Patterson v. Masem

• Decision Date: 27 September 1985
• Docket Number: No. 84-2348,84-2348
• Citation: 774 F.2d 251
• Parties: 39 Fair Empl.Prac.Cas. 1266, 38 Empl. Prac. Dec. P 35,609, 27 Ed. Law Rep. 1079 Ruth Polk PATTERSON, Appellant, v. Paul MASEM, Superintendent of the Little Rock School District, and Members of the Board of Education of the Little Rock School District, Individually and in their Official Capacities, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 251

774 F.2d 251

39 Fair Empl.Prac.Cas. 1266,

38 Empl. Prac. Dec. P 35,609, 27 Ed. Law Rep. 1079

Ruth Polk PATTERSON, Appellant, v. Paul MASEM, Superintendent of the Little Rock School

District, and Members of the Board of Education of

the Little Rock School District,

Individually and in their

Official Capacities,

Appellees.

No. 84-2348.

United States Court of Appeals,

Eighth Circuit.

Submitted April 11, 1985.

Decided Sept. 27, 1985.

John W. Walker, Little Rock, Ark., for appellant.

G. Ross Smith, Little Rock, Ark., for appellees.

Before ROSS and JOHN R. GIBSON, Circuit Judges, and COLLINSON, ^* Senior District Judge.

JOHN R. GIBSON, Circuit Judge.

Ruth Polk Patterson appeals from an adverse judgment on her claim that the Little Rock School District impermissibly refused to appoint her to the position of Supervisor of English and Social Studies either because of her race or in retaliation for her exercise of her first amendment rights. Essentially she argues that the district court, ¹ which concluded that neither of these factors substantially affected the employment decision, erred as a matter of law and was clearly erroneous in its factual findings. We affirm.

Ruth Patterson, who is black, had been employed by the Little Rock School District at the time of this suit for approximately twenty-two years. Of these she served fourteen solely as a teacher, three as a teacher with additional administrative duties, and four as a full-time administrator. In addition to a bachelor's degree, Dr. Patterson held a master's degree in English and a doctorate in American studies; she also had numerous publications to her credit. At the time she applied for the position of Supervisor of English and Social Studies, she held the position of Supervisor of Minority Studies.

In the spring of the 1979-80 school year, as part of her duties, Patterson was sent by Superintendent Paul Masem to Central High, one of the schools in the district, to mediate a growing controversy over the student production of the Moss Hart-George Kaufman comedy "You Can't Take It With You." Concern had been expressed that aspects of the casting and some language in the play might be racially offensive, and reports had been received that black students participating in the production were being harassed. The drama teacher agreed to expunge certain racially derogatory language, but left the decision whether to recast the play to eliminate what might be perceived as demeaning racial stereotypes to student vote. No recasting was done. Dr. Patterson viewed this compromise as inadequate and recommended to Superintendent Masem that the play be cancelled. Masem, in a later letter describing the incident, characterized her suggestion as neither "appropriate nor in good faith" and as going beyond her "limited assignment" to "effect a compromise so that [the] play could go on." The play eventually was performed.

At the end of the school year Dr. Patterson formally applied for the position of Supervisor of English and Social Studies, which became vacant due to retirement. Masem and another administrator had indicated to her earlier that she was in line for the position, and Masem recommended her to the Board. When it became apparent that a majority of the Board opposed the appointment, however, Masem withdrew his recommendation of Dr. Patterson and recommended Marvin Zimmerman. Zimmerman, a white male, ultimately was selected. There is no question that Zimmerman, while he did not have a doctorate degree and had experience in only one of the two academic disciplines within the jurisdiction of the position, also met the minimum requirements for the position. The Board appointed Patterson Supervisor of Human Relations.

Dr. Patterson brought suit under various civil rights statutes (42 U.S.C. Secs. 1981, 1983, 2000e-2 (1982) ) alleging that she had been discriminated against because of her race and that the Board had impermissibly retaliated against her for her exercise of free speech rights. After a two-day hearing Circuit Judge Richard Arnold, sitting as a district judge, denied her motion for a preliminary injunction. Judge Arnold noted, however, that "[t]he Court is persuaded that the trier of facts on the merits of this case would probably find that race was a factor," and therefore ordered that Zimmerman be given only the title of "acting" supervisor pending the outcome of the trial. Hearing on Motion for Preliminary Injunction at 173, 180, Patterson v. Masem, No. LR-C-80-372 (E.D.Ark. Aug. 8, 1980). The case was then assigned to Judge Henry Woods who, after accepting the record from the previous hearing and taking additional evidence, rendered judgment against Patterson. ²

I.

The pattern of proof for suits alleging race discrimination in employment is well established. First, a plaintiff must establish a "prima facie case" by proving a set of facts sufficient to give rise to an inference of discrimination. Second, the defendant has the burden to articulate a legitimate nondiscriminatory reason for the employment decision. Third, if these initial burdens are satisfied, the plaintiff is granted an opportunity to show that the justifications offered are but pretexts to conceal the employer's improper motivation. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 1824-26, 36 L.Ed.2d 668 (1973); Kenyatta v. Bookey Packing Co., 649 F.2d 552, 554 (8th Cir.1981) (same pattern applies to suits brought under section 1981 as under Title VII). On review, however, we need not consider the record in this strict sequence. We may instead look directly to the ultimate factual issue of discrimination. United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983).

As an initial matter, Patterson urges that the district court, having accepted the testimony heard by Judge Arnold in the motion for preliminary injunction, must also accept Judge Arnold's "findings" that race was probably a factor in the Board's decision or at a minimum reject them only if they are clearly erroneous. This argument fails for two reasons. First, in general, findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding at trial on the merits, University of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 1834, 68 L.Ed.2d 175 (1981). The haste with which preliminary injunction motions proceed and their limited purpose customarily require the relaxation of procedural safeguards and the introduction of less than all the material evidence. Id. at 395, 101 S.Ct. at 1834. Such lapses counsel against giving preclusive effect to the results of these proceedings. Second, even if the district court were to depart from the general rule, Judge Arnold's findings are not the type sufficient for a decision on the merits. His order explicitly acknowledges that a full airing of the facts is to follow. His findings were, by his own admission, only general impressions. Thus, the district court in this case properly accepted the testimony but undertook to make its own findings of fact. Hearing on Motion for Preliminary Injunction at 165, Patterson v. Masem, No. LR-C-80-372 (E.D.Ark. Aug. 8, 1980).

We also reject Patterson's contention that the school district, because of its history of discrimination, must prove by clear and convincing evidence, rather than by a mere preponderance, that race was not the motivating factor in the employment decision. The cases Patterson cites, e.g., Moore v. Board of Education, 448 F.2d 709 (8th Cir.1971), all involved reductions in teaching staff resulting from judicial orders dismantling the dual school systems in 1969. The evidence does not establish that current policies of the Little Rock School District require application of the higher standard. ³

The district court found that race was not "a significant factor in the School Board's failure to select Dr. Patterson for the position of Supervisor of English and Social Studies. * * * [S]he was not selected for legitimate, non-discriminatory reasons." Patterson v. Masem, 594 F.Supp. 386, (E.D.Ark.1984). The court singled out among these reasons Board members' beliefs that Patterson was "abrasive, did not get along well with faculty and staff and was lacking in interpersonal and management skills." Id. at 394. The district court concluded that the Board's opinion was substantiated by ratings of the district's supervisors, based on evaluations by the various district principals. Dr. Patterson was rated last in interpersonal skills, assistance in program development and job implementation, and adequate feedback to principals. She was rated next to last in responsiveness to requests, knowledge of program or content areas, and ability to evaluate program or content areas. The district court found that these evaluations indicated Dr. Patterson's "performance in her previous supervisory position had left much to be desired" and "would alone have justified the board's passing over her." ⁴

Dr. Patterson challenges these findings. First, she points to the history of segregation in the Little Rock School District, detailed in the Clark litigation, see Clark v. Board of Education, 705 F.2d 265, 266 n. 1 (8th Cir.1983) (listing prior decisions), as evidence of the district's discriminatory employment practices. She notes in particular this court's discussion of the vestiges of discrimination and the absence of blacks in such positions as secondary school principal or supervisor of an academic (as opposed to a vocational or federally funded) program. Id. at 271 & n. 9. A defendant's "general policy and practice with respect to minority employment" may be evidence that the reasons offered for an individual employment decision are pretextual. McDonnell Douglas, 411 U.S. at 804-05, 93 S.Ct. at 1825; Easley v. Empire, Inc., 757 F.2d 923, 931 (8th Cir.1985).

Second, Dr. Patterson argues that the Board's...