Walker v. Toolpushers Supply Co.

• Decision Date: 10 February 1997
• Docket Number: No. 96-CV-1029-J.,96-CV-1029-J.
• Citation: 955 F.Supp. 1377
• Parties: Spring WALKER, Plaintiff, v. TOOLPUSHERS SUPPLY CO., Black Hills Trucking, Inc., Belle Fourche Pipeline Co., True Drilling Co., True Oil Co., which are all part of a conglomerate known as True Companies, Defendants.
• Court: U.S. District Court — District of Wyoming

955 F.Supp. 1377

Spring WALKER, Plaintiff, v. TOOLPUSHERS SUPPLY CO., Black Hills Trucking, Inc., Belle Fourche Pipeline Co., True Drilling Co., True Oil Co., which are all part of a conglomerate known as True Companies, Defendants.

No. 96-CV-1029-J.

United States District Court, D. Wyoming.

February 10, 1997.

Randall T. Cox, Gillette, WY, Weston W. Reeves, Casper, WY, for plaintiff.

Richard E. Day, Scott E. Ortiz, Williams, Porter, Day & Neville, Casper, WY, John J. Blomstrom, True Oil Company, Casper, WY, for defendants.

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT FILED BY DEFENDANTS BLACK HILLS TRUCKING, INC., BELLE FOUCHE PIPELINE CO., TRUE DRILLING, CO., AND TRUE OIL CO.

ALAN B. JOHNSON, Chief Judge.

This matter is before the court on the Motion for Summary Judgment filed by defendants Black Hills Trucking, Inc., Belle Fourche Pipeline, Co., True Drilling Co., and True Oil Co.

The court has considered the motion, all materials filed in support of and in opposition to the motion, the memoranda and is fully advised.

INTRODUCTION

Plaintiff Spring Walker, a former salesperson for Toolpushers Supply (Toolpushers) brings a claim of sex discrimination in violation of Title VII, 42 U.S.C., against Toolpushers. Plaintiff contends that in addition to Toolpushers, all of the other defendants are liable on this claim as her "employer" under an integrated enterprise theory. All defendants except Toolpushers have moved for summary judgment on the basis that they are not plaintiff's employer for purposes of Title VII.

STANDARD FOR SUMMARY JUDGMENT

The standard for the grant of summary judgment is well known.

Summary judgment will be granted if "the pleadings, depositions, ... 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 judgment as a matter of law." Fed.R.Civ.P. 56(c). "A `material' fact is one `that might effect the outcome of the suit under the governing law.'" Farthing v. City of Shawnee, 39 F.3d 1131 (10th Cir.1994) quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). And "a `genuine' issue is one where `the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Id. The court views the evidence in the light most favorable to the nonmoving party. Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.), cert. denied, 506 U.S. 1013, 113 S.Ct. 635, 121 L.Ed.2d 566 (1992). "The moving party bears the initial burden of showing that there is an absence of any issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). "If the moving party meets this burden, the non-moving party then has the burden to come forward with specific facts showing that there is a genuine issue for trial as to elements essential to the non-moving party's case." Martin v. Nannie and the Newborns, Inc., 3 F.3d 1410, 1414 (10th Cir.1993). "To sustain this burden, the non-moving party cannot rest on the mere allegations in the pleadings." Id. citing Fed.R.Civ.P. 56(e) and Celotex, 477 U.S. at 324, 106 S.Ct. at 2553.

Besso v. Cummins Intermountain Inc., 885 F.Supp. 1516, 1520 (D.Wyo.1995).

UNDISPUTED FACTS

Spring Walker was employed by Toolpushers Supply at its Gillette, Wyoming, store from April 15, 1990, through May 15, 1995. Toolpushers is a corporation. The president of the corporation is Diemer True. The manager of its business operations is Bob Selby. The shareholders of Toolpushers are Diemer True, Hank True and David L. True.

Each of the other defendants are owned by one or more of the following members of the True family: Jean D. True, H.A. True, III, Diemer True, and David L. True. None of the other defendants is a parent corporation to Toolpushers or a subsidiary of Toolpushers. Less than five percent of Toolpushers' annual sales are to companies that are owned by members of the True family.

True Companies is trade name registered with the Wyoming Secretary of State and is not a separate business organization or holding company. True Companies does not conduct business. True Companies as a trade name refers to the various companies owned by some or all of the members of the True Family listed above. Toolpushers' profit and loss statement is not consolidated with that of any other company.

Defendant True Oil has a treasury department (which includes a payroll office and human relations office), an accounting department, insurance department and a legal department. Toolpushers, and apparently some of the other defendants, each pay True Oil to provide various human relations services, accounting, legal, insurance and payroll services. The proportional share of Toolpushers' cost for these services is determined annually. Toolpushers currently pays True Oil $61,000 a month for these services. Toolpushers pays that expense out of its own operating revenue. The operating revenue for Toolpushers is kept separate from the other defendants' revenue. Although True Oil employs the accounting personnel, some of its employees are designated specifically to work on Toolpushers' accounts. Three members of the True family; Diemer True, Hank True, and David True have control "as a practical matter" over True Oil Company's treasury department.

Toolpushers' checks are written with a stamped signature by a machine in True Oil's payroll department. Bob Selby, the manager of Toolpushers, has the power to authorize the writing of Toolpushers' checks in amounts under $10,000. Diemer True, as president, must authorize checks in amounts over $10,000. Toolpushers' payroll checks are written out of its own funds and show the name of the payor as "Toolpushers Supply Co."

Toolpushers' Gillette store rents its building from defendant Black Hills. True Ranches, not a party to this case, owns the property where Toolpushers has a yearly hunting camp available to salespersons and their valued customers.

Bob Selby has authority to fire Toolpushers' employees without authorization from the president of the company. However, Mr. Selby's decisions to hire employees, promote employees and give a raise to employees must be approved by Diemer True as president. There is no evidence that any person other than Mr. Selby as manager or Diemer True as president have authority to make any employment decisions. Mr. Selby, as manager, directs Toolpushers' day-to-day activities.

All defendants have the same mailing address, physical address and telephone number, located in Casper, Wyoming. Defendants have common vacation, drug and sexual harassment policies. Although there is a common vacation policy, the manager of each company administers the vacation policy in a different way. True Oil is the manager of the 401(K) plan for Toolpushers and the other defendants. Toolpushers does not have an employee handbook. Neither does True Oil. However, Black Hills Trucking does have an employee handbook that is not used by any of the other defendants.

Edith Ogle is the assistant personal manager of True Oil's human relations department, which is part of its treasury department. She is available as a resource for each of the True Companies and performs such services as advertising of jobs. For job vacancies outside of Casper, her involvement varies from company to company and with the locations of each job. Ms. Ogle has never participated in an interview of a prospective employee for a Toolpushers' store. Ms. Ogle is not authorized to direct Toolpushers or Mr. Selby that any certain employment practices be followed. D. True depo at 34. Toolpushers makes all of its own personal decisions.

When each of the defendants hires a new field employee the employee receives the same packet of information prepared by True Oil's payroll office for all of the companies. This packet contains information on insurance and the 401(K) program, a COBRA notice, a W-4 form, application of employment, the vacation, drug and sexual harassment policies and the like.

For purposes of government reporting Ms. Ogle prepares a single EEO-1 report for all of the defendants.

DISCUSSION AND ANALYSIS

Plaintiff contends that her "employer" for purposes of Title VII consists of a single "integrated enterprise" operated by the common owners of all the companies — members of the True family — and all defendants are part of that integrated enterprise. Therefore, she contends that all defendants are her "employer" within the meaning of 42 U.S.C. § 2000e(b). In a civil rights case, "superficially distinct entities may be exposed to liability upon a finding they represent a single, integrated enterprise: single employer." Schweitzer v. Advanced Tele-marketing Corp., 104 F.3d 761, 763 (quoting Trevino v. Celanese Corp., 701 F.2d 397, 404 (5th Cir.1983)). This integrated enterprise theory is borrowed from the test of employer promulgated by the National Labor Relations Board (NLRB). Evans v. McDonald's Corporation, 936 F.2d 1087, 1089 (10th Cir. 1991) (holding that although franchisor may have stringently controlled the manner of its franchisee's operations, conducted frequent inspections, and provided training for franchise employees, it did not have financial control over operations or control over franchisee's labor relations with his employees and therefore could not be an employer). In a recent case, Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1240 (2nd Cir. 1995), the Second Circuit noted that the NLRB's use of the integrated enterprise theory to ascertain whether two entities constituted a single employer in context of labor disputes was approved by Supreme Court in Radio & Television Broadcast Technicians Local Union 1264 v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 85 S.Ct. 876, 13 L.Ed.2d 789 (1965).

Initially the theory of integrated enterprises was used in cases in which the actual employer had less than 15 employees...