1Pursuant 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this opinion should not be published and is not precedent except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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 00-30306

cons. w./ 00-31030

cons. w./ 00-31241

_____________________

FRANCES P. TYLER,

Plaintiff-Appellant,

versus

INTERNATIONAL BROTHERHOOD OF

ELECTRICAL WORKERS, Local

Union 130; ROBERT F. HAMMOND, III,

Defendants-Appellees.

_________________________________________________________________

Appeals from the United States District Court for the

Eastern District of Louisiana

(98-CV-3522-R)

_________________________________________________________________

September 10, 2001

Before KING, Chief Judge, JOLLY and EMILIO M. GARZA, Circuit

Judges.

E. GRADY JOLLY, Circuit Judge:1

The magistrate judge dismissed Frances P. Tyler’s Title VII

claim against Local Union 130 of the International Brotherhood of

Electrical Workers (“Local 130"), on the ground that Local 130 had

less than fifteen employees and thus was not covered by Title VII.

Additionally, the magistrate judge awarded attorney’s fees to Local

130 and when Tyler missed the thirty day period to file an appeal
2

to this court from the order to pay attorney’s fees, the magistrate

judge denied Tyler’s motion for an extension of time to file a

notice of appeal from that order. In these consolidated appeals,

Tyler challenges all three rulings. We conclude that the

magistrate judge court correctly held that Local 130 was not

covered by Title VII because Tyler failed to demonstrate that it

had fifteen or more employees for at least twenty weeks during the

relevant time period. We further conclude that the magistrate

judge did not abuse her discretion by finding that Tyler failed to

demonstrate excusable neglect in filing her notice of appeal one

day beyond the deadline for appealing the order awarding attorney’s

fees. We therefore affirm the dismissal of Tyler’s Title VII claim

for lack of subject matter jurisdiction; affirm the denial of her

motion for an extension of time to file a notice of appeal from the

order awarding attorney’s fees; and, lacking appellate jurisdiction

over the order awarding attorney’s fees, we dismiss her appeal from

that particular order.

I

Tyler was hired by Local 130 as a clerical worker on July 24,

1997. She did not last long: she was fired approximately one week

later, on August 1. She rebounded in November 1998, however, when

she filed an action against Local 130, alleging that it

discriminated against her on the basis of her race, in violation of
2Tyler also named as a defendant the Local Union’s business

manager, Robert F. Hammond, III, but later voluntarily dismissed

her claims against him. In addition to her Title VII claim, she

also asserted claims for breach of contract and intentional

infliction of emotional distress. She did not appeal the summary

judgment in favor of the Local Union on her breach of contract

claim, and voluntarily dismissed her emotional distress claim.

3

Title VII.2 The parties consented to proceed before a magistrate

judge.

Local 130 moved for summary judgment, asserting that the Title

VII claim should be dismissed, because Local 130 had less than the

fifteen employees necessary for Title VII coverage. The magistrate

judge denied summary judgment, holding that Local 130 failed to

demonstrate that any of the persons listed on its payroll did not

have an employment relationship under traditional agency law.

Trial commenced in February 2000. The parties agreed to

bifurcate the trial and address first, in a bench trial, the issue

of subject matter jurisdiction -- that is, whether the Local Union

had enough employees to qualify as an employer under Title VII.

The magistrate judge dismissed Tyler’s Title VII claim for lack of

subject matter jurisdiction because Tyler failed to establish that

Local 130 had fifteen or more employees for twenty weeks during

either 1996 or 1997. In short, the second part of the bifurcated

trial -- that is, the merits trial -- never saw the light of the

courtroom.

Local 130 next moved for attorney’s fees and costs, requesting

$16,755.00 in fees and $1168.52 in costs. In an order entered on
4

July 17, 2000, the magistrate judge awarded Local 130 $8885.00 in

fees and $311.30 in costs. Tyler filed a notice of appeal from the

order awarding attorney’s fees thirty-one days later, on August 17.

On September 8, Tyler moved to extend the time to file a

notice of appeal from the order awarding attorney’s fees, claiming

excusable neglect because her counsel suffered a minor mental slip

-- she did not connect with the important fact that the month of

July has thirty-one days. She also contended that she waited until

what she assumed was the last day to file a notice of appeal

because she wanted to demonstrate good faith in conducting

settlement negotiations with Local 130. The magistrate judge was

not receptive to the proffered excuses and denied the requested

extension, concluding that Tyler had failed to demonstrate

excusable neglect.

II

A

Title VII defines “employer” as “a person engaged in an

industry affecting commerce who has fifteen or more employees for

each working day in each of twenty or more calendar weeks in the

current or preceding calendar year....” 42 U.S.C. § 2000e(b). The

magistrate judge’s finding that Local 130 did not have fifteen or

more employees for at least twenty weeks in 1996 or in 1997 is

reviewed for clear error. See Robinson v. TCI/US West

Communications, Inc., 117 F.3d 900, 904 (5th Cir. 1997) (clearly

erroneous standard applies when dismissal for lack of subject
5

matter jurisdiction is based on resolution of disputed facts).

1

Tyler contends that Local 130 had nineteen employees,

including five officers, who were employed for twenty or more weeks

in 1996. This contention is inconsistent with her concession at

trial that, in 1996, Local 130 did not have fifteen employees

unless: Local 130 is considered as part of a single, integrated

enterprise consisting of Local 130, the New Orleans Electrical

Joint Apprenticeship Fund, the New Orleans Electrical Health and

Welfare Fund, and the New Orleans Electrical Pension and Retirement

Fund (“the Funds”). She argued at trial that, alternatively, even

if employees of the Funds were not counted, Local 130 nevertheless

had fifteen or more employees in 1997, because the officers of

Local 130 must be counted as employees. Tyler cannot be allowed to

take specific positions at trial and then, represented by new

counsel, take inconsistent positions on appeal. See Gregory v.

Missouri Pac. R. Co., 32 F.3d 160, 164-65 & n.12 (5th Cir. 1994).

Moreover, Tyler failed to present any evidence at trial as to

the number of employees on Local 130's 1996 payroll. Contrary to

her assertion in her brief, she did not introduce into evidence at

trial Local 130's 1996 payroll records. Although those records are

part of the summary judgment evidence, they are not relevant to our

review of the magistrate judge’s findings of fact because the

evidence was not presented at trial. See Black v. J. I. Case Co.,

22 F.3d 568, 570 (5th Cir. 1994) (“Once trial began, the summary
6

judgment motion effectively became moot.” (internal quotation marks

and citation omitted)).

On appeal, Tyler has now abandoned another contention she made

at trial: that Local 130 had fifteen or more employees, not

counting the Funds’ employees, in 1997. Accordingly, we need not

consider it. See United States v. Guerrero, 169 F.3d 933, 943 (5th

Cir. 1999) (appellant abandons issues not briefed).

2

Alternatively, as an appellate argument, Tyler contends, as

she did at trial, that Local 130 is part of a single, integrated

enterprise consisting of Local 130 and the Funds, and that the

fifteen-employee requirement is satisfied for both 1996 and 1997

when the Funds’ employees are counted along with those of Local

130. Although Tyler presented evidence of the number of employees

employed by the Funds, she presented no evidence that they were

employed for at least twenty weeks during either 1996 or 1997.

Accordingly, the magistrate judge did not clearly err by finding

that, although Local 130 and the Funds comprised a single,

integrated enterprise, Tyler failed to satisfy the statutory

twenty-week minimum requirement. 

In sum, because the magistrate judge’s finding that Local 130

did not have fifteen or more employees for twenty or more weeks,

either in 1996 or in 1997, is not clearly erroneous, the magistrate

judge properly dismissed Tyler’s Title VII claim for lack of

subject matter jurisdiction.
7

B

Tyler argues that the magistrate judge abused her discretion

by awarding attorney’s fees to Local 130. Because her notice of

appeal from the order awarding attorney’s fees was untimely, we do

not have jurisdiction to consider that issue unless we determine

that the magistrate judge abused her discretion in denying Tyler’s

motion for an extension of time to file her notice of appeal from

that order. See Halicki v. Louisiana Casino Cruises, Inc., 151

F.3d 465, 467 n.1 (5th Cir. 1998) (timely notice of appeal

necessary to exercise of appellate jurisdiction).

In her motion for an extension of time, Tyler asserted that

she waited until the last possible day to appeal so as to be in

good faith in conducting settlement negotiations with Local 130,

but that her counsel failed to realize that July has thirty-one

days. The magistrate judge implicitly determined that Tyler’s

counsel’s good-faith participation in settlement discussions did

not excuse counsel’s neglect in failing to take the simple step of

noting a calendar, something all reasonable persons might be

expected to do when calculating the deadline for filing a notice of

appeal. This determination was not an abuse of discretion. See

Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S.

380, 392 (1993) (“inadvertence, ignorance of the rules, or mistakes

construing the rules do not usually constitute ‘excusable’

neglect”); Halicki, 151 F.3d at 470 (when rule is unambiguous,

district court’s determination that neglect was inexcusable is
8

“virtually unassailable”).

III

For the foregoing reasons, the judgment dismissing Tyler’s

Title VII claim for lack of subject matter jurisdiction, and the

order denying her motion for an extension of time to appeal the

order awarding attorney’s fees to Local 130, are AFFIRMED. Tyler’s

appeal from the order awarding attorney’s fees is DISMISSED.

AFFIRMED in part; DISMISSED in part.