                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0810n.06
                                                                                          FILED
                                           No. 10-5323
                                                                                     Dec 05, 2011
                          UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


WILLIAM SANFORD,                       )
                                       )
      Plaintiff-Appellant,             )
                                       )                 ON APPEAL FROM THE
v.                                     )                 UNITED STATES DISTRICT
                                       )                 COURT FOR THE EASTERN
MAIN STREET BAPTIST CHURCH             )                 DISTRICT OF KENTUCKY
MANOR, INC. and                        )
SOUTHEASTERN MANAGEMENT                )
CENTER, INC.,                          )                         OPINION
                                       )
      Defendants-Appellees.            )
_______________________________________)


Before: MARTIN, MOORE, and COOK, Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant William Sanford appeals

the district court’s grant of summary judgment in favor of Defendants-Appellees Main Street Baptist

Church Manor, Inc. (“the Manor”) and Southeastern Management Center, Inc. (“Southeastern”) on

his sexual-harassment and retaliation claims under Title VII of the Civil Rights Act of 1964 and the

Kentucky Civil Rights Act (“KCRA”). The district court held that neither defendant qualified as an

“employer” under the federal or state anti-discrimination laws—Southeastern because it was not

Sanford’s formal employer and the Manor because it did not have the statutorily required number

of employees. Because the district court abused its discretion in reversing its earlier holding that

Southeastern could be liable as a joint employer, we REVERSE the grant of summary judgment to

Southeastern and REMAND for further proceedings consistent with this opinion. Because Sanford
No. 10-5323
Sanford v. Main Street Baptist Church Manor, Inc. et al.


has failed to show that the Manor satisfies the numerosity requirement, we AFFIRM the grant of

summary judgment to the Manor.

                                       I. BACKGROUND

       William Sanford worked maintenance at the Main Street Baptist Church Manor Apartments,

a 64-unit apartment building operated by the Manor in Lexington, Kentucky, from 2000 to 2005.

He alleges that he was the victim of sexual harassment by his supervisor, Marla Carter, in the spring

of 2004. Sanford contends that Carter made a series of sexual advances and, when he rebuffed these

advances and reported the alleged harassment, began issuing write-ups and negative reports

regarding his job performance. The Manor fired Carter in 2004 and, in 2005, Sanford resigned after

his job duties and salary were reduced.

       Sanford brought suit under Title VII, 42 U.S.C. § 2000e-2, and the KCRA, Ky. Rev. Stat.

§ 344.040, against the Manor and Southeastern, a property-management company that works with

several housing providers in central Kentucky. Both defendants moved for summary judgment on

the grounds that they did not qualify as Sanford’s or Carter’s employer for Title VII or KCRA

purposes.

       Central to this case is the relationship between three entities: the Manor, Southeastern, and

non-party Main Street Baptist Church (“the Church”). The Manor is a not-for-profit corporation

formally governed by its members, all of whom are also members of the Church. The members

select an eleven-member board of directors, which in turn elects four officers. Under the Manor’s

Articles of Incorporation, the Church’s pastor serves ex officio as a director, and all other officers


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Sanford v. Main Street Baptist Church Manor, Inc. et al.


and directors must be members of the Church. At the time of the alleged harassment, two of the

directors were Church ministers. None of the officers or directors are paid for their services, and

most either have full-time jobs elsewhere or are retired. The board meets on an as-needed basis,

which tends to be every three to five months.

       Since 1985, the Manor has contracted with Southeastern to assist with the day-to-day

operations of the apartment building and to ensure compliance with HUD regulations for low-income

housing providers. According to the Management Plan, Southeastern’s duties include providing

accounting services; hiring, paying, supervising, and discharging personnel; maintaining the

property; advertising to potential residents; and otherwise “assum[ing] the prime responsibility for

all facets of operations.” R. 26-5 (Mgmt. Plan at 1-3). Jean Peyton, Southeastern’s Director of

Retirement Housing, serves as the management agent for the Manor. She serves in the same capacity

for other properties.

       Sanford and Carter were formally employed by the Manor, which in 2003, 2004, and 2005

had between four and seven employees on its payroll.

       The district court initially held that Southeastern and the Manor were joint employers and

that, consequently, Southeastern could be liable even though it was not Sanford’s or Carter’s formal

employer and the Manor could aggregate its own formal employees with all of Southeastern’s

employees to meet the numerosity requirements of Title VII and KCRA. However, the court

subsequently granted summary judgment to both defendants on the merits of Sanford’s claims.




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Sanford v. Main Street Baptist Church Manor, Inc. et al.


        This court reversed and remanded, holding that the district court erred in both its aggregation

analysis and in part of its grant of summary judgment. Sanford v. Main St. Baptist Church Manor,

Inc., 327 F. App’x 587, 588-89 (6th Cir. 2009) (Sanford I). We instructed the district court to

conduct an individualized determination as to which of Southeastern’s employees could be attributed

to the Manor for purposes of evaluating whether the Manor met the numerosity requirement. After

remand, the district court reversed its earlier holding on joint-employer status and granted summary

judgment to both defendants on the grounds that neither qualified as an “employer” under federal

or state law.

        On appeal, Sanford argues that the district court erred in reconsidering its earlier

determination regarding joint-employer status for Southeastern. Sanford argues that the district court

lacked the authority to revisit that holding and that, even if it did have such authority, the new

conclusion was incorrect. He further contends that summary judgment was inappropriate because

the record presents issues of fact as to whether the Manor met the numerosity requirement on its own

or through aggregation. Finally, Sanford argues that both defendants could still be liable even if

neither of them was his employer for Title VII or KCRA purposes.

                                          II. ANALYSIS

A. Standard of Review

        This court reviews de novo a district court’s grant of summary judgment, Bazzi v. City of

Dearborn, 658 F.3d 598, 602 (6th Cir. 2011), and will affirm “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,”


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Sanford v. Main Street Baptist Church Manor, Inc. et al.


Fed. R. Civ. P. 56(a). In reviewing the facts, we make all inferences in favor of the nonmoving

party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

       “[E]mployment status is a mixed question of law and fact.” Lilley v. BTM Corp., 958 F.2d

746, 750 n.1 (6th Cir. 1992). In the absence of disputed material facts or the possibility of

conflicting inferences to be drawn from undisputed facts, employment status is a question for the

court to resolve as a matter of law. Id.

B. Employer Liability

       Employers are subject to Title VII only if they have at least fifteen employees on each

working day for twenty or more calendar weeks in either the year in which the alleged discrimination

occurred or the preceding year. 42 U.S.C. § 2000e(b). Under Kentucky law, the employer must have

at least eight employees for the same period. Ky. Rev. Stat. § 344.030(2). The numerosity threshold

is an element of the plaintiff’s case rather than a jurisdictional requirement. Arbaugh v. Y & H

Corp., 546 U.S. 500, 504 (2006).

       Entities that do not otherwise meet the definition of employer (either because they do not

formally employ the plaintiff or do not meet the numerosity requirement) may still face liability

through the single-employer or joint-employer doctrines. E.g., Swallows v. Barnes & Noble Book

Stores, Inc., 128 F.3d 990, 993 (6th Cir. 1997).1 Application of these doctrines can remove two

different obstacles to liability. First, an entity that is not the plaintiff’s formal employer may be



       1
         These doctrines originated in the labor-relations context, but have been adopted in the civil-
rights context as well. Swallows, 128 F.3d at 993 n.3.

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Sanford v. Main Street Baptist Church Manor, Inc. et al.


treated under these doctrines as if it were the employer for purposes of employment laws such as

Title VII. Second, if the entity is already a formal employer, it can satisfy an otherwise unmet

numerosity requirement by aggregating its own employees with the individuals under its joint

employ. Whether an entity can be treated as if it were the formal employer and whether a formal

employer can meet numerosity though aggregation are “somewhat different, but related, question[s].”

Arculeo v. On-Site Sales & Mktg., LLC, 425 F.3d 193, 198 (2d Cir. 2005).

       Under the single-employer doctrine, “two nominally independent entities are so interrelated”

that all of the employees of one are attributed to the other. Swallows, 128 F.3d at 993 n.4. The joint-

employer doctrine involves a business that maintains sufficient control over some or all of the formal

employees of another business as to qualify as those employees’ employer; unlike in the single-

employer context, the two businesses are in fact independent. Id. With a single employer, all

employees are aggregated to determine whether the numerosity requirement has been met. Arculeo,

425 F.3d at 200. With joint employers, only the employees over whom the first employer maintains

sufficient control are aggregated with its own formal employees. Id.

       Because Southeastern is not the formal employer of Sanford or Carter and the Manor does

not by itself meet the numerosity requirements of federal or state law,2 Sanford relies on these

doctrines to subject the defendants to liability. Specifically, he argues that the joint-employer




       2
        Sanford contends that an issue of fact exists as to whether the Manor meets the numerosity
requirement on its own, an issue we address below.

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doctrine should apply to Southeastern and that the single-employer doctrine should apply to the

Manor.3

        1. Southeastern

        One entity is the joint employer of another entity’s formal employees, and thus liable under

federal and state anti-discrimination laws, if the two “share or co-determine those matters governing

essential terms and conditions of employment.” Carrier Corp. v. NLRB, 768 F.2d 778, 781 (6th Cir.

1985) (internal quotation marks omitted). The major factors in this determination are the ability to

hire, fire, and discipline, affect compensation and benefits, and direct and supervise performance.

See Sanford I, 327 F. App’x at 595.

        Although Sanford and Carter were formal employees of the Manor, Sanford argues that

Southeastern was a joint employer such that it can face liability for Sanford’s sexual-harassment and

retaliation claims. The district court initially agreed, but reversed its decision after our remand after

determining that the Manor did not exercise sufficient control over any Southeastern employees.

Sanford argues that the district court’s reconsideration of its earlier holding violated the mandate rule

and, alternatively, that its new conclusion was incorrect.

        The issue of Southeastern’s status as a joint employer of Sanford was not within the scope

of our remand; indeed, Southeastern did not even cross-appeal the district court’s original decision

holding that it was a joint employer. Instead, our remand focused on the distinct issue of whether



        3
        Sanford does not appeal the district court’s decision that the Manor is not a joint employer
of any of Southeastern’s employees for aggregation purposes.

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No. 10-5323
Sanford v. Main Street Baptist Church Manor, Inc. et al.


the Manor was a joint employer of some or all of Southeastern’s employees such that those

employees would count towards satisfying the numerosity requirement for the Manor. Unlike the

Manor, Southeastern’s liability is not contingent upon aggregation because Southeastern already

meets the numerosity requirement; nor is the Manor’s ability to control Southeastern’s employees

relevant to Southeastern’s status as a joint employer. Moreover, Southeastern and the Manor can

be joint employers of the Manor’s employees without being joint employers of Southeastern’s

employees. In short, we issued a limited mandate instructing the district court to answer one

question—whether the Manor was a joint employer of any of Southeastern’s employees and thus

could meet the numerosity requirement by including those employees within the Manor’s employee

count—and that court answered a different question—whether Southeastern was a joint employer

of Sanford.4

        Because the issue of whether Southeastern was Sanford’s joint employer was not presented

to us and we did not address it on the prior appeal, however, the mandate rule does not strictly apply

as a bar to the district court’s reconsideration of its earlier ruling. See United States v. Mendez, 498

F.3d 423, 426 (6th Cir. 2007) (the mandate rule applies when an issue was “expressly or impliedly

decided by a superior court”) (quoting United States v. Moored, 38 F.3d 1419, 1421 (6th Cir. 1994)).

Nonetheless, the district court’s decision to revisit the issue of Southeastern’s joint-employer status


        4
          Because the two questions of whether the Manor could include Southeastern employees in
its employee count and whether Southeastern was a joint employer of Sanford are distinct, the
district court also erred as a substantive matter in limiting its analysis to the Manor’s relationship to
Southeastern’s employees but then concluding that neither entity was a joint employer as to any of
the other’s formal employees.

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Sanford v. Main Street Baptist Church Manor, Inc. et al.


was an abuse of discretion. The district court did not explain why it was reversing its earlier

decision, and nothing in our prior opinion or our remand order undermined the analysis in that

decision. The issue was not appealed, not included in the remand, not mentioned in the district

court’s own post-remand order for supplemental briefing, and not briefed by the parties. The parties

thus had no notice that the district court might reconsider an issue that was last briefed and ruled

upon two and a half years earlier.

       Moreover, Southeastern should not be allowed to benefit from the district court’s sua sponte

reconsideration when Southeastern failed to raise the issue on cross-appeal in the first instance.

Indeed, Southeastern would have been foreclosed from raising the issue itself on remand, because

the mandate rule also “bars challenges to a decision made at a previous stage of the litigation which

could have been challenged in a prior appeal, but were not.” Rouse v. DaimlerChrysler Corp. UAW

Non-Contributory Plan, 300 F.3d 711, 715 (6th Cir. 2002) (citing United States v. Adesida, 129 F.3d

846, 849-50 (6th Cir. 1997)); see also Adesida, 129 F.3d at 850 (“[I]t would be absurd that a party

who has chosen not to argue a point on a first appeal should stand better as regards the law of the

case than one who had argued and lost.” (quoting Fogel v. Chestnutt, 668 F.2d 100, 109 (2d Cir.

1981) (internal quotation marks omitted)).

       Because the district court’s decision to revisit the issue of whether Southeastern was

Sanford’s joint employer was an abuse of discretion, we reverse the grant of summary judgment to

Southeastern and remand for further proceedings consistent with this opinion.




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Sanford v. Main Street Baptist Church Manor, Inc. et al.


       2. The Manor

       Sanford challenges the district court’s holding that the Manor lacked the requisite number

of employees to face liability under Title VII or the KCRA. He first argues that issues of fact exist

as to the Manor’s own employee count. In addition, he contends that the single-employer doctrine

enables the Manor to aggregate with either the Church or Southeastern to meet the numerosity

requirement.5

                a. The Manor Itself

       Based on the Manor’s list of the employees on its payroll for each month in 2004 and 2005

and an affidavit from the Manor Board President as to 2003, the district court concluded that “during

the 2003 and 2004 calendar year, the Manor employed no more than six employees for twenty weeks

or more, and that during the 2005 calendar year, the Manor employed no more than four employees

for twenty weeks or more.” R. 52 at 2 (Nov. 20, 2009 Dist. Ct. Op.).

       The district court appears to have misstated the proper standard for determining whether the

Manor meets the numerosity requirement. The law does not require that the same eight (or fifteen)

employees each work for twenty weeks, but rather that at least eight (or fifteen) employees work


       5
         In his brief, Sanford argues that the Manor and Southeastern were an “integrated enterprise,”
a concept that he presents as distinct from either the joint-employer or single-employer doctrine.
However, neither caselaw nor the EEOC Compliance Manual treat “integrated enterprise” as a
distinct doctrine, but instead use the term interchangeably with “single employer.” See Swallows,
128 F.3d at 993 (“[C]ourts examine whether two entities are so interrelated that they may be
considered a ‘single employer’ or an ‘integrated enterprise.’”); EEOC Compliance Manual Section
2-III(B)(1)(a)(iii)(a) (“An integrated enterprise is one in which the operations of two or more
employers are considered so intertwined that they can be considered the single employer of the
charging party.”).

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during each of twenty weeks, regardless of how many weeks any given employee works.

Nonetheless, Sanford has not shown that, under the proper standard, the result would have been

different. After a full opportunity to conduct discovery, he has offered no evidence that the Manor

had employees on its payroll that it did not identify because they worked less than twenty weeks.6

       Sanford thus must show that the Manor had more employees than those individuals officially

on payroll. Sanford correctly notes that payroll is not the exclusive means of counting employees.

See Bryson v. Middlefield Volunteer Fire Dep’t, Inc., 656 F.3d 348, 352-53 (6th Cir. 2011). What

matters instead is the existence of an employment relationship, as defined by the traditional

principles of agency law. Id.7

       Sanford identifies three groups of potential employees not on payroll—residents of the

apartment building, volunteers from the Church, and board members. However, Sanford offers no

evidence that the relationship between the Manor and any of these potential employees carries the

traditional indicia of employment. Therefore, the Manor by itself does not satisfy the numerosity

requirement.




       6
        Even counting Clifton Gay and Anthony Thompson, the two individuals who Sanford claims
worked for the Manor for longer periods than they were listed on payroll, for all of 2004, the Manor
had eight employees for, at most, twelve weeks that year.
       7
        Factors include the duration of the relationship, skill required, location of the work, and
method of payment (if any), as well as the putative employer’s ability to control the manner in which
the work is performed, assign additional projects, and exercise discretion over when and how long
to work. Bryson, 656 F.3d at 352 (quoting Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323-
24 (1992)).

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Sanford v. Main Street Baptist Church Manor, Inc. et al.


                b. Single Employer: the Church/the Manor

        The employees of two or more entities can be aggregated for numerosity purposes if the

entities effectively operate as a single employer. In making this determination, courts consider

factors such as interrelation of operations, common management, centralized control over labor

relations and personnel, and common ownership or financial control. Swallows, 128 F.3d at 993-94

(citing York v. Tenn. Crushed Stone Ass’n, 684 F.2d 360, 362 (6th Cir. 1982)). The presence or

absence of any of these factors is not conclusive, but “control over labor relations is a central

concern.” Id. at 994 (citing Armbruster v. Quinn, 711 F.2d 1332, 1337-38 (6th Cir. 1983)).

        None of the elements of interrelatedness identified in Swallows—common offices, common

record keeping, shared bank accounts and equipment—are present here. Although the Manor’s 2006

filing with the Secretary of State lists the Church’s address as its principal place of business, R. 22-4,

Sanford acknowledges in the Complaint that the Manor’s office is located elsewhere, see R. 1-3 at

1.

        Sanford has shown some evidence of common management, as the Church’s Pastor serves

as the Manor’s Chairman of the Board and another minister serves as Board President. This type of

arrangement is not always enough by itself to meet the second factor, however. See EEOC v.

Wooster Brush Co. Employees’ Relief Ass’n, 727 F.2d 566, 572 (6th Cir. 1984) (finding no common

management even though the President and CEO of one entity served on the board of directors of

a second entity). Each director has an equal vote in Manor business and nine of the eleven board

members have no employment or pecuniary relationship with the Church.


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Sanford v. Main Street Baptist Church Manor, Inc. et al.


        Sanford has failed to show that the Church has any role in the Manor’s personnel matters,

the “central concern” of the single-employer doctrine. Swallows, 128 F.3d at 994. The Church has

no authority to hire or fire Manor employees and does not pay their wages and benefits. Sanford

points out that Carter’s termination notice is on Church letterhead, but it is signed by the Pastor, who

is chairman of the Manor’s board, and by the Manor’s board.

        Finally, the Church has no ownership interest in the Manor and the two entities do not share

finances. Neither is a sham corporation, and without evidence of a sham, the fourth factor is not met.

Id. at 995 (citing Wooster Brush, 727 F.2d at 572).

        At most, Sanford has presented some evidence of one of the four factors. Accordingly, he

has not met his burden under the single-employer doctrine and we will not aggregate Church

employees with the Manor’s employees to determine if the Manor satisfies the numerosity

requirement.

                c. Single Employer: Southeastern/the Manor

        Although Sanford consistently argued that Southeastern and the Manor were joint employers,

he did not raise the additional argument that the two entities were a single employer or integrated

enterprise until his post-remand supplemental brief in the district court. The issue on remand was

whether the Manor could aggregate Southeastern’s employees with the Manor’s own employees

under the joint-employer doctrine, and the district court’s order for supplemental briefing was

accordingly limited to that issue. The joint-employer and single-employer doctrines are “analytically

distinct,” Swallows, 128 F.3d at 993 n.4. Because Sanford failed to raise the issue of whether the


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Sanford v. Main Street Baptist Church Manor, Inc. et al.


Manor and Southeastern were a single employer in a timely manner and the issue was not within the

scope of the remand, the argument is waived.

C. Non-Employer Liability

       Finally, Sanford argues that Southeastern or the Manor may be liable even if they do not

qualify as employers. According to Sanford, an entity need not be an employer to face liability for

retaliation under the KCRA, a non-employer can be liable either as the agent of an employer or for

interfering with the plaintiff’s relationship with an employer, and a non-employer can aid or abet the

discriminatory acts of an employer. These claims are untimely and thus have been waived.

       If, as he contends, Sanford pleaded a KCRA retaliation claim in his complaint, he was hardly

artful in doing so. In Sanford’s complaint, “Retaliation” is a distinct count from “State Law

Unlawful Employment Practice” and cites only federal law. R. 1-3 at 5. Although we do not focus

solely on labels when evaluating the adequacy of a complaint on a motion to dismiss, Minger v.

Green, 239 F.3d 793, 799 (6th Cir. 2001), the standard for determining what claims a plaintiff has

raised is generally less forgiving at the summary judgment stage, Tucker v. Union of Needletrades,

Indus. & Textile Employees, 407 F.3d 784, 787-88 (6th Cir. 2005).

       Tucker rejected a claim raised for the first time in opposition to summary judgment. Id. at

788-89. Sanford did not address his purported KCRA retaliation claim until his post-remand

supplemental brief in the district court, which was filed well after the completion of discovery and

the consideration of summary judgment motions. Until that point, each party’s briefs had focused

on the defendants’ status as employers or the merits of Sanford’s claims.


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Sanford v. Main Street Baptist Church Manor, Inc. et al.


         Sanford raised the interference and aider/abetter claims for the first time on appeal. They

were not briefed by the parties or addressed by the district court and are thus waived. Although

Sanford briefly mentioned the possibility of agency liability in his response to the Manor’s Motion

to Reconsider and his post-remand Motion to Alter or Amend the Judgment, issues raised for the

first time in such motions are not preserved for appeal. Scottsdale Ins. Co. v. Flowers, 513 F.3d 546,

553 (6th Cir. 2008).

                                         III. CONCLUSION

         The district court abused its discretion in reversing its earlier decision that Southeastern was

Sanford’s joint employer and thus could face liability under Title VII or the KCRA. Therefore, we

reverse the grant of summary judgment to Southeastern and remand for further proceedings

consistent with this opinion. Because Sanford has not shown that the Manor meets the numerosity

requirement of Title VII or the KCRA, however, we affirm the grant of summary judgment to the

Manor.

         REVERSED in part and AFFIRMED in part.




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