Torres v. Liberto Mfg Co Inc ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
May 12, 2003
For the Fifth Circuit
Charles R. Fulbruge III
Clerk
No. 02-11105
MARY H. TORRES,
Plaintiff-Appellant,
VERSUS
LIBERTO MANUFACTURING CO INC
Defendant-Appellee.
Appeal from the United States District Court
For the Northern District of Texas, Dallas
( 3:01-CV-1888-H )
Before DUHE’, EMILIO M. GARZA, and DeMOSS, Circuit Judges.
PER CURIAM:*
Appellant Mary H. Torres brought suit against Liberto Manufacturing Co., Inc. (“Liberto
Mfg.”) alleging racial discrimination under Title VII and age discrimination under the ADEA on
September 21, 2001. The district court accepted the parties’ request for a bifurcated discovery and
ordered that discovery on jurisdictional issues be completed by noon on March 18, 2002. On March
18, 2002, Torres filed a motion asking to extend the discovery period for an additional twenty days
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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because her attorney had a scheduling conflict that resulted in the cancellation of two depositions that
had been scheduled for March 15, 2002. The district court denied the motion to extend. On March
25, 2002, Liberto Mfg. filed a motion for summary judgment asserting that it was not an “employer”
for the purposes of Title VII and the ADEA. The motion was referred to a magistrate judge who
recommended that the motion be granted. The district court adopted the magistrate judge’s findings
and entered judgment granting Liberto Mfg.’s motion and dismissing Torres’s complaint. Torres now
appeals the district court’s decision not to grant an extension for discovery and the granting of
summary judgment.
BACKGROUND
Torres became an employee of Libert o Mfg. in 1987 and was a member of Liberto Mfg.’s
production department where her chief responsibility involved packaging popcorn. On October 26,
2000, Torres sustained an on-the-job injury to her left wrist. Following surgery and multiple physical
therapy sessions, Torres faxed a letter from her doctor to Ms. Debbie Newman, the Human
Resources Manager for Liberto Management, Inc. (“LMI”), a sister subsidiary of Liberto Mfg., which
indicated that Torres would be returning to work on June 4, 2001. On May 15, 2001, Torres
received a letter from Newman informing Torres that she was terminated as of that date, pursuant
to Liberto Mfg.’s “Leave of Absence” policy,2 but that Torres could reapply at anytime.
On June 4, 2001, Torres went to Liberto Mfg.’s place of business and was confronted by Mr.
Melesio Herrera, her former supervisor. Herrera told Torres that “there was not enough work,” and
refused to give Torres an application for employment. Torres then had Herrera call Newman and left
2
The policy provided a maximum of 90 days leave, after which the employee was considered
to have voluntarily terminated her employment.
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a message for Newman to call Torres. When Newman returned the call, she told Torres that there
was no work available and that Liberto Mfg. was not hiring.
Torres subsequently filed a complaint against Liberto Mfg. on September 21, 2001 alleging
racial discrimination under Title VII and age discrimination in violation of the ADEA. On January
2, 2002, the district court accepted the request of the parties for bifurcated discovery and ordered that
discovery relating to jurisdictional issues be completed prior to noon on March 18, 2002, thus giving
the part ies over ten weeks to complete discovery on the jurisdictional issue alone. On March 18,
2002, Torres filed a motion to extend discovery, requesting a twenty day extension. Torres explained
that though she set-up depositions of witnesses on February 27, 2002 (only a little less than three
weeks before the deadline), two of the witnesses, Newman and Ron Mullholland, were scheduled for
March 15, 2002. As it so happened, Torres’s counsel had to be in court in Dallas that day for a
pending trial and was unable to make it to San Antonio for the depositions.
The district court denied Torres’s motion to extend discovery on March 22, 2002. The
district court noted that Torres’s counsel had nearly two months to complete discovery and waited
until the last full business day of the discovery period to schedule the depositions. The district court
also found that the conflict Torres’s counsel faced of having a trial in Dallas, was foreseeable and that
it was Torres’s counsel’s responsibility to ensure that discovery was completed by noon.
Liberto Mfg. then filed a motion for summary judgment on March 25, 2002, based on the fact
that it was not an “employer” for the purposes of Title VII and the ADEA because it did not employ
the requisite number of employees. On May 10, 2002, the district court referred the case to United
States Magistrate Judge William F. Sanderson to make findings and recommendations on the motion.
On August 8, 2002, the magistrate judge entered his report and recommendation that Liberto Mfg.’s
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motion for summary judgment be granted. On August 30, 2002, the district court adopted the
magistrate judge’s recommendation and granted Liberto Mfg.’s motion for summary judgment.
Torres timely filed her appeal.
DISCUSSION
Did the district court abuse its discretion in denying Torres’s
motion to extend discovery?
A district court’s decision to preclude further discovery
prior to granting summary judgment is reviewed for abuse of
discretion. Krim v. Banctexas Group, Inc., 989 F.2d 1435, 1441
(5th Cir. 1993). A district court’s discovery decision will be
affirmed unless it is arbitrary or clearly unreasonable. Moore v.
Willis Indep. Sch. Dist., 233 F.3d 871, 876 (5th Cir. 2000).
Torres complains that summary judgement is inappropriate where
the non-moving party has not had a full opportunity to conduct
discovery. Torres further cites to this Circuit’s decision in
International Shortstop, Inc. v. Rally’s Inc., to support her
contention that motions to extend discovery for the purposes of
summary judgment should be granted as a matter of course. 939 F.2d
1257, 1267 (5th Cir. 1991).
Torres misconstrues Rally’s and also leaves out an important
part of the language from that opinion. In Rally’s, this court
stated:
Where the party opposing the summary judgment informs the
court that its diligent efforts to obtain evidence from
the moving party have been unsuccessful, a continuance of
a motion for summary judgment for purposes of discovery
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should be granted almost as a matter of course. If,
however, the nonmoving party has not diligently pursued
discovery of that evidence, the court need not
accommodate the nonmoving party’s belated request.
Id. at 1267 (quotations and citations omitted). Torres was given
a full opportunity to conduct discovery but was found not to have
diligently pursued discovery by the district court. The district
court gave both parties 75 days to conduct discovery on the sole
issue of jurisdiction. Torres admits in her brief that she did not
begin to schedule depositions until February 27, 2002, 56 days
after the deadline was set. Torres also set the depositions in
question for the last full business day of the discovery period and
did not request an extension until the very last day of the
discovery period. Torres offers no explanation as to why she
waited so long to schedule the depositions or why they were
scheduled at the very end of the discovery period when her counsel
knew that she had another trial pending. Therefore, we conclude
that the district court did not abuse its discretion in denying the
extension. Torres was given a full opportunity to conduct
discovery and chose not to take advantage of that opportunity. The
district court’s decision is affirmed.
Did the district court err granting Liberto Mfg.’s motion for
summary judgment?
This Court reviews a district court’s grant of summary
judgment de novo. Young v. Equifax Credit Info. Servs. Inc.,
294 F.3d 631, 635 (5th Cir. 2002). Summary judgment is appropriate
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only “if 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).
Torres claims that had she been able to depose Newman and
Mullholland, she would clearly have been able to establish that
Liberto Mfg. was an “employer” under Title VII and the ADEA because
all of the Liberto subsidiary corporations were a single employer.
Despite having not deposed these individuals, Torres claims that
she still has offered sufficient proof so as to overcome a motion
for summary judgment.
Under Title VII, an “employer” is defined as “a person engaged
in an industry affecting commerce 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, and any agent of such
person . . . .” 42 U.S.C. § 2000e(b). The ADEA has almost an
identical definition for an employer except it defines it as a
person who has twenty or more employees as opposed to fifteen.
29 U.S.C. § 630(b). Determining whether a defendant is an
“employer” under Title VII or the ADEA involves a two-step process:
(1) the defendant must fall within the statutory definition; and,
(2) there must be an employment relationship between the plaintiff
and the defendant. Deal v. State Farm County Mut. Ins. Co. of
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Tex., 5 F.3d 117, 118 n.2 (5th Cir. 1993). If a plaintiff fails to
establish that a defendant is an “employer” as defined by these
statutes then the court lacks subject matter jurisdiction over the
plaintiff’s claims. Womble v. Bhangu, 864 F.2d 1212, 1213 (5th
Cir. 1989).
Liberto Mfg. contends, and Torres does not dispute, that it
only employed, at most, 6 employees during the relevant time
period. Torres contends, however, that due to the interrelatedness
of Liberto Mfg. and Liberto Specialty Company, Inc. (“Liberto SI”),
its parent corporation, these corporations should be treated as a
single business enterprise, pursuant to the “single employer
doctrine.” This theory is based on this Circuit’s broad definition
of the term “employer” that includes superficially distinct
entities that are sufficiently interrelated so as to constitute a
single, integrated enterprise. Lusk v. Foxmeyer Health Corp., 129
F.3d 773, 777 (5th Cir. 1997).
Torres urges this Court to apply the “single employer” test of
Trevino v. Celanese Corp., 701 F.2d 397, 404 (5th Cir. 1983) and
Lusk. Both parties agree that the factors this Court should
consider under this test are: (1) interrelation of operations,
(2) centralized control of labor or employment decisions,
(3) common management, and (4) common ownership or financial
control. Trevino, 701 F.2d at 404. This analysis ultimately
focuses on the question of whether the parent corporation was a
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final decision-maker in connection with the employment matters
underlying the litigation. Id.In her brief, the only factor that Torres attempts to argue is
that the second Trevino factor applies because it was Newman, an
employee of LMI, another Liberto SI subsidiary, that fired Torres.3
Though this Court has noted that the second Trevino factor is the
most important, Vance v. Union Planters Corp., 279 F.3d 295, 297
(5th Cir. 2002), this Court still considers all four factors to
determine “whether the parent corporation was a final decision-
maker in connection with the employment matters underlying the
litigation.” Lusk, 129 F.3d at 777. Torres’s reliance on this one
factor is not persuasive.4
In assessing whether there is centralized control of labor
relations, this Court focuses on determining what entity made the
final decision regarding employment matters related to the person
claiming discrimination. Vance, 279 F.3d at 297; Trevino, 701 F.2d
at 404. Despite Torres’s allegations that Newman is the one who
terminated her, the magistrate judge found that it was
3
Torres does not argue in her brief the other factors, but instead attempts to incorporate by
reference her arguments below. This is not permitted and all such arguments are waived. See Cinel
v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994) (noting that because the appellant attempted to
incorporate its arguments below by reference, such arguments were waived); Yohey v. Collins, 985
F.2d 222, 224-25 (5th Cir. 1993).
4
It is also worth noting that the magistrate judge found that Torres had completely failed to
offer any proof of how many employees Liberto SI or LMI had and only offered a speculative number
of 192 which turned out to be erroneously based on one of Torres’s earnings statements (the number
192 was the check number).
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uncontroverted that it was Herrera, a Liberto Mfg. employee, who
made the decision to fire her, and that he simply asked Newman to
notify Torres of the termination. The magistrate judge also found
that all statements that were made to Torres by Newman were simply
re-iterations and affirmations of what Herrera told Torres. Torres
also makes a vague reference in her brief to the fact that, because
Newman stated in an affidavit that her position as a Human
Relations Manager meant that she provides support to all of Liberto
SI’s subsidiaries, there must be common management. Nothing in the
quoted statements, however, indicates that Newman had control over
management decisions in the multiple subsidiaries. As we find that
Torres’s vague arguments on this point regarding centralized
control fail, we conclude that the district court did not err in
adopting the magistrate judge’s recommendation, and, therefore,
affirm the district court’s decision.
CONCLUSION
Having carefully reviewed the record of this case and the
parties’ respective briefing and for the reasons set forth above,
we conclude that the district court did not abuse its discretion in
denying Torres’s motion to extend discovery or err in granting
summary judgment in favor of the defendant, Liberto Mfg. We
therefore AFFIRM the district court’s decision.
AFFIRMED
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