IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-60004

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.

United States Court of Appeals

Fifth Circuit

F I L E D

April 3, 2009

Charles R. Fulbruge III

Clerk
No. 08-60004

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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
No. 08-60004

 Although couched as violations of constitutional rights and interference with

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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.

Defendants contend that Cox failed to appeal properly this case as against the

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individual defendants. While it is not a model notice of appeal, we conclude that Cox

adequately filed her appeal against all defendants.

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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 factfinding 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
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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. MISS. CODE ANN. § 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 nonjudicially 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
No. 08-60004

 In the district court, Cox stated: “Also to the extent Plaintiff’s claims are based on the 3

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.”

 In a post-argument letter, Cox’s counsel contends that this court should consider the 4

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

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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. Thus, we 3

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. See Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 344 n.3 4
No. 08-60004

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.

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(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.