                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                      November 15, 2005
                             FOR THE TENTH CIRCUIT
                                                                         Clerk of Court

    EDWARD FLOREZ,

                 Plaintiff-Appellant,
                                                         No. 04-2331
     v.                                        (D.C. No. CIV-02-1309 JH/WDS)
                                                          (D. N.M.)
    HOLLY CORPORATION, doing
    business as Navajo Refining Company,
    Artesia, New Mexico,

                 Defendant-Appellee.


                             ORDER AND JUDGMENT          *




Before LUCERO , ANDERSON , and BRORBY , Circuit Judges.



          Edward Florez brought a complaint alleging unlawful discrimination and

retaliation in violation of the Americans With Disabilities Act of 1990, 42 U.S.C.

§§ 12101-12213, and the Family and Medical Leave Act, 29 U.S.C.

§§ 2601-2654. Florez chose to sue Holly Corporation, the parent corporation of



*
     The case is unanimously ordered submitted without oral argument pursuant
to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
his former employer, Navajo Refining Company. The district court determined

that Holly was not Florez’s employer for purposes of employment discrimination

liability and therefore granted Holly’s motion for summary judgment. Florez

appeals. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and       AFFIRM .

       We review a grant of summary judgment de novo, applying the same legal

standards as the district court.    Dunbar v. Jackson Hole Mt. Resort Corp.   , 392

F.3d 1145, 1147 (10th Cir. 2004). Summary judgment is appropriate if the

parties’ filings “show that there is no genuine issue as to any material fact and

that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c). In making that determination, we view the evidence in the light most

favorable to the nonmoving party.       Dunbar , 392 F.3d at 1148. “When the moving

party has informed the district court of the basis for its motion . . . a nonmoving

party may not stand merely on its pleadings, but must set forth specific facts

showing that there is a genuine issue for trial.”    Id. (internal quotation marks

omitted). “The mere existence of a scintilla of evidence in support of the

nonmovant’s position is insufficient to create a dispute of fact that is ‘genuine’;

an issue of material fact is genuine only if the nonmovant presents facts such that

a reasonable jury could find in favor of the nonmovant.”       Simms v. Okla. ex rel.

Dep’t of Mental Health & Substance Abuse Servs.        , 165 F.3d 1321, 1326 (10th

Cir. 1999) (internal quotation marks omitted).


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       The plaintiff in an employment discrimination case carries the burden of

establishing that the defendant was his employer.       Lockard v. Pizza Hut, Inc. , 162

F.3d 1062, 1069 (10th Cir. 1998). Florez, an employee of a subsidiary, seeks to

hold the parent corporation liable by arguing that “the two entities effectively

constitute a single employer.”      Bristol v. Bd. of County Comm’rs   , 312 F.3d 1213,

1218 (10th Cir. 2002) (en banc).

       “The law allows businesses to incorporate to limit liability and isolate

liabilities among separate entities . . . . The doctrine of limited liability creates a

strong presumption that a parent company is not the employer of its subsidiary’s

employees, and the courts have found otherwise only in extraordinary

circumstances.”   Frank v. U.S. West, Inc. , 3 F.3d 1357, 1362 (10th Cir. 1993).

“In order to hold a parent company liable as an employer [under federal

discrimination law], the parent must exercise a degree of control that exceeds that

normally exercised by a parent corporation.”        Lockard , 162 F.3d at 1071 n.2.

       We consider four factors when determining whether two related entities

constitute a single employer: “(1) interrelations of operations; (2) common

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

ownership and financial control.”      Sandoval v. City of Boulder , 388 F.3d 1312,

1322 (10th Cir. 2004). The third factor is considered to be highly determinative.

Bristol , 312 F.3d at 1220 . The critical question is “[w]hat entity made the final


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decisions regarding employment matters relating to the person claiming

discrimination?”    Frank , 3 F.3d at 1363 (further quotation omitted).

       It is undisputed that Florez was a Navajo employee. He argues, however,

that his case against Holly should survive summary judgment because disputed

issues of fact regarding the interrelationship of Navajo and Holly remain. As

support for this position, Florez refers to several connections between the two

entities. Navajo is a wholly owned subsidiary of Holly. One individual serves as

president of both companies. Holly’s Dallas office houses one Navajo employee

and Navajo’s refinery houses one of Holly’s employees. Holly provides

administrative support to its subsidiaries. Finally, Florez states that Holly

mandates random drug testing for the employees of its subsidiaries, that Holly

manages its subsidiaries’ employment benefit plans, and that, at one time, Holly

employed several employees of Navajo.

       Taking all of these statements as true, we conclude that these facts are

insufficient to satisfy the single-employer test. Navajo’s status as a

wholly-owned subsidiary merely demonstrates common ownership which,

“standing alone, can never be sufficient to establish parent liability.”   Frank , 3

F.3d at 1364. The mere existence of a single common manager or officer is not

sufficient to establish a disputed material fact concerning the common

management element.       Id. The presence of one employee of each company at the


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other company’s offices and the movement of employees from subsidiary to

parent adds little to the analysis.

       As the district court noted, Florez’s contention that Holly provided

administrative support to Navajo is too vague to be given much weight. This

court has already concluded that a parent company’s actions as an administrator

for a subsidiary’s employee benefits program do not amount to “excessive control

. . . over [the subsidiary’s] employment practices.”   Id. at 1363. Moreover,

requiring random drug testing is a broad, general policy that “in no way

evidence[s] an attempt by Defendant to exercise day-to-day control over

employment decisions.”      Id.

       Applying the single-employer test, we conclude that Florez has not

established a genuine issue of material fact that counters the presumption that

Holly did not serve as his employer. Holly did not exercise a degree of control

over Navajo beyond that of the normal parent-subsidiary relationship and did not

make final decisions regarding Florez’s employment.

       On appeal, defendants raise a new argument concerning Florez’s tactic of

filing his EEOC charge against Navajo, and his complaint in federal court against

Holly. We decline to address this argument because it was not specifically raised




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in the district court.   See Tele-Communications, Inc. v. Comm’r   , 104 F.3d 1229,

1232-33 (10th Cir. 1997) (issues not raised before the district court are waived).

       We AFFIRM the judgment below.        1




                                                      Entered for the Court


                                                      Carlos F. Lucero
                                                      Circuit Judge




1
       Holly’s motion to dismiss based on Florez’s failure to timely file his
opening brief is DENIED . See Bartell v. Aurora Public Sch. , 263 F.3d 1143,
1146 (10th Cir. 2001) (stating that it is within this court’s discretion to permit late
filing of a brief).

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