                     Revised January 28, 2002

                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit



                           No. 01-60216



                         YVONNE E. VANCE,

                                                 Plaintiff-Appellee,


                              VERSUS


                  UNION PLANTERS CORP., ET AL.,

                                                          Defendant,


                    UNION PLANTERS BANK, N.A.,

                                                Defendant-Appellant.




           Appeal from the United States District Court
             for the Northern District of Mississippi


                         January 10, 2002
Before JONES and DeMOSS, Circuit Judges, and FELDMAN,* District
Judge.

DeMOSS, Circuit Judge:

      Plaintiff Yvonne Vance sued Union Planters Bank, N.A. under

Title VII, alleging gender discrimination.       A jury awarded her


  *
     District Judge of the Eastern District of Louisiana, sitting
by designation.
$30,000   for    lost   wages   and   benefits,   $20,000   for   emotional

distress, and $390,000 in punitive damages.           The district court

later reduced the compensatory and punitive damage awards to

$300,000 to comply with Title VII’s statutory limits on employer

liability.      42 U.S.C. § 1981a(3)(D).

     On appeal by Union Planters, we affirmed the district court’s

judgment as to liability.        Vance v. Union Planters Corp., 209 F.3d

438, 447 (5th Cir. 2000) [Vance I]. However, because we determined

that the record was not sufficiently developed to determine the

amount of the applicable damage cap, we vacated the damages award

and remanded to the district court for further discovery and an

evidentiary hearing.

     On remand, the district court set a time period for discovery

and a briefing schedule for the parties to submit evidence and

arguments to the court.         After reviewing the parties’ voluminous

submissions, the court concluded again that the judgment was

subject to a $300,000 Title VII cap.        Union Planters then brought

this appeal.       Because we determine that $100,000, rather than

$300,000, is the applicable statutory cap, we modify the damages

portion of the district court’s judgment.



I.   THE DAMAGES CAP

     The limitations on Title VII compensatory and punitive damages

is found in 42 U.S.C. § 1981a(b), which provides:


                                      2
             (3)     Limitations

             The sum of the amount of compensatory damages
             awarded under this section for future pecuniary
             losses, emotional pain, suffering, inconvenience,
             mental anguish, loss of enjoyment of life, and
             other nonpecuniary losses, and the amount of
             punitive damages awarded under this section, shall
             not exceed, for each complaining party–

             (A)     in the case of a respondent who has more than
                     14 and fewer than 101 employees in each of 20
                     or more calendar weeks in the current or
                     preceding calendar year, $50,000;

             (B)     in the case of a respondent who has more than
                     100 and fewer than 201 employees in each of 20
                     or more calendar weeks in the current or
                     preceding calendar year, $100,000; and

             (C)     in the case of a respondent who has more than
                     200 and fewer than 501 employees in each of 20
                     or more calendar weeks in the current or
                     preceding calendar year, $200,000; and

             (D)     in the case of a respondent who has more than
                     500 employees in each of 20 or more calendar
                     weeks in the current or preceding calendar
                     year, $300,000.

42 U.S.C. § 1981a(b)(3).            For purposes of this statute, we have

held that the “current year” refers to the year in which the

discriminatory act took place, not the year of judgment.            See Vance

I, 209 F.3d at 446; cf. Dumas v. Town of Mount Vernon, 612 F.2d

974, 979 n.4 (5th Cir. 1980).

     The statute limits allowable damages based on the number of

employees employed by the employer in the current year, but it is

silent about how to identify the relevant employer.                Thus, when

there   is    more     than   one    entity   involved,   either   through   a


                                         3
parent/subsidiary or a joint-employer relationship, the question

becomes: Which entities’ employees are counted for purposes of

calculating the damages cap?       Pertinent to this inquiry is the

question of whether the complaining employee in a particular case

was denied a new job with a new employer (i.e., a “failure to hire”

claim), or whether the complaining employee was denied a transfer

to another nominally independent, but sufficiently interrelated,

entity (i.e., a “failure to promote” claim).

     In Trevino v. Celanese Corp., we provided some direction on

how to identify the relevant entity or entities in these types of

cases:

          Ordinarily, promotion is perceived as occurring
          within a single company or organization.      It is
          clear, however, that an employee may also be
          promoted, or denied promotion, from one to another
          nominally independent entity, provided these two
          entities’ activities, operations, ownership or
          management are sufficiently interrelated. Whether
          transfer from one workforce to another constitutes
          a “promotion” or a “hiring” depends on the facts of
          each particular case; however, the degree of
          interrelatedness between companies required before
          an employee will be considered to have been
          “promoted” as he transfers from one to the next
          cannot reasonably be said to exceed that degree of
          connexity which the courts require for a finding of
          joint employer or integrated enterprise status.

701 F.2d 397, 403 (5th Cir. 1983).            Factors we consider to

determine if distinct entities constitute an integrated enterprise

are (1) interrelation of operations, (2) centralized control of

labor relations, (3) common management, and (4) common ownership or

financial control.   Id. at 404.       “Courts applying this four-part

                                   4
standard in Title VII and related cases have focused on the second

factor:   centralized      control     of      labor    relations.”          Id.   “This

criterion   has     been   further    refined      to    the    point    that      ‘[t]he

critical question to be answered then is: What entity made the

final decisions regarding employment matters related to the person

claiming discrimination?’”           Id.



II.    BACKGROUND

       Whether two employers are engaged in an integrated enterprise

for purposes of Title VII is a fact intensive determination.                         Id.

at 403.    Thus, a review here of the relevant facts, some of which

are already set forth in our Vance I opinion, is necessary.                        Union

Planters Corporation (UPC), which already owned 100% of First

National Bank of New Albany (FNB) and 100% of United Southern Bank

(USB), agreed in July 1994 to purchase 100% of Grenada Sunburst

Bank (Sunburst) effective December 31, 1994.                   Vance I, 209 F.3d at

440.

       Following UPC’s purchase of Sunburst, Sunburst’s name was

changed to Union Planters Bank of Mississippi (Sunburst/UPBMS);

USB’s   name   was   changed    to    Union      Planters       Bank    of   Northwest

Mississippi (USB/UPBNW); and FNB’s name was changed to Union

Planters Bank of Northeast Mississippi (FNB/UPBNE).                          Id.     UPC

appointed Pat Davis, who had previously been the president of FNB,

to run FNB/UPBNE.      Id.    Because both Sunburst/UPBMS and USB/UPBNW


                                           5
had branches in Oxford, UPC decided that these branches were to be

consolidated into FNB/UPBNE’s Oxford branch.1                   Id.     Davis was

charged with hiring a president for this newly consolidated Oxford

bank branch.   Id.

      Yvonne Vance, the plaintiff, had been president of Sunburst’s

branch in Oxford, Mississippi, for seven years and she applied for

the position of president of the new consolidated branch.                       Id.

However, on March 15, 1995, Davis hired Tom Carroll instead of

Vance to   fill    this   position.2         Id.    Vance   sued      Davis,   UPC,

Sunburst/UPBMS, USB/UPBNW, and FNB/UPBNE for gender discrimination.

After conducting depositions, Vance agreed that all defendants

should be dismissed except UPC and FNB/UPBNE.            In January 1998, the

district   court   also    dismissed       UPC,    concluding    that    UPC    and

FNB/UPBNE did not constitute a single integrated enterprise. Thus,

the only   remaining      defendant    was    FNB/UPBNE.        Later    in    1998,

Sunburst/UPBMS, USB/UPBNW, and FNB/UPBNE merged with Union Planters

Bank, N.A. (UPBNA).       Consequently, UPBNA was substituted as the

defendant for FNB/UPBNE.

      The trial was finally held, and the jury concluded that Davis

had engaged in illegal gender discrimination in passing up Vance

for this position.     Id. at 439.     It awarded Vance $30,000 for lost


  1
      FNB/UPBNE, Sunburst/UPBMS, and USB/UPBNW were separately
chartered banks with other branches in locations other than Oxford.
  2
      At the time, Tom Carroll was serving as an administrative
assistant to Don Ayres, president of Sunburst.

                                       6
wages and benefits, $20,000 for emotional distress, and $390,000 in

punitive damages.          UPBNA argued to the district court that the

punitive and compensatory damages should be reduced to $100,000

because FNB/UPBNE only employed approximately 140 people at the

time the discriminatory act occurred.            See 42 U.S.C. § 1981a(b)(3)

(capping damages at $100,000 for employers with “more than 100 and

fewer than 201 employees in each of 20 or more calendar weeks in

the current or preceding calendar year”).              However, the district

court concluded that the date of judgment, rather than the date of

the discriminatory act is the date on which the employee count is

relevant under § 1981a.              Then it noted that UPBNA, the newly

consolidated bank and the substituted defendant, had well over 500

employees on the date of judgment.                  Alternatively, the court

suggested    that    “no    single    subsidiary”    could   realistically   be

considered Vance’s would-be employer; thus, the “discriminatory act

was done on behalf of a large corporation.”            Accordingly, it capped

the compensatory and punitive damages at $300,000, the relevant cap

for    employers    with    more   than   500   employees.     See   42   U.S.C.

§ 1981a(b)(3)(D).

       The bank appealed, and this Court affirmed as to liability.

Vance I, 209 F.3d at 440.          However, we disagreed with the district

court’s conclusion that, for purposes of § 1981a’s cap on damages,

the employer’s size is measured at the date of the verdict.               Id. at

446.    Instead, we explained, the year of the discriminatory act is


                                          7
the correct measure.   Id.   Thus, we remanded for the district court

to determine the relevant employer and employer size on the date

the discriminatory act occurred.

     On remand, the district court focused on March 15, 1995, as

the date the discrimination took place.              It then concluded that

Sunburst/UPBMS was the relevant employer at this time for purposes

of counting employees to apply the damage cap.           The court began by

noting that Carroll, the person hired instead of Vance, remained on

Sunburst/UPBMS’s payroll until March 31, 1995.            Thus, it reasoned

that if Vance had been hired on March 15th instead of Carroll, she

would have likewise remained on Sunburst/UPBMS’s payroll until

March   31,   1994.    For   this    reason,     the     court    found    that

Sunburst/UPBMS was Vance’s prospective employer whose employees

should be counted in calculating the damage cap.             The parties do

not dispute that on March 15, 1995, Sunburst/UPBMS had more than

500 employees.

     Alternatively, the district court concluded that, based on the

factors this Court articulated in Trevino, 701 F.2d at 403-404,

Sunburst/UPBMS,   USB/UPBNW,   and       FNB/UPBNE    constituted    a    single

integrated entity for purposes of the damage cap.                Because these

three entities had an aggregate total number of employees well in

excess of 500, the court concluded that the appropriate measure of

compensatory and punitive damages under § 1981a(b)(3) was $300,000.

UPBNA appeals again to this Court.


                                     8
III. ANALYSIS

      We review the district court’s decision de novo.                 Llampallas

v. Mini-Circuits, 163 F.3d 1236, 1244 (11th Cir. 1999).                 There is

no   dispute   as   to   the   number   of    employees    employed      by   each

subsidiary in 1995; FNB/UPBNE had approximately 140 employees, and

Sunburst/UPBMS and USB/UPBNW each had more than 500 employees each.

Thus, we must first resolve the question of who would have been

Vance’s employer had she been offered the position of president of

the new branch.      Then, only if we decide that Vance’s would-be

employer had less than 500 employees in 1995 need we reach the

second question of whether the three subsidiaries, Sunburst/UPBMS,

USB/UPBNW, and FNB/UPBNE, should be considered a single integrated

enterprise for purposes of aggregating their employees to calculate

the appropriate damages cap.

      After    carefully   reviewing        the   record   and   the    parties’

evidence, we conclude that the district court erred in finding that

Sunburst/UPBMS would have been Vance’s employer had she been

offered the position of president of the new bank.                 Rather, we

conclude that FNB/UPBNE is the relevant employer.                We reach this

conclusion by reference to Carroll’s position after he was hired

instead of Vance.

      “An individual qualifies as an employer under Title VII solely

for purposes of imputing liability to the true employer if he or

she serves in a supervisory position and exercises significant


                                        9
control over the plaintiff’s hiring.”          Haynes v. Williams, 88 F.3d

898, 899 (10th Cir. 1996).           It is clear and undisputed from the

record that Davis served “in a supervisory position” for FNB/UPBNE

and exercised “significant control over [Carroll’s] hiring.”                  Id.

The evidence reflects that Carroll was hired to run FNB/UPBNE’s

Oxford branch that would eventually subsume Sunbelt/UPBMS’s and

USB/UPBNW’s Oxford branches.           Carroll was hired by Davis, who was

president of FNB/UPBNE, and it is undisputed that Carroll answered

only to Davis and FNB/UPBNE.

      Moreover, the fact that Carroll remained on Sunburst/UPBMS’s

payroll for two weeks after being hired for his new position—a

fact the district court considered dispositive—does not alter our

analysis.3    Vance even notes in her brief that during the time that

Carroll     was    not   yet    on   FNB/UPBNE’s     payroll,     he   was   only

“technically assigned” to another bank and that “he reported [only]

to Pat Davis who operated FNB . . . .”                      Regardless of who

temporarily paid Carroll, no one has argued that Carroll actually

performed    work    for   or    was    supervised    by    Sunburst/UPBMS     or

USB/UPBNW.        The bottom line is that the position Vance sought

(which    Carroll    instead     received)    was    that    of   president    of




  3
     After being hired as president of the new branch in March,
Carroll remained on Sunburst/UPBMS’s payroll for two weeks, and
then he was paid by USB/UPBNW for four months, and then, finally,
he began receiving pay from FNB/UPBNE in July.

                                        10
FNB/UPBNE’s Oxford branch, not that of a temporary employee of

Sunburst/UPBMS or USB/UPBNW.

      In sum, we hold that FNB/UPBNE’s failure to place Carroll on

its   payroll       for   five   months     does    not    necessarily       mean    that

FNB/UPBNE     cannot      be   Vance’s      would-be      employer    for    Title    VII

purposes.       And       we   conclude     that    because      Davis,     acting    for

FNB/UPBNE, was the sole decision maker about who was hired to act

as the branch president, Davis qualified as the discriminating

employer      for    “purposes        of   imputing    liability       to    the     true

employer”—FNB/UPBNE.           Id.

      The parties agree that FNB/UPBNE had about 140 employees in

1994.    Section 1981a provides that damages cannot exceed, “in the

case of a respondent who has more than 100 and fewer than 201

employees, in each of 20 or more calendar weeks in the current or

preceding calendar year, $100,000.” Accordingly, with FNB/UPBNE as

the relevant employer rather than Sunburst/UPBMS, the correct

damages cap under § 1981a is $100,000.

      Because       FNB/UPBNE        had   less    that    500     employees,       which

represents the upper limit of the damages cap, we must now address

Vance’s argument          that   FNB/UPBNE,        Sunbelt/UPBMS,      and   USB/UPBNW

constituted a “single integrated enterprise,” such that their

number   of    employees       should      be    aggregated   in     calculating      the

appropriate damages cap.               To properly focus our analysis, we

preliminarily note that the question is not whether FNB/UPBNE and


                                            11
its parent company, UPC, were integrated enterprises. The district

court, in its January 1998 order, applied the Trevino factors to

correctly hold that UPC was not a single integrated enterprise with

FNB/UPBNE.4    And Vance recognizes as much in her brief.5

      However, the district court, on remand from the defendant’s

prior   appeal,   concluded   that        Sunbelt/UPBMS,    USB/UPBNW,    and

FNB/UPBNE were a single integrated enterprise.             It reasoned:

          By analyzing evidence submitted by both parties in
          light of the Trevino factors . . . the court finds
          that during the relevant time period, in matters of
          administrative personnel, all decisions were made
          by Pat Davis in his position as the individual with
          administrative control over the Oxford branches of
          SB and USB as well as the President and CEO of FNB
          and said administrative decisions were on behalf of
          UPC; as such, SB, FNB, and USB were an integrated
          enterprise for purposes of Title VII liability.

We disagree.    In determining whether distinct entities constitute



  4
     UPC, as FNB/UPBNE’s parent company, is not liable as Vance’s
would-be employer absent a finding that UPC and FNB/UPBNE are
integrated enterprises.     See Chaiffetz v. Robertson Research
Holding, Ltd., 798 F.2d 731, 735 (5th Cir. 1986) (“[T]he formula of
Trevino v. Celanese Corp. . . . lets one decide whether a parent
company is the de facto employer of the plaintiff.”). The district
court, after reviewing the evidence and applying the Trevino
factors, concluded that “the plaintiff has failed to create a
genuine issue of material fact as to existence of a single
integrated enterprise, and therefore, the defendant Union Planters
Corporations is entitle to summary judgment as it is not the
plaintiff’s employer.”
  5
     In her brief, Vance acknowledges that, prior to our decision
in Vance I, the district court applied the Trevino factors “in the
context of the relationship between UPB and FNB (UPBNE).” Thus,
Vance properly limits her argument to the contention that
Sunbelt/UPBMS, USB/UPBNW, and FNB/UPBNE constitute a single
integrated enterprise.

                                     12
a single integrated enterprise we have consistently focused, almost

exclusively,   on   “one    question:        which    entity     made   the   final

decisions regarding employment matters relating to the person

claiming    discrimination?”       Skidmore          v.   Precision     Printing   &

Packaging, Inc., 188 F.3d 606, 617 (5th Cir. 1999); Schweitzer v.

Advanced Telemarketing Corp., 104 F.3d 761, 765 (5th Cir. 1997)

(“The critical question is the following: which entity made the

final decisions regarding employment matters related to the person

claiming discrimination?”); Chaiffetz, 798 F.2d at 735 (“We place[]

highest importance on the second [Trevino] factor, rephrasing and

specifying it so as to boil down to an inquiry of ‘what entity made

the final decisions regarding employment matters related to the

person claiming discrimination.’”).

     We have already determined that FNB/UPBNE was Vance’s would-be

employer and thus the employer who discriminated against her by not

hiring her as president of the new Oxford branch.                Accordingly, to

support the district court’s finding of joint enterprise between

Sunbelt/UPBMS, USB/UPBNW, and FNB/UPBNE, there must be evidence

that Sunbelt/UPBMS and USB/UPBNW were instrumental in making the

final decision not to hire Vance.            There is no such evidence in the

record.

     The parties do not dispute that Davis, as president and CEO of

FNB/UPBNE was the     sole person charged with making employment

decisions   about   the    new   bank    branch.          The   district   court’s


                                        13
reference to Davis’ power to make administrative decisions related

to the Oxford branches of Sunbelt/UPBMS and USB/UPBNW—the two

branches he was charged with merging into FNB/UPBNE’s Oxford

branch—is     not    enough    to    establish     that    Sunbelt/UPBMS    and

USB/UPBNW, which have their own Board of Directors and more than

500 employees       each,   were    engaged   in   a   joint   enterprise   with

FNB/UPBNE.    Instead, Davis’ limited interim control over two of

Sunbelt/UPBMS’s and USB/UPBNE’s branches, undertaken on behalf of

FNB/UPBNE, is more realistically viewed as necessary administrative

functions to facilitate the transfer and eventual merger of the two

branches into FNB/UPBNE’s Oxford branch.                In other words, this

evidence does not establish that Sunbelt/UPBMS or USB/UPBNE were

involved in the decision of whether to hire Vance, or that the

labor decisions between FNB/UPBNE, Sunbelt/UPBMS, and USB/UPBNE

were so generally intermingled to justify treating them as a single

integrated enterprise.

     The     district       court    also     cited    evidence    about    the

interrelationship between UPC and each of its three subsidiaries as

proof that FNB/UPBNE, Sunbelt/UPBMS, and USB/UPBNE constituted a

single integrated enterprise:

            Union Planters Corporation was interrelated with
            its subsidiaries, including FNB, SB, and USB during
            the relevant period. This interrelation included,
            but was     not limited to, filing consolidated
            reports to the SEC and other federal agencies,
            filing consolidated tax returns, serving as the
            centralized payroll entity, and having Common
            Management Agreements executed and followed by the

                                       14
            subsidiaries.    Finally, UPC, at the time in
            question, was the sole owner of 100% of its
            subsidiaries’ stock.

However,     this     evidence      does       not    establish     that      the   three

subsidiaries were interrelated with one another.                         Rather, this

evidence would speak to whether UPC, as the parent company, should

be considered a single integrated enterprise with each of its

individual subsidiaries.              As discussed previously, the district

court already correctly concluded in 1998 that UPC and FNB/UPBNE

did not constitute a single integrated enterprise, as there is no

evidence that UPC participated in the decision not to hire Vance.

Therefore,       because      there      is     no    evidence     of   a     sufficient

interrelationship between FNB/UPBNE, Sunbelt/UPBMS, and USB/UPBNE

to constitute a single integrated enterprise, we conclude that the

district    court     erred    by     holding        the   three   subsidiaries       were

interrelated.


IV.   CONCLUSION

      We conclude that FNB/UPBNE was Vance’s would-be employer for

purposes    of    §   1981a.        We    also      reject   Vance’s    argument      that

FNB/UPBNE,       Sunbelt/UPBMS,          and    USB/UPBNE     constitute       a    single

integrated enterprise.          The undisputed evidence demonstrates that

FNB/UPBNE    had      approximately           140    employees     at   the    time    the

discriminatory act occurred.              Accordingly, Vance’s damages should

have been limited by § 1981a(b)(3)(B), which provides that the sum

of compensatory damages awarded for “future pecuniary losses,

                                               15
emotional pain, suffering, inconvenience, mental anguish, loss of

enjoyment of life and other nonpecuniary losses and the amount of

punitive damages” may not exceed $100,000 for a defendant who “has

more than 100 and fewer than 201 employers in each of 20 or more

calendar weeks in the current or preceding year.”

      The jury awarded Vance $30,000 for lost wages and benefits,

$20,000 in emotional damages, and $390,000 in punitive damages.

The   $30,000   of   lost   wages   is    not   subject   to   §1981a(b)(3)’s

limitation on damages.       42 U.S.C. § 1981a(b)(2).           The remaining

awards for emotional distress, $20,000, and punitive damages,

$390,000 are subject to the $100,000 limitation.               Accordingly, we

modify the district court’s award to reduce Vance’s total award to

$130,000.




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