Opinion
CIVIL ACTION No. 02-3366 SECTION: 1/2
May 31, 2004
ORDER AND REASONS
This matter is before the Court pursuant to a motion, filed on behalf of defendant, New Orleans Baton Rouge Steamship Pilots Association ("NOBRA"), to dismiss or, alternatively, for summary judgment.
Rec. Doc. No. 45.
Plaintiff, born October 6, 1951, filed this action alleging that NOBRA unlawfully discriminated against him on the basis of his age by failing to elect him into the river pilot apprenticeship program, in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq.("ADEA"). The NOBRA charter prohibits anyone aged forty-five or older from becoming a member of NOBRA. NOBRA moves for summary judgment asserting that NOBRA is not an "employer" and, therefore, is not subject to liability pursuant to the ADEA.
See Rec. Doc. No. 47, Ex. 8, at 12.
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Once the moving party carries its burden pursuant to Rule 56(c), the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). That burden is not satisfied by creating merely some metaphysical doubt as to the material facts, by conclusory allegations, unsubstantiated assertions or by only a scintilla of evidence. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations omitted).
The ADEA prohibits an "employer," "employment agency," or "labor organization" from discriminating against individuals on the basis of their age. See 29 U.S.C. § 623(a)-(c). With respect to"employers," the Act provides:
Although plaintiff cites to 29 U.S.C. § 623(c) which prohibits age discrimination by "labor organizations," plaintiff neither alleged in his complaint that NOBRA is a labor organization nor does he advance any such argument in opposition to the instant motion. Additionally, plaintiff does not argue that NOBRA is an "employment agency" within the meaning of the ADEA. Accordingly, this Court addresses only the threshold issue of whether NOBRA is an "employer."
It shall be unlawful for an employer —
(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age;
(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age; or
(3) to reduce the wage rate of any employee in order to comply with this chapter.29 U.S.C.A. § 623(a). 29 C.F.R. § 1625.21 provides in pertinent part:
All apprenticeship programs, including those apprenticeship programs created or maintained by joint labor-management organizations, are subject to the prohibitions of sec. 4 of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 623.
The Fifth Circuit has set forth a two-step process for determining whether a defendant is an "employer" pursuant to the ADEA:
First, the defendant must fall within the statutory definition. Second, there must be an employment relationship between the plaintiff and the defendant. See generally, Fields v. Hallsville Indep. Sch. Dist., 906 F.2d 1017, 1019 (5th Cir. 1990), cert. denied, 498 U.S. 1026, 111 S.Ct. 676, 112 L.Ed.2d 668 (1991).Deal v. State Farm County Mut. Ins. Co. of Texas, 5 F.3d 117, 118 (5th Cir. 1993). The Act defines an "employer" as "a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year." 29 U.S.C. § 630(b).
Plaintiff argues that the river pilots are "employees" of NOBRA. It is undisputed that NOBRA has a membership of more than twenty pilots. Additionally, the defendant's summary judgment evidence that NOBRA has less than twenty employees absent the inclusion of the river pilots is unrebutted. Therefore, plaintiffs claim turns on whether an employment relationship exists between NOBRA and the river pilots.
Plaintiff has cited no case in which river pilots were held to be "employees"
The issue of whether a statutorily authorized Louisiana river pilot association is an "employer" within the meaning of the ADEA was addressed in Ehret v. State of Louisiana, 862 F. Supp. 1546(E.D.La. 1992). In that case, plaintiff sued the Crescent River Port Pilot's Association (the "Association") and the Board of River Port Pilot Commissioners for the Port of Orleans alleging that the Association's rule limiting entry into the Association's apprenticeship program to individuals who had not passed their fortieth birthday violated the ADEA. Id. at 1548. Applying the Fifth Circuit's hybrid "economic realities/common law control" test for determining whether an employment relationship exists, the court held that the Crescent River Port Pilot's Association was not an "employer" of the river pilots within the meaning of the ADEA. Ehret, 862 F. Supp. at 1549-51. The Court concluded:
The "economic realities/common law control" test is set forth in Fields v Hallsville Indep. Sch. Dist., 906 F.2d 1017 (5th Cir. 1990). Pursuant to that test, "the right to control an employee's conduct is the most important factor.'" Id at 1019 (citation omitted). "[I]f an employer has the right to control and direct the work of an individual, not only as to the result to be achieved, but also as to the details by which that result is achieved, an employer/employee relationship is likely to exist." Id. (internal quotation and citation omitted). Other relevant factors include:
(1) the kind of occupation, with reference to whether the work usually is done under the direction of a supervisor or is done by a specialist without supervision; (2) the skill required in the particular occupation; (3) whether the "employer" or the individual in question furnishes the equipment used and the place of work; (4) the length of time during which the individual has worked; (5) the method of payment, whether by time or by the job; (6) the manner in which the work relationship is terminated; i e., by one or both parties, with or without notice and explanation; (7) whether annual leave is afforded; (8) whether the work is an integral part of the business of the "employer"; (9) whether the worker accumulates retirement benefits; (10) whether the "employer" pays social security taxes; and (11) the intention of the parties.
Fields, 906 F.2d at 1020n.4.
In Ehret, the court also held that the Board of Commissioner's was not an "employer," nor were the Association and the Board "joint employers." Ehret, 862 F. Supp. at 1551-52.
The ADEA does not prevent all age discrimination against those who work for a living. Whatever the merits of the age restriction included in the river port pilot apprenticeship program, the Court finds that the Board and the Association are not employers covered by the ADEAId. at 1552; see also Camacho v. Puerto Rico Ports Authority, ___ F.3d, ___, 2004 WL 1143719, at *4-6 (1st Cir. May 21, 2004) (applying a common law agency test and holding that the Puerto Rico Ports Authority is not a de facto employer of harbor pilots for purposes of liability pursuant to the ADEA notwithstanding some control over the harbor pilot's day-to-day activities) (citing Ehret).
Plaintiff argues that the analysis in Ehret is no longer sound because 29 C.F.R. § 1625.21, enacted subsequent to Ehret, expands the coverage of the ADEA to apprenticeship programs. In the present case, the EEOC, relying solely upon 29 C.F.R. § 1625.21, determined that the rules of NOBRA and the Board of Examiners for New Orleans and Baton Rouge Steamship Pilots, which prohibit any person forty-five or more years of age from becoming a river pilot, discriminate on the basis of age and constitute a class-wide violation of the ADEA. Quoting the EEOC Compliance Manual, the EEOC stated, "[d]iscrimination against a participant in an apprenticeship or training program that is required prior to employment, or that commonly leads to regular employment, also constitutes discrimination against an applicant for employment, and is prohibited because it has the effect of discriminatorily denying someone an employment opportunity."
See Rec. Doc. No. 47, Ex. 7., EEOC determination letter, at 2.
Id.
Although the Court agrees with the EEOC that 29 C.F.R. § 1625.21 expands the coverage of the ADEA to applicants for apprenticeship programs, the regulation does not expand the classes of persons liable pursuant to the ADEA as set forth in 29 U.S.C. § 623. To the contrary, the regulation explicitly provides that "[a]ll apprenticeship programs . . . are subject to the prohibitions of sec. 4 of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 623" (emphasis supplied). In turn, 29 U.S.C. § 623 prohibits an employer, employment agency, or labor organization from discriminating based upon age. See § 623(a)-(c). Finding that plaintiff was an applicant to an apprenticeship program, the EEOC failed to address whether, as a threshold issue, NOBRA was an "employer" subject to liability pursuant to the Act. Plaintiff has offered no support for the proposition that the regulation expands the definitions of persons and entities Congress identified as potentially liable pursuant to the ADEA. The Court finds that Ehret's holding that a Louisiana pilot association, organized pursuant to the Louisiana statutory scheme governing compulsory river pilots, is not an "employer" of river pilots is unaffected by the enactment of 29 C.F.R. § 1625.21.
Albeit in other contexts, courts have stated that a river pilot association is not an employer and that river pilots are independent contractors. For example, in McKeithen v. S.S. Frosta, 441 F. Supp. 1213, the court held that NOBRA was not the employer of river pilots for purposes of assessing its tort duty to third persons. Id. at 1216. The Court noted:
The pilots association is a voluntarily formed non-profit corporation. The formation of the association is permitted by L.S.A.-R.S. 34:1047, which provides for self-regulation not in conflict with law or the rules and regulations of the Board of Commissioners. The association maintains a central office where it receives requests for pilotage. It maintains a roster of pilots available for duty and dispatches them to vessels on a rotating basis. It collects the pilots' fees, pays general overhead expenses from these receipts and remits the remaining receipts on a monthly basis to the individual member pilots according to an established formula based on the number of days each individual was available for piloting vessels. The association does not take out withholding tax or FICA on monies distributed to the pilot members because they are self-employed. The association files an annual federal income tax return on a corporate form (Form 1099), but does not pay taxes as an entity. [See Mobile Bar Pilots Assoc. v. C 1 R., 97 F.2d 695 (5th Cir. 1938)]. It does not accrue profits of its own from the pilots' work.Id at 1216 (E.D. La. 1977). Based on the above facts, which exist in the instant case, the court held that "[t]his association is not the employer of the pilots nor is it a partnership of pilots." Id; see also Blancq v. Hapag-Lloyd A.G., 968 F. Supp. 376, 381 n. 6 (E.D.La. 1997) (noting that a river pilot is "typically considered an independent contractor" and citing cases).
Upon consideration of the motion, the opposition, the law, and the summary judgment evidence submitted by the parties, the Court finds the reasoning set forth in Ehret is persuasive and applicable to this case. Further, the Court finds that plaintiffs summary judgment evidence is insufficient to raise a genuine issue of material fact with respect to whether NOBRA is an "employer" within the meaning of the ADEA. Accordingly, NOBRA cannot be held liable pursuant to the ADEA. Although the Court expresses grave doubts as to the wisdom or logic behind NOBRA's age restriction, this Court is bound by the specific statutory classes of persons and entities enumerated by Congress to which the ADEA applies.
NOBRA operates similarly to the Crescent River Port Pilots Association. See Id at 1550 n. 6 (noting the similarity). Plaintiff in the instant case has not brought a claim against the Board of Examiners for New Orleans and Baton Rouge Steamship Pilots in this litigation. Although plaintiff contends that NOBRA exercises influence with respect to who the Board certifies for election to the apprenticeship program, it is undisputed that the final decision with respect to who is certified to be included in the apprenticeship election lies with the Board.
Accordingly, for the above and foregoing reasons,
IT IS ORDERED that the motion of defendant, New Orleans Baton Rouge Steamship Pilots Association, for summary judgment is GRANTED and plaintiffs claim is hereby DISMISSED.