Guillory vs. Rainbow Chrysler, (5th Cir. 2005)

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In the United States Court of Appeals

Fifth Circuit

United States Court of Appeals F I L E D

for the Fifth Circuit December 13, 2005

Charles R. Fulbruge III

Clerk

m 05-30362

Summary Calendar

KIM J. GUILLORY AND CHRISTY L. MARCUS,

Plaintiffs-Appellants,

VERSUS

RAINBOW CHRYSLER DODGE JEEP, LLC, AND TIMOTHY W. DONAHO,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Louisiana

m 2:04-CV-02871

Before SMITH, GARZA, and PRADO, Kim Guillory and Christy Marcus appeal

Circuit Judges. the dismissal, for want of jurisdiction, of their

title VII complaint. Because the employer,

PER CURIAM:* Rainbow Chrysler Dodge Jeep, LLC ("Rain- bow Chrysler"), had fewer than fifteen em- ployees (the jurisdictional minimum) during * Pursuant to 5 C R. 47.5, the court has TH IR. determined that this opinion should not be pub- lished and is not precedent except under the limited *(...continued) (continued...) circumstances set forth in 5 C . R. 47.5.4. TH IR the relevant time period, we affirm. The district court examined Rainbow Chrysler's payroll records from August 2001 I. to September 2002 and found that at no time Guillory and Marcus were employees of did it have more than fourteen employees on Rainbow Chrysler. From March 2001 to June its payroll. This finding is not clearly errone11, 2002, when she was discharged, Guillory ous.1 was allegedly subjected to a hostile work environment. Marcus makes similar allegations Plaintiffs argue, however, that we should regarding her employment from September aggregate Rainbow Chrysler's employees with 2001 until her resignation on June 16, 2002. the employees of Rainbow Chevrolet Pontiac, Plaintiffs filed suit for sexual harassment and LLC ("Rainbow Chevrolet"), for purposes of retaliation against Rainbow Chrysler under asserting jurisdiction. In particular, plaintiffs title VII and breach of contract against the claim there is substantial overlap in the ownmanager. The district court dismissed under ership interests and financial control of the two Federal Rule of Civil Procedure Rule 12(b)(1) dealerships. because Rainbow Chrysler did not qualify as an "employer" as defined by statute. In Trevino v. Celanese Corp., 701 F.2d 397 (5th Cir. 1983), we held that it is appropriate II. to treat two seemingly distinct businesses as a Title VII prohibits discrimination by an single entity where there are "(1) interrelation "employer" on the basis of "race, color, reli- of operations, (2) centralized control of labor gion, sex, or national origin," 42U.S.C. relations, (3) common management, and § 2000e-2(a), where the term "employer" (4) common ownership or financial control." means "a person . . . who has fifteen or more Id. at 404. The mere existence of common employees for each working day in each of ownership and management does not, without twenty or more calendar weeks in the current more, however, justify aggregation. Lusk v. or preceding calendar year." 42U.S.C. Foxmeyer Health Corp., 129 F.3d 773, 778 § 2000(e)(b). In this circuit, the statutory min- (5th Cir. 1997). imum of fifteen employees is a jurisdictional requirement. Greenlees v. Eidenmuller En- This limitation rests on the commonsense ters., 32 F.3d 197, 198 (5th Cir. 1994). observation that the purpose of the corporate form is t o provide shareholders with limited To determine whether an employee counts toward the statutory minimum for a given Plaintiffs allege that the district court erred in refusing their request for discovery of Rainbow year, "all one needs to know . . . is whether the Chrysler's personnel files. Assuming such a reemployee started or ended employment during quest was properly before the court, there was no that year and, if so, when." Walters v. Metro. abuse of discretion where the court based its facEduc. Enters.,519 U.S. 202, 211 (1997). To tual conclusion on the preferred method for deterthis end, the district court "look[s] first and mining the existence of an employment relationprimarily to whether the individual in question ship; i.e., payroll records. See Moran v. Kingdom appears on the employer's payroll." Id.; Du- of Saudi Arabia, 27 F.3d 169, 172-73 (5th Cir. mas v. Mt. Vernon, 612 F.2d 974, 979 n.7 (5th 1994) (finding no abuse in denying plaintiff's reCir. 1980) (same). quest for an evidentiary hearing in ruling on a rule (b)(1) motion). liability. Therefore, plaintiffs must offer some evidence of responsibility for employment decisions beyond mere ownership to expose a neighboring enterprise to suit under title VII.2 The evidence of centralized control here, including use of a common controller and joint picnics for members of the staff, does not suffice to rebut the presumption that Rainbow Chrysler and Rainbow Chevrolet are separate entities.3 AFFIRMED.

2 See Lusk, 129 F.3d at 777 n.7 (noting that the inquiry has "focused on the core activities regu- lated by the anti-discrimination laws and, therefore, on whether the parent corporation was so involved in the daily employment decisions of the subsidiary as to justify treating the two corporations as a single employer.").

3 Application of the Trevino test also resolves plaintiffs' argument that the district court erred by failing to consider payroll information for the first seven months of the 2001 "calendar year," as re- quired by statute. The parties appear to agree that Rainbow Chrysler did not assume ownership of the dealership until August 1, 2001, when it purchased the store from Dixie Motors. Therefore, Rainbow Chrysler cannot have exercised "centralized control of labor relations" at the dealership before the purchase. Also, according to the interim operating agree- ment, Dixie Motors agreed to hold harmless and indemnify Rainbow Chrysler for all liability in- curred before the closing date. In short, it makes no more sense to treat Rainbow Chrysler and Dixie Motors as one employer for the purpose of ag- gregating time than it does to treat Rainbow Chrys- ler and Rainbow Chevrolet as one employer for the purpose of aggregating employees.

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