Ray v. Iuka Special Mun. Separate School Dist.

• Decision Date: 16 May 1995
• Docket Number: No. 93-7332,93-7332
• Citation: 51 F.3d 1246
• Parties: 67 Fair Empl.Prac.Cas. (BNA) 1348, 66 Empl. Prac. Dec. P 43,568, 99 Ed. Law Rep. 713 Aubrey RAY, Plaintiff-Appellant Cross-Appellee, v. IUKA SPECIAL MUNICIPAL SEPARATE SCHOOL DISTRICT, et al., Defendants, Tishomingo County Special Municipal Separate School District, Defendant-Appellee Cross-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1246

51 F.3d 1246

67 Fair Empl.Prac.Cas. (BNA) 1348,

66 Empl. Prac. Dec. P 43,568, 99 Ed. Law Rep. 713

Aubrey RAY, Plaintiff-Appellant Cross-Appellee, v. IUKA SPECIAL MUNICIPAL SEPARATE SCHOOL DISTRICT, et al., Defendants Tishomingo County Special Municipal Separate School District, Defendant-Appellee Cross-Appellant.

No. 93-7332.

United States Court of Appeals Fifth Circuit.

May 16, 1995.

Jim Waide, Tupelo, MS for appellant.

Michael D. Cooke, Iuka, MS, for appellee.

Appeals from United States District Court for the Northern District of Mississippi.

Before DAVIS, BARKSDALE and STEWART, Circuit Judges.

STEWART, Circuit Judge:

This is a suit under the Age Discrimination in Employment Act (the "ADEA"), arising from the failure of the consolidated school district of Tishomingo County, Mississippi (the "School District"), to rehire former school principal Aubrey Ray following the consolidation of the Tishomingo County School District and the Iuka Special Municipal Separate School District. Ray, who has nineteen years of experience as a principal, had served as principal in the Iuka County School District for six years prior to bringing this suit.

The consolidation of the two school districts took effect on July 1, 1991. Pursuant to this plan, the Iuka school district sent a letter to its employees in January 1991 informing them that their contracts would not be renewed at the end of the school year. Ray received this letter, but did not interpret it as a notice of termination because it was understood that many Iuka employees would be hired by the consolidated school district.

Ray filed an application for a high school principal position in January of 1991 and for any other administrative position in February of 1991. In March, the School District hired Benny McClung, a man nine years Ray's junior with much less experience, to be the principal of the school where Ray had formerly been principal. In response, Ray filed an EEOC claim against the School District for age discrimination on March 11, 1991.

After holding an "executive session" to discuss the charge, the School District filed a response with the EEOC, claiming that Ray's suit was premature because some positions with the school remained vacant. The School District subsequently hired Robert Haggard, a person from out-of-state who had twelve years of experience, as principal of Magnet High School. It also hired John Mullins, a man from outside the district with 1.5 years of experience, as assistant principal.

Ray filed this complaint on June 26, 1991, alleging age discrimination and retaliation under the ADEA as well as violation of Mississippi's notice provisions. Ray voluntarily dismissed his age discrimination claim before the case went to the jury, and the court directed a verdict against the notice claims.

At trial, the School District claimed that its decision not to rehire Ray was based on his failure to maintain student discipline. Ray sought to show that this explanation was a pretext for retaliation by offering rebuttal evidence that he had been a good principal. Ray Rhodes, a former assistant principal, described Ray as an "even-handed disciplinarian." In addition, Dr. Jerry Clay Stone, the former superintendent of the Iuka school district and Ray's former supervisor, testified that following a joint school board meeting The jury concluded that the School District's decision not to rehire Ray was in retaliation for the EEOC charge and that the School District's conduct was a willful violation of the ADEA. The district court awarded actual and liquidated damages, but denied Ray's request for reinstatement, instead awarding front pay. The court also denied the School District's motions for judgment as a matter of law and, in the alternative, for a new trial. Ray appeals the district court's denial of reinstatement, and the School District cross-appeals the denial of its motions. Because a finding in favor of the School District on the district court's denial of its motions would render the issues raised by Ray moot, we will discuss the issues raised in the cross-appeal first.

several board members approached him about Ray. A school board member had told him: "We might have been able to work out something like this if he had not sued us. I don't think you would hire somebody that had sued us."

DISCUSSION

Was there sufficient evidence to support the verdict?

The School District cross-appeals the district court's denial of its motions on the basis that the jury's findings are unsupported by the evidence. This Court reviews a district court's denial of a motion for judgment as a matter of law to determine whether, based upon the entire record, a reasonable trier of fact could conclude that retaliation was a determinative factor in the decision not to rehire. See Hansard v. Pepsi-Cola Metro. Bottling Co., Inc., 865 F.2d 1461, 1465 (5th Cir.), cert. denied, 493 U.S. 842, 110 S.Ct. 129, 107 L.Ed.2d 89 (1989).

The Age Discrimination in Employment Act prohibits an employer from retaliating against an employee who has made a charge in a proceeding under the Act. 29 U.S.C. Sec. 623(d). To prove retaliation by circumstantial evidence, a plaintiff must first establish a prima facie case by showing: (1) that he engaged in activity protected by the ADEA; (2) that an adverse employment action occurred; and (3) that a causal link between the participation in the protected activity and the adverse employment decision exists. Shirley v. Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir.1992). The defendant then bears the burden of producing a nondiscriminatory reason for its action. Id. The employee bears the ultimate burden of showing that the reasons given by the employer are a pretext for retaliation. Id.

The School District contends that Ray failed to show that the reasons that it articulated as the basis for its decision--specifically, that Ray failed to maintain discipline and was not a good administrator--was a pretext for retaliation. The School District claims that, absent some additional evidence of retaliatory motivation, Ray failed to present sufficient evidence that, but for the EEOC claim, he would have been rehired.

The Supreme Court addressed a longstanding controversy over the evidentiary burden in ADEA cases in St. Mary's Honor Ctr. v. Hicks, --- U.S. ----, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). In Hicks, the Court held that a plaintiff must show that the employer's proffered reason is not credible; and show that an unlawful discriminatory intent motivated the employer's action. Id. at ----, 113 S.Ct. at 2752. Under Hicks, "[i]t is not enough, in other words, to disbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination." Id. at ----, 113 S.Ct. at 2754.

The School District presented testimony that the high school experienced discipline problems during Ray's tenure. In rebuttal, Ray testified that during his six years as principal, no school board member had ever voted against his re-employment; that the Tishomingo school district had once tried to hire him away from the Iuka school district; that each board member had assured him after McClung was hired that his performance was not a factor; that he was more qualified than the other people hired; and that the Board had not mentioned performance in its response to the EEOC.

Ray's testimony was corroborated by other witnesses. Dr. Stone testified that, although he had heard some complaints about discipline, Ray had been an "outstanding" principal and a "model" administrator. The Superintendent More importantly, Ray also presented evidence that the School District's true motive in not hiring Ray was retaliation: Dr. Stone testified that, following a joint board meeting, a board member had told him that Ray might have been hired had it not been for the EEOC charge. ¹ In attacking this evidence, the School District points out that Stone could not attribute this statement to any particular person, and could not recall whether it was made by one of the old or new board members. The School District also points out that Stone testified on cross-examination that he was not aware of any retaliation by any of the board members. In effect, the School District argues that inconsistencies or seeming contradictions in Stone's testimony rendered him unworthy of belief by Ray also rebuts the School District's assertion that he simply was not the best person for the job by pointing out that the persons hired included a person from out-of-state and with much less experience than he.

                of the Baldwyn school district, where Ray is now employed, testified that Ray was doing a "great job" and that he was impressed with Ray's even-handed disciplinary style.  A former assistant principal also contradicted the School District's testimony as to the extent of the disciplinary problems.  We conclude that, from this evidence, the jury could reasonably conclude that the School District's explanation for not hiring Ray was pretextual.  See Hansard, supra, 865 F.2d at 1465 (where only evidence of poor performance is testimonial, jury can discredit it)
                the jury on the issue of retaliation.  However, our close examination of his complete testimony reveals that his answers were consistent.  Stone qualified his answer by saying that he had no personal knowledge of any plan by an individual board member or the boards not to rehire Ray because of the EEOC claim "other than the quick conversation I've already related to."   Having heard all of Stone's testimony, the jury exercised its prerogative to resolve any conflicts in favor of Ray's claim of retaliation
                

The School District also makes much of the fact that Stone admitted he had received complaints about Ray's handling of discipline problems. However, a review of Stone's entire testimony reveals that he stated that many times parents are dissatisfied with the actions of principals, but that the...