UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

A. V. AVINGTON, JR., 

 Plaintiff - Appellant, 

v. 

METROPOLITAN TULSA URBAN 

LEAGUE, 

 Defendant - Appellee. 

No. 14-5082 

(D.C. No. 4:12-CV-00621-JED-FHM) 

(N.D. Okla.)

 

ORDER AND JUDGMENT*

 

Before GORSUCH, O’BRIEN, and HOLMES, Circuit Judges. 

 

 Proceeding pro se, A. V. Avington, Jr. filed discrimination and retaliation 

claims under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. 

§§ 2000e–2(a)(1) and 2000e–3(a), and the Age Discrimination in Employment Act 

(ADEA), 29 U.S.C. § 623 against the Metropolitan Tulsa Urban League (MTUL). 

The trial judge entered summary judgment in favor of MTUL, from which Avington 

 

*

 After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist the determination of this 

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

February 11, 2015

Elisabeth A. Shumaker 

Clerk of Court

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appeals. MTUL has insufficient employees to bring his claims within the ambit of 

either statute. According to the argument presented to and rejected by the district 

judge, MTUL’s ties with an affiliated organization require both to be treated as a 

single employer. The undisputed facts do not support the argument. We affirm.1

 Avington, who is over forty years old, unsuccessfully applied for a job with 

MTUL. He filed a complaint against it alleging he was not hired because of sex and 

age discrimination and also claiming retaliation based on his complaint to MTUL 

about not getting the job. MTUL asserted it did not employ enough individuals to 

subject it to a suit under Title VII or the ADEA and moved to dismiss the complaint 

under Fed. R. Civ. P. 12(b)(6), or alternatively for summary judgment under 

Fed. R. Civ. P. 56. It attached evidence showing it employed fewer than fifteen 

employees in each of the six months preceding the alleged violations, and thus was 

not “an employer” under Title VII or the ADEA. See 42 U.S.C. § 2000e(b) (defining 

an “employer” under Title VII as one with fifteen or more employees) and 29 U.S.C. 

§ 630(b) (defining an “employer” under the ADEA as having twenty or more 

employees). 

In response, Avington conceded that MTUL had fewer than fifteen employees. 

But he argued MTUL’s employees should be combined with the employees of the 

National Urban League for purposes of meeting the employee numerosity 

requirements under a single entity or agency theory. He attached several documents 

 

1

 Our jurisdiction is derived from 28 U.S.C. § 1291. 

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describing the National Urban League (NUL) as a national civil rights organization 

with more than 100 community affiliates, including MTUL. 

In some circumstances, courts may treat separate entities as a joint or single 

employer for purposes of determining the threshold number of employees required 

for an employer to be subject to suit under Title VII or the ADEA. See Knitter v. 

Corvias Military Living, LLC, 758 F.3d 1214, 1225-27 (10th Cir. 2014) (describing 

joint and single employer theories under Title VII). “Under the joint employer test, 

two entities are considered joint employers if they share or co-determine those 

matters governing the essential terms and conditions of employment.” Id. at 1226 

(internal quotation marks omitted). Under the single employer test, two entities can 

be found to effectively constitute a single employer if they are an “integrated 

enterprise.” Id. at 1226-27. To make that determination, courts “generally weigh 

four factors: (1) interrelations of operation; (2) common management; 

(3) centralized control of labor relations; and (4) common ownership and financial 

control.” Id. at 1227 (internal quotation marks omitted). 

MTUL replied attaching an affidavit from its President and Chief Executive 

Officer, Marquetta Finley. According to the affidavit MTUL and the NUL have no 

common management or financial or accounting operations. In addition, Finley 

averred: 1) the NUL does not have or exercise any control over any of MTUL’s 

financial, management or employment decisions; 2) the two organizations do not 

maintain any combined accounting records, bank accounts, lines of credit, payroll 

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operations, switchboards, telephone numbers, or offices; 3) the MTUL has complete 

and exclusive control over its employment decisions and labor relations; and 4) while 

the NUL does certify the eligibility of applicants for the position of MTUL President, 

it does not select or control who MTUL hires as its President and does not participate 

in, influence or have any other role in any other MTUL employment decisions. 

The district judge converted MTUL’s motion to dismiss into a motion for 

summary judgment and allowed Avington an opportunity to provide relevant 

supplemental evidence. Avington submitted additional documents in which MTUL 

was described as an affiliate of the NUL. None of Avington’s evidence stated or 

even suggested how NUL exercised any control over MTUL’s employment, 

management or financial decisions. 

After discussing the factors that the courts consider when determining if two 

entities are single or joint employers under Title VII and the ADEA, see id., 758 F.3d 

at 1226-27, the judge decided the undisputed evidence demonstrated the absence of 

any interrelations of operations or common management between MTUL and the 

NUL such that the NUL could be considered a single or joint employer with MTUL. 

Thus, it granted summary judgment in favor of MTUL. In this appeal Avington 

argues to the contrary. 

We construe pro se filings liberally. Garza v. Davis, 596 F.3d 1198, 1201 n.2 

(10th Cir. 2010). We review a district court’s grant of summary judgment de novo. 

Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). Summary 

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judgment is appropriate “if the movant shows that there is no genuine dispute as to 

any material fact and the movant is entitled to judgment as a matter of law.” 

Fed. R. Civ. P. 56(a). If a defendant moving for summary judgment carries its initial 

burden to point out an absence of evidence supporting the plaintiff’s claim, the 

burden shifts to the plaintiff to produce evidence demonstrating there is a genuine 

issue of material fact to be tried. Adler, 144 F.3d at 670-71. 

Avington claims his case is identical to one in which the Sixth Circuit found a 

corporate parent should be treated as the single employer of its subsidiary, 

Armbruster v. Quinn, 711 F.2d 1332 (6th Cir. 1983), abrogated on other grounds by

Arbaugh v. Y & H Corp., 546 U.S. 500 (2006). But the facts in Armbruster are 

entirely different. There, the evidence demonstrated the parent company was the sole 

owner of the subsidiary, exercised substantial control over the subsidiary’s financial 

and management decisions, and exercised a significant measure of control over the 

subsidiary’s hiring decisions. Id. at 1338-39. Avington produced no such evidence. 

The undisputed facts fail to show NUL exercising any control over MTUL’s 

employment decisions, employees or the terms and conditions of employment with 

MTUL, and no evidence of common management; common or centralized control of 

labor relations, or common ownership and financial control. 

 

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We affirm the summary judgment dated July 2, 2014 for substantially the same 

reasons it contains. 

 Entered for the Court 

 Terrence L. O’Brien 

 Circuit Judge 

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