Essie R. McDaniel v. Temple Independent School District
770 F.2d 1340
5th Cir.
1985
Check Treatment

*1 of, importance “uniformity” counting the IV. policies). as section 1983 and “federalism” emphasize We that we need not and do applying the Texas rule conclude that We adopt in toto the Texas rule that wholly the claims of survivors

that makes good against plaintiffs’ defense decedent of the decedent’s cause of action derivative Rather, plaintiffs’ also bars claims. we goals does not conflict with section accept apply only here the rule to the 1983. precludes extent it the section 1983 claims employing The fact that the Texas rule of survivors where their decedent sued dur- compensation appellants ing this case denies personal injuries his lifetime for the borrowing not suffice to render the does that form the sole basis of the survivors’ impermissibly inconsistent with federal Applying claims. the rule to this case re- As the law. Court said Robertson: in denying appellants’ sults section 1983 Accordingly, claims. A state statute cannot “in- we hold that the dis- be considered trict court committed no merely granting consistent” with federal law be- error appellees’ summary judgment cause the statute causes the motion for litigation. dismissing appellants’ lose the If success of the action. benchmark, 1983 action were the § AFFIRMED. there would be no reason at all to look to law, appropriate state for the rule would always favoring the

then be the one

plaintiff, and its source would be essen-

tially quite irrelevant. But clear- §

ly statutes; instructs us to refer to state say

it does not that state law is to be

accepted rejected solely on based advantaged thereby. which side is McDANIEL, Essie R. Plaintiff-Appellant, 436 U.S. at 98 S.Ct. at 1996-97. The question, words, relevant in other is wheth- v. er the rule compensa- itself undermines the TEMPLE INDEPENDENT SCHOOL tory function of section not whether DISTRICT, Defendant-Appellee. appellants damages. recover applies At least as it in this the rule No. 84-1697. appellants’ under which claims are found to United States Appeals, Court of dependent upon Delesma’s claims in is Fifth Circuit. goals. accordance with section 1983 Dur- lifetime, ing sought his Delesma to recover Sept. 1985. injuries appellees allegedly for the Rehearing Denied Oct. prevailed, appellants caused him. Had he primarily have would benefitted. We find cutting right appellees off their to sue exactly the same event does not conflict policy the compensatory underlying

section 1983. impair policy

Nor does the rule Texas deterring illegality. Nothing official through

section 1983 mandates deterrence multiplicity prospect of suits. The of an during the decedent

action his lifetime

certainly prevent suffices to officials from

abusing authority. their Section 1983 deter; oppress. it should not

should *4 employed by

tiff defendant for was first year. school was subse- 1975-76 She 1976-77, quently re-employed for the 1977- years pur- 1978-79 and 1979-80 school one-year held suant to contracts. Plaintiff Rouge, La., Baton for Taylor, D. Nelson She Dean of positions. various Girls plaintiff-appellant. Temple High of the School from 1975-78. Kilgore, R. McGinnis,Lochridge & James year, For school she was em- the 1978-79 Bingham, Spur- John H. H. Raup, William reassigned ployed Dean of Students as but Tex., Austin, defendant-appel- II, gin, position of Attendance Dean. She lee. high Attendance Dean served as employ- the remainder school for of her ment the defendant. Principal. an She wanted be Assistant REAVLEY, Circuit RUBIN Before sought first an Assistant McDaniel *, Judge. District FELDMAN Judges and Principal position in the district school again applied May 1977. for the same She Judge: FELDMAN, District May position in 1978 when there were two from a appeal an This is high at the was un- vacancies school. She *5 of the defendant in an in judgment favor Principal all successful because Assistant retaliatory and employment discrimination positions were classified as administrative. brought pursuant to Title discharge case not certified an administra- Plaintiff was as Rights Act as of the Civil VII by in Agency tor the Texas Education amended, 42 2000e—2000e-16. U.S.C. §§ May The two vacancies in and 1978.1 held for The district court also the defend- by Anglo a Mexi- were filled an male and plaintiffs claim that the defendant ant on male, who both certi- can-American were an the terms of EEOC concilia- breached by fied as the state. administrators entered into agreement tion it had with the 1978, the filed her September plaintiff In presented The plaintiff. question is wheth- charge against the de- first discrimination findings clearly er the district court’s are alleged that the EEOC. fendant with She and, thus, should be set aside. erroneous promote of the not her to one (1) the school did are also asked to consider We whether positions in Principal available Assistant proffered for its the defendant’s reasons reassigned At- May her to the employment concerning decisions 1978 and adverse position the 1978-79 plaintiff were established admissible tendance Dean evidence; (2) race and year whether was on the basis of her school denied a fair trial of the trial in charge because settled sex. The first EEOC was court’s failure to disclose to her the nature agree- The conciliation February 1979. he of an in-chambers conference had with take action obligated ment the defendant to attorney attorney’s represen- her about the fea- speed to determine the with all due plaintiff. tation of the affirm the dis- We sibility Dean upgrading Attendance judgment. trict court’s and to position position to an administrative give plaintiff first consideration for future I. FACTUAL BACKGROUND Principal equal Assistant vacancies va- McDaniel, consideration for other administrative plaintiff, The Essie is black qualified. cancies for which she was independent an female. defendant is obligations condi- organized district Plain- school district’s were school Texas. * Louisiana, during Judge positions 1. The that held District of dean District of Eastern employment with the district were designation. her school sitting by and, thus, require an did not administrative administrator's certificate. temporary amples of race discrimination. She plaintiffs receiving also upon tioned certification. the defendant administrative claimed breached the prior agreement conciliation it did because got tempo- her In March Principal promote her to the Assistant administrator, and as an rary certification position in 1980. The available record does of Trustees of the Board thereafter disposed not indicate how the EEOC feasibility of considered the school district complaint, plaintiff’s third but Notice of position. Attendance Dean upgrading the Right to Letter issued in Sue was October upgrade position. decided not to It 1980. charge second Plaintiff then filed a EEOC plaintiff charged that May 1979. The filing charge In addition to the third the conciliation the school district breached EEOC, requested McDaniel Ms. a full agreement it failed to review because evidentiary hearing before the school dis- feasibility upgrading the Attendance concerning trict’s Board of Trustees timely in a manner. position Dean employment nonrenewal of her contract. high school McDaniel also claimed hearing, At the in June per- job had criticized her administration represented attorneys, was two who having filed for her formance retaliation presented evidence on her behalf 'and cross- The sec- charge first with the EEOC. examined witnesses for the school adminis- determined complaint was ond EEOC presented tration. The administration evi- plaintiff August against the plaintiff’s unsatisfactory job dence of the plaintiff persisted. In December But performance. An observer from the Texas again applied she for an Assistant Teachers State Association was also position had vacant Principal become present. Based on the evidence and testi- subsequently high at the school. She mony presented hearing, at the the Board informed, however, that interviews for of Trustees affirmed its decision not to position not be conducted until the would employment renew Ms. McDaniel’s con- spring early summer of 1980. late tract. *6 1980, Moreover, by March after an infor- evaluation, plaintiff job formal the mal and AND STAN- II. LEGAL FRAMEWORK Gunlock, Prin- by Mr. Jack the

was notified DARD REVIEW OF School, he cipal Temple High that was of recommending applied to the Board of Trustees to in Title VII The law be employment contract not be re- discriminatory that her treatment cases is well es year. 1980-81 school The newed for the Postal Ser tablished. See United States Board, 1980, Princi- May accepted the Aikens, 460 Board v. vice Governors of the and notified pal’s recommendation 711, 1478, 75 L.Ed.2d 403 U.S. 103 S.Ct. plaintiff that her contract would be (1983); Department Community Texas plaintiff filed surprisingly, Not renewed. Burdine, 450 U.S. 101 S.Ct. v. Affairs complaint her third with the EEOC. (1981); 1089, 67 L.Ed.2d 207 McDonnell Green, Corp. 411 U.S. 93 Douglas v. alleged complaint, plaintiff her third In (1973). The 36 L.Ed.2d 668 S.Ct. and the her unfavorable evaluations that evidentiary is sim allocation of the burdens employ- to renew her school’s decision not First, plaintiff the ple. the has burden intended to retaliate ment contract were discriminat proving prima, a case of having previ- against her for her filed the facie prima ex- The establishment of a EEOC and were ion.2 charges ous with the facie Burdine, plaintiff. U.S. at ifications as the general, prove prima case of In to a facie treatment, (1) 101 S.Ct. at 1094 n. 6. plaintiff 254 n. disparate must show a (2) minority; belongs that she was case, to a that she the trial court did not In the instant employer job was qualified the for which the proved for expressly the a plaintiff conclude that (3) application assume, however, seeking applicants; that her that the prima case. We facie (4) employer rejected; to that the continued reach such a conclusion since he trial court did people qual- evidentiary applicants the same proceeded from the second and third seek provides that shall be an unlawful presumption that “[i]t a rebuttable case creates practice employer to unlawfully employment discriminated for an employer the Then, plain- against employees if the employee. discriminate of his against the proving prima a charge” he has made a under tiff succeeds ... because facie evidentiary phase requires the 2000e-3(a). the second To Title VII. U.S.C. § legitimate non- to articulate some employer 704(a), a of section “the prove violation adverse em- discriminatory reason for its prima facie plaintiff must first establish a concerning plaintiff. the ployment decision (1) by showing that she of retaliation case produc- employer’s burden This is the activity protected by Title engaged in an employer must tion, persuasion. VII; (2) employment action adverse that an forth, through introduction the clearly set occurred; (3) there was a causal that evidence, the reason for the of admissible participation in the the connection between It, however, employment decision. adverse employ- activity and the adverse protected it was persuade the court need not McMillan, 710 F.2d at ment decision.” reason, proffered actually by the motivated evidentiary to the burdens 1116. Similar legally must although explanation the context, if discriminatory treatment justify judgment a sufficient prima a case of plaintiff establishes facie employer satisfies its If the employer. retaliation, employer has the burden of presumption of production, the burden legitimate some nondiscriminato- producing disappears. The case then discrimination employment for the adverse deci- ry reason (If evidentiary phase. third proceeds to the and, employer if the satisfies this bur- sion burden, satisfy employer fails to this den, prove prof- that the must remains presumption of discrimination pretext for retaliation. Id. fered reason is prevails.) The and the unrebutted ease, however, the In a retaliation requires case evidentiary phase of the third required for the determination ultimate by preponderance of prove a is from a dis plaintiff to succeed different legitimate nondiscrim- the evidence deter case. The ultimate parate treatment employer inatory proffered by reason not retaliation for mination is whether or true reason for the adverse was not the a “but filing charge under Title VII was may employment decision. employment deci the adverse for” cause of satisfy by persuading this the court burden Jack, “[wjhether or not As stated sion. discriminatory likely reason more employ other reasons for the there were employer motivated the than not action, prevail only employee will er’s employer’s proffered rea- showing that the protected ac by proving that ‘but for’ *7 unworthy of credence. Further- son is subjected to tivity she would not have been more, stage proceeding, of the the at this If the she claims. the action of which in bur- plaintiff must succeed her ultimate employee does not bear that burden proving that she was the victim den of may prevail.” 743 F.2d persuasion, she not or sex discrimination. intentional race (citations omitted). 1131 in retali applied The law to a be case, the trial In the instant discharge case is also well estab atory of the judgment in favor court rendered v. Texaco Research Cen lished. See Jack upon granting the defendant’s defendant Cir.1984); ter, (5th McMillan 743 1129 F.2d involuntary dismissal made (5th motion for an Inc., 1112 710 F.2d College, v. Rust plaintiff’s case-in- after the close of the Cir.1983). 704(a) ex of Title VII Section 52(a) 41(b).3 conduct; Rule retaliatory it chief. See Fed.R.Civ.P. prohibits pressly really longer relevant." 460 U.S. tiff did so is no phases See v. International of the case. Nulf 715, 553, (10th Cir.1981). 103 S.Ct. at 1482. Co., at Paper n. 3 656 F.2d 559 Furthermore, Aikerts, "[wjhere in the as stated plaintiffs disagree contention We with the 3. everything that would be defendant has done 41(b) involuntary are im- dismissals that Rule plaintiff properly required had of him if the proper because of the three- in Title VII cases case, plain- prima the made out a whether employed step evidentiary process in facie burden

1347 by liarly province the of the factfind- findings made within that the factual instructs er.”). 41(b) Rule upon granting a the trial court set are not to be

involuntary dismissal THE DISTRICT III. REVIEW OF “clearly they are erroneous”. unless aside COURT DECISION 52(a). “clearly errone- Fed.R.Civ.P. finding First, the the we consider whether evi applies “whether ous” standard court’s conclu supports dence the district subsidiary fact or final is one of at issue prove that the failed to sion discrimi- that there was no fact [intentional for proffered legitimate reasons its school’s McMillan, F.2d retaliation.” nation or] promote not to her to Assistant decisions Furthermore, (citations omitted). at 1116 reassign and to Principal in 1977 and under finding may be set aside factual “[a] pre in Attendance Dean 1978 were her to only if are clearly erroneous rule we that the court’s conclu textual. We hold evidence, left, of the on review clearly erroneous. sion was that a mistake conviction firm and definite Oil, committed.” Chemical had been plaintiff, of the cross-examination On International Union v. Atomic Workers defendant established that the (5th 703 F.2d Corporation, Ethyl not certified as an administrator omitted). is, Cir.1983) (citation That “[w]e Agency Texas Education when she first findings judge’s reject the trial may not applied Principal position an for Assistant might have arrived at a simply we because again May May 1977 and then the same evidence.” Id. different result on however, plaintiff, offered no evidence omitted). mindful (citation We are also satisfy her failure to this whatsoever that case, that, disparate treatment appli- an requirement, which insures that in- employer issue—whether ultimate general qualifications for cant will have against the em- tentionally discriminated the true position, an administrative wasn’t province ployee “peculiarly within promoting her to one of the reason —is Thornbrough v. Co- Principal the factfinder.” Nor did Assistant vacancies.4 Compa- provide and Greenville Railroad sufficient evidence lumbus Ms. McDaniel Cir.1985) (“Of- (5th were more 760 F.2d that race or sex discrimination ny, motivating cause of the ten, likely and intent can than not the motivation evidence; promote not to district’s decision proved through circumstantial school why by her counsel she regarding motivation and her. When asked determinations promoted because of she was not complicated inferences believed depend intent on race, merely respond- pecu- her sex and are therefore from the evidence documentary defendant, plaintiff, evidence. It a Title VII cases. If the such plaintiff's prove burden to legitimate nondiscriminatory then becomes the rea its establishes pretext during proffered is or that a reason employment decision for the adverse son likely case-in-chief, 41(b) discriminatory more than not led motive plaintiffs motion Rule resting before her case. to the adverse decision procedurally proper. Uviedo v. Steves See is (5th Co., had the If the court determines 1430 n. 4 & Door 738 F.2d Sash resting satisfy Cir.1984) opportunity this burden before grounds on other on rehear modified so, may (5th Cir.1985); it that she failed to do ing, her case but Lewis v. Brown 753 F.2d 369 Cir.1983); involuntary Root, Inc., (5th grant dismissal. the motion for an mod 711 F.2d 1287 & *8 reconsideration, grounds 722 on other on produced its the instant the defendant ified In -, denied, (5th Cir.), cert. -U.S. 209 F.2d clarity during legitimate reason with sufficient (1984); v. L.Ed.2d 213 Ekanem S.Ct. 79 104 by plaintiffs plaintiff's own testi- case-in-chief Corporation Hospital Marion and Health documentary mony evidence admitted and the denied, (7th Cir.1983), County, cert. 724 F.2d 563 opportuni- by parties, plaintiff had an both — (1984); U.S.-, 40 105 S.Ct. 83 L.Ed.2d resting. Accordingly, pretext ty before to show Paper Company, F.2d 656 v. International 41(b) granted properly the Rule the trial court Nulf Cir.1981); (10th Sime v. Trustees 553 Califor motion. University Colleges, F.2d 1112 526 nia State Cir.1975). Indeed, (9th produce people defendant can its filled the vacan- two who during plaintiffs legitimate case either administrators. See reason were certified cies in 1978 witnesses, express through statements adverse Tr. at 47. 1348 quite in relationships

ed that there were no women administra- favorable. But although high began tors at the school there were to deteriorate. Her evaluations for girls boys years more than at the school and that the 1978-79 and the 1979-80 school Gunlock, at good. there was one black administrator Mr. Principal were not cannot, did, as high school, remarked, the school. We example, of the deduce from these facts alone that giving that Ms. McDaniel was more consid- likely than not discriminated school more goals personal eration to her than to the and, thus, against women and blacks program, personal school that her interests plaintiff. Such a deduction would be based day day operation conflicted with the speculation, proof. on mere school, difficulty and that she had fol- lowing job description. her Ms. McDaniel’s Ms, presented McDaniel also no evidence testimony own at trial substantiated that to establish that she was discriminated having difficulty getting along she was against reassigned the school her to when well with the school’s administration and position in the Attendance Dean 1978. The personnel. other not even evidence does establish demotion; reassignment was a it did not argu McDaniel offers two Moreover, pay in result loss of or benefits. support ments of her contention that the employment plain- contract between the concluding district court erred in that her gave right tiff and the school the school the job unfavorable evaluations were moti reassign from Dean of Stu- discriminatory retaliatory vated or position. another dents to arguments intent. Both of these are with Next, question reach the we First, out merit. Ms. McDaniel claims that whether district court erred conclud negative the school was mistaken in its ing that the school district’s decision not to and, performance any evaluation of her employment renew the Plaintiff’s contract event, justify the criticisms did not discriminatory retaliatory was neither argu nonrenewal of her contract. This that, action. The district court found dur ment plain is wide of the mark because the ing year, “[pjlaintiff’s the 1979-80 school greater merely tiff has a far than burden employment relationship with [the school] to show that the defendant’s decision not by disputes supervisors, was marked might wrong renew her contract have been co-workers, parents, and It students.” also really good employee because she was a as per found that the school’s “administrative job her first shown few evaluations. As repeatedly stay sonnel asked her to within Burdine, stated fact that a court “[t]he job description her and to follow the admin may employer misjudged think that the command,” chain istrative which warn qualifications [employee] of the does not ings she failed to follow. The district court expose liability.” itself him to Title VII (1) also held that the school district “based at U.S. S.Ct. at 1097. Ms. employment concerning decisions [its] argument McDaniel’s second is that good-faith on a assessment of her proffered poor job defendant’s reason of (2) performance,” abilities and performance pretext is a for discrimination “[p]laintiff’s unsatisfactory performance got and retaliation because she never writ and failure to follow administrative di warnings ten of serious misconduct. In valid, nondiscriminatory rectives were rea deed, warnings written of serious miscon sons for defendant’s nonrenewal of her required by duct are the school district’s addition, according contract.” In to the however, policy. plaintiff, failed to court, prove failed to district showing offer evidence that the school pretext these reasons were for unlawful equated plaintiff’s poor job per district discrimination. and, formance with serious misconduct thus, job performance given warnings Ms. McDaniel’s evalua- should have written *9 years tions for the first three of her em- in such situations. Serious misconduct ployment with the school district were could mean violation of school rules rather Indeed, prove the was not to the truth of job performance. admitted the poor than given only example simple of serious misconduct matters asserted for the reason itself is a of policy school violation that, the in a the issue is Title VII not Thus, plaintiff failed to policies. Board the made the correct employer whether de- prove by the fact she was pretext that in discharging employee, cision the but warnings of serious given never written the intended employer whether to discrimi- misconduct. against employee. nate the concluding that district In the Next, question reach the we finding plain err in that the court did not the court erred in whether district conclud employment contract was not re tiffs ing that the did not defendant breach the reason, impermissible we newed for an plain that agreement conciliation settled commit also conclude court must charge first the tiff’s with EEOC. As to finding the ted that defendant’s no error question, this also hold that the we evi promote plaintiff Assist not to to decision supports dence the district court’s conclu Principal ant in the summer 1980 lacked plaintiff sion. contends that the school discriminatory retaliatory a intent. failed obligation district to fulfill its “to Before we leave Ms. McDan action speed take with all due to review the claims, and retaliation iel’s discrimination position Attendance Dean to determine the that plaintiff’s we the contention address feasibility of reclassifying upgrading it legit the not establish defendant did the an position, to administrative effective employment reasons for its decisions imate upon [plaintiff receiving] temporary admin Burdine, through admissible evidence. istrative certification.”6 She claims that at at 101 S.Ct. 1094. We U.S. immediately school the district did not re especially note that the that exhibit the feasibility upgrading posi view the any objection to the time voiced at temporary tion when she received her ad transcript hearing trial was the the ministrator’s certificate March 1979. held the Board of Trustees on June before argument This is without merit because the concerning plaintiff’s appeal of the at its very Board considered the matter prior Board’s contract renewal decision. meeting April next on 1979. She also (documents A exhibit This is defendant’s required argues agreement that hearing during offered were attached position automatically upgraded to be ab exhibit).5 this contended legitimate reason not to do so. sent and, hearsay contained the exhibit However, plain meaning of the contract thus, could not be admitted for the truth of express requirement, not does such not, She did on the matters asserted. did not offer evidence hand, to the limited object other admissibili plain meaning. altered which its Further ty of the exhibit to show motive and more, requirement assuming that this deciding the Board of Trustees in intent of agreement, plaintiff read could be into the plaintiff’s employment con to renew produce any showing evidence did not Indeed, properly the exhibit tract. legitimate thus, the defendant had no reason for purpose; it admitted for that limited 801(e). upgrading position. hearsay. Fed.R.Evid. It was not admissibility objection exhibits. Plaintiff is also aimed the admis- of these failed Plaintiffs at U, sibility timely objection E of defendant’s exhibits which make a in accordance hearsay and, thus, object claims contain Defend- right she evidence. rule waived her this on plaintiff's job performance Furthermore, ant’s exhibit E is 103(a). appeal. Fed.R.Evid. it and exhibit U is a memo- evaluation 1980-81 be exhibit E is should noted that defendant’s May Superin- randum dated 1980 from the 7e; thus, plaintiff’s same as exhibit exhibit the school district to the Board of tendent of was admitted herself. why the administra- Trustees that stated school recommending that her contract not tion was agreement 6. The was admitted into conciliation counsel, trial, ex- Ms. McDaniel’s at renewed. evidence as defendant’s exhibit T. pressly objection no that she had to the stated *10 trial, plaintiff morning The also contends that the On the the court held an in-chambers conference obligation with counsel for school district breached its to parties. conference, both At the Ms. Dash- give her for future “first consideration” urged her er motion to withdraw from the Principal Assistant vacancies because she judge case. She informed the district that promoted to the Assistant Princi was plaintiff the and were she “at total odds pal position that available De became with each other” as to the manner in which establishes, cember 1979. The record how plaintiff’s presented case should be ever, obligation that the school district’s to him expressed she to her belief that Ms. give plaintiff “first consideration” did not kept changing McDaniel testimony, her guarantee plaintiff pro that the would be plaintiff’s mental condition was deteri- vacancy. rep moted to the next An EEOC orating, plaintiff and that acting very was explained that the words resentative “first aggressively. Counsel was also unsure consideration” did not “constitute a Guar anyone she or adequate- whether else could red-circling antee or of future vacancies.” ly represent plaintiff. judge decid- important, agreement in Most this did not going plaintiff ed that he was to allow the plaintiff sulate the from the effects of ad decide to whether she wanted Ms. Dasher employment resulting verse decisions from represent to continue to her or whether she job poor performance. agreement her proceed wanted to on her own behalf. The poor performance. Appli does not excuse judge asked Ms. Dasher to continue as position going cants for the were not to be plaintiff’s attorney plaintiff if so desired. spring early interviewed until the late trial, beginning At the judge By May however, summer of 1980. explained plaintiff to the that Ms. Dasher already the school district had decided not reurging withdraw, was her motion to reemploy plaintiff because of her right had the counsel of have poor job performance. own, her proceed choice or to on her and of disadvantages going it alone. The IV. A FAIR TRIAL not, however, judge did disclose the details began When this case first plaintiff. of the discussion about Ms. represented by was Dale E. Mul- judge McDaniel told the that she wanted 1982, however, ler. In permit- Muller was represent Ms. Dasher to continue to her ted to withdraw from the case because the and that she believed that Ms. Dasher plaintiff discharged employ- Muller from represent competently fairly. could her Subsequently, ment. Ms. Susan Dasher appeal, On Ms. McDaniel contends that represented plaintiff opposition to de- judge the trial her denied a fair trial be- fendant’s summary judgment. motion for represent cause he forced Ms. Dasher to summary The motion for judgment was her and because he did not disclose the Then, February resolved in in March in-chambers that he had discussion 1984, the district court notified all counsel plaintiff. Ms. Dasher Ms. McDaniel about July of a 1984 trial date. Ms. Dasher im- claims that Ms. Dasher was not an effec- mediately filed a motion to withdraw from feelings tive advocate of her because about ground the case on the that she had and because she was forced to agreed represent plaintiff on the motion remain as counsel in the case. Plaintiff summary judgment agreed and had not says judge prejudiced also to take the case to trial. Ms. Dasher also negative Ms. Dasher’s remarks her. about paid by stated that she had not been the Ms. McDaniel contends that she should plaintiff and did not have the resources to given have been a chance to defend herself represent without a retainer. against addition, those In remarks. In June the district court ruled that suggest McDaniel seems to that she would only upon Ms. Dasher could withdraw proceed have chosen to on her own had she attorney substitution of another for the been advised of the nature of in-cham- plaintiff. None occurred. bers discussion about her.

1351 agree finding with Ms. McDaniel “no reason to believe that We the trial prejudiced” judge was or that Ms. McDan- judge have disclosed to the trial should iel’s choice of counsel would have been the discussion he had her the nature of respectfully I dissent different. from this asking Dasher before Ms. McDan with Ms. rights conclusion. Ms. McDaniel’s were rep to she wanted Ms. Dasher iel whether substantially affected because she was re- party Disclosure to a of her at trial. resent quired proceed unaware of her attor- of an in-chambers conference the nature ney’s aspersions judge and because the did especially counsel is favored when disqualify himself. directly matter con conference involves a cerning party. Disclosure must be en us, any judges lawyers, Would or ex- couraged party, to insure that rather courtroom, ways in the perienced counsel, maintains ultimate control than jury consent to a trial before a who had given perti or her case and is all over his attorney say heard our of us what Ms. facts on which to make informed deci nent attorney McDaniel’s said of her: she had sions. “perjured very severely during herself her changing “is her testimo- deposition;” she case, however, the In the instant minute;” by ny minute “her mental condi- disclose the in-cham judge’s trial failure to deteriorating very rapidly;” tion is “no one Ms. Dasher to bers discussion with to have the same seems recollection of carefully error. We have was harmless client, my me;” including events as presentation of examined Ms. Dasher’s attorney that Ms. McDaniel’sE.E.O.C. was pleadings trial and the plaintiff’s case at present impeach “to take the stand and her plaintiff. by her on behalf of the filed if I him?” call Would us elect to be was They demonstrate that Ms. Dasher by lawyer represented who had such an relevant law and the knowledgeable of the opinion of his client and her cause? plaintiff’s pre case. was facts of the She because, questions The are rhetorical Considering many pared for trial. me, is the answer to both obvious. None plaintiff’s in counsel was weaknesses jury of us would trust the to erase these no an effective advocate. There is also memory fairly from assess our words judge that the trial reason for us to believe willingly proceed None of us would case. prejudiced against his lawyer simply going through is with a who in-chambers discussion with Ms. Dasher. advocacy. the motions of The circumstanc- Finally, must underscore that we my example than es here are worse two that Ms. Dasher wanted to withdraw knew respects: judge The who acted as the find- plaintiff specifically de from the case and placed presumably er of fact confidence Ms. Dasher for her law cided she wanted attorney McDaniel’s because he had Ms. yer. Second, appointed Ms. himself her. reasons, foregoing judgment For The McDaniel was the sole witness. entire is AFFIRMED. hung credibility case on the of her testimo- AFFIRMED. ny. Dasher, imply I that Ms. Ms. do not

RUBIN, Judge, dissenting: Circuit lawyer, should have condoned McDaniel’s fairly majority that, reviews the record perjury what she believed They agree withdraw, and I comprehensively. having once failed an effort to that, majority they say part impressed IV of the on the trial as she should not have why court erred when it did she could not in opinion, judge the trial the reasons attorney McDaniel’s as advocate.1 good not disclose what Ms. conscience continue not, however, majority should have breached said her in chambers. She about error, duty loyal representation to her harmless her concludes that this was — -, Whiteside, Scurr, U.S. 105 S.Ct. 744 F.2d Whiteside v. 1326-29 Cf. (1985). Cir.1984), (8th granted sub nom. Nix v. L.Ed.2d cert. doing pends justice, communication to on client an in-chambers on but also system demonstrating operates court should not judge2 and the have fairly.8 by refusing compounded error to re- her appointment. of her court lieve Dasher may stringent rule sometimes bar [Our] *12 case, and was not there was

This a criminal by judges trial who have no actual bias nor speedy-trial imperative, no was there their very and who would do best to any by either or weigh justice hint of contrivance client equally the scales of be- lawyer delay a not otherwise contending parties. per- obtain tween But to in high way available. form its function the best “justice satisfy appearance must of unrung. Tolstoy could Bells cannot be 9 justice.” forget in not stand the corner though imagi- it believing was Even if I am incorrect in that white bear—even stigmatized nary.3 by prejudiced having Ms. was Ms. McDaniel McDaniel was her by private testimony unconstrained case a trier of decided fact who had untempered by record, rules of evidence and cross received outside I information ineradicable agree examination.4 If not from the do not rule harmless error mind, created, least, at judge’s applied. this a situa- should be The issue is not wheth- impartiality might judge’s damaged tion which the er she in fact was but whether reasonably questioned.5 that, litigant been she or other have would believe circumstances, under the a fair trial was judicial disqualification The standard for possible. appearance prejudice of inis person, knowing a is whether reasonable a blight itself on the trial of a case that circumstances, and “under all a real- trial, per- warrants a even if new we were appraisal psychological istic of tendencies suaded the case would have come out and human would harbor weakness”6 no differently. judge’s impartiality.7 trial doubt about the respect system, chambers, legal hearing Public for the as Con- After Dasher gress recognized, judge disqualified the courts have de- should have himself. — Scurr, 713, denied, U.S.-, 424, (8th 2. Whiteside F.2d 714 v. 750 104 S.Ct. 78 L.Ed.2d 1984) (denial rehearing banc), (1983). Cir. of en cert. 359 -— Whiteside, U.S.-, granted sub nom. Nix v. 2016, (1985). Harry 105 S.Ct. L.Ed.2d 298 85 7. Chitamacha Tribe v. L. Louisiana 1157, Co., Cir.1982), (5th Laws F.2d 690 1165 — -, 69, child, denied, Tolstoy cert. When Leo his U.S. S.Ct. 78 3. older broth- 104 (1983); taught permitted L.Ed.2d up be 83 Parliament Insurance Co. v. er him that he would an Hanson, 1069, (5th Cir.1982); imaginary 676 F.2d 1075 Po mountain on certain conditions: Co., City tashnick v. Port Construction 609 F.2d first, These in the were: stand corner and not 1101, 820, Cir.), denied, (5th cert. 1111 449 U.S. think about white I bear. remember how I 78, (1980); 101 22 S.Ct. 66 L.Ed.2d Fredonia tried, stood in the corner and tried and but Broadcasting Corp., Corp., v. Inc. RCA 569 F.2d keep possibly thinking could not from of a 251, Cir.1978), denied, (5th bear____ 257 cert. U.S. 439 white 859, 177, (1978). 99 S.Ct. 58 L.Ed.2d 167 Father, Tolstoy, (1953). My A A. Life of 17-18 Murchison, 133, 138, 110, (7th 4. Morgan, In re U.S. 8. SCA 349 75 S.Ct. Services v. 557 F.2d 113 Cf. 626, 623, 942, (1955); Cir.1977); Hearings 99 L.Ed. 947 Price Broth on S. 1064 Before the Sub- Philadelphia Corp., Improvements ers Co. v. Gear 444 committee on Ma- 629 F.2d in Judicial (6th Cir.1980), denied, 1099, chinery cert. 454 U.S. 102 of the Senate the Judi- Committee on 674, (1981). ciary, Cong., (July, 1971-May, S.Ct. 70 641 1st Sess. L.Ed.2d 93d 1973) 95; Wright, C. & at 13A A. Miller E. Cooper, provides, part: Practice and § 5. 28 U.S.C. Federal Procedure 3541 455 (2d Note, 1984); Disqualification Judges ed. Any justice, magistrate judge, or of the United Courts, & Federal Justices in the 86 Harv.L.Rev. disqualify any proceed- States shall himself in (1973). 736 ing might impartiality in which his reason- ably questioned. Murchison, 133, 136, In re U.S. S.Ct. 349 75 35, 623, Larkin, 47, 625, 942, (1955) (quoting 6. Withrow v. 421 U.S. S.Ct. 95 99 L.Ed. 946 Of- 1456, 1464, (1975); States, 11, 14, Dyas v. 43 L.Ed.2d v. United 348 U.S. S.Ct. futt Lockhart, (8th Cir.), (1954)). 705 F.2d 996-97 cert. 99 L.Ed. 11 so, at least have do he should If he did not all the information Mrs. McDaniel

given influenced her reasonably have might repre- pro either se proceed,

choice attorney had damned who

sented case case. Judicial and her her

both delay, and deni-

management, avoidance are all com- continuances unjustified

al however, are, only means They

mendable. justice done justice; end is an end. That highly done. However perceived to be may have judge trial the able

motivated *13 suf-

been, only Ms. McDaniel who it is not splen- done here. from what was

fers is tarnished. justice

dor COMPANY,

APEX OIL

Plaintiff-Appellee,

v. COMPANY,

ARCHEM

Defendant-Appellant.

No. 84-2107. Appeals, Court of

United States

Fifth Circuit.

Sept.