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A would-be firefighter who says he was denied a job due to a physical fitness test that discriminates against older applicants cannot sue the college that administers the test under the federal age discrimination law since the college was never his employer, a Pennsylvania federal judge has ruled. But the college may still be liable, the judge ruled, since state discrimination laws in Pennsylvania allow plaintiffs to sue under an “aiding and abetting” theory. In his 30-page opinion in Tyrrell v. City of Scranton, U.S. District Judge A. Richard Caputo of the Middle District of Pennsylvania also rejected a union’s argument that it should be held immune from damage suits under the Age Discrimination in Employment Act. In the suit, Paul F. Tyrrell says he was hired by Scranton in January 1997 as a firefighter but that his employment was conditioned on successful completion of the fire academy courses at Harrisburg Area Community College. When he was unable to complete the academy due to an injury, the city fired him in May 1997. But Tyrrell was given a second chance when the union pressed a grievance on his behalf. In his second attempt, Tyrrell failed the physical training tests at the academy and was once again fired. The union refused to press a second grievance. In his suit, Tyrrell argued that the city and the college were excluding qualified older applicants by subjecting them to a rigorous physical fitness test that is not a true measure of the firefighter’s job requirements. Lawyers for HACC argued that Tyrrell’s claim against the college under the ADEA should be dismissed since he was a student at the school and not an employee. Judge Caputo found that the 3rd U.S. Circuit Court of Appeals has never squarely addressed whether a plaintiff in a discrimination case can name an employer other than his own. Looking beyond the 3rd Circuit, Caputo found that the District of Columbia Circuit held in Sibley Memorial Hospital v. Wilson that a nurse who was paid directly by his patients nonetheless had the right to sue a hospital that controlled his access to that employment. Other courts have followed Sibley and held that a worker can sue any employer that controls access to employment. But Caputo found that the 3rd Circuit has not adopted the Sibley court’s “expansive construction” of the term “employer.” Instead, Caputo said, the 3rd Circuit held in United States v. Board of Education for the School District of Philadelphia that the Commonwealth of Pennsylvania was not an “employer” of public school teachers since its control of the teachers was limited to its regulatory capacity. Language in that opinion, Caputo said, including the use of the phrase “customary employer-employee relationship,” suggests that a plaintiff in the 3rd Circuit must be employed by the defendant to state a claim under either Title VII or the ADEA. Nonetheless, Caputo found that cases like Sibley pose difficult questions because the true employer has entrusted another party with the responsibility to screen and supervise employees. “Congress’ clear purpose to prohibit invidious workplace discrimination requires that the third party also be subject to federal employment discrimination liability should it misuse the authority it has been delegated,” Caputo wrote. “Potential Title VII and ADEA liability should accompany the transfer of the employer’s control and authority.” Caputo found that the 7th Circuit has adopted a “thoughtful middle position” between strictly requiring an employment relationship and broadly allowing for liability against any employer that adversely affects a worker’s employment. In EEOC v. State of Illinois, the 7th Circuit distinguished between an “aiding and abetting” case on the one hand and those like Sibley on the other where the third party exercises such a degree of control over the plaintiff’s work or access to work that it becomes his “de facto” employer. Caputo found that the 7th Circuit’s reasoning was both persuasive and consistent with the 3rd Circuit’s approach so far. Applying the test to Tyrrell’s claim against HACC, Caputo found that his ADEA claim against the college failed because “a community college does not have such control over a student’s work life that it can be considered his de facto employer.” But Caputo found that Tyrrell’s claim against HACC under the Pennsylvania Human Relations Act was “on firmer footing” because the PHRA “explicitly provides for the sort of general ‘aider and abettor’ liability that, in the federal context, the 3rd Circuit [has] rejected.” Under the PHRA, Caputo said, “a plaintiff need not share any sort of employment relationship with the defendant to establish a claim.” UNION NOT IMMUNE Turning to Tyrrell’s claims against the Firefighters’ Local Union No. 669 of the International Association of Firefighters AFL-CIO, Caputo rejected the union’s argument that it was immune from any damage claims under the ADEA. Lawyers for the union argued that the ADEA incorporated the remedial scheme of the Fair Labor Standards Act which does not permit a damages claim against a union. Section 7(b) of the ADEA, they said, states that the law’s provisions should be enforced “in accordance with the powers, remedies and procedures” of the FLSA. And the FLSA, they said, expressly excludes unions from the definition of “employer.” But Caputo found that the union was reading Section 7(b) too narrowly since the same section goes on to authorize suits for “such legal or equitable relief as may be appropriate.” Read properly, Caputo said, the two provisions of Section 7(b) do not limit a plaintiff’s remedies, but expand them. “In effect, the ADEA allows an age discrimination plaintiff to seek whatever relief is available under the FLSA plus whatever relief, legal or equitable, is appropriate to effectuate the purposes of the act,” Caputo wrote. “Therefore, even if the first part of Section 7(b), which refers to the FLSA, does not authorize damage suits against unions, the next part of Section 7(b) clearly does,” he wrote. Although only an employer may be held liable under the FLSA’s minimum wage and maximum hour provisions, Caputo found that Title VII “prohibits discriminatory practices not just by employers, but also by employment agencies and labor organizations.” Caputo found that since the ADEA contains “parallel prohibitions” against certain labor practices and since Title VII allows for liability for damages against unions, that “strongly suggests that Congress intended that unions be liable for damages under the ADEA as well.” The FLSA’s exemption of unions, he said, “is substantive in nature,” and incorporating it into the ADEA “would be inconsistent with Congress’ evident intent to outlaw age discrimination by unions.” And allowing money damages against unions, he said, “undoubtedly effectuates the purposes of the [ADEA].”

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