Brazoria County, Tex. v. E.E.O.C.

• Decision Date: 19 November 2004
• Docket Number: No. 03-60709.,03-60709.
• Citation: 391 F.3d 685
• Parties: BRAZORIA COUNTY, TEXAS; David Christian, former Justice of the Peace of Brazoria County, Texas (Precinct 2), Petitioners-Cross-Respondents, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION; United States of America, Respondents-Cross-Respondents, and Kyle Knight, Intervenor-Cross-Petitioner.
• Court: U.S. Court of Appeals — Fifth Circuit

391 F.3d 685

BRAZORIA COUNTY, TEXAS; David Christian, former Justice of the Peace of Brazoria County, Texas (Precinct 2), Petitioners-Cross-Respondents, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION; United States of America, Respondents-Cross-Respondents, and Kyle Knight, Intervenor-Cross-Petitioner.

No. 03-60709.

United States Court of Appeals, Fifth Circuit.

November 19, 2004.

Henry Walter Prejean (argued), Angleton, TX, for Petitioners-Cross-Respondents.

Irene M. Solet, Marleigh D. Dover, U.S. Dept. of Justice, Civ. Div., Susan Lisabeth Starr, Carlton Hadden, EEOC, Washington, DC, for Respondents.

Gregory Scott Fiddler (argued), Law Office of G. Scott Fiddler, Houston, TX, for Intervenor.

Petitions for Review of a Decision of the Equal Employment Opportunity Commission.

Before BARKSDALE and PICKERING, Circuit Judges, and LYNN^*, District Judge.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Lacking jurisdiction over Kyle Knight's cross-petition, the sole issue at hand is whether, under the Government Employee Rights Act (GERA), 42 U.S.C. § 2000e-16a to 16c (formerly codified at 2 U.S.C. §§ 1201, 1202, 1220), the County and former justice of the peace David Christian (jointly, the County) were properly held liable by the EEOC for claimed retaliation against Knight. That decision had two factual bases: ostracism during Knight's employment; and a letter written by Christian, after Knight's resignation, critical of Knight's husband. Neither basis was the ultimate employment decision required for retaliation. PETITION GRANTED; CROSS-PETITION DISMISSED.

I.

Christian was elected a justice of the peace in 1991. That year, he hired Knight as one of his five clerks. Knight resigned in November 1996 and filed a complaint with the EEOC that month (the letter at issue was written the next month); the complaint was amended to state a claim under GERA.

The complaint was referred by the EEOC to an administrative law judge (ALJ), who understood the complaint as presenting two claims. Knight alleged: Christian had created a hostile work environment through conduct constituting sexual harassment; and, after she complained about that conduct to Christian and to a county official, Christian retaliated against her. There were five predicates for the retaliation claim. Three of them (not at issue here) were: failure to promote; placing Knight on probation; and constructive discharge. At issue are two bases: ostracism; and the December 1996 letter from Christian to the sheriff about Knight's husband. The facts behind each are described infra.

The ALJ ruled in favor of the County on all claims; Knight appealed to the EEOC. It affirmed the ALJ on: no sexual harassment; and no retaliation due to either constructive discharge, failure to promote, or probation. The EEOC partly reversed the ALJ on the retaliation claim, however, ruling that Christian had retaliated against Knight in ostracizing her and in writing the letter. The final decision, issued on 2 July 2003, awarded Knight $20,500 in compensatory damages; $18,952.50 in attorney's fees; and $2759.73 in costs.

II.

Before addressing the County's petition for review, we address Knight's cross-petition. Because Knight filed a cross-petition, the Respondent EEOC did not file a brief, stating: "The cross-petitions assure that the adverse positions of the real parties in interest in this matter will be ventilated before the Court". Nevertheless, because of our pre-oral argument jurisdictional concerns about the cross-petition, we obtained supplemental briefing from the County, Knight, and the EEOC on that issue.

A.

The County filed its petition on 27 August 2003. On 16 September 2003, our court received two documents from Knight: (1) a combined cross-petition for review, application to enforce, and motion for leave to intervene; and (2) a motion for extension of time to file the cross-petition. On 13 October, the motion to intervene and the motion for extension of time were granted; accordingly, the cross-petition was filed on 14 October.

The EEOC's decision in favor of Knight was pursuant to its jurisdiction over complaints brought under GERA. 42 U.S.C. § 2000e-16c(b)(1). Judicial review of the EEOC's 2 July 2003 decision is pursuant to "chapter 158 of Title 28". 42 U.S.C. § 2000e-16c(c). Under chapter 158, there is a 60- day period to file a petition for review of an agency order. 28 U.S.C. § 2344. That period "is jurisdictional and cannot be judicially altered or expanded". Texas v. United States, 749 F.2d 1144, 1146 (5th Cir.), cert. denied sub nom. Interstate Commerce Comm'n v. Texas, 472 U.S. 1032, 105 S.Ct. 3513, 87 L.Ed.2d 642 (1985).

Sixty days from the EEOC's 2 July 2003 decision was Sunday, 31 August 2003; the following day was Labor Day. Therefore, a timely petition for review of the EEOC decision had to be filed no later than 2 September 2003. Fed. R.App. P. 26(a)(3), (4). Our court did not receive the cross-petition until 16 September 2003, and it was not filed until 14 October 2003. Assuming arguendo that the 16 September receipt date was the relevant date, it was outside the 60-day period.

The absence of jurisdiction is clear from the preceding. Nevertheless, some of the jurisdictional assertions made by Knight will be addressed. First, we may, of course, notice jurisdictional defects sua sponte. E.g., Weekly v. Morrow, 204 F.3d 613, 615 (5th Cir.2000).

Second, our ability to consider jurisdiction is in no way hampered by the 13 October 2003 order granting Knight's motion to extend time to file the petition. We have most commonly confronted this issue when, after a motions panel denies a motion to dismiss for lack of jurisdiction, a merits panel dismisses on jurisdictional grounds. E.g., Mattern v. Eastman Kodak Co., 104 F.3d 702, 704 (5th Cir.1997), cert. denied, 522 U.S. 932, 118 S.Ct. 336, 139 L.Ed.2d 260 (1997); Browning v. Navarro, 887 F.2d 553, 557 (5th Cir.1989); see also Harcon Barge Co., Inc. v. D & G Boat Rentals, Inc., 746 F.2d 278, 283 n. 2 (5th Cir.1984), on reh'g, 784 F.2d 665 (5th Cir.1986). As Harcon Barge stated: "A denial by a motions panel of a motion to dismiss for want of jurisdiction ... is only provisional". Id. No authority need be cited for the fact that jurisdiction is always at issue; without it, a court is powerless to act. In this instance, no judicial authority can extend the time for filing the petition. See In re Bass, 171 F.3d 1016, 1022 (5th Cir.1999) ("All federal courts are courts of limited jurisdiction which, for the most part, derives from statutory grants of the Congress.").

Third, Knight cannot rely on her timely intervention in order to have our court review matters outside the scope of the County's petition. "If we permit an intervenor to raise additional issues for review, we contravene the sixty-day filing limit... by permitting filings as late as 90 days after the order...." United Gas Pipe Line Co. v. FERC, 824 F.2d 417, 436 (5th Cir.1987) (such 90 days based on adding 60-day period for petition to 30-day period for intervention). United Gas held:

Thus, intervenors in FERC review proceedings are bound by the issues raised in the petitions for review. With regard to the issues raised in the petitions, intervenors may fully argue for or against the Commission's position. However, the intervenors may not challenge aspects of the Commission's orders not raised in the petitions for review.

Id. at 437; see also Texas Office of Public Utility Counsel v. FCC, 183 F.3d 393, 421 n. 39 (5th Cir.1999). But see Kansas City Southern Industries, Inc. v. ICC, 902 F.2d 423, 434-35 (5th Cir.1990). The same is true in this review of an EEOC order.

Although Knight's cross-petition was untimely and must be dismissed, her motion to intervene was timely; as intervenor, she may, of course, address issues raised by the County's petition. (Again, because of Knight's cross-petition, the EEOC did not file a brief.) Knight's application to enforce the EEOC order is a nullity because there is no statutory basis for jurisdiction over such an application.

B.

The County claims the EEOC's final decision was incorrect because neither the ostracism nor the letter was an ultimate employment decision. It contends further that Knight lacks Article III standing to complain about the letter, because it only disparaged her husband. We address the GERA framework; then the County's standing argument; and, finally, the contention that the factual bases for the retaliation rulings are insufficient.

Our standard of review is set by GERA. In the light of the issues raised by the County, we can set aside the EEOC's final order only if it was "arbitrary, capricious, an abuse of discretion, or otherwise not consistent with law". 42 U.S.C. § 2000e-16c(d)(1).

1.

GERA provides protection against workplace discrimination to certain individuals exempted from protection under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Although Title VII's familiar protections extended to "employees", Title VII's definition of that term excluded certain groups. Pertinent to this case, Title VII provides:

The term "employee" means an individual employed by an employer, except that the term "employee" shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policy making level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office.

42 U.S.C. § 2000e(f) (emphasis added).

GERA, originally adopted as Title III of the Civil Rights Act of 1991, provides protection for those excluded from the definition of "employee". Closely mirroring the language from Title VII's above-quoted § 2000e(f), GERA provides that certain individuals (personal staff; those who serve at policymaking level; advisers on exercise of constitutional or...