Petition for Writ of Certiorari — Coleman v. NEW ORLEANS & BATON ROUGE STEAMSHIP PILOTS'ASSN.

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Coleman filed an EEOC charge against Crescent and

the Board of Commissioners and a separate charge against

NOBRA based on age discrimination. The EEOC issued a

cause determination of age discrimination in Coleman’s

favor in both cases. Coleman filed a suit against Crescent

and the Board of Commissioners and a separate suit

against NOBRA based on age discrimination. Both cases

were set before the same trial judge. The trial court

dismissed both cases on summary judgment, finding that

the ADEA was inapplicable because Crescent and NOBRA

were not employers and that the Board of Commissioners

was not a joint employer. App. 22-41. The Fifth Circuit

affirmed the dismissal, App. 1.

REASONS FOR GRANTING THE WRIT

I. THE FIFTH CIRCUIT ERRED IN GRANTING

SUMMARY JUDGMENT AND DENYING COLE-

MAN’S MOTION FOR RECONSIDERATION BY

ERRONEOUSLY FINDING THAT THE ADEA

DOES NOT APPLY TO CRESCENT BECAUSE

IT IS NOT AN “EMPLOYER.”

The Fifth Circuit erred in finding that the ADEA’s

prohibition against age discrimination is inapplicable to

respondent, Crescent because it is not an “employer.” The

ADEA is clearly applicable to Crescent. The Age Dis-

crimination in Employment Act (ADEA) 29 U.S.C. § 623

provides that it “is unlawful for an employer to fail or

refuse to hire or to discharge an individual or otherwise

discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employ-

ment, because of such individual’s age .. . ”. Likewise “it

is unlawful for an empioyment agency to fail or refuse to

refer for employment, or otherwise discriminate against,

any individual because of such individual’s age, or to

classify or refer for employment any individual on the

basis of such individual’s age.” Id. Labor organizations,

such as unions, are prohibited from discriminating based

on age as well. The ADEA provides that it is unlawful for a

labor organization:

to exclude or to expel from its membership, or

otherwise to discriminate against, any individual

because of his age; (2) to limit, segregate, or clas-

sify its membership, or to classify or fail or refuse

to refer for employment any individual, in any

way which would deprive or tend to deprive any

individua! of employment opportunities, or would

limit such employment opportunities or other-

wise adversely affect his status as an employee

or as an applicant for employment, because of

such individual’s age; (3) to cause or attempt to

cause an employer to discriminate against an in-

dividual in violation of this section.”

29 U.S.C. § 623(c).

Additionally, 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 Section IV of the Age Discrimination

Employment Act of 1967, as amended, 29 U.S.C. § 623.” 29

C.F.R. § 1625.21. Here, the EEOC specifically-referred to

defendant’s violation of 29 C.F.R. § 1625.21 in finding that

cause exists to believe that plaintiff was discriminated

against because of his age.

The EEOC explained:

[T]he EEOC Compliance Manual provides in per-

tinent part that “a[n] applicant to, or a partici-

pant in, training or apprenticeship program is

protected against discrimination with respect to

admission to, or participation in, the training or

apprenticeship program, regardless of whether

the individual is an ‘employee.’ Discrimination

against a participant in an apprenticeship

or training program that is required prior

to employment, or that commonly leads to

regular employment, also constitutes dis-

crimination against an applicant for em-

ployment, and is prohibited because it has

the effect of discriminatorily denying someone an

employment opportunity. [emphasis added]

Coleman was denied admission into the apprentice-

ship program operated by Crescent and the Board of

Commissioners based on his age. The courts have allowed

plaintiffs in ‘similar-circumstances to proceed against

operators of apprenticeship programs for age discrimina-

tion. In EEOC v. Joint Apprenticeship Committee, 80 FEP

Cases 1519, (2nd Cir. 1999), the plaintiff was denied

entrance into a four-year electrician apprentice program

because the program required apprentices to be between

the ages of 19 and 22. The program was operated by the

Joint Apprenticeship Committee, a committee of the Joint

Industry Board ofthe Electrical Industry. Successful

completion of the apprenticeship program entitled an

individual to membership in the International Brother-

hood of Electrical Workers, Local 3, a union. The Joint

Apprenticeship Committee was not an employer, yet the

ADEA was held to bar discrimination by the Joint Appren-

ticeship Committee based on age.

The Fifth Circuit here refused to follow Joint Appren-

ticeship Committee. Crescent and the Board of Commis-

sioners have a relationship similar to the relationship of

the local union and the JAC in the Joint Apprenticeship

Committee case. In Joint Apprenticeship Committee, the

only way for an individual to become an electrician was to

go through the local union and the Joint Apprenticeship

Committee. Here, the only way to work as a river pilot on

Crescent, Inc.’s portion of the river is to go through the

Crescent and the Board of Commissioners’ apprenticeship

program. Thus, Crescent can be sued under the ADEA just

_as the Joint Apprenticeship Committee was properly sued

under the ADEA.

_ In the present case, the trial court erroneously found

that Crescent is not an employer based on Clackamas

Gastroenterology Associates, P.-C. v. Wells, 538 U.S. 440

(2003). However, the Fifth Circuit focused incorrectly on

the Clackamas standard for determining whether an

officer or a shareholder is an employee and should have

applied the common law test adopted and summarized by

this Court in Nationwide Mutual Insurance Company, v.

Darden, 503 U.S. 316 (1992). The Darden Court held:

In determining whether a hired party is an em-

ployee under the general common law of agency,

we consider the hiring party’s right to control the

manner and means by which the product is ac-

complished. 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 be-

tween the parties; whether the hiring party has

the right to assign additional projects to the

hired party; the extent of the hired party’s discre-

tion over when and how long to work; the method

of payment; the hiring 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 a business; the provision of

employee benefits; and the tax treatment of the

hired party. Jd., quoting Community for Creative

Non-Violence v. Reid, 490 U.S. 730, 751-752

(1989).

A consideration of the Darden factors clearly shows

that Crescent is an employer under the ADEA. Crescent

controls the hiring/election process as was recognized by

one of the Fifth Circuit panel members during oral argu-

ment. A pilot cannot work on the Crescent stretch of the

river unless he is a Crescent pilot. Crescent also has

significant control over the pilot’s work. Crescent has the

right to discipline and ultimately expel, i.e., terminate

members. If Crescent expels a pilot from the association,

he cannot work as a pilot on the Crescent stretch of the

river. Crescent’s work rules are forty-seven pages long and

contain scores of regulations regarding, scheduling shifts,

pilot conduct, pilot pay, sick leave, discipline, fines and

hundreds of details relating to how pilots do their jobs.

The very first rule states that Crescent’s

Board of Directors shall have supervision over

the conduct of the members of the Association.

Whenever a member shall be found guilty of con-

duct unbecoming a pilot or shall do any act or

thing which tends to bring discredit upon the As-

sociation, the Crescent Board of Directors shall

have the power to try such offending pilot. ...

The Crescent Board of Directors is empowered to investi-

gate refusals of service by pilots. Section 9 of Rule 1

imposes a fine of $1000 a day for any pilot who unilater-

ally resigns, and thereafter refuses duty. Section 21 of

Rule 1 requires pilots to dress neatly, and requires that

“hair should be neat and not below the collar. ... Shoes

and socks must be worn and should be clean, ro thongs or

sandals.” The rules include more than 20 pages of regula-

tions regarding scheduling, boarding ships, exiting ships,

rest periods, shift rotation, etc. Rule 17 creates a “Captain

of the Station”, who “shall be responsible for the discipline

and conduct of the pilots while on the station.” If a pilot

desires to go off duty, he is required to “notify manage-

ment at least six hours in advance ... ” and can be re-

called to duty at “any time the Board [of Directors of

Crescent] deems it necessary.” Clearly, Crescent exercises

significant control over the pilots.

Additionally, the majority of the other common law

factors support the conclusion that Crescent is an em-

ployer. The skill required to be a pilot does not require a

finding that pilots are independent contractors. A river

pilot’s training involves riding on the river with another

pilot and a one-year apprenticeship program that relies

heavily on on-the-job type training. While it is true that no

one supervises the pilots when they are at the helm, the

occupation of piloting a ship is often performed by employ-

ees. Coleman himself is presently employed as an em-

ployee as a captain of a vessel. However, even if piloting is

considered a skilled occupation, this fact does not contrib-

ute much to the analysis of whether the pilots are employ-

ees or independent contractors. Airline pilots, engineers,

trial attorneys, and even doctors work as employees.

As to the source of instrumentalities and tools used,

Crescent dictates which ship plaintiff is assigned to work.

Also Crescent provides the dispatcher office used to

dispatch the pilots to their assignments and the boats

which transport the pilots to the ships. The location of the

work is clearly dictated by Crescent as it decides which

boats the pilots will pilot.

The factor involving the duration of the relationship

also points to employee status. Crescent pilots can only

work for Crescent. As to whether Crescent can assign

additional projects and can determine when and how long

a pilot works, Crescent has control over the pilots’ entire

work schedule, can assign additional assignments and can

determine when and how long the pilots work.

The factors involving whether the work is a regular

part of the business of Crescent and whether Crescent is a

business also points to employer/employee status. Supply-

ing pilots to vessels is Crescent’s only business. Further

Crescent operates as a corporation. As to how the pilots

are paid, the pilots are neither paid by the job or by time,

thus this factor is inapplicable. However, Crescent does

provide employee-type benefits, such as health insurance,

vacation, sick leave and retirement benefits.

The last factor mentioned in Darden is the tax treat-

ment of the hired party. Crescent issues a form 1099 to its

pilots and does not do employee withholding. However, the

fact that an employer does not perform withholding cannot

insulate an employer from the anti-discrimination provi-

sions of the ADEA and Title VII. -

The most significant Darden factors mitigate in favor

of finding that Crescent is the employer of the pilots. This

is especially true where Crescent selects the pilots, disci-

plines the pilots and can refer them to the Board of Crescent

Commissioners for decommissioning, thereby preventing a

pilot from ever working as a commissioned pilot on

the Crescent stretch of the river. Crescent should not be

allowed to discriminate based on age by cloaking itself with

the appearance of being a non-profit association of inde-

pendent contractors, especially given the fact that Cres-

cent enjoys state-created monopoly status. Older workers,

African-Americans and women cannot work as a river

pilot on Crescent’s stretch of the River unless they work

for Crescent. If the Fifth Circuit’s opinion is affirmed,

there is no federally guaranteed right to equal opportunity

for river pilots in Louisiana.

The Fifth Circuit and the trial court were erroneously

impressed by the fact that once a pilot takes the helm of a

vessel, neither Crescent, Inc. nor the Board, can exert

control over the pilot. Ehret v. State of Louisiana, 862

F. Supp. 1546, 1550 citing, McKeithen v. The SS FROSFA,

441 F.Supp. 1213, 1220 (E.D. La. 1977). The courts’

reliance on this factor is misplaced. The McKeithen case

relied on Guy v. Donald, 27 S.Ct. 62, 64-65 (1906),

wherein this Court refused to hold a Virginia pilot associa-

tion vicariously liable for the negligence of a pilot in a

shipping accident. The Court refused to find vicarious

liability because it found that, under a Virginia statute,

the pilot was the agent of the vessel’s owner. Additionally,

the Court relied on the fact that under general maritime

law, the captain was the master of the ship and the asso-

ciation could not control the pilot once he was at the helm,

Guy, 27 S.Ct. at 64-65. However, this principle was

adopted so that a captain can make quick judgments in

order to ensure the safety of the ship and has no relevance

in determining whether Crescent is an employer in the

context of discrimination law.

Crescent seeks to escape the United States’ discrimi-

nation laws by claiming that the pilots are independent

contractors hired by the shipping companies. However, the

shipping companies contract with and pay Crescent for

pilots. Crescent assigns the pilots to the various ships

without the shipping companies even knowing which pilot

they are being assigned. How many independent contrac-

tors belong te an “association” that schedules their work,

determines how much they are paid and have no freedom

to work with another group? Clearly, the pilots are em-

ployees of Crescent, Inc., a state-created monopoly that

employs pilots.

Il. THE FIFTH CIRCUIT ERRED IN GRANTING

SUMMARY JUDGMENT AND DENYING COLE-

MAN’S MOTION FOR RECONSIDERATION BY

ERRONEOUSLY FINDING THAT THE BOARD

OF COMMISSIONERS COULD NOT BE LIABLE

AS A“JOINT EMPLOYER.”

The Fifth Circuit held that the Board of Commission-

ers could not be held liable as a joint employer because it

held that Crescent itself is not an employer. Once this

Court reverses the Fifth Circuit’s determination of Cres-

cent’s status, the case should also be remanded to deter-

mine whether the Board of Commissioners is a joint

employer.

Ill. THE FIFTH CIRCUIT ERRED IN GRANTING .

SUMMARY JUDGMENT AND DENYING COLE-

MAN’S MOTION FOR RECONSIDERATION BY

ERRONEOUSLY FINDING THAT THE ADEA

DOES NOT APPLY TO NOBRA BECAUSE IT

IS NOT AN “EMPLOYER.”

The Fifth Circuit’s opinion as to NOBRA is incorrect

for the same reasons argued above relating to Crescent.

Like Crescent, NOBRA has work rules, albeit shorter,

which include fines and disciplinary rules similar to

Crescent’s work rules. NOBRA “elects” pilots into the

apprenticeship program which leads to their ultimate

commissioning and hiring, provides for sick leave, retire-

ment benefits and has the power to recommend a NOBRA

pilot for decommissioning. In short, NOBRA is an em-

ployer, just as Crescent is.

CONCLUSION

This Court should grant certiorari and remand for

trial on the merits. Otherwise, Coleman and others will be

deprived of equal opportunity on the Mississippi River.

Respectfully submitted,

WILLIAM M. McGory,

LSBA #14205

BARBARA RYNIKER EVANS & ASSOC.

650 Poydras Street, Suite 2045

New Orleans, Louisiana 70130

(504) 528-9279 — FAX: (504) 528-9219

App. 1

437 F.3d 471

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-30666

TERRY C. COLEMAN,

Plaintiff-Appellant,

versus

NEW ORLEANS AND BATON ROUGE

STEAMSHIP PILOTS’ ASSOCIATION,

Defendant-Appellee.

No. 04-30700

TERRY C. COLEMAN,

Plaintiff-Appellant,

versus

CRESCENT RIVER PORT -

PILOTS ASSOCIATION, INC.,

Defendant-Appellee.

TERRY C. COLEMAN, 2

Plaintiff-Appellant,

versus

BOARD OF RIVER PORT

PILOTS COMMISSIONERS,

Defendant-Appellee.

App. 2

‘ Appeals from the United States District Court

for the Eastern District of Louisiana

(Filed Jan. 24, 2006)

Before JONES, Chief Judge, JOLLY and DeMOSS, Circuit

Judges.

E. GRADY JOLLY, Circuit Judge:

In this age discrimination case, the question is

whether the Mississippi River pilot associations are

“employers” of the member pilots for the purposes of the

Age Discrimination in Employment Act (“ADEA”), 29

U.S.C. § 621, et seg. The question is difficult and yields no

straightforward answer. The defendant associations are

long-standing, peculiarly conducted institutions recog-

nized by statute, owned and governed by their member

pilots, and serving as a sort of clearinghouse and dispatch-

ing service for the river pilots. There is no doubt that if the

plaintiff suffered age discrimination, it was administered

by the hands of the defendant associations because of their

age-restrictive policies. Yet, there is an absence of any

traditional employer relationship, traditional independent-

contractor relationship, hiring-hall relationship, or em-

ployment-agency relationship between the associations

and the pilots.

Terry Coleman (“Coleman”), born October 1, 1951,

brought suit against the New Orleans & Baton Rouge

Steamship Pilots Association (“NOBRA”) and the Crescent

River Port Pilot’s Association (“Crescent”), as well as the

Board of River Port Pilot Commissioners (the “Crescent

Board”), alleging that these entities unlawfully discrimi-

nated against him on the basis of his age in vidlation of

the ADEA. They did so, he claims, by refusing to elect him

App. 3

into their respective pilot apprenticeship programs be-

cause he was too old under their membership qualifica-

tions. The District Court granted summary judgment in

these separately filed actions to NOBRA, Crescent, and

the Crescent Board, holding that these entities are not

“employers” within the meaning of the ADEA and there-

fore cannot be held liable under the ADEA. Because both

cases present similar legal issues, we consider them

together in this opinion.

We hold that NOBRA, Crescent, and the Crescent

Board are not “employers” of river pilots within the mean-

ing of the ADEA. These entities are therefore not subject

to the ADEA’s prohibitions on age discrimination in

employment. Accordingly, we AFFIRM the District Court’s

grants of summary judgment to NOBRA, Crescent, and

the Crescent Board.

_ In our effort to determine whether any of the defen-

dants meet the definition of “employer” under the ADEA,

we must first understand Louisiana’s body of rules and

regulations governing the licensing of Mississippi River

pilots and the relationship among pilots, boards of exam-

iners, and pilots’ associations in the eperation of the pilot

apprenticeship programs. Only then can we fully under-

stand the organizational structure of the defendant pilots’

associations and its bearing on the question of liability

under the ADEA. |

Louisiana state law requires that local pilots guide

foreign ships along Louisiana waterways, including the

App. 4

Mississippi River. The Louisiana portion of the Mississippi

River is divided into three zones. See generally Hendrix v.

Louisiana Public Service Commission, 263 So.2d 343, 345

(1972). “Bar pilots” or “associated branch pilots” guide

vessels in and out of the entrance of the Mississippi River

between Pilottown and the Gulf of Mexico.’ La. REV. STar.

§ 34:941, et seg. “River port pilots” guide vessels between

Pilottown and New Orleans. LA. REV. STAT. § 34:991, et

seq. “New Orleans and Baton Rouge Steamship Pilots”

guide seagoing vessels from the port of New Orleans to the

port of Baton Rouge and intermediate ports. LA. REv. STAT.

§ 34:1041, et seg. An individual who wishes to serve as a

pilot in any of these zones must receive a commission from

the Governor of Louisiana entitling l.im to work as a pilot

on a particular stretch of the river. Receiving a commission

is a multi-step process.

Regulation of the process of applying to be a pilot is

mainly the responsibility of the state regulatory boards

created for this specific purpose. The Board of River Port

Pilot Commissioners (“Crescent Board”) is authorized by

statute to “hold examinations under such rules and regu-

lations, and with such requirements as they shall have

provided,” to certify to the Governor that applicants are

qualified to be river port pilots. LA. REv. Start. § 34:991,

993. The Board of Examiners for the New Orleans and

Baton Rouge Steamship Pilots (“NOBRA Board”) is simi-

larly authorized to certify qualified applicants to the

Governor to be New Orleans and Baton Rouge Steamship

Pilots. LA. REv. Stat. § 34:1042, 1045. Each of these

boards is comprised of three citizens holding commissions

’ Bar pilots and their association are not at issue in this case.

App. 5

for the appropriate stretch of the river. LA. REv. STAT.

§ 34:991, 1042. The Governor appoints individuals to serve

on the commissions. Jd.

An individual must first petition the appropriate board

for a determination of his qualifications.’ A few specific

requirements for qualified pilots are set out by statute.

Before the Crescent Board may certify the candidate to the

Governor for commissioning, river port pilots are required

to (1) be of good moral character, (2) be a voter of the state

of Louisiana, and (3) have completed an approved appren-

ticeship program. LA. REV. Stat. § 34:993. New Orleans and

Baton Rouge Steamship Pilots are required by statute to (1)

be of good moral character, (2) be a voter of the state of

Louisiana, (3) have a first class pilot license issued by the

United States Coast Guard, and (4) complete a six-month

apprenticeship. LA. REV. STAT. § 34:1045.

The Crescent Board and the NOBRA Board are

authorized by statute to provide additional requirements

for individuals seeking to become pilots. Among myriad

licensing and educational requirements, the Crescent

Board requires that the individual “must not have reached

his fortieth birthday prior to the first day of balloting on

apprentices by the river port pilots.” LA. ADMIN. CODE tit.

46 § 3201(C) (2003) (emphasis added). The NOBRA Board

requires that the individual “shall not have reached his or

her forty-fifth birthday before being commissioned.” LA.

ADMIN. CODE tit. 46, § 6107 (2003) (emphasis added).

* This exact process does not appear to be mandated by statute,

but rather the result of the regulations promulgated by the boards of

commissioners/examiners and the respective pilots’ association for the

particular stretch of the river.

App. 6

An individual applying to be an apprentice first

submits his application to the appropriate board of com-

missio»ers/examiners for certification that the individual

is a qualified apprentice candidate. Because apprentice-

ships must be completed under the supervision of a com-

missioned pilot, and because only a limited number of

pilots are allowed by law, certification by the board as a

qualified candidate does not guarantee an individual a

place in the apprenticeship program. The individual must

then be elected to apprenticeship by a majority vote of the

pilots’ association for the respective stretch of the river.

Once elected, the candidate completes a _board-

certified apprenticeship program under the supervision of

commissioned pilots. The boards retain the right to require

satisfactory completion of the apprenticeship program,

extend the apprenticeship, or terminate the apprentice-

ship when deemed necessary. LA. ADMIN. CODE tit. 46,

§ 6107(L) (2003). Upon completion of the apprenticeship

program, the boards examine the apprentices as to their

knowledge of pilotage and their proficiency and capability

to serve as commissioned pilots. LA. ADMIN. CODE tit. 46,

§ 6107(M\X2) (2003). If the board deems the apprentice

qualified, the board certifies the apprentice to the Gover-

nor for commissioning. The Governor may then appoint, in

his discretion, the individual to an existing vacancy.

LA. REV. Stat. §§ 34:993, 1045.

The pilots’ associations that elect individuals to

apprenticeships exist pursuant to Louisiana law giving

pilots the right to “form themselves into an association or

associations as to them may seem fit, not in conflict with

App. 7

law....” LA. REV. STAT. § 34:995; La. Rev. Stat. § 1047.

Crescent and NOBRA periodically hold elections for

apprenticeship when each respectively determines that a

need exists for new pilots. The associations select only the

number of apprenticeship candidates commensurate with

the number of new pilots needed.*

Crescent and NOBRA are incorporated under the laws

of Louisiana as non-profit corporations. LA. REv. STAT.

§ 12:201 et seg. Crescent’s Charter provides that the

objects and purposes of the corporation are, in relevant

part:

To provide efficient means for dispatching Cres-

cent River Port Pilots to ships and vessels as-

signed and requiring the services of such pilots

on an equitable basis, providing for the collection

and disbursement of fees and charges of whatso-

ever nature ard kind incident to the performance

of such services, and making distribution thereof

among the shareholders of_this corporation after

* The NOBRA Board’s regulations provide that an applicant “must

have been duly elected an apprentice in the New Orleans and Baton

Rouge Steamship Pilots Association as per Association rules in effect as

of such application.” LA. ADMIN. CODE tit. 46, § 6107 (2003). The legal

source of this voting process for the Crescent Board and Crescent is

unclear. We have found nothing in the law requiring only so many

individuals be apprenticed as there are open seats, although this does

make practical sense. Similarly, we have found nothing in the law

requiring that the association elect apprentices by majority vote,

although the fact that, as a practical matter, all pilots are association

members makes this process sensible and efficient. What is clear,

however, is that this process is long-standing and a matter of tradition

for the pilots. See generally Kotch v. Board of River Port Pilot Com’rs for

Port of New Orleans, 25 So.2d 527, 755-58 (1946), aff’d 330 U.S. 552

(1947).

App. 8

deducting all legitimate and approved expenses

of the operation of same.

To provide for a pension and welfare plan for re-

tired shareholders of this corporation, and for

their families.

* * *

To inculcate, secure and maintain skill, disci-

pline, merit and efficiency in the pilots engaged

in piloting vessels over the pilotage waters as-

signed to the Crescent River Port Pilots, promot-

ing and assisting the commerce and prosperity of

the Port of New Orleans.

NOBRA’s Charter similarly provides, albeit with much

less specificity, that the purpose of the association is

To carry on the business of piloting sea-going and

other vessels on the Mississippi River, between

the Mississippi River Ports of New Orleans and

Baton Rouge and return, for fees, and to shift

vessels in the harbors of Harahan, Avondale, St.

Rose, Destrehan, Good Hope, Norco, Reserve,

Burnside, Gramercy and other harbors to and in-

cluding Baton Rouge, Louisiana, in accordance

with Act 291 of the Legislature of 1942 of the

State of Louisiana (Louisiana Revised Statutes

34:1041, et sequitur); and to inculcate, secure

and maintain skill, discipline, merit and effi-

ciency in the pilots engaged in this business, and

to thereby promote and assist the commerce and

prosperity of said ports and intermediate ports.

Each association is owned by its members; each member

pilot holds one share of the association’s stock.

The primary business of both associations is to receive

requests for pilotage from ship agents and dispatch pilots

App. 9

to those vessels. The associations also collect the fees from

the shipping companies for the pilotage work performed.

The receipts, minus general overhead expenses, are

remitted monthly to member pilots in accordance with an

established formula based on the number of days each

individual was available for piloting. The associations do

not withhold tax or FICA on the monies distributed to pilot

members, and pilots’ pay is reflected on IRS Form 1099,

rather than IRS Form W-2.

Membership in an association is not required by law,

but most, if not all, pilots currently commissioned in the

NOBRA and Crescent stretches of the river are members

of the appropriate association.

Despite the complexity of the interrelationships and

the working arrangements among the associations and

the pilots, the facts underlying Coleman’s claims are

simple. Coleman, born on October 6, 1951, is an experi-

enced ship captain who sought to become a commissioned

pilot on the NOBRA and Crescent stretches of the Missis-

sippi River.

Coleman submitted an application for the apprentice-

ship program to the NOBRA Board in 1996. NOBRA held

an election for apprentices in 2001, but Coleman’s name

did not appear on the ballot as a certified candidate for

apprenticeship. At the time of the NOBRA election, Cole-

man was forty-nine years old. NOBRA requires that an

applicant “not have] reached his forty-fifth (45th) birth

date.”

App. 10

Coleman also submitted an application for the ap-

prenticeship program to the Crescent Board in 1999.

Crescent held an election that same year, but Coleman’s

name did not appear on the ballot as a certified candidate

for apprenticeship. At the time of the Crescent election,

Coleman was forty-seven years old.‘ Crescent’s Charter

requires that an applicant “shall not have reached his

fortieth birthday prior to the day of the first ballot for his

election as an apprentice.”

After filing an EEOC charge against NOBRA and

receiving a right-to-sue letter, Coleman filed an action

against NOBRA alleging that the association unlawfully

discriminated against him on the basis of his age in

violation of the ADEA by failing to elect him into the river

pilot apprenticeship program. NOBRA moved for summary

judgment asserting that it is not an “employer” under the

ADEA. The District Court granted NOBRA summary

judgment, finding that Coleman did not present a genuine

issue of material fact with respect to whether NOBRA is

an “employer” of river pilots within the meaning of the

ADEA. Coleman v. New Orleans Baton Rouge Steamship

Pilots Association, 2004 WL 1237447 (E.D. La. June 1,

2004). The District Court summarily adopted the reasoning

* Additional facts are alleged by Coleman and the defendants.

These facts, however, are not relevant to the question whether these

entities are “employers”, but rather are relevant only to the establish-

ment of a prima facie case of age discrimination and the subsequent

McDonnell Douglas analysis. See generally McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973); Machinchick v. PB Power, Inc., 398 F.3d

345, 349-53 (5th Cir. 2005). The District Court did not address whether

Coleman established a prima facie case of age discrimination.

App. 11

of Ehret v. State of Louisiana, 862 F.Supp. 1546 (E.D. La.

1992), a case holding that Crescent lacked control over its

member pilots and therefore was not their employer.

Ehret, in turn, had found persuasive the analysis in the

tort case McKeithen v. The SS FROSTA, 441 F.Supp. 1213

(E.D.La.1977), which held that NOBRA was not vicari-

ously liable as an employer because it exerted no control

over a pilot once he took the helm of a vessel. McKeithen

likened NOBRA to other professional associations and

found NOBRA pilots to be independent contractors.

Coleman also received right-to-sue letters from the

EEOC for his charges against Crescent and the Crescent

Board. Coleman then filed separate actions alleging

violations of the ADEA against Crescent and the Crescent

Board, which were consolidated before the District Court.

Crescent and the Crescent Board both moved for sammary

judgment arguing in part that they are not “employers” or

“joint employers.” Relying on the same reasoning as the

opinion in- the NOBRA proceeding, the District Court

granted Crescent and the Crescent Board summary

judgment. Colernan v. Crescent River Port Pilot’s Associa-

tion, Inc., 2004 WL 1278005 (E.D. La. June 8, 2004).

Coleman now appeals both judgments.” Thus, we have

before us the two appeals presenting mutually dispositive

issues. -

* Coleman also appeals the District Court’s denial of his motions

for reconsideration of the summary judgment motions, or in the

alternative new trial. We do not discuss these issues on appeal because

Coleman’s argument is underdeveloped, simply arguing that his

motions should have been granted to correct the manifest injustice of

the District Court’s error in granting summary judgment to defendants.

App. 12

IIT

We review a grant of summary judgment de novo,

using the same standard applied by the District Court.

Hall v. Gillman, Inc., 81 F.3d 35, 36 (5th Cir. 1996).

Summary judgment is appropriate “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 judgment as a matter of law.”

FED. R. Civ. P. 56(c).

(1)

A primary purpose of the ADEA is to prohibit arbi-

trary age discrimination in employment. 29 U.S.C.

§ 621(b). To accomplish this purpose, the ADEA prohibits

certain practices by employers, employment agencies, and

labor organizations. 29 U.S.C. § 623(a)-(c). In relevant

part, the ADEA makes it unlawful for an employer

to otherwise 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.

29 U.S.C. § 623(a)(1). An employment agency may not

fail or refuse to refer for employment, or other-

wise to discriminate against, any individual be-

cause of such individual’s age, or to classify or

refer for employment any individual on the basis

of such individual’s age.

App. 13

29 U.S.C. § 623(b). Finally, it is unlawful for a labor

organization

(1) to exclude or expel from its membership, or

otherwise to discriminate against, any individual

because of his age;

(2) to limit, segregate, or classify its member-

ship, or to classify or fail or refuse to refer for

employment any individual, in any way which

would deprive or tend to deprive any individual

of employment opportunities, or would limit such

employment opportunities or otherwise adversely

affect his status as an employee or as an appli-

cant for employment, because of such individual’s

age;

(3) to cause or attempt to cause an employer to

discriminate against an individual in violation of

this section.

29 U.S.C. § 623(c). Although the prohibitions of the ADEA

are broad in scope, the reach of the ADEA is limited by the

statute’s own definitions of “employer,” “employment agency,”

and “labor organization.” See 29 U.S.C. § 630. If an entity is

not an employer, employment agency, or labor organization,

it is not subject to the prohibitions of the ADEA against age

discrimination in employment.

The question that confronts us is whether Crescent*®

and NOBRA are entities that are subject to the prohibi-

tions of the ADEA. The answer to this question is not

* Coleman does not assert that the Crescent Board is an employer

standing alone, but rather that the Crescent Board is only subject to

the ADEA as a joint employer with Crescent.

App. 14

immediately apparent. We begin by considering each

possibility of coverage under the ADEA.

(2)

We first observe that NOBRA and Crescent cannot be

considered “employment agencies” or “labor organizations”

under the ADEA. Coleman has not made such an asser-

tion, but at first glance, NOBRA and Crescent share

characteristics with employment agencies and labor

organizations as they are commonly understood. The

dispatching function of the associations, matching pilots

with vessels needing piloting, may be analogized in a

general way to the usual purpose of an employment

agency or union hiring hall. However, we must deal

specifically with the definitions in the ADEA. NOBRA and

Crescent are not labor organizations because they do not

exist for the “purpose, in whole or in part, of dealing with -

employers concerning grievances, labor disputes, wages,

rates of pay, hours, or other terms or conditions of em-

ployment....” 29 U.S.C. §630(d). Although the ADEA

refers to hiring halls, its reference is only to explain that a

labor organization is “deemed to be in an industry affect-

ing commerce if (1) it maintains or operates a hiring hall

or hiring office which procures employees for an employer

or procures for employees opportunities to work for an

employer... .” 29 U.S.C. § 630(e).

Moreover, labor organizations interact with the

employer of the members of the organization. A shipowner

or charterer is not the hired pilot’s employer in the sense

relevant here, for it exercises no control over the pilot’s

navigation of the vessel. We can find no argument or author-

ity for deeming pilots anything other than independent

App. 15

contractors of the vessels they are hired to navigate. Thus,

this term “employer” prevents our finding that NOBRA

and Crescent are employment agencies, which are defined

as “any person regularly undertaking with or without

compensation to procure employees for an employer and

includes an agent of such person... .” 29 U.S.C. § 630(c)

(emphasis added).

Despite the functional similarities between the asso-

ciations and labor organizations/employment agencies,

because of the ADEA definitions of the two types of enti-

ties, we are left to consider only whether NOBRA and

Crescent are employers of their member pilots. The ADEA

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). This definition, however, provides little

guidance in determining whether a particular entity is in

fact an employer; the statute simply defines “employee” as

“an individual empJoyed by any employer... .” 29 U.S.C.

§ 630(f).’

The circular language defining “employer” at least

states clearly that an entity must employ twenty or more

employees tc satisfy the ADEA definition of employer.

Whether Crescent or NOBRA has more than twenty

employees depends entirely on whether the pilots are

" The terms “employer” and “employee” have been identically

treated under the ADEA and Title VII. Thus, cases interpreting the

terms under either statute may be considered in determining whether

the defendants are employers for the purposes of the ADFA. See Fields

vu. Hallsuille Indep. School Dist., 906 F.2d 1017, 1020 n.7 (5th Cir. 1990),

cert. denied, 498 U.S. 1026 (1991).

App. 16

considered to be employees of the associations. We are

thus left with the sole question whether the pilots are the

associations’ employees, a term not substantively defined

by the statute.’

(3)

We have come all this way to arrive at the point

suggested by the previous cases and indeed by the District

Court: the touchstone of our analysis centers around the

* As noted above, the District Court relied on Ehret’s multi-factor

right-to-contro] analysis to hold that the pilots are not employees of the

associations. Coleman asserts that Ehret is mo longer controlling law

because the post-Ehret promulgation of 29 C.F.R. § 1625.21 clarified

that NOBRA and Crescent are employers at least with respect to the

apprenticeship program. Coleman notes that the EEOC specifically

referred to 29 C.F.R. § 1625.21 in finding that cause existed to believe

that Coleman was discriminated against because of his age. Coleman

also notes that courts have allowed plaintiffs to proceed against

operators of similar apprenticeship programs for violations of the

ADEA. See EEOC v. Joint Apprenticeship Committee, 186 F.3d 110 (2d

Cir. 1999).

We think Coleman misreads the scope of 29 C.F.R. § 1625.21. We

agree with the District Court that the regulation “expands the coverage

of the ADEA to applicants for apprenticeship programs, but does not

expand the classes of persons liable pursuant to the ADEA as set forth

in 29 U.S.C. § 623.” Coleman v. New Orleans Baton Rouge Steamship

Pilots Ass’n, 2004 WL 1237447, at *3 (E.D. La. June 1, 2004). Section

1625.21 did not alter 29 C.F.R. § 1625.1, which provides that “the terms

person, employer, employment agency, labor organization, and em-

ployee shall have the meanings set forth in § 11 of the Age Discrimina-

tion in Employment Act of 1967, as amended, 29 U.S.C. 621 et seg... .”

The regulation itself makes clear that it does not expand liability

beyond “employers” by specifically referencing the “prohibitions of

Section IV of the Age Discrimination in Employment Act of 1967, as

amended, 29 U.S.C. § 623.” The Second Circuit’s decision in Joint

Apprenticeship Committee is not to the contrary because it simply

assumed that an employer-employee relationship existed. 186 F.3d at

115.

App. 17

common-law notion of control of the individual. Our

approach to the question of control takes a somewhat

different path, however. In Clackamas Gastroenterology

Associates, P.C. v. Wells, 538 U.S. 440 (2003), the Supreme

Court approved the EEOC’s gloss on the control standard

in questioning whether a partner, officer, major share-

holder, or director qualifies as an employee. Given the

relationship besween the pilots and the associations,

which we have earlier described in detail, we find such an

analysis specifically appropriate. The EEOC framed the

issue as “whether the individual acts independently and

participates in managing the organization, or whether the

individual is subject.to the organization’s control.” Id. at

448 (internal citation omitted), The Court specifically

embraced the EEOC’s proposed six factors relevant to

determining whether a shareholder/director is an em-

ployee of the organization:

(1) Whether the organization can hire or fire

the individual or set the rules and regula-

tions of the individual’s work

(2) Whether, and if so, to what extent the or-

ganizazion supervises the individual’s work

(3) Whether the individual reports to someone

higher in the organization

(4) Whether, and if so, to what extent the indi-

vidual is able to influence the organization

(5) Whether the parties intended that the indi-

vidual be an employee, as expressed in writ-

ten agreements or contracts

(6) Whether the individual shares in the profits,

losses, and liabilities of the organization.

App. 18

Id. at 449-50. We now apply these Supreme Court/EEOC

factors to the pilots’ relationship to the defendant associa-

tions.

The first factor we consider is whether the pilots’

associations hire and fire the member pilots. Despite

Coleman’s arguments to the contrary, they do not. Cer-

tainly, the pilots’ associations do have the power to elect

apprentices and to admit pilots into their membership.

The associations, however, do not have the power to grant

commissions that permit the pilot to work in the profes-

sion; pilots receive their commissions from the Governor,

and the associations cannot decommission a pilot. With

respect to the actual job performed — piloting — the role of

the associations is essentially that of dispatching pilots to

the ships needing them; the vessel engages the pilot and

the master of the vessel can refuse the services of a par-

ticular pilot. This first factor weighs against labeling the

pilots ADEA employees.

The second and third factors ask whether the pilots’

associations supervise the individual pilot’s work and

whether the pilot reports to someone “higher” in the

association. As noted earlier, the primary business of the

associations is to receive requests for pilotage, dispatch

pilots to the vessels, and collect and disburse pilotage fees.

The associations do not supervise the pilots in their work,

nor is there a chain of command in the performance of

their work — the individual pilot gives navigation advice

independently according to his own professional judgment.

These two factors therefore weigh against labeling the

pilots ADEA employees.

The fourth factor asks to what extent the pilots are

able to influence the pilots’ associations. Pilots constitute

App. 19

the entire body of shareholders of their respective associa-

tions. Each pilot holds an equa) share and participates in

the election of directors of the association and in share-

holder-approval votes. Thus, the pilots exert substantial

influence over the general management of the association

as well as the promulgation of association rules and

regulations specifically. This factor, too, weighs against

labeling the pilots ADEA employees.

The fifth factor asks whether the parties intended

that the individual pilot be an employee. Clearly not. Each

of the charters of NOBRA and Crescent makes unequivo-

cal that no employment relationship is intended; these

charters expressly define the relationship between the

pilots and the association as an association for the mutual

benefit of the member pilots. This factor also weighs

against labeling the pilots ADEA employees.

The sixth factor asks whether the pilots share in the

profits, losses, and liabilities of the association. Pilots

share in the “profits” of the association (and the “losses” if

timés are not good) by receiving a share of collected fees

according to a set formula agreed upon by the shareholder

pilots themselves. At the same time, the associations have

no respondeat superior liability for the conduct of the

pilots, which emphasizes the lack of control over the work

of the pilot. Consistent with the fact that pilots act inde-

pendently according to their own professional judgment in

piloting a vessel, pilots remain personally liable for their

own negligence. See McKeithen, supra. Further, the

associations’ charters specifically state that the associa-

tions are not responsible for debts or faults of their mem-

bers. This factor also weighs against labeling the pilots

ADEA employees.

App. 20

We conclude that the EEOC’s six factors, though not

necessarily exhaustive, are decisive here. Each factor

weighs against finding that the pilot is an employee of the

association. The associations obviously are the most

important and determinative factor in the work life of a

pilot; yet the elements of employer control over an em-

ployee fail to describe the character of the power that the

associations exercise. It is certainly true that the associa-

tions, along with the NOBRA and Crescent Boards and the

governor, play an almost monopolistic gate-keeper role in

determining who will ultimately work as a river pilot; it is

also true that the associations (through their members) set

rules and regulations directly affecting the daily work of

each pilot. Nevertheless, if Clackamas is our guide, the

central characteristics of employer control over the pilot

are lacking. The associations do not hire or fire pilots, nor

can they decommission them; they do not supervise the

pilots in their work; and their charters create relation-

ships that cannot be characterized as employee/employer.

The pilots do their work independently according to their

own professional judgment; they have ultimate control

over the associations’ rules and regulations that bind

them; and they retain personal liability for their own

negligence, with no vicarious liability attaching to the

associations. Until the United States Supreme Court

adopts a wholly different analytical approach from the one

provided by Clackamas, we think it clear that the pilots

are not employees of the associations. It follows that

neither of the associations, with fewer than twenty em-

ployees, is an employer within the definition of the ADEA.

Accordingly, we hold that the District Court did not

err in granting NOBRA and Crescent summary judgment.

App. 21

Coleman does not*tassert~that the Crescent Board

itself is an “employer.” See Camacho v. Puerto Rico Ports

Authority, 369 F.3d 570 (1st Cir. 2004). Instead, Coleman

argues that the Crescent Board is a joint employer with

Crescent. Because we hold that Crescent is not an em-

ployer of pilots under the ADEA, it follows that the Cres-

cent Board cannot be a joint employer with Crescent.

Accordingly, we hold that the District Court did not err in

granting summary judgment to the Crescent Board be-

cause it is not an employer under the meaning of the

ADEA.

Based on the foregoing considerations, which are, of

necessity, narrowly bound to the unique qualities of the

pilots’ associations presented here, the District Court’s

grants of summary judgment are

AFFIRMED.

App. 22

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

TERRY C. COLEMAN CIVIL ACTION

VERSUS No. 02-3366

NEW ORLEANS BATON ROUGE SECTION: 1/2

STEAMSHIP PILOTS ASSOCIATION

ORDER AND REASONS

(Filed Jul. 9, 2004)

On June 1, 2004, this Court entered an order granting

a motion for summary judgment filed on behalf of defen-

dant, New Orleans Baton Rouge Steamship Pilots Associa-

tion (““NOBRA”).' On June 2; 2004, this Court entered a

judgment in favor of NOBRA and against plaintiff, dis-

missing plaintiff’s claims with prejudice.’ This matter is

now before the Court pursuant to a motion, filed on behalf

of plaintiff, Terry C. Coleman, for reconsideration or,

alternatively, for a new trial.” NOBRA opposes the motion.

LAW AND ANALYSIS

The Federal Rules of Civil Procedure do not expressly

recognize motions for reconsideration. See Bass v. United

States Dep't of Agriculture, 211 F.3d 959, 962 (5th Cir.

2000). When a party moves a court to reconsider its grant

of summary judgment, the motion will be recharacterized

as a motion to alter or amend the judgment pursuant to

” Rec. Doc. No. 54.

* Rec. Doc. No. 56.

* Rec. Doc. No. 58.

App. 23

Fed. R. Civ. P. 59(e) and analyzed accordingly. St. Paul

Mercury Ins. Co. v. Fair Grounds Corp., 123 F.3d 336, 339

(5th Cir. 1997); Laverspere v. Niagra Mach. & Tool Works,

Inc., 910 F.2d 167, 175 (5th Cir. 1990), abrogated on other

grounds by Little v. Liquid Air Corp., 37 F.3d 1069 (5th

Cir. 1994),

The governing principles pursuant to which a Rule

59(e) motion is determined were succinctly set forth by the

Fifth Circuit in Templet v. HydroChem Inc., 367 F.3d 473,

(5th Cir. 2004):

A Rule 59(e) motion “calls into question the cor-

rectness of a judgment.” Jn re Transtexas Gas

Corp., 303 F.3d 571, 581 (5th Cir.2002). This

Court has held that such a motion is not the

proper vehicle for rehashing evidence, legal theo-

ries, or arguments that could have been offered

or raised before the entry of judgment. Simon v.

United States, 891 F.2d 1154, 1159 (5th Cir.1990).

Rather, Rule 59(e) “serve[s] the narrow purpose

of allowing a party to correct manifest errors of

law or fact or to present newly discovered evi-

dence.” Waltman v. Int'l Paper Co., 875 F.2d 468,

473 (5th Cir.1989) (internal quotations omitted).

Reconsideration of a judgment after its entry is

an extraordinary remedy that should be used

sparingly. Clancy v. Employers Health Ins. Co.,

101 F.Supp.2d 463, 465 (E.D.La.2000) (citing 11

* Plaintiff has styled his motion in the alternative as a motion for a

new trial. “[Plaintiff’s] motion is a peculiar one to say the least. As no

trial was held in the district court, it cannot logically be called a motion

for new trial.” St. Paul Mercury Ins. Co., 123 F.3d at 339. (construing a

motion for a new trial after a grant of summary judgment as a request

for reconsideration of summary judgment and treating the motion as

Rule 59(e) motion to alter or amend a judgment).

App. 24

CHARLES A. WRIGHT, ARTHUR R. MILLER &

MARY KAY KANE, Federal Practice & Proce-

dure § 2810.1, at 124 (2d ed.1995)).

In Lavespere [v. Niagara Machine & Tool Works,

Inc., 910 F.2d 167 (5th Cir.1990)], his Court rec-

ognized that while a district court has consider-

able discretion in deciding whether to reopen a

case in response to a motion for reconsideration,

such discretion is not limitless. 910 F.2d at 174.

This Court has identified two important judicial

imperatives relating to such a motion: 1) the

need to bring litigation to an end; and 2) the need

to render just decisions on the basis of all the

facts. Id. (citations omitted). The task for the dis-

trict court is to strike the proper balance between

these competing interests. Id.

Id. at 478-79 (alteration supplied). Moreover, the Fifth

Circuit has held that “an unexcused failure to present

evidence available at the time of summary judgment

provides a valid basis for denying a subsequent motion for

reconsideration.” Jd. at 479 (citing Russ v. Intl Paper Co.,

943 F.2d 589, 593 (5th Cir. 1991)).

Plaintiff’s motion for reconsideration does not demon-

strate any manifest error of law or fact in this Court’s

judgment. Instead, plaintiff’s motion for reconsideration is

simply a restatement of the arguments and evidence

presented to and considered by this Court with respect to

NOBRA’s motion for summary judgment. Additionally,

although plaintiff has attached deposition evidence to the

motion for reconsideration that was not presented to this

Court in opposition to the motion for summary judgment,

plaintiff has not provided any justification for his failure to

present such evidence in connection with the summary

judgment motion. Plaintiff does not contend, nor could he

App. 25

contend, that the deposition is “newly discovered” evi-

dence. The deposition was taken on April 19, 2004,° well

before NOBRA filed its motion for summary judgment on

May 12, 2004.° Moreover, plaintiff makes no argument

with respect to the relevance or importance of this deposi-

tion testimony.

Because the motion for reconsideration is supported

by legal theories and arguments that have been considered

by this Court and because those arguments are supported

by references to evidence that either was, or could have

been, considered by this Court prior to the entry of judg-

ment, the Court concludes that the “judicial imperative” of

finality outweighs the need for this Court to exercise its

discretion and reopen this case in response plaintiff’s Rule

59(e) motion. :

Accordingly, for the above and foregoing reasons,

IT IS ORDERED that the motion of plaintiff, Terry C.

Coleman, for reconsideration be and hereby is DENIED.

New Orleans, Louisiana, July 8, 2004.

/s/ Lance M. Africk

LANCE M. AFRICK

UNITED STATES

DISTRICT JUDGE

* Rec. Doc. No. 58, Ex. A., at 1.

* See Rec. Doc. No. 45. In any event, the deposition testimony

submitted by plaintiff is merely cumulative of evidence submitted in

plaintiff’s opposition to NOBRA’s summary judgment and has been

submitted in support of an argument considered, and rejected, by this

Court.

App. 26

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

TERRY C. COLEMAN CIVIL ACTION

VERSUS No. 02-3366

NEW ORLEANS BATON ROUGE SECTION: I/2

STEAMSHIP PILOTS ASSOCIATION

ORDER AND REASONS

(Filed Jun. 1, 2004)

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.’

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 seg.

(“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.

Pursuant to Rule 56(c) of the Federal Rules of Civil

Procedure, summary judgment “shall be rendered forth-

with if the pleadings, depositions, answers to interrogato-

ries, and admissions on file, together with the affidavits, if

* Rec. Doc. No. 45.

* See Rec. Doc. No. 47, Ex. 8, at 12.

App. 27

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 non-

moving 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 meta-

physical 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:

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;

* 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.”

App. 28

(2) to limit, segregate, or classify his employees

in any way which would deprive or tend to de-

prive 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 ap-

prenticeship programs created or maintained by

joint labor-management organizations, are sub-

ject to the prohibitions of sec. 4 of the Age Dis-

crimination 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” pursu-

ant to the ADEA:

First, the defendant must fall within the statu-

tory definition. Second, there must be an em-

ployment 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).

App. 29

Plaintiff argues that the river pilots are “employees”

of NOBRA. It is undisputed that NOBRA has a member-

ship of more than twenty pilots.‘ Additionally, the defen-

dant’s summary judgment evidence that NOBRA has less

than twenty employees absent the inclusion of the river

pilots is unrebutted. Therefore, plaintiff’s claim turns on

whether an employment relationship exists between

NOBRA and the river pilots.

The issue of whether a statutorily authorized Louisi-

ana 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. Zd. 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

* Plaintiff has cited no case in which river pilots were hold to be

“employees”

* 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.’” Jd. at 1019 (citation omitted). “[I]f an employer

has the right to contro] 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

(Continued on following page)

App. 30

Crescent River Port Pilot’s Association was not an “em-

ployer” of the river pilots within the meaning of the ADEA.

Ehret, 862 F.Supp. at 1549-51.° The Court concluded:

The ADEA does not prevent all age discrimina-

tion against those who work for a living. What-

ever 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 ADEA....

Id. at 1552; see also Camacho v. Puerto Rico Ports Author-

ity, _ F.3d ___, 2004 WL 11438719, 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).

is done by a specialist without supervision; (2) the skill re-

quired 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 ac-

cumulates retirement benefits; (10) whether the “employer”

pays social security taxes; and (11) the intention of the par-

ties.

Fields, 906 F.2d at 1020 n.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.

App. 31

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 apprentice- _

ship 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.”

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

* See Rec. Doc. No. 47, Ex. 7., EEOC determination letter, at 2.

App. 32

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. Fer 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. Jd. at 1216. The

Court noted:

The pilots association is a voluntarily formed non-profit cor-

poration. 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 re-

maining receipts on a monthly basis to the individual mem-

ber pilots according to an established formuia 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 fed-

eral income tax return on a corporate form (Form 1099), but

does not pay taxes as an entity. [See Mobile Bar Pilots Assoc.

v. CI 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

(Continued on following page)

App. 33

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 plaintiff’s summary judgment evi-

dence 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.

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 plaintiff’s claim is

hereby DISMISSED.

of the pilots nor is it a partnership of pilots.” Jd; see also Blancg 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).

** NOBRA operates similarly to the Crescent River Port Pilots

Association, See Jd. 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.

App. 34

New Orleans, Louisiana, May 31, 2004.

/s/ Lance M. Africk

LANCE M. AFRICK

UNITED STATES

DISTRICT JUDGE

App. 35

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

TERRY C. COLEMAN CIVIL ACTION

VERSUS No. 02-2775

CRESCENT RIVER PORT “02-3247

PILOTS ASSOCIATION, INC. SECTION: 1/2

ORDER AND REASONS

(Filed Jul. 23, 2004)

On June 7, 2004, this Court entered an order granting

motions for summary judgment filed in these consolidated

actions on behalf of defendants, Crescent River Port Pilots

Association, Inc. and the Board of River Port Pilot Com-

missioners.’ On that same date, this Court entered a

judgment in favor of defendants and against plaintiff,

dismissing plaintiff’s claims with prejudice.” This matter

is now before the Court pursuant to a motion, filed on

behalf of plaintiff, Terry C. Coleman, for reconsideration

or, alternatively, for a new trial.* Defendants oppose the

motion.

LAW AND ANALYSIS

The Federal Rules of’Civil Procedure do not expressly

recognize motions for reconsideration. See Bass v. United

* Coleman v. Crescent River Port Pilots Association, Inc., Civil

Action 02-2775, Rec. Doc. 58; Coleman v. Board of River Port Pilots

Commissioners, Civil Action 02-3247, Rec. Doc. No. 7.

* Crescent River Port Pilots Association, Rec. Doc. No. 59; Board of

River Port Pilots Commissioners, Rec. Doc. No. 8.

* Crescent River Port Pilots Association, Rec. Doc. No. 60.

App. 36

States Dept of Agriculture, 211 F.3d 959, 962 (5th Cir.

2000). When a party moves a court to reconsider its grant

of summary judgment, the motion will be recharacterized

as a motion to alter or amend the judgment pursuant to

Fed. R. Civ. P. 59(e) and analyzed accordingly. St. Paul

Mercury Ins. Co. v. Fair Grounds Corp., 123 F.3d 336, 339

(5th Cir. 1997); Laverspere v. Niagra Mach. & Tool Works,

Inc., 910 F.2d 167, 175 (5th Cir. 1990), abrogated on other

grounds by Little v. Liquid Air Corp., 37 F.3d 1069 (5th

Cir. 1994),

The governing principles pursuant to which a Rule

59(e) motion is determined were succinctly set forth by the

Fifth Circuit in Templet v. HydroChem Inc., 367 F.3d 473,

(5th Cir. 2004):

A Rule 59(e) motion “calls into question the cor-

rectness of a judgment.” Jn re Transients Gas

Corp., 303 F.3d 571, 581 (5th Cir.2002). This

Court has held that such a motion is not the

proper vehicle for rehashing evidence, legal theo-

ries, or arguments that could have been offered

or raised before the entry of judgment. Simon v.

United States, 891 F.2d 1154, 1159 (5th Cir.1990),

Rather, Rule 59/e) “serve[s] the narrow purpose

of allowing a party to correct manifest errors of

law or fact or to present newly discovered evi-

dence,” Waltman v. Int'l Paper Co., 875 F.2d 468,

473 (5th Cir.1989) (internal quotations omitted),

* Plaintiff has styled his motion in the alternative as a motion for a

new trial. “|Plaintiff’s] motion is a peculiar one to say the least. As no

trial was held in the district court, it cannot logically be called a motion

for new trial.” St. Paul Mercury Ins. Co., 123 F.3d at 339, (construing a

motion for a new trial after a grant of summary judgment as a request

for reconsideration of summary judgment and treating the motion as

Rule 59(c) motion to alter or amend a judgment).?? * Rec. Doc. Nos.

App. 37

Reconsideration of a judgment after its entry is an

extraordinary remedy that should he used spar-

ingly. Clancy v. Employers Health Ins. Co., 101

FSupp.2d 463, 465 (E.D.La.2000) (citing 11

CHARLES A. WRIGHT, ARTHUR R. MILLER &

MARY KAY KANE, Federal Practice & Proce-

dure § 2810.1, at 124 (2d ed.1995)),

In Lavespere |v. Niagara Machine & Tool Works,

Inc., 910 F.2d 167 (5th Cir.1990)], this Court rec-

ognized that while a district court has consider-

able discretion in deciding whether to reopen a

case in response to a motion for reconsideration,

such discretion is not limitless, 910 F.2d at 174.

This Court has identified two important judicial

imperatives relating to such a motion: 1) the

need to bring litigation to an end; and 2) the need

to render just decisions on the basis of all the

facts. Jd. (citations omitted). The task for the dis-

trict court is to strike the proper balance between

these competing interests. Id.

Id. at 478-79 (alteration supplied). Moreover, the Fifth

Circuit has held that “an unexcused failure to present

evidence available at the time of summary judgment

provides a valid basis for denying a subsequent motion for

reconsideration.” Jd. at 479 (citing Russ v. Int'l Paper Co.,

943 F.2d 589, 593 (Sth Cir.1991)).

Plaintiff’s motion for reconsideration does not demon-

strate any manifest error of law or fact in this Court’s

judgment. Instead, plaintiffs motion for reconsideration is

simply a restatement of the arguments and evidence

presented to and considered by this Court with respect to

defendants’ motions for summary judgment. Additionally,

although plaintiff has attached additional documentary

evidence, specifically, Crescent’s “Work Rules,” to the

App. 38

motion for reconsideration which was not presented to this

Court in opposition to the motion for summary judgment,

plaintiff has not provided any justification for his failure to

present such evidence in connection with the summary

judgment motion. Plaintiff does not contend that the Work

Rules are “newly discovered” evidence.

Because the motion for reconsideration is supported

by legal theories and arguments that have been considered

by this Court and because those arguments are supported

by references to evidence that either was, or could have

been, considered by this Court prior to the entry of judg-

ment, the Court concludes that the “judicial imperative” of

finality outweighs the need for this Court to exercise its

discretion and reopen this case in response plaintiff’s Rule

59(e) motion.

Accordingly, for the above and foregoing reasons,

IT IS ORDERED that the motion of plaintiff, Terry

C. Coleman, for reconsideration be and hereby is DE-

NIED.

New Orleans, Louisiana, July 22, 2004.

/s/ Lance M. Africk

LANCE M. AFRICK

UNITED STATES

DISTRICT JUDGE

App. 39

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

TERRY C. COLEMAN CIVIL ACTION

VERSUS No. 02-2775

PILOTS ASSOCIATION, INC. SECTION: 1/2

ORDER AND REASONS

(Filed Jun. 7, 2004)

Before the Court in these consolidated cases are

motions for summary judgment, filed on behalf of defen-

dants, Crescent River Port Pilots Association, Inc. and the

Board of River Port Pilot Commissioners.’

Plaintiff, born October 6, 1951, filed these consoli-

dated actions alleging that defendants unlawfully dis-

criminated against him on the basis of his age in violation

of the Age Discrimination in Employment Act, 29 U.S.C.

§ 621, et seg. (“ADEA”), Defendants now move for sum-

mary judgment asserting that they are not “employers” or

“joint employers” and, therefore, they are not subject to

liability pursuant to the ADEA.

Pursuant to Rule 56(c) of the Federal Rules of Civil

Procedure, summary judgment “shall be rendered forth-

with if the pleadings, depositions, answers to interrogato-

ries, 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

* Rec. Doc. Nos. 35, 36.

App. 40

party carries its burden pursuant to Rule 56(c), the non-

moving party must come forward with specific facts

showing that there is a genuine issue for trial. Matsushita

Elec. Indus. Co., Lid. 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 meta-

physical 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).

Upon consideration of the motions, the opposition, the

summary judgment evidence, and the law, for the reasons

assigned in Ehret v. State of Louisiana, 862 F.Supp. 1546

(E.D.La. 1992), and this Court’s opinion in Coleman v. New

Orleans Baton Rouge Steamship Pilots Association, Civil

Action 02-3366, Order and Reasons, Rec. Doc. No. 54

(E.D.La. June 1, 2004), the Court finds that there is no

genuine issue of material fact with respect to whether the

Crescent River Port Pilots Association, Inc. or the Board of

River Port Pilot Commissioners is an “employer” or “joint

employer” subject to liability pursuant to the ADEA.

Therefore, defendants are entitled to a judgment as a

matter of law.

Accordingly, for the above and foregoing reasons,

IT IS ORDERED that the motions of defendants,

Crescent River Port Pilots Association, Inc. and the Board

of River Port Pilot Commissioners, for summary judgment

are GRANTED and plaintiff’s claims in these consoli-

dated actions are hereby DISMISSED.

App. 41

New Orleans, Louisiana, June 7, 2004.

/s/ Lance M. Africk

LANCE M. AFRICK

UNITED STATES

DISTRICT JUDGE

\A) FILED

No. 05-1347 MAY 22 2006

OFFIGE-OFFHE CLERK |

SUPREME COURT, U.S._|

In The

Supreme Court of the Anited States

TERRY C. COLEMAN,

Petitioner,

NEW ORLEANS and BATON ROUGE STEAMSHIP

PILOTS’ ASSOCIATION, CRESCENT

RIVER PORT PILOTS’ ASSOCIATION, and BOARD

OF RIVER PORT PILOT COMMISSIONERS,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

BRIEF IN OPPOSITION

PETER J. BUTLER, JR.*

RICHARD G. PASSLER

BREAZEALE, SACHSE &

WILSON, L.L.P.

909 Poydras Street,

Suite 1500

New Orleans, Louisiana 70112

(504) 584-5454

*Counsel of Record Attorneys for Respondent,

Crescent River Port Pilots’

Association

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

There are three primary and several secondary issues

presented in the Petition. The lower courts resolved the

first primary issue in favor of defendants, rendering the

remaining issues moot.

I. Is the Age Discrimination in Employment Act, 29

U.S.C. § 621 et seg., which is the sole basis for peti-

tioner’s claims, applicable to the Crescent River Port

Pilots’ Association and/or the Board of River Port Pilot

Commissioners?

a. Are commissioned River Port Pilots “employees”

(as that term is defined by the Age Discrimina-

tion in Employment Act, 29 U.S.C. § 621 et seq.)

of the Crescent River Port Pilots’ Association

and/or the Board of River Port Pilot Commis-

sioners; or, as held by the lower courts, are

commissioned River Port Pilots “independent

contractors?”

Does 29 C.F.R. § 1625.21 expand the scope of the

Age Discrimination in Employment Act, 29 U.S.C.

§ 621 et seg. beyond the context of an employee/

employer relationship?

Did petitioner make out a prima facie case of dis-

crimination under the Age Discrimination in Em-

ployment Act, 29 U.S.C. § 621 et seq.?

a. Was petitioner qualified to be a candidate for

River Port Pilot apprentice under the regulations

duly promulgated by the Board of River Port Pi-

lot Commissioners, despite his:

1. lack of appropriate United States Coast

Guard licensure; and

QUESTIONS PRESENTED - Continued

2. prior felony convictions for possession with

intent to distribute narcotics?

b. Was there a duty on the part of the Crescent

River Port Pilcts’ Association and/or the Board of

River Port Pilot Commissioners to assist peti-

tioner in obtaining the United States Coast

Guard licensure he needed in order to be quali-

fied as a candidate for River Port Pilot appren-

tice?

III. Since petitioner was not deemed qualified as a candi-

date for River Port Pilot apprentice by the Board of

River Port Pilot Commissioners and, thus, did not ap-

pear on the ballot from which the members of the

Crescent River Port Pilots’ Association selected ap-

prentices, was there any discrimination in fact

against petitioner by the Crescent River Port Pilots’

Association?

ili

CORPORATE DISCLOSURE

Respondent Cresent River Port Pilots’ Association is a

non-profit Louisiana corporation. There are no parent

corporations or publicly held companies owning 10% or

more of Respondent’s stock.

TABLE OF CONTENTS

Page

SUS ae ERODE NED E SRMCSEEEN 2 BGED vids oy nc sccbussuvn se venvveohinretyntaoen i

CAE PE ie BOREAS BIS sens asdinistvnennesassenacvanesueceaas iil

PE AAEEE BME ESD oinkeiisccavsnncinigsisoncnsiencacconesntonaads iv

gv iF 24 PF Sty ed) iy) \ -. SERRE ener esee ne ester viii

SRL ENEU Sd EES CPUS ceierneseavessunicnstiveccestrvinestoe 1

I. The Relationship between the _ involved

I coho oan cee ea ahha woudl Leos

Fe IE: FRR oon oh dcindecccacsactntuibeein

B. Crescent River Port Pilots’ Association ......

C. Board of River Port Pilot Commissioners

for the Port of New Orleans....................008 6

II. The Process to Becoming a Commissioned

BNE FEE FU sais ecckineirres beisinGanionaiecon 8

A. The River Port Pilots Determine a Need

for More Pilots and Notify the Board......... 9

B. The Board Considers Applications (a/k/a

petitioners) from Individuals...................... 9

C. The Board Certifies Those Petitioners

Who are Qualified as Candidates for River

Port Pilot Apprenticeship .............0.......ce 9

D. The River Port Pilots Select an Appropri-

ate Number of Apprentices........................ 10

E. The Board Certifies and Governor Com-

2 eae Renata ai Ss Re ek URE nS niAwe Cee 10

III. Coleman was not qualified to be a candidate

for River Port Pilot apprentice under the regu-

lations duly promulgated by the Board............. 11

TABLE OF CONTENTS - Continued

PRR RRR HERRERO EEO HEHEHE EEE EEE HERES EEE EEE

Page

Coleman has two prior felony convictions... 11

2. Coleman lacked the appropriate qualifying

RPE A ND 25. csasi sc envosibhicskncabansansanaionnin 12

3. There was no duty on the part of defen-

dants to assist Coleman in obtaining the

USCG Licenses he needs in order to qual-

ify as a candidate for River Port Pilot Ap-

SN ais (iis ca cna bad antpnvad saec anes cacenasaceniecwnce 13

4. As he was not qualified, the River Port Pi-

lots could not select Coleman as an ap-

SII 6806s a islcus trace cabivextinecucsacnsiesiseckteeaas 14

SU RPAEEE COE ARUN icici oceniscaccccscdccsecsnssecsnssses 15

REASONS FOR DENYING THE WRIT....................... 16

I. The ADEA (which is the sole basis for Cole-

man’s claims) is inapplicable because Commis-

sioned River Port Pilots are not employees of

the Association or the Board; rather, they are

REM TNOTL CONF CCOES ii ois. isis .seccscdecsatsncccicss 16

A. The district court’s test: Ehret.............0000 19

B. The Fifth Circuit’s test: Clackamas............ 22

II. 29 C.F.R. § 1625.21 does not expand the scope

of the ADEA beyond the context of an em-

ployee/employer relationship......................000008 26

Ili. The Work Rules were properly not considered;

regardless, they are irrelevant....................:06 28

CONCLUSION 29

TABLE OF CONTENTS - Continued

Page

APPENDIX

Louisiana Revised Statutes

Title 34. Navigation and Shipping

Chapter 6. Pilots

Part I. Port of New Orleans

Subpart B. River Port Pilots

§ 991. Board of River Port Pilot Commission-

ers; duties, appointment, qualification,

and removal of members.....................05 App. 1

§ 991.1. Repealed by Acts 2004, No. 902, § 2,

ee IE Es Gee cenit teens App. 3

§ 992. River port pilots; duties; appointment .....App. 3

§ 993. Examinations for appointment; quali-

SUR Silks cacharccti servis sacads repisecbontscrcapbanees App. 3

§ 994. RP, Masse cisitenti ci iminc Acs caecntesoons App. 4

§ 995. Association of river port pilots............... App. 4

§ 996. Operating Cereb y <.5..0isccsisiccesésecersanesee App. 4

§ 997. Pilotage fees; vessel subject to pilotage.....App. 5

§ 998,999. Repealed by Acts 1986, No. 960, § 2......App. 6

§ 1000. Privilege for charges and attorney’s

oss vic cas savnocs ickeben adceanaseiin paspeatpineinienaaak App. 6

§ 1001. Repealed by Acts 2004, No. 902, § 2,

See AGL PRY aaron Re crropbeehanyn te Une Roane App. 6

§ 1002. Violations and penalties .....................06 App. 6

§ 1002.1. Employing pilot without a_ state

commission; penalties ................::c.ceseeeee App.

Vil

TABLE OF CONTENTS - Continued

Page

§ 1003, 1004. Repealed by Acts 1986, No. 960, § 2......App. 7

§ 1005. Privilege, communications between

river port pilot and Board of River

Port Pilot Commissioners ..................... App. 7

§ 1006. SME trtslaliicypatcvdgionto A kin acon epadenoies App. 7

§ 1007. Repealed by Acts 1968, No. 579, § 8......App. 7

§ 1008. Repealed by Acts 1986, No. 960, § 2...... App. 7

§ 1009. Employing pilot without a commis-

sion; liability of vessel, master, and

vill

TABLE OF AUTHORITIES

Page

CASES

Barrow v. New Orleans Steamship Ass’n, 10 F.3d

ZO3 ae Se Reeth bats Sass candies sasssiseecseass 20

Blancq v. Hapag-Lloyd A.G., 986 F. Supp. 376 (E.D.

Th TI cae es ch iskdapscevtiserrscensssssecees 20

Clackamas Gastroenterology Assocs. v. Wells, 538

a re aeseiiRap citer sichadenssessecencovescens 23

Coleman v. New Orleans and Baton Rouge Steam-

ship Pilots’ Ass’n, 437 F.3d 471 (5th Cir. 2006)......passtm

Dampskibsselskabet Atlanta A/S v. The United

Rp MS ES es Re |.) a 22

E.E.O.C. v. Joint Apprenticeship Committee of Joint

Industry Bd., 186 F.3d 110 (2nd Cir. 1990)..............00.. 27

Ehret v. State of Louisiana, 862 F. Supp. 1546 (E.D.

) WR = Re eS passim

Fields v. Hallsville Indep. School Dist., 906 F.2d

1017 (5th Cir. 1990), cert. dented, 498 U.S. 1026

CLOG) 5h xcpsccei a pe eR elias hah astnshesecd chessevecense 16, 19

Fruge v. Parker Drilling Co., 337 F.3d 558 (Sth Cir.

2003), cert. denied, 540 U.S. 1161 (2004)..................0... 21

Guy 0. Done, SOG Ta (LOD avs ccssensccnsssssesccosseivosess 22

Hickey v. Arkla Industries, Inc., 699 F.2d 748 (5th

Cin. LOGY ict ea Aaa eakns ao sisensanascnchesacevecseree 17

In re China Union Lines, Ltd., 342 F. Supp. 426

CE BF, Bh eee as rah cvclghdacesscssncnasescvoceosssee 6

Koepp v. Sea-land Service, Inc., 645 So.2d 1269 (La.

Per Ear Fe aria iaiaacctbssen ened cavaesssnesicccesssoess 22

TABLE OF AUTHORITIES — Continued

Page

Kotch v. Board of River Port Pilot Com’rs for Port of

New Orleans, 25 So.2d 527 (La. 1946), affirmed,

330 U.S. 552 (1947), rehearing denied, 331 U.S.

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McKeithen v. S.S. Frosta, 441 F. Supp. 1213 (E.D.

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Nationwide Mutual Ins. Co. v. Darden, 503 U.S.

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STATUTES AND REGULATIONS

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Louisiana Register, Volume 21, No. 7, July 20, 1995......... 7

STATEMENT OF THE CASE

Terry Coleman (Coleman), a two-time convicted drug

felon without the appropriate licenses from the United

States Coast Guard (USCG), attempted to become a river

port pilot. He sued the Crescent River Port Pilots’ Associa-

tion (Association) and the Board of River Port Pilot Com-

missioners (Board)' under the Age Discrimination in

Employment Act (ADEA), 29 U.S.C. $621 et seg. because

he was not selected by the Association’s members as an

apprentice. The district court granted Defendants’ sum-

mary judgment motions on the basis that neither defen-

dant is an employer within the meaning of the ADEA

because of a lack of an employer-employee relationship

and, thus, cannot be held liable under the ADEA. The

district court denied Coleman’s request for reconsidera-

tion. The United States Court of Appeals for the Fifth

Circuit (Fifth Circuit) affirmed.’

Coleman’s “Statement of the Case” has almost nothing

to do with the undisputed material facts upon which the

summary judgment was granted or on which it was

affirmed. Rather, those “facts” are predominantly irrele-

vant and disputed allegations (if not outrigl* inappro-

priate and unsubstantiated character assassination). The

material, undisputed facts are:

1. In 1985, Coleman was convicted in the United

States District Court for the Eastern District of

Louisiana of possession with intent to distribute

cocaine.

' Coleman’s separate suit against the Board was removed and

consolidated with his suit against the Association.

* 437 F.3d 471 (5th Cir. 2006).

In 1986, Coleman was convicted in the 24th Ju-

dicial District Court, Parish of Jefferson, State of

Louisiana, of possession with intent to distribute

Marijuana.

On or about February 29, 1999, Coleman submit-

ted a petition to the Board seeking to become a

commissioned river port pilot.

Coleman did not at any time pertinent hereto

hold the appropriate USCG First Class Pilot Li-

cense (USCG License) of steam or motor vessel of

any gross tons for any of the following four wa-

terways: (a) Mississippi River from Southport

Mile 104.7 to the Head of Passes Mile 0.0; (b) The

Inner Harbor Navigation Canal (Industrial Ca-

nal) from the Mississippi River to Lake Pontchar-

train; (c) The Intracoastal Waterway (ICW) from

the intersection of the Industrial Canal and the

ICW to and including Michoud Canal, or; (d) The

Mississippi River Gulf Outlet, from the intersec-

tion of the ICW to Mile 28.3, tl.. present location

of Beacon #78 (collectively, the USCG Licenses).

The USCG requires as a condition and/or pre-

requisite for taking the test to obtain each of the

USCG Licenses, a certain amount of experience

in the wheelhouse of vessels traversing the par-

ticular waterway to which the license applies.

The USCG does not require that this experience

be obtained in the presence of a commissioned

river port pilot. This experience can be obtained

in a variety of ways without the assistance of a

commissioned river port pilot.

The Board is charged with the duty of establish-

ing the qualifications of river port pilots and pro-

viding for the examination and approval of

apprenticeship programs for river port pilots.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.