserving Collins‟ right to filed a post-trial motion pursuant to Fed. R. Civ. P. 54(d) for
attorney‟s fees. He has not filed such a motion, and the District Court‟s dismissal of
Brown‟s complaint is therefore final and appealable.
                                                2
the District Court did not err in granting his motion for judgment on the pleadings.2

Brown‟s appeal therefore presents no substantial question, and we will summarily affirm.

See 3d Cir. L.A.R. 27.4 and 3d Cir. I.O.P. 10.




2
  The District Court correctly denied Brown‟s motion for recusal as that motion was
based solely on Brown‟s dissatisfaction with the Court‟s earlier denial of his motion for
default judgment. See Securacomm Consulting, Inc. v. Securacom Inc., 

,
278 (3d Cir. 2000) (“We have repeatedly stated that a party‟s displeasure with legal
rulings does not form an adequate basis for recusal.”). We note that Brown captioned his
suit as arising under Title VII and did not object to Collins‟ characterization of his claim
as one of discrimination; however, his complaint may be construed as sounding under the
provisions of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. If so, it nevertheless
failed to state a claim that is plausible on its face. Ashcroft v. Iqbal, 

, 678
(2009). Although a district court should generally give leave to amend prior to
dismissing under such circumstances or make its own determination whether any
amendment would be futile, Simmons v. Abruzzo, 

, 87 (2d Cir. 1995), we are
satisfied that the District Court did not abuse its discretion by dismissing Brown‟s
complaint without leave to amend. Cf. Grayson v. Mayview State Hosp., 

,
114 (3d Cir. 2002). To the extent Brown argued that Collins otherwise infringed his
constitutional rights, he cannot recover under 42 U.S.C. § 1983 because he alleges
nothing suggesting that Collins “acted under color of state law.” Great Western Mining
& Mineral Co. v. Fox Rothschild LLP, 

, 175-76 (3d Cir. 2010).
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