Revised January 28, 2002
UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 01-60216
YVONNE E. VANCE,
Plaintiff-Appellee,
VERSUS
UNION PLANTERS CORP., ET AL.,
Defendant,
UNION PLANTERS BANK, N.A.,
Defendant-Appellant.
Appeal from the United States District Court for the Northern District of Mississippi
January 10, 2002 Before JONES and DeMOSS, Circuit Judges, and FELDMAN,* District Judge.
DeMOSS, Circuit Judge:
Plaintiff Yvonne Vance sued Union Planters Bank, N.A. under
Title VII, alleging gender discrimination. A jury awarded her
* District Judge of the Eastern District of Louisiana, sitting by designation. $30,000 for lost wages and benefits, $20,000 for emotional
distress, and $390,000 in punitive damages. The district court
later reduced the compensatory and punitive damage awards to
$300,000 to comply with Title VII’s statutory limits on employer
liability. 42 U.S.C. § 1981a(3)(D).
On appeal by Union Planters, we affirmed the district court’s
judgment as to liability. Vance v. Union Planters Corp., 209 F.3d
438, 447 (5th Cir. 2000) [Vance I]. However, because we determined
that the record was not sufficiently developed to determine the
amount of the applicable damage cap, we vacated the damages award
and remanded to the district court for further discovery and an
evidentiary hearing.
On remand, the district court set a time period for discovery
and a briefing schedule for the parties to submit evidence and
arguments to the court. After reviewing the parties’ voluminous
submissions, the court concluded again that the judgment was
subject to a $300,000 Title VII cap. Union Planters then brought
this appeal. Because we determine that $100,000, rather than
$300,000, is the applicable statutory cap, we modify the damages
portion of the district court’s judgment.
I. THE DAMAGES CAP
The limitations on Title VII compensatory and punitive damages
is found in 42 U.S.C. § 1981a(b), which provides:
2 (3) Limitations
The sum of the amount of compensatory damages awarded under this section for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses, and the amount of punitive damages awarded under this section, shall not exceed, for each complaining party–
(A) in the case of a respondent who has more than 14 and fewer than 101 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $50,000;
(B) in the case of a respondent who has more than 100 and fewer than 201 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $100,000; and
(C) in the case of a respondent who has more than 200 and fewer than 501 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $200,000; and
(D) in the case of a respondent who has more than 500 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $300,000.
42 U.S.C. § 1981a(b)(3). For purposes of this statute, we have
held that the “current year” refers to the year in which the
discriminatory act took place, not the year of judgment. See Vance
I, 209 F.3d at 446; cf. Dumas v. Town of Mount Vernon, 612 F.2d
974, 979 n.4 (5th Cir. 1980).
The statute limits allowable damages based on the number of
employees employed by the employer in the current year, but it is
silent about how to identify the relevant employer. Thus, when
there is more than one entity involved, either through a
3 parent/subsidiary or a joint-employer relationship, the question
becomes: Which entities’ employees are counted for purposes of
calculating the damages cap? Pertinent to this inquiry is the
question of whether the complaining employee in a particular case
was denied a new job with a new employer (i.e., a “failure to hire”
claim), or whether the complaining employee was denied a transfer
to another nominally independent, but sufficiently interrelated,
entity (i.e., a “failure to promote” claim).
In Trevino v. Celanese Corp., we provided some direction on
how to identify the relevant entity or entities in these types of
cases:
Ordinarily, promotion is perceived as occurring within a single company or organization. It is clear, however, that an employee may also be promoted, or denied promotion, from one to another nominally independent entity, provided these two entities’ activities, operations, ownership or management are sufficiently interrelated. Whether transfer from one workforce to another constitutes a “promotion” or a “hiring” depends on the facts of each particular case; however, the degree of interrelatedness between companies required before an employee will be considered to have been “promoted” as he transfers from one to the next cannot reasonably be said to exceed that degree of connexity which the courts require for a finding of joint employer or integrated enterprise status.
701 F.2d 397, 403 (5th Cir. 1983). Factors we consider to
determine if distinct entities constitute an integrated enterprise
are (1) interrelation of operations, (2) centralized control of
labor relations, (3) common management, and (4) common ownership or
financial control. Id. at 404. “Courts applying this four-part
4 standard in Title VII and related cases have focused on the second
factor: centralized control of labor relations.” Id. “This
criterion has been further refined to the point that ‘[t]he
critical question to be answered then is: What entity made the
final decisions regarding employment matters related to the person
claiming discrimination?’” Id.
II. BACKGROUND
Whether two employers are engaged in an integrated enterprise
for purposes of Title VII is a fact intensive determination. Id.
at 403. Thus, a review here of the relevant facts, some of which
are already set forth in our Vance I opinion, is necessary. Union
Planters Corporation (UPC), which already owned 100% of First
National Bank of New Albany (FNB) and 100% of United Southern Bank
(USB), agreed in July 1994 to purchase 100% of Grenada Sunburst
Bank (Sunburst) effective December 31, 1994. Vance I, 209 F.3d at
440.
Following UPC’s purchase of Sunburst, Sunburst’s name was
changed to Union Planters Bank of Mississippi (Sunburst/UPBMS);
USB’s name was changed to Union Planters Bank of Northwest
Mississippi (USB/UPBNW); and FNB’s name was changed to Union
Planters Bank of Northeast Mississippi (FNB/UPBNE). Id. UPC
appointed Pat Davis, who had previously been the president of FNB,
to run FNB/UPBNE. Id. Because both Sunburst/UPBMS and USB/UPBNW
5 had branches in Oxford, UPC decided that these branches were to be
consolidated into FNB/UPBNE’s Oxford branch.1 Id. Davis was
charged with hiring a president for this newly consolidated Oxford
bank branch. Id.
Yvonne Vance, the plaintiff, had been president of Sunburst’s
branch in Oxford, Mississippi, for seven years and she applied for
the position of president of the new consolidated branch. Id.
However, on March 15, 1995, Davis hired Tom Carroll instead of
Vance to fill this position.2 Id. Vance sued Davis, UPC,
Sunburst/UPBMS, USB/UPBNW, and FNB/UPBNE for gender discrimination.
After conducting depositions, Vance agreed that all defendants
should be dismissed except UPC and FNB/UPBNE. In January 1998, the
district court also dismissed UPC, concluding that UPC and
FNB/UPBNE did not constitute a single integrated enterprise. Thus,
the only remaining defendant was FNB/UPBNE. Later in 1998,
Sunburst/UPBMS, USB/UPBNW, and FNB/UPBNE merged with Union Planters
Bank, N.A. (UPBNA). Consequently, UPBNA was substituted as the
defendant for FNB/UPBNE.
The trial was finally held, and the jury concluded that Davis
had engaged in illegal gender discrimination in passing up Vance
for this position. Id. at 439. It awarded Vance $30,000 for lost
1 FNB/UPBNE, Sunburst/UPBMS, and USB/UPBNW were separately chartered banks with other branches in locations other than Oxford. 2 At the time, Tom Carroll was serving as an administrative assistant to Don Ayres, president of Sunburst.
6 wages and benefits, $20,000 for emotional distress, and $390,000 in
punitive damages. UPBNA argued to the district court that the
punitive and compensatory damages should be reduced to $100,000
because FNB/UPBNE only employed approximately 140 people at the
time the discriminatory act occurred. See 42 U.S.C. § 1981a(b)(3)
(capping damages at $100,000 for employers with “more than 100 and
fewer than 201 employees in each of 20 or more calendar weeks in
the current or preceding calendar year”). However, the district
court concluded that the date of judgment, rather than the date of
the discriminatory act is the date on which the employee count is
relevant under § 1981a. Then it noted that UPBNA, the newly
consolidated bank and the substituted defendant, had well over 500
employees on the date of judgment. Alternatively, the court
suggested that “no single subsidiary” could realistically be
considered Vance’s would-be employer; thus, the “discriminatory act
was done on behalf of a large corporation.” Accordingly, it capped
the compensatory and punitive damages at $300,000, the relevant cap
for employers with more than 500 employees. See 42 U.S.C.
§ 1981a(b)(3)(D).
The bank appealed, and this Court affirmed as to liability.
Vance I, 209 F.3d at 440. However, we disagreed with the district
court’s conclusion that, for purposes of § 1981a’s cap on damages,
the employer’s size is measured at the date of the verdict. Id. at
446. Instead, we explained, the year of the discriminatory act is
7 the correct measure. Id. Thus, we remanded for the district court
to determine the relevant employer and employer size on the date
the discriminatory act occurred.
On remand, the district court focused on March 15, 1995, as
the date the discrimination took place. It then concluded that
Sunburst/UPBMS was the relevant employer at this time for purposes
of counting employees to apply the damage cap. The court began by
noting that Carroll, the person hired instead of Vance, remained on
Sunburst/UPBMS’s payroll until March 31, 1995. Thus, it reasoned
that if Vance had been hired on March 15th instead of Carroll, she
would have likewise remained on Sunburst/UPBMS’s payroll until
March 31, 1994. For this reason, the court found that
Sunburst/UPBMS was Vance’s prospective employer whose employees
should be counted in calculating the damage cap. The parties do
not dispute that on March 15, 1995, Sunburst/UPBMS had more than
500 employees.
Alternatively, the district court concluded that, based on the
factors this Court articulated in Trevino, 701 F.2d at 403-404,
Sunburst/UPBMS, USB/UPBNW, and FNB/UPBNE constituted a single
integrated entity for purposes of the damage cap. Because these
three entities had an aggregate total number of employees well in
excess of 500, the court concluded that the appropriate measure of
compensatory and punitive damages under § 1981a(b)(3) was $300,000.
UPBNA appeals again to this Court.
8 III. ANALYSIS
We review the district court’s decision de novo. Llampallas
v. Mini-Circuits, 163 F.3d 1236, 1244 (11th Cir. 1999). There is
no dispute as to the number of employees employed by each
subsidiary in 1995; FNB/UPBNE had approximately 140 employees, and
Sunburst/UPBMS and USB/UPBNW each had more than 500 employees each.
Thus, we must first resolve the question of who would have been
Vance’s employer had she been offered the position of president of
the new branch. Then, only if we decide that Vance’s would-be
employer had less than 500 employees in 1995 need we reach the
second question of whether the three subsidiaries, Sunburst/UPBMS,
USB/UPBNW, and FNB/UPBNE, should be considered a single integrated
enterprise for purposes of aggregating their employees to calculate
the appropriate damages cap.
After carefully reviewing the record and the parties’
evidence, we conclude that the district court erred in finding that
Sunburst/UPBMS would have been Vance’s employer had she been
offered the position of president of the new bank. Rather, we
conclude that FNB/UPBNE is the relevant employer. We reach this
conclusion by reference to Carroll’s position after he was hired
instead of Vance.
“An individual qualifies as an employer under Title VII solely
for purposes of imputing liability to the true employer if he or
she serves in a supervisory position and exercises significant
9 control over the plaintiff’s hiring.” Haynes v. Williams, 88 F.3d
898, 899 (10th Cir. 1996). It is clear and undisputed from the
record that Davis served “in a supervisory position” for FNB/UPBNE
and exercised “significant control over [Carroll’s] hiring.” Id.
The evidence reflects that Carroll was hired to run FNB/UPBNE’s
Oxford branch that would eventually subsume Sunbelt/UPBMS’s and
USB/UPBNW’s Oxford branches. Carroll was hired by Davis, who was
president of FNB/UPBNE, and it is undisputed that Carroll answered
only to Davis and FNB/UPBNE.
Moreover, the fact that Carroll remained on Sunburst/UPBMS’s
payroll for two weeks after being hired for his new position—a
fact the district court considered dispositive—does not alter our
analysis.3 Vance even notes in her brief that during the time that
Carroll was not yet on FNB/UPBNE’s payroll, he was only
“technically assigned” to another bank and that “he reported [only]
to Pat Davis who operated FNB . . . .” Regardless of who
temporarily paid Carroll, no one has argued that Carroll actually
performed work for or was supervised by Sunburst/UPBMS or
USB/UPBNW. The bottom line is that the position Vance sought
(which Carroll instead received) was that of president of
3 After being hired as president of the new branch in March, Carroll remained on Sunburst/UPBMS’s payroll for two weeks, and then he was paid by USB/UPBNW for four months, and then, finally, he began receiving pay from FNB/UPBNE in July.
10 FNB/UPBNE’s Oxford branch, not that of a temporary employee of
Sunburst/UPBMS or USB/UPBNW.
In sum, we hold that FNB/UPBNE’s failure to place Carroll on
its payroll for five months does not necessarily mean that
FNB/UPBNE cannot be Vance’s would-be employer for Title VII
purposes. And we conclude that because Davis, acting for
FNB/UPBNE, was the sole decision maker about who was hired to act
as the branch president, Davis qualified as the discriminating
employer for “purposes of imputing liability to the true
employer”—FNB/UPBNE. Id.
The parties agree that FNB/UPBNE had about 140 employees in
1994. Section 1981a provides that damages cannot exceed, “in the
case of a respondent who has more than 100 and fewer than 201
employees, in each of 20 or more calendar weeks in the current or
preceding calendar year, $100,000.” Accordingly, with FNB/UPBNE as
the relevant employer rather than Sunburst/UPBMS, the correct
damages cap under § 1981a is $100,000.
Because FNB/UPBNE had less that 500 employees, which
represents the upper limit of the damages cap, we must now address
Vance’s argument that FNB/UPBNE, Sunbelt/UPBMS, and USB/UPBNW
constituted a “single integrated enterprise,” such that their
number of employees should be aggregated in calculating the
appropriate damages cap. To properly focus our analysis, we
preliminarily note that the question is not whether FNB/UPBNE and
11 its parent company, UPC, were integrated enterprises. The district
court, in its January 1998 order, applied the Trevino factors to
correctly hold that UPC was not a single integrated enterprise with
FNB/UPBNE.4 And Vance recognizes as much in her brief.5
However, the district court, on remand from the defendant’s
prior appeal, concluded that Sunbelt/UPBMS, USB/UPBNW, and
FNB/UPBNE were a single integrated enterprise. It reasoned:
By analyzing evidence submitted by both parties in light of the Trevino factors . . . the court finds that during the relevant time period, in matters of administrative personnel, all decisions were made by Pat Davis in his position as the individual with administrative control over the Oxford branches of SB and USB as well as the President and CEO of FNB and said administrative decisions were on behalf of UPC; as such, SB, FNB, and USB were an integrated enterprise for purposes of Title VII liability.
We disagree. In determining whether distinct entities constitute
4 UPC, as FNB/UPBNE’s parent company, is not liable as Vance’s would-be employer absent a finding that UPC and FNB/UPBNE are integrated enterprises. See Chaiffetz v. Robertson Research Holding, Ltd., 798 F.2d 731, 735 (5th Cir. 1986) (“[T]he formula of Trevino v. Celanese Corp. . . . lets one decide whether a parent company is the de facto employer of the plaintiff.”). The district court, after reviewing the evidence and applying the Trevino factors, concluded that “the plaintiff has failed to create a genuine issue of material fact as to existence of a single integrated enterprise, and therefore, the defendant Union Planters Corporations is entitle to summary judgment as it is not the plaintiff’s employer.” 5 In her brief, Vance acknowledges that, prior to our decision in Vance I, the district court applied the Trevino factors “in the context of the relationship between UPB and FNB (UPBNE).” Thus, Vance properly limits her argument to the contention that Sunbelt/UPBMS, USB/UPBNW, and FNB/UPBNE constitute a single integrated enterprise.
12 a single integrated enterprise we have consistently focused, almost
exclusively, on “one question: which entity made the final
decisions regarding employment matters relating to the person
claiming discrimination?” Skidmore v. Precision Printing &
Packaging, Inc., 188 F.3d 606, 617 (5th Cir. 1999); Schweitzer v.
Advanced Telemarketing Corp., 104 F.3d 761, 765 (5th Cir. 1997)
(“The critical question is the following: which entity made the
final decisions regarding employment matters related to the person
claiming discrimination?”); Chaiffetz, 798 F.2d at 735 (“We place[]
highest importance on the second [Trevino] factor, rephrasing and
specifying it so as to boil down to an inquiry of ‘what entity made
the final decisions regarding employment matters related to the
person claiming discrimination.’”).
We have already determined that FNB/UPBNE was Vance’s would-be
employer and thus the employer who discriminated against her by not
hiring her as president of the new Oxford branch. Accordingly, to
support the district court’s finding of joint enterprise between
Sunbelt/UPBMS, USB/UPBNW, and FNB/UPBNE, there must be evidence
that Sunbelt/UPBMS and USB/UPBNW were instrumental in making the
final decision not to hire Vance. There is no such evidence in the
record.
The parties do not dispute that Davis, as president and CEO of
FNB/UPBNE was the sole person charged with making employment
decisions about the new bank branch. The district court’s
13 reference to Davis’ power to make administrative decisions related
to the Oxford branches of Sunbelt/UPBMS and USB/UPBNW—the two
branches he was charged with merging into FNB/UPBNE’s Oxford
branch—is not enough to establish that Sunbelt/UPBMS and
USB/UPBNW, which have their own Board of Directors and more than
500 employees each, were engaged in a joint enterprise with
FNB/UPBNE. Instead, Davis’ limited interim control over two of
Sunbelt/UPBMS’s and USB/UPBNE’s branches, undertaken on behalf of
FNB/UPBNE, is more realistically viewed as necessary administrative
functions to facilitate the transfer and eventual merger of the two
branches into FNB/UPBNE’s Oxford branch. In other words, this
evidence does not establish that Sunbelt/UPBMS or USB/UPBNE were
involved in the decision of whether to hire Vance, or that the
labor decisions between FNB/UPBNE, Sunbelt/UPBMS, and USB/UPBNE
were so generally intermingled to justify treating them as a single
integrated enterprise.
The district court also cited evidence about the
interrelationship between UPC and each of its three subsidiaries as
proof that FNB/UPBNE, Sunbelt/UPBMS, and USB/UPBNE constituted a
single integrated enterprise:
Union Planters Corporation was interrelated with its subsidiaries, including FNB, SB, and USB during the relevant period. This interrelation included, but was not limited to, filing consolidated reports to the SEC and other federal agencies, filing consolidated tax returns, serving as the centralized payroll entity, and having Common Management Agreements executed and followed by the
14 subsidiaries. Finally, UPC, at the time in question, was the sole owner of 100% of its subsidiaries’ stock.
However, this evidence does not establish that the three
subsidiaries were interrelated with one another. Rather, this
evidence would speak to whether UPC, as the parent company, should
be considered a single integrated enterprise with each of its
individual subsidiaries. As discussed previously, the district
court already correctly concluded in 1998 that UPC and FNB/UPBNE
did not constitute a single integrated enterprise, as there is no
evidence that UPC participated in the decision not to hire Vance.
Therefore, because there is no evidence of a sufficient
interrelationship between FNB/UPBNE, Sunbelt/UPBMS, and USB/UPBNE
to constitute a single integrated enterprise, we conclude that the
district court erred by holding the three subsidiaries were
interrelated.
IV. CONCLUSION
We conclude that FNB/UPBNE was Vance’s would-be employer for
purposes of § 1981a. We also reject Vance’s argument that
FNB/UPBNE, Sunbelt/UPBMS, and USB/UPBNE constitute a single
integrated enterprise. The undisputed evidence demonstrates that
FNB/UPBNE had approximately 140 employees at the time the
discriminatory act occurred. Accordingly, Vance’s damages should
have been limited by § 1981a(b)(3)(B), which provides that the sum
of compensatory damages awarded for “future pecuniary losses,
15 emotional pain, suffering, inconvenience, mental anguish, loss of
enjoyment of life and other nonpecuniary losses and the amount of
punitive damages” may not exceed $100,000 for a defendant who “has
more than 100 and fewer than 201 employers in each of 20 or more
calendar weeks in the current or preceding year.”
The jury awarded Vance $30,000 for lost wages and benefits,
$20,000 in emotional damages, and $390,000 in punitive damages.
The $30,000 of lost wages is not subject to §1981a(b)(3)’s
limitation on damages. 42 U.S.C. § 1981a(b)(2). The remaining
awards for emotional distress, $20,000, and punitive damages,
$390,000 are subject to the $100,000 limitation. Accordingly, we
modify the district court’s award to reduce Vance’s total award to
$130,000.