United States Court of Appeals,

Fifth Circuit.

Nos. 91–2493, 91–6043.

Richard L. BRITT and Timothy Jackson, Jr., et al., Plaintiffs–Appellants,

v.

The GROCERS SUPPLY COMPANY, INC., Defendant–Appellee,

James E. HAMILTON, et al., Plaintiffs–Appellants,

v.

The GROCERS SUPPLY COMPANY, INC., Defendant–Appellee.

Dec. 15, 1992.

Appeals from the United States District Court for the Southern District of Texas.

Before REAVLEY, HIGGINBOTHAM, and DUHÉ, Circuit Judges.

DUHÉ, Circuit Judge:

These two cases were consolidated on appeal, but tried separately. Both suits were brought

by groups of former employees of Grocers Supply Company. The Britt plaintiffs appeal the district

court's holding that the National Labor Relations Act, 29 U.S.C. § 151–187 (1988), preempts claims

of age discrimination asserted under the Age Discrimination in Employment Ac t, 29 U.S.C. §

621–634 (1988). They also appeal the district court's granting summary judgment on the merits of

their age discrimination claims. 760 F.S. 606. The Hamilton plaintiffs appeal the district court's

granting a directed verdict in favor of the defendants on the plaint iff's age discrimination claims. They

also appeal the district court's granting summary judgment on their claims of breach of contract and

intentional infliction of emotional distress and duress. The defendant, Grocers Supply, argues that

the Britt plaintiffs' notice of appeal is insufficient under Rule 3(c) of the Federal Rules of Appellate

Procedure. We find that the Age Discrimination in Employment Act (ADEA) controls this litigation

and not the National Labor Relations Act (NLRA) and that notice of appeal by the Britt plaint iffs was

sufficient under Rule 3(c) and its interpretation in Torres v. Oakland Scavenger Co., 487 U.S. 312,

108 S.Ct. 2405, 101 L.Ed.2d 285 (1988). Additionally, we find no error in the summary judgment1 For simplicity purposes, the plaintiffs in each case will be referred by the named individual

plaintiffs, Britt and Hamilton. in the Britt case, nor do we find error in the directed verdict or summary judgment in the Hamilton

case. In sum, we disagree with the district court on the preemption issue but affirm its judgment.

STATEMENT OF FACTS

T he underlying facts in both cases are the same. In December 1986, the work force of

Grocers Suppl

y Co mpany, a Texas Corporation, went on strike after contract negotiations broke

down. The work force consisted primarily of employees over forty years old. Grocers Supply

immediately hired replacement workers to continue its operations. The replacement workers were

told that their positions were temporary; sometime before the end of the strike, however, Grocers

offered them permanent positions. Negotiations failed, and in April 1987, the striking workers made

an unconditional offer to return to work. The Union explained to the workers that they could return

to work only when Grocers needed them. In fact, Grocers and the Union negot iat ed a "recall"

agreement to govern the order of recall as vacancies occurred. The Hamilton plaintiffs contend that

this offer to return to work was made in response to a promise by Grocers that if the workers would

return unconditionally, they would all be rehired within a few weeks.

Very few of the former workers were ever recalled. Grocers maintains that it simply had few

hiring needs during this period due to the low turnover and increased productivity of its new workers.

The Plaint iffs assert that the slow rehiring and the undesirability of those jobs offered was

purposefully orchestrated to reduce the age of the work force and to encourage ol der workers to

retire and take their retirement benefits.

Two groups of workers sued Grocers as a result of their failure to be recalled. Richard L.

Britt and Timothy

Jackso n, Jr., individually and on behalf of others similarly situated, with 126

additional plaint iffs opting in, 1 assert only an ADEA claim. They contend that their "permanent

replacement" was a sham and that they were refused reinstatement because of their age. The district

court granted summary judgment on this claim based on two grounds. First, the court held that the

ADEA claim was preempted by the N LRA. Second, t he district court held that Britt failed todemonstrate a genuine issue of material fact on the discrimination claim sufficient to survive summary

judgment.

James E. Hamilton, et al. assert an ADEA claim, a 29 U.S.C. § 301 breach-of-contract claim,

and state law claims of intentional inflict io n o f emotional distress and duress. The district court

granted summary judgement for Grocers on both the § 301 contract claim and the state law claims.

The ADEA claim went to trial, but the district court di rected a verdi ct for Grocers at the cl

ose of

Hamilton's evidence.

DISCUSSION

I. Notice of Appeal.

Before addressing other issues, we must address whether the Notice of Appeal for the Britt

plai nt iffs is sufficient. Grocers contends that the notice is insufficient to satisfy the specificity

requirement under Federal Rule of Appellate Procedure 3(c) and its interpretation under Torres v.

Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988).

Rule 3(c) provides that a notice of appeal "shall specify the party or parties taking the appeal."

In Torres, the Supreme Court interpreted FRAP 3(c) strictly and held that the designation " et al. " in

the notice of appeal rather than the name of the appealing party resulted in a failure of that party to

appeal, thus depriving the appellate court of jurisdiction.

"The purpose of the sp e cificit y requirement of Rule 3(c) is to provide notice both to the

opposition and to the court of the identity of the appellant or appellants." T orres, 487 U.S. at 318,

108 S.Ct. at 2409. The problem facing the Supreme Court in T orres was that the use of et al., with

no t hing further, left it uncertain which parties were taking the appeal. The Court held t hat t hus

designating the appealing parties "would leave the appellee and the court unable to determine with

certitude whether a losing party not named in the no t ice o f appeal should be bound by an adverse

judgment." Id. The Court, however, went on to state that the specificity requirement of Rule 3(c)

may be met "by some designation that gives fair notice of the specific individual or entity seeking to

appeal." Id.

The plaint iffs i n t he Britt case consist of the original named plaintiffs, Richard Britt and2 Grocers also argues that the notice is uncertain because it refers to 129 opt-in plaintiffs and in

reality only 126 persons had opted into the action. Apparently, the 129 was a typographical error.

This argument is without merit. If "all 129" were appealing, it follows that the 126 plaintiffs that

Grocers was aware of were all appealing. Timothy Jackson, and another 126 opt-i n plaint iffs under 29 U.S.C. § 216(b). The Notice of Appeal

was styled "Richard L. Britt and Timothy Jackson, Jr., et al." The body of the notice, however,

identified the remaining appellants as "all other 129 consenting Plaintiffs who have previously filed

their written consent pursuant to 29 U.S.C. Section 216(b)." 2 Because the notice in this case states

that all of a pa rt icular defined group are taking an appeal, and the individual identities are readily

ascertainable in the record, the specificity requirement is satisfied. Such a designation is sufficient

to give fair notice of the individuals appealing.

The cases relied on by Grocers involve situations in which the unnamed appellants could be

included only if the term "et al.", with nothing further, was considered specific enough to satisfy Rule

3(c). The Notice of Appeal in this case is distinguishable. The plaintiffs, other than the two named

plaint iffs, were cle arly identified as those parties "who filed their written consent" as required by

Section 216(b). Their identities are in the record. Rule 3(c) does not require that all the plaintiffs be

identified by given and surname in the notice of appeal. This Court has stated that it "has looked to

the purpose rather than the letter o f Rule 3(c)'s specificity requirement" when determining the

sufficiency of a notice of appeal. B rotherhood of Ry. Carmen v. Atchison, T. & S.F. Ry., 894 F.2d

1463, 1465 n. 3 (5th Cir.), cert. denied, ––– U.S. ––––, 111 S.Ct. 131, 112 L.Ed.2d 99 (1990).

Additionally, this Court has recognized that in some circumstances even the designation "et

al." is sufficient to identify the parties. In P ope v. Mississippi Real Estate Commission, 872 F.2d 127,

129 (5th Cir.1989), this Court held that the use of "et al." is sufficient if there are only two parties

to the suit. Thus, it is not necessary to list the names of each appealing party, as long as there can

be no mistake about which parties ar e int ending t o appeal. If papers are filed in a fashion that is

technically at variance with the letter of a procedural rule, a court may nonetheless find that the

litigant has complied with the rule if the litigant's action is the functional equivalent of what the rule

requires. S ee Torres, 487 U.S. at 317, 108 S.Ct. at 2408; s ee also Houston v. Lack, 487 U.S. 266,3 If the NLRA preempts the ADEA, then primary jurisdiction of this dispute lies with the

NLRB and not the courts. 273–75, 108 S.Ct. 2379, 2383–84, 101 L.Ed.2d 245 (1988). Unlike the defendant in T orres, Grocers

had fair notice of the identity of t he Appellant s. Consequently, its argument that this Court lacks

jurisdiction over Britt's appeal must fail.

II. The Preemption Issue.

Turning to the question whether this Court has jurisdiction over th e age discrimination

claims, we hold that this Court does have jurisdiction to hear the claims assert e d under the Age

Discrimination in Employment Act (ADEA). 3 More specifically, we hold that, to the extent the age

discrimination claims encompass conduct that is arguably covered by the National Labor Relations

Act, the ADEA governs the prosecution of those claims and not the NLRA.

The issue of the jurisdiction of this Court was raised on appeal in the Britt case. Although

not raised by the Hamilton plaint iffs, it is our duty to determine, sua sponte, if necessary, whether we

have jurisdiction over any case before us. G riffith v. Johnston, 899 F.2d 1427, 1429 (5th Cir.1990),

cert. denied,

––– U.S.

––––, 111 S.Ct. 712, 112 L.Ed.2d 701 (1991); M orales v. Pan American Life

Ins. Co., 914 F.2d 83 (5th Cir.1990). Therefore, our decision on this issue affects the disposition of

both cases on this appeal.

A. Preemption Analysis

Whether the NLRA preempts the ADEA, or vice versa, is an issue of first impression before

this court. The district court in the Britt case determined, in a summary judgment proceeding, that

the plaint iffs' ADEA claims were preempted by the NLRA. The court alternatively held that, on the

merits of the ADEA claim, the plaint iffs failed t o establish a genuine issue of fact and granted the

defendant's motion for summary judgment. The defendants in the Hamilton case also argued that the

NLRA preempted t he ADEA; however, the district court overruled this argument without

explanation. The plaintiffs later lost on the ADEA claims by a directed verdict.

The district court in Britt, in determining that the NLRA preempt ed t he ADEA, relied on

Sears, Roebuck & Co. v. San Diego County District Council of Carpenters, 436 U.S. 180, 98 S.Ct.4 See 2 Charles J. Morris, The Developing Labor Law 1504–1598 (2d ed. 1983); Charles J.

Morris, The Developing Labor Law : 1982–1988, 650–690 (2d ed. Supp. V 1989).

5 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). This type of preemption is called

"Garmon" preemption.

6 Lodge 76, International Ass'n of Machinists & Aerospace Workers v. Wisconsin Employment

Relations Comm'n, 427 U.S. 132, 140, 96 S.Ct. 2548, 2553, 49 L.Ed.2d 396 (1976). This ty pe of preemption is sometimes called "Machinist" preemption. 1745, 56 L.Ed.2d 209 (1978). We believe, however, that such reliance is misplaced. Moreover,

Grocers' application of the preemption doctrine in its argument on appeal is also flawed.

The preemption doctrine in labor law has evolved for more than three de cades around a

conceptual core with various appendages. 4 An initial line of preemption analysis, developed in S an

Diego Building Trades Council v. Garmon 5 and its progeny, was based predominantly on the primary

jurisdiction of the National Labor Relations Board (NLRB). A second line of analysis also developed

in cases "focusing upon the crucial inquiry whether Congress intended that the conduct involved be

unregulated because [it has been] left "to be controlled by the free play of economic forces.' " 6 The

resulting preemption doctrine reflects th e Supreme Court's efforts to accommodate conflicting

regulatory schemes without the need to take a strictly mechanistic approach to the discrete problems

involved.

The preemption doctrine is anchored in the Supremacy Cla use of the Consti tuti on. In

determining the areas of labor law in which the states have overstepped their bounds, the Supreme

Court has focused on Congress' actual regulation of labor relations rather than Congress' potential

power to regulate in this area.

Since the enactment of the NLRA, the Supreme Court has justif ied t he results of its

preemption decisions in term s o f perceived congressional intent to preempt, although the Act

provides no specific guidance for applying this principle to individual instances of regulatory conflict.

As the theory of preemption has evolved, the more recent cas es reflect the difficulty of discerning

congressional intent and instead appear to have been decided upon considerations of labor relations

policy. See Windfield v. Groen Div., Dover Corp., 890 F.2d 764, 766–68 (5th Cir.1989).

As state d in Windfield, the courts have carved out several significant exceptions to the7 Although the Court calls this an exception to the preemption doctrine, the analysis is more

comparable to that of Hood v. Smith's Transfer Corp., 762 F.Supp. 1274 (W.D.Ky.1991),

discussed infra, which candidly recognized that the preemption doctrine does not apply in

situations where two federal statutes conflict.

8 In United States v. International Brotherhood of Teamsters, 948 F.2d 98 (2d Cir.1991),

vacated sub nom. Yellow

Freight Systems, Inc. v. United States, ––– U.S. ––––, 113 S.Ct. 31,

––– L.Ed.2d –––– (1992) (No. 91–1938), the court determined that the district court was entitled

to exercise jurisdiction over the parties pursuant to the All Writs Act, 28 U.S.C. § 1651 (1988),

and was not preempted from that jurisdiction by the authority of the NLRB to determine issues

concerning unfair labor practices under the NLRA. The following excerpt illustrates the

inapplicability of the traditional preemption analysis when two federal statutes are involved.

[Appellant] contends that the conduct at issue in this case is directly

regulated by sections 7 and 8(a)(1) of the NLRA ... and accordingly that the

NLRB has exclusive jurisdiction with respect to it. In this connection, San Diego

Building Trades Council v. Garmon, ... a case involving attempted state regulation

of conduct constituting an NLRA unfair labor practice, stated that "[w]hen an

activity is arguably subject to § 7 or § 8 of the [NLRA], the States as well as the

federal courts must defer to the exclusive competence of the [NLRB] if the danger

of state interference with national policy is to be averted." ...

This rule, however, is not uniformly applied even as to state regulation.

See, e.g., Sears Roebuck & Co. v. San Diego County Council of Carpenters

... (enforcement of state trespass laws by state court allowed as to "picketing which is

arguably—but not definitely—prohibited or protected by federal law").

Furthermore, where federal laws and policies other than the NLRA are implicated,

the Garmon rule is frequently considered inapplicable. See, e.g., Breininger v.

Sheet Metal Workers Int'l Ass'n Local Union No. 6, 493 U.S. 67, 110 S.Ct. 424, preemption doctrine. One such exception is the "collateral issue" exception. In C onnell Construction

Co. v. Plumbers & Steamfitters Local Union No. 100, 421 U.S. 616, 626, 95 S.Ct. 1830, 1836, 44

L.Ed.2d 418 (1975), the Court hel d that a f ederal antitrust law was not preempted by the NLR A

under the collateral issue exception. Under G armon, however, state antitrust law was preempted.

The Court held that "the federal courts may decide labor law questions that emerge as collateral

issues in suits brought under independent federal remedies ." I d. at 626, 95 S.Ct. at 1837. As an

independent federal remedy, the ADEA falls under this exception. 7 Traditional preemption analysis,

however, is still not quite satisfactory.

B. Preemption and Conflicts betw een Federal Statutes

Because the root of the preempt ion doctrine lies in the tension between federal and state

regu lat ion of labor relations, the analysis of the tension between two conflicting federal statutes is

somewhat different. A number of cases reflect this awareness. 8 In U nited States v. Boffa, 688 F.2d107 L.Ed.2d 388 (1989) ... (district court had jurisdiction to hear fair

representation claim although union's breach of duty of fair representation might

violate § 8(b) of the NLRA); International Bhd. of Boilermakers v. Hardeman,

401 U.S. 233, 237–39, 91 S.Ct. 609, 612–13, 28 L.Ed.2d 10 (1971) (district court

had jurisdiction to hear claim that unlawful expulsion from union violated §

101(a)(5) of Labor–Management Reporting and Disclosure Act ... although

expulsion was arguably an unfair practice violative of §§ 8(b)(1)(A) and 8(b)(2) of

NLRA); ... United States v. Boffa, 688 F.2d 919, 931 (3d Cir.1982) (in RICO

prosecution alleging mail fraud predicates and substantive mail fraud violations,

prohibitions of defendants' conduct by § 8 of the NLRA would not preclude

"enforcement of a federal statute that independently proscribes that conduct"),

cert. denied, 460 U.S. 1022, 103 S.Ct. 1272, 75 L.Ed.2d 494 (1983). Here,

although the appointed officials are directly applying the NLRA rather than some

separate body of law, considerations that we have previously recognized with

respect to the Consent Decree argue compellingly for a ruling against exclusive

NLRB jurisdiction.

Id. at 105 (emphasis added) (some citations omitted).

9 We have recognized that Title VII and the NLRA are statutes with separate and independent

remedies. See Guerra v. Manchester Terminal Corp., 498 F.2d 641, 658 (5th Cir.1974), 919 (3d Cir.1982), cert. denied, 460 U.S. 1022, 103 S.Ct. 1272, 75 L.Ed.2d 494 (1983), the issue

was whether the doctrine of primary jurisdiction operated to displace a federal criminal statute that

independ ent ly prohibited conduct that is also arguably prohibited by the NLRA. In rejecting

preemption by the NLRA, the court stated "the doctrine of primary NLRB jurisdiction is of

constitutional dimension; it is grounded, at least in part, upon considerations of federal supremacy....

No such constitutional concerns are implicated when a federal criminal statute is said to impinge upon

the primary jurisdiction of the NLRB." Id. at 932.

Hood v. Smith's Transfer Corp., 762 F.Su pp. 1274 (W.D.Ky.1991), provides the most

comprehensive discussion of the preemption doctrine and its relation (or lack thereof) to the analysis

of two conflicting federal statutes. In holding that the preemption doctrine has no application when

two federal statutes conflict, the court determined that the ultimate resolution of the issue depended

upon whether: "(1) the unfair labor practices alleged by defendants are merely collateral to plaintiffs'

non-NLRA federal claims and (2) plaint iffs' non-NL RA federal claims arise under statutes which

provide independent federal remedies ." Id. at 1283. In the case we are considering the plaintiffs'

non-NLRA federal claims arise under the ADEA which provides an independent federal remedy.

Additionally, we have held that claims under Title VII are not preempted by t he NLRA. 9overruled on other grounds by Bhandari v. First Nat'l Bank of Commerce, 829 F.2d 1343 (5th

Cir.1987), vacated, 492 U.S. 901, 109 S.Ct. 3207, 106 L.Ed.2d 558 (1989), reinstated on

remand, 887 F.2d 609 (5th Cir.1989), cert. denied, 494 U.S. 1061, 110 S.Ct. 1539, 108 L.Ed.2d

778 (1990). The Guerra panel noted that

though Title VII and the NLRA may overlap in the area of employment

discrimination, their confluence must not be exaggerated.... [A] plaintiff does not

lose his right to an adjudication regarding the causes of action created by Title VII

... simply because the conduct of which he complains also offends section 8 of the

NLRA.

Guerra, 498 F.2d at 658 n. 46.

10 Guerra, 498 F.2d at 651 n. 20, and cases cited therein. Because of the cases holding that the

ADEA is the exclusive remedy for age discrimination claims and those cases rejecting an analogy

between Title VII and the ADEA, we decline to hold that the courts under the ADEA and the

NLRB have concurrent jurisdiction over these claims. These cases hold that a remedy is available under both the NLRA and Title VII and recognize

concurrent jurisdiction between Title VII and the NLRA. 10

As evidenced by the discussion abov e, t radit ional preemption analysis does not apply in a

conflict between two federal statutes.

C. Hobbs v. Haw kins

The most recent case in this Circuit to apply the preemption doctrine is Hobbs v. Hawkins,

968 F.2d 471 (5th Cir.1992). The analysis in H obbs, however, is inappli cable in this case. This

decision holds that a claim under 42 U.S.C. § 1983 is preempte d by the NLRA. H obbs employs

traditional preemption analysis which considers the relationship between federal and state regulation

of labor relations rather than addresses the problems involved with conflicting federal statutes. H obbs

is unique, however, because the plaint iff's claims arose specifically under the NLRA (§ 7, § 8 and §

9), and were asserted as such. The plaintiff merely tried to enforce these NLRA claims through §

1983.

Section 1983 does not create substantive rights, but was designed to provide a remedy for

violations of other statutory as well as constitutional rights. Many cases hold that, where Congress

has enacted a statute that covers a specific substantive area providing specific remedies, a cause of

action under § 1983 is foreclosed. In the case at hand, the ADEA covers a specific substantive area

of the law and provides a specific remedy for violations of the statute. As a result, a number of casesalso hold tha t an age discrimination claim brought under § 1983 is preempted by the ADEA.

Therefore, contrary to Grocers' assertions, the analysis in Hobbs does not control in this case.

D. The Exclusivity of the ADEA

Finally, a decision that the NLRA preempts the ADEA cannot be reconciled with the many

cases holding that the ADEA is the exclusive remedy for age discrimination c l aims. S ee White v.

Frank, 718 F.Supp. 592, 595 (W.D.Tex.1989), aff'd, 895 F.2d 243 (5th Cir.1990), cert. denied,

–––

U.S.

––––, 111 S.Ct. 232, 112 L.Ed.2d 192 (1990); P aterson v. Weinberger, 644 F.2d 521, 524–25

(5th Cir.1981); Z

ombro v. Baltimore City Police Dep't, 868 F.2d 1364, 1369 (4th Cir.1989), cert.

denied, 493 U.S. 850, 110 S.Ct. 147, 107 L.Ed.2d 106 (1989); R ay v. Nimmo, 704 F.2d 1480, 1485

(11th Cir.1983); R ing v. Crisp County Hosp. Auth. 652 F.Supp. 477, 482 (M.D.Ga.1987); D odson

v. U.S. Army Fin. & Accounting Ctr., 636 F.Supp. 894 (S.D.Ind.1986); M organ v. Humboldt County

School Dist., 623 F.Supp. 440 (D.C.Nev.1985); T ranello v. Frey, 758 F.Supp. 841

(W.D.N.Y.1991), aff'd, 962 F.2d 244 (2d Cir.1992), petition for cert. filed, 61 U.S.L.W. 3356 (U.S.

Sept. 29, 1992) (No. 92–704). This has been the holding in cases of both federal employment and

non-federal employment. Additionally, all of these cases hold that the ADEA preempt s another

federal statute.

In analyzing whether the ADEA preempted § 1983, t h e court in Ring v. Crisp County

Hospital Authority, supra, articulates the general rule: a precisely drawn, detailed statute preempts

more general remedies. Because of the comprehensive statutory scheme set out under the ADEA and

the lack of any legislative history indicating a contrary congressional intent, the Ring court concluded

that the ADEA is the exclusive remedy for age discrimination. The court rejected an analogy to Title

VII which has been held to allow an individual to pursue independently his rights under both Title VII

and other applicable state and federal statutes. The court found that unlike Title VII, nothing in the

legislative history of the ADEA indicated that Congress did not intend the ADEA to be the exclusive

remedy. "By establishing the ADEA's comprehensive scheme for the resolution of employee

complaints of age discrimination, Congress clearly intended that all claims of age discrimination be

limit ed to the rights and procedures authorized by the ADEA." R ing, 652 F.Supp. at 482. The courtconcluded that the ADEA provided the exclusive remedy for claims of age discrimination, whether

those claims are founded on the Constitution or on rights created by the ADEA. We agree.

In a similar analysis, the Fourth Circuit in Zombro v. Baltimore City Police Dept. noted that

"[t]he text and context of the ADEA itself confirm this conclusion [that ADEA is exclusive remedy]:

"T he provisions of this chapter shall be enforced in accordance with the powers, remedies, and

procedures, provided in sections 211(b), 216 ...' 29 U.S.C. § 626(b). Section 216 is a part of the Fair

Labor Standards Act (FLSA)

..., and it has been held that the statutory remedy of that section is the

sole remedy availabl e t o the employee for enforcement of whatever rights he may have under the

FLSA." 868 F.2d at 1369 (citing L erwill v. Inflight Mot ion Pictures, Inc., 343 F.Supp. 1027

(N.D.Cal.1972)). The court concluded that the provisions of the ADEA evidence congressional

intent to subject all age discrimination claims to the comprehensive statutory scheme clearly embodied

in the language and legislative history of the ADEA.

In discussing the procedural requirements of the ADEA, one federal district court stated:

The inescapable conclusion that is drawn from the foregoing is that if other modes of

enforcement were available to the private litigant, the congressional scheme behind ADEA

enforcement could easily be thwarted. An impatient plaintiff might unilaterally dispense with

the informa l negotiations contemplated by Congress, needlessly casting all concerned into

costly litigation. Congress did not intend to allow a plaintiff to bypass the statutory scheme

clearly embodied in the language of the ADEA. The only reasonable construction of the Act

is that the statute's remedy is exclusive.

McCroan v. Bailey, 543 F.Supp. 1201, 1209 (S.D.Ga.1982). In sum, based on (1) the above cases

holding that the ADEA is the exclusive remedy for age discrimination claims, (2) the cases holding

that traditional preemption analysis does not apply when two federal statutes confl i ct, and (3) the

inapplicabilit

y of extending the federal/state policy consider at io ns guiding traditional preemption

analysis to conflicts between federal statutes, we conclude that Congress intended the ADEA to be

the exclusive remedy for age discrimination claims. Accordingly, we disagree with the district court's

holding that the ADEA is preempted by the NLRA, and c onclude t hat this Court has jurisdiction

under the ADEA to entertain the plaintiffs' age discrimination claims.

III. Summary Judgment on Britt's ADEA Claims and Directed Verdict on Hamilton's ADEA Claims.

Having determined that this Cour t has jurisdiction over the age discrimination claims, wereview both the district court's granting of summary judgment in Grocers' favor on Britt's claims and

the district court's directin g a verdict in Grocers' favor on Hamilton's claims. After reviewing the

merits of the claims, we affirm the respective decisions of the district courts.

Summary judgment is appropriate if the record discloses "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). In reviewing the summary judgment, we apply the same standard of review as did the district

court. W altman v. International Paper Co., 875 F.2d 468, 474 (5th Cir.1989); M oore v. Mississippi

Valley State Univ., 871 F.2d 545, 548 (5th Cir.1989). The pleadings, depositions, admissions, and

answers to interrogatories, together with affidavits, must demonstrate that no genuine issue of

material fact remains. C elotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265

(1986). To that end we must "review the facts drawing all inferences most favorable t o t he party

opposing the motion." R eid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir.1986).

Finally, as the Suprem e Court stated i n A nderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct.

2505, 91 L.Ed.2d 202 (1986), "there is no issue for trial unless there is sufficient evidence favoring

the non-moving party for a jury to return a verdict for that party. If the evidence is merely colorable,

or is not significant ly probative, summary judgment may be granted." I d. at 256, 106 S.Ct. at 2514

(citations omitted). The Court also held that the standard of review for a directed verdict is the same

as that for review of a summary judgment. Id. at 250, 106 S.Ct. at 2511.

In addition, a reviewing court is not limit ed to the district court's reasons in affirming a grant

of summary judgment. This Court may affirm on grounds other than those relied upon by the district

court when the record contains an adequate and independent basis for that result. G uthrie v. Tifco

Indus., 941 F.2d 374, 379 (5th Cir.1991), cert. denied,

––– U.S.

––––, 112 S.Ct. 1267, 117 L.Ed.2d

495 (1992); Schuster v. Martin, 861 F.2d 1369, 1371 (5th Cir.1988).

When no direct evidence of age discrimination exists, the evidentiary procedure generally

adapted to the ADEA context is that announced by the Supreme Court in McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817 , 1824, 36 L.Ed.2d 668 (1973). S ee Bienkow ski v.

American Airlines, 851 F.2d 1503 (5th Cir.1988). Initially, the plaintiff must prove a p rima facie11 The district court in the Britt case held that a prima facie case consists of evidence that a

plaintiff (1) was discharged, (2) was qualified for the position, (3) was within the protected class

at the time of discharge, (4) was replaced by someone outside the protected class, or (5) by

someone younger, or (6) show otherwise that his discharge was because of age (citing

Bienkow ski, 851 F.2d at 1505).

The district court in the Hamilton case held that the plaintiffs could establish a

prima facie case by showing (1) the company refused to consider recall applications of

protected employees over forty years of age; (2) applications for recall were accepted

from workers under forty years of age; and (3) the protected workers were qualified for

the jobs.

Both the plaintiffs and Grocers each articulate a different version of what they

believe the correct test for establishing a prima facie case should be. case of age discrimination. The elements of a p rima facie case ar e hotly disputed i n these two

cases. 11 The elements of a prima facie case may be somewhat flexible in an ADEA case according

to the facts in issue. M

cCorstin v. United States Steel Corp., 621 F.2d 749 (5th Cir.1980). Because

we affirm the district courts on an alternative basis, it is unnecessary to resolve the issue of what the

proper elements of a prima facie case should be.

If the plaint iff proves his p rima facie case, a presumption of discrimination is established.

The burden of producti on then shifts to the defendant to rebut this presumption by articulating a

legitimate, nondiscrimi nat o ry reason for its disparate treatment of the plaintiff. I d. Finally, t

he

plaint iff must prove that the defend ant 's reaso ns are pretexts for unlawful discrimination either by

showing: (1) that a discriminatory reason more likely motivated the defendant or (2) that the

defendant's reason is unworthy of credence. T exas Dep't of Community Affairs v. Burdine, 450 U.S.

248, 253–56, 101 S.Ct. 1089, 1093–95, 67 L.Ed.2d 207 (1981). The plaintiff retains the burden of

persuading the fact finder that impermissible discrimination motivate d t he adverse employment

decision. Id.

Both Britt and Hamilton contend that Grocer's replacement of employees with others, some

of whom were allegedly younger, was motivated by the age of the strikers and violated the ADEA.

The district courts in both Britt and Hamilton held that the plaint iffs had failed to make out a prima

facie case under the act.

As this Court has stated "it is relatively easy both for a plaint iff to establish a prima facie caseand for a defendant to articulate a legitimate, non-discriminatory reason for his decision." A mburgey

v. Corhart Refractories Corp., 936 F.2d 805, 811 (5th Cir.1991). Because neither plaintiff can show

that the defendant's reasons for disparate treatment of the plaintif fs are pretexts for unlawful

discrimination, however, we see no need to rum mage through the arguments over whether the

plaint iffs have established a prima facie case. In the context of summary judgment or directed

verdict, the question is not whether the plaint iff proves pretext, but rather whether the plaint iff raises

a genuine issue of fact regarding pretext. B urdine, 450 U.S. at 256, 101 S.Ct. at 1095. Both Bri tt

and Hamilton fail to do so.

Grocers contends that its decision to convert the temporary employees into permanent

employees was motivated by several concerns: (1) its gratitude to these individuals for keeping the

company in operati on during the strike; (2) that these temporary employees were leaving to take jobs

elsewhere; and (3) striker misconduct. In the Britt case, the plaintiffs offered several affidavits in an

attempt to establish pretext. The evidence in these affidavits offered to show age-related employment

decisions consis t s o f what are at best characterized as stray remarks by three Grocers employees

concerning the age of the workers. This Court has ruled t hat similar statements are insufficiently

probative to create a jury issue in an ADEA case. G uthrie v. Tifco, 941 F.2d at 379; E lliott v. Group

Medical & Surgical Serv., 714 F.2d 556, 565 (5th Cir.1983), cert. denied, 467 U.S. 1215, 104 S.Ct.

2658, 81 L.Ed.2d 364 (1984); S tendebach v. CPC Int'l, Inc., 691 F.2d 735, 738 (5th Cir.1982), cert.

denied, 461 U.S. 944, 103 S.Ct. 2122, 77 L.Ed.2d 1302 (1983). These statements are insufficient

to show either that (1) a discriminatory reason more than likely motivated Grocers or (2) Grocers'

explanation is unworthy of credence.

The Hamilton plaint iffs relied on much the same evidence in presenting their case for trial as

did the Britt plaint iffs in the summary judgment proceeding. This evidence even considered with the

additional evidence adduced at trial is insufficient to rebut Grocers' reasons for failing to recall the

strikers. As the district court found, Grocers may have been reluctant to rehire these workers, but

the evidence is insufficient to establish that the reason for this reluctance was age discrimination.

Contrary to plaint iffs' assertions, Grocers was under no obligation to notify the plaint iffs that12 Plaintiffs complain that the recall offers were to frozen food selector positions, which they

claim are undesirable. they were being replaced. Nor does this lack of notification imply a bias based on age. Hamilton also

challenges Grocers' practice of refusing to recall anyone who resigned to obtain his benefits. The

theory is that Grocers coerced older workers into resigning to obtain their pension benefits, thereby

discriminating against these workers based on age. Nothing in the record supports this claim.

Additionally, we do not see how this practice harms older plaintiffs.

Hamilton asserts that the strikers were replaced because of their seniority and higher salaries,

and that such an action supports an inference of age discrimination. This Court, however, has stated

repeatedly that "[s]eniority and age discrimination are unrelated." W illiams v. General Motors Corp.,

656 F.2d 120, 130 n. 17 (5th Cir.1981), cert. denied, 455 U.S. 943, 102 S.Ct. 1439, 71 L.Ed.2d 655

(1982); see also Amburgey, 936 F.2d at 813. Hamilton relies on U ffelman v. Lone Star Steel Co.,

863 F.2d 404, 408 (5th Cir.), cert. denied, 490 U.S. 1098, 109 S.Ct. 2448, 104 L.Ed.2d 1003 (1989),

to support this contention. U ffelman is distinguishable, however, because, by terminating Uffelman,

the employer was able to avoid paying Uffelman's retirement benefits as he was nine months away

from vesting. In this case, Grocers actually paid substantial retirement benefits to strikers who

resigned. Finally, the comparison of the age of workers at another Grocers' subsidiary with the age

of workers at the location where the plaintiffs worked does not bolster this argument.

Hamilton offered as support of age discrimination evidence that during the r ecall, younger

workers were hired to take regular positions, while older employees awaiting recall were offered only

jobs in the frozen food warehouse. 12 The record does not support this contention. Additionally, this

Court held in Hanchey v. Energas Co., 925 F.2d 96, 99 (5th Cir.1990), that offering a different job

to the plaint iff did not raise a genuine issue of fact regardi ng pret ext . We find the remainder of

Hamilton's evidence equally unconvincing.

In sum, the appellants are left with nothing more than their speculation and belief that they

were permanently replaced because of age. This type of evidence is insufficient to create a fact issue

as to pretext. L ittle v. Rep ublic Refining Co., 924 F.2d 93 (5th Cir.1991); L aurence v. ChevronU.S.A., Inc., 885 F.2d 280 (5th Cir.1989). Therefore, we uphold the summary judgment in the Britt

case and the directed verdict in the Hamilton case.

IV. Summary Judgment of Hamilton's Section 301 Claims.

The Hamilton plaint iffs base their § 301 claims on alleged agreem ents made between the

union and Grocers in April of 1987. They contend that about April 2, 1987, Mr. Ed Fox, Grocers'

operati on manager, offered to permit the return of the striking employees, if they immediately agreed

to cease their strike. They further contend that this offer and acceptance constituted an employment

contract between the company and the union, the breach of which is actionable under Section 301

of the LMRA, 29 U.S.C. § 185(a). Hamilton also asserts that a letter from Mr. R.S. Bambace to Mr.

A.W. Parker agreeing to recall strikers as provided by Laidlaw Corporation v. NLRB, 414 F.2d 99

(7th Cir.1969), cert. denied, 397 U.S. 920, 90 S.Ct. 928, 25 L.Ed.2d 100 (1970), also constituted

an offer which was breached. The district court held that neither the oral agreement nor the letter

constituted a contract for labor giving rise to a § 301 action, and granted Grocers' Moti on for

Summary Judgment. We affirm.

Under th e L.M.R.A. § 301, 29 U.S.C. 185, a federal court has jurisdiction over

breach-of-contract actions between an employer and a labor organization. The fact that an alleged

contract was based on an oral agreement during negotiations does not make it unenforceable under

§ 185. Smith v. Kerrville Bus Co., 709 F.2d 914, 920 (5th Cir.1983).

The evidence presented by Hamilton in support of the contract demonstrates that this promise

was never considered a binding contract arrangement. A.E. Parker, the union negotiator to whom

the alleged statements were made, did not regard the statement as an offer of a binding contract, nor

does he show that the Union accepted such an offer. In fact, the strikers agreed to return to work

unconditionally after the supposed agreement was made. The district court correctly dismissed the

§ 301 claim, because no evidence existed from which a jury could find that a contract existed between

the strikers and the company.

Hamilton's argument that the company breached the written recall agreement must also fail.

This claim is barred by Hamilton's failure to pursue the appropriate arbitration remedies. Where a13 Hamilton argues that Grocers repudiated the arbitration procedures by concealing its alleged

breach of the recall agreement through its use of labor pool workers. contract provides for binding arbitration, an employee may not sue his employer under § 301 unless

he has exhausted those remedies. A llis–Chalmers Corp. v. Lueck, 471 U.S. 202, 105 S.Ct. 1904, 85

L.Ed.2d 206 (1985). Hamilton does not dispute the existence of the arbitration provision or the

failure to invok e it. Hamilton instead argues that, because Grocers repudiated the remedial

procedures specified in the contract, Rabalais v. Dresse r Industries, Inc., 566 F.2d 518, 519 (5th

Cir.1978), requires that there was no need to exhaust the arbitration rights. We disagree. Grocers

alleged misconduct is insufficient to invoke the repudiation exception. 13 We affirm the holding of the

district court.

V. Summary Judgment on Hamilton's State Law Tort Claims.

Hamilton alleges a cause of action for the state law torts of duress and intentional infliction

of emotional distress. The district court held that these claims are preempted by provisions of the

NLRA and the ADEA based on Farmer v. United Brotherhood of Carpenters & Joiners, Local 25,

430 U.S. 290, 97 S.Ct . 1056, 51 L.Ed.2d 338 (1977), and granted Grocers' Motion for Summary

Judgment. We do not agree that Hamilton's claims are preempted under F armer. However, we

affirm the district court's holding. Hamilton's allegations of intentional infliction of emotional distress

and duress are meritless. Grocers merely insisted on its legal rights in a permissible way. Under this

Court's decision in Wilson v. Monarch Paper Co., 939 F.2d 1138, 1144 (5th Cir.1991), that does not

give rise to a cause of action. The decision of the district court is affirmed.

In sum, for the fo rego ing reasons, we disagree with the district court's holding in the Britt

case that the NLRA preempts the ADEA. Because we agree with the district court's holdings on all

other issues, the judgments are

AFFIRMED.