1 29 U.S.C. §§ 621-634. The substance of Barrow's complaint was that the CBA diluted his

seniority by increasing the number of longshoremen classified as "A-1", the most senior category.

Before the 1988 agreement, the "A-1" category included only longshoremen with more than

twenty years' experience. After the agreement, however, the "A-1" category included all

longshoremen with more than fifteen years' experience. That change increased the number of "A1" longshoremen with whom Barrow had to compete for jobs. United States Court of Appeals,

Fifth Circuit.

No. 92-9592.

Clarence BARROW, Plaintiff-Appellant,

v.

NEW ORLEANS STEAMSHIP ASSOCIATION, et al., Defendants-Appellees.

Jan. 3, 1994.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before WISDOM, HIGGINBOTHAM, and SMITH, Circuit Judges.

WISDOM, Circuit Judge.

Clarence Barrow appeals from the entry of summary judgment against him on all his claims

against General Longshore Workers Lo cal Unio n No. 3000 ("the Union"), the New Orleans

Steamship Association ("NOSSA"), and Cooper/T. Smith Stevedoring Co., Inc. ("Cooper"). We

AFFIRM.

I.

Clarence Barrow has been a New Orleans longshoreman and a member of the defendant

Union (or its predecessor) since 1957. He has some thirty years' experience and an exemplary safety

record as a winch operator.

In 1988, NOSSA and the Union entered into a collective bargaining agreement ("the CBA")

which included a

new senio rity system. Barrow filed an EEOC complaint challenging the CBA

seniority system as discriminatory under the Age Discrimination in Employment Act (ADEA). 1 After

obtaining a right-to-sue letter from the EEOC, Barrow sued NOSSA and the Union. In Barrow v.2 932 F.2d 473 (5th Cir.1991).

3 Id. at 479.

4 Id.

5 Id. at 480.

6 Id.

7 6 Rec. 1478-80.

8 Id. at 1476-77. New Orleans Steamship Ass'n 2 (" Barrow I "), this Court held that Barrow's disparate treatment

challenge to the seniority system on its face was time-barred. We dismissed also the claim that the

system was discriminatory as applied. We dismissed that claim without prejudice because the EEOC

had not considered that contention. 3 We ordered dismissed without prejudice Barrow's claim that

NOSSA and the Union had retaliated against him. 4 We upheld the district court's dismissal with

prejudice as time-barred Barrow's claim that t he new seniority system violated the CBA, but

remanded the case to the district court for consideration of possible CBA breaches not attributable

to the seniority system. 5 Finally, we held that Barrow's pendent state claim for emotional distress was

not time-barred. 6 We remanded the case to the district court.

While his appeal in Barrow I was pending, Barrow filed EEOC complaints on the issues of

retaliation and age discrimination. After the remand, he amended his complaint to reflect the new

EEOC charges and to add Cooper, his employer, as a defendant. The defendants then mo ved for

summary judgment. The district court granted the motion as to the Union but denied it as to NOSSA

and Cooper.

Barrow's case was scheduled to be tried on June 15, 1992 before Judge Carr. Because

Barro w failed to comply with Judge Carr's document stipulation order, however, Judge Carr

continued the trial on that date. 7 Judge Carr took senior status on July 1 and reassigned Barrow's

case to Judge Duplantier. 8 Judge Duplantier entertained another motion for summary judgment from9 Barrow questions the propriety of Judge Duplantier's decision to entertain another summary

judgment motion by the same defendants whose motion Judge Carr had denied when no

additional discovery had been performed since Judge Carr's ruling. Judge Duplantier's authority

to reconsider such interlocutory rulings of his Court is well established. See, e.g., McKethan v.

Texas Farm Bureau, 996 F.2d 734, 738 n. 6 (5th Cir.), reh'g denied, 3 F.3d 441 (5th Cir.1993),

petition for cert. filed, 62 U.S.L.W. 3378 (U.S. Nov. 15, 1993).

10 5 F.3d 117 (5th Cir.1993). N OSSA and Cooper, 9 and on December 1, 1992, he ruled in favor of both remaining defendants

.

Barrow appealed to this Court.

Four of Barrow's claims against the defendants survived after the prior panel's remand: (1)

a disparate-impact claim that the new seniority system, though facially neutral, was discriminatorily

applied; (2) the retaliatio n claim; (3) breach of contract claims unrelated to the seniority system

imposed in the CBA; and (4) a pendent state claim for emotional distress. We review de novo the

district court's orders granting summary judgment for the defendants on all four claims.

II.

A. Barrow 's Age Discrimination in Employment Act (ADEA) Claims

1. Against NOSSA

The district cou r t granted summary judgment for NOSSA on the basis that NOSSA was

neither Barrow's employer nor an agent of his employer, and was therefore not co vered by the

ADEA. We agree with the district court's conclusion.

We recently discussed the meanings of the terms "e mplo yer" and "agent" in the ADEA

context in Deal v. State Farm County Mutual Insurance Co. of Texas. 10 The plaint iff in S tate Farm

was an employee of a n independent insurance agency who sued her employer and State Farm, the

company whose policies her agency sold. We affirmed the district court's holding that State Farm

was not Deal's "employer" under the ADEA. We explained the test our Circuit applies:

In determining whether an employment relationship exists within the meaning of Title VII and

the ADEA, we apply a "hybrid economic realities/common law control test." ... The right to

co nt ro l an employee's conduct is the most important component of this test.... When

examining the control component, we have focused on whether the alleged employer has the

right to hire and fire the employee, the right to supervise the employee, and the right to set

the employee's work schedule.... The economic realities component of our test has focused

on whether the alleged employer paid the employee's salary, withheld taxes, provided benefits,11 Id. at 118-19 (citations omitted).

12 Our decision is not in tension with Williams v. New Orleans S.S. Ass'n, 341 F.Supp. 613

(E.D.La.1972), in which a district court held that the companies comprising NOSSA were a single

employer. In Williams, the district court held that the individual companies comprising NOSSA,

not NOSSA itself, were an "employer". Furthermore, unlike the defendants in Williams, the

defendants in this case vigorously refute Barrow's argument that NOSSA had employer-like

control over him.

13 State Farm, 5 F.3d at 119.

14 684 F.2d 360 (6th Cir.1982).

15 Id. at 362 (cited in State Farm, 5 F.3d at 119). "[W]hen individual officers or other

employees w ith responsibility for employment decisions engage in discriminatory acts in behalf of

their corporate employer, they, as well as the corporation, are liable ...". 3A Arthur Larson & Lex

K. Larson, Employment Discrimination § 98.41(a)(4) (1993) (emphasis added).

16 29 U.S.C. §§ 623(c), 630(d). and set the terms and conditions of employment. 11

Neither part of our test supports a conclusion that NOSSA was Barrow's employer. 12 First,

NOSSA had no meaningful right to control Barrow's conduct. The stevedoring company foremen,

not NOSSA, had the right to hire and fire Barrow, to supervise him, and to set his work schedule.

Second, Barrow has produced no evidence that NOSSA paid his wages, withheld his taxes, provided

benefits to him, or set the terms and conditions of his employment.

Barrow next contends that NOSSA was an "agent" of his employer under the ADEA.

NOSSA was an agent of the stevedoring companies in one sense—it represented them in negotiations

with the Union. But one can be another's agent for some purposes and not for others. The key

question is whether NOS SA was the stevedoring companies' agent with respect to employment

practices. 13 We agree with the Sixth Circuit's opinion in Y ork v. Tennessee Crushed Stone Ass'n 14 that

an agent of an employer under the ADEA is generally "a supervisory or managerial employee to

whom employment decisions have been delegated by the employer". 15 Under that standard, NOSSA

is not an agent of Barrow's employer.

2. Against the Union and Cooper/T. Smith

Alth o ugh the Union was not Barrow's employer, it is covered by the ADEA as a labor

organization. 16 Cooper was Barrow's employer within the meaning of the ADEA.17 Stephens v. C.I.T. Group/Equipment Financing, Inc., 955 F.2d 1023, 1027 (5th Cir.1992).

18 Id.

19 McKethan, 996 F.2d at 740-41. This test is objective; the question is not whether this

employee felt compelled to resign, but whether a reasonable employee would have felt so

compelled. Guthrie v. J.C. Penney Co., Inc., 803 F.2d 202, 207 (5th Cir.1986).

20 See McKethan, 996 F.2d at 741 (listing some of the above factors); Stephens, 955 F.2d at

1027 (employee was demoted, his salary was cut, and employer badgered him to resign);

Christopher v. Mobil Oil Corp., 950 F.2d 1209, 1214-15 (5th Cir.) (employees offered choice

between retirement or continued employment, both on unfavorable terms), cert. denied, --- U.S. -

---, 113 S.Ct. 68, 121 L.Ed.2d 35 (1992); Guthrie v. Tifco Indus., 941 F.2d 374, 377 (5th

Cir.1991) (employee was demoted, his salary was cut, and he was reassigned to work for a man

seventeen years younger than himself who he had helped train), cert. denied, --- U.S. ----, 112

S.Ct. 1267, 117 L.Ed.2d 495 (1992); Wilson v. Monarch Paper Co., 939 F.2d 1138, 1145 (5th

Cir.1991) (managerial employee, a college graduate, was reassigned to janitorial duties); Bodnar

v. Synpol, Inc., 843 F.2d 190, 193 (5th Cir.) (employee was offered choice between early

retirement and continued employment, both on terms less favorable than the status quo), cert.

denied, 488 U.S. 908, 109 S.Ct. 260, 102 L.Ed.2d 248 (1988); Guthrie v. J.C. Penney Co., Inc.,

803 F.2d at 205-06 (employee was badgered by employer to resign and was reprimanded in the

presence of his subordinates). But see McCann v. Litton Sys., Inc., 986 F.2d 946, 952 (5th Cir.)

("slight decrease in pay coupled with a loss of some supervisory responsibilities" insufficient to

constitute constructive discharge), reh'g denied, 992 F.2d 326 (5th Cir.1993). See generally Alan

G. Skutt, Annotation, Circumstances Which Warrant Finding of Constructive Discharge in

Cases Under Age Discrimination in Employment Act, 93 A.L.R. Fed. 10 (1989). Barrow must show, as part of his prima facie case, that he was discharged. 1 7 When an

employee resigns, as Barrow did, he may satisfy the discharge requirement by proving constructive

discharge. 18 To show constructive discharge, an employee must offer evidence t hat t he employer

made the employee's working conditions so intolerable that a reasonable employee would feel

compelled to resign. 19 Stated more simply, Barrow's resignation must have been reasonable under

all the circumstances. Whether a reasonable employee would feel compelled to resign depends on

the facts of each case, but we consider the following factors relevant, singly or in combination: (1)

demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4) reassignment to menial

or degrading work; (5) reassignment t o work under a younger supervisor; (6) badgering,

harassment, or humiliation by the employer calculated to encourage the employee's resignation; or

(7) offers of early retirement on terms that would make the employee worse off whether the offer was

accepted or not. 20

Barrow has not shown the constructive discharge element of his prima facie case. He has21 The district court's opinion quoted from a report prepared by Dr. Jeanneret, defendants'

expert witness, listing Barrow's hours as a percentage of the total, 7 Rec. 1809. See Barrow v. General Longshore Workers Local Union No. 3000, 1992 WL 370080, at *4 n. 2 (E.D.La.1992):

Year Total

A-1 Hours Barrow's Hours 7 of Total

1984-85 1,600,986 1,795 0.0011

1985-86 1,176,928 774 * 0.0007

1986-87 646,257 1,213 0.0019

1987-88 625,317 973 0.0016

1988-89 745,140 1,150 0.0015

1989-90 672,077 1,157 0.0017

* Barrow worked primarily in grain, but during this period the shippers began using

nonunion longshoremen.

22 See 29 U.S.C. § 623(f)(1). At oral argument, Barrow's counsel called those statistics a

"pretext" because the total hours figures include hours worked by non-winch runners. To show

that the defendants' proffered reason was a pretext for discrimination, however, Barrow must

offer evidence not only that the defendants' proffered reason was false, but also that age

discrimination was the real reason for the defendants' action. See St. Mary's Honor Center v.

Hicks, 509 U.S. ----, ----, 113 S.Ct. 2742, 2752, 125 L.Ed.2d 407, 422 (1993); Bodenheimer v. introduced no evidence on any of the seven factors lis t ed above. That list is not exclusive, but

Barrow has introduced no evidence sufficient to raise a genuine dispute on any o t her basis for

constructive discharge. Barrow asserts that a reasonable employee would feel compelled to resign

after being unable to obtain regular work on a gang. We disagree. A lo ngsho reman's inability to

obtain a regular gang position is insufficient, without more, to constitute constructive discharge under

the ADEA.

Indeed, the record reveals that the number of hours Barrow worked, as a percentage of all

hours worked by all union longshoremen of Barrow's seniority, remained roughly constant or even

increased slightly from 1984-85 to 1989-90. 21 These statistics also reveal that the total number of

hours worked by longshoremen on the New Orleans waterfront dropp ed subst ant ially in the late

1 980s. The general economic downturn that struck the waterfront at that time constitutes a

reasonable factor other than age which explains the decline in Barrow's hours. 22 For the same reason,PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir.1993). Barrow has not produced sufficient evidence

that the defendants' statistical methodology is a pretext for age discrimination.

23 See Smith v. Farah Mfg. Co., Inc., 650 F.2d 64, 66, 68-70 (5th Cir.1981), holding that

termination of an employee during a general reduction in work force to meet economic conditions

constitutes a reasonable factor other than age. We need not address the other explanation offered

by the defendants, namely that Barrow voluntarily retired to receive a pension of some $18,000 a

year.

24 29 U.S.C. § 623(d).

25 Shirley v. Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir.1992). Unlike some of our sister

Circuits, we do not require the employee to show the employer's know ledge of the employee's

protected conduct as an element of the employee's prima facie case. Cf., e.g., Hollander v.

American Cyanamid Co., 895 F.2d 80, 85 (2d Cir.1990). Questions about the extent of the

employer's knowledge, however, are of course relevant to the element of causation.

26 The incident occurred a year after Barrow filed his first EEOC complaint against the Union

and about four months after Barrow filed this lawsuit against the Union. See Barrow I, 932 F.2d Barrow's allegation that he was denied employment opportunities (specifically, a regular gang

position) must fail. Barrow's employer and the Union have produced a reasonable factor other than

age to explain Barrow's inability to get a regular gang position. 23

B. Barrow 's Retaliation Claim

We require a showing of three elements to make out a prima facie case of retaliation: 24 (1)

the plaint iff engaged in activity protected by the ADEA or Title VII; (2) an adverse employment

action occurred; and (3) there was a causal connection between the participation in the protected

activity and the adverse employment action. 25

1. Against NOSSA

Barrow has no retaliation claim against NOSSA for the reason stated above: NOSSA was

neither his employer nor an agent of his employ er, and therefore not required to conform to the

ADEA in its dealings with him.

2. Against the Union

Barrow has produced insufficient evidence of adverse employment action and causation—the

second and third elements of his prima facie case—to survive summary judgment for the Union. The

record shows that, far from taking action against Barrow, the Union consistently tried to help him get

work. The Union interceded on Barrow's behalf after a May 13, 1990 incident 2 6 in which Barrowat 476. The timing is important, because the Union's action on Barrow's behalf after he filed his

EEOC charge tends to disprove any notion that the Union retaliated against Barrow.

27 The details of the incident are not in the record. Cooper says Barrow "directed abusive and

threatening language" at Burnell Scott, one of Cooper's foremen. 5 Rec. 1392. Barrow denies

losing his temper, but Scott nevertheless felt sufficiently threatened to summon the police to the

scene. Id.

28 5 Rec. 1392.

29 The CBA provided a two-step grievance procedure for resolving disputes between Union

members and the stevedoring companies. 5 Rec. 1404 (affidavit of Mark Ellis, financial

secretary-treasurer of the Union). Ellis met with Barrow and discussed the May 13 incident. Id.

at 1405. He then scheduled a "step one" meeting for May 17. Cooper failed to send a

representative to that meeting, so another was scheduled for the following day. Cooper sent a

representative to the May 18 meeting. At that meeting, Ellis demanded that Cooper rescind its

hiring ban on Barrow. Cooper refused, and the Union invoked "step two" of the grievance

procedure. The "step two" meeting was set for May 24. At that meeting, the Union again

demanded that Cooper lift the penalty from a permanent suspension to a two-week suspension (of

which Barrow had already completed ten days) and a six-month ban on work for Burnell Scott's

gang.

30 8 Rec. 2051-55. allegedly threatened a Cooper foreman. 27 Cooper instituted a complete ban on hiring Barrow after

the incident, 28 but reduced that penalty to a two-week suspension after the Union intervened. 29 The

Union also wrote a letter to NOSSA demanding that NOS SA's members fill the winch runner

vacancies on their gangs. This letter included a specific reference to Barrow as a qualified winch

runner who was not part of a regular gang. 30 In the light of these events, we do not believe Barrow

has raised any dispute of material fact concerning retaliatory adverse employment action taken against

him by the Union.

3. Against Cooper

Barrow has produced insufficient evidence that his protected action—filing complaints with

the EEOC and this lawsuit— caused Cooper to take adverse employment action agains t him. The

district court held that "Barrow's own intemperate activity" had caused Cooper to discipline him. We

agree. The incident of May 13, 1990 was immediately followed by Cooper imposing a hiring ban on

Barrow, a ban that was lift ed only after the Union interceded on Barrow's behalf. The record shows

that Cooper took adverse employment action aga inst Barrow because Barrow threatened one of

Cooper's foremen, not because Barrow filed an EEOC charge against Cooper.31 1 Rec. 210.

32 Barrow I, 932 F.2d at 480.

33 Trial v. Atchison, Topeka & Santa Fe Ry. Co., 896 F.2d 120, 122 (5th Cir.1990).

34 See Louisiana-Pacific Corp. v. ASARCO, Inc., 5 F.3d 431, 434 (9th Cir.1993); Dandrea v.

Malsbary Mfg. Co., 839 F.2d 163, 166 (3d Cir.1988).

35 29 U.S.C. § 160(b); DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 170-72,

103 S.Ct. 2281, 2293-95, 76 L.Ed.2d 476 (1983); Nelson v. Local 854 Dock Loaders &

Unloaders of Freight Cars & Barges Union, 993 F.2d 496, 498-99 (5th Cir.1993) (per curiam).

36 Barrow I, 932 F.2d at 480; Barrett v. Ebasco Constructors, Inc., 868 F.2d 170, 171 (5th

Cir.1989).

37 Brief of Appellant at 37 (emphasis added). C. Barrow 's Breach of Contract Claims

Barrow's original complaint charged the Union a nd NOSSA with breaching the collective

bargaining agreement. 31 On Barrow's prior appeal to this Court, we upheld the district judge's ruling

that Barrow's breach of contract claim was barred by limitations. 32 We remanded on the question

whether the defendants had also violated the CBA in fail ing t o fill all gang vacancies. After our

remand, the district court held that (1) those allegations were likewise barred by limitations, and (2)

the breach of contract allegations in Barrow's amended complaint d id not relate back under

Fed.R.Civ.P. 15(c). We review the district court's first holding de novo, 33 and its second for abuse

of discretion. 34

Barrow maintains that NOSSA and Cooper breached the CBA and the Union breached its

duty of fair representation by not t imely filling all gang vacancies. Those claims are subject to the

six-month statute of limitations found in § 10(b) of the National Labor Relations Act (NLRA). 35 The

claims accrued, and the limitations clock began to run, when Barrow d i scovered or should have

discovered that persistent gang vaca ncies existed. 3 6 Barrow undercuts his own position here by

admitting that "vacancies at his position of winch runner existed for months and years in violation

of the contract". 37 Barrow's allegations of persistent gang vacancies are based on the same facts as

those underlying the allegations that we held time barred in Barrow I. We agree with the district

court that Barrow had knowledge of CBA violations more than six months before he brought suit.38 See Farmer v. United Bhd. of Carpenters and Joiners of Am., Local 25, 430 U.S. 290, 305,

97 S.Ct. 1056, 1066, 51 L.Ed.2d 338 (1977).

39 Brief of Appellant at 13.

40 See Brow

n v. Southw estern Bell Tel. Co., 901 F.2d 1250, 1255-56 (5th Cir.1990). Accordingly, the district court correctly held that those allegations are time barred.

We need not address the question whether the district court abused its discretion in holding

that the allegations of Barrow's amended complaint did not r elat e back as per Fed.R.Civ.P. 15(c).

Even if those alle g ations did relate back to the date Barrow filed this suit, they would still be time

barred, because they involve conduct of which Barrow had knowledge more than six months before

this suit was filed. We find no error in the district judge's ruling that Barrow's breach of contract

claims were not brought within the limitations period.

D. Barrow 's Pendent Emotional Distress Claim

The district court held Barrow's state-law claim for intentional inflict ion of emotional distress

was barred by limitations as to defendant Cooper, and pre empt ed by the Labor-Management

Relations Act (LMRA) as to the other defendants. We need not look bey ond the preem pti on

question to resolve the case.

The LMRA preempts state-law emotional distress claims if those claims ar e related to

employment discrimination. 38 In this case, Barrow claims his emotional distress resulted from "trying

to get work and not being able to get it". 39 Barrow's inability to get work, he alleges, derived from

the age discrimination he says he suffered at the hands of the defendants. Acco rdingly, his claim

relates to employment discrimination, and the distr ict co urt correctly held it preempted by the

LMRA. 40

AFFIRMED.