IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 3, 2009
No. 08-60004 Charles R. Fulbruge III
Clerk
ALICE FAYE COX
Plaintiff - Appellant
v.
DESOTO COUNTY, MISSISSIPPI
Defendant - Appellee
Appeal from the United States District Court
for the Northern District of Mississippi
Before SMITH, OWEN, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:
Alice Cox appeals the decision of the district court granting summary
judgment against her claims based upon the defense of collateral estoppel
emanating from a ruling in an administrative proceeding. For the reasons set
forth below, we REVERSE the judgment as to her ADEA retaliation claims and
REMAND those claims; we AFFIRM the remainder of the district court’s
judgment.
I.
No. 08-60004
Factual Background
Cox was a secretary in the sheriff’s office of DeSoto County. She alleges
that, as a result of her age and her refusal to campaign actively for the sheriff’s
re-election, she was transferred from her secretarial position to a position in the
jail for which she was not trained or qualified. In November of 2003, she filed
suit on these claims; she continued to be employed at the jail. In October of
2004, while her first suit was pending, she made a report to her jail supervisor
to the effect that she had witnessed abuse of a jailed inmate by several officers.
Following an investigation by the DeSoto County District Attorney’s office,
it was found that no misconduct occurred and that Cox gave inconsistent
statements about the events she allegedly witnessed. Cox was terminated for
giving a false report. She amended her complaint in the wrongful transfer
lawsuit, contending that DeSoto County terminated her in retaliation for filing
the wrongful transfer lawsuit and that the reason given for her firing was
pretextual. She later sued several individual defendants, such as the sheriff and
the district attorney; that suit was consolidated with the original DeSoto County
suit.
Cox filed for unemployment benefits. The Mississippi Employment
Security Commission (MESC) conducted a hearing and determined that Cox was
not eligible for benefits because she was discharged for work-related misconduct.
She unsuccessfully appealed to an Appeals Referee and Board of Review. She
then filed an appeal in the local circuit court, which she ultimately dismissed.
After the dismissal of her administrative case, the defendants in the
wrongful transfer/termination case filed a motion for summary judgment
contending that the collateral estoppel effect of the MESC ruling barred her case
in federal district court. The court granted the summary judgment as to the
termination claims, but it conducted a jury trial on the original transfer claims.
The jury found for Cox on the age claim and for the County on the First
2
No. 08-60004
Amendment claim (relating to the sheriff’s re-election campaign issue). The
district court entered judgment on the jury verdict and the previously-granted
summary judgment.
On appeal, no one challenges the judgment on the jury verdict, so we do
not consider the original wrongful transfer claims. The other claims are based
upon the contention that Cox was fired for filing the original wrongful transfer
lawsuit, a suit predicated partially on age discrimination, and the contention
that the county’s proffered reasons for Cox’s discharge were false and
pretextual.1
II.
Standard of Review
Because the appeal concerns only the portion of the judgment that was
based upon the court’s original summary judgment, our review is de novo.2
Adams v. Travelers Indem. Co., 465 F.3d 156, 163 (5th Cir. 2006).
III.
Discussion
A. Should this Court Give Collateral Estoppel Effect to the MESC’s Findings?
The law is clear that “when a state agency acting in a judicial capacity .
. . resolves disputed issues of fact properly before it which the parties have had
an adequate opportunity to litigate, federal courts must give the agency’s fact-
finding the same preclusive effect to which it would be entitled in the State’s
courts.” Univ. of Tenn. v. Elliott, 478 U.S. 788, 799 (1986) (internal quotation
1
Although couched as violations of constitutional rights and interference with
employment, her claims against the individual defendants are based upon the same contention
– that they caused her to lose her job because of the wrongful transfer suit and that their
handling of the investigation was biased and improper.
2
Defendants contend that Cox failed to appeal properly this case as against the
individual defendants. While it is not a model notice of appeal, we conclude that Cox
adequately filed her appeal against all defendants.
3
No. 08-60004
marks, alteration, and citation omitted). In Mississippi, administrative
decisions are given preclusive effect. Smith v. University of Mississippi, 797 So.
2d 956, 963 (Miss. 2001). Specifically, the decisions of the MESC are given
preclusive weight in Mississippi courts, if supported by the evidence and in the
absence of fraud. M ISS. C ODE A NN. § 71-5-531 (Rev. 2000); Raiola v. Chevron
U.S.A., Inc., 872 So. 2d 79, 84 (Miss. Ct. App. 2004).
Although Cox voluntarily dismissed her judicial appeal of the MESC
ruling, she now seeks to attack that ruling collaterally by contending that a non-
judicially reviewed decision of the MESC should not be granted preclusive effect.
She also contends that the ruling was not based upon substantial evidence and
was tainted with fraud. Cox’s failure to fully pursue an appeal under § 71-5-531
does not undermine the preclusive effect of the MESC’s decision. See Raiola, 872
So. 2d at 84 (forbidding collateral attack of MESC decision where claimant
sought and received voluntary dismissal of appeal under § 71-5-531). If there
were no opportunity for judicial review, we would have a potentially different
situation. Here, however, it is Cox who failed to pursue her appropriate avenues
to challenge the judgment. Had she done so, she would have had the
opportunity to present evidence, if any, that the MESC’s decision was tainted by
fraud or based on a lack of substantial evidence. See NCI Bldg. Components v.
Berry, 811 So. 2d 321, 329 (Miss. Ct. App. 2001) (noting that a court lacks the
power to overturn the findings of the MESC unless evidence is presented that
the findings are “riddled with fraud” or based on a lack of substantial evidence).
Because Cox failed to fully avail herself of this avenue, she cannot now
collaterally attack the MESC’s decision.
B. Does Collateral Estoppel Bar Cox’s Claims?
The parties concede, under Supreme Court authority, that collateral
estoppel does not apply to state administrative decisions where Congress has
provided for a detailed administrative remedy such as that found in the Age
4
No. 08-60004
Discrimination in Employment Act (ADEA). Astoria Fed. Sav. & Loan Ass’n v.
Solimino, 501 U.S. 104, 110-14 (1991). The ADEA has an anti-retaliation section
which was arguably implicated by Cox’s complaint that she was discharged in
retaliation for filing her original complaint under the ADEA. See 29 U.S.C. §
623(d). Defendants contend that Cox failed to raise this issue in the district
court, but we note that she did raise it, albeit not in great detail.3 Thus, we
conclude that Cox’s claims based upon the ADEA anti-retaliation provisions are
not barred by collateral estoppel.
Cox’s remaining claims that were not addressed by the jury verdict center
on the alleged wrongfulness of her discharge. Other than the ADEA retaliation
claim, they are barred by the preclusive effect of the MESC finding regarding the
reason for her discharge. In her reply brief, Cox claims that the MESC finding,
even if true, would not prevent her claims because her discharge could have been
caused by a mixed motive – her misconduct and a protected reason. At oral
argument and by subsequent letter to the court, her attorney conceded that he
could not point to any place where a mixed-motive claim was raised in the
district court.4 See Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 344 n.3
3
In the district court, Cox stated: “Also to the extent Plaintiff’s claims are based on the
anti-retaliation provisions of the ADEA, collateral estoppel does not bar these claims, because
state administrative provisions which are not judicially reviewed do not have preclusive effects
on claims made pursuant to a detailed administrative scheme to regulate employment
discrimination.”
4
In a post-argument letter, Cox’s counsel contends that this court should consider the
mixed-motive issue despite the absence of any raising of this issue before the district court,
citing to certain Seventh Circuit cases. See Flynn v. Sandahl, 58 F.3d 283 (7th Cir. 1995);
Johnson v. Gudmundsson, 35 F.3d 1104 (7th Cir. 1994); Glass v. Dachel, 2 F.3d 733 (7th Cir.
1993). However, he concedes that Fifth Circuit precedent, by which we are bound, is to the
contrary. Keelan v. Majesco Software, Inc., 407 F.3d 332, 339 (5th Cir. 2005) (“It is well settled
in this Circuit that the scope of appellate review on a summary judgment order is limited to
matters presented to the district court.”). Our cases are clear that mixed-motive must be
raised in the trial court by the party seeking to rely upon it on appeal. See Nasti v. CIBA
Specialty Chem., 492 F.3d 589, 595 (5th Cir. 2007) (finding waiver of mixed-motive claim
because no concession of legitimate, non-discriminatory reason for discharge made before
5
No. 08-60004
(5th Cir. 2007) (“It is well settled that we do not consider issues raised for the
first time on appeal.”). Additionally, we customarily do not consider an appeal
point raised for the first time in a reply brief. Carmona v. Southwest Airlines
Co., 536 F.3d 344, 347 n.5 (5th Cir. 2008). Thus, we do not reach the question
of whether a mixed-motive claim would survive the MESC finding in this case.
IV.
Conclusion
For the foregoing reasons, summary judgment on Cox’s claims based upon
retaliation in violation of the ADEA anti-retaliation provisions is REVERSED
and those claims are REMANDED to the district court for proceedings consistent
with this opinion. In all other respects, the district court’s judgment is
AFFIRMED.
district court). Cox did not raise this issue anywhere before the district court – in her
pleadings or in the summary judgment papers. Thus, we decline to address this issue for the
first time at this late date.
6