it please the court my name is quincy salar and i represent the appellant william bright your honor is the issue before the court and this case is whether a reasonable jury could find that new holland logansport constituted an employer under the age discrimination in employment act this court should reverse the district court's decision granting summary judgment for two reasons first new holland logansport itself had an employment relationship with at least twenty employees in the relevant time which was two thousand any of these three could it determine their salaries to or direct them in their day to day activities yes your honor in jim streeter's deposition which is the docket twenty six dash one on page eleven to twelve he talks about the authority that mike stephenson had to fire and hire employees at new holland logansport mr stevenson did have authority to hire and fire anybody way i have no problem seeing her as under the authority of the rochester company but i don't see how the logansport company has the authority to hire or fire or do anything she just parachutes in lot of the other two and does these things there's a wisp of evidence about invoices with respect to because connor  they do seem to be separate companies are different kinds of corporations they do have overlapping ownership that's not at all uncommon they have you know similar types of businesses they share this website but they file separate tax returns a separate bank accounts and i just don't see how when all is said and done we can collapse them into one company yes you your honor perhaps the most telling fact is that mike stevenson who was operations manager at logansport had mr kennedy bob kennedy attend the e e o c mediation in this case in this case was brought solely against new holland logansport mr candy attended the mediation as one of the corporate representatives and that shows the control that logansport has over rochester mr kennedy was a human resources director she coronated all the personnel reviews and kept all the personnel files for both companies both over the show that logansport commanded kennedy to be there or just the kennedy comes on request or what does it show your honor there's that we don't have facts exactly why kennedy was president but i have never attended a mediation with somebody who is outside of the company coming as part as a corporate representative and less so from an insurance company mr kennedy's president shows that he was controlled by new holland logansport and jointly employed at a minimum this is a factual issue that should be presented to the jury to determine whether there was enough control by new ho rochester when she directed instructed stevenson to terminate bridge could she certainly could have given that instruction in his separate role as a director of knew how and logansport couldn't he have yes your honor we acknowledge that that's one permissible and friends that the jury could draw and have the burden of proof don't just throw that thought in there because if the evidence just doesn't permit resolution of the issue it's not a jury question yes your honor however there is more evidence on the other side suggesting that mr streeter was acting in his capacity as the operations manager at new ho rochester everything that mr streeter did was connected to rochester his e mail address was that rochester his office was most of logansport i don't know that we can say everything you did was rochester your your honor there's evidence that ordinarily the decision to hire and fire people at logansport was made by mike stevenson mike stevenson did not want to terminate william bridge there was evidence that he objected to it but mr streeter in his role as the operations manager rochester directed mr stevenson who ordinarily makes these decisions to terminate mr bridges employment certainly order but you've inserted this in his role as director of rochester and i think we're trying to get at the question why wasn't it in his role as a director of logan's or and and by far the most stanch owner and yes he has a difference of opinion about whether bridge be kept on  wearing his logansport at your honor the actual meeting occurred at rochester mr streeter called mr stevenson to his office at rochester and then told him that this was the monday before mr bridge was terminated that he needed to terminate mr burrage the next day the simple fact that mr streeter is has a role he is an actual employee of rochester he's not just an owner he is the operations manager at rochester makes it more likely that he was acting in his capacity as the operations manager of rochester rather than simply an owner there was no board of directors meetings that was held at logansport in order to make this decision as to whether to terminate mr bridge or not would you argue that all seven new holland companies listed on the new holland rochester website should be really limited the discovery in this case to the relationship between new holland rochester and new holland logansport because new holland rochester it has two over twenty employees that that location alone and that's basically the corporate headquarters so showing that  new hall in rochester new home logansport or sufficiently connected would be enough to prove that your home logansport constituted employer under the age discrimination in employment act so frankly don't have all of the facts available to answer whether the other question shippers of whether the other corporation should all be considered one company but the reality is is that that a human resources manager at new holland rochester has to comply with the age discrimination act title seven the americans with disabilities act with all of the employees at the new holland rochester location new holland logansport definitely has to comply with title seven definitely has to comply with the americans with disabilities act and the same human resources manager who is helping new holland rochester comply with the age discrimination act is also overseeing human resources at new holland logansport so we see is it unusual to outsource human resources functions outside of of the company to another entity and does that mean that other entity part of the original company no you're right it's not unusual to contract out human resources functions to a company that actually specializes in providing human resources does it have to be a specialist company is supposed to simply you know a limited joint venture with another company where a couple of lawyers are you these are small you family owned companies a all yes your honor if there was actually evidence in the record showing that new holland logansport paid for these services the analysis might be different but there's no evidence that any invoices were actually sent from new holland logansport to new holland rochester for its payroll services for its human resources services or for its accounting services so the question is what are these people if they're not employees of new holland logansport are they volunteers are they even the respondent has conceded that new holland so these three employees are not independent contractors they say they claim that they are employees and they're clearly doing work at new holland logansport so we think that these three employees should be counted as employees for the purposes of the age discrimination act thank you thank you mr hardman the joint employee theory was the one i thought needed exploration it's a little odd to think that the three of them on a purely were two it is volunteer basis would have been performing such important functions as human resources and payroll and the like and you know if new holland logansport is using them for these critical functions and they're not independent contractors then why aren't they properly understood as joint employees with the with the rochester company and the reason for that judge would is the first and foremost test used by this circuit in determining whether or not someone is an employee of an entity is control exactly so and no what so you have to be saying that new holland logansport an independent company has absolutely no control over who does its human resources and who just it's payroll and thus they're just stuck with these people and that almost makes it seem like a single entity i'm not sure that's a good theory knowing on and i disagree with you the the control aspect is miss hours mentioned mr stevenson's ability to fire or hire what we don't have is any evidence in the one way or the other but certainly no evidence that mike stephenson had the ability to hire or fire no indiscrete are all mr cannady or stacy connor what we do have is get at the essence of it but if knew how logansport felt say that they needed somebody who could devote more time to their human resources operation than this shared arrangement was making possible seems to me they could have said if they really are a separate company we don't want to use on forgetting who did what you know we don't want to use the rochester person who does charge them in resources so they could fire them they can assign tear asks a can say we need to hire a new person to sell tractors or whatever they need to hire for why this the kind of control yet that they're not exclusive employees they don't look like independent contractors but i still am not sure why they're not joint employees given the lack of compensation given the lack of any there is no evidence on any of them there is no evidence by mr bridge about the degree of control exercised over them by new holland rochester or new holland logansport there is no evidence as to the mentions payroll for logansport candy just human resources for both he spends about a day a week at logansport conner's an accountant she's back and forth probably can do a lot by email the the only evidence that mr bridge has been is in his declaration is that bob cannot be spent one day a week there doing h r matters at new holland logansport as opposed to new holland rochester i don't believe under papa vs katie again those economic efficiencies that judge posner talks about is a basis to conclude that new holland rochester and new holland logansport are joint enterprise is when you are there no i wasn't going that far i was just saying that this particular employee is doing something economically essential that they're not an independent contractor they're certainly not a full time employee of the logansport grow but they're not a full time employee either rochester since they are devoting some time to logansport for no compensation and judge first of all there isn't any evidence one way or the other about how they are compensated in the record but second of all the concern that i have if we go down that path in holding them that they are joint employees is aren't we a visceral rating papa versus katie no i don't see this are eating that well and i think we are because if we hold they have a small business entity who is engaging in these economic efficiencies by having an employee under the ada because well because it's an employee by employee inquiry these are very fact specific situations with these little companies and how and we certainly don't want to attribute say every member of the accounting firm to the small company that would be not an accurate reflection of the economic realities but on the other hand congress doesn't want these twenty employees thresholds or fifteen employee fresh olds or fifty employees thresholds to be evaded just by splintering out joint employees and not counting them for anybody that's true and that's why they are counted as employees for new holland rochester a question of fact whether strader was acting as director of you know logansport or whether he was controlling logansport well in his capacity as the owner of rochester no your honor and it doesn't because again mr bridge has the burden of proof and there is been no evidence deuced that jim street or was wearing any had other than his hat as owner and majority shareholder of new holland logansport but why is it why isn't there an inference if he's an operations manager of rochester when he does something that an operations manager would do like fire somebody he must be acting as an operations manager and he's only the operations manager for rochester because the mr bridge was an employee of new holland logan's but again he could he have refused to readers strangers requests to fire bridge could see things your honor that's a good question because oddly enough mr stevenson wasn't ever deposed so there was nothing in the record as to that bridges testimony but he was there and i'm sorry your honor the the question is i'm just saying we have evidence in the record that shows that streeter directed stevenson to fire somebody at the logansport location yes but in this context which is a summary judgment context mr bridgeton a deuce and the evidence that mr streeter was acting on behalf of new holland rochester when that  in that case which was a sexual discrimination case the perpetrator owned a number of companies and this circuit held that for the when he committed the acts he was acting in the capacity of the supervisor and owner of the complainants employer not as the owner and supervisor for the other companies that he aren't particularly us title and the circuit held it's not enough to say yes he wore multiple hats you the complainant have to demonstrate evidence that he wore that hat when he committed that x and you had you the complainant haven't done that does it complicate the categori melinda streeter as an employee at logansport if she were an employee of law and sport that she's on the board board to board members would you expect board members to be counted as employees of the company and not necessarily no even with small companies like this it depends on there's a lot of mixture of functions and which is exactly what you will have with small business entities which is again why i think this court rejected the four factor test and and and said it's kind of useless in determining that threshold and instead adopted the three scenarios that we look at the two of which are you pierce the corporate veil do those circumstances apply here and secondly was the alleged discriminatory act done by now or at the direction of one of the affiliated entities right in that i think we've been focusing on the latter we have i mean i believe in the briefs the piercing analysis which is invoice them it's pretty rational but there wasn't a point i'm trying to make as there wasn't any written discovery directed to us so there weren't any invoices produced at all during the plan text of the your honors when somebody doesn't work for a company they're either doing the work as an employee as an independent contractor or a volunteer there can be a black hole where somebody disappears into it and it never was there no discovery int deposition and the defendant produced a large volume of documents under rule twenty six the national disclosures so we went through a large volume of documents in order to take a look been a pretty easy i think document to to find in order to support the defendant's argument that they could have filed on summary judgment i think the absence doesn't kate that there was no payment and there's never been an allegation that mr cannady or mrs street or were ever paid by logansport for their services this is limited to stacy conner is the disputed fact as to whether there was any payment for the services requires showing that these employees are joint employees of both companies does not require overturning papa it's simply sending it to the jury for a factual determination and we think that's appropriate in this case thank you all right thank you thank you