                                                   In the                       United States Court of Appeals
                                                                                         Fifth Circuit

                          United States Court of Appeals                             FILED
                                        for the Fifth Circuit                   December 13, 2005
                                             _______________
                                                                              Charles R. Fulbruge III
                                                                                      Clerk
                                                m 05-30362
                                             Summary Calendar
                                              ______________




                          KIM J. GUILLORY AND CHRISTY L. MARCUS,

                                                                Plaintiffs-Appellants,

                                                  VERSUS

          RAINBOW CHRYSLER DODGE JEEP, LLC, AND TIMOTHY W. DONAHO,

                                                                Defendants-Appellees.


                                   _________________________

                              Appeal from the United States District Court
                                 for the Eastern District of Louisiana
                                          m 2:04-CV-02871
                                   _________________________




Before SMITH, GARZA, and PRADO,                             Kim Guillory and Christy Marcus appeal
  Circuit Judges.                                       the dismissal, for want of jurisdiction, of their
                                                        title VII complaint. Because the employer,
PER CURIAM:*                                            Rainbow Chrysler Dodge Jeep, LLC (“Rain-
                                                        bow Chrysler”), had fewer than fifteen em-
                                                        ployees (the jurisdictional minimum) during
   *
     Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
                                                            *
lished and is not precedent except under the limited        (...continued)
                                      (continued...)    circumstances set forth in 5TH CIR. R. 47.5.4.
the relevant time period, we affirm.                        The district court examined Rainbow
                                                        Chrysler’s payroll records from August 2001
                         I.                             to September 2002 and found that at no time
    Guillory and Marcus were employees of               did it have more than fourteen employees on
Rainbow Chrysler. From March 2001 to June               its payroll. This finding is not clearly errone-
11, 2002, when she was discharged, Guillory             ous.1
was allegedly subjected to a hostile work en-
vironment. Marcus makes similar allegations                Plaintiffs argue, however, that we should
regarding her employment from September                 aggregate Rainbow Chrysler’s employees with
2001 until her resignation on June 16, 2002.            the employees of Rainbow Chevrolet Pontiac,
Plaintiffs filed suit for sexual harassment and         LLC (“Rainbow Chevrolet”), for purposes of
retaliation against Rainbow Chrysler under              asserting jurisdiction. In particular, plaintiffs
title VII and breach of contract against the            claim there is substantial overlap in the own-
manager. The district court dismissed under             ership interests and financial control of the two
Federal Rule of Civil Procedure Rule 12(b)(1)           dealerships.
because Rainbow Chrysler did not qualify as
an “employer” as defined by statute.                       In Trevino v. Celanese Corp., 701 F.2d 397
                                                        (5th Cir. 1983), we held that it is appropriate
                       II.                              to treat two seemingly distinct businesses as a
   Title VII prohibits discrimination by an             single entity where there are “(1) interrelation
“employer” on the basis of “race, color, reli-          of operations, (2) centralized control of labor
gion, sex, or national origin,” 42 U.S.C.               relations, (3) common management, and
§ 2000e-2(a), where the term “employer”                 (4) common ownership or financial control.”
means “a person . . . who has fifteen or more           Id. at 404. The mere existence of common
employees for each working day in each of               ownership and management does not, without
twenty or more calendar weeks in the current            more, however, justify aggregation. Lusk v.
or preceding calendar year.” 42 U.S.C.                  Foxmeyer Health Corp., 129 F.3d 773, 778
§ 2000(e)(b). In this circuit, the statutory min-       (5th Cir. 1997).
imum of fifteen employees is a jurisdictional
requirement. Greenlees v. Eidenmuller En-                  This limitation rests on the commonsense
ters., 32 F.3d 197, 198 (5th Cir. 1994).                observation that the purpose of the corporate
                                                        form is to provide shareholders with limited
   To determine whether an employee counts                 1
toward the statutory minimum for a given                     Plaintiffs allege that the district court erred in
year, “all one needs to know . . . is whether the       refusing their request for discovery of Rainbow
employee started or ended employment during             Chrysler’s personnel files. Assuming such a re-
                                                        quest was properly before the court, there was no
that year and, if so, when.” Walters v. Metro.
                                                        abuse of discretion where the court based its fac-
Educ. Enters., 519 U.S. 202, 211 (1997). To             tual conclusion on the preferred method for deter-
this end, the district court “look[s] first and         mining the existence of an employment relation-
primarily to whether the individual in question         ship; i.e., payroll records. See Moran v. Kingdom
appears on the employer's payroll.” Id.; Du-            of Saudi Arabia, 27 F.3d 169, 172-73 (5th Cir.
mas v. Mt. Vernon, 612 F.2d 974, 979 n.7 (5th           1994) (finding no abuse in denying plaintiff’s re-
Cir. 1980) (same).                                      quest for an evidentiary hearing in ruling on a rule
                                                        12(b)(1) motion).

                                                    2
liability. Therefore, plaintiffs must offer some
evidence of responsibility for employment de-
cisions beyond mere ownership to expose a
neighboring enterprise to suit under title VII.2
The evidence of centralized control here, in-
cluding use of a common controller and joint
picnics for members of the staff, does not suf-
fice to rebut the presumption that Rainbow
Chrysler and Rainbow Chevrolet are separate
entities.3

   AFFIRMED.




   2
     See Lusk, 129 F.3d at 777 n.7 (noting that the
inquiry has “focused on the core activities regu-
lated by the anti-discrimination laws and, therefore,
on whether the parent corporation was so involved
in the daily employment decisions of the subsidiary
as to justify treating the two corporations as a
single employer.”).
   3
      Application of the Trevino test also resolves
plaintiffs’ argument that the district court erred by
failing to consider payroll information for the first
seven months of the 2001 “calendar year,” as re-
quired by statute. The parties appear to agree that
Rainbow Chrysler did not assume ownership of the
dealership until August 1, 2001, when it purchased
the store from Dixie Motors. Therefore, Rainbow
Chrysler cannot have exercised “centralized control
of labor relations” at the dealership before the
purchase.

    Also, according to the interim operating agree-
ment, Dixie Motors agreed to hold harmless and
indemnify Rainbow Chrysler for all liability in-
curred before the closing date. In short, it makes
no more sense to treat Rainbow Chrysler and Dixie
Motors as one employer for the purpose of ag-
gregating time than it does to treat Rainbow Chrys-
ler and Rainbow Chevrolet as one employer for the
purpose of aggregating employees.

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