Rivas v. Federacion de Asociaciones Pecuarias de Puerto Rico

• Decision Date: 07 November 1990
• Docket Number: No. 90-1721,90-1721
• Parties: 55 Fair Empl.Prac.Cas. 861, 56 Empl. Prac. Dec. P 40,659 Juan Muller RIVAS, et al., Plaintiffs, Appellants, v. FEDERACION de ASOCIACIONES PECUARIAS de PUERTO RICO, d/b/a Federacion Pecuarias de Mayaguez, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 814

929 F.2d 814

55 Fair Empl.Prac.Cas. 861,

56 Empl. Prac. Dec. P 40,659

Juan Muller RIVAS, et al., Plaintiffs, Appellants, v. FEDERACION de ASOCIACIONES PECUARIAS de PUERTO RICO, d/b/a Federacion Pecuarias de Mayaguez, Defendant, Appellee.

No. 90-1721.

United States Court of Appeals First Circuit.

Heard Nov. 7, 1990.

Decided March 29, 1991.

Federico Lora Lopez with whom Jose E. Carreras Rovira, was on brief, for plaintiffs, appellants.

Enrique J. Mendoza Mendez with whom Roy J. Cohen and Law Offices of Roy J. Cohen, were on brief, for defendant, appellee.

Before CAMPBELL, TORRUELLA and CYR, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

Plaintiffs-appellants appeal from the judgment of the district court dismissing this age discrimination case. The district court granted defendant-appellee's "Motion for Summary Judgment" and denied plaintiffs-appellants' "Motion to Alter or Amend Judgment." Plaintiffs-appellants are stevedores and hatchtenders as well as foremen, all of whom are over forty years of age, who worked loading and unloading ships in the Port of Mayaguez, Puerto Rico. They filed this lawsuit against Federacion de Asociaciones Pecuarias de Puerto Rico ("FAP"), asserting claims for dismissal and refusal to hire because of age under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. Sec. 623(a), ¹ and also asserted a pendent claim under Puerto Rico's age discrimination law, Puerto Rico Law No. 100 of June 30, 1959, as amended, 29 L.P.R.A. Sec. 146 et seq. ("Law 100").

FAP, which operates grain mills for farm animal feed manufacturing in the Port of Mayaguez, moved for summary judgment on the grounds, inter alia, that plaintiffs failed to state a cause of action because FAP was not plaintiffs' employer. Rather, FAP maintains that Antilles Shipping Company ("Antilles"), with whom FAP contracted to provide unloading services, was plaintiffs' exclusive employer. FAP asserts that it never employed stevedores, hatchtenders or foremen prior to April 1988, relying until that time on services provided by Antilles. FAP acknowledges that, after concluding it could conduct unloading operations in-house for a lesser price per unloaded ton, it terminated its contract with Antilles in April 1988 and hired and supervised its own stevedores and hatchtenders.

In its "Motion Presenting Additional Ground for Summary Judgment" filed below, FAP contended that plaintiffs were simply disinclined to seek employment with it in April 1988 at the wages then offered (wages which FAP specifically offered to plaintiffs in the Equal Employment Opportunity Commission ("EEOC") administrative procedures). FAP's refusal to employ them at the higher wages provided in their collective bargaining agreement with Antilles did not, therefore, constitute age discrimination.

Plaintiffs filed no formal response in the district court to FAP's "Motion Presenting Additional Ground for Summary Judgment." ² On appeal, however, plaintiffs argue that a cost justification for FAP's treatment of them is not a legitimate defense to their age discrimination claim. Plaintiffs also insist that FAP had exercised such control over them prior to April 1988 as to have been their joint employer.

After receiving depositions, an affidavit and related materials, and after conducting a hearing, the district court concluded, in essence, that plaintiffs had not shown a genuine issue of material fact concerning whether defendant was plaintiffs' joint employer. Rather, as a matter of law, the court ruled that defendant was not a joint employer. In support of this conclusion, the district court stated:

[T]he record has established that plaintiffs were employed by Antilles; they were paid by Antilles; their work assignment was controlled by Antilles; and their personnel decisions involved only Antilles for the [Collective Bargaining Agreement] was between Antilles and plaintiffs. The foremen who supervised the employees were hired by Antilles. Therefore, plaintiffs have failed to show that FAP exercised a significant control over the work of plaintiffs, who are employees of Antilles, or that FAP shared or co-determined with Antilles those matters governing the essential terms and conditions of employment.

The district court thereupon dismissed plaintiffs' complaint. Plaintiffs moved, thereafter, to alter or amend judgment on the grounds that the district court's resolution of the "joint employer" issue did not justify its dismissal of their alternate claim of a discriminatory refusal to hire. The district court denied the motion, stating: "Due to our findings and conclusion [that defendant was not plaintiffs' joint employer], the present case cannot continue on the issue of adverse impact on defendant's hiring practice...."

On appeal, plaintiffs make two arguments: (1) the district court erred in finding that no genuine issue of material fact exists as to whether FAP is the plaintiffs' employer; and (2) the district court erred in dismissing, based on a determination that FAP is not plaintiffs' employer, plaintiffs' hiring discrimination claim. We agree with the district court that, on the showing made, FAP was not plaintiffs' joint employer. Additionally, plaintiffs made no showing that FAP discriminated against them in hiring, whether on the basis of age or any other factor. We, therefore, affirm.

BACKGROUND

Antilles is a ships' agent in Puerto Rico which is owned and operated independently from FAP. Antilles provides services, including loading and unloading services, in the Port of Mayaguez, for as many as thirty or forty principals. Antilles also solicits incoming and outgoing freight for vessels for as many as three hundred clients. Antilles had a longstanding relationship to provide services to FAP since the inception of FAP's grain mill in the Port of Mayaguez. Antilles and FAP entered into a letter agreement on July 11, 1972 ³ whereby Antilles would make arrangements for port clearance and berthage of vessels at the FAP pier and would "furnish and supervise" both line handlers to stabilize the vessels in front of FAP's pier and laborers to unload the vessels. The Antilles work gangs, including deck hands, those working in the cargo holds, and foremen, worked in conjunction with FAP's directly-employed equipment operators to unload the ships.

Under the agreement between Antilles and FAP, FAP would advise Antilles twenty-four hours in advance of the time a gang should report for work. Antilles would then make arrangements to engage the gangs of laborers that FAP had ordered, and would pay the laborers at the end of the work shift. FAP paid Antilles on a "cost plus" basis. ⁴ Antilles agreed to carry worker's compensation insurance, as well as specified amounts of public liability, employer's and property damage insurance. These costs, together with laborers' wages and other approved miscellaneous out-of-pocket expenses would be reimbursed by FAP, ⁵ and Antilles would be paid an additional fee of twenty to thirty cents per short ton of cargo unloaded. ⁶

The plaintiffs, who constituted the Antilles gangs working at FAP, are members of the Union de Trabajadores de Muelles ("UTM"), Locals 1902 and 1904, and the Asociacion Insular de Capataces de Muelles, which groups foremen (or "capataces") and stevedores, respectively. ⁷ Plaintiff Juan Muller Rivas estimated at his deposition that only eighty percent of the union members were over forty years of age, and there is no evidence that FAP treated the older union members any differently from the younger members. Throughout this period, UTM entered into three-year collective bargaining agreements with the Association of Steamship Agencies ("Association"), of which Antilles is a member. The Association is an umbrella organization composed of representatives of companies which have an interest in the operation of all of the ports in Puerto Rico, including ships' agents, refineries and cruise ships. On July 10, 1987 the Association and UTM amended the collective bargaining agreement, which applied to all bulk cargo clients, to explicitly provide that FAP, among others, was bound by the agreement's work conditions provisions, including wages and number of workers to be assigned to each gang. Antilles' procedures for ordering the work gangs to work on FAP vessels were governed by the collective bargaining agreement. ⁸

Antilles provided unloading services to FAP until April 1988. At that time, FAP discontinued its relationship with Antilles because it found that it could arrange for its own unloading at lower cost. According to Fyffe, if FAP, or any other Antilles client, wished to pay less than the rate agreed in the collective bargaining agreement, Antilles had no choice but to refuse to serve that client. According to the FAP Comptroller, Jose Manuel Del Valle Bras, since the termination of its relationship with Antilles, FAP uses approximately nine temporarily-employed persons per day for unloading vessels among a total pool which, according to the lists FAP provided to plaintiffs, numbered 49 in 1988 and 58 in 1989. ⁹

Beginning on or about April 1988, FAP no longer allowed the union gangs from Antilles, of which plaintiffs were a part, to enter the FAP facility. According to plaintiff Juan Muller Rivas, security guards deprived plaintiffs of access to FAP's facility after termination of the Antilles arrangement. Plaintiff Juan Muller Rivas, at his deposition, said that FAP simply stopped having plaintiffs called to work, and conceded that he did not ask for a job at FAP, explaining only that security guards prevented entry. There is no evidence that plaintiffs ever inquired about positions as nonunionized laborers, in person or by mail or telephone. ¹⁰ FAP maintains that no plaintiffs applied for new positions as of April 1988 and plaintiffs specify no occasion on which any of them attempted to do so. Further, according to plaintiff Muller Rivas, the Starkist, Bumble Bee and...