Beard v. Annis, 83-8763

• Decision Date: 23 April 1984
• Docket Number: No. 83-8763,83-8763
• Citation: 730 F.2d 741
• Parties: 34 Fair Empl.Prac.Cas. 1139, 34 Empl. Prac. Dec. P 34,318 Terry BEARD, Plaintiff-Appellant, v. B.J. ANNIS, et al., Defendants-Appellees. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 741

730 F.2d 741

34 Fair Empl.Prac.Cas. 1139,

34 Empl. Prac. Dec. P 34,318

Terry BEARD, Plaintiff-Appellant, v. B.J. ANNIS, et al., Defendants-Appellees.

No. 83-8763

Non-Argument Calendar.

United States Court of Appeals Eleventh Circuit.

April 23, 1984.

Laronce Beard, Augusta, Ga., for plaintiff-appellant.

Leonard O. Fletcher, Jr., Augusta, Ga., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Georgia.

Before HILL, JOHNSON and HENDERSON, Circuit Judges.

PER CURIAM:

Plaintiff Terry Beard appeals the district court's grant of summary judgment for the defendants in this employment discrimination action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq., and 42 U.S.C. Secs. 1981, 1983, 1985. Beard also appeals the district court's award of attorney's fees to the defendants. We affirm.

Plaintiff alleged that the reduction in his salary and hours as the Veterans' Coordinator for the Veterans' Cost-of-Instruction Payments (VCIP) Program at Augusta Area Technical School was racially motivated. ¹ The defendants moved for summary judgment arguing that the defendants did not engage in any racially discriminatory employment practices with respect to the plaintiff, or with respect to any other employee or former employee.

In support of their motion, the defendants filed a statement of material facts not in dispute and the affidavits of 15 present and former employees of the Richmond County School System who knew of the events surrounding the allegations made by Beard. Under Local Rule 6.6 of the Southern District of Georgia, the facts set forth in the defendants' statement of material facts are deemed admitted unless controverted by the plaintiffs. The statement and affidavits, as well as the depositions of school officials Jack Patrick and Dennis Harville, established that Beard was hired in 1975 for the position of Veterans' Coordinator. This position was totally funded by federal money from the VCIP Program, and plaintiff knew that his job depended on this federal funding. Because of a declining veteran enrollment at Augusta Tech and because nationwide funding for the VCIP Program was being reduced, the funding at Augusta Tech for the VCIP Program declined steadily. For the period from July 1, 1977, through September 30, 1978, the net award to the school was $40,979.00; for the July 1, 1979, through June 30, 1980, period, the award had been reduced to $28,320.00. Finally, on June 26, 1981, the Department of Education informed the school that its VCIP funds were being eliminated because the school no longer met the program's eligibility requirements. These facts were known by Beard and are not in dispute.

With the decline in the sole source of funding for Beard's position, school authorities determined that it was necessary to make cutbacks in the VCIP Program at Augusta Tech. One secretary was laid off and, eventually, Beard's hours were reduced from a full-time to a part-time basis. At the recommendation of Defendant Harville, two clerical personnel were retained to provide necessary clerical and administrative assistance and to assist with counseling and referrals as needed in the absence of the coordinator.

Both Harville and Defendant Patrick testified that these employment decisions were based on a determination that the real need of the VCIP Program at that time was for clerical services, rather than for coordination. Patrick testified that while the number of veterans was decreasing, which meant less need for counseling, the paperwork and reports that were required by the federal government were increasing. He noted that the VCIP Program required the school to complete quarterly and annual reports, applications, enrollment certification papers, monthly attendance certifications on each veteran, special correspondence for veteran's problems, and other similar reports. He also explained that there had been an increase in audits from not more than once every two or three years to once a year.

When the VCIP Program funds for Augusta Tech were finally terminated in 1981, the school, after trying unsuccessfully to persuade the Department of Education to continue funding the school's program, laid off Beard and the two clerical personnel employed under the VCIP Program, one black secretary and one white secretary.

The defendants' motion having been properly supported, Beard could not rest upon the mere allegations or denials of his pleading but was required to set forth specific facts showing there was a genuine issue for trial. See Fed.R.Civ.P. 56(e). To counter the defendants' evidence, Beard filed his own affidavit and statement of material facts as to which there was a genuine issue. Record 262, 264-65. Plaintiff's statement did not set forth specific material facts that were in dispute but simply stated the issues to be determined in the case. Similarly, the statements in Terry Beard's affidavits did not create a disputed issue of fact because: (1) they were not in conflict with the facts alleged by the defendants; (2) they were ultimate or conclusory facts and conclusions of law; or (3) they referred to matters not even raised in defendants' affidavits or in the depositions of Patrick and Harville and which were not probative of the issue of why Beard's working hours and salary were reduced. See Benton-Volvo-Metairie, Inc. v. Volvo Southwest, Inc., 479 F.2d 135, 139 & n. 6 (5th Cir.1973); 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure, Sec. 2738, at 486-89 (1983).

We recognize that the disposition of an employment discrimination case by summary judgment should be used cautiously. See Hayden v. First National Bank of Mt. Pleasant, Texas, 595 F.2d 994, 997 (5th Cir.1979). Nonetheless, summary judgment may be entered if the plaintiff fails to raise any issue of fact indicative of racially discriminatory conduct by the defendant. See Aquamina v. Eastern Airlines, 644 F.2d 506, 508 (5th Cir.1981). It is beyond dispute that because money from the only source of funding for Beard's job was decreased, the hours for his position were reduced and a secretary was laid off. After the hours were reduced, and even after the position was eliminated, the defendants did not seek other applications for the position and did not increase the hours of other VCIP Program employees. Instead, the school officials simply decided that with the decrease in funding and veteran enrollment yet increase in paperwork, and concomitant decreased need for a coordinator and increased need for clerical personnel, they would reduce the hours of the Veterans' Coordinator rather than those of the two clerical personnel, one of whom was black. This court does not sit in judgment over whether the defendants made the right employment decision in deciding to reduce Beard's hours instead of the hours of the two secretaries, only whether the decision was made on the basis of race. The circumstances surrounding the reduction of Beard's hours...