United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS January 24, 2006 FOR THE FIFTH CIRCUIT _____________________ Charles R. Fulbruge III Clerk No. 04-30666 _____________________
TERRY C. COLEMAN,
Plaintiff - Appellant,
versus
NEW ORLEANS AND BATON ROUGE STEAMSHIP PILOTS’ ASSOCIATION,
Defendant - Appellee. _____________________
No. 04-30700 _____________________
CRESCENT RIVER PORT PILOTS ASSOCIATION, INC.,
Defendant - Appellee. _________________________________________________________________
BOARD OF RIVER PORT PILOTS COMMISSIONERS,
Defendant - Appellee. _________________________________________________________________
Appeals from the United States District Court for the Eastern District of Louisiana _________________________________________________________________
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. seq. The question is difficult and
yields no straightforward answer. The defendant associations are
long-standing, peculiarly conducted institutions recognized by
statute, owned and governed by their member pilots, and serving as
a sort of clearinghouse and dispatching 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
employment-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 discriminated against him on the basis of his age in
violation of the ADEA. They did so, he claims, by refusing to
elect him into their respective pilot apprenticeship programs
because he was too old under their membership qualifications. The
2 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 therefore 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 meaning 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.
I
In our effort to determine whether any of the defendants 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 examiners, and pilots’ associations in the
operation of the pilot apprenticeship programs. Only then can we
fully understand the organizational structure of the defendant
pilots’ associations and its bearing on the question of liability
under the ADEA.
A
Louisiana state law requires that local pilots guide foreign
ships along Louisiana waterways, including the Mississippi River.
3 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.1 LA.
REV. STAT. § 34:941, et. seq. “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. seq. An
individual who wishes to serve as a pilot in any of these zones
must receive a commission from the Governor of Louisiana entitling
him 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 regulations, 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. STAT. §
34:991, 993. The Board of Examiners for the New Orleans and Baton
Rouge Steamship Pilots (“NOBRA Board”) is similarly authorized to
1 Bar pilots and their association are not at issue in this case.
4 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
for the appropriate stretch of the river. LA. REV. STAT. § 34:991,
1042. The Governor appoints individuals to serve on the
commissions. Id.
An individual must first petition the appropriate board for a
determination of his qualifications.2 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 apprenticeship 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
2 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.
5 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).
An individual applying to be an apprentice first submits his
application to the appropriate board of commissioners/examiners for
certification that the individual is a qualified apprentice
candidate. Because apprenticeships must be completed under the
supervision of a commissioned 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 apprenticeship 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.
6 46, § 6107(M)(2) (2003). If the board deems the apprentice
qualified, the board certifies the apprentice to the Governor for
commissioning. The Governor may then appoint, in his discretion,
the individual to an existing vacancy. LA. REV. STAT. §§ 34:993,
1045.
B
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 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.3
Crescent and NOBRA are incorporated under the laws of
3 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).
7 Louisiana as non-profit corporations. LA. REV. STAT. § 12:201 et
seq. Crescent’s Charter provides that the objects and purposes of
the corporation are, in relevant part:
To provide efficient means for dispatching Crescent River Port Pilots to ships and vessels assigned and requiring the services of such pilots on an equitable basis, providing for the collection and disbursement of fees and charges of whatsoever nature and kind incident to the performance of such services, and making distribution thereof among the shareholders of this corporation after deducting all legitimate and approved expenses of the operation of same.
To provide for a pension and welfare plan for retired shareholders of this corporation, and for their families.
***
To inculcate, secure and maintain skill, discipline, merit and efficiency in the pilots engaged in piloting vessels over the pilotage waters assigned to the Crescent River Port Pilots, promoting 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 including 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 efficiency in the pilots engaged in this
8 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 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.
II
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 experienced ship captain who sought to
become a commissioned pilot on the NOBRA and Crescent stretches of
9 the Mississippi River.
Coleman submitted an application for the apprenticeship
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, Coleman was forty-nine years old. NOBRA
requires that an applicant “not [have] reached his forty-fifth
(45th) birth date.”
Coleman also submitted an application for the apprenticeship
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.4 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
4 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 establishment 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.
10 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 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 vicariously 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
summary judgment arguing in part that they are not “employers” or
11 “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. Coleman v. Crescent River Port
Pilot’s Association, Inc., 2004 WL 1278005 (E.D. La. June 8, 2004).
Coleman now appeals both judgments.5 Thus, we have before us
the two appeals presenting mutually dispositive issues.
III
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 arbitrary age
discrimination in employment. 29 U.S.C. § 621(b). To accomplish
this purpose, the ADEA prohibits certain practices by employers,
5 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.
12 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 otherwise to 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.
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 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 individual of employment opportunities, or would limit such employment opportunities or otherwise 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 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
13 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 Crescent6 and NOBRA
are entities that are subject to the prohibitions of the ADEA. The
answer to this question is not 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 assertion, 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 employment . . . .” 29
U.S.C. § 630(d). Although the ADEA refers to hiring halls, its
6 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.
14 reference is only to explain that a labor organization is “deemed
to be in an industry affecting 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 authority for deeming pilots anything other
than independent 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 associations
and labor organizations/employment agencies, because of the ADEA
definitions of the two types of entities, 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
15 whether a particular entity is in fact an employer; the statute
simply defines “employee” as “an individual employed by any
employer . . . .” 29 U.S.C. § 630(f).7
The circular language defining “employer” at least states
clearly that an entity must employ twenty or more employees to
satisfy the ADEA definition of employer. Whether Crescent or NOBRA
has more than twenty employees depends entirely on whether the
pilots are 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.8
7 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 ADEA. See Fields v. Hallsville Indep. School Dist., 906 F.2d 1017, 1020 n.7 (5th Cir. 1990), cert. denied, 498 U.S. 1026 (1991). 8 As noted above, the District Court relied on Ehret’s multi- factor right-to-control analysis to hold that the pilots are not employees of the associations. Coleman asserts that Ehret is no 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
16 (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 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 shareholder, or
director qualifies as an employee. Given the relationship between
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 employee of the organization:
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 employee shall have the meanings set forth in § 11 of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. 621 et. seq. . . . .” 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.
17 (1) Whether the organization can hire or fire the individual
or set the rules and regulations of the individual’s work
(2) Whether, and if so, to what extent the organization
supervises the individual’s work
(3) Whether the individual reports to someone higher in the
(4) Whether, and if so, to what extent the individual is able
to influence the organization
(5) Whether the parties intended that the individual be an
employee, as expressed in written agreements or contracts
(6) Whether the individual shares in the profits, losses, and
liabilities of the organization.
Id. at 449-50. We now apply these Supreme Court/EEOC factors to
the pilots’ relationship to the defendant associations.
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. Certainly, 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 profession; 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
18 vessel can refuse the services of a particular 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 the entire
body of shareholders of their respective associations. Each pilot
holds an equal share and participates in the election of directors
of the association and in shareholder-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 unequivocal that no employment
19 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 times 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 independently 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 associations are not
responsible for debts or faults of their members. This factor also
weighs against labeling the pilots ADEA employees.
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 employee fail to describe the character of the
power that the associations exercise. It is certainly true that
20 the associations, 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 relationships 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 employees, 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.
Coleman does not assert that the Crescent Board itself is an
21 “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 employer of pilots under the ADEA, it follows
that the Crescent Board cannot be a joint employer with Crescent.
granting summary judgment to the Crescent Board because it is not
an employer under the meaning of the ADEA.
IV
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.