Garcia v. EEOC ( 2021 )

Case: 20-60169 Document: 00515921955 Page: 1 Date Filed: 07/01/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
July 1, 2021
No. 20-60169 Lyle W. Cayce
Clerk
Valerie Garcia,
Petitioner,
versus
Equal Employment Opportunity Commission; United
States of America,
Respondents.
Petition for Review of an Order of the
Equal Employment Opportunity Commission
EEOC No. 451 2019 00933
Before Clement, Haynes, and Wilson, Circuit Judges.
Per Curiam:*
Valerie M. Garcia served two terms as an appointed municipal judge
in Brownsville, Texas. Following the expiration of her second term, she was
not reappointed. She contends that her tenure was allowed to lapse because
she raised concerns regarding pay disparity based on her gender. After filing
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 20-60169
various claims with the Equal Employment Opportunity Commission
(EEOC), the EEOC dismissed Garcia’s claims for unlawful discrimination
and retaliation in violation of the Government Employee Rights Act (GERA).
See 42 U.S.C. § 2000e-16c. Garcia now petitions for review of the EEOC’s
decision. Finding no basis for redress of her alleged injury under GERA, 1 we
DENY the petition.
I.
Valerie Garcia served as an Associate Municipal Judge in the City of
Brownsville, Texas. As her second two-year term expired in the summer of
2018, the City had ninety days to notify her whether she would be
reappointed by the city manager, who was vested with the authority to
appoint (and reappoint) judges like Garcia. See Brownsville, Tex.,
Code of Ordinances, subpart A, ch. 66 § 66-6(a) (“The city manager
shall appoint . . . the associate judges . . . to the municipal court.”). She met
with the City’s court administrator to discuss her potential reappointment;
their discussion led her to believe she would be reappointed for a third term
without controversy. Shortly afterward, she and the court administrator met
again—this time to discuss Garcia’s concerns over her pay. Garcia raised
alleged disparities between her compensation and that of the other similarly-
titled judges, all men. She alleges that the court administrator confirmed her
suspicions: she was paid less than her male colleagues, but the presiding judge
had noted funds were available to compensate her for this difference.
Roughly two months later, Garcia received a letter from the interim
city manager informing her that she would not be reappointed as a municipal
1
Garcia only appealed the EEOC’s dismissal of her allegations of discrimination
and retaliation in violation of GERA. She has not administratively exhausted her other
claims asserted under Title VII and the Equal Pay Act.
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judge. 2 Garcia filed charges of discrimination against the City with the
EEOC, alleging that she was discriminated against based on sex and retaliated
against for reporting the pay discrepancies in violation of GERA; Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e; and the Equal Pay Act, 29
U.S.C. § 206(d).
Relevant to this appeal, Garcia’s attorney requested a hearing before
an administrative law judge (ALJ) based on her GERA claims. The EEOC’s
San Antonio Field Office responded, noting GERA did not apply to Garcia,
and accordingly, it denied her request for a hearing. Three months later, the
EEOC’s Office of Field Programs (OFP) sent a follow-up letter clarifying
why Garcia’s claims were not covered under GERA, stating she “cannot be
covered by GERA unless [her position was] exempt from the provisions of
Title VII.” OFP further explained GERA’s inapplicability because the city
manager who appointed Garcia was not an elected official under 42 U.S.C.
§ 2000e(f), § 2000e-16c(a), and 29 C.F.R. § 1603.101. Garcia then appealed
OFP’s determinations regarding her GERA claims to the EEOC, pursuant to
29 C.F.R. § 1603.301, and the EEOC affirmed, entering a final decision
dismissing Garcia’s GERA claims. See 29 C.F.R. § 1603.304.
Garcia petitions for review of the EEOC’s final order dismissing her
GERA claims. Because she has not exhausted her administrative remedies
on any of her other claims, the sole issue before the court is whether Garcia
can properly assert a claim under GERA.
2
Garcia does not contend that an interim city manager has different powers than
an otherwise appointed city manager, nor does she allege the interim city manager here was
improperly placed in office. The City’s ordinances provide the city manager the ability to
designate “a qualified administrative officer of the city to perform his duties during his
absence.” Brownsville, Tex., Code of Ordinances, part I, art. V, § 20.
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II.
After entry of a final order in a matter before the EEOC, aggrieved
parties may petition for review of the order in a court of appeals with proper
venue. 42 U.S.C. § 2000e-16c(c). Here, we have jurisdiction over Garcia’s
appeal because she challenges a final order under 29 C.F.R. §§ 1603.304(d),
1603.306. While the EEOC has not finally decided her other claims, the
EEOC’s order disposed of Garcia’s GERA claims entirely, and Garcia’s
petition for review is otherwise properly before us. On review, “we can set
aside the EEOC’s final order only if it was ‘arbitrary, capricious, an abuse of
discretion, or otherwise not consistent with law.’” Brazoria Cnty. v. EEOC,
391 F.3d 685, 689 (5th Cir. 2004) (quoting 42 U.S.C. § 2000e-16c(d)(1)).
III.
A.
GERA provides a workplace discrimination remedy to certain
employees otherwise exempted from Title VII, specifically “those excluded
from [Title VII’s] definition of employee.” Id. (internal quotation marks
omitted). Critical to Garcia’s claims, however, GERA only covers “any
individual chosen or appointed, by a person elected to public office . . . .”
42 U.S.C. § 2000e-16c(a) (emphasis added). So to qualify for coverage
under GERA, an individual must first be chosen or appointed by someone
who won an election. Employees who are chosen or appointed by an elected
official must then meet one of three additional qualifications, such as serving
the elected official as a policymaker. See § 2000e-16c(a)(2).
Garcia contends her claims are covered under GERA because she is a
policymaking official not otherwise covered under Title VII. She repeatedly
acknowledges that her claims do not fall under Title VII because she does not
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qualify as an employee for its purposes. 3 Instead, she argues GERA provides
her a path to relief because GERA was enacted to fill statutory gaps in Title
VII. She cites the case of a state magistrate judge held to be covered by GERA
for the proposition that she, as a municipal judge, is similarly covered. See
Crowder v. N.C. Admin. Office of the Cts., 374 F. Supp. 3d. 539, 545 (E.D.N.C.
2019).
The EEOC primarily responds that Garcia’s appointment by an
unelected official prohibits her being covered by GERA. The Brownsville
Code of Ordinances vests the city manager with authority to appoint
associate judges to the City’s municipal courts. Brownsville, Tex.,
Code of Ordinances, subpart A, ch. 66 § 66-6(a). The city manager,
in turn, is also an appointed position—chosen by the city commission. Id. at
part I, art. V, § 20. As Garcia was appointed by an appointed official, the
EEOC reasons, her claim must fail.
We agree with the EEOC. Even if we accepted Garcia’s contention
that she is a policymaking official, the fact that she was not selected for her
job by an elected official is fatal to any claim under GERA. 4 This difference
illustrates why Garcia’s reliance on Crowder does not support her case. In
Crowder, the plaintiff was a policymaking employee appointed by an elected
official and, therefore, fell within the express parameters of GERA. See 374
F. Supp. 3d at 541; see also N.C. Judicial Branch, Court Officials,
https://www.nccourts.gov/learn/court-officials (“Magistrates are not
3
Garcia alleged Title VII claims as a part of her original EEOC complaint, but, as
noted, they remain pending before the EEOC and are not a part of this appeal.
4
In her reply brief, Garcia alleges that the city manager who appointed her was
merely an “agent” of the elected commissioners such that she was, in her view, appointed
by the elected commissioners. In addition to having waived this argument by failing to raise
it in her opening brief, she fails to cite any authority supporting this argument.
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elected, but are . . . appointed by the senior resident superior court judge . . . .
Superior court judges are elected by the voters in their district.”) (last
accessed Jun. 29, 2021). Garcia does not affirmatively allege that she was
appointed by an elected official; she only argues she should be covered by
GERA because she is a policymaking official. She further does not contest
the EEOC’s repeated assertions that Garcia was appointed by the city
manager—himself an appointed individual.
By its own terms, GERA does not cover employees unless they are
“chosen or appointed” by an elected official. 42 U.S.C. § 2000e-16c(a).
Lacking this pathway to her employment, Garcia cannot state a claim for
relief under GERA. The EEOC therefore properly dismissed Garcia’s
claims.
B.
Garcia also asserts a due process claim, arguing she was deprived of
both her liberty interest in having a hearing before an ALJ and her property
interest in her continued employment as a municipal judge. As discussed
above, Garcia lacks a statutory basis to assert a right to relief under GERA.
Insofar as her procedural due process rights are concerned, she was provided
with the opportunity to assert her claims before the EEOC. Garcia’s due
process rights are not violated merely because the EEOC determined she
lacked any claim under GERA and dismissed those claims in advance of a
hearing.
Along those lines, her alleged due process violation relating to her
property interest in continued employment gets to the core issue of her
remaining employment claims—whether she was unlawfully discriminated
against under Title VII or the Equal Pay Act. Neither of those claims were
pressed to finality before the EEOC, and Garcia does not appeal them here.
See 42 U.S.C. § 2000e-16c(c). Because we do not consider those issues in
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this appeal, as they are not ripe, we do not consider her assertion of a property
interest in her continued employment. See Lopez v. City of Hous., 617 F.3d
336, 341 (5th Cir. 2010) (“A court should dismiss a case for lack of ripeness
when the case is abstract or hypothetical.” (citation and internal quotation
marks omitted)); Orix Credit All., Inc. v. Wolfe, 212 F.3d 891, 895 (5th Cir.
2000) (“[A] case is not ripe if further factual development is required.”
(citation omitted)).
PETITION DENIED.
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