Britt v. Grocers Supply Co., Inc.

• Decision Date: 15 December 1992
• Docket Number: 91-6043,Nos. 91-2493,s. 91-2493
• Citation: 978 F.2d 1441
• Parties: 142 L.R.R.M. (BNA) 2017, 60 Fair Empl.Prac.Cas. (BNA) 673, 60 Empl. Prac. Dec. P 42,024, 61 USLW 2407, 123 Lab.Cas. P 10,480, 8 IER Cases 164 Richard L. BRITT and Timothy Jackson, Jr., et al., Plaintiffs-Appellants, v. The GROCERS SUPPLY COMPANY, INC., Defendant-Appellee, James E. HAMILTON, et al., Plaintiffs-Appellants, v. The GROCERS SUPPLY COMPANY, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1441

978 F.2d 1441

142 L.R.R.M. (BNA) 2017, 60 Fair

Empl.Prac.Cas. (BNA) 673,

60 Empl. Prac. Dec. P 42,024, 61 USLW 2407,

123 Lab.Cas. P 10,480, 8 IER Cases 164

Richard L. BRITT and Timothy Jackson, Jr., et al., Plaintiffs-Appellants, v. The GROCERS SUPPLY COMPANY, INC., Defendant-Appellee, James E. HAMILTON, et al., Plaintiffs-Appellants, v. The GROCERS SUPPLY COMPANY, INC., Defendant-Appellee.

Nos. 91-2493, 91-6043.

United States Court of Appeals Fifth Circuit.

Dec. 15, 1992.

James M. Mabry, Houston, Tex., for Britt, et al.

Syd Phillips, W.A. MacNaughton, Houston, Tex., for Hamilton, et al.

Eric H. Nelson, Nelson & Locke, P.C., Stephen W. Smith, Robert S. Bambace, Fulbright & Jaworski, Houston, Tex., for defendant-appellee.

Appeals from the United States District Court for the Southern District of Texas.

Before REAVLEY, HIGGINBOTHAM, and DUHE, Circuit Judges.

DUHE, Circuit Judge:

These two cases were consolidated on appeal, but tried separately. Both suits

                were brought by groups of former employees of Grocers Supply Company.   The Britt plaintiffs appeal the district court's holding that the National Labor Relations Act, 29 U.S.C. §§ 151-187 (1988), preempts claims of age discrimination asserted under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (1988).   They also appeal the district court's granting summary judgment on the merits of their age discrimination claims.   The Hamilton plaintiffs appeal the district court's granting a directed verdict in favor of the defendants on the plaintiffs' age discrimination claims.   They also appeal the district court's granting summary judgment on their claims of breach of contract and intentional infliction of emotional distress and duress.   The defendant, Grocers Supply, argues that the Britt plaintiffs' notice of appeal is insufficient under Rule 3(c) of the Federal Rules of Appellate Procedure.   We find that the Age Discrimination in Employment Act (ADEA) controls this litigation and not the National Labor Relations Act (NLRA), and that notice of appeal by the Britt plaintiffs was sufficient under Rule 3(c) and its interpretation in Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988).   Additionally, we find no error in the summary judgment in the Britt case, nor do we find error in the directed verdict or summary judgment in the Hamilton case.   In sum, we disagree with the district court on the preemption issue but affirm its judgment
                

STATEMENT OF FACTS

The underlying facts in both cases are the same. In December 1986, the work force of Grocers Supply Company, a Texas corporation, went on strike after contract negotiations broke down. The work force consisted primarily of employees over forty years old. Grocers Supply immediately hired replacement workers to continue its operations. The replacement workers were told that their positions were temporary; sometime before the end of the strike, however, Grocers offered them permanent positions. Negotiations failed, and in April 1987, the striking workers made an unconditional offer to return to work. The Union explained to the workers that they could return to work only when Grocers needed them. In fact, Grocers and the Union negotiated a "recall" agreement to govern the order of recall as vacancies occurred. The Hamilton plaintiffs contend that this offer to return to work was made in response to a promise by Grocers that if the workers would return unconditionally, they would all be rehired within a few weeks.

Very few of the former workers were ever recalled. Grocers maintains that it simply had few hiring needs during this period due to the low turnover and increased productivity of its new workers. The Plaintiffs assert that the slow rehiring and the undesirability of those jobs offered was purposefully orchestrated to reduce the age of the work force and to encourage older workers to retire and take their retirement benefits.

Two groups of workers sued Grocers as a result of their failure to be recalled. Richard L. Britt and Timothy Jackson, Jr., individually and on behalf of others similarly situated, with 126 additional plaintiffs opting in, ¹ assert only an ADEA claim. They contend that their "permanent replacement" was a sham and that they were refused reinstatement because of their age. The district court granted summary judgment on this claim based on two grounds. First, the court held that the ADEA claim was preempted by the NLRA. Second, the district court held that Britt failed to demonstrate a genuine issue of material fact on the discrimination claim sufficient to survive summary judgment.

James E. Hamilton, et al., assert an ADEA claim, a 29 U.S.C. § 301 breach-of-contract claim, and state law claims of intentional infliction of emotional distress and duress. The district court granted summary judgement for Grocers on both

                the § 301 contract claim and the state law claims.   The ADEA claim went to trial, but the district court directed a verdict for Grocers at the close of Hamilton's evidence
                

DISCUSSION

I. Notice of Appeal.

Before addressing other issues, we must address whether the Notice of Appeal for the Britt plaintiffs is sufficient. Grocers contends that the notice is insufficient to satisfy the specificity requirement under Federal Rule of Appellate Procedure 3(c) and its interpretation under Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988).

Rule 3(c) provides that a notice of appeal "shall specify the party or parties taking the appeal." In Torres, the Supreme Court interpreted FRAP 3(c) strictly and held that the designation "et al." in the notice of appeal rather than the name of the appealing party resulted in a failure of that party to appeal, thus depriving the appellate court of jurisdiction.

"The purpose of the specificity requirement of Rule 3(c) is to provide notice both to the opposition and to the court of the identity of the appellant or appellants." Torres, 487 U.S. at 318, 108 S.Ct. at 2409. The problem facing the Supreme Court in Torres was that the use of et al., with nothing further, left it uncertain which parties were taking the appeal. The Court held that thus designating the appealing parties "would leave the appellee and the court unable to determine with certitude whether a losing party not named in the notice of appeal should be bound by an adverse judgment." Id. The Court, however, went on to state that the specificity requirement of Rule 3(c) may be met "by some designation that gives fair notice of the specific individual or entity seeking to appeal." Id.

The plaintiffs in the Britt case consist of the original named plaintiffs, Richard Britt and Timothy Jackson, and another 126 opt-in plaintiffs under 29 U.S.C. § 216(b). The Notice of Appeal was styled "Richard L. Britt and Timothy Jackson, Jr., et al." The body of the notice, however, identified the remaining appellants as "all other 129 consenting Plaintiffs who have previously filed their written consent pursuant to 29 U.S.C. Section 216(b)." ² Because the notice in this case states that all of a particular defined group are taking an appeal, and the individual identities are readily ascertainable in the record, the specificity requirement is satisfied. Such a designation is sufficient to give fair notice of the individuals appealing.

The cases relied on by Grocers involve situations in which the unnamed appellants could be included only if the term "et al.", with nothing further, was considered specific enough to satisfy Rule 3(c). The Notice of Appeal in this case is distinguishable. The plaintiffs, other than the two named plaintiffs, were clearly identified as those parties "who filed their written consent" as required by Section 216(b). Their identities are in the record. Rule 3(c) does not require that all the plaintiffs be identified by given and surname in the notice of appeal. This Court has stated that it "has looked to the purpose rather than the letter of Rule 3(c)'s specificity requirement" when determining the sufficiency of a notice of appeal. Brotherhood of Ry. Carmen v. Atchison, T. & S.F. Ry., 894 F.2d 1463, 1465 n. 3 (5th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 131, 112 L.Ed.2d 99 (1990).

Additionally, this Court has recognized that in some circumstances even the designation "et al." is sufficient to identify the parties. In Pope v. Mississippi Real Estate Commission, 872 F.2d 127, 129 (5th Cir.1989), this Court held that the use of "et al." is sufficient if there are only two parties to the suit. Thus, it is not necessary to list the names of each appealing party, as long as there can be no mistake about which parties are intending to appeal. If papers are filed in a fashion that is technically at variance with the letter of a procedural rule, a court may nonetheless find that the litigant has complied with the rule if the litigant's action is the functional equivalent of what the rule requires. See Torres, 487 U.S. at 317, 108 S.Ct. at 2408; see also Houston v. Lack, 487 U.S. 266, 273-75, 108 S.Ct. 2379, 2383-84, 101 L.Ed.2d 245 (1988). Unlike the defendant in Torres, Grocers had fair notice of the identity of the Appellants. Consequently, its argument that this Court lacks jurisdiction over Britt's appeal must fail.

II. The Preemption Issue.

Turning to the question whether this Court has jurisdiction over the age discrimination claims, we hold that this Court does have jurisdiction to hear the claims asserted under the Age Discrimination in Employment Act (ADEA). ³ More specifically, we hold that, to the extent the age discrimination claims encompass conduct that is arguably covered by the National Labor Relations Act, the ADEA governs the prosecution of those claims and not the NLRA.

The issue of the jurisdiction of this Court was raised on appeal in the Britt case. Although not raised by the Hamilton plaintiffs, it is our duty to determine, sua sponte, if...