Notice: Eighth Circuit Rule 28a(k) Governs Citation of Unpublished Opinions and Provides That They Are Not Precedent and Generally Should Not Be Cited Unless Relevant to Establishing the Doctrines of Res Judicata, Collateral Estoppel, the Law of the Case, or if the Opinion Has Persuasive Value on a Material Issue and No Published Opinion Would Serve As Well.pamela S. Freitag, Appellant, v. Eli, Also Known As Employer Advantage; Wilson, Turner,gavin, Inc., Appellees, 94 F.3d 648 (8th Cir. 1996)

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US Court of Appeals for the Eighth Circuit - 94 F.3d 648 (8th Cir. 1996)

Submitted July 1, 1996. Decided Aug. 9, 1996



Pamela Freitag brought an employment discrimination action against ELI, also known as Employer Advantage, and Wilson, Turner, Gavin, Inc. ("WTG"). Defendants filed a motion to dismiss for lack of subject matter jurisdiction, supported by affidavits, arguing that neither ELI nor WTG was an "employer" within the meaning of Title VII, 42 U.S.C. § 2000e(b). Freitag responded and submitted exhibits for the district court's1  evaluation. After considering the parties' submissions, the district court granted defendants' motion. Freitag appeals.

After carefully reviewing the record and the parties' briefs, we conclude the district court's judgment was correct. Contrary to Freitag's argument on appeal, the district court properly considered materials outside the pleadings without treating defendants' motion as one for summary judgment, and could undertake its jurisdictional inquiry without conducting a formal evidentiary hearing or forewarning the parties. See Osborn v. United States, 918 F.2d 724, 729-30 (8th Cir. 1990).

Accordingly, we affirm. See 8th Cir. R. 47B.


The Honorable Joseph E. Stevens, Jr., United States District Judge for the Western District of Missouri