           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        November 20, 2008

                                     No. 08-60372                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


BERTHA M. GARRETT-WOODBERRY,

                                                  Plaintiff-Appellant,
v.

MISSISSIPPI BOARD OF PHARMACY,

                                                  Defendant-Appellee.



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:07-cv-00004


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
       Appellant Bertha M. Garrett-Woodberry appeals the district court’s grant
of summary judgment in favor of Appellee Mississippi Board of Pharmacy. The
court held that the Board did not employ enough workers to satisfy the statutory
minimum for “employer” status under Title VII. For the following reasons, we
AFFIRM.




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                 No. 08-60372


                                       I.
      Appellant Woodberry began her nine-year period of employment with the
Mississippi Board of Pharmacy (the “Board”) in 1999 as an administrative
assistant and was promoted to her current position as an enforcement agent in
2004. In September 2006, the Board issued a directive assigning Woodberry to
the licensing division of the Board. Woodberry filed suit against the Board on
November 29, 2006, in Mississippi state court, alleging race discrimination in
violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981, sex
discrimination under Title VII, and various state law claims.       The Board
removed the case to the federal district court. After the close of the discovery
period, the Board moved for summary judgment on all counts. Woodberry
conceded all of her claims except those based on Title VII and the state
whistleblower statute. On March 27, 2008, the trial court issued its opinion and
order granting the Board’s motion and dismissing Woodberry’s claims based
upon Title VII with prejudice. Woodberry appeals the court’s dismissal of her
Title VII claims.
                                      II.
      A grant of summary judgment is reviewed de novo. Celestine v. Petroleos
De Venezuella SA, 266 F.3d 343, 349 (5th Cir. 2001).        The party seeking
summary judgment is required to demonstrate that there is an absence of
evidence to support the nonmoving party’s case. Id. (citing Celotex v. Catrett,
477 U.S. 317, 325 (1986)). To survive a proper motion for summary judgment,
the nonmovant must “bring forward sufficient evidence to demonstrate that a
genuine issue of material fact exists for every element of a claim.” Celestine ,
266 F.3d at 349. For summary judgment purposes, all evidence produced by the
nonmovant is taken as true and all inferences are drawn in the nonmovant’s
favor. Id.

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                                  No. 08-60372

      Title VII prohibits discrimination by an “employer” based on “race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). Title VII defines an
“employer” as “a person engaged in an industry affecting commerce who has
fifteen or more employees for each working day in each of twenty or more
calendar weeks in the current or preceding year.” 42 U.S.C. § 2000e(b). There
is no dispute that the Board, standing alone, lacks a sufficient number of
employees to constitute a statutory “employer” under Title VII. Nor is there any
dispute that the Board was established by statute as a state agency. The sole
question is whether the court should aggregate the Board’s employees with those
of other state agencies. Appellant contends that the district court erred in
holding that the Board should not be aggregated with other state agencies under
the “single employer test.”
      In Trevino v. Celanese Corp., this Circuit iterated a “single employer” test
to determine when two private entities should be aggregated for the purposes of
determining whether they constitute an employer under Title VII. 701 F.2d 397
(5th Cir. 1983).    The four-part Trevino test involves consideration of (1)
interrelation of operations; (2) centralized control of labor relations; (3) common
management; and (4) common ownership or financial control. 701 F .2d at 404.
The second factor of this inquiry is deemed the most important. Id. The Trevino
court noted that we have declined to apply this “single employer” test to
governmental subdivisions because it was developed for application to private
entities. Trevino, 701 F .2d at 404 n.10; see also Turner v. Baylor Richardson
Med. Ctr., 476 F.3d 337, 344 (5th Cir. 2007) (noting that aggregation is not
applicable to governmental subdivisions in the context of Title VII); Karagounis
v. Univ. of Tex. Health Sci. Ctr. at San Antonio, 1999 WL 25015, *2 (5th Cir. Jan.
5, 1999) (refusing to aggregate the employees of a governmental subdivision in
the context of Title VII); Dumas v. Town of Mount Vernon, Al., 612 F .2d 974,
980 n.9 (5th Cir. 1980) (declining to apply the test with regard to the employees

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of a town, state, and county). Thus, it seems clear that the “single employer” test
should not be applied here, as the Board is a state agency and is thus a
governmental subdivision.
       Moreover, even if we were to apply the “single employer” test in this
instance, the district court correctly held that Woodberry did not provide any
evidence sufficient to support aggregation under the test. Woodberry seeks to
aggregate all of the state agencies of the State of Mississippi as one single
employer, but put forth no evidence that the State made any decision or took any
action regarding her employment. Woodberry failed to provide evidence in
opposition to the Board’s motion that supported the most crucial factor of the
“single employer” test—that the State and the Board shared centralized control
of labor relations.1 In addition, as noted by the district court, the record evidence
demonstrates that the Board makes autonomous decisions concerning its
employees, including hiring, transfers, promotions, discipline, and discharges.
       Accordingly, we find that the district court properly determined that the
Board did not satisfy the statutory definition of “employer” under Title VII. The
judgment of the district court is AFFIRMED.




       1
        Appellant submitted new evidence in her brief. Because “our review is confined to an
examination of materials before the lower court at the time the ruling was made,” this evidence
was not considered. Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1307 (5th. Cir. 1988).


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