# Opposition Brief — Ballard v. Albright

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1996
- **Citation:** 519 U.S. 809

## Text

Supreme Court, U.S.
ait , ' é
| | t en es
QY JUN 17 1996
No. 95-1768 | es
= eeeoNoEl eee SEE Eee

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0727%3A2. Public record. Not legal advice.