Gray v. University of Arkansas at Fayetteville

• Citation: 883 F.2d 1394
• Decision Date: 07 November 1989
• Docket Number: No. 87-1645,87-1645
• Parties: 50 Fair Empl.Prac.Cas. 1112, 51 Empl. Prac. Dec. P 39,265, 55 Ed. Law Rep. 884 Adella D. GRAY, Appellant, v. UNIVERSITY OF ARKANSAS AT FAYETTEVILLE and the Board of Trustees of the University of Arkansas, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 1394

883 F.2d 1394

50 Fair Empl.Prac.Cas. 1112,

51 Empl. Prac. Dec. P 39,265, 55 Ed. Law Rep. 884

Adella D. GRAY, Appellant, v. UNIVERSITY OF ARKANSAS AT FAYETTEVILLE and the Board of Trustees of the University of Arkansas, Appellees.

No. 87-1645.

United States Court of Appeals Eighth Circuit.

Submitted March 16, 1988.

Decided Aug. 25, 1989.

Rehearing En Banc Denied Nov. 7, 1989.

John T. Lavey, Little Rock, Ark., for appellant.

Ginger P. Crisp, Fayetteville, Ark., for appellees.

Before McMILLIAN, WOLLMAN, and BEAM, Circuit Judges.

WOLLMAN, Circuit Judge.

Adella Gray brought this Title VII action against the University of Arkansas (University), claiming that she had been terminated from her position as academic coordinator for the Arkansas Razorbacks because of her sex. The district court ¹ found in favor of the University. Gray v. University of Arkansas, 658 F.Supp. 709 (W.D.Ark.1987). On appeal, Gray contends that the court (1) abused its discretion when it declined to recuse; (2) erred in determining that she had not presented credible direct evidence of discrimination; and (3) incorrectly applied the Title VII law of pretext. We affirm.

I.

After eleven football players flunked out of the University in May 1981, Gray, who had experience working with students on academic probation, proposed to head basketball coach Eddie Sutton and head football coach Lou Holtz that she design a program for the athletic department to help student athletes to achieve academic success. Although the dean of the College of Education expressed reservations about hiring Gray because he felt that she was "too pushy" and did not have good relations with the University faculty, Frank Broyles, the athletic director, hired Gray based on his policy of following the coaches' recommendations. Beginning on March 15, 1982, Gray assisted in recruiting, conducted orientation for incoming freshmen, operated the study hall, and provided tutors for the student athletes. Gray was also responsible for keeping the necessary records to ensure that the student athletes remained eligible under the National Collegiate Athletic Association (NCAA) rules. She advised athletes on their course of study and served as liaison between the coaches and the faculty. As a nontenured faculty member, Gray was terminable at will.

In May 1983, Gray asked an English instructor, who was also an athletic tutor, to change the grade of an athlete in his English class from a "D" to an "Incomplete." During the conversation, Gray expressed the hope that the instructor could be employed again the following year as a tutor. The instructor interpreted Gray's remark as a threat that the athletic department would not rehire him if he failed to comply with Gray's request. After being informed of the incident, the chairman of the English department wrote Broyles to express his anger at and frustration with Gray's request. Broyles responded that Gray's request was improper and that he had given Gray a copy of the letter to remind her of his policy.

In August 1983, Eddie White, who was expected to be the starting end of the football team that season, was declared ineligible because he had taken the same course twice. The error was discovered too late for White to take additional hours in summer school. Although someone else was responsible for the certification, Gray acknowledged that she should have caught the error. White's ineligibility was embarrassing to the athletic department and detrimental to the team's offensive strategy. Broyles testified that Holtz called a staff meeting and "went into rages." TR 3 at 4. Gray's recollection of the incident was that Holtz "just simply said that it was unfortunate." TR 3 at 145.

Holtz' team won only five games that season, and on January 1, 1984, Ken Hatfield succeeded Holtz as head football coach. Although Hatfield brought most of his own staff with him, he did not replace Gray, but instructed her to continue operating the academic program as she had done in the past. He informed his staff that players were responsible for their own actions, including going to class and working towards graduation. Larry Dixon, a volunteer football coach and dormitory counselor for the Razorbacks, was hired to a newly-created academic advisor position that involved maintaining a degree check for compliance with new NCAA rules.

In February of 1984, an irate faculty member informed Hatfield that an athlete had turned in a paper written by a tutor. Hatfield testified that he informed Gray that they were not going to operate that way. Gray denied having the discussion and testified that she always told the tutors that they were never to do the athletes' work.

Gray's advice to students on course selection sometimes conflicted with advice that students received from faculty. Derrick Thomas, a sophomore, informed Hatfield that a professor in the College of Business Administration, Dr. Donald White, had refused to approve a senior-level course that Gray had recommended because Thomas had not taken two of the five prerequisites. Disturbed and angry, Dr. White informed Hatfield that it was inappropriate for the athletic department to advise students on course selection and that the role of the athletic department should be limited to checking that the courses students select fulfill NCAA requirements. Hatfield told Gray that he thought their credibility was destroyed with football players because Thomas would tell the players that Gray had advised him to take a senior-level course as a sophomore.

Another incident concerned Jim Kingsby, an outstanding defensive lineman for the Razorbacks who was placed on academic suspension in 1983. When Kingsby expressed an interest in returning to the University, Hatfield requested that Gray assist Kingsby with the courses he needed for readmittance. Kingsby needed to pass fifteen hours of summer school to be eligible. Having a cumulative grade point average of .9, Kingsby registered for Beginning Raquetball, Wood Finishing, Industrial Design I, and Beginning Canoeing.

Kingsby's grades were to be posted on Friday, July 13, 1984. Although Gray had scheduled her vacation to begin the following Monday, she decided to go on vacation earlier than planned and asked Dixon to cover the posting of Kingsby's grades. When Hatfield discovered that Gray was not at school waiting for Kingsby's grades, he telephoned her and told her to return to the office because he wanted his best and most experienced academic coordinator available in case Kingsby failed some of his courses. As it developed, Kingsby passed all of his courses. Although Gray had returned to the office at Hatfield's request, he concluded that her decision to go on vacation earlier than planned was a disloyal act and decided that he no longer wanted her to be his academic advisor. When Gray returned from vacation, Hatfield placed Dixon in charge of the academic program, with Gray under his supervision.

On January 14, 1985, however, Hatfield returned full responsibility for the academic program to Gray. On February 15, 1985, the dean's office in the College of Business Administration notified Gray that three of Kevin Wyatt's fall 1984 classes would not count toward graduation. Hatfield did not become aware until May 1985 that Wyatt might not be eligible. Gray informed Associate Dean Charles Hubbard of the College of Business Administration that Dr. White had improperly advised Wyatt. This angered Hubbard because he felt that Gray was calling into question the capabilities of his advisors. Hatfield testified that Hubbard would not know the NCAA rules and that it was Gray's responsibility to check that student athletes complied with the rules.

In May 1985, Hatfield decided that he would recommend that Gray not be reappointed. He told Gray that he did not feel comfortable with the way she ran the academic program. Hatfield told Broyles that the reasons for his decision were that he and Gray did not have a good working relationship with faculty and that he was concerned about player ineligibility because of the White, Kingsby, and Wyatt incidents.

Hatfield then telephoned a former teammate, Jerry Welch, and asked him if he would be interested in applying for the position. Dr. Lon Farrell, the associate athletic director, prepared an advertisement for the position of men's academic counselor, which Hatfield asked him to send to Welch. After Broyles reviewed the applications of Welch and another applicant, he hired Welch based on Hatfield's recommendation. Welch's starting salary was $30,000, with additional compensation of $174 per month for supervising study hall. Gray's salary had been $21,780.

Farrell submitted a report of termination, written in pencil, to the Office of Human Relations, stating that "Coach Hatfield had received several reports from the faculty and administration that her [Gray's] public relations with them had not been good. We also need a person that * * *." Farrell later returned to the office to erase portions of what he had written and added the following: "can be a stronger disciplinarian and go into the dorm and awake athletes that are sleeping in." Plaintiff's Exhibit No. 138.

Gray filed a sex-discrimination claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-2(a)(1) (1982). Applying the test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the district court held that Gray had not shown by a preponderance of the evidence that she was terminated because of her sex.

II.

Gray filed a motion for recusal, asserting that an appearance of impropriety existed because the trial judge had been a partner in the practice of law some five years earlier with a member of the Board of Trustees of the University, a party defendant. The district court denied the motion, concluding that this past relationship would not cause reasonable persons to believe that the court...