United States Court of Appeals

For the Eighth Circuit

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No. 13-2388

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Patricia J. Davis, an Individual; Patricia A. Duncan, an Individual; Jeffrey J. Goergen

lllllllllllllllllllll Plaintiffs - Appellants

v.

J. Joe Ricketts, an Individual; Hugo Enterprises, LLC, a Nebraska Limited

Liability Company, formerly known as Ricketts Enterprises, LLC; Opportunity

Education Foundation, an Iowa Non-Profit Corporation

lllllllllllllllllllll Defendants - Appellees

ADP TotalSource, Inc., a Florida Corporation

lllllllllllllllllllll Defendant

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 Appeal from United States District Court 

for the District of Nebraska - Omaha

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 Submitted: May 15, 2014

 Filed: August 27, 2014

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Before RILEY, Chief Judge, BEAM and SHEPHERD, Circuit Judges.

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SHEPHERD, Circuit Judge.
Appellants Patricia J. Davis, Patricia A. Duncan, and Davis’s son, Jeffrey J.

Goergen, brought suit against Opportunity Education Foundation (OEF) and Hugo

Enterprises, LLC (Hugo) under Title VII of the Civil Rights Act of 1964 and the

Nebraska Fair Employment Practices Act (NFEPA), alleging sexual harassment and

retaliation. Davis and Duncan also sued Joe Ricketts, the Chief Executive Officer of

OEF and owner of Hugo, for tortious interference with their expectation of continued

employment. The district court1

 dismissed the tortious interference claim, finding

Davis and Duncan had failed to state a claim against Ricketts because he was acting

on behalf of OEF and thus could not be a third party interferer. The district court later

granted OEF and Hugo’s motion for summary judgment, concluding that OEF did not

have the requisite number of employees to be considered an employer under Title VII

and the NFEPA and that OEF and Hugo were not integrated employers to meet the

numerosity requirement under the statutes.2

 We affirm.

I.

We recite the facts in the light most favorable to the appellants, the nonmoving

parties. Dovenmuehler v. St. Cloud Hosp., 509 F.3d 435, 437 (8th Cir. 2007). 

Ricketts established OEF, an Iowa nonprofit corporation with its principal place of

business in Omaha, Nebraska. It provides educational support and materials to

schools in developing countries. Ricketts also owns, funds, and is managing member

of Hugo, a for-profit limited liability company organized under the law of Nebraska

with its principal place of business in Denver, Colorado. Hugo provides some

1

The Honorable Laurie Smith Camp, Chief Judge, United States District Court

for the District of Nebraska.

2

ADP TotalSource, Inc. was also a named defendant in the original Complaint. 

The parties later filed a joint stipulation and motion to dismiss ADP TotalSource as

a defendant, and the court dismissed ADP TotalSource.

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administrative infrastructure for Ricketts’ various for-profit and nonprofit enterprises,

including OEF.

The Appellants were all employed by OEF in different capacities. In 2009,

Davis and Duncan complained internally that OEF’s Chief Operating Officer was

sexually harassing them. Both Davis and Duncan were thereafter terminated. About

a year later, Goergen was also terminated. Davis and Duncan filed suit, asserting that

OEF and Hugo subjected them to a hostile work environment and quid pro quo sexual

harassment in violation of Title VII, retaliated against them by perpetuating the hostile

work environment and by firing them in violation of Title VII and the NFEPA, and

retaliated against Davis by terminating Goergen in violation of Title VII and the

NFEPA. They also asserted that Ricketts violated Nebraska common law by

tortiously interfering with Davis’s and Duncan’s expectation of continued

employment.

OEF, Hugo, and Ricketts moved to dismiss the Complaint. The district court

granted the motion in part, finding that Davis and Duncan had failed to state a claim

against Ricketts because the allegations against him were “conclusory and ‘a

formulaic recitation of the elements of a cause of action,’” Davis and Duncan did not

show that a claim could be brought against the employer’s CEO, and the action would

undermine precedent holding that supervisors are not individually liable under Title

VII.

The Appellants then filed their First Amended Complaint, adding Goergen as

a plaintiff and including him on the retaliation claims. At the conclusion of discovery,

Hugo and OEF filed a motion for summary judgment as to the remaining claims under

Title VII and the NFEPA. The district court granted the motion, holding that the

undisputed facts demonstrated OEF at all times had fewer than 15 employees and that

OEF and Hugo were not a joint, consolidated, or integrated employer. Thus, their

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employees could not be grouped for the purposes of the numerosity requirements in

Title VII and the NFEPA. The Appellants appeal.

II.

The Appellants argue that the district court erred in granting summary judgment

to Hugo and OEF because the entities are integrated and in dismissing their claim

against Ricketts because they stated a plausible claim that he tortiously interfered with

their business relationships. Because we find that the undisputed facts in the record

show that OEF and Hugo are not an integrated enterprise and because we agree with

the district court that Ricketts, as CEO of OEF and acting on behalf of OEF cannot be

a third party interferer, we affirm the district court.

A. Integrated Enterprise

We review a district court’s grant of summary judgment de novo. Holland v.

Sam’s Club, 487 F.3d 641, 643 (8th Cir. 2007). We will affirm the grant of summary

judgment “if the movant shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 

Title VII imposes liability for employment discrimination only on an “employer.” 42

U.S.C. § 2000e-2(a). An employer is defined as “a person engaged in an industry

affecting commerce who has fifteen or more employees [during a certain time

period.]” 42 U.S.C. § 2000e(b); see also Neb. Rev. Stat. § 48-1102(2) (utilizing a

similar definition for employer). The parties agree that OEF did not employ 15 or

more employees. However, in certain circumstances, employees of separate entities

may be combined for purposes of meeting the employee numerosity requirement. 

Artis v. Francis Howell N. Band Booster Ass’n, Inc., 161 F.3d 1178, 1184 (8th Cir.

1998). The Nebraska legislature patterned the NFEPA after Title VII, and Nebraska

courts consider federal court decisions when construing its language. Bluff’s Vision

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Clinic, P.C. v. Krzyzanowski, 555 N.W.2d 556, 559 (Neb. 1996). Thus, we analyze

the Title VII and NFEPA claims together.

An integrated enterprise is “one in which the operations of two or more

employers are considered so intertwined that they can be considered the single

employer of the charging party.” EEOC Compliance Manual §2-III(B)(1)(a)(iii); see

also Baker v. Stuart Broad. Co., 560 F.2d 389, 391-92 (8th Cir. 1977) (“[The entities]

are of such coagulation that they must be considered one.”). In determining whether

separate entities should be treated as an integrated enterprise, we consider the

following factors: (1) the degree of interrelation between the operations, (2) the degree

to which the entities share common management, (3) the centralized control of labor

relations, and (4) the degree of common ownership or financial control over the

entities. Baker, 560 F.2d at 391-92; see also Sandoval v. Am. Bldg. Maintenance

Indus., Inc., 578 F.3d 787, 796 (8th Cir. 2009); EEOC Compliance Manual §2-

III(B)(1)(a)(iii). In situations where the court is asked to disregard the separate and

distinct form of legal entities, the standards are narrow and rigorous, imposing a

presumption of corporate separateness. See Robinson v. Terex Corp., 439 F.3d 465,

468 (8th Cir. 2006) (noting that, in the context of a parent-subsidiary relationship,

“[s]eparate corporate entities should be disregarded only when there is some abuse of

the privilege to operate as separate corporations to the detriment of a third party”); 

see also Brown v. Fred’s, Inc., 494 F.3d 736, 739 (8th Cir. 2007); In re B.J.

McAdams, Inc., 66 F.3d 931, 937 (8th Cir. 1995) (applying the alter-ego doctrine).

The interrelation of operations factor examines whether the two entities share

managers and personnel, payroll, insurance programs, office space, and equipment. 

Sandoval, 578 F.3d at 793; EEOC Compliance Manual §2-III(B)(1)(a)(iii). It also

requires evaluation of whether the entities are operated as a single unit, Sandoval, 578

F.3d at 796, and whether the entities’ functions and purpose are similar or distinct. 

See Grace v. USCAR, 521 F.3d 655, 665 (6th Cir. 2008); see also Engelhardt v. S.P.

Richards Co., 472 F.3d 1, 6-7 (1st Cir. 2006) (finding no interrelation of operations

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when companies had separate headquarters, human resource departments, records and

record keeping, and work sites which fulfilled distinct functions). The record is

devoid of evidence that Hugo and OEF share the same personnel and managers;

instead the evidence shows that OEF employees report to and are supervised by OEF

management employees and that Hugo employees report to and are supervised by

Hugo management employees. Each entity is responsible for making day-to-day

business decisions for their own enterprise, including creating their own budgets and

purchasing supplies. See Baker, 560 F.2d at 391 (finding single employer status

when, among other factors, the same person had day-to-day control of the entities). 

Hugo and OEF are not run as a single unit, as they each have a separate function and

purpose. OEF is a charitable organization that provides educational support and

materials to schools in developing countries. Hugo is a limited liability corporation

that provides administrative services to various nonprofit entities and operates as a

holding company for Ricketts’ for-profit entities. OEF and Hugo occupy different

office space in two different states and are incorporated under different states’ statutes.

Hugo provides administrative services to OEF because OEF does not have an

administrative infrastructure. For example, Hugo provides accounts payable, accounts

receivable, payroll administration, benefits coordination, and some legal and human

resources services to OEF. In Brown, that the parent company processed payroll and

other services for the subsidiary-employer was found insufficient to overcome the

strong presumption of corporate separateness. 494 F.3d at 739-40. Similarly, these

two corporations, not in a parent-subsidiary relationship, do not have sufficiently

interrelated operations to be considered a single entity.

“The degree to which the entities share common management includes whether

the same individuals manage or supervise the different entities or whether the entities

have common officers and boards of directors.” Sandoval, 578 F.3d at 793. There is

no evidence that the same persons were involved in management of the two entities. 

While Ricketts serves as CEO of OEF and is the sole owner of Hugo and some

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individuals serve as officers and as directors of both OEF and Hugo, Hugo did not

direct or oversee OEF’s corporate decisionmaking or facilities, and vice versa. See

Grace, 521 F.3d at 665 (finding no evidence of common management even though the

two companies had a shared relationship with the same person).

The entities’ labor relations are largely separate. OEF sets its own employment

policies, work schedules, and salaries and is responsible for hiring and firing its own

employees. OEF employees are paid by OEF, not by Hugo. Hugo is likewise

responsible for hiring, firing, and disciplining its employees. Hugo also controls the

job functions and responsibilities of its employees. Unlike the entities in Sandoval,

where the parent exercised “significant control, through the involvement or oversight

of [the subsidiary’s] personnel,” id. (internal quotation marks omitted), the Appellants

allege little more than a vague “centralized plan” to fire them that involved persons

at Hugo in an attempt to link Hugo to OEF’s labor relations and the alleged

discriminatory actions. However, those persons from Hugo also had various roles on

the board of OEF. The Appellants fail to demonstrate or allege that these persons,

specifically Ricketts who fired them, were acting in a Hugo capacity when making any

employment decisions involving them.

OEF does not have its own human resources department, in fact, Ricketts

testified that “[he is] the HR department at Opportunity Education.” Mark Simmons,

employed by Ricketts personally, serves as Ricketts’ Chief of Staff and also manages

various labor relations administrative functions for Ricketts’ companies, including

OEF and Hugo. His responsibilities include managing employee health benefits,

administering payroll, and maintaining personnel files. When Appellants reported

their problems at OEF, they contacted Alan Barkely, employed by OEF as Executive

Director. Though Ricketts is involved in the labor relations of both entities, the record

reflects that the entity responsible for making final decisions regarding employment

matters related to the Appellants was OEF. 

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“The degree of common ownership or financial control asks whether one

company owns the majority or all shares of the other and if the entities share common

officers or directors.” Sandoval, 578 F.3d at 793. These two entities share common

control and have a common source of funding. Ricketts owns Hugo, controls OEF,

and funds both. OEF is a charitable organization, so it has no shareholders or owners. 

Ricketts founded OEF and is its sole source of funding, contributing $5 million a year. 

He is OEF’s treasurer and sole voting director. He also is the sole stockholder of

Hugo. Although the entities’ sources of funding are the same, Hugo does not own

OEF, or vice versa. Each independently manages its own finances, OEF files its own

tax return and Hugo reports on Ricketts’ tax return. A single source of financial

support by itself does not indicate that the enterprises are integrated. Furthermore, the

fact that Ricketts controls two distinct corporations does not make them integrated for

the purposes of Title VII. See Morrison v. Magic Carpet Aviation, 383 F.3d 1253,

1257 (11th Cir. 2004) (“As a matter of law, we do not believe that common ownership

of two corporations is enough for a jury to conclude that there were integrated into

one operation for FMLA purposes.”). 

Although the Appellants produced evidence establishing common control and

financial backing, this is insufficient to establish single employer status and overcome

the strong presumption of organizational separateness which is necessary to find that

they were so integrated that they were, in effect, one entity. The record evidences

some, but little, interrelation of operations between the two companies and little if any

shared control of labor relations. Artis, 161 F.3d at 1184 (finding some overlap in the

entities’ control of labor relations, but not enough to make the two separate entities

the same). Although there may be occasions in which it is proper to disregard two

separate corporate entities for the purpose of finding the jurisdictionally required

number of employees under Title VII and the NFEPA, see, e.g., Baker, 560 F.2d at

392, this is not such a case, and we conclude that OEF and Hugo are separate

enterprises and therefore should not be integrated for purposes of 42 U.S.C.

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§ 2000e(b) and Nebraska Revised Statute § 48-1102(2). Cf. Artis, 161 F.3d at 1184

(noting that the court should consider all factors, with no particular factor controlling).

Because we agree with the district court that Hugo and OEF are not sufficiently

integrated enterprises to combine their employees to meet the statutory numerosity

requirement, the Appellants’ Title VII and NFEPA claims cannot survive and we

affirm the grant of summary judgment.

B. Tortious Interference

We review de novo a dismissal under Federal Rule of Civil Procedure 12(b)(6). 

Bell v. Pfizer, Inc., 716 F.3d 1087, 1091 (8th Cir. 2013). We have supplemental

jurisdiction over Davis’s and Duncan’s state law claim, 28 U.S.C. § 1367, and utilize

Nebraska law in our analysis. Under Nebraska common law, the elements of a

tortious interference claim are as follows: “(1) the existence of a valid business

relationship or expectancy, (2) knowledge by the interferer of the relationship or

expectancy, (3) an unjustified intentional act of interference on the part of the

interferer, (4) proof that the interference caused the harm sustained, and (5) damage

to the party whose relationship or expectancy was disrupted.” Huff v. Swartz, 606

N.W.2d 461, 466 (Neb. 2000) (internal quotation marks omitted).

In Huff, the Nebraska Supreme Court held that a supervisor or other

coemployee could become a “third person” acting as an interferer and subject to

liability for tortious interference of another’s business relationship. Id. at 467. 

Specifically, a tortious interference claim may be actionable if the coemployee’s

actions were “committed in furtherance of some purpose other than the lawful

purposes of the employer.” Id. at 468. The court cited favorably to the Nebraska

appellate court’s analysis in Hoschler v. Kozlik, see id., which quoted a Minnesota

Supreme Court case reasoning that, “[t]o allow the officer or agent to be sued and to

be personally liable would chill corporate personnel from performing their duties and

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would be contrary to the limited liability accorded incorporation,” 529 N.W.2d 822,

828 (Neb. 1995) (quoting Nordling v. Northern States Power Co., 478 N.W.2d 498,

505-06 (Minn. 1991)). In Huff, the Plaintiffs’ claims were against the manager of a

corporation, and the court found there was no evidence upon which a reasonable

inference could be drawn that the actions of a manager were not taken on behalf of the

corporation. Huff, 606 N.W.2d at 470.

Here, Ricketts is not a mere employee or even a supervisor or manager. 

Instead, he is the CEO of OEF. Under Nebraska law, for a CEO to be held liable for

tortious interference with business relations, there must be, at the pleading stage, some

allegation that the action was taken for “his or her own personal benefit,” or for the

benefit of an “entity other than the employer.” Id. Taking the pleadings as true, the

Appellants fail to plead facts from which a reasonable inference could be drawn that

Ricketts’ actions were not taken on behalf of OEF. Even if his actions were taken out

of ill-will, he was still acting in his capacity as CEO, and there is no claim for tortious

interference here. We note that plaintiffs in a similar position are not without remedy,

as “the [corporation’s agent’s] actions are those of the corporation; the employee’s

dispute is with the company employer for breach of contract, not the agent

individually for a tort.” Id. at 467 (citing Nordling v. Northern States Power Co., 478

N.W.2d 498, 505 (Minn. 1991)).

III.

Accordingly, we affirm the district court’s grant of summary judgment to OEF

and Hugo and the dismissal of the tortious interference claim against Ricketts.

RILEY, Chief Judge, concurring in part and dissenting in part.

I would reverse the grant of summary judgment on the appellants’ retaliation

claims because, viewing the record in the light most favorable to the appellants, there

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are genuine factual disputes underpinning the legal question whether OEF and Hugo

are integrated employers.

My fundamental concern is that the district court in this case made the same

mistake that earned the Fifth Circuit a summary reversal earlier this year: the court

“failed to adhere to the axiom that in ruling on a motion for summary judgment, ‘[t]he

evidence of the non[-]movant is to be believed, and all justifiable inferences are to be

drawn in his favor.’” Tolan v. Cotton, 572 U.S. ___, ___, 134 S. Ct. 1861, 1863

(2014) (per curiam) (first alteration in original) (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255 (1986)). 

According to the appellants’ reasonable view of the record, Hugo employees

performed most of OEF’s routine human resources functions, had sole authority to

write OEF’s checks, directed OEF’s hiring and firing of employees, controlled OEF’s

payroll, kept a single integrated employee database for both OEF and Hugo, managed

integrated insurance for Hugo and OEF employees, provided OEF legal advice, and

prepared OEF’s tax filings. OEF’s sole voting director was Hugo’s sole voting

member, and at least one Hugo employee exercised broad authority over

OEF—including firing one of the appellants. OEF received all of its funding from

Hugo and could not logistically function without the day-to-day involvement of Hugo

employees. If a jury found these facts to be true, the legal conclusion that OEF and

Hugo are integrated employers would be inescapable. See, e.g., Sandoval v. Am.

Bldg. Maint. Indus., Inc., 578 F.3d 787, 796-800 (8th Cir. 2009); Baker v. Stuart

Broad. Co., 560 F.2d 389, 392 (8th Cir. 1977).

To be sure, if a jury rejected the appellants’ view of the evidence, the majority’s

legal decision that OEF and Hugo are not integrated would carry the day. But “a

judge’s function at summary judgment is not to weigh the evidence and determine the

truth of the matter but to determine whether there is a genuine issue for trial.” Tolan,

572 U.S. at ___, 134 S. Ct. at 1866 (internal marks omitted) (quoting Anderson, 477

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U.S. at 249). A jury—not a district or appellate judge—must resolve any genuine

factual disputes underpinning a legal question. See, e.g., In re Wholesale Grocery

Prods. Antitrust Litig., 752 F.3d 728, 733-34 & n.5 (8th Cir. 2014). In this case, a jury

should resolve the disputed factual questions regarding OEF and Hugo’s

integration—for example, by answering factual interrogatories, thereby permitting the

court to answer the legal question at issue based on the jury’s findings. See id. at 735

n.7.

The allegations in this case are significant. If the appellants’ claims are true,

two female employees were subjected to persistent sexual harassment by a boorish

individual and then summarily fired because they complained about the harassment.

I believe there plainly is enough evidence to send this case to a jury. 

I join Part II.B of the court’s opinion and otherwise respectfully dissent.

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