## United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________
No. 08-2271

___________ Francisca Sandoval; Ines Hernandez; * Miriam Pacheco; Eva Reyes; Arminda * Gomez; Nidia Guerrero; Lucila * Marquez; Maria Perez; Azucena * Garcia; Estela Laureano; Marlene * Giron, *

* Plaintiffs - Appellants, * * v. *

* American Building Maintenance * Industries, Inc., also known as ABM * Appeal from the United States Industries, Incorporated, doing * District Court for the District of business as ABM Janitorial Services; * Minnesota. American Building Maintenance Co. * of Kentucky, *

* Defendants - Appellees. *

* ___________________ *

* Equal Employment Opportunity * Commission; National Employment * Lawyers Association, *

* Amici on behalf of * Appellants. *1 ABMI is the parent corporation of ABM Janitorial Services, which is a wholly owned subsidiary of ABMI. ABM Janito rial Services, in turn, is the parent corporation of ABMK, which is a wholly owned subsidiary of ABM Janitorial Services.

2 There is no dispute three of the appellants (Garcia, Laureano, Giron (collectively "Timely Plaintiffs")) filed timely complaints against ABMK.

-2- ___________ Submitted: February 11, 2009 Filed: August 26, 2009

___________ Before BYE, JOHN R. GIBSON, and GRUENDER, Circuit Judges.

___________ BYE, Circuit Judge.

Francisca Sandoval, Ines Hernandez, Miriam Pacheco, Eva Reyes, Arminda Gomez, Nidia Guerrero, Lucila Marquez, Maria Perez, Azucena Garcia, Estela Laureano, and Marlene Giron (collectively "Appellants" or "Plaintiffs"), brought suit against American Building Maintenance Industries, Inc. (ABMI), d/b/a ABM Janitorial Services, and American Bu ilding Maintenance of Kentucky (ABMK) 1 under Title VII of the Civil Rights Act, 42 U.S .C. §§ 2000e to 2000e-17, and the Minnesota Human Rights Act (MHRA), Minn. Stat. Ann. §§ 363A.01 to 363A.41, alleging sexual harassment, hostile workplace, and other employment-related claims. The district court dismissed the claims br ought by eight of the appellants (Sandoval, Hernandez, Pachecho, Reyes, Gomez, Gu errero, Marquez, Perez (collectively "Original Plaintiffs")) against ABMK, holding the claims were brought more than ninety days after the Equal Employment Opportunity Commission (EEOC) issued right-to-sue letters. 2Thereafter, ABMI moved for summary judgment, arguing it was not the appellants' employer, and ABMK moved for summary judgment, arguing the claims brought against it by the timely plaintiffs should be dismissed on the merits.-3- The district court granted ABMI's moti on, holding it was not appellants' employer. Additionally, the district court granted summary judgment to ABMK, holding the timely plaintiffs failed to allege acti onable claims for sexual harassment, hostile workplace or other employment-related cl aims under Title VII or the MHRA. On appeal, appellants argue the district court erred in 1) finding the amended complaint was untimely or did not relate back to th e original complaint, 2) finding ABMI was not the appellants' employer by acting as an integrated enterprise with ABMK, and 3) dismissing the timely plaintiffs' claims of sexual harassment, hostile workplace, and other employment-related claims on the me rits. We reverse in part and remand.

I

On May 2, 2006, the original plaintiffs, who had filed EEOC claims of discrimination against ABMI, requested right -to-sue letters from the EEOC. By May 11, 2006, the EEOC had issued the letters a nd informed the original plaintiffs any action must be filed within ninety days of receiving the letters. On May 15, 2006, the original plaintiffs filed suit against ABMI , a/k/a ABM Industries Incorporated, d/b/a ABM Janitorial Services. The complain t did not name ABMK. On June 28, 2006, defense counsel called the appellants' attorney and informed him ABMK was the appellants' employer, not ABMI. Appellant s' counsel requested verification of the information and researched ABMK's status as an employer in Minnesota. On June 29, 2006, defense counsel wrote appellants' counsel verifying that ABMK was the appellants' employer and offered a stipul ation allowing appellants to amend the complaint to add ABMK. Appellants' c ounsel requested further verification and declined the stipulation.

On July 28, 2006, appellants' counsel se nt a proposed stipulation to defense counsel regarding am ending the complaint to add AB MK as a defendant. Defense counsel agreed to the stipulation in principle but requested additional language indicating the amendment did not relate back to the date of the orig inal complaint. On-4- August 9, 2006, appellants' counsel agr eed to the additional language but the stipulation was not signed. On August 11, 2006, appellants' counsel informed defense counsel he intended to a dd three additional plaintiffs and would wait until they received right-to-sue letters from the EEOC be fore amending the co mplaint. Defense counsel indicated the amendment nami ng ABMK should be made immediately. Appellants' counsel refused, preferring instead to make both amendments at the same time. On September 15, 2006, more than one month after the ninety-day time limit had passed as to the original plaintiffs, the amended complaint adding ABMK and the three timely plaintiffs was filed.

ABMK moved for dismissal, arguing the amendment was untimely. The original plaintiffs resisted, arguing equitable tolling or the relation back doctrine saved the untimely amendment. The district court disagreed, finding the original plaintiffs had not acted reasonably or in good faith in failing to amend the complaint sooner. In particular, the court found appellants' c ounsel was informed early on of the identity of the appellants' employer and was o ffered multiple opportunities to amend the complaint. Despite this information, counsel unreasonably delayed in filing the amendment. Similarly, the district court concluded the relation back doctrine did not apply because the failure to name ABMK was not the result of a mistake as to its identity. Instead, the distri ct court concluded appellants' counsel was informed ABMK was the proper party nearly two months before the statute of limitations expired and failed to make a timely motion to amend.

Thereafter, ABMI and ABMK m oved for summary judgment on the discrimination, hostile workplace, and other employment-related claims. ABMI argued it was not the appellants' employe r and the claims against it should be dismissed. ABMK argued the claims filed by the timely plaintiffs should be dismissed because there was no evidence of sexual harassment, hostile workplace or other employment-related misconduct. Th e district court concluded there was insufficient evidence to show ABMI exerci sed sufficient control over ABMK to make-5- it the appellants' employer. The court fu rther found there was insufficient evidence to support the timely filed sexual harassment, hostile workplace and other employment-related claims. Accordingl y, the district court granted summary judgment and dismissed all the claims.

On appeal, the appellants argue the district court erred in finding the amended complaint untimely under either equitable tolling or the relation back doctrine. Additionally, the appellants argue the cour t erred in finding ABMI was not their employer, and that the se xual harassment, hostile workplace, and other employmentrelated claims lacked merit.

II

We review the district court's grant of summary judgment de novo, viewing the evidence and drawing all reasonable inferen ces in the light most favorable to the appellants, the nonmoving partie s. Holland v. Sam's Club , 487 F.3d 641, 643 (8th Cir. 2007). We will affirm if no ge nuine issue of material fact exists and the defendants are entitled to judgment as a matter of law. Id. But "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986).

A

The original plaintiffs first argue the district court erred in concluding neither equitable tolling or the relation back doc trine saved the untimely filed amendment. Equitable tolling requires, among other elements, a finding the original plaintiffs acted reasonably and in good faith. Peco raro v. Diocese of Rapid City , 435 F.3d 870, 875 (8th Cir. 2006). The failure to bring a tim ely claim is reasonable if "despite all due diligence, [the original plaintiffs were] unable to obtain vital information bearing on-6- the existence of [the] claim." Dring v. McDonnell Douglas Corp. , 58 F.3d 1323, 1328 (8th Cir. 1995) (citations omitte d). Here the original plaintiffs did not act with due diligence. Defense counsel informed appe llants' counsel he n eeded to amend the complaint to include ABMK, and o ffered multiple opportunities to amend. Nevertheless, counsel waited nearly three months until the ninety-day time limit was past to file the amendment. We conclude the delay was not reasonable.

Similarly, under the relation back doctrine, the original plaintiffs must show the failure to name ABMK was the result of a mistake concerning the identity of the proper party. Shea v. Evensten , 208 F.3d 712, 720 (8th Cir. 2000). The original plaintiffs argue ABMK was on notice it shoul d have been named in the complaint and was not prejudiced by the delay. It is true ABMK was on notice. Further, ABMK does not argue it was prejudiced. The original plaintiffs, however, offer no explanation for waiting until after the statut e of limitations expired before filing the amended complaint. Inasmuch as the original plaintiffs were aware of ABMK's identity for nearly two months before the st atute expired, it cannot be argued a mistake caused the failure to file a timely complaint against ABMK. Rather, the complaint was not filed because counsel preferred to wait and file the amendment adding ABMK at the same time he sought to add the timel y plaintiffs. Theref ore, we affirm the district court's order holding the amendment adding ABMK was untimely.

B

Appellants next argue the district court erred in concluding ABMI was not their employer. "Title VII of the Civil Right s act of 1964 is to be accorded a liberal construction in order to carry out the purposes of Congress to eliminate the inconvenience, unfairness and humiliation of . . . discrimi nation." Baker v. Stuart Broad. Co. , 560 F.2d 389, 391 (8th Cir. 1977) (quot ation marks and citations omitted). In particular, "[s]uch liberal construction is also to be given to the definition of 'employer.'" Id. (citation omitted). The legal standard in this circuit for determining-7- a parent corporation's liability for a subs idiary's commission of practices prohibited by Title VII was first set forth more than thirty years ago in Baker . Id. at 392. The court adopted a four-part test treating related but distinct entities as an integrated enterprise based on 1) interrelation of operations, 2) common management, 3) centralized control of labor relations, and 4) common ownership or financial control. Id. In Baker , the court found "sufficient facts to hol d as a matter of law" two affiliated broadcasting corporations – Stuart and Grand Island – "share management and ownership," and "a sufficien t interrelation of operations between the two companies." Id. Specifically, the court noted Stuart "p rovides management services for Grand Island . . . includ[ing] . . . check writing and completion of the necessary forms for broadcast license renewals . . . [and] issu es policy manuals which Grand Island . . . is to follow." Id. Further, "[w]hile evidence as to control of labor relations [was] less clearly developed in the record . . . the record support[ed] a c onclusion that Stuart Broadcasting and Grand Island Broadcasting should be consolidated . . . ." Id. Our reliance upon, and the continued viability of, Baker's four-part test is supported by EEOC guidance and Congressional intent.

Under the EEOC's interpretation of Title VII, "[t]he separate entities that form an integrated enterprise ar e treated as a single employer for purposes of both coverage and liability," and "relief can be obtained from any of the en tities that form part of the integrated enterprise." EEOC Compliance Manual, Section 2: Threshold Issues, No. 915.003, at 44. "The factors to be consider ed in determining whether separate entities should be treated as an integrated en terprise" mirror those set forth in Baker , and include the degree of interrelation between the operations, the degree to which the entities share common management, centralized control of labor relations, and the degree of common ownership or financial control. Id. at 44-45. When evaluating the degree of interrelation, the EEOC consider s sharing services such as check writing, preparation of mutual policy manuals, contract negotiations, completion of business licenses, sharing payroll and insurance progr ams, sharing services of managers and personnel, sharing office space, equipment, and storage, and operating the entities as-8- a single unit. Id. The degree to which the entities share common management includes whether the same individuals mana ge or supervise th e different entities or whether the entities have common officers and boards of directors. Id. The EEOC also considers the extent to which there is a centralized source of authority for development of personnel polic y, maintenance of personal records, human resources, and employment decisions. Id. Finally, the degree of co mmon ownership or financial control asks whether one company owns the ma jority or all shares of the other and if the entities share common officers or directors. Id.

Similarly, Congress has demons trated its support for the Bakerfour-factor test by codifying the standard in a 1984 amendment to the Age Discrimination in Employment Act (ADEA), and in a provisi on of the 1991 Civil Rights Act amending Title VII and the Americans with Disabilities Act (ADA). See 29 U.S.C. § 623(h) (ADEA); 42 U.S.C. § 2000e-1(c) (Title V II); 42 U.S.C. § 12112(c)(2) (ADA). In EEOC v. Arabian American Oil Co. , 499 U.S. 244, 246 (1991), the Supreme Court held Title VII did not appl y "extraterritorially to regulate the employment practices of United States employers who employ United States citi zens abroad." In reaching its decision, the Supreme Court noted Congress had previously acted to extend the reach of, among other statutes, the ADEA to cover U.S. citizens employed abroad by U.S. corporations or their foreign subsidiaries.

[A]fter several courts had held th at the ADEA did not apply overseas, Congress amended [the ADEA] to provide: "The term 'employee' includes any individual who is a citi zen of the United States employed by an employer in a workplace in a foreign country." 29 U.S.C. § 630(f). Congress also amended § 4(g)(1), wh ich states: "If an employer controls a corporation whose place of incorporation is in a foreign country, any practice by such corporation prohibited under this section shall be presumed to be such practice by su ch employer." 29 U.S.C. § 623(h)(1). The expressed purpose of these change s was to "mak[e] provisions of the Act apply to citizens of the United States employed in foreign countries-9- by U.S. corporations or their subsid iaries." S. Rep. No. 98-467, p.2 (1984), U.S. Code Cong. & Admin. News 1984 pp. 2974, 2975.

Id. at 258-59.

In extending the reach of the ADEA, Congress codified the four-factor integrated enterprise test as the standardto determine "whether an employer controls a corporation" overseas, and is thereby "p resumed" liable for unlawful discrimination against the U.S. citizen employees of th e foreign subsidiary. 29 U.S.C. § 623(h). "The purpose behind the amendment [was] to ensure that the citizens of the United States who are employed in a foreign workplace by U.S. corporations or their subsidiaries enjoy the protections of the [ADEA]." In Arabian American , the Supreme Court suggested "Congress, should it wish to do so, may similarly amend Title VII." 499 U.S. at 259. Congress immediately acted by adding a provision to the 1991 Civil Rights Act to include functionally identical language in Title VII and the ADA. As amended, Title VII now protect s U.S. citizens employed "in a foreign country," 42 U.S.C. § 2000e(f), under the following circumstances:

(c)(1) If an employer controls a corporation whose place of incorporation is a foreign country, any practice prohibited by section 2000e-2 or 2000e-3 of this title engaged in by su ch corporation shall be presumed to be engaged in by such employer. (2) Sections 2000e-2 and 2000e-3 of this title shall not apply with respect to the foreign operations of an employer that is a foreign person not controlled by an American employer. (3) For purposes of this subsecti on the determination of whether an employer controls a corporation shall be based on – (A) the interrelation of operations; (B) the common management; (C) the centralized control of labor relations; and (D) the common ownership or financial control, of the employer and the corporation.

42 U.S.C. § 2000e-1(c) (empha sis added); see also 42 U.S.C. § 12112(c)(2) (ADA).-10- Congress' express purpose wa s to "extend the protections of Title VII and the [ADA] to American citizens working overs eas for American employers," by enacting a provision that "parallels a 1984 amendment to th e [ADEA]." 137 Cong. Rec. S15235-02 (Sen. Kennedy) (Oct. 25, 1991); see also 137 Cong. Rec. S15477-01 (Sen. Dole) (Oct. 30, 1991) (same). In doing so , Congress again approved the four-factor integrated enterprise test to determine wh en an employer will be presumed liable for the unlawful employment practices of a subsid iary or corporate affiliate. "A foreign entity will be found to be contro lled only if it is, in effect, an integrated enterprise with an American employer." EEO C Enforcement Guidance: Application of Title VII and the [ADA] to Conduct Overseas and to Foreign Employers Discriminating in the United States, No. N-915.002 at 4, 18 n.6 (Oct. 20, 1993) ("The factors identified . . . are the same as those relied upon by th e Commission for determining when two or more entities (whether foreign or domestic) may be treated as an integrated enterprise or a single employer."). The intent of these amendments was to extend to U.S. citizens employed abroad by American empl oyers, or by foreign affiliates controlled by such employers, the same protections from discrimination they would enjoy at home. Therefore, Congress plainly intendedthe term "employer" be interpreted in accord with the four-factor in tegrated enterprise test.

The Fourth Circuit, in deciding whethe r a parent corporation is liable for unlawful discrimination against a subsidiary's employees, has emphasized "the doctrine of limited liability" derived from corporate law and applies "a strong presumption" that "when a subsidiary hire s employees . . . the subsidiary, not the parent company, is the employer. " Johnson v. Flowers Indus., Inc. , 814 F.2d 978, 980 (4th Cir. 1987). "In an employment contex t," the court held, the parent company can be the employer of a subsidiary's workers if it exercises excessive control in one of two ways. The parent could control the employment practices and decisions of the subsidiary or the parent might so dominate the subsidiary’s operations that the parent and the subsidiary are one entity and thus one employer. Id. at 981. The Fourth Circuit acknowledged the four-factor test app lied by this and other courts to assess the-11- degree of control exercised by a parent corporation over a subsidiary, but saw no "need [to] adopt such a mechan ical test in every instance; the factors all point to the ultimate inquiry of parent domination" and "simply express relevant evidentiary inquiries whose importance will vary with the individual case." Id. at 981 n*. The Tenth Circuit has adopted Johnson , reasoning a "strong presumption that a parent company is not the employer of its subsid iary’s employees" will be overcome "only in extraordinary circumstances." Frank v. U.S. West, Inc. , 3 F.3d 1357, 1362 (10th Cir. 1993) (citing Johnson , 814 F.2d at 980-81).

Recently, our court in Brown v. Fred’s, Inc ., 494 F.3d 736, 739 (8th Cir. 2007), applied "a strong presumption that a parent company is not the employer of its subsidiary's employees," id. (quoting Frank and citing Johnson ), and held a Title VII plaintiff to the standard announced in Johnson : "A parent company may employ its subsidiary's employees if (a) the parent company so dominates the subsidiary's operations that the two are one entity and ther efore one employer, . . . or (b) the parent company is linked to the alle ged discriminatory action b ecause it controls individual employment decisions." Id. (internal quotation marks omitted). Without citing Baker or the four-factor test, or EEOC and C ongressional support for the test, the Brown court affirmed summary judgment for the parent corporation, finding "nothing" to suggest the parent and subsidiary "were a single entity," and insu fficient evidence the parent "actually controlled individual employment decisions regarding [plaintiff]." Id. at 739-40.

As demonstrated below, the evidence of common ownership and management of ABMI and ABMK; ABMI's involvement, pursuant to the Service Agreement, in several areas of ABMK's operations; and AB MI's public representations of centralized corporate control of labor and human res ources, demonstrate ABMI is the appellants' employer for purposes of the integrated enterp rise test. The district court concluded otherwise based on the above -cited language in Brown , and held a parent corporation can only be considered the employer of its subsidiary's employees if the parent-12- dominates the subsidiary's operations, or wa s directly involved in the alleged unlawful action. 494 F.3d at 739. Additionally, the district court applied a "strong presumption" against holding a parent liable for the unlawful employment practices of its subsidiary. Id. We conclude, however, Brown should not be read as establishing a new integrated enterprise test in our circuit. Rather, it may be harmonized with Bakerby noting the traditional four-fact or standard is the means by which plaintiffs demonstrate corporate dominance over a subsidiary's operations and establish affiliate liability. Inother words, applying the Bakertest is how to prove the "parental domination" standard set forth in Brown . Furthermore, assuming the presumption articulated in Browninforms the analysis set forth in Baker , it is overcome in this case by evidence of ABMI's and ABMK's 1) interrelation of operations, 2) common management, 3) centra lized control of labor relations, and 4) common ownership or financial control.

The district court concluded ABMI's involvement in the operations of ABMK was insufficient to find ABMI was involve d in the actual functioning of ABMK. It based its conclusion primarily on a finding as to the day-to-day operations of ABMK being handled by ABMK employees, without the involvement or oversight of ABMI personnel. Substantial evidence, however , including ABMI's and ABMK's corporate documents, and publications disseminated on ABMI's website contradict the district court's conclusion.

ABMI and ABMK share the same Chie f Executive Officer, Chief Financial Officer, Treasurer, Secretary, and Vice Preside nt of Finance. Additionally, the Chief Executive Officer and Chief Financial Offi cer for ABMI approved the appointments of the Executive Vice President, Vice Presidentof Finance, Secretary, and the Board of Directors for ABMK. In addition a nd importantly, ABMI owns and thereby controls all of ABMK's issued and outstanding shares of common stock.-13- Significantly, ABMI and ABMK entered into a Service Agreement whereby ABMI agreed to provide certain servi ces to ABMK, including accounting services, administrative services, electronic servi ces, employee benefits, human resources, insurance, legal services, safety advice, and treasury services. Through its human resources department, ABMI agreed to pr ovide ABMK with the following services:

a) Assist in the development of human resource policies applicable to Subsidiary; b) Assist on the development a nd distribution of employee handbooks and employment-related forms for use by Subsidiary; c) Assist Subsidiary with employment-related workplace posting requirements; d) Provide employee relations pers onnel to assist Subsidiary with employment-related problems; e) Provide employment related legal advice and guidance; f) Manage all employment-related lawsuits, claims and liability; g) Preparation of Annual Affirmative Action Plan(s); h) Provide support for Subsidiary in cases of governmental audits; i) Manage human resources information services; j) Develop and present employment -related division training programs.

The accounting services included providi ng financial policie s and procedures, payroll tax, depositing, indepe ndent audits, and preparing and filing federal and state income tax returns and other necessary reports. The admi nistrative services included negotiating and managing nati onal accounts, management of uniform company logos and signage, and purchasing busin ess cards and stationary. Electronic services related to computer telecommunications syst ems and included purchasing equipment, development of software, and technical support. Employment benefits services included administration of employee benef its programs. The insurance services included negotiating insurance covera ge for workers and managing worker compensation insurance and claims. As fo r legal services, ABMI 's legal department agreed to negotiate and draft service and procurement agreements on behalf of ABMK. ABMI further agreed to provideABMK with advice necessary to enable-14- ABMK to comply with laws dealing with employee safety, to develop and distribute safety-related training and education materials, and to publish and distribute appropriate safety manuals. Finally, treas ury services included establishing and maintaining banking relationships. In exch ange for these services, ABMK agreed to pay ABMI one percent of its gross operating revenue and to "follow policies and guidelines developed pursuant to the Service Agreement, as well as such corporate guidelines as may be developed and promul gated from time to time." In a subsequent Service Agreement, ABMI agr eed to also provide real estate and marketing services, and ABMK agreed to pay AB MI separate amounts for electronic services, employee benefits services, insurance se rvices, and safety services.

In addition, ABMI purchased ABMK's workers' compensation insurance, obtained licenses for sexual harassment videos, submitted motor vehicle record checks to a single provider, and dr afted certain forms such as performance evaluations. ABMI also negotiated the contract for a harassment hotline, which ABMK employees could access to report sexual hara ssment, discrimination, retaliation, theft, or safety concerns in the workplace. ABMI woul d forward any reports to ABMK's human resources department and AB MK would conduct an investig ation. ABMI employees, however, were available to provide assistance and direction in such investigations, and the results were forwarded to ABMI to ensure the complaints were resolved.

ABMK's human resources director also had access to ABMI's human resources online manual, which was used to clarify the operation policies and procedures ABMK was required to follow, and contactedABMI when questions arose regarding information contained in the manual. Fu rther, ABMK relied on ABMI's Complaint Resolution Summary form (which listed AB MI's human resource department's contact information) and ABMI's procedures for processing employee complaints.

ABMI also dictated mandatory sexual harassment and diversity training and provided the training to ABMK's human re sources and safety professionals. ABMI-15- further directed ABMK to include th e following attachments in each employees paycheck: 1) unlawful harassment policy; 2) sexual harassment policy; and 3) a reminder of the harassment hotline. AB MI's human resources department also published and distributed a memorandum on how to recognize and deal with sexual harassment to all ABMI subsidiaries. In 2004, ABMI notified its subsidiaries' human resources managers about mandatory unl awful harassment training. The notice indicated training was mandatory on an annual basis for all s upervisory personnel, persons conducting the training were required to first complete at least Level 1 of ABMI's Human Resource Certification Program, and exceptions from the requirement could only be approved by ABMI's human resources department. In April 2005, ABMI issued a similar notice to its subsid iaries' human resources directors outlining changes in the 2005-2006 mandatory hara ssment training and reiterating that exceptions could only be approved by ABMI.

The ABM Janitorial Services Empl oyee Handbook, provided by ABMK to all employees, includes a preamble from ABMI's President and Chief Executive Officer, advising employees the handbook is a useful reference for employment guidelines, procedures, policies, and de tails what is expected of employees. ABMI has also promulgated a Code of Busi ness Conduct and Ethics, applicable to the employees of its subsidiaries, which addresses conflicts of interests; corporate opportunities and the duty of loyalty; gifts made to governme nt and union personnel, customers and suppliers; fraud and theft; bribes; insider tr ading; compliance with laws, regulations and rules, including civil rights laws c oncerning harassment and job discrimination; protection of company assets; political c ontributions; confidentiality; accounting and employment safety as it relates to using al cohol or drugs, threats made against other employees and possessing weapons.

According to these documents, ABMI exercises significant control, through "the involvement or oversight of ABMI pe rsonnel," over its janitorial subsidiaries, particularly in areas affecting labor and human resources. In its 2007 Annual Report-16- to Stockholders, ABMI reported that its subsidiary, ABM Ja nitorial, had a "work force of 47,000 employees operating out of 111 branch offices." According to the report:

ABM Janitorial Service's vast marketcoverage, corporate oversight and local operational expertise allow our branches to deliver quality service to our clients, regardless of thei r size or location. Our corporate professionals have developed co mprehensive standards for all procedures and protocols in the ar eas of human resources, safety and training. These programs are distributed subsidiary-wide, providing our employees with the latest in cl eaning methods, technology and safety guidelines. Experienced management and supervision, along with a well-trained, dedicated work force, are the keys to providing the superior service upon which our customers rely.

In the 2006 Fall/Winter Issue of its "A lliance Magazine,"ABMI described in detail the "comprehensive standards for all procedures and protocols in the areas of human resources, safety and training," a nd noted ABMI's centralized "corporate professionals" provide assistance "subsidiar y-wide" to managers, supervisors, and employees. In particular, the magazine explained "how ABMI's dynamic corporate Human Resources Department trains and insp ires a field of 50-plus [HR] generalists who serve ABMI's subsidiary companies with 73,000 employees nationwide." Erin Andre, Senior Vice President of Hu man Resources for ABMI, explained her department's "corporate objective is to partne r" with subsidiaries "to ensure that we hire and retain the best mi x of talent to meet customer and business needs while maintaining 'Best in Class' HR practi ces." To accomplish those goals, ABMI's centralized human resources department dir ectly responds, on a daily basis, to a wide range of inquiries from employees, supe rvisors, and human resource managers throughout the company's subsidiaries, and instructs subsidiaries on the application of federal labor laws to the company's entire workforce.

Additionally, the centralized employee bene fits office "administers a wealth of employee benefit packages" "includ[ing] health and life insurance, short- and-17- long-term disability coverage , and a personal accident plan ," offered to employees of ABMI subsidiaries nationwide. Corporate human resources also trains and monitors the human relations personnel and practices of ABMI subsidiaries. In addition to a library of video-based and written mate rials, the human resources department produces annual programs on unlawful hara ssment and supervisory development. This training is supplemented by ongoing assistance provided by human resources representatives of ABMI's subsidiary companies. To ensure the reliability of this assistance, human resources representativ es must become certified by successfully completing ABMI's [human resources] certification program.

As structured by ABMI, "[f]our corpor ate [human resources] directors support 51 HR field directors who provide service to ABMI's subsidiary companies," and "assist [HR] field directors and their management teams in effective workforce management by providing timely and accurate advice." To ensure subsidiaries follow the policies, practices, and procedures es tablished in ABMI corporate headquarters, "ABM's [human resources] Department has developed and officially rolled out the HR Audit Protocol, which is designed to m easure the Company's compliance with a number of performance standards regarding employee records and HR practices." There are audits to ensure all locations are adhering to proper procedures regarding new hires, such as conducting bac kground checks and reviewing appropriate documentation, and audits in connection with wage and hour laws, as well as equal employment and Family Medical Leave Act notifications required by the government. Human resources directors perform fiel d audits, creating a partnership between corporate staff and field directors to makesure the branches are in compliance with comprehensive standards. "The data gathered" enables "the Company to look for patterns – strengths or gaps – and to adjust corporate policies or training accordingly."

ABMI personnel also establish and m onitor compliance with policies and procedures governing job performance and employee safety for all subsidiaries. ABMI's "corporate [human resources] and safety departments deliver far-reaching-18- programs" to all subsidiaries in the area of employee training. In particular, ABMI has implemented a comprehensive "propr ietary" training program "developed to standardize the way ABM cleaned and to enable supervisors to quickly and confidently train new employees." The cen tralized department of safety services "manages occupational and environmental safety programs that benefit and safeguard the field," including "programs that support all ABM subsidiaries;" "programs that have broad application, but which are tailored to address specific service needs by individual subsidiaries;" and "special or s ite-specific programs." "There are some 25 safety directors or coordinators Company-wide . . . and no subsidiary or branch has been left out of the 'mix.'" ABMI ensu res "[e]ach [subsidiary] has someone who is assigned responsibility for ensuring that an e ffective safety management process is in place." "Every year, all of the Company's sa fety directors and coordinators gather for an extensive training session, which [in 2006] was divided into two 50-hour segments." "Corporate safety staff also vi sit local safety directors across the country to provide counsel and assistance with programs and procedures." While ABMI's Director of Safety Services announced plan s to "'roll out a new set of comprehensive safety policies addre ssing anything and everything we do in the field,'" the Assistant Director focused "most of [her] time on en suring that ABM has an effective safety program and that every ABM subsidiary provides its employees with a safe work environment." To achieve the "main obj ective . . . to see every ABM employee go home safely at the end of every work shift, " the Assistant Director developed "a solid understanding of what our employees encounteron a day-to-day basis" and "can apply technical knowledge to assist the field in integrating safety management into the operations."

These descriptions of ABMI's involvementin the operations of its subsidiaries, and in particular ABMK's, are sufficient to create a genuine issue of material fact with respect to whether ABMI and ABMK are anintegrated enterprise. Accordingly, we reverse the district court's grant of summary judgment on this issue. See Frank v. U.S. West, Inc. , 3 F.3d 1357, 1364 (10th Cir. 1993) (applying the four-factor test to-19- determine whether a genuine issue of material fact precluded summary judgment on the issue of integrated enterprise).

C

We next consider the district court's grant of summary judgment against the timely plaintiffs on their Title VII and MH RA claims, which are governed by the same standards. See Wittenburg v. Am. Exp. Fin. Advisors, Inc. , 464 F.3d 831, 842 n.16 (8th Cir. 2006).

Garcia, Laureano, and Gir on asserted timely claims against ABMK for quid pro quo sexual harassment, arguing their on-site supervisors subjected them to unwanted sexual advances and other sexual conduct, and when rebuffed, denied them job benefits or took adverse actions against themresulting in tangible job detriment. They also alleged the supervisors' sexual harassm ent was severe and pervasive, affected a term, condition or privilege of employmen t, and ABMK had actual or constructive notice of the harassment. Finally, they each alleged claims for retaliation and sexual discrimination.

The district court concluded the on-site supervisors had no authority to take adverse employment actions agai nst the timely plaintiffs. In other words, they did not have the authority to hire, fire, demote, et cetera, and therefore the claims of quid pro quo harassment against ABMK necessarily failed. Additionally, the court concluded, with respect to Garcia's hostile workplace cl aim, the actions of her supervisor, while repugnant, were insufficient to show the workplace was permeated with discriminatory intimidation, ridicule, a nd insult. The district court dismissed Laureano's and Giron's hostile workplace cl aims, finding ABMK had no notice of the harassment until it was reported to manage ment, and thereafter it took timely and effective remedial action. The district c ourt also dismissed the retaliation claims, concluding 1) Garcia failed to allege a materially adverse employment action, 2)-20- Laureano only alleged retaliati on by a co-worker, not her employer, and she conceded ABMK had a legitimate nondiscriminatory r eason for her termination, and 3) Giron failed to establish a causal connection be tween her reports of harassment and the alleged retaliatory acts. Finally, the district court dismissed the sex discrimination claims, finding, among other things, the timely plaintiffs failed to present any evidence tending to show the alleged discri minatory actions were taken because of gender.

For the reasons stated in the district court's order, we affirm its dismissal of the timely plaintiffs' retaliation, sex discri mination, and quid pr o quo sexual harassment claims, and its dismissal of Garc ia's hostile workplace claim. See8th Cir. R. 47B. For the reasons stated below, we reverse a nd remand the district court's dismissal of Laureano's and Giron's hostile workplace clai ms, with instructions to determine whether evidence of widespread sexual harassment was sufficient to put ABMK on constructive notice.

Title VII prohibits employment discrimi nation based on sex and covers a broad spectrum of disparate treatment. 42 U.S.C . § 2000e-2; Harris v. Forklift Sys., Inc.
, 510 U.S. 17, 21 (1993). A plaintiff may prev ail in a discrimination claim by showing the inappropriate conduct creates a "hostile work environment." See 29 C.F.R. § 1604.11(a)(3). Laureano's and Giron's hostile work environment claims require proof 1) they are members of a protected group, 2) they were subjected to unwelcome sexual harassment, 3) the harassment was ba sed on sex, and 4) th e harassment affected a term, condition or privilege of their empl oyment. Duncan v. Gen. Motors Corp.
, 300 F.3d 928, 933 (8th Cir. 2002). To estab lish a prima facie case of hostile work environment sexual harassment by non-supervisory co-workers, they must also establish ABMK knew or should have know n of the harassment and failed to take prompt remedial action. Meriwe ther v. Caraustar Packaging Co. , 326 F.3d 990, 993 (8th Cir. 2003) (quotation marks omitted). The fourth element involves both objective and subjective components. Id. at 934. The harassment must be "severe or pervasive-21- enough to create an objectively hostile or abusive work environment" and the victim must subjectively believe her working c onditions have been altered. Harris , 510 U.S. at 21-22. "There is no bright line betw een sexual harassment and merely unpleasant conduct . . . ." Hathaway v. Runyon , 132 F.3d 1214, 1221 (8th Cir. 1997). Accordingly, we view the "totality of the circumstances" in determining whether there is a hostile work environment. Klein v. McGowen , 198 F.3d 705, 709 (8th Cir. 1999). The factors we look to include the frequency of the behavior, its severity, whether physical threats are involved, and whether th e behavior interferes with a plaintiff's performance on the job. Duncan , 300 F.3d at 934.

With respect to Laureano's and Giron' s hostile workplace claims, the district court determined the on-site supervisors were co-employees, and ABMK took prompt remedial action when the harassment was re ported. We agree the district court properly concluded the timely plaintiffs' s upervisors were not authorized to take adverse employment actions against them, and thus ABMK was not liable under a theory of quid pro quo harassment. Additi onally, we agree the plaintiffs' complaints to their supervisors were insufficient to put ABMK on notice of the harassment, especially in light of the extensive an ti-harassment policy and procedures it had established, which, when accessed, ended th e harassment. Nonetheless, the district court refused to consider evidence offe red to show ABMK knew or should have known sexual harassment was rampant thr oughout the company, thereby giving it constructive notice.

Title VII adopts ordinary tort principl es of negligence in evaluating employer liability for sexual hara ssment, Engel v. Rapid City School District , 506 F.3d 1118, 1123 (8th Cir. 2007), and an employer may be negligent although it did not have actual notice if it reasonably should have an ticipated the harassment, i.e., if it had constructive notice. Here, ABMK exer cised reasonable care to prevent sexually harassing behavior by establishing an anti-harassment policy and reporting procedures, Burlington Industries, Inc. v. Ellerth , 524 U.S. 742 (1998) and Faragher-22- v. City of Boca Raton , 524 U.S. 775 (1998) (setting forth the Ellerth/Faragher affirmative defense), but plaintiffs allegeit was aware of nearly one hundred similar complaints made during the time plaintiffs were employed. Thus, they argue ABMK had constructive notice of rampant se xual harassment by on-site supervisors.

An employer has actual notice of harassm ent when sufficient information either comes to the attention of someone who has the power to terminat e the harassment, or it comes to someone who can reasonably be e xpected to report or refer a complaint to someone who can put an end to it. Young v. Bayer Corp. , 123 F.3d 672, 674 (7th Cir. 1999). "[A]ctual notice is such notice as is positively proved to have been given to a party directly and personally, or such as he is presumed to have received personally because the evidence within his knowledge was sufficient to put him upon inquiry ." Black's Law Dictionary 1061-62 (6th ed. 1990) (emphasis added). In the context of sexual harassment claims, "[a] ctual notice is established by proof that management knew of the harassment." Watson v. Blue Circle, Inc. , 324 F.3d 1252, 1259 (11th Cir. 2003) (emphasis added). Whereas, constructive notice "is established when the harassment was so severe and perv asive that management reasonably should have known of it." Id. (emphasis a dded); see also Martin v. Wal-Mart Stores, Inc. , 183 F.3d 770, 772 (8th Cir. 1999) (noting an empl oyer is deemed to have actual notice of a dangerous condition if an employee cr eated or was aware of the hazard). "Constructive notice . . . is established when the harassment was so severe and pervasive that management reasonabl y should have known of it." Watson , 324 F.3d at 1259. "[A]n employer may be charged with constructive know ledge of previous sexual harassment . . . if the harassment was so broad in scope, and so permeated the workplace, that it must have come to the atte ntion of someone authorized to do something about it ." Fall v. Ind. Univ. Bd. of Tr. , 12 F. Supp. 2d 870, 882 (N.D. Ind. 1998) (emphasis added) (citations omitted).

[T]here can be constructive notice in two situations: where an employee provides management level personnel with enough information to raise-23- a probability of sexual harassment in the mind of a reasonable employer, or where the harassment is so pe rvasive and open that a reasonable employer would have had to be aware of it.

. . . [T]hese standards strike the correct balance between protecting the rights of the employee and the employer by faulting the employer for turning a blind eye to overt signs of harassm ent but not requiring it to attain a level of omniscience, in the absence of actual notice . . . .

Kunin v. Sears Roebuck and Co. , 175 F.3d 289, 294 (3d Cir. 1999).

Here, the district court refused to cons ider evidence of other sexual harassment claims, concluding it was barred by Eighth Circuit precedent limiting a plaintiff's evidence in sexual harassment/hostile workpl ace cases to instances of harassment of which a plaintiff is aware. A plainti ff, however, is not limited to offering such evidence only to prove the subjective co mponent of a sexual harassment claim. Irrespective of whether a plaintiff was awar e of the other incidents, the evidence is highly probative of the type of workplace environment she was subjected to, and whether a reasonable employer should ha ve discovered the sexual harassment.

When judging the severity and pervas iveness of workplace sexual harassment, this court has long held harassment dir ected towards other female employees is relevant and must be considered. See Hall v. Gus Constr. Co. , 842 F.2d 1010, 1014- 15 (8th Cir. 1988) ("We also reject appellants' contention that the district court erroneously considered all of the women's claims together in determining that the harassment was sufficiently pervasive and seve re . . . ."). In Williams v. Conagra Poultry Co. , 378 F.3d 790, 793-94 (8th Cir. 2004), th e court discussed the distinction between evidence offered to prove the substance of a plaintiff's hostile work environment claim versus evidence offered to prove the severity and pervasiveness of harassment in the workplace. In Williams , the plaintiff (Williams) offered the testimony of several co-worke rs detailing a host of racially motivated harassment that-24- occurred during his employment at Conagra's plant. Id. at 793. Conagra objected because Williams conceded he was unaw are of the incidents, and according to Conagra, the evidence could not be us ed to prove Williams found the workplace subjectively hostile. Id. at 794. This court, recogni zing the evidence was irrelevant to Williams's subjective perceptions of his workplace, nonetheless found the evidence highly relevant to prove, among other things, the type of workplace environment to which Williams was subjected. Id.

Accordingly, we conclude the district court erred in disregarding the evidence of widespread sexual harassment. Though th e evidence cannot be used to prove the timely plaintiffs found their workplace subjectively hostile, it is highly relevant to prove the sexual harassment was severeand pervasive and that ABMK had constructive notice.

III

To summarize: We affirm the district court's holding as to the motion to amend the complaint to add ABMK was untimely. We also affirm the district court's dismissal of the timely plaintiffs' retaliation, sex discrimination, and quid pro quo sexual harassment claims, and its dismissal of Garcia's hostile workplace claim. We reverse the district court's holding as to th ere being no genuine issue of material fact as to whether ABMI and ABMK acted as an integrated enterprise and remand for further proceedings consistent with this opinion. Finally, we reverse and remand the district court's dismissal of Laureano's and Giron's hostile workplace claims, with instructions to consider the appellants' evidence of widespread sexual harassment.

GRUENDER, Circuit Judge, concurring in part and dissenting in part.

Because I would affirm the district court’s grant of summary judgment to ABMK in all respects, I concur in part and dissent in part. I concur in Parts I and II.A3 While I would find that Brown v. Fred’s Inc. , 494 F.3d 736, 739 (8th Cir. 2007), creates a “strong presumption” against finding that a parent company is the employer of its subsidiary’s employees a nd a distinct standard for determining integrated enterprise status, I note that wh en faced with two di vergent lines of cases within a circuit, we may choose which line to follow, see Kostelec v. State Farm Fire & Cas. Co. , 64 F.3d 1220, 1228 n.8 (8th Cir. 1995). Accordingly, for the purposes of this dissent I will assume th at the Court may choose to follow Baker . Nevertheless, I am not convinced by the Court’s discussi on of Congress’s decision to incorporate the four-factor test for United States citizens employed in a foreign country. See ante at 8-10. If Congress had wished to inco rporate this test fo r companies operating within the United States, it could have done so. In fact, we may presume that Congress did not intend this test to appl y to companies operating within the United States. See BFP v. Resolution Trust Corp. , 511 U.S. 531, 537 (1994) (“[I]t is generally presumed that Congress acts in tentionally and purposely when it includes particular language in one section of a statute but omits it in another.”).

-25- of the Court’s opinion. I also agree with the Court’s determination in Part II.B that under the four-factor test set out in Baker v. Stuart Broadcasting Co. , 560 F.2d 389, 392 (8th Cir. 1977), there is a material ques tion of fact with respect to whether ABMI and ABMK are an integrated enterprise. 3 I also concur in the Court’s holding in Part II.C that the district court properly gran ted summary judgment dismissing Garcia’s, Laureano’s, and Giron’s retaliation, se x discrimination, and quid pro quo sexual harassment claims and Garcia’s hostile work environment claim. No matter what job title the alleged harassers may have claimed, no reasonabl e factfinder could find that they were in fact supervisors because they had no authority to take tangible employment actions agai nst the victims. See Joens v. John Morrell & Co. , 354 F.3d 938, 940 (8th Cir. 2004) (noting that the major ity of circuits that have addressed the question have found that a supervisor is onewith power “to take tangible employment action against the victim, such as the authority to hire, fire, promote, or reassign to significantly different duties”); Noviello v. City of Boston , 398 F.3d 76, 95 (1st Cir. 2005) (“[C]ourts must distinguish employees who are supervisors merely as a function of nomenclature from those who are entrusted with actual supervisory powers.” (internal quotation omitted)).-26- While I agree with the Court that “the pl aintiffs’ complaints to their supervisors were insufficient to put ABMK on notice of the harassment,” ante at 21, I respectfully dissent from the Court’s decision to reverse and remand the district court’s dismissal of Laureano’s and Giron’s hostile work envir onment claims. As the Court notes, “[t]o establish a prima facie case of hostile work environment sexual harassment by nonsupervisory co-workers, [Laureano and Gir on] must . . . estab lish that ABMK knew or should have known of the harassment and failed to takeprompt remedial action.”
Ante at 20-21 (citing Meriwether v. Caraustar Packaging Co. , 326 F.3d 990, 993 (8th Cir. 2003)). I would hold that Laureano and Giron have failed to establish that ABMK had actual or constructive notice of the harassment.

The Court holds that it was error for the district court to disregard the evidence of “nearly one hundred similar complaints during the time plaintiffs were employed,” concluding that ABMK should have known of the “rampant sexual harassment by onsite supervisors.” Ante at 22. The Court does not find that this evidence created a material question of fact with respect to whether ABMK had constructive notice of the harassment, only that the district court erred by disregarding this evidence. However, the Court ignores the fact thatLaureano and Giron’s proffered evidence in this regard involved numerous sexual harassment complaints concerning different victims and different employees at differe nt locations. ABMK has approximately 400 locations at which it provides janitorial services in Minnesota, including office buildings throughout Minneapolis and St. Paul . In their opening brief, the appellants state that during the period of harassment atleast 85 other employees reported similar treatment by the appellants’ a lleged harassers “or other firs t-line supervisors” and list numerous citations to the record that purportedly support this claim. However, a thorough review of these citations rev eals only one instance in which a coworker alleged that she was harasse d by Laureano’s or Giron’s alleged harassers, and even that instance does not support their claim th at ABMK knew of the harassment. In an affidavit, Marlene Jiron states that sh e was harassed by Gir on’s alleged harasser. However, in that affidavit, Jiron also exp licitly states that she did “not report[] the-27- supervisor to the manager.” Thus, there is nothing in the record to suggest that ABMK had notice of harassment committe d by Laureano’s or Giron’s alleged harassers. Moreover, there is nothing in the record supporting a claim that ABMK had any notice of harassment occurring at the locations where Laureano and Giron worked.

The Court cites no authority for the proposition that an employer may have constructive notice of harassment by employ ees at one location based on harassment of other victims by different employees ata different location. While we have previously acknowledged that a court may c onsider evidence of harassment of which the plaintiff was not aware, see Williams v. ConAgra Poultry Co. , 378 F.3d 790, 793- 94 (8th Cir. 2004), the evidence in Williams was admitted in furtherance of the plaintiff’s claims that the harassment was se vere or pervasive, not to demonstrate that the employer had constructive notice of harassment suffered by one employee based on harassment suffered by a different employee at a different location, id . at 794. Here, the Court endorses Laur eano and Giron’s effort to use evidence of harassment at other locations committed by other employees against other victims to establish that ABMK had constructive notice of the hara ssment they suffered. Such a holding undermines the whole notion of constructive notice. For example, under the Court’s theory, an employer could be held to ha ve constructive notice of sexual harassment in a warehouse in Missouri based on co mplaints of sexual harassment in its headquarters in Florida. Under this theory , the employer that had notice of harassment at its headquarters “should have anticip ated” harassment at its warehouse. See ante at 22.

Because I do not agree that an employer should be held to have constructive notice based on harassment committed by different employees and occurring at different locations, I respectfully dissent on this point. I would find instead that the district court did not err when it refuse d to consider the proffered evidence of harassment at different locations involvi ng different employees with respect to-28- constructive notice. In the absence of a ny other evidence that ABMK knew or should have known of the harassmen t alleged by Laur eano and Giron and failed to take prompt remedial action, I would affirm the district court’s grant of summary judgment to ABMK on Laureano’s and Giron’s hostile work environment claim as well.

Accordingly, because I agree with Part s I and II.A of the Court’s opinion, and because I would find that summary j udgment was appropriate for Garcia’s, Laureano’s, and Giron’s claims of retaliation, sex discriminati on, quid pro quo sexual harassment, and hostile work environment, I would affirm the district court’s grant of summary judgment to ABMK in all respects.

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