*4 Both Mrs. Terrell and Dr. Hall are black. HATCHETT, Before RONEY and Circuit trial, Before the case went the district *, Judges, and WISDOM Senior Circuit court dismissed the against claim § Judge. Regents, Board of on the ground of sovereign immunity. It also dismissed WISDOM, Senior Circuit Judge: against Title VII claim the individual de Board Regents of University fendants, ground that they were not System of Georgia appeals judg- from a “employers” within the meaning of the ment for Dr. Anita Lincoln on her employ- statute. empaneled The court jury ment discrimination claim under Title VII decide the against claim Mrs. § Terrell of the Civil Rights Act of 42 U.S.C. and Dr. Hall and instructed it to return an seq. et 2000e through 1978, From 1974 § advisory verdict on the Title VII claim Dr. Lincoln was employed sepa- under four against the Board.2 The jury returned a rate one-year contracts as nontenured verdict for the defendants, individual and professor of home economics Savannah the district court entered judgment accord College, subject State state school verdict, ingly. In its advisory oversight Regents. of the Board of When jury judgment recommended plain contract was not renewed in she against tiff the Board. The district court brought this action in the United States entered its own findings fact and conclu District Court for the Southern District of law, sions granting judgment in accord Georgia, alleging that the decision not to advisory with the verdict. The court offer her a fifth contract racially moti- awarded Dr. Lincoln back pay attorney and white, vated. Dr. Lincoln is and Savannah fees Regents and ordered the integrated, but historically and purge its records of all references to the black, predominantly institution. leading departure.3 events to Dr. Lincoln’s * Wisdom, Honorable trial, John Minor p. U.S. Circuit under Title VII. See 8. Before Circuit, Judge sitting by designa- for the Fifth district court denied a motion the Board of tion. Regents separate trials. complaint Wag- 1. The also named Ms. Diana impracticable 3. The court found reinstatement ner, a black member of the home economics in view of the small size the home economics faculty, as an individual defendant. The claim department and the severe friction that had Wagner voluntarily Ms. dismissed developed between its members and Dr. Lin- before the trial. giving in coln connection with the events rise question concerning to this lawsuit. No reme- requires jury 2. The seventh amendment trial appeal. dies is before us on this damages in an action for but not § 1981 in backpay an action for reinstatement and time Terrell had from that until 1980. Mrs. brought appeal, contend- The Board depart- of the home economics been head judgment court’s ing that the district Mrs. and Dr. amendment, since 1947. Both Terrell ment the seventh against it violated appoint- Dr. Lincoln's Hall recommended theory premised on because it was and at the time that she ment in 1974 knew in- therefore superior and was respondeat was white. the facts as consistent with exonerating the individual defend- Dr. Lincoln en- before long It was ants, The Board also agents. the Board’s both problems with students countered findings court’s contends that the district developed between faculty. Friction Lincoln filed a clearly were erroneous. Dr. Terrell, particular. Terrell in Mrs. Mrs. urging jury’s verdict cross-appeal, well, Hall as viewed themselves and Dr. claim inconsistent with accus- supervisors, while Dr. Lincoln was verdict on the Title VII claim advisory its inde- professional tomed to considerable reject set We all and must be aside. Mrs. Terrell found Dr. Lincoln pendence. appellant and the cross- arguments of instances, particu- insubordinate several appellant judgment and affirm the she a class without larly when moved district court. when failed to Mrs. Terrell and she sulting As inventory. file our discussion required
I. Factual Background elaborate, evi- III will there was Part found, dence, of the district court’s decision Our review *5 any to insubordina- Terrell’s reactions Mrs. against in this case is best understood were exacerbated part Dr. Lincoln’s tion on background goes beginning back by racial bias. Dr. of Lincoln’s career at Savannah State. to throughout by per- began complaining Her career was marked Mrs. Terrell soon friction, with Ter- Dr. about Dr. Lincoln. Dr. Hall particularly sonal Mrs. Hall incapa- rell, and that Dr. Lincoln was by complaints of students convinced and ble, however, he offered her a second faculty some other members. Neither and prob- complaints can be term. The friction nor the attrib- contract for 1975-76 and Terrell professional between Dr. Lincoln Mrs. entirely uted to Dr. Lincoln’s lems continued, in and Mrs. Terrell history or to racial bias. Her at October deficiencies concerning alleged Dr. Hall inade- Savannah seems to establish wrote to State performance. in Dr. Dr. present. quacies elements of both were Lincoln’s with Lincoln and Hall held a conference Dr. When Lincoln Dr. arrived Savannah Terrell, that she and Dr. said Mrs. one-year in College contract ability teaching had neither interest nor in in her the fall of she was middle laboratory try work but that she would background fifties in and had extensive improve. economics, home specifically dietetics. She Ph.D., again Dr. in degrees, including had and Mrs. Terrell wrote to Hall several Lin- recommending that Dr. experience governmental January considerable a new contract. She germane and administrative work to her coln not be offered May year, a third letter in of that familiarity area of with cer- wrote expertise. Her time, dismissal, recommending and at this practical elementary aspects of her tain begun complain well subject, particularly those associ- students as had Dr. never- inadequacies. courses and labora- Dr. Lincoln’s Hall introductory ated with cautious, instruction, hoping the situa- was limited. At the time theless remained tory arrival, improve. He Dr. Lin- her her were Mrs. tion would offered supervisors term but Hall. Dr. Hall been a contract for the 1976-77 Terrell and Dr. had coln been department had division technical sciences wrote her head disappointed” performance until position “badly since He served in that im- a “tremendous expected and that he from 1977 until March 1978. again reappoint- as condition to provement” acting president He was of Savannah State 10,1977, A On place ment. second conference took dur- March Dr. Anthony wrote to summer, ing again at which Dr. Lincoln Hall, Dr. recommending “immediate termi- improve. In the fall promised nation” based on “incompe- continued, complaints student and Dr. Hall tency and lack of accountability”. Dr. Hall visited several of Dr. Lincoln’s classes to still felt the situation could be im- investigate performance. As he testi- proved without such drastic action. He trial, fied at he observed several serious asked Anthony sugges- withdraw her deficiencies but took no immediate action. tion, but she refused. Her letter then be- In February several students came the basis for formal action. department signed home economics a peti failed, After attempts at mediation a fac- tion calling for Dr. Lincoln’s removal. The ulty committee was appointed to review petition bore 37 signatures and asserted nu charges. student The committee consisted merous serious inadequacies Dr. Lin part. coln’s of Ms. allegations Wagner, centered on Diana a black assistant methods,4 delinquency teaching a smell professor economics, of home and two facul- of alcohol on Dr. person, and ab ty members from disciplines, unrelated allegation senteeism and lateness. One also Millege Gaye Luetta and Mrs. Hewitt. The concerned Dr. Lincoln’s insubordination to committee testimony heard from Dr. An- court, ward Mrs. Terrell.5 The district rely thony and, and nine students in a letter to III, on evidence we will discuss in Part president of the college, recommended found that appeal “direct and clear that Dr. suspended Lincoln be for the re- Terrell, petition is racial” and that Mrs. mainder of the term and offered no renewal summer, who had previous retired the or, alternatively, she im- dismissed well, perhaps other members mediately. president, Dr. Prince Jack- played originating some role in it. Dr. Hall son, then notified Dr. Lincoln that she was later petition discovered that the had been being immediately, terminated although, as typed in his office on college stationery. testified, he he considered the case prompted by *6 Apparently petition, the Dr. her “weak”. suspended Hall Dr. Lincoln from teaching 18, duties on February stated, 1977. He Dr. appealed Lincoln termination, her and however, that he was still trying keep to a faculty second committee her reviewed the situation under control. On February appeal. interviewing After students and 24, he held meeting a with Dr. Dr. faculty, the committee found incompe- her Anthony, Teresa a faculty white member tent, a although minority report questioned acting who was department as head follow- the sufficiency the evidence. The com- retirement, Mrs. Terrell’s and Dr. mittee also criticized faculty unnamed Byers, Thomas College Dean of the and Dr. exploitation members their of student Hall’s supervisor. specific immediate Only unrest and their petition involvement in the charges concerning perform- Dr. Lincoln’s for Dr. Lincoln’s removal. The committee ance discussed, teacher were as Dr. recommended that Dr. be given Lincoln Hall considered charges racial an inappro- temporary employment, allow op- to her an priate basis for action. Dean Byers also resign. to portunity Shortly meeting held a after the com- with Dr. Lincoln and stu- dents, recommendations, an mittee ineffective effort to made its “restore Dr. Hall confidence”. Jackson, wrote to urging President specifically, petition alleged 4. More that Dr. petition The incident to referred in the Lincoln failed to order books and other materi- cerned a letter from Dr. to Dr. Hall als, projects proper stating failed to return with evalu- that Mrs. Terrell had misinformed her ations, adequate held laboratories without requirements lec- students about certain for intern- preparation, inadequately prepared ships. ture classes, papers, gave lost examination unwar- high grades inadequacy ranted to offset in in- struction, improperly and dressed for laborato- ries. according to rules of common would be than of this institution integrity “the argues Regents The Board were retained. law”. if Dr. Lincoln threatened” imper- it on rests judgment recom- acting the committee’s Before on by facts re-examination of found missible mendation, to in- Jackson decided President against Mrs. 1981 action jury sur- on his own the circumstances vestigate According and Hall. Terrell He petition. rounding the student Board, on Title claim VII judgment only had been faculty members not theory respondeat predicated on pressure involved but had exerted unfair illegal by and on discrimination superior sign. He concluded students agents. Be- its individual defendants as unfairly and did Lincoln had been treated exonerated the individual jury cause the He therefore incompetent. believe defendants, argues, the 1977-78 contract for offered her new not, consistently with seventh could given posi- a new Dr. Lincoln was term. amendment, liable on principal hold their tion, however, teaching. no which involved theory. office, assigned to the Dean’s She was updating responsibility for An for reinstatement action government grants. securing handbook and equi Title VII is nature backpay under informed Dr. Lincoln President Jackson rights no under the sev table entails would review her the end he status Nakshian, Lehman v. enth amendment. At that time year. of the 1977-78 school 156, 163-64, S.Ct. U.S. generated if she she would be retained 548, 555-56; 2703-04, Johnson L.Ed.2d funding own pay outside sufficient Inc., Cir.1969, Highway Express, Georgia salary. 1122, 1125. damages An action for legal nature under § arrived, Dr. the time for review When jury on demand. and must tried acting president, Hall taken over as but Whiting University, v. Jackson Jackson had left him instructions n. When 122 & 4. position. of Dr. Lincoln’s concerning review equitable togeth actions are tried legal Dr. Lincoln to Accordingly, Dr. Hall asked legal er, right action of her work for the accounting submit an issues to both. encompasses the common not comply term. Dr. Lincoln did 1977-78 Loether, 1974, U.S. See Curtis request, apparently with the because she n. 1009 n. S.Ct. opinion felt in view of Hall’s 11; Queen, Inc. v. Dairy integrity she 267 n. threat 470-73, Wood, unlikely it was that he would con- college, *7 896-97, 44, 47-48. When a Dr. 8 L.Ed.2d favorably. sider her Lincoln did not contract, Hall, jury to on an party right a and Dr. has the a trial apply for new claim, receiving legal his upon response request judge no to issue involved in a accounting, decided not to offer her of determination jury’s an course bound disposition one. The that “even found issue as it affects his of complied had Lincoln with Dr. Hall’s equitable Dr. claim. accompanying an request, she would not have been contin- According Regents, to no to ued”, because “there is reason believe in this exonerated the jury when the case funding generated had ... [she] action, defendants in the 1981 § individual requisite amounts”. the equitable it the critical issue in decided II. The Amendment Seventh Board, against since the Board’s action argument liability'could only wrong follow from the
We consider first the Board’s judgment it violated the a ver against agents. Undoubtedly, ful acts its agent holding an while his exonerating seventh amendment. That amendment dict pertinent part, in fact his would be an provides, principal “no liable for actions questions. of factual by jury, tried shall be otherwise re-exam- inconsistent resolution States, Ma- Foundry and any ined in Court of the United See Barnes v. West Point
935 532; Cir.1971, Co., chine 5 Hall, 441 F.2d Dixie Mrs. Terrell or Dr. Hall. Dr. as Poston, Cir.1948, v. Express Ohio Co. president acting college in 446, 448. however, argues, F.2d Lincoln the final opportunity offer Dr. present the district court in the case new court, however, contract. The district legitimately independent could make factu Jackson, whose liabili- al findings jury’s inconsistent with the ver ty jury 1981 action never § in According dict 1981 action. to Dr. § sidered, responsible was in fact for Dr. Lin- Queen, Dairy governs Inc. v. Wood departure coln’s from Savannah State. The legal equitable cases court reached this conclusion two routes. single claims tried defendant are First, the district court found that Dr. together; binding it is not here because reject Hall did not application Dr. Lincoln’s Regents, Board of as a party equita contract, for a new because she never sub- only, right ble action has no constitutional application. mitted formal The court fur- jury any to a trial on issue. ther found that intolerable conditions sur- We know of no case adopt either rounding employment at Savannah or ing rejecting the distinction Dr. Lincoln had prompted to apply not urges upon us. We be leave the choice conditions, these for which President tween these alternatives another yet responsible, Jackson amounted “con- case, however, because the case before us discharge”. structive Bourque v. Pow- require does not us to make it. See Ash Co., Cir.1980, ell Manufacturing Electric wander Tennessee Valley Authority, 61, 64-65; 617 F.2d Young v. Southwestern 346-47, 466, 483, Association, Savings Cir.1975, and Loan (Brandeis, J., 80 L.Ed. concurring); 509 F.2d Specifically, 143-44. Co., White v. Pipe Foundry United States & court found that 646 F.2d 206. President Jackson had The district re- judgment court’s this is not incon moved Lincoln from teaching responsi- sistent with the verdict on during § bilities the 1977-78 hope term in the claim. that she not seek continued employ- ment, assignment during that her that term We no have doubt that a judgment hold insignificant consisted of tasks that had no principal liable in VII a Title case of training experience, relation to her or type this would be inconsistent with a ver put that he her future in the hands exonerating dict under employ § who, knew, Hall, as he ees from considered Dr. Lin- whose actions Title liability VII This, derives.6 coln a threat “integrity of the insti- not the case here, because the tution”. Accordingly, district court did not the district court predicate liability the Board’s on the actions concluded that Dr. Lincoln’s failure to com- When, plaintiff predicates 6. liability These similarities do exist when liability treatment, disparate premised disparate Title VII on under Title isVII legal impact facially elements the claim are employment prac identical of a neutral Whiting tice, those of a claim under disparate 1981. rather than on treatment. Univ., Cir.1980, cases, Jackson State such a Title VII violation can be estab 121; see also Scarlett v. Seaboard Coast Line showing discriminatory lished without a mo R.R., Cir.1982, plain A tive. See note A violation of § how *8 asserting prove tiff ever, either claim must intention premised theory cannot be on this alone. Pennsylvania, Birmingham al discrimination. See Baldwin v. Building General v. Contractors Assoc. of Educ., Cir.1981, 950, Bd. 5 954. 1982, - U.S. -,------ & n. plaintiff either the can create rebuttable 8, 3141, & n. 3146 73 L.Ed.2d presumption by proving of discrimination the 844-45 & n. 8. We thus have serious doubt prima elements of facie case as in discussed that exoneration of a § defendant under 1981 respective Part III. Id. at 955. bur And the liability would be with inconsistent of the same plaintiff pri of dens the and defendant after a principal defendant or his VII under Title on a ma facie case is in established are the same theory. disparate impact both cases. See McWilliams v. Escambia County Bd., School 331. Because find be set aside. we do not that “resulted from application a renewal
píete need inconsistently, the acted we not she in effect reasonable her belief separate, nonbinding ad- decide whether rejected already”. been verdict can render inconsistent and visory Alternatively, district court found the a case commit- jury’s void the resolution of may to Dr. Hall have that even the extent binding ted to it for determination. for Lin responsible Dr. ultimately been verdict and the Although advisory the nonrenewal, acting he was coln’s the Title claim are not judgment on VII President Jackson. guidelines by established with as a of law the inconsistent matter to opportunity of had the Regardless who claim, our inquiry on the verdict § contract, court Dr. a new offer Lincoln does end with this conclusion. The not that it not have been renewed found would if apparent consistency evaporate to fulfill President inability because of support finding critical evidence did not requirements. The court found Jackson’s constructively dis- President Jackson had generated no evidence that Dr. Lincoln Dr. Lincoln. We must therefore charged salary anoth enough funding pay to for sufficiency the evidence on of consider for not year, er and Dr. Hall’s stated reason of We do so the course our point. in offering her a contract her failure new on the general review of the evidence Title demonstrate she had.7 The district VII claim. thus that on either rationale Sufficiency a direct Evidence Dr. Lincoln was not renewed “as III. of the consequence steps taken Dr. Jackson”. of the tripartite division bur Regents “clear The court held the Board parties in a Title assigned dens VII accountable these actions under the ly case first in McDonnell articulated respondeat superior.”8 doctrine Douglas Green, Corp. reasoning
The district court’s not S.Ct. L.Ed.2d most harmonizes its the verdict judgment Supreme clarified Court in recently also on the claim but establishes Affairs Department Community Texas § jury’s that the verdict consist- advisory Burdine, U.S. S.Ct. may easily ent with that We plaintiff alleging dispa verdict. thus 207. A Dr. dispose cross-appeal. Dr. rate in Title treatment an action under VII argues jury’s that the overall reso- has the trier persuading the burden lution of the was inconsistent and re- fact the defendant has committed in quires that verdict on 1981 claim Id. at tentional discrimination.9 Specifically, policies Dr. Hall testified as follows: or which would in racial 7. result discrim- reply against plaintiff, I did “Since not receive from her con- directed where the ination done, cerning what and I policy she had had made purpose intent of or or that conduct request carry order to out mandate of racially discriminatory”. judgment Jackson, I did not offer her a contract for the plaintiff rested on the Title VII claim on (Tr.) year.” Transcript next Trial 298. of the racial Jackson’s awareness component in Dr. Hall’s and Mrs. Terrell's ob- elaborate, 8. As our in Part III will discussion Lincoln, jections their own not on aware- disposition the district court’s of the case rest- component. p. ness of that findings ed to some Terrell extent on Mrs. racially and Dr. Hall biased were plaintiff disparate in a The burden pos- finding Lincoln. A these defendants in a case treatment case differs from that in- animus, however, sessed some racial predicated disparate impact. volving a claim on necessarily judgment with the inconsistent “employment Disparate impact cases involve jury may their favor in 1981 action. The the § practices facially in their that are neutral treat- liability absolved have them groups in fact ment of different but fall ground that their role was not determinative harshly group challenged one another employment more than decision or that necessity. justified opposition cannot be business whether mis- their to Dr. discriminatory not, by any guided motive ... is not re- Proof of or was not motivated theory.” quired disparate impact racial in- under a In- scious animus. As district court *9 States, claim, “pur- United structed the 1981 ternational Bhd. Teamsters v. 324, 15, 1843, 1977, poseful racial discrimination” means “conduct 431 U.S. 335 n. 97 S.Ct.
937
215;
1093,
case,
67
Pouncy
plaintiff
prove
at
L.Ed.2d at
must
S.Ct.
these ele
America,
Co. of
5
preponderance
Prudential Insurance
Cir. ments
aby
of the evidence.10
1982,
795,
Although
799.
this
Burdine,
252-53, 101
668 F.2d
ulti
450
at
U.S.
S.Ct. 1093-
plaintiff
mate burden
with the
at
remains
94,
all
may,
treatment,
facie
prima
disparate
case
A
facie
prima
case establishes a
of pro
shift
to the defendant
the burden
presumption of discrimination and shifts
ducing
nondiscriminatory
evidence of
in
to the second of its three
analysis
steps,
252-56, 101
Burdine,
tent.
450
at
U.S.
S.Ct.
rebutting
pre
burden of
1093-95,
at
that he
a member
a minority,
that he
If the defendant
fails to produce
job,
qualified
for his
that he was dis
sufficient evidence to raise
genuine
issue
charged, and that
replaced by
he was
fact,
plaintiff
then the
prevail
will
with
member of
majority
Whiting,
race.
any
out
further showing.
Id. at
121;
Prattco,
F.2d at
Marks v.
S.Ct. at
939
“persuasive
race
(1971).
evidence
Procedure
2585
This
deferential
Specifically,
imposes
standard of review
predominant
factor”.
an especially
heavy
appellant
burden on the
separated
in a
court
found that Dr. Hall had
this,
such as
in which the evidence
alleged
charges
racial
academic
largely testimonial, and the district court
early in
process
deficiencies
the review
the advantage
had
of observing the witr
rejected
that President
Jackson had
evaluating
nesses and
their credibility first
It
pure
allegations.
academic
also found
Edwards v.
See
Gladewater Inde
hand.
“a significant
race was
factor
District,
pendent
School
Cir.1978,
5
572 F.2d
impression
initial
of
which de-
[Dr. Lincoln]
496,
Galena
(per curiam);
497
Corp.
Oaks
v.
veloped in
Depart-
the Home Economics
Scofield,
217,
5
218 F.2d
219. Our
ment”,
develop
“the basis for efforts
to
to
deference
the district
is
not unlim
thereafter”,
sentiment
her
ited, however, and we will hold a finding of
and “the focus of
student unrest
clearly
fact
if
erroneous
the record lacks
created
According
thereafter”.
to the dis-
substantial
evidence to support
it. court,
petition
trict
the student
awas
“ma-
v.
Manufacturing Co.,
Ward Hobart
5 Cir.
jor force” in
decisions
leading
1971,
1176,
450 F.2d
if
1182-84. Even
sub
Lincoln’s termination. The court concluded
stantial
evidence supports
finding,
a
we
race,
that because
of
Dr. Lincoln’s fail-
must consider the evidence
aas whole and
ings
harshly
were treated more
than similar
set the finding aside if we are “left with the
in a
failings
black teacher would have been
impression it is not the truth and
right
contract
have been
re-
case”. W.R.B. Corporation
Geer,
v.
5 Cir.
newed but for the fact
that she is white.
denied,
1963,
750, 753,
cert.
313 F.2d
1964,
'may
We
not
set aside
dis
841,
78,
379 U.S.
85 S.Ct.
cation
standard did not
finding
clearly
unless that
erroneous.
“taint or infect” the district court’s factual find-
view,
recently
and it is now
rejected
and firm conviction that
left with a definite
may
William-
find
has been committed’
the law that
this Court
reverse a
mistake
Brown, Cir.1981, 646
F.2d
son
if the
of intentional discrimination
curiam)
United States
(per
(quoting
erroneous.
finding
clearly
Pullman-Stan
Co., 1948,
Gypsum
333 U.S.
United States
273, 285-90,
Swint, 1982,
dard v.
*12
542,
364,
525,
746).
92
395,
L.Ed.
68 S.Ct.
1781, 1788-91,
66,
72 L.Ed.2d
78-
102 S.Ct.
81;
v. M.D.
Hos
see also Mitchell
Anderson
held,
long
in a
line of
has
This Court
Cir.1982,
Accordingly,
5
Concerning prima the Dean’s Dr. Harper, facie the Board Sara who is only Doug- black, addresses two of the McDonnell slot”, moved into “Dr. Lincoln’s id. assumption employees College” complaint the that Dr. Lincoln’s its at Savannah State with- alleged only the of Dr. actions Hall and Mrs. specifying out the as individual defendants the grounds holding Terrell as the Board of question. employees in The district in- court’s Regents liable and did not ask the court to find jury equally general. structions to the were that President Jackson had discriminated Regents argue does The Board not that the against We her. need not consider whether the exclusion President Jackson as a named de- findings district court must limit its factual to precludes fendant the district hold- court from recovery by plaintiff, theories advanced the actions, liable for his and see it we no because in this case believe the has we Board respondeat inop- superior to hold that is reason theory recovery interpreted Dr. Lincoln’s too agent in Title VII erative cases unless the is narrowly. Although Original Complaint her party. amade “through the Board of accused discrimination HALL, agents, its EVA- Defendants W. CLYDE testimony, course, directly 18. This contra- TERRELL, WAGNER”, NEL alleged generally and DIANA also it during dicts the Board’s critical assertion that discharged “so that she year, department Dr. Lincoln’s last the had five provide vacancy as that was filled with a Although possible is members. it that Dr. Lin- white, Black Female” and “because she was nominally depart- coln was a member of the and for reasons for which Blacks are not termi- during 1977-78, ment it is established allegations directly relating nated”. These performed depart- duties that she no within the the the termination itself did not mention ment, and there is no evidence that the home agents named defendants as or otherwise. budget support faculty could economics five Moreover, complaint, amended the year, for more than one when un- members Regents first-quoted of allegation, eliminated any required usual circumstances it. In only indi- then included testimony Jackson’s is not so inher- President point, vidual liability At this defendants. Board’s ently we incredible that can hold district predicated more could addition, clearly allegations choosing general to credit erroneous that followed. In plaintiff’s proposed charge on Title it. through “acting VII claim referred to the Board see credentials, p. testimony that and testimony supports finding This black, whose on appeared and in of three students names replaced petition, we that Lincoln was either conflicting testimony, the absence of teacher”, 98,101, “just other Tr. or finding clearly any cannot hold erroneous. like alleged, bad as the petition otherwise not as finding district its court based id. at 113. to teach qualified Dr. Lincoln was at Savan- asserted rea testimony finding nah Jackson’s Board’s against con that he the case sons for nonrenewal Dr. Lincoln’s considered court, id. at weak, as credibility, he found her “as tract lacked see there,” above, competent p. we have out noted relied both on Dr. anybody id. testimony own that he found displayed that she had Jackson’s concerning defi “beyond ordinary allegations cern for academic students id. call”, findings is ciencies lack merit and on Although there considerable sentiment petition faculty evidence the record that Dr. Lincoln the student good lacked a with her students and which contributed rapport discharge, influenced significant ways, was deficient her constructive were in other findings in justify declaring evidence our racial considerations. These its clearly language petition the trial court’s choice to turn rested on erroneous elf,19 testimony. credit President Jackson’s This evidence members of circulating particularly testimony participated preparing so because *14 petition,20 faculty the and evidence that impressive bolstered both that, type- although petition 19. consisted of 20. Mrs. Terrell testified she was student four time, written, single-spaced pages, alleging she was numer- retired at the in communication failings petition, preparing ous as a with the Tr. Dr. Lincoln teacher. The the students “gave support” signing, allegations substantive tory paragraphs, followed three introduc- for its id. at and Corley, the second of which read: 172. who is and a mem- Martha black faculty, ber of the home testified economics group, is not As a we feel that she interested likely petition language of the was not teaching superior feels Black us and students, 108, although Professor id. Spring students and Black institutions. In English Milledge, a teacher who chaired complained Mrs. Quarter first committee that reviewed Dr. Lincoln’s sta- tus, Lumpkin way had come all down she contrary, id. at 207-08. Dr. testified Michigan, “you Lansing, help here from signed Jackson testified that students who people” appreciat- and not her services were petition they one-by-one him had left class told “you people” complaint ed. The was men- sign to student, in a teacher’s Id. at 326. One it office. again during tioned after Fall Quarter black, told him black teacher that a teaching Dr. Hall had held observed and grades up had of her she had held one because type a conference. This of attitude is insult- id., petition, signed not student and another ing. Other have been from racists removed signed told him graduate” it wanted to she because “she constantly College. Savannah She bel- any going and “wasn’t to take plant physical Department’s ittles the equipment. and its chances”, at 327. id. President Jackson In Summer 1975 when Quarter purported sidered it “obvious” that the student inventory, she was to take stated forced she petition. leader had not drafted Id. inventory taking that the was not worth evidence, equipment all the In should thrown to this it is relevant addition allegation petition marsh. the first substantive (emphasis added). dispute Plaintiffs Exhibit No. concerned a between Dr. Lincoln Terrell, any district court appeal” that the “direct and clear Mrs. rather than dissatisfaction (R.) petition performance, of the was racial. Lincoln’s classroom see Record out, Regents points readily apparent 171. As the note It is not how this Board of 5. petition alleging that a teacher is racist does incident to the attention of the students. came concerning apparent dispute purport not on its face to call for her removal Nor is it how the inventory, portion because she evidence, however, There is to in of the is white. considerable referred possessed petition quoted that Dr. Lincoln in note came to their atten- 107, 126, prejudice, e.g., no racial Tr. and that tion. Terrell testified that she did not Mrs. Finally, peti- signers petition some of the did believe she inform them of it. Tr. racist, language e.g. was a at 113. The tion that Mrs. Terrell id. district included may deep- referring reasonably thus inferred used to Dr. such as “an- have that a archy”, significance allegations terminology that witnesses er of rac- and other rested Terrell, e.g., Mrs. id. at ism. associated with members, Mrs. Terrell and Dr. particularly The evidence in this as the Hall, it, possessed racial animus. The district court described was “often con confused, tradictory, points and at testimony quite court credited that Mrs. Terrell sketchy”. R. 183. The district court found had referred to Dr. Lincoln as “this white intentional discrimination but was “unwill lady came thinking down here she [who] ing to conclude ... that any parties retirement”, going get some easy were necessarily overtly or intentionally (R.) 169 (quoting 129), Record Tr. that Dr. Id. racist”. It held President Jackson re Hall had told another faculty black member sponsible for Dr. Lincoln’s constructive dis that he people”, id. white at 170 “hate[d] charge, yet it did not find that possessed he 104), (quoting Tr. and that con latter any discrimination, racial bias. Intentional sidered race an “important consideration” possible without racial bias as head, in choosing department id. at 178 n. such.23 The district court found that race 7 (quoting 133). evidence, Tr. This com impermissibly influenced the faculty and bined with President Jackson’s testimony prompting student actions President Jack that Dr. Lincoln was no worse than most son to put Dr. Lincoln in such position State, teachers at Savannah supports she not seek a fifth contract. finding that racial concerns a role in played The evidence also supports finding both faculty student dissatisfaction Jackson, particularly in view of with Dr. Lincoln. Regents, The Board of his own assessment of Dr. Lincoln’s abili on appeal, seeks to discredit the evidence of ties, was aware that race was a determina faculty petition involvement in the student tive factor in those faculty and student part and racial bias on the memb faculty actions, whether or not those calling for her But it can point ers.21 to no testimony in “overtly ouster were or intentionally rac contradicting record the evidence of acting ist”. he charges knew to be testimony, involvement and no motivated, racially President Jackson inten apart denials of Mrs. Terrell and tionally discriminated. The district court *15 Hall, 176, 256, Dr. see Tr. they did not found from the evidence that Dr. Lincoln make the statements attributed to them.22 sought would have and received new con We cannot hold the district court clearly tract, for her but race. We cannot say we choosing erroneous for to believe disinter are “left with a definite and firm conviction ested witnesses parties rather than committed”, that a mistake has been United action. Gypsum Co., 1948, States v. United States appellant’s argument Clinic, 21. Much of the consists 23. See Robbins v. White-Wilson Medical Inc., Cir.1981, 1064, of an effort to establish that Dr. Hall acted out vacated and of remanded, 1982, no racial animus when he 969, chose not to offer 2229, 456 U.S. 102 S.Ct. court, Dr. Lincoln a fifth contract. The district Robbins, upheld In L.Ed.2d 842. this Court however, did not find that Dr. Hall was so clearly as not erroneous the district court’s motivated at the time and did not consider the finding alleged the individual to have dis- question. finding The court’s that President “possessed criminated no racial bias or animus responsible Jackson was for Dr. Lincoln’s reversed, however, as such”. The Court the inquiry structive nonrenewal made into Dr. finding district court’s “ultimate” that no inten- pp. Hall’s motives irrelevant. See 10-11 17& pp. tional discrimination had occurred. note 17.’ Our task is thus to determine Supreme 1560-1561. The Court remanded the clearly whether the district court in erred find- light case for further consideration in the of played impermissible that race an role in Pullman-Standard, Swint, 1982, Inc. v. 456 U.S. President Jackson’s actions. 102 S.Ct. and on remand, upheld, “clearly this Court erro- According to Dr. Mrs. Terrell had review, finding neous” the district court’s many also stated on occasions that “Dr. Antho- occurred, no intentional discrimination ny really of one us.. .. sister’s skin is [H]er Clinic, Inc., Robbins v. White-Wilson Medical (Dr. almost as dark as mine.” Id. at 28. An- thony Id.) is of Lebanese extraction. Mrs. making Terrell denied this comment as well. Id. at 177. Additionally, majority’s action. under the 92 L.Ed.
333 U.S. found liable holding, principal may the 746, 766.24 agent with- based on acts of the unnamed the principal out notice to the any CONCLUSION suspect. actions are The agent’s unnamed judgment plaintiff for the jury’s was the judge by in this case bound the Re- against Title VII claim Board of the agent no of determination that named jury is neither inconsistent with the gents discrimi- Regents guilty Board of a nor erro- clearly verdict on the 1981 claim § natory practice. neous on basis of evidence before complaint party Dr. names as verdict jury district court. The Hall, Dr. Regents, defendants the Board inconsistent, no reason set it and there is Terrell, Ms. Nowhere in Wagner. Mrs. and judgment of the aside. Accordingly, to be sought complaint liability respects district court is AFFIRMED. in all the Board for the acts of imposed on this, the trial court spite Jackson. HATCHETT, Judge, dissenting: Circuit impose and majority liability here (1) majori- I dissent for reasons: two by of acts performed on the basis effect, Queen, ty, Dairy overrules Inc. v. law- agent the Board not named in the Wood, 8 L.Ed.2d S.Ct. suit not defended at trial. This (1962); (2) major- the trial court and Queen Dairy the sort of mischief precisely ity discriminatory select as a act one time- Moreover, curb. if the discrimi- intended to statute, ousts by barred both courts natory liable is act that renders the Board jurisdiction. Jackson, jurisdiction then no existed Title VII re- district court. opinion liability finds majority complaint quires aggrieved persons to file a following Regents Board of days within after the the EEOC theory advanced the district court that alleged employment practice oc- unlawful Jackson, liability jury “whose 2000e-5(e). April curs. 42 On U.S.C.A. § considered, 1981 action was in fact never 1, 1977, Dr. Lincoln Dr. Jackson notified departure for Dr. Lincoln’s responsible memo she was terminated for being theory, the ma- Savannah State.” On cause. letter Dr. Lincoln on A formal holding Dairy jority emasculates April 25, informed her of this course majority correctly Queen. Although the 1, 1977, June another letter action. On legal equitable recognizes when Lincoln of from Dr. Jackson informed Dr. together, right actions are tried for her termination. Because reasons encompasses action legal 25, 1977, date April date is law the *16 both, holding provides common its issues alleged employment unlawful which Dairy the rule a rationale occurred, Dr. Lincoln should have practice Queen may be avoided. 22, 1977, to EEOC October notified the today plain- The rule announced instructs There day come within the 180 limitation. Title jointly tiffs in instituted VII record that an nothing in the to indicate actions, Queen Dairy may § days EEOC within 180 complaint filed failing to name one of simply avoided discriminatory em- alleged of Dr. Jackson’s If agent defendants in suit. § good A reason exists ployment practice. in the agent one, defendant named record; no other absence action, judge case, the trial is free to find in this ever considered judges than the agent thereby giving acts rise facts as unnamed Dr. Jackson’s actions „ to this render the liable Title VII lawsuit. principal point mentioning. charged As jury, worth we consider We note with re- earlier, advisory verdict, verdict turning advisory apparently we have discussed reached by any advisory impeached purported Although inconsisten- is not the same conclusion. cy exonerating strictly Mrs. Terrell our with the verdict verdict is not relevant review decision, p. 936. not influence our Hall. does and Dr.