IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________________________
No.96-30119
Summary Calendar
______________________________
EMILY VICKS
Plaintiff-Appellant
versus
UNITED FOOD AND COMMERCIAL
WORKERS LOCAL 210, and
THE INTERNATIONAL UNION
OF UNITED FOOD AND
COMMERCIAL WORKERS
Defendants-Appellees
____________________________________________
Appeal From the United States District Court
for the Eastern District of Louisiana
No. 94-CV-2573
____________________________________________
November 19, 1996
Before HIGGINBOTHAM, WIENER, AND BENAVIDES, Circuit Judges.
PER CURIAM:*
This is an appeal from the district court’s grant of summary
judgment in favor of Defendants-Appellees United Food and
Commercial Workers Local 210 (Local 210) and The International
Union of United Food and Commercial Workers (the International) on
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
1
Plaintiff-Appellant Emily Vicks’ Title VII sexual harassment and
retaliation claim. Although Vicks concedes that the district court
correctly determined that her employer, Local 210, did not have
fifteen or more employees during the relevant time periods and was
therefore not an employer within the meaning of 42 U.S.C.
§ 2000e(b), she contends that the district court erred in (1)
excluding or discounting parts of affidavits submitted in
opposition to Defendants’ motion for summary judgment because they
constituted hearsay or were not based on personal knowledge of the
events in question, and (2) determining that Local 210 and the
International were not a single, integrated enterprise for purposes
of satisfying Title VII’s definition of an employer.
In conducting our de novo review, we carefully evaluated the
record on appeal, the arguments of counsel for both parties as set
forth in their respective briefs to this court, and the applicable
law. As a result, we come to the same conclusions as did the
district court in its well reasoned opinion.
With regard to the affidavits plaintiff complains were
improperly excluded, we note that the district court neither
ignored the affidavits, nor ruled them inadmissible, but correctly
found that these affidavits failed to create any genuine factual
dispute. The court simply reasoned that the affiants entirely
lacked personal knowledge of the events in question. In our de
novo review, we have given particular attention to the affidavit of
Wanda Anderson, a member of Local 210 and participant in its strike
2
against National Tea Company (National Tea). In it she states that
the President of Local 210 told her that on the day Vicks was fired
from her position as a business agent, he had received a phone call
from an official of the International suggesting that Vicks be
fired. Although we acknowledge that this hearsay statement might
otherwise be admissible as an admission by a party opponent under
Federal Rule of Evidence 801(d)(2), we agree with the district
court that this particular affiant lacked any personal knowledge of
Local 210's employment practices or of the reasons for plaintiff’s
discharge. Given the overwhelming and consistent evidence
presented by Appellees showing that Local 210 itself made all
hiring and firing decisions regarding its employees in general and
Vicks in particular, the Anderson affidavit was woefully
insufficient to create a genuine issue of material fact on the
“single employer” issue. A mere suggestion by one entity that
another entity discharge one of its employees falls far short of
exercising the power to hire and fire.
In analyzing whether Local 210 and the International could be
deemed a single, integrated enterprise for purposes of satisfying
Title VII’s statutory employer definition, the district court
applied the four factor test mandated by this circuit’s Title VII
jurisprudence and correctly emphasized the critical question of
which entity had centralized control over labor relations; i.e,
which entity made final personnel decisions affecting the
3
plaintiff?1 The district court also took care to note the
decisions of other federal courts which have uniformly held that
the usual relationship between an employer local union and its
International Union is not sufficient in and of itself to support
single entity status for purposes of Title VII and other anti-
discrimination statutes.2 Moreover, this general rule or
presumption is not reversed by the fact that during the course of
its four month strike against National Tea —— during which time
plaintiff was discharged —— the International lent organizational
and leadership support to Local 210, loaned money to Local 210 to
help it with its strike related activities, and paid strike payment
benefits to Local 210's members who were contractually entitled to
receive such benefits by virtue of their membership in the
International.3
1
See Trevino v. Celanese Corp., 701 F.2d 397, 403-04 (5th
Cir. 1983); Garcia v. Elf Atochem North America, 28 F.3d 446, 450
(5th Cir. 1994).
2
See Herman v. United Broth. of Carpenters and Joiners of
America, Local No. 971, 60 F.3d 1375, 1383-84 (9th Cir. 1995);
Childs v. Local 18, Int’l Broth. of Elec. Workers, 719 F.2d 1379,
1382 (9th Cir. 1983); Shepardson v. Local Union No. 401 of Int’l
Ass’n of Bridge Structural and Ornamental Ironworkers, 823 F.Supp.
1245, 1249-57 (E.D. Pa. 1993); and see also, Switalski v. Int’l
Ass’n of Bridge, Structural and Ornamental Iron workers, Local
Union No. 3, 881 F.Supp. 205, 207-08 (W.D. Pa. 1995).
3
See Hall v. Delaware Council on Crime and Justice, 780
F.Supp. 241, 245 (D. Del.), aff’d, 975 F.2d 1549 (3rd Cir. 1992)
(funding of Delaware Council on Crime and Justice and other non-
profit organizations by the United Way does not justify the
conclusion that the organizations are a single employer for
purposes of Title VII).
4
In sum, we must remain cognizant that, as a labor union, Local
210 wears two distinctly different hats, one as an ordinary
employer and the other as the collective bargaining representative
of its members. Although during the National Tea strike the
International assisted Local 210 wearing its collective bargaining
hat, such assistance does not transform the International and Local
210 into a single integrated enterprise for the purposes of Vicks’
challenge to the conduct of Local 210's while wearing its common
law employer hat.4
Finally, we note that Vicks has argued, for the first time on
appeal, that the International and Local 210 shared centralized
control of labor relations by virtue of the International’s having
informed Local 210 that it no longer had enough money to employ
Vicks.5 Even though we need not (and therefore will not) consider
an argument first asserted on appeal,6 were we to do so here, we
would have to conclude that Vicks has thereby conceded that the
real reason for her discharge was, as Local 210 has always
maintained, not one prohibited by Title VII but simply that it
4
Herman, 60 F.3d at 1384.
5
Vicks’ argument is based on a letter from an official with
the International to Local 210's top officers that described the
toll the strike was inflicting on Local 210's monthly revenues.
6
Frank C. Bailey Enterprises, Inc. v. Cargill, Inc., 582 F.2d
333, 334 (5th Cir. 1978).
5
could no longer afford to pay her.7
For all of these reasons, therefore, we affirm the district
court’s grant of summary judgment.
AFFIRMED.
7
See Marx v. Schunck Markets, Inc., 76 F.3d 324, 328 (10th
Cir.), cert. denied, 116 S.Ct. 2552, 135 L.Ed.2d 1071 (1996)
(noting that “if a civil rights plaintiff concedes that the real
reason for the employer’s action was a motive not prohibited under
the civil rights laws, such a concession mandates granting of
summary judgment to the employer”).
6