936 F.2d 1087 (10th Cir. 1991), 90-5013, Evans v. McDonald's Corp.

Docket Nº:90-5013.
Citation:936 F.2d 1087
Party Name:Johnnie L. EVANS, Plaintiff-Appellant, v. McDONALD'S CORPORATION, a Delaware corporation; McDonald's of Claremore, a defunct Oklahoma corporation; David McMahan, Defendants-Appellees.
Case Date:April 09, 1991
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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936 F.2d 1087 (10th Cir. 1991)

Johnnie L. EVANS, Plaintiff-Appellant,


McDONALD'S CORPORATION, a Delaware corporation; McDonald's

of Claremore, a defunct Oklahoma corporation;

David McMahan, Defendants-Appellees.

No. 90-5013.

United States Court of Appeals, Tenth Circuit

April 9, 1991

Page 1088

Steven M. Dickson, of Dickson & Pope, P.A., Topeka, Kan., and Leslie Shelton, Tulsa, Okl., for plaintiff-appellant.

Patrick M. Ryan and Charles E. Geister III, of Ryan, Corbyn & Geister, Oklahoma City, Okl., for defendant-appellee McDonald's Corp.

Benjamin J. Butts (Short, Barnes, Wiggins, Margo & Adler, of counsel), Oklahoma City, Okl., for Defendant-Appellee David McMahan.

Before LOGAN, MOORE and BALDOCK, Circuit Judges.

LOGAN, Circuit Judge.

Plaintiff Johnnie L. Evans appeals from a district court order granting summary judgment to defendants David McMahan and McDonald's Corporation on her Title VII claims and dismissing her pendent state claims. 1 Evans managed two McDonald's restaurants. She managed the first, located in Wellston, Oklahoma, until December 1986, when she was transferred to the second, located in Claremore, Oklahoma. Both restaurants were owned and

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operated by Everett Allen, a McDonald's franchisee. Evans alleged that she was sexually harassed by David McMahan, beginning while she was employed at the Wellston restaurant and continuing into her employment at the Claremore restaurant. McMahan was employed at the time by McDonald's Corporation as a consultant.

Evans filed a complaint with the EEOC and the Oklahoma Human Rights Commission (OHRC). The following month, Allen sold his McDonald's franchises to McDonald's Corporation. McDonald's did not retain Evans, although almost all other Claremore location employees were retained. Evans subsequently amended her EEOC/OHRC complaint to allege retaliatory discharge. She received a Notice of Right to Sue from the EEOC.

Evans filed this lawsuit against McDonald's Corporation, David McMahan, and McDonald's of Claremore 2 as defendants. Her amended complaint alleged sexual harassment in violation of 42 U.S.C. Secs. 2000e through 2000e-17 (Title VII of the Civil Rights Act of 1964). She also asserted several pendent state law claims. On motion by remaining defendants McDonald's and McMahan the district court granted summary judgment to defendants on Evans' sexual harassment claims, based on its conclusion that defendants were not Evans' employers. The district court dismissed Evans' pendent state claims.

On appeal, Evans argues that summary judgment is inappropriate because the determination whether defendants were her employers is a question of fact. She also contends the district court erred in failing to consider her claim for retaliatory failure to hire and her claim that McDonald's acquired liability for this suit by purchasing Everett Allen's franchises. She does not appeal the district court's dismissal of her pendent state law claims.

We review de novo the district court's grant of summary judgment. Wheeler v. Hurdman, 825 F.2d 257, 260 (10th Cir.), cert. denied, 484 U.S. 986, 108 S.Ct. 503, 98 L.Ed.2d 501 (1987). We construe the alleged facts in the light most favorable to the non-moving party. See id.

We hold that under no plausible legal theory are defendants Evans' employers. Evans essentially concedes that, under either common law or the "economic realities" test, defendants are not her immediate employers. Appellant's Brief at 2-3. See Wheeler, 825 F.2d at 268-71 (discussing elements to be considered under common law and "economic realities" test in determining whether employer/employee relationship exists for Title VII purposes); Broussard v. L.H. Bossier, Inc., 789 F.2d 1158, 1160 (5th Cir.1986); Garrett v. Phillips Mills, Inc., 721 F.2d 979, 981-82 (4th Cir.1983); see also Kennedy v. McDonald's Corp., 610 F.Supp. 203, 204-05 (S.D.W.Va.1985) (same, in franchise setting).

Evans, however, urges us to consider a line of cases in which courts have found that two entities' "activities, operations, ownership and management are sufficiently interrelated to be perceived as a single employer for purposes of Title VII." McKenzie v. Davenport-Harris Funeral Home, 834 F.2d 930, 933 (11th Cir.1987); see, e.g., EEOC v. Wooster Brush Co. Employees Relief Ass'n, 727 F.2d 566, 572 (6th Cir.1984); Armbruster v. Quinn, 711 F.2d 1332, 1337-38 (6th Cir.1983); Baker v. Stuart Broadcasting Co., 560 F.2d 389, 391-92 (8th Cir.1977); Carter v. Shop Rite Foods, Inc., 470 F.Supp. 1150, 1160 (N.D.Tex.1979). In these and other cases, courts struggling with the definition of "employer" under Title VII have turned for guidance to a test promulgated by the National Labor Relations Board. McKenzie, 834 F.2d at 933. Under this test, the factors to be considered are (1) interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control. Id.

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We need not decide whether to adopt the reasoning of McKenzie and like cases, because Evans cannot sustain a cause of action even under the theory she advances. 3 Evans contends that, when these factors are considered, the ultimate issue--whether defendants are Evans' employers--is a question of fact precluding summary judgment. Appellant's Brief at 3. On the contrary, the essential facts underlying determination of this issue are undisputed. Even were we to assume the existence of an interrelation of operations, given the common goals and interaction of McDonald's and its independent franchises, the record before us indicates no common management, no centralized control of labor relations, and no common ownership or financial control. Evans does not controvert the facts contained in the record before us...

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