Mauter v. Hardy Corp., No. 86-7730

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Writing for the Court: Before TJOFLAT and ANDERSON, Circuit Judges, and HENDERSON; HENDERSON
• Citation: 825 F.2d 1554
• Parties: 45 Fair Empl.Prac.Cas. 116, 44 Empl. Prac. Dec. P 37,535 Edward J. MAUTER, Plaintiff-Appellant, v. The HARDY CORPORATION, a corporation, and Air and Piping, Inc., a corporation, Defendants-Appellees.
• Docket Number: No. 86-7730
• Decision Date: 31 August 1987

Page 1554

825 F.2d 1554 45 Fair Empl.Prac.Cas. 116,
44 Empl. Prac. Dec. P 37,535 Edward J. MAUTER, Plaintiff-Appellant,
v.
The HARDY CORPORATION, a corporation, and Air and Piping,
Inc., a corporation, Defendants-Appellees. No. 86-7730. United States Court of Appeals,
Eleventh Circuit. Aug. 31, 1987.

Page 1555

Martha Campbell, Birmingham, Ala., for plaintiff-appellant.

C.V. Stelzenmueller, Burr & Forman, F.A. Flowers, II, Birmingham, Ala., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Alabama.

Before TJOFLAT and ANDERSON, Circuit Judges, and HENDERSON, Senior Circuit Judge.

HENDERSON, Senior Circuit Judge:

This appeal challenges the grant of a motion for summary judgment in an age discrimination suit. Edward J. Mauter (Mauter), brought this action in the United States District Court for the Northern District of Alabama against his former employer, The Hardy Corporation (THC), and its sister corporation, Air and Piping, Inc. (API), seeking damages for alleged violations of the Age Discrimination in Employment Act, 29 U.S.C. Secs. 621 et seq., (ADEA). The district court held that Mauter failed to produce any evidence that his termination was motivated by discrimination and therefore found that the defendants were entitled to judgment as a matter of law. We affirm.

At the time of his termination in 1983, Mauter worked as a plumbing estimator for THC in Birmingham, Alabama. THC is a mechanical contracting business controlled by the Marwood Corporation. Although THC's primary business is the installation and service of Heating, Ventilating and Air Conditioning (HVAC) systems, the company also maintained a small plumbing department in order to provide full service to its customers. Mauter joined the plumbing service of THC in 1956. During the term of the plaintiff's employment with THC, the company operated under contracts with the local sheet metal workers and plumbers unions. Mauter himself left the union when he earned his Master Plumber's license and became the plumbing estimator for the department in 1958.

In the early 1970s, the unionized sector of the mechanical contracting industry began experiencing increased competition from non-union mechanical contractors. Soon thereafter, the National Labor Relations Board (NLRB), decided a line of cases authorizing "double breasted" or "dual shop" operations. Under these decisions it is lawful for a union business and a non-union business to operate under a certain degree of common ownership and control so long as the companies maintain a separate corporate existence.

In response to the trend in the mechanical contracting industry implementing these decisions, THC's owner, the Marwood Corporation, decided to undertake such a venture in 1975. Therefore, a separate corporation, API, was organized to operate as a non-union HVAC shop. Originally formed as a wholly owned subsidiary of THC, all of API's stock was sold to the

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Marwood Corporation in 1980, which distributed 20% of the shares to salaried employees of API. Although THC and API share common ownership through Marwood Corporation and are controlled by interlocking boards of directors, the two companies have taken great pains to highlight the autonomous corporate existence of each enterprise in order to appease the NLRB. At all times relevant to this litigation, the businesses operated at different locations and maintained separate books and records. Tom Cordell acted as president of API handling the day-to-day management of the non-union company. Bob Young, THC's president, performed the same function for the union business. Any exchange of management services, tools or equipment between the companies took place pursuant to fair market rental rates. In short, THC and API consciously structured their business relations according to the factors utilized by the NLRB in judging the propriety of double breasted operations. By adhering to strict degrees of separateness, THC avoided liability for unfair labor practices or breach of union contracts.

In 1983, API decided to open a non-union plumbing department to operate in conjunction with its HVAC business just as Mauter's union plumbing crew complemented THC's operations. On April 1, 1983, Cordell employed Harold Robertson, aged 38, as estimator for the API department. Robertson was licensed as a Master Plumber and had several years experience as a project manager and estimator with a non-union plumbing company. It is undisputed that API's non-union plumbing department has flourished under Robertson's leadership.

During this same time period, THC began suffering financial difficulties and labor problems as a result of its union contracts. THC's agreement with the sheet metal workers union expired on May 31, 1983. Union workers continued working on the company's projects while THC engaged in contract renewal negotiations with the union. By the end of July, these negotiations reached a total impasse and the union workers refused to continue working for THC. THC was forced to assign its project agreements to a competitor.

As of September 1, 1983, Young realized that THC's relations with the sheet metal workers union...