No. 08-2271 _______________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT _______________________________________________________ FRANCISCA SANDOVAL, INES HERNANDEZ, MIRIAM PACHECO, EVA REYES, ARMINDA GOMEZ, NIDIA GUERRERO, LUCILA MARQUEZ, MARIA PEREZ, AZUCENA GARCIA, ESTELA LAUREANO and MARLENE GIRON, Plaintiffs-Appellants, v. AMERICAN BUILDING MAINTENANCE INDUSTRIES, INC., a/k/a ABM Industries, Incorporated, d/b/a ABM Janitorial Services and AMERICAN BUILDING MAINTENANCE CO. OF KENTUCKY, Defendants-Appellees. _______________________________________________________ On Appeal from the United States District Court for the District of Minnesota No. 0:06-cv-01772-RHK-JSM _______________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS-APPELLANTS AND REVERSAL _______________________________________________________ RONALD S. COOPER DORI K. BERNSTEIN General Counsel Attorney LORRAINE C. DAVIS U.S. EQUAL EMPLOYMENT Acting Associate General Counsel OPPORTUNITY COMMISSION Office of General Counsel CAROLYN L. WHEELER 1801 L Street, N.W., Room 7044 Assistant General Counsel Washington, D.C. 20507 (202) 663-4734 TABLE OF CONTENTS Page Table of Authorities ii Statement of Interest 1 Statement of Issue 1 Statement of Facts 1 District Court Decision 4 Summary of Argument 7 Argument 8 I. The Four-Factor Integrated Enterprise Test Is The Standard To Determine Corporate Affiliate Liability For Unlawful Discrimination Under Title VII. . . . . . . . . . . . . . . . . . . . . 8 II. ABMI Is Plaintiffs' Employer Because Parent and Subsidiary Share Common Ownership And Management, ABMI Maintains Centralized Control of Labor Relations, And ABMI Is Substantially Involved In Subsidiary Operations. . . . . . . . . . . . 23 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . 32 Certificate of Service TABLE OF AUTHORITIES Page Cases Anderson v. Pacific Maritime Assoc., 336 F.3d 924 (9th Cir. 2003). . . . . . . . . . . . . . . . . . . . . 17 Armbruster v. Quinn, 711 F.2d 1332 (6th Cir. 1983). . . . . . . . . . . . . . . . . . 13, 17 Baker v. Stuart Broadcasting Co., 560 F.2d 389 (8th Cir. 1977). . . . . . . . . 7, 11, 12, 17, 21, 23, 24 Brown v. Fred's, Inc., 494 F.3d 736 (8th Cir. 2007). . . . . . . . . . . . . . . 8, 20, 21, 23 Childs v. Int'l Brotherhood of Electric Workers, 719 F.2d 1379 (9th Cir. 1983). . . . . . . . . . . . . . . . . . . . .17 City of Milwaukee v. Illinois and Michigan, 451 U.S. 304 (1981). . . . . . . . . . . . . . . . . . . . . . . . 22 Cook v. Arrowsmith Shelburne, Inc. 69 F.3d 1235 (2d Cir. 1995). . . . . . . . . . . . . . . . . . . . . 17 EEOC v. Arabian American Oil Co., 499 U.S. 244 (1991). . . . . . . . . . . . . . . . . . . . . 13, 14, 15 Ford Motor Co. v. EEOC, 458 U.S. 219 (1982). . . . . . . . . . . . . . . . . . . . . . . . 12 Frank v. U.S. West, Inc., 3 F.3d 1357 (10th Cir. 1993). . . . . . . . . . . . . . . . . 19, 20, 23 Franks v. Bowman Transp. Co., 424 U.S. 747 (1976). . . . . . . . . . . . . . . . . . . . . . . . 12 Iowa Express Distrib., Inc. v. NLRB, 739 F.2d 1305 (8th Cir. 1984). . . . . . . . . . . . . . . . . . . . 11 Johnson v. Flowers, 814 F.2d 978 (4th Cir. 1987). . . . . . . . . . . . . . . 19, 20, 23 Knowlton v. Teltrust Phones, Inc., 139 F.3d 1177 (10th Cir. 1999). . . . . . . . . . . . . . . . . . 17 Leichihman v. Pickwick International, 814 F.2d 1263 (8th Cir. 1987). . . . . . . . . . . . . . . . . . . . 21 Lusk v. Foxmeyer Health Corp., 129 F.3d 773 (5th Cir. 1997). . . . . . . . . . . . . . . . . . . . . 19 McKenzie v. Davenport-Harris Funeral Home, 834 F.2d 930 (11th Cir. 1987). . . . . . . . . . . . . . . . . . . . 17 NLRB v. Bolivar-Tees, Inc., __ F.3d __, 2008 WL 2262368 (8th Cir. June 4, 2008). . . . . . . . . 11 Nesbit v. Gears Unlimited, Inc., 347 F.3d 72 (3d Cir. 2003). . . . . . . . . . . . . . . . . . 18, 22 Papa v. Katy Industries, 166 F.3d 937 (7th Cir. 1999). . . . . . . . . . . . . . . . . 18, 20, 22 Pearson v. Component Technology Corp., 247 F.3d 471 (3rd Cir. 2001). . . . . . . . . . . . . . . . . . . . . 20 Radio & Television Broad. Techs. Local Union 1264 v. Broadcast Serv. of Mobile, 380 U.S. 255 (1965) (per curiam). . . . . . . . . . . . . . . . . . 10 Romano v. U-Haul International, 233 F.3d 655 (1st Cir. 2000). . . . . . . . . . . . . . . . . . . . . 17 Torres-Negron v. Merck & Co., 488 F.3d 34 (1st Cir. 2007). . . . . . . . . . . . . . . . . . . . . 17 Trevino v. Celanese Corp., 701 F.2d 397 (5th Cir. 1983). . . . . . . . . . . . . . . . . . . . . 17 Page Worth v. Tyler, 276 F.3d 249 (7th Cir. 2001). . . . . . . . . . . . . . . . . . . . . 18 United States v. Bestfoods, 524 U.S. 51 (1998). . . . . . . . . . . . . . . . . . . . . . . . 20 Statutes 1991 Civil Rights Act. . . . . . . . . . . . . . . . . . . . . 1, 13, 15 Age Discrimination in Employment Act, 29 U.S.C. § 623(h). . . . . . . . . . . . . . . . . . . . . . . . 13, 14 29 U.S.C. § 630(f). . . . . . . . . . . . . . . . . . . . . . . . . . 13 Americans With Disabilities Act, 42 U.S.C. § 12112(c)(2). . . . . . . . . . . . . . . . . . . . . 13, 15 National Labor Relations Act, 29 U.S.C. § 152(2). . . . . . . . . . . . . . . . . . . . . . . . . . 12 Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 2000e(b). . . . . . . . . . . . . . . . . . . . . . . 12, 18 42 U.S.C. § 2000e(f). . . . . . . . . . . . . . . . . . . . . . . . 15 42 U.S.C. § 2000e-1(c). . . . . . . . . . . . . . . . . . 13, 15, 24 42 U.S.C. § 2000e-5. . . . . . . . . . . . . . . . . . . . . . . . 1 Rules and Regulations Fed.R.App.P. 29(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Fed.R.Civ.P. 15(c). . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Administrative Guidance EEOC Compliance Manual, Section 2: Threshold Issues, No. 915.003. . . . . . . . . 8, 9, 10, 13 EEOC Enforcement Guidance: Application of Title VII and the Americans With Disabilities Act to Conduct Overseas and to Foreign Employers Discriminating in the United States, No. N-915.002 (Oct. 20, 1993). . . . . . . . . . . . . . . . . . . . .16 EEOC Policy Guidance: Application of the Age Discrimination in Employment Act of 1967 (ADEA) and the Equal Pay Act of 1963 (EPA) to American firms overseas, their overseas subsidiaries, and foreign firms, No. N-915.039 (Mar. 3, 1989). . . . . . . . . . . . . . . . . . 14, 15 Legislative History S. Rep. No. 98-467 (1984), U.S. Code Cong. & Admin.News 1984. . . . . . . . . . . . . . . . . . 14 137 Cong. Rec. S15235-02 (Oct. 25, 1991). . . . . . . . . . . . . . . 16 137 Cong. Rec. S15477-01 (Oct. 30, 1991). . . . . . . . . . . . . . . 16 STATEMENT OF INTEREST The Equal Employment Opportunity Commission (EEOC) is charged to administer and enforce Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, 42 U.S.C. §§ 2000e et seq., which prohibits sex discrimination, sexual harassment, and retaliation in employment. See 42 U.S.C. § 2000e-5. As a federal agency, the EEOC is authorized to participate as amicus curiae on appeal. Fed.R.App.P. 29(a). STATEMENT OF ISSUE<1> Whether ABMI is plaintiffs' employer under the integrated enterprise test to determine corporate affiliate liability for violations of Title VII? STATEMENT OF FACTS ABMI, a publicly held corporation listed on the New York Stock Exchange, is a self-described "leading facility services contractor in the United States." See Form 10-K, Annual Report of ABMI for fiscal year ended Oct. 31, 2007 (2007 Form 10-K) at 3.<2> ABMI "conducts business through a number of subsidiaries, which are grouped into five segments based on the nature of the business operations," and are "[r]eferred to collectively as the 'ABM Family of Services.'" Id. The "five segments" that comprise ABMI are: Janitorial, Parking, Security, Engineering, and Lighting. Id. "The operating subsidiaries within each segment generally report to the same senior management." Id. ABMI's "sales and marketing efforts are conducted by its corporate, subsidiary, regional, branch, and district offices," and "personnel in each of these offices participate directly in selling and servicing customers." Id. at 5. "The broad geographic scope of these offices enables [ABMI] to provide a full range of facility services through intercompany sales referrals, multi-service 'bundled' sales and national account sales." Id. "The largest segment of the Company's business is Janitorial which generated over 57% of the Company's sales and other income ... and over 67% of its operating profit before expenses for 2007." Id. at 18. ABMI "performs janitorial services through a number of the Company's subsidiaries, primarily operating under the names 'ABM Janitorial Services' and 'American Building Maintenance.'" Id. at 3. As of October 31, 2007, ABMI "Janitorial subsidiaries maintained 116 offices and operated in 49 states, the District of Columbia and British Columbia." Id. "As of November 30, 2007, the Company employed approximately 107,000 persons ... of whom the vast majority are service employees who perform janitorial [and other segment] services." Id. at 6. "Approximately 39,000 of these employees are covered under collective bargaining agreements at the local level," while "approximately 5,000 employees [have] executive, managerial, supervisory, administrative, professional, sales, marketing or clerical responsibilities, or other office assignments." Id. On May 12, 2006, eight plaintiffs (Francisca Sandoval, Ines Hernandez, Miriam Pacheco, Eva Reyes, Arminda Gomez, Nidia Guerrero, Lucila Marquez, Maria Perez), sued ABMI, "a/k/a ABM Industries, Incorporated, d/b/a ABM Janitorial Services," alleging sexual harassment, discrimination, and retaliation in violation of Title VII. R.1 at 1.<3> Plaintiffs had filed administrative charges of discrimination against ABM Janitorial Services. See R.48, Exh. 24. In response, ABMI submitted detailed position statements that identified "ABM Industries Inc." as respondent, refuted the specific allegations of the charge on both factual and legal grounds, and never asserted plaintiffs were employed by any corporate entity other than ABMI. Id. In its answer to plaintiffs' judicial complaint, ABMI declared that "none of the Plaintiffs is currently, or ever has been, employed by [ABMI]," and that ABMI "does not have and never has had, employees in the State of Minnesota." R.6 at 1- 2. The answer further stated that ABM Kentucky, "a wholly-owned subsidiary of ABM Janitorial," which "is a wholly-owned subsidiary of [ABMI]," "is the employer of Plaintiffs." Id. at 9-10. An amended complaint added three plaintiffs (Azucena Garcia, Estela Laureano, and Marlene Giron), and named ABM Kentucky as an additional defendant. R.25 at 1. Each of the eleven plaintiffs alleges that her direct supervisor subjected her to unwelcome sexual harassment, including sexual assault; unwanted advances; physical groping or fondling; and offensive comments. Id. at 12-33. On January 17, 2007, the district court dismissed as untimely the claims of the eight original plaintiffs against ABM Kentucky. R.76 at 7, 12-13. The court rejected plaintiffs' argument that the amendment adding ABM Kentucky as a defendant should relate back to the date the complaint was filed, see Fed.R.Civ.P. 15(c). R.76 at 11-12. ABMI and ABM Kentucky subsequently moved for summary judgment, arguing that ABMI is not plaintiffs' employer and therefore is not liable for any unlawful discrimination against employees of ABM Kentucky, and that none of the plaintiffs presented evidence sufficient to support their claims. R.195 at 2. DISTRICT COURT DECISION The district court granted summary judgment, adopting in full the Magistrate's Report and Recommendation over plaintiffs' timely objections, R.200, and thereby rejecting plaintiffs' argument that ABMI and ABM Kentucky are an integrated enterprise that should be considered a single employer that employs plaintiffs. See R.195 at 4. The court acknowledged that ABMI had "some involvement in ABM Kentucky's operations," id. at 30, pursuant to a "Service Agreement" in which ABMI agreed to provide to its subsidiary "accounting services, administrative services, electronic services, employee benefits, human resources, insurance, legal services, safety advice and treasury services." Id. at 7. In exchange for this panoply of services, "ABM Kentucky agreed to pay ABMI 1% of its gross operating revenue and agreed to 'follow policies and guidelines developed pursuant to the Service Agreement, as well as such corporate guidelines as may be developed from time to time.'" Id. at 9. Among the "variety of services and items" ABMI provided to ABM Kentucky, the court cited "worker's compensation insurance, obtaining licenses for sexual harassment videos, negotiating the contract for the Harassment Hotline, submitting motor vehicle record checks to a single provider, and drafting certain forms (such as performance evaluations)." Id. at 30. Evidence also showed that ABM Kentucky managers received diversity training from ABMI, spoke to [ABMI] corporate counsel for guidance regarding sexual harassment complaints, had access to ABMI's human resources online manual, contacted ABMI's attorneys or human resource employees from time-to- time with questions regarding policies and procedures found in the human resource manual, received instructions on harassment training from ABMI and relied upon the ABMI Complaint resolution summary form and ABMI's procedures for processing one of the plaintiff's complaints. ... Further, ABM Kentucky employees were required to follow ABMI's Code of Business Conduct and Ethics, ... ABMI's name was listed [on] a variety of ABM Kentucky documents, ... and ABM Kentucky's financial results were reflected in the annual reports filed by ABMI for years 2004-2006. Id. at 30-31. In the court's view, "[h]owever, this level of involvement in ABM Kentucky's affairs does not show that ABMI dominated or controlled ABM Kentucky's business or day-to-day practices." Id. at 31. The court found that "while ABMI had some involvement in the operations of ABM Kentucky, its activities were consistent with a parent-subsidiary relationship, and were not of the type or to the extent to which a court could find that ABMI was involved in the actual functioning of ABM Kentucky, much less so dominated ABM Kentucky's business practices that the two companies should be deemed to be one entity and one employer." Id. at 27-28. The court placed "little weight" on undisputed evidence that ABMI wholly owns and controls all the stock of ABM Kentucky and that the two companies share the same corporate officers,<4> since "common management and ownership are ordinary aspects of a parent- subsidiary relationship." Id. at 33-35. In the court's view, "the minimal interrelation of operations between the two companies and ABMI's lack of day-to- day control over ABM Kentucky's employment decisions, is fatal to plaintiffs' contention that ABMI should be held liable for the actions of ABM Kentucky, particularly given the strong presumption that a parent company is not the employer of its subsidiary's employees." Id. at 39. The court thus concluded that "plaintiffs have failed to present material facts to dispute the presumption that ABMI should not be liable for ABM Kentucky's actions," and granted summary judgment for ABMI. Id. SUMMARY OF ARGUMENT The integrated enterprise or single employer doctrine is the legal standard to determine corporate affiliate liability for practices prohibited by federal fair employment laws. The doctrine treats two related but distinct entities as a single employer, for purposes of statutory coverage and liability, based on the following criteria: (1) interrelation of operations; (2) common management; (3) centralized control of labor relations; and (4) common ownership or financial control. This Court adopted the integrated enterprise doctrine more than 30 years ago in Baker v. Stuart Broadcasting Co., 560 F.2d 389, 392 (8th Cir. 1977); the EEOC has endorsed the test in administrative guidance; and Congress has approved these four factors as the appropriate standard to determine corporate affiliate liability for unlawful discrimination against U.S. citizens working abroad. Undisputed evidence of common ownership and management of ABMI and ABM Kentucky; ABMI's involvement, pursuant to the Service Agreement, in virtually every aspect of its subsidiary's operations; and ABMI's public representations of centralized corporate control of labor and human resources, demonstrate that, under a proper application of the integrated enterprise test, ABMI is plaintiffs' employer. The district court wrongly concluded otherwise based on language in a recent decision, Brown v. Fred's, Inc., 494 F.3d 736, 739 (8th Cir. 2007), holding that a parent corporation can be considered the employer of its subsidiary's employees only if the parent dominates the subsidiary's operations, or was directly involved in the alleged unlawful action. The decision in Brown can be harmonized with this Court's earlier precedent in Baker by holding, consistent with EEOC guidance and congressional intent, that the traditional four-factor integrated enterprise standard is the means by which plaintiffs can demonstrate corporate dominance over a subsidiary's operations and establish affiliate liability. ARGUMENT I. THE FOUR-FACTOR INTEGRATED ENTERPRISE TEST IS THE STANDARD TO DETERMINE CORPORATE AFFILIATE LIABILITY FOR UNLAWFUL DISCRIMINATION UNDER TITLE VII. The EEOC has long endorsed the "integrated enterprise" theory to determine whether "the operations of two or more employers are considered so intertwined that they can be considered the single employer of the charging party." EEOC Compliance Manual, Section 2: Threshold Issues, No. 915.003, at 44-45.<5> Under the EEOC's interpretation of Title VII, "[t]he separate entities that form an integrated enterprise are treated as a single employer for purposes of both coverage and liability," and "relief can be obtained from any of the entities that form part of the integrated enterprise." Id. at 44. "The factors to be considered in determining whether separate entities should be treated as an integrated enterprise are" as follows: The degree of interrelation between the operations - Sharing of management services such as check writing, preparation of mutual policy manuals, contract negotiations, and completion of business licenses - Sharing of payroll and insurance programs - Sharing of services of managers and personnel - Sharing use of office space, equipment, and storage - Operating the entities as a single unit The degree to which the entities share common management - Whether the same individuals manage or supervise the different entities - Whether the entities have common officers and boards of directors Centralized control of labor relations - Whether there is a centralized source of authority for development of personnel policy - Whether one entity maintains personnel records and screens and tests applicants for employment - Whether the entities share a personnel (human resources) department and whether inter-company transfers and promotions of personnel are common - Whether the same persons make the employment decisions for both entities The degree of common ownership or financial control over the entities - Whether the same person or persons own or control the different entities - Whether the same persons serve as officers and/or directors of the different entities - Whether one company owns the majority or all of the shares of the other company. Id. at 44-45. The compliance manual further explains the purpose and proper application of the four-factor test: The purpose of these factors is to establish the degree of control exercised by one entity over the operation of another entity. All of the factors should be considered in assessing whether separate entities constitute an integrated enterprise, but it is not necessary that all factors be present, nor is the presence of any single factor dispositive. The primary focus should be on centralized control of labor relations. Id. at 45. "[W]hile this issue often arises where there is a parent-subsidiary relationship," the compliance manual notes, such a "relationship is not required for two companies to be considered an integrated enterprise." Id. The four-factor integrated enterprise test originated in proceedings under the National Labor Relations Act (NLRA), and was approved for use in that context by the Supreme Court. See Radio & Television Broad. Techs. Local Union 1264 v. Broadcast Serv. Of Mobile, 380 U.S. 255 (1965) (per curiam) ("in determining the relevant employer, the [NLRB] considers several nominally separate business entities to be a single employer where they comprise an integrated enterprise," pursuant to the following "controlling criteria": "interrelation of operations, common management, centralized control of labor relations and common ownership"). "'The single employer doctrine is a Board creation that treats two or more related enterprises as a single employer for purposes of holding the enterprises jointly ... liab[le] for any unfair labor practices.'" NLRB v. Bolivar- Tees, Inc., ___ F.3d ___, 2008 WL 2262368 n.2 (8th Cir. June 4, 2008) (quoting Iowa Express Distrib., Inc. v. NLRB, 739 F.2d 1305, 1310 (8th Cir. 1984)). This Court was the first court of appeals to adopt the NLRB's standard to determine whether two corporate entities could be considered a single "employer" under Title VII. Baker v. Stuart Broadcasting Co., 560 F.2d 389, 391-92 (8th Cir. 1977). The Court in Baker began "with the proposition that 'Title VII ... is to be accorded a liberal construction in order to carry out the purposes of Congress to eliminate the inconvenience, unfairness and humiliation of [unlawful] discrimination," and determined that "[s]uch liberal construction is also to be given to the definition of 'employer.'" Id. at 391. The Court found persuasive the opinions of lower courts holding "that the standard to be employed to determine whether consolidation of separate entities is proper are the standards promulgated by the [NLRB]: (1) interrelation of operations, (2) common management, (3) centralized control of labor relations, and (4) common ownership or financial control." Id. "In view of the liberal treatment accorded to Title VII," the Court concluded, the NLRB's "factors should be applied in the determination of 'employer' under [Title VII]." Id. at 392. The Baker Court found "sufficient facts to hold as a matter of law" that two affiliated broadcasting corporations - Stuart and Grand Island - "share management and ownership," and "a sufficient interrelation of operations between the two companies." Id. The Court cited evidence that Stuart "provides management services for Grand Island ... includ[ing] check writing and completion of the necessary forms for broadcast license renewals ... [and] issues policy manuals which Grand Island ... is to follow." Id. "While evidence as to control of labor relations [was] less clearly developed in the record," the Court held "that the record supports a conclusion that Stuart Broadcasting and Grand Island Broadcasting should be consolidated" and treated as a single employer with sufficient employees to be covered by Title VII. Id. This Court's decision to interpret Title VII's definition of "employer" in accord with standards developed by the NLRB finds support in the statutory text and history. Title VII was modeled on the NLRA and the two statutes are often interpreted in tandem. See Ford Motor Co. v. EEOC, 458 U.S. 219, 226 n.8 (1982); Franks v. Bowman Transp. Co., 424 U.S. 747, 768-70 (1976). The definitions of "employer" in the two statutes are virtually identical. Compare 42 U.S.C. § 2000e(b) (Title VII) with 29 U.S.C. § 152(2) (NLRA). "Since it is clear that the framers of Title VII used the NLRA as its model, ... the similarity in language of the Acts [is] indicative of a willingness to allow the broad construction of the NLRA to provide guidance in the determination of whether, under Title VII, two companies should be deemed to have substantial identity and treated as a single employer." Armbruster v. Quinn, 711 F.2d 1332, 1336 (6th Cir. 1983). The integrated enterprise "test has subsequently been widely adopted" or applied in federal employment discrimination cases. See Compliance Manual, Section 2 at 45 n.107 (citing cases). Congress codified the integrated enterprise standard in a 1984 amendment to the Age Discrimination in Employment Act (ADEA), and again in a provision of the 1991 Civil Rights Act amending Title VII and the Americans with Disabilities Act (ADA), to extend the protections of federal anti-discrimination laws to U.S. citizens employed overseas by a foreign corporate affiliate controlled by an American employer. See 29 U.S.C. § 623(h) (ADEA); 42 U.S.C. § 2000e-1(c) (Title VII); 42 U.S.C. § 12112(c)(2) (ADA). The Supreme Court explained the history and purpose of the ADEA amendment in EEOC v. Arabian American Oil Co., 499 U.S. 244, 258-59 (1991) (Aramco), which held that Title VII did not apply extraterritorially: [A]fter several courts had held that the ADEA did not apply overseas, Congress amended [the ADEA] to provide: "The term 'employee' includes any individual who is a citizen of the United States employed by an employer in a workplace in a foreign country." 29 U.S.C. § 630(f). Congress also amended § 4(g)(1), which states: "If an employer controls a corporation whose place of incorporation is in a foreign country, any practice by such corporation prohibited under this section shall be presumed to be such practice by such employer." 29 U.S.C. § 623(h)(1). The expressed purpose of these changes was to "mak[e] provisions of the Act apply to citizens of the United States employed in foreign countries by U.S. corporations or their subsidiaries." S. Rep. No. 98- 467, p.2 (1984), U.S.Code Cong. & Admin.News 1984 pp. 2974, 2975. Id. at 258-59. To accomplish the goal of protecting U.S. citizens working abroad for foreign subsidiaries of American employers, Congress codified the four-factor integrated enterprise test as the standard to determine "whether an employer controls a corporation" overseas, and is thereby "presumed" liable for unlawful discrimination against the American employees of the foreign subsidiary. 29 U.S.C. § 623(h). "The purpose behind the amendment is to ensure that the citizens of the United States who are employed in a foreign workplace by U.S. corporations or their subsidiaries enjoy the protections of the [ADEA]." S. Rep. 98-467, pp.27- 28, 1984 U.S.C.C.A.N. 2974, pp.3000-01. Under the ADEA, as amended, the failure of a "foreign firm owned or controlled by an American employer ... to follow the provisions of the ADEA with respect to employees or applicants who are U.S. citizens ... could result in liability for both the controlling firm and its subsidiary." EEOC Policy Guidance: Application of the [ADEA] and the Equal Pay Act of 1963 (EPA) to American firms overseas, their overseas subsidiaries, and foreign firms," No. N-915.039 at 5 (Mar. 3, 1989) (ADEA Guidance).<6> The Supreme Court in Aramco, having held that Title VII did not apply extraterritorially, suggested that "Congress, should it wish to do so, may similarly amend Title VII." 499 U.S. at 259. Congress immediately followed the Court's suggestion, adding a provision to the 1991 Civil Rights Act to include functionally identical language in Title VII and the ADA. As amended, Title VII now protects U.S. citizens employed "in a foreign country," 42 U.S.C. § 2000e(f), in the following circumstances: (c)(1) If an employer controls a corporation whose place of incorporation is a foreign country, any practice prohibited by section 2000e-2 or 2000e-3 of this title engaged in by such corporation shall be presumed to be engaged in by such employer. (2) Sections 2000e-2 and 2000e-3 of this title shall not apply with respect to the foreign operations of an employer that is a foreign person not controlled by an American employer. (3) For purposes of this subsection the determination of whether an employer controls a corporation shall be based on - (A) the interrelation of operations; (B) the common management; (C) the centralized control of labor relations; and (D) the common ownership or financial control, of the employer and the corporation. 42 U.S.C. § 2000e-1(c); see also 42 U.S.C. § 12112(c)(2) (ADA). Congress's purpose was to "extend the protections of Title VII and the [ADA] to American citizens working overseas for American employers," by enacting a provision that "parallels a 1984 amendment to the [ADEA]." 137 Cong. Rec. S15235-02 (Sen. Kennedy) (Oct. 25, 1991); see also 137 Cong. Rec. S15477-01 (Sen. Dole) (Oct. 30, 1991) (same). Congress has thus approved the four-factor integrated enterprise test to determine when an employer will be presumed liable for the unlawful employment practices of a subsidiary or corporate affiliate. "A foreign entity will be found to be controlled only if it is, in effect, an integrated enterprise with an American employer." EEOC Enforcement Guidance: Application of Title VII and the [ADA] to Conduct Overseas and to Foreign Employers Discriminating in the United States, No. N-915.002 at 4, 18 n.6 (Oct. 20, 1993) ("The factors identified ... are the same as those relied upon by the Commission for determining when two or more entities (whether foreign or domestic) may be treated as an integrated enterprise or a single employer.").<7> Given the express purpose of adding these provisions to Title VII, the ADA, and the ADEA - i.e., to extend to U.S. citizens employed abroad by American employers, or by foreign affiliates controlled by such employers, the same protections from discrimination they would enjoy at home - Congress plainly manifested its intent that the term "employer," as used in each statute, be interpreted in accord with the four-factor integrated enterprise test. In 1984, when Congress first codified the test in the ADEA, the Fifth, Sixth, Eighth, and Ninth Circuits had already adopted it as a means to determine "employer" coverage or liability under Title VII. See Baker, 560 F.2d at 392 (coverage); Childs v. Int'l Brotherhood of Electric Workers, 719 F.2d 1379, 1382 (9th Cir. 1983) (coverage); Armbruster v. Quinn, 711 F.2d 1332, 1336-38 (6th Cir. 1983) (coverage); Trevino v. Celanese Corp., 701 F.2d 397, 404 (5th Cir. 1983) (liability). The Second and Eleventh Circuits subsequently endorsed the test, relying on these earlier cases. See, e.g., Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1240-41 (2d Cir. 1995) (liability); McKenzie v. Davenport-Harris Funeral Home, 834 F.2d 930, 933-34 (11th Cir. 1987) (coverage). The First and Tenth Circuits have applied the test, while expressly declining to adopt it. See, e.g., Romano v. U-Haul International, 233 F.3d 655, 664-66 (1st Cir. 2000); Knowlton v. Teltrust Phones, Inc., 189 F.3d 1177, 1184 (10th Cir. 1999). The Ninth Circuit has since limited the test to determine coverage, but not liability. See Anderson v. Pacific Maritime Assoc., 336 F.3d 924, 928-29 (9th Cir. 2003). The First Circuit has squarely rejected this dichotomy. See Torres-Negron v. Merck & Co., 488 F.3d 34, 41 n.7 (1st Cir. 2007) (rejecting as "descriptively inaccurate" and "prescriptively unjustified" the argument "that the single-employer doctrine ... is useful only to determine whether an entity is an employer under Title VII" because "the very purpose of the doctrine is to extend responsibility for discrimination beyond technical distinctions to promote the Title VII goal of eliminating employment discrimination"). Two circuits have rejected the integrated enterprise doctrine and formulated different standards to determine whether separate entities should be considered a single employer with sufficient personnel to be covered by Title VII, 42 U.S.C. § 2000e(b), which defines "employer" as "a person ... who has fifteen or more employees." See Nesbit v. Gears Unlimited, Inc., 347 F.3d 72, 85 (3rd Cir. 2003) (declining to adopt "NLRB's test in deciding whether two entities should together be considered an 'employer' for Title VII purposes" because goal of excluding small employers from coverage "suggests that the fifteen-employee minimum should be strictly construed"); Papa v. Katy Industries, 166 F.3d 937, 940 (7th Cir. 1999) (test "to resolve issues of affiliate liability" under NLRA "was not custom- designed for answering exemption questions under the antidiscrimination laws," which exempt "tiny employers ... to spare very small firms from the potentially crushing expense" of compliance). The Seventh Circuit has since clarified that "nothing in Papa limits its application to the tiny employer context," because "the principles governing affiliate liability should apply 'across the full range of American law' unless a particular statute provided an alternative test." Worth v. Tyler, 276 F.3d 249, 260 (7th Cir. 2001). The Fourth Circuit, in deciding whether a parent corporation is liable for unlawful discrimination against a subsidiary's employees, has emphasized "the doctrine of limited liability" derived from corporate law, and applies "a strong presumption" that "when a subsidiary hires employees ... the subsidiary, not the parent company, is the employer." Johnson v. Flowers, 814 F.2d 978, 980-81 (4th Cir. 1987). "In an employment context," the court decided, the parent company can be the employer of a subsidiary's workers if it exercises excessive control in one of two ways. First, the parent could control the employment practices and decisions of the subsidiary. ... Second, the parent might so dominate the subsidiary's operations that the parent and the subsidiary are one entity and thus one employer. Id. at 981. The Fourth Circuit acknowledged the "four-factor test" applied by other courts to assess the degree of control exercised by a parent corporation over a subsidiary, but saw no "need [to] adopt such a mechanical test in every instance; the factors all point to the ultimate inquiry of parent domination" and "simply express relevant evidentiary inquiries whose importance will vary with the individual case." Id. at 981 n.*. The Fifth and Tenth Circuits have adopted Johnson's articulation of a "strong presumption that a parent company is not the employer of its subsidiary's employees," that will be overcome "only in extraordinary circumstances." Frank v. U.S. West, Inc., 3 F.3d 1357, 1362 (10th Cir. 1993) (citing Johnson); see also Lusk v. Foxmeyer Health Corp., 129 F.3d 773, 778 (5th Cir. 1997) (citing Johnson and Frank). In these cases, "although the four-factor test is cited or recited, the focus of the opinions is on whether the parent corporation made the personnel decision - committed the discriminatory act - of which the plaintiff was complaining," Papa, 166 F.3d at 940, in effect imposing a standard of "direct liability." See United States v. Bestfoods, 524 U.S. 51, 65 (1998) ("derivative liability cases are to be distinguished from those in which 'the alleged wrong can seemingly be traced to the parent through the conduit of its own personnel and management' and 'the parent is directly a participant in the wrong complained of'") (citation omitted); Pearson v. Component Technology Corp., 247 F.3d 471, 486-87 (3rd Cir. 2001) ("in the labor context, 'direct' liability may attach if the parent has overridden the subsidiary's ordinary decision-making process and ordered it to institute an unfair labor practice, or to create discriminatory hiring policies," and "functions essentially as a kind of 'transaction-specific' alter ego theory"). More recently, this Court in Brown v. Fred's, Inc., 494 F.3d 736, 739 (8th Cir. 2007), applied "'a strong presumption that a parent company is not the employer of its subsidiary's employees,'" id. (quoting Frank and citing Johnson), and held a Title VII plaintiff to the standard announced in Johnson: "A parent company may employ its subsidiary's employees if (a) the parent company so dominates the subsidiary's operations that the two are one entity and therefore one employer, ... or (b) the parent company is linked to the alleged discriminatory action because it controls 'individual employment decisions.'" Id.<8> Without citing its earlier decision in Baker or mentioning any of the four factors relevant to determine whether the parent corporation and its subsidiary could be considered an integrated enterprise, the Brown Court affirmed summary judgment for the parent, finding "nothing" to suggest that the parent and subsidiary "were a single entity," and insufficient evidence that the parent "actually controlled individual employment decisions regarding [plaintiff]." Id. at 739-40. Remarkably, none of these decisions recognizes that Congress has codified the four-factor integrated enterprise test in amendments to the ADEA, Title VII, and the ADA, and all consequently fail to consider the text, history, or purpose of these provisions in deciding whether a corporate employer "controls" a subsidiary or affiliate to an extent sufficient to presume that the unlawful practices of the subsidiary are those of the parent. Apparently unaware that Congress has sanctioned a particular standard for corporate affiliate liability in the statutory text, courts have drawn on other areas of law to fashion a variety of tests as a matter of "federal common law." See Nesbit, 347 F.3d at 85-87 (adopting "an intentionally open-ended equitable inquiry - which we consider one of federal common law - to determine when substantively to consolidate two entities") (emphasis added); see also Papa, 166 F.3d at 941 ("[W]e cannot think of a good reason why the legal principles governing affiliate liability should vary from statute to statute, unless the statute, or the particular policy that animates the statute, ordains a particular test.") (emphasis added). The absence of a uniform approach has resulted in an undesirable level of "uncertainty about the standard" to apply. Id. The Supreme Court has explained, however, that "federal common law is 'subject to the paramount authority of Congress'... and when Congress addresses a question previously governed by a decision rested on federal common law the need for such an unusual exercise of lawmaking by federal courts disappears." City of Milwaukee v. Illinois and Michigan, 451 U.S. 304, 313-14 (1981). Because Congress clearly meant to extend to American employees of an ABM Janitorial subsidiary in British Columbia the same protection that governs ABMI's liability for discrimination against ABM Janitorial workers in Minnesota, see 2007 Form 10-K at 3 (ABMI's "Janitorial subsidiaries ... operated in 49 states, [D.C.,] and British Columbia"), this Court should reaffirm its precedent in Baker and apply the traditional four-factor integrated enterprise test in this case. In so doing, the Court would adhere to an interpretation of "employer" in accord with congressional intent and EEOC guidance, and bring needed uniformity to an area currently in disarray. II. ABMI IS PLAINTIFFS' EMPLOYER BECAUSE PARENT AND SUBSIDIARY SHARE COMMON OWNERSHIP AND MANAGEMENT, ABMI MAINTAINS CENTRALIZED CONTROL OF LABOR RELATIONS, AND ABMI IS SUBSTANTIALLY INVOLVED IN SUBSIDIARY OPERATIONS. Under the four-factor standard approved by Congress, ABMI controls ABM Kentucky and is therefore liable for any unlawful discrimination against plaintiffs. Two of the four factors - common ownership and common management - are undisputed, and the Service Agreement between the two entities contemplates ABMI's involvement in nearly every facet of the operations and labor relations of ABM Kentucky. See R.195 at 7-9. The district court, in holding to the contrary, imposed a more demanding standard of affiliate liability based on language in Brown, 494 F.3d at 739, applying a "strong presumption" against holding a parent liable for the unlawful employment practices of its subsidiary. See R.195 at 24-25, 39 (quoting or citing Frank, Johnson, and Brown). This common-law presumption, however, is overcome with evidence sufficient to meet the standard adopted in Baker, endorsed by the EEOC, and approved by Congress, i.e., that the unlawful practices of a subsidiary corporation "shall be presumed to be engaged in by such employer" that "controls" the corporation, to be determined "based on - (A) the interrelation of operations; (B) the common management; (C) the centralized control of labor relations; and (D) the common ownership or financial control, of the employer and the corporation." 42 U.S.C. § 2000e-1(c). The language in Brown can thus be harmonized with this Court's earlier precedent in Baker by clarifying that the traditional four-factor test endorsed in Baker is the means by which plaintiffs can demonstrate the corporate dominance over a subsidiary's operations sufficient to establish affiliate liability. The district court decided that ABMI's "involvement in the operations of ABM Kentucky ... were not of the type or the extent to which a court could find that ABMI was involved in the actual functioning of ABM Kentucky," based primarily on its finding that "the day-to-day operations of ABM Kentucky were handled by ABM Kentucky employees and without the involvement or oversight of ABMI personnel." R.195 at 27-28. This conclusion, however, cannot be reconciled with ABMI's representations in corporate filings and publications widely disseminated on the company's website. According to these published statements, ABMI exercises significant control, through "the involvement or oversight of ABMI personnel," id., over its janitorial subsidiaries, particularly in areas affecting labor and human resources. In its 2007 Annual Report to Stockholders, ABMI reports that subsidiary ABM Janitorial has a "work force of 47,000 employees operating out of 111 branch offices." 2007 Stockholder Report at 17.<9> According to the report, ABM Janitorial Service's vast market coverage, corporate oversight and local operational expertise allow our branches to deliver quality service to our clients, regardless of their size or location. Our corporate professionals have developed comprehensive standards for all procedures and protocols in the areas of human resources, safety and training. These programs are distributed subsidiary-wide, providing our employees with the latest in cleaning methods, technology and safety guidelines. Experienced management and supervision, along with a well-trained, dedicated work force, are the keys to providing the superior service upon which our customers rely. Id. (emphasis added). In the 2006 Fall/Winter Issue of its self-published "Alliance Magazine,"<10> ABMI describes in greater detail the "comprehensive standards for all procedures and protocols in the areas of human resources, safety and training," that ABMI's centralized "corporate professionals" provide "subsidiary-wide" to managers, supervisors, and employees. In particular, the magazine explains "how ABM's dynamic corporate Human Resources Department trains and inspires a field of 50- plus [HR] generalists who serve ABM's subsidiary companies with 73,000 employees nationwide." 2006 Fall/Winter Alliance at 3. Erin Andre, Senior VP of HR for ABMI, explains that her department's "corporate objective is to partner" with subsidiaries "to ensure that we hire and retain the best mix of talent to meet customer and business needs while maintaining 'Best in Class' HR practices." Id. at 6. To that end, ABMI's centralized HR department directly responds, on a daily basis, to a wide range of inquiries from employees, supervisors, and human resource managers throughout the company's subsidiaries, and instructs subsidiaries on the application of federal labor laws to the company's entire workforce. Id. The centralized Employee Benefits office "administers a wealth of employee benefit packages" that "include health and life insurance, short- and long-term disability coverage, and a personal accident plan," offered to employees of ABMI subsidiaries nationwide. Id. at 9. Corporate HR also trains and carefully monitors the HR personnel and practices of ABMI subsidiaries. 2005 Spring/Summer Alliance at 5. In addition to a library of video-based and written materials, the HR Department produces annual programs on unlawful harassment and supervisory development. This training is supplemented by ongoing assistance provided by HR representatives of ABM's subsidiary companies. To ensure the reliability of this assistance, HR reps must become certified by successfully completing ABM's [HR] Certification Program. Id. Clay Adams, ABMI's Manager of Training Programs and Employee Relations Specialist, notes that "[r]eaching the thousands of front-line supervisors and other managers with training is no small chore." Id. According to Adams, "it's largely because of the numbers and the vast geography involved that the Regional Supervisory Training Program was born": Although ABM has 94 certified HR reps available to provide oversight, there are "many people throughout the regions doing the job," [Adams] says. New topics are developed annually and may be dictated by changes in the law or various priorities identified by the [corporate] HR Department and the field. "Because we are so intimately involved with employee relations, we see firsthand what the issues are ... [and] craft the training to address potential problem areas." Usually a regional training facilitator coordinates training across the many subsidiaries in a given region. "That's the beauty of the program," Adams stresses. "It's developed so that the topic is broad enough to train a class with reps from each of our subsidiaries. It doesn't matter if it's janitorial, parking, or other ABM subsidiaries. The training is all encompassing." Id. Training topics "have included conflict resolution, diversity, and employment law." Id. Through various training programs, "'we work to develop effective communication and interpersonal skills for our supervisors,' Adams says." Id. These skills "significantly impact customer service, employee retention, absenteeism, safety, insurance claims and employment-related claims," and, Adams says, "'are the skills we want our supervisors to have.'" Id. Adams is also charged to "[c]onduct or oversee workplace investigations and recommend resolutions," and his division "provides policy interpretation, coaching, support and approvals to field supervisors, management and HR staff in the areas of coaching, constructive discipline, performance management, wage and hour, dispute resolution, terminations, leave administration, immigration and other issues." 2006 Fall/Winter Alliance at 9. As structured by ABMI, "[f]our corporate [HR] directors support 51 HR field directors who provide service to ABM's subsidiary companies," and "assist [HR] field directors and their management teams in effective workforce management by providing timely and accurate advice." Id. To ensure that subsidiaries follow the policies, practices, and procedures established in ABMI corporate headquarters, "ABM's [HR] Department has developed and officially rolled out the HR Audit Protocol, which is designed to measure the Company's compliance with a number of performance standards regarding employee records and HR practices." Id. at 8. There are audits to ensure all locations are adhering to proper procedures regarding new hires, such as conducting background checks and reviewing appropriate documentation. Then there are audits in connection with wage and hour laws, equal employment and SMLA [sic] notification required by the government. [HR] directors perform field audits, creating a partnership between corporate staff and field directors to make sure the branches are in compliance with myriad standards. ... The audit is extremely detailed ... containing 21 pages and well over 100 different areas that need to be examined. Id. "The data gathered" in the HR audits are ranked into "one of three rating categories," enabling "the Company to look for patterns - strengths or gaps - and to adjust corporate policies or training accordingly." Id. ABMI personnel also establish and monitor compliance with policies and procedures governing job performance and employee safety for all subsidiaries. ABMI's "corporate [HR] and safety departments deliver far-reaching programs" to all subsidiaries in the area of employee training. 2005 Spring/Summer Alliance at 4-5. In particular, ABMI has implemented a comprehensive "proprietary" training program "developed to standardize the way ABM cleaned and to enable supervisors to quickly and confidently train new employees." Id. at 9. The centralized department of Safety Services "manages occupational and environmental safety programs that benefit and safeguard the field," including "programs that support all ABM subsidiaries"; "programs that have broad application, but which are tailored to address specific service needs by individual subsidiaries"; and "special or site-specific programs." 2006 Fall/Winter Alliance at 4. "There are some 25 safety directors or coordinators Company-wide ... and no subsidiary or branch has been left out of the 'mix.'" Id. ABMI ensures "[e]ach [subsidiary or branch] has someone who is assigned responsibility for ensuring that an effective safety management process is in place." Id. "Every year, all of the Company's safety directors and coordinators gather for an extensive training session, which [in 2006] was divided into two 50-hour segments." Id. "Corporate safety staff also visit local safety directors across the country to provide counsel and assistance with programs and procedures." Id. at 5. While ABMI's Director of Safety Services announced plans to "'roll out a new set of comprehensive safety policies addressing anything and everything we do in the field,'" the Assistant Director focuses "most of [her] time on ensuring that ABM has an effective safety program and that every ABM subsidiary provides its employees with a safe work environment." Id. To achieve her "main objective ... to see every ABM employee go home safely at the end of every work shift," she has developed "a solid understanding of what our employees encounter on a day- to-day basis" and "can apply [her] technical knowledge to assist the field in integrating safety management into the operations." Id. Because these descriptions of ABMI operations in corporate reports and publications amply demonstrate the parent corporation's centralized control and involvement in the day-to-day operations and labor relations of its wholly-owned subsidiaries, including ABM Kentucky, ABMI must be considered plaintiffs' employer for purposes of Title VII liability. CONCLUSION For the foregoing reasons, the EEOC urges this Court to reverse the summary judgment for ABMI and remand for a determination on the merits of plaintiffs' Title VII claims. Respectfully submitted, /s/ Dori K. Bernstein RONALD S. COOPER DORI K. BERNSTEIN General Counsel Attorney LORRAINE C. DAVIS U.S. EQUAL EMPLOYMENT Acting Associate General Counsel OPPORTUNITY COMMISSION Office of General Counsel CAROLYN L. WHEELER 1801 L Street, N.W. Assistant General Counsel Washington, D.C. 20507 (202)663-4734 CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 6,996 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. /s/ Dori K. Bernstein DORI K. BERNSTEIN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7044 Washington, D.C. 20507 (202)663-4734 Dated: July 30, 2008 CERTIFICATE OF SERVICE I, Dori K. Bernstein, hereby certify that I filed ten copies of the foregoing brief, one copy of the digital version of the brief on diskette, with this Court this 30th day of July, 2008, by overnight delivery, postage pre-paid. I also certify that I served two copies of the foregoing brief, one copy of the digital version of the brief on diskette, this 30th day of July, 2008, by first-class mail, postage pre-paid, to the following counsel of record: Counsel for Plaintiffs-Appellants: Justin D. Cummins MILLER & O'BRIEN 120 South Sixth Street, Suite 2400 Minneapolis, Minnesota 55402-1529 Counsel for Defendants-Appellees: Joel O'Malley Robert R. Reinhart, Jr. DORSEY & WHITNEY 50 South Sixth Street, Suite 1500 Minneapolis, Minnesota 55402-1498 /s/ Dori K. Bernstein Dori K. Bernstein Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7044 Washington, D.C. 20507 (202) 663-4734 *********************************************************************** <> <1> The EEOC takes no position as to other issues in this appeal. <2> ABMI's 2007 Form 10-K, filed with the Securities and Exchange Commission, is published at http://www.sec.gov/Archives/edgar/data/771497/000095013407026080/f36581e10 vk.htm, and on ABMI's website, http://www.abm.com/ilwwcm/connect/ABM/Home/Investor+Relations/Financials/ <3> Record references, denoted "R.__," correspond to numbered entries on the district court docket sheet. <4> The two companies "share the same Chief Executive Officer, Chief Financial Officer, Treasurer, Secretary and Vice President of Finance"; ABM Kentucky's Regional Vice President, Jeffory Southard, "reported directly to Jan Kaupas, the Executive Vice President for ABM Janitorial ... and Jim McClure," President of ABM Janitorial and Executive Vice President of ABMI. R.195 at 32-33. <5> The Compliance Manual is available at http://www.eeoc.gov/policy/docs/threshold.html <6> See http://www.eeoc.gov/policy/docs/extraterritorial-adea-epa.html. <7> See http://www.eeoc.gov/policy/docs/extraterritorial-vii-ada.html. <8> The Brown Court also cited Leichihman v. Pickwick International, 814 F.2d 1263, 1268 (8th Cir. 1987), where this Court affirmed summary judgment for the parent company of an ADEA plaintiff's employer, finding "no evidence linking [the parent] to any of [the subsidiary's] individual employment decisions, including the decisions to terminate and to refuse to relocate [plaintiff]." It appears that the plaintiff in Leichihman sought to hold the parent corporation directly liable for his termination, arguing that "the jury could infer that [the parent] directed [the subsidiary] to get rid of [plaintiff]." Id. <9> The ABMI 2007 Stockholder Report is available at http://www.abm.com/ilwwcm/connect/ABM/Home/Investor+Relations/Financials/ <10> Issues of Alliance Magazine are available at http://www.abm.com/ilwwcm/connect/ABM/Home/About+ABM/Alliance+Magazines.