Davis v. Parish of Caddo

Case: 21-30694 Document: 00516407631 Page: 1 Date Filed: 07/26/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED No. 21-30694 July 26, 2022 Lyle W. Cayce Clerk Rebecca Davis; Ronnie Davis,

Plaintiffs—Appellants, versus

Parish of Caddo, on behalf of Caddo Parish Commission, Defendant—Appellee.

Appeal from the United States District Court for the Western District of Louisiana USDC No. 5:18-CV-1568

Before King, Elrod, and Southwick, Circuit Judges.

Per Curiam:*

Rebecca and Ronnie Davis sued the Parish of Caddo for sexual harassment in violation of Title VII based on workplace conduct at a Caddo Sewerage District, a political subdivision. They also brought state-law tort claims and a Monell claim. The district court held that Caddo cannot be held liable under Title VII because the Caddo cannot be deemed Mrs. Davis’s “employer.” Relying only on arguments properly before us, we AFFIRM.

The Davises sued Caddo, the Parish Commission, and Caddo’s Sewerage District No. 2, along with the latter’s individual board members. Mrs. Davis alleged maltreatment at and improper termination from the Sewerage District, where she served as office manager. Mrs. Davis pleaded sex discrimination under Title VII and an Equal Protection claim via 42 U.S.C. § 1983 and Monell v. Department of Social Services, 436 U.S. 658 (1978). Along with her husband, she also alleged various state-law torts. The Sewerage District and its individual board members settled, so only Caddo remains party to this case. Caddo says it cannot be sued under Title VII because it was not Mrs. Davis’s “employer” for purposes of federal law. See 42 U.S.C. § 2000e-2(a); id. § 2000e(b). The district court agreed. 1

The only theory that the Davises properly urged below and now on appeal is that Caddo can be held liable under Title VII because the Sewerage District, its board, or a particular board member was Caddo’s “agent.” That theory does not support holding Caddo liable here.

Mrs. Davis contends that the plain text of Title VII weighs in her favor because “agent[s]” are expressly included in the statutory definition of “employer.” See 42 U.S.C. § 2000e (“The term ‘employer’ means a person . . . who has fifteen or more employees . . . , and any agent of such a person . . . .” (emphasis added)). We have held, however, that “an agent under Title VII . . . must be an agent with respect to employment practices.” Deal v. State Farm Cnty. Mut. Ins. Co., 5 F.3d 117, 118–19 (5th Cir. 1993) (emphasis added); cf. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 72 (1986) (“Congress’ decision to define ‘employer’ to include any ‘agent’ of an employer surely evinces an intent to place some limits on the acts of employees for which employers under Title VII are to be held responsible.” (citation omitted) (emphases added)). And because Mrs. Davis has failed to show that any putative agent’s role encompassed employment practices on Caddo’s behalf, we will not disturb the judgment of the district court. 2

The district court’s judgment is AFFIRMED.

at *5, and they again waived them at oral argument because, in counsel’s words, “this is an ‘agency’ case.” See Oral Argument at 40:46–40:55; Jackson v. Watkins, 619 F.3d 463, 466 n.1 (5th Cir. 2010) (noting that the plaintiff–appellant “conceded at oral argument that this is solely a [theory #1] case, not a [theory #2] case, so we consider any [theory #2] arguments to be waived”). Although Caddo failed to brief the Davises’ waiver and even disclaimed waiver/forfeiture at oral argument, see generally Brief for Defendant–Appellee Caddo Parish; Oral Argument at 30:51–31:02, we nonetheless reserve for another day when the question is properly before us whether the “joint employer” or “single integrated enterprise” theories can apply to governmental subdivisions.