Harris v. Birmingham Bd. of Educ., 82-7155

• Decision Date: 22 August 1983
• Docket Number: No. 82-7155,82-7155
• Citation: 712 F.2d 1377
• Parties: 32 Fair Empl.Prac.Cas. (BNA) 1198, 32 Empl. Prac. Dec. P 33,781, 12 Ed. Law Rep. 674 Rufus HARRIS, Jr., Bobby Minard, George C. Moore, Plaintiffs-Appellants, v. BIRMINGHAM BOARD OF EDUCATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1377

712 F.2d 1377

32 Fair Empl.Prac.Cas. (BNA) 1198,

32 Empl. Prac. Dec. P 33,781, 12 Ed. Law Rep. 674

Rufus HARRIS, Jr., Bobby Minard, George C. Moore, Plaintiffs-Appellants, v. BIRMINGHAM BOARD OF EDUCATION, Defendant-Appellee.

No. 82-7155.

United States Court of Appeals, Eleventh Circuit.

Aug. 22, 1983.

Robert L. Wiggins, Jr., Birmingham, Ala., for plaintiffs-appellants.

Harry L. Hopkins, Peyton Lacy, Jr., Birmingham, Ala., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before FAY, HENDERSON and HATCHETT, Circuit Judges.

HATCHETT, Circuit Judge:

In this Title VII discrimination in employment case, we must determine whether the trial court erred in finding that appellants were not victims of hiring or promotion discrimination because of their race. Finding that the trial court, 537 F.Supp.

716, was clearly erroneous in its findings as to one appellant, we affirm in part, and reverse in part.

FACTS

Rufus Harris, George Moore, and Bobby Minard, are black teacher-coaches in the Birmingham, Alabama, school system. Each has served as an assistant football coach. Moore has also served as a head basketball coach. They claim that the Birmingham Board of Education (BOE) discriminated against them, and other black coaches, by hiring them to head coach and assistant coach positions only in black schools.

A. Harris's Individual Claim

In 1971, Bill Harris, white athletic director, selected Rufus Harris to transfer to Ramsey High School to become the school's first black assistant coach. Harris, unhappy with the decision, orally requested a return to historically black Carver High School at the end of the school year. His request was granted. Upon his return to Carver, Harris served as an assistant football coach. In 1972, when the head football coach position became vacant, James Lowe, the black principal, told Harris that he would be recommended to fill the vacancy. Instead, the principal selected Willie Peake, a black coach. Harris was later replaced as assistant coach by another black coach. Harris claims his transfer to Carver and subsequent discharge were racially motivated. We find nothing in the record to support such a finding.

B. Minard's Individual Claim

In the spring of 1973, E.B. Thompson, the black principal of Parker High School, began searching for a head football coach. Minard was an assistant football coach at Parker High during the 1972-73 school year. Minard, however, never formally expressed an interest in the head coach position to Thompson. Subsequently, Cecil Leonard, a black, was chosen for the job. Minard, assuming that he had been excluded from the staff, did not participate in spring training. He was replaced by Wendell Jones and Alvin Griffin, black assistant coaches. Minard later requested a transfer to Glenn, Carver, or Jackson-Olin High Schools, to teach driver education. Board director, Dr. Goodson, a black, offered Minard the choice of four elementary schools. Minard selected Lewis Elementary, where he taught physical education. Later, he transferred to Glenn High School. During Minard's tenure at Glenn High he never applied for any of several coaching positions. Minard claims that his assignment and discharge from Parker High was racially motivated. Examination of the record reveals no support for these charges.

C. Moore's Individual Claim

In 1973, the head football coach position at Jones Valley High School became vacant. The duty to find a replacement fell to Simpson Pepper, the white principal of Jones Valley High School. Pepper turned to Bill Harris, the Board's athletic director, to assist him in the search for a head football coach. During their search, however, they did not consider Moore for the position. Pepper indicated that he assumed that Moore was happy as head basketball coach and therefore did not consider Moore. Pepper stated the Board had a long standing policy against an individual holding head football and head basketball coaching positions. Bill Harris recommended Herbert Bruce, the disenchanted white head football coach at Phillips High School to fill the Jones Valley vacancy.

Phillips High is a predominantly black high school. During his term as coach at Phillips, Bruce experienced problems maintaining and building its football program. Billy T. Marsh, the white principal of Phillips High, wanted Bruce replaced by a black head football coach. Bruce wanted the head coach position at predominantly white Jones Valley. Pepper, principal at Jones Valley, hired Bruce. This created a head football coaching vacancy at Phillips. When Marsh turned to Bill Harris for advice, Harris suggested Moore.

After an interview, Marsh offered the head football coach job to Moore. Moore requested Harris and Minard as his assistants.

                Marsh denied the request.   Moore later rejected Marsh's offer.   Moore spent the 1973-74 school year at Jones Valley High as an assistant football coach and head basketball coach.   A year later, at Bruce's request, Moore resigned as assistant football coach.   By 1975, historically white Jones Valley High had enrolled a large number of black students.   Bruce, again dissatisfied, left Jones Valley High after two years as head football coach.   He transferred to predominantly white Gardendale High School in the Jefferson County school system.   John Galloway, one of Bruce's white assistant coaches, replaced him at Jones Valley.   Pepper, in reaching his decision to hire Galloway again assumed Moore's lack of interest in a head football coach position.   Pepper based this assumption on Moore's refusal to serve as head football coach at Phillips.   Moore claims the decision not to consider him was racially motivated
                

DISCUSSION

The appellants instituted this Title VII action after receiving a right-to-sue letter from the Equal Employment Opportunity Commission (EEOC). The EEOC investigation revealed a pattern of discrimination in the hiring of head coaches within the Birmingham school system. ¹

Appellants, Rufus Harris, Bobby Minard, and George Moore, instituted this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et seq. The appellants alleged that the appellee, Birmingham Board of Education, discriminates in the hiring and promotion of black coaches within the school system. After instituting this action, the appellants sought class certification. The district court denied class certification because of possible conflicts between the class and the class representatives. During the trial on the merits, at the close of appellants' evidence, the BOE moved to dismiss under rule 41(b), Fed.R.Civ.P. After considering the evidence, the district court granted dismissal under rule 41(b). ² The district court, in reaching its conclusions, gave no weight to the findings of the EEOC, citing Smith v. Universal Service, Inc., 454 F.2d 154 (5th Cir.1972). The district court additionally determined that proof of the existence of past discriminatory acts under the desegregation orders in Armstrong v. Birmingham Bd. of Education, 430 F.Supp. 595 (N.D.Ala.1977), was not sufficient to shift the burden of rebutting the charges of individual discrimination to the Board. We review the case to determine whether class certification was properly denied and whether the trial court's findings are proper and in accord with controlling principles of law.

Moore, Harris, and Minard introduced into evidence a statistical study to sustain Between 1970 and 1980, the hiring pattern of head basketball coaches reflected this same trend. For instance, seventeen (17) head basketball coach vacancies occurred between 1970 and 1980 at historically white schools. When these vacancies occurred, white coaches replaced white coaches in all but three instances. In those three instances, the historically white schools had become predominantly black. Moore was one of the three black coaches to replace a white coach. This evidence reveals that the BOE followed a consistent pattern of assigning black coaches at predominantly black schools and assigning white coaches at predominantly, or historically, white schools.

                their contentions. 3  The study revealed that prior to 1968, the coaching staffs of Birmingham were formally and totally segregated by race.   By the 1970-71 school year, the segregated profile changed little.   During the 1970-71 school year, out of fifty-four (54) head football coaches, only one black coach was assigned to a historically white school and only one white coach was assigned to a historically black school.   By the 1972-73 school year, three black assistant coaches were assigned to historically white schools which had become increasingly black through court ordered desegregation, and two white assistant coaches were assigned to historically black schools.   During the same school year, no black head football coaches were assigned to historically white schools, nor were any white head football coaches assigned to historically black schools.   Only once in a ten-year period (1970-80), was a white head football coach replaced by a black head football coach and that occurred at a school which eventually became predominantly black
                

The evidence shows that the hiring procedure for coaches does not entail posting advertisements or any formal notification of job vacancies. Rather, coaches, or prospective coaches, must hear of promotional opportunities, if at all, by person-to-person communications. Selection criteria are neither uniform nor written.

The process begins when the athletic director is notified by the principal of a high school that a vacancy will exist. Bill Harris, the athletic director, then reviews all assistant coaches within the school system and chooses several for referral to the principal. The principal of the school having the vacancy may also solicit and interview persons not referred by the athletic director. In terms of hiring priority, assistant...