                            In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 07-1118
DENISE N. MOLDENHAUER,
                                              Plaintiff-Appellant,
                               v.

TAZEWELL-PEKIN CONSOLIDATED
COMMUNICATIONS CENTER, et al.,
                                           Defendants-Appellees.
                        ____________
           Appeal from the United States District Court
               for the Central District of Illinois.
             No. 04-1169—Michael M. Mihm, Judge.
                        ____________
     ARGUED NOVEMBER 6, 2007—DECIDED JULY 31, 2008
                        ____________


 Before FLAUM, KANNE, and ROVNER, Circuit Judges.
  ROVNER, Circuit Judge. We are asked to consider one
issue in this appeal: what qualifies as a joint-employment
relationship under the Family Medical Leave Act (FMLA)?
Denise Moldenhauer worked as a dispatcher for the
Tazewell-Pekin Consolidated Communications Center
(Tazcom), a non-profit entity providing emergency 911
communications, until she was terminated for excessive
absenteeism resulting from her chronic pancreatitis. She
brought suit, claiming Tazcom, the City of Pekin, and
Tazewell County were joint employers that together
2                                                No. 07-1118

retaliated against her for attempting to exercise her
rights under the FMLA. See 29 U.S.C. § 2612(a)(1). The
district court granted defendants’ motion for summary
judgment, concluding that Tazcom, Pekin, and Tazewell
were not joint employers and that Tazcom alone was too
small to qualify as an employer under the FMLA. We
decline to extend joint-employer liability in this case
because (1) there is no evidence that Pekin and Tazewell
exhibited control over the work or working conditions
of Moldenhauer, (2) Tazcom was not formed to evade the
requirements of the FMLA, and (3) the policies of the
small-employer exception are furthered by limiting em-
ployer liability in this case. Therefore, we affirm.


                      I. Background
   The facts are construed in the light most favorable to
Moldenhauer. See Darst v. Interstate Brands Corp., 512 F.3d
903, 907 (7th Cir. 2008). Moldenhauer began working
at Tazcom in August 1983 as a dispatch telecommunicator.
In 1991 she was diagnosed with chronic pancreatitis
causing acute flare-ups that required pain medication, bed
rest, and a restricted diet. Initially, these flare-ups caused
her to miss only a limited amount of work, but as her
illness progressed so did the amount of work she was
forced to miss. The Tazcom Executive Director, Steve
Thompson, first voiced concern regarding Moldenhauer’s
absenteeism in 1998. One year later he wrote a letter
informing her that she was eligible for up to twelve
weeks of leave under the FMLA if her health problems
persisted.
  Moldenhauer’s chronic pancreatitis continued to cause
her to miss work, and in May of 2002 she notified Thomp-
No. 07-1118                                             3

son in writing that she wished to invoke her rights under
the FMLA. Tazcom disputes whether Thompson ever
received this notification. But, in any event, Moldenhauer
claims that Thompson denied her request for FMLA leave,
and she then filed a complaint with the U.S. Department
of Labor (U.S. DOL). An investigation culminated in a
preliminary letter from the U.S. DOL labeling Tazcom,
Pekin, and Tazewell joint employers under the FMLA.
  In January 2003 Thompson suspended Moldenhauer
for twenty days due to her absenteeism, her third sus-
pension for missing work. After returning from her
suspension, she again missed work, and Thompson fired
her in April 2003 after notifying the Tazcom Executive
Board of his decision.
  Moldenhauer brought suit in district court, alleging
many different causes of action. As is relevant here,
she claimed that Tazcom, Pekin, and Tazewell retaliated
against her for trying to exercise her rights under the
FMLA. The district court granted summary judgment
in favor of the defendants, reasoning that Pekin and
Tazewell did not have control over Tazcom employees
and therefore were not joint employers of Moldenhauer.
Summary judgment was appropriate in favor of Tazcom,
the court reasoned, because it had fewer than fifty em-
ployees and was therefore exempt from the FMLA.
   Because the court’s decision turned on the amount of
control Pekin and Tazewell exercised over Moldenhauer,
it is important to understand the relationship between
Pekin, Tazewell, and Tazcom. Pekin and Tazewell created
Tazcom in 1976 as a non-profit corporation in Illinois to
provide emergency 911 communications at a more af-
fordable rate. Tazcom serves thirty-eight public and
private entities.
4                                              No. 07-1118

   Tazcom was established as a independent entity, but, as
its name suggests, it does a great deal of business
with Pekin and Tazewell. All of Tazcom’s clients pay for
their emergency services. But the bulk of Tazcom’s operat-
ing budget is derived from Pekin and Tazewell, who are
the largest users of Tazcom’s services. Tazcom also rents
office space from Pekin, and in order to enter the build-
ing, Tazcom’s employees were issued Pekin identifica-
tion badges. It is unclear from the record whether Tazcom
paid rent prior to 2001, but the parties agree that Tazcom
regularly paid Pekin rent since 2001.
   Tazcom also contracted with Pekin for the provision of
various services. This contract was embodied in the “Letter
of Understanding,” dated May 1, 1996, which explained,
“Employees of the Tazewell/Pekin Consolidated Com-
munications Center shall be considered employees of
the City of Pekin for the purposes of providing Payroll,
Health Care Insurance, Workers Compensation Insurance,
and Illinois Municipal Retirement.” Tazcom paid Pekin
$4,974 per year in exchange for payroll services. According
to Pekin, technological limitations required that all Tazcom
employees be labeled as Pekin employees to provide
payroll services. Pekin was also listed as Moldenhauer’s
employer on many of her employment forms, including
her W-2s, wage garnishment form, and direct deposit
form. Additionally, as detailed in the Letter of Under-
standing, when Moldenhauer participated in the Illinois
Municipal Retirement Fund she did so as an employee
of Pekin, and the Tazcom sexual harassment policy
listed a Pekin city employee as the reporting official for
potential claims. Finally, prior to 2002, Tazcom con-
tracted with Pekin for health and life insurance providers,
although it has since procured its own providers.
No. 07-1118                                               5

   As for the day-to-day operations of Tazcom, the parties
dispute what level of control Pekin and Tazewell exercised
over Tazcom. The Tazcom bylaws stipulate that a board
of directors be appointed consisting of four individuals:
the Sheriff of Tazewell, the Chairperson of the Tazewell
Board of Supervisors, the Mayor of Pekin, and the Pekin
Chief of Police, all of whom have the choice of serving
personally or designating an alternate to serve in their
place. But the board appoints a separate Executive Di-
rector to manage the day-to-day operations, including
the hiring and firing of employees and creation of a
preliminary budget. During all periods relevant to this
litigation, Steven Thompson served as the Executive
Director. Thompson is not affiliated with Pekin or Tazewell
in any way and is only employed by Tazcom.
   Based on these facts, Moldenhauer appeals the district
court’s grant of summary judgment, arguing that Pekin,
Tazewell, and Tazcom are joint employers and therefore
liable under the FMLA.


                       II. Analysis
  We review a grant of summary judgment de novo,
construing all facts and inferences in favor of the non-
moving party. See Lewis v. Sch. Dist. #70, 523 F.3d 730, 740
(7th Cir. 2008). Summary judgment is appropriate where
there is no genuine issue of material fact. See Breneisen
v. Motorola, Inc., 512 F.3d 972, 977 (7th Cir. 2008). The
majority of the facts in this case are undisputed, and
therefore the key issue turns on whether, under these
facts, Tazcom, Pekin, and Tazewell were joint employers
under the FMLA.
6                                               No. 07-1118

   The FMLA provides eligible employees up to twelve
weeks of unpaid leave in any twelve-month period for
personal medical conditions or to attend to familial obliga-
tions, such as caring for a loved one who has a serious
health condition. 29 U.S.C. §§ 2612, 2615. The Act makes
it “unlawful for any employer to interfere with, restrain,
or deny the exercise of or the attempt to exercise, any
right provided under [the FMLA],” 29 U.S.C. § 2615, and
the Act provides for a private right of enforcement, 29
U.S.C. § 2617(a). The primary aim of the FMLA is “to
balance the demands of the workplace with the needs
of families . . . in a manner that accommodates the legiti-
mate interests of employers . . . .” 29 U.S.C. § 2601(b)(1) &
(3). To effectuate this aim, Congress exempted “small
employers,” defined as employers with fewer than fifty
employees. 29 U.S.C. § 2611(4)(A).
  The Act itself does not address situations where joint-
employer liability will be imposed. See, e.g., Moreau v. Air
France, 343 F.3d 1179, 1182 (9th Cir. 2003). But Congress has
instructed the U.S. DOL to “prescribe such regulations as
are necessary to carry out” the purpose of the FMLA. 29
U.S.C. § 2654; see also Chevron v. Natural Res. Def. Council,
Inc., 467 U.S. 837, 842-43 (1984) (holding that deference
is due an agency’s reasonable interpretation of a silent
or ambiguous statute). In turn, the U.S. DOL promulgated
regulations explaining circumstances where a joint-em-
ployment relationship may exist:
    (a) Where two or more businesses exercise some
    control over the work or working conditions of the
    employee, the businesses may be joint employers
    under FMLA. Joint employers may be separate and
    distinct entities with separate owners, managers and
    facilities. Where the employee performs work which
No. 07-1118                                                7

    simultaneously benefits two or more employers, or
    works for two or more employers at different times
    during the workweek, a joint employment relation-
    ship generally will be considered to exist in situations
    such as:
        (1) Where there is an arrangement between em-
        ployers to share an employee’s services or to
        interchange employees;
        (2) Where one employer acts directly or indirectly
        in the interest of the other employer in relation
        to the employee; or,
        (3) Where the employers are not completely disas-
        sociated with respect to the employee’s employ-
        ment and may be deemed to share control of
        the employee, directly or indirectly, because one
        employer controls, is controlled by, or is under
        common control with the other employer.
29 C.F.R. § 825.106(a).
  But this regulation, which focuses on whether multiple
entities exercise “some control” over the employee, does
not answer the question before us and does not even
provide much guidance in determining the parameters
of what constitutes a joint-employment relationship. And
although this court has yet to address the scope of joint-
employer liability under the FMLA, the other circuits
that have addressed the issue have looked at the em-
ployment situation as a whole, analyzing the amount of
control the alleged joint employer had over employees. See
Grace v. USCAR, 521 F.3d 655, 665-69 (6th Cir. 2008);
Moreau, 343 F.3d at 1188-90; Morrison v. Magic Carpet
Aviation, 383 F.3d 1253, 1257-58 (11th Cir. 2004). In assess-
ing the amount of control an employer exercised over
8                                              No. 07-1118

an employee, other courts have addressed various
factors such as whether the alleged employer “(1) had
the power to hire and fire employees, (2) supervised and
controlled employee work schedules or conditions of
payments, (3) determined the rate and method of pay-
ment, and (4) maintained employment records.” Moreau,
343 F.3d at 1183 (internal quotation marks and citation
omitted). Moldenhauer asks us to adopt a similar list of
factors that are relevant to the determination of a joint-
employer relationship. But we decline to so limit our
review in this case or subsequent cases. Although these
factors are certainly relevant in deciding whether an
employer-employee relationship exists, it would be
foolhardy to suggest that these are the only relevant
factors, or even the most important.
  Rather, we hold generally that for a joint-employer
relationship to exist, each alleged employer must exercise
control over the working conditions of the employee,
although the ultimate determination will vary de-
pending on the specific facts of each case. See Reyes v.
Remington Hybrid Seed Co., 495 F.3d 403, 408 (7th Cir.
2007); 29 C.F.R. § 825.106. Although this circuit has yet
to address joint-employer liability under the FMLA, in
Reyes we held that both the farm that employed migrant
workers and the recruiter who placed the workers at
the farm were joint employers under the Fair Labor
Standards Act because both controlled the workers’ daily
activities and working conditions. Id. at 404-08. The joint-
employer regulation in the FLSA mirrors that in the
FMLA, compare 29 C.F.R. § 825.106(a) with 29 C.F.R.
§ 791.2(b), and thus it makes sense for us to use this
standard to govern the FMLA.
 Our application of this test to Tazcom’s relationship
with Pekin is guided by the Sixth Circuit’s opinion in
No. 07-1118                                                 9

Grace v. USCAR. In Grace a staffing agency assigned the
plaintiff to work at a design firm. Grace, 521 F.3d at 659-61.
At all times during the plaintiff’s employment she re-
mained on contract with the staffing agency, receiving
her pay and benefits from it. Id. at 660, 667. But the design
firm supervised the plaintiff’s day-to-day activities and
determined her salary and hours. Id. at 667. The Sixth
Circuit analyzed the totality of the plaintiff’s employment
situation and found that a joint-employment relationship
existed because both employers maintained control over
the employee. Id. In contrast, in Moreau v. Air France, the
Ninth Circuit held that an airline that contracted for the
provision of ground services at the airport was not a
joint employer of the plaintiff because the airline did not
maintain any authority to control the workers, i.e., it
could not hire or fire employees, determine salaries, or
direct day-to-day activities. See 343 F.3d at 1190. Instead,
the airline only evaluated whether the contracted-for
services were supplied satisfactorily. See id.
  Additionally, Reyes, Grace, and Moreau square perfectly
with the U.S. DOL’s specification that “joint employment
will ordinarily be found to exist when a temporary or
leasing agency supplies employees to a second employer.”
29 C.F.R. § 825.106(b). In Reyes and Grace, the primary
employer placed workers with the alleged secondary
employer, but both employers maintained significant
control over the employee and were thus found to be joint
employers. In Moreau, the alleged secondary employer
simply contracted for services provided by the primary
employer—it had no actual control over the employee—
and no joint-employment relationship was found to exist.
  Turning to the facts in this case, Moldenhauer stresses
the “laundry list” of services that Tazcom received from
10                                                No. 07-1118

Pekin, including payroll and insurance providers. But, as
in Moreau, Tazcom contracted with Pekin for the pro-
vision of those services, which is insufficient to establish
a joint-employment relationship. And although Tazewell is
named as a defendant, Moldenhauer does not advance any
arguments or evidence that would suggest that Tazewell
performed the functions of an employer. Noticeably
Moldenhauer cannot point to one instance of either Pekin
or Tazewell hiring a Tazcom employee, determining the
working conditions of the dispatchers (such as by specify-
ing the number of dispatchers working at any given time
and thus affecting the workload of each dispatcher), or
deciding the compensation for a Tazcom dispatcher.
Although it is true that Executive Director Thompson
contacted the Tazcom board when he fired Moldenhauer,
what is key is that he did not first contact Pekin or
Tazewell for permission. And although the letter from the
U.S. DOL stating that Pekin, Tazewell, and Tazcom were
joint employers of Moldenhauer may be persuasive, it is
not conclusive. See Christensen v. Harris County, 529 U.S.
576, 587 (2000); Sehie v. City of Aurora, 432 F.3d 749, 753 (7th
Cir. 2005). The U.S. DOL opinion letter cannot govern in
this case because, unlike in Grace and Reyes, neither Pekin
nor Tazewell exercised any control over Moldenhauer’s
employment, and thus, in the totality of the circumstances,
neither can be considered joint employers under the FMLA.
  This holding is consistent with the purpose behind the
small-employer exception. The reason small employers
are exempted from compliance with the FMLA is be-
cause “[f]irms too tiny to achieve the realizable eco-
nomies of scale or scope in their industry will go under
unless they can integrate some of their operations with
those of other companies, whether by contract or owner-
No. 07-1118                                               11

ship.” Papa v. Katy Indus., Inc., 166 F.3d 937, 942 (7th
Cir. 1999). Tazcom contracted with Pekin to use its payroll
and benefits processing precisely for these reasons—
providing payroll and benefits on its own may have
proved too costly for such a small employer. Tazcom
employs only twenty-three individuals who provide
emergency dispatch services twenty-four hours a day,
seven days a week. This is exactly the type of business
that is unable to absorb an employee’s twelve-week
absence for FMLA leave. And there is no evidence in the
record that either Pekin or Tazewell could supply an
employee to Tazcom to cover such an absence.
  Finally, we note that we will not tolerate an organiza-
tion dividing itself into smaller entities with fewer than
the statutory minimum number of employees for the
express purpose of avoiding FMLA obligations. See Papa,
966 F.3d at 941. And where such evidence exists, we
will not hesitate to deem these entities joint employers
for purposes of the FMLA. But here there is absolutely
no evidence that Pekin and Tazewell created Tazcom in
order to avoid their FMLA responsibilities. Indeed, Tazcom
was created in 1976, seven years before the FMLA was
enacted. Moldenhauer stresses that Tazcom’s board of
directors was filled with officials from Pekin and Tazewell.
But never does Moldenhauer point to any evidence that
these individuals acted as representatives of Pekin or
Tazewell. There are no allegations that any of the di-
rectors, when acting in their capacity as a Tazcom di-
rector, sought to advocate for Pekin or Tazewell. Molden-
hauer seems to suggest that because these leaders sat on
the Tazcom board, it is implicit that Pekin and Tazewell
were joint employers of Tazcom. But many government
officials sit on many boards, and this fact alone cannot
suffice to justify the extension of joint-employer liability.
12                                           No. 07-1118

                    III. Conclusion
   Consistent with the purpose of the FMLA small-em-
ployer exemption, we hold that Pekin and Tazewell are not
joint employers of Moldenhauer. The parties agree that,
because Tazcom has fewer than fifty employees, it
cannot be held liable under the FMLA. And because
Moldenhauer expressly withdrew her claims against the
individual defendants, the judgment of the district court
is AFFIRMED in all respects.




                  USCA-02-C-0072—7-31-08
