Barrow v. New Orleans S.S. Ass'n

Decision Date03 January 1994
Docket NumberNo. 92-9592,92-9592
Citation10 F.3d 292
Parties63 Empl. Prac. Dec. P 42,788 Clarence BARROW, Plaintiff-Appellant, v. NEW ORLEANS STEAMSHIP ASSOCIATION, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Victor A. Farrugia, New Orleans, LA, for plaintiff-appellant.

David Earl Walker, Metairie, LA, for N.O. S/S & Cooper/T. Smith.

William Lurye, Robein, Urann & Larye, Metairie, LA, for Local 3000 Gen. Longshore Workers.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before WISDOM, HIGGINBOTHAM, and SMITH, Circuit Judges.

WISDOM, Circuit Judge.

Clarence Barrow appeals from the entry of summary judgment against him on all his claims against General Longshore Workers Local Union No. 3000 ("the Union"), the New Orleans Steamship Association ("NOSSA"), and Cooper/T. Smith Stevedoring Co., Inc. ("Cooper"). We AFFIRM.

I.

Clarence Barrow has been a New Orleans longshoreman and a member of the defendant Union (or its predecessor) since 1957. He has some thirty years' experience and an exemplary safety record as a winch operator.

In 1988, NOSSA and the Union entered into a collective bargaining agreement ("the CBA") which included a new seniority system. Barrow filed an EEOC complaint challenging the CBA seniority system as discriminatory under the Age Discrimination in Employment Act (ADEA). 1 After obtaining a right-to-sue letter from the EEOC, Barrow sued NOSSA and the Union. In Barrow v. New Orleans Steamship Ass'n 2 ("Barrow I "), this Court held that Barrow's disparate treatment challenge to the seniority system on its face was time-barred. We dismissed also the claim that the system was discriminatory as applied. We dismissed that claim without prejudice because the EEOC had not considered that contention. 3 We ordered dismissed without prejudice Barrow's claim that NOSSA and the Union had retaliated against him. 4 We upheld the district court's dismissal with prejudice as time-barred Barrow's claim that the new seniority system violated the CBA, but remanded the case to the district court for consideration of possible CBA breaches not attributable to the seniority system. 5 Finally, we held that Barrow's pendent state claim for emotional distress was not time-barred. 6 We remanded the case to the district court.

While his appeal in Barrow I was pending, Barrow filed EEOC complaints on the issues of retaliation and age discrimination. After the remand, he amended his complaint to reflect the new EEOC charges and to add Cooper, his employer, as a defendant. The defendants then moved for summary judgment. The district court granted the motion as to the Union but denied it as to NOSSA and Cooper.

Barrow's case was scheduled to be tried on June 15, 1992 before Judge Carr. Because Barrow failed to comply with Judge Carr's document stipulation order, however Judge Carr continued the trial on that date. 7 Judge Carr took senior status on July 1 and reassigned Barrow's case to Judge Duplantier. 8 Judge Duplantier entertained another motion for summary judgment from NOSSA and Cooper, 9 and on December 1, 1992, he ruled in favor of both remaining defendants. Barrow appealed to this Court.

Four of Barrow's claims against the defendants survived after the prior panel's remand: (1) a disparate-impact claim that the new seniority system, though facially neutral, was discriminatorily applied; (2) the retaliation claim; (3) breach of contract claims unrelated to the seniority system imposed in the CBA; and (4) a pendent state claim for emotional distress. We review de novo the district court's orders granting summary judgment for the defendants on all four claims.

II.
A. Barrow's Age Discrimination in Employment Act (ADEA) Claims

1. Against NOSSA

The district court granted summary judgment for NOSSA on the basis that NOSSA was neither Barrow's employer nor an agent of his employer, and was therefore not covered by the ADEA. We agree with the district court's conclusion.

We recently discussed the meanings of the terms "employer" and "agent" in the ADEA context in Deal v. State Farm County Mutual Insurance Co. of Texas. 10 The plaintiff in State Farm was an employee of an independent insurance agency who sued her employer and State Farm, the company whose policies her agency sold. We affirmed the district court's holding that State Farm was not Deal's "employer" under the ADEA. We explained the test our Circuit applies:

In determining whether an employment relationship exists within the meaning of Title VII and the ADEA, we apply a "hybrid economic realities/common law control test." ... The right to control an employee's conduct is the most important component of this test.... When examining the control component, we have focused on whether the alleged employer has the right to hire and fire the employee, the right to supervise the employee, and the right to set the employee's work schedule.... The economic realities component of our test has focused on whether the alleged employer paid the employee's salary, withheld taxes, provided benefits, and set the terms and conditions of employment. 11

Neither part of our test supports a conclusion that NOSSA was Barrow's employer. 12 First, NOSSA had no meaningful right to control Barrow's conduct. The stevedoring company foremen, not NOSSA, had the right to hire and fire Barrow, to supervise him, and to set his work schedule. Second, Barrow has produced no evidence that NOSSA paid his wages, withheld his taxes, provided benefits to him, or set the terms and conditions of his employment.

Barrow next contends that NOSSA was an "agent" of his employer under the ADEA. NOSSA was an agent of the stevedoring companies in one sense--it represented them in negotiations with the Union. But one can be another's agent for some purposes and not for others. The key question is whether NOSSA was the stevedoring companies' agent with respect to employment practices. 13 We agree with the Sixth Circuit's opinion in York v. Tennessee Crushed Stone Ass'n 14 that an agent of an employer under the ADEA is generally "a supervisory or managerial employee to whom employment decisions have been delegated by the employer". 15 Under that standard, NOSSA is not an agent of Barrow's employer.

2. Against the Union and Cooper/T. Smith

Although the Union was not Barrow's employer, it is covered by the ADEA as a labor organization. 16 Cooper was Barrow's employer within the meaning of the ADEA.

Barrow must show, as part of his prima facie case, that he was discharged. 17 When an employee resigns, as Barrow did, he may satisfy the discharge requirement by proving constructive discharge. 18 To show constructive discharge, an employee must offer evidence that the employer made the employee's working conditions so intolerable that a reasonable employee would feel compelled to resign. 19 Stated more simply, Barrow's resignation must have been reasonable under all the circumstances. Whether a reasonable employee would feel compelled to resign depends on the facts of each case, but we consider the following factors relevant, singly or in combination: (1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4) reassignment to menial or degrading work; (5) reassignment to work under a younger supervisor; (6) badgering, harassment, or humiliation by the employer calculated to encourage the employee's resignation; or (7) offers of early retirement on terms that would make the employee worse off whether the offer was accepted or not. 20

Barrow has not shown the constructive discharge element of his prima facie case. He has introduced no evidence on any of the seven factors listed above. That list is not exclusive, but Barrow has introduced no evidence sufficient to raise a genuine dispute on any other basis for constructive discharge. Barrow asserts that a reasonable employee would feel compelled to resign after being unable to obtain regular work on a gang. We disagree. A longshoreman's inability to obtain a regular gang position is insufficient, without more, to constitute constructive discharge under the ADEA.

Indeed, the record reveals that the number of hours Barrow worked, as a percentage of all hours worked by all union longshoremen of Barrow's seniority, remained roughly constant or even increased slightly from 1984-85 to 1989-90. 21 These statistics also reveal that the total number of hours worked by longshoremen on the New Orleans waterfront dropped substantially in the late 1980s. The general economic downturn that struck the waterfront at that time constitutes a reasonable factor other than age which explains the decline in Barrow's hours. 22 For the same reason, Barrow's allegation that he was denied employment opportunities (specifically, a regular gang position) must fail. Barrow's employer and the Union have produced a reasonable factor other than age to explain Barrow's inability to get a regular gang position. 23

B. Barrow's Retaliation Claim

We require a showing of three elements to make out a prima facie case of retaliation: 24 (1) the plaintiff engaged in activity protected by the ADEA or Title VII; (2) an adverse employment action occurred; and (3) there was a causal connection between the participation in the protected activity and the adverse employment action. 25

1. Against NOSSA

Barrow has no retaliation claim against NOSSA for the reason stated above: NOSSA was neither his employer nor an agent of his employer, and therefore not required to conform to the ADEA in its dealings with him.

2. Against the Union

Barrow has produced insufficient evidence of adverse employment action and causation--the second and third elements of his prima facie case--to survive summary judgment for the Union. The record shows that, far from taking action against Barrow the Union consistently tried to help him get work. The Union interceded on Barrow's behalf after a May 13, 1990 incident 26 in which...

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