E.E.O.C. v. West Louisiana Health Services, Inc., 90-4594

• Citation: 959 F.2d 1277
• Decision Date: 16 April 1992
• Docket Number: No. 90-4594,90-4594
• Parties: 58 Fair Empl.Prac.Cas. (BNA) 1161, 58 Empl. Prac. Dec. P 41,447, 22 Fed.R.Serv.3d 1112 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, Elenoria Anderson, Movant-Appellant, v. WEST LOUISIANA HEALTH SERVICES, INC., Defendant-Appellee. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. WEST LOUISIANA HEALTH SERVICES, INC., Defendant-Appellee, v. Betty Jo LEWIS, Intervenor-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1277

959 F.2d 1277

58 Fair Empl.Prac.Cas. (BNA) 1161,

58 Empl. Prac. Dec. P 41,447, 22 Fed.R.Serv.3d 1112

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, Elenoria Anderson, Movant-Appellant, v. WEST LOUISIANA HEALTH SERVICES, INC., Defendant-Appellee.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. WEST LOUISIANA HEALTH SERVICES, INC., Defendant-Appellee, v. Betty Jo LEWIS, Intervenor-Appellant.

No. 90-4594.

United States Court of Appeals, Fifth Circuit.

April 16, 1992.

James D. McMichael, New Orleans, La., for Elenoria Anderson.

H.O. Lestage, III and David R. Lestage, Hall, Lestage & Landreneau, DeRidder, La., for West Louisiana Health Services, Inc.

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

Before POLITZ, Chief Judge, SMITH, Circuit Judge, and FITZWATER, ^* District Judge.

JERRY E. SMITH, Circuit Judge:

Elenoria Anderson and Betty Jo Lewis appeal the decision of a federal magistrate to dismiss their respective title VII complaints. They challenge the jurisdiction of the magistrate to preside over, and enter judgment in, their respective cases. ¹ We affirm as to Anderson but vacate as to Lewis and remand.

I.

On April 4, 1988, the Equal Employment Opportunity Commission (EEOC) filed suit in federal district court, No. CV88-0950, against West Louisiana Health Services, Inc. ("Health Services"), which operates Beauregard Memorial Hospital. The complaint alleged that Health Services had violated title VII by discharging Anderson in retaliation for her opposition to alleged violations of title VII and because she had filed complaints with both the National Association for the Advancement of Colored People and the EEOC. Health Services replied that Anderson's dismissal was unrelated to her complaints, stating that she had been terminated because of insubordination and improper discharge of her duties. Anderson did not intervene in that suit.

After Health Services filed its answer, both parties executed forms consenting to a trial before a magistrate and to entry of final judgment by the magistrate. In July 1988, the district judge issued an order of reference assigning all further proceedings and entry of judgment to the magistrate "in accordance with Title 28, U.S.C. 636(c) and the foregoing consent of the parties."

On September 30, 1988, the EEOC filed another suit, No. CV88-2445, against Health Services alleging that the hospital was engaging in unlawful employment practices, including improperly refusing to re-hire Lewis. Lewis and her husband were involved in the Anderson dispute, as Mr. Lewis, a security guard at the hospital, was refusing to reduce to writing his reports on the employee pilfering that had resulted in Anderson's dismissal. Docket entries were made in Anderson's case as early as June 9, 1988, indicating that the Lewises would be deposed. Lewis, represented by separate counsel, intervened on October 31, 1988.

On November 28, 1988, the district clerk sent all parties of record in No. CV88-2445 a notice of right to consent to the exercise of civil jurisdiction by a magistrate and forms by which to exercise such consent. By December 12, 1988, both the EEOC and Health Services had executed and returned consent forms pursuant to Fed.R.Civ.P. 73; Lewis never filed such a consent.

On December 19, 1988, the EEOC filed a motion to consolidate the two cases, stating, "The Intervenor has no objection to the granting of this Motion." The next day, the district judge granted the motion; thereafter, all court entries were made on one consolidated docket sheet under No. CV88-0950. The cases were treated as a single proceeding for purposes of trial and judgment.

Trial was held before the magistrate beginning August 28, 1989; he filed his ruling and formal judgment on May 29, 1990, dismissing the EEOC's claims and Lewis's intervention. The judgment was docketed on May 30. Since the magistrate issued the final judgment, he sent no report or recommendation to the district judge, who in turn did not enter any form of judgment.

Anderson timely filed a notice of appeal on her own behalf on July 30. Lewis filed a pro se notice of appeal on August 1--sixty-one days after the date of entry of judgment by the magistrate. Lewis's attorney's motion to withdraw as counsel of record was granted three weeks later.

II.

Anderson argues that the magistrate erred in conducting the trial and rendering judgment pursuant to 28 U.S.C. § 636(c), where Lewis never formally had consented to waive her right to have her case tried by a district judge. She asserts that Lewis's failure to file a written consent form deprived the magistrate of jurisdiction. She does not challenge the magistrate's decision on its merits.

Unlike the cases Anderson cites to buttress her argument, Anderson's was not a case in which a party failed to consent to the reference to the magistrate: Anderson, Health Services, and the EEOC did consent to the reference, in writing. If Lewis had been a party to Anderson's case, Lewis's lack of consent would have required that we consider Anderson's argument. At the time of the magistrate's trial, however, Anderson's and Lewis's respective cases although consolidated, still had their individual identities. As we have stated,

consolidation does not cause one civil action to emerge from two; the actions do not lose their separate identity; the parties to one action do not become parties to the other. As a consequence, the subsequent consolidation of [plaintiff's] two lawsuits did not give the district court subject matter jurisdiction to adjudicate his action [where no federal jurisdiction existed independently].

McKenzie v. United States, 678 F.2d 571, 574 (5th Cir.1982) (citations omitted).

We also "view each consolidated case separately to determine the jurisdictional premise upon which each stands." Kuehne & Nagel v. Geosource, Inc., 874 F.2d 283, 287 (5th Cir.1989). There, the district court consolidated two cases for trial. We examined the jurisdictional basis of each case as it existed before the cases were consolidated and found that although we had no jurisdiction over one case, we could consider the merits of the other. See also Alfred Dunhill, Inc. v. Republic of Cuba, 425 U.S. 682, 735, 96 S.Ct. 1854, 1880-81, 48 L.Ed.2d 301 (1976) (individual suits that are consolidated do "not lose their separate identities for purposes of consolidation").

Although the aforementioned cases differ from the instant case in that they involved the issue of federal, rather than a magistrate's, jurisdiction, we see no reason not to apply their analysis here. The magistrate thus had jurisdiction over No. CV88-0950 (regarding Anderson) because both the EEOC and Health Services had executed written consent. The magistrate did not have written consent from all of the parties in No. CV88-2445 (regarding Lewis), however, as only the EEOC and Health Services had given consent. Accordingly, we affirm the judgment of the district court as it applies to Anderson.

III.

We next consider whether Lewis's appeal should be dismissed because her notice of appeal was not timely. It should not. Under Fed.R.App.P. 4(a)(1), a party wishing to appeal a matter in which an agency of the United States is a party must file a notice of appeal within sixty days after the entry of judgment. It is undisputed that Lewis filed her notice sixty-one days after judgment. Ordinarily, such tardiness would leave us without jurisdiction. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 203, 108 S.Ct. 1717, 1722, 100 L.Ed.2d 178 (1988).

The record reflects, however, that Anderson filed her notice of appeal on July 30, within the required period. Fed.R.App.P. 4(a)(3) states,

If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days after the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period last expires.

See Mikeska v. Collins, 928 F.2d 126 (5th Cir.1991) (per curiam) (on rehearing). Because Lewis's notice was filed within the prescribed period after Anderson timely filed her notice, Lewis's appeal is timely if we deem Lewis and Anderson to be parties to the same case for the purpose of appellate jurisdiction.

The rule of McKenzie v. United States, 678 F.2d 571, 574 (5th Cir.1982), discussed in part II, supra, does not resolve the issue at hand. We have recognized that, although consolidation does not eliminate the independent existence of the actions, where the claims have been treated as one throughout the trial, they may be treated similarly for purposes of the notice of appeal:

[T]he issue here is not whether in a general sense separate civil actions remained after consolidation. The issue is whether, because of consolidation, and because of the terms of the judgment and the expectations of the parties and the district court, the district court entered but a single judgment that disposed of all the claims asserted in the consolidated suits, from which only one appeal need be taken by any party aggrieved by any or several of the claims decided, whether or not initially asserted in more than one of the consolidated suits.

Harcon Barge Co. v. D & G Boat Rentals, 746 F.2d 278, 287 (5th Cir.1984), rehearing en banc on other grounds, 784 F.2d 665 (5th Cir.), cert. denied, 479 U.S. 930, 107 S.Ct. 398, 93 L.Ed.2d 351 (1986). Cf. Barnett v. Petro-Tex Chem. Corp., 893 F.2d 800, 805 (5th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 3274, 111 L.Ed.2d 784 (1990) (when cases have been consolidated for trial and disposed of by entry of only one final judgment, a single notice of appeal may be used by all appealing parties).

Here, as in Harcon Barge, although the court could have chosen to treat the cases otherwise, the magistrate issued only one order deciding both consolidated actions, and the clerk used only one docket sheet. See Harcon Barge, 746 F.2d at 286. The...