Douglass v. United Services Auto. Ass'n

• Citation: 65 F.3d 452
• Decision Date: 02 October 1995
• Docket Number: No. 95-50007,95-50007
• Parties: 68 Fair Empl.Prac.Cas. (BNA) 1470, 66 Empl. Prac. Dec. P 43,744 Paul W. DOUGLASS, Plaintiff-Appellant, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 452

65 F.3d 452 68 Fair Empl.Prac.Cas. (BNA) 1470,
66 Empl. Prac. Dec. P 43,744 Paul W. DOUGLASS, Plaintiff-Appellant,
v.
UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant-Appellee. No. 95-50007. United States Court of Appeals,
Fifth Circuit. Oct. 2, 1995.

Page 454

Paul W. Douglass, Gerrardstown, WV, pro se.

John Joseph Franco, Jr., Cynthia Glass Bivins, San Antonio, TX, for defendant-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge.

A critical issue in this appeal by Paul W. Douglass from a summary judgment is our standard of review, in that Douglass did not file objections to the magistrate judge's report and recommendation, which the district court adopted. Regretfully, our court's precedent requires us to review de novo, even though, in essence, the issues are being raised on appeal for the first time.

Douglass, pro se, challenges the summary judgment dismissing his age discrimination claims against his former employer, United Services Automobile Association (USAA). We AFFIRM.

I.

Born in 1927, Douglass began employment with USAA in February 1980 as a programmer, and was placed on probation in December 1991. Shortly thereafter, in February 1992, he was removed from his position and placed in a holding unit, where USAA employees who had been removed from positions for which they were unqualified were given an opportunity to try to find another position within the company. While in the holding unit, Douglass was offered a position as an automated data processing technician, which he accepted that March. As a result of the change in positions, Douglass suffered a 10.7% decrease in pay.

In July 1993, Douglass filed this action against USAA, claiming that it discriminated against him on the basis of age when it removed him from his programmer position and forced him to accept another position with reduced salary and benefits. ¹ Douglass alleged that, in 1990, he began receiving poor work evaluations and was excluded from beneficial work assignments because of his age.

USAA moved for summary judgment, asserting that Douglass was removed from his position because of poor work performance, not age. USAA supported the motion with affidavits from Douglass' supervisors and personnel records documenting the deficiencies in his performance and the reasons for his removal from the programmer position. Douglass' unsworn response, to which was attached a copy of an affidavit that he had submitted to the Equal Employment Opportunity Commission, asserted that records necessary to prove his claim were not available to him, and that he lacked the financial resources with which to purchase copies of

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depositions that would assist the court in its determination. USAA filed a reply, attaching deposition excerpts and more affidavits in support of its assertion that Douglass was removed from his position because of his performance, not age.

In a September 21, 1994, order and advisory, the magistrate judge stated that Douglass' response was deficient, but that he should be given another opportunity to furnish summary judgment evidence. The order explained, in great detail, summary judgment procedure and Douglass' burden in responding to USAA's motion. Douglass was given until October 14 to respond. In addition, because of Douglass' pro se status and indigence, the magistrate judge ordered USAA to produce copies of all depositions to the court for in camera inspection for the purpose of determining if there was any summary judgment evidence to support Douglass' claim. ² On September 27, Douglass moved for a continuance, stating that he had moved to another state, and wanted to retain an attorney. ³ Douglass did not respond further to the summary judgment motion.

On October 27, the magistrate judge recommended that summary judgment be granted USAA. The magistrate judge noted that Douglass had offered only conjecture, conclusions and opinions unsupported by fact-specific summary judgment evidence, and had, therefore, failed to raise a material fact issue in response to USAA's evidence that he was removed from his programmer position because of poor performance, not age.

Although the magistrate judge's report warned Douglass that his failure to object to the recommendation within 10 days would bar a de novo determination by the district court, and would bar appellate review of the factual findings adopted by the district court, except upon grounds of plain error or manifest injustice, Douglass did not object. The district court, stating that it need not conduct a de novo review of the magistrate judge's memorandum and recommendation because no party had objected, adopted the recommendation and entered judgment for USAA.

II.

Douglass contends that the district court erred by granting summary judgment for USAA, because he can prove that his age was one of the reasons for his demotion. ⁴ The parties disagree, however, as to our standard of review. Douglass maintains that, as usual, the summary judgment should be reviewed de novo. USAA counters that, because Douglass failed to object to the magistrate judge's recommendation, he is precluded from challenging any factual findings of the magistrate judge that were accepted or adopted by the district court, absent plain error. We turn first to the standard of review question.

A.

Before determining the standard of review for a summary judgment when the requisite objections to a magistrate judge's report and recommendation are not filed, we look first to the appellate waiver rule in general, as fashioned by our court. As hereinafter discussed, there is a six-five split between the circuits as to the consequences for a failure to so object; our court resides in the more lenient (minority) camp.

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1.

Federal Rule of Civil Procedure 72 provides that "a party may serve and file specific, written objections to the proposed findings and recommendations" of a magistrate judge within 10 days after being served with a copy of the recommendation, and thereby secure de novo review by the district court; but, it is silent with respect to the consequences of a party's failure to object. The advisory committee's note to Rule 72(b) states that, "[w]hen no timely objection is filed, the [district] court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation". FED.R.CIV.P. 72(b) advisory committee's note (1983). With respect to the consequences for appellate review, the advisory committee states that "[f]ailure to make timely objection to the magistrate's report prior to its adoption by the district judge may constitute a waiver of appellate review of the district judge's order". Id. (citing United States v. Walters, 638 F.2d 947 (6th Cir.1981)).

The Supreme Court has held that the courts of appeals may, in the exercise of their supervisory rule-making power, deny appellate review for failure to object to a magistrate judge's recommendation (appellate waiver rule). Thomas v. Arn, 474 U.S. 140, 155, 106 S.Ct. 466, 475, 88 L.Ed.2d 435 (1985). Thomas condones the denial of appellate review not only of factual findings, but also of legal conclusions. Id. at 150, 106 S.Ct. at 472. The Court observed that the Sixth Circuit's decision to require the filing of objections to preserve the right to appellate review both of factual findings and of legal conclusions is supported by "sound considerations of judicial economy". Id. at 148, 106 S.Ct. at 472.

Absent such a rule, any issue before the magistrate would be a proper subject for appellate review. This would either force the court of appeals to consider claims that were never reviewed by the district court, or force the district court to review every issue in every case, no matter how thorough the magistrate's analysis and even if both parties were satisfied with the magistrate's report. Either result would be an inefficient use of judicial resources. In short, the same rationale that prevents a party from raising an issue before a circuit court of appeals that was not raised before the district court applies here.

Id. (internal quotation marks, brackets, and citation omitted). As noted, the advisory committee's note to FED.R.CIV.P. 72(b) cites with approval another Sixth Circuit case, Walters, which, in applying the appellate waiver rule, did not distinguish between factual findings and legal conclusions.

The Fourth Circuit, which also applies the appellate waiver rule both to factual findings and to legal conclusions, observed that the purpose of the Federal Magistrates Act would be defeated if litigants could ignore their right to file objections with the district court without imperiling their right to raise those objections in the court of appeals.

Litigants would have no incentive to make objections at the trial level; in fact they might even be encouraged to bypass the district court entirely, even though Congress has lodged the primary responsibility for supervision of federal magistrates' functions with that judicial body. Equally as troubling, ... [the absence of such a rule] would impose a serious...