Whiting v. Jackson State University

• Citation: 616 F.2d 116
• Decision Date: 28 April 1980
• Docket Number: No. 78-1338,78-1338
• Parties: 22 Fair Empl.Prac.Cas. 1296, 22 Empl. Prac. Dec. P 30,886 Dr. Robert E. WHITING, Ph.D., Plaintiff-Appellee Cross Appellant, v. JACKSON STATE UNIVERSITY and John A. Peoples, Individually and in his capacity as President of Jackson State University, Defendants-Appellants Cross Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 116

616 F.2d 116

22 Fair Empl.Prac.Cas. 1296,

22 Empl. Prac. Dec. P 30,886

Dr. Robert E. WHITING, Ph.D., Plaintiff-Appellee Cross Appellant, v. JACKSON STATE UNIVERSITY and John A. Peoples, Individually

and in his capacity as President of Jackson State

University, Defendants-Appellants Cross Appellees.

No. 78-1338.

United States Court of Appeals, Fifth Circuit.

April 28, 1980.

Ed Davis Noble, Jr., Asst. Atty. Gen., Jackson, Miss., for defendants-appellants cross appellees.

James G. McIntyre, Jackson, Miss., for plaintiff-appellee cross appellant.

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

Before COLEMAN, Chief Judge, REAVLEY and ANDERSON, Circuit Judges.

REAVLEY, Circuit Judge:

Appellee, Dr. Robert Whiting, won a judgment in the district court for back pay, interest, and attorney's fee and costs. Our examination of the record convinces us that sufficient evidence was adduced to warrant jury submission on Whiting's statutory claims of racial discrimination in employment. However, we find that the district court failed to articulate its reasons for the amount of the attorney's fee award as required by our previous holdings. Consequently, we affirm the award of the back pay, interest and costs, but remand to the lower court for a reconsideration of the attorney's fee award pursuant to the appropriate factors.

Whiting, a white person, was hired as a psychometrist by Jackson State University ("JSU"), a predominantly black, state-supported institution after receiving his Ph.D. in educational psychology. He commenced employment under a one year written contract in the Psychometry Department in August of 1974. The Psychometry Department is, in turn, one component of Student Counseling Services at JSU. His annual contract was renewed the following year; however, Dr. John Peoples, president of JSU, notified Whiting by letter that he was being suspended without pay as a January 23, 1976, and that JSU did not intend to renew his contract.

Whiting subsequently filed this suit in the district court alleging that he was the target of a racially discriminatory discharge. He sought relief pursuant to 42 U.S.C. §§ 1981, 1983 (1976), and section 706 of Title VII, 42 U.S.C. § 2000e-5 (1976), against JSU and Dr. Peoples. ¹ Whiting prayed for compensatory and punitive damages, back pay, other allowances and privileges which were denied him by the actions of JSU, costs and an attorney's fee.

At the close of Whiting's case, JSU's motion for a directed verdict was denied. The jury returned a verdict in favor of Whiting for unpaid salary with interest, a reasonable attorney's fee, and costs. JSU's subsequent motion for a judgment n. o. v. was denied. The district court then entered final judgment on the jury verdict. It awarded $8,400 in unpaid salary, ² $1,397.76 interest, an attorney's fee of $3,000, and costs.

JSU prosecutes this appeal urging that the trial court erred in denying its motions for a directed verdict and a judgment n. o. v. because the evidence was insufficient to warrant jury submission. It also argues that the attorney's fee award is improper because Whiting should not have prevailed on the evidence educed. Whiting cross-appeals on the basis that the trial court misstepped by not instructing the jury that it could award further equitable relief, viz: reinstatement, and compensatory as well as punitive damages. He does not assert that the trial court erred in not awarding reinstatement. Whiting also complains that the attorney's fee award is parsimonious.

I. BASES FOR RELIEF

A. Section 706 of Title VII

The plaintiff in a section 706 suit, such as this, must carry the initial burden of establishing a prima facie case of racial discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 32 L.Ed.2d 668 (1973). Although Green was a hiring case, its four factors for establishing a prima facie case have recently been extended to discharge situations by this circuit. Burdine v. Texas Department of Community Affairs, 608 F.2d 563 (5th Cir. 1979); Marks v. Prattco, Inc., 607 F.2d 1153 (5th Cir. 1979). The plaintiff must show that (1) he belongs to a group protected by the statute; (2) he was qualified for the job from which he was suspended and not rehired; (3) he was terminated; and (4) after his termination, the employer hired a person not in plaintiff's protected class, or retained those, having comparable or lesser qualifications, not in plaintiff's protected class. See Green, 411 U.S. at 802, 93 S.Ct. at 1824. An unanswered Green prima facie showing results in an inference of discriminatory animus in these disparate treatment cases. Furnco Constructions Corp. v. Waters, 438 U.S. 567, 579-80, 98 S.Ct. 2943, 2950-51, 57 L.Ed.2d 957 (1978).

Once the plaintiff has established a prima facie case, the employer must articulate some legitimate, nondiscriminatory reason for the termination. Board of Trustees v. Sweeny, 439 U.S. 24, 99 S.Ct. 295, 58 L.Ed.2d 216 (1978); Waters, 438 U.S. at 577-78, 98 S.Ct. at 2949-50 (1978); Green, 411 U.S. at 802, 93 S.Ct. at 1824. Burdine, 608 F.2d at 567, establishes that we require the employer to prove nondiscriminatory reasons for the discharge by a preponderance of the evidence. The employer is not required to prove absence of a discriminatory motive. Sweeny, 439 U.S. at 25, 99 S.Ct. at 295.

If the employer effectively rebuts the plaintiff's charge, the plaintiff must be afforded a fair opportunity to establish that the employer's asserted justification is, in fact, a ruse for a racially discriminatory decision. Green, 411 U.S. at 804, 805, 807, 93 S.Ct. at 1825, 1826. However, Title VII is not violated simply because an impermissible factor plays some part in the employer's decision. The forbidden taint need not be the sole basis for the action to warrant relief, but it must be a significant factor. Garcia v. Gloor, 609 F.2d 156, 160 (5th Cir. 1980).

Ultimately, the burden of persuasion rests on the plaintiff, who must establish the statutory violation by a preponderance of the evidence. Jepsen v. Florida Board of Regents, 610 F.2d 1379, 1382 (5th Cir. 1980); Causey v. Ford Motor Co., 516 F.2d 416, 420 n.6 (5th Cir. 1975). If this burden is met, our traditional reticence to intervene in university affairs cannot be allowed to undermine our statutory duty to remedy the wrong. Jepsen, 610 F.2d at 1383.

B. 42 U.S.C. § 1981

When section 1981 is used as a parallel basis for relief with section 706 of Title VII against disparate treatment in employment, its elements appear to be identical to those of section 706. Garcia, 609 F.2d at 164; Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979); see also Johnson v. Alexander, 572 F.2d 1219, 1223 n.3 (and cases cited therein) (8th Cir. 1978), cert. denied, 439 U.S. 986, 99 S.Ct. 579, 58 L.Ed.2d 658 (1978).

There is no question that under section 1981, the plaintiff must establish purposeful discrimination equivalent to that required by those alleging fourteenth amendment dereliction. Grigsby v. North Miss. Medical Center, Inc., 586 F.2d 457, 460-61 (5th Cir. 1978); Williams v. DeKalb County, 582 F.2d 2 (5th Cir. 1978). But when section 1981 is merely used as a companion remedy provision to section 706, we hold that such intent should be inferred in the same manner as Waters said it is inferred under section 706.

C. 42 U.S.C. § 1983

Section 1983 serves as a basis for relief for violations of federal law under color of state law. Insofar as it is used as a parallel remedy for transgression of section 1981 and section 706 of Title VII rights, the elements of the causes of action do not differ from those discussed above. The only other federal law that Whiting suggests has been trammeled by JSU's actions is the fourteenth amendment. Despite JSU's interpretation, we do not understand Whiting to complain that he was denied procedural due process. Rather, he claims his termination on racial grounds offends equal protection.

No person may be suspended without pay and refused contract renewal for constitutionally impermissible reasons. Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972); Carmichael v. Chambers County Board of Education, 581 F.2d 95, 97 (5th Cir. 1978). Race, of course, cannot constitutionally serve as the motivating factor for the decision. U.S.Const., amend. XIV; see Lee v. Macon County Board of Education, 453 F.2d 1104 (5th Cir. 1971); Knowles v. Board of Public Instruction of Leon County, Florida, 405 F.2d 1206 (5th Cir. 1969).

In order to establish a violation of the equal protection clause, the plaintiff must prove a racially discriminatory purpose or motive. Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 256, 97 S.Ct. 555, 558, 50 L.Ed.2d 450 (1977); Washington v. Davis, 426 U.S. 229, 240, 96 S.Ct. 2040, 2047, 48 L.Ed.2d 597 (1976); Nevett v. Sides, 571 F.2d 209, 217-18 (5th Cir. 1978), petition for cert. filed, 48 U.S.L.W. 3087 (U.S. Aug. 21, 1979) (No. 78-492). If the plaintiff shows that race was a substantial or motivating factor in the decision to terminate him, the burden shifts to the defendant to show by a preponderance of the evidence that it would have reached the same result even in the absence of the reprobated factor. Mt. Healthy School District Board of Education v. Doyle, 429 U.S. 274, 285-87, 97 S.Ct. 568, 575-76, 50 L.Ed.2d 471 (1977).

II. REVIEW OF THE JURY AWARD OF EQUITABLE RELIEF

Whiting's complaint requested both compensatory and punitive damages in addition to his request for equitable relief. ³ Damages were cognizable at law so the trial court properly placed the case on its jury docket. ⁴ However, we are informed by Whiting in his cross-appeal that the lower court did not instruct the jury that it could award compensatory and punitive damages. Rather, only the request for equitable relief was submitted to the jury and it was submitted...