“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties.
Trump 5th Circuit judge Andrew Oldham cast the deciding vote in the August decision in U.S. EEOC v. JC Wings Enterprises to affirm the denial of a fired employee’s motion to intervene in an age discrimination lawsuit filed by the Equal Employment Opportunity Commission (EEOC) against his former employer. A George W. Bush appointee dissented, explaining that the fired employee should have been allowed to intervene to contest his firing for raising an age discrimination issue.
Cory Waldron worked as general manager at the Bayou City Wings restaurant in Louisiana. He was fired in 2013 because, he contended, he had hired a 72-year-old man to be a host at the restaurant. He complained to the EEOC, which then sued the restaurant for age discrimination and gave Waldron a letter stating he had a right to sue for retaliation. Waldron decided he wanted to bring his claim in the pending lawsuit against the restaurant and filed motions to do so, including a motion to intervene. The EEOC and the restaurant resolved their dispute by a consent decree, but Waldron’s motion to intervene was denied even though the EEOC supported it. Waldron appealed to the 5th Circuit.
By a 2-1 majority in which Oldham was the deciding vote, the 5th Circuit denied any relief to Waldron. With respect to his motion to intervene, the majority ruled that Waldron had not filed his motion within 90 days of receiving the right to sue letter as required by federal law.
George W. Bush appointee Jennifer Elrod, however, dissented. She pointed out that the Supreme Court has held that any filed document can be considered a motion and complaint in intervention, for purposes of complying with time limit requirements, if it contains a “short and plain statement of the claim showing that the pleader is entitled to relief.” Waldron met that mandate, Elrod explained, because he had filed a motion to “join” the case within the 90-day period in which he specified that he had a “retaliation claim under the [Age Discrimination in Employment Act] and set out facts underlying that claim which, if true, would entitle him to relief.” Elrod further found that Waldron should have been allowed to intervene on the merits and pursue his retaliation claim.
But because of the majority decision that Oldham joined, Waldron was not allowed to intervene in the EEOC case. Since it is also too late for Waldron to file his own complaint, the net result is that Waldron, who first alerted the EEOC to the restaurant’s age discrimination and was fired as a result, will get absolutely no chance to seek a remedy for his improper firing. This decision thus joins the many others where Trump judges have voted against the rights of working people who have suffered job discrimination.