E.E.O.C. v. Louisiana Office of Community Services

• Decision Date: 23 March 1995
• Docket Number: No. 93-3835,93-3835
• Citation: 47 F.3d 1438
• Parties: 67 Fair Empl.Prac.Cas. (BNA) 659, 66 Empl. Prac. Dec. P 43,483 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant Cross-Appellee, v. LOUISIANA OFFICE OF COMMUNITY SERVICES, et al., Defendants-Appellees Cross-Appellants, Regina C. Fisher, Plaintiff-Movant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1438

47 F.3d 1438

67 Fair Empl.Prac.Cas. (BNA) 659,

66 Empl. Prac. Dec. P 43,483

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant Cross-Appellee, v. LOUISIANA OFFICE OF COMMUNITY SERVICES, et al Defendants-Appellees Cross-Appellants Regina C. Fisher, Plaintiff-Movant-Appellant.

No. 93-3835.

United States Court of Appeals Fifth Circuit.

March 23, 1995.

Michael F. Barry, J. Wayne Gillette, Paul Bonin, New Orleans, LA, for Fisher.

Paula R. Bruner, Washington, DC, for E.E.O.C.

Steven L. Mayer, Kathleen Dawkins, Dept. of Social Services, Bureau of Gen. Counsel, Baton Rouge, LA, for appellees.

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

Before DAVIS, BARKSDALE and STEWART, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge.

The Equal Employment Opportunity Commission ("EEOC"), on behalf of Regina Fisher, sued the Louisiana Department of Social Services, Office of Community Services ("LOCS"), alleging that LOCS violated the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. Sec. 621-34, when it twice failed to promote Ms. Fisher. After the jury returned a verdict for the EEOC, the district court granted LOCS' motion for judgment as a matter of law. Because we agree with the district court that the evidence is insufficient to support the jury's verdict, we affirm.

I.

Regina Fisher worked for LOCS in various capacities for over twenty-eight years. From 1954-1960, she worked as a caseworker in foster care. After doing family services work in Connecticut from 1961-1965, she returned to LOCS as a foster care supervisor. In 1970, Fisher became a supervisor in the Adoptions Petitions Unit, which reviewed adoption paperwork to ensure compliance with legal requirements. When that position was eliminated in August 1988, she became a supervisor in the Administrative Review Unit, which monitored child welfare cases to ensure that all necessary action had been taken in compliance with Public Law 96:272. More specifically, the law required that certain steps be taken at certain intervals, such as a case review every six months, and the Administrative Review personnel made sure the required steps were taken. Fisher had no responsibility for the quality of the work performed. Her unit simply verified that the requisite steps were taken and documented for the record.

In 1989, when Fisher was sixty-four-years old, LOCS decided to replace the Administrative Review Unit with a Quality Assurance Unit. LOCS proposed that the Quality Assurance Unit assume the functions of the Administrative Review Unit, but that it additionally monitor the quality of child welfare services provided throughout the region. In other words, the Quality Assurance Unit assumed all the duties of the Administrative Review Unit (which were essentially administrative) and additionally evaluated whether a particular case plan best fit the needs of the child.

In this second capacity, Quality Assurance personnel would monitor caseworkers in three "priority" programs--Family Services, Case Management, and Child Protection Investigation ("CPI"). Family Services provides counseling and other services to families needing assistance but whose problems do not require removal of the child from the home. Case Management oversees all aspects of foster care. CPI investigates complaints of neglect and abuse. Caseworkers in each program work directly with children and their families.

Due to the increased skill level required of Quality Assurance Unit personnel, the Louisiana Department of Civil Service ("Civil Service") determined that the Quality Assurance positions were "new" positions, which had to be filled through a competitive promotion process. It classified Quality Assurance caseworkers as Social Services Specialists I ("Specialists") and supervisors as Social Service Supervisors I ("Supervisors I").

LOCS began to fill the Specialist positions in June 1989. During that time, Fisher remained in her former Administrative Review position--classified as a Social Services Counselor I ("Counselor I")--even as those she supervised were being promoted to Specialists. In December 1989, LOCS realized that under the Civil Service rules a Counselor I cannot supervise a Specialist. To comply with the rules, LOCS, in consultation with Civil Service, retroactively placed Fisher on a temporary assignment from June 5, 1989 through December 17, 1989, as a Supervisor I. ¹

In November 1989, LOCS interviewed applicants for three Supervisor I vacancies: one in Quality Assurance and two in Case Management. To qualify, each eligible candidate had to take a civil service exam. The nine applicants who received the top five scores on the exam were then evaluated by a panel comprised of five District Supervisors. ² Each panelist assigned a point value from one to nine to each applicant based upon an "interview packet." This consisted of the applicant's application form, a short narrative written by the applicant describing the applicant's knowledge of Child Protection and particular qualifications for the job, a summary of the three references, and notes taken at the interview. The panel then recommended the three applicants with the highest composite scores to Rebecca Corbello, Regional Manager. Ms. Corbello then approved and forwarded the recommendations to Shirley Goodwin, Division Director of Child Welfare Field Services, who made the final decision to promote the selectees.

The selectees were Donna Leavitt, age 52, Priscilla Brown, age 43, and Carol Mackey, age 38. Leavitt eventually filled the Quality Assurance position, and Brown and Mackey filled the Case Management positions. Fisher had the fourth highest score. After she was not promoted, Fisher filed a charge with the EEOC alleging age discrimination.

In March 1990, LOCS reconvened the panel to fill two additional Supervisor I vacancies for CPI and Case Management, both within Janice Briscoe's sub-region. The panel members were the same, with the exception of Carolyn Kramer. The panel did not reinterview the applicants who had been interviewed in November; they relied on their November interview packets. The panel recommended the four highest scoring applicants: ³ Alvia Brown, David Zumalt, Susan Hitzman and James Mento, all of whom were younger than Fisher. The panel also indicated which position the selectees should fill. This time Fisher ranked eighth on the list, scoring lower than four applicants she had outscored in November. Goodwin eventually selected Brown and Zumalt for Case Management and CPI, respectively.

Fisher filed another charge with the EEOC, alleging that the second promotion denial was because of age and in retaliation for filing the first EEOC charge. Shortly thereafter the EEOC filed this suit alleging age discrimination and retaliation. At trial, LOCS contended that it had not promoted Fisher because the selectees were more qualified for the positions. The jury rendered a verdict for the EEOC, finding that both promotion denials were age related and that the second denial was willful but not retaliatory. LOCS reurged its previously filed motion for judgment as a matter of law or, in the alternative, for a new trial. The district court granted the motion for judgment as a matter of law, holding that the evidence was insufficient to permit a finding that the reason proffered by LOCS for not promoting Fisher was pretextual. The district court was therefore persuaded that the record evidence failed to show that LOCS' personnel decision not to promote Fisher was because of her age. The EEOC and Fisher separately appeal that judgment.

II.

As an initial matter, we address LOCS' motion to dismiss Fisher's appeal. LOCS concedes the EEOC's right to appeal, but contests Fisher's right to appeal separately since she was not a party to the proceedings below. A person who is not a party to the proceedings below generally cannot appeal the court's judgment. See EEOC v. Pan Am. World Airways, Inc., 897 F.2d 1499, 1504 (9th Cir.), cert. denied sub nom. Keith v. EEOC, 498 U.S. 815, 111 S.Ct. 55, 112 L.Ed.2d 31 (1990). However, courts have granted exceptions where the non-parties actually participated in the proceedings below, the equities weigh in favor of hearing the appeal, and the non-parties have a personal stake in the outcome. See id; see also Binker v. Commonwealth of Pa., 977 F.2d 738 (3d Cir.1992) (allowing non-party employees to appeal approval of settlement agreement negotiated by EEOC where employees were involved in the negotiations and where settlement formula was not favorable to employees); EEOC v. West La. Health Servs., Inc., 959 F.2d 1277 (5th Cir.1992) (allowing non-party appeal where EEOC had not pursued appeal in its representative capacity).

An exception is not warranted in this case. Fisher dismissed her private action when the EEOC filed suit. Neither Fisher nor her attorney pled, intervened or otherwise participated in the proceedings below. Nor does Fisher contend that her arguments overlap or are in tension with the EEOC's arguments. Because we conclude that the EEOC adequately represented Fisher below and continues to do so on appeal, we dismiss Fisher's appeal.

III.

A.

We review the district court's grant of judgment as a matter of law de novo. Accordingly, we can affirm only

[i]f the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict.... On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied, and the case submitted to the jury. A mere scintilla is insufficient to present a question for the jury.

Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969) (en banc). In this case, we must determine whether...