Price-Curtis v. Oklahoma City Public Schools Appellant's Reply Brief

    No. 96-6134

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT

William Price-Curtis,

Plaintiff-Appellant

v.

Oklahoma City Public Schools, etal.,

Defendants-Appellees

On Appeal from the United States District Court 
for the Western District of Oklahoma

APPELLANTS REPLY BRIEF

Steven M. Angel, OBA #  303 
6488 Avondale Drive 
Suite 359
Oklahoma City, OK 73116 
(405) 340-4853

Elaine R. Jones 
Director-Counsel

Theodore M. Shaw 
Associate-Director 
NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC.
99 Hudson Street 
Suite 1600
New York, NY 10013 
(212) 219-1900

Judith A. Browne 
Peter Rundlet
NAACP LEGAL DEFENSE AND 

EDUCATIONAL FUND, INC. 
1275 K Street, N.W.
Suite 301
Washington, D.C. 20005 
(202) 682-1300

ATTORNEYS FOR PLAINTIFF-APPELLANT



TABLE OF CONTENTS

PAGE

IN TR O D U C TIO N .................................................................................................................. 1

ARGUMENT .........................................................................................................................  3

I. PLAINTIFFS’ SPEECH WAS PROTECTED UNDER THE FIRST
AMENDMENT ..........................................................................................................  3

A. PLAINTIFF SUFFICIENTLY IDENTIFIED THE PROTECTED
SPEECH ..........................................................................................................  3

1. The District Court Ruled That The Speech Was Not
P ro te c ted ..............................................................................................  3

2. The Speech Was Appropriately Identified ....................................  4

B. RACIAL EQUITY IS A MATTER OF PUBLIC CONCERN ............  6

C. DEFENDANTS’ COMPETENCY ARGUMENT IS PRETEXTUAL,
THEREFORE DEFENDANTS’ HAVE NO LEGITIMATE 
INTERESTS IN SUPPRESSING PLAINTIFF’S SPEECH ...................  7

1. Committee’s focus on the Dowell schools was sanctioned .......... 8

2. The Administration was Informed ................................................. 11

3. The Committee Used the Most Current Authenticated
Data Available .....................................................................................  11

4. The Committee’s Charge was Flexible ............................................ 12

II. PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT FOR
VIOLATIONS OF HIS DUE PROCESS RIGHTS, SHOULD BE 
GRANTED ..................................................................................................................  13

A. DEFENDANTS’ ADMISSION REQUIRES A REVERSAL ............... 13

B. DEFENDANTS FAIL TO STATE REASONS FOR THE
TERMINATION .........................................................................................  14

C. PLAINTIFF DID NOT WAIVE HIS PROCEDURAL DUE PROCESS
RIGHTS 15

III. GENUINE ISSUES OF MATERIAL FACT EXIST REGARDING THE
BOARD’S DELIBERATE INDIFFERENCE TO PLAINTIFF’S 
CONSTITUTIONAL RIGHTS 16



IV. THE EXCLUSION OF TESTIMONY WAS REVERSIBLE ERROR _____  17

A. The Testimony of Dr. Belinda Biscoe was Properly
Proffered and Relevant .............................................................................. 17

B. The Expert Testimony Was Properly Proffered and Improperly
Limited ........................................................................................................... 19

C. It was an Abuse of Discretion to Exclude John Cathey’s
Testimony ...................................................................................................... 20

D. Dr. Jim Lazalier’s Testimony was Clearly Relevant to
Expose P re te x t ............................................................................................... 21

V. THE DISTRICT COURTS INSTRUCTION THAT PLAINTIFF WAS
GIVEN ALL THE PROCESS HE WAS DUE WAS PREJUDICIAL, 
REVERSIBLE E R R O R .......................................................................................... 21

VI. THE DISTRICT COURTS ERRED IN REJECTING THE TITLE VII
CLAIM ....................................................................................................................... 23

VII. THE DISTRICT COURTS RULING ON CONTRACT DAMAGES
WAS IN E R R O R ...................................................................................................... 25

CONCLUSION 25



TABLE OF AUTHORITIES

CASES PAGE

Brooks v. Cook. 938 F.2d 1048 (9th Cir. 1991).............................................................................  23

Bunns v. United Telephone Co. of Kansas. Inc..
683 F.2d 339 (10th Cir. 1982).....................................................................................................  24

Busby v. City o f Orlando, 931 F.2d 764 (11th Cir. 1991 )............................................................  22

Dunning v. National Industry, 720 F. Supp. 924
(M.D. Ala. 1989) . . . ' ...............................................................................................................  24

Durant v. Independent School District No. 16, 990 F.2d 560
(10th Cir. 1993).............................................................................................................................  24

Ewers v. Board of County Commissioners., 802 F.2d 1242
(10th Cir. 1986)___ ' ............................................................................................................. 3, 4, 5

Feldman v. Philadelphia Housing Authority, 43 F.3d 823
(3rd Cir. 1994) .................................... ' ..........................................................................................  6

Hall v. Farmers Insurance Exchange, 713 P.2d 1027 
(Okla. 1986)..................................................................................................................................... 25

Harwell v. United States, 316 F.2d 791
(10th Cir. 1963) ................................................................................................................................  3

Holland v. Jefferson National Life Insurance Co., 883 F.2d 1307
(7th Cir. 1989) .............................................................................................................................  24

Hopkins v. Seagate, 30 F.3d 104 (10th Cir. 1 9 9 4 )........................................................................  22

Inselman v. S & J Operating Co., 44 F.3d 894 (10th Cir. 1995) ................................................  19

Johnsen v. Independent School District No. 3 o f Tulsa
County. Oklahoma., 891 F.2d 1485 (10th Cir. 1989).......................................................... 5, 6

Koch v. City of Hutchinson. 847 F.2d 1436 (10th Cir. 1988) .......................................................  6

McQuaig v. McCoy, 806 F.2d 1298 (5th Cir. 1987)...................................................................... 19

Meritor Savings Bank v. Vinson. A ll U.S. 57 (1986) ...................................................................  24

Ml. Healthy City School District v. Doyle,
429 U.S.'274 ( 1977) ......................' ...............................................................................................  3

Oklahoma Federated Gold and Numismatics, Inc. v. Blodgett,
24 F.3d 136 (10th Cir. 1994) ........................................................................................................ 22

iii



Pickering v. Board of Education, 391 U.S. 563 (1968) 7. 8

Polvs v. Trans-Colorado Airlines, Inc., 941 F.2d 1404 
(10th Cir. 1991) ......................................................................................................................... 18,19

Ramirez v. Oklahoma Department of Mental Health, 41 F.3d 584 
(10th Cir. 1994) ............................   7

Rankin v. Independent School District No. 1-3, Noble Counts>,
Oklahoma, 876 F.2d 838 (10th Cir. 1989) ................... ' ............................................................  5

Rankin v. McPherson, 483 U.S. 378 (1987) ....................................................................................  7

Rutherford v. American Bank of Commerce, 565 F.2d 1162 (10th
Cir. 1 9 7 7 ).............................   24

Specht v. Jensen, 853 F.2d 805 (10th Cir. 1988) ........................................................................... 20

Spulak v. K Mart Corp., 894 F.2d 1150 (10th Cir. 1 9 9 0 )............................................................  19

Texas Department o f Community Affairs v. Burdine,
450 U.S. 248 (1981)............ ...................................................................................................... 24

United States v. Rivera, 900 F.2d 1462 (10th Cir. 1990)............................................................... 21

• Ware v. Unified School District No. 492, 902 F.2d 815
(10th Cir. 1990) ......................................................................................................................... 16, 17

STATUTES

42 U.S.C. § 1983, 1985 .................................................................................................................... 13

MISCELLANEOUS

I Barbara Lindemann & Paul Grossman, Employment
Discrimination Law 37 (3d ed. 1996) ....................................................................................... 21

Fed. R. Evid. 7 0 4 (a ) ......................................................................................................................... 20

Oklahoma Attorney General Opinion No. 80-272,
1980 WL 114814 (Okl. A.G. 1980).........................................................................................  25

IV



INTRODUCTION

The facts of this case demonstrate clearly that defendants retaliated against and 

terminated Dr. William Price-Curtis for exercising his protected rights. This case involves 

a school district (once found to have operated a dual system of education) that wanted the 

federal courts and the public to be comfortable with its plan to re-establish racially 

identifiable schools. In an effort to quell concerns that this resegregation would not 

operate to the disadvantage of black schoolchildren, the district established a citizens’ 

Equity Committee and created a new position. Equity Officer, which were portrayed as the 

"check" on the system. The Equity Officer. Dr. Price-Curtis. and the Equity Committee -  

both took their responsibility to examine racial equity seriously. However, district officials 

endeavored to control the review of educational equity to ensure their desired results.

Dr. Price-Curtis provided leadership to the Equity Committee and encouraged the 

Committee to use substantive indicators of equity and to examine equity in the racially 

identifiable schools re-established under the Student Reassignment Plan. While Dr. Price- 

Curtis and the Equity Committee were reviewing equity issues, a challenge to the 

neighborhood school plan was advancing to the Supreme Court. The Administration and 

the Board watched the Equity Committee and the Equity Officer closely. Thus, while they 

knew that the 1989-90 equity review would focus upon the performance of the 90% black 

schools in comparison to others (and interposed no objection), they tried to control the 

outcome of the comparisons by providing "canned" analysis and withholding requested data. 

When this independently conducted review concluded in rather modest terms that the 90% 

black schools were worse off than certain majority white schools, the Administration 

attacked the Report vehemently, and the Board voted 5-2 to reject it. Defendants then 

disbanded the Equity Committee, and subsequently voted to terminate Dr. Price-Curtis.

Defendants suggest that this case is really about an incompetent employee. This 

appeal, however, involves legal issues that for the most part do not turn on the parties'



dispute about competence.1 Where relevant the record reveals that defendants' allegations 

of inadequacies in plaintiffs performance were merely a pretext for actual retaliation.

The record is replete with harassing memos, unreasonable assignments, impossible 

deadlines, and picayune remarks regarding performance. For example. Dr. Steller collected 

a list of names of approximately thirty people he contended were complaining about Dr. 

Price-Curtis. And, shortly after plaintiff testified before the Board on behalf of an 

employee who charged Dr. Steller with discrimination and harassment, defendants placed 

Dr. Price-Curtis on a Plan for Improvement for failing to be a "team player." Dr. Price- 

Curtis had previously been nominated by the Team Management Council for "Most 

Friendly Administrator" and received the strong endorsement of the Superintendent’s 

Executive Assistant for his cooperative management style.

Dr. Price-Curtis was responsible for writing the district’s annual affirmative action 

plan. In 1989-90, defendants made successful completion of the affirmative action plan an 

impossible feat. Dr. Price-Curtis submitted the first draft in November 1989. His 

supervisor (Dr. Little) responded with insignificant vague criticisms. After completing 

seven drafts of the Plan, plaintiff was directed to change the plan from a one-year to a 

three-vear plan. Again, after several drafts of a three-vear plan, defendants changed the 

assignment and directed plaintiff to submit a one-vear and two-year plan. Defendants 

made this assignment an impossible moving target in order to ensure plaintiffs failure.2 

(Aplt. App. at 41-43.) The record contains a multitude of other examples showing 

harassment of Dr. Price-Curtis and that his involvement with the Equity Committee was 

central to defendant’s motivation in retaliating against him.

Upon review of the record, this Court will find that the trial court made grave errors

'Competency is relevant primarily to the First Amendment issues regarding Dr. Price- 
Curtis’s responsibilities vis-a-vis the Equity Committee.

:Dr. Price-Curtis had received accolades for his prior affirmative action plan.



which warrant a reversal of the final judgment and a remand for a new trial.

ARGUMENT

I. PLAINTIFFS SPEECH WAS PROTECTED UNDER THE FIRST AMENDMENT

Plaintiff appeals the district court’s ruling that his speech was not protected under 

the First Amendment. Defendants raise three arguments: 1) the speech was not sufficiently 

identified; 2) the speech was not of public concern; and 3) plaintiffs speech negatively 

reflected upon his job performance.3

A. Plaintiff Sufficiently Identified the Protected Speech

The Supervisors assert that plaintiff did not adequately identify his speech and 

therefore, had the district court instructed the jury on this speech, it would have committed 

reversible error. This argument must fail. First, this issue is not properly before this court. 

Second, defendants have misrepresented the facts and misapplied the law.

1. The District Court Ruled That The Speech Was Not Protected 

Defendants argpe that plaintiffs appeal should fail because if the district court had 

instructed the jury as requested, it would have committed reversible error. (SLG Br. at 17.) 

That issue is not before this Court because the district court’s ruling was not based upon 

a requested jury instruction. The district court did not rule that Dr. Price-Curtis had failed 

to identify his speech.4 Rather, the trial court concluded that the identified speech was not

Supervisors also argue that the Fourteenth Amendment jury instructions sufficiently 
covered plaintiffs First Amendment claims and therefore it was not error to refuse the 
requested First Amendment instructions. (SLG Br. at 47.) Defendants are wrong. 
Defendants cite Harwell v. United States, 316 F.2d 791, 794 (10th Cir. 1963), for the 
proposition that "where the instructions ... fairly and adequately cover the material issues, 
it is not error to refuse requested instructions even though they are correct statements of 
law." Here, the Fourteenth Amendment instruction would not have constituted a correct 
statement of the law under the First Amendment. The Fourteenth Amendment requires 
a showing of racial animus. (Aplt. App. at 1866-67.) There is no such requirement under 
First Amendment analysis. See Mt. Healthy City School Dist. v. Doyle, 429 U.S. 274 (1977).

defendants reliance upon Ewers u Board of County Commissioners, 802 F.2d 1242, 
1246-47 (10th Cir. 1986), is misplaced. In Ewers, this Court held that the district court’s 
First Amendment jury instruction was erroneous. Here, the court did not reach the issue 
whether a requested jury instruction was appropriate.

3



protected by the First Amendment. It is this issue that this Court must decide.

2. The Speech Was Appropriately Identified

Defendant Supervisors attempt to create an issue on appeal with regard to whether

plaintiff adequately identified his speech. The Supervisors assert that "[djuring the

instruction conference Plaintiff did not request more specific instructions precisely

identifying speech which Plaintiff contended was protected." (SLG Br. at 38.) The thrust

of this argument on appeal is that plaintiff failed to identify specifically the speech and

activities alleged to be protected by the First Amendment. However, in response to the

same arguments made at trial based upon Ewers, plaintiff provided the court with a list of

very specific conduct for which he sought protection. (See Attachment A.)5

THE COURT: The Court has reviewed the laundry list that the Plaintiff 
proposes where it’s protected speech and has narrowed it down to what the 
Court feels like is the actual protected speech.6

(Aplt. App. at 3356-57.) For example, this "laundry list" included instances as specific as:

guidance to the Equity Committee ... in recommending a new charge... 
(including statements to the Committee regarding focus on the Dowell 
schools at the November 21, 1989 Equity Committee meeting, Exhibit 112, 
and the Board of Education’s December 4, 1989 meeting); guidance to the 
Equity Committee in developing the Blueprint for Equity, Exhibit 143, and 
efforts to provide substantive educational guidance to the committee. Exhibit 
187, 198, 210.

The court held that these activities were not entitled to First Amendment protection.7

5The court held several jury instruction conferences. At the first conference, defendants 
asserted that under Ewers, plaintiff was obligated to identify his speech specifically. At a 
subsequent conference plaintiff presented the "laundry list" to the Court (Aplt. App. at 
3356-60, 3367-69), and all parties understood it was to become part of the record. (Id. at 
3356-61.)

6The court had already indicated the items on the laundry list that probably would not 
be protected (id. at 3356-60); however, the court provided this opportunity for argument.

'Defendants do not assert that these instances were too general, instead they contend 
that plaintiff did not object to the court’s determination that This speech was not protected. 
(SLG Br. at 38.) This is a distortion of the record. Plaintiffs "laundry list" included this 
speech. In the first transcribed jury instruction conference, plaintiffs counsel argued that 
this speech was protected by the First Amendment. (Aplt. App. at 3362-63.) The court

(continued...)

4



To the extent that defendant Supervisors claim that the following speech identified

by plaintiff was too general, they are wrong.

Plaintiffs advocacy to the Equity Committee and the Board that its inquiry 
into equity focus upon the 90% black schools created as a result of the 
Student Reassignment plan.

Plaintiffs association with and advocacy in preparing and submitting the 
Equity Committee's 1988-89 and '89-90 reports addressing issues of racial 
equity in the school district.

(Aplt. App. at 260; Attachment A.) Defendants’ reliance upon Ewers is misplaced.

In Ewers, the record was devoid of any evidence that the plaintiff engaged in 

protected activity, yet the district court instructed the jury, in part "[t]hat Plaintiff engaged 

in constitutionally protected speech, in that he commented about matters of public interest 

and concern." 802 F.2d at 1246. On review, this Court found that the instruction was 

"overly broad and could lead the jury to conclude that all of Ewers’ speech was 

constitutionally protected." Id. In a later decision, the Court emphasized that Ewers must 

be read in "the context of a total failure by either the judge or plaintiff to identify the 

speech allegedly motivating the defendants’ conduct toward plaintiff." Rankin v. 

Independent Sch. Dist. No. 1-3, Noble Cty., Okla., 876 F.2d 838, 842 (10th Cir. 

1989)(emphasis added). Here, plaintiff did not fail to identify his protected speech.

To the extent that defendants suggest plaintiff must separate his activities and speech 

instance-by-instance and seek protection for each mini-event, they are wrong. This Court 

has recognized that where speech is a "concerted, cohesive campaign, on a single subject, 

the speech should be considered in its entirety." Johnsen v. Indep. Sch. Dist. No. 3 of Tulsa 

Cty., Okla., 891 F.2d 1485, 1492 (10th Cir. 1989). In Johnsen, a nurse engaged in a 

campaign to change the board’s medication policy. The Court held that although the 7

7(...continued)
reserved judgment only on two specific instances and in the last instruction conference, 
determined that they were not protected. Plaintiff objected to the court’s ruling, while 
maintaining previous objections to other First Amendment rulings. {Id. at 3367-69.)



speech spanned several months. Johnsen was actively pursuing her concerns throughout the 

period and each of these "instances built on each other to such an extent that it [was] 

difficult to separate the impact of one instance from the impact of another." Id.

The protected activities identified were collectively directed at investigating and 

reporting educational inequities.8 The trial court improperly attempted to consider each 

instance and its impact separately. As a result, the court erred in ruling that none of the 

activities or speech related to the Equity Committee were protected.

B. Racial Equity In Education is a Matter of Public Concern 

Defendants argue that Dr. Price-Curtis’s speech was not a matter of public concern 

because it was made in the course of his official duties, it did not inform the public, and 

it related to internal matters. These arguments are thoroughly addressed in plaintiffs 

Opening Brief. The case most heavily relied upon by defendants, Koch v. City of 

Hutchinson, 847 F.2d 1436 (10th Cir. 1988)(en banc), involves circumstances quite distinct 

from those in this case, where plaintiffs position required him to investigate and report on 

his employer’s activities and as such entitles his speech to a heightened level of protection. 

See Feldman v. Philadelphia Housing Authority, 43 F.3d 823 (3d Cir. 1994).

Defendants assert that the speech for which Dr. Price-Curtis seeks protection, is not 

his speech. (SLG Br. at 42-3.) First, plaintiffs advocacy and guidance to the Equity 

Committee and statements before the Board are clearly his speech. Second, with regard 

to the Equity Committee Reports, defendants must choose a consistent position. On the 

one hand, defendants treated Dr. Price-Curtis as a de facto Equity Committee member and 

ultimately imputed the opinions in the Equity Reports to Dr. Price-Curtis. For example, 

defendants held Dr. Price-Curtis responsible for providing "leadership prowess" to the 

Equity Committee (Ex. 423); his job description specifically required that he:

8Plaintiff argued at trial that there was a continuing course of conduct which should 
have received protection under the First Amendment. (Aplt. App. at 3357.)

6



Assist the District in achieving equity within the student assignment plan; Assume 
responsibility for planning, developing, implementation, coordination and 
management of District’s . . . equity program]]; and Facilitate . . . Equity Advisory 
Committee]] so that the purpose[sj of th[is] group[] [be] achieved and committee 
members are actively involved.

(Aplt. App. at 1923.) As part of these duties. Dr. Price-Curtis provided the Committee 

with relevant reading materials and workshops. ( Id. at 2893.) He also participated in the 

Committee’s school comparisons for the 1989-90 Equity Report by evaluating two of the 

schools. (Id. at 2091-92.) After the 1989-90 Equity Report was published. Dr. Steller 

charged that "the committee was seemingly steered from the beginning to a predetermined 

biased result." (Id. at 2340.)9 The Administration's view that Dr. Price-Curtis was a de 

facto member of the Equity Committee is further evidenced by their assertion at trial that 

Dr. Price-Curtis should have written a statement dissenting from the Equity Committee 

Report. (Id. at 3217-3218, 3324.)10

On the other hand, defendants now claim that the Equity Committee Report was 

not his speech. (SLG Br. at 42-3.) Defendants treated the Report as Dr. Price-Curtis’s 

speech at the time of the conduct that is the subject of this case (Aplt. App. at 2356, 2364, 

2373, 2381); thus, they should not be heard to argue otherwise now.

C. Defendants’ Competency Argument is Pretextual, Therefore Defendants 
Have No Legitimate Interest in Suppressing Plaintiff’s Speech

The second part of the First Amendment inquiry requires the Court to balance the 

employee’s First Amendment interests against the employer’s interests in efficient 

functioning of its enterprise. Ramirez v. Oklahoma Dept, of Mental Health, 41 F.3d 584. 594 

(10th Cir. 1994). "The threat of dismissal from public employment is . . .  a potent means 

of inhibiting speech." Rankin v. McPherson, 483 U.S. 378. 384 (1987)(quoting Pickering v.

’Rather than undermine the school district. Dr. Price-Curtis testified that he personally 
supported the district’s return to neighborhood schools. (Id. at 2912.)

10Unlike other members of the Administration. Dr. Price-Curtis was not asked to 
provide criticism of the Report. (Id. at 2308-09. 2346-49. 3149-3150).

/



Board of Education, 391 U.S. 563, 574 (1968)). Thus "[vjigilance is necessary to ensure that 

public employers do not use authority over employees to silence discourse, not because it 

hampers public functions but simply because superiors disagree with the content of 

employees’ speech." Id. Here. Dr. Price-Curtis did his job by facilitating and providing 

guidance to the Equity Committee, which concluded and disclosed that there were racial 

inequities in the Oklahoma City Public Schools. He has been penalized because his 

supervisors did not agree with those conclusions.

Defendants argue that they were entitled to view Dr. Price-Curtis’s speech and 

activities in connection with the Equity Committee as reflecting negatively upon his 

competency.11 There is overwhelming evidence demonstrating that these arguments were 

"trumped-up" by defendants to repudiate the conclusions in the Equity Committee Report 

and ultimately to terminate Dr. Price-Curtis because of his involvement.

1. The Committee’s Focus On The Dowell Schools Was Sanctioned 

A key criticism that defendants make about the Equity Committee and Dr. Price- 

Curtis is that the Equity Committee should not have reviewed equity by comparing the 90% 

black schools with other schools. (Bd. Br. at 4-5; SLG Br. at 45.) However, the charge 

itself focuses on the racial impact of the SRP, which was the re-establishment of racially 

identifiable schools. (Aplt. Br. at 4, 13.) Further, the record demonstrates that the Board 

knew all along of the Committee’s intent to focus on the Dowell schools and sanctioned 

it. Thus, the argument now that this approach violated the charge is pretextual.

At a November 21, 1989 Equity Planning Committee meeting, Dr. Price-Curtis 

reported that the Board expressed that it wanted the Committee to analyze the issues it was 

originally designed to examine. He explained that the Equity Committee was established

"None of the defendants argued at trial that plaintiffs activities were disruptive in any 
other regard. There was no evidence indicating that Dr. Price-Curtis's speech impaired 
discipline by superiors or harmony among co-workers, had a detrimental impact on close 
working relationships for which personal loyalty and confidence were necessary, or 
interfered with the regular operation of the district. See Pickering, 391 U.S. at 570-73.

8



| to ensure that black children did not suffer disproportionately as a result of the SRP. 

(Aplt. App. at 2023.) Dr. Price-Curtis explained that this required a focus upon race. (Id. 

at 2024.) Although defendant Little was present at this meeting, (id. at 2829), she did not 

warn the Committee that this focus did not comply with the Board’s charge. (Id. at 2094.)

Similarly, on December 4, 1989, a new charge was given to the Committee and 

Equity Officer in an open Board meeting. (Bd. Br. at 4; Aplt. App. at 2550-51.) Terri 

Silver, a former Equity Committee member (currently a Board member and a witness for 

defendants at trial) and Dr. Little attended this meeting. (Id. at 3166-3167, 3262.) The 

meeting minutes reflect that Dr. Price-Curtis participated in the meeting and that the 

history and purpose of the Equity Committee were discussed. Dr. Price-Curtis reminded 

the Board that the Equity Committee was established as a result of the return to 

neighborhood schools and that in light of the pending Dowell litigation, the Committee 

should focus on racial equity specifically with regard to the children in the 90% black 

schools. (Id. at 2954.) Equity Committee Chairperson, Tiana Douglas, made a similar 

statement. (Id. at 2028.) The Board did not object to this understanding. (Id. at 2819-20.) 

The next day, on December 5, 1989, the Equity Planning Committee met, reviewed the new 

charge, and discussed comparing the predominantly blacks schools to other schools in the 

district. Again, Dr. Little and Terri Silver were present, (id. at 2031), but did not object. 

In fact the minutes of these meetings were forwarded to Dr. Steller and the Board. (Id. 

at 2041.) No disagreement or objection was raised.

Less than two weeks after the new charge was adopted by the Board, on December 

15, 1989, Dr. Little instructed Dr. Price-Curtis to develop methods for comparing the 90% 

black schools and other schools. When confronted on cross-examination with her directive. 

Dr. Little first denied it and then provided an incredulous explanation:

Q: In fact you yourself directed that they look at the Dowell schools versus
other schools, didn't you?

A: No, I did not.

9



Q: Do you recall issuing a memorandum on December 15, 1989 regarding giving
him, Dr. Price-Curtis an assignment for comparison of data?

A: No, I do not. [Counsel provides document]
*  *  *

Q: (By Mr. Angel) Do you remember now giving an assignment with regard to
making certain comparisons?

A: I remember giving an assignment to develop some ways to make
comparisons, yes.

Q: What were those comparisons between?
A: They were between 90 percent schools and other schools.
Q: Was that what the Equity Committee supposed to be looking at?
A: No.
Q: Can you help us with why you told him to make that comparison?
A: Yes, because I needed to find out if he knew how to handle the data so when

he began to look at the schools that were within the charge that he could do 
it correctly. And since 90 percent schools seemed to be what they wanted to 
focus on, one way to motivate him to do [sic] get him to do what needed to 
be done is give him something to do that was close to what he liked to do.

(Aplt. App. at 1149-1151.)

In an incredible turnabout. Dr. Price-Curtis’s memorandum developing comparison 

models for the 90% black schools gets used against him as evidence of bias and willful 

neglect of duty. An October 2, 1990 draft memorandum from Dr. Griffin to Dr. Little 

regarding "evidence that Dr. Price-Curtis is still failing to satisfactorily perform," (id. at 

2414), cites Dr. Price-Curtis’s response to Dr. Little’s directive, where he developed 

comparison models for the 90% schools, as specific evidence of willful neglect of duty, (id. 

at 2421). Dr. Griffin cites the responsive memorandum "to demonstrate Dr. Price-Curtis’ 

involvement on behalf of some members of the committee instead of following the Board’s 

charge," and concludes that "[s]ince the ‘Blue Print for Equity’ duplicated Dr. Price-Curtis’ 

recommendations and since it did not parallel the Board’s charge. Dr. Price-Curtis was 

willfully neglectful of his responsibility as a district employee." (Id. at 2419-21.)

Further, in January of 1990, using the Board’s charge and a letter from Board 

member Betty Hill to the Equity Committee (explaining the charge), the district’s research 

department performed an analysis for the Equity Committee, which compared the Dowell 

schools to others in the district. Dr. Steller was given a copy of this analysis for approval

10



prior to it being sent to the Committee. He approved it. (Id. at 2053-74, 2077, 2440-62.)

Also, in January, 1990, Ms. Douglas presented the Blue Print for Equity which 

provided "an outline for the Equity Committee to follow as the Committee attempts to 

implement its charge from the Board of Education," (id. at 2830, 2094)12 and was 

unanimously approved by the Committee. Although Dr. Little was present (id. at 2829), 

she never indicated that the Blue Print did not comply with the charge. (Id. at 2094.)

This evidence demonstrates that the post hoc objection to the comparison of the 

Dowell schools to others in the district is pretextual. Obviously, there was no actual 

objection to the comparison or the Blue Print for Equity, instead the disagreement lies in 

the conclusion that the Dowell schools were worse off than other district schools.

2. The Administration Was Informed.

The Administration was kept informed of the Equity Committee’s direction. (Id. at 

2813.) Dr. Little attended most of the Board and Equity Committee meetings in which the 

Committee’s direction was discussed. (Id. at 2806, 2858, 2889, 2926, 2931.) She reviewed 

the Committee meeting minutes (Tr. at 226), and memoranda regarding its direction (Aplt. 

App. at 2085). Dr. Price-Curtis also kept the Board and the Administration informed by 

providing them with copies of the minutes. (Id. at 2978.)

3. The Committee Used the Most Current Authenticated Data Available 

Defendants assert that Dr. Price-Curtis failed at his duties because the 1989-90

Equity Committee Report included data from the 1988-89 school year. (SLG Br. at 14.) 

First, in completing its annual reports, the Equity Committee traditionally relied upon the 

previous year’s data. (Aplt. App. at 2841, 2891.) Thus, using the 1988-89 data was in 

conformity with previous Equity Committee Reports: no other report had been rejected on 

this basis. Second, the Equity Committee used the data that were available at the time it

12Dr. Little claimed that although she was present when the Blue Print was presented, 
she did not understand that the Committee intended to rely upon it. (Id. at 3261.)

11



was conducting its review. (Id. at 2840.) The 1989-90 data were not received until June 

5, 1990 (id. at 2147); the Committee's assessment had begun months earlier when only 

preliminary unauthenticated data were available. (Id. at 2891; Tr. at 913.) Third, the 

Committee, not Dr. Price-Curtis. decided not to use 1989-90 data because it did not believe 

the data were trustworthy. Moreover, as the Equity Writing Committee Chair testified, the 

Committee was wary of the 1989-90 data because the district had been accused of 

exempting students from tests in an effort to raise test score averages. (Id. at 2885-86.)

4. The Committee’s Charge was Flexible 

Defendants also assert that Dr. Price-Curtis failed in his duties because the Equity 

Committee did not address every item included in the charge. (Aplt. Br. at 17.) Again, 

this is a pretext. Walter Long, a charter member of the Equity Committee,13 explained 

that the Committee’s charge "was in general terms."' (Aplt. App. at 2870.) Over the years, 

while the charge, (id. at 1916, 2035), and the definition of equity, (id. at 1917), remained 

constant, the Committee review was varied, focusing on different aspects of the charge and 

the definition of equity in different years. (Id. at 2874.) For example, in its first year, the 

Equity Committee examined elementary school facilities within the city’s quadrants. (Id. 

at 2871.) In its 1987-88 report, the Equity Committee operating under the same charge, 

changed its focus by comparing randomly chosen elementary schools and for the first time, 

the Committee evaluated middle and high schools. (Id. at 2875-76.) During the next year 

(1988-89), the Equity Committee "tabled most school visits" (Id. at 1964) despite a charge 

which directed the Committee to make "make on-site visits a minimum of four times per 

year." (Id. at 1916.) Prior to the 1989-90 Equity Committee Report, no report had been 

rejected or criticized despite the fact that the Committee did not address everything in the

13In asking Mr. Long whether he would serve on the Equity Committee in 1985. his 
school board representative asked whether he was in favor of neighborhood schools. Mr. 
Lons was in favor of neighborhood schools and thus, his motive was not to undermine the 
district's SRP. (Tr. at 227.)

12



charge and definition of equity every year.

Defendants also argue that plaintiff failed to provide the Equity Committee data 

regarding pupil/teacher ratios, for inclusion in the Report. It was not because he did not 

try. This omission is an example of defendants’ attempts to obstruct the Committee's 

review of equity. Repeatedly, Dr. Price-Curtis requested data such as pupil/teacher ratios 

for the Equitv Committee to include in its report (Id. at 2085-86, 2090, 2101-2102, 2106-09, 

2114), but much of it was withheld. (Id. at 3048-3049.)

Defendants cannot escape the facts. They undertook their scorched-earth review 

and critique of the 1989-90 Equity Report, because they disagreed with the ultimate 

conclusion of the Report.14 The fact that defendants were informed about the 

Committee's methods and direction and did not protest until they read the bottom-line, 

makes it clear that they were searching for excuses in an effort to discredit the report. This 

Court should reverse the district court’s ruling that plaintiffs speech was not protected 

under the First Amendment and remand the case for new trial.15

II. PLAINTIFFS MOTION FOR SUMMARY JUDGMENT FOR VIOLATIONS OF 
HIS DUE PROCESS RIGHTS SHOULD BE GRANTED

A. Defendants’ Admission Requires A Reversal

Defendants terminated Dr. Price-Curtis without reasons, in violation of his

substantive due process rights. On summary judgment plaintiff asserted:

7. Each of the five members who voted in favor of Dr. Price-Curtis’s 
discharge, admitted that they did not conclude that Dr. Price-Curtis was 
incompetent nor that he wilfully neglected his duty.

(Aplt. App. at 316.) Defendant Board members responded:

7. Plaintiffs Fact #7 is not disputed.

14George Kimball of the Research Department testified that the first time he had ever 
been asked to review an Equity Committee Report was for the 1989-90 Report. (Aplt. 
App. at 3151.)

15Such a holding would also require that plaintiff be able to proceed with his First 
Amendment claims^pursued under 42 U.S.C. § 1983. 1985. and retaliatory discharge.

13



(Id. at 650.) The Board members string together portions of depositions to support their 

claim that at the time of the depositions, they simply could not remember the reasons for 

the termination. This memory lapse does not repudiate the members’ explicit admission. 

This admission requires that summary judgment be entered in favor of Dr. Price-Curtis.

B. Defendants Failed To State Reasons For The Termination

Defendants failed to state the reasons for the decision to terminate, as required 

under the mandates of due process.16 Contrary to the record, the Board asserts that it 

"indicated, prior to its vote, that the reasons for termination were those contained within 

the letter. The letter was made part of the record." (Bd. Br. at 24.) Similarly, the Board 

members intimate that there was some discussion about the reasons and then a vote was 

called on the motion to approve the Superintendent’s recommendation. (Mem. Br. at 7.) 

The Members went so far as to represent to the district court that, "[t]he reasons were 

discussed at length prior to the vote being taken by the Board." (Aplt. App. at 650.) The 

record does not substantiate any of these claims. The transcript of the January 19, 1991 

meeting clearly shows that neither counsel nor the Board ever discussed the substance of 

Dr. Steller’s recommendation and it was not made part of record. (Id. at 429-30, 446-52.)

The Board members assert that "[ijmplicit in the Board’s vote . . .  is the Board’s 

acceptance of the reasons . . . ." (Mem. Br. at 25.) Due process protects employees from 

having to guess about the reasons for termination, by requiring a statement of the reasons, 

thus ensuring that the termination was based upon legitimate grounds. The record shows

16By taking the position that they did not conclude that Dr. Price-Curtis was 
incompetent or had engaged in wilful neglect of duty, Board members were able to avoid 
examination in their depositions about the merits and reasonableness of such conclusions. 
The Board however, simultaneously maintains that the termination decision is non­
delegable and that these justifications — incompetence and wilful neglect — were the 
reasons for the termination. So while rejecting the substantive basis for the termination.

• defendants also attempt to embrace it to their advantage. They should not be allowed to 
have it both ways. If they indeed concluded that Dr. Steller’s recommendation was 
persuasive, they must say so and offer their best explanations as to why. The Board must 
have a reason for the termination. It has offered none.

14



that the Board stated no reasons at the time of the vote to terminate Dr. Price-Curtis.

In addition, there is at least a genuine issue of fact as to whether defendants voted 

to terminate plaintiff because he did not appear at the termination meeting. Dr. Price- 

Curtis made a timely request for a continuance on January 10. 1991 (Aplt. App. at 471); 

however, the Board was not notified of the request until the 8 a.m. Saturday, January 19, 

1991 termination meeting was convened. (Id. at 431-32.) As a result of this late disclosure, 

some of the Board members expressed their disconcert that Dr. Price-Curtis did not appear. 

They blamed him for the late notice, denied the request for the continuance, and ultimately 

fired him. Board member Hise said that Dr. Price-Curtis had waited until the morning of 

January 19 to make his request and that it "was very late to be requesting a postponement 

of a hearing." (Id. at 387.) "[Ijt’s not appropriate to delay until the last minute or until 

such time as people can’t be advised that -you know— to come to a hearing and request 

a continuance without, you know, some type of emergency or so forth, I would think, to 

myself, my own personal opinion, it’s not very timely." (Id. at 392-93.) He noted that he 

had a "problem with someone coming at the last minute and requesting a delay." (Id.) 

This testimony supports the proposition (see id. at 382, 399) that some of the Board 

members voted in favor of the termination because plaintiff did not attend the meeting.

C. Plaintiff Did Not Waive His Procedural Due Process Rights 

Defendants urge that because plaintiff did not attend the termination hearing, he 

waived his right to continued employment absent just cause for termination. Plaintiff 

argued that there was no waiver because he was never notified that non-attendance would 

automatically obviate the "just cause" provision of his employment agreement.17

Defendants attempt to cloud the issue by arguing that plaintiff did not request a

l7To the contrary. Board counsel advised that the Board might deny the continuance 
and proceed without plaintiff. (Aplt. App. at 432.)

15



hearing in a timely fashion. (Bd. Br. at 21; Mem. Br. at 4.)18 The Administration s 

counsel, Jerry Steward, stated that "this Board . . . determined that it would grant a hearing 

to Dr. Price-Curtis. and by doing so you settled that issue . . .  It is not a question any 

longer that he was or was not denied a right to a hearing . . . You determined that the way 

to solve that problem was just to give him a hearing." (Aplt. App. at 433.) After granting 

a hearing, defendants cannot now use this argument to urge that Dr. Price-Curtis waived 

his rights. A distinct due process issue would have arisen if the Board had deemed him to 

have waived his right to a hearing.

The court erred in granting summary judgment to defendants with regard to the due 

process claims. The undisputed evidence requires summary judgment for Dr. Price-Curtis.

III. GENUINE ISSUES OF MATERIAL FACT EXIST REGARDING THE BOARD’S
DELIBERATE INDIFFERENCE TO PLAINTIFFS CONSTITUTIONAL RIGHTS

The district court granted summary judgment on plaintiffs § 1983 claims to the 

Board and Board members, (id. at 1738-39, 1743-45), finding that plaintiff did not show 

"that the Board was deliberately indifferent to his constitutional rights. . .  . [He] presented

no evidence that the Board was informed on the record of [his] belief that he was being 

terminated in retaliation for exercising First Amendment rights." (Id. at 1744) Not only 

did the district court fail to recognize the existence of genuine issues of material fact 

regarding the Board’s awareness of retaliation against plaintiff for engaging in protected 

activity, the court misconstrued the requirements of Ware v. Unified School District No. 492, 

902 F.2d 815, 819 (10th Cir. 1990), by insisting that plaintiff present evidence that the 

Board was informed "on the record," a prerequisite not elsewhere found in the law.19

18The record shows that after the November 6, notice of proposed termination, the 
administration and Dr. Price-Curtis were engaged in serious settlement discussions which 
led Dr. Price-Curtis to postpone the filing oflhe request for a hearing. (Aplt. App. at 621- 
822.) Because of the concern about whether administration officials had misled Dr. Price- 
Curtis. the Board granted his request for a hearing.

I9The district court apparently meant "at the hearing' by its "on the record" reference.

16



In Ware, the plaintiff presented evidence that "the board members knew about [her] 

public stand on the bond issue and were informed of her belief that her termination was 

in retaliation for that stand." Id. at 818-19. This Court found that a jury question existed 

as to whether the board acted with deliberate indifference in approving Ware’s termination 

when Board members knew that the termination may have been retaliatory. Id. at 820. 

Dr. Price-Curtis has strikingly similar evidence.20

The Board, (Bd. Br. at 14-15), and Board members, (Mem. Br. at 30), argue that 

they were not aware of the substance of plaintiffs EEOC complaint. This is a 

misstatement of the facts: each member received letters from plaintiff reminding them that 

he had filed a complaint of "retaliation" with the EEOC. (Aplt. App. at 1455-58.) 

Furthermore, at the termination meeting, Board President Parks warned that "[t]he EEOC 

complaint. . .  in my opinion, is directly involved with this situation [plaintiffs termination]." 

{Id. at 440.) Like the school board in Ware, the Board deliberately chose to disregard these 

warnings and to terminate Dr. Price-Curtis without conducting any inquiry into the facts.

Defendant’s remaining arguments consist of unpersuasive sweeping statements 

designed to contradict the specific facts alleged by in plaintiffs Opening Brief. At a 

minimum, these factual disputes demonstrate genuine issues of material fact that only a jury 

may appropriately resolve. This Court should reverse the summary judgment to the Board 

and Board members on plaintiffs § 1983 claims.

IV. THE EXCLUSION OF TESTIMONY WAS REVERSIBLE ERROR

A. The Testimony of Dr. Belinda Biscoe was Properly Proffered and Relevant

Defendants argue that plaintiff "wholly failed to make an offer of proof' for Dr.

:oContrarv to the Board’s assertion. (Bd. Br. at 14), the evidentiary facts raised in 
plaintiffs Opening Brief, and here, were presented to the district court prior to its ruling 
on the summary judgment motion. {See. e.g., Aplt. App. at 325-26, 975-77, 1191-94.)

17



Biscoe’s testimony, (SLG Br. at 19).21 To the contrary, after defendants stated their

objections to her testimony, plaintiff emphasized the similar circumstances and treatment

of Dr. Price-Curtis and Dr. Biscoe,22 indicating that the testimony was crucial to expose

retaliatory motive for Dr. Price-Curtis’s termination. (Aplt. App. at 2970-71.) After the

court excluded the testimony (id. at 2972), plaintiffs counsel persisted:

MR. ANGEL: What I am concerned about and I understand your ruling, 
and I don’t want to keep going back and forth, b u t . . .  I wanted to be certain 
that . . . the record reflected there are substantial similarities to her 
treatment. She was assigned to Dr. Little. Dr. Little put her on the same 
kind of performance improvement plan. We believe that Dr. Little put 
Belinda Biscoe and possibly one other person were the only other people 
besides Dr. Price-Curtis put on a performance improvement plan.

(Id. at 2973.) Nonetheless, the district court excluded the evidence. (Id. at 2974.)

Despite plaintiffs explanation of the similarities and the district court’s clear

exclusionary ruling, defendants would have Dr. Price-Curtis flout the ruling and inject

additional futile proffers on the issue. This approach would elevate form over substance

and undermine the court’s interest in the efficient administration of justice. Fed. R. Evid.

103(a)(2) strikes the appropriate balance, making it clear that the evidence need only be

"apparent from the context within which questions were asked."

In Polys v. Trans-Colorado Airlines. Inc., 941 F.2d 1404 (10th Cir. 1991), this Court

explained that the purposes of the offer of proof are to allow the trial judge to make an

informed evidentiary ruling and to create a clear record that an appellate court can review.

Id. at 1406-07. The Court also made clear that "no offer of proof is required if it would

have been futile," id. at 1407 n.l, and that ”[t]he trial judge may also be sufficiently

apprised, if the excluded evidence was previously discussed with the trial judge, for example

21Plaintiffs citation in the section entitled "Issues on Appeal." (Aplt. Br. at 1 n.l), is 
incorrect — a scrivener’s error. Citations throughout the actual argument on this issue, (id. 
at 38-41), are accurate.

22Dr. Price-Curtis had already testified that both he and Dr. Biscoe had complained 
about salary discrimination and retaliation by Dr. Steller. (Aplt. App. at 1992. 2946-49.)

18



at the pre-trial conference, so that during trial the judge is well aware of the content and 

purpose of the evidence," id. at 1407 n.2 (emphasis added).23 * Here, the trial court was 

clearly made aware of the reasons Dr. Biscoe's testimony was offered. Accordingly, 

plaintiffs proffer was more than sufficient.-4

Defendant Supervisors next argue that the exclusion of Dr. Biscoe’s testimony was 

harmless in any case, since a portion of the transcript of her hearing before the Board was 

submitted as an exhibit to the jury. This transcript only included Dr. Price-Curtis’s 

September, 1989 testimony regarding his knowledge of retaliation. This in no way replaces 

Dr. Biscoe’s knowledge about the similar retaliation she experienced following her protected 

activity -- including retaliation that occurred after her September 1989 hearing. This Court 

has made clear: "As a general rule, the testimony of other employees about their treatment 

by the defendant is relevant to the issue of the employer’s discriminatory intent." Spulak 

v. K  Mart Corp., 894 F.2d 1150, 1156 (10th Cir. 1990). Accordingly, the Court should 

reverse and remand this case for a new trial.

B. The Expert Testimony Was Properly Proffered and Improperly Limited

Supervisors argue that "Plaintiff voluntarily agreed to limit Dr. Morris’s testimony," 

(SLG Br. at 28), and Dr. Morris’s expert report was not part of the offer of proof, (id.).25 

To the contrary, at the beginning of the trial, the court noted its reluctance to allow Dr. 

Morris’s testimony, (Aplt. App. at 2784-95). When a subsequent proffer was made, (id. at 

3057-67), both the court and plaintiffs counsel recognized the court’s prior limitation:

uSee McQuaig v. McCoy, 806 F.2d 1298, 1301 (5th Cir. 1987)("the proponent of 
excluded evidence need only show in some fashion the substance of the proposed 
evidence").

Ins elm an v. S & J Operating Co., 44 F.3d 894 (10th Cir. 1995), cited by defendants, is 
inapposite and distinguishable.

^Dr. Morris’s report (Aplt. App. 1606-12) was made part of the proffer. After 
plaintiffs counsel requested that Dr. Morris's resume be made part of the record, the 
district court, sua sponte. stated, "[W]e ought to have the summary in there as well. The 
resume and summary will be made part of the record." (Id. at 3058.)

19



THE COURT: And then in the other areas, the Court has made a ruling.

MR. ANGEL: The Court has made a ruling about not coming to the 
conclusion that there was harassment. We can limit that and don't have to 
have him necessarily conclude there was harassment.*6

(Id. at 3063.) This was not a voluntary limit on the testimony, it was merely an

acknowledgement of and compliance with the court’s prior ruling. The court later repeated

and expanded the limitation, stating that it would not allow Dr. Morris "to address the

particular issues and fact issues in this case," (id. at 3065; see id. at 2066).

Defendants argue that experts may not give opinions on ultimate issues of law.

(SLG Br. at 30-31.) Dr. Price-Curtis concedes this, but emphasizes that Dr. Morris was not

offered to give his opinion on the law, rather his testimony went to whether the

Administration’s recruitment plan was designed to ensure failure and whether their

directives appeared to serve no legitimate purpose. These issues are purely factual in

nature. The Board concedes this, (Bd. Br. at 37), but argues that the district court was

correct in refusing to allow expert testimony on an "ultimate issue of fact." (Id. at 36.) Fed.

R. Evid. 704(a) resolves this issue directly: "[Tjestimony in the form of an opinion or

inference otherwise admissible is not objectionable because it embraces an ultimate issue

to be decided by the trier of fact." See also Specht. 853 F.2d at 807, 808 ("testimony on the

ultimate factual questions aids the jury in reaching a verdict"). Accordingly, Dr. Morris’s

testimony would have aided the jury in understanding the evidence and it was an abuse of

discretion for the trial court to exclude it.

C. It Was An Abuse of Discretion to Exclude John Cathey’s Testimony

Plaintiff offered John Cathey’s testimony for two reasons: (1) to demonstrate that

the Administration undertook a concerted effort to isolate and harass plaintiff in retaliation

:6In their brief, the Supervisors have omitted the first sentence of Mr. Angel’s 
statement. See SLG Br. at 28. It is clear from the complete context of the discussion that 
the district court had previously prohibited Dr. Morris from concluding that the recruitment 
plan was designed in a manner that assured failure and reflected harassment of plaintiff.

20



for his protected activity; and (2) to substantiate findings that where black school children 

were being treated inequitably, district officials were attempting to conceal it from the 

Equity Committee. (SLG Br. at 27.) Notwithstanding defendants’ assertions, Mr. Cathey’s 

testimony was relevant to the claims under §§ 1983 and 1985. The district court’s ruling 

should therefore be reversed as an abuse of discretion.

D. Dr. .Tim Lazalier’s Testimony was Clearly Relevant to Expose Pretext 

Defendant Supervisors argue that Dr. Lazalier’s testimony was irrelevant because it 

was offered during plaintiffs case-in-chief, but concede that it may have been admissible 

during rebuttal. (Id. at 24.) However, the three-step allocation of proof framework for 

Title VII cases established by the Supreme Court does not dictate the order of proof. See 

I Lindemann & Grossman, Employment Discrimination Law 37 (3d ed. 1996)("the plaintiffs 

case-in-chief will contain not only evidence of the prima facie case but also evidence that 

goes to the issue of pretext"). Accordingly, the exclusion of this testimony because it was 

offered during plaintiffs case-in-chief was reversible error.27

V. THE DISTRICT COURTS INSTRUCTION THAT PLAINTIFF WAS GIVEN ALL 
THE PROCESS HE WAS DUE WAS PREJUDICIAL, REVERSIBLE ERROR

Plaintiff urges this Court to reverse the final judgment because of the improper and

prejudicial instruction given to the jury that plaintiff "was given all the process he was due,"

(Aplt. App. at 1861), although no due process claim was before the jury. At trial, plaintiff

objected and suggested, in an effort to compromise, that any cautionary due process

instruction simply state that "[tjhis issue [due process] is not before you." (Id. at 3356.) In

issuing the prejudicial instruction, with the powerful implication that the Court had already

found that the defendants had treated plaintiff fairly, and rejecting the non-prejudicial

compromise, the district court unfairly tainted the jury and abused its discretion.

27It is bevond question that the cumulative effect of these erroneous rulings affected the 
ultimate judgment. See United States v. Rivera. 900 F.2d 1462, 1469-70 (10th Cir. 1990).

21



Defendants respond that plaintiff introduced evidence to circumvent the district 

court’s prior rulings on the due process issue, (Id. at 1746, 1749), pointing to testimony 

during trial that purportedly pertained to the issue of due process. (Bd. Br. at 33; SLG Br. 

at 33-35.) The evidence offered by plaintiff was essential to his breach of contract claim 

and responsive to defendants’ evidence.28 Because the evidence was properly admitted as 

relevant to the determination whether plaintiff was terminated for just cause, no instruction 

on due process was necessary. More importantly, however, the court created harmful error 

in gratuitously rejecting the non-prejudicial compromise offered by plaintiff.

Supervisors cite Hopkins v. Seagate, 30 F.3d 104 (10th Cir. 1994) and Oklahoma 

Federated Gold and Numismatics, Inc. v. Blodgett, 24 F.3d 136 (10th Cir. 1994) in support 

of the district court’s ruling, but they are not helpful. Hopkins addressed a courtroom 

comment as opposed to a jury instruction, which requires greater caution given that it is 

an instruction to the jury, and even in the context of such statements, the Court has 

required that they be neutral. Id. at 107. The instruction here was not neutral. In 

Blodgett, this Court criticized the instruction given, 24 F.3d at 141, but nevertheless upheld 

it, as the Court went to some length to make clear, because the complaining party had 

explicitly deferred to the lower court’s discretion in issuing its instruction. Here, plaintiff 

objected to the instruction and sought to obviate its prejudicial impact by proposing the 

compromise language, which was rejected without reason. (Aplt. App. at 3255, 3354-56.)

In a very similar case, the Eleventh Circuit reversed because the instruction given 

"could only have left the impression that the judge had already determined that these 

individuals had done no wrong." See Bushy v. City o f Orlando, 931 F.2d 764, 111 (11th Cir. 

1991). That court also stated that, although other precautionary measures were taken, "We 

cannot therefore be absolutely certain that the jury was not misguided by the district court’s

■^Plaintiff read into the record the admissions of Board members that they had never 
concluded that he was incompetent or had engaged in wilful neglect of duty.



words and actions." Id. See also Brooks v. Cook, 938 F.2d 1048 (9th Cir. 1991). The due 

process instruction given here was unnecessary, unfairly prejudicial, and reversible error.

VI. THE DISTRICT COURT ERRED IN REJECTING THE TITLE VII CLAIM

Dr. Price-Curtis appeals as clearly erroneous the trial court’s judgment that he did 

not establish a prima facie case nor carry his ultimate burden under Title VII. The district 

court failed to consider crucial evidence, which affected its conclusions regarding both the 

prima facie case and the ultimate burden; it erroneously excluded other relevant evidence, 

supra Section IV, and applied the wrong standard of proof in evaluating Dr. Price-Curtis’s 

retaliation claim under Title VII.

The district court failed to consider crucial evidence. During his tenure with the 

school district, plaintiff experienced a series of interrelated retaliatory actions. He found 

racial inequities in the district’s salaries, including his own, shortly after his employment 

began. Efforts to remedy inequities resulted in Dr. Steller retaliating against Dr. Price- 

Curtis and Dr. Biscoe, the key black administrators whose salaries were at issue. (Aplt 

App. at 1992.) One month after plaintiff testified on Dr. Biscoe’s behalf regarding Dr. 

Steller’s retaliation following the efforts to equalize salaries, (id. at 1992-2018), Dr. Price- 

Curtis was placed on a Plan for Improvement. (Id. at 2019. 2022). This was clearly 

retaliatory because it happened nearly three months after his annual evaluation. (Id. at 

3191-96.)29 Dr. Price-Curtis experienced continued harassment, and in early 1990, his Plan 

for Improvement was extended. (Id. at 2957.) As a result of this treatment, Dr. Price- 

Curtis filed a complaint with the EEOC in March 1990. The retaliatory treatment 

continued, culminating in plaintiffs termination.

The first and only instance of Title VII protected activity that the district court 

recognized was the March 1990 EEOC complaint. In failing to consider earlier evidence,

29The plan for improvement itself was vague and retaliatory against plaintiff for his 
refusal to take public responsibility for cancellation of the equity workshop in July of 1989.

23



such as plaintiffs testimony at Dr. Biscoe’s hearing or to recognize the continuing course 

of retaliatory conduct, the district court erroneously concluded that plaintiffs "performance 

problems" occurred "long before he filed his charge of discrimination," (id. at 1903), and 

thus, that plaintiff had not established the prima facie case for retaliation. These omissions 

improperly colored the judge’s entire view of the Title VII claim.30

The plaintiffs burden of establishing a prima facie case "is not onerous." Texas Dept, 

of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). A plaintiff typically can show 

the causal connection by establishing that the protected activity preceded the adverse action 

and that the employer was aware of the plaintiffs protected activity.31 Temporal proximity 

is important — a short period of time between the protected activity and the adverse 

employment action enhances the plaintiffs prima facie case. See e.g., Dunning v. Nat’l 

Industry, 720 F. Supp. 924, 932 (M.D. Ala. 1989).

Here, Board Members, Dr. Steller, and Dr. Little knew of plaintiffs testimony at Dr. 

Biscoe’s hearing, as they were all in attendance.32 (Aplt. App. at 1992; SLG Br. at 193.) 

He was put on his first Plan for Improvement one month later. (Id. at 2019, 2022.) 

Subsequently, he was subject to increasing harassment and retaliation until he was 

ultimately terminated. Plaintiff clearly established a prima facie case of retaliation.

The district court also erred in concluding that plaintiff failed to carry his ultimate 

burden. Most troubling, was the requirement that plaintiff prove his case by "direct" 

evidence (id. at 1904), because direct evidence is not required.33 Accordingly, this Court

30It is not correct that part of the Title VII claim went to the jury. (Bd. Br. at 29 n.5.1 
"Plaintiff was not entitled to a jury trial of his Title VII claim." (Aplt. App. at 1962 n.l.)

nSee, e.g., Holland v. Jefferson Nat’l Life Ins. Co., 883 F.2d 1307, 1314-15 (7th Cir. 
1989); Rutherford v. American Bank of Commerce, 565 F.2d 1162, 1163-64 (10th Cir. 1977).

32Moreover, under Title VII. the Board may be held liable for the retaliatory actions 
of its agents and employees. See Meritor Sav. Bank v. Vinson, 477 U.S. 57, 72 (1986).

33See e.g., Durant v. Indep. Sch. Dist. No. 16, 990 F.2d 560. 564 (10th Cir. 1993); Burrus 
v. United Tel Co., 683 F.2d. 339, 343 (10th Cir. 1982).



should reverse the judgment and remand for a new trial on plaintiffs Title VII claim.

VII. THE DISTRICT COURT’S RULING ON CONTRACT DAMAGES WAS IN ERROR

The Board argues that the Oklahoma Constitution prevents school districts from 

entering into contracts that extend beyond the fiscal year, and cites cases that have no 

application or analogy here. (Bd. Br. at 32.) However, the Oklahoma Attorney General 

has made clear that the continuing employment and teacher tenure systems in Oklahoma 

do not violate the state’s Constitution,34 and Oklahoma state law provides that the measure 

of damages for breach of contract is "the amount which will compensate the party aggrieved 

for all the detriment proximatelv caused thereby, or which, in the ordinary course of things, 

would be likely to result therefrom." Okla. Stat. tit. 23 § 21 (1996); see also Hall v. Farmers 

Ins. Exchange, 713 P.2d 1027, 1030 (Okla. 1986). The errors of the jury and the district 

court were plain here, and will result in manifest injustice if not reversed.

For the reasons set out above, the Court should grant summary judgment on 

plaintiffs due process claims, reverse the final judgment and remand for a new trial.

R p cn p f 't f i i l lv  <;iihmittpH

34Aplt. App. at 991-92; see also Okla. A.G. Opin. No. 80-272, 1980 WL 
114814)(Okla.A.G. 1980)(stating that there are no Oklahoma constitutional or statutory 
provisions which prohibit local school boards from entering into multi-year contracts with 
District Superintendents.

CONCLUSION

Steven M. Angel. OBA #  303 
6488 Avondale Drive 
Suite 239
Oklahoma Citv, OK 73105 
(405) 340-4853

Director-Counsel

Theodore M. Shaw 
Associate-Director 
NAACP LEGAL DEFENSE AND 

EDUCATIONAL FUND, INC. 
99 Hudson Street, 16th Floor 
New York. NY 10013 
(212) 219-1900

25



Judith A. Browne 
Peter Rundlet
NAACP LEGAL DEFENSE AND 

EDUCATIONAL FUND, INC. 
1275 K Street, N.W., Suite 301 
Washington, D.C. 20005 
(202) 682-1300

ATTORNEYS FOR PLAINTIFF-APPELLANT

26



PROTECTED ACTIVITY UNDER THE FIRST AND FOURTEENTH AMENDMENTS
The First Amendment to the Constitution of the United States 
guarantees individuals the right to freedom of speech and 
association which in this case includes the following activity by 
plaintiff:

Plaintiff's advocacy to the Equity Committee and the Board 
regarding the need to focus a substantive examination of 
equity on the 90% black schools created as a result of the 
1985 Student Reassignment Plan —  the "Dowell Schools."
[Plaintiff's protected conduct in this regard involves the 
setting up the Carol Gibson Workshop in September of 1988, 
Exhibit 33; guidance to the Equity Committee in its discussion 
with the Board and Dr. Steller in recommending a new charge in 
fall of 1988 focusing on academic achievement, Exhibit 47, and 
Spring of 1989, Exhibits 50, 53, 57, 65; refusal to take 
public responsibility for the cancellation of the July 1989 
Carol Gibson workshop he had scheduled to provide guidance to 
the Equity Committee on issues of educational equity, Exhibit 
77, 82, 83, 84; guidance to the Equity Committee in its 
discussion with the Board in recommending a new charge in the 
fall of 1989 (including statements to the Committee regarding 
focus on the Dowell schools at the November 21, 1989 Equity 
Committee meeting, Exhibit 112, and the Board of Education's 
December 4, 1989 meeting); guidance to the Equity Committee in 
developing the Blueprint for Equity, Exhibit 143, and efforts 
to provide substantive educational guidance to the committee, 
Exhibit 187, 198, 210.]
Plaintiff's testimony before the Board of Education in support 
of a black employee alleging discrimination.
Plaintiff's testimony before the grand jury investigating 
wrongdoing by the Oklahoma City Board of Education and the 
Superintendent Steller.
Plaintiff's filing of a charge of harassment and retaliation 
with the Equal Employment Opportunity Commission against the 
School District and Superintendent Steller.
Plaintiff's association with and advocacy on behalf of the 
Equity Committee in preparing and submitting its 1988-89, 
report, Exhibit 71, and 1989-90 report, Exhibit 439, to the 
Board of Education addressing issues of racial equity in the 
school district.



The Fourteenth Amendment to the Constitution of the United 
States gives every person the right to egual protection of the 
laws, which includes the right to advocate on behalf of equal 
treatment for racial minorities. You are instructed that the 
following actions of plaintiff are protected under the Fourteenth

Amendment:
Plaintiff's advocacy for a focused investigation of 
educational equity issues for the school children attending 
the schools that became 90% or more black in enrollment as a 
result of the 1985 Student Reassignment Plan.
Plaintiff's advocacy on behalf of himself and another black 
employee of the school district with respect to issues of 
equal pay on the basis of race.

2



CERTIFICATE OF SERVICE

I hereby certify that on this 4th day of April, 1997 I served two copies of Plaintiff- 

Appellant’s Reply Brief by first class, United States mail, postage pre-paid addressed as 

follows:

Tammy T. Carter, Esq. 
Associate General Counsel 
Oklahoma City Public Schools 
900 North Klein 
Oklahoma City, OK 73106

Laura L. Holmes, Esq.
Center for Education Law, Inc. 
809 N.W. 36th Street 
Oklahoma City, OK 73118

Robert W. Nelson, Esq. 
Michael Brown, Esq.
Sherwood, Nelson & Brown 
BankOne Building, Suite 306 
6303 North Portland Avenue 
Oklahoma City, OK 73112