Anderson v. Pacific Maritime Ass'n

336 F.3d 924, 2003 Daily Journal DAR 7943, 2003 A.M.C. 2849, 2003 Cal. Daily Op. Serv. 6284, 2003 U.S. App. LEXIS 14350, 84 Empl. Prac. Dec. (CCH) 41,454, 92 Fair Empl. Prac. Cas. (BNA) 417, 2003 WL 21665194

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 17, 2003
• Docket: No. 00-35457
• Status: Published

Opinions

Opinion by Judge TALLMAN; Dissent by Judge BETTY B. FLETCHER.

TALLMAN, Circuit Judge.

This case presents a cause of action in search of a defendant. The Plaintiffs, a group of longshoremen working on the docks in Seattle and Tacoma, allege that they were subject to a racially hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, as ' well Washington’s Law Against Discrimination, Wash. Rev.Code § 49.60.¹ But the sole defendant left before us on appeal, Pacific Maritime Association (“PMA”), is not the employer of any of the Plaintiffs. Rather, PMA ■ is a non-profit association of the stevedoring and shipping companies that do employ the Plaintiffs. The district court granted summary judgment to PMA, holding that PMA could not be liable for discrimination because PMA was not the Plaintiffs’ employer. We agree and affirm.

I

A

The Plaintiffs are all African American. They allege that they were subjected to a racially hostile work environment while employed on the waterfront in Seattle and Tacoma. For purposes of reviewing a summary judgment order, we assume these facts could be established in favor of the Plaintiffs. Oliver v. Keller, 289 F.3d 623, 626 (9th Cir.2002). Their allegations paint a horrific and pervasive picture of racial animosity and discrimination on the waterfront of the Pacific Northwest.

For instance, the Plaintiffs allege that they have been referred to as “nigger,” “spook,” “nigger gang,” “boy,” and “son,” as well as other racial slurs. They assert that racial innuendos and jokes are common on the docks. Furthermore, they allege that longshoremen training materials employ terms such as “nigger lips” and “nigger heads.” The Plaintiffs allege that they were even subject to direct, racially charged physical threats.

The members of PMA (“member-employers”) are the various companies that employ the longshoremen. The Board of Directors of PMA is primarily composed of executives from these stevedoring companies. The member-employers grant PMA the authority to establish and negotiate labor contracts and policies with the International Longshoremen’s and Warehouse-men’s Union (“Union”).

PMA, as the bargaining agent for the member-employers, entered into a Collective Bargaining Agreement (“CBA”) with the Union, as bargaining agent for its local affiliates. Under the. CBA, the member-employers and their walking bosses and foremen — but not PMA. — have the responsibility to “supervise, place or discharge men and to direct the work and activities of longshoremen on the job in a safe, efficient and proper manner.” The member-employers — but not PMA — also retain the right to discipline any longshoreman for “in-competence, insubordination or failure to perform the work as required in conformance with the provisions of [the CBA].” The CBA lays out an extensive system for maintaining discipline, safety, and conformity with the master labor agreement on the docks, but these provisions place the burden of meeting these standards on the longshoremen, the Union, and the member-employers and their supervisors — not PMA.

Specifically, the CBA prohibits illegal discrimination, and provides a detailed procedure for reporting and curing alleged discrimination. Under this procedure, all grievances regarding discrimination must first be referred to a longshoreman’s supervisor. If the supervisor cannot settle the grievance, it is referred to one official designated by the Union and one official designated by the member-employers. If the grievance still is not settled, it is referred to a Joint Committee made up of six members. Three members of the Joint Committee are appointed by the Union and three are appointed by the member-employers. If the Joint Committee fails to resolve the dispute, the CBA provides for binding arbitration.

Although PMA has the general responsibility for ensuring that member-employers comply with the terms of the CBA, PMA has no direct role in this formal procedure for resolving discrimination complaints. Under the CBA, PMA is not responsible for handling, collecting, or investigating grievances, let alone mediating or resolving the grievances. Those tasks, under the plain terms of the CBA, are left to managers employed by the member-employers and the Joint Committee appointed by the member-employers and the Union.²

In 1997, the Union and PMA agreed to an expedited grievance procedure to address both discrimination and the problems associated with the length of time needed to complete the formal procedure. This expedited procedure is a supplement to, and not a replacement of, the formal grievance procedure described in the CBA. Under this new expedited procedure, a longshoreman alleging racial or sexual discrimination is required to fill out a form— copies of which are posted around the work site — describing the discrimination. The longshoreman is then required to send a copy of the form to the area manager of PMA and to the president of the local chapter of the Union. Both the PMA area manager and the local-chapter president then have the discretion to call for a meeting or series of meetings in order to mediate the dispute. If this is unsuccessful, the worker can then require that the parties enter into arbitration.

PMA also performs a variety of other organizational tasks for its member companies. Together with the Union, it operates a dispatch hall³ where longshoremen receive their work assignments from the member-employers. It also provides a payroll service for its member-employers. PMA keeps track of where everyone works each day, but the member-employers actually pay the longshoremen.

Equally important to our analysis is what PMA does not control. It does not supervise the longshoremen. It has no power to hire or fire longshoremen. It has no power to discipline longshoremen. It does not supervise the work sites of its member-employers. It is undisputed that the monitoring and control over those sites, as well as the control of the employees, is within the sole province of the member-employers.⁴

B

The Plaintiffs filed their original complaint in the United States District Court for the Western District of Washington. It named as defendants the shipping and stevedoring companies that hired the Plaintiffs and for whom the Plaintiffs worked each day, plus four local chapters of the Union, and PMA. The original complaint asserted claims for hostile work environment on the waterfront, disparate impact and treatment, breach of the duty of fair representation against the Union, breach of contract, outrage, and civil RICO violations.

For reasons that have never been satisfactorily explained to us by their counsel, the Plaintiffs then filed an amended complaint naming only the Union and PMA as defendants, dropping the shipping and ste-vedoring companies from the lawsuit. The Plaintiffs subsequently voluntarily dismissed all of their remaining claims against the Union except for a single claim against one of the Union’s local chapters. The district court entered summary judgment for the Union on this claim and the Plaintiffs have not appealed that decision. The district court also entered summary judgment for PMA on the Plaintiffs’ hostile work environment claim. The court held that even though a genuine issue of material fact existed as to whether the Plaintiffs were subject to a hostile work environment, PMA could not be held hable for that environment. The Plaintiffs’ appeal before us concerns only their hostile work environment claim against PMA.

II

We review grants of summary judgment de novo. Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir.1998).

Below, the Plaintiffs hinged the viability of their hostile work environment claim against PMA on the applicability of the “integrated enterprise” test. We apply this four-part test to determine if two or more employers are so interrelated that they form an integrated enterprise. See, e.g., Herman v. United Bhd. of Carpenters, 60 F.3d 1375, 1383-84 (9th Cir.1995).

The Plaintiffs argued that PMA is an integrated enterprise with its member-employers and therefore liable for the hostile work environment at the member-employers’ work sites. The district court, noting the likely inapplicability of the test to this case, nevertheless found that PMA is not an integrated enterprise with its member-employers. Both parties on appeal continued to frame the issue as whether PMA can be liable under the integrated enterprise test.

The district court’s reluctance was justified. The test does not determine joint liability as the parties suggest, but instead determines whether a defendant can meet the statutory criteria of an “employer” for Title VII applicability.

Title VII applies to an employer only if that employer employs 15 or more employees. 42 U.S.C. § 2000e(b); see also Clackamas Gastroenterology Assocs., P.C. v. Wells, — U.S. -, 123 S.Ct. 1673, 1676 n. 1, 155 L.Ed.2d 615 (2003). A plaintiff with an otherwise cognizable Title VII claim against an employer with less than 15 employees may assert that the employer is so interconnected with another employer that the two form an integrated enterprise, and that collectively this enterprise meets the 15-employee minimum standard. We use the integrated enterprise test to judge the magnitude of inter-connectivity for determining statutory coverage. See Kang v. U. Lim. Am., Inc., 296 F.3d 810, 815-16 (9th Cir.2002) (applying the integrated enterprise test “for purposes of Title VII coverage” when the plaintiffs direct employer only had six employees but a related subsidiary had more than 50 employees); Herman, 60 F.3d at 1383 (applying the integrated enterprise test to determine whether the plaintiffs direct employer — who employed only seven employees — could be an employer for purposes of the Age Discrimination in Employment Act when that Act requires 20 employees to meet the definition of employer and when the direct employer was a union that was affiliated with a much larger union, which did meet the minimum employee standard for the Act); Childs v. Local 18, Int’l Bhd. of Elec. Workers, 719 F.2d 1379, 1382 (9th Cir.1983) (applying the integrated enterprise test “for purposes of jurisdiction under Title VII” when the plaintiffs direct employer employed less than 15 employees).

Here, PMA does not dispute that it employs at least 15 employees.⁵ Because this places PMA within' Title VIPs statutory coverage as an “employer,” the integrated enterprise test is inapplicable.

B

PMA’s status as an employer in its. own right does not mean that a claim by the Plaintiffs, who were not PMA’s employees, is cognizable under Title VII. The dissent argues that a claim against PMA for the hostile work environment occurring on the docks may properly be brought based on the doctrine articulated in Sibley Memorial Hospital v. Wilson, 488 F.2d 1338 (D.C.Cir.1973), and cases which have followed it in our circuit. We disagree.

In Sibley, the defendant-hospital ran a nursing office where patients would request the services of a private duty nurse. Id. at 1339. The nursing office would then contact various outside referral sources and request that a private nurse be sent to the hospital to work-with the patient. Id. These private nurses were employees of the patient, not the hospital. Id. The plaintiff, a male private nurse, alleged that on at least two occasions supervisory nurses at the hospital rejected him upon arrival because the requesting patients, were female and he was male. Id. at 1339-40.

The plaintiff sued the hospital under Title VII. Id. at 1340. The hospital moved to dismiss or for summary judgment, arguing that the lack of an employer-employee relationship prevented jurisdictional coverage-of the claim under Title VII. Id. The district court denied the hospital’s motion and, without affording the hospital a chance to answer on the merits, sua sponte entered summary judgment for the plaintiff. Id.

On appeal, the D.C. Circuit noted that one of Title VII’s goals was to equalize access to job opportunities. Id. Additionally, Title VII did not explicitly require a direct employer-employee relationship. Id. But that did not mean that no relationship was required for a claim to fall under Title VII. The court stated:

We think it significant that [Title VII] has addressed itself directly to the problems of interference with the direct employment relationship by labor unions and employment agencies — institutions which have not a remote but a highly visible nexus with the creation and continuance of direct employment relationships between third parties. On the facts as alleged ... [the hospital] is so circumstanced, and its daily operations are of such a character as to have such a nexus to the third parties in this case....

Id. at 1342. Nevertheless, because the hospital had not answered on the merits, the district court’s summary judgment in favor of the plaintiff was reversed. Id. at 1344.

We first addressed the viability of Sibley indirect-employer liability in Lutcher v. Musicians Union Local 47, 633 F.2d 880, 883 (9th Cir.1980). There, we noted that for Title VII to apply, “there must be some connection with an employment relationship,” though the “connection ... need not necessarily be direct.” Lutcher, 633 F.2d at 883. Citing Sibley, we explained that “[t]his might occur where a defendant subject to Title VII interferes with an individual’s employment opportunities with another employer.” Lutcher, 633 F.2d at 883 n. 3.

Later, in Gomez v. Alexian Brothers Hospital, 698 F.2d 1019 (9th Cir.1983), we applied Sibley with full force. The plaintiff in Gomez was a Hispanic physician working for a corporation named AES. 698 F.2d at 1020. On behalf of AES, the plaintiff submitted a proposal to the defendant-hospital, offering AES’s services to operate the hospital’s emergency room. Id. The hospital allegedly turned down the proposal because too many Hispanics worked for AES. Id.

The plaintiff sued under Title VII. The district court granted summary judgment to the hospital on the grounds that the plaintiff lacked standing under Title VII because under the proposed contract the plaintiff would still have been an employee of AES, not of the hospital, and AES would have been just an independent contractor for the hospital. Id.

We reversed. Id. at 1022. We held that AES’s potential status as an independent contractor did not mean that the hospital had not interfered with the relationship between the plaintiff and AES. Id. at 1021. Additionally, we noted the perverse result if an employer in the hospital’s position were allowed “to exploit circumstances peculiarly affording it the capability of dis-criminatorily interfering with an individual’s employment opportunities with another employer, while it could not do so” with its own employees. Id. (citation omitted).

In Association of Mexican-American Educators v. California, 231 F.3d 572 (9th Cir.2000) (en banc), we explained the rationale behind indirect-employer liability under Title VII. In that case, the plaintiffs were a class of Mexican-American, Asian-American, and African American prospective and current teachers who challenged California’s use of a skills test — which was a prerequisite to employment in the state’s public schools — under Title VII. Id. at 577. The plaintiffs alleged that the test had a disparate impact on minorities. Id. at 578.

We held, relying on Sibley as well as our decisions in Lutcher and Gomez, that Title VII covered the plaintiffs’ claims. Ass’n of Mexican-American Educators, 231 F.3d at 580-84. We agreed with the district court that the allegedly racially discriminatory test "interfered" with the plaintiffs' relationship with their future employers-the school districts-because it dictated whom those employers could and could not hire. Id. at 581-82. We emphasized that "[o]ur conclusion is dictated by the peculiar degree of control that [California] exercises over local school districts." Id. at 581.

When we apply the principles articulated in these precedents to the case before us, it is clear that PMA cannot be liable to the Plaintiffs under Title VII. All of our cases employing Sibley's rationale- and indeed Sibley itself-have done so in instances where the indirect employer was the entity performing the discriminatory act. In Sibley, it was the hospital which refused to allow the male nurse to see the patient; in Gomez, it was the hospital that refused to hire the company with Hispanic doctors; and in Association of Mexican-American Educators, it was the state that required applicants to take a test with disparate impacts on minorities.

Here, on the other hand, the hostile work environment did not occur at any facility controlled by PMA, but instead at the docks and waterfront facilities controlled by the member-employers that actually employ and supervise the Plaintiffs and their putative harassers on the job site.⁶

In a circumstance like this, the considerations justifying liabifity under Title VII no longer apply. Sibley and its progeny extended Title VII coverage to indirect employers when those employers discriminated against and interfered with the employees' relationship with their employers. PMA is not interfering in any sense with the employees' relationship with their employers because it was those employers, not PMA, that allowed the allegedly hostile work environment at the sites controlled by the member-employers.

The dissent places much weight on the fact that PMA had some involvement in the grievance procedui~es. We think this involvement too attenuated to constitute "interference" and thus insufficient to impose liability based on a Sibley analysis. First, PMA had no authority under the formal procedures to correct any harassment at the waterfront. The grievances under the formal procedures were never referred to PMA. Second, even under the expedited procedures, PMA's role was limited to that of a discretionary mediator. It was not empowered to fire or even discipline longshoremen for harassment. It was not empowered to conduct investigations and to implement new work site rules to curb harassment.⁷ Third, P1VIA's authority to act as a mediator is not directly related to the facts of this case. The majority of grievances the Plaintiffs made were filed under the formal procedures, where PMA had no role. And the Plaintiffs have not presented any evidence that a written grievance was made under the expedited procedures that would invoke PMA's discretionary role to conduct meetings in order to attempt to settle the dispute.

In light of these facts, we think the imposition of indirect-employer liability under Title VII inappropriate. Sibley and its Ninth Circuit progeny condone liability when there exists discriminatory “interference” by the indirect employer and where the indirect employer had some peculiar control over the employee’s relationship with the direct employer. Here, there was no such interference by PMA. It did not cause the hostile work environment. And its power to stop the hostile work environment was so limited that it cannot be said to have “interfered” by failing to take corrective measures to stop the harassment when the power to take those measures belonged to the member-employers.

Ill

The Plaintiffs may have been the victims of severe racial discrimination and rightly sought to redress their wrongs in federal court. Their employers and the Union were the obvious defendants and were initially named in the Plaintiffs’ complaint. The Plaintiffs’ decision to drop the employers and the Union as defendants from this case is a mystery to us. All that remains, a cause of action alleging a hostile work environment against PMA, is not cognizable against this defendant under Title VII. PMA was not the one illegally discriminating; PMA did not exercise control over the waterfront work environment the Plaintiffs claim was hostile; and PMA’s purported failure to remedy the situation on the docks did not amount to interference with the Plaintiffs’ employment relationship with the stevedoring and shipping companies. The district court properly granted summary judgment in favor of PMA.

AFFIRMED.

1 . Washington's Law Against Discrimination tracks federal law, and thus our analysis will cite only federal law, but applies with equal force to the Plaintiffs’ claim under Washington law. See, e.g., Payne v. Children’s Home Soc'y of Washington, Inc., 77 Wash.App. 507, 892 P.2d 1102, 1105-06 (1995).

2 . Specifically, the CBA commands the Joint Committee to "investigate and adjudicate all grievances and disputes” and instructs that the Joint Committee — not PMA — has "the power and duty to investigate and adjudicate” any grievance before it. The Joint Committee is independent of PMA and PMA has no role in selecting the members of the Joint Committee or reviewing the Joint Committee's conclusions. In light of these facts and the clear language of the CBA, we think erroneous the dissent's factual conclusion — critical to its analysis — that the member-employers "delegated the responsibility of collecting, investigating, and mediating complaints of workplace discrimination to one, central agent [PMA].”

3 . Contrary to the implication contained in the dissent, the vast majority of acts constituting the alleged hostile work environment occurred at the docks controlled by the member-employers, not at the hiring hall jointly operated by the Union and PMA. Viewing the facts in the light most favorable to the Plaintiffs, they simply have not alleged that the hiring hall, in and of itself, constituted a hostile work environment.

4 .Our colleague in dissent places much weight on the fact that PMA's bylaws afford PMA the power to discipline member-employers who violate terms of contracts entered into by PMA on behalf of the member-employers. But this discretion retained by PMA cannot be viewed in a vacuum. The contract in question here — the CBA — places the burdens of monitoring, investigating, and resolving grievances squarely and only on the member-employers and the Union. PMA is not directly involved. Thus, we do not think that the power conferred to PMA in its own bylaws vests PMA with the power to, as the dissent suggests, make wholly independent grievance investigations and fashion appropriate remedies when that is not the procedure the CBA contemplates. Indeed, if the general supervisory power contained in the bylaws acted as the vast bastion of responsibility and liability that the dissent suggests, PMA would be liable for any deviation from the CBA by any of its member-employers if PMA did not suspend or expel the offending member-employer from PMA.

If this reasoning were adopted it would rob the CBA grievance procedures of any real meaning because, according to the dissent's logic, PMA would always have a duty independent of the CBA to conduct its own investigation and resolution because of its power under PMA bylaws to monitor compliance with the rules and policies established by the CBA. This is not what the CBA and PMA bylaws state, let alone contemplate, and thus we reject this creative judicial attempt — not even presented by the Plaintiffs — to impose blanket responsibility on PMA when in fact no such responsibility exists.

5 . Because the parties' initial briefs focused exclusively on the applicability of the integrated enterprise test, we sua sponte ordered supplemental briefing on the possible liability of PMA under the theory espoused by our colleague in dissent. In response, PMA conceded that it was an "employer” of its own employees for Title VII purposes, but not of the Plaintiffs or other longshoremen.

6 . The dissent's characterization of PMA's power of "general supervision on the waterfront" (emphasis added) is unsupported by the record. It is undisputed that, other than at the hiring hall, all other facilities and work sites where racial harassment allegedly took place are controlled and supervised by the member-employers.

7 . The dissent's statement that PMA not only had the power, but the "duty to receive, investigate, and mediate worker grievances" (emphasis added), is simply wrong under the relevant documents which created the organization and defined its relationship to the employers, the Union, and the longshoremen.