     Case: 18-20662       Document: 00515099519        Page: 1    Date Filed: 08/30/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                      No. 18-20662                              FILED
                                                                          August 30, 2019
                                                                           Lyle W. Cayce
U.S. Equal Employment Opportunity Commission,                                   Clerk

              Plaintiff

CORY WALDRON,

              Movant - Appellant

v.

JC WINGS ENTERPRISES, L.L.C., doing business as Bayou City Wings; JC
WINGS, LTD.; JG INVESTMENTS ENTERPRISES, L.L.C.; JG
INVESTMENTS, LTD.; CK1 ENTERPRISES, L.L.C.; TEN LBS, LTD., doing
business as Bayou City Wings,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:16-CV-3245


Before ELROD, GRAVES, and OLDHAM, Circuit Judges. 1
JAMES E. GRAVES, JR., Circuit Judge:*




       1 Judge Oldham concurs in the judgment only.
       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 18-20662
      Appellant Cory Waldron filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”) against his employer, a
restaurant doing business as Bayou City Wings. Waldron alleged Bayou City
Wings violated his civil rights by firing him after he hired, and refused to fire,
a 72-year-old man for a host position. EEOC investigated Waldron’s
allegations, which ultimately led to the filing of the underlying lawsuit. In its
complaint, EEOC asserted Bayou City Wings violated the Age Discrimination
in Employment Act (“ADEA”) by not hiring people over forty years old to work
in “front of house” positions. Waldron moved to join EEOC’s lawsuit, and the
district court denied his motion. Waldron then moved for reconsideration, or in
the alternative to intervene in the lawsuit, and the district court also denied
that motion. Waldron now appeals those rulings.
                              I. BACKGROUND
      In or around 2013, Appellant Cory Waldron worked at Bayou City Wings
as a General Manager. On April 13, 2013, Aaron Lieber, Bayou City Wings’
Director of Operations, fired Waldron. Waldron said he was given three write-
ups that day for alleged tardiness, issues with paperwork, and a “liability
issue.” Waldron claims the real reason he was terminated was because he hired
a 72-year-old man to be a “Host” and “hiring a 72 year old male was against
Bayou City Wings policy.”
      Waldron filed a charge of discrimination with EEOC in May 2013. EEOC
investigated Waldron’s charge and filed the instant lawsuit against JC Wings
Enterprises, LLC d/b/a Bayou City Wings (“JC Wings”) on November 3, 2016,
alleging JC Wings engaged in age discrimination in violation of the ADEA by
refusing to hire individuals within the protected age group for front of house
jobs. EEOC sent Waldron a notice of right-to-sue letter on February 15, 2017,
which he received on March 4, 2017.


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                                     No. 18-20662
      On May 15, 2017, Waldron filed a motion to join the underlying
proceeding. That same day, EEOC filed a motion to amend its complaint to add
JC Wings, Ltd., JG Investments Ltd., JG Investments Enterprises, L.L.C., Ten
Lbs Ltd., and CK1 Enterprises, L.L.C. (collectively with JC Wings, the
“Defendants”) to the lawsuit, alleging they operated as an integrated
enterprise “sufficient to subject all defendants to liability under” the ADEA.
JC Wings opposed both motions.
      On June 22, 2017, the district court granted EEOC’s motion to amend
and EEOC subsequently filed its amended complaint. However, Waldron’s
motion to join remained pending until March 13, 2018, when the district court
denied it. Approximately twenty-eight days later on April 10, 2018, Waldron
filed a motion to reconsider the denial or in the alternative a motion for leave
to intervene. In his motion, Waldron also requested that if the district court
denied reconsideration and leave to intervene, that the district court equitably
toll any administrative deadlines that may affect Waldron’s ability to file a
separate case. EEOC filed a response in support of Waldron’s motion, while the
Defendants opposed it.
      Prior   to   the    district   court       ruling     on      Waldron’s   motion    to
reconsider/intervene, EEOC and Defendants jointly moved the district court to
stay the proceedings to facilitate settlement discussions. The district court
granted the motion, staying all deadlines for thirty days. Towards the end of
the thirty days, EEOC and Defendants moved for another thirty day stay.
Concerned about the progression of the case, Waldron filed a motion for an
expedited ruling on his motion to reconsider/intervene. However, that same
day the district court stayed all deadlines for another thirty days. On
September 5, 2018, the district court denied Waldron’s motion to
reconsider/intervene in its entirety.


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                                        No. 18-20662
      Waldron filed a notice of appeal on September 27, 2018. On October 2,
2018, 2 the district court entered a consent decree wherein EEOC and
Defendants “agreed that this lawsuit should be finally resolved by entry of this
Decree.” The consent decree also stated that “the Court will retain jurisdiction
of this matter to enforce this Decree.”
                                     II. DISCUSSION
A. Motion to Join
      Waldron challenges the district court’s denial of his motion to join
pursuant to Federal Rule of Civil Procedure 20. As a general matter,
28 U.S.C. § 1291 “vests the courts of appeals with jurisdiction over appeals
only from ‘final decisions’ of the district courts . . . .” Mitchell v. Forsyth, 472
U.S. 511, 524 (1985). “Ordinarily orders granting or denying joinder or
substitution are not final.” Acevedo v. Allsup’s Convenience Stores, Inc., 600
F.3d 516, 520 (5th Cir. 2010) (citing 15B Charles A. Wright, Arthur R. Miller
and Edward H. Cooper, Federal Practice and Procedure § 3914.18 (2d ed.
2002)). This is so because “under Rule 21 ‘[m]isjoinder of parties is not a ground
for dismissing an action’” because it generally leaves at least one plaintiff “to
pursue his or her claims to a final judgment.” Id. (first set of quotations quoting
Fed. R. Civ. P. 21).
      Although the district court entered a consent decree, it is not clear to us
that it is a final order within the meaning of § 1291, as it did not dismiss the
case and the district court retained jurisdiction for three years. When queried
at oral argument, Waldron’s counsel stated he believed there was a final
judgment entered after the consent decree which would make his motion
appealable. However, a review of the record reveals no such judgment. While
there is some support for treating a consent decree as a final judgment, the


      2   The district court filed a corrected consent decree on October 9, 2018.
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                                 No. 18-20662
cases tend to turn on the specifics of each case and decree. See Edwards v. City
of Houston, 78 F.3d 983, 991 (5th Cir. 1996) (en banc); Alberti v. Klevenhagen,
46 F.3d 1347, 1364 (5th Cir. 1995).
      Even if we were to determine the consent decree is a final order under
§ 1291, Waldron filed his notice of appeal prior to the entry of the consent
decree. “[A] premature notice of appeal operates as a valid one ‘only when a
district court announces a decision that would be appealable if immediately
followed by the entry of judgment.’” United States v. Cooper, 135 F.3d 960, 963
(5th Cir. 1998) (quoting FirsTier Mortg. Co. v. Inv’rs Mortg. Ins. Co., 498 U.S.
269, 276 (1991)). Nevertheless, “[t]his is not to say that Rule 4(a)(2) permits a
notice of appeal from a clearly interlocutory decision—such as a discovery
ruling or a sanction order under Rule 11 of the Federal Rules of Civil
Procedure—to serve as a notice of appeal from the final judgment.” FirsTier,
498 U.S. at 276. In this instance, we conclude the district court’s ruling on
Waldron’s motion for joinder is a “clearly interlocutory decision” that does not
render valid his premature notice of appeal, especially where Waldron does
not—and cannot—appeal the consent decree itself. See Edwards, 78 F.3d at
993 (“It is well-settled that one who is not a party to a lawsuit, or has not
properly become a party, has no right to appeal a judgment entered in that
suit.”). Accordingly, we determine we are without jurisdiction to consider the
district court’s ruling on Waldron’s motion to join the underlying lawsuit.
B. Motion to Intervene
      The jurisdictional issue that plagues Waldron’s joinder appeal does not
affect his appeal of the district court’s ruling on his motion to intervene, as
“[t]his Court clearly has appellate jurisdiction from the denial of a motion to
intervene as of right.” Trans Chem. Ltd. v. China Nat. Mach. Imp. & Exp.
Corp., 332 F.3d 815, 821 (5th Cir. 2003) (citing Edwards v. City of Houston, 78


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                                        No. 18-20662
F.3d 983, 992 (5th Cir. 1996) (en banc)). In reviewing a ruling on a motion to
intervene as of right, our review is de novo. Id. at 822.
       Pursuant to Federal Rule of Civil Procedure 24(a), a court must permit
anyone to intervene as of right where they are “given an unconditional right to
intervene by a federal statute” or they claim “an interest relating to the
property or transaction that is the subject of the action, and is so situated that
disposing of the action may as a practical matter impair or impede the
movant’s ability to protect its interest, unless existing parties adequately
represent that interest.” Fed. R. Civ. P. 24(a). The potential intervenor must
satisfy all four requirements to intervene as of right. New Orleans Pub. Serv.,
Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 463 (5th Cir. 1984). The district
court denied Waldron’s motion to intervene under Rule 24(a) without
explanation. 3 We conclude the district court did not abuse its discretion in
denying Waldron’s motion under Rule 24(a) because Waldron did not file his
motion to intervene within the ninety-day prescription period mandated by the
ADEA. 4 Waldron therefore did not have an interest in the lawsuit because his
claim was barred by his failure to file a lawsuit—or a motion to intervene—
within ninety days of receiving his notice of right-to-sue letter.




       3  The district court also denied Waldron’s motion for permissive intervention under
Rule 24(b). Waldron mentions permissive intervention in passing, but he does not outline the
standard for permissive intervention or make any argument other than his argument for
intervention as of right. Accordingly, we conclude that Waldron waived this argument.
United States v. Reagan, 596 F.3d 251, 255–56 (5th Cir. 2010) (citing United States v.
Stalnaker, 571 F.3d 428, 439–50 (5th Cir. 2009); Fed. R. App. P. 28(a)(9)(A) (“The
appellant’s brief must contain . . . [the] appellant’s contentions and the reasons for them,
with citations to the authorities and parts of the record on which the appellant relies.”)).
        4 “29 U.S.C. § 626(e) . . . provides that if a charge filed with the EEOC is dismissed or

the proceedings are otherwise terminated, the EEOC must notify the complainant, who may
then bring a civil action within ninety days after receipt of the EEOC notice.” Julian v. City
of Houston, Tex., 314 F.3d 721, 726 (5th Cir. 2002). Waldron stated he received the notice of
right to sue letter on March 4, 2017, making June 2, 2017, the last day of the prescription
period.
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                                 No. 18-20662
      As for his request for equitable tolling, Waldron argues the district court
erred in denying him equitable tolling because the ruling effectively denies him
his day in court. He asserts the district court should have tolled the ninety-day
window for him to file suit because “courts have allowed equitable tolling in
situations where the claimant has actively pursued his judicial remedies by
filing a defective pleading during the statutory period.” Rowe v. Sullivan, 967
F.2d 186, 192 (5th Cir. 1992). Defendants point out that this leniency is
generally reserved for claimants who inadvertently miss deadlines due to a
lack of sophistication, and Waldron is represented by an experienced
employment law attorney. We agree, perceiving no basis for equitable tolling
on this record.
                             III. CONCLUSION
      We DISMISS Waldron’s appeal of the denial of his motion to join for lack
of jurisdiction. As for Waldron’s motion to intervene, we AFFIRM the ruling of
the district court.




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                                 No. 18-20662
JENNIFER WALKER ELROD, Circuit Judge, concurring in part and
dissenting in part:


      I agree with the majority opinion’s conclusion that we lack jurisdiction
to consider the district court’s ruling on the motion to join. However, I part
company with the majority opinion on its resolution of the intervention issue.
In Baldwin County Welcome Center v. Brown, the Supreme Court indicated
that a filed document can be considered a complaint for purposes of Title VII’s
analogous ninety-day prescription period if the document contains a “short and
plain statement of the claim showing that the pleader is entitled to relief” in
accordance with Federal Rule of Civil Procedure 8(a). 466 U.S. 147, 149–50
(1984) (quoting Fed. R. Civ. P. 8(a)). Other circuits have applied Baldwin
County to hold that a document other than a complaint, such as a motion for
appointment of counsel, satisfied the ninety-day rule. See, e.g., Robinson v.
City of Fairfield, 750 F.2d 1507, 1511–12 (11th Cir. 1985); Page v. Ark. Dep’t of
Corr., 222 F.3d 453, 454–55 (8th Cir. 2000).
      Waldron’s motion to join specified that he asserted a retaliation claim
under the ADEA and set out facts underlying that claim which, if true, would
entitle him to relief. This meets Baldwin County’s and Rule 8(a)’s “short and
plain statement” requirement. Indeed, Defendants’ counsel conceded as much
at oral argument. Accordingly, I would hold that Waldron’s motion to join
satisfied the ninety-day rule in this case, so his motion to intervene was not
barred by 29 U.S.C. § 626(e). Reaching the merits of the intervention issue, I
would then hold that the district court erred in denying Waldron’s Federal Rule
of Civil Procedure 24(a) motion to intervene. See Texas v. United States, 805
F.3d 653, 656 (5th Cir. 2015) (“Although the movant bears the burden of
establishing its right to intervene, Rule 24 is to be liberally construed.”
(quoting Brumfield v. Dodd, 749 F.3d 339, 341 (5th Cir. 2014)); In re Lease Oil

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                                 No. 18-20662
Antitrust Litig., 570 F.3d 244, 250 (5th Cir. 2009) (holding that an intervention
was timely even though the party waited two years after becoming aware of its
interest in the lawsuit to intervene).




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