Jottings By An Employer's Lawyer

Friday, February 20, 2004

5th Circuit Gives EEOC A Victory In Unpublished Opinion - Thoughts On Proposed FRAP 32.1


In the ongoing debate over whether the appellate rules should be changed to allow citation to unpublished opinions, see Howard Bashman's ongoing discussion of this issue at How Appealing, a case like EEOC v. Dunbar Diagnostic Services (5th Cir. 2/19/04) [pdf] gives me pause about my general view that doing away with non-published opinions would be a good thing. (That actually is not what the proposed rule would do, it would allow cases to be unpublished or marked non-precedential, but would allow citation to them.) My concern is that with little elaboration, what would generally be considered a conservative panel of the 5th Circuit, Jolly, Higginbotham and DeMoss, overturned the trial court's grant of a Motion for Judgment As A Matter of Law. It is not the overturning which seems improper, but the lack of explanation and the use of language which I could see hurled back at defendant's in the future, that I think simplifies at best, if not incorrectly states, what the 5th Circuit's law really is.

First, there is no explanation at what stage of the case the Motion had been granted or whether it was a jury or non-jury trial. My guess is that it could have been done even before trial, which would explain somewhat the Court's fairly obvious disdain for the proceeding below. That would seem to be improper under the rules, but if that were true surely should have been mentioned. Rather than go into what else had been shown, the Court applys Reeves ruthlessly saying only the EEOC met the "minimal burden" of a prima facie case and the reason for her termination given by the employer was false (based on the standard used by the 5th Circuit for such cases, "the court must review the record as a whole, draw all reasonable inferences in favor of the nonmoving party and do so without weighing the evidence or making credibility determinations.") Therefore, the JMOL was wrong. Clearly there are cases where a prima facie case is made and there is some evidence of falsity, when the court has upheld a JMOL, but you would not know it from this decision.

Given that the district court had also awarded attorneys fees against the EEOC, which although not unheard of is still relatively rare, it seems obvious something else was going on, and the 5th Circuit felt the need to just send it back and keep the case moving. But in doing so, it doesn't seem the full story was given. In these circumstances, making it non-precedential served its purpose well. Could it have been dressed up enough and given enough attention to cure these concerns? Almost certainly. Is it worth the time and effort? I suppose that is what the debate is all about.

Update: According to the Houston Chronicle story, it was a jury trial that was short circuited by Judge Hughes' ruling.


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