                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit
                                                                                        F I L E D
                           UNITED STATES COURT OF APPEALS
                                                                                          May 12, 2003
                                   For the Fifth Circuit
                                                                                    Charles R. Fulbruge III
                                                                                            Clerk

                                           No. 02-11105



                                       MARY H. TORRES,

                                                                                  Plaintiff-Appellant,


                                             VERSUS


                             LIBERTO MANUFACTURING CO INC

                                                                                Defendant-Appellee.



                           Appeal from the United States District Court
                            For the Northern District of Texas, Dallas

                                        ( 3:01-CV-1888-H )
Before DUHE’, EMILIO M. GARZA, and DeMOSS, Circuit Judges.

PER CURIAM:*

       Appellant Mary H. Torres brought suit against Liberto Manufacturing Co., Inc. (“Liberto

Mfg.”) alleging racial discrimination under Title VII and age discrimination under the ADEA on

September 21, 2001. The district court accepted the parties’ request for a bifurcated discovery and

ordered that discovery on jurisdictional issues be completed by noon on March 18, 2002. On March

18, 2002, Torres filed a motion asking to extend the discovery period for an additional twenty days

       *
        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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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because her attorney had a scheduling conflict that resulted in the cancellation of two depositions that

had been scheduled for March 15, 2002. The district court denied the motion to extend. On March

25, 2002, Liberto Mfg. filed a motion for summary judgment asserting that it was not an “employer”

for the purposes of Title VII and the ADEA. The motion was referred to a magistrate judge who

recommended that the motion be granted. The district court adopted the magistrate judge’s findings

and entered judgment granting Liberto Mfg.’s motion and dismissing Torres’s complaint. Torres now

appeals the district court’s decision not to grant an extension for discovery and the granting of

summary judgment.

                                          BACKGROUND

        Torres became an employee of Libert o Mfg. in 1987 and was a member of Liberto Mfg.’s

production department where her chief responsibility involved packaging popcorn. On October 26,

2000, Torres sustained an on-the-job injury to her left wrist. Following surgery and multiple physical

therapy sessions, Torres faxed a letter from her doctor to Ms. Debbie Newman, the Human

Resources Manager for Liberto Management, Inc. (“LMI”), a sister subsidiary of Liberto Mfg., which

indicated that Torres would be returning to work on June 4, 2001. On May 15, 2001, Torres

received a letter from Newman informing Torres that she was terminated as of that date, pursuant

to Liberto Mfg.’s “Leave of Absence” policy,2 but that Torres could reapply at anytime.

        On June 4, 2001, Torres went to Liberto Mfg.’s place of business and was confronted by Mr.

Melesio Herrera, her former supervisor. Herrera told Torres that “there was not enough work,” and

refused to give Torres an application for employment. Torres then had Herrera call Newman and left



        2
        The policy provided a maximum of 90 days leave, after which the employee was considered
to have voluntarily terminated her employment.

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a message for Newman to call Torres. When Newman returned the call, she told Torres that there

was no work available and that Liberto Mfg. was not hiring.

        Torres subsequently filed a complaint against Liberto Mfg. on September 21, 2001 alleging

racial discrimination under Title VII and age discrimination in violation of the ADEA. On January

2, 2002, the district court accepted the request of the parties for bifurcated discovery and ordered that

discovery relating to jurisdictional issues be completed prior to noon on March 18, 2002, thus giving

the part ies over ten weeks to complete discovery on the jurisdictional issue alone. On March 18,

2002, Torres filed a motion to extend discovery, requesting a twenty day extension. Torres explained

that though she set-up depositions of witnesses on February 27, 2002 (only a little less than three

weeks before the deadline), two of the witnesses, Newman and Ron Mullholland, were scheduled for

March 15, 2002. As it so happened, Torres’s counsel had to be in court in Dallas that day for a

pending trial and was unable to make it to San Antonio for the depositions.

        The district court denied Torres’s motion to extend discovery on March 22, 2002. The

district court noted that Torres’s counsel had nearly two months to complete discovery and waited

until the last full business day of the discovery period to schedule the depositions. The district court

also found that the conflict Torres’s counsel faced of having a trial in Dallas, was foreseeable and that

it was Torres’s counsel’s responsibility to ensure that discovery was completed by noon.

        Liberto Mfg. then filed a motion for summary judgment on March 25, 2002, based on the fact

that it was not an “employer” for the purposes of Title VII and the ADEA because it did not employ

the requisite number of employees. On May 10, 2002, the district court referred the case to United

States Magistrate Judge William F. Sanderson to make findings and recommendations on the motion.

On August 8, 2002, the magistrate judge entered his report and recommendation that Liberto Mfg.’s


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motion for summary judgment be granted. On August 30, 2002, the district court adopted the

magistrate judge’s recommendation and granted Liberto Mfg.’s motion for summary judgment.

Torres timely filed her appeal.

                                            DISCUSSION

Did the district court abuse its discretion in denying Torres’s
motion to extend discovery?

       A district court’s decision to preclude further discovery

prior to        granting          summary    judgment    is   reviewed   for   abuse   of

discretion.         Krim v. Banctexas Group, Inc., 989 F.2d 1435, 1441

(5th Cir. 1993).             A district court’s discovery decision will be

affirmed unless it is arbitrary or clearly unreasonable.                       Moore v.

Willis Indep. Sch. Dist., 233 F.3d 871, 876 (5th Cir. 2000).

       Torres complains that summary judgement is inappropriate where

the non-moving party has not had a full opportunity to conduct

discovery.         Torres further cites to this Circuit’s decision in

International Shortstop, Inc. v. Rally’s Inc., to support her

contention that motions to extend discovery for the purposes of

summary judgment should be granted as a matter of course.                      939 F.2d

1257, 1267 (5th Cir. 1991).

       Torres misconstrues Rally’s and also leaves out an important

part of the language from that opinion.                       In Rally’s, this court

stated:

       Where the party opposing the summary judgment informs the
       court that its diligent efforts to obtain evidence from
       the moving party have been unsuccessful, a continuance of
       a motion for summary judgment for purposes of discovery

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     should be granted almost as a matter of course.     If,
     however, the nonmoving party has not diligently pursued
     discovery of that evidence, the court need not
     accommodate the nonmoving party’s belated request.

Id. at 1267 (quotations and citations omitted).          Torres was given

a full opportunity to conduct discovery but was found not to have

diligently pursued discovery by the district court.             The district

court gave both parties 75 days to conduct discovery on the sole

issue of jurisdiction.     Torres admits in her brief that she did not

begin to schedule depositions until February 27, 2002, 56 days

after the deadline was set.         Torres also set the depositions in

question for the last full business day of the discovery period and

did not request an extension until the very last day of the

discovery period.       Torres offers no explanation as to why she

waited so long to schedule the depositions or why they were

scheduled at the very end of the discovery period when her counsel

knew that she had another trial pending.           Therefore, we conclude

that the district court did not abuse its discretion in denying the

extension.     Torres    was   given   a   full   opportunity    to   conduct

discovery and chose not to take advantage of that opportunity.            The

district court’s decision is affirmed.

Did the district court err granting Liberto Mfg.’s motion for
summary judgment?

     This    Court   reviews   a   district   court’s   grant    of   summary

judgment de novo.       Young v. Equifax Credit Info. Servs. Inc.,

294 F.3d 631, 635 (5th Cir. 2002). Summary judgment is appropriate


                                       5
only “if the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.”

Fed. R. Civ. P. 56 (c).

      Torres claims that had she been able to depose Newman and

Mullholland, she would clearly have been able to establish that

Liberto Mfg. was an “employer” under Title VII and the ADEA because

all of the Liberto subsidiary corporations were a single employer.

Despite having not deposed these individuals, Torres claims that

she still has offered sufficient proof so as to overcome a motion

for summary judgment.

      Under Title VII, an “employer” is defined 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 calendar year, and any agent of such

person . . . .”       42 U.S.C. § 2000e(b).   The ADEA has almost an

identical definition for an employer except it defines it as a

person who has twenty or more employees as opposed to fifteen.

29   U.S.C.   §   630(b).   Determining   whether   a   defendant   is   an

“employer” under Title VII or the ADEA involves a two-step process:

(1) the defendant must fall within the statutory definition; and,

(2) there must be an employment relationship between the plaintiff

and the defendant.      Deal v. State Farm County Mut. Ins. Co. of



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Tex., 5 F.3d 117, 118 n.2 (5th Cir. 1993).              If a plaintiff fails to

establish that a defendant is an “employer” as defined by these

statutes then the court lacks subject matter jurisdiction over the

plaintiff’s claims.        Womble v. Bhangu, 864 F.2d 1212, 1213 (5th

Cir. 1989).

       Liberto Mfg. contends, and Torres does not dispute, that it

only employed, at most, 6 employees during the relevant time

period. Torres contends, however, that due to the interrelatedness

of Liberto Mfg. and Liberto Specialty Company, Inc. (“Liberto SI”),

its parent corporation, these corporations should be treated as a

single      business   enterprise,     pursuant    to    the   “single   employer

doctrine.” This theory is based on this Circuit’s broad definition

of    the   term   “employer”    that    includes       superficially    distinct

entities that are sufficiently interrelated so as to constitute a

single, integrated enterprise.          Lusk v. Foxmeyer Health Corp., 129

F.3d 773, 777 (5th Cir. 1997).

       Torres urges this Court to apply the “single employer” test of

Trevino v. Celanese Corp., 701 F.2d 397, 404 (5th Cir. 1983) and

Lusk.       Both parties agree that the factors this Court should

consider under this test are: (1) interrelation of operations,

(2)     centralized    control    of    labor     or    employment   decisions,

(3) common management, and (4) common ownership or financial

control. Trevino, 701 F.2d at 404.                 This analysis ultimately

focuses on the question of whether the parent corporation was a


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final decision-maker in connection with the employment matters

underlying the litigation.                 Id.

       In her brief, the only factor that Torres attempts to argue is

that the second Trevino factor applies because it was Newman, an

employee of LMI, another Liberto SI subsidiary, that fired Torres.3

Though this Court has noted that the second Trevino factor is the

most important, Vance v. Union Planters Corp., 279 F.3d 295, 297

(5th Cir. 2002), this Court still considers all four factors to

determine “whether the parent corporation was a final decision-

maker in connection with the employment matters underlying the

litigation.”         Lusk, 129 F.3d at 777.             Torres’s reliance on this one

factor is not persuasive.4

       In assessing whether there is centralized control of labor

relations, this Court focuses on determining what entity made the

final decision regarding employment matters related to the person

claiming discrimination. Vance, 279 F.3d at 297; Trevino, 701 F.2d

at 404.       Despite Torres’s allegations that Newman is the one who

terminated         her,      the     magistrate         judge       found      that      it     was


       3
        Torres does not argue in her brief the other factors, but instead attempts to incorporate by
reference her arguments below. This is not permitted and all such arguments are waived. See Cinel
v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994) (noting that because the appellant attempted to
incorporate its arguments below by reference, such arguments were waived); Yohey v. Collins, 985
F.2d 222, 224-25 (5th Cir. 1993).
       4
         It is also worth noting that the magistrate judge found that Torres had completely failed to
offer any proof of how many employees Liberto SI or LMI had and only offered a speculative number
of 192 which turned out to be erroneously based on one of Torres’s earnings statements (the number
192 was the check number).

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uncontroverted that it was Herrera, a Liberto Mfg. employee, who

made the decision to fire her, and that he simply asked Newman to

notify Torres of the termination.            The magistrate judge also found

that all statements that were made to Torres by Newman were simply

re-iterations and affirmations of what Herrera told Torres. Torres

also makes a vague reference in her brief to the fact that, because

Newman   stated    in   an   affidavit       that   her   position    as   a   Human

Relations Manager meant that she provides support to all of Liberto

SI’s subsidiaries, there must be common management. Nothing in the

quoted statements, however, indicates that Newman had control over

management decisions in the multiple subsidiaries. As we find that

Torres’s   vague    arguments    on   this      point     regarding   centralized

control fail, we conclude that the district court did not err in

adopting the magistrate judge’s recommendation, and, therefore,

affirm the district court’s decision.

                                 CONCLUSION

     Having carefully reviewed the record of this case and the

parties’ respective briefing and for the reasons set forth above,

we conclude that the district court did not abuse its discretion in

denying Torres’s motion to extend discovery or err in granting

summary judgment in favor of the defendant, Liberto Mfg.                         We

therefore AFFIRM the district court’s decision.

AFFIRMED




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