244 F.3d 1253 (11th Cir. 2001), 99-15318, Silvera v Orange County School Board

Docket Nº:99-15318.
Citation:244 F.3d 1253
Party Name:Richard S. SILVERA, Plaintiff-Appellee-Cross-Appellant, v. ORANGE COUNTY SCHOOL BOARD, Defendant-Appellant-Cross-Appellee.
Case Date:March 20, 2001
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1253

244 F.3d 1253 (11th Cir. 2001)

Richard S. SILVERA, Plaintiff-Appellee-Cross-Appellant,


ORANGE COUNTY SCHOOL BOARD, Defendant-Appellant-Cross-Appellee.

No. 99-15318.

United States Court of Appeals, Eleventh Circuit

March 20, 2001

March 30, 2001.

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[Copyrighted Material Omitted]

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Appeals from the United States District Court for the Middle District of Florida.(No. 98-00082-CV-ORL-19B), Patricia A. Fawsett, Judge.

Before CARNES and RONEY, Circuit Judges, and O'KELLEY[*], District Judge.

CARNES, Circuit Judge:

A school board fired an employee who had been convicted of child molestation and who also had multiple arrests for violent assaults. One would think that would have been the end of it, since in any sane world school boards should not be required to employ convicted child molesters. But the fired employee made a federal case of it and managed to convince a judge and jury that he had been fired because of his race in violation of Title VII.

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The school board appeals from the judgment against it, contending that the judge was wrong to let the case even go to a jury. The matter is complicated by the fact that the school board did not fire another employee of a different race who had also been convicted of child molestation, because even convicted child molesters are protected against racial discrimination in employment by Title VII. Nonetheless, we agree with the school board that the case should never have gone to the jury, because no reasonable person could find from the evidence that the reason the board fired the convicted child molester plaintiff was race. The board was and is entitled to judgment as a matter of law.



On January 4, 1996, a local television station advised the Orange County School Board that two of its employees, Richard Silvera and Wayne Ritter, had arrest records for child molestation. The Board immediately began an investigation into the backgrounds of both employees.

What the Board found is that Silvera, who is black, had been arrested four times. He was first arrested on March 4, 1979 for battery of his wife. He was arrested again on September 23, 1979, this time for lewd assault on a female child. The arrest report from that incident indicated that Silvera's wife had discovered him "with his pants down a little and his zipper opened" kneeling in front of his six-year-old step-daughter, who had no pants on. To that charge, Silvera pleaded no contest, was convicted, and received three years probation and a fine as punishment. Silvera was again arrested on August 7, 1995, this time for battery of his wife. His fourth arrest was on December 14, 1995, for aggravated assault of his son-Silvera allegedly threatened his son with a machete. That last criminal charge against Silvera was still pending at the time the Board took the action against him that gave rise to this lawsuit.

At roughly the same time, the Board also learned from its investigation that Ritter, who is white, and who is somewhat mentally retarded, had been arrested twice. He was first arrested in 1977 for lewd assault on a minor. He pleaded no contest to that charge, was convicted of it, and was put on probation. Ritter's alleged lewd assault occurred on school property and involved students of Orange County. Ritter was said to have engaged in graphic sexual discussion with young boys in a locker room, exposed and touched his genitals in their presence, made homosexual advances, and touched, or encouraged the boys to touch, their genitals. Ritter was arrested a second time on January 13, 1994, on a charge of driving under the influence. The Board's investigation led it to conclude that second charge against Ritter was probably unfounded.1

On January 5, 1996, Silvera met with Emma Brown Newton, the Board's Associate Superintendent for Human Resources, and at least one other official. Silvera admitted that he had been arrested on a child molestation charge sixteen years earlier. Newton then told Silvera that he was being suspended with pay pending an investigation and that he was entitled to have legal representation at their next meeting. Silvera was then escorted by Board officials through an assembled group of reporters and television cameras.

On January 10, 1996 Silvera and his attorney met with Newton and Ronald Blocker, the Board's Deputy Superintendent for Operations. Silvera provided his arrest records and claimed that he had fully disclosed his past arrests to Mack Wright, who had interviewed Silvera before he was hired by the Board on July 6,

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1982, as an electric motor repair master. Silvera stated that Wright had told him then there was no problem regarding his prior arrests. Newton contacted Wright at some point after the January 10, 1996 meeting with Silvera, and Wright denied to Newton that Silvera had ever told him about the arrests. Newton and Blocker, in consultation with other officials, recommended to the Board that Silvera be fired. By unanimous vote the Board fired Silvera on February 13, 1996. The Board points out that Blocker and Newton, as well as Board member Kattie Adams, are black.

Newton met with Ritter on January 5, 1996, and, like Silvera, Ritter was suspended with pay pending the outcome of the investigation. Ritter, however, was not terminated and he retired sometime in 1997, having worked as a custodian in the school system since sometime in the 1970's.

The Board asserts that it fired Silvera because of his arrest records, including their frequency, recency, and violent nature. The Board asserts that it also would have fired Ritter, but believed it was bound by an agreement reached shortly after his first arrest in 1977, an agreement in which the Superintendent of Schools, the state attorney's office, and the Corrections Department agreed that Ritter would not be terminated as a result of that arrest and the ensuing conviction but that the Board would keep him away from children.


In March 1996, Silvera filed a charge with the Equal Employment Opportunity Commission alleging unlawful racial discrimination. After the EEOC issued Silvera a right-to-sue letter, he filed suit in the United States District Court for the Middle District of Florida, claiming unlawful termination of his employment because of his race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.

The district court denied the Board's motion for summary judgment, and Silvera's race discrimination claim was tried to a jury with Silvera proceeding pro se. At trial, the Board proffered evidence in support of its stated legitimate, nondiscriminatory reason for firing Silvera: the nature, number, and recency of his various arrests.

The jury returned a verdict for Silvera, but declined to award compensatory damages. The district court entered judgment and awarded Silvera back pay of $75,593, front pay of $62,167, and interest. Silvera timely filed a motion seeking a new trial on compensatory damages only. The Board timely filed a renewed motion for judgment as a matter of law and made an alternative motion for a new trial. In support of those motions, the Board argued among other things that...

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