Camacho v. Puerto Rico Ports Authority

• Citation: 369 F.3d 570
• Decision Date: 21 May 2004
• Docket Number: No. 03-2113.,03-2113.
• Parties: Oscar CAMACHO, Plaintiff, Appellee, v. PUERTO RICO PORTS AUTHORITY, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 570

369 F.3d 570

Oscar CAMACHO, Plaintiff, Appellee, v. PUERTO RICO PORTS AUTHORITY, Defendant, Appellant.

No. 03-2113.

United States Court of Appeals, First Circuit.

Heard April 5, 2004.

Decided May 21, 2004.

Lizabel M. Negron, with whom Jorge A. Fernandez-Reboredo and Rivera & Fernandez-Reboredo, P.S.C. were on brief, for appellant.

Harry A. Ezratty for appellee.

Before SELYA and HOWARD, Circuit Judges, and SINGAL,^* District Judge.

SELYA, Circuit Judge.

This interlocutory appeal raises a discrete and important question: Can an agency, for purposes of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634, be regarded as the employer of those whom it licenses and regulates? The court below answered this question in the affirmative and, accordingly, ruled that the Puerto Rico Ports Authority (the Authority) was, for ADEA purposes, the de facto employer of the harbor pilots whom it licenses and regulates. See Camacho v. P.R. Ports Auth., 254 F.Supp.2d 220, 227-28 (D.P.R.2003) (Camacho I).

Whatever the theoretical possibilities, we do not agree that, in the circumstances of this case, a de facto employment relationship exists. The sockdolager here is that the statutory power to license and regulate harbor pilots does not imbue the Authority with the level of control necessary to make it their employer for ADEA purposes. Consequently, we reverse.

I. BACKGROUND

Oscar Camacho worked for over eighteen years as a harbor pilot in the port of San Juan. All harbor pilots are required to be licensed, 23 P.R. Laws Ann. § 2403, and at all times relevant hereto the Authority — a government instrumentality and public corporation whose prerogatives include the regulation of pilotage in Puerto Rico's ports and harbors, id. §§ 333, 2401 — functioned as the licensing agency. In that capacity, the Authority licensed Camacho to serve as a harbor pilot.

On June 15, 2000, the Authority reversed course and summarily revoked the license. At that time, Camacho had celebrated his seventieth birthday, and the Authority acted pursuant to a statute providing that "[e]very license shall automatically expire on the date in which the pilot reaches seventy (70) years of age." Id. § 2406.

Camacho did not take the revocation lightly. After exhausting his administrative remedies, he sued the Authority in the United States District Court for the District of Puerto Rico. In pertinent part, his complaint alleged that the Authority had discriminated against him on account of his age in violation of the ADEA, specifically, 29 U.S.C. § 623(a)(1).¹

Section 623(a) of the ADEA imposes liability only on employers. See Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 67-68, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000). Seizing upon this limitation, the Authority moved for summary judgment on the ground that it was not Camacho's "employer." Camacho objected and the parties consented to proceed before a magistrate judge. See 28 U.S.C. § 636(c).

The magistrate judge rejected the Authority's position. Examining the relationship between the Authority and the harbor pilots through the prism of common law agency, he concluded that although "harbor pilots are not employees in the typical sense," the statutory scheme gives the Authority such "wide latitude to control the daily activities of harbor pilots" as to make the Authority the pilots' employer for ADEA purposes. Camacho I, 254 F.Supp.2d at 226; see also id. at 227-28.

Moving to the next issue, the magistrate judge declared that compulsory retirement of harbor pilots at age seventy would violate the ADEA unless age was shown to be a bona fide occupational qualification within the ambit of 29 U.S.C. § 623(f)(1). Id. at 229-30. Since that entailed a disputed question of material fact, he denied the Authority's motion for summary judgment on the ADEA claim. Id. at 230.

Dismayed with the denial of its motion and with the reasoning upon which that denial rested, the Authority asked the magistrate judge to certify various aspects of his ruling for immediate appeal. See 28 U.S.C. § 1292(b) (allowing, subject to certain conditions, interlocutory review of an order that "involves a controlling question of law as to which there is substantial ground for difference of opinion" if its resolution "may materially advance the ultimate termination of the litigation"). Section 1292(b) is meant to be used sparingly, and appeals under it are, accordingly, hen's-teeth rare. They require, among other things, leave of both the trial and appellate courts. See id.; see generally In re San Juan Dupont Plaza Hotel Fire Litig., 859 F.2d 1007, 1010 & n. 1 (1st Cir.1988); Heddendorf v. Goldfine (In re Heddendorf), 263 F.2d 887, 888-90 (1st Cir.1959).

In this case, the magistrate judge granted the request, noting that the Authority's status qua ADEA employer constitutes an open question and that the litigation would benefit from prompt resolution of that question. Camacho v. P.R. Ports Auth., 267 F.Supp.2d 174, 178 (D.P.R.2003). Sharing this appraisal, we agreed to consider whether the harbor pilots could be considered employees of the Authority for purposes of the ADEA.

II. DISCUSSION

We review a district court's rulings on summary judgment de novo. Plumley v. S. Container, Inc., 303 F.3d 364, 369 (1st Cir.2002); Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990). The facts that bear upon the certified question are, for all intents and purposes, undisputed. Thus, we may decide the employment status issue as a matter of law to the extent that the undisputed facts point so favorably in one direction that a factfinder could not reasonably reach the opposite conclusion. Alberty-Velez v. Corporacion de P.R. Para La Difusion Publica, 361 F.3d 1, 7 (1st Cir.2004). This is such a case.

A.

The relevant section of the ADEA makes it unlawful "for an employer... to discharge any individual ... because of such individual's age." 29 U.S.C. § 623(a)(1). The statute defines an employer as a "person engaged in an industry affecting commerce who has twenty or more employees." Id. § 630(b). For this purpose, the word "person" includes state agencies and instrumentalities.² Id. Absent a covered employment relationship, ADEA liability does not attach. See generally Speen v. Crown Clothing Corp., 102 F.3d 625, 629 (1st Cir.1996) (explaining that the prophylaxis of the ADEA does not reach independent contractors); Frankel v. Bally, Inc., 987 F.2d 86, 89 (2d Cir.1993) (same).

The Authority does not dispute that it could be considered an ADEA employer of those persons it hires and fires. It insists, however, that it is not an employer of harbor pilots. Accordingly, the question in this case reduces to whether harbor pilots, who lack a conventional employment relationship with the Authority, properly may be regarded as the Authority's employees for ADEA purposes. The statutory definition of an employee as "an individual employed by any employer," id. § 630(f), is circular and, thus, affords us scant guidance in our attempt to answer this question.

Given the opacity of the statutory text, courts have been forced to develop their own approaches to determining whether an entity is acting as an employer within the purview of the ADEA. Some courts attempt to answer that question by a hybrid test that marries traditional common law agency principles with the economic realities of a particular relationship. See, e.g., Mangram v. Gen. Motors Corp., 108 F.3d 61, 62-63 (4th Cir.1997); Oestman v. Nat'l Farmers Union Ins. Co., 958 F.2d 303, 305 (10th Cir.1992); Fields v. Hallsville Indep. Sch. Dist., 906 F.2d 1017, 1019 (5th Cir.1990) (per curiam). This court has rejected that approach and chosen instead to apply common law agency principles simpliciter in determining when an employment relationship exists for purposes of the ADEA. See Speen, 102 F.3d at 631; cf. Alberty-Velez, 361 F.3d at 6 (adopting the same test to determine whether an employment relationship exists for purposes of Title VII). We are not alone; several other circuits have made the same choice. See, e.g., Shah v. Deaconess Hosp., 355 F.3d 496, 499 (6th Cir.2004); Barnhart v. N.Y. Life Ins. Co., 141 F.3d 1310, 1313 (9th Cir.1998); Frankel, 987 F.2d at 90. We adhere to that test here.

The common law agency test is familiar. The Supreme Court restated the baseline formulation in Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992). There, the Court posited that, "[i]n determining whether a hired party is an employee under the general common law of agency, [an inquiring court should] consider the hiring party's right to control the manner and means by which the product is accomplished." Id. at 323. The Court then elaborated:

Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.

Id. at 323-24, 112 S.Ct. 1344 (quoting Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 751-52, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989)). No one factor is outcome determinative; rather, all the incidents of a given relationship must be weighed in order to reach a conclusion as to whether that relationship fits within the confines of the employer-employee taxonomy. Id. at 324, 112 S.Ct. 1344.

Of course, this case presents an unusual twist. As a general matter, liability under section 623(a) depends upon the existence of a direct employer-employee relationship, and none exists...