United States Court of Appeals

Fifth Circuit



## FILED

January 24, 2006

Charles R. Fulbruge III

Clerk 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,

Plaintiff - Appellant,

versus

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.2

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 P ilot’s Association

(“Cresc ent”), 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 respec t ive pilot apprenticeship programs

because he was too old under their membership qualifications. The3

District Court granted summary judgment in these separately filed

actions to NOBRA, Crescent, and the Cresc ent 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 th erefore 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.1 Bar pilots and their association are not at issue in th i s

case.

4 The Louisiana portion of the Mississippi River is divided into

three zones. S ee generally Hendrix v. Louisiana Pub lic Service

Commission

, 263 So.2d 343, 345 (1972). “Bar pilots” or “associated

branch pilots” guide vessel s in and out of the entrance of the

Mississippi River betwe en Pilottown and the Gulf of Mexico. 1 L A

.

R EV

. S TAT

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

between Pilottown and New Orleans. L A

. R EV

. S TAT

. § 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. L A

. R EV

. S TAT

. § 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 t he 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 regula tions, and with such requirements as

they shall have provided,” to certify to th e Governor that

applicants are qualified to be river port pilots. L A

. R EV

. S TAT

. §

34:991, 993. The Board of Examiners for the New Orleans and Baton

Rouge Steamship Pilots (“NOBRA Board”) is similarly authorized to2 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 certify qualified applicants to the Governor to be New Orleans and

Baton Rouge Steamship Pilots. L A

. R EV

. S TAT

. § 34:1042, 1045. Each

of these boards is comprised of three citizens holding commissions

for the appropriate stretch of the river. L A

. R EV

. S TAT

. § 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 apprenticesh ip program. L A

. R EV

. S TAT

. § 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. L A

. R EV

. S TAT . § 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 “must6

not have reached his f ortieth birthday prior to the first day o f

balloting on apprentices by the river port pilots.” L A

. A DMIN

. C ODE

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

requires that the individual “shall not have reached his or her

forty-fifth birthday be fore being commissioned.” L A

. A DMIN

. C ODE

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

certificatio n 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

apprentices hip 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. L A

. A DMIN

. C ODE tit. 46, § 6107(L ) (2003). Upon

completion of the apprentic eship program, the boards examine the

apprentices as to their knowledge of pilotage and their proficiency

and capability to serve as commissioned pilots. L A

. A DMIN

. C ODE tit.3 The NOBRA Board’s regulations provide that an applicant “must

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

Rouge Steamshi p Pilots Association as per Association rules in

effect as of such application.” L A

. A DMIN

. C ODE ti t. 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, al l 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

pilot s

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

for Port of New Orleans

, 25 So.2d 527, 755- 58 (1946), a ff’d 330

U.S. 552 (1947).

7 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. L A

. R EV

. S T AT

. §§ 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

. . . .” L A

. R EV

. S TAT

.

§ 34:995; L A

. R EV

. S TAT

. § 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

Cre scent and NOBRA are incorporated under the laws of8

Louisiana as non-profit corporations. L A

. R EV

. S TAT

. § 12:201 e t

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

sharehold ers 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.

NO BRA’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,

Louisi ana, 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 this9 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 busine ss 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 p iloting. 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

A

Despite the com p lexity of the interrelationships and the

working arrangements among the associations and the pilots, the

facts unde rlying 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 of4 Additional f acts 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. S ee 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). T he District

Court did not address whether Coleman estab lished a p rima facie

case of age discrimination.

10 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 w as forty-nine years old. NOBRA

requires that an applicant “not [ha ve] 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 birthd ay prior to the day of the first ballot for his

election as an apprentice.”

B

After filing an EEOC charge against NOBRA and receiving a

right-to-sue letter, Coleman filed an action against NOBRA alleging11

that the association unlawfully discriminated against him on the

basis of his age in violation of the ADEA by failing to elect him

i nto 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

t he meaning of the ADEA. C oleman 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 E hret

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. E hret

, 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. M cKeithen 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 separat e 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” or5 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

inj ustice of the District Court’s error in granting summary

judgment to defendants.

12 “joint employers.” Relying on the same reasoning as the opinion in

the NOBRA proceeding, the District Court granted Crescent and the

Crescent Board summ ary judgment. C oleman 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. H all 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 a nd that the

moving party is entitled to judgment as a matter of law.” F E D

. R.

C IV

. P. 56(c).

A

(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 prohib its certain practices by employers,13

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 agai nst 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 fo r 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 e xpel 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 opport unities, 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. § 6 23(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,” “employm ent agency,” and “labor

org anization.” S ee 29 U.S.C. § 630. If an entity is not an6 C oleman does not assert that the Crescent Board is a n

employer standing alone, but rather that the Crescent Board is only

subject to the ADEA as a joint employer with Crescent.

14 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 6 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 organizatio ns” under the ADEA.

Coleman has not made such an assertion, but at first glance, NOBRA

and Crescent share characteristics with e mployment agencies and

labor organizations as they are commonly understood. The

dispatching function of the assoc iations, 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 grievanc es, 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, its15

reference is only to explain that a labor organization is “deemed

t o be in an industry affecting commerce if (1) it maintains or

operates a hiring h all 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 d efined 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 Crescen t are e mployers of their member

pilots. The ADEA defines an “employer” as “a person engaged in an

industry affecting commerce who has twenty or mor e 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 determining7 The terms “employer” and “empl oyee” 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. S ee

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 E hret ’s multifactor right-to-control analysis to hold t hat the pilots are not

employees of the associations. Coleman asserts that E hret is no

longer controlling l aw because the post- E hret 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 procee d against operators of

similar apprenticeship programs for violations of the ADEA. S ee

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 whether a particular entity is in fact an employer; the statute

simply defines “employee” as “an indi vidual 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. 8Rouge 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

tha t 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 J oint Apprenticeship

Committee is not to the contrary because it simply assumed that an

employer-employee relationship existed. 186 F.3d at 115.

17 (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 somewh at different path, however. In C lackamas

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 specific ally 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:18

(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

organization

(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 the19

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 th e 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 c ommand in the

performance of their work

-- the individual pilot gives navigation

advice independently according to h is 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 as sociation and in shareholder-approval votes. Thus, the

pilots exert substantial influence over the general management of

the association as well as th e 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

individua l pilot be an employee. Clearly not. Each of the

charters of NOBRA and Crescent makes unequivocal that no employment20

relationship is intended; the s e 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

g ood) 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. S e e McKeithen

, supra

. Further, the associations’

charte rs 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 that21

the associations, along with the NOBRA and Crescent Boards and the

gove rnor, play an almost monopolistic gate-keeper role in

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

t rue that the associations (through their members) set rules and

regulations directly affecting the daily wo rk of each pilot.

Nevertheless, if Clackama s is our guide, t he 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 r e lationships 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 t o 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.

B

Coleman does not assert that the Crescent Board itself is an22

“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.

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

granting summary judgment to the Crescent Board because it is not

an employer under the meaning of the ADEA.

IV

Based on the foregoing considerat ions, which are, of

necessity, narrowly bound to the un ique qualities of the pilots’

associations presented here, the District Court’s grants of summary

judgment are

AFFIRMED.