*1 inventory equip- pretty well Ms III. and “did ment”; that he would told a subcontractor stated, uphold For the reasons we the sometMng else to and find “close her down grant appli- NLRB decision and the NLRB’s he asked another ac- living”; and do for for its cation enforcement of order. financial records” “to the countant examine liquidi- ... company “to determine his of the ORDER had that accoun- ty” and cash flow and then figures meeting at a present tant those the 14, Nov. stating company presi- employees, that the petition rehearing by panel debts, The for the “had to cover his sufficient assets close, away, money in panel petitioner and he could walk denied. The notes that the judge pocket.” his As the administrative law objected proof never to the burden of used remarked, however, company president the (the judge the administrative law closest appraisal never obtained a written of the objection proof was to the “standard of em- or equipment inventoried contacted real ployed,” characterized as “erroneous as agent any prospective buyers. estate The law”) a matter of fact and and failed to judge law administrative concluded the copy court submit tMs of the brief that not, president company actions of the did accompamed objections the stated. therefore, reflect “defmitive decision to plant [the] close in the event of umonization.” conclusion, view, supporting in Also company president’s are the own statements meetings
in that he would “consider exercis-
ing option” saying and that “I’m not [his] says if ...
that will but someone Ve have Margaret GILL, [I] Appellant, You,’ supposed no faith in what am I to do?” (emphasis supplied). One of the letters from REORGANIZED SCHOOL DISTRICT R- company president employees stat- ed, addition, 6, FESTUS, saying MISSOURI, Appellee. that “I am not Company saying will close and I am not No. 93-3211. Company will NOT close.” Appeals, United States Court of reading transcript After the entire (close Eighth 1,650 hearing pages) admimstrative Circuit. offered, examimng all of the exhibits 15, Submitted Feb. 1994. believe that “substantial evidence on the rec- whole,” Aug. Decided ord considered as a see U.S.C. 160(e), 160(f), § § see also 5 U.S.C. Rehearing Suggestion Rehearing for 706(2)(E), § supports the administrative law En Banc Denied Oct. 1994.* judge’s company presi- conclusion that had not fact made a definitive deci- sion to close if the umon won admin- judge’s
istrative law concomitant determina- company president’s that the statements closing company
about were instead designed discourage employees
threats voting
from union.
II.
We have considered the other issues raised this case and hold sup- too are
ported by “substantial evidence on the record whole,”
considered as a see 29 U.S.C. 160(e), 160(f), § § see also 5 U.S.C. 706(2)(E). §
*McMillian, Beam, Hansen, Judges, banc. grant suggestion rehearing en *2 Louis, MO, argued Lynn, D.
John St. (John Hoare, on the Lynn D. and Michael J. brief), appellant. Louis, MO, Thomeczek, argued St.
James (James Celynda L. Brash- G. Thomeczek and er, brief), appellee. on the HEANEY, FAGG, Judge, Circuit Before LOKEN, Judge, Circuit Circuit Senior Judge.
FAGG, Judge. brought this race discrimina- Reorganized Dis- against School tion lawsuit (the Festus, R-6, dis- trict Missouri trict). granted The district court ap- school district and Gill judgment for the peals. We affirm. teaching after retired from full-time years’ in the school dis-
twenty-six
service
trict,
teach
but continued to
substitut-
After Gill
as a substitute.
teacher,
stu-
grade
a black
for a seventh
ed
regular teacher
complained to his
black,
Gill,
disparag-
him a
who is also
reported the
teacher
ing
name. The
racial
principal,
complaint to
assistant
an
student’s
counselor. The
as the school’s
served
who
investigated
complaint
principal
assistant
complaining student and
talking
with
student’s
students who confirmed
other
not talk
Gill.
complaint,
she did
but
reported the
principal
the assistant
When
district’s
to the school
accusation
student’s
he
superintendent stated
superintendent, the
way
spoke that
not have teacher
teaching in the school
student
or the
talking with Gill
Without
student,
im-
complaining
name from
mediately
Gill’s
removed
list.
teacher
district’s
during
deposition
asked
When
[Gill],”
of a
the word
student
“took
that he “took
replied
because she
principal]”
[assistant
word
infor-
giving good
responsibility of
“[t]he
had
appeal,
On
[superintendent.”
to the
mation
meeting employer’s legitimate
performance
accusation and con-
denies the student’s
expectations).
analyzing
prima
In
her be-
Gill’s
facie
tends the
case, however,
prematurely
the district court
cause of her
alleged
trig
focused
misconduct
summary judg
review of
Our de novo
*3
gered
employment
the adverse
decision. To
established,
court is well
ments
the district
case,
prima
establish her
facie
Gill was not
repeat
of
we need not
standard
required
disprove
given
to
the reason
for her
Donnelly v. National R.R.
review here. See
discharge.
Davenport v. Riverview
See
Gar
(Amtrak),
941,
Passenger Corp.
16 F.3d
944
(8th
Dist.,
940,
30 F.3d
943
Cir.
dens Sch.
standard).
(8th Cir.1994)
ap
(explaining
We
1994).
stage,
prima
At the
facie
Gill
ply
employment
with caution in
the standard
prove
doing
‘[she]
[her]
needed to
“that
was
cases, however, because intent
discrimination
job
enough
possibility
well
to rule out the
inevitably
is
the central issue. Gallo v. Pru
inadequate job per
[she]
was fired for
Servs.,
Partnership,
dential Residential
Ltd.
”
(cita
Crimm,
Under Gill first establish discrimination, responded prima the school district to Gill’s prima facie case of racial legitimate, facie case with a nondiscriminato legitimate, if the school non district offers ry explanation that Gill was as a discriminatory explanation for dis Gill’s superinten substitute teacher because the charge, then must Gill show the school dis dent believed Gill had called a student an explanation merely trict’s Id.; offensive racial name. does not claim Gill racial discrimination. v. see Bashara (8th calling justify 820, that racial name would not Corp., Black Hills 26 F.3d 823 Rather, Cir.1994). discharge. Gill contends the reason Douglas analysis The McDonnell given unworthy the school district is applies of equally discriminatory to Gill’s dis Thus, charge belief. we must decide whether Gill brought claims 42 under U.S.C. (Title produced enough VII), §§ evidence to raise a factual 2000e 2000e-17 42 U.S.C. 1983, dispute honesty superinten §§ about the 1981 and and the Missouri Human explanation Act, removing dent’s name Rights Gill’s (Supp.1993). Mo.Rev.Stat. ch. 213 from the school district’s teacher Regents See Richmond v. Board Univ. of of list; is, Minn., (8th 595, Cir.1992); that whether the hon 957 F.2d 598 estly given believed the reason for his Rights City Missouri Comm’n on Human Sikeston, (Mo.Ct. McCoy 798, decision. See v. WGN Continental 769 S.W.2d 801-02 Co., Broadcasting App.1989). 957 F.2d Cir.1992).
The district court had doubted Gill requirements pri offering challenge satisfied the minimal of a Instead evidence discriminatory ma discharge superintendent’s facie case for belief Gill called racially because the derogatory student’s accusation showed Gill one of her students a name, did legitimate proof not meet the school district’s Gill’s centered whether she expectations perfor actually guilty for a substitute teacher’s was of the student’s accusa- Co., Although deny mance. See Crimm v. Missouri Pac. R. tion. not Gill does the assis- (8th Cir.1984) (elements 750 F.2d principal tant corroborated the ac- student’s discriminatory discharge employee superintendent exactly include cusation and told the discriminatory him, pretext nor proof of neither Gill claimed the student what Indeed, deposition the in her intent. possess “did argues superin- gave for her belief reason Gill rationally to on which evidence any rehable ’ discriminatory way toward in a acted tendent superinten- all the behef [his] base failure to meet with before her was his princi- the assistant was had before him otherwise, decision; conceded superinten- report. Gill contends pal’s in conduct engaged never to her have talked should he would discrimi- that caused her believe validity the student’s about student of her race. We nate her because making his decision instead of accusation properly conclude the district court thus Thus, report. his subordinate’s based on summary judgment for the school granted had decision superintendent’s concludes *4 a nothing more than in fact was no basis disagree. We coverup for discrimination. supple- to Finally, decline Gill’smotion we Indus., Inc. v. Dakota ment the record. See correctness with the not concerned areWe (8th Inc., 63 Sportswear, 988 Dakota super given for the the reason of or wisdom Cir.1993) (enlargement of record is rare ex- decision, [the “whether but intendent’s appeals general that court of ception to rule reason for the real was reported incident] only the record made before may consider pretext not a termination [Gill’s] court). the district Crimm, at 750 F.2d discrimination.” [race] 712; McCoy, F.2d at 373. Whether 957 see Accordingly, we affirm. engage in the conduct or did not
Gill did superintendent whether reported to the HEANEY, Judge, Senior the have relied on should superintendent the dissenting. “irrele investigation are principal’s assistant a agree that Gill established I merely questions evidence] [this vant because the school district ease and that prima facie [superintendent’s deci of the soundness the nondis- facially legitimate, responded with a 944; see Elrod Davenport, F.3d at sion].” discharge. explanation for her criminatory 1466, 1470 Co., Sears, 939 F.2d Roebuck & is what question that remains The critical Cir.1991). thinking the Incorrect remove Gill superintendent to motivated the prove the not does superintendent’s part acceptable teach- the from list pretext. a explanation is district’s reli- good faith Did remove her ers. Dep’t Veterans’ Kralman v. Illinois Af of her report or on Askew’s because ance (7th Cir.1994). We fairs, 23 F.3d majority “[w]e I with the agree race? super guess the permitted second are not to or with the correctness are not concerned if unwise decision to correct an intendent or superin- given for the reason wisdom of the honest, gave an nondis the decision,” re- the but tendent’s El his behavior. criminatory explanation for for Gill’s the real reason ported incident was rod, at 939 F.2d for racial discrimina- termination however, with the agree, tion. I a careful review do After super- whether the record, majority’s to assertion that Gill failed conclude judgment we inci- the investigated have explanation was intendent district’s should the school show His failure inquiry. to nothing in the irrelevant There is unworthy of belief. only on the sound- investigate reflects not to district’s evi- dispute the school record the from to remove Gill ness of decision for the his a factual basis that there was dence also but teachers qualified list report that Gill used principal’s assistant If decision. on his motivation superinten- name and disparaging racial from which in the record there is report prop- evidence honestly was a believed the superinten- that the conclude discharge as a factfinder could er basis for decision race, because of Contrary con- dent to Gill’s substitute teacher. court matter to the must this remand tention, fact the mere proceedings. for further making his decision is race before knew Gill’s incident, I After a careful review of the record am about the and at least two other boys specifically convinced that a trier of fact could conclude told Askew had heard “nigger.” Deposition Gill call Davis a that the removed Gill’s name 20,1992), (Aug. App. Susan Askew at 133-35. from the list of substitute teachers because of day trial, Later that Askew was in If this case went the Central could, course, Terry Office mentioned the incident to agree factfinder with the Coleman, the head of instruction and position clearly As- school district’s counselor, supervisor kew’s direct as a support position. there is evidence to suggested report Superin- she hand, matter to On the other the record also contains Taylor. According tendent Id. at 138. that, light if evidence construed most district, a short time later Askew giving favorable to Gill and Gill the benefit of Taylor and Coleman informed of the incident inferences, permissible permit all identity but did not him tell of the substi- superinten- factfinder to conclude that Taylor tute teacher until after had decided discriminatory purpose. dent acted with a that the teacher should be removed from the signif- The Festus District School enrolls 139; Depo- list of substitute teachers. at Id. icant During number of black students. Terry 30, 1992), sition of (Sept. Coleman 1990-91, 1991-92, years and 1992-93 *5 145; App. Deposition at Taylor of Robert there were no black at teachers Festus Mid- 30, 1992), (Sept. App. Taylor at 147. did not Deposition dle School. of John Richeson talk to Principal Gill consult with Richeson 20, 1992), (Aug. App. at 246. At the time of before his decision. removal, her Gill was the black substi- Richeson stated responsibil- that it was his tute Taylor teacher. Id. at 244. Robert ity complaints to handle about substitute came to the Festus super- School District as “definitely” teachers and that he intended to in intendent 1988 and has in continued that give respond Gill a chance to to the accusa- post present taught to the time. Gill had Depo., App. her.1 Richeson at high twenty-six the senior school years 236-37, 239. He opportunity, never had this until her retirement after the 1988-89 school however, because less than a week after the year, and she worked aas substitute teacher reported incident Richeson was informed during the middle school the next two that Gill had been removed from the list of years until she was removed from the substitute teachers. Id. at 237. list. The principal, middle school John Richeson, top considered her his Gill Superintendent stated that Taylor regular teacher because classroom teachers knew her and therefore knew she was Afri- specifically would request often that Gill approached can-American. He once her teach their classes when were absent. library the middle school when she was sub- Deposition Margaret 30, 1992), (Sept. teaching and, name, stitute calling by App. Richeson, at 225. whose sons had been asked her doing. how she was Affidavit of Gill, taught by thought good she was a teach- (Feb. 19, 1993), App. at 175. Depo., er. Richeson App. at 234. They church, also attended the same where spoken has congregation before the sev- Gill’sremoval was initiated events that eral times. Id. occurred after she had Angela substituted for day Farrell at the middle Although school. The Far- strong, evidence is not I be- classroom, rell returned to her several stu- lieve it is sufficient to raise an inference of reported dents Gill had twice a preclude so as to summary judgment. student, Davis, “nigger.” Deposi- Askew, Coleman, Marsan a Although Taylor all 1992), Angela (Sept. 30, tion of App. Farrell Taylor stated that made his decision before at 251. Farrell informed knowing identity the middle school of the substitute teach- counselor, Askew, Principal accused, Susan Riche- er who had been this evidence is not son. spoke Id. at 252. Askew dispositive. testimony Davis self-serving Such 1. There was one other admitting incident in which been removed from the list after qual- someone had been removed from the list of Richeson that he threw an eraser at student. ified substitute Depo., App. teachers. Richeson's son had Richeson at 240-41. and, though trier district it, fact that free to credit would be fact gave a employees district
the three school meeting not end does
uniform version Superintendent pretext. inquiry into in- slim precipitously
Taylor acted foundation, did not ask
vestigatory the teacher about had talked to
anyone Principal
accusation, consult failed to com-
Richeson, ordinarily handled such highly re- terminating this
plaints, before longtime ser- teacher with
garded substitute Viewing the evi-
vice whole, of fact con- a trier could as
dence accused Taylor knew
clude that African- that she was Gill and
teacher was
American, from the removed her and that he teacher list Nebraska,
See Rademaker Cir.1990) (lack in-depth investi- may support infer-
gation termination before legiti- employer’s motives were
ence
mate). judg- I reverse the case and remand this
ment *6 proceedings. further
court for DOLNY, Appellant, Richard
Keith ERICKSON, Warden, Appellee.
Robert A.
No. 93-2904. Appeals, Court
United States
Eighth Circuit. May 1994.
Submitted Aug.
Decided