Palmer v. District Bd. of Trustees of St. Petersburg Junior College

• Decision Date: 12 December 1984
• Docket Number: No. 83-3568,83-3568
• Citation: 748 F.2d 595
• Court: U.S. Court of Appeals — Eleventh Circuit
• Parties: 36 Fair Empl.Prac.Cas. 778, 35 Empl. Prac. Dec. P 34,820, 21 Ed. Law Rep. 472 Clarence Edward PALMER, Plaintiff-Appellant, v. The DISTRICT BOARD OF TRUSTEES OF ST. PETERSBURG JUNIOR COLLEGE, Defendant-Appellee.

Page 595

748 F.2d 595

36 Fair Empl.Prac.Cas. 778,

35 Empl. Prac. Dec. P 34,820, 21 Ed. Law Rep. 472

Clarence Edward PALMER, Plaintiff-Appellant, v. The DISTRICT BOARD OF TRUSTEES OF ST. PETERSBURG JUNIOR COLLEGE, Defendant-Appellee.

No. 83-3568.

United States Court of Appeals Eleventh Circuit.

Dec. 12, 1984.

Richard T. Donelan, Jr., Frank & Kelly, Mark F. Kelly, Tampa, Fla., for plaintiff-appellant.

James M. Blue, Tampa, Fla., Charles T. Dillon, St. Petersburg, Fla., for defendant-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before TJOFLAT and FAY, Circuit Judges, and ALLGOOD, ^* District judge.

PER CURIAM:

On February 23, 1981, Clarence Edward Palmer (Palmer) filed this action against The District Board of Trustees of St. Petersburg [Florida] Junior College (Board). The complaint invoked jurisdiction pursuant to 42 U.S.C. Sec. 2000e-5(f); 29 U.S.C. Sec. 626(c)(1) (ADEA); and to 28 U.S.C. Secs. 1331 and 1343 to pursue claims under 42 U.S.C. Secs. 1981 and 1983. Plaintiff also sought relief under the provisions of Florida Statute Sec. 23.167(12) and Florida Statute Sec. 295.11. ¹

On February 17, 1982, the trial court denied the Board's motion for summary judgment as to the Title VII claim, but granted it as to the ADEA claim, the Secs. 1981 and 1983 claims, and the claims under the Florida statutes.

On July 28, 1982, the parties filed a Pretrial Stipulation which admitted certain facts. Both parties thereafter filed motions for summary judgment with regard to the Title VII claim. On August 25, 1983, the trial court granted the Board's motion for summary judgment and entered a final judgment against Palmer as to all claims. Palmer filed notice of this appeal on September 16, 1983.

The only issues raised by Palmer on this appeal are whether the trial court erred in granting the Board's motion for summary judgment as to the Title VII and ADEA claims and in denying Palmer's motion for summary judgment as to the Title VII claim. Palmer has not raised any specific issue with regard to the Secs. 1981 and 1983 claims. ²

Admitted Facts

As of 1973, the United States Department of Health, Education and Welfare (HEW) and the United States District Court for the District of Columbia had found that the State of Florida maintained a racially segregated system of higher education. ³ After various actions by the Florida Commissioner of Education and HEW and further court proceedings, ⁴ the State of Florida developed a statewide higher education desegregation plan which included as one of its parts, "The State Equal Access/Equal Opportunity Plan for the Florida Public Community College System" (Plan). The Plan was approved by the Community College Presidents on August 26, 1977, and by HEW in February 1978 as one part of Florida's affirmative action plan. St. Petersburg Junior College (College) is a community college. The College has been subject to the Plan since August 26, 1977. ⁵

Records submitted by the college pursuant to the Plan for the years 1976-1981 reflect the following statistical data:

                         Black     Total Full-time  Approximate
                Year  Instructors    Instructors      Percent
                ----  -----------  ---------------  -----------
                1976      18             298         6%
                1977      17             312         5.5%
                1978      23             349         6.5%
                1979      26             334         7.8%
                1980      31             337         9%
                1981      35             353        10%
                

The College adopted the affirmative action goal of raising the percentage of black instructors to ten percent of the total faculty members by 1981. The College's affirmative action plan was approved by the State Division of Community Colleges and HEW.

The College's affirmative action plan did not require, or result in, the hiring of unqualified persons. The plan was designed to result in the hiring of a sufficient number of qualified minority applicants so that the racial balance of the College's faculty would approximate ten percent of the total number of faculty, which was the balance that would have been achieved absent the past discrimination. HEW and the State Division of Community Colleges found that approximately ten percent of those persons graduating from Florida's colleges and universities who were qualified for instructor positions at a community college like the College were black. The College's affirmative action plan extended only until October 1, 1981. The Plan did not completely bar white persons from employment in faculty positions.

At all times material to this case, the College's affirmative action plan required that for each vacant faculty position at the College at least one (1) of the four (4) qualified applicants recommended by a Search and Screening Committee be black. The affirmative action plan did not require that a qualified black or white be hired nor did the plan require that any white instructors be fired. Pursuant to the Plan, if a qualified black was not among the four (4) recommended and qualified applicants, the person who was hired in the position would receive a nine-month temporary appointment. At the expiration of that temporary appointment, the then vacant position was advertised and the recruitment begun anew. The person whose temporary appointment had expired was not excluded from consideration when the search and recruitment process was reinstituted the next year. If the person who held the temporary appointment wished to be considered for the job, a new application had to be filed and he was treated by the Search and Screening Committee as one of a number of applicants for the position. Other than the requirement that a black be included among the final four, the College's affirmative action plan did not require that preferential treatment be given to blacks.

In the spring of 1978, the College's administrators decided to hire a full-time vocal music instructor. ⁶ The vacancy was advertised through the State of Florida applicant pool of public positions. The vacancy was widely advertised in local and national periodicals, at various institutions of higher learning, including minority colleges, and elsewhere. Palmer, who is white and at all pertinent times was over 40 and less than 70 years old, was one of 115 applicants. ⁷ The final four applicants were all white males. Although there were no blacks represented in the final four candidates selected by a Search and Screening Committee, there was documentation in the record that the search was diligent, thereby satisfying an alternative component of the Plan. After considering the final four candidates, Joe Madden, Director of the Division of Communications at the College, recommended Palmer for employment. ⁸ Nevertheless, because there had been no qualified black persons among the four applicants, the College's president refused to approve the recommendation that Palmer be employed on a permanent basis, but instead approved the appointment on a nine-month temporary basis.

Palmer commenced his teaching duties in August 1978 and was notified by the College that he could reapply for the position for the following school year. ⁹ In 1979 a new search was conducted and of eleven total applicants, four finalists were chosen--Palmer, Ira Spaulding (a black male) and two other black males. Neither Madden nor the Search and Screening Committee were directed by any administrator at the College to hire or recommend a black person to fill the vocal music instructor position in 1979. There were no directives from the administration at the College stating that Palmer was barred from employment or from consideration for employment as vocal music instructor in 1979.

The faculty members on the Search and Screening Committee were divided in their opinion as to who was best qualified. Two members believed Palmer was best qualified. The other member believed Spaulding was best qualified. Madden determined that Spaulding was the best qualified applicant and recommended him to the College President. ¹⁰ Because there was at least one black person among the four finalists, the President signed the recommendation and Spaulding received a permanent appointment. Palmer was terminated on August 13, 1979. ¹¹

Because Palmer believed himself better qualified than Spaulding based on the fact that he had more work experience and because he felt the selection process was unfair, he filed a charge with the Equal Employment Opportunity Commission. ¹² After receiving his right to sue letter on November 24, 1980, he filed the complaint in this action. Palmer's basic contention is that he was terminated solely because the Board wanted to replace him with a younger black employee who was less qualified than he. The Board's primary defense to all the claims is that it was acting pursuant to and in compliance with a valid affirmative action plan.

ADEA Claim

The trial court's sole finding and conclusion on this issue was as follows:

Aside from evidence that the Plaintiff is between the ages of forty and seventy, that he was qualified to do the job for which he was not rehired, and that he was replaced by a younger person, the plaintiff concedes that he cannot produce any more evidence of age discrimination. Defendant, on the other hand, has articulated legitimate reasons other than age discrimination for its actions regarding the Plaintiff, not the least of which is the expiration of Plaintiff's contract term, which is uncontroverted by Plaintiff. Accordingly, summary judgment for Defendant on this issue is appropriate.

The expiration of Palmer's contract, standing alone, would not be a sufficient legitimate, non-discriminatory, reason for failing to renew his contract. ¹³ The Board, however, articulated another legitimate, non-discriminatory reason. The Board offered evidence which tended to show that it was acting pursuant to an affirmative action plan mandated by HEW and the federal courts.

In the trial court and in briefs...