Lusk v. Foxmeyer Health Corp. , 129 F.3d 773 ( 1997 )

United States Court of Appeals,
Fifth Circuit.
No. 96-11278.
Roger W. LUSK, et al., Plaintiffs,
Roger W. Lusk; Robert P. Griffith; Herbert Barton, Jr.; Joseph
Sanderson; Clinton B. Maddox, II; Joe J. Wilkie; Darrell
Schwonke; Michael J. Kearney, Plaintiffs-Appellants,
v.
FOXMEYER HEALTH CORPORATION, formerly known as National
Intergroup, Inc., et al., Defendants,
Foxmeyer Health Corporation, formerly known as National
Intergroup, Inc., Defendant-Appellee.
Dec. 4, 1997.
Appeal from the United States District Court for the Northern
District of Texas.
Before JOLLY, SMITH and DENNIS, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
In this appeal, we are presented the question whether a parent
corporation may be held liable for the allegedly discriminatory
conduct of its subsidiary. Eight former employees of the FoxMeyer
Drug Company ("FoxMeyer Drug") were terminated as a result of a
reduction-in-force. They brought this action alleging age
discrimination under the Age Discrimination in Employment Act of
1967 ("ADEA"), 29 U.S.C. §§ 621-34. They also sued FoxMeyer Drug's
parent corporation, the FoxMeyer Corporation, and FoxMeyer
Corporation's parent, National Intergroup, Inc. ("NII").1 NII
1
In October 1994, NII changed its name from National
Intergroup, Incorporated to FoxMeyer Health Corporation, and in
January 1997, changed its name again to Avatex Corporation.
Because NII was operating under the National Intergroup name during
the relevant time period of this suit, it will be referred to as
NII throughout this opinion.
moved for summary judgment contending that it did not qualify as an
"employer" in the matters relating to this case and, therefore, was
not subject to suit under the ADEA. The district court granted
NII's motion and dismissed the action against NII. On appeal, the
plaintiffs-appellants argue that the district court erred in
finding no genuine issue of material fact as to whether FoxMeyer
Drug, FoxMeyer Corporation, and NII constituted a "single employer"
under the ADEA. We affirm.
I
All of the appellants were employed as sales consultants in
FoxMeyer Drug's various regional offices. FoxMeyer Drug purchases
health care products directly from manufacturers. It then
distributes health care products and services to retail
establishments such as pharmacies and drug store chains, as well as
to other health care providers such as hospitals and university
medical centers. FoxMeyer Drug is a wholly-owned subsidiary of the
FoxMeyer Corporation, a holding company with no employees, but
which shares the same board of directors and same executive
officers with FoxMeyer Drug.
The FoxMeyer Corporation is, in turn, a wholly-owned
subsidiary of the appellee, NII. NII, also a holding company,
employs approximately fifteen people and is affiliated as a parent
or subsidiary with nearly forty other corporations. NII shares its
corporate headquarters with FoxMeyer Drug and FoxMeyer Corporation
(collectively, the "FoxMeyer subsidiaries") in Carrollton, Texas.
During the period relevant to this lawsuit, two individuals—Melvyn
Estrin and Abbey Butler—served as both Co-Chairmen and Co-CEOs of
all three corporations. In addition, evidence indicated that a
third individual, Thomas Anderson, held positions of President and
Chief Operating Officer with all three corporations.2
In October 1993, Mike Webster, Senior Vice President of Sales
and Marketing of FoxMeyer Drug and FoxMeyer Corporation, had
discussions with Estrin and Butler about FoxMeyer Drug's financial
performance and its ability to serve its customers more efficiently
and productively. As a result of these discussions, Webster
ordered senior executive officers of FoxMeyer Drug and FoxMeyer
Corporation to form a planning team (the "Planning Team") to
reengineer FoxMeyer Drug's sales force and determine criteria for
selecting employees for discharge. The Planning Team formed a
reduction-in-force plan (the "RIF plan"), which was approved by
Estrin, Butler, and Anderson, presented to retail sales supervisors
for FoxMeyer Drug, and then executed at the local level in January
1994.
The appellants—all FoxMeyer Drug sales consultants terminated
as a result of the RIF plan—filed suit on August 26, 1994, against
FoxMeyer Drug, FoxMeyer Corporation, and NII. They alleged that the
three corporations engaged in unlawful discrimination under the
2
The parties hotly contest whether Anderson held these
positions during the relevant time periods, each pointing to
evidence (including, on NII's part, some evidence not part of the
summary judgment record) supporting their respective positions.
When reviewing decisions on summary judgment, however, we do not
assess the probative value of evidence or resolve factual disputes.
Stine v. Marathon Oil Co., 976 F.2d 254, 265 (5th Cir.1992). For
purposes of this appeal, we assume that Anderson held positions
with NII as well as FoxMeyer Drug and FoxMeyer Corporation
throughout the relevant time periods. See Martin v. John W. Stone
Oil Distrib., Inc., 819 F.2d 547, 548 (5th Cir.1987) (reasonable
doubts about facts are resolved in favor of nonmovant on summary
judgment).
ADEA by directing lower level managers to consider age as a factor
in determining which employees to discharge. On June 7, 1996,
after extensive discovery, NII moved for summary judgment on the
grounds that it did not directly employ the appellants and,
therefore, did not qualify under the ADEA as a "single employer"
with its FoxMeyer subsidiaries. Less than two months later, and
six days before trial, FoxMeyer Drug and FoxMeyer Corporation filed
for bankruptcy in Delaware. Consequently, the district court
stayed further proceedings against those two defendants.
Thereafter, on September 9, 1996, the district court granted
NII's motion for summary judgment. Examining the evidence in the
light of the four-factor test enunciated in Trevino v. Celanese
Corp., 701 F.2d 397 (5th Cir.1983), the court held that NII and its
FoxMeyer subsidiaries did not constitute a single employer. In
particular, the district court determined that, although the three
corporations had common ownership and some common management, there
was no evidence demonstrating NII's involvement in the daily
operations or labor relations of its FoxMeyer subsidiaries. The
court grounded this determination on the absence of evidence
showing that Estrin, Butler, and Anderson had responsibility in
planning and implementing the details of the RIF plan. Thus, the
court concluded, the appellants failed to identify evidence
sufficient to permit a finding that NII was a final decision-maker
in their termination and, consequently, that NII and its FoxMeyer
subsidiaries could be regarded as a single, integrated enterprise
for purposes of this case.
This appeal presents the sole issue of whether the summary
judgment evidence would permit a finding that NII and its FoxMeyer
subsidiaries qualify as a single employer under the ADEA.
II
We review the district court's grant of summary judgment de
novo. Exxon Corp. v. Baton Rouge Oil, 77 F.3d 850, 853 (5th
Cir.1996). The court will not weigh the evidence or evaluate the
credibility of witnesses; further, all justifiable inferences will
be made in the nonmoving party's favor. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513-14, 91 L. Ed. 2d 202
(1986). If, as here, the nonmoving party bears the burden of proof
at trial, the moving party may demonstrate that it is entitled to
summary judgment by submitting affidavits or other similar evidence
negating the nonmoving party's claim, or by pointing out to the
district court the absence of evidence necessary to support the
nonmoving party's case. Lavespere v. Niagara Mach. & Tool Works,
Inc., 910 F.2d 167, 178 (5th Cir.1990).
Once the moving party presents the district court with a
properly supported summary judgment motion, the burden shifts to
the nonmoving party to show that summary judgment is inappropriate.
Id. In doing so, the nonmoving party may not rest upon the mere
allegations or denials of its pleadings, and unsubstantiated or
conclusory assertions that a fact issue exists will not suffice.
Anderson, 477 U.S. at 256, 106 S.Ct. at 2514. Rather, the
nonmoving party must set forth specific facts showing the existence
of a "genuine" issue concerning every essential component of its
case. Thomas v. Price, 975 F.2d 231, 235 (5th Cir.1992). That is,
the nonmoving party must adduce evidence sufficient to support a
jury verdict. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. With
these standards in mind, we turn to the merits of this appeal.
III
Under the ADEA, a corporation like NII cannot be held liable
for discriminatory employment actions unless it qualifies as an
"employer" under the statute. See 29 U.S.C. § 623. The ADEA
defines an employer only as "a person engaged in industry affecting
commerce who has twenty or more employees for each working day in
each of twenty or more calendar weeks in the current or preceding
calendar year." 29 U.S.C. § 630(b). This statutory definition
provides little assistance in resolving the question before us. It
plainly contains no basis for disregarding the venerable corporate
law principle of limited liability or for otherwise extending
liability to a parent corporation for the discriminatory acts of
its subsidiary. We, and other courts, however, have construed the
term "employer" broadly to include superficially distinct entities
that are sufficiently interrelated to constitute a single,
integrated enterprise. See, e.g., Schweitzer v. Advanced
Telemarketing Corp., 104 F.3d 761, 764 (5th Cir.1997); Rogers v.
Sugar Tree Products, Inc., 7 F.3d 577, 582 (7th Cir.1993); Johnson
v. Flowers Indus., Inc., 814 F.2d 978, 981 (4th Cir.1987); York v.
Tennessee Crushed Stone Ass'n, 684 F.2d 360, 362 (6th Cir.1982).
To determine whether a parent corporation and its subsidiary
may be regarded as a "single employer" under the ADEA, we apply the
four-part analysis originally adopted by the Supreme Court in the
context of labor disputes, see Radio Union v. Broadcast Serv., 380
U.S. 255, 257, 85 S. Ct. 876, 877, 13 L. Ed. 2d 789 (1965), and
extended to civil rights actions by this court in Trevino v.
Celanese Corp., 701 F.2d 397 (5th Cir.1983). The four factors to
consider include: (1) interrelation of operations, (2) centralized
control of labor or employment decisions, (3) common management,
and (4) common ownership or financial control. 701 F.2d at 404.
This analysis ultimately focuses on the question whether the parent
corporation was a final decision-maker in connection with the
employment matters underlying the litigation, id.; Chaiffetz v.
Robertson Research Holding, Ltd., 798 F.2d 731, 735 (5th Cir.1986),
and all four factors are examined only as they bear on this precise
issue, see Schweitzer, 104 F.3d at 765.3
Although the appellants produced evidence establishing common
management and ownership between NII and its FoxMeyer subsidiaries,
these factors alone are insufficient to establish single employer
status. The doctrine of limited liability creates a strong
3
Courts adopting a broad definition of the term "employer"
have done so based on the significant remedial public policy
underlying the anti-discrimination laws. See, e.g., Baker v.
Stuart Broadcasting Co., 560 F.2d 389, 391 (8th Cir.1977). While
we support this reasoning, we also are mindful that "the doctrine
of limited liability was originally formulated ... to implement
both economic and democratic goals" and that approaches to piercing
the corporate veil which fail to recognize these important public
policy considerations underlying the doctrine "are deficient."
Stephen B. Presser, Piercing the Corporate Veil § 1.01, at 4, §
1.06, at 71-72 (1997) (emphasis in original). Accordingly, before
piercing the corporate veil in the employment discrimination
context, we and other courts have focused on the core activities
regulated 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. See, e.g., Schweitzer, 104
F.3d at 765; Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235,
1241 (2d Cir.1995); Evans v. McDonald's Corp., 936 F.2d 1087, 1090
(10th Cir.1991); Sheeran v. American Commercial Lines, Inc., 683
F.2d 970, 978 (6th Cir.1982); Mochelle v. J. Walter, Inc., 823
F. Supp. 1302, 1306 (M.D.La.1993), aff'd, 15 F.3d 1079 (5th
Cir.1994).
presumption that a parent corporation is not the employer of its
subsidiary's employees. Frank v. U.S. West, Inc., 3 F.3d 1357,
1362 (10th Cir.1993) (citing Johnson, 814 F.2d at 980); see also
Krivo Indus. Supply Co. v. National Distillers & Chem. Corp., 483
F.2d 1098, 1102 (5th Cir.1973) (corporate form is not disregarded
lightly since the law created corporations primarily to allow
limited liability). Only evidence of control suggesting a
significant departure from the ordinary relationship between a
parent and its subsidiary—domination similar to that which
justifies piercing the corporate veil—is sufficient to rebut this
presumption, see Johnson, 814 F.2d at 981, and to permit an
inference that the parent corporation was a final decision-maker in
its subsidiary's employment decisions.
Common management and ownership are ordinary aspects of a
parent-subsidiary relationship. A parent corporation's possession
of a controlling interest in its subsidiary entitles the parent to
the normal incidents of stock ownership, such as the right to
select directors and set general policies, without forfeiting the
protection of limited liability. Baker v. Raymond Int'l, Inc., 656
F.2d 173, 180-81 (5th Cir.1981). Thus, courts have recognized that
the mere existence of common management and ownership are not
sufficient to justify treating a parent corporation and its
subsidiary as a single employer. See, e.g., Frank, 3 F.3d at 1364;
Rogers, 7 F.3d at 583; Johnson, 814 F.2d at 980-82. Some nexus to
the subsidiary's daily employment decisions must be shown. See
Schweitzer, 104 F.3d at 765.
The appellants argue that they established this nexus with
evidence of interrelated operations and NII's involvement in the
RIF plan. The interrelation of operations element of the single
employer test ultimately focuses on whether the parent corporation
excessively influenced or interfered with the business operations
of its subsidiary, that is, whether the parent actually exercised
a degree of control beyond that found in the typical
parent-subsidiary relationship. Johnson, 814 F.2d at 981-82; see
also Herman v. United Bhd. of Carpenters & Joiners of Am., Local
Union No. 971, 60 F.3d 1375, 1383-84 (9th Cir.1995); Rogers, 7
F.3d at 582; Armbruster v. Quinn, 711 F.2d 1332, 1338 (6th
Cir.1983). Thus, for example, the fact that NII (like any other
parent corporation) ultimately benefitted from the activities of
its subsidiaries, including the restructuring of FoxMeyer Drug's
sales force, is irrelevant to whether their operations were
interrelated. See Frank, 3 F.3d at 1362; Rittmeyer v. Advance
Bancorp, Inc., 868 F. Supp. 1017, 1022 (N.D.Ill.1994). "Attention
to detail," not general oversight, is the hallmark of interrelated
operations. See Johnson, 814 F.2d at 982.
Along these lines, relevant factors suggesting the existence
of interrelated operations include evidence that the parent: (1)
was involved directly in the subsidiary's daily decisions relating
to production, distribution, marketing, and advertising; (2)
shared employees, services, records, and equipment with the
subsidiary; (3) commingled bank accounts, accounts receivable,
inventories, and credit lines; (4) maintained the subsidiary's
books; (5) issued the subsidiary's paychecks; or (6) prepared and
filed the subsidiary's tax returns.4 See, e.g., Cook v. Arrowsmith
Shelburne, Inc., 69 F.3d 1235, 1241 (2d Cir.1995); Johnson, 814
F.2d at 981-82; Armbruster, 711 F.2d at 1338; Harris v. Palmetto
Tile, Inc., 835 F. Supp. 263, 268 (D.S.C.1993); Greason v.
Southeastern R.R. Assoc. Bureaus, 650 F. Supp. 1, 4 (N.D.Ga.1986),
aff'd, 813 F.2d 410 (11th Cir.1987); Fike v. Gold Kist, Inc., 514
F. Supp. 722, 726-27 (N.D.Ala.), aff'd, 664 F.2d 295 (11th
Cir.1981).
There is no such evidence in this case. Although the
appellants allege that all FoxMeyer entities shared the same human
resources department and employment grade system, their record cite
fails to support these assertions.5 The deposition of Derek Van
Keuren, Director of Human Resources, refers to his department as an
arm of FoxMeyer Drug, not NII or FoxMeyer Corporation. He makes no
reference to services performed for NII or its employees. In
short, his deposition fails to support an inference that NII and
its FoxMeyer subsidiaries were functionally integrated.6
4
This is not to say, of course, that the existence of any of
these factors is alone dispositive of single employer status or
even a finding of interrelated operations.
5
This unsupported citation is not an isolated incident.
Because this case involves corporate entities all using the term
"FoxMeyer" in their names at some point, see supra note 1, loose
references to "FoxMeyer" in the record make context particularly
important. Numerous passages in the record and district court
opinion, if taken out of context, create ambiguity as to which
entity they refer. On more than one occasion, the appellants
appear to rely on such vagaries to implicate NII in various aspects
of this case. Such citations do little to boost credibility or
arguments before this court.
6
The portion of the record cited by the appellants does not
even support an inference that Van Keuren's department had any
significant connection to FoxMeyer Corporation, much less NII. It
suggests that recordkeeping and nearly all personnel decisions were
Similarly, the appellants' reliance on the fact that letters
of termination and other RIF-related memoranda bore the "FoxMeyer"
letterhead and uniformly listed the address shared by the corporate
headquarters of NII and its FoxMeyer subsidiaries is misplaced.
Although NII in fact operated under the "FoxMeyer Health
Corporation" title at one time, it did not assume this title until
over nine months after the events relevant to this lawsuit
occurred. Instead, NII was operating under the "National
Intergroup Incorporated" name at the time the appellants were
terminated. Thus, RIF materials bearing the "FoxMeyer" letterhead
say nothing of NII's involvement in the RIF or the operations of
its FoxMeyer subsidiaries.
The appellants' principal argument, however, is that the
explicit and knowing approval of the RIF plan by Anderson, Butler,
and Estrin necessarily creates a fact issue concerning
interrelation of operations between NII and its subsidiaries. The
appellants maintain that because these three individuals held
positions at the highest level of NII's corporate structure, their
involvement in the RIF plan may be imputed to NII. This argument
must be considered in the light of the well established principle
that directors and officers holding positions with a parent and its
subsidiary can and do "change hats" to represent the two
corporations separately, despite their common ownership. United
States v. Jon-T-Chem., Inc., 768 F.2d 686, 691 (5th Cir.1985),
cert. denied, 475 U.S. 1014, 106 S. Ct. 1194, 89 L. Ed. 2d 309 (1986).
made at FoxMeyer Drug's local human resources offices, not by Van
Keuren's department.
Thus, the appellants must point to evidence that, when Anderson,
Butler, and Estrin approved the RIF plan, they were acting in their
capacity as officers of NII. See Greason, 650 F. Supp. at 5 (failure
to adduce evidence of which entity the common decision-maker
represented required summary judgment on single employer issue),
aff'd, 813 F.2d 410 (11th Cir.1987).
When pressed at oral argument to identify evidence in the
record from which we could reasonably infer that Anderson, Butler,
and Estrin were acting on NII's behalf in approving the RIF plan,
the appellants made two basic arguments. First, they urged us to
draw the inference from the sheer magnitude of the employment
decision involved; that it is reasonable to expect such a decision
to be made at the highest level of the corporate family. Second,
the appellants argued that the inference is justified on the basis
of NII's shared use of a single building and phone number for its
corporate headquarters and those of its FoxMeyer subsidiaries.
Although we examine the record in the light most favorable to
the appellants, we do not do so in bits and pieces, but as a whole.
On summary judgment, we consider the totality of the facts and make
only reasonable, justifiable inferences from that evidence. Knight
v. Sharif, 875 F.2d 516, 523 (5th Cir.1989) (citing Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct.
1348, 89 L. Ed. 2d 538 (1986)). The factual context of a party's
claim may render it implausible for purposes of creating a genuine
dispute of fact. Id.; see also First Nat'l Bank of Arizona v.
Cities Serv. Co., 391 U.S. 253, 280, 88 S. Ct. 1575, 1588, 20
L. Ed. 2d 569 (1968).
Circumstances surrounding the development and execution of the
RIF plan show nothing more than that Anderson, Butler, and Estrin
were acting as officers of FoxMeyer Drug and FoxMeyer Corporation.
Based on the appellants' rendition of the facts, it appears that on
every occasion in which these three individuals took any action in
connection with the RIF plan, they were acting in concert only with
other FoxMeyer Drug or FoxMeyer Corporation officials. In fact,
the record is replete with examples of how executives from FoxMeyer
Drug and FoxMeyer Corporation, most of whom shared positions with
both companies, devised and implemented every aspect of the RIF
plan. The plan affected only FoxMeyer Drug employees.7 It is true
that Anderson, Butler, and Estrin approved the plan, but that
unadorned fact tells us nothing more than that they were acting as
the three highest ranking executives at FoxMeyer Drug.
On the other hand, evidence of NII's involvement in the RIF
plan is scant. Presumably, Anderson, Butler, and Estrin were not
NII's only officers or directors, yet the appellants point us to no
evidence that these three ever sought approval from or even
consulted anyone else in the NII organization. As a matter of law,
whether as officers or directors of NII, Anderson, Butler, and
Estrin had no power to act on NII's behalf unless acting within the
scope of their authority, or as part of a legally convened board of
directors. See Kiepfer v. Beller, 944 F.2d 1213, 1218 (5th
Cir.1991) ("a director exercises his office only through the
collective action of the board of which he is a member");
7
None of the individuals affected by the RIF were employed by
FoxMeyer Corporation, much less NII.
Vicksburg Furniture Mfg., Ltd. v. Aetna Cas. & Sur. Co., 625 F.2d
1167, 1170 (5th Cir. Unit A 1980) (officer's acts not authorized by
shareholders will not be charged to the corporation); 2 Fletcher,
Cyclopedia of the Law of Private Corporations §§ 392, 434, at 261,
339-40 (1990). The record, however, is silent on these issues.
Furthermore, the record demonstrates, without contradiction,
that NII is only a holding company with no involvement in or
control over the daily wholesale drug operations or labor relations
of FoxMeyer Drug or FoxMeyer Corporation. NII is affiliated as a
parent or subsidiary with nearly forty other corporations. Its
only employees, numbering no more than fifteen, are responsible
solely for servicing, maintaining, and flying NII's corporate
airplane. Thus, the record supports only the inference that, while
involved in the RIF plan, Anderson, Butler, and Estrin were acting
in their capacities as directors and officers of the FoxMeyer
subsidiaries, not NII.
In sum, the appellants are left with evidence only that NII
and its FoxMeyer subsidiaries shared the same corporate
headquarters, which used a common primary phone number. Such facts
are indeed evidence of interrelated operations. See Mochelle, 823
F. Supp. at 1305, aff'd, 15 F.3d 1079 (5th Cir.1994); but see
Walker v. Toolpushers Supply Co., 955 F. Supp. 1377, 1382
(D.Wyo.1997) (sharing common location, alone, is not sufficient
evidence of interrelated operations). Common headquarters and
telephone number are not, however, the type of evidence from which
a reasonable jury could infer that Anderson, Butler, and Estrin
were acting for NII when they approved the RIF plan.
As for evidence of NII's control or influence over the labor
or employment decisions of its FoxMeyer subsidiaries, the
appellants advance the same argument they tendered on the issue of
interrelated operations.8 The appellants contend that we may infer
NII's control of labor and employment decisions from the fact that
Anderson, Butler, and Estrin approved the RIF plan. We reject this
argument for the same reason we rejected it earlier. The
appellants simply have pointed us to no evidence from which we may
reasonably infer that these individuals were acting on NII's behalf
when involved in the RIF plan.
The appellants argue that our decision in Trevino necessitates
a finding of centralized labor and employment decisions in this
case. We disagree. In Trevino, the court reversed a grant of
summary judgment, finding a genuine fact issue concerning whether
a parent corporation and its subsidiary exhibited centralized
employment decisions. See 701 F.2d at 404. The basis of the
court's decision was the existence of over a hundred documents,
signed by the parent's managers, authorizing lay-offs, recalls,
promotions, and transfers of the subsidiary's employees. Id. No
such evidence exists here.
Moreover, Trevino did not involve a situation where the
individuals making the employment decisions held positions with
both the parent and subsidiary. The decision-makers clearly were
the managers and supervisors of the parent corporation and not the
8
Suitable evidence of centralized labor and employment
decisions includes parental control of hiring, firing, promoting,
paying, transferring, or supervising employees of the subsidiary.
Johnson, 814 F.2d at 982.
subsidiary. See id. at 400. Thus, in Trevino, there was never any
question whether the decision-makers were acting on behalf of the
parent or its subsidiary.9 In contrast, the absence of evidence
from which we may reasonably infer that Anderson, Butler, and
Estrin were acting on NII's behalf dooms the appellants' argument
for single employer status in this case.
IV
In conclusion, we hold that the appellants failed to produce
evidence sufficient to withstand summary judgment in this case.
The evidence of common management and ownership between NII and its
FoxMeyer subsidiaries, taken together with their shared use of a
common headquarters building and main telephone number, does not
permit an inference that NII is responsible for the decision to
terminate employees of FoxMeyer Drug. This conclusion is supported
by uncontradicted evidence that NII was nothing more than a holding
company with no involvement in or control over the daily operations
or employment decisions of its FoxMeyer subsidiaries. Accordingly,
the judgment of the district court is
AFFIRMED.
9
For the same reasons, Cook v. Arrowsmith Shelburne, Inc., 69
F.3d 1235 (2d Cir.1995), fails to address the issues presented by
this case. In Cook, the court never considered whether common
managers, if any, were acting on behalf of the parent or the
subsidiary. Its holding was based specifically on findings that
management from the parent ran its subsidiary's operations in a
"direct, hands-on fashion," that all personnel status reports were
approved by the parent, and that applications for employment with
the subsidiary went through the parent. Id. at 1241. The
appellants have introduced no such evidence is this case.