Barrow v. New Orleans S.S. Ass'n, 90-3563

• Citation: 932 F.2d 473
• Decision Date: 06 June 1991
• Docket Number: No. 90-3563,90-3563
• Parties: 137 L.R.R.M. (BNA) 2624, 56 Fair Empl.Prac.Cas. 156, 56 Empl. Prac. Dec. P 40,817, 60 USLW 2047, 119 Lab.Cas. P 10,876 Clarence BARROW, Plaintiff-Appellant, v. NEW ORLEANS STEAMSHIP ASSOCIATION, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 473

932 F.2d 473

137 L.R.R.M. (BNA) 2624, 56 Fair Empl.Prac.Cas. 156,

56 Empl. Prac. Dec. P 40,817, 60 USLW 2047,

119 Lab.Cas. P 10,876

Clarence BARROW, Plaintiff-Appellant, v. NEW ORLEANS STEAMSHIP ASSOCIATION, et al., Defendants-Appellees.

No. 90-3563.

United States Court of Appeals,

Fifth Circuit.

June 6, 1991.

Victor R. Farrugia, Fine & Fine, New Orleans, La., for plaintiff-appellant.

Michael T. Tusa, David E. Walker, Walker, Bordelon, Hamlin, Theriot & Hardy, New Orleans, La., for New Orleans S.S. Ass'n.

William Lurye, Gardner, Robein & Urann, Metairie, La., for Local 3000.

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

Before CLARK, Chief Judge, WILLIAMS and DAVIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Clarence Barrow, a 54-year-old longshoreman, filed this suit against the General Longshore Workers Local Union No. 3000 (Local 3000) and the New Orleans Steamship Association (NOSSA). Barrow asserts that Local 3000 and NOSSA discriminated against him based on his age by entering a collective bargaining agreement (CBA) which altered longshoremen's seniority status and by applying the new seniority system in a discriminatory manner. Barrow also alleges that the defendants retaliated against him for exercising his statutory rights. Barrow further contends that the defendants breached their contractual obligations under the CBA. Finally, Barrow asserts state law claims for infliction of emotional distress. The district court granted summary judgment for the defendants, holding that Barrow's claims had prescribed. We affirm in part, vacate in part, and remand for further proceedings in accordance with this opinion.

I.

In February 1988, the defendants signed the CBA at issue. The agreement became effective March 1, 1988. Before the agreement, longshoremen with 20 years of relevant work were classified as A-1, the choice classification for obtaining work. Longshoremen with between 10 and 20 years of work were A-2; and longshoremen with less than 10 years were A-3. After the CBA, all longshoremen with more than 15 years of work were classified as A-1. All other longshoremen were A-2's, and the designation A-3 was eliminated. Barrow, an A-1 longshoreman under both systems, alleges that this new classification system increased the number of A-1 longshoremen thereby adversely affecting him in securing work.

In May 1988, Barrow and 155 other members of Local 3000 filed a grievance against the union president for signing the CBA without membership approval. This claim was not fully resolved until January 1989. At that time, a committee appointed by the International Longshoremen's Association (ILA) found that the local president had authority to sign the CBA. In February 1989, the ILA sent its findings to the union members who had filed the grievance.

In April 1989, Barrow went to the NLRB to complain that he was being discriminated against because of his age. The NLRB referred Barrow to the EEOC. In May 1989, Barrow filed age discrimination charges at the EEOC against Local 3000 and NOSSA. After filing the charges at the EEOC, Barrow alleges he found it even more difficult to get work. He cites several instances which presumably form the basis for his retaliation and emotional distress claims. In September 1989, the EEOC issued Barrow a no-cause determination on his age discrimination charges and a right-to-sue letter. Barrow sued Local 3000 and NOSSA in January 1990.

In June 1990, the defendants moved for summary judgment on Barrow's claims. The hearing for these motions was set for July 11, 1990. On July 6, 1990, Barrow requested that the hearing be continued. Barrow explained that Local 3000 was late in responding to his discovery and that he needed additional time to review the requested information before he could adequately oppose the motions for summary judgment. On July 9, 1990, the district court cancelled oral argument and granted defendants' motions for summary judgment. Barrow then timely lodged this appeal.

II.

Barrow first argues that the district court erred in not granting his request for additional time to respond to defendants' motions for summary judgment. Barrow contends that the district court abused its discretion in requiring him to prepare his opposition to the summary judgment motions without documents he had requested from Local 3000 including minutes of the union meetings. The pretrial conference in Barrow's case was set for July 26, 1990. All discovery was to be completed at least 21 days before that date, or on July 5, 1990. Thus the hearing on the defendants' summary judgment motions, scheduled for July 11, 1990, was set for approximately one week after the discovery cutoff and two weeks before the pretrial conference. These dates were established at a February 1990 scheduling conference. The district court allowed Barrow adequate time to complete his discovery and did not abuse its discretion in denying Barrow's motion for continuance on the hearing.

III.

Barrow next argues that the district court erred in dismissing his suit with prejudice. In his complaint, Barrow alleged four primary causes of action. First, he alleged age discrimination in both the adoption of the new seniority system and in its discriminatory application. Second, Barrow contended that the defendants retaliated against him for filing a charge with the EEOC concerning the alleged age discrimination. Third, Barrow alleged that the defendants breached the CBA both by discriminating against him based on age and by violating the provision that all regular gangs be filled. Finally, Barrow asserted pendent state claims of intentional or negligent infliction of emotional distress. We will address each of Barrow's claims in turn.

A. The Age Discrimination Claim

Barrow first argues that the district court erred in concluding that his age discrimination claim was time barred. Barrow contends that he was discriminated against based on his age in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Secs. 621-634. He contends that the defendants accomplished this discrimination by adopting the new seniority system and by continuing to apply that system. The district court dismissed Barrow's age discrimination claim finding that it "was not timely filed with the EEOC, barring this suit brought under the ADEA." The district court relied on a section of the ADEA which provides that a charge of discrimination shall be filed with the EEOC "within 180 days after the alleged unlawful practice occurred." 29 U.S.C. Sec. 626(d)(1). If an EEOC charge is untimely filed, a suit based upon the untimely charge should be dismissed. McClinton v. Alabama By-Prods. Corp., 743 F.2d 1483, 1485 (11th Cir.1984) (citing Templeton v. Western Union Tel. Co., 607 F.2d 89, 91 (5th Cir.1979) (per curiam)).

In his deposition, Barrow admitted that as of April 1988 he was aware that the modified seniority system would have an "unfair effect" upon him because of his age. However, Barrow did not file his charge with the EEOC until May 1989, more than one year later. Barrow argues that this charge was still timely because he suffered discrimination within 180 days of filing it. Barrow contends that he visited the hiring center twice a day, every day from the institution of the new seniority system until the date he filed his charge with the EEOC. He contends that each visit in which he was refused employment because of his age was a separate and distinct act of discrimination which started the 180-day filing period.

The defendants contend that any discrimination claim based upon a new seniority system must be filed with the EEOC within 180 days of adoption of the system. See Lorance v. AT & T Tech., Inc., 490 U.S. 900, 109 S.Ct. 2261, 104 L.Ed.2d 961 (1989); see also Gould, The Supreme Court and Employment Discrimination Law in 1989: Judicial Retreat and Congressional Response, 64 Tul.L.Rev. 1485, 1511-13 (1990). In Lorance, female employees sued under Title VII, alleging that the company's seniority system discriminated against them on the basis of their sex. The district court granted summary judgment for the company on grounds that the suit was time barred because the EEOC charges were filed more than 180 days after the seniority system was adopted. The Supreme Court agreed, holding that "the limitations period [for filing a charge] will run from the date the system was adopted." 490 U.S. at 909, 109 S.Ct. at 2267. The Court held that it is the seniority system's "adoption which triggers the limitations period" for filing a discrimination charge and such charge must be filed within 180 days of the adoption. Id. at 911, 109 S.Ct. at 2268; see Hendrix v. City of Yazoo City, Miss., 911 F.2d 1102, 1104 (5th Cir.1990) ("the discriminatory adoption of a facially neutral seniority system [is] a single violation triggering the statute of limitations, rather than a continuing violation renewed with each [application]").

The Fourth Circuit has applied the logic of Lorance to an ADEA case. In Hamilton v. 1st Source Bank, 895 F.2d 159, aff'd in part & rev'd in part on other grounds en banc, 928 F.2d 86 (4th Cir.1990), the court discussed the timeliness of age discrimination claims based on the effects of a seniority system. The Hamilton court stated that under the ADEA, "a plaintiff must file charges within 180 days of the institution of a new seniority system, rather than at a later date when the discriminatory effects of the system are felt." Id. at 163. The court further noted that "a key element" in this line of ADEA cases was that the plaintiff had "actual notice ... that the seniority system was being implemented." Id. Barrow admitted in his deposition that he had such notice at least by April 1988.

This issue is one of first impression in this circuit. However, the reasoning of the Title VII cases of Lorance and Hendrix applies with equal force to this ADEA claim. ¹...