Tipton v. Northrup Grumman Corp. , 242 F. App'x 187 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS July 31, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
)))))))))))))))))))))))))) Clerk
No. 06-31307
Summary Calendar
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RICHARD E TIPTON; JAMES D URSIN; DONALD P MEACHAM; BERWICK
LAGARDE; OSWALDO RODRIGUEZ; OSCAR DORSEY
Plaintiffs-Appellants
v.
NORTHRUP GRUMMAN CORPORATION
Defendant-Appellee
Appeal from the United States District Court
for the Eastern District of Louisiana
No. 2:06-CV-4715
Before DeMOSS, STEWART, and PRADO, Circuit Judges.
Per Curiam:*
Appellants Richard E. Tipton, James D. Ursin, Donald P.
Meacham, Berwick Lagarde, Oswaldo Rodriguez, and Oscar Dorsey
(collectively, “Plaintiffs”) are current and former employees at
an Avondale, Louisiana shipbuilding facility operated by Northrup
Grumman Ship Services, Inc. (“NGSS”), a subsidiary of Northrup
*
Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIRCUIT
RULE 47.5.4.
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Grumman Corporation (“NGC”). Plaintiffs filed suit against NGC,
claiming that NGC had discriminated against them by
misclassifying them and by paying them less than they deserved,
given the value and difficulty of the work they perform. On the
basis of this alleged discrimination, Plaintiffs asserted claims
against NGC under the Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12101 et seq., Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq., and the Longshore & Harbor
Workers’ Compensation Act (“LHWCA”), 33 U.S.C § 901 et seq.
NGC filed a motion to dismiss, or alternatively for summary
judgment, on the bases that (1) NGC was not Plaintiffs’ employer
and was therefore not a proper defendant; (2) Plaintiffs
improperly served NGC; (3) the district court lacked personal
jurisdiction over NGC; (4) Plaintiffs’ claims were time-barred;
(5) Plaintiffs failed to state an ADA or LHWCA claim; and (6)
Plaintiffs’ complaint violated Federal Rule of Civil Procedure
8(a). The district court granted NGC’s motion for summary
judgment on the basis that NGC was not a proper defendant in the
suit. For the reasons that follow, we AFFIRM.
I. JURISDICTION AND STANDARD OF REVIEW
The district court’s November 28, 2006 ruling was a final
judgment that disposed of all of Plaintiffs’ claims. Accordingly,
this court has jurisdiction pursuant to 28 U.S.C. § 1291. We
review a district court’s grant of summary judgment de novo,
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applying the same standards as the district court. Dallas County
Hosp. Dist. v. Assocs. Health & Welfare Plan, 293 F.3d 282, 285
(5th Cir. 2002). Summary judgment is proper when the “pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” FED. R. CIV. P.
56(c). A dispute about a material fact is genuine if the evidence
is such that a reasonable fact-finder could return a verdict for
the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). When deciding whether there is a genuine issue
of material fact, this court must view all evidence in the light
most favorable to the non-moving party. Daniels v. City of
Arlington, 246 F.3d 500, 502 (5th Cir. 2001).
The party moving for summary judgment “bears the initial
responsibility of informing the district court of the basis for
its motion, and identifying those portions of [the record] which
it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Once the movant meets this burden, the burden shifts to
the non-movant “to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Id. at
322. “[M]ere allegations or denials” will not defeat a well-
supported motion for summary judgment. FED. R. CIV. P. 56(e);
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Morris v. Covan Worldwide Moving, Inc., 144 F.3d 377, 380 (5th
Cir. 1998). Likewise, “unsubstantiated or conclusory assertions
that a fact issue exists” do not meet this burden. Morris, 144
F.3d at 380. Rather, the non-movant must come forward with
“specific facts” that establish that there is a genuine issue for
trial. FED. R. CIV. P. 56(e); Littlefield v. Forney Indep. Sch.
Dist., 268 F.3d 275, 282 (5th Cir. 2001).
II. DISCUSSION
NGC argued in its motion to dismiss/motion for summary
judgment and maintains on appeal that it was improperly named as
a defendant because Plaintiffs were employed not by NGC, but by
NGSS. NGC argues that “[b]ecause NGSS is the entity that received
services from the Appellants and in return, compensated them,
NGSS is their employer as a matter of law.” NGC further claims
that “[a]t no time did Appellants ever work for NGC, nor did NGC
ever pay Appellants’ salaries.”
In support of its motion to dismiss/motion for summary
judgment, NGC submitted the declaration (“Barney Declaration”) of
Kristen Barney, the human resources site director for NGSS. In
this declaration, Barney made the following statements:
Plaintiffs provided services to, and were paid by, NGSS.
Plaintiffs have never provided services to NGC and have
never been paid by NGC . . . .
NGC is not registered to do, and does not conduct,
business in Louisiana . . . .
NGSS is adequately capitalized and responsible for its own
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daily operations. NGC does not finance the operations of
NGSS, it does not pay the salary or expenses for NGSS, and
it does not use the property of NGSS as its own . . . .
There are no interrelated operations between NGC and NGSS,
no centralized control of labor relations, no common
management, and no common ownership or financial control.
NGC and NGSS observe all required corporate formalities
and keep their daily operations separate from that of
their subsidiaries or related entities. NGSS has its own
labor relations department that is separate from NGC and
controls its own labor relations matters.
The district court held that the Barney Declaration “is
sufficient to shift to plaintiffs the burden of showing that NGC
is a proper defendant.” The district court then reviewed the
evidence submitted by Plaintiffs in response to NGC’s motion and
concluded that “Plaintiffs have offered no evidence which
contravenes Ms. Barney’s declaration and creates a genuine issue
of material fact as to whether NGC is the alter ego of NGSS.”
Accordingly, the district court granted NGC’s motion for summary
judgment. Plaintiffs now appeal this decision, contending that
NGC is a proper defendant.
The doctrine of limited liability creates a strong
presumption that a parent corporation is not the employer of its
subsidiary’s employees. Lusk v. Foxmeyer Health Corp., 129 F.3d
773, 778 (5th Cir. 1997). However, “[i]n civil rights actions,
‘superficially distinct enterprises may be exposed to liability
upon a finding that they represent a single, integrated
enterprise: a single employer.’” Schweitzer v. Advanced
Telemarketing Corp., 104 F.3d 761, 763 (5th Cir. 1997) (quoting
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Trevino v. Celanese Corp., 701 F.2d 397, 404 (5th Cir. 1983)). To
determine whether a parent corporation and its subsidiary may be
regarded as a “single employer” in the context of civil rights
cases, this court in Trevino adopted the four-part analysis
originally created by the Supreme Court for labor disputes in
Radio Union v. Broadcast Service, 380 U.S. 255, 257 (1965). See
Lusk, 129 F.3d at 777. Trevino’s four-part test examines: (1)
interrelation of operations, (2) centralized control of labor
relations, (3) common management, and (4) common ownership or
financial control. Trevino, 701 F.2d at 404. The second of these
factors is deemed most important, with courts refining their
analysis to the question: “what entity made the final decisions
regarding employment matters related to the person[s] claiming
discrimination?” Schweitzer, 104 F.3d at 764 (quoting Trevino,
701 F.2d at 404); see also Lusk, 129 F.3d at 777 (“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.”).
We agree with the district court that NGC satisfied its
burden as summary judgment movant of pointing to evidence
demonstrating the absence of a genuine issue of material fact
regarding whether NGC was a proper defendant. The Barney
Declaration provides evidence that there was no interrelation of
operations, centralized control of labor or employment decisions,
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common management, or common ownership or financial control
between NGSS and NGC. The Barney Declaration thus indicates that
NGSS and NGC were not a single employer with respect to
Plaintiffs. We also agree with the district court that Plaintiffs
did not satisfy their burden of coming forth with “specific
facts” that would establish that a genuine issue of fact exists
regarding whether NGC is their employer.
In their memorandum in opposition to NGC’s motion,
Plaintiffs simply contended, “We were lead to believe our
employment extend[ed] through NGSS to NGC.” Plaintiffs attributed
their belief to “statements made orally and written by both NGC
and NGSS.” As examples of such statements, Plaintiffs claimed
that “[Plaintiff Tipton] ha[s] received documents with both NGC
and NGSS or no defining difference” and that Barney informed
Tipton that “she was directed to investigate [Tipton’s] concerns”
by personnel at NGC’s Los Angeles headquarters. In further
support of their memorandum, Plaintiffs submitted certain press
releases and employee newsletters from NGC, news articles about
NGC, printouts from NGC’s corporate website, and copies of
correspondence to and about Tipton by NGC attorneys regarding
complaints he had made.
Plaintiffs’ evidence in no way refutes the relevant portions
of the Barney Declaration, nor does it establish that there are a
genuine issues of fact regarding whether NGSS and NGC had
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interrelated operations, centralized control of labor or
employment decisions, common management, or common ownership or
financial control. Plaintiffs’ evidence certainly does not
establish that there is a genuine issue of fact regarding the
crucial question of whether NGC was the final decision-maker in
connection with the employment matters about which Plaintiffs
complain. We therefore hold that Plaintiffs did not meet their
summary judgment burden and that the district court did not err
in granting summary judgment for NGC on the basis that NGC is not
a proper defendant.
AFFIRMED.
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