Brenimer v. Great Western Sugar Co.

• Decision Date: 29 June 1983
• Docket Number: Civ. A. No. 81-K-1717.
• Citation: 567 F. Supp. 218
• Parties: Robert A. BRENIMER, Plaintiff, v. The GREAT WESTERN SUGAR COMPANY, a Delaware corporation, and Hunt International Resources Corporation, a Delaware corporation, Defendants.
• Court: U.S. District Court — District of Colorado

567 F. Supp. 218

Robert A. BRENIMER, Plaintiff, v. The GREAT WESTERN SUGAR COMPANY, a Delaware corporation, and Hunt International Resources Corporation, a Delaware corporation, Defendants.

Civ. A. No. 81-K-1717.

United States District Court. D. Colorado.

June 29, 1983.

Kathleen Mills, Timothy E. Whitsitt, Denver, Colo., for plaintiff.

Earl K. Madsen, Golden, Colo., for defendants.

MEMORANDUM OPINION AND ORDER

KANE, District Judge.

Defendants have four motions before me which have been briefed and are now ready for decision. They are: Hunt's motion to dismiss; a joint motion for summary judgment; a joint motion for partial summary judgment on procedural and remedial issues; and a joint motion to quash Brenimer's jury request. For the reasons given below, I deny the motions to dismiss, for summary judgment and to quash the jury request. In part, I grant the motion for partial summary judgment.

The background of this litigation is easily viewed. Great Western is a wholly-owned subsidiary of Hunt. Brenimer worked for Great Western for twenty-five years prior to his termination. As vice-president of industrial relations, Brenimer was responsible for personnel and labor relations. He was terminated on 29 September 1979 and his position combined with that of the director of personnel. The former director, Bill Baird, assumed all of the combined duties except for contract negotiations, which were assumed by Clarence Davan. At the time of his termination Brenimer was 58 years old, Baird was 54, and Davan 48. Brenimer exhausted his administrative remedies, then sued Great Western for violations of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., breach of implied contract, intentional infliction of emotional distress and violation of § 8-2-116, Colo.Rev.Stat. (1973), which prohibits discharge of an employee because of age. After initial discovery, Brenimer added Hunt as a defendant.

I. HUNT'S MOTION TO DISMISS

Hunt advances two grounds for dismissal. I will treat the motion as one for summary judgment, since both sides have relied upon matters outside the pleadings to make their arguments. Rule 12(c), Fed.R.Civ.P. It is undisputed that Brenimer did not name Hunt in his complaint filed with the EEOC. From this Hunt argues that I lack subject matter jurisdiction because § 626(d)'s 60 day notice requirement was not satisfied.¹ Hunt relies, in part, on an opinion by Judge Finesilver which dismissed an ADEA suit against a holding company where the plaintiff filed suit only 20 days after giving notice to the company. Judge Finesilver determined that the 60 day notice requirement was a mandatory, jurisdictional prerequisite to suit. Hannon v. Continental National Bank, 427 F.Supp. 215 (D.C.Colo. 1977). And see Goger v. H.K. Porter Company, Inc., 492 F.2d 13 (3rd Cir.1974); Edwards v. Kaiser Aluminum and Chemical Sales, Inc., 515 F.2d 1195 (5th Cir.1975).

Brenimer argues that he only became aware of Hunt's role through discovery, and thus should not be barred from suit. The notice period, in his view, is a prerequisite to filing suit, but is neither mandatory nor jurisdictional. I have held in the past that the notice requirement is not jurisdictional and is more in the nature of a statute of limitations, thus subject to equitable modification. Potter v. Continental Trailways, Inc., 480 F.Supp. 207 (D.C.Colo.1979). In Potter, I relied upon the Tenth Circuit's opinion in Dartt v. Shell Oil Company, 539 F.2d 1256 (1976). I acknowledged at the time that the courts were split on the nature of the notice requirement, but was persuaded by recent legislative history and amendments to ADEA which Congress had passed in 1978. 480 F.Supp. at 210, 211.

A more recent Tenth Circuit decision confirms my previously-held opinion. Romero v. Union Pac. R.R., 615 F.2d 1303 (1980). The Romero court identified four factors to consider in evaluating a suit filed without the benefit of the Secretary of Labor's conciliation efforts, as mandated by § 626.

"1) Whether the role of the unnamed party could through reasonable efforts by the complainant be ascertained at the time of the filing of the EEOC complaint; 2) whether, under the circumstances, the interests of a named sic are so similar as the unnamed party's that for the purposes of obtaining conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; 3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; 4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party." 615 F.2d at 1312.

Factors one and three are beyond cavil. Brenimer did not know of Hunt's existence when he filed his EEOC complaint, nor is it clear that he could have found it out, absent the discovery process. No prejudice has been alleged or shown to have been suffered by Hunt. Although the evidence before me relating to factor two is disputed, I resolve it in favor of the plaintiff.² EEOC complaints must be liberally construed since they are written by laymen who are unfamiliar with the technicalities of pleading or the jurisdictional requirements of the statute. Friedman v. Wiener, 515 F.Supp. 563 (D.C.Colo.1981); Romero v. Union Pac. R.R., supra. I do not consider factor four applicable here. Since Brenimer was unaware of Hunt's existence at the time he filed his EEOC complaint, it is implausible, and not suggested, that Hunt told Brenimer to communicate to it through Great Western.³

The second basis advanced by Hunt for dismissal is its claim that as a parent corporation it is not liable for acts by its subsidiary because Hunt is not an employer for ADEA purposes.⁴ A variety of tests to determine this issue are urged upon me by the parties. The first test asks if Great Western was Hunt's agent under traditional agency principals. See Hassell v. Harmon Foods, Inc., 336 F.Supp. 432 (W.D. Tenn.1977); Wilkerson v. Siegfried Insurance Company, 621 F.2d 1042 (10th Cir. 1980). The second test asks if the two companies are so interrelated that they constitute an "integrated enterprise." borrowing the phrase from the NLRB. Baker v. Stuart Broadcasting Company, 560 F.2d 389 (8th Cir.1977); Linskey v. Heidleberg Eastern, Inc., 470 F.Supp. 1181, 1184 (E.D.Pa. 1979). This test requires me to weigh four factors:

1. Interrelationship of operations;

2. Common management, directors and boards;

3. Centralized control of labor relations and personnel; and

4. Common ownership and financial control.

Hunt relies primarily upon Hassell and Baker, supra. The affidavits and exhibits before me tend to show: first, that the operations of Hunt and Great Western were separate, with corporate offices maintained in Dallas and Denver, and separate bank accounts and record-keeping; second, that Great Western's day-to-day management was entirely separate from Hunt's, aside from a controlling number of directors on Great Western's board; third, that the two companies pursued separate and different labor and personnel policies, with Great Western's hiring, firing and corporate practices conducted exclusively by Great Western; and fourth, that Hunt limited financial control to approval of Great Western's capital expenditure budget, approval of individual expenditures above $100,000, approval of long-range budget plans and approval of capital expenditures over $1,000,000. Great Western does not dispute that it is a wholly-owned subsidiary of Hunt.

Brenimer urges upon me an Eastern District of Pennsylvania opinion, Berkowitz v. Allied Stores of Penn-Ohio, Inc., 541 F.Supp. 1209 (E.D.Pa.1982) where Judge Broderick, in a thoughtful and persuasive opinion, discussed some of the theories advanced here.

The Court perceives little substantive difference in the tests heretofore discussed. All are different expressions and means of conducting essentially the same inquiry. Under each test, the Court inquires as to the degree of interrelation between the parent corporation and the subsidiary concerning the conduct at issue in the litigation. Where the parent and subsidiary have acted jointly or where the subsidiary has acted as an extension of the parent, subject to its knowledge and involvement, the Court may disregard the parent's separate corporate existence. 541 F.Supp. at 1215.

At this stage of the litigation I do not need to follow any particular test.⁵ It is clear to me, under any of the tests advanced, that Brenimer has met his burden, as required by Rule 56(e), Fed.R.Civ.P., of showing that there is a genuine issue of fact as to Hunt's status as an employer. Brenimer's affidavits and exhibits, which run to 160 pages, tend to show that Hunt's president, Ivan Bielenberg, was intimately involved in Great Western's affairs, in long-range development and strategy, in budgetary planning, in executive level personnel decisions and, more importantly, in the layoffs and terminations of September, 1979.

At this juncture, summary judgment is inappropriate. The defendant has the burden of clearly and positively demonstrating that there is no genuine issue of fact to be entitled to summary judgment. "Ordinarily, the question of whether a defendant was the employer of the plaintiff in an age discrimination case is a question of fact which is to be decided by the jury." Woodford v. Kinney Shoe Corporation, 369 F.Supp. 911 (N.D.Ga.1973). I deny this motion.

II. SUMMARY JUDGMENT ON THE MERITS

As an alternative basis of attack, Hunt and Great Western have moved for summary judgment on the merits of this case. The Tenth Circuit is consistent with most other jurisdictions in its approach to an age discrimination case. A three-stage analysis is typically employed. Schwager v. Sun Oil Company, 591 F.2d 58 (10th Cir. 1979). At the first stage, the plaintiff must be able to prove a prima facie case of discrimination. He must show that:

1. He was

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