Lusk v. Foxmeyer Health Corp.

United States Court of Appeals,

Fifth Circuit.

No. 96-11278.

Roger W. LUSK, et al., Plaintiffs,

Roger W. Lusk; Robert P. Griffith; Herbert Barton, Jr.; Joseph
Sanderson; Clinton B. Maddox, II; Joe J. Wilkie; Darrell
Schwonke; Michael J. Kearney, Plaintiffs-Appellants,

v.

FOXMEYER HEALTH CORPORATION, formerly known as National
Intergroup, Inc., et al., Defendants,

Foxmeyer Health Corporation, formerly known as National
Intergroup, Inc., Defendant-Appellee.

Dec. 4, 1997.

Appeal from the United States District Court for the Northern
District of Texas.

Before JOLLY, SMITH and DENNIS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

In this appeal, we are presented the question whether a parent

corporation may be held liable for the allegedly discriminatory

conduct of its subsidiary. Eight former employees of the FoxMeyer

Drug Company ("FoxMeyer Drug") were terminated as a result of a

reduction-in-force. They brought this action alleging age

discrimination under the Age Discrimination in Employment Act of

1967 ("ADEA"), 29 U.S.C. §§ 621-34. They also sued FoxMeyer Drug's

parent corporation, the FoxMeyer Corporation, and FoxMeyer

Corporation's parent, National Intergroup, Inc. ("NII").1 NII

1
In October 1994, NII changed its name from National
Intergroup, Incorporated to FoxMeyer Health Corporation, and in
January 1997, changed its name again to Avatex Corporation.
Because NII was operating under the National Intergroup name during
the relevant time period of this suit, it will be referred to as
NII throughout this opinion.
moved for summary judgment contending that it did not qualify as an

"employer" in the matters relating to this case and, therefore, was

not subject to suit under the ADEA. The district court granted

NII's motion and dismissed the action against NII. On appeal, the

plaintiffs-appellants argue that the district court erred in

finding no genuine issue of material fact as to whether FoxMeyer

Drug, FoxMeyer Corporation, and NII constituted a "single employer"

under the ADEA. We affirm.

I

All of the appellants were employed as sales consultants in

FoxMeyer Drug's various regional offices. FoxMeyer Drug purchases

health care products directly from manufacturers. It then

distributes health care products and services to retail

establishments such as pharmacies and drug store chains, as well as

to other health care providers such as hospitals and university

medical centers. FoxMeyer Drug is a wholly-owned subsidiary of the

FoxMeyer Corporation, a holding company with no employees, but

which shares the same board of directors and same executive

officers with FoxMeyer Drug.

The FoxMeyer Corporation is, in turn, a wholly-owned

subsidiary of the appellee, NII. NII, also a holding company,

employs approximately fifteen people and is affiliated as a parent

or subsidiary with nearly forty other corporations. NII shares its

corporate headquarters with FoxMeyer Drug and FoxMeyer Corporation

(collectively, the "FoxMeyer subsidiaries") in Carrollton, Texas.

During the period relevant to this lawsuit, two individuals—Melvyn

Estrin and Abbey Butler—served as both Co-Chairmen and Co-CEOs of
all three corporations. In addition, evidence indicated that a

third individual, Thomas Anderson, held positions of President and

Chief Operating Officer with all three corporations.2

In October 1993, Mike Webster, Senior Vice President of Sales

and Marketing of FoxMeyer Drug and FoxMeyer Corporation, had

discussions with Estrin and Butler about FoxMeyer Drug's financial

performance and its ability to serve its customers more efficiently

and productively. As a result of these discussions, Webster

ordered senior executive officers of FoxMeyer Drug and FoxMeyer

Corporation to form a planning team (the "Planning Team") to

reengineer FoxMeyer Drug's sales force and determine criteria for

selecting employees for discharge. The Planning Team formed a

reduction-in-force plan (the "RIF plan"), which was approved by

Estrin, Butler, and Anderson, presented to retail sales supervisors

for FoxMeyer Drug, and then executed at the local level in January

1994.

The appellants—all FoxMeyer Drug sales consultants terminated

as a result of the RIF plan—filed suit on August 26, 1994, against

FoxMeyer Drug, FoxMeyer Corporation, and NII. They alleged that the

three corporations engaged in unlawful discrimination under the

2
The parties hotly contest whether Anderson held these
positions during the relevant time periods, each pointing to
evidence (including, on NII's part, some evidence not part of the
summary judgment record) supporting their respective positions.
When reviewing decisions on summary judgment, however, we do not
assess the probative value of evidence or resolve factual disputes.
Stine v. Marathon Oil Co., 976 F.2d 254, 265 (5th Cir.1992). For
purposes of this appeal, we assume that Anderson held positions
with NII as well as FoxMeyer Drug and FoxMeyer Corporation
throughout the relevant time periods. See Martin v. John W. Stone
Oil Distrib., Inc., 819 F.2d 547, 548 (5th Cir.1987) (reasonable
doubts about facts are resolved in favor of nonmovant on summary
judgment).
ADEA by directing lower level managers to consider age as a factor

in determining which employees to discharge. On June 7, 1996,

after extensive discovery, NII moved for summary judgment on the

grounds that it did not directly employ the appellants and,

therefore, did not qualify under the ADEA as a "single employer"

with its FoxMeyer subsidiaries. Less than two months later, and

six days before trial, FoxMeyer Drug and FoxMeyer Corporation filed

for bankruptcy in Delaware. Consequently, the district court

stayed further proceedings against those two defendants.

Thereafter, on September 9, 1996, the district court granted

NII's motion for summary judgment. Examining the evidence in the

light of the four-factor test enunciated in Trevino v. Celanese

Corp., 701 F.2d 397 (5th Cir.1983), the court held that NII and its

FoxMeyer subsidiaries did not constitute a single employer. In

particular, the district court determined that, although the three

corporations had common ownership and some common management, there

was no evidence demonstrating NII's involvement in the daily

operations or labor relations of its FoxMeyer subsidiaries. The

court grounded this determination on the absence of evidence

showing that Estrin, Butler, and Anderson had responsibility in

planning and implementing the details of the RIF plan. Thus, the

court concluded, the appellants failed to identify evidence

sufficient to permit a finding that NII was a final decision-maker

in their termination and, consequently, that NII and its FoxMeyer

subsidiaries could be regarded as a single, integrated enterprise

for purposes of this case.

This appeal presents the sole issue of whether the summary
judgment evidence would permit a finding that NII and its FoxMeyer

subsidiaries qualify as a single employer under the ADEA.

II

We review the district court's grant of summary judgment de

novo. Exxon Corp. v. Baton Rouge Oil, 77 F.3d 850, 853 (5th

Cir.1996). The court will not weigh the evidence or evaluate the

credibility of witnesses; further, all justifiable inferences will

be made in the nonmoving party's favor. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202

(1986). If, as here, the nonmoving party bears the burden of proof

at trial, the moving party may demonstrate that it is entitled to

summary judgment by submitting affidavits or other similar evidence

negating the nonmoving party's claim, or by pointing out to the

district court the absence of evidence necessary to support the

nonmoving party's case. Lavespere v. Niagara Mach. & Tool Works,

Inc., 910 F.2d 167, 178 (5th Cir.1990).

Once the moving party presents the district court with a

properly supported summary judgment motion, the burden shifts to

the nonmoving party to show that summary judgment is inappropriate.

Id. In doing so, the nonmoving party may not rest upon the mere

allegations or denials of its pleadings, and unsubstantiated or

conclusory assertions that a fact issue exists will not suffice.

Anderson, 477 U.S. at 256, 106 S.Ct. at 2514. Rather, the

nonmoving party must set forth specific facts showing the existence

of a "genuine" issue concerning every essential component of its

case. Thomas v. Price, 975 F.2d 231, 235 (5th Cir.1992). That is,

the nonmoving party must adduce evidence sufficient to support a
jury verdict. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. With

these standards in mind, we turn to the merits of this appeal.

III

Under the ADEA, a corporation like NII cannot be held liable

for discriminatory employment actions unless it qualifies as an

"employer" under the statute. See 29 U.S.C. § 623. The ADEA

defines an employer only as "a person engaged in industry affecting

commerce who has twenty or more employees for each working day in

each of twenty or more calendar weeks in the current or preceding

calendar year." 29 U.S.C. § 630(b). This statutory definition

provides little assistance in resolving the question before us. It

plainly contains no basis for disregarding the venerable corporate

law principle of limited liability or for otherwise extending

liability to a parent corporation for the discriminatory acts of

its subsidiary. We, and other courts, however, have construed the

term "employer" broadly to include superficially distinct entities

that are sufficiently interrelated to constitute a single,

integrated enterprise. See, e.g., Schweitzer v. Advanced

Telemarketing Corp., 104 F.3d 761, 764 (5th Cir.1997); Rogers v.

Sugar Tree Products, Inc., 7 F.3d 577, 582 (7th Cir.1993); Johnson

v. Flowers Indus., Inc., 814 F.2d 978, 981 (4th Cir.1987); York v.

Tennessee Crushed Stone Ass'n, 684 F.2d 360, 362 (6th Cir.1982).

To determine whether a parent corporation and its subsidiary

may be regarded as a "single employer" under the ADEA, we apply the

four-part analysis originally adopted by the Supreme Court in the

context of labor disputes, see Radio Union v. Broadcast Serv., 380

U.S. 255, 257, 85 S.Ct. 876, 877, 13 L.Ed.2d 789 (1965), and
extended to civil rights actions by this court in Trevino v.

Celanese Corp., 701 F.2d 397 (5th Cir.1983). The four factors to

consider include: (1) interrelation of operations, (2) centralized

control of labor or employment decisions, (3) common management,

and (4) common ownership or financial control. 701 F.2d at 404.

This analysis ultimately focuses on the question whether the parent

corporation was a final decision-maker in connection with the

employment matters underlying the litigation, id.; Chaiffetz v.

Robertson Research Holding, Ltd., 798 F.2d 731, 735 (5th Cir.1986),

and all four factors are examined only as they bear on this precise

issue, see Schweitzer, 104 F.3d at 765.3

Although the appellants produced evidence establishing common

management and ownership between NII and its FoxMeyer subsidiaries,

these factors alone are insufficient to establish single employer

status. The doctrine of limited liability creates a strong

3
Courts adopting a broad definition of the term "employer"
have done so based on the significant remedial public policy
underlying the anti-discrimination laws. See, e.g., Baker v.
Stuart Broadcasting Co., 560 F.2d 389, 391 (8th Cir.1977). While
we support this reasoning, we also are mindful that "the doctrine
of limited liability was originally formulated ... to implement
both economic and democratic goals" and that approaches to piercing
the corporate veil which fail to recognize these important public
policy considerations underlying the doctrine "are deficient."
Stephen B. Presser, Piercing the Corporate Veil § 1.01, at 4, §
1.06, at 71-72 (1997) (emphasis in original). Accordingly, before
piercing the corporate veil in the employment discrimination
context, we and other courts have focused on the core activities
regulated by the anti-discrimination laws and, therefore, on
whether the parent corporation was so involved in the daily
employment decisions of the subsidiary as to justify treating the
two corporations as a single employer. See, e.g., Schweitzer, 104
F.3d at 765; Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235,
1241 (2d Cir.1995); Evans v. McDonald's Corp., 936 F.2d 1087, 1090
(10th Cir.1991); Sheeran v. American Commercial Lines, Inc., 683
F.2d 970, 978 (6th Cir.1982); Mochelle v. J. Walter, Inc., 823
F.Supp. 1302, 1306 (M.D.La.1993), aff'd, 15 F.3d 1079 (5th
Cir.1994).
presumption that a parent corporation is not the employer of its

subsidiary's employees. Frank v. U.S. West, Inc., 3 F.3d 1357,

1362 (10th Cir.1993) (citing Johnson, 814 F.2d at 980); see also

Krivo Indus. Supply Co. v. National Distillers & Chem. Corp., 483

F.2d 1098, 1102 (5th Cir.1973) (corporate form is not disregarded

lightly since the law created corporations primarily to allow

limited liability). Only evidence of control suggesting a

significant departure from the ordinary relationship between a

parent and its subsidiary—domination similar to that which

justifies piercing the corporate veil—is sufficient to rebut this

presumption, see Johnson, 814 F.2d at 981, and to permit an

inference that the parent corporation was a final decision-maker in

its subsidiary's employment decisions.

Common management and ownership are ordinary aspects of a

parent-subsidiary relationship. A parent corporation's possession

of a controlling interest in its subsidiary entitles the parent to

the normal incidents of stock ownership, such as the right to

select directors and set general policies, without forfeiting the

protection of limited liability. Baker v. Raymond Int'l, Inc., 656

F.2d 173, 180-81 (5th Cir.1981). Thus, courts have recognized that

the mere existence of common management and ownership are not

sufficient to justify treating a parent corporation and its

subsidiary as a single employer. See, e.g., Frank, 3 F.3d at 1364;

Rogers, 7 F.3d at 583; Johnson, 814 F.2d at 980-82. Some nexus to

the subsidiary's daily employment decisions must be shown. See

Schweitzer, 104 F.3d at 765.

The appellants argue that they established this nexus with
evidence of interrelated operations and NII's involvement in the

RIF plan. The interrelation of operations element of the single

employer test ultimately focuses on whether the parent corporation

excessively influenced or interfered with the business operations

of its subsidiary, that is, whether the parent actually exercised

a degree of control beyond that found in the typical

parent-subsidiary relationship. Johnson, 814 F.2d at 981-82; see

also Herman v. United Bhd. of Carpenters & Joiners of Am., Local

Union No. 971, 60 F.3d 1375, 1383-84 (9th Cir.1995); Rogers, 7

F.3d at 582; Armbruster v. Quinn, 711 F.2d 1332, 1338 (6th

Cir.1983). Thus, for example, the fact that NII (like any other

parent corporation) ultimately benefitted from the activities of

its subsidiaries, including the restructuring of FoxMeyer Drug's

sales force, is irrelevant to whether their operations were

interrelated. See Frank, 3 F.3d at 1362; Rittmeyer v. Advance

Bancorp, Inc., 868 F.Supp. 1017, 1022 (N.D.Ill.1994). "Attention

to detail," not general oversight, is the hallmark of interrelated

operations. See Johnson, 814 F.2d at 982.

Along these lines, relevant factors suggesting the existence

of interrelated operations include evidence that the parent: (1)

was involved directly in the subsidiary's daily decisions relating

to production, distribution, marketing, and advertising; (2)

shared employees, services, records, and equipment with the

subsidiary; (3) commingled bank accounts, accounts receivable,

inventories, and credit lines; (4) maintained the subsidiary's

books; (5) issued the subsidiary's paychecks; or (6) prepared and
filed the subsidiary's tax returns.4 See, e.g., Cook v. Arrowsmith

Shelburne, Inc., 69 F.3d 1235, 1241 (2d Cir.1995); Johnson, 814

F.2d at 981-82; Armbruster, 711 F.2d at 1338; Harris v. Palmetto

Tile, Inc., 835 F.Supp. 263, 268 (D.S.C.1993); Greason v.

Southeastern R.R. Assoc. Bureaus, 650 F.Supp. 1, 4 (N.D.Ga.1986),

aff'd, 813 F.2d 410 (11th Cir.1987); Fike v. Gold Kist, Inc., 514

F.Supp. 722, 726-27 (N.D.Ala.), aff'd, 664 F.2d 295 (11th

Cir.1981).

There is no such evidence in this case. Although the

appellants allege that all FoxMeyer entities shared the same human

resources department and employment grade system, their record cite

fails to support these assertions.5 The deposition of Derek Van

Keuren, Director of Human Resources, refers to his department as an

arm of FoxMeyer Drug, not NII or FoxMeyer Corporation. He makes no

reference to services performed for NII or its employees. In

short, his deposition fails to support an inference that NII and

its FoxMeyer subsidiaries were functionally integrated.6

4
This is not to say, of course, that the existence of any of
these factors is alone dispositive of single employer status or
even a finding of interrelated operations.
5
This unsupported citation is not an isolated incident.
Because this case involves corporate entities all using the term
"FoxMeyer" in their names at some point, see supra note 1, loose
references to "FoxMeyer" in the record make context particularly
important. Numerous passages in the record and district court
opinion, if taken out of context, create ambiguity as to which
entity they refer. On more than one occasion, the appellants
appear to rely on such vagaries to implicate NII in various aspects
of this case. Such citations do little to boost credibility or
arguments before this court.
6
The portion of the record cited by the appellants does not
even support an inference that Van Keuren's department had any
significant connection to FoxMeyer Corporation, much less NII. It
suggests that recordkeeping and nearly all personnel decisions were
 Similarly, the appellants' reliance on the fact that letters

of termination and other RIF-related memoranda bore the "FoxMeyer"

letterhead and uniformly listed the address shared by the corporate

headquarters of NII and its FoxMeyer subsidiaries is misplaced.

Although NII in fact operated under the "FoxMeyer Health

Corporation" title at one time, it did not assume this title until

over nine months after the events relevant to this lawsuit

occurred. Instead, NII was operating under the "National

Intergroup Incorporated" name at the time the appellants were

terminated. Thus, RIF materials bearing the "FoxMeyer" letterhead

say nothing of NII's involvement in the RIF or the operations of

its FoxMeyer subsidiaries.

The appellants' principal argument, however, is that the

explicit and knowing approval of the RIF plan by Anderson, Butler,

and Estrin necessarily creates a fact issue concerning

interrelation of operations between NII and its subsidiaries. The

appellants maintain that because these three individuals held

positions at the highest level of NII's corporate structure, their

involvement in the RIF plan may be imputed to NII. This argument

must be considered in the light of the well established principle

that directors and officers holding positions with a parent and its

subsidiary can and do "change hats" to represent the two

corporations separately, despite their common ownership. United

States v. Jon-T-Chem., Inc., 768 F.2d 686, 691 (5th Cir.1985),

cert. denied, 475 U.S. 1014, 106 S.Ct. 1194, 89 L.Ed.2d 309 (1986).

made at FoxMeyer Drug's local human resources offices, not by Van
Keuren's department.
Thus, the appellants must point to evidence that, when Anderson,

Butler, and Estrin approved the RIF plan, they were acting in their

capacity as officers of NII. See Greason, 650 F.Supp. at 5 (failure

to adduce evidence of which entity the common decision-maker

represented required summary judgment on single employer issue),

aff'd, 813 F.2d 410 (11th Cir.1987).

When pressed at oral argument to identify evidence in the

record from which we could reasonably infer that Anderson, Butler,

and Estrin were acting on NII's behalf in approving the RIF plan,

the appellants made two basic arguments. First, they urged us to

draw the inference from the sheer magnitude of the employment

decision involved; that it is reasonable to expect such a decision

to be made at the highest level of the corporate family. Second,

the appellants argued that the inference is justified on the basis

of NII's shared use of a single building and phone number for its

corporate headquarters and those of its FoxMeyer subsidiaries.

Although we examine the record in the light most favorable to

the appellants, we do not do so in bits and pieces, but as a whole.

On summary judgment, we consider the totality of the facts and make

only reasonable, justifiable inferences from that evidence. Knight

v. Sharif, 875 F.2d 516, 523 (5th Cir.1989) (citing Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct.

1348, 89 L.Ed.2d 538 (1986)). The factual context of a party's

claim may render it implausible for purposes of creating a genuine

dispute of fact. Id.; see also First Nat'l Bank of Arizona v.

Cities Serv. Co., 391 U.S. 253, 280, 88 S.Ct. 1575, 1588, 20

L.Ed.2d 569 (1968).
 Circumstances surrounding the development and execution of the

RIF plan show nothing more than that Anderson, Butler, and Estrin

were acting as officers of FoxMeyer Drug and FoxMeyer Corporation.

Based on the appellants' rendition of the facts, it appears that on

every occasion in which these three individuals took any action in

connection with the RIF plan, they were acting in concert only with

other FoxMeyer Drug or FoxMeyer Corporation officials. In fact,

the record is replete with examples of how executives from FoxMeyer

Drug and FoxMeyer Corporation, most of whom shared positions with

both companies, devised and implemented every aspect of the RIF

plan. The plan affected only FoxMeyer Drug employees.7 It is true

that Anderson, Butler, and Estrin approved the plan, but that

unadorned fact tells us nothing more than that they were acting as

the three highest ranking executives at FoxMeyer Drug.

On the other hand, evidence of NII's involvement in the RIF

plan is scant. Presumably, Anderson, Butler, and Estrin were not

NII's only officers or directors, yet the appellants point us to no

evidence that these three ever sought approval from or even

consulted anyone else in the NII organization. As a matter of law,

whether as officers or directors of NII, Anderson, Butler, and

Estrin had no power to act on NII's behalf unless acting within the

scope of their authority, or as part of a legally convened board of

directors. See Kiepfer v. Beller, 944 F.2d 1213, 1218 (5th

Cir.1991) ("a director exercises his office only through the

collective action of the board of which he is a member");

7
None of the individuals affected by the RIF were employed by
FoxMeyer Corporation, much less NII.
Vicksburg Furniture Mfg., Ltd. v. Aetna Cas. & Sur. Co., 625 F.2d

1167, 1170 (5th Cir. Unit A 1980) (officer's acts not authorized by

shareholders will not be charged to the corporation); 2 Fletcher,

Cyclopedia of the Law of Private Corporations §§ 392, 434, at 261,

339-40 (1990). The record, however, is silent on these issues.

Furthermore, the record demonstrates, without contradiction,

that NII is only a holding company with no involvement in or

control over the daily wholesale drug operations or labor relations

of FoxMeyer Drug or FoxMeyer Corporation. NII is affiliated as a

parent or subsidiary with nearly forty other corporations. Its

only employees, numbering no more than fifteen, are responsible

solely for servicing, maintaining, and flying NII's corporate

airplane. Thus, the record supports only the inference that, while

involved in the RIF plan, Anderson, Butler, and Estrin were acting

in their capacities as directors and officers of the FoxMeyer

subsidiaries, not NII.

In sum, the appellants are left with evidence only that NII

and its FoxMeyer subsidiaries shared the same corporate

headquarters, which used a common primary phone number. Such facts

are indeed evidence of interrelated operations. See Mochelle, 823

F.Supp. at 1305, aff'd, 15 F.3d 1079 (5th Cir.1994); but see

Walker v. Toolpushers Supply Co., 955 F.Supp. 1377, 1382

(D.Wyo.1997) (sharing common location, alone, is not sufficient

evidence of interrelated operations). Common headquarters and

telephone number are not, however, the type of evidence from which

a reasonable jury could infer that Anderson, Butler, and Estrin

were acting for NII when they approved the RIF plan.
 As for evidence of NII's control or influence over the labor

or employment decisions of its FoxMeyer subsidiaries, the

appellants advance the same argument they tendered on the issue of

interrelated operations.8 The appellants contend that we may infer

NII's control of labor and employment decisions from the fact that

Anderson, Butler, and Estrin approved the RIF plan. We reject this

argument for the same reason we rejected it earlier. The

appellants simply have pointed us to no evidence from which we may

reasonably infer that these individuals were acting on NII's behalf

when involved in the RIF plan.

The appellants argue that our decision in Trevino necessitates

a finding of centralized labor and employment decisions in this

case. We disagree. In Trevino, the court reversed a grant of

summary judgment, finding a genuine fact issue concerning whether

a parent corporation and its subsidiary exhibited centralized

employment decisions. See 701 F.2d at 404. The basis of the

court's decision was the existence of over a hundred documents,

signed by the parent's managers, authorizing lay-offs, recalls,

promotions, and transfers of the subsidiary's employees. Id. No

such evidence exists here.

Moreover, Trevino did not involve a situation where the

individuals making the employment decisions held positions with

both the parent and subsidiary. The decision-makers clearly were

the managers and supervisors of the parent corporation and not the

8
Suitable evidence of centralized labor and employment
decisions includes parental control of hiring, firing, promoting,
paying, transferring, or supervising employees of the subsidiary.
Johnson, 814 F.2d at 982.
subsidiary. See id. at 400. Thus, in Trevino, there was never any

question whether the decision-makers were acting on behalf of the

parent or its subsidiary.9 In contrast, the absence of evidence

from which we may reasonably infer that Anderson, Butler, and

Estrin were acting on NII's behalf dooms the appellants' argument

for single employer status in this case.

IV

In conclusion, we hold that the appellants failed to produce

evidence sufficient to withstand summary judgment in this case.

The evidence of common management and ownership between NII and its

FoxMeyer subsidiaries, taken together with their shared use of a

common headquarters building and main telephone number, does not

permit an inference that NII is responsible for the decision to

terminate employees of FoxMeyer Drug. This conclusion is supported

by uncontradicted evidence that NII was nothing more than a holding

company with no involvement in or control over the daily operations

or employment decisions of its FoxMeyer subsidiaries. Accordingly,

the judgment of the district court is

AFFIRMED.

9
For the same reasons, Cook v. Arrowsmith Shelburne, Inc., 69
F.3d 1235 (2d Cir.1995), fails to address the issues presented by
this case. In Cook, the court never considered whether common
managers, if any, were acting on behalf of the parent or the
subsidiary. Its holding was based specifically on findings that
management from the parent ran its subsidiary's operations in a
"direct, hands-on fashion," that all personnel status reports were
approved by the parent, and that applications for employment with
the subsidiary went through the parent. Id. at 1241. The
appellants have introduced no such evidence is this case.