Opposition Brief — Ballard v. Albright

Supreme Court, U.S.

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QY JUN 17 1996

No. 95-1768 | es

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In The

Supreme Court of the United States

October Term, 1995

+

JOE BALLARD,

Petitioner,

-against-

AIRPORT COMMISSION; CITY OF NEWPORT,

ARKANSAS; WAYNE BEARD, JR.; WILEY ALLBRIGHT,

JR.; TERRY DILLON; RALPH FORD SINK;

KENNETH THAXTON, JR.; BURTON FORD,

Respondents.

+

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

+

RESPONDENTS’ BRIEF IN OPPOSITION

¢

Mark R. Hayes

Ark. Bar No. 87078

Post Office Box 38

North Little Rock, AR 72115

Phone No.: (501) 374-3484

Davip C. SCHOEN

Ark. Bar No. 87153

Post Office Box 3483

Fayetteville, AR 72702

Phone No.: (501) 444-6200

Attorneys for Respondents

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED FOR REVIEW

WHETHER THE EIGHTH CIRCUIT’S HOLDING

THAT THE DISTRICT COURT’S FINDINGS OF FACT,

THAT THE RESPONDENT/EMPLOYER DID NOT DIS-

CRIMINATE ON THE BASIS OF AGE IN TERMINATING

PETITIONER BALLARD WAS CLEARLY ERRONEOUS.

ii

PARTIES TO THE PROCEEDING

Joe Ballard, Petitioner.

Respondent Wayne Beard, Jr., was at all relevant

times herein the Mayor of the City of Newport.

Respondent Wiley Allbright, Jr., was at all relevant

times herein, Chairman of the Airport Commission for

the City of Newport.

Respondent Terry Dillon, was at all relevant times

herein a Commissioner for the Newport Airport Commis-

sion.

Respondent Ralph Ford Sink, was at all relevant

times herein a Commissioner for the Newport Airport

Commission.

Respondent Kenneth Thaxton, Jr., was at all relevant

times herein a Commissioner for the Newport Airport

Commission.

Respondent Burton Ford, was at all relevant times

herein a Commissioner for the Newport Airport Commis-

sion.

Respondent City of Newport, Arkansas/Newport,

Arkansas Airport Commission, is the governing body

that employed Petitioner Ballard.

There are no other parties to this action.

ee eg

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ............ i

PARTIES TO THE PROCEEDING .................. il

TABLE OF CONTENTS.................00.0000055. iii

TABLE OF AUTHORITIES......................... iv

STATEMENT OF THE CASE....................... 1

SUMMARY OF THE ARGUMENT ................. 2

REASONS FOR DENYING THE WRIT............. 4

I. THE PETITION SHOULD BE DENIED

BECAUSE IT SEEKS ONLY TO REVIEW FAC-

TUAL FINDINGS AND A PROPERLY

STATED RULE OF LAW... cccccccccccess 4

Il. THE EIGHTH CIRCUIT’S HOLDING THAT

THE DISTRICT COURT'S FINDING OF FACT

THAT THE DEFENDANTS DID NOT DIS-

CRIMINATE AGAINST BALLARD BECAUSE

OF HIS AGE WAS NOT CLEARLY ERRO-

A. Standard of Review .................... 5

B. The Evidence at Trial Overwhelmingly

Established a Legitimate, Nondiscrimina-

tory Motive for Terminating Ballard..... 6

Be St IE dn tcececcesccceseves 6

Se CE MEE venect dcccueccccces 2

3. Legitimate Reasons for Termination.. 10

Ill. NEITHER THE TRIAL COURT NOR THE

COURT OF APPEALS ERRED IN DECLIN-

ING TO APPLY A MIXED-MOTIVE ANAL-

WEE Webb ercceccnsccoccrssaddeecceseséeveces 14

iv

TABLE OF AUTHORITIES

Cases

CORED cc cccvccescévsdsdenecddccsdcccetedacadess

Gaworski v. ITT Commercial Finance Corp., 17 F.3d

1104 (8th Cir.), cert. denied, 115 S. Ct. 355 (1994)

Halsell v. Kimberly-Clark Corp., 683 F.2d 285 (8th

Cir. 1982), cert. denied, 459 U.S. 1205 (1983) ...

Hillman v. Arkansas Highway & Transp. Dept., 39

kB ff fe 8. rrr

Hutson v. McDonnell Douglas Corp., 63 F.3d 771

GE GAR. Te oc ccccccccceccccccseseccccoans:

Krenik v. County of Le Sueur, 47 F.3d 953 (8th Cir.

GPU kc vn cnnsecssevdvecéviencdescdatdneadiane

Moses v. Falstaff Brewing Corp., 550 F.2d 1113 (8th

Gah, TE c nb cuscncveéredsavnactweieswedeowiie:

Mullins v. Uniroyal, Inc., 805 F.2d 307 (8th Cir.

FI sc ccccccsevocvcstdiviebevcscesasdeedevess<

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). .

Radabaugh v. Zip Feed Mills, Inc., 997 F.2d 444 (8th

Gel See nedcbduteachaveseosundaeeaansennbols

Richmond v. Board of Regents of University of Minne-

sota, 957 F.2d 595 (8th Cir. 1992)..............

St. Mary's Honor Center v. Hicks, 113 S. Ct. 2742

GRIGG c ovescccicccessndetisosdescececccancesss

Wilson v. US West Communications, 58 F.3d 1337

Gee GR Fee dcccccccscecesseccccceccacvcse

CONSTITUTIONS, STATUTES AND RULES

BP Ces fe Ge GE OD noc csedccccocéccases

Ss es acc veennendsetbusabeaceievans

BU GD. Te Tbe scccccsceccccccccnacccsocstsicwes

TO THE HONORABLE UNITED STATES SUPREME

COURT:

Respondents respectfully submit this brief in support

of their request that this Court deny the Petitioner’s

Petition for Writ of Certiorari.

+

STATEMENT OF THE CASE

The Respondent City of Newport Airport Commis-

sion (hereinafter Defendant, Commission, or individual

Respondent surname) hired the Petitioner (hereinafter

Plaintiff or Ballard) in 1981 for the position of Airport

Manager. Findings of Fact, TR 158, J.A. 44.' His primary

duties were to sell fuel, give wind directions, landing

advice, maintain the grounds, collect hangar rent and

keep records of sales. Id. Ballard was discharged on

November 20, 1992. J.A. 21. He was seventy-two years of

age at the time. Id. Dorsey Block was hired to replace Mr.

Ballard. TR 47, S.A. 4.

The District Court found that the Plaintiff had estab-

lished a prima facie case as he was in the protected age

! The following abbreviations are used herein:

TR — Trial transcript

].A. - Joint Appendix

S.A. - Appellees’ supplemental appendix.

Petitioner failed to attach the Court's Findings of Fact and

thus, Respondents are forced to cite from the transcript filed

with the Court of Appeals.

group and was replaced by a younger man. TR 158-59,

J.A. 44-45. However, the District Court found that the

airport advanced legitimate, non-discriminatory reasons

for terminating Ballard. TR 159, J.A. 45. The District

Court cited evidence that the housekeeping at the airport

was not adequate; that the equipment was not being

properly maintained; that the grass was not being mowed

on time; that logs and documentation of the activities of

the airport were not kept as required; that the pilots’

lounge was not properly kept up and maintained; and

that the plaintiff's relations with the public were unsat-

isfactory. Id. Consequently, after a bench trial, the trial

court entered judgment for the Defendants. Plaintiff

appealed the District Court’s ruling on grounds that the

decision was clearly erroneous. The Court of Appeals for

the Eighth Circuit affirmed the District Court's findings,

specifically holding that the trial judge did not clearly err

in deciding the case. The Eighth Circuit also rejected

Plaintiff's “mixed motive” argument, finding that the

Plaintiff failed to meet his proof.

.

SUMMARY OF THE ARGUMENT

This case involves a challenge to the Eighth Circuit

Court of Appeals’ affirmance of the District Court's find-

ing that the Newport Airport Commission did not dis-

criminate against Joe Ballard when it terminated his

employment as the Airport Manager. Ballard attacks the

decision as “clearly erroneous.” However, Ballard is

unable to make the necessary showing that the decision

was unsupported by substantial evidence, based on an

erroneous interpretation of applicable law, or, in light of

the entire record, that this court should be left with a firm

and definite conviction that a mistake has been made.

Thus, Petitioner’s Writ runs afoul of Supreme Court Rule

10.

Although the trial court found that Ballard had made

a prima facie case, the court also correctly found that the

Commission articulated a legitimate non-discriminatory

motive for termination. Ballard attempted to prove that

dissatisfaction with his “image” was the reason behind

his termination, and that by “image”, the Commission

was referring to his age. However, there was literally no

evidence that the term “image” referred to Ballard’s age.

Rather, the Commissioners used that term to refer to

Ballard’s failure to properly maintain the Airport termi-

nal and grounds; and to his rudeness towards members

of the public who used the airport. The only “evidence”

that Ballard was able to muster was his own testimony

speculating that he “figured” that the Commission

wanted a younger person for the job

The true reasons, as noted by the District Court, for

Ballard’s termination was that he failed to maintain the

terminal, airport, and equipment in a satisfactory condi-

tion; he was rude to users of the airport; and repeatedly

failed to follow directions from the Commission. The

evidence showed, among other things, that the Airport

was dirty and infested with mice. The runways were not

kept clean of rocks. The pilot’s lounge was kept locked in

direct contravention of the Commission’s request to keep

it open. Ballard failed to keep logs as required by the

Commission, took checks from an individual whose

checks often did not clear after being requested not to do

so, and failed to follow bookkeeping procedures

requested by the Commission and its accountant.

Ballard does not actually challenge any of the forego-

ing evidence except as to say that it is insufficient to

support judgment for the Defendants, except to note that

the judgment was clearly erroneous. Additionally, he

takes issue with the District Court’s supposed failure to

apply a “mixed-motive” analysis to his termination, but

cites no evidence that would support a reversal by the

Court of Appeals on the issue of mixed motive. The

District Court did not find a mixed motive, and the

record does not reveal that any discriminatory animus

entered into the decision to terminate Ballard. To the

contrary, the undisputed testimony of the Commission

members who testified was that Ballard’s age was not

discussed in the decision to terminate him and played no

part in the decision.

REASONS FOR DENYING THE WRIT

I. THE PETITION SHOULD BE DENIED BECAUSE IT

SEEKS ONLY TO REVIEW FACTUAL FINDINGS

AND A PROPERLY STATED RULE OF LAW.

Rule 10 of the Supreme Court Rules states in relevant

part: “A petition for writ of certiorari will be granted only

for compelling reasons.” Sup. Ct. R. 10. The Rule goes on

to say that the granting of a request for certiorari is

within this Court’s discretion and proceeds to outline

various factors that this Court considers in making its

decision. Id. Those factors include, but are not limited to,

whether the circuits are in conflict on an “important

matter,” departure from the “accepted and usual course

of judicial proceedings,” etc. Sup. Ct. R. 10(a). None of

the factors outlined therein are present here. Petitioner’s

request is nothing more than an attack on the factual

findings of the District Court, and the application of the

clearly erroneous standard by the Eighth Circuit Court of

Appeals, both of which are generally prohibited by Rule

10: “A Petition for a Writ of Certiorari is rarely granted

when the asserted error consists of erroneous factual

findings or the misapplication of the properly stated rule

of law.” Sup. Ct. R. 10. Petitioner’s attack on the clearly

erroneous doctrine as applied by the court of appeals is

wholly without merit. The clearly erroneous standard is a

properly stated rule of law and has been used so fre-

quently that citation is not necessary. Plaintiff’s Petition

for Writ should be denied for its failure to comply with

Rule 10. Alternatively, should the Court feel it necessary,

Respondents have addressed the merits of Petitioner's

claims below.

Il. THE EIGHTH CIRCUIT’S HOLDING THAT THE

DISTRICT COURT’S FINDING OF FACT THAT

THE DEFENDANTS DID NOT DISCRIMINATE

AGAINST BALLARD BECAUSE OF HIS AGE WAS

NOT CLEARLY ERRONEOUS

A. Standard of Review

A District Court’s determination that an employer's

actions were not discriminatory is a finding of fact. Mul-

lins v. Uniroyal, Inc., 805 F.2d 307, 308 (8th Cir. 1986). Fed.

R. Civ. P. 52(a) provides that “[flindings of fact, whether

based on oral or documentary evidence, shall not be set

aside unless clearly erroneous, and due regard shall be

given to the opportunity of the trial court to judge of the

credibility of the witnesses.” Under the clearly erroneous

standard, reversal is proper only if the decision was

“unsupported by substantial evidence, based on an erro-

neous interpretation of applicable law, or, in light of the

entire record, [the court is] left with a firm and definite

conviction that a mistake has been made.” Hillman v.

Arkansas Highway & Transp. Dept., 39 F.3d 197, 200 (8th

Cir. 1994). An appellate court may not reverse merely

because it might decide the case differently were it to

review the evidence de novo. Mullins, 805 F.2d at 308.

When findings are based on credibility determinations,

they are given great deference. Wilson v. US West Commu-

nications, 58 F.3d 1337, 1340 (8th Cir. 1995). In affirming

the District Court in this matter, the Eighth Circuit Court

of Appeals properly applied this standard, and there is

no valid reason to review its decision.

B. The Evidence at Trial Overwhelmingly Estab-

lished a Legitimate, Nondiscriminatory Motive

for Terminating Ballard

1. Burden of Proof

In order to establish a case of age discrimination, the

plaintiff must prove the four elements of a prima facie

case: (1) that he is a member of the protected class; (2)

that he was performing adequately in his job; (3) that he

was fired, and (4) that he was replaced by a younger

person after his dismissal. Gaworski v. ITT Commercial

Finance Corp., 17 F.3d 1104, 1109 (8th Cir.), cert. denied, 115

S. Ct. 355 (1994). If the plaintiff succeeds in making out a

prima facie case, a rebuttable presumption of discrimina-

tion is created. Krenik v. County of Le Sueur, 47 F.3d 953,

957 (8th Cir. 1995).

The burden then shifts to the defendant to rebut the

presumption by producing evidence of a legitimate, non-

discriminatory reason for the challenged employment

action. Id. This is merely a burden of production, not of

proof. Id. In order to carry its burden, the defendant need

not persuade the court, but merely provide evidence suf-

ficient to sustain a judgment in its favor. Id.

If the defendant carries its burden of production,

then the burden shifts back to the plaintiff to establish

that the defendant’s proffered reason is pretextual and

that the true reason was intentional discrimination. Id.

(citing St. Mary’s Honor Center v. Hicks, 113 S. Ct. 2742,

2747 (1993)). In order to establish pretext, the plaintiff

must produce some additional evidence beyond the ele-

ments of the prima facie case. Krenik, 47 F.3d at 959.

In this case, the District Court found that Ballard had

established a prima facie case, on the grounds that “he is

in the protected age group, which is anyone over forty,

and he was replaced by a younger man.”? J.A. 12-13;

Appellant’s Add. 35-36. However, the District Court

found that the airport advanced legitimate, non-discrimi-

natory reasons for terminating Ballard. TR 159, J.A. 13.

The District Court found and the court of appeals relied

on evidence that the housekeeping at the airport was not

2 The court did not, however, make a finding on the second

element of a prima facie case, that the plaintiff was performing

his job adequately.

adequate; that the equipment was not being properly

maintained; that the grass was not being mowed on time;

that logs and documentation of the activities of the air-

port were not kept as required; that the pilots’ lounge

was not properly kept up and maintained; and that the

plaintiff's handling of public relations was unsatisfactory

to the Airport Commission [hereinafter “Commission” ].

Id.

The District Court concluded that Mr. Ballard had not

sustained his burden of proof, and that the defendants

had submitted “a great deal of proof” for each of the

proffered reasons for discharge. Id. at 160, J.A. 14. The

court found that the plaintiff on the other hand, “really

[didn’t] have any proof. It [was] just something that he

[had] speculated about.” Id. The court concluded that

“the plaintiff [had] simply not sustained his burden of

proof of showing age discrimination on his whole case.”

Id. The District Court’s findings were amply supported

by the evidence, as the following discussion will show.

2. Ballard’s “Image”

Ballard attempted at trial to show that his termina-

tion was based on his age because of a comment that the

Commissioners were unhappy with his “image.” See TR

44, S.A. 2. However, Commissioner Ford testified that it

was “totally inaccurate” that the Commissioners were

unhappy with Ballard’s image because he was in his 70's.

TR 46, S.A. 3. Mr. Ford never heard or participated in any

conversation with other Commissioners where Mr. Bal-

lard’s image was discussed in connection with his chro-

nological age. TR 51, S.A. 6. Commissioner Ford stated

that, in using the word “image” he was not talking about

Ballard’s age. Rather he was “talking about the image of

the airport and what we were trying to portray for pro-

spective industrial customers coming invo town.” TR 115,

S.A. 29. Ford also testified that, when the Commission

decided to terminate Ballard, his age was not mentioned.

Id.

Mr. Allbright, Commission chair, did not know how

old Ballard was, and even thought that he, Allbright, was

older than Ballard. TR 59, S.A. 7. He corroborated Ford’s

testimony, stating that “age was never mentioned” in the

determination to terminate Ballard. TR 68-69, 77, S.A. 8-9,

12. It played no part in the Commission’s decision to

terminate him. TR 104-05, S.A. 23-24. When Mr. Allbright

used the word “image”, he was not talking about Bal-

lard’s age, “at all”, but rather the way he treated people

and talked to them. TR 98, S.A. 19. On cross-examination,

Allbright denied that Ballard’s age was a factor in his

“image problem” stating, “I’m almost as old as Joe and |

don’t have that problem. I don’t have a problem getting

along with people.” TR 110, S.A. 26.

The foregoing evidence went completely uncon-

tradicted. Ballard testified he figured that “because of my

image, older image, [that] they wanted a younger person,

is all I know.” TR 152, S.A. 42. On the other hand, Ballard

admitted that no one ever told him he was fired because

of his age. TR 151-152, S.A. 41-42. He did not recall any

member of the airport Commission ever making any com-

ments to him about his age other than one question about

how old he was. TR 152, S.A. 42. Nobody told him that

they wanted a younger person. TR 153, S.A. 43. This was

something he just concluded on his own. Jd. See Moses v.

10

Falstaff Brewing Corp., 550 F.2d 1113, 1115 (8th Cir. 1977)

(no evidence of statements indicating age a factor in

employee’s termination).

The District Court correctly concluded that the use of

the word “image” did not imply that the \ ommission

was basing its decision to terminate Ballard based on his

age. TR 160, J.A. 14. As the court observed, Ballard

“really [didn’t] have any proof. It [was] just something

that he [had] speculated about.” Id. Given the Commis-

sion’s evidence, and the lack of any evidence of discrimi-

nation from Ballard, the District Court’s finding on this

issue was far from erroneous, and the court of appeals’

affirmance is plainly correct.

3. Legitimate Reasons for Termination

The uncontradicted evidence showed a host of prob-

lems with Ballard’s job performance. The Age Discrimi-

nation in Employment Act provides that an employer

does not violate the Act by terminating an employee

“based on reasonable factors other than age,” or “for

good cause.” 29 U.S.C. § 623(f)(1) and (3). Poor job perfor-

mance constitutes a legitimate, nondiscriminatory reason

for termination. Richmond v. Board of Regents of University

of Minnesota, 957 F.2d 595, 598 (8th Cir. 1992); Halsell v.

Kimberly-Clark Corp., 683 F.2d 285, 291 (8th Cir. 1982), cert.

denied, 459 U.S. 1205 (1983).

The Commissions’ complaints fall generally into

three categories: (1) failure to maintain the airport prop-

erly; (2) rudeness to members of the public using the

airport; and (3) failure to follow repeated instructions.

11

Allbright testified that the upkeep of the terminal

and the grounds was deteriorating. TR 93, S.A. 15. This

started in 1990 or 1991. TR 93-94, S.A. 15-16. The airport

building had “trash or old magazines, things of that

nature. It was just not kept in an orderly manner, and the

floor was beginning to be dirty most of the time. The

restrooms were dirty... .” TR 108, S.A. 25. Allbright

stated that he told Ballard “to get the terminal building

looking in better shape.” It would improve for a few days

but by the next meeting it would be back like it was. TR

94, S.A. 16. Burton Ford also testified that the Commis-

sion “had a problem with the looks of the airport and we

felt like that was a very important part of the job. We

weren't getting cooperation with what we were asking

for.” TR 112, S.A. 27. Ford stated that the terminal was

generally in a cluttered condition. TR 113, S.A. 28. There

were problems with the appearance of the airport and the

grass was growing too tall. TR 32, S.A. 1. At times, the

grass got so tall it was “tearing up the machinery.” Id.

Another problem arose from Ballard’s failure to keep

the pilot lounge open. The Commission wanted to have a

nice pilot lounge as it is often boring and uncomfortable

for a pilot waiting for a passenger at the airport. The

Commission thought this was very important. TR 113,

S.A. 28. Nevertheless, Ballard kept the pilots’ room

locked and unavailable to the pilots. TR 94-95, 16-17. This

was mentioned at Commission meetings to Ballard a cou-

ple of times, but even so it was not kept open on a regular

basis. TR 95, S.A. 17.

Since the new manager was hired, the office area is

“much, much cleaner.” TR 116, S.A. 30. The pilot’s lounge

is well maintained and kept open. There is generally a

12

better looking appearance on the taxiways and apron

areas. Previously with Mr. Ballard there had been a prob-

lem with sweeping and vacuuming the runways and

keeping them clean of rocks. Id. The new manager

observed that, when he was hired, “the equipment, the

mowers, the tractors, were all in need of repair. The

clutch was out on the tractor and on the mower. There

was no way to do any mowing with it.” TR 142, S.A. 37.

The airport terminal building was infested with mice and

needed general cleaning. TR 142-43, S.A. 37-38. In addi-

tion, a small cutter needed repair, the runway lights

didn’t work, the wind directional didn’t work and the

“wind speed” didn’t work. TR 143, S.A. 38.

As already noted, Ballard was rude to members of

the public using the airport. Allbright testified that he did

not like Ballard’s “general attitude towards people that

were coming . . . into the airport.” TR 68, S.A. 8. Ballard

got to the point where he was “kind of gruff with people”

which reflected badly on the airport. TR 95, S.A. 17. Since

Ballard was often the first person that somebody coming

in from out of town would see, anything that he said

would reflect on the whole city. Id. Allbright testified that

the public relations aspect was an important part of Bal-

lard’s job. TR 95-96, 17-18. He testified that an “industrial

person” was glad when Ballard was terminated because

he thought that Ballard “didn’t come on to people, .. . ”

TR 108, S.A. 25. Danny Howard also testified that Ballard

was rude to “a lot of people.” TR 123-24, S.A. 31-32.

Finally, Ballard simply failed to follow directions. TR

50-51, S.A. 5-6. Sometimes the Commissioners would

have to repeat directions to Ballard at two or three con-

secutive monthly meetings. TR 51, S.A. 6. For example,

13

the Commissioners instructed Ballard to keep a log on the

matters which he felt needed discussion. Ballard was

advised to keep a log showing dates, times and locations.

TR. 99, S.A. 20. However, Ballard did not keep the log as

requested. TR 99-100, 101, S.A. 20-21, 22. Similarly, Bur-

ton Ford testified that Ballard failed to keep documenta-

tion as requested on problems with agricultural

operators. TR 112-113, S.A. 27-28. The Commission could

not perform any follow-up because it did not have any

documentation with which to do it. TR 113, S.A. 28.

In another example, the Commission instructed Bal-

lard to stop taking checks from a Mr. Breckenridge

because they were having trouble getting the checks to

clear. TR 70, S.A. 10. Nevertheless, Ballard kept taking

Breckenridge’s checks after the Commissioners told him

not to. TR 70-71, S.A. 10-11. Although the checks were all

eventually made good, TR 71, Ballard had nevertheless

simply disobeyed his employer’s instructions.

Ballard also failed to follow instructions with respect

to bookkeeping procedures. Jim Block, the accountant for

the Commission, (TR 131, S.A. 33), testified that he had

difficulty getting Ballard to keep accurate financial

records of sales. TR 133-134, S.A. 34-35. Block had to tell

Ballard repeatedly to cut off financial information at the

end of the month. /d. It took months before Ballard would

keep an accounts receivable ledger. TR 136, S.A. 36. Bal-

lard would not count daily cash even when he was

requested to do so by the Commission. /d.

The foregoing evidence is more than sufficient evi-

dence to establish a legitimate, nondiscriminatory motive.

Ballard failed to produce any evidence that these reasons

14

were pretextual. As a result, this case is “precisely the

type of employment dispute that this court has repeat-

edly stated is not covered by the discrimination laws.”

See Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 781

(8th Cir. 1995). The court of appeals is not to sit as a super

personnel department to review the fairness or wisdom

of employers’ business judgments in the absence of inten-

tional discrimination. Id. The District Court had the

opportunity to hear the witnesses, and found those for

the defense credible. Ballard has advanced no rationale

for his conclusion that the trial judge’s judgment was

“clearly erroneous,” or that the Eighth Circuit should

have so found.

lil. NEITHER THE TRIAL COURT NOR THE COURT

OF APPEALS ERRED IN DECLINING TO APPLY

A MIXED-MOTIVE ANALYSIS

Ballard next contends that the District Court erred in

failing to apply a mixed-motive analysis as set forth in

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). That

decision permits a plaintiff to persuade the trier of fact

that discrimination was more likely than not a part of the

motivation for the employment decision at issue. If the

plaintiff is successful in making such a showing, then the

employer may elude liability only by proving that it

would have made the same decision without the discrimi-

natory reason. Hutson, 63 F.3d at 780 (citing Price Water-

house, 490 U.S. at 258). As in Hutson, Ballard’s difficulty is

that he never made the prerequisite showing that the

Commission’s decisior to terminate him contained any

discriminatory component at all. See Hutson, 63 F.3d at

780. Merely establishing a prima facie case is not enough

15

to justify a mixed motive analysis. Radabaugh v. Zip Feed

Mills, Inc., 997 F.2d 444, 448-49 (8th Cir. 1993).

Rather, the plaintiff must present evidence of

conduct or statements by persons involved in

the decision making process that may be viewed

as directly reflecting the alleged discriminatory

attitude . . . sufficient to permit the factfinder to

infer that that attitude was more likely than not

a motivating factor in the employer's decision.

Id. at 449 (quotation omitted).

The District Court did not find that the decision to

terminate Ballard was partially motivated by discrimina-

tory animus. Nor has Ballard produced any such evi-

dence. He merely argues that both the court of appeals

and the District Court “erred” in failing to apply a mixed

motive analysis, but never really says why. The closest he

comes to proffering an explanation are vague and unsup-

ported accusations against Commission members of

“harassment,” and nonsensical arguments that the court

of appeals did not properly apply the mixed motive test.

Petition for Writ at 14-16. Ballard provides no concrete

examples to explain these mysterious allegations of

harassment, which, in any event, simply raise credibility

questions that were well within the province of the trial

judge. As long as it is internally consistent, a trial judge’s

credibility determination respecting the testimony of wit-

nesses uncontradicted by extrinsic evidence “can vir-

tually never be clear error.” Anderson v. City of Bessemer

City, N.C., 470 U.S. 564, 575 (1985). Further, because he

has been unable to provide evidence that the employer

“more likely than not” acted from a mixed motive, Bal-

lard’s argument must fail.

16

CONCLUSION

The evidence amply supports the District Court's

ruling that the Commission advanced a legitimate, non-

discriminatory reason for Ballard’s termination. More-

over, there was no evidence to support a mixed-motive

analysis. Accordingly, the judgment of the District Court

and the court of appeals should not be disturbed, and the

Petition for Writ denied.

Respectfully submitted,

Airport Commission, City of

Newport, AR; Wayne Beard, Jr.;

Wiley Allbright, Jr.; Terry Dillon;

Ralph Ford Sink; Kenneth

Thaxton, Jr.; Burton Ford,

Respondents

Mark R. Hayes

ATTORNEY AT Law

Ark. Bar #87078

Post Office Box 38

North Little Rock, AR 72115

Phone No.: (501) 374-3484

and

Davip C. SCHOEN

ATTORNEY AT LAw

Ark. Bar # 87153

Post Office Box 483

Fayetteville AR 72702-3483

Phone No.: (501) 444-6200