Guillory, et al v. Rainbow Chrysler, et al

In the
United States Court of Appeals
for the Fifth Circuit
_______________
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,
Circuit Judges.
PER CURIAM:*
Kim Guillory and Christy Marcus appeal
the dismissal, for want of jurisdiction, of their
title VII complaint. Because the employer,
Rainbow Chrysler Dodge Jeep, LLC (“Rain-
bow Chrysler”), had fewer than fifteen em-
ployees (the jurisdictional minimum) during
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
lished and is not precedent except under the limited
(continued...)
*(...continued)
circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
December 13, 2005
Charles R. Fulbruge III
Clerk

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the relevant time period, we affirm.
I.
Guillory and Marcus were employees of
Rainbow Chrysler. From March 2001 to June
11, 2002, when she was discharged, Guillory
was allegedly subjected to a hostile work en-
vironment. Marcus makes similar allegations
regarding her employment from September
2001 until her resignation on June 16, 2002.
Plaintiffs filed suit for sexual harassment and
retaliation against Rainbow Chrysler under
title VII and breach of contract against the
manager. The district court dismissed under
Federal Rule of Civil Procedure Rule 12(b)(1)
because Rainbow Chrysler did not qualify as
an “employer” as defined by statute.
II.
Title VII prohibits discrimination by an
“employer” on the basis of “race, color, reli-
gion, sex, or national origin,” 42 U.S.C.
§ 2000e-2(a), where the term “employer”
means “a person . . . who has fifteen or more
employees for each working day in each of
twenty or more calendar weeks in the current
or preceding calendar year.” 42 U.S.C.
§ 2000(e)(b). In this circuit, the statutory min-
imum of fifteen employees is a jurisdictional
requirement. Greenlees v. Eidenmuller En-
ters., 32 F.3d 197, 198 (5th Cir. 1994).
To determine whether an employee counts
toward the statutory minimum for a given
year, “all one needs to know . . . is whether the
employee started or ended employment during
that year and, if so, when.” Walters v. Metro.
Educ. Enters., 519 U.S. 202, 211 (1997). To
this end, the district court “look[s] first and
primarily to whether the individual in question
appears on the employer's payroll.” Id.; Du-
mas v. Mt. Vernon, 612 F.2d 974, 979 n.7 (5th
Cir. 1980) (same).
The district court examined Rainbow
Chrysler’s payroll records from August 2001
to September 2002 and found that at no time
did it have more than fourteen employees on
its payroll. This finding is not clearly errone-
ous.1
Plaintiffs argue, however, that we should
aggregate Rainbow Chrysler’s employees with
the employees of Rainbow Chevrolet Pontiac,
LLC (“Rainbow Chevrolet”), for purposes of
asserting jurisdiction. In particular, plaintiffs
claim there is substantial overlap in the own-
ership interests and financial control of the two
dealerships.
In Trevino v. Celanese Corp., 701 F.2d 397
(5th Cir. 1983), we held that it is appropriate
to treat two seemingly distinct businesses as a
single entity where there are “(1) interrelation
of operations, (2) centralized control of labor
relations, (3) common management, and
(4) common ownership or financial control.”
Id. at 404. The mere existence of common
ownership and management does not, without
more, however, justify aggregation. Lusk v.
Foxmeyer Health Corp., 129 F.3d 773, 778
(5th Cir. 1997).
This limitation rests on the commonsense
observation that the purpose of the corporate
form is to provide shareholders with limited
1 Plaintiffs allege that the district court erred in
refusing their request for discovery of Rainbow
Chrysler’s personnel files. Assuming such a re-
quest was properly before the court, there was no
abuse of discretion where the court based its fac-
tual conclusion on the preferred method for deter-
mining the existence of an employment relation-
ship; i.e., payroll records. See Moran v. Kingdom
of Saudi Arabia, 27 F.3d 169, 172-73 (5th Cir.
1994) (finding no abuse in denying plaintiff’s re-
quest for an evidentiary hearing in ruling on a rule
12(b)(1) motion).

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liability. Therefore, plaintiffs must offer some
evidence of responsibility for employment de-
cisions beyond mere ownership to expose a
neighboring enterprise to suit under title VII.2
The evidence of centralized control here, in-
cluding use of a common controller and joint
picnics for members of the staff, does not suf-
fice 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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