Johnson v. Legal Services of Arkansas, Inc.

• Decision Date: 27 April 1987
• Docket Number: No. 85-2440,85-2440
• Citation: 813 F.2d 893
• Parties: 43 Fair Empl.Prac.Cas. 343, 42 Empl. Prac. Dec. P 36,878, 1 A.D. Cases 1034 Ben JOHNSON, III, Appellant, v. LEGAL SERVICES OF ARKANSAS, INC.; Gil Glover, Individually and in his capacity as Executive Director of Legal Services of Arkansas; Vince Foster; William H. Hodge; Evangeline Brown; Eddie Walker, Jr.; Bill D. Etter; G. Alan Wooten; Gregory T. Karber; Floyd Thomas; Ruthie Williams; Sam Whitfield; Virginia Holt; Patti Goff; Charles Clifford Gibson, III; and Demaris Hart Edwards, Individually and in their capacity as members of the Board of Directors of Legal Services of Arkansas, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 893

813 F.2d 893

43 Fair Empl.Prac.Cas. 343,

42 Empl. Prac. Dec. P 36,878, 1 A.D. Cases 1034

Ben JOHNSON, III, Appellant, v. LEGAL SERVICES OF ARKANSAS, INC.; Gil Glover, Individually and in his capacity as Executive Director of Legal Services of Arkansas; Vince Foster; William H. Hodge; Evangeline Brown; Eddie Walker, Jr.; Bill D. Etter; G. Alan Wooten Gregory T. Karber; Floyd Thomas; Ruthie Williams; Sam Whitfield; Virginia Holt; Patti Goff; Charles Clifford Gibson, III; and Demaris Hart Edwards, Individually and in their capacity as members of the Board of Directors of Legal Services of Arkansas, Appellees.

No. 85-2440.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 10, 1986.

Decided March 10, 1987.

Rehearing Denied April 27, 1987.

Richard Quiggle, Little Rock, Ark., for appellant.

Darrell F. Brown, Little Rock, Ark., for appellees.

Before LAY, Chief Judge, HEANEY, Circuit Judge, and HENLEY, Senior Circuit Judge.

HENLEY, Senior Circuit Judge.

Ben Johnson appeals from judgment entered against him by the United States District Court for the Eastern District of Arkansas. Johnson sued Legal Services of Arkansas, Inc. (LSA), Gil Glover, its Executive Director, and the members of LSA's Board of Directors for race, handicap and retaliatory discrimination under 29 U.S.C. Sec. 794 and 42 U.S.C. Secs. 1981, 1983 and 2000e. Johnson's complaint also included a pendent state claim for intentional infliction of emotional distress. Following a bench trial, the court found in favor of the defendants on all claims. On appeal Johnson contends that the district court made numerous factual and legal errors in considering his claims. We affirm in part and reverse and remand in part with directions.

Johnson, a blind black attorney, began working for LSA on July 18, 1983 as directing attorney for the Monticello branch office. As will be seen, Johnson's tenure with LSA was stormy. On March 19, 1984 appellee Gil Glover, the Executive Director of LSA, issued three reprimands to Johnson. Johnson filed charges of discrimination with the EEOC on March 22, 1984. On April 27, 1984, Glover began an investigation of Johnson's unauthorized handling of cases he retained from private practice. Johnson filed a charge of retaliation with the EEOC on May 2, 1984. On May 8, 1984, Glover terminated Johnson for failure to rid himself of his private cases and for unauthorized representation of non-LSA clients in violation of his employment contract and LSA policy. The Personnel Committee reinstated Johnson at a hearing on May 12, 1984, and they gave him sixty days from May 23, 1984 to rid himself of his private cases. Johnson was terminated again on January 12, 1985 when the Personnel Committee determined that he had not complied with the condition of his reinstatement. Johnson subsequently filed another retaliation charge with the EEOC.

I. DISCRIMINATION CLAIMS.

The three-step burden shifting presentation of proof procedure used in Title VII cases is by now all too familiar. The plaintiff must first prove a prima facie case of discrimination by a preponderance of the evidence. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). If the plaintiff succeeds, it then becomes the burden of the defendant to show a legitimate, nondiscriminatory reason for the adverse employment action. Burdine, 450 U.S. at 253, 101 S.Ct. at 1093; Green, 411 U.S. at 802, 93 S.Ct. at 1824. Finally, if the defendant succeeds, the plaintiff must prove by a preponderance of the evidence that the reason given by the defendant for the challenged employment action was pretextual. Burdine, 450 U.S. at 253, 101 S.Ct. at 1093; Green, 411 U.S. at 804, 93 S.Ct. at 1825.

A prima facie case of discrimination consists of proof that the plaintiff is a member of a protected class, and that an adverse employment action was taken against the plaintiff in circumstances from which an inference of unlawful discrimination arises. See Burdine, 450 U.S. at 253, 101 S.Ct. at 1093; Green, 411 U.S. at 802, 93 S.Ct. at 1824. An inference of discrimination is commonly raised in these cases by proving disparate treatment. A plaintiff proves disparate treatment by showing that he was treated less favorably than similarly situated employees who are not in plaintiff's protected class. See Boner v. Board of Commissioners, 674 F.2d 693, 696-97 (8th Cir.1982).

The same procedure for the order and allocation of proof is used for claims brought under 42 U.S.C. Sec. 1981, Kenyatta v. Bookey Packing Co., 649 F.2d 552, 554 (8th Cir.1981), and for claims brought under 29 U.S.C. Sec. 794 when the defendant has denied considering handicap in an employment action, Norcross v. Sneed, 755 F.2d 113, 116-17 (8th Cir.1985).

In reviewing the decision of the district court, we are bound by the "clearly erroneous" standard of Fed.R.Civ.P. 52(a). We cannot hold the district court's findings of fact to be clearly erroneous unless we are " 'left with the definite and firm conviction that a mistake has been committed.' " Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948)).

Johnson challenges three adverse employment actions: (1) the three reprimands given to him by Gil Glover; (2) his first termination by Gil Glover; and (3) his final termination by the Personnel Committee. We will review these three actions separately.

In a memo dated March 19, 1984 Gil Glover reprimanded Johnson for being sexist, for poor management, particularly with respect to case acceptance, and for insubordination. Johnson contends that these reprimands were groundless and that they were motivated by his race and handicap. The court found that regardless of the merits of the reprimands, there was no evidence in the record to show that they were discriminatorily motivated by Johnson's race or handicap. We agree.

Johnson completely failed to show that with these reprimands he was being treated less favorably in circumstances from which discrimination could be inferred. These reprimands were the product of a bitter dispute between Johnson and Gil Glover in which each party was probably partially right and partially wrong. Disputes generally arise out of mutual misunderstanding, misinterpretation and overreaction, and without more, such disputes do not give rise to an inference of discrimination.

Johnson's only disparate treatment evidence relating to the reprimands goes to the charge that he was a sexist. Johnson contends that David Manley, a sighted white male LSA employee was similarly situated. Michal Garland, a former female LSA employee, reported to Gil Glover that Manley had sexually harassed her, and in addition she filed charges with the EEOC as a result of Manley's conduct. We agree that Manley appears to have been a sighted non-minority LSA employee similarly situated to Johnson, but Johnson failed to show that Manley was treated more favorably. Indeed, the record contains no evidence of what action, if any, was taken against Manley. Garland testified that she did not know if any action was taken against Manley. Absent proof that Manley was treated more favorably, Johnson has failed to show disparate treatment.

While it appears that the three reprimands were somewhat the result of overreaction on Glover's part and that they may have been inartfully written and a bit overblown, they were not groundless, as claimed by Johnson. In the fall of 1983 two female employees in the Monticello office complained of Johnson's conduct towards them. These complaints were related to Glover by Barbara Smith, Glover's Executive Assistant, and by Kay Allen. Although Glover thought that Johnson's reported conduct was sexist, he chose not to take any action at that time. The problems in the Monticello office were later worked out, and the two female employees stated that they thought the situation was the result of their difficulty in adjusting to Johnson's handicap. Glover was not immediately informed that these problems had been resolved. When he later concluded that Johnson's attitude toward women played a part in a late February, 1984 conflict with Jean Turner Carter, a female Little Rock staff attorney, Glover reprimanded Johnson for being sexist. While it was perhaps a bit strong, this reprimand did have some basis in fact.

The poor management reprimand dealt mostly with Johnson's case acceptance practices. Glover reprimanded Johnson for failure to abide by LSA case acceptance policies and for using his own subjective criteria to accept or reject cases. The conflict over case acceptance was well documented in various memoranda, and both Glover and Johnson were probably partially wrong and partially right. This reprimand was not without factual basis.

The insubordination reprimand was based on language used by Johnson in several memoranda which Glover perceived to be attacks on himself and LSA. Past memoranda from Johnson had at least insinuated that Glover and LSA were not committed to helping poor blacks. Johnson's memoranda of late February and early March, 1984 contained accusations that Glover was not treating him fairly. Glover interpreted these memoranda as accusing him of discrimination. While Glover's reprimand may have been an overreaction to Johnson's memoranda, it was not groundless. The memoranda showed that Johnson did not take orders or criticism well, and he often used strong language and accusations when he became defensive. He often vehemently challenged Glover's administrative decisions and was insubordinate.

There is no evidence in the record regarding these three reprimands from which an inference of discrimination can be drawn. Thus, we conclude that Johnson failed to make a prima...