620 F.2d 195 (8th Cir. 1980), 79-1504, Osborne v. Cleland

Docket Nº:79-1504.
Citation:620 F.2d 195
Party Name:Harold L. OSBORNE, Appellant, v. Max CLELAND, Appellee.
Case Date:April 28, 1980
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 195

620 F.2d 195 (8th Cir. 1980)

Harold L. OSBORNE, Appellant,


Max CLELAND, Appellee.

No. 79-1504.

United States Court of Appeals, Eighth Circuit

April 28, 1980

Submitted Dec. 6, 1979.

Page 196

P. A. Hollingsworth, Little Rock, Ark., (argued), and Janet Pulliam, Little Rock, Ark., on brief, for appellant.

Doug Chavis, III, Asst. U. S. Atty., Little Rock, Ark., (argued), and W. H. Dillahunty, U. S. Atty., Little Rock, Ark., on brief, for appellee.

Before GIBSON, Chief Judge, [*] and LAY and McMILLIAN, Circuit Judges.

LAY, Circuit Judge.

Harold L. Osborne was hired by the Veterans Administration Hospital in North Little Rock, Arkansas as a nursing assistant in May 1973. 1 The appointment affidavit or "Declaration of Appointee" he was required to complete upon his hiring included the following question: "Since the date you signed your qualifications statement (or application) for this employment, have you been convicted of a offense against the law or forfeited collateral, . . .?" 2 Osborne answered "no." On April 10, 1974, Osborne was informed he was being terminated because hospital authorities had discovered he forfeited collateral for the offense of procuring after the date of his application and before he filled out the appointment affidavit.

Osborne worked in the hospital's psychiatric ward until he was terminated. Following administrative appeals he filed this lawsuit, alleging his termination was due to racial discrimination and seeking relief under section 717 of title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C.A. § 2000e-16. 3

At trial Osborne testified he had unintentionally answered "no" to the question because he was thinking of felony convictions. He said he thought race was the reason for his discharge and for not being promoted to the next higher employment grade. His primary evidence was a chart prepared by the hospital that showed at least 14 other employees had falsified their applications, 13 of which had falsified prior convictions. Of the 14, 8 were black and 6 were white. None were terminated by the hospital. A statistician called by Osborne testified that based upon his analysis of the chart, the probability of a white employee being discharged for falsification was zero. He also testified that there was a 98% chance that discharge of one out of nine (the eight

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others plus Osborne) black persons charged with falsification was not due to chance. In addition, Osborne introduced statistical evidence showing that although the hospital employed blacks in excess of their distribution in the general population, they were almost entirely clustered in the lower employment grades of one through five (Osborne was hired as a GS-2).

The hospital's assistant personnel officer, Ernie Frint, testified the United States Civil Service Commission notified the hospital on March 5, 1973, of Osborne's prior arrest and forfeiture. The matter was referred to the Chief Nurse, who decided Osborne should be removed. Frint concurred in the decision and informed the Hospital Director and Chief of Staff. Factors the hospital weighed in its decision to terminate Osborne were: Seriousness of the conviction, when it occurred, and how it would relate to job performance. Frint testified the reason for Osborne's discharge was falsification of his appointment affidavit. He also said that the bearing of the offense of sexual procurement on Osborne's suitability for his job, care of psychiatric patients, was also a determinative factor. Frint testified the nature of the offense was such that, if it had been revealed, Osborne would not have been considered suitable for employment as a psychiatric...

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