Petition — Board of Regents of the University System v. Lincoln

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x... ALEXANDER L. STEVAS,

ante

IN THE

Supreme Court of the United States

October Term, 1982

BOARD OF REGENTS OF THE UNIVERSITY

SYSTEM OF GEORGIA, et al.,

Petitioners,

v,

H. ANITA LINCOLN,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT CF APPEALS

FOR THE ELEVENTH CIRCUIT

MIcHAEL J. BOWERS

Attorney General

H. Perry MIcHAEL

PLEASE ADDRESS ALL First Assistant

COMMUNICATIONS TO: Attorney General

ALFRED L. Evans, JR. Jim O. LLEWELLYN

Senior Assistant Senior Assistant

Attorney General Attorney General

132 State Judicial Building a

itr tS Suef

Telephone: 404-656-3389 Attorney General

QUESTION PRESENTED

Where a jury verdict forecloses recovery on the employ-

ment discrimination claim actually alleged and tried by a

plaintiff, may a federal court, consistent with “due pro-

cess’, extend plaintiff a post-trial “helping hand” by

restructuring her case so as to posit liability against the

defendant State Agency employer on a judicially fashion-

ed post-trial claim, i.e., a “claim” which plaintiff never

made herself either before or during trial, and as to which

the defendant State Agency consequently has had neither

“notice” nor any opportunity to present a defense?

PARTIES TO THE PROCEEDING

IN THE COURT OF APPEALS

The parties to the proceeding in the Court of Appeals

were as follows:

Plaintiff-Appellant

H. Anita Lincoln.

Defendants- Appellees

Board of Regents of the University System of Georgia

Clyde W. Hall

Evanel R. Terrell

bits

INDEX

Page

CUR PREG TED... ie ee ck i

PARTIES TO THE PROCEEDING IN THE

OpU ut OF APFEALS.......... 2... ee. i

Bog dye ily Fa CU 1

Be gy 0). ee 2

CONSTITUTIONAL PROVISIONS INVOLVED.. 2

STATUTORY PROVISIONS INVOLVED........ 3

STATEMENT OF THE CABE.... ...-..5.002%4. 3

REASONS FOR GRANTING THE WRIT........ 8

In positing Title VII liability on a “claim” which

the aggrieved employee never made (the purported

wrong, wrongdoer, and time of the wrongful act

all having been first judicially discerned and

identified after trial) the Court of Appeals would

impose substantial liability against a State agency

defendant based upon a claim as to which the

agency has had no notice and consequently no

opportunity to present a defense. Drawn into

question is the fundamental fairness of a federal

judicial proceeding in the context of the due

process ‘‘right to defend’’. The majority opinion of

the Court of Appeals conflicts with settled

decisions of this Honorable Court and would

sanction a drastic departure from accepted

minimal norms of judicial fairness. We conse-

quently think that decision below is one which

would merit this Honorable Court’s exercise of its

discretion in favor of granting the writ and

reversing the decision below. .................. 8,9

(1) ‘The error DOIOW . .. <6 dads cas esc cewswaeneess 9

INDEX

: Page

(2) The deprivation of Petitioner’s right to

present a defense is real and not merely

EE A 14

ew 17

TABLE OF AUTHORITIES

Cases

Page

Albany Welfare Rights Organization Day Care Center,

Inc. v. Schreck, 463 F.2d 620 (2d Cir. 1972)....... 14

Anderson v. Sixth Judicial District Court,

Gai Fe ©) (8th Cir. 2075)... . ... cs ke. 14

Barnes v. West Point Foundry and Machine

Company, 441 F.2d 532 (5th Cir. 1971)........... 7

Bourque v. Powell Electrical Mfg. Co.,

Git F.2d Gi (Oth Car. 1080)... oe So ee. 15

Cohen v. Illinois Institute of Technology,

581 F.2d 668 (7th Cir. 1078)... 2... ee ek 14

Curtis v. Loether, 415 U.S. 189 (1974).............. 7

Dairy Queen v. Wood, 369 U.S. 469 (1962).......... 7

Davis v. Ampthill Rayon Workers, Inc.,

446 F.2d 661 (E.D. Va. 1978)... 2... 0. co... 7

Dewey v. University of New Hampshire,

O04 F.2d 1 Cint Cer. 1062). oe oon se oo ee en 14

Gonzales v. United States, 348 U.S. 407 (1955)... .... 13

Lincoln v. Board of Regents of the University System

of Georgia, et al., 697 F.2d 928 (11th Cir.

Fo id ew Be Ce GAs a ne 1, 7, 12, 16

TABLE OF AUTHORITIES (Continued)

Cases (Continued)

Page

Landsey v. Normet, 405 U.S. 56 (1972).............. 13

Millhollan v. Watkins Motor Lines, Inc.,

ee es 7

Morgan v. United States, 304 U.S. 1 (1938).......... 13

United States v. City of Philadelphia,

OAS Fe ee oe Ce, TD... . . ew cen. 14

Constitutional Provisions

A Ce AS SV ec 2

UR, (omm., Bren: Vi... soe oe 2

Statutes

Be UT, 0 in en eo ee cee. 2

Oe Bs i oe ne ee es Ss 5, 6, 9, 10

42 U.S.C. § 2000e et seg. (7.e., ‘Title VII’)...... passim

Miscellaneous

3 CdS. Agency § 423 «0. oo ecw 7

iv

ae

IN THE

Supreme Court of the United States

October Term, 1982

BOARD OF REGENTS OF THE UNIVERSITY

SYSTEM OF GEORGIA, et al.,

Petitioners,

v.

H. ANITA LINCOLN,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

OPINIONS BELOW

Tie opinion of the United States Court of Appeals for

the Eleventh Circuit is reported as Lincoln v. Board of

Regents of the University System of Georgia, et al., 697 F.2d

928 (llth Cir. 1983). Petitioners’ motion for rehearing

and suggestion for rehearing en banc were denied by the

the Court of Appeals on April 25, 1983, without further

opinion. The reported opinion of the Court of Appeals,

the district court’s opinion (unreported), the Court of

Appeals’ judgment, and the Court of Appeals’ order

denying rehearing and the suggestion for en banc recon-

sideration, are all included in the appendix hereto.

1

2

JURISDICTION

The judgment of the Court of Appeals sought to be

reviewed was rendered and entered on February 10, 1983,

with the order of that Court denying petitioners’ motion

for rehearing and suggestion for rehearing en banc being

rendered and entered on April 25, 1983. This petition for

a writ of certiorari is fled within the ninety days of the

Court of Appeals’ denial of the motion for rehearing and

suggestion of en banc reconsideration. The jurisdiction of

this Honorable Court is invoked under 28 U.S.C, § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

U.S. Const., Amend. V:

‘No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in

the land or naval forces, or in the Militia, when in

actual service in time of War or public danger; nor

shall any person be subject for the same offense to be

twice put in jeopardy of life or limb; nor shall he be

compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty or

property, without due process of law; nor shall

private property be taken for public use, without

just compensation.”’

U.S. Const., Amend. VII:

“In Suits at common law, where the value in contro-

versy shall exceed $20.00, the right of trial by jury

shall be preserved, and no fact tried by a jury, shall

be otherwise re-examined in any Court of the United

a than according to the rules of the common

aw.”

3

STATUTORY PROVISIONS INVOLVED

42 U.S.C. § 2000e-2:

(a) It shall be an unlawful employment practice for

an employer —

(1) To fail or refuse to hire or to discharge any indi-

vidual, or otherwise to discriminate against any

individual with respect to his compensation,

terms, conditions, or privileges of employment,

because of such individual’s race, color, religion,

sex or national origin; .. .”’

42 U.S.C. § 2000e-5:

“(e)

(g)

A charge under this section shall be filed within

one hundred and eighty days after the alleged

unlawful employment practice occurred. . . .

* * *

If the Court finds that the respondent has in-

tentionally engaged in or is intentionally engag-

ing in an unlawful employment practice charged

in the complaint, the Court may enjoin the

respondent from engaging in such unlawful em-

ployment practice, and order such affirmative

action as may be appropriate, which may in-

clude, but is not limited to, reinstatement or

hiring of employees, with or without back pay

(payable by the employer, employment agency,

or labor organization, as the case may be,

responsible for the unlawful employment prac-

tice), or any other equitable relief as the court

court deems appropriate. . . .”

STATEMENT OF THE CASE

This is a “reverse discrimination” case brought by a

former white faculty member (non-tenured) at a highly

integrated but yet predominantly black college of the

University System of Georgia, (i.e., Savannah State

4

College). Having been found wanting in competency by

her students, her administrative superiors (white as well

as black), as well as by two different racially mixed faculty

review committees, Respondent was not offered a new

employment contract for the nine month academic year

commencing in September, 1978 and ending June 30, 1979.

While Respondent had at no time contended that ‘‘race’’

was involved during her hearings before the two racially

mixed faculty review committees, she filed an EEOC

charge on or about F ebruary 8, 1979, in which she con-

tended “I believe I was not offered an employment con-

tract in September 1978, to teach at Savannah State

College for the 1978/79 academic year because I am white”

(emphasis added).

Requesting and receiving a “right to sue’’ letter,

Respondent filed her complaint in the United States

District Court for the Southern District of Georgia on

November 19, 1979, alleging that her formal employer,

the Board of Regents of the University System of Georgia

(defendant below and now Petitioner) had through its

supervisory agents, the defendants Clyde W. Hall,

Evanel R. Terrell and Diana Wagner ' “with intent and

purpose, engaged in activities to terminate the Plaintiff

from her employment at Savannah State College because

of Plaintiff’s race’. Respondent’s complain asserted that

this allegedly racially motivated termination of her em-

ployment gave rise to two separate legal claims. She

contended first that the actions of the named individual

defendants, since they were agents of the Board of

Regents, gave her a right of action against the Board as

respondeat superior under Title VII of the Civil Rights

‘Diana Wagner was subsequently voluntarily dismissed as 4

party defendant by the Respondent.

5

Act of 1964, as amended (42 U.S.C. § 2000e, et seg.). It

was further asserted that the same actions of these indi-

vidual defendants (7.e., the Board’s supervisory agents)

also violated rights secured to her under 42 U.S.C.

§ 1981.

Petitioners (defendants below) responded to the com-

plaint by contending, among other things, that the indi-

vidual defendants Hall and Terrell were not amenable to

the Title VII claims since they were not Respondent’s

“employer” within the meaning of that Act, and that the

Board of Regents was for a number of reasons, including

the Eleventh Amendment, not subject to the § 1981 claim.

During the pre-trial conference, Respondent agreed with

Petitioners on these points, and the case consequently

proceeded to trial against the individual defendants (Hall

and Terrell) alone on the § 1981 claim, with the Title VII

claim, while based upon the actions of these same individ-

uals, proceeding solely against the Board of Regents

under the doctrine of respondeat superior.

The matter came on for trial on November 3, 1980. A

jury empaneled to hear the § 1981 claim returned a ver-

dict in favor of the individual defendants, Acting Presi-

dent Hall (who admittedly made the 1978 non-renewal

decision giving rise to the action) and Evanel Terrell (a

retired faculty member who had formerly been Respon-

dent’s direct administrative superior). Judgment was

entered in accordance with the jury verdict on the § 1981

claim.

It was in connection with the Title VII claim that the

problems giving rise to the instant petition arose. With

the legal claims (i.e., § 1981) and the equitable claims

(Title VII) being tried together, the district court directed

the jury to render an advisory verdict on the Title VII

6

claim along with its binding verdict on the § 1981 claim.

Notwithstanding the jury’s exoneration of the Board’s

supervisory agents as to the legal claims (7.e., § 1981), on

the Title VII claim, it returned an advisory verdict

against the principal (the Board of Regents), which the

district court itself described as a ‘‘rather bizzarre result”’

(Tr. 379). Recognizing that this purely advisory opinion

was not binding on it as to the Title VII equitable claim,

the district court determined that it would make its own

‘full and independent review of the evidence presented at

this trial’’ (Appendix, p. 2d). It did so, and pointing to

what it considered to be evidence of racial animus on the

part of the two supervisory agents exonerated by the jury

in its binding § 1981 verdict (7.e., Acting President Hall

and Mrs. Terrell), it held that ‘impermissible racial

animus’ was a substantial factor in Respondent’s non-

renewal, and that the Board of Regents was consequently

liable as respondeat superior. In its opinion the district

court also noted that the actions of the former President

of Savannah State College, Dr. Prince Jackson, in 1977

(7.e., one year before the 1978 ‘‘non-renewal” upon which

Respondent has based her case) had to the district court’s

way of thinking amounted to a ‘‘constructive discharge’.

In 1977, Dr. Jackson, who appeared as Respondent’s

principal witness, altered her employment status from

classroom instruction to administration. Naturally, Re-

spondent never alleged or contended, either before or

during the trial, that her principal witness was a ‘‘wrong-

doer’, or in any way involved in the 7/978 non-renewal

decision of Acting President Hall upon which she had

based and tried her case. Nor did the district court find

any racial animus on the part of Dr. Jackson. It instead

appeared to view his testimony (favorable to Respon-

dent’s ‘‘paper”’ qualifications) as having somehow nullified

7

the Board of Regents’ “‘articulation’’ of legitimate aca-

demic reasons, such as the purely academic performance

deficiencies found by two racially mixed faculty review

committees, for Respondent’s 1978 non-renewal.?

The Petitioner Board of Regents of the University

System of Georgia appealed on the ground, inter alia,

that the judgment of the district court conflicted with

the Seventh Amendment because a jury verdict on factual

issues common to jointly tried law-equity cases is binding

on the trial court as to the equity claims as well as to the

legal claims, e¢.g., Curtis v. Loether, 415 U.S. 189, 196 n.11

(1974); Dairy Queen v. Wood, 369 U.S. 469, 479 (1962);

Davis v. Ampthill Rayon Workers, Inc., 446 F.Supp. 681,

683 (E.D. Va. 1978), aff’d., 594 F.2d 856 (4th Cir. 1979),

coupled with the settled rule that where liability of the

master or employer is asserted under the doctrine of

respondeat superior, exoneration of the servant, employee

or agent exonerates the master, employer or principal.

E.g., Barnes v. West Point Foundry and Machine Com-

pany, 441 F.2d 582, 533 (5th Cir. 1971); Millhollan v.

Watkins Motors Lines, Inc., 116 Ga.App. 452, 454 (1967);

3 C.J.S. Agency § 423, p. 280,

On February 10, 1988, the Court of Appeals, in a split

decision, while agreeing with Petitioner’s legal analysis

concerning the Seventh Amendment and _respondeat

superior, nonetheless affirmed the district court. A ma-

jority of the Court of Appeals’ Panel concluded that the

wrongful (7.e., racially discriminatory) action was in fact

the 1977 ‘constructive discharge’? by former President

* The Court of Appeals’ decision recognizes that the District Court

erred in its rejection of Petitioners’ ‘‘articulation”’ of legitimate non-

discriminatory reasons for the 1978 non-renewal of Respondent’s

employment. See 697 F.2d 928 at p. 938, n.13; Appendix, pp. 18a-19a

8

Prince Jackson when he changed Respondent’s employ-

ment status from instruction to administration.

What we have, in other words, is a Court of Appeals’

decision which would posit liability on a claim not made

by the Respondent at any time before or during trial. It

is a claim which has sprung full blown as Minerva from

Jupiter’s head, a child of post-trial ‘judicial creativity”.

As the dissent of Judge Hatchett points out, this new

“claim’”’ was never presented, or even hinted at, by any-

one until the trial was over. The Board of Regents of the

University System of Georgia is consequently being sub-

jected to substantial pecuniary liability based upon a

claim as to which it has never had any notice, and against

which it has never had an opportunity to present avail-

able defenses, not the least of which is a time bar (also

noted in the dissenting opinion of Judge Hatchett).

REASONS FOR GRANTING THE WRIT

In positing Title VII liability on a “claim” which the

aggrieved employee never made (the purported

wrong, wrongdoer, and time of the wrongful act

all having been first judically discerned and identi-

fied after trial) the Court of Appeals would impose

substantial liability against a State agency defendant

based upon a claim as to which the agency has had

no notice and consequently no opportunity to present

a defense. Drawn into question is the fundamental

fairness of a federal judicial proceeding in the

context of the due process “right to defend”. The

majority opinion of the Court of Appeals conflicts

with settled decisions of this Honorable Court and

would sanction a drastic departure from accepted

minimal norms of judicial fairness. We consequently

think that decision below is one which would merit

this Honorable Court’s exercise of its discretion in

9

favor of granting the writ and reversing the decision

below.

(1) The error below.

Title VII expressly limits a district court’s remedial

action under the Act to the correction of only those un-

lawful employment practices charged in the complaint.

42 U.S.C. § 2000e-5(g). From the time the instant com-

plaint was filed until after the trial was over, it was never

contended by the Respondent (plaintiff below) other than

that the Board of Regents’ supervisory agents alleged to

have acted out of impermissible racial motivation, the

agents for whose actions the Board of Regents was con-

sequently said to be liable, were Acting President Clyde

W. Hall and Evanel R. Terrell. The complaint shows

quite clearly that it was the single alleged wrong of a

racially motivated 1978 contract non-renewal decision by

these specific agents (Hall and Terrell) which was the

basis of both Respondent’s § 1981 claim and her Title

VII claim. Paragraph 6 of the complaint alleges:

“the Defendant, BOARD OF REGENTS OF THE

UNIVERSITY SYSTEM OF GEORGIA, has

through its agents, Defendants CLYDE W. HALL,

EVANEL R. TERRELL and DIANA WAGNER,

with intent and purpose, engaged in activities to

terminate the Plaintiff from her employment at

Savannah State College because of Plaintiff’s race.”

Paragraph 9 of the Complaint alleges that these activities

violated Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 20006e et seg., with paragraph 10 contending that

the same acts and practices also violated 42 U.S.C. § 1981.

In the “Amended and Substituted Joint Status Re-

port”, submitted to the district court by the parties on

July 3, 1980, Respondent agreed that the central issue

was the reason why Respondent wasn’t offered an employ-

10

ment contract ‘for the school year beginning Fall of

1978’. This same affirmation by Respondent as to what

she was contending appeared again in the Pre-trial Order,

where in outlining her case, Dr. Lincoln said:

‘Because of her race she was not given a contract for

employment for the school year beginning Fall of 1978,

and individual Defendants, CLYDE W. HALL,

EVANEL R. TERRELL and DIANA WAGNER

intentionally interfered with her employment con-

tract so as to ultimately prevent her from being

rehired for the year 1978 and 79. The reason for these

interferences were principally based on race.”’ (R. 46).

(emphasis added):

Nor did Respondent waiver from her contention that it

was the specific individual defendants Hall and Terrell,

and the 1978 decision not to give her a new employment

contract, upon which she hinged her Title VII action,

even after the jury verdict in favor of the individual de-

fendants on the 42 U.S.C. § 1981 claims. In submitting

proposed facts ana conclusions of law to the district

court after the trial in connection with the still pending

Title VII claim, Respondent suggested the following:

“11. In summary, the evidence showed that Dr.

Lincoln was qualified for her position and that she

was in a racial minority. Furthermore, her removal

from the Department of Home Economics and her

failure to be rehired was principally based on race.

The Defendant Board of Regents’ rebuttal was

countered by evidence that their alleged justifications

were a sham for disguising a racially motivated

intent. The Court concludes that Defendants Hall

and Terrell were attempting to, by indirect means,

accomplish a result which they could not do directly,

* As previously indicated, Diana Wagner was subsequently volun-

tarily Seainel as a party defendant by Respondent.

11

i.e., to terminate a white instructor in the Depart-

ment of Home Economics and ultimately replace

her with a black.”’

The Court of Appeals’ decision fully recognized that

the single factual claim which Respondent had alleged

and tried could not, in light of the jury’s exoneration of

the named agents and the Seventh Amendment, serve as

the basis for the imposition of Title VII liability. See 697

F.2d 928 at p. 935; Appendix, pp. 9a, 10a What it did was to

predicate liability on a newly thought of ‘‘claim” which

Respondent had not alleged or tried. It was only after

the trial was over, and all opportunity to defend had

passed, that this burst of judicial creativity took over

and the words ‘‘constructive discharge” were first men-

tioned (and then, by the courts, not by plaintiff-respon-

dent).

This post-trial judicial fashioning of an entirely new

claim, complete with a newly identified “‘wrong’’, a new

“wrongdoer”, and a ‘“‘wrong’”’ which had occurred one

year earlier than the 1978 contract non-renewal upon

which Respondent had based and tried her case, was pre-

sumably fashioned to assist Respondent around the

Seventh Amendment. In fact it maneuvered the case into

an even more untenable position, a position reaching to

the fundamental fairness of a federal judicial proceeding.

In question is what we had thought to be the settled right

of a defendant to know what the claim asserted against it

is (in terms of who did what to whom) sufficiently in ad-

vance of trial so as to enable it to present a defense to

that claim.

On the face of it, it seems to be passing strange to say

that a defendant which has successfully defended against

the claim actually presented by plaintiff in her complaint,

12

as well as the only claim asserted by the plaintiff at any

time before or during trial, may nonetheless be held

vicariously liable for substantial monetary damages

because it didn’t defend against a different ‘‘claim”’ which

wasn’t made by the plaintiff (or suggested by the Court)

at any tme before or during trial but which first saw the

light of day via an exercise of post-trial judicial imagina-

tion. As the dissenting opinion (Judge Hatchett) points

out respecting this post-trial judicial substitution of a new

case for the one alleged and tried by Respondent;

“No one, other than the judges in this case, ever

considered Dr. Jackson’s actions as the acts giving

rise to this lawsuit.’ See 697 F.2d 928 at p. 944;

Appendix, p. 31a.

Were we for conceptual purposes to analogize the

instant case to a hypothetical example of a “‘criminal’’

respondeat superior situation, the “due process” implica-

tions of a post-trial judicial substitution of both the

alleged crime and the alleged criminal for that set forth

in the indictment, would be obvious. Would anyone

seriously suggest that a defendant who stood to be

exonerated as the answerable ‘‘employer”’ or “‘superior’’

by virtue of the jury’s acquittal of the charged “‘agent’”’

or “‘employee’’, could nonetheless be found guilty (or

liable) if after the trial a court were to conclude that some

other employee May have committed some other crime (not

charged and hence not defended against)? Does anyone

really think that vicarious liability could thus be pred-

icated on charges not made, against an actor not identi-

fied, until the trial was over and all opportunity to

defend past?

We respectfully submit that the fact that this case is

“civil” rather than ‘‘criminal’’ makes no difference when

13

it comes to what surely must be recognized as essential

fairness and “‘due process’’ in a federal judicial proceed-

ing. In Lindsey v. Normet, 405 U.S. 56, 66 (1972), this

Court said that:

“Due process requires that there be an opportunity

to present every available defense.”

The ‘right to defend” manifestly presupposes a right to

know what a complainant’s claim is in terms of ‘‘who’’ is

supposed to have done ‘‘what’’ to “whom’’, since the

“due process” right to present a defense would otherwise

be ‘‘but a barren one’’. See, Morgan v. United States, 304

U.S. 1, 18 (1938). Until now, we had thought it settled

law that as stated by this Court in Gonzales v. United

States, 348 U.S. 407, 414n.5 (1955), that:

“The right to a hearing embraces not only the right

to present evidence but also a reasonable opportunity

to know the claims of the opposing party and to meet

them.”

In the case at bar, the post-trial judicial substitution of

a new actionable “‘wrong’’ at the hands of a newly identi-

fied ‘‘wrongdoer”’ (7.e., as the majority put it, ‘the critical

finding that Prince Jackson constructively discharged Dr.

Lincoln” in 1977) for the claimed wrong which Respon-

dent had in fact alleged and tried (7.e., the decision by

Acting President Hall, one year later, in 1978, not to offer

Dr. Lincoln a new employment contract for the school or

academic year commencing September 1978) obviously

deprived petitioner Board of Regents of any opportunity

to defend itself against this post-trial “claim”. Not having

been faced with this claim at the trial, surely it cannot be

maintained that Petitioner was lacking in diligence in

failing to defend against the then non-existent claim. It

might well be pointed out en passant that the right of a

14

defendant in a lawsuit to know what he is faced with

before trial, has been viewed by at least five circuits as

being so basic, so fundamental, as to call for dismissal of

a complaint which fails to set forth these minimal facts,

on the ground that such a complaint wholly fails to state

a claim upon which relief can be granted.‘ As the First

Circuit said in Dewey v. University of New Hampshire,

694 F.2d 1, 3 (1st Cir. 1982):

“Tt is not enough to allege a general scenario which

could be dominated by unpleaded facts. . . . There-

fore, although we must ask whether the ‘claim’ put

forward in the complaint is capable of being sup-

ported by any conceivable set of facts, we insist that

the claim at least set forth the minimal facts, not

subjective characterizations, as to who did what to

whom and why.”’

(2) The deprivation of Petitioner’s right to present a

defense is real and not merely theoretical.

Nor can it be said that the want of essential fairness

in the deprivation of Petitioner’s right to defend itself

was theoretical rather than real. Substantial defenses

were available to Petitioner and would unquestionably

have been used had the “constructive discharge”’ claim

been presented by Respondent, or so much as suggested

by tag Court, at any time before, or even during, the

trial.

2 See Dewey v. Unwersity of New Hampshire, 694 F.2d 1, 3-4 (Ist

Cir. 1982); United States v. City of Philadelphia, 644 F.2d 187, 204

(3d Cir. 1980); Cohen v. Illinois Institute of Technology, 581 F.2d 658,

663 (7th Cir. 1978); Anderson v. Sixth Judicial District Court, 521

F.2d 420 (8th Cir. 1975); Albany Welfare Rights Organization Day

Care Center, Inc. v. Schreck, 463 F.2d 620, 622-623 (2d Cir. 1972).

15

(a) The so-called ‘constructive discharge’ in

1977.

Perhaps one reason Respondent never alleged or con-

tended that Dr. Jackson’s 1977 decision about changes in

her employment status amounted to a “‘constructive dis-

charge’, is the fact that Dr. Lincoln expressly agreed to

this change in her employment status. In her EEOC

charge plaintiff stated:

“On September 30, 1977, I was informed by letter

from Dr. Jackson that I was being employed for the

1977/78 academic year in duties of a non-teaching

nature.

I accepted Dr. Jackson’s offer of continued employ-

ment with SSC under the terms of a verbal agreement

between myself, Dr. Jackson and Dean Byers during

a conference on October 3, 1977 in which it was

agreed that my personnel file would be purged of all

letters, documents and references concerning nega-

tive and/or questionable events between me and

the administration of SSC; that I would be given a

signed contract for the period 1977 through June 30,

1978; that my faculty status as a professor in Home

Economics would be retained and that I would report

to and be under the direction of Dean Byers. I had

previously been advised in writing by Dr. Jackson

that I could apply for reinstatement to a teaching

position during the ——* genio) of 1978, I applied

far such roinstatoment.

“Working conditions” to which the Respondent expressly

agreed (e.g., an adminstrative assignment rather than

classroom teaching) cannot be said to be so “‘intolerable”’

as to amount toa “constructive discharge’’. See Bourque v.

Powell Electrical Mfg. Co., 617 F.2d 61, 65 (5th Cir. 1980).

This conclusion is supported by the fact that in her EEOC

charge as in her complaint Dr. Lincoln in fact based her

employment discrimination claim upon the decision made

16

by Dr. Hall in 1978 not to offer her an employment con-

tract for the academic year 1978-79 (commencing Septem-

ber, 1978), not upon any purported “constructive dis-

charge” by Dr. Jackson a year earlier, in 1977.

(b) The claim discovered by the courts after the

trial was over would among other things be

time barred.

Title VII requires aggrieved persons to file their com-

plaint with EEOC within 180 days after the occurrence

of the allegedly unlawful employment practice. 42 U.S.C.

§ 2000e-5(e). The record shows that Dr. Lincoln was

temporarily suspended from her teaching assignments on

February 18, 1977 (TR. 278-279; Def. Ex. 8). Following

adverse decisions concerning her competency by two

racially mixed faculty committees, the then President,

Dr. Prince Jackson, developed ‘“‘second thoughts” about

the matter and offered Dr. Lincoln a non-teaching con-

tract, with a responsibility of generating external fund-

ing, for the 1977-78 academic year. Plaintiff, in her EEOC

charge, said that she agreed to this personnel action (7.e.,

the so-called ‘constructive discharge’) on October 3,

1977. The EEOC charge, which was filed on or about

February 8, 1979, manifestly could not cover any so-

called “constructive discharge” which occurred during

1977. As the dissenting opinion of Judgo Hatohott rooog

nizes, the “constructive discharge’”’ idea which occurred

to the courts only after the trial was over, is among other

things time barred for want of a timely filing of the

EEOC charge. See 697 F.2d at p. 944; Appendix, p. 3la.

17

CONCLUSION

For all of the reasons stated the petition for a writ of

certiorari to review the decision of the United States

Court of Appeals for the Eleventh Circuit should be

granted and the decision below reversed by this Honor-

able Court.

MicHakEu J. Bowers

Attorney General

H. Perry MICHAEL

First Assistant Attorney General

Jim O. LLEWELLYN

Senior Assistant Attorney General

ALFRED L. Evans, JR.

Senior Assistant Attorney General

Please address all

communications to:

ALFRED L. Evans, JR.

Senior Assistant Attorney General

132 State Judicial Bldg.

Atlanta, Georgia 30334

(404) 656-3389

APPENDIX

OPINION OF THE COURT OF APPEALS

H. Anita LINCOLN, Plaintiff- Appellee,

Cross-Appellant,

v.

BOARD OF REGENTS OF THE UNIVERSITY

SYSTEM OF GEORGIA, and Clyde W. Hall and

Evanel R. Terrell, Defendants- Appellants,

Cross-Appellees.

No. 81-7297.

United States Court of Appeals,

Eleventh Circuit.

Feb. 10, 1983.

Appeals from the United States District Court for the

Southern District of Georgia.

Before RONEY and HATCHETT, Circuit J udges, and

WISDOM’, Senior Circuit J udge.

WISDOM, Senior Circuit J udge:

The Board of Regents of the University System of

Georgia appeals from a judgment for Dr. Anita Lincoln

on her employment discrimination claim under Title VII

of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seg.

From 1974 through 1978, Dr. Lincoln was employed under

four separate one-year contracts as a nontenured profes-

sor of home economics at Savannah State Calleaa a ctate

school subject to the oversight of the Board of Regents.

When her contract was not renewed in 1978, she brought

this action in the United States District Court for the

Southern District of Georgia, alleging that the decision

not to offer her a fifth contract was racially motivated.

Dr. Lincoln is white, and Savannah State is an integrated,

but historically and predominantly black, institution.

*Honorable John Minor Wisdom, U.S. Circuit Judge for the Fifth

Circuit, sitting by designation.

la

2a

Dr. Lincoln’s complaint sought reinstatement and back

pay under Title VII and compensatory and punitive

damages under the Civil Rights Act of 1866, 42 U.S.C.

§ 1981. It named as defendants the Board of Regents and

two members of the Savannah State faculty, Mrs. Evanel

Terrell and Dr. Clyde W. Hall.'! Mrs. Terrell was head of

the home economies department during Dr. Lincoln’s

first two years at Savannah State. Dr. Hall was head of

the technical sciences division, which includes the home

economics department, during most of Dr. Lincoln’s

term of employment and was acting president of the

college in 1978, when Dr. Lincoln was not offered a new

contract. Both Mrs. Terrell and Dr. Hall are black.

Before the case went to trial, the district court dis-

missed the § 1981 claim against the Board of Regents, on

the ground of sovereign immunity. It also dismissed the

Title VII claim against the individual defendants, on the

ground that they were not ‘‘employers”’ within the mean-

ing of the statute. The court empaneled a jury to decide

the § 1981 claim against Mrs. Terrell and Dr. Hall and

instructed it to return an advisory verdict on the Title

VII claim against the Board.? The jury returned a verdict

for the individual defendants, and the district court

entered judgment accordingly. In its advisory verdict,

however, the jury recommended judgment for the plain-

ull against the Board. Lhe district court entered its own

findings of fact and conclusions of law, granting judgment

in accord with the advisory verdict. The court awarded

' The complaint also named Ms. Diana Wagner, a black member of

the home economics faculty, as an individual defendant. The claim

against Ms. Wagner was voluntarily dismissed before the trial.

* The seventh amendment requires a jury trial in an action for

damages under § 1981 but not in an action for reinstatement and

backpay under Title VII. See p. 8. Before trial, the district court

denied a motion by the Board of Regents for separate trials.

3a

Dr. Lincoln back pay and attorney fees and ordered the

Board of Regents to purge its records of all references to

the events leading to Dr. Lincoln’s departure.*

The Board brought this appeal, contending that the

district court’s judgment against it violated the seventh

amendment, because it was premised on the theory of

respondeat superior and was therefore inconsistent with

the facts as found by the jury in exonerating the individ-

ual defendants, the Board’s agents. The Board also con-

tends that the district court’s findings were clearly erro-

neous. Dr. Lincoln filed a cross-appeal, urging that the

jury’s verdict on the § 1981 claim was inconsistent with

its advisory verdict on the Title VII claim and must be

set aside. We reject all the arguments of the appellant and

the cross-appellant and affirm the judgment of the district

court.

I, Factual Background

Our review of the district court’s decision in this case is

best understood against a background that goes back to

the beginning of Dr. Lincoln’s career at Savannah State.

Her career was marked throughout by personal friction,

particularly with Mrs. Terrell, and by complaints of stu-

dents and some other faculty members. Neither the fric-

tion nor the complaints can be attributed entirely to Dr.

Lincoln’s professional deficiencies or to racial bias. Her

history at Savannah State seems to establish only that

elements of both were present.

When Dr. Lincoln arrived at Savannah State College

_* The court found reinstatement impracticable in view of the small

size of the home economics department and the severe friction that

rn oe its ye Dr. Lincoln in connection

wi e events giving rise to this lawsuit. No i erning

remedies is before us on this appeal. —

4a

under a one-year contract in the fall of 1974, she was in

her middle fifties and had an extensive background in

home economics, specifically dietetics. She had several

degrees, including a Ph.D., and considerable experience in

governmental and administrative work germane to her

area of expertise. Her familiarity with certain practical

and elementary aspects of her subject, however, partic-

ularly those associated with introductory courses and

laboratory instruction, was limited. At the time of her

arrival, her supervisors were Mrs. Terrell and Dr. Hall.

Dr. Hall had been head of the division of technical sciences

since 1961. He served in that position until 1976 and

again from 1977 until March 1978. He was acting presi-

dent of Savannah State from that time until 1980. Mrs.

Terrell had been head of the home economics department

since 1947. Both Mrs. Terrell and Dr. Hall recommended

Dr. Lincoln’s appointment in 1974 and knew at the time

that she was white.

It was not long before Dr. Lincoln encountered prob-

lems with both students and faculty. Friction developed

between her and Mrs. Terrell in particular. Mrs. Terrell,

and Dr. Hall as well, viewed themselves as supervisors,

while Dr. Lincoln was accustomed to considerable profes-

sional independence. Mrs. Terrell found Dr. Lincoln in-

wal va Maree Bee wer cee Letom, posticulaily wlicu slie

moved a class without consulting Mrs. Terrell and when

she failed to file a required inventory. As our discussion

in Part III will elaborate, there was evidence, and the

district court found, that Mrs. Terrell’s reactions to any

insubordination on Dr. Lincoln’s part were exacerbated

by racial bias.

Mrs. Terrell soon began complaining to Dr. Hall about

Dr. Lincoln. Dr. Hall was not convinced that Dr. Lincoln

5a

was incapable, however, and he offered her a second con-

tract for the 1975-76 term. The problems between Dr.

Lincoln and Mrs. Terrell continued, and in October 1975,

Mrs. Terrell wrote to Dr. Hall concerning alleged inade-

quacies in Dr. Lincoln’s performance. Dr. Hall held a con-

ference with Dr. Lincoln and Mrs. Terrell, and Dr.

Lincoln said that she had neither interest nor ability in

teaching laboratory work but that she would try to

improve.

Mrs. Terrell wrote to Dr. Hall again in January 1976,

recommending that Dr. Lincoln not be offered a new con-

tract. She wrote a third letter in May of that year, recom-

mending dismissal, and at this time, students as well had

begun to complain of Dr. Lincoln’s inadequacies. Dr. Hall

nevertheless remained cautious, hoping the situation

would improve. He offered Dr. Lincoln a contract for the

1976-77 term but wrote her that the department had been

“badly disappointed’’ with her performance and that he

expected a ‘‘tremendous improvement”’ as a condition to

reappointment. A second conference took place during

the summer, at which Dr. Lincoln again promised to

improve. In the fall of 1976, student complaints con-

tinued, and Dr. Hall visited several of Dr. Lincoln’s

classes to investigate her performance. As he testified at

. trial, he observed several serious deficiencies but took no

immediate action.

In February 1977, several students in the home eco-

nomics department signed a petition calling for Dr.

Lincoln’s removal. The petition bore 37 signatures and

asserted numerous serious inadequacies on Dr. Lincoln’s

part. The allegations centered on delinquency in teaching

methods,‘ a smell of alcohol on Dr. Lincoln's person, and

‘ More specifically, the petition alleged that Dr. Lincoln failed to

order books and other materials, failed to return projects with proper

6a

absenteeism and lateness. One allegation also concerned

Dr. Lincoln’s insubordination toward Mrs. Terrell.* The

district court, relying on evidence we will discuss in Part

III, found that the “direct and clear appeal of the petition

is racial’? and that Mrs. Terrell, who had retired the

previous summer, and perhaps other faculty members as

well, had played some role in originating it. Dr. Hall later

discovered that the petition had been typed in his office

on college stationery.

Apparently prompted by the petition, Dr. Hall sus-

pended Dr. Lincoln from teaching duties on February 18,

1977. He stated, however, that h» was still trying to keep

the situation under control. On February 24, he held a

meeting with Dr. Lincoln, Dr. Teresa Anthony, a white

faculty member who was acting as department head

following Mrs. Terrell’s retirement, and Dr. Thomas

Byers, Dean of the College and Dr. Hall’s immediate

supervisor. Only specific charges concerning Dr. Lincoln’s

performance as a teacher were discussed, as Dr. Hall con-

sidered racial charges an inappropriate basis for action.

Dean Byers also held a meeting with Dr. Lincoln and

students, in a ineffective effort to “‘restore confidence’.

On March 10, 1977, Dr. Anthony wrote to Dr. Hall,

recommending ‘‘immediate termination” of Dr. Lincoln,

based on “‘incompetency and lack of accountability’’. Dr,

Hall still felt that the situation could be improved with-

out such drastic action. He asked Dr. Anthony to with-

draw her suggestion, but she refused. Her letter then

evaluations, held laboratories without adequate lecture preparation,

cena a pe for classes, lost examination papers, gave un-

warranted grades to offset inadequacy in instruction gfe tala

* The incident referred to in the petition concerned a letter from

Dr. Lincoln te Dr. Hall stating that Mrs. Terrell had misinformed her

students about certain requirements for internships.

7a

became the basis for formal action.

After attempts at mediation failed, a faculty committee

was appointed to review student charges. The committee

consisted of Ms. Diana Wagner, a black assistant profes-

sor of home economics, and two faculty members from

unrelated disciplines, Dr. Luetta Millege and Mrs. Gaye

Hewitt. The committee heard testimony from Dr. An-

thony and nine students and, in a letter to the president

of the college, recommended that Dr. Lincoln be sus-

pended for the remainder of the term and offered no

renewal or, alternatively, that she be dismissed immedi-

ately. The president, Dr. Prince Jackson, then notified

Dr. Lincoln that she was being terminated immediately,

although, as he testified, he considered the case against

her ‘“‘weak’’.

Dr. Lincoln appealed her termination, and a second

faculty committee reviewed her appeal. After interview-

ing students and faculty, the committee found her incom-

petent, although a minority report questioned the suffi-

ciency of the evidence. The committee also criticized

unnamed faculty members for the exploitation of stu-

dent unrest and their involvement in the petition for Dr.

Lincoln’s removal. The committee recommended that

Dr. Lincoln be given temporary employment, to allow

her an opportunity to resign. Shortly after the committee

made its recommendations, Dr. Hall wrote to President

Jackson, urging that “the integrity of this institution

would be threatened” if Dr. Lincoln were retained.

Before acting on the committee’s recommendation,

President Jackson decided to investigate on his own the

circumstances surrounding the student petition. He found

that faculty members not only had been involved but had

exerted unfair pressure on students to sign. He concluded

8a

that Dr. Lincoln had been treated unfairly and did not

believe her incompetent. He therefore offered her a new

contract for the 1977-78 term. Dr. Lincoln was given a

new position, however, which involved no teaching. She

was assigned to the Dean’s office, with responsibility for

updating the faculty handbook and securing government

grants. President Jackson informed Dr. Lincoln that he

would review her status at the end of the 1977-78 school

year. At that time she would be retained only if she

generated sufficient outside funding to pay her own salary.

When the time for review arrived, Dr. Hall had taken

over as acting president, but President Jackson had left

him instructions concerning review of Dr. Lincoln’s posi-

tion. Accordingly, Dr. Hall asked Dr. Lincoln to submit

an accounting of her work for the 1977-78 term. Dr.

Lincoln did not comply with the request, apparently

because she felt that in view of Dr. Hall’s opinion that

she was a threat to the integrity of the college, it was un-

likely that he would consider her favorably. Dr. Lincoln

did not apply for a new contract, and Dr. Hall, upon re-

ceiving no response to his request for an accounting, |

decided not to offer her one. The district court found that

“even had Dr. Lincoln complied with Dr. Hall’s request,

she would not have been continued’’, because ‘‘there is no

reason to believe that [she] had generated . . . funding in

the requisite amounts’”’.

II. The Seventh Amendment

We consider first the Board’s argument that the judg-

ment against it violated the seventh amendment. That

amendment provides, in pertinent part, that “no fact

tried by a jury, shall be otherwise re-examined in any

Court of the United States, than according to the rules of

the common law’’. The Board of Regents argues that the

9a

judgment against it rests on an impermissible re-examina-

tion of facts found by the jury in the § 1981 action against

Mrs. Terrell and Dr. Hall. According to the Board, the

judgment on the Title VII claim was predicated on the

theory of respondeat superior and on illegal discrimination

by the individual defendants as its agents. Because the

jury exonerated the individual defendants, the Board

argues, the district court could not, consistently with

Seven Amendment, hold their principal liable on this

theory.

(1-4] An action for reinstatement and backpay under

Title VII is by nature equitable and entails no rights

under the seventh amendment. Lehman v. Nakshian, 1981,

453 U.S. 156, 163-64, 101 S.Ct. 2698, 2703-04, 69 L.Ed.2d

548, 555-56; Johnson v. Georgia Highway Express, Inc.,

5 Cir.1969, 417 F.2d 1122, 1125. An action for damages

under § 1981, however, is by nature legal and must be

tried by a jury on demand. See Whiting v. Jackson State

University, 5 Cir.1980, 616 F.2d 116, 122 & n. 4. When

legal and equitable actions are tried together, the right to

a jury in the legal action encompasses the issues common

to both. See Curtis v. Loether, 1974, 415 U.S. 189, 196

n. 11, 94 S.Ct. 1005, 1009, n. 11, 39 L.Ed.2d 260, 267;

Dairy Queen, Inc. v. Wood, 1962, 369 U.S. 469, 470-73,

82 S.Ct. 894, 896-97, 8 L.Ed.2d 44, 47-48. When a party

has the right to a jury trial on an issue involved in a legal

claim, the judge is of course bound by the jury’s deter-

mination of that issue as it affects his disposition of an

accompanying equitable claim.

(5] According to the Board of Regents, when the jury

in this case exonerated the individual defendants in the

§ 1981 action, it decided the critical issue in the equitable

action against the Board, since the Board’s liability could

10a

follow only from the wrongful acts of its agents. Un-

doubtedly, a verdict exonerating an agent while holding

his principal liable for his actions would be an inconsistent

resolution of factual questions. See Barnes v. West Point

Foundry and Machine Co., 5 Cir.1971, 441 F.2d 532;

Dixie Ohio Express Co. v. Poston, 5 Cir.1948, 170 F.2d

446, 448. Dr. Lincoln argues, however, that the district

court in the present case could legitimately make inde-

pendent factual findings inconsistent with the jury’s ver-

dict in the § 1981 action. According to Dr. Lincoln, Dairy

gueen, Inc. v. Wood governs only cases in which legal and

“equitable claims against a single defendant are tried to-

gether; it is not binding here because the Board of

Regents, as a party to an equitable action only, has no

constitutional right to a jury trial on any issue.

(6, 7] We know of no case either adopting or rejecting

the distinction Dr. Lincoln urges upon us. We leave the

choice between these alternatives for yet another case,

however, because the case before us does not require us

to make it. See Ashwander v. Tennessee Valley Authority,

1936, 297 U.S. 288, 346-47, 56 S.Ct. 466, 483, 80 L.Ed.

688, 711 (Brandeis, J., concurring); White v. United

States Pipe & Foundry Co., 5 Cir.1981, 646 F.2d 203,

206. The district court’s judgment in this case is not in-

consistent with the jury verdict on the § 1981 claim.

We have no doubt that a judgment holding a principal

liable in a Title VII case of this type would be inconsistent

with a verdict exonerating under § 1981 the employees

from whose actions Title VII liability derives.‘ This,

* When, as in this case, the plaintiff predicates liability under Title

VII on disparate treatment, the legal elements of the claim are identi-

cal to those of a claim under § 1981. Whiting v. Jackson State Univ.,

5 Cir.1980, 616 F.2d 116, 121; see also Scarlett v. Seaboard Coast Line

lla

however, is not the case here, because the district court

did not predicate the Board’s liability on the actions of

Mrs. Terrell or Dr. Hall. Dr. Hall, as acting president of

the college in 1978, had the final opportunity to offer Dr.

Lincoln a new contract. The district court, however,

found that President Jackson, whose liability the jury in

the § 1981 action never considered, was in fact responsible

for Dr. Lincoln’s departure from Savannah State. The

court reached this conclusion by two routes.

First, the district court found that Dr. Hall did not

reject Dr. Lincoln’s application for a new contract, be-

cause she never submitted a formal application. The court

further found that intolerable conditions surrounding her

employment at Savannah State had prompted her not to

apply and that these conditions, for which President

Jackson was responsible, amounted to “constructive dis-

charge’”’. See Bourquev. Powell Electric Manufacturing Co.,

5 Cir.1980, 617 F.2d 61, 64-65; Young v. Southwestern

R.R., 5 Cir.1982, 676 F.2d 1043, 1053. A plaintiff asserting either

claim must prove intentional discrimination. See Baldwin v. Birming-

ham Bd. of Educ., 5 Cir.1981, 648 F.2d 950, 954. In either case, the

plaintiff can create a rebuttable presumption of discrimination by

proving the elements of a prima facie case as discussed in Part III.

Id. at 955. And the respective burdens of the plaintiff and defendant

after a prima facie case is established are the same in both cases. See

tegen ». Escambia County School Bd., 5 Cir.1981, 685 F.2d 326,

‘a

These similarities do not exist when liability under Title VII is

premised on the disparate impact of a facially neutral employment

practice, rather than on disparate treatment. In such case, a Title VII

violation can be established without a showing of discriminatory

motive. See note 9. A violation of § 1981, however, cannot be premised

on this theory alone. General Building Contractors Assoc. v. Pennsyl-

vania, 1982, ___. US. : oS & n. 8, 102 S.Ct. 3141, 3146

& n. 8, 73 L.Ed.2d 835, 844-45 & n. 8. We thus have serious doubt

that exoneration of a defendant under § 1981 would be inconsistent

with liability of the same defendant or his principal under Title VII

on a disparate impact theory.

12a

Savings and Loan Association, 5 Cir.1975, 509 F.2d 140,

143-44. Specifically, the court found that President Jack-

son had removed Dr. Lincoln from teaching responsibili-

ties during the 1977-78 term in the hope that she would

not seek continued employment, that her assignment

during that term consisted of insignificant tasks that had

no relation to her training or experience, and that he put

her future in the hands of Dr. Hall, who, as he knew,

considered Dr. Lincoln a threat to the “integrity of the

institution’. Accordingly, the district court concluded

that Dr. Lincoln’s failure to complete a renewal applica-

tion “resulted from her reasonable belief that she had in

effect been rejected already”’.

Alternatively, the district court found that even to the

extent Dr. Hall may have been ultimately responsible for

Dr. Lincoln’s nonrenewal, he was acting under guidelines

established by President Jackson. Regardless of who had

the opportunity to offer Dr. Lincoln a new contract, the

court found that it would not have been renewed because

of her inability to fulfill President Jackson’s require-

ments. The court found no evidence that Dr. Lincoln had

generated enough funding to pay her salary for another

year, and Dr. Hall’s stated reason for not offering her a

new contract was her failure to demonstrate that she

had.’ The district court thus found that on either ratio-

nale Dr. Lincoln was not renewed “‘as a direct consequence

of steps taken by Dr. Jackson’’. The court held the Board

of Regents “‘clearly accountable for these actions under

the doctrine of respondeat superior’’.®

7 Specifically, Dr. Hall testified as follows: “Since I did not receive

a reply from her concerning what she had done, and I had made the

request in order to carry out the mandate of Dr. Jackson, I did not

offer her a contract for the next year.” Trial Transcript (Tr.) 298.

§ As our discussion in Part III will elaborate, the district court’s

disposition of the case rested to some extent on findings that Mrs.

13a

The district court’s reasoning not only harmonizes its

judgment with the verdict on the § 1981 claim but also

establishes that the jury’s advisory verdict was consistent

with that verdict. We may thus easily dispose of Dr.

Lincoln’s cross-appeal. Dr. Lincoln argues that the jury’s

overall resolution of the case was inconsistent and re-

quires that the verdict on the § 1981 claim be set aside.

Because we do not find that the jury acted inconsistently,

we need not decide whether a separate, nonbinding ad-

visory verdict can render inconsistent and void the jury’s

resolution of a case committed to it for binding determi-

nation.

Although the advisory verdict and the judgment on the

Title VII claim are not inconsistent as a matter of law

with the verdict on the § 1981 claim, our inquiry does not

end with this conclusion. The apparent consistency would

evaporate if the evidence did not support the critical

finding that President Jackson constructively discharged

Dr. Lincoln. We must therefore consider the sufficiency

of the evidence on this point. We do so in the course of

our general review of the evidence on the Title VII claim.

Wises

Terrell and Dr. Hall were racially biased against Dr. Lincoln. A find-

ing that these defendants possessed some racial animus, however, is

not necessarily inconsistent with the judgment in their favor in the

§ 1981 action. The jury may have absolved them from liability on the

ground that their role was not determinative in the challenged em-

ployment decision or that their opposition to Dr. Lincoln, whether

misguided or not, was not motivated by any conscious racial animus.

As the district court instructed the jury on the § 1981 claim, “pur-

poseful racial discrimination” means “conduct or policies which

would result in racial discrimination directed against the plaintiff,

where the purpose or intent of that conduct or policy is to be racially

discriminatory”. The judgment for the plaintiff on the Title VII claim

rested on President Jackson’s awareness of the racial component in

Dr. Hall’s and Mrs. Terrell’s objections to Dr. Lincoln, not on their

Own awareness of that component. See p. 20.

14a

ITI. Sufficiency of the Evidence

[8-14] The tripartite division of the burdens assigned to

the parties in a Title VII case was first articulated in

McDonnell Douglas Corp. v. Green, 1973, 411 U.S. 792,

93 S.Ct. 1817, 36 L.Ed.2d 668, and most recently clarified

by the Supreme Court in Texas Department of Community

Affairs v. Burdine, 1981, 450 U.S. 248, 101 8.Ct. 1089, 67

L.Ed.2d 207. A plaintiff alleging disparate treatment in

an action under Title VII has the burden of persuading

the trier of fact that the defendant has committed inten-

tional discrimination.® Jd. at 253, 101 S.Ct. at 1093, 67

L.Ed.2d at 215; Pouncy v. Prudential Insurance Co. of

America, 5 Cir.1982, 668 F.2d 795, 799. Although this

ultimate burden remains with the plaintiff at all times,

the plaintiff may, by proving a prima facie case of dis-

parate treatment, shift to the defendant the burden of

producing evidence of nondiscriminatory intent. Burdine,

450 U.S. at 252-56, 101 S.Ct. at 1093-95, 67 L.Ed.2d at

215-17. To make a prima facie case, the plaintiff must

establish the four familiar elements required by McDon-

nell Douglas:

_ (i) that he belongs to a racial minority; (ii) that he ap-

plied and was qualified for a job for which the employer

was seeking applicants; (iii) that, despite his qualifica-

tions, he was rejected; and (iv) that, after his rejection,

* The burden of the plaintiff in a disparate treatment case differs

from that in a case involving a claim predicated on disparate impact.

Disparate impact cases involve “employment practices that are

facially neutral in their treatment of different groups but that in fact

fall more harshly on one group than another and cannot be justified

by business necessity. Proof of discriminatory motive . . . is not re-

quired under a disparate impact theory.” International Bhd. of

Teamsters v. United States, 1977, 431 U.S. 324, 335 n. 15, 97 8.Ct.

1843, 1845 n. 15, 52 L.Ed.2d 396, 415 (citation omitted). See also

Burdine, 450 U.S. at 252, n. 5, 101 8.Ct. at 1003 n. 5, 67 L.Ed.2d at

215.

l5a

the position remained open and the employer continued

to seek applicants from persons of complainant’s

qualifications.

411 U.S. at 802, 93 S.Ct. at 1817, 36 L.Ed.2d at 677; see

also Harrell v. Northern Electric Co., 5 Cir.1982, 672 F.2d

444, 449, modified and reh. denied, 679 F.2d 31. The specific

proof required for a prima facie case will naturally vary

from case to case. See McDonnell Douglas, 411 U.S. at 802

n. 13, 93 S.Ct. at 1817, 36 L.Ed.2d at 677. McDonnell

Douglas was a hiring case, but variants of its four factors

apply in the context of wrongful discharge or nonrenewal

as well. McDonald v. Santa Fe Trail Transportation Co.,

1976, 427 U.S. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493;

Whiting v. Jackson State University, 5 Cir.1980, 616 F.2d

116, 120. In such a case, the plaintiff can make a prima

facie case by establishing that he is a member of a minor-

ity, that he was qualified for his job, that he was dis-

charged, and that he was replaced by a member of the

majority race. Whiting, 616 F.2d at 121; Marks v. Prattco,

5 Cir.1979, 607 F.2d 1153, 1155. To make a prima facie

case, the plaintiff must prove these elements by a pre-

ponderance of the evidence.'* Burdine, 450 U.S. at 252-

53, 101 S.Ct. 1093-94, 36 L.Ed.2d at 215.

[15-17] A prima facie case establishes a presumption of

discrimination and shifts the analysis to the second of its

three steps, in which the burden of rebutting the presump-

tion falls to the defendant. Burdine, 450 U.S. at 254, 101

S.Ct. at 1094, 67 L.Ed.2d at 216. The defendant must

“articulate some legitimate, nondiscriminatory reason”

'* As used in this context, “prima facie case”, of course, denotes

“establishment of a legally mandatory, rebuttable presumption”’,

not, as it often does, the burden of producing “enough evidence to

permit the tri fact to infer the fact at issue”. Burdine, 450 U.S. at

er of

254 n. 7, 101 8.Ct. at 1094 n. 7, 67 L.Ed.2d at 216.

l6a

for the allegedly discriminatory action. McDonnell Doug-

las, 411 U.S. at 802, 93 S.Ct. at 1817, 36 L.Ed.2d at 677.

What Burdine clarified, and what was unclear before, is

that the defendant’s burden at this point is one of pro-

duction, not persuasion. The defendant need not persuade

the court that it was motivated by nondiscriminatory

considerations, nor need it establish by a preponderance

of the evidence that such reasons exist. Burdine, 450 U.S.

at 254, 257-58, 101 S.Ct. at 1094, 1096, 67 L.Ed.2d at 216,

218. The defendant’s evidence is sufficient if it ‘‘raises a

genuine issue of fact as to whether it discriminated against

the plaintiff’. Jd. at 254, 101 8.Ct. at 1094, 67 L.Ed.2d at

216. The defendant must raise an issue of fact by means

of admissible evidence, however, and averments in plead-

ings are insufficient. Jd. at 255 & n. 9, 101 S.Ct. at 1094,

& n. 9, 67 L.Ed.2d 216. In addition, the reasons articu-

lated must be “legally sufficient to justify a judgment for

the defendant’’. Jd."

[18] If the defendant fails to produce sufficient evidence

to raise a genuine issue of fact, then the plaintiff will pre-

vail without any further showing. /d. at 254, 101 S.Ct. at

1094, 67 L.Ed.2d at 216. If the defendant does succeed in

rebutting the presumption of discrimination, however, the

third step in the analysis is required: the burden shifts

back to the plaintiff, who must establish by a preponder-

ance of the evidence that the reasons proffered by the

defendant are pretextual, not the true reasons for the

challenged employment decision. Jd. at 256, 101 S.Ct. at

1095, 67 L.Ed.2d at 217. He may prove this either by

means of affirmative evidence that race played an imper-

1 For a detailed analysis anticipating the holding in Burdine and

tying it to Fed.R.Evid. 301, see Mendez, Presumptions of Discrimina-

tory Motive in Title VII Disparate Treatment Cases, 32 Stan.L.Rev.

1129 (1980).

17a

missible role in the decision or by showing that the

proffered nondiscriminatory reasons do not merit cre-

dence. Jd.

[19] A plaintiff’s burden at this point is equivalent to

Dr. Lincoln’s overarching burden in the case, that of per-

suading the court that she is a victim of intentional dis-

crimination. Jd. In discharging this burden, the plaintiff

need not prove that race was the only motive behind the

challenged action. Pittman v. Hattiesburg Municipal

Separate School District, 5 Cir.1981, 644 F.2d 1071, 1076;

see also Turner v. Texas Instruments, Inc., 5 Cir.1977, 555

F.2d 1251, 1257. She must prove, however, that race was

a significant factor in the defendant’s decision. Whiting v.

Jackson State University, 5 Cir.1980, 616 F.2d 116, 121.

She will thus prevail on a showing that, although legiti-

mate grounds for the defendant’s action existed, the action

would not have undertaken ‘‘but for’ her race. McDonald

v. Santa Fe Trail Transportation Co., 1976, 427 U.S. 273,

282 n. 10, 96 S.Ct. 2574, 2580 n. 10, 49 L.Ed.2d 493, 502;

see also Jackson v. City of Killeen, 5 Cir.1981, 654 F.2d

1181, 1186.'?

The district court in the present case found that Dr.

Lincoln’s contract would have been renewed but for her

race. The court noted that the plaintiff bears the ultimate

burden of proving racial discrimination and acknowledged

both that Dr. Lincoln was not a “perfect teacher or a

1? For a recent criticism of the “but for’’ standard of causation in

disparate treatment cases, see Brodin, The Standard of Causation in

the Mixed Motive Title VII Action: A Social Policy Perspective, 82

Colum.L.Rev. 290 (1982). Professor Brodin suggests that a Title VII

violation should be established on a showing that race was a moti-

vating factor in the challenged employment decision, regardless of

whether the same decision would have been reached had race not

been considered, and that the question of “but for’ causation should

affect only remedies. Jd. at 311-26.

18a

perfect colleague”’ and that none of the parties was neces-

sarily ‘overtly or intentionally racist’. But the court

found that racial animus was apparent in several respects

and concluded from the evidence before it that Dr.

Lincoln was denied renewal “‘not because she was incom-

petent but because she was white’’. In reaching this

conclusion, of course, the court applied the tripartite

analysis of McDonnell Douglas.

The district court first found that Dr. Lincoln had made

a prima facie case. She was in a racial minority at Savan-

nah State, where blacks outnumbered whites approxi-

mately two-to-one both on the faculty and in the student

body. She was constructively discharged by President

Jackson, as we discussed in Part I. The court also found

that Dr. Lincoln was qualified for her job, at least in the

view of President Jackson, whom it held responsible for

her discharge, and that her position was subsequently

filled with a black, either Dr. Sara Harper, who joined the

department when Dr. Lincoln was assigned to nonteach-

ing responsibilities, or Ms. Diana Wagner, who was

originally hired on a temporary basis and would have

been terminated if Dr. Lincoln had continued to teach.

(20, 21] The district court then considered and rejected

the Board’s effort to rebut the presumption of discrimina-

tion. The Board introduced evidence that Dr. Lincoln’s

nonrenewal was motivated by charges of incompetence

and lack of rapport with students. Having established

that President Jackson was responsible for Dr. Lincoln’s

constructive nonrenewal, however, the district court

found this evidence to lack credibility because President

Jackson himself had testified that he found those charges

baseless.'* The district court found ‘‘persuasive evidence

‘8 The district court apparently held the defendant to too stringent

a burden of proof in rejecting its rebuttal evidence. It decided the

19a

that race was the predominant factor’. Specifically, the

court found that Dr. Hall had separated racial charges

from the alleged academic deficiencies early in the review

process and that President Jackson had rejected the pure

academic allegations. It also found that race was “a

significant factor in the initial impression of [Dr. Lincoln]

which developed in the Home Economics Department”’,

“the basis for efforts to develop faculty sentiment against

case before the Supreme Court decided Burdine, when in this Circuit

a defendant was still required to prove nondiscriminatory motive by

a preponderance of the evidence to rebut a prima facie case, see

Burdine v. Texas Dep't of Community Affairs, 5 Cir.1979, 608 F.2d

563, vacated, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207. The dis-

trict court stated that “Defendant has failed to show that these non-

racial considerations in fact contributed to the decisions” that led to

Dr. Lincoln’s departure, and this language suggests a failure to carry

the burden of persuasion.

The “clearly erroneous” standard under which we review the

district court’s factual findings, see pp. 16-17, does not insulate factual

findings influenced by legal error. Johnson v. Uncle Ben’s, Inc., 5 Cir.

1980, 628 F.2d 419, 422, vacated on other grounds, 1981, 451 U.S. 902,

101 S.Ct. 1967, 68 L.Ed.2d 290; 5A J. Moore & J. Lucas, Moore’s

Federal Practice § 52.03[2] at 2664 (2d ed. 1982). If the district court

relied on an erroneous view of a Title VII defendant’s burden in find-

ing that it has not rebutted a prima facie case, that finding is not

binding on the Court of Appeals. Turner v. Texas Instruments, Inc.,

5 Cir.1977, 555 F.2d 1251, 1256. We need not depart from the “clearly

erroneous” standard, however, if application of the wrong legal

standard did not “taint or infect” the district court’s factual findings.

See Smith v. United States, 5 Cir.1974, 502 F.2d 512, 519. Thus, if the

district court’s resolution of the case did not depend on the defen-

dant’s inability to rebut under an incorrect standard, as it did in

Turner, but relied instead on the plaintiff’s success with her ultimate

burden of proving discrimination by a preponderance of the evidence,

and if the “progression of factual findings and legal conclusions indi-

cates that the district court found by a preponderance of the evi-

dence’’ that the defendant’s rebuttal was “unworthy of credence”,

then the court’s findings “are fully consistent with Burdine”’. Ford

Motor Co. ». EEOC, 1982, __. U.S. ___., ___ n.. 7, 102 8.Ct. 3057,

3062 n. 7, 73 L.Ed.2d 721, 728 n. 7.

The district court expressly held the plaintiff to “the ultimate

burden of proof with respect to her claim of facial discrimination’’.

20a

her thereafter’, and ‘‘the focus of student unrest which

was created thereafter’. According to the district court,

the student petition was a ‘‘major force’’ in the decisions

leading to Dr. Lincoln’s termination. The court concluded

that because of her race, Dr. Lincoln’s failings were

treated more harshly than similar failings in a black

teacher would have been and that her contract would

have been renewed but for the fact that she is white.

[22-24] We may not set aside the district court’s find-

ings of fact unless they are clearly erroneous. Fed.R.Civ.P.

52(a);9 C. Wright & A. Miller, Federal Practice and Pro-

cedure § 2585 (1971). This deferential standard of review

imposes an especially heavy burden on the appellant in a

ease such as this, in which the evidence was largely testi-

monial, and the district court had the advantage of

observing the witnesses and evaluating their credibility

firsthand. See Edwards v. Gladewater Independent School

District, 5 Cir.1978, 572 F.2d 496, 497 (per curiam);

Galena Oaks Corp. v. Scofield, 5 Cir.1954, 218 F.2d 217,

219. Our deference to the district court is not unlimited,

however, and we will hold a finding of fact clearly erro-

neous if the record lacks substantial evidence to support it.

See Ward v. Hobart Manufacturing Co., 5 Cir.1971, 450

F.2d 1176, 1182-84. Even if substantial evidence sup-

ports a finding, we must consider the evidence as a whole

and set it aside if we are “‘left with the impression it is not

the truth and right of the case”. W.R.B. Corporation v.

Moreover, as the discussion in the text illustrates, the court’s Find-

ings of Fact and Conclusion of Law clearly demonstrate that it found

the plaintiff had ultimately carried her burden of proving by a pre-

ponderance of the evidence that the defendant’s rebuttal lacked

credence, regardless of the standard initially applied in evaluating

the rebuttal. We are thus bound by the district court’s finding that

Dr. Lincoln’s contract would have been renewed but for her race,

unless that finding is clearly erroneous.

2la

Geer, 5 Cir.1963, 313 F.2d 750, 753, cert. denied, 1964,

379 U.S. 841, 85 S.Ct. 78, 13 L.Ed.2d 47. Still, “[a] finding

is clearly erroneous and reversible under Rule 52(a) only

when ‘the reviewing court on the entire evidence is left

with a definite and firm conviction that a mistake has

been committed’ ’’. Williamson v. Brown, 5 Cir.1981, 646

F.2d 196, 200 (per curiam) (quoting United States v.

United States Gypsum Co., 1948, 333 U.S. 364, 395, 68

S.Ct. 525, 542, 92 L.Ed. 746).

This Court has held, in a long line of cases, that the

“clearly erroneous” standard insulates only findings of

“subsidiary fact’’, and that the determination whether

impermissible intentional discrimination has occurred in

a Title VII case is one of “ultimate fact”’, which we “may

reverse free of the clearly erroneous rule’’. Causey v. Ford

Motor Co., 5 Cir.1975, 516 F.2d 416, 421 (quoting Indus-

trial Instrument Corp. v. Foxboro Co., 5 Cir.1962, 307

F.2d 783, 786 n. 2).'* The Supreme Court, however, has

4 See also, e.g., cases cited in Pullman-Siandard v. Swint, 1982,

ce : ,n. 15, 102 8.Ct. 1781, 1788, 72 L.Ed.2d 66, 78;

Williams v. New Orleans S.S. Ass'n, 5 Cir.1982, 673 F.2d 742, 746;

Harrell v. Northern Elec. Co., 5 Cir.1982, 672 F.2d 444, 445-46; De

Anda v. St. Joseph Hosp., 5 Cir.1982, 671 F.2d 850, 855; Pouncey v.

Prudential Ins. Co. of America, 5 Cir.1982, 668 F.2d 795, 798; Wright

v. Western Elec. Co., 5 Cir.1981, 664 F.2d 959, 963; Robbins v. White-

Wilson Medical Clinic, Inc., 5 Cir.1981, 660 F.2d 1064, 1068, vacated,

1982, __. U.S. ___., 102 S.Ct. 2229, 72 L.Ed.2d 842; Sanchez v.

Texas Comm'n on Alcoholism, 5 Cir.1981, 660 F.2d 658, 661; Markey

v. Tenneco Oil Co., 5 Cir.1981, 635 F.2d 497, 498; Hester v. Southern

Ry., 5 Cir.1974, 497 F.2d 1374, 1381; Bolton v. Murray Envelope Corp.,

5 Cir.1974, 493 F.2d 191, 194; United States v. Jacksonville Terminal

Co., 5 Cir.1971, 451 F.2d 418, 423-24, cert. denied, 1972, 406 U.S. 906,

92 S.Ct. 1607, 31 L.Ed.2d 815.

The distinction between subsidiary and ultimate facts for purposes

of appellate review in this Circuit did not originate in the Title VII

context and goes back at least a decade before the enactment of Title

VII. In Galena Oaks Corp. v. Scofield, 5 Cir.1954, 218 F.2d 217, the

question of ultimate fact was whether gain derived from the sale of

22a

recently rejected this view, and it is now the law that this

Court may reverse a finding of intentional discrimination

only if the finding is clearly erroneous. Pullman-Standard

v. Swint, 1982, US. : , 102 S.Ct. 1781,

1788-91, 72 L.Ed.2d 66, 78-81; see also Mitchell v. M.D.

Anderson Hospital, 5 Cir.1982, 679 F.2d 88. Accordingly,

we will reject the district court’s finding that Dr. Lin-

coln’s contract would have been renewed but for her

race, only if we find it clearly erroneous.'* We hold that it

was not clearly erroneous. '

[25] We first note that the district court committed no

clear error in finding that President Jackson was respon-

sible for Dr. Lincoln’s constructive discharge.’ The dis-

houses was ordinary income or capital gain. The court reasoned that

questions of ultimate fact are akin to mixed questions of fact and law,

stating that findings of ultimate fact are “simply the result reached

by processes of legal reasoning from, or the interpretation of the legal

significance of, the evidentiary facts’. Jd. at 219.

18 The Supreme Court in Pullman-Standard expressly left open the

question whether “clearly erroneous” review under Fed.R.Civ.P.

52(a) applies to genuine mixed questions of law and fact, “‘questions

in which the historical facts are admitted or established, the rule of

law is undisputed, and the issue is whether the facts satisfy the statu-

tory standard, or to put it another way, whether the rule of law as

applied to the established facts is or is not violated’. ___ U.S. at

____ h. 19, 102 S.Ct. at 1790, 72 L.Ed.2d at 80. The case before us

presents no such question, since the district court’s finding that Dr.

Lincoln’s contract would have been renewed ‘“‘but for her race’, if

correct, would clearly justify relief under Title VII, McDonald v.

Santa Fe Trail Transp. Co., 1976, 427 U.S. 273, 282 n. 10, 96 S.Ct.

2574, 2580 n. 10, 49 L.Ed.2d 493, 502. We thus review this finding

only to determine whether it was clearly erroneous.

16 The Board of Regents argues that concerns peculiar to the Uni-

versity setting, particularly the need for academic freedom in faculty

employment decisions, warrant some judicial deference to the nondis-

criminatory reasons proffered for an employment decision and, by

implication, more searching appellate review of a district court

decision rejecting such reasons. This argument is without merit.

Whiting v. Jackson State University, 5 Cir.1980, 616 F.2d 116, 121.

17 The Board of Regents does not attack this finding. Rather, the

Board misconstrues the district court’s order to rely on the premise

23a

trict court relied on uncontradicted testimony that Presi-

dent Jackson had removed Dr. Lincoln from teaching

responsibilities and assigned her to duties not commensu-

rate with her professional experience or training. It is

also undisputed that President Jackson did this in the

hope that she would resign and that he established the

standard that would require Dr. Lincoln’s ultimate dis-

missal if she failed to generate her own salary with out-

side funding. Finally, it is undisputed that President

that Dr. Hall was responsible for Dr. Lincoln’s nonrenewal. We con-

sider the sufficiency of the evidence supporting this finding, however,

because it is critical to our conclusion, discussed in Part I, that the

judgment op the Title VII claim was not inconsistent with the jury

verdict on the § 1981 claim.

The Board’s misinterpretation of the district court’s factual find-

ings seems to derive from the assumption that Dr. Lincoln’s com-

plaint alleged only the actions of Dr. Hall and Mrs. Terrell as grounds

for holding the Board of Regents liable and did not ask the court to

find that President Jackson had discriminated against her. We need

not consider whether the district court must limit its factual findings

to theories of recovery advanced by the plaintiff, because in this case

we believe the Board has interpreted Dr. Lincoln’s theory of re-

covery too narrowly. A]though her Original Complaint accused the

Board of discrimination ‘‘through its agents, Defendants CLYDE

W. HALL, EVANEL TERRELL, and DIANA WAGNER”, it

also alleged generally that she was discharged “‘so as to provide a

vacancy that was filled with a Black Female” and “because she was

white, and for reasons for which Blacks are not terminated’’. These

allegations directly relating to the termination itself did not mention

the named defendants as agents or otherwise. Moreover, in the

amended complaint, the Board of Regents was eliminated from the

first-quoted allegation, which then included only the individual de-

fendants. At this point, the Board’s liability could be predicated

only on the more general allegations that followed. In addition, the

plaintiff’s p jury charge on the Title VII claim referred to

the Board “acting through its employees at Savannah State College”

without specifying the individual defendants as the employees in

question. The district court’s instructions to the jury were equally

eral. The Board of Regents does not argue that the exclusion of

came al Jackson as a named defendant ludes the district court

from holding it liable for his actions, and we see no reason to hold

that respondeal superior is inoperative in Title VII cases unless the

agent is made a party.

24a

Jackson knew that Dr. Hall would approach the task of

reviewing Dr. Lincoln’s performance with unfavorable

preconceptions about her abilities. This evidence, against

the background of Dr. Lincoln’s career at Savannah

State, supports the district court’s finding that President

Jackson made continued employment at Savannah State

so unattractive to Dr. Lincoln that he caused her not to

apply for a new contract.

The Board of Regents attacks both the district court’s

finding that Dr. Lincoln established a prima facie case

and its rejection of the nondiscriminatory reasons artic-

ulated for the treatment accorded her. Concerning the

prima facie case, the Board addresses only two of the

McDonnell Douglas factors. It does not dispute that Dr.

Lincoln was in a racial minority at Savannah State, nor

that it failed to re-employ her. The Board argues, how-

ever, that Dr. Lincoln was not replaced by a black, be-

cause Sara Harper, her alleged replacement, had been

employed throughout Dr. Lincoln’s last year, when the

department had five members rather than the custom-

ary four. The Board also argues that Dr. Lincoln was not

qualified for the position she was ultimately denied, by

virtue of her own admissions that she lacked credibility

and rapport with the majority of her students, Trial

Transcript (Tr.) 91-92.

In finding that Dr. Lincoln was replaced by a black,

the district court relied on President Jackson’s testimony

that the home economics department would sustain only

four faculty members, id. at 136,'* that the search for a

'§ This testumony, of course, directly contradicts the Board’s

critical assertion that during Dr. Lincoln's last year, the

ment had five members. Although it is possible that Dr. Lincoln

was nominally a member of the Department during 1977-78, how-

ever, it is established that she performed no duties within the de-

25a

new department head after Mrs. Terrell’s retirement in

1976 would eventually displace the acting head and re-

quire the termination of one of the other three faculty

members, id. at 135, and that when Dr. Lincoln was

transferred to the Dean’s Office, Dr. Sara Harper, who is

black, moved into “Dr. Lincoln’s slot”, id. This testi-

mony supports the finding that Dr. Lincoln was replaced

by a black, and in the absence of conflicting testimony,

we cannot hold that finding clearly erroneous.

The district court based its finding that Dr. Lincoln

was qualified to teach at Savannah State on President

Jackson’s testimony that he considered the case against

her weak, zd. at 143, that he found her ‘‘as competent as

anybody we have out there,” id. at 138, and that she

had displayed concern for students ‘‘beyond the ordinary

call’, id. Although there is considerable evidence in the

record that Dr. Lincoln lacked a good rapport with her

students and was deficient in other significant ways, this

evidence would not justify our declaring clearly erroneous

the trial court’s choice to credit President Jackson's

testimony. This is particularly so because that testimony

is bolstered both by Dr. Lincoln’s impressive credentials,

see p. 3, and by the testimony of three students whose

names appear on the petition, that Dr. Lincoln was either

“just like any other teacher’’, Tr. 98, 101, or otherwise

not as bad as the petition alleged, id. at 113.

In finding that the Board’s asserted reasons for non-

renewal of Dr. Lincoln’s contract lacked credibility, the

district court, as noted above, see p. 15, relied both on

partment, and there is no evidence that the home economics budget

could support five faculty members for more than one year, when

unusual circumstances required it. In any case, President Jackson’s

testimony is not so inherently incredible that we can hold the district

court clearly erroneous for choosing to credit it.

26a

Dr. Jackson’s own testimony that he found the allega-

tions concerning her academic deficiencies to lack merit

and on findings that the student petition and faculty

sentiment against Dr. Lincoln, which contributed to her

constructive discharge, were influenced by racial con-

siderations. These findings in turn rested on language in

the petition itself,* evidence that members of the faculty

participated in preparing and circulating the petition,

'® The student petition consisted of four typewritten, single-spaced

pages, alleging numerous failings of Dr. Lincoln as a teacher. The

substantive allegations followed three introductory paragraphs, the

second of which read:

As a group, we feel that she is not interested in teaching us and feels

superior to Black students and Black institutions. In Spring Quarter

1976, Dr. Lincoln complained to Mrs. Lumpkin that she had come

all the way down here from Lansing, Michigan, to help ‘‘you people”’

and her services were not appreciated. The “‘you people” complaint

was mentioned again during Fall Quarter 1976 after Dr. Hall had

observed her teaching and held a conference. This type of attitude

is insuliing. Other racists have been removed from Savannah State

College. She constantly belittles the Department’s physical plant

and its equipment. In Summer Quarter 1975 when she was forced

to take inventory, she stated that the inventory was not worth

taking and all the equipment should be thrown in the marsh.

Plaintiff's Exhibit No. 2 (emphasis added). The district court found

that the “direct and clear appeal” of the petition was racial. Record

(R.) 171. As the Board of Regents points out, a petition alleging that

a teacher is a racist does not on its face purport to call for her re-

moval because she is white. There is considerable evidence, however

that Dr. Lincoln possessed no racial prejudice, e.g., Tr. 107, 126, and

that some signers of the petition did not believe she was a racist,

e.g. id. at 113. The district court may thus reasonably have inferred

that a deeper significance rested in the allegations of racism.

*° Mrs. Terrell testified that, although she was retired at the time,

she was in communication with the students preparing the petition,

Tr. 173, and “gave support” fcr its signing, 7d. at 172. Martha Corley,

who is black and a member of the home economics faculty, testified

that the language of the petition was not likely that of students, id.

at 108, although Professor Milledge, a teach of English who chaired

the first committee that reviewed Dr. Lincoln’s status, testified to

the contrary, id. at 207-08. Dr. Jackson testified that students who

signed the petition told him they had left class one-by-one to sign it

in a teacher’s office. Jd. at 326. One student, a black, told him that a

27a

and evidence that faculty members, particularly Mrs.

Terrell and Dr. Hall, possessed racial animus. The district

court credited testimony that Mrs. Terrell had referred

to Dr. Lincoln as “this white lady [who] came down here

thinking she was going to get some easy retirement”,

Record (R.) 169 (quoting Tr. 129), that Dr. Hall had

told another black faculty member that he “hate[d] white

people’, id. at 170 (quoting Tr. 104), and that the latter

considered race an “important consideration” in choosing

a department head, id. at 178 n. 7 (quoting Tr. 133). This

evidence, combined with President Jackson’s testimony

that Dr. Lincoln was no worse than most teachers at

Savannah State, supports the finding that racial concerns

played a role in both faculty and student dissatisfaction

with Dr. Lincoln. The Board of Regents, on appeal,

seeks to discredit the evidence of faculty involvement in

the student petition and racial bias on the part of faculty

members.*! But it can point to no testimony in the record

black teacher had held up one of her grades because she had not

signed the petition, id., and another student told him she signed it

because “she wanted to graduate” and “wasn’t going to take any

chances”, id. at 327. President Jackson considered it “obvious” that

the purported student leader had not drafted the petition. Jd.

In addition to this evidence, it is relevant that the first substantive

allegation in the petition concerned a dispute between Dr. Lincoln

and Mrs. Terrell, rather than any dissatisfaction with Dr. Lincoln’s

classroom performance, see note 5. It is not readily apparent how this

incident came to the attention of the students. Nor is it apparent

how the dispute concerning inventory, referred to in the portion of

the petition quoted in note 19, came to their attention. Mrs. Terrell

testified that she did not inform them of it. Tr. 184. Finally, the peti-

tion included language that Mrs. Terrell had used in referring to

Dr. Lincoln, such as “anarchy”, and other terminology that wit-

nesses associated with Mrs. Terrell, ¢.g., id. at 109.

*! Much of the appellant’s argument consists of an effort to estab-

lish that Dr. Hall acted out of no racial animus when he chose not to

offer Dr. Lincoln a fifth contract. The district court, however, did

not find that Dr. Hall was so motivated at the time and did not

consider the question. The court’s finding that President Jackson was

28a

contradicting the evidence of faculty involvement and no

testimony, apart from the denials of Mrs. Terrell and Dr.

Hall, see Tr. 176, 256, that they die not make the state-

ments attributed to them.*? We cannot hold the district

court clearly erroneous for choosing to believe disinter-

ested witnesses rather than parties to the action.

[26] The evidence in this case, as the district court

described it, was “often contradictory, confused, and at

points quite sketchy”. R. 183. The district court found

intentional discrimination but was “unwilling to con-

clude .. . that any of the parties were necessarily overtly

or intentionally racist’. Jd. It held President Jackson

responsible for Dr. Lincoln’s constructive discharge, yet

it did not find that he possessed any racial bias. Inten-

tional discrimination, however, is possible without racial

bias as such.** The district court found that race imper-

responsible for Dr. Lincoln’s constructive nonrenewal made inquiry

into Dr. Hall’s motives irrelevant. See pp. 10-11 & 17 note 17, Our

task is thus only to determine whether the district court clearly erred

in finding that race played an impermissible role in President Jack-

son’s actions.

#2 According to Dr. Lincoln, Mrs. Terrell had also stated on many

occasions that “Dr. Anthony is really one of us. . . . [HJer sister's skin

is almost as dark as mine.’’ /d. at 28. (Dr. Anthony is of Lebanese

extraction. Jd.) Mrs. Terrell denied making this comment as well.

Id. at 177.

3 See Robbins v. White-Wilson Medical Clinic, Inc., 5 Cir.1981,

660 F.2d 1064, vacated and remanded, 1982, —.. U.S. —__., 102 8.Ct.

2229, 72 L.Ed.2d 842. In Robbins, this Court upheld as not clearly

erroneous the district court’s finding that the individual alleged to

have discriminated “‘possessed no racial bias or animus as such”. The

Court reversed, however, the district court’s ‘‘ultimate’’ finding that

no intentional discrimination had occurred. See pp. 1560-1561. The

Supreme Court remanded the case for further consideration in the

light of Pullman-Standard, Inc. v. Swint, 1982, 456 U.S, ——, 102

S.Ct. 1781, 72 L.Ed.2d 66, and on remand, this Court upheld, under

“clearly erroneous”’ review, the district court’s finding that no inten-

tional discrimination had occurred, Robbins v. White-Wilson Medical

Clinic, Inc., 5 Cir.1982, 682 F.2d 508, 504.

29a

missibly influenced the faculty and student actions

prompting President Jackson to put Dr. Lincoln in such

a position that she would not seek a fifth contract. The

evidence also supports the finding that President Jackson,

particularly in view of his own assessment of Dr. Lin-

coln’s abilties, was aware that race was a determinative

factor in those faculty and student actions, whether or

not those calling for her ouster were “overtly or inten-

tionally racist’. In acting on charges he knew to be

racially motivated, President Jackson intentionally dis-

criminated. The district court found from the evidence

that Dr. Lincoln would have sought and received a new

contract, but for her race. We cannot say we are “left

with a definite and firm conviction that a mistake has

been committed’’, United States v. United States Gypsum

Co., 1948, 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed.

746, 766.24

CONCLUSION

The judgment for the plaintiff on her Title VII claim

against the Board of Regents is neither inconsistent with

the jury verdict on the § 1981 claim nor clearly erroneous

on the basis of evidence before the district court. The

jury verdict was not inconsistent, and there is no reason

to set it aside. Accordingly, the judgment of the district

court is in all respects AFFIRMED.

** We note that the jury, charged with returning an advisory

verdict, apparently reached the same conclusion, Although the ad-

visory verdict is not strictly relevant to our review of this case, and

does not influence our decision, we consider the point worth mention-

ing. As we have discussed earlier, the advisory verdict is not im-

peached by any purported inconsistency with the verdict exonerating

Mrs. Terrell and Dr. Hall. See p. 11.

30a

HATCHETT, Circuit Judge, dissenting:

I dissent for two reasons: (1) the majority, in effect,

overrules Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82

S.Ct. 894, 8 L.Ed.2d 44 (1962); and (2) the trial court

and majority select as a discriminatory act one time-

barred by statute, which ousts both courts of jurisdiction.

The majority opinion finds liability against the Board

of Regents following the theory advanced by the district

court that Dr. Jackson, ‘“‘whose liability the jury in the

§ 1981 action never considered, was in fact responsible for

Dr. Lincoln’s departure from Savannah State.”’ On this

theory, the majority emasculates the holding in Dairy

Queen. Although the majority correctly recognizes that

when legal and equitable actions are tried together, the

right to a jury in the legal action encompasses the issues

common to both, its holding provides a rationale by which

the rule of Dairy Queen may be avoided.

The rule announced today instructs plaintiffs in jointly

instituted Title VII and § 1981 actions, that Dairy Queen

may be avoided by simply failing to name one of the agent

defendants is the § 1981 suit. If the agent defendant is not

named in the § 1981 action, the trial judge is free to find

facts as to the unnamed agent and thereby render the

principal liable in the Title VII action. Additionally,

under the majority’s holding, the principal may be found

liable based on acts of the unnamed agent without any

notice to the principal that the unnamed agent’s actions

are suspect. The judge in this case was bound by the

jury’s determination that no named agent of the Board of

Regents was guilty of a discriminatory practice.

Dr. Lincoln’s complaint names as party defendants the

Board of Regents, Dr. Hall, Mrs. Terrell, and Ms.

Wagner. Nowhere in the complaint was liability sought

3la

to be inposed on the Board for the acts of Dr. Jackson. In

spite of this, the trial court and majority here impose

liability on the Board on the basis of acts performed by

an agent of the Board not named in the lawsuit and not

defended at trial, This is precisely the sort of mischief

Dairy Queen intended to curb. Moreover, if the discrimi-

natory act that renders the Board liable is that of Dr.

Jackson, then no jurisdiction existed in the district court.

Title VII requires aggrieved persons to file a complaint

with the EEOC within 180 days after the alleged unlaw-

ful employment practice occurs, 42 U.S.C.A. $ 2000e-5(e).

On April 1, 1977, Dr. Jackson notified Dr. Lincoln by

memo that she was being terminated for cause. A formal

letter to Dr. Lincoln on April 25, 1977, informed her of

this course of action, On June 1, 1977, another letter from

Dr. Jackson informed Dr. Lincoln of the reasons for her

termination. Because the April 25, 1977, date is by law

the date on which the alleged unlawful employment

practice occurred, Dr. Lincoln should have notified the

EEOC by October 22, 1977, to come within the 180 day

limitation. There is nothing in the record to indicate that

an EEOC complaint was filed within 180 days of Dr.

Jackson’s alleged discriminatory employment practice.

A good reason exists for the absence in the record; no

one, other than the judges in this case, ever considered

Dr. Jackson’s actions as the acts giving rise to this lawsuit.

DECISION OF THE DISTRICT COURT

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA

SAVANNAH DIVISION

H. ANITA LINCOLN

Plaintiff

V

BOARD OF REGENTS OF THE | ...

UNIVERSITY SYSTEM OF CV 479-340

GEORGIA, and

CLYDE W. HALL, and

EVANEL R. TERRELL

Defendants

ORDER

This case was brought before the Court pursuant to

Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e, et seg., and the Civil Rights Act of 1866, 42

U.S.C. § 1981. Plaintiff's complaint as amended alleged

that she had been refused a contract of employment as a

non-tenured professor of Home Economics at Savannah

State College (SSC) on the basis of her race. Plaintiff is

white. SSC is a predominantly and historically black in-

stitution. More specifically, Dr. Lincoln alleged that she

had been the victim of racially-motivated attacks on her

fitness as an instructor, directly or indirectly carried out

by individual defendants Dr. Clyde W. Hall and Mrs.

Evanel R. Terrell in violation of §1981. Plaintiff also

alleged that the defendant Board of Regents was liable

under Title VII for her nonrenewal.

A trial of these issues was held before a jury November

3-4, 1980. This jury found for the individual defendants

ib

2b

in the §1981 action. However, by an advisory verdict, the

jury found for the plaintiff with respect to the Title VII

claim. After a full and independent review of the evidence

presented at this trial, it is the conclusion of the Court

that impermissible racial animus was a substantial factor

in plaintiff’s losing her position, such that “but for’’ her

race she would not have been dropped from the SSC

faculty. Accordingly, the Court will order backpay and

other relief to the plaintiff as outlined below. The bases

for these remedies are described in the following determi-

nations styled “Findings of Fact” (IF) and ‘Conclusions

of Law’ (CL). However, should the content of any item

be at odds with the category assigned, content shall be

controlling.

Findings of Fact

The Participants

1. The defendant Board of Regents of the University

System of Georgia is the body overseeing operations of

constituent units of the state system of public higher edu-

cation, including SSC. As such, the defendant Board

directly and through its agents controls decisions with

respect to hiring and retention of faculty members at

these institutions.

2. The individual named defendants Dr. Clyde W.

Hall and Mrs. Evanel R. Terrell, both of whom are black,

were employed on the faculty at SSC during some or all

of the period here at issue. Dr. Hall was head of the SSC

Division of Technical Sciences, which included Home

Economics, from 1961 until 1976, and again from 1977

until March, 1978. Dr. Hall was Acting President of SSC

from March, 1978 until August, 1980. As Division Chair-

man, he recommended plaintiff’s initial employment in

3b

August, 1974. He also participated directly in the division

to remove Dr. Lincoln from her teaching responsibilities

in the spring of 1977. As Acting President of SSC, Dr.

Hall had charge of plaintiff’s last renewal application in

the summer of 1978.

Mrs. Terrell was chairman of the SSC Department of

Home Economics from Fall, 1947 until her retirement in

June, 1976. Mrs. Terrell personally recommended plain-

tiff’s appointment to the SSC faculty in August, 1974.

Thereafter, she also initiated several complaints to Dr.

Hall concerning plaintiff’s performance and took other

action directed toward securing plaintiff’s dismissal.

3. The Home Economies faculty at SSC also included

Ms. Diana Wagner, who is black, as an assistant profes-

sor. Ms. Wagner was dropped as an individual defendant

in the §1981 action shortly prior to trial.

Dr. Teresa Anthony, who is white, was a third member

of the Home Economics faculty during the period at issue.

Like Mr. Wagner, she took an active role in seeking plain-

tiff’s dismissal, particularly in spring, 1977, when she was

acting department head.

Mrs. Terrell, Ms. Wagner and Dr. Anthony were the

only teachers in the Home Economics Department when

Dr. Lincoln arrived at SSC. Subsequently, two other

persons joined the department, Ms. Martha Corley who

returned from a leave of absence in September, 1976, and

Dr. Sarah Harper, who was retained to replace Mrs.

Terrell as department chairman beginning in September,

1977. Dr. Harper took no part in the trial. Ms. Corley’s

testimony was regarded as particularly significant by the

Court because she was close enough to the events here in

dispute to provide very significant insights but without

the apparent biases of other witnesses. Also highly

4b

credible in the Court’s view was the testimony of Mrs.

Vivian Perry, who was SSC Food Services Director during

some of the period at issue. Like Ms. Corley, this witness

had direct acquaintance with many aspects of the case

and no suggested bias. Both Ms. Corley and Mrs. Perry

are black.

4. Two other faculty members also played significant

roles in the incidents at issue. Dr. Thomas Byers was Dean

of the College and Dr. Hall’s immediate superior during

much of the relevant period. He was responsible for in-

vestigating charges against the plaintiff, and, more

specifically, appointed the committees which made recom-

mendations to Dr. Prince Jackson, who was President of

Savannah State until replaced by Dr. Hall in 1978. Dr.

Jackson had final responsibility for determining plaintiff's

employment status during his tenure as President of

SSC.

5. Plaintiff Dr. Anita Lincoln was employed at SSC

under a series of four one-year contracts covering the

academic terms 1974-75, 1975-76, 1976-77, and 1977-78.

Dr. Lincoln was a non-tenured professor of home eco-

nomics, teaching courses in dietetics and also more general

subjects from September, 1974 until spring, 1977, when

she was suspended from her duties because of incidents

which are outlined below. During the 1977-78 academic

year she was employed at SSC in a non-teaching capacity.

Dr. Lincoln was not offered employment for the 1978-79

academic year. She had not worked regularly since leaving

SSC in September 1978. She has sought employment in

academic and other areas since that time. Testimony of

Dr. Lincoln.

5b

Background Problems

6. Dr. Lincoln has an extensive and impressive back-

ground in dietetics, nutrition and certain other areas

generally classified under the rubric ‘Home Economics.”

Testimony of Dr. Hall. Dr. Lincoln has also had consider-

able experience in governmental and administrative work

relative to her areas of expertise. Terrell. This training

and experience made Dr. Lincoln an attractive and ap-

parently highly qualified addition to the SSC faculty

when she was initially hired. Hall, Terrell.

7. Despite acknowledged expertise in her specialized

fields, Dr. Lincoln had limited familiarity with certain

practical and elementary aspects of home economics.

Plaintiff was particularly uncomfortable in introductory

level courses. She had done little teaching of such sub-

ject-matter and professed not to recall much of what she

had been taught when a student herself. Dr. Lincoln also

indicated that she was not well prepared to teach courses

which involved laboratory instruction i.e., preparation

of foods in a demonstration kitchen. Nonetheless, Dr.

Lincoln was required to teach courses in these fields. It

was believed that her background should have well-

prepared her for these responsibilities. Hall, Terrell. This

understanding may have derived from assurances given

by Dr. Lincoln at the time of her initial employment

interview at SSC. Jd.

8. Dr. Lincoln apparently encountered problems with

students and faculty at SSC almost from the beginning of

her tenure. Dr. Lincoln's difficulties with Mrs. Terrell in

particular may have reflected in some part typical prob-

lems associated with a new job in new surroundings. Hall.

Some can be clearly be traced to differing concepts of

professional responsibility. Both Dr. Hall and Mrs.

6b

Terrell viewed themselves as plaintiff's “supervisors.”

Apparently, Dr. Lincoln was accustomed to much more

independence in her professional role. Hall, Terrell.

In any event, considerable friction developed between

Dr. Lincoln and Mrs. Terrell often over matters which

appeared to have little intrinsic significance. For example,

Mrs. Terrell objected strenuously to Dr. Lincoln’s

changing the meeting place of a class without notifying

her. However, it appears that this was done at students’

request, without causing inconvenience to anyone, and

without intent to violate college rules. Lincoln. Testimony

of Gloria Hall (a student). Mrs. Terrell was also much dis-

tressed by her belief that the plaintiff told students that

certain information Mrs. Terrell had given them was in-

correct. This, according to Mrs. Terrell, amounted to

“instigating unrest’’ and promoting “‘social anarchy.”

Stated in more general terms, Mrs. Terrell found Dr.

Lincoln “resentful and condescending.”’ Mrs. Terrell

complained that plaintiff “would not accept me as her

advisor” and was otherwise “insubordinate.’’ Mrs. Terrell

believed that plaintiff was particularly and excessively

critical of the facilities available at SSC. She was there-

fore “bound and declared to have a replacement who

would and could teach” students she described as “‘our

young girls.”” This evaluation was largely shared by Ms.

Wagner and Dr. Anthony.

9. Conflicts between Dr. Lincoln and Mrs. Terrell,

which might well have developed in any event, were

much exacerbated by racial considerations. Race was a

familiar if not constant topic of conversation and con-

sideration at SSC. Hall. Mrs. Terrell was apparently

7b

highly conscious of race! and highly sensitive to racial

slights.? Mrs. Terrell tended to view her disputes with the

plaintiff in a racial light. Conflicts were not merely with

another teacher but with “this white lady,” who thought

she was “going to get some easy retirement.’’ Testimony

of Vivian Perry.

Mrs. Terrell tried to influence blacks on the SSC staff

against Dr. Lincoln. Jd.

10. Dr. Hall also was acutely conscious of racial dif-

ferences in dealing with faculty members. He expressed

a preference for replacing Mrs. Terrell as department

chairman with a black. Jackson. While he did not accept

Mrs. Terrell’s criticisms of Dr. Lincoln immediately, and

he, in fact, found plaintiff rather friendly, he still tried to

influence blacks against her, at one time stating that

“there’s just something wrong . . . something wrong. I’ve

got to do something about her.” Perry. He also stated in

the presence of a black faculty member that he “hate(d)

white people’ because of the way they had treated his

father. Testimony of Ms. Martha Corley.

The Student Petition and

Administrative Responses

11. Mrs. Terrell became dissatisfied with plaintiff’s .

performance early in Dr. Lincoln’s tenure at SSC. This

dissatisfaction was registered with Dr. Hall on numerous

occasions. Defendant’s Exhibit 6. As department chair-

‘ Dr. Lincoln testified that Mrs. Terrell stated to her “on many

occasions” that, even though Dr. Anthony was white, she was really

“one of us’’ because her sister’s skin was “‘almost as dark as mine.”

Dr. Anthony is of Lebanese ancestry.

* Dr. Lincoln also testified that Mrs. Terrell told her of being

ostracized by local whites in her professional role. Mrs. Terrell hotly

disputed this statement, claiming that she had always had good rela-

tions with whites while at SSC and before as well.

8b

man, Mrs. Terrell also made several official requests that

plaintiff not be rehired. Subsequent to her retirement in

June, 1976, Mrs. Terrell continued efforts to have the

plaintiff terminated. Mrs. Terrell was still present on

campus regularly and, by her own testimony, at the very

least in direct contact with students who developed and

circulated a petition for Dr. Lincoln’s immediate removal

from the SSC faculty. Mrs. Terrell testified that she pro-

vided “nothing in writing” to students. However, she

did indicate that she “gave support for the signing” and

otherwise helped in any way she could. In fact, it is

probable that she personally drafted most or all of the

petition. Lincoln, Corley. Many witnesses indicated that

the language in the petition, particularly academic

jargon such as “competency based instruction,” was

almost certainly not student diction.* Moreover, the

petition contained information which was known only to

Mrs. Terrell and, according to her, not communicated to

anyone except Dr. Hall, who stated that he had told no

one. Also interesting is the fact that the first itemized

complaint discusses in detail the alleged creation of

“anarchy” by Dr. Lincoln, using much the same tone and

diction as Mrs. Terrell employed when testifying on the

same subject. Such a coincidence of phrase is difficult to

accept, particularly since students intent on vocal demon-

strations, militancy, boycotts and the like would hardly

be expected to take offense at an alleged crime of creating

“unrest.’’ On the other hand, Mrs. Terrell’s strong re-

* Dr. Luetta Milledge, an English professor disputed this analysis.

Dr. Milledge pointed to ‘awkwardness’ at several points in the

petition which she found much more typical of student than faculty

writing skills. While not disputing her characterization of the style

of the petition, the Court notes that many instances of “awkward”

diction, or worse, can be found in testimony from faculty members

and in written exhibits, including one prepared by Dr. Mill her-

self. Defendant’s Exhibit 13. _~

9b

action to the incident is well-established by her own

testimony. Finally, it should be noted that there is con-

siderable similarity between complaints contained in the

petition concerning plaintiff’s alleged deficiencies as an

instructor and those previously registered directly by

Mrs. Terrell to Dr. Hall. See Defendant’s Exhibit 6.

Petition

13. The direct and clear appeal of the petition is racial.

The document announces at the top of the first page,

“As a group, we feel that she (Dr. Lincoln) is not

interested in teaching us and feels superior to black

students and black institutions. . . . This type of

attitude in insulting. Other racists have been re-

moved from Savannah Sate College. . . .

The petition then discusses with some specificity state-

ments made by Dr. Lincoln to Mrs. Terrell concerning

the poor quality of certain equipment at Savannah State,

turning what may well have been an innocent and even

accurate comment by Dr. Lincoln into an alleged racial

slur.‘ It is only after this comment and Dr. Lincoln’s

questioning of Mrs. Terrell’s advice to students are dis-

cussed that the petition takes up the plaintiff's alleged

deficiencies as a teacher.

Moreover, it appears that student interest in the peti-

tion was by no means based solely on educational con-

siderations. Several students who had signed the petition

testified at trial that she was an adequate instructor, at

least no worse and generally not greatly different from

* Among Dr. Lincoln’s undisputed contributions to SSC was the

development of proposals for a substantial grant to improve facilities

at the college. This grant was derived from a program to assist

“underprivileged” institutions.

10b

others at the college. Testimony of Deborah Allen, James

Etta Bush, and Gloria Hall.

This testimony suggested that the petition was signed

in part at least because of peer pressure more than any

real complaint with Dr. Lincoln’s performance. See also,

FF 16. There can be little doubt that peer pressure was,

in large measure, racial pressure.

Dr. Clyde W. Hall

14. Dr. Hall testified that Mrs. Terrell began com-

plaining to him concerning deficiencies in Dr. Lincoln’s

performance very early in plaintiff’s tenure at SSC. How-

ever, Dr. Hall was “not convinced that she was not

capable,’’ and accordingly Dr. Hall approved a second

contract for the 1975-76 academic year.

Further problems developed between Mrs. Terrell and

Dr. Lincoln during this second year on the faculty. In

late October, 1975, Mrs. Terrell wrote a letter to Dr. Hall

detailing numerous alleged inadequacies in plaintiff’s

performance and suggesting at least indirectly that Dr.

Lincoln should be replaced. Defendant’s Exhibit 3. Dr.

Hall responded by holding a conference with both Dr.

Lincoln and Mrs. Terrell. Dr. Lincoln indicated at this

conference that she ‘‘wasn’t interested in teaching lab

work”’ and was not capable of doing such work. Nonethe-

less, she did say she would try to improve her perform-

ance. Hall. The meeting apparently ended with this

assurance.

Mrs. Terrell wrote another letter in January, 1976 to

Dr. Hall, recommending directly that the plaintiff not be

offered another contract. Furthermore, Dr. Hall testified

that “students were constantly talking about the short-

comings of Dr. Lincoln’s teaching.” He also indicated

1lb

that he had “great confidence’ in Mrs. Terrell’s judg-

ment. Nonetheless, Dr. Hall remained “cautious,” hoping

that the situation could be “homogenized,” even after

another letter in May, 1976, from Mrs. Terrell recom-

mending dismissal. Defendant’s Exhibit 5.

Dr. Hall offered Dr. Lincoln a contract for the 1976-77

school year, but he also wrote her a letter indicating that

“we have been badly disappointed with your performance

as an effective teacher... . I do expect a tremendous im-

provement in your professional performance. If such does

not prevail, I feel I cannot reeommend you for reappoint-

ment.’’ Defendant’s Exhibit 6. A conference was held

during the summer of 1976 to discuss this letter and again,

according to Dr. Hall, the plaintiff stated that she “was

going to try to improve.”

Dr. Hall testified that Dr. Lincoln’s performance did

not in fact change thereafter. Student complaints con-

tinued, and, in October, 1976 he visited several classes

and otherwise investigate to determine how well Dr.

Lincoln was performing. Dr. Hall testified that he per-

sonally noted numerous serious deficiencies in her teach-

ing methods and particularly that he found plaintiff

generally ignoring required laboratory instruction. None-

theless, Dr. Hall apparently took no action to meet these

problems and in fact, no action at all until after the stu-

dent petition demanding plaintiff’s immediate dismissal

was tendered February 11, 1977.

Dr. Hall’s attitude changed significantly with the

appearance of organized student protest against Dr.

Lincoln. By a letter of February 18, 1977, plaintiff was

suspended from her teaching duties, because the problem

had “almost reached the state of anarchy”’ or “uprising.’’

Nonetheless, Dr. Hall stated that he was still “trying to

12b

tranquilize the situation.’’ A meeting was held February

24, with Dr. Lincoln, Dr. Anthony and Dean Byers to

discuss the petition. However, Dr. Hall testified than only

specific student charges relating to the 1976-77 academic

year were reviewed. Racial charges were not discussed

since he considered them entirely inappropriate as a

basis for action. Dean Byers also held a meeting between

plaintiff and students in a futile attempt to “restore

confidence.”’

Dr. Anthony, by a letter of March 10, 1977, recom-

mended “immediate’’ termination of the plaintiff based

on “incompetency and lack of accountability, together

with her failure to reestablish rapport with the students.”’

Defendant’s Exhibit 11. But, Dr. Hall still felt that the

situation could be resolved by “improvement or resigna-

tion.”’ He, therefore, asked Dr. Anthony to withdraw her

request. When she refused, her letter became the “official

basis” for steps which led to plaintiff's leaving Savannah

State.

Dr. Hall took no action to determine the true origins of

the student petition even after discovering that it had

been typed in his office on college stationery, despite the

fact that this petition was at least a major reason for

plaintiff’s dismissal and the focal point for campus unrest

which he obviously considered extremely serious. Dr. Hall

thus had good reason to know that student attacks on

plaintiff's competence were at least in part a pretext

masking other parties, yet he chose to accept them at face

value and to use them as the basis for recommending

plaintiff’s termination.

In sum, Dr. Hall’s action suggest that he was not in

fact convinced that Mrs. Terrell’s criticisms were justi-

fied, especially during the 1974-75 period. Thereafter, Dr.

13b

Hall may have found them more convincing. But, even in

the fall of 1976, after he had personally observed various

alleged deficiencies, Dr. Hall was not inclined to act. It

was only after he found that students had been mobilized

and that plaintiff’s faculty opponents could not be molli-

fied that he began moving for plaintiff’s dismissal. Even

then, he felt that Dr. Lincoln’s performance was not

beyond redemption or at least that immediate, involun-

tary termination was uncalled for.

Committees

15. After mediation attempts had failed, a faculty

committee was appointed to review student charges. It

was apparently the first such investigation ever conducted

at SSC. Byers. This “friendly committee” consisted of

Ms. Wagner as departmental representative and two

other faculty members from unrelated disciplines, Dr.

Luetta Milledge and Mrs. Gaye Hewitt. The committee

was charged with making an “investigation and recom-

mendation” to President Jackson concerning dismissal.

This committee held one meeting at which testimony

from nine students and Dr. Anthony was received. By a

letter of March 21, 1977, the committee indicated that

the charges were generally sound and that Dr. Lincoln

should be suspended for the remainder of the year and

not renewed, or, alternatively, that she be dismissed at

once. Defendant’s Exhibit 13. Dr. Lincoln was informed

by President Jackson shortly thereafter that she was being

terminated for cause. Defendant’s Exhibit 14. This de-

cision was made despite the fact that President Jackson

did not consider the case against plaintiff convincing.

Jackson.

14b

Dr. Prince Jackson

16. Subsequently, Dr. Lincoln appealed her termina-

tion and a second faculty committee was appointed to

review the matter. This committee also interviewed stu-

dents and faculty. The committee found that Dr. Lincoln

was in fact incompetent, though there was a minority

report questioning the sufficiency of the evidence. The

committee was also highly critical of unnamed faculty

members who it found to have exploited and manipulated

student unrest to force action against Dr. Lincoln. In

particular, the committee found strong evidence of im-

proper faculty involvement in the petition’s drafting and

circulation. There was special doubt cast on the petition

by its “highly improbable student language,”’ Testimony

of committeeman Dr. Kenneth Taylor.

This committee recommended that Dr. Lincoln be

given temporary employment so as to allow an oppor-

tunity for her to resign. In considering this recommenda-

tion, President Jackson conducted his own investigation

of circumstances surrounding student unrest. Dr. Jackson

testified that students told him of being called from class

to a teacher’s office one-by-one to sign. One student stated

that a black teacher, not in home economics, withheld a

grade until she signed. Another stated she had signed out

of fear that she would not be graduated otherwise. Presi-

dent Jackson also concluded that it was ‘‘obvious’ that

the petition was not written by the alleged student leader.

President Jackson thus determined that Dr. Lincoln

had “‘gotten a bad deal.’’ He regarded the case against her

as “‘weak.”’ He did not believe that she was incompetent.

In fact, he considered her ‘‘as competent as anybody we

had out there”? and, moreover, was “under the impres-

sion” that Dr. Lincoln had displayed concern for students

15b

which was “beyond the ordinary call.”’ President Jackson

therefore decided to offer Dr. Lincoln another employ-

ment contract despite Dr. Hall’s letter stating that “the

integrity of this institution would be threatened if she

were reinstated.’’ Defendant’s Exhibit 18.

17. Dr. Lincoln was in fact retained at SSC for the

1977-78 school year at a salary of $17,650. However, her

job assignment was changed drastically. She was com-

pletely removed from the Home Economics Department

and all teaching responsibilities. Instead, she was assigned

to Dean Byers’ office and given the primary task of up-

dating the faculty handbook. Dr. Lincoln was also in-

volved in solicitation of grants for the college. President

Jackson indicated that he would review her status at the

end of the 1977-78 school year. However, it is clear that

there was no thought of returning Dr. Lincoln to her

teaching duties or continuing her in any normal faculty

capacity. Dr. Lincoln was to be retained only if she

generated sufficient outside funding to pay her salary.

Defendant’s Exhibit 21.

Dr. Hall had assumed the position of Acting President

when the time for review of plaintiff’s status arrived. In

accord with Dr. Jackson’s plan, Dr. Hall requested that

plaintiff submit to him an accounting of her work during

the 1977-78 year. Dr. Lincoln did not comply with this re-

quest. She felt that, in view of Dr. Hall’s strong opposition

to her retention, no purpose would have been served by

5 In his testimony, Dr. Hall described the position contemplated

as one where SSC would “give her that money just to sit around and

mot do anything.’’ Dr. Jackson described his decision offering em-

ployment as ‘“‘in accordance with the recommendation of the appeals

committee.’’ Defendant’s Exhibit 19. That committee suggested that

“in order to afford the defendant the opportunity to resign . . . she be

given temporary employment other than in a classroom situation

provided funds are available.”’

16b

such a review. Dr. Hall indicated that since no informa-

tion was received from the plaintiff, he made no offer to

her.* However, it is most unlikely that plaintiff would

have been retained in any event, since no suggestion was

made that plaintiff had in fact generated sufficient fund-

ing to pay her salary as Dr. Jackson required. Moreover,

Dr. Hall’s belief that she should have been removed was

already well-documented. Defendant's Exhibit 18. Dr.

Hall was also extremely concerned with the possibility of

siomg ulsraptive svuulant entiian doa female Gare

sideration of Dr Lincoln

Conclusions of Law

1. This Court has jurisdiction pursuant to Title VII

of the Civil R ights Act of 1964, 42 U.s.C. § 2000e et Seq).

* Dr. Hall's specie testimony Was as | “Since [ did not

receive a reply from her concerning what. she had done, and T had

made the request im order to try to earry out the mandate of Dr

Jackson, I did not offer her a contract for the next vear.’

Pe ~¥ 7 }

r (h} MT SreTnCaAN conmsiderntpons wise pent 4 J AEAMIAT ANV reniistic

possibility of plamtill beme retaieadon the SSC tacults Both custom

and enrollment fi Pires die tated a home economies faculty of not

mere than four members, even though Dr. Lincoln mav have been

technically inchaded as a fifth matrector during the 1LU77-78 a ademic

year Jackson Whi ti Als { orl vy returned to the chk peertment 1076,

she in elfect oceupicd the spot vacated by Mrs. Terrell’s retirement

Had ne such place been available, it would presumably have been

Necessary to dismiss \ls Wsener whe had neon tip PPO tewl tome

porariiv m 1973 when Ms. Corley went on leave of absence. However,

this arrangement co - net continue indetinitely because a new de-

pariment head was being sought for Mrs. ‘Terrell’s lot. Dr. Hall

personally favored ther Dr. Harper, a long-time friend, and a

black which he considered “an mportint consideration.” Jackson

Thus, Dr. Hall would have faced a ch ice between terminating

Ms Wagner who was black or ral Line 1 who was white and cer-

tainly very unpopular, or simply not hiris ng Dr. Harper. Dr. Hall

obviously determined to retain Dr. Harper and not the plaintiff

Apparently, Dr. Harper was in fact assigned to the plaintiff's position

ackson.

17b

The parties stipulated at trial that all jurisdictional pre-

requisites had been satisfied.

2. The present case is an equitable proceeding in which

the right of trial by jury does not apply. Bham v. Gulf Ol

(orporation, 597 F.2d 936, 938 (Sth Cir. 1979). Therefore,

the jury verdict on the §1981 claim was purely advisory.

The Court makes its own independent determination of

issues involved in this aspect of the case.

3. Ina Title VII case, the plaintiff bears the ultimate

burden of proot’ witt) respect vo ter cium onracka'alsernny

ination. Jepsen v. Florida Board of Regents, 610 F.2d

1379, 1382 (Sth Cir. 1980). With respect toa claim ot dis-

37a? |

criminatory non-renewal, plaintiff establishes a prim:

facie case of discrimination by showing that: (1) she be-

longs to a group protected by Title VIL: (2) she sought

and was qualified for a job from which she was suspended

and not rehired; (3) she was not renewed despite het

qualifications, and (4) after her rejection, the position re-

maimed Open nnd the en plover sought or retauned 2) rl'-

eants having plaintiffs qualifications and not in) plon-

tiff's protected class. MeDonnell Douglas Corp. vo Green

411 U.S. 792. 802 (1973). Burdine vr. Texas Department of

Community Affairs, COS F.2d 563 (Sth Cir, 1979)

4. In the present CUSC, before analysis ean be made of

these factors, the Court must first determine whether and

by whom the plaintiff was in fact denied renewal at SSC

Dr. Hall of course had the final opportunity to offer plain-

tiff a contract for the 1977-78 year. However, his testi-

mony indicated that, because plaintiff failed to submit

information request by him under guidelines established

by Dr. Jackson, he decided not to continue Dr. Lincoln's

employment. FF 17. Thus it appears that Dr. Lincoln did

not formally apply for continued employment and that

18b

Dr. Hall did not formally reject any completed applica-

tion by the plaintiff.

Therefore, the Court must consider whether plaintiff

waived any right to relief by not seeking renewal, or, al-

ternatively, whether plaintiff's actions can be placed

within the doctrine of constructive discharge, or, in this

case, constructive nonrenewal. Young v. Southwestern

Savings and Loan Association, 509 F.2d 140 (5th Cir.

1975). Young states the rule as follows:

(If the employer deliberately makes an employee's

working conditions so intolerable that the employee

is forced into an involuntary resignation, then the

emplover has encompassed a constructive discharge

a is liable for any illegal conduct involved therein.

509 F.2d, at 144. The employer must “deliberately” in-

tend the conditions complained of, but it is not necessary

that it specifically intend to force the emplovee to leave

the position. Bourque r. Porrell Klectric Manufacturing Ce.,

617 F.2d 61 (Sth Cir, 1980).

Several factors support the conclusion that changes

made by Dr. Jackson were such that Dr. Lincoln would

reasonably seek no further employment at SSC. FF 17.

Specifically, it appears that the hope if not intent of Dr.

Jackson in removing plaintiff from a teaching capacity

was that she would “resign” ie. not seek continued em-

ployment. Certainly this was the intent of the faculty

recommendation he professed to be following. Moreover,

the 1977-78 contract carried with it the proviso that no

further school funding could be expected. Plaintiff would

in effect be working only “‘on commission,” in clear con-

trast to the “top salary’ she had been receiving. Plain-

tiff’s work assignment apparently fell short of Dr Hall's

description that she would “just sit around, but it in-

19b

volved no teaching and apparently little work much re-

lated to her professional training. She was mostly occupied

with an administrative chore of dubious significance and

short duration. Finally, plaintiff was put in the position

of having her performance evaluated by Dr. Hall, who

was already on record as believing that the “integrity of

the institution’’ was impuned by her continued employ-

ment,

In view of all these circumstances the Court must con-

clude that plaintiff's failure to complete her renewal appli-

cation resulted from her reasonable belief that she had in

effect been rejected already. Continued employment had

become both unlikely and unattractive. Moreover, the

Court concludes, that even had Dr. Lincoln complied

with Dr. Hall's request, she would not have been con-

tinued at SSC. Dr. Jackson indicated that additional

funding for plaintiff's employment would come, if at all,

from outside sources. There is no reason to believe that

plaintiff had generated such funding in the requisite

amounts,

Therefore, whether one views plaintiff

based on her failure to apply or, alternatively, in light of

her inability to meet Dr. Jackson's criteria for continued

employment, it is clear that plaintiff was not renewed as a

direct consequence of steps taken by Dr. Jackson. Hence,

the Court must base its determinations on Dr. Jackson's

conduct and the reasons behind his decision. Furthermore,

the defendant Board of Regents are clearly accountable

for these actions under the doetrine of respondent superior,

since Dr. Jackson was then proceeding under broad au-

board to Slipervise opera-

as rejected

therity granted to him bw the |

fons at SSO) Calrot Teras Educational Foundation.

578 F.2d 05, 97 (Sth Cir. 1978), FF 3ia). FF I

20b

5. Plaintiff has established a prima facie case of racial

discrimination. Plaintiff was in a racial minority at SSC.

Whites were outnumbered by blacks approximately two

to one in both the faculty and the student body. Second,

the Court determines that plaintiff did seek employment

at SSC. She did so aetively and directly prior to 1977-78.

Her failure to do so for the succeeding Vear Was the direct

result of defendant's deliberate course of eonduet.

Fur-

thermore, it Is apparent that, in Dr. Jackson's view at

least. plaintiff Wilh qualified for the Postion She Wis i

Competent ist Pieris who ere yy i ati C*s011T asf

unfounded faculty eriticeisn | mani ed student

pire Third, it IVea-aS co

| onal ale (POM IIS Trey i re'pew

of the plaintiff, even though her fo termination trom

the f yerme later. CL 4. ]

it’s tenching JIS] 7 i i TP perrs ee ee 4 black

Waordical This aati it | qi rere] ther one

Vii Ty 1] Ppt ‘) \] \\ ‘ PeeTMBCE MEN

ty ar rele} erepore ‘) {

piisils Pig Pics serine | «= r

renewal. Defendai — suggested \ls

‘ ‘) m | i (ts H iF ‘) ith

ay ‘ P ‘| got thre

like ar ever, if} if 2) 1); j KSC} S SPM Tit na dire

'

statements that | stiggats | ges and found

: 4°? ade eit iii s ii ! - j POUST ! ot) bye

q*i¢ jul rar i in i et : I these On -

Pees i ] | irl (“i tao Tipe cle SlONS

euling to plaintiff leaving SSC. O her hand per

lj it? é ‘ eta] ie’ renson is

‘ if ‘ ct m alleged aca-

hee? q*? i =, Ty lacksol

ios an i" With te ching

21b

inadequacies specifically ruled out as the basis for Dr.

Lincoln's non-renewal, there would seem to be no reasons

left but the racial attacks Dr. Hall had himself rejected as

improper. To be sure, these charges did not directly de-

mand that Dr. Lincoln be removed because she was white.

But. there ean be no doubt that they could not have been

brought at all much less pressed with the “militaney”

found here but for the fact that plamtiff is white. Plain-

tiff’s ruce was the significant factor in the initial impres-

sion of her which developed in the Home Economies

Department. [t was the basis for efforts to develop faculty

sentiment mgnst her thereafter, and finally ithe focus for

student unrest which was created thereafter. OF course,

the Court does not hold that plantiff “aoe perfect teacher

or a perfect colleague. The Court does find thai but for

her race, plamtiff would not have been denied renewal as

she was. This is all that is required under Title VII.

VWeDonaid 1 Sante he Trail Transpo lation Co ,o 27 U Ne.

273, yb 4 N10 (1075). Seo alse Garciw v. Gloor Ho I 2d

156. 160 (oth Cir. TOSO

Summary

This case presents to the Court evidence which is often

contradictory, confused, and at points quite sketchy. The

Court is unwilling to conclude from this evidence that any

of the parties were necessarily overtly or intentionally

racist ID then treatment of Dr. Lincoln. Nonetheless,

racial amimus is apparent in several respects. Dr. Lincoln’s

conflicts with other faculty members became far more

severe and damaging because she was viewed as an “‘out-

sider” and more important as a white outsider. Resent-

ment against her was apparently much magnified because

of this racial difference. Thus her failings however real

were dealt with much more severely than might have been

22b

true of a black professor. Secondly, Dr. Lincoln was sub-

jected to student pressure principally through the petition

because she was white. Racial differences made it easy for

faculty members to manipulate students against Dr.

Lineoln in ways that could not have been done with a

black professor and for offenses that likely would have

aroused far less concern without the addition of racial

differences. Iinallv,, administrators’ handling of Dr.

Lincoln was tainted by racial considerations. Both Dr.

Hall and Dr. Jackson admitted that student pressure was

a major force in decisions which led to her termination.

This pressure was, as [ have indicated, racial in significant

part, vet it led Dr. Jackson to dismiss plaintiff and then

reinstate her to a most insecure post when he did not think

her incompetent or indifferent to students. It also led Dr.

Hall to work for plaintiff's termination when direct

knowledge of her alleged academic deficiencies had not

eaused him to act, in part, to avoid “anarchy” and in

part, to avoid having to terminate a black teacher and

retain a white.

The Court thus concludes that Dr. Lincoln was subject

to harassment, provisional termination, and finally non-

renewal, not because she was incompetent but because

she was white and being white had made her unpopular

in ways and to degress completely disproportionate to any

actual conduct by her.

Remedies

The above findings authorize and the plaintiff here

seeks relief in the form of backpay, reinstatement and at-

torney’s fees. Plaintiff testified that she had made serious,

though unsuccessful efforts to find employment during

the pendancy of this case. FF 5. No evidence was pre-

sented at trial to suggest that due diligence was not

23b

exercised. Moreover, the Court is certainly aware of

difficulties created by plaintiff's age and the circum-

stances surrounding her leaving SSC. The Court will

therefore permit recovery of two years backpay as pro-

vided for under Title VII. See 42 U.S.C. § 2000e-5(g).

The Court will also permit recovery of reasonable at-

torney’s fees. Thirty days will be allowed from the date

of this order for the parties to reach agreement on the

proper amount of these fees, or, alternatively, for counsel

to submit appropriate information to the Court for eal-

culation of an award.

The Court is, however, not of the opinion that rein-

statement can properly be ordered under the peculiar

facts of this case. While Title VII does provide that rein-

statement “may” be required, it is also clear that, as with

any equitable remedy, it is to be controlled by the sound

discretion of the Court. This, of course, includes the pre-

rogative to decline such relief, though

only for reason which, if applied generally, would not

frustrate the central statutory purpose of eradicating

discrimination throughout the economy and making

persons Whole from injuries suffered through past

discrimination,

Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975).

See also L.E.0. v. Kallir, Philips, Ross, Inc., 420 F Supp.

919, 926, (S.D. N.Y. 1976); Vant Hul v. City of Dell

Rapids, 462 F Supp. 828, 8384 (D.8.D. 1978).

In the present case, several factors point strongly

against reinstatement. First, this case has clearly pro-

duced unusual friction, beyond that normally incident to

litigation, between parties. The small size of the Home

Economics Department and the apparent necessity that

its members work together closely must mean that this

friction would have a serious impact on the quality of per-

24b

formance of important academic funetions. Second, it

appears from the evidence adduced at trial that plaintiff’s

position was by no means secure at the time the incidents

complained of developed. While the Court does find that

the actual motivation for plaintiff’s termination was racial

and hence impermissible, it is clearly possible that other

legitimate problems might have led to plaintiff's non-

renewal at some later time. Whether plaintiff would have

remained at SSC indefinitely is therefore quite specu-

lative. Most importantly, the evidence introduced at trial

including plaintiff's own testimony, tended to show that

there were significant gaps in her competency as an mn-

structor. FF 7. Reinstatement would presumably mean

that plaintiff would again be forced to teach in areas

where she lacked the requisite skills and experience.

In view of all these facts, the Court does not feel that

reinstatement is appropriate in this case. Therefore, the

defendant will be required to purge its records of all

references this extren ely unfortunate incident, but

+ } ; . H

the Court will not order additional relief bevond the

} a Pa, - ] ; 7 si

DACKDAV ond attorney s fees Mitined above

Phis 17th dav of December. 1980

s/ B. Avant EpEXFIELp

Ja MGR. UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF GEORGLA

le

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA

SAVANNAH DIVISION

H. ANITA LINCOLN.

Plaintiff

\s.

BOARD OF REGENTS OF THE CY 470-2400

UNIVERSITY SYSTEM OF ule

GEORGIA, and

CLYDE W. HALL. and

EVANEL R. TERRELL.

Defi ndants

JUDGMENT

The above case was heard on November 3-5, 1980. De-

fendants CLYDE W. HALL and EVANEL R. TER-

RELL received a jury verdict in their favor as to the

42 Eas LOS] Claim of Plamntitf Onl Noven ber 5, 10S]

The Court entered an ¢ rderon December 17, 1981 award-

ing the Plaintiff Tithe VIE rehet uvainst the Defemaunt

BOARD OF REGENTS OF THE UNIVERSITY

SISTEM OF GEORGIA. Plaintiff was awarded the

amount of THIRTY FIVE THOUSAN] THREE

HUNDRED ($35,300.00) DOLLARS as back pay. De

fendant BOARD OF REGENTS OF THE UNIVER

SITY SYSTEM OF GEORGIA was further ordered to

purge its records regarding the careumastanees surrourd

ing the non-renewal of Plamntiff as an en plover. Pursuant

to an Order dated the 23rd of February. 1981. Plaintiff

was awarded the sum of SIX THOUSANI) THREE

HUNDRED FORTY-NINE AND 75 100 (86.349.75

DOLLARS in attorney fees and costs of litigation It is

Qe

ad

hereby Ordered and Adjudged that the Court’s Orders

of December 17th, 1980, February 23rd, 1981, and the

jury’s verdict in favor of CLYDE W. HALL and EVA-

NEL R. TERRELL, be made the Judgment of this Court

and that Judgment be entered against the Defendant

BOARD OF REGENTS OF THE UNIVERSITY

SYSTEM OF GEORGIA in the amount of FORTY-

ONE THOUSAND SIX HUNDRED FORTY-NINE

AND 75/100 ($41,649.75) DOLLARS.

SO ORDERED this 9th day of March, 198]

s/ B. Avant EDENFIELD

JUDGE, UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF

GEORGIA, SAVANNAH DIVISION

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 81-7297

D.C. Docket No.CV479-340

H. ANFTA LINCOLN.

Plaintiff-A ppelle

('ross-A ppellant,

Versus

BOARD OF REGENTS OF THE UNIVERSITY

SYSTEM OF GEORGIA. AND ¢ oo EW. HALL

AND EVANUEL R RRELI

be dants-A pp

r ~Ap plles

Appeals from the United States District Court for the

Southern District of Georgia

Before RONEY and HATCHETT.. Circui hides

and WISDOM*. Senio) reuit Judy

JUDGMENT

—

Chis ex iIs@ CHIE on to be heard o7 ne Transcripe o rie

. + ‘ ; 4 . + | H 1)

PATO AL oT POW] iiit i hited ASIaTes i 7i> \

: sae] Le 2 " *) ‘ ; iy’

POutLhern District of Georgian MME Wies MPUecdb DY COUDSECI

ON CONSIDERATION WHEREOF, it is now here

ordered sun ad judy d by this Court at thie judgment of

the said Distriet Court in this “be and the

hereby AFFIRMED

It ws further ordere

pop ver Leg 1) 1] :

Gists~ ‘ le ‘

ret if m

HA HETT,

Ho \

(iw i ‘

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 81-7297

H. ANITA LINCOLN,

Plaintiff-A ppellee,

Cross-A ppellant,

Versus

BOARD OF REGENTS OF THE UNIVERSITY

SYSTEM OF GEORGIA, and CLYDE W. HALI.

and EVANEL R. TERRELL.

Defendants- Appellants,

f "PORK, | pepe lh ts,

Appeal from the United States District Court for the

Southern District of Georgia

ON PETITION FOR REHEARING AND

SUGGESTION FOR REHEARING EN BANC

(Opinion February 10. 11 Cir., 1988, F.2d

(April 25, 1983)

Before RONEY, HATCHETT and WISDOM"

PER CURIAM:

(v¥) The Petition for Rehearing is DENIED and no

member of this panel nor Judge in regular active service

on the Court having requested that the Court: be polled

on rehearing en bane (Rule 35, Federal Rules of Appellate

Procedure: Eleventh Circuit Rule 26), the Suggestion for

Rehearing En Bane is DENIED.

ENTERED FOR THE COURT:

/3/ Pau. H. Roney oo

United States Circuit Judge

*Honorable John Minor Wisdom, U.S, Cireuit Judge for the Fifth

Circuit, sitting by designation.

le