1 United States Court of Appeals,

Fifth Circuit.

No. 95-11017.

Eunice SCHWEITZER, Plaintiff-Appellee,

v.

ADVANCED TELEMARKETING CORPORATION, Advanced Telemarketing of

Texas Corporation and NRP, Inc., Defendants-Appellants.

Jan. 31, 1997.

Appeal from the United States District Co urt for the Northern

District of Texas.

Before JONES, DUHÉ and EMILIO M. GARZA, Circuit Judges.

DUHÉ, Circuit Judge:

Edith Schweitzer sued Appellants Advanced Telemarketing

Corporation ("ATC" ) and NRP, Inc. ("NRP") under the Age

Discriminat ion in Employment Act ("ADEA"). The district court

entered judgment on a jury verdict in Ms. Schweitzer's favor and

denied the defendants' motions for judgment as a matter of law or,

in the alternative, for a new trial. ATC and NRP appeal, alleging

Ms. Schweitzer produced insuf ficient evidence to show either age

d iscrimination or that ATC and NRP constitute a single employer,

and that the district court made evidentiary errors and incorrectly

charged the jury. We hold the district court erroneously

instructed the jury, and reverse the judgment and remand for a new

trial.

I. Background

ATC, a subsidiary of NRP, provides clients with telemarketing

services of two types. Outbound service is sales oriented, with2

employees making calls to solicit orders. Inbound service focuses

on employees answering calls to take ord ers or provide customer

service. Clients contract with ATC to provide the desired service.

ATC's need for emp loyees is contingent on clients' demand for

telemarketing, and may fluctuate greatly.

ATC has no w ritten, uniform policy for workforce reduction,

allowing its different departments to independently decide how to

carry out red uctions in force. The outbound department uses

performance evaluations of employees' work to choose whom to

retain, while the inbound department relies on employee seniority.

Appellee Eunice Schweitzer began working at ATC in 1985 as a sales

representative, and eve ntually reached the rank of senior

supervisor. In the summer of 1992, the department she worked in

was reduced, and Ms. Schweitzer was transferred to the GTE Customer

Service Department as a supervisor.

The GTE Department was an inbound department responsible for

taking orders for GTE services and responding to GTE customers who

called in with problems. In August and September of 1992, the GTE

Customer Service Department chose to reduce its work force because

of a significant reduction in call volume. To effectuate the lay

off, the de partment retained those employees with greater

seniority, and laid off employees with less. Ms. Schweitzer was

one of those empl oyees laid off in September 1992. She sued NRP

and ATC alleging age discrimination under 29 U.S.C. § 621 et seq.

NRP moved for summary judgment, arguing it could not as a

matter of law be considered a single entity with ATC, and thus an3

employer of Ms. Schweitzer. The district court denied both this

motion and a subsequent motion for su mmary judgment by all

defendants that Ms. Schweitzer could not prevail on a claim of age

discrimination.

At trial, the court instructed the jury on determining when

two separate entities might be considered a single employer. The

defendants objected to portions of the charge. The jury returned

a verdict in favor of Ms. Schweitzer, finding that ATC violated the

ADEA by discriminating against Ms. Schweitzer because of her age,

that ATC did so knowingly and recklessly, and that ATC and NRP were

a single employer of Ms. Schweitzer.

Evidence revealed that: the three members of the ATC Board of

Directors all sat on the NRP board, NRP h ad a 99.5% share of ATC

stock, NRP guaranteed ATC's line of credit, and ATC had a negative

net worth until it achieved a positive cash balance in 1994.

Testimony also showed, however, that NRP provided no human resource

functions or policy direction to ATC and had no operational

involvement with ATC. ATC employees were solely responsible for

decisions regarding the hiring, firing or reduction in force of

personnel at ATC. Indeed, the vice president of ATC testified NRP

was unlikely to know when ATC was forced to reduce staff, and was

never involved in making such decisions involving personnel.

II. Jury Instruction

ATC and NRP assert the district court erred in instructing the

jury on the circumstances in which NRP and ATC could be found to be

a "single employer," so that NRP would be liable with ATC for ATC's4

decision to lay off Ms. Schweitzer.

A. Standard of Review

We employ the standard of review discussed in F.D.I.C. v.

Mijalis, 15 F.3d 1314 (5th Cir.1994):

First, the challenger must dem onstrate that the charge as a

whole creates "substantial and ineradicable doubt whether the

jury has been properly guided in its deliberations." Second,

even if the jury instructions were erroneous, we will not

reverse if we determine, b ased upon the entire record, that

the challenged instruction could not have affected the outcome

of the case.

Id. at 1318, citi ng Bender v. Brumley, 1 F.3d 271, 276 (5th

Cir.1993) (citations omitted). If the party complaining of an

incorrect jury instruction on appeal proposed another instruction

to the district court, their proposed instruction must have

correctly stated the law. Mooney v. Aramco Services Co., 54 F.3d

1207, 1216 (5th Cir.1995). In short, the critical issues are

whether it was correct to instruct the jury with the objected to

instructions and, if incorrect, was the error harmless? B ender, 1

F.3d at 277.

B. The "Single Employer" Test

In civil rights actions, "superficially distinct entities may

be exposed to liability upon a finding they represent a single,

integrate d enterprise: a single employer." T revino v. Celanese

Corp., 701 F.2d 397, 404 (5th Cir.1983). T re vino set out a four

part formula to determine w hen a parent corporation should be

considered the employer of a subsidiary's employee. The formula

focuses on actual control of employees by the parent company. The

Trevino test has been used repeatedly in both this circuit and5

others to ascertain when distinct entities may be considered

integrated as a single employer. G arcia v. Elf Atochem North

America, 28 F.3d 446, 450 (5th Cir.1994); Chaiffetz v. Robertson

Research Holding, Ltd., 798 F.2d 731, 735 (5th Cir.1986).

Trevino 's four part test considers (1) interrelation of

operations; (2) centralized control of labor relations; (3)

common management; and (4) common ownership or financial control.

Trevino, 701 F.2d at 404. The second of these factors has

traditionally been most import a nt, with courts refining their

analysis to the single question, "What entity made the final

decisions reg arding employment matters related to the person

claiming discrimination?" I d., quoting Odriozola v. Superior

Cosmetic Distribs., Inc., 531 F.Sup p. 1070, 1076 (D.P.R.1982);

Chaiffetz, 798 F.2d at 735.

Oth er Fifth Circuit cases have utilized a "hybrid economic

realities/common law control test" to resolve when companies will

be considered single employers in ADEA suits. B arrow v. New

Orleans S.S. Ass'n, 10 F.3d 292, 296 (5th Cir.1994), Deal v. State

Farm County Mut. Ins. Co. of Texas, 5 F.3d 117, 118 (5th Cir.1993).

The hybrid test was first used in the context of determining if a

worker employed as an independent contractor should be considered

the employee of an entity for the purposes of Title VII. M ares v.

Marsh, 777 F.2d 1066 (5th Cir.1985). It was then extended to ADEA

cases in Fields v. Hallsville Independent School District, 906 F.2d

1017 (5th Cir.1990).

While the hybrid test has been used to resolve single employer1 The Deal court gave the details of the hybrid test:

When examining the control component, we have focused on

whether the alleged emplo yer has the right to hire and

fire the employee, the right to supervise the employee,

and the right to set the employee's work schedule. The

economic realities component of out test has focused on

whether the alleged employer paid the employee's salary,

withheld taxes, provided benefits, and set the terms and

conditions of employment.

Deal, 5 F.3d at 119 (citations omitted).

2 Such an inquiry would be necessary, for example, to determine

whether an independent contractor has a sufficiently close

relationship to a defendant that the defendant should be liable to

the contractor for its conduct.

6 disputes in ADEA cases, Trevino was the original test used in this

circuit to determine if separate, related business entities could

t ogether be considered the employer of a civil rights plaintiff.

The hybrid test developed as a means of determining when plaintiffs

could be considered employees of business entit ies, not to

ascertain if different entities were so integrated as to constitute

a single employer of that plaintiff.

Trevino and the hybrid test are very similar, since under the

hybrid test, "the right to control an employee's conduct is the

most important component...." 1 D eal, 5 F.3d at 118. However, we

hold that while the Trevino and hybrid tests are similar, and will

frequently yield the same results, the tests should not be used

interchangeably. Rather, the hybrid test should be used as an

initial inquiry to resolve, if need be, whether a plaintiff is an

employee of the d efendant (or one of the defendants, in a multi

defendant case) for the purposes of Title VII. 2 If the plaintiff

is found to be an employee of one of the defendants under the7

hybrid test, but questions remain whether a second (or additional)

defendant is sufficiently connected to the employer-defendant so as

to be considered a single employer, a Trevino analysis should be

conducted. The T revino analysis will establish if the second or

additional defendant is also an employer of the plaintiff.

Since neither ATC nor NRP disputed that Ms. Schweitzer was an

employee of ATC for the purposes of the ADEA, there was no need for

the district court to instruct on the hybrid test. In this case,

the Trevino test was the proper analysis to determine if ATC and

NRP were a single employer.

C. The District Court's Instruction

The district court defined "employer" under the ADEA for the

jury, informing them what they needed to find for ATC and NRP to

represent a single employer. Appellants ATC and NRP proposed an

instruction based on the Trevino test, requesting the court to

instruct the jury:

An employer is one who directs work assignments and determines

the hours, means and manner of performance of work. Separate

corpo rate entities may be treated as a single employer when

they are interrelated in matters relati ng to employment or

share centralized control of labor relations. The critical

question is the following: what entity made the final

decisions regarding employment matters related to the person

claiming discrimination?

The district court rejected this proposed charge and instead gave

the jury the following instruction:

You are instructed that ATC was the employer of the Plaintiff.

Plaintiff contends that ATC and NRP, Inc. should be treated as

a single employer. Under some circumstances, separate

corporate entities may be treated as a single employer. They

may be treated as a single employer where disregard of the

corporate form is necessary to prevent fraud, illegality, or

injustice, or where recogni tion of the separate corporate8

entity would def eat public policy. Among the factors which

you may consider in determining whether ATC and NRP should be

treated as a single employer of the Plaintiff are the

following:

1. The interrelation of operations;

2. Common officers and directors;

3. Centralized control of labor relations;

4. Common ownership or financial control of the employer

and the corporation;

5. Financing of a subsidiary corporat ion by the parent

corporation;

6. The subsid iary corporation's inadequate

capitalization.

Your determination of whether the two corporations are a sing le employer should not be based upon any single factor.

For you to find that ATC and NRP were a single employer, you

must determine that there was such domination of the finances,

policies, and practices of ATC by NRP, that ATC had no

separate mind, will, or existence of i ts own and is but a

business conduit of NRP. The mere ownership of substantially

all of the stock of ATC by NRP is not sufficient to establish

such liability.

D. Analysis

The district court erred in not following the Trevino test to

determine single employer status. The district court's instruction

did not focus on control of labor relations but instead on a

multitude of other factors. None of the four T revino factors

concentrates on common financing, capitalization, or officers.

Trevino instructs us to focus on the control a parent company

exercises over the employment decisions of its subsidiary.

As well, the district court's charge was far too broad. Since

it allowed the jury to pick and choose from various components of

different tests to make its determination, the jury made a skewed9

finding that NRP and ATC were a single employer. Evidence

irrelevant to single employer status, su ch as stock control and

common financing, became important. Evidence that was central to

finding a single employer relationship, namely involvement in the

daily employment decisions of ATC, was disregarded in favor of this

unimportant information.

Since we agree with Appellants' contention the jury

instruction was incorrect and reverse on those grounds, we do not

address the remaining arguments.

Judgment is REVERSED, and the case is REMANDED for a new

trial.