Parker v. Mississippi State Dept. of Public Welfare

• Decision Date: 09 March 1987
• Docket Number: No. 86-4234,86-4234
• Citation: 811 F.2d 925
• Parties: 43 Fair Empl.Prac.Cas. 243, 42 Empl. Prac. Dec. P 36,923 Earlene PARKER, Plaintiff-Appellant, v. MISSISSIPPI STATE DEPARTMENT OF PUBLIC WELFARE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 925

811 F.2d 925

43 Fair Empl.Prac.Cas. 243,

42 Empl. Prac. Dec. P 36,923

Earlene PARKER, Plaintiff-Appellant, v. MISSISSIPPI STATE DEPARTMENT OF PUBLIC WELFARE, Defendant-Appellee.

No. 86-4234.

United States Court of Appeals Fifth Circuit.

March 9, 1987.

Firnist Alexander, Jr., Jackson, Miss., for plaintiff-appellant.

Sidney J. Martin, Sara E. DeLoach, Giles W. Bryant, Asst. Attys. Gen., Jackson, Miss., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before WISDOM, JOHNSON, and GARWOOD, Circuit Judges.

JOHNSON, Circuit Judge:

This Title VII case involves a challenge to the promotion of a white applicant in preference to a black. The trial court found that the black applicant, Earlene Parker, had failed to meet her ultimate burden of establishing that the promotion was racially motivated. Finding Parker's contentions on appeal unpersuasive, we affirm the judgment of the district court.

I.

Earlene Parker was employed by the Mississippi Department of Public Welfare (MDPW) in 1977 as an eligibility worker. Two years later she was promoted to a social worker position in the agency's Work Incentive (WIN) Program. ¹ In October of 1982, Parker submitted an application for further promotion to a vacant Supervisor III position in the WIN Program. Lynn Daniels, a white female who like Parker worked for MDPW as a social worker, also applied for the vacant position. Parker and Daniels were the only applicants to submit applications by the October 18 deadline.

Mississippi civil service procedures required the State Personnel Board to test both applicants. Only after completing the Supervisor III test could either applicant interview for the position. Parker took the test in late October and scored a 77. Daniels, who postponed her initial test date because of a prior commitment, took the test on December 14 and scored a 94. Although Daniels waited until December 14 to take the test, she was notified on December 13 that MDPW had already scheduled her for an interview.

Parker and Daniels were each interviewed on December 17 by Carolyn Park, administrator of the WIN Program. Immediately after the interviews, Park recommended that Daniels be promoted to the vacant Supervisor III position. Park later testified that three factors led her to conclude that Daniels was the better qualified candidate: (1) Daniels scored significantly higher on the civil service test; (2) Daniels had more experience as a social worker, experience Park considered critical to success as a supervisor; and (3) Daniels had impressed her as the more assertive, articulate applicant. Based on Park's recommendation, the Social Services Department promoted Daniels to the position, effective January 1, 1983.

In response to Daniel's promotion and after exhausting her administrative remedies, ² Parker filed the instant suit on May 20, 1983, alleging that MDPW discriminated against her on the basis of race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. ³ Specifically, Parker complained that MDPW refused to promote her because of her race. Following trial to a federal magistrate, ⁴ the magistrate, in a report and recommendation to the district court, found that Parker had established a prima facie case of employment discrimination, but that MDPW had rebutted this case by articulating a legitimate nondiscriminatory reason for the contested promotion decision. The magistrate further found that Parker had failed to establish that the proffered reason was pretextual and thus failed to meet her ultimate burden of proving discrimination on the basis of race. The district court adopted the magistrate's report and recommendation and entered judgment in favor of MDPW.

Parker appeals asserting (1) that the district court judgment is invalid because the magistrate lacked authority to try the case; (2) that the trial court erred in finding that MDPW had rebutted Parker's prima facie case of discrimination; and (3) that the trial court erred in finding in favor of MDPW on the ultimate question of discrimination vel non.

II.

As a threshold issue, Parker asserts that the magistrate lacked authority to preside over the trial of this case. Under 28 U.S.C. Sec. 636(c), reference of civil cases for full trial and entry of judgment by a magistrate is authorized only if the parties voluntarily consent. The Local Rules of the Southern District of Mississippi further require that the consent be in writing ⁵ and that the district judge execute a written order of reference. See S.D.Miss.R. 7(F). Citing the lack of either consent or an order of reference, Parker asserts that trial before the magistrate was unauthorized and that the district court's judgment based on that trial is invalid. Parker raises both these objections for the first time on appeal.

Parker's assumption that this case was referred pursuant to section 636(c) appears to be mistaken. While 636(c) authorizes both trial and entry of judgment by the magistrate, in this case judgment was entered by the district judge. The magistrate was only assigned to prepare a report and recommendation based on the testimony and other evidence presented at trial. The magistrate specifically informed the parties of their right to file objections to his report with the district judge. This is the procedure typically employed where a magistrate has been assigned responsibilities pursuant to 28 U.S.C. Sec. 636(b)(3). ⁶

With regard to Parker's challenge to the lack of a written consent form, section 636(b)(3) itself contains no such requirement. Consent to a 636(b)(3) designation, if required at all, will be inferred from a party's failure to object to the designation at trial. See Calderon v. Waco Lighthouse for the Blind, 630 F.2d 352, 354 (5th Cir.1980) (consent or waiver inferred from party's failure to object at trial to 636(b)(3) designation). As explained in Cruz v. Hauck, 515 F.2d 322 (5th Cir.1975), cert. denied, 424 U.S. 917, 96 S.Ct. 1118, 47 L.Ed.2d 322 (1976):

a party objecting to a reference should do so prior to or at the time of the reference. If this is infeasible, the objection should be made to the judge at the earliest possible opportunity. Such procedure permits the proper and efficient administration of the judicial process. Otherwise, a party disappointed with a master's report would be able to obtain "a second bite at the apple" by withholding his objection to the reference until after the report.

515 F.2d at 331 (citation omitted). With regard to Parker's complaint about the lack of a written order of reference, we are aware of no requirement that assignments pursuant to 636(b)(3) be in writing. ⁷ Local Rule 7 of the Southern District of Mississippi, which requires district judges to execute written orders, appears to apply only to 636(c) referrals.

Nevertheless, this case does not require us to decide whether the reference was pursuant to 636(c) or 636(b)(3), and we decline to do so. ⁸ Under either provision, Parker has waived any objections to the reference by failing to raise them at trial. Our recent en banc decision in Archie v. Christian, 808 F.2d 1132 (5th Cir.1987), holds that the failure to obtain the parties' consent is a procedural rather than jurisdictional defect, regardless of whether the reference is pursuant to 636(b)(3) or 636(c). As a procedural defect, it can be waived by a party who fails to raise an objection either at trial or on appeal. Id. 808 F.2d at 1137.

In Archie the district court had, without the parties' consent, referred a jury case for trial before a magistrate. Following trial, the district court adopted the magistrate's report and recommendation and entered judgment in favor of the defendant. On appeal a panel of this Court concluded sua sponte that the magistrate lacked jurisdiction to conduct the trial. See Archie v. Christian, 768 F.2d 726, 727 (5th Cir.1985). The panel first concluded that since 636(b) does not authorize the nonconsensual reference of jury trials, the reference was unauthorized under that provision. Id. at 728 (citing Ford v. Estelle, 740 F.2d 374, 380 (5th Cir.1984)). The panel then concluded that the reference also failed to withstand scrutiny when examined under 636(c). Refusing to construe the plaintiff's silence as consent, the panel concluded that express consent, as required by 636(c), was lacking. According to the panel, this lack of consent deprived the magistrate of jurisdiction and precluded the district court from entering a valid judgment based on the magistrate's report. Id.

This Court, sitting en banc, reversed the panel's conclusion that lack of consent was a jurisdictional defect. Instead, the Court held that failure to obtain the parties' consent "was a flaw in the procedure by which that judgment was arrived at: by generally delegating the conducting of jury trials to officials not authorized to do such work without consent of the parties and by the district judges adopting as his own the product of that improper process." Archie v. Christian, 808 F.2d at 1134 (emphasis deleted). Since the plaintiff had not objected to the procedural irregularity either at trial or on appeal, the Court concluded that the defect had been waived. Id. 808 F.2d at 1137.

Our decision in Archie requires a similar conclusion in the instant case: by failing to raise her procedural objections to the reference at trial, Parker has waived her right to do so on appeal. ⁹ We note that Parker complains of both the lack of consent and the district court's failure to execute a written order of reference. While Archie involved only a lack of consent, we have little difficulty concluding that the Court's characterization of that error as procedural is equally applicable here to the absence of a written order of reference.

III.

Parker next challenges the trial court's finding in favor of MDPW on the merits of her Title VII disparate treatment...