                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAY 22 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    ADDIE CALVERT,

                Plaintiff - Appellant,

    v.                                                   No. 01-5201
                                                   (D.C. No. 00-CV-1019-B)
    MIDWEST RESTORATION                                (N.D. Oklahoma)
    SERVICES, INC., an Oklahoma
    corporation,

                Defendant - Appellee.


                             ORDER AND JUDGMENT           *




Before HENRY , Circuit Judge, BRORBY , Senior Circuit Judge, and        BRISCOE ,
Circuit Judge.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the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.
       Plaintiff Addie Calvert appeals from the district court’s order granting

summary judgment in favor of defendant Midwest Restoration Services, Inc.

(Midwest) on her complaint alleging racial discrimination in violation of Title VII

of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, and 42 U.S.C.

§ 1981. We affirm in part, reverse in part, and remand.

       Plaintiff, an African-American woman, was employed by Midwest during

the years 1999 and 2000. She claims that during the course of her employment,

Midwest discriminated against her on the basis of her race. She alleges

discrimination based on both disparate treatment and a racially hostile work

environment. Plaintiff’s complaint and her response to Midwest’s motion for

summary judgment specifically state that her action is brought under both Title

VII and § 1981.

       In its summary judgment order, the district court incorrectly recited that

“[a]ll of Plaintiff’s claims are brought under Title VII.” Aplt. App. at 164 n.1. It

then granted summary judgment for Midwest, finding that it was uncontroverted

that Midwest had not employed fifteen or more employees each working day of

twenty or more calendar weeks in either 1999 or 2000, as required by Title VII.

See 42 U.S.C. § 2000e(b) (defining “employer” for Title VII purposes).

       “We review a district court’s grant of summary judgment de novo, applying

the same legal standard used by the district court.”   Hollins v. Delta Airlines ,


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238 F.3d 1255, 1257 (10th Cir. 2001). Summary judgment is proper if the moving

party shows “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). “When

applying this standard, we view the evidence and draw reasonable inferences

therefrom in the light most favorable to the nonmoving party.”     Scull

v. New Mexico , 236 F.3d 588, 595 (10th Cir. 2000) (quotation omitted).

       1. Section 1981 claims

       Midwest properly concedes that plaintiff’s § 1981 claims are not subject to

the “fifteen or more employee” restriction applicable to her Title VII claims.

Rivers v. Roadway Express , Inc. , 511 U.S. 298, 304 n.3 (1994). The rationale on

which the district court granted summary judgment is therefore inapplicable to

these claims.

       Midwest urges us, however, to affirm the grant of summary judgment on

plaintiff’s § 1981 claims on the alternative ground that it is entitled to judgment

on these claims as a matter of law. In determining the appropriateness of

summary judgment, this court is not limited to the grounds relied upon by the

district court, but may affirm summary judgment on any proper grounds found in

the record.   FDIC v. Noel , 177 F.3d 911, 916 (10th Cir. 1999).

       Plaintiff’s § 1981 claim for disparate treatment rests on two separate

events. First, she claims that on one occasion, white employees received their


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paychecks ahead of time, while she was paid on the scheduled date. Plaintiff does

not complain that she was not paid when scheduled or that she was harmed by

receiving her check at the scheduled time. She also makes no showing that this

was a recurring incident. We hold that the alleged harm is      de minimus and will

not give rise to relief under § 1981.   Cf. Bell v. CSX Transp., Inc. , 172 F. Supp.

2d 933, 939-40 (E.D. Mich. 2001) (interpreting state civil rights law, construed       in

pari materia with Title VII, to find that forcing African-American plaintiff to

wait one day before having his request for vacation approved was        de minimus and

not actionable, even though white employees allegedly received more immediate

action on their requests).

       Second, plaintiff complains that Midwest failed to lay her off from

employment when it laid off white employees. The white employees began

drawing unemployment insurance. She was retained but had her hours cut. She

eventually asked to be laid off, but Midwest refused.

       This claim, which seems to urge that plaintiff should have been laid off and

allowed to draw unemployment insurance, raises interesting issues of public

policy. Fortunately, we need not resolve these issues. Even assuming that

plaintiff made a prima facie case of disparate treatment, Midwest advanced

legitimate, non-discriminatory reasons for its actions. Plaintiff represented to

Midwest’s owner that she had cancer and needed to continue working. Aplt. App.


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at 22. The record also shows that Midwest believed, whether incorrectly or not,

that it had enough work to do to keep plaintiff busy when it decided not to lay her

off, and that Midwest cut plaintiff’s hours because its business had slowed.

Plaintiff fails to point to evidence that would undermine these stated reasons.

      We move on to plaintiff’s § 1981 claim for a racially hostile work

environment. To survive summary judgment, plaintiff must show “that a rational

jury could find that the workplace is permeated with discriminatory intimidation,

ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions

of the victim’s employment and create an abusive working environment.”

McCowan v. All Star Maint., Inc.   , 273 F.3d 917, 923 (10th Cir. 2001) (quotations

omitted). Plaintiff presented a significant amount of evidence of discriminatory

intimidation, ridicule and insult, from which a jury could conclude that the

conditions of her employment had been altered and that her working environment

had become abusive. Having carefully reviewed the record, we conclude that

Midwest failed to demonstrate its entitlement to summary judgment on this claim.

Accordingly, we will reverse summary judgment on plaintiff’s § 1981 hostile

work environment claim.

      2. Title VII claims

      Plaintiff contends that the district court erred in rejecting her argument that

she was employed by an “integrated enterprise” with more than fifteen employees.


                                           -5-
Although Midwest did not have fifteen or more employees, plaintiff argues that

we should factor in the employees of a related business, D&K Janitorial (D&K),

for purposes of meeting this requirement. If Midwest and D&K are considered a

“single employer” or “integrated enterprise,” D&K’s employees can be included.

See, e.g., Knowlton v. Teltrust Phones, Inc.         , 189 F.3d 1177, 1184 & n.8 (10th Cir.

1999); 1 Llampallas v. Mini-Circuits Lab, Inc.         , 163 F.3d 1236, 1244 (11th Cir.

1998).

         A threshold issue arises concerning the appropriate dispositional standard.

The district court treated the “integrated enterprise” question as one for summary

judgment disposition. We have stated, however, that the fifteen-employee

requirement is jurisdictional.   Owens v. Rush , 636 F.2d 283, 287 (10th Cir. 1980).

We therefore agree with the Eleventh Circuit that application of the “single

employer” or “integrated-enterprise” test is a threshold jurisdictional issue that

must be resolved under Fed. R. Civ. P. 12(b)(1) rather than under summary

judgment analysis.    Scarfo v. Ginsberg , 175 F.3d 957, 961 (11th Cir. 1999).        2




1
       We have not formally adopted the “single employer” or “integrated
enterprise” test in this circuit; however, since this test was applied in the district
court and both parties contend for its use, we will apply it here.   Knowlton , 189
F.3d at 1184.
2
      This distinction is important in this case because on the record we have
before us, we would be hard-pressed to say that plaintiff did not present sufficient
evidence to survive summary judgment on the issue of whether the integrated
enterprise standard was met. Where 12(b)(1) analysis is concerned, however, the
                                                                      (continued...)

                                               -6-
Accordingly, we will treat the district court’s order as a Rule 12(b)(1) dismissal

for lack of subject matter jurisdiction. We review a dismissal for lack of subject

matter jurisdiction de novo , accepting the district court’s findings of jurisdictional

facts unless they are clearly erroneous.   Stuart v. Colo. Interstate Gas Co.   ,

271 F.3d 1221, 1225 (10th Cir. 2001).

       The integrated-enterprise test requires us to examine four factors:

“(1) interrelation of operations; (2) centralized control over labor relations;

(3) common management; and (4) common ownership or financial control.”

Knowlton , 189 F.3d at 1184. “All four factors . . . are not necessary for

single-employer status. Rather, the heart of the inquiry is whether there is an

absence of an arm’s-length relationship among the companies.”         Id.

       There is some evidence of common management and ownership between

Midwest and D&K. Keith Lunsford, the owner of Midwest, owns stock in D&K.

He co-manages Midwest with Susan Collins, and D&K with Patsy Smith.

       The remaining factors, however, do not point to the existence of an

integrated enterprise. Midwest and D&K have separate customers, separate

payroll accounts, separate insurance policies, and separate bank accounts. They

engage in separate lines of business, and employ separate supervisors. Although


2
 (...continued)
district court is permitted to resolve factual disputes and to reach a disposition on
the ultimate issue in spite of conflicting evidence.  Scarfo , 175 F.3d at 961.

                                           -7-
they use the same bookkeeper and outside accountant, the bookkeeper and

accountant are paid separately by each entity for the work they perform.

Although they shared a physical address during much of the time plaintiff was

employed by Midwest, they currently have distinct phone numbers and physical

addresses.

      On balance, we agree with the district court that Midwest and D&K should

not be treated as a single employer or an integrated enterprise. Plaintiffs’ Title

VII claims were properly dismissed for lack of subject matter jurisdiction.

      The judgment of the United States District Court for the Northern District

of Oklahoma granting summary judgment on plaintiff’s 42 U.S.C. § 1981 claim

for a hostile work environment is REVERSED. The remainder of the district

court’s order of summary judgment is AFFIRMED, and this case is REMANDED

to the district court for further proceedings in accordance with this order and

judgment.



                                                     Entered for the Court



                                                     Robert H. Henry
                                                     Circuit Judge




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