Easley v. Lowndes County, MS ( 2022 )

Case: 21-60136 Document: 00516153688 Page: 1 Date Filed: 01/04/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
January 4, 2022
No. 21-60136 Lyle W. Cayce
Clerk
Charles D. Easley, Jr.,
Plaintiff—Appellant/Cross-Appellee,
versus
Lowndes County, Mississippi,
Defendant—Appellee/Cross-Appellant.
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 1:19-CV-139
USDC No. 1:18-CV-140
USDC No. 1:18-CV-223
Before Higginbotham, Smith, and Ho, Circuit Judges.
Per Curiam: ∗,†
∗
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opinion should not be published and is not precedent except under the limited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.
†
Judge Ho concurs in the judgment on the ground that Lowndes County was not
Easley’s employer. See, e.g., Deal v. State Farm Cnty. Mut. Ins. Co., 5 F.3d 117, 118–19 (5th
Case: 21-60136 Document: 00516153688 Page: 2 Date Filed: 01/04/2022
No. 21-60136
Charles Easley sued Lowndes County, Mississippi under the Age
Discrimination in Employment Act of 1967 (ADEA) for not hiring him as a
part-time public defender. The district court granted Lowndes County’s
motion for summary judgment, finding that the County was the proper
employer, but that Easley failed to show that a genuine issue of material fact
remained. We affirm.
I.
Mississippi provides public defenders through a county office of the
public defender or as appointed counsel on a case-by-case basis. 1 The county
Board of Supervisors has the legal discretion to oversee the public defenders,
including provision of personal and office space. 2 Lowndes County elects to
hire a number of part-time public defenders, who are not appointed on a case-
by-case basis and remain in private practice.
In Lowndes County, the three circuit judges for the 16th Judicial
Circuit appoint a number of part-time public defenders to serve one-year
terms. The judges issue an order naming their appointments, then Lowndes
County puts them on its payroll. Public defenders are eligible to enroll in
County benefits, including retirement benefits and health insurance.
In 2014, when he was 66 years old, Charles Easley, a former justice of
the Mississippi Supreme Court applied to be a public defender in Lowndes
Cir. 1993) (“In determining whether an employment relationship exists within the meaning
of . . . the ADEA, we apply a hybrid economic realities/common law control test. The right
to control an employee’s conduct is the most important component of this test.”)
(quotations and citations omitted); Muhammad v. Dall. Cnty. Cmty. Supervision &
Corrections Dep’t, 479 F.3d 377, 380 (5th Cir. 2007) (same); Juino v. Livingston Par. Fire
Dist. No. 5, 717 F.3d 431, 434 (5th Cir. 2013) (same).
1
See MISS. CODE ANN. §§ 25-32-15, 25-32-17.
2
MISS. CODE ANN. § 25–32–3.
2
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County. Collen Hudson, 27, was hired instead. Easley applied to be a public
defender two more times, in 2015 and 2017. In 2015, Brandon Langford, then
in his twenties, was hired; in 2017, James Dalrample II and Jay Hurdle, both
of whom were under 40, were hired. The judges did not have a formal
interview process and Easley was never interviewed for the position.
After each hiring decision, Easley filed a charge of discrimination with
the Equal Employment Opportunity Commission (EEOC) alleging that he
had been discriminated against due to his age. The EEOC issued a Notice of
Right to Sue to Easley for all three instances. His second and third charges
also alleged that he was retaliated against for making complaints to the
EEOC. In July 2018, Easley filed two cases against Lowndes County alleging
age discrimination. In November 2018, he filed a third case. The Northern
District of Mississippi consolidated these three cases into the case now before
us. Lowndes County moved for summary judgment arguing that it was not
the proper employer, but that if it were the proper employer, summary
judgment was proper. The district court granted the motion for summary
judgment, finding that Lowndes County was the proper employer, but that
Easley failed to create a genuine issue of fact that he was not hired for
pretextual reasons. Easley timely appealed the ADEA finding; Lowndes
County timely cross-appealed the finding that it was the proper employer.
II.
We review a district court’s grant of summary judgment de novo,
viewing all evidence and drawing reasonable inferences in favor of the non-
moving party. 3 Summary judgment is proper “if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to
3
Ratliff v. Aransas Cty., Tex., 948 F.3d 281, 287 (5th Cir. 2020).
3
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judgment as a matter of law.” 4 “A fact is material if it might affect the
outcome of the suit and a factual dispute is genuine if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” 5 We
can affirm the grant of summary judgment “on any ground supported by the
record and presented to the district court.” 6
III.
We first address Lowndes County’s cross-appeal of the district
court’s finding that it was the employer of the part-time public defenders.
A.
We first examine if Lowndes County is an employer under the ADEA.
The ADEA includes political subdivisions within the statutory definition of
“employer.” Lowndes County is a political subdivision of Mississippi.
Therefore, the County is an employer under the ADEA.
B.
We next examine if there is an employment relationship between the
public defenders and Lowndes County, using a “common law”
control/hybrid economic realities test.7 Under the common law control
prong, we look at the hiring and firing of employees, the right to supervise
employees, and the right to set work schedules. 8 First, the public defenders
are hired by the three judges. Although not in lock step with the statutory
4
Fed. R. Civ. P. 56(a).
5
Harville v. City of Hous., 945 F.3d 870, 874 (5th Cir. 2019) (quoting Thomas v.
Tregre, 913 F.3d 458, 462 (5th Cir. 2019) (cleaned up).
6
Salinas v. R.A. Rogers, Inc., 952 F.3d 680, 682 (5th Cir. 2020).
7
Deal, 5 F.3d at 118–19.
8
Id. at 119.
4
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scheme, the County’s tailoring to fit its needs is not at issue. 9 Second, neither
Lowndes County nor the judges set a work schedule for or routinely
supervise the public defenders.
We also look to the factors from Spirides v. Reinhardt, 10 to determine
whether the County has common law control, 11 addressing only those factors
which clarify our analysis. 12 First, “the kind of occupation,” the level of skill
required, and whether the defenders work without supervision: they must be
lawyers and they work with little supervision. 13 Their independence weighs
against an employment relationship. Second, who provides needed
equipment. 14 Under the statute, the county is to provide equipment, but it
has not done so, weighing against it being the employer. Third, the method
of payment is salaried and is set by Lowndes County, weighing in favor of the
County being the employer. 15 Fourth, is whether the work is integral to the
employer. 16 The County brings criminal charges against defendants and it is
its responsibility to provide a public defender to those defendants. Providing
public defenders is integral to Lowndes County, weighing in favor of an
employment relationship. Finally, we look to the intent of the parties to
9
MISS. CODE. ANN. § 25-32-3.
10
613 F.2d 826, 832 (D.C. Cir. 1979).
11
Broussard v. L.H. Bossier Inc., 789 F.2d 1158, 1160 (5th Cir. 1986).
12
Juino, 717 F.3d at 434–35. These factors are often used to determine if the worker
is an employee or independent contractor, so not all apply here.
13
Id. (quoting Diggs v. Harris Hosp.-Methodist, Inc., 847 F.2d 270, 272 (5th Cir.
1988))
14
Id.15
Id.16
Id.5
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establish an employment relationship. 17 Lowndes County argues that it did
not intend to employ the public defenders, but has used this system for years
to provide and pay public defenders. Overall, the factors weigh in favor of the
County employment.
Next, we look to the economic realities prong of the hybrid test,
considering “who paid the employee’s salary, withheld taxes, provided
benefits, and set the terms and condition of employment.” 18 Lowndes
County pays the public defenders, withholds their taxes, and offers them
retirement benefits and life, health, vision, and dental insurance. The
insurance forms all list Lowndes County Board of Supervisors as the
employer. The economic realities prong weighs in favor of the County being
the employer.
Although the initial control prong weighs against County employ, the
Spirides and economic realities prongs weigh in favor of the County being the
employer. We find that Lowndes County is the proper employer.
IV.
The ADEA provides that “[i]t shall be unlawful for an employer to
fail or refuse to hire or to discharge any individual or otherwise discriminate
against any individual . . . because of such individual’s age.” 19 Where ADEA
claims are based on circumstantial evidence, we apply a burden shifting
framework. 20 First, Easley must establish a prima facie case of age-based
discrimination. Lowndes County then must offer a non-discriminatory
17
Id.18
Deal, 5 F.3d at 119.
19
29 U.S.C. § 623(a)(1).
20
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 807 (1973); Russell v. McKinney
Hosp. Venture, 235 F.3d 219, 222–23 (5th Cir. 2000).
6
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reason for its actions. 21 Then the burden shifts back to Easley to rebut the
County’s stated reasons and show that they are “merely pretextual.” 22
A.
First Easley must establish a prima facie case of age discrimination by
showing that he (1) is a member of a protected class; (2) is qualified for the
position; (3) was subject to an adverse employment action, and (4) was
replaced by someone outside the protected class or treated less favorably than
someone outside the protected class. 23 There is no dispute that Easley is over
forty years of age, 24 is qualified for the position, suffered an adverse
employment action by not being hired, and was treated less favorably than
those outside the protected class.
B.
The burden shifts then to Lowndes County to offer a legitimate, non-
discriminatory reason for its actions. 25 Each judge provided non-
discriminatory reasons why they did not hire Easley. Taken together,
Lowndes County argues that it did not hire Easley because he was only
applying to be a public defender to be eligible for retirement benefits; had
been “dilatory” before the court, filing multiple continuances leading to
delays; was too busy with his private practice; and was difficult to work with.
21
Berquist v. Washington Mut. Bank, 500 F.3d 344, 349 (5th Cir. 2007).
22
Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010).
23
Russell, 235 F.3d. at 223–24.
24
29 U.S.C. § 631(a).
25
Moss, 610 F.3d at 922.
7
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C.
The burden then shifts back to Easley to show that the proffered
reasons were pretext. At the summary judgment stage, Easley must produce
sufficient evidence to create a genuine issue of fact as to whether those
reasons are pretextual. 26
First, Easley argues that the judges’ inconsistent reasons were
pretextual. Although the judges each had different reasons for not hiring
Easley, these reasons have not changed. 27 We find no inconsistency over time
to support a reasonable inference of pretext.
Second, Easley argues that the judges’ failure to interview him is
evidence of pretext. In Stennett v. Tupelo Public School District, this Court
determined that “an employer’s failure to interview a candidate can ‘help
carry [the plaintiff’s] burden of proving pretext.’” 28 Here, unlike in Stennett,
there was no formal interview process. And “the failure to interview,
standing alone, gives rise to no entitlement to recover.” 29 The judges do not
interview candidates “if we know the lawyer.” Easley was well known to the
judges, having appeared before them. In this informal hiring context the
failure to interview Easley does not give rise to an inference of pretext.
Third, Easley argues that the disparity between his qualifications and
the qualifications of those hired is evidence of pretext. However, “unless the
qualifications are so widely disparate that no reasonable employer would have
made the same decision, any differences in qualifications are generally not
26
Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 379 (5th Cir. 2010).
27
See Staten v. New Palace Casino, LLC., 187 Fed. App’x 350, 359 (5th Cir. 2005).
28
619 Fed. App’x 310, 320 (5th Cir. 2015) (quoting Wheeler v. City of Columbus,
686 F.2d 1144, 1153 (5th Cir. 1982)).
29
Wheeler, 686 F.2d at 1153.
8
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probative evidence of discrimination.” 30 Easley had more experience than
the lawyers hired, however, years worked is not the same as superior
qualifications. 31 Experience was not the only qualification the judges were
looking for; “[t]he mere fact that an employer uses subjective hiring criteria
is not . . . sufficient evidence of pretext.” 32 The judges were concerned about
how much time an applicant could devote to the job, if the public defenders
could work together, and about hiring someone who was timely in court. The
disparity in qualifications here is not so great that no reasonable employer
would have made the same decision.
Finally, a plaintiff can demonstrate that the proffered reasons are
pretextual “by showing that the employer’s proffered explanation is false or
‘unworthy of credence.’” 33 However, to show that these reasons were false,
Easley must do more than assert that they are wrong, he “must produce
evidence permitting the jury to disbelieve that [the defendant’s] proffered
reason was its true motivation.” 34 First, Easley disputes that he was too busy
in private practice to be a public defender. However, his testimony supports
the conclusion that he had a busy private practice. Second, Easley disputes
that he only wanted the job to be eligible for retirement benefits and health
insurance. However, Easley testified that he applied to qualify for insurance.
Third, Easley disputes that he was dilatory in his practice in court, however
there is ample evidence of Easley’s repeated need to ask for continuances.
30
Moss, 610 F.3d at 923.
31
Id.; Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 42 (5th Cir. 1996).
32
Manning v. Chevron Chem. Co., LLC, 332 F.3d 874, 882 (5th Cir. 2003).
33
Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003) (quoting Wallace v. Methodist
Hosp. Sys., 271 F.3d 212, 220 (5th Cir. 2001)).
34
Id., at 579; Grimes v. Tex. Dep’t of Mental Health and Mental Retardation, 102 F.3d
137, 139–40 (5th Cir. 1996).
9
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Finally, Easley disputes that he has issues getting along with other lawyers,
specifically, the accusation from Judge Kitchens that he was involved in a
fight. However, the issue is not whether Easley is argumentative, but whether
Kitchens reasonably believes him to be so. 35 Easley offered no evidence
beyond his own belief that he is not hard to get along with and the record
offers sufficient evidence to the contrary. Easley failed to show that proffered
reasons were false or unworthy of credence.
Taken as a whole and viewing the evidence in the light most favorable
to Easley, he has failed to carry his burden. 36 There is no evidence either that
the judges’ non-discriminatory reasons for not hiring him were mere pretext.
V.
Finally, Easley argues that the second and third times he was not hired
were retaliation. The ADEA prohibits retaliation against those who have
undertaken a protected activity in opposition to discrimination and
consequently suffered a material adverse action by the employer. 37 However,
Easley did not defend his retaliation claim at summary judgment. “[T]he
scope of appellate review on a summary judgment order is limited to matters
presented to the district court.” 38 “Therefore, if a party fails to assert a legal
reason why summary judgment should not be granted, that ground is waived
35
Little v. Republic Refining Co., 924 F.2d 93, 97 (5th Cir. 1991) (“[E]ven an
incorrect belief that an employee’s performance is inadequate constitutes a legitimate,
nondiscriminatory reason.”).
36
Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009).
37
29 U.S.C. § 623(d); see also Wooten v. McDonald Transit Assocs., 788 F.3d
490, 499 n.5 (5th Cir. 2015).
38
Keelan v. Majesco Software, Inc., 407 F.3d 332, 339 (5th Cir. 2005).
10
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and cannot be considered or raised on appeal.” 39 Easley’s retaliation claims
are waived.
VI.
As Easley failed to show that a genuine issue of material fact remains,
we AFFIRM the grant of summary judgment.
39
Smith v. Ochsner Health Sys., 956 F.3d 681, 688 (5th Cir. 2020) (quotation
omitted).
11