2012 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

5-31-2012 

# M a r k V it ali s v . S un C ons tr uc t ors I nc
P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al
D ock e t N o . 10-1698

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w . v i l l a no v a . e du/thir dc ir c uit_2012

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 2012 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w . v i l l a no v a . e du

. R e c omme nde d C it a t ion

" M a rk V it al i s v . S un C on s tr uct or s I nc " (2012). 2012 D e cisio n s . P a pe r 920. h tt p://d i g it alc ommon s .l a

w . v i l l a no v a . e du/thir dc ir c uit_2012/920NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________

No. 10

- 1698

_____________ MARK VITALIS, Appellant v. SUN CONSTRUCTORS , INC

. ; HOVENSA LLC; RICHARD LANGNER; EXCEL GROUP , INC

.

______________ APPEAL FROM THE DISTRICT COURT FOR THE VIRGIN ISLANDS (D.C. Civ. Action No

. 05

- 101 ) District Judge: Honorable Timothy J. Savage

______________ Argued December 6 , 2011

______________ Before: FISHER, GREENAWAY, JR., and ROTH , Circuit Judge s . (Opinion Filed: May 31, 2012 )

______________ OPINION

______________ Lee J. Rohn , Esquire (argued) Lee J. Rohn & Associates 1101 King Street Christiansted, VI 00820 Counsel for A ppellant David J. Cattie, Esquire (argued) Charles E. Engeman, Esqui re Ogletree, Deakins, Nash, Smoak & Stewart2 1336 Beltjen Road Suite 201 St. Thomas, VI 00802 Counsel for A ppellees Sun Constructors, Richard Langner and Excel Group, Inc. Linda J. Blair, Esquire (argued) Bryant, Barnes, Beckstedt & Blair 1134 King St reet, 2nd Floor P.O. Box 224589 Christiansted, St. Croix, VI 00820 Co unsel for Appellee HOVENSA LLC

GREENAWAY, JR., Circuit Judge

. Mark Vitalis (“Vitalis”) seeks review of several orders issued by the District Court in connection with his employment discrimination case. 1

I. Background For the reasons set forth below, we will affirm the District Court ’s orders in all respects.

We write primarily for the benefit of the parties and recount only the essential facts.
In the fal l of 2004, Vitalis was working as a carpenter for Plant Performance Services (“ P2S ”) , a contractor performing work at the oil refinery owned and operated by HOVENSA, LLC. He learned that Sun Constructors Inc. (“Sun”) would soon be

1 Vitalis’s Notice of Appeal lists 18 orders and/or issues, and his concise statement of the case attached 23 orders for which he sought review. However, his opening brief challenges only six points, set forth in detail, infra

. “ It is well settled that an appellant’ s failure to identify or argue an issue in his opening brief constitutes waiver of that issue on appeal. ” United States v. Pelullo , 399 F.3d 197, 222 (3d Cir. 2005). Therefore, we will address only the six issues dis cussed in Vitalis’s brief.3 assuming responsibility for P2S’s contract with HOVENSA, and that his position with P2S would no longer exist. Should he wish to continue to work at the oil refinery, he would have to apply to Sun for a position. On December 5, 2004, the day after he was terminated from his pos ition with P2S, Vitalis went to the Virgin Islands Department of Labor (“VIDOL”) looking for vacancy postings from Sun, but there were none. 2

On December 29, 2004, Vitalis saw a vacancy post ed at VIDOL for a carpenter position with Sun. Vitalis, among others, receiv ed a referral for this position, and went to Langner to apply. Vitalis took and passed a drug test, as well as a reading test. Having found no job vacancies posted at VIDOL, Vitalis went to Sun to speak with Richard “Doc” Langner (“Langner” ) , Sun’s Human Resources Manager , about available vacancies. Langner told Vitalis that no positions were currently available.

3

2 Virgin Islands law requires employers to notify VIDOL of job vacancies. VIDOL will attempt to fill the positions by referring qualified individuals who have registered with VIDOL. If no qualified individuals have register ed with VIDOL, VIDOL will assist the employer by publicizing the vacancy with local labor unions, in local media, and any other means VIDOL determines to be feasible. 24 V.I.C. § 128. Langner hired Vitalis, and provided him with a list of tools he needed to bring with him to work. Vitalis claims that when he questioned Langner as to how he would be able to bring his tools into the refinery, Langner replied that he would check on this and get back to Vitalis. Langner asserts that he did not say anything about getting back to Vitalis, but rather assured Vitali s that he (Langner) would arrange for Vitalis to bring the tools into

3 These tests are required for safety reasons at the refinery, since workers need to be able to read the warning signs for their protection and the protection of others.4 the refinery. On January 4, 2005, Langner called Vitalis at 7:00 a.m. to inform him that his “Right to Know” orientation would begin at 8:00 a.m. Vitalis completed the orientation,

r eceived his security badge, and reported to Langner, without any of the tools on the list. Langner fired Vitalis for not bring ing his tools to work. Vitalis filed this lawsuit, asserting claims of discrimination under 42 U.S.C. § 2000e , 42 U.S.C. § 198 1, and 10 V.I.C. §§ 1

- 10 & 6 4 ; 4

The District Court granted HOVENSA’s motion for summary judgment concluding that Vitalis failed to show that HO V ENSA and Sun were joint employers, and that Sun had sole au thority to hire and fire Vitalis. The District Court also granted Excel’s and Langner’s motions for summary judgment in their entirety, and Sun’s motion for summary judgment as to the claims for intentional infliction of emotional distress and punitive da mages. The remaining claims were tried to a jury . Ultimately, the jury found that Sun hired Vitalis ; and that race, color, and national origin were not determinative factors in Sun’s de cision to terminate Vitalis. Vitalis filed a timely notice of appeal

. breach of contract to hire; and intentional infliction of emotional distress . Vitalis also seeks punitive damages against HOVENSA, Sun, Excel Group, Inc. (“Excel”), Merit Electrical and Instrumentation of Louisiana, Inc. (“ Merit”), and Langner. Vitalis voluntarily dismissed the complaint against Merit.

4 The complaint cites to 10 V.I.C. § 62 et seq. However, the relevant statutory section is 10 V.I.C. § 64.5 The six issues that are preserved for our review are whether : 1. The District Court erroneously reframed Vitalis ’s claim of national origin discrimination

. 2. The District Court erred in charging the jury on causation by using an instruction on pr etext rather than a mixed motive theory

. 3. The District Judge’s hostility towards Vitalis’s counsel , as evidenced by the District Judge’s demeaning comments throughout trial, deprived Vitalis of a fair trial

. 4. The District Court erred in several of it s in limine rulings.
5. The District Court erred in denying V italis’s discovery request regarding Sun’s hiring of carpenter supervisors.
6. The District Court erred in its summary judgment rulings when it found that: (a) HOVENSA and Sun were not joint em ployers; (b) Excel and Sun were not substantively consolidated; and (c) punitive damages were not warranted.
II. Jurisdiction The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367 and 48 U.S.C. § 1612(a) . W e have jurisdiction pursua nt to 28 U.S.C. § 1291. III. Analysis A. National Origin Discrimination Title VII makes it unlawful “ to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employm ent, because of such individual’ s ra ce, color, religion, sex, or national origin .” 42 U.S.C. § 2000e

- 2(a)(1).6 Similarly, the Virgin Islands Code prohibits an employer from “refus[ing] to hire or employ or to bar or to discharge from employment [an] individual or to discriminate against [an ] individual in compensation or in terms, conditions or privileges of employment ,” based on the “ age, race, creed, color, national origin, place of birth, sex and/ o r political affiliation of any individual.” 10 V.I.C. § 64(1)(a). Vitalis argues that the District Court erroneously interpreted the federal and territorial statutes on discrimination . As a result, Vitalis claims that the District Court’s rulings denied him the opportunity to argue that Sun discriminated against b lack West Indians based on the ir national origin. In making this argument , Vitalis engages in revisionist history. Admittedly, his Second Amended Complaint alleges that he was discriminated against because he was a “black West Indian.” (App. 59.) Further, his Amended Pretrial Mem orandum references discrimination against “local West Indian, black workers.” (App. 87.) Unfortunately for Vitalis, he did not carry these arguments through to his oral pre sentatio n to the District
Court

. The trial transcript is replete with Vitalis’s argument that Su n discriminated against “locals ” or “local Virgin Islanders.” ( See , e.g. , App. 932, 936, 943, 945, 958, 968.) Rarely during the pretrial and trial proceedings did Vitalis modify “local” or “local Virgin Islander” with the description of “black.” In fact, the District Court did not prohibit Vitalis from alleging that b lack West Indians constitute d a protected group based on their national origin or race
. (App. 926

- 32.) Rather, the District Court prevented7 Vitalis from arguing that “loca ls” or “local Virgin Islanders” constitute d a protected group based on their race or national origin. Our review of the District Court ’ s legal interpretation of a statute is plenary

. Parker v. Conway , 581 F.3d 198, 201 (3d Cir. 2009). “ We exercise ple nary review over legal questions and review fa ctual findings for clear error.” McCauley v. Univ. of the Virgin Islands , 618 F.3d 232, 239 n.7 (3d Cir. 2010). “National origin” usually “refers to the country where a person was born, or, more broadly, th e country from which his or her ancestors came.” In some cases, however, courts have been willing to expand the concept of “national origin” to include claims from persons such as cajuns or serbs based upon the unique historical, political and/or social c ircumstances of a given region. Storey v. Burns Int’l Sec

. Servs. , 390 F.3d 760, 762 n.3 (3d Cir. 2004) ( quoting Espinoza v. Farah Mfg. Co., Inc. , 414 U.S. 86, 88 (1973))

. Applying this definition of “national origin” to the present case, w e agree with the District Court’s conclusion that local residents of St. Croix do not constitute a protected class based on their national origin. No evidence demonstrate d that all of the local residents of St. Croix share a “unique historical, political and/or social circumstance[].” Vitalis’s argument that the District Court should treat all “locals” as b lack West Indians and all “state

- siders” as w hites is not supported by the record. For example,8 Labor Commissio ner Cecil Benjamin testified regarding his definit ion of “ locals. ” 5

As the District Court observed when ruling that Commissioner Benjamin could not testify before the jury , “[h]e has made it very clear that the posting r equirement is to assure that locals were given an equal opportunity to apply for jobs. And he defines locals [as] including all nationalities, color, all peoples.” (App. 248.) Even Vitalis’s counsel acknowledged to the Court that locals included “Virgin Islanders, regardless of race, color, national origin. ” (App. 969.) He stated “ How do I define locals? That’s very simple. Local people, basically fol ks who have resided in this territory whether they’re born here or not. They reside in this territory, pay taxes for a number of years, made tremendous contributions to this community. Those are locals. ” (App. 229.) This description may not reasonably be interpreted to imply that “locals” has a particular or sui generis focus on blacks or black West Indians. In fact, Commissioner Benjamin acknowledged that anyone could register with VIDOL, including “West Indians, Continentals, Cruzans.” (App. 238.)

6

Additionally, evidence in the record showed that some of the state

- siders a re in fact b lack West Indians. For example, both Myron Reynolds and Kidd Joseph a re b lack Obviously, counsel’s statements are irrelevant except to show that she has essentially conceded this point.

5 Commissioner Benjamin was allowed to testif y before the District Court out of the presence of the jury to provide a proffer of his testimony. As discussed later, the District Court ruled to exclude Commissioner Benjamin’s testimony.

6 She qualified this broad statement by noting that “we are pred ominantly a black community.” (App. 969.)9 West Indian state

- siders hired by Sun

. We have found no evidence in the record to support Vitalis’s claim that, since the majori ty of the local residents a re b lack West Indians, all loc als should be considered to be b lack West Indians. Further, we have found no place in the record where Vitalis was denied the opportunity to argue that he was discrimi nated against because he was a b lack West Indian. Only when his counsel strayed from this argument into the factually unsupported references to locals, did the District Court exclude testimony or evidence, or restrict counsel’s arguments. Thus, there is no basis to conclude that the District Court erred. We will aff irm the District Court in its national origin discrimination ruling. B. Jury Instruction In connection with his discrimination claim, Vitalis argues that the District Court erred by giving a pretext instruction rather than a mixed

- motive instruction

. Vitalis asks this panel to conclude that the Supreme Court’s decision in Desert Palace , Inc. v. Costa , 539 U.S. 90, 101 (2003) overruled prior Third Circuit precedent. The Third Circuit has already ruled that Desert Palace did not eviscerate the distincti on between mixed

- motive and pretext employment discrimination cases. Makky v. Chertoff , 541 F.3d 205, 213

- 15 (3d Cir. 2008) (“A Title VII plaintiff may state a claim for discrimination under either the pretext theory set forth in McDonnell

- Douglas Corp. v . Green , 411 U.S. 792 (1973), or the mixed

- motive theory set forth in Price Waterhouse v. Hopkins , 490 U.S . 228 (1989), under which a plaintiff may show that an employment decision was made based on both legit imate and illegitimate reasons.”).10 Since Vital is objected to the jury instruction below, we “exercise plenary review to determine whether the instruction misstated applicable law.” Collins v. Alco Parking Corp. , 448 F.3d 652, 655 (3 d Cir. 2006) ( quoting Franklin Prescriptions, Inc. v. New York Times C o. , 424 F.3d 336, 338

- 39 (3d Cir. 2005)). In his proposed jury instructions, Vitalis submitted a mixed

- motive jury instruction for proving ca usation in his Title VII claim. The Court, instead, gave a pretext (or “determinative factor”) instruction based on t he Model Civil Jury Inst ructions for the Third Circuit. As described i n the model instructions, if plaintiff can “show that the defendant’s activity was motivated at least in part by animus toward a protected class . . . a ‘mixed

- motive’ instruction is warranted.” Model Civil Jury Instructions 5.1.1
comment. T he pretext instruction, on the other hand, requires that the pl aintiff’s protected status be “a determinative factor” in the defendant’s decision. Id. at 5.1.2. Throughout this case, Vitali s based his argument s on a pretext theory; nowhere did he argue a mixed

- motive theory. He consistent ly argued that Sun’s only reason for terminating him was due to his protected status. ( See , e.g. , App. 938

- 39.) There is no basis in the record for a mix ed

- motive instruction. T he District Court did not err in instructing the jury on pretext only

. C. District Judge’s Hostility 7 Vitalis argues that the District Judge exhibited bias towards him and his counsel ,11 thus unduly influencing the jury and depriv ing him of a fair trial

. We find that there are no instances in which the District Judge acted improperly or in which his actions could be inferred to be improper. There is no error here. We have determined that “[N]o person [may] be deprived of his interests in the absence of a proceeding in which he may present his case with assurance that the arbiter is not predisposed to find against him.” That assurance is absent

- and judicial conduct improper

- whenever a judge appears biased, even if she actually is not biased. Wang v. Att’y Gen. , 423 F.3d 260, 269 (3d Cir. 2005) (quoting Marshall v. Jerrico, Inc. , 446 U.S. 238, 242 (1980))

. Essentially , “justice must satisfy the appearance of justice.” Offutt v. United States , 348 U.S. 11, 1 4 (1954 )

. We have developed a four

- factor test to apply in evaluating whether or not a trial judge has violated these precepts. In United States v. Olgin , 745 F.2d 263 (3d Cir. 1984), we set out the appropriate analysis to apply in assessing the propriety of a trial judge ’ s comments before the jury. We explained that “[t]here is no bright line separating remarks that are appropriate from remarks that may unduly influence a jury

. ” Id. at 268. This analysis requires a balancing of the following four factors: (1) the materi ality of the comment, (2) its emphatic or overbearing nature, (3) the efficacy of any curative instruction, and (4) the prejudicial effect of the comment in light of the jury instruction as

7 To the extent that Vitalis attempts to obtain an advisory opinion on the recusal motion that was filed with the District Court, we decline to express any opinion on that matter.12 a whole. Id. at 268

- 69. Vitalis points to various comments made by the District Judge during his testimony, Derrick Hanley’s testimony, and Abdul Ali’s testimony 8

Given the lack of the appearance of bias in these comments, the Olgin factors are not satisfied. There is no error. as instances wh ere impropriety requir es reversal. However, n one of t he judge’s comments indicate or imply bias again st Vitalis. Although the District Judge was at times emphatic with Vitalis’s counsel, he was never disparaging. In fact, the D istrict J udge ’s admonishment to all counsel that “I’m going to caution both of you now, stop the reactions to a judge, please. It serves you poorly , ” displays an appro priate equanimity. (App. 943

- 44.)

D. In Limine Rulings Vitalis argues that the District Court impermissibly converted Sun’s in limi ne motions into motions for summary judgment. As a result of this impermissible conversion, according to Vitalis, much of his relevant evidence was erroneously excluded. We disagree. In support of his argument, Vitalis attempts to conflate two distinct legal principles

— summary judgment and in limine motions. There is no support in the record

8 We note that Vitalis assert s that the District Judge repeatedly interrupted his counsel during her opening statement as yet another example of the District Judge’s bias. The transcript reveals that the interruptions to the opening were caused by opposing counsel, who objected repea tedly to Vitalis’s counsel’s opening statement. The District Judge simply ruled on these objections.13 for this argument, since the in limine motions about which Vitalis complains all involve evidentiary, rather than dispositive, issues. We are unable to engage in the mental gymnastics required to combine these principles, and will therefore address the in limine motions as exactly what they are. We review the District Court’ s ruling to admit evidence for abuse of discretion. Renda v. King , 347 F.3d 550, 553 (3d Cir. 2003) (“ While District Court interpretations of the Federal Rules of Evidence are subject to plenary review, rulings to admit or exclude evidence are reviewed for an abuse of discretion if they are based on a permissible interpretation of the Federal Rules of Evidence. ”)

. Under this deferential standard, we will not disturb the District Court’ s exercise of discretion unless there is a clear error or “no reasonable person would adopt the district court’ s view.” Oddi v. Ford Motor Co. , 234 F.3d 136, 1 46 (3d Cir. 2000) (citation omitted). Unless otherwise barred, relevant evidence is admissible, and relevant evidence is any evidence that tends to make a consequential fact more or less probable. See F ED

. R

. E VID

. 401, 402 & 403. Vitalis challenges the following in limine rulings.
1. The District Court ruled that Vitalis could not introduce evidence about per diem or other benefits received exclusively by state

- side employees

. 9

9 In addition to her efforts to use “state

- side” as shorthand for all white workers, Vitalis’s counsel used the term “state

- side” to describe employees whose main domicile was on the mainland. The District Court did not object to the use of this term as a geographic designation. Th e District Court determined that, given its ruling regarding national o rigin, as well as the fact that s tate

-14 side employees received the per diem and benefits regardless o f race, nationality, or color , any discussion of these benefits was not relevant

. 2. The District Court p reclude d the testimony of Derrick Hanley , a car penter at Sun. The District Court found that Mr. Hanley’s testimony was not relevant to Vitalis’ s claim of discrimination because Mr. Hanley was fired for refusing to perform an assigned job

. Specifically , Mr. Hanley refused to use a stamping machine , si nce using the machine was, in his mind, laborer’s work and not the carpenter’s work he had been hired to conduct.
3. The District Court p reclude d the testimony of William Barwick’s use of racial epithets

. Mr. Barwick was hired as a carpenter

. 10

4. The District Court p reclude d testimony ab out Excel’s and HOVENSA’s involvement in Sun’s hiring process because summary judgment , by this point in time, had been granted in favor of Excel and HOVENSA. Given that neither company remained a party to the case, the testimony was no longer relevant. The Co urt determined that Mr. Barwick had no influence on the decision to fire Vitalis and , since Vitalis had made no hostile work environment claim , whether Mr. Barwick used an unfortunate epithet was not relevant

.

5. The District Court p reclude d testimony from a group of witnesses. Vitalis

10 In his affidavit, Mr. Barwick states he was hired as a carpenter. (App. 2099.) According to Vitalis’s pretrial memorandu m, Mr. Barwick, after being hired as a carpenter, was promoted to carpenter foreman at an unspecified time. (App. 90.)15 challenges the exclusion of only four individuals: Clinton Mathurin; Bertril Williams;
Al f red James; and James Duparl. Vitalis argues that there was a permissible basis for

ea ch of the witnesses to testify at trial. When Vitalis sought to call Mr. Mathurin during trial, Sun objected based on Vitalis’s failure to disclose the witness during discovery. After offering a proffer of Mr. Mathurin’s testimony, counsel for Vitalis ad mitted that Mr. Mathurin had not been identified previously. ( App. 451 , 531 .) Based on this admitted non

- disclosure, the District Court excluded Mr. Mathurin’s testimony. Similarly, counsel for Vitalis acknowledged that Mr. Williams had also not been di sclosed during discovery . Here, Vitalis argued that discovery responses would not have yielded Mr. Williams

. (App.
45 3

- 5 5

. ) The District Court excluded his testimo ny based on the non

- disclosure. Counsel for Vitalis also admitted that Mr. James was no t disclosed in response to the interrogatories (App. 520), and that his contact information was not provided to opposing counsel (App. 519). Contact information for Mr. Duparl, who was identified in a deposition, similarly was never provided to opposing c ounsel. (App. 528.) The District Court excluded Mr. James and Mr. Duparl based on Vitalis’s counsel’s failure to pr ovide contact information , as requested by opposing counsel. Having carefully reviewed the record, w e find no abuse of discretion in any of these decision s
. E. Denial of Discovery Vitalis argues that he had “requested discovery regarding individuals whom Sun16 had hired into carpenter

- supervisor positions , ” but that Sun had refused. (Appellant’s Br. 89.) The Magistrate Judge had ruled on this discovery request, finding that Sun had complied. Vitalis did not appeal that decision to the District Judge. Sun filed an in limine motion seeking to prevent Vitalis from introducing evidence that Sun did not post vacancies with VIDOL. Sun asser ted that Vitalis admitted to seei ng the vacancy posting at VIDOL and that Vitalis’s witness, Abdul Ali, D irector of job services at VIDOL, testified during his deposition that Sun posted jobs with VIDOL. During the final pretrial conference , the District Court denied Sun ’s in limine motion.
Sun then informed the District Court of the existence of a letter from Mr. Ali confirming that Sun had posted 27 jobs with VIDOL in 2004 and 2005. (App. 1015.) Vitalis objected to the late disclosure of this letter and list, claiming that it should have been disclosed in response to the discovery request for carpenter

- supervisor positions. (App. 1015

- 18.) At the hearing, V italis’s counsel observed that “we’re claiming they didn’t post carpenter positions, all of t hese are electricians, welders, fabricators.” ( Id. at 1017

- 18.) The District Court noted that the letter could be used to impeach Mr. Ali’s testimony, and that Vitalis’s counsel had a preview of the impeachment evidence. Vitalis ’s objection is witho ut merit. Vitalis cannot successfully argue that the list of positions was not produced in contra vention of a discovery request. The list at issue is not responsive to Vitalis’s discovery request for a list of carpenter

- supervisor positions. More import ant, the District Court constricted Sun’s use of the list to impeachment only. There is no basis to c onclude that the District Court’s decision on the in limine motion is17 an abuse of discretion

. 11 F. Summary Judgment Motions Vitalis challenges the Dis trict Court’s decision granting summary judgment to
HOVENSA and Excel, and granting summary judgment to all defendants on the issue of punitive damages. Although the District Court’s reasoning is difficult to discern based on the absence of a written opin ion or a transcript of a hearing, the applicable standard remains the same. We review the District Court’ s order granting summary judgment de

novo. Azur v. Chase Bank, USA, Nat’ l Ass ’ n , 601 F.3d 212, 216 (3d Cir. 2010). “ To that end, we are ‘ required to apply the same test the district court should have utilized initially. ’ ” Chambers ex rel. Chambers v. Sch. Dist. of Phila. Bd. of Educ. , 587 F.3d 176, 181 (3d Cir. 2009) ( quoting Oritani Sav. & Loan Ass’ n v. Fidelity & Deposit Co. of Md. , 989 F.2d 635, 63 7 (3d Cir.1993) ). Summary judgment is appropriate “ where the pleadings, depositions, answers to interrogatories, admissions, and affidavits show there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of la w. ” Azur , 601 F.3d at 216 (quoting Nicini v. Morra , 212 F.3d 798, 805

- 06 ( 3d Cir. 2000) (en banc) (citing F ED

. R. C IV

. P. 56(c))). 12

11 To the extent Vitalis challenges the Magistrate Judge’s decision on the original discovery dispute, appeal from that decision is unav ailable before this Court at this time because the challenge was not properly preserved. 28 U.S.C. § 636(b). To be material, a fact must have the potential to alter the outcome of

12 F ED

. R. C IV

. P. 56 was revised in 2010. The standard previously set forth in subsection (c) is now codified as subsection (a). The language of this subsection is18 the case. See Kaucher v. Cnty. of Bucks , 455 F.3d 418, 423 (3d Cir. 2006). “ Once the moving party points to evidence demonstrating no issue of material fact exists, the non

moving party has the duty to set forth specific facts showing that a genuine issue of material fact exists and that a reasonable fac tfinder could rule in its favor. ” Azur , 601 F.3d at 216. In determining whether summary judgment is warranted “ [t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor. ” A nderson v. Liberty Lobby, In c. , 477 U.S. 242, 255 (1986); Chambers ex rel. Chambers , 587 F.3d at 181. “ Further, [w]e may affirm the District Court = s order granting summary judgment on any grounds supported by the record. ” Kossler v. Cristani , 564 F.3d 181, 186 (3d Cir. 2009) (en ba nc)

. i. HOVENSA HOVENSA moved for summary judgment, arguing , inter alia , that it was never Vitalis’s employer or prospective employer, and that it was not Vitalis’s joint employer with Sun. Vitalis opposed the motion, claiming that HOVENSA had significan t control
over Sun. The District Court granted the motion, concluding that the contract upon which Vitalis relied did not cover his employment with Sun, and that the undisputed facts showed “that Sun had sole authority to hire and fire Vitalis , dictate hi s hours and pay, and

unchanged, except for “one word

— genuine ‘issue’ bec[ame] genuine ‘dispute.’” F ED

. R. C IV

. P. 56 advisory committee’s note, 2010 amend.19 otherwise supervise his employment.” 13 Vitalis argues that disputes as to material facts precluded the grant of summary judgment. However, there are no facts in dispute. Rather, the District Court was called upon to int erpret the terms of the contract, which is a purely legal question. The terms of the contract are clear

— Sun was an independent contractor and HOVENSA retained no control over any employment decisions. (App. 63 .)

In an effort to create a factual dispute, Vitalis points to § 3.4.3 of the contract. Rather than creating a factual dispute, interpreting t hat section , which only re quired Sun to submit to HOVENSA the names and qualifications of the pers ons filling four key positions, required legal analysis. Section 3 .4.3 simply requ ired notice from Sun to
HOVENSA. The contract explicitly states “ [t]he fact that such notification is required will not affect [Sun’s] status as an independent contractor under this Agreement.” (App. 1408.) HOVENSA possessed no control o ver the employment of the four individuals. Vitalis further argues that the contract’s requirement that Sun comply with applicable Virgin Islands labor laws demonstrates HOVENSA’s control over Sun’s employment decisions. It does not. Assuming this con tract governed the project for which Vitalis was hired, as he alleges , there is no provision in the contract indicating HOVENSA retained control over

13 Section 3.4.2 of the December 22, 2003 contract provides that “[i]n performing the work, [Sun ] is acting as an independent contractor and reserves the right to hire or discharge employees, designate the classification and hours of work for each employee and to supervise and control the manner of performance of the Work.” (App. 1408.)20 any of Sun’s employment procedures. 14

ii. Excel The District Court’s grant of summary judgment on this issue will be affirmed.

Excel moved for summary judgment on the theory that it and Sun were not an integrated enterprise. 15

The Third Circuit has articulated the integrated enterprise test as including the following factors: Vitalis opposed this motion, arguing that there were issues of material fact and that Excel was responsible for the actions of its su bsidiary, Sun. Both parties applied the “integrated enterprise test” in support of their arguments . The Di strict Court granted the motion in an order.

We too will consider a company and its affiliates a single employer under Title VII (1) when a company has split itself into entities with less than fifteen employees intending to evade Title VII's reach or (2) when a parent company has directed the su bsi diary’ s discriminatory act of which the plaintiff is complaining. However, on the third part of this disjunctive test, we articulate a slightly different standard from the Seventh Circuit. Rather than applying the test for veil piercing imported from the corporation law context (because individual shareholder liability is not implicated here), we will apply the factors courts use to determine when substantively to consolidate two or more entities in the bankruptcy context. When courts substantively conso lidate two entities, they treat the assets and liabilities of each as

14 Further, Vitalis himself testified that he worked for Sun, and not HOVENSA.

15 Excel, Sun, and Langner sought summary judgment on other grounds, but the only decision of the District Court that Vitalis challenges in his brief is the exclusion of Excel as a part y.21 belonging to a single entity.

. . . While these factors vary from circuit to circuit, the test at base seeks to determi ne whether two or more entities’ affairs are so interconnected tha t they collectively caused the alleged discriminatory employment practice.

. . . We adopt an intentionally open

- ended, equitable inquiry

- which we consider one of federal common law

- to determine when substantively to consolidate two entities. While in the bankruptcy context the inquiry focuses primari ly on financial entanglement, for Title VII the focus more often rests on the degree of operational entanglement

- whether operations of the companies are so united that nominal employees of one company are treated interchangeably with those of another. Relevant operational factors include (1) the degree of unity between the entities with respect to ownership, management (both directors and officers), and business functions ( e.g., hiring and personnel matte rs), (2) whether they present themselves as a single company such that third parties dealt with them as one unit, (3) whether a parent company covers the salaries, expenses, or losses of its subsidiary, and (4) whether one entity does business exclusively with the other. That is not to say that the consi derations showing financial entanglement are not relevant in Title VII cases; they assuredly are. Nesbit v. Gears Unltd., Inc. , 347 F.3d 72, 85

- 8 8 (3d Cir. 2003) (footnotes omitted)

. Here, there is no ev idence supporting any of these factors. Vitalis points to the common stock ownership of Excel and Sun, as well as the fact that Excel performs various administrative functions for Sun, including recruiting on the mainland. Notably, Sun pays Excel for the se administrative services. There is no evidence that Excel had any influence over the hiring decisions made by Sun. To the contrary, Sun had, on more than one occasion, rejected individuals recruited by Excel for positions in St. Croix.22 Additionally, E xcel had no office on St. Croix, and Sun had no office in Louisiana. Sun had contracted directly with HOVENSA for the project for which Vitalis was hired. Excel has never contracted with HOVENSA for any project. Excel had no input on the decision to hire and fire any of Sun’s employees, including Vitalis. As we concluded in Nesbit , “[i] n the absence of more significant operational entanglement, common ownership and de minimis coordination in hiring are insufficient bases to disregard the separate corpo rate forms .” Id. at 89. We will affirm the District Court’s grant of summary judgment on this basis. iii. Punitive Damages 16 Sun, Excel and Langner moved for summary judgment on Count V, which sought punitive damages, arguing that the acts complained of were not outrageous, or done with evil motive or reckless indifference to Vitalis’s civil rights. We have recognized that district courts can determine punitive damages claims on summary judgment. See

16 In his Second Amended Complaint, Vitalis sought punitive damages generally, never specifying whether he sought them under the federal or Virgin Islands statute. Federal law provides for the recovery of punitive damages “[i]n an action brought by a co mplaining party under [ 42 U.S.C.A. §§ 2000e

- 5 or 2000e

- 16] against a respondent who engaged in unlawful intentio nal discrimination . . . prohibited under [ 42 U.S.C.A. §§ 2000e

- 2, 2000e

- 3, or 2000e

- 16] provided that the complaining party cannot recover unde r section 1981 of this title.” 42 U.S.C. § 1981A (a) (1). Virgin Island s law allows for “punitive damages not to exceed $5,000 to be recovered in a civil actio n” for violations of any provision of the Virgin Islands Civil Right s Code. 10 V.I.C. § 7. We r eview the summary judgment decisions de novo , “applying the same standard as the District Court.” Pichler v. UNITE , 542 F.3d 380 , 385 (3d Cir. 2008) . A court may grant summary judgment only if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” F ED

. R. C IV

. P. 56(c).23 Pichler v. UNITE , 542 F.3d 380, 387 (3d Cir. 2008) (“If, on remand, the District Court determines that summary judgment is appropriate as to plaintiffs’ punitive damages claim, then a trial will be unnecessary.”); Cochetti v. Desmond , 572 F.2d 102, 103 (3d Cir. 1978) (“to the claim for punitive damages, w e conclude that on the record before the district court summary judgment was proper”). As a general rule, punitive damages are “reserved for special circumstances,” Savarese v. Agriss , 883 F.2d 1194, 1205 (3d Cir. 1989), when “the defendant’s conduct

am ounts to something more than a bare violation justifying compensatory damages or injunctive relief” Feldman v. Phila. Hous

. Auth

. , 43 F.3d 823, 842 (3d Cir. 1994) (quoting Cochetti , 572 F.2d at 106). In Title VII cases, punitive damages are awarded for
“i ntentional discrimination where ‘the complaining party demonstrates that the respondent engaged in . . . discriminatory practices with malice or with reckless indifference to . . . federally protected rights.’” Donlin v. Philips Lighting N. Am. Corp. , 58 1 F.3d 73, 79 n.2 (3d Cir. 2009) (quoting 42 U.S.C. § 1981A(b)(1)). After reviewing the record, we agree with the District Court’s decision to grant summary judgment. We find no facts demonstrating malicious or outrageous conduct, or that Sun, Excel or
L ang n er acted with a reckless indifference to Vitalis’s civil rights, or any other extraordinary conduct that would permit a reasonable jury to award punitive damages. This determination is supported by the fact that the jury here found no discriminatory

c onduct by the defendants, let alone discriminatory conduct that would necessitate punitive damages. Accordingly, we will affirm the District Court’s grant of summary24 judgment on the punitive damages claim.
I V. Conclusion
T he District Court ’s o rders will be affirmed.