Jаnice Hargrove Warren v. Mike Kemp, in his official capacity as a Member of the Board of the Pulaski County Special School District and in his individual capacity; Linda Remele, in her official capacity as a Member of the Pulaski County Special School District and in her individual capacity; Shelby Thomas, in his official capacity as a Member of the Pulaski County Special School District and in his individual capacity; Alicia Gillen, in her official capacity as a Member of the Pulaski County Special School District and in her individual capacity; Eli Keller, in his official capacity as a Member of the Pulaski County Special School District and in his individual capacity; Brian Maune, in his official capacity as a Member of the Pulaski County Special School District and in his individual capacity; Pulaski County Special School District
No. 22-2067; No. 22-2169
United States Court of Appeals For the Eighth Circuit
August 22, 2023
GRUENDER, KELLY, and GRASZ, Circuit Judges
Before GRUENDER, KELLY, and GRASZ, Circuit Judges.
GRUENDER, Circuit Judge.
After being passed over for a superintendent role, Dr. Janice Warren sued her employer, Pulaski County Special School District (“PCSSD”), and its board members, for discrimination and retaliation in violation of Title VII and
I.
Dr. Warren works for PCSSD. PCSSD has been under federal court supervision since 1982 when the predominately black Little Rock School District sued the predominately white PCSSD, North Little Rock School District, as well as the state
In 2011, the district court found that PCSSD was not in compliance as to facilities because it had “devoted a disproportionate share of its facilities spending to predominantly white areas.” Little Rock Sch. Dist. v. Arkansas, 664 F.3d 738, 753 (8th Cir. 2011). PCSSD then decided to build a new Mills High School in a predominantly black area and to convert Robinson High School to a middle school in a predominantly white area.
In 2012, Dr. Warren was hired to be the director of PCSSD’s elementary education program. A year later, she also became the interim assistant superintendent for equity and pupil services. Then, in 2017, the PCSSD board (consisting of Alicia Gillen, Eli Keller, Mike Kemp, Brian Maune, Dr. Linda Remele, Shelby Thomas, and Tina Ward), hired Dr. Warren to be the interim superintendent for one year. Her contract stated that afterward, she would return to her previous position as assistant suрerintendent for equity and pupil services.
At the end of August 2017, Dr. Warren was notified of significant differences between the construction of the Robinson Middle School and the Mills High School. For example, Robinson’s weight room was 2,700 square feet larger than the one at Mills. And Robinson had theater-style padded seats in its basketball arena while Mills had “glorified folding chairs” in its gymnasium.
After investigating, Dr. Warren called the board members and PCSSD’s attorney in the desegregation case to notify them of the differences. An upcoming status hearing in the ongoing desegregation case had already been scheduled for early September, so PCSSD’s attorney updated PCSSD’s status report to include information about the differences in the facilities. After the report was filed, tension developed between Dr. Warren and some of the board members. For example, some board members alleged Dr. Warren revised and submitted the status report without them seeing it, and Dr. Remele was upset about the status report being published in the newspaper.
Before Dr. Warren’s interim superintendent contract expired, the board began to search for a permanent superintendent. There is conflicting evidence about whether the search began before or after the September status update. In any event, it was after the status update that the board hired Ray & Associates, a national school-executive-search organization, to help find a permanent superintendent.
Dr. Warren applied for the permanent superintendent position. Nine top candidates, including Dr. Warren, were selected for the board to review. After reviewing each candidate’s video presentation and application package, each board member completed a “consensus-building matrix.” Ray & Associates then ranked the candidates using the collective matrix scores, and the board chose three finalists to interview. Dr. Warren was not a finalist, though no one disputes that she was qualified for the position. Dr. Warren believes she was not a finalist because Gillen and Dr. Remele scored her very low when completing the matrix to bring her overall score down. Ultimately, the board hired someone else to be the superintendent, and Dr. Warren returned to her prior position.
damages, punitive damages, pre- and post-judgment interest, and other equitable relief. The defendants moved for summary judgment, arguing that Dr. Warren did not engage in protected conduct for her retaliation claims. Their motion was denied.
At trial, the defendants moved for judgment as a matter of law, raising the same purely legal questions as at summary judgment. Their motion again was denied. The jury found in Dr. Warren’s favor only on her Title VII and
Dr. Warren asked to be reinstated, for front pay, for an order to increase her salary, for pre- and post-judgment interest, and for other equitable and declaratory relief. The defendants then renewed their motion for judgment as a matter of law on the protected-conduct issue. They also moved, in the alternative, to alter or amend the judgment, arguing that punitive damages cannot be awardеd against Dr. Remele and Gillen. As to Dr. Warren’s motion, the district court denied her request for front pay, additional back pay, and other equitable relief, but it awarded her pre- and post-judgment interest on her lost wages and benefits. As to the defendants’ motion, the district court upheld the jury’s verdict and affirmed the award of punitive damages. The defendants appeal the denial of their motion for judgment as a matter of law. Dr. Warren cross-appeals, renewing her requests for increased back pay, front pay, and reinstatement.
II.
We begin with the defendants’ motion for judgment as a matter of law. We review the district court’s denial de novo, viewing the evidence in the light most
favorable to the jury’s verdict. Wedow v. City of Kansas City, 442 F.3d 661, 666 (8th Cir. 2006). Judgment as a matter of law is appropriate if there is no “legally sufficient evidentiary basis” for a reasonable jury to find for the non-moving party.
The jury found in Dr. Warren’s favor for retaliation. Because the jury instructions did not distinguish between the Title VII and
Title VII bans discrimination with respect to “compensation, terms, conditions, or privileges of employment, because of [an] individual’s race, color, religion, sex, or national origin.”
Section 1981 provides that all persons shall have the same right to “make and enforce contracts . . . as is
2013); see CBOCS West, Inc. v. Humphries, 553 U.S. 442, 457 (2008) (holding that a plaintiff may bring a retaliation claim under
To establish retaliation under either Title VII or
The defendants argue that judgment as a matter of law is appropriate because Dr. Warren’s reporting of the disparity in the facilities does not qualify as a protected activity, she did not suffer an adverse employment action, and there is insufficient evidence to find that she was not hired as superintendent because she reported the disparity in the facilities. We conclude that Dr. Warren did not engage in a protected activity, so we need not reach the defendants’ other arguments.
We and other courts have held that an employee engages in a protected activity under
they are one. Dr. Warren responds without arguing that she has separate protected-activity theories for each claim. We therefore accept the parties’ invitation to treat the claims as one. So we focus on whether her conduct is protected under Title VII. If it is not, we vacate the jury’s verdict in her favor on both retaliation claims.
We conclude that Dr. Warren did not engage in a protected activity because she did not report an underlying discriminatory employment practice. Dr. Warren does not argue that her report itself was about an employment practice. Rather, she argues that making the report was a required employment practice, so she engaged in a protected activity.
But simply performing one’s job duties is not itself a protected activity under Title VII; a plaintiff must oppose a discriminatory employment practice. Her case is indistinguishable from Bonn and Evans, where we held that a plaintiff did not engage in a protected activity when opposing conduct that was not itself a discriminatory employment practice. Bonn, 623 F.3d at 591-92; Evans, 65 F.3d at 101. Even if Warren was required as interim superintendent to report the disparity in the facilities, this conduct did not constitute opposition to a discriminatory employment practice because the disparity in the facilities had nothing to do with “compensation, terms, conditions, or privileges of employment.” See
faith belief that she believed she reported discrimination against employees. At most, Dr. Warren testified that her concern for employees being treated fairly motivated her to file the EEOC complaint. As a whole, the evidence demonstrates that she believed she reported the disparity in the facilities as part of her duty to oversee compliance with the Plan 2000, which sought to rectify discrimination against students in public education. Though we do not rule out that the disparity in the facilities could affect employees too, there is simply no evidence here that Dr. Warren believed she was complaining about a discriminatory employment practice. Thus, a jury could not conclude that Dr. Warren had a good faith belief that she was reporting a disсriminatory employment practice.
III.
For the foregoing reasons, we vacate the judgment and remand the case to the district court to enter judgment as a matter of law for the defendants. We therefore need not address the remaining arguments the defendants raise or Dr. Warren’s cross-appeal.
KELLY, Circuit Judge, dissenting.
PCSSD appeals the district court’s denial of its post-verdict motion for judgment as a matter of law. See
hesitancy to interfere with a jury verdict.” (cleaned up)). Because the evidence at trial was “legally sufficient . . . to support” the jury’s verdict here, Bavlsik v. Gen. Motors, LLC, 870 F.3d 800, 805 (8th Cir. 2017), I would affirm the judgment.
To prove her retaliation claim, Warren had to establish, among other things, that she “engaged in a protected activity.” Bonn v. City of Omaha, 623 F.3d 587, 590-91 (8th Cir. 2010). Title VII “shields” employees from retaliation for having “oppоsed a practice made unlawful by” the statute, Barker v. Mo. Dep‘t of Corr., 513 F.3d 831, 834 (8th Cir. 2008), which includes making statements in opposition to discriminatory “conditions . . . of employment,”
At trial, Warren testified about the “[v]ery, very disturbing phone call” she received from a parent in August 2017 regarding the obvious disparities between the athletic facilities at Mills High School and those at Robinson Middle School. Warren explained that after that call, she requested video footage of the two schools’ facilities, which confirmed that Mills’s sport complex, while “nice,” was “nothing compared to” Robinson’s. And after viewing the footage, Warren reported the disparities to PCSSD’s board.
By that point in the trial, those disparities had already been presented to the jury in detail. For instance, jurors heard testimony from Margie Powell, a federal court expert who was directed in September 2017 to “report on whether the sports complex at Mills High School [was] equal to the one located on the site of the Robinson Middle School campus.” Powell testified that during her investigation, she “found inequitiеs” between the two schools, “some of” which “were rather gross.” According to Powell, the staff members working at Mills’s sports complex did not have “nearly the space to work with that Robinson had.” Mill’s complex also had a “smaller” equipment room than the one at Robinson, the “furniture was different,” and the complex was “difficult to get to.” Powell’s report, which was admitted into evidence, stated that Mills’s athletic director, who was Black, “d[id] not have an office” in the new sports complex, while his counterpart at Robinson “ha[d] a separate office” that “include[d] a restroom.” And the report further noted that while Robinson’s athletic director “was invited (at least twice) to provide input on what he felt was important with respect to [the] design and specific attributes of his school’s complex,” Mills’s athletic director “was not allowed the same privilege.”
The jury also heard from Curtis Johnson, PCSSD’s director of operations, who testified that “Mills High School was inferior in scope of work and design to that of the Robinson Middle School project.” Johnson explained that due to budget shortfalls, the classrooms at Mills—that is, the spaces in which stаff members were expected to teach—were the smallest size permitted under state standards. He noted that Robinson had “masonry walls,” while Mills “had gypsum board or regular sheetrock walls,” which could be more easily punctured and were less safe “in times of storms.” And Johnson further noted that the sports complex at Robinson was likewise “made of masonry brick walls,” while the complex in which Mills’s athletic staff was expected to work was “almost like a metal tin building.” A project manager for the architectural firm that was hired to design Mills’s new buildings testified about how PCSSD asked the firm to “scale back th[e] project” to cut costs, which resulted in Mills having “gypsum board walls,” narrower hallways, less natural lighting, and ceilings that were two feet shorter than
crucially, jurors viewed the video footage comparing the athletic facilities at Mills and Robinson, which allowed them to see firsthand the extent of the disparities about which Warren complained, and to draw their own inferences about how the inferior facilities at Mills would affect that school’s community—including the employees who worked there.
As Warren expressly argued to the district court in opposing PCSSD’s Rule 50(b) motiоn, this evidence “provided the jury with” a legally sufficient basis “for inferring” that PCSSD’s “discriminatory construction” of facilities at a school in a predominantly Black community “adversely affect[ed] the employment conditions of” that school’s “predominantly black administrators, teachers, and staff.” And the district court agreed, explaining in its order denying the Rule 50(b) motion that PCSSD had failed to meet its burden of showing “a complete absence of probative facts to support the conclusion reached by the jury.” See Browning v. President Riverboat Casino-Mo., Inc., 139 F.3d 631, 634 (8th Cir. 1998) (“Judgment as a matter of law is proper only when the evidenсe is such that . . . there is a complete absence of probative facts to support the verdict.”).
On appeal, PCSSD attempts to portray its argument in support of reversal as one that raises a “narrow” question of law—namely, whether Warren “engage[d]” in activity that was protected “under the relevant statutes.” And it contends that “Warren’s reporting about discriminatory conditions” at Mills was not so protected because such “opposition to racial discrimination on behalf of students . . . did not relate to an employment practice.” But PCSSD’s framing of the relevant facts fails to account for the trial record as a whole. In other words, PCSSD’s argument presumes that Warren’s complaints about inferior school facilities were, as a factual matter, limited exclusively to concerns about the impact that those facilities would have on Black students. Or, at the very least, its argument presumes that Warren’s complaints in no way implicated the effect that those same facilities would also have on the predominantly Black staff members who would work in them. See
Wedow v. City of Kansas City, 442 F.3d 661, 671-72 (8th Cir. 2006) (explaining that the provision of discriminatory workplace “facilities” can be unlawful under Title VII if it creates “conditions” of employment that “jeopardize” an employee’s “ability to perform the core functions of her job in a safe and efficient manner”).
But a court reviewing a Rule 50(b) motion must (1) “consider the evidence in the light most favorable to” the party that prevailed at trial, (2) “assume that all conflicts in the evidence were resolved in favor of” that prеvailing party, (3) “assume as proved all facts that the prevailing party’s evidence tended to prove,” and (4) “give the prevailing party the benefit of all favorable inferences that may reasonably be drawn from the facts proved.” Ryan Data Exch., Ltd. v. Graco, Inc., 913 F.3d 726, 732-33 (8th Cir. 2019) (quoting Washington v. Denney, 900 F.3d 549, 558-59 (8th Cir. 2018)). Once the trial record is so construed, the court must then “determine whether there was legally sufficient evidence to support the jury’s liability finding.” Bavlsik, 870 F.3d at 805. And as just explained, the evidence in the trial record here was legally sufficient to support the conclusion that Warren’s reporting of disparate school facilities implicated in part the “conditions . . . of employment” faced by Mill’s predominantly Black staff.
explaining that “there [was] sufficient evidence in the [trial] record” for Warren’s retaliation claim “to go to the jury.”
These dеcisions indicate that the question of whether Warren’s complaints addressed only “student-based” issues or instead an “unlawful employment practice” that affected the conditions or privileges of employment was a factual one for the jury to decide. PCSSD, however, did not raise this as a disputed factual issue to the jury in closing argument. Moreover, the jury instructions for Warren’s retaliation claim simply asked jurors to find whether Warren “reported a disparity between the construction of Mills High School and Robinson Middle School to PCSSD, its lawyer, or the court”—an instruction that рresupposed such conduct qualified as protected activity under Title VII. Yet PCSSD did not object.5 See Riggs v. Gibbs, 66 F.4th 716, 719 (8th Cir. 2023) (noting that “objections to jury instructions are waived, absent a showing of plain error” if a party does not object to the instructions at trial). Nor did it seek a special verdict asking the jury to specifically find whether Warren’s complaints about the inferior facilities at Mills related to an unlawful employment practice.
The evidence in this case was sufficient for a jury to make a reasonable inference that PCSSD’s discriminatory approach to the construсtion of facilities at a school in a predominantly Black community affected the conditions and privileges of employment for that school’s predominantly Black staff. “Judgment as a matter of law is appropriate only when the record contains no proof beyond speculation to support the verdict.” Am. Bank of St. Paul v. TD Bank, N.A., 713 F.3d 455, 462
(8th Cir. 2013) (cleaned up) (quoting Wilson v. Brinker Int‘l, Inc., 382 F.3d 765, 770 (8th Cir. 2004)). Because that is not the case here, I respectfully dissent.