Lori A. Cardinale v. Southern Homes , 310 F. App'x 311 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-11974 FEBRUARY 3, 2009
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 06-01295-CV-T-24TGW
LORI A. CARDINALE,
Plaintiff-Appellant,
versus
SOUTHERN HOMES OF POLK COUNTY, INC.,
a Florida corporation, EDWARD H. LADERER, JR.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(February 3, 2009)
Before HULL, WILSON and HILL, Circuit Judges.
PER CURIAM:
This appeal arises out of the district court’s March 19, 2008 order granting
the Defendants Southern Homes of Polk County, Inc. (“Southern Homes”) and
Edward H. Laderer, Jr.’s motion for summary judgment and denying the Plaintiff
Lori A. Cardinale’s cross-motion for summary judgment. From August 2004 until
October 29, 2005, Southern Homes employed Plaintiff Cardinale as a “Point of
Sales Coordinator.” Cardinale brought this action alleging that Southern Homes
and Laderer violated her rights under the Family and Medical Leave Act of 1993
(“FMLA”), 29 U.S.C. §§ 2601-2654, by, among other things, (1) providing her
with only eight weeks of pregnancy leave (as opposed to twelve) and (2)
subsequently firing her when she did not return to work. The district court entered
summary judgment for the Defendants on the ground that Southern Homes had less
than 50 employees, and thus was not an “employer” covered by the FMLA. See 29
U.S.C. § 2611(4)(A)(i).
The first issue on appeal is whether the district court applied the correct legal
standard when it determined that Plaintiff Cardinale failed to meet her burden on
the question of whether the Defendant, Southern Homes, and another non-
Defendant entity, LM Properties of Polk County, Inc., were an “integrated
employer.”1 See 29 C.F.R. § 825.104(c)(2). The Department of Labor’s FMLA
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Specifically, Cardinale alleged that the entities were “horizontally integrated”–as
opposed to “vertically integrated.” In other words, she argued that the same people, Edward H.
Laderer, Jr. and Gregory Masters, owned two separate entities that should count as one employer
under the FMLA. She did not argue that a parent company’s ownership of a subsidiary rendered
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regulations state that, when determining whether two or more entities constitute an
“integrated employer,” the following factors are relevant: “(i) Common
management; (ii) Interrelation between operations; (iii) Centralized control of labor
relations; and (iv) Degree of common ownership/financial control.” Id.Plaintiff Cardinale argues that the district court applied an incorrect legal
standard by requiring her to show too high a degree of interrelatedness. The
applicable FMLA regulations do not appear to require that the entities be “highly
integrated”–just integrated enough to satisfy the factors described in 29 C.F.R. §
825.104(c)(2). Our decision in Morrison v. Magic Carpet Aviation, 383 F.3d
1253, 1257 (11th Cir. 2004), recites the above four factors–from the Department of
Labor’s FMLA regulations–without any reference to whether the entities must be
highly integrated or not.
The Defendants respond by citing our decision in McKenzie v. Davenport-
Harris Funeral Home, 834 F.2d 930, 933 (11th Cir. 1987), which involved an
application of Title VII of the Civil Rights Act of 1964,2 and stated that “[t]he
showing required to warrant a finding of single employer status has been described
as ‘highly integrated with respect to ownership and operations.’” McKenzie’s
them both a single employer under the FMLA.
2
See 42 U.S.C. § 2000e, et seq.
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analysis of the “integrated employer” issue used the same four factors listed above.
See id. As we noted in McKenzie, courts have made no secret of the fact that they
have borrowed the four factors used by the National Labor Relations Board. Id.
(“The predominant trend in determining whether two businesses should be treated
as a single or joint employer under [42 U.S.C.] § 2000e(b) is to apply the standards
promulgated by the National Labor Relations Board (NLRB).”); see also Radio and
Television Broad. Technicians Local Union 1264 v. Broad. Serv. of Mobile, Inc.,
380 U.S. 255, 256, 85 S. Ct. 876, 877 (1965) (“The controlling criteria, set out and
elaborated in Board decisions, are interrelation of operations, common
management, centralized control of labor relations and common ownership.”).
And the FMLA’s four-factor “integrated employer” test is identical to the one used
by the NLRB. Compare 29 C.F.R. § 825.104(c)(2) with Radio Union, 380 U.S. at
256.
We need not, however, resolve this legal issue because Cardinale has not
shown reversible error in any event. The facts are undisputed. And Cardinale does
not argue, either in her summary judgment briefs before the district court or in her
briefs on appeal, that there is a genuine issue of material fact that should go to a
jury. Applying the four factors in the FMLA’s regulations without a “highly
integrated” requirement, we conclude that Cardinale’s evidence meets only one
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factor–common ownership. But she has not carried her burden on the other three
factors. Based on the undisputed facts, Cardinale has not shown that the district
court’s entry of summary judgment in favor of the Defendants was reversible error.
Our conclusion that Cardinale has not shown reversible error does not mean that
we endorse the district court’s articulation of the appropriate legal standard or
consider it to be devoid of error. We merely conclude, based on the undisputed
facts before us, that any such error does not require reversal in this instance. Thus,
we affirm the grant of summary judgment to Defendants and the denial of
summary judgment to Plaintiff Cardinale.
AFFIRMED.
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