Colorado Anti-Discrimination Commission v. Continental Air Lines Brief Amici Curiae

    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

APPELLANT’S OPENING BRIEF 
(*Oral Argument Requested)

Steven M. Angel. OBA #  303 
KLINE & KLINE 
Kline Law Building 
720 N.E. 63rd Street 
Oklahoma City, OK 73105 
(405) 848-0286

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 O F C O N T EN TS

PAGES

STATEMENT OF JURISDICTION ..................................................................................  1

ISSUES ON APPEAL ..........................................................................................................  1

STATEMENT OF THE C A S E ............................................................................................  2

Procedural History .................................................................................................................. 2

Statement of the Facts ..........................................................................................................  3

I. Origins of the Equity/Affirmative Action Officer Position
and the Equity Com m ittee...........................................................................  4

II. The Committee Gets Frustrated .................................................................  7

III. Plaintiffs Early Experience ...........................................................................  9

IV. A New Equity Committee Charge and the Blue Print for Equity . . .  11

V. First Proposal to Terminate Dr. Price-Curtis............................................ 15

VI. The Equity Committee 1989-90 Report ................................................... 16

VII. Termination of Dr. Price-Curtis.................................................................. 17

SUMMARY OF THE ARGUMENT .............................................................................. 18

ARGUMENT ......................................................................................................................  20

I. THE DISTRICT COURT ERRED IN RULING THAT 
PLAINTIFF’S SPEECH AND ACTIVITIES WITH THE 
EQUITY COMMITTEE WERE NOT PROTECTED BY THE
FIRST AM ENDM ENT................................................................................  20

A. Governing Legal S tan d ard s............................................................. 20

B. The District Court’s R u lin g ............................................................. 21

C. Dr. Price-Curtis’s Speech and Activities Addressed a Matter
of Public C oncern .............................................................................  22

D. Dr. Price-Curtis’s Free Speech Interests Outweigh any
Legitimate Interest Defendants May Have Had .......................... 25

II. THE COURT ERRED IN DENYING PLAINTIFF’S MOTION
FOR PARTIAL SUMMARY JUDGMENT ON HIS DUE 
PROCESS C L A IM S..................................................................................... 28

A. The Board’s Discharge Decision Was Arbitrary and Capricious 30



B. The Board’s Failure to State Reasons and Identify Evidence 
Supporting its Decision Violates Due P rocess........................ 32

C. The District Court Erred in Dismissing Plaintiffs Procedural
Due Process Claims Where Defendants Failed to Provide 
Adequate N otice ................................................................................  34

III. THE DISTRICT COURT ERRED IN GRANTING SUMMARY 
JUDGMENT TO THE BOARD AND BOARD MEMBERS ON
THE SECTION 1983 C L A IM S.................................................................  38

IV. THE EXCLUSION OF EVIDENCE OF RETALIATION 
AGAINST ANOTHER EMPLOYEE WAS REVERSIBLE
E R R O R ..........................................................................................................  37

V. THE CUMULATIVE EFFECT OF THE DISTRICT COURT’S
ERRONEOUS EVIDENTIARY RULINGS WAS NOT 
HARMLESS AND THEREFORE THE CASE SHOULD BE 
REMANDED FOR A NEW T R IA L ........................................................ 41

A. Exclusion of John Cathey’s Testimony .........................................  42

B. Limitation of the Testimony of Dr. Frank Morris ...................... 43

C. Exclusion of the Testimony of Dr. Jim Lazalier ........................  45

VI. THE DISTRICT COURT’S INSTRUCTION REGARDING DUE
PROCESS CONSTITUTES REVERSIBLE E R R O R ..........................  45

VII. THE TRIAL COURT’S ORDER GRANTING JUDGMENT IN 
FAVOR OF THE BOARD ON PLAINTIFF’S TITLE VII CLAIM 
WAS CLEARLY ERRONEOUS................................................................  47

VIII. THE JURY PLAINLY ERRED WITH REGARD TO
PLAINTIFF’S BREACH OF CONTRACT CLAIM AND
THE COURT ERRED IN LIMITING D A M A G ES............................. 48

IX. CONCLUSION 50

u



TABLE O F AUTH ORITIES

PAGE
. . 47

CASES
Aman v. Cort Furniture Rental Corp., 85 F.3d 1074 (3d Cir. 1996)

Anderson v. Phillips Petrol. Co., 861 F.2d 631 (10th Cir.
1988)   47

Birdsell v. Board of Fire & Police Comm 'rs of Litchfield,
854 F.2d 204 (7th Cir. 1988) ...................................................................................................  35

Board of Education of Oklahoma Citv v. Dowell, 498 U.S.
237,(1991)....................................... ' ..........................................................................................  4’ 5

Bogart v. Unified School District No. 298, 432 F.Supp. 895
(S.D. Kan. 1977)   33

Brenna v. Southern Colorado State College, 589 F.2d 475
(10th Cir. 1978)...........................................................................................................................  30

Bueno v. Citv of Donna, 714 F.2d 484 (5th Cir. 1983) ..........................................................  31, 34

Bueno v. Southern Colorado State College, 509 F.2d 475,
477 (10th Cir. 1978) ....................................................................................................................  19

Qhlurrus v. United Telephone Co. of Kansas, Inc., 683 F.2d 339
(10th Cir. 1992)   48

Calhoun v. Gaines, 982 F.2d 1470 (10th Cir. 1992) ...............................................................  29. 34

Cleveland v. Piper Aircraft Corp., 890 F.2d 1540 (10th Cir. 1989)................................................  49

Collins v. Wayne Corp., 621 F.2d 111 (5th Cir. 1980) ....................................................................  43

Connick v. Myers, 461 U.S. 138, (1983) ................................................................................  24, 25

Considine v. Board of Countv Comm’rs, County of Adams, 910
F.2d 695 (10th Cir. 1990)'...................................................................................................... 20. 25

Conway v. Smith, 853 F.2d 789 (10th Cir. 1988) ......................................................................  23

Dowell v. Oklahoma Citv Board of Educ. 890 F.2d
at 1501-02 ..........' . ................................................................................................................. 5’ 10

Dowell v. Board of Educ. o f Oklahoma City, 219 F.Supp.
427 (W.D. Okla. 1965).................................................................................................................... 4

Dowell v. Board of Educ. of Oklahoma City, 244 F.Supp.

•  971 (W.D. Okla. 1965), aff’d, 375 F.2d 158 (10th Cir.),
cert, denied, 387 U.S. 931 (1967)................................................................................................... 4

iii



Dowell 8 F.3d 1501 (10th Cir. 1993) ..............................................
m
~ o w e l l .  606 F.Supp. 1548 (W.D.Okla. 1985), rev’d, 795 F.2d

516 (10th Cir.), cert, denied, 479 U.S. 938 (1986)........................

Dowell v. Board of Educ. o f Oklahoma City, 338 F.Supp.
1256 (W.D. Okla.), aff’d, 465 F.2d 1012 (10th Cir.),
cert, denied, 409 U.S. 1041 (1 9 7 2 )..............................................

Dowell v. Board of Educ. of Oklahoma City, 677 F.Supp.
1503 (W.D. Okla. 1987), rev’d. 890 F.2d 1483 (10th Cir.
1989) rev’d, 498 U.S. 237 (1991)...................................................

Dowell v. Board of Educ. o f Oklahoma City, 71 F.R.D. 49 
(W.D. Okla. 1976) ............................... ' .....................................

Estes v. Dick Smith Ford, Inc., 856 F.2d 1097 (8th Cir.
1988)  

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

Gardetto v. Mason, No. 95-8005, 1999 U.S. App. LEXIS 29485 
(10th Cir. 1996) ...........................................................................

Garrick v. City & Countv of Denver, 652 F.2d 969
(10th Cir. 1981) . . ....................................................................

Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410 (1979))

Goldberg v. Kelly, 397 U.S. 254 (1972) .........................................

Graham v. Wyeth Laboratories, 906 F.2d 1399 (10th Cir. 1990) .

Hawkins v. Hennepin Tech. Center, 900 F.2d 153 (8th Cir.
1990) ..............................................................................................

Hevne v. Caruso, 69 F.3d 1475, 1479 (9th Cir. 1995) .................

Hill v. Bache Halsey Stuart Shields Inc., 790 F.2d 817 (10th 
Cir. 1986)----- ' ..............................................................................

International Broth, of Elec. Wkrs. v. WGN of Colorado,
615 F.Supp. 64 (D. Colo. 1985) ................................................

Johnson v. Zerbst, 304 U.S. 458 (1938)).........................................

Kams v. Emerson Electric Co., 817 F.2d 1452 (10th Cir.
1987) ..............................................................................................

|Katteakos v. United States, 328 U.S. 750, 765 (1946).................

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

4, 5, 22 

. . 4, 5

. . .  4

4, 7, 8 

. . 4

40, 42 

25, 26

. 23

. 50

. . 24 

. 33

, . 44

. . 40

. . . 40

39, 41, 43

............ 29

.................31

............ 45

...................42

21. 24, 25, 26

IV



Loudermill v. Cleveland Bd. of Educ., 470 U.S........................................................................  34, 35

\alek v. Federal Insurance Co.. 994 F.2d 49 (2d Cir. 1993) .....................................................  42

Mathews v. Eldridge, 424 U.S. 319 (1976) ..................................................................................... 34

Matlock v. Town of Harr ah, 719 F.Supp. 1523 (W.D. Okla.
1989), rev’d in part on other grounds, 930 F.2d 34 (10th
Cir. 1991).......................................................................................................................................  26

McGhee v. Draper, 564 F.2d 902 (10th Cir. 1977) ......................................................................  32

Melton v. Citv of Oklahoma Citv, 879 F.2d 706 (10th
Cir. 1989)' ........................ . ' ................................................................................................... 21. 26

Miller v. Citv of Mission, Kansas, 705 F.2d 368 ( 10th Cir. 
1983) . . '............................................................................. 34

Mitchell v. Mobil Oil Corp., 896 F.2d 463 (10th Cir. 1990) ........................................................ 46

Moe v. Avions Marcel Dassault-Breguet Aviation, 727 F.2d 917
(10th Cir. 1984) ...........................................................................................................................  46

Morissev v. Brewer, 408 U.S. 471 (1972).........................................................................................  33

^4orris v. Washington Metropolitan Area Transit, 702 F.2d
1037 (D.C. Cir. 1983) ............................................................................................................. 40, 41

Murphy v. McLendon, 712 F.Supp. 921 (N.D.Ga. 1988) ............................................................  32

Patrick v. Miller, 953 F.2d 1240 (10th Cir. 1992) .................................................................... 22, 23

Phillip v. ANR Freight Systems, Inc., 945 F.2d 1054 
(8th Cir. 1991) . . . ' . ........................................... 40

Pickering v. Board of Education, 391 U.S. 563 (1 9 8 7 ).................................................................  20

Ponder v. Warren Tool Corp., 834 F.2d 1553 (10th Cir. 1987) ................................................... 45

Powell v. Gallentine, 992 F.2d 1088 (10th Cir. 1993).................................................................... 25

Ramirez v. Okla. Dept, o f Mental Health, 42 F.3d 584, 594 (10th Cir. 1994) ............................. 25

Rankin v. McPherson, 483 U.S. 378, 388 (1987) .................................................................... 20, 26

Riordan v. Kempiners, 831 F.2d 690 (7th Cir. 1987) .................................................................  40

Sauers v. Salt Lake City, 1 F.3d 1122, 1126 (10th Cir. 1993) .....................................................  47

|Schalk V. Gallenmore, 906 F.2d 491 ................................................................................................ 26

Sipes v. United States, 744 F.2d 1418 (10th Cir. 1984) .................................................................  30



30
Slochuwer v. Board of Higher Education of New York City,
^ 3 5 0  U.S. 551 (1955)..................................................................................

Southside Public Schools v. Hill, 827 F.2d 270 (8th Cir. 1987)...............

Spulak v. K Mart Corp., 894 F.2d 1150 (10th Cir. 1990) ......................

Staton v. Mayes, 552 F.2d 908 (10th Cir. 1977) .......................................

Sunkist Growers, Inc. v. Winckler & Smith Citrus Products 
Co., 284 F.2d 1 (9th Cir. 1960), rev’d on other grounds,
370 U.S. 18 (1962) ..................................................................................

Swineford v. Snyder County, 15 F.3d 1258, (3d Cir. 1994)) ....................

Thomas v. Internatinal Business Machines, 48 F.3d 478 (10th Cir. 1995)

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

United States v. Sowards, 339 F.2d 401 (10th Cir. 1 9 6 4 )........................

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

Wheeler v. John Deere Co., 862 F.2d 1404 (10th Cir. 1 9 8 8 )...................

Wienman v. Updegraff, 344 U.S. 183 (1952)

Wren v. Spurlock, 798 F.2d 1313 (10th Cir. 1986) 

STATUTES

28 U.S.C. § 1291 ..................................................

28 U.S.C. §§ 1331 and 1343(a).............................

42 U.S.C. §§ 1981 ................................................

42 U.S.C. § 1983 ..................................................

42 U.S.C. § 1985 ...........................................

Civil Rights Act of 1964, 42 U.S.C. §§ 2000d

42 U.S.C. §§ 2000e-3(a) 

^34 C.F.R. § 100.7(e) .

MISCELLANEOUS

. 24

. . 40

19, 32, 
33

. 46

. . 25 

. . 40 

. 42

46, 47

19, 36, 38

. 40,41,
43

30

24

.........  1

.........  1

. . . 2, 3

. . 1, 2, 
3, 19, 21, 
35, 36, 38

. 2, 3, 21

. . . 2, 47 

...........  2

vi



Fed. R. Evid. 401 39

Fed. R. Evid. 402 ...........................................................................

Fed. R. Evid. 403 ........................................................................

Fed. R. Evid. 702 ........................................................................

Fed. R. Evid. 704(a) .................................................................

Fed. R. Evid. 801(d)(2)(D) ........................................................

Weinstein’s Evidence at U 103[06], 403[02], 403[03] ............

Wright and Miller, Federal Practice and Procedure § 2558 at 
456 (1995) ..................................................................................

39, 41 

. 45

. . 45 

. . 42 

41, 43

, . 46

. 39

vii



STATEM ENT O F PR IO R O R RELATED APPEALS

1. Price-Curtis v. Oklahoma City Public Schools, No. 96-6195. Appeal from summary 
judgment ruling denying defendants Steller, Little and Griffin qualified immunity. 
Dismissed on September 14, 1995.

2. Price-Curtis v. Oklahoma City Public Schools, No. 95-6262. Appeal by plaintiff from 
district court’s ruling denying summary judgment in favor of defendants on these claims. 
The parties stipulated on January 17, 1994, to the dismiss the appeal, subject to the entry 
of an order by the district court that would vacate its Rule 54(b) certification. On February 
6, 1996, this Court dismissed the appeal.



STATEM ENT O F JU R ISD IC T IO N

Subject-matter jurisdiction existed in the district court pursuant to 28 U.S.C. §§ 1331 

and 1343(a), as plaintiff brought this action to redress the deprivation of constitutional and 

statutory rights. Appellate jurisdiction is based upon 28 U.S.C. § 1291. After a jury trial, 

the district court entered a final Judgment in favor of defendants and against plaintiff on 

all claims on March 13, 1996. (Appellant’s Appendix ("Aplt. App.") at 1900.) A timely 

Notice of Appeal was filed on April 12, 1996. (Id. at 1906.)

ISSUES ON APPEAL1

1. Whether the district court erred in holding that plaintiffs speech and activity 
regarding racial equity were not protected by the First Amendment?

2. Whether the district court erred in denying plaintiffs motion for summary 
judgment on his due process claims?

3. Whether the district court erred in granting defendant Board and its 
members summary judgment on plaintiffs claims under 42 U.S.C. § 1983?

4. Whether the district court committed reversible error in excluding the 
following relevant evidence: a) testimony of another employee who was 
similarly harassed and retaliated against; b) testimony of a former employee 
regarding racial animus; c) opinion testimony of an expert regarding district 
officials’ efforts to misguide Dr. Price-Curtis in his job responsibilities; and 
d) testimony of Dr. Price-Curtis’s former supervisor?

5. Whether the district court erred in instructing the jury that Dr. Price-Curtis 
was given all the process he was due?

6. Whether the district court erred in granting judgment for the Board on 
plaintiffs Title VII claim?

7. Whether the jury committed plain error on the breach of contract claim and 
whether the district court erred in limiting damages on that claim to the 
remainder of term for the year Dr. Price-Curtis was terminated? *

Pursuant to Tenth Circuit Rule 28.2(b) and (c), the issues and rulings on appeal may 
be found in the record, respectively, at: Issue 1: Aplt. App. at 3356-61, 3367-69; Issue 2: 
Id. at 329-28, 1125-28, 1738-55; Issue 3: Id. at 1054-59, 1188-94: Issue 4: a) Id. at 248-97; 
b) Id. at 3084-88: c) Id. at 2784-95, 3057-59; d) Id. at 2898-99, 2966-67; Issue 5: Id. at 3353- 
54, 3654-55; Issue 6: Id. at 1901-05; Issue 7: Id. at 1875-76, 1896.



STATEM ENT O F THE CASE

Procedural History

On October 16, 1992, Dr. William Price-Curtis filed this action against the Board 

of Education of Oklahoma City Public Schools ("the Board"), individual members of the 

Board of Education, in their individual and/or official capacities ("Board Members"), and 

Drs. Steller (former Superintendent), Little (former Assistant Superintendent), and Griffin 

(former supervisor of Dr. Price-Curtis), in their individual and official capacities 

("Supervisors"). Dr. Price-Curtis alleged that defendants harassed, retaliated against, and 

ultimately terminated him from his position as the Equity/Affirmative Action Officer for 

the school district in violation of the First and Fourteenth Amendments to the Constitution 

and 42 U.S.C. §§ 1981, 1983, 1985, Titles VI and VII of the Civil Rights Act of 1964, 42 

U.S.C. §§ 2000d and 2000e-3(a), 34 C.F.R. § 100.7(e) and Oklahoma State common law 

prohibiting retaliatory discharge. (Aplt. App. at 1.) On March 17, 1993, plaintiff amended 

his complaint to add a breach of contract claim under state law. {Id. at 301.)

In response to defendants’ motions to dismiss or in the alternative for summary 

judgment, on August 25, 1993, the district court struck the motion for summary judgment 

due to improper form, denied the motion to dismiss the Board and its members under 42 

U.S.C. § 1983, finding them to be "officials with final policymaking authority," {id. at 273), 

and denied qualified immunity to the individual defendants. {Id. at 275.)

Subsequently, all parties filed motions for summary judgment, which were resolved 

in four separate orders issued on April 27, 1995. {Id. at 1738-55.) The court denied 

plaintiffs motion for partial summary judgment against the Board on breach of contract 

and procedural and substantive due process claims. The court granted summary judgment 

to all defendants on the due process claims (only the Supervisors moved for summary 

judgment on these claims). The court also granted the Board’s motion for summary 

judgment on the § 1983 claims finding that the plaintiff had not shown that the Board



acted with deliberate indifference to his constitutional rights. (Id. at 1744.) In a separate 

order, the district court concluded that the § 1983 ruling for the Board "require[d]" that the 

Board Members’ motion for qualified immunity be granted. (Id. at 1739.) The court 

denied the Board and/or the Supervisors’ motions for summary judgment on the Title VII, 

§ 1981 and § 1985 claims, and denied qualified immunity to the Supervisors.

An interlocutory appeal of the district’s court’s ruling on the due process claims was 

subsequently dismissed pursuant to a stipulation of the parties and approval of the district 

court of a request to vacate the Fed. R. Civ. P. 54(b) certification allowing that appeal. (Id. 

at 1763-64.) The district court’s April 27, 1995 rulings on the due process claims became 

final on March 13, 1996, when the district court vacated the certification and issued a final 

judgment. (Id. at 1900.) Prior to trial, plaintiff voluntarily dismissed his Title VI statutory 

and regulatory claim. (Id. at 2796.)

A jury trial began on February 20, 1996, and continued on intermittent days until 

conclusion on March 4, 1996. During trial, the district court by an Order dated February 

26, 1996, ruled as a matter of law for the Board and Supervisors (Board Members were 

effectively removed from the case after the April 27, 1995 ruling granting them immunity) 

on the § 1981 claim and for the Supervisors only on the Title VII, breach of contract, and 

tortious breach of contract claims.2 On March 13, 1996, the court ruled in favor of the 

Board on the Title VII claim3 and pursuant to the jury’s verdict for defendants, entered 

final judgment in favor of all defendants on all remaining claims. (Id. at 1900.) 

Statement of the Facts

On January 19, 1991, the Board of Education of Oklahoma City Public Schools

2There was disagreement as to whether the breach of contract claim was asserted 
against the Supervisors who did not file an answer to the claim; the district court effectively 
concluded that it was and granted them judgment as a matter of law. (Aplt. App. at 1843.)

3The court considered the Title VII claim as a non-jurv trial issue involving conduct 
that occurred before the 1991 amendments to that statute, providing a right to jury trial.

3



("OCPS") voted 5-2 to terminate Dr. William Price-Curtis as the district’s 

Equity/Affirmative Action Officer. The alleged grounds for the termination were 

"incompetence" and "willful neglect of duty." However, each of the five Board members 

who voted to terminate admit that they never concluded that Dr. Price-Curtis was, in fact, 

incompetent or that he had engaged in willful neglect of duty. The facts leading to this 

termination are set out below.

I. Origins of the Equity/Affirmative Action Officer Position 
and the Equity Committee

The Equity Officer position and the Equity Committee derived from the school 

district’s long and well-documented history of racial segregation and discrimination against 

African-American school children which culminated in a 1972 federal court desegregation 

order.4 The desegregation plan required, inter alia, that black children in grades 1-4 would 

be bused to formerly white schools.5 This desegregation plan remained in operation until 

1985, when OCPS implemented the Student Reassignment Plan ("SRP") which ended all 

busing for desegregation purposes in grades 1-4 and returned to "neighborhood schools" 

as the basis for student assignment. "Under the SRP, 11 of the 64 elementary schools 

would be greater than 90% black . . . ."6

The plaintiffs in the Dowell school desegregation case initiated a new round of 

litigation in 1985, challenging the Student Reassignment Plan.7 The district court presiding

4Dowell v. Board of Educ. of Oklahoma City, 8 F.3d 1501, 1505 (10th Cir. 1993). See 
also Dowell v. Board of Educ. of Oklahoma City, 219 F. Supp. 427, 444, 446 (W.D. Okla. 
1965); Dowell v. Board of Educ. of Oklahoma Citv, 244 F. Supp. 971 (W.D. Okla. 1965), 
affd, 375 F.2d 158 (10th Cir.), cert, denied, 387 U.S. 931 (1967); Dowell v. Board of Educ. 
of Oklahoma Citv, 338 F. Supp. 1256, 1271 (W.D. Okla.), aff’d, 465 F.2d 1012 (10th Cir.), 
cert, denied, 409 U.S. 1041 (1972); Dowell v. Board of Educ. of Oklahoma City, 71 F.R.D. 
49, 56 (W.D. Okla. 1976).

sDowell, 8 F.3d at 1505; Dowell, 338 F. Supp. at 1270.

6Board of Educ. of Oklahoma City v. Dowell, 498 U.S. 237, 242 (1991).

1Dowell v. Board of Educ. of Oklahoma Citv, 606 F. Supp. 1548 (W.D. Okla. 1985), 
rev’d, 795 F.2d 1516 (10th Cir.), cert, denied. 479 U.S. 938 (1986).

4



over the 1985 proceedings in Dowell identified the creation of the Equity Officer position

and Equity Committee as one of the "fundamental elements" of the SRP.8 Their existence

as part of the plan was relied upon by the OCPS to support the SRP9 and was repeatedly

cited as courts considered the legal challenge to the plan.10 The Equity Officer and Equity

Committee were given a Board-approved charge and definition of equity in 1985. The

original charge directed the Equity Officer and the Committee to, inter alia, visit and

review all K-4 schools in the area of facility up-keep, appropriate equipment and pupil-

teacher ratio." (Aplt. App. at 1916.) The definition of equity stated: "An educational

system which provides equal educational opportunities for all children. (Id. at 1917.) The

Committee was appointed by the Board and consisted of concerned parents, business

persons, civic leaders and retired educators. (Id. at 2697-2698.)

Views of the purpose of the Equity Committee varied. Dr. Belinda Biscoe, former

OCPS employee who was responsible for OCPS’s coordination of the defense of the SRP

in Dowell and who testified for the district in 1987, described the relationship between the

Equity Committee and the Dowell case:

Some people had real concerns, particularly the NAACP about the fact about 
going back to neighborhood schools meant some schools would literally 
become almost one hundred percent black and some schools would become 
almost one hundred percent white.

In an effort to ensure that there was in fact equity between and among all 
the schools, part of the Neighborhood Plan included the development of the 
Equity Committee. The Equity Committee’s role was defined in that plan as

8Dowell, 606 F. Supp. at 1552 ("An equity officer is to monitor all schools to insure 
equality of facilities, equipment, supplies, books and instructions in all schools. An equity 
committee is to assist the equity officer and recommend ways to integrate students at any 
racially identifiable elementary schools several times each year.").

9Dowell, 8 F.3d at 1513. The district court in this case concluded that, M[t]he creation 
of the equity officer position and the equitv committee were relied upon by the court in 
[Dowell], 778 F. Supp. 1144, 1190 (W.D. Okla. 19911, as a positive indicator that the 
resegregated black schools would be treated equitably.1 (Aplt. App. at 274.)

l0Dowell, 8 F.3d at 1505, 1519; Dowell, 890 F.2d at 1501-02 n.46 (majority opinion); id. 
at 1538-39 n.32 (dissenting opinion); Dowell, 498 U.S. at 242.

5



kind of monitoring the Dowell schools and other schools that were closer to 
being one hundred percent white to ensure that equity did in fact exist as 
related to resources, teacher education, educational levels, materials, supplies, 
and those sorts of things.

(Id. at 3052.)u Committee member Dr. Crain described the origins of the Committee as 

an effort to appease tensions created by the 1985 SRP. (Id. at 1948.)

Former Board President Betty Hill testified that the Equity Committee was to be 

independent and exercise its own judgment, (id. at 3121), but she also viewed the purpose 

of the Committee as helping to lend credence to the Board. "[T]his was to show that we 

were very, very sincere and the reports were very accurate. (Id.) Ms. Hill further expected 

the equity officer to be a public relations officer for the district, namely "[t]o speak 

positively and support [OCPS] and not try to downgrade us." (Id. at 3109-10.) Board 

Member Leo Hise frankly admitted: "I think the Equity Committee is just to assure the 

public that equity exists. I don’t think the board would ever be in a position of saying, 

Well, equity doesn’t exist." (Id. at 1025-26.)

Although the charge and the definition of equity were unchanged from 1985 through 

most of 1989, the Committee’s review varied each year. (Id. at 2871-72, 2874-76.) For 

example, although the charge addressed only grades K-4, during the 1987-88 school year, 

the Equity Committee also looked at all middle schools and high schools. (Id. at 2876.) 

The Equity Committee’s beginning years were spent focusing on inspections of facilities and 

equipment. (Id. at 2797-98, 2871.) By the second year of operations, in October 1986, the 

Equity Committee began to have conflicts with the Board and the Administration. The 

Committee objected to being asked to endorse Administration policies and positions of the 

Board, (id. at 2873-74), and was calling for a restatement of its role in the district. ”[W]e 

are merely a monitoring entity, established as a direct result of the School Board 

Reassignment Plan, implemented in 1985, which reestablished neighborhood schools." (Id.

“Walter Long, a charter member of the Equity Committee, and Tiana Douglas, the 
chair of the Equity Committee in 1989-90, had a similar view. (Aplt. App. at 2797, 2869.)

6



at 1918.) "We further believe that an independent and objective monitoring group . . .  is 

one of the most positive means of assuring equity in the district." {Id. at 1919.)‘“

On October 10, 1987, Dr. Price-Curtis was hired to serve as the district’s second 

Equity Officer, a position that the school district then combined with the position of 

Affirmative Action Officer. {Id. at 1923, 2875.) The job goals of the Equity/Affirmative 

Action Officer included "assisting] the District in achieving equity within the student 

assignment plan and related matters . . . ." {Id. at 1923.)

II. The Committee Gets Frustrated

In 1988, the Equity Committee expressed strong frustration with "inspector work,"

{id. at 2798, 2878), and felt that they had "wasted three years by looking at bathrooms and

checking pipes and ceiling[s], etc." {Id. at 1948.) Dr. Price-Curtis explained that

[T]he Equity Committee was in a lot of turmoil. They were very unhappy 
about what they were doing. They felt that they needed to be involved in 
more important issues, more issues related to education. They referred to 
themselves as toilet sniffers and desk counters, and they were very frustrated 
with this.

{Id. at 2914.) In response to these frustrations, Dr. Price-Curtis organized an equity 

workshop for the Committee in the fall of 1988 with an nationally-recognized equity 

consultant, Carol Gibson. {Id. at 2879, 2943-44.) As a result, the Committee expanded its 

understanding of equity and emphasized its desire to review more substantive 

measurements or "equity indicators," such as test scores, pupil/teacher ratios, teacher 

experience, textbooks, and curriculum material. {Id. at 1947, 2879-80, 2915-16.) Dr. Price- 

Curtis testified that he "encouraged them to become involved in those issues because I 

thought that that’s where it was with equity, and I encouraged them to do it at the Dowell 

schools." {Id. at 2916.) 12

12During this period the Dowell case was in litigation in the district court in 1985, on 
appeal in 1986, and back for a full trial in the district court in the summer of 1987, 
resulting in a decision for the school district on December 9, 1987. See supra note 7 and 
Dowell v. Board of Educ. of Oklahoma Citv, 677 F. Supp. 1503 (W.D. Okla. 1987), rev'd, 890 
F.2d 1483 (10th Cir. 1989), rev’d , 498 U.S. 237 (1991).

7'



In the late fall of 1988. the Committee proposed to the Board new substantive 

factors for measuring equity. Rev. Bender. then-Chairman of the Committee, and Dr. 

Price-Curtis met with Kay Floyd (Board President) and Dr. Steller to discuss the 

Committee’s recommendations for a new charge and definition of equity. (Id. at 1946.) 

Ms. Floyd and Dr. Steller rejected most of the Committee’s proposals, (id. at 1947-1948, 

2800-01), and Ms. Floyd proposed that the Committee report to the Administration, instead 

of the Board. (Id. at 1946.) Rev. Bender objected; "he perceive[d] the Equity Committee 

as a separate entity from the administration ' and believed the Committee’s function was 

to "raise the level of consciousness of the Administration regarding equity issues." (Id.) 

Rev. Bender stated that the Committee would not serve as a "mouth piece" for the 

Administration, and that the Committee’s independence was important to its role as a 

watchdog to ensure equity. (Id.) The Committee was concerned that the Board was 

attempting to obstruct its equity review, (id. 2878-79), and Rev. Bender reported that Dr. 

Steller’s view of the Committee was that, "We can do without you." (Id. at 1946, 2923-29.)

In January, 1989, the Equity Committee reported that it was not pleased with 

Dr. Steller’s proposal for a revised charge. They asked the Board to approve the 

Committee’s proposed definition of equity, which focused on test score performance. (Id. 

at 1950, 2804-06.) Dr. Price-Curtis encouraged the Equity Committee to recommend the 

use of test scores as an indicator of equity. (Id. at 2931.) He "believ[edj strongly that 

[Dr. Steller] was trying to control the committee." (Id. at 2929.) In fact, soon after the 

Committee presented its proposal, Dr. Steller expressed his frustration to Dr. Price-Curtis 

by telling him, "If you can’t control [the Equity Committee] any better than that, then I 

don’t need you in the position." (Id. at 2926.)13 The Board ultimately acquiesced to the

13Dr. Steller testified that a similar conversation occurred, but he says that it was about 
Dr. Price-Curtis’s salary complaint and that he told Price-Curtis that if he was going to use 
the "committee solely for the purpose of increasing his salary, the district really didn’t need 
him." (Aplt. App. at 3181-82.)

8 -



Equity Committee on this issue and let them "try it out." {Id. at 2028.)

In April of 1989, Dr. Sylvia Little was hired and served as Dr. Price-Curtis’s 

supervisor. {Id. at 3263.) Equity Committee Chair, Tiana Douglas and Dr. Price-Curtis 

testified that Dr. Little began attending the Equity Committee meetings. {Id. at 2806, 

2926.) She was a "very active participant," and Dr. Steller later told Ms. Douglas that Dr. 

Little was monitoring Dr. Price-Curtis’s behavior. {Id. at 2806-08.) At meetings, Dr. Little 

raised numerous objections to comments made by Committee members and was at times 

intimidating. {Id. at 2889, 2927.) Dr. Price-Curtis believed that she was trying to control 

the direction of the committee. {Id. at 2927.) When the Committee submitted its 1988-89 

Committee Report to the Superintendent for transmission to the Board, Dr. Steller wanted 

Dr. Little to revise the Committee’s recommendations. {Id. at 1975, 2939-41.)

III. Plaintiffs Early Experience

Within one month of his arrival, Dr. Price-Curtis prepared an Affirmative Action 

Report, which his supervisor, Dr. Betty Mason, found to be "comprehensive and complete." 

{Id. at 1931.) In plaintiffs first performance appraisal, Dr. Steller noted that he had done 

an "excellent job" working with the Urban League and had given "good quality assistance" 

with a school reorganization. Dr. Steller rated Dr. Price-Curtis’s performance "satisfactory" 

overall. {Id. at 1944, 2918-19.)

After Dr. Little arrived in the spring of 1989, Dr. Price-Curtis was assigned an 

additional job duty — minority teacher recruitment — which required significant amounts 

of time out of town. {Id. at 2933.) Despite a previously scheduled equity workshop to be 

facilitated by Carol Gibson on July 14, 1989, district officials directed Dr. Price-Curtis to 

travel by bus (other employees traveled by air) to Little Rock, Arkansas to recruit on 

July 10-12, 1989. {Id. at 1983, 2934.) Unbeknownst to Dr. Price-Curtis, on July 12, 1989, 

Dr. Little cancelled the workshop and directed Dr. Price-Curtis’s secretary to write a letter, 

under Dr. Price-Curtis’s signature, notifying Equity Committee members. {Id. at 1986,

9



2935-36.) Dr. Price-Curtis was later told by his secretary, Ms. Gibson and some Equity 

Committee members, that Dr. Little had explained that the workshop was cancelled 

because of the "[Tenth] Circuit Court’s decision relative to the Dowell case." (Id. at 

1987.)u Dr. Little later told Dr. Price-Curtis that the workshop was cancelled because of 

Dowell, (id. at 2936-37),14 15 and directed him to take responsibility for the cancellation. (Id. 

at 2938-39.) Dr. Little subsequently charged Dr. Price-Curtis with failure to "accept[] 

responsibility for position in written communication" for submitting a memorandum, (id. 

at 1987), explaining his understanding of the circumstances surrounding the cancellation 

of the workshop, (id. at 3275-79).

In late July of 1989, Dr. Price-Curtis received an evaluation, completed by Dr. 

Steller, that rated his overall performance "satisfactory" and acknowledged that "Dr. Price- 

Curtis has prepared a good affirmative action plan." (Id. at 1990, 2912-13.) Dr. Steller, 

also, however, gave Dr. Price-Curtis an "I" for "improvement needed, supported by a 

statement in the evaluation that "Dr. Curtis tends to write or speak in a negative or highly 

critical tone. He needs to be more positive. This would help him be perceived throughout 

the organization as more of a team member." (Id.) Dr. Price-Curtis considered this a 

distortion of his tenure with the district and asked Dr. Steller what he meant. Dr. Steller 

prepared a list of names of 30 people whom he asserted were complaining about Price- 

Curtis. (Id. at 2528.) In contrast, Dr. Steller’s own Executive Assistant, Mr. Darrel 

Shepard, wrote the following description of Dr. Price-Curtis on March 29, 1989:

I’ve been impressed with Dr. Price-Curtis’ ability to work with representatives

14On July 7, 1989, two judges of this Court publicly issued their opinion and judgment 
in Dowell, reversing the district court and ruling for the plaintiffs. The published opinion 
bears a date of October 6, 1989, after the dissenting opinion was completed. 890 F.2d 1483.

15At trial, Dr. Little denied that she told Price-Curtis that the workshop was cancelled 
because of Dowell. (Aplt. App. at 3259.) She maintained that it was cancelled because he 
had not requested needed data sufficiently in advance, but admitted that she did not write 
any response or objection to Price-Curtis’s memorandum, (id. at 1987), stating that she told 
people it was cancelled because of the Tenth Circuit decision in Dowell (id. at 3285-86).

10



of the superintendent’s cabinet, support personnel, and patrons of the school 
district with a high degree of success. . . . I’ve also grown to admire his work 
ethic and his work standards when measured against the tasks which have 
been assigned him and his departments.

(Id. at 79.) Further, in May of 1988, Dr. Price-Curtis was one of three district employees 

to receive the Team Management Council’s nomination for "Most Friendly Administrator." 

(Id. at 39.)

On September 25, 1989, Dr. Price-Curtis testified at a hearing before the Board, on 

behalf of co-worker, Dr. Belinda Biscoe. (Id. at 1992.) Dr. Biscoe alleged that she had 

been harassed and retaliated against by Superintendent Steller because she had complained 

of discrimination with respect to her salary. (Id. at 1995-96, 2947.) Dr. Price-Curtis testified 

that Dr. Steller had harassed Dr. Biscoe, (id. at 1994-96), and that the issue of salary 

inequity with regard to his own salary had been raised and as a result, he too had been 

harassed by Dr. Steller, (id. at 1996-2018).

On October 27, 1989, almost three months after Dr. Price-Curtis received his 

performance evaluation, (id. at 1990), Dr. Little placed him on a Plan for Improvement. 

(Id. at 2019.) The Plan included the following objectives: demonstrate personal

commitment to team management; build good working relationships with other staff 

members; accept responsibility for position in written communications. (Id. at 2022.)

IV. A New Equity Committee Charge and the Blue Print for Equity 

On November 20, 1989, the Board of Education met to discuss a new proposed 

Equity Committee charge.15 (Id. at 2023, 2027.) Dr. Little recommended to the Board 

that the Equity Committee should not review test scores, but that District staff would 

handle this. Instead, she proposed that the Committee focus on issues such as the Adopt- 

A-School Program and parental involvement. (Id. at 2953.) The Board did not approve 

her recommendations. 6

l6Board meetings are public and the meetings in which the Equity Committee charge 
was discussed were covered by the media. (Aplt. App. at 2953.)

11-



During the November 21, 1989 Equity Planning Committee meeting, the issues 

raised at the November 20 Board meeting were discussed and Dr. Price-Curtis provided the 

Committee with the Board’s proposed new charge. (Id. at 2027.) The meeting minutes 

reflect that:

The Equity Officer said the Board of Education unanimously indicated a 
desire to have the Committee analyze the issues it was originally designed to 
examine. The Equity Officer continued by stating that the purpose of an 
Equity committee concept was to ensure the black children did not suffer 
disproportionately as a result of the Reassignment Plan.

(Id. at 2023.) Dr. Little attended this meeting and did not express any disagreement with 

Dr. Price-Curtis’s statements. (Id. at 2023.) The minutes from this meeting were reviewed 

by Dr. Steller and forwarded to the Board and no objection to or contradiction of Dr. 

Price-Curtis’s statements was raised by anyone. (Id. at 2041, 3251.) The Committee was 

displeased, however, with the Board’s proposed charge which addressed "facility upkeep and 

availability of instruction material," "school adoption, tutorial programs and community 

support," but not test score performance, pupil/teacher ratio or teacher experience, which 

the Committee’s proposal from 1988 included. (Id. at 2026-27.) The Committee decided 

to recommend retaining the first paragraph from the Board’s proposed charge and to re­

submit the areas it recommended for examination in its 1988 proposal. (Id. at 2024-26.)

On December 4, 1989, the Board again considered the issue of a new charge. On 

behalf of the Equity Committee, Tiana Douglas submitted a letter to the Board reiterating 

the historical origins of the Committee and its desire to follow its proposed charge. (Id. 

at 2028.) During this meeting, Dr. Price-Curtis urged a substantive evaluation of racial 

equity in the district. He reminded the Board that the Equity Committee was established 

as a result of the return to neighborhood schools and that in light of the Dowell litigation, 

its focus should be on the 90% black schools. Dr. Price-Curtis believed that the Equity 

Committee should be allowed to monitor test scores. (Id. at 2953-54.) Although Dr. Price- 

Curtis understood that his position was contrary to Dr. Little’s, he believed that it was his

12



responsibility "to help the district in ensuring that the 90 percent schools were treated 

equitably." (Id. at 2955.)

The new charge to the Equity Committee adopted by the Board of Education on

December 4, 1989, states the following general directive:

The [OCPS] District’s Board of Education appoints and charges the Equity 
Committee with ensuring that any of the racial or ethnic groups of 
elementary students who attend schools in the district are not adversely 
affected as a result of the Board’s 1985 Student Reassignment Plan.

(Id. at 2550.) Board minutes reflect that by consensus the Board agreed that District 5 (the

predominately black area where the Dowell schools were located (id. at 3118-19)) would

have four additional special members of the Equity Committee, while other districts would

have only three. (Id. at 2551.) The Board did not amend the definition of equity.

At the Equity Planning Committee meeting the next day, December 5, 1989, the

Planning Committee discussed the new charge and its plans, including a comparison of "the

10 predominantly black schools vs. other schools within the district." (Id. at 2031.) The

Committee requested data, including test scores. Dr. Little attended this meeting and

raised no objection to the Committee’s direction or data request. (Id. at 2031-2032, 2035.)

The minutes of this meeting were also forwarded through Dr. Little and Dr. Steller to the

Board. (Id. at 2041, 3251-53.) No objection was raised to the Equity Committee’s

approach.

On January 23, 1990, Tiana Douglas presented a "Blue Print for Equity" (a plan for 

implementation of the charge) to the Equity Planning Committee. (Id. at 2090, 2094, 2828- 

29, 2865.) In creating the Blue Print, Ms. Douglas relied upon Dr. Price-Curtis’s 

recommendations. (Id. at 2090, 2865.) The Planning Committee voted to present the Blue 

Print to the full Committee. Dr. Little attended this meeting; she did not object to the use 

of the Blue Print, (id. at 2094, 2829), which was approved by the full Committee on January 

24, 1990, (id. at 2096). No one from the Administration or the Board ever told the 

Committee or Dr. Price-Curtis that they should not use the Blue Print. (Id. at 2830.)

13



Dr. Little testified on direct examination that she did not have any concerns about 

the Blue Print when she saw it. (Id. at 3261.) She testified that she had concerns about 

the direction the Committee was taking, but when asked directly by her counsel what 

specific concerns she shared with Dr. Price-Curtis, she responded: "That he needed to make 

his committee aware of the charge." (Id. at 3262.) On cross-examination, Dr. Little 

contradicted her testimony on direct and admitted that she believed at the time that the 

Blue Print was different from the charge and asserted that she did not notify Dr. Steller 

or the Board, (id. at 3320), because it was not her responsibility (id. at 3262.)17

Shortly after adoption of the Blue Print, Dr. Price-Curtis, with Dr. Little’s written 

approval, began to request information that the Equity Committee wanted pursuant to the 

Blue Print (id. at 2101-02, 2106, 2108); however, Dr. Little restricted the information to be 

shared with the Committee. (Id. at 2105, 2963.) Furthermore, she cautioned that "no 

information should be given to an Equity Committee member without prior clearance from 

[her] office." (Id. at 2110.) After several weeks passed without a response to the data 

requests from offices in the Administration, Dr. Price-Curtis followed up his written 

requests with personal contacts and after another month passed, he followed up with 

another written request. (Id. at 2114.) Still the information was not forthcoming.

During the spring of 1990, there were several issues on which the Equity Committee 

conflicted with Dr. Little. (Id. at 2116, 2124.) Ultimately the Committee requested that 

Dr. Steller prohibit Dr. Little from attending Equity Committee meetings because she had 

become so disruptive. (Id. at 2837.) Ms. Douglas further notified Dr. Steller of the 

Committee's frustration with the failure to provide requested information to the Equity

'’Although Dr. Little was writing constant directives to Dr. Price-Curtis, who at the 
time was on a Plan for Improvement, she stated that she did not provide any written 
instructions to him about the Committee’s direction or the Blue Print for Equity because 
she had no verification that this was going to be what they were doing. (Aplt. App. at 
3321.) She admits that she did not ask the Committee or Dr. Price-Curtis if they were 
relying on the Blue Print to produce the report. (Id.)

14



Committee. She stated that although this information may not be useful, it is "far better 

to let [the Committee] judge the usefulness of the information than to deny the information 

to a Citizens group. The natural response to denial of those requests is suspicion that 

someone is trying to hide something." {Id. at 2122.)

V. First Proposal to Terminate Dr. Price-Curtis

By a memorandum to Dr. Steller dated June 1, 1990,18 Dr. Little recommended that 

Dr. Price-Curtis’s employment contract be nonrenewed19 20 based on "willful neglect of duty. 

{Id. at 2584.) While the document sets out the alleged failures, it nowhere mentions the 

Blue Print for Equity or the Equity Committee's focus on the 90% black schools as a basis 

for the recommendation. {Id.) A memorandum dated June 27, 1990, from Dr. Steller to 

Gloria Griffin responds to Dr. Little’s non-renewal recommendation. It states that Dr. 

Steller decided to disapprove the recommendation in order "to be certain that Dr. Price- 

Curtis is given every opportunity to succeed . . . ." {Id. at 2593.)_0 In July of 1990, Jerry 

Steward, a lawyer for the school district, called Tiana Douglas and asked to meet. They 

met for breakfast and Mr. Steward asked Mrs. Douglas "if they terminated Dr. Bill Price- 

Curtis would [she] stay out of it." {Id. at 2842.)

Dr. Little gave Dr. Price-Curtis his 1989-90 Employee Evaluation and Plan for 

Improvement on July 26, 1990. The Plan ran from July 26 through September 20, 1990. 

{Id. at 2600.) Among many other things, the Plan required Dr. Price-Curtis to submit

18Dr. Little left the district on medical leave on June 1, 1990; Dr. Gloria Griffin became 
Dr. Price-Curtis’s immediate supervisor in Dr. Little’s absence. {Id. at 3260.)

19Nonrenewals of contracts must be approved by the Board of Education and notice 
must be provided to the employee prior to the June 30 date at which point the contract is 
otherwise automatically renewed. (Aplt. App. at 1920, 1922.)

20The draft of this memorandum dated June 26, 1990, was actually still being prepared 
by the school district’s attorney, Jerry Steward, on July 6, 1990, as is evident by his letter 
hand delivered to Ms. Griffin on that date, which enclosed a draft of the June 26th 
memorandum. {Id. at 2158.) On July 6, 1990. Dr. Price-Curtis’s employment contract was 
renewed. {Id. at 2170.)

15



proof of reading 25 books or periodicals on various topics by September 4, 1990. (Id. at 

2603-04.) Dr. Price-Curtis believed that the Plan was impossible to meet and he told his 

supervisor so. (Id. at 2989-94.)

VI. The Equity Committee 1989-90 Report

The Writing Committee of the Equity Committee prepared several drafts of the 

1989-90 annual report, (id. at 2171-74), which were shared with Dr. Griffin in July and 

August of 1990, (id. at 2203-04; 2986-88). On September 17, 1990, the Committee 

presented its 1989-90 Annual Report to the Board. (Id. at 2352, 2691.) The Report sets 

out the limits of the lay Committee's review in the introduction: "The Committee realizes 

that the findings in this report are void of rigorous scientific investigative procedures." (Id. 

at 2696.) The Committee compared the Dowell schools primarily to predominantly white 

high performing schools on 23 factors. (Id. at 2848-51.) The Committee concluded that 

"[t]he primary factor contributing to the overall "Worse Than" status is standardized test 

performance at the "Dowell Case Schools." (Id. at 2721.) The Committee further reported 

that the Dowell schools were worse off because their teachers had fewer academic degrees 

and less teaching experience. In addition, some of the Dowell schools were found to have 

worse facilities and student activities. (Id.) As a result of its findings and conclusions, the 

Committee offered recommendations to the Board. (Id. at 2722-23.)

The Report also criticized the Administration for its interference, lack of 

cooperation and failure to provide data to the Committee. The Committee specifically 

stated that, "[a]lso contributing greatly to our frustrations were the domination and 

disruption of our meetings by . . . Dr. Sylvia Little." (Id. at 2700.)

Dr. Steller provided the Board packets of memoranda highly critical of the Report, 

including his own review. (Id. at 2337.) He wrote, "The “Dowell’ schools are not worse 

than other schools in the district!!" (Id. at 2341 (emphasis in original).) The 

Administration rejects outright and unequivocally the Equity Advisory Committee s

16



conclusion . . . (Id. (emphasis in original).) He accused the Committee of bias or having 

a deliberate agenda, {id. at 2341.) He further charged that the "committee was seemingly 

steered from the beginning towards a predetermined biased result." (Id.) Lastly, Steller 

alleged that "[t]he timing of this report is also suspiciously close to the date when the oral 

arguments are to be heard by the U.S. Supreme Court." {Id.)21 22 After the presentation of 

the Report and discussion. Board members Floyd, Fogarty, Hill, Hise and Kellert voted to 

reject the Report. Members Parks and Peak voted against the motion to reject. {Id. at 

2399-2400.) The Board took no action in response to the Equity Committee’s complaints 

about the Administration’s interference and disruption of their meetings. Thereafter, the 

Board effectively disbanded the Equity Committee, (id. at 2513),”  which did not meet 

again. (Id. at 2856, 2896.)

VII. Termination of Dr. Price-Curtis

On November 6, 1990, Dr. Steller notified Dr. Price-Curtis that he was 

recommending to the Board that he be terminated for incompetence and willful neglect of 

duty. (Id. at 2661.) The first of the twenty-one reasons cited for the recommendation was 

an alleged "Failure to guide the Equity Advisory Committee to a Blueprint for Equity 

consistent with the Board’s Charge and/or appropriately notify your immediate supervisor 

when it became apparent the Committee was not following the Charge." (Id.)

On January 7, 1991, the Board scheduled a termination hearing for 8 a.m. on 

January 19, 1991. (Id. at 455.) By a letter dated January 10, 1991, Dr. Price-Curtis’s 

counsel, Joseph Strealy, requested a continuance because plaintiff had a pending complaint

21In a June 28, 1990 memorandum to Dr. Price-Curtis. Dr. Gloria Griffin had proposed 
this time frame for presentation of the Annual Report. "We could have a projected date 
for its presentation to the Board at the second meeting in September . . . .  That will be 
a timeline that should assist the committee and you." (Aplt. App. at 2157.)

22On November 15, 1990, Dr. Little informed the Committee Members that the 
meetings had been put on an indefinite hold until the Board could take action on the 
charge and a revision of the Committee membership. (Id. at 2514.)

17



before the Equal Employment Opportunity Commission (EEOC).23 Strealy also requested 

a continuance because he had an argument in this Court in Denver on the day before the 

8:00 a.m. hearing, impeding his ability to prepare. {Id. at 471-73.) The Administration 

objected to the request, {id. at 427), and although the request was received on January 11, 

the Board members were not informed of it until they convened at 8:00 a.m. on Saturday, 

January 19, 1991. {Id. at 432.) They were quite irritated by the "late" request. {Id. at 387, 

392-394, 412-413.) Dr. Price-Curtis did not attend the meeting on January 19, 1991, 

because he had asked for a continuance and was advised not to appear without counsel. 

{Id. at 436.) Board members Floyd, Fogarty, Hill, Hise and Kellert voted to deny the 

continuance, not to hear any evidence, and to approve the recommendation to terminate. 

{Id. at 446, 452.) Defendants admit that none of the five members of the Board who voted 

in favor of Dr. Price-Curtis’s discharge ever concluded that Dr. Price-Curtis was 

incompetent or that he wilfully neglected his duty. {Id. at 956-957.)

SUMMARY OF THE ARGUMENT

I. The district court erred in holding that Dr. Price-Curtis’s statements in favor of an 

examination of racial equity and involvement with the Equity Committee’s review of equity, 

were not protected under the First Amendment. In light of the Dowell school 

desegregation case, these issues were a matter of public concern and the interest of Dr. 

Price-Curtis and the public in protecting free speech of an employee hired to disclose 

governmental discrimination clearly outweighs any alleged disruption. See, Feldman v. 

Philadelphia Housing Authority, 43 F.3d 823 (3rd Cir. 1994).

II. The court erred in granting summary judgment for defendants on substantive and 

procedural due process claims because: A) defendants admit that they did not conclude 

that Dr. Price-Curtis was incompetent or that he engaged in wilful neglect of duty, and

23On March 13, 1990, plaintiff filed a complaint with the EEOC charging Dr. Steller 
with race discrimination based on salary and retaliation and harassment. (Aplt. App. at 495- 
517)

18



thus, they had no legitimate reason for the discharge, Bueno v. Southern Colorado State 

College, 509 F.2d 475, 477 (10th Cir. 1978); B) defendants relied upon no evidence in 

discharging Dr. Price-Curtis, nor did they state any reasons for their decision, Staton v. 

Mayes, 552 F.2d 908, 916 (10th Cir. 1977); and C) defendants failed to provide notice to 

Dr. Price-Curtis that by not attending his termination hearing, his right not to be 

terminated in the absence of just cause would be waived.

III. The trial court erred by granting summary judgment to defendants on Dr. Price- 

Curtis’s § 1983 claim where defendant Board members knew of his charges of harassment 

and retaliation, and in fact, were bombarded with telephone calls about it, yet ignored these 

warnings. Ware v. Unified School District No. 492, 902 F.2d 815, 819 (10th Cir. 1990).

IV. The court’s exclusion of testimony of another employee who experienced similar 

harassment and retaliation to Dr. Price-Curtis was reversible error.

V. The cumulative effect of the district court’s erroneous evidentiary rulings excluding 

evidence of defendants’ retaliatory conduct against plaintiff and others, evidence of racial 

animus, and evidence rebutting charges of incompetency, adversely affected Dr. Price- 

Curtis’s substantial rights and thus, require reversal and remand.

VI. Where due process issues were not before the jury, the district court’s cautionary 

instruction to the jury that Dr. Price-Curtis was given all the process that he was due, was 

highly prejudicial and misleading to the jury and therefore, the verdict cannot stand.

VII. The district court erred in ruling for defendants on Dr. Price-Curtis's Title VII claim 

where it failed to consider evidence, excluded highly probative evidence, and relied upon 

an erroneous legal standard.

VIII. The jury's verdict in favor of defendants on the breach of contract claim was plain 

error in view of the evidence that defendants had no just cause for the discharge. In 

addition, the court erred as a matter of law in limiting Dr. Price-Curtis's damages under 

his breach of contract claim to one year.

19



ARGUMENT

I. THE DISTRICT COURT ERRED IN RULING THAT PLAINTIFF’S 
SPEECH AND ACTIVITIES WITH THE EQUITY COMMITTEE WERE 
NOT PROTECTED BY THE FIRST AMENDMENT

A. Governing Legal Standards

The law is well established that the government "cannot condition public 

employment on a basis that infringes the employee's constitutionally protected interest in 

freedom of expression." Connick v. Myers, 461, U.S. 138, 142 (1983) (citations omitted); 

accord Considine v. Board of County Comm ’rs, County of Adams, 910 F.2d 695 (10th Cir.

1990)(quoting Rankin v. McPherson, 483 U.S. 378. 383 (1987)). Before the ultimate 

question whether an employee was terminated for exercise of his First Amendment rights 

can be resolved, a court must determine as an initial matter if the speech or activity is 

protected by the First Amendment. That determination requires the court first to decide 

whether the employee’s activities "may be ‘fairly characterized as constituting speech on a 

matter of public concern." Rankin, 483 U.S. at 384 (quoting Connick, 461 U.S. at 146 n.7).

Second, if the speech is a matter of public concern, the court must weigh the 

employee’s interest in free speech against the government’s interest in promoting efficiency 

among its employees. In Pickering v. Board of Education, 391 U.S. 563, 568 (1987), the 

Court held that

[courts must strike a] balance between the interests of the [employee], as a 
citizen, in commenting upon matters of public concern and the interest of the 
State, as an employer, in promoting the efficiency of the public services it 
performs through its employees.

On appeal, the "court has an obligation to ‘make an independent examination of the 

whole record’ in order to make sure that ‘the judgment does not constitute a forbidden 

intrusion on the field of free expression.’" Rankin, 483 U.S. at 386 n.9 (citation omitted). 

The question whether the activity is protected under the First Amendment is ultimately a

20



question of law to be reviewed de novo by this Court.*4

B. The District Court’s Ruling

At trial, Dr. Price-Curtis asserted that his advocacy to the Equity Committee and

the Board regarding the need to examine equity by focusing on the 90% black schools —

the Dowell schools — and his activities in connection with the Committee’s preparation and

submission of its 1988-89 and 1989-90 reports were protected activity. (Aplt. App. at 3357.)

The district court concluded, however, that none of the statements, advocacy or activities

related to the Equity Committee were protected under the First Amendment and the jury

was not allowed to consider them on claims under § 1983, § 1985 or on the retaliatory

discharge claim.24 25 Specifically, the court ruled that

the following activity was not protected by the First Amendment. First, 
plaintiffs recommendation] to the Equity committee on November 21, 1989 
that it focus[] on the 90 percent schools . . .  in preparing its ’89-90 report. 
[Second,] speaking before the Board of Education in ’89 [and] his desire to 
focus on the Dowell schools with respect to a new charge. I feel that such 
activity occurred during and as a direct result of the Plaintiff’s job 
responsibility. And I believe in the Koch case the Court said the speech in 
the course of an employee’s duty will usually or not always reflect upon the 
employee’s competence to perform his or her job.

. . . [T]he speech at issue was not calculated to disclose any wrongdoing or 
any malfeasance . . . .  I would also hold that the Defendants were entitled 
to view Plaintiff’s direction to the Equity Committee as reflecting negatively 
on his competence. And likewise, I find that there is evidence that the 
Plaintiff’s speech was disruptive both with the relationship of superiors and 
relationships with the Equity Committee and the Board of Education.

(Aplt. App. at 3360-61.)26

24Melton v’. City of Oklahoma Citv, 879 F.2d 706, 713 (10th Cir. 1989), reh'd en banc on 
other grounds, 928 F.2d 920 (1991); Koch v. City of Hutchinson, 847 F.2d 1436, 1441 (10th 
Cir. 1988)(en banc).

25The court also held that Dr. Price-Curtis’s filing of an EEOC complaint and guidance 
to the Equity Committee through the Carol Gibson equity workshop were not protected. 
The court did hold that plaintiffs testimony in the Biscoe hearing and before the Grand 
Jury were protected. (Aplt. App. at 1864, 3358-60, 3368.)

26The court did not specifically refer to plaintiffs association with the Equity 
Committee, but effectively denied it as protected activity and did not send it to the jury.

21



C. Dr. Price-Curtis’s Speech and Activities Addressed a Matter of 
Public Concern

Speech is a matter of public concern if it is of social, political or other concern to 

the community. Patrick v. Miller, 953 F.2d 1240. 1247 (10th Cir. 1992). Matters of purely 

personal significance are not protected. Id. Whether speech is a matter of public concern 

must be determined upon a consideration of "the content, form, and context of a given 

statement, as revealed by the whole record." Id. (quoting Connick, 461 U.S. at 146-47).

Dr. Price-Curtis’s speech and activities with the Equity Committee occurred in the 

context of the Dowell school desegregation case -- the first major school desegregation case 

to go to the Supreme Court in over a decade -- where the defendants were litigating an 

issue of national significance and longstanding controversy: when can a formerly segregated 

school district cease all desegregation measures and be released from court supervision.' 

The Equity Officer position and the Equity Committee were a "fundamental" component 

of the SRP adopted by the Board to eliminate the desegregation plan. Because the issue 

of racial inequity in education was at the heart of the initial effort to desegregate, as the 

district abandoned all desegregation measures through the SRP,'8 the Equity Officer and 

Equity Committee ostensibly were the check provided to assure the public and the courts 

that the Board was acting in good faith and that racial inequity would not be allowed. 

Dr. Price-Curtis, as the Equity Officer, was also required to facilitate the independent 

citizens advisory committee appointed by the Board to assess equity under the SRP.

Unfortunately, the Equity Officer and the Equity Committee were given a mixed 

message by the Board: we want you to be the independent and objective citizens

committee to assess equity in the school district, but you can only do such assessment in 27

27Linda Greenhouse, High Court Agrees to Rule On When Supervision of School 
Desegregation Should End, New York Times, Mar. 27, 1990, at A22 (Aplt. App. at 48).

:sThe Board stopped busing black children into white neighborhoods in grades 1-4 
resulting in a total of 11 schools that were almost 100% black. Dowell, 8 F.3d at 1505.

22



the manner in which we tell you. Ultimately, this structure over several years led to 

frustration on the part of the Equity Committee members who came to view their review 

as meaningless, describing themselves as "toilet sniffers and desk counters." (Aplt. App. at 

2914.) Dr. Price-Curtis’s speech, urging the Committee and the Board to do a substantive 

assessment of racial equity really focused in on the Board’s breach of the public trust. 

While it was publicly holding out the Equity Officer and the Equity Committee as "equity 

inspectors" for the school district, the Board was actually controlling their review in such 

a way as to make it meaningless. Thus, it was no surprise that the Committee was 

frequently told that it was not needed, while at the same time it was asked to stay by the 

Superintendent "until the Dowell case goes away." {Id. at 2S09-10.) When pressured by 

Dr. Price-Curtis’s and the Committee's public request to undertake a substantive and race- 

focused review of equity, the Board grudgingly allowed the Committee to do so under the 

December 4, 1989 charge, while still trying to control their access to information and 

analysis by providing "canned" research prepared by the Administration for the Committee 

to republish. {Id. at 2080-83.) Ultimately, when the Committee concluded under a limited 

set of factors that the Dowell schools were worse than a group of schools that were 

generally high performers and heavily white and set forth its belief that the Administration 

had tried to restrict its review, the Board and the Administration vehemently and publicly 

disagreed. The Administration and the Board rejected the report, disbanded the Equity 

Committee and fired the Equity Officer.

Here, Dr. Price-Curtis’s call for a substantive investigation of racial equity under the 

SRP was a matter of public concern.29 Similarly, the statements and conclusions in the *

2<)See Gardetto v. Mason, No. 95-8005, 1999 U.S. App. LEXIS 29485 (10th Cir. 
1996)(speech relating to the integrity and misrepresentations of public officials were a 
matter of public concern); Patrick v. Miller, 953 F.2d at 1246-47 (allegations of 
discriminatory employment practices and perceived illegal budgeting activities were matters 
of public concern); Conway v. Smith, 853 F.2d 789, 796 (10th Cir. 1988)("speech that seeks 
to expose improper operation of the government or questions the integrity of governmental

(continued...)

23



Equity Committee's Report that were imputed to Dr. Price-Curtis regarding the 

Committee’s view that the Administration had attempted to limit the scope of their 

investigation as well as their conclusions with respect to the Dowell schools were matters 

of public concern and therefore, protected under the First Amendment. In Connick, the 

Supreme Court found that even an employee's speech arising out of a personnel dispute 

and taking the form of a questionnaire to co-workers relating to pressure to work on 

political campaigns was a matter of public concern, although only in "a most limited sense." 

461 U.S. at 149. Further, the Court specifically noted that speech protesting racial 

discrimination, that is not of a personal nature, is "a matter inherently of public concern." 

Id. at 148 n.8 (citing Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410 (1979)).

The district court found that Price-Curtis’s statements and guidance to the 

Committee were made as part of his job responsibilities and, citing Koch, 847 F.2d 1436, 

appears to have concluded that the speech could not be protected because of this context. 

(Aplt. App. at 3358-60, 3367-69.) This was error. First, this Court in Koch established that 

there is no per se rule exempting statements made in the course of an employee’s duties 

from the protection of the First Amendment. Koch, 847 F.2d at 1442. Second, Koch is 

quite distinguishable. In Koch, a fire marshal alleged that he was demoted for opinions in 

a fire investigation report that he prepared. This Court held that Koch's statements were 

not a matter of public concern because the report was a routine governmental report and 

there was no evidence that his statements were intended to disclose any wrongdoing by 

governmental officials. Id. at 1449. Unlike Koch’s responsibilities which required 

investigations of possible wrongdoing by others, the Equity Officer and the Equity 29

29(...continued)
officials clearly concerns vital public interests"); Wren v. Spurlock, 798 F.2d 1313 (10th Cir. 
1986)(faculty member’s request for an investigation and complaint of high faculty turnover 
and sexual harassment were matters of public concern); Southside Public Schools v. Hill, 827 
F.2d 270 (8th Cir. 1987)(teachers’ complaint regarding deficiencies in implementation of 
federal handicapped pupil program was a matter of public concern).

24



Committee were required to conduct an internal investigation of the efforts of the 

Administration and the School Board for the very purpose, ostensibly, of providing an 

independent and public check on the district’s operations in order to create confidence and 

trust for the public and the courts that the Board would no longer discriminate against 

black school children. This is inherently and almost by definition "classic" work of a public 

concern which must be afforded the protection of the First Amendment. 0

In a similar context, the Court of Appeals for the Third Circuit held in Feldman v. 

Philadelphia Housing Authority, 43 F.3d 823 (3rd Cir. 1994), that the report of an employee 

required by his job responsibilities to audit management and whose audit report was critical 

of his governmental employer, thus undercutting management’s glowing annual report, was 

protected by the First Amendment. The court stated, "the very purpose of his auditing 

reports was to ferret out and highlight any improprieties that he found . . . ." Id. at 829 

(citing Swineford v. Snyder County, 15 F.3d 1258, 1274 (3d Cir. 1994)). Clearly, speech and 

activities designed to expose possible inequity or breach of the public trust by an employee 

who is charged with doing so (a government-employed whistleblower) should receive 

protection under the First Amendment.30 31

D. Dr. Price-Curtis’s Free Speech Interests Outweigh any Legitimate 
Interest Defendants May Have Had

An employee’s speech on a matter of public concern may only be restricted where 

the State’s interests as an employer, in promoting efficiency of the services it performs, 

outweighs the interests of the employee, as a citizen. Ramirez v. Oklahoma Dept, of Mental 

Health, 41 F.3d 584, 594 (10th Cir. 1994)(citation omitted). To justify a restriction, the

30See Considine, 910 F.2d at 700 n.6 (distinguishing Koch and holding plaintiffs speech 
within purview of job responsibilities a matter of public concern where alleged 
improprieties could be attributed to employer.)

3lSee also Connick, 461 U.S. at 148; Powell v. Gallentine, 992 F.2d 1088, 1091 (10th Cir. 
1993)(a professor who publicized grade fraud "did not address internal policies relevant 
only to department personnel nor involve essentially a private matter, but concerned 
information in which the public would definitely be interested" (citation omitted)).

25



public emplover must show "actual disruption of services which results from employees’ 

speech." Id. (quoting Schalk v. Gallemore, 906 F.2d 491, 496 (10th Cir. 1990)(citing Melton 

v. City of Oklahoma City, 879 F.2d 706 (10th Cir.)(emphasis added).) The focus of this 

examination is upon "the effective functioning of the public employer’s enterprise. 

Interference with work, personnel relationships, or the speaker’s job performance can 

detract from the public employer’s function; avoiding such an interference can be a strong 

state interest." Id. at 595 (quoting Rankin v. McPherson, 483 U.S. at 388). Of course, the 

governmental interest in effective functioning of the enterprise must be for a legitimate 

purpose.32

Here, the district court held that under Koch, plaintiffs speech was disruptive in two 

ways; (1) because his activities were within his job responsibilities, the defendants were 

entitled to view Dr. Price-Curtis’s activities as reflecting negatively upon his competency; 

(2) Dr. Price-Curtis’s speech was disruptive to his relationship to his superiors and the 

Equity Committee’s relationship to the Board. (Aplt. App. at 3361.) This was error.

First, Dr. Price-Curtis’s activities must be placed in context of his position. Where 

an employee is engaged in whistleblowing, he is "entitled to special consideration in the 

Pickering balancing." Matlock v. Town of Hairah, 719 F. Supp. 1523 (W.D. Okla. 1989), 

rev’d in pan on other grounds, 930 F.2d 34 (10th Cir. 1991). Thus, like the employee in 

Feldman, Dr. Price-Curtis’s job licensed and required him to perform in a manner that his 

employers necessarily recognized included a likelihood of "disruption." But in this instance, 

they must have concluded that the potential "disruption" caused by allowing citizens in the 

community to examine equity issues was for the greater good or goal of actually achieving 

equity and developing trust in the school district. See Feldman, 43 F.3d at 830.

32Any interest that a governmental defendant may have in creating what is, in effect, 
a subterfuge to garner public support for what it perceives to be a legitimate goal (i.e., 
elimination of busing), cannot be weighed against the employee's interest in exposing that 
the government is indeed employing a subterfuge.

26



Second, with regard to competency, the court failed to explain its conclusion that 

Dr. Price-Curtis’s recommendations to the Board and the Committee to look at the Dowell 

schools could be considered to reflect negatively on his competence. His job was to provide 

guidance to the Board and the Committee on equity issues. If he did not express his 

honest view that they needed to focus on racial equity at the Dowell schools, given the 

racial segregation resulting from the SRP, then he would not have been doing his job. 

Furthermore, the evidence demonstrates that Dr. Price-Curtis believed that the Board was 

interested in having the Committee focus on the Dowell schools, that he communicated his 

understanding to Dr. Steller, Dr. Little and the Board, and that they never informed him, 

prior to the issuance of the Committee report over nine months later, that they thought 

that the focus on the Dowell schools was wrong.”  Dr. Little attended the Equity 

Committee meeting where the Blue Print for Equity was adopted, yet she never told the 

Equity Committee or Dr. Price-Curtis that the Equity Committee’s direction was wrong. 

Furthermore, although Dr. Price-Curtis was under a Plan for Improvement and continually 

received written directives, he was never advised that the Committee s approach was wrong.

The Administration’s reaction to the Equity Committee’s review under the 1989 

charge and to the 1989-90 Equity Committee Report demonstrate that their displeasure had 

nothing to do with Dr. Price-Curtis’s competency. If it had. they would not have needed 

a new charge or revisions to the Committee membership, nor would they have disbanded 

the Equity Committee after it issued its report or ignored the Committee’s serious 

complaints about "domination and disruption" by Dr. Little. Instead, however, the reactions 

of Dr. Steller and Dr. Griffin focus on what they alleged to be personal agendas, bias, 33

33Dr. Price-Curtis sent Dr. Steller and the Board the minutes of two crucial Equity 
Planning Committee meetings November 21, 1989 and December 5, 1989, where Dr. Little 
was in attendance and Dr. Price-Curtis stated his understanding that the Board wanted the 
Committee to monitor the Dowell schools. (Aplt. App. at 2041, 3251-53.) No defendants 
indicated to the Equity Committee or Dr. Price-Curtis that this understanding or approach 
was wrong.



"allegiance to something other than the Board of Education," (Aplt. App. at 2421), and 

indications that Dr. Price-Curtis "was in agreement with the position of committee 

members." (Id.) At trial, Drs. Steller and Little criticized Dr. Price-Curtis for not issuing 

a report dissenting from the views of the Equity Committee. (Id. at 1001, 3323-24.)

Any disruption that occurred was clearly licensed by defendants who created this

independent investigative citizens advisory committee and administrative position and

caused by defendants’ own "disruption" of the Equity Committee’s work which engendered

distrust and frustration among the Committee members towards the Administration. Any

disruption that may have flowed from Dr. Price-Curtis s activity is outweighed by his and

the public’s interest in protecting the free speech rights of employees in positions such as

his. In view of the public interest, acknowledged by the district’s creation of the Equity

Committee and Equity Officer position, in having independent review of a controversial

issue on which there was a history of public distrust created by actual governmental

wrongdoing, Dr. Price-Curtis’s speech and activities are entitled to protection under the

First Amendment. The district court erred in ruling otherwise.

II .  THE COURT ERRED IN DENYING PLAINTIFFS MOTION FOR 
PARTIAL SUMMARY JUDGMENT ON HIS DUE PROCESS CLAIMS

The district court erred, as a matter of law, in denying plaintiffs motion for 

summary judgment on his due process claims. In separate orders on April 27, 1995, the 

district court denied plaintiffs motion for partial summary judgment against the Board, 

(Aplt. App. at 1746), and granted summary judgment to defendants on the due process 

claims (although only the Supervisors moved for summary judgment). (Id. at 1749.) The 

district court erroneously held that the Board adopted the Superintendent’s 

recommendation as its own and that his letter provided reasons for the termination and the 

evidence in support. Furthermore, the court held that Dr. Price-Curtis was given all the 

due process he was due by the fact that he was given written notice of the charges, an 

explanation of the supporting evidence and an opportunity to be heard. (Id. at 1754-55.)

28



These rulings are contrary to the law and the evidence.34

The uncontroverted evidence shows the following. On January 7, 1991, the Board

scheduled a termination meeting for Dr. Price-Curtis for Saturday, January 19, 1991 at 8

a.m. (Aplt. App. at 455.) Dr. Price-Curtis, through counsel made a timely request for a

continuance on January 10, 1991. (Id. at 437, 471-73.) Board counsel did not notify the

Board of this request until the morning of the meeting. At that point, the Board was quite

irritated by what they considered a "late" request, (id. at 387, 392-93, 412-13); they voted

5-2 to deny the request for a continuance. (Id. 426-28.)

The Board then decided not to hear any evidence despite Board Counsel’s warning:

If you don’t take evidence. My concern is if you're not given some evidence, 
and that’s why I want to ask about the superintendent’s letter — if it contains 
grounds, you run the risk of your decision being labeled as arbitrary and 
capricious if there is not some evidence upon to base that decision.

(Id. at 448 (emphasis added).) The Board refused to discuss the substance of the

recommendation and ultimately voted 5-2 in favor of termination. Furthermore, the Board

stated no reasons for the termination. In fact, each of five members who voted in favor of

the discharge, admitted (in depositions and in their brief opposing summary judgment) that

they did not conclude that Dr. Price-Curtis was incompetent or that he wilfully neglected

his duty. (Id. at 316-19, 650.) Two of these members, Mr. Hise and Mr. Kellert, further

admitted that they voted in favor of termination solely because Dr. Price-Curtis did not

attend the meeting. (Id. at 319-20.)35

34Review of summary judgment determinations is de novo and thus, requires the Court 
to "examine the factual record, including any reasonable inferences arising from it, in the 
light most favorable to the party opposing summary judgment." Calhoun v. Gaines, 982 
F.2d 1470, 1472 (10th Cir. 1992)(citation omitted.) Further, each motion should be 
considered separately, with each movant bearing the burden of establishing that no genuine 
issue of material fact exists and that he is entitled to judgment as a matter of law. 
International Broth, o f Elec. \Vkrs. v. WGN of Colorado, 615 F. Supp. 64, 66 (D. Colo. 1985).

35Frank Kellert testified: "The vote was a procedural issue, with regard to the fact that 
a hearing had been scheduled, there was a nonappearance . . . ." (Aplt. App. at 402.) Leo 
Hise similarly concluded that non-attendance was the reason for his vote:

(continued...)

29



The district court erred in dismissing Dr. Price-Curtis’s substantive and procedural 

due process claims. This court should reverse and enter judgment in plaintiffs favor.

A. The Board’s Discharge Decision Was Arbitrary and Capricious 

Substantive due process prohibits the discharge of a public employee for reasons that 

are "patently arbitrary and capricious." Wienman v. Updegraff, 344 U.S. 183, 192 (1952); 

Slochower v. Bd. of Higher Educ. of New York City, 350 U.S. 551, 556 (1955); see also, 

Brenna v. Southern Colorado State College, 589 F.2d 475, 477 (10th Cir. 1978).35 36 Here, the 

undisputed evidence demonstrates that the Board’s termination of Dr. Price-Curtis for no 

reason at all, violated his substantive due process rights.

The Board is the final decision-making authority for the District, with an obligation 

to make an independent determination regarding terminations. (Aplt. App. at 343-47, 364, 

374-75, 380-82.) The Superintendent recommended that Dr. Price-Curtis be discharged for 

incompetence and wilful neglect of duty. Although five Board members voted to terminate 

him, each of them admit that they did not reach any conclusion about these charges. In 

fact, no reasons were stated for the Board’s decision. (Id. at 428-30.)

Since the Board did not conclude that Dr. Price-Curtis was incompetent or engaged 

in wilful neglect of duty, it essentially treated Dr. Price-Curtis’s non-attendance as a waiver 

of his right to continued employment in the absence of just cause to terminate him. In 

fact, the Board argues that non-attendance gave them carte blanche to terminate Dr. Price-

35(...continued)
Q: You said you voted in favor of termination because Dr. Price-Curtis didn’t
appear?
A: Yes.
Q: Is that the only reason?
A: Yes, that I — I had no other facts to base my decision.

(Id. at 382.)

36Due process is afforded only where a liberty or property interest is at stake. See also, 
Sipes v. United States, 744 F.2d 1418. 1420 (10th Cir. 1984). The district court correctly 
concluded that Dr. Price-Curtis had a property interest in continued employment, as 
established by state law and Board policy. (Aplt. App. at 1753-1754.)

30



Curtis for any reason, legitimate or not, so long as procedural due process was provided. 

(Id. at 535.) This is clearly wrong. Waiver of due process rights can only occur where 

there is an "intentional relinquishment or abandonment of a known right or privilege." 

Bueno v. City of Donna, 714 F.2d 484, 492 (5th Cir. 1983)(quoting Johnson v. Zerbst, 304 

U.S. 458 (1938)). "In evaluating these waivers, courts indulge every reasonable presumption 

against finding a waiver." Id. (citations omitted.) Clearly, Dr. Price-Curtis did not know 

that non-attendance would waive his right not to be terminated in the absence of just cause. 

No notice was provided to Dr. Price-Curtis that indicated that if he did not attend the 

hearing, the Board could discharge him without any reasons. In fact. Dr. Price-Curtis had 

no intention of waiving his rights. He requested a pretermination hearing (Aplt. App. at 

1456-58), and notified the Board Counsel that the request for a continuance should not be 

construed as a waiver of his right to a hearing. (Id. at 735, 743.) Thus, Dr. Price-Curtis 

had every intention of protecting his due process rights. The Board’s decision to terminate 

Dr. Price-Curtis without just cause therefore was not based upon a waiver of his rights and 

was illegal.

Further, two of the Board members, Hise and Kellert, voted to terminate Dr. Price- 

Curtis solely because he did not attend the termination meeting. Such a reason does not 

constitute just cause for termination, especially where as here, the employee was not 

notified of this as a legitimate justification for termination.

Where Dr. Price-Curtis actively sought an opportunity to present his case, and where 

the Board had no evidence justifying any finding that Dr. Price-Curtis was no longer fit for 

his job (and in fact, reached no such conclusion), the Board’s discharge decision clearly was 

arbitrary and capricious.37

37During the January 19 meeting, there was discussion about placing Dr. Price-Curtis 
in another position in the District. Board member Orel Peak stated that "[a] vote to deny 
the motion [to terminate] would result in the administration being directed to find suitable 
employment for an apparently competent individual. All problems would be resolved, to

(continued...)

31



B. The Board’s Failure to State Reasons and Identify Evidence 
Supporting its Decision Violates Due Process

Due process requires that the decision maker state reasons for the determination 

and the evidentiary basis relied on. Staton v. Mayes, 552 F.2d 908, 916 (10th Cir. 1977). 

Defendants assert that these requirements were met because the minutes of the termination 

meeting "indicate" the reasons for the decision and the evidence relied upon. (Aplt. App. 

at 540-41.) That is not enough. Under Staton, indications of what may have been the 

reasons for a discharge do not comport with due process requirements. In Staton, this 

Court specifically held that conclusory terms such as "incompetence" and "willful neglect 

of duty" were insufficient. The Court further found that a minute entry merely noting the 

discharge of an employee also violates due process, even if such entry was meant to imply 

that the discharge was based upon charges in the notice of proposed termination. See also, 

McGhee v. Draper, 564 F.2d 902 (10th Cir. 1977)(requiring a consensus statement of 

reasons); Muiphy v. McLendon, 712 F. Supp. 921, 924 (N.D.Ga. 1988).

The record reveals that defendants merely voted "that the Board accept the 

personnel agenda item as presented December 3, 1990." (Aplt. App. at 429.) The 

December 3, 1990 personnel agenda item contained no reasons, (id. at 835, 838); nor did 

the minutes or transcript cite to any. (Id. at 340-41; 430, 446-52.) In fact, the Board never 

even mentioned the substance of the recommendation and the Board’s reasons for its final 

vote. In Murphy, the Court held as inadequate the Board's decision stating that "the 

employee having been recommended for disciplinary action for cause as determined by the 

City Manager, the same is found to be appropriate under the circumstances of this case, 

and the punishment as recommended is hereby imposed." 712 F. Supp. at 923. Similarly, 

under these circumstances, Dr. Price-Curtis is entitled to summary judgment on his due 

process claim. 37

37(...continued)
deny the recommendation. To approve the recommendation opens up a can of worms that, 
no doubtedly, will extend for some period of time until some form of justice expresses 
itself." (Aplt. App. at 450.) No Board members contradicted Mr. Peak’s statements about 
Dr. Price-Curtis’s competency. This evidence strongly weighs against any argument that 
the Board voted to terminate plaintiff based upon findings of incompetence and wilful 
neglect of duty.

32



Due process specifically requires that a statement of reasons and evidence be (a) 

made by the decision makers themselves, see, e.g., Morissev v. Brewer, 408 U.S. 471, 489 

(1972); (b) made at the time of the decision, see, e.g., Bogart v. Unified School Dist. No. 298, 

432 F. Supp. 895, 904 (S.D. Kan. 1977); and (c) based only on evidence in the record 

before the decision making body, see, e.g., Goldberg v. Kelly, 397 U.S. 254, 270 (1972). 

None of these criteria have been met here. First, the Board members admit that the 

reasons stated in Dr. Steller’s recommendation, were not their reasons. Second, the 

reasons stated by Dr. Steller were never articulated by the Board, let alone discussed by the 

Board. Third, the recommendation was made prior to the time of the decision. Moreover, 

the recommendation was not even part of the record of the January 19, 1991 meeting; in 

fact, Board members objected to the letter being proffered. (Aplt. App. at 448-49.)

In Staton, the Court explained that "[sjuch rudimentary statements of reasons are 

a safeguard against a decision on ex parte evidence." Staton, 552 F.2d at 916. This is 

exactly an instance in which safeguards against the reliance upon ex parte evidence should 

have been afforded. The Superintendent’s recommendation letter lists his reasons for the 

proposed discharge, many of which were related to the Equity Committee. At the time the 

Equity Committee Report was forwarded to the Board, the Administration also forwarded 

materials accusing Dr. Price-Curtis of bias and having a political agenda. Dr. Price-Curtis 

was blamed for the conclusion in the Report. During the termination meeting, Board 

member Kay Floyd stated, "I think this Board has to . . . make a decision on what it’s been 

told in the past and what information we were given at the time [the December 3, 1990 

agenda item] was presented." (Aplt. App. at 451.) Ms. Floyd also testified that the 

Committee Report was the only evidence she relied upon in making her decision. (Id. at 

3142.) Thus, the Board was familiar with the Equity Committee issues, and the same five 

Board members who voted to reject the Equity Committee Report, voted to terminate Dr. 

Price-Curtis, strongly suggesting that ex parte evidence influenced the decision.

Under Staton, the Board’s failure to state its reasons for the discharge violated due 

process and thus, the district court’s denial of summary judgment on plaintiffs substantive 

due process claim must be reversed.

33



c. The District Court Erred in Dismissing Plaintiffs Procedural Due 
Process Claims Where Defendants Failed to Provide Adequate Notice

The district court erred as a matter of law, in granting summary judgment to the

defendants on plaintiffs procedural due process claim. "Implicit in the notice and

opportunity to be heard elements [of due process] is the requirement that the employee be

made aware that his employment is in jeopardy of termination," and on what specific

grounds. Calhoun, 982 F.2d at 1476 (citing Cleveland Bd. o f Educ. v. Loudermill, 470 U.S.

532, 545 (1984)). Giving an employee prior notice of only some but not other possible

grounds for termination violates his due process rights. Miller v. City o f Mission, Kansas,

705 F.2d 368, 372 (10th Cir. 1983).

There is no dispute that defendants notified Dr. Price-Curtis that his termination

was being recommended on the grounds of incompetency and willful neglect of duty.

However, the notice did not indicate that non-attendance at the termination meeting would

(1) waive any right to continued employment in the absence of just cause reason to

terminate, or (2) constitute just cause to terminate. Again, any waiver must be done

knowingly and intentionally. See Bueno, 714 F.2d at 492.

The determination of whether the opportunity to be heard comports with due

process requires a balancing of public and private interests, as set forth in Mathews v.

Eldiidge, 424 U.S. 319, 334 (1976). The court must consider:

due process generally requires consideration of three distinct factors: First, 
the private interest that will be affected by the official action; second, the risk 
of an erroneous deprivation of such interest through the procedures used, 
and the probable value, if any, of additional or substitute procedural 
safeguards; and finally the Government’s interest, including the function 
involved and the fiscal and administrative burdens that the additional or 
substitute procedural requirements would entail.

Id. at 334-35. The court and defendants failed to engage the Mathews balancing test.

Dr. Price-Curtis’s interest in his position as Equity/Affirmative Action Officer,

ranked among the most substantial property interests an individual can have. The Supreme

Court has emphasized that "the significance] of the private interest in retaining

34



employment cannot be gainsaid." Loudermill, 470 U.S. at 534.38 Dr. Price-Curtis’s 

professional achievements were undermined by the personal trauma, humiliation and 

financial dislocation he suffered when he was fired. The stigma of the allegations of 

"incompetence" and "willful neglect of duty" was devastating for Dr. Price-Curtis, and 

remains so. (Aplt. App. at 3020-21.) In fact, after searching for new employment for a 

year and a half. Dr. Price-Curtis had to accept a lower-paying position. (Tr. at 388-91.)

Also, accurate notice would have been of "obvious value" in promoting a fair 

decision regarding his discharge. Cf Loudermill, 470 U.S. at 543. If Dr. Price-Curtis had 

been notified that non-attendance itself would be ground for discharge or would constitute 

a waiver of his right to be fired only for just cause, he would have known he had to attend 

the hearing or be terminated automatically. Thus, better notice "could have materially 

assisted" Dr. Price-Curtis, Birdsell, 854 F.2d at 208, and defendants assert no interests that 

would justify inadequate notice. In fact, the risk of erroneous discharge is precisely what 

happened, as indicated by Board members Hise and Kellert who voted in favor of 

termination because Price-Curtis did not attend the meeting.

The district court erred in dismissing plaintiffs due process claims. Summary 

judgment should have properly been granted to plaintiff on both his substantive and his 

procedural due process claims.

III. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT TO
THE BOARD AND BOARD MEMBERS ON THE SECTION 1983 CLAIMS

On April 27, 1995, the district court granted the Board’s motion for summary 

judgment on Dr. Price-Curtis’s § 1983 claims. (Aplt. App. at 1743-45, 1749.) Specifically, 

the court asserted that Dr. Price-Curtis presented "no evidence that the Board was 

informed on the record of [his] belief that he was being terminated in retaliation for

38 See also id. at 549-51 (Marshall, J., concurring in part and concurring in the 
judgment); Birdsell v. Board of Fire &. Police Comm'rs of Litchfield, 854 F.2d 204, 208 (7th 
Cir. 1988).

35



exercising first amendment rights," (id. at 1749), and therefore concluded that Dr. Price- 

Curtis had "not shown that the Board was deliberately indifferent to his constitutional 

rights." (Id.) Because the district court failed to recognize the existence of a genuine issue 

of fact regarding the Board’s awareness that Dr. Price-Curtis was being retaliated against 

for protected activity, the grant of summary judgment to the Board was error.39

A municipality can be held liable under § 1983 when a direct causal connection 

exists between the acts of the governing body and the alleged constitutional deprivation. 

Ware v. Unified School District No. 492, 902 F.2d 815, 819 (10th Cir. 1990). Such a link may 

be established when "the governing body has exercised its decisionmaking authority with 

deliberate indifference to the constitutional rights of those affected by its decisions." Id.

Dr. Price-Curtis presented overwhelming evidence that Board members knew that 

he believed that he was being retaliated against and that they deliberately disregarded this 

information when they voted to terminate him. Such evidence includes the following:

1. Board members who voted to terminate knew that Dr. Price-Curtis had a

discrimination charge pending, (Aplt. App. at 389, 403, 414-15); and in fact, it was

discussed at the termination meeting. (Id. at 427-28.) Board member Thelma Parks stated:

"The EEOC complaint, or the filing of that suit, in my opinion, is directly 
involved with this situation because of the information that has been provided 
this Board, and me, about the contents of the suit, that there has been a 
charge or an allegation against our chief executive officer. . . .  So it is related 
and . . .  it appears to me that it’s most germane."

(Id. at 440.) Ms. Parks also explained that the EEOC charge included allegations of

harassment, that were clearly related to the termination recommendation. (Id.)

2. Two Board members admitted that, although they knew about the EEOC charge, 

they did not know anything about its substance and did not care to find out. Frank Kellert 

testified that he did not inquire about the substance of the EEOC charge "because it didn’t 

matter to me." (Id. at 918.) Kay Floyd, when asked "Were you at all interested in knowing

39Appellate review of summary judgment is de novo. See supra note 34.

36'



what [Dr. Price-Curtis] was complaining about?" answered "No, not particularly." (Id. at 

414-15.)

3. Dr. Price-Curtis testified before the Board at the Belinda Biscoe hearing that Dr. 

Stellar had harassed and retaliated against himself and Dr. Biscoe. (Id. at 1993-2018.)

4. Board member Leo Hise testified that all of the "board members were 

bombarded with" calls about Dr. Price-Curtis’s termination being retaliatory because of his 

testimony at the Belinda Biscoe Hearing:

Q: What were the -- what was the content of the rumors?
A: Oh, there were several floating around. Some were that because he
testified in the Belinda Biscoe case he was terminated. Others were — I don't
know. I mean I probably received 50 phone calls stemming from that.

Hise also testified that "All of us [on the Board[ had received the same phone calls 

(Id. at 384-85.)

5. At least two newspaper articles published before the January 19, 1991 termination 

meeting indicated that Dr. Steller’s recommendation may have been made in retaliation for 

Dr. Price-Curtis’s involvement with producing the Equity Committee Report or his 

testimony at the Belinda Biscoe hearing. (Id. at 1452-53.)

6. The Board was well aware of Dr. Steller’s packet of memoranda highly critical 

of the Equity Committee Report, in which he charged the Committee with bias. (Id. at 

2341.) The Board voted 5-2 to reject the report. (Id. at 2399-2400.) Shortly thereafter, 

Dr. Steller recommended Dr. Price-Curtis’s termination, citing his work with the Equity 

Committee as the first basis for the recommendation. (Id. at 515.)

It is incontrovertible that the Board was aware of Dr. Price-Curtis’s belief that he 

was being terminated in retaliation for exercise of protected rights. Here, like in Ware, the 

Board deliberately ignored obvious warnings and terminated Dr. Price-Curtis without 

conducting any inquiry into the facts. The Board affirmatively decided to receive no 

evidence, ask no questions, and adopt no reasons. (Id. at 958-61.) This is the essence of 

deliberate indifference and clearly establishes a genuine issue of material fact which bars 

resolution of plaintiffs § 1983 claims on summary judgment.

Furthermore, the district court’s determination that, based on its Order granting

37



summary judgment to the Board under § 1983, it was required to grant the individual 

Board members qualified immunity, (id. at 1738-39), must also be reversed. As described 

above, the court, in applying Ware, clearly erred in its review of the facts alleged: Dr.

Price-Curtis alleged facts sufficient to show that defendants’ conduct violated clearly- 

established law. Accordingly, the Order granting qualified immunity to the individual board 

members must also be reversed.

IV. THE EXCLUSION OF EVIDENCE OF RETALIATION AGAINST ANOTHER
EMPLOYEE WAS REVERSIBLE ERROR

Plaintiff proffered Dr. Belinda Biscoe to "testify regarding retaliatory and harassing 

conduct by defendants similar to that experienced by Dr. Price-Curtis . . . ." (Aplt. App. 

at 1814.) Dr. Biscoe worked for the OCPS from 1983-1991, as a researcher and an 

administrator, (id. at 3051.)40 After Dr. Biscoe filed a complaint against Dr. Steller 

charging him with salary discrimination and retaliatory harassment, the Board held a 

hearing on her complaint. Dr. Price-Curtis testified at that hearing on September 25, 1989, 

about his own claim of salary discrimination and retaliatory harassment by Dr. Steller 

against him and Dr. Biscoe. (Id. at 1992.)

Defendants contended that Dr. Price-Curtis was not harassed or terminated in 

retaliation for his protected activity, but that instead they fired him because he was 

incompetent and engaged in willful neglect of duty. To rebut defendants’ position and to 

show the causal connection between plaintiffs activity and the adverse action, Dr. Price- 

Curtis sought to introduce evidence of the retaliatory harassment Dr. Biscoe experienced 

from Drs. Steller and Little as a result of her complaint, which was similar to harassment 

of Dr. Price-Curtis. Defendants objected to such testimony as "irrelevant and highly

40Plaintiff’s Complaint alleged: "In 1988, several members of the African American 
community and members of the Board of Education expressed concern to Superintendent 
Steller regarding the fact that both plaintiff and Dr. Belinda Biscoe, a black female, were 
paid less than white employees with similar levels of education, experience and 
responsibilitv. As a result of this pressure. Dr. Steller raised the salaries of both emplovees 
in July of 1988." (Aplt. App. at 5-6; 2007-18).

38



prejudicial," and argued that it was evidence of "prior bad acts." (Id. at 2969.)

In response, counsel for Dr. Price-Curtis noted that Dr. Biscoe s hearing was the 

very same proceeding" at which Dr. Price-Curtis testified (and which constitutes one of the 

incidences of protected activity for which Dr. Price-Curtis was retaliated against). (Id. at 

2970.) Counsel also noted that in cases involving "circumstantial evidence in which pretext 

is involved[,] comparative treatment is always an issue, how you have treated others, (id. 

at 2970-71), and that the circumstances here were very similar: "[Y]ou have two people 

doing the same thing at the same time and how they are treated thereafter. (Id. at 2971.)

The district court excluded the testimony regarding the retaliatory harassment of Dr. 

Biscoe on the ground that there was not sufficient similarity between Dr. Price-Curtis s and 

Dr. Biscoe’s treatment to justify the testimony. (Id. at 2972-73.) Dr. Price-Curtis s counsel 

responded that there were substantial similarities: Dr. Biscoe was under Dr. Little s

supervision; Dr. Little placed Dr. Biscoe on a Plan for Improvement; and Dr. Biscoe was 

given job assignments that were impossible to accomplish. (Id. at 2973.) The district court 

sustained the exclusion of this testimony on the basis that it would be confusing and 

irrelevant (id. at 2974), thus implicating Fed. R. Evid. 402 and 403.

Fed. R. Evid. 401 provides: "‘Relevant evidence' means evidence having any

tendency to make the existence of any fact that is of consequence to the determination of 

the action more probable or less probable than it would be without the evidence. A trial 

court has broad discretion to determine whether evidence is relevant, and its decision will 

not be reversed on appeal absent a showing of clear abuse of that discretion. Hill v. Bache 

Halsey Stuart Shields Inc., 790 F.2d 817, 825 (10th Cir. 1986). The same standard of review 

applies to a trial court’s determination under Fed. R. Evid. 403 that the probative value of 

relevant evidence is outweighed by the danger of confusion of the issues. Id. However, a 

district court’s decision need not be outlandish or malicious to rise to the status of clear 

abuse," id. at 825-26, and "the Court's exercise of its discretion must not unfairly prevent

39



a party from proving his case." Estes v. Dick Smith Ford, Inc., 856 F.2d 1097, 1102-03 (8th 

Cir. 1988). Further, this Court emphasized that "the exclusion of relevant evidence under 

Rule 403 is an extraordinary remedy to be used sparingly." See, e.g., Wheeler v. John Deere 

Co., 862 F.2d 1404, 1408 (10th Cir. 1988).

"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."41 The effects of 

blanket evidentiary exclusions can be especially damaging in employment discrimination 

cases, where plaintiffs face the difficult task of persuading the fact-finder to disbelieve an 

employer’s account of its own motives. See Riordan v. Kempiners, 831 F.2d 690, 697-98 (7th 

Cir. 1987).42

This reasoning also applied to claims of unlawful retaliation for opposition to 

discriminatory practices. In Hawkins v. Hennepin Tech. Cir., 900 F.2d 153 (8th Cir. 1990), 

the court stated that evidence of retaliation following other complaints of discrimination 

are "plainly relevant." Id. at 156. In Monis v. Washington Metro. Area Transit, 702 F.2d 

1037 (D.C. Cir. 1983), a case similar to this one, plaintiff sued his former employer for 

retaliatory discharge in violation of his rights under the First Amendment. At trial, plaintiff 

sought to introduce the testimony of other employees who had been retaliated against for 

engaging in protected activities. The trial court excluded much of this testimony on the 

basis that the complaints were not about racial discrimination, but rather were about sex 

discrimination and safety matters. In reversing the district court, the D.C. Circuit stated, 

evidence showing that the employer followed a broad practice of retaliation

41Spulak v. K Mart Corp., 894 F.2d 1150, 1156 (10th Cir. 1990); accord Thomas v. 
International Business Machines, 48 F.3d 478, 487 (10th Cir. 1995).

nSee also Aman v. Curt Furniture Rental Corp., 85 F.3d 1074, 1082, 1086 (3d Cir. 
1996)(evidence of discrimination against other employees is relevant to demonstrate 
pretext); Heyne v. Caruso, 69 F.3d 1475, 1479 (9th Cir. 1995)(evidence of other harassment 
by employer is relevant to prove his intent or motive in discharging plaintiff); Phillip v. ANR 
Freight Systems, Inc., 945 F.2d 1054, 1056 (8th Cir. 1991)(reversing district court decision 
to exclude evidence of other discrimination complaints against employer).

40



and responded to any protected criticism with disciplinary action has some 
probative value on the issue of the employer’s likely motivation here. . . .
[Tjhe court should have admitted the evidence as relevant . . . .

Id. at 1046 (emphasis in original). Here, Dr. Biscoe’s testimony regarding retaliatory

harassment similar to that experienced by Dr. Price-Curtis is clearly relevant. The

testimony supports plaintiffs showing of intent, motive, and common plan or scheme to

retaliate against employees asserting protected rights.

Despite its relevancy, evidence may still be excluded under Fed. R. Evid. 403 "if its

probative value is substantially outweighed by the danger of unfair prejudice, confusion of

the issues, or misleading the jury . . . ." Nonetheless, "Rule 403 should be applied

cautiously by trial judges. When it is used, a clear statement of the reason should be made

for the record . . . ." 1 Jack B. Weinstein et al., Weinstein's Evidence U 403[02], at 403-30

(Rel. No. 57, Nov. 1996); see also Wheeler, 862 F.2d at 1408 (exclusion under Rule 403 is

to be done "sparingly").

Here, in excluding testimony regarding the harassment of Dr. Biscoe following her

protected activity, the court indicated only that Dr. Biscoe’s testimony "would be confusing."

(Aplt. App. at 2974.) This explication of the delicate balancing required by Rule 403 -

undertaken here to exclude such crucial evidence — was wholly inadequate. First, Dr.

Biscoe’s testimony would not have confused the jury; it was proffered simply to

demonstrate a practice of harassment and retaliation. Second, given the highly probative

value of the proffered testimony, and the fact that it was not "substantially outweighed by

the danger of confusion," Hill, 790 F.2d at 826 (emphasis in original), exclusion of the

testimony was a clear abuse of discretion. Further, the error was not harmless because this

evidence was crucial to Dr. Price-Curtis’s case and adversely affected each of his claims.

V. THE CUMULATIVE EFFECT OFTHE DISTRICT COURT’S ERRONEOUS 
EVIDENTIARY RULINGS WAS NOT HARMLESS AND THEREFORE THE 
CASE SHOULD BE REMANDED FOR A NEW TRIAL

The district court made a number of evidentiary rulings that were error. Fed. R.

41



Evid. 103 states, in part, that "[ejrror may not be predicated upon a ruling which admits or 

excludes evidence unless a substantial right of the party is affected . . . .  Id. at 

103(a)(emphasis added). The Supreme Court elaborated on the concept of "substantial 

rights" in Katteakos v. United States: "[I]f one cannot say, with fair assurance . . . that the 

judgment was not substantially swayed by the error, it is impossible to conclude that 

substantial rights were not affected." 328 U.S. 750, 765 (1946).

There can be no question that the cumulative effect of the erroneous evidentiary 

rulings outlined below affected the judgment in this case and thus, Dr. Price-Curtis’s 

substantial rights. As this Court has recognized, "[t]he cumulative effect of two or more 

individually harmless errors has the potential to prejudice a defendant to the same extent 

as a single reversible error. . . . Unless an aggregate harmlessness determination can be 

made, collective error will mandate reversal . . . ." United States v. Rivera, 900 F.2d 1462, 

1469-70 (10th Cir. 1990).43 The evidentiary errors set out below, especially when 

considered together with the exclusion of Dr. Biscoe's testimony, affected Dr. Price-Curtis’s 

substantial rights and require reversal and remand.

A. Exclusion of John Cathey’s Testimony

Dr. Price-Curtis proffered the testimony of John Cathey, a former OCPS employee. 

(Aplt. App. at 3084-88), who would have testified that his supervisor, Assistant 

Superintendent Carolyn Hughes, a member of Superintendent Steller’s cabinet, told him 

to "stay away from Dr. Price-Curtis because Dr. Price-Curtis was not a team player." (Id. 

at 3084.) The district court erroneously ruled, over plaintiffs objection, that this testimony 

was hearsay. (Id. at 3084-85.) This testimony is an exception to the hearsay rule under 

Fed. R. Evid. 801(d)(2)(D), which permits statements by a party opponent’s agent 

concerning matters within the scope of employment to be offered against the party.

AiSee also Malek v. Federal Ins. Co., 994 F.2d 49 (2d Cir. 1993); Estes v. Dick Smith Ford, 
Inc., 856 F.2d 1097, 1105 (8th Cir. 1988); Collins v. Wayne Corp., 621 F.2d 111, 786 n.6 (5th 
Cir. 1980); accord 1 Weinstein’s Evidence at 11 103[06], at 103-105.

42



Carolyn Hughes, as part of the Superintendent’s cabinet, was a managing agent of OCPS. 

Her comment was within the scope of her employment and was made during her 

employment. This testimony was highly probative of plaintiffs claim that defendants 

conspired to harass and retaliate against him.

Mr. Cathey also would have testified that "the school district was not giving the same 

amount of resources to African-American schools as to the white schools, and he brought 

that to the attention of the supervisor, and he was told not to give that information to 

Dr. Price-Curtis because of the Dowell case." (Aplt. App. at 3085.) The district court 

excluded this testimony on the basis of relevancy, confusion of the issues, and prejudice. 

[Id. at 3087.) This was error. The district court’s discretion to exclude evidence on the 

basis of relevancy and under Rule 403 is not limitless. See, Wheeler, 862 F.2d at 1408; Hill 

790 F.2d at 826. Mr. Cathey’s testimony regarding the district’s discrimination and its 

efforts to hide that discrimination, especially from the Equity Officer and Committee, is 

clearly relevant to this lawsuit.44 Aside from the cursory declaration that this evidence 

would confuse the issues and be more prejudicial than probative, the district court did not 

undertake the proper balancing, weighing the appropriate factors and articulating his 

reasons on the record. These failures, and the wholesale exclusion of Mr. Cathey’s relevant 

testimony went against the "thrust of the Federal Rules of Evidence," which "favors 

admissibility," 1 Weinstein’s Evidence at 11 403[03], at 403-51, and thus, were error.

B. Limitation of the Testimony of Dr. Frank Morris

Dr. Price-Curtis also proffered the expert testimony of Dr. Frank Morris, Sr. at trial. 

(Aplt. App. at 2784-95, 3057-67.)45 Dr. Price-Curtis sought to offer Dr. Morris’s 

conclusions that the recruitment plan that Dr. Price-Curtis was directed to fulfill was

44This testimony was clearly significant to plaintiffs claims under the Fourteenth 
Amendment and § 1985.

45Dr. Morris's expert report is in Aplt. App. at 1606-12.

43



designed in a manner that would assure failure. This evidence is crucial to Dr. Price- 

Curtis’s case because it tends to show: (1) that he was being set up to fail in order to justify 

his ultimate termination (id. at 2785-87, 3062); (2) that he was sent out of town for long 

periods of time, making it difficult to complete other tasks — such as the Affirmative 

Action Plan, for which he was criticized, (id. at 3064) — and impeding his work with the 

Equity Committee while it was completing its 1990 report, (id. at 3267-68); and (3) that 

defendants intentionally harassed Dr. Price-Curtis by sending him on futile trips out of 

Oklahoma City when close members of his family were ill. (Id. at 3267.)

Although the court did not question Dr. Morris's credentials, (id. at 3066), and 

allowed him to testify about recruitment at historically black colleges in general, it excluded 

any testimony as to the "particular issues and fact issues in this case," (id. at 2792-95, 3065- 

66), thus denying plaintiff the opportunity to present important and relevant evidence of 

classic retaliatory conduct. The district court indicated that this evidence was irrelevant, 

could cause some confusion, and would be improper and prejudicial. (Id. at 2794.) Again, 

the district court did not undertake the delicate balancing required by Rule 403 as to 

whether the probative value of Dr. Morris’s clearly relevant testimony was substantially 

outweighed by the alleged dangers. The court refused to allow this testimony because Dr. 

Morris would "put his interpretation" or "spin" on the evidence, (id. at 2793-94), and the 

district court did not want Dr. Morris's "conclusions" on the issues. (Id. at 3065.)

The exclusion of this evidence was an abuse of discretion. Although trial judges 

have discretion as to which experts can testify, "the district court may not employ that 

discretion to restrict viable and relevant theories offered by a party." Graham v. Wyeth 

Laboratories, 906 F.2d 1399, 1409 (10th Cir. 1990). Fed. R. Evid. 702 makes clear that an 

expert may offer testimony, in the form of an opinion or otherwise, about a fact in issue. 

Fed. R. Evid. 704(a) states that "testimony in the form of an opinion or inference otherwise 

admissible is not objectionable because it embraces an ultimate issue to be decided by the

44’



trier of fact." See Ponder v. Warren Tool Corp., 834 F.2d 1553, 1557 (10th Cir. 1987), Karns 

v. Emerson Elec. Co., 817 F.2d 1452, 1459 (10th Cir. 1987). To the extent there was any 

danger of confusion, the district court could have given a cautionary instruction.

C. Exclusion of the Testimony of Dr. .lim Lazalier

Plaintiff sought to admit the testimony of Dr. Jim Lazalier, his former supervisor at 

Rose State College, to rebut defendants’ serious charges that plaintiff was incompetent and 

willfully neglected his duties. (Aplt. App. at 2966-67.) These charges placed at issue Dr. 

Price-Curtis’s character and he needed Dr. Lazalier's testimony to rebut. The court 

excluded the testimony stating that it was irrelevant. (Id. at 2899, 2967.) The exclusion was 

an abuse of discretion. Such evidence, when offered to rebut nondiscriminatory reasons 

for adverse actions, is plainly relevant. See cases cited supra in Section IV.

The cumulative effect of these erroneous exclusions of evidence cut to the core of 

plaintiffs efforts to convince the jury that defendants acted with retaliatory motive and, as 

such, adversely affected plaintiffs substantial rights requiring reversal of the final judgment 

and the granting of a new trial.

VI. THE DISTRICT COURT’S INSTRUCTION REGARDING DUE PROCESS 
CONSTITUTES REVERSIBLE ERROR

At the end of trial, the district court instructed the jury:

The due process clause requires that an individual be given an opportunity 
for a hearing before he is deprived of any significant property interest. This 
issue is not before you because the court has determined that plaintiff was 
given all the process he was due.

(Aplt. App. at 1861.) Prior to trial, the district court ruled for all defendants on Dr. Price- 

Curtis’s due process claims. (Id. at 1746, 1749.) Thus, this issue was never before the jury. 

Nonetheless, counsel for the Supervisors requested an instruction stating that due process 

was not an issue in the case. (Id. at 3254-55, 3353.) Plaintiff objected on the ground that 

the instruction was unfairly prejudicial given that the issue was not before the jury, and that 

the limited evidence surrounding the vote on termination was offered solely because it was

45



related to the breach of "just cause" contract claim. (Id. at 3255, 3354.) Because this

instruction did not relate to any issues in the case or clarify any facts in evidence, this

instruction was a substantial and unfairly prejudicial error requiring reversal.

This court must satisfy itself that the trial court’s "instructions show no tendency to

confuse or mislead the jury with respect to the applicable principles of law." 9A Charles

Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2558 at 456 (1995)(and

cases cited therein). If there is substantial doubt as to whether the instructions properly

guided the jury in its deliberations, then the Court must find reversible error, Mitchell v.

Mobil Oil Corp., 896 F.2d 463, 468 (10th Cir. 1990), and "if even one substantial and

prejudicial error is made in the giving of but one instruction, the verdict cannot stand."

Sunkist Growers, Inc. v. Winckler & Smith Citrus Products Co., 284 F.2d 1, 23 (9th Cir.

1960), rev’d on other grounds, 370 U.S. 18 (1962)(emphasis added).

Here, the district court gave the jury a gratuitous, and ultimately extremely

prejudicial, cautionaiy instruction about an issue that was not being litigated, and for which

no evidence had been presented.46 By peremptorily telling the jury that the "plaintiff was

given all the process he was due," the district court improperly undermined Dr. Price-

Curtis’s whole case. To the layperson, the court’s statement says, in effect, "the defendants

treated Dr. Price-Curtis fairly." This Court has noted that

The influence of the trial judge on the jury is necessarily . . .  of great weight 
and his lightest word or intimation is received with deference, and may prove 
controlling. This court has accordingly emphasized the duty of the trial judge 
to use great care that an expression of opinion upon the evidence should be 
so given as not to mislead, and especially it should not be one-sided.

United States v. Sowards, 339 F.2d 401, 403 (10th Cir. 1964)(citations omitted). The trial

court’s authoritative statement clearly prejudiced plaintiffs entire case and thus, the jury’s

verdict cannot stand.

46"It is error to give an instruction on a theory which does not have sufficient evidence 
in the record supporting its submission to the jurv." Moe v. Avions Marcel Dassault-Breguet 
Aviation, 727 F.2d 917, 927-28 (10th Cir. 1984).

46



VII. THE TRIAL COURT’S ORDER GRANTING JUDGMENT IN FAVOR OF THE 
BOARD ON PLAINTIFF’S TITLE VII CLAIM WAS CLEARLY ERRONEOUS.

In ruling for the Board on plaintiffs claim under 42 U.S.C. § 2000e-(3)(a), the court

held that Dr. Price-Curtis failed to establish a prima facie case, and that even if he had

established a prima facie case, he failed to carry his ultimate burden of proof. (Aplt. App.

at 1903-05.) To establish a prima facie case of unlawful retaliation, plaintiff must prove:

(1) protected opposition to discrimination or participation in a proceeding 
arising out of discrimination; (2) adverse action by the employer 
contemporaneously or subsequent to the employee’s protected activity; and 
(3) a causal connection between such activity and the employer's action.

(Id., at 1902-03, quoting Anderson v. Phillips Petro. Co.. 861 F.2d 631, 634 (10th Cir. 1988)).

Citing plaintiffs EEOC complaint and his subsequent termination, the district court found

that plaintiff established the first two elements of the prima facie case, but failed to

establish a causal connection. For several reasons, these findings were clearly erroneous.47

Dr. Price-Curtis clearly established a prima facie case of retaliation. First, Drs.

Steller and Little and the Board members knew of Dr. Price-Curtis’s testimony at the

Biscoe hearing and pending EEOC complaint at the time they recommended and approved

the termination. (See supra Section III.) Second, the district court failed to consider the

nexus between Dr. Price-Curtis's testimony at the Biscoe hearing and the subsequent

harassment. This omission was significant given the speed with which retaliation followed.

On September 25, 1989, Dr. Price-Curtis testified about discrimination against him and

harassment of him by Dr. Steller. On October 27, 1989, Dr. Price-Curtis was notified that

he was being put on a Plan for Improvement. (Aplt. App. at 2019, 2022.) It is clear that

this disciplinary act was retaliatory in nature because it happened nearly three months after

Dr. Price-Curtis’s annual evaluation (at which time Plans for Improvement are ordinarily

implemented, if necessary). (Id. at 3192-96.) This Plan for Improvement was extended in

47This Court reviews a district court’s findings of fact under a clearly erroneous 
standard. Sauers v. Sail Lake City, 1 F.3d 1122, 1126 (10th Cir. 1993).

47



early 1990. (Id. at 2957.) As a result of this harassment, Dr. Price-Curtis filed his EEOC 

complaint on March 14, 1990. (Id. at 2111-13.) The harassment of Dr. Price-Curtis 

continued, and on June 1, 1990, Dr. Little recommended that he be terminated. (Id. at 

2144-46.) The pattern of harassment and retaliation continued until Dr. Price-Curtis was 

terminated on January 19, 1991. See generally Id. at 34-263.

The causal connection element of the prima facie case "may be demonstrated by 

evidence of circumstances that justify an inference of retaliatory motive, such as protected 

conduct closely followed by adverse action." B turns v. United Telephone Co. o f Kansas, Inc., 

683 F.2d 339 (10th Cir. 1982). The actions taken by the Administration following plaintiffs 

testimony at Dr. Biscoe's hearing and after he filed his own EEOC complaint were clearly 

adverse, closely followed his protected activity, and part of a continuing course of 

retaliatory treatment. The district court was clearly erroneous in finding otherwise.

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

burden of proof, (Aplt. App. at 1940), namely that the reasons given for his termination 

were pretextual and that he was terminated for his protected activity. The court reasoned, 

"[pjlaintiff presented no direct evidence that his EEOC charge was a factor . . .  in the 

decision to discharge him." (Id.). This ruling tainted the court’s causal connection ruling 

(supra) and its ultimate factual finding with reversible legal error because direct evidence 

is not required to prove retaliatory discharge. See, e.g., Bunas, 683 F.2d at 343.

Because plaintiff established a prima facie case of retaliation, and demonstrated that 

the Board’s proffered reasons for terminating him were pretextual and that he was in fact 

terminated for engaging in protected activity, the district court’s judgment for the Board 

on the Title VII claim was clearly erroneous and should be reversed.

VIII. THE JURY PLAINLY ERRED WITH REGARD TO PLAINTIFF’S BREACH OF
CONTRACT CLAIM AND THE COURT ERRED IN LIMITING DAMAGES

The jury committed plain error in deciding for the Board on the breach of contract 

claim, in the face of overwhelming evidence that the Board lacked just cause for the

48



termination of Dr. Price-Curtis. Although a party has not challenged the sufficiency of 

evidence on directed verdict, he may still bring a challenge where "such plain error is 

apparent on the face of the record that failure to review would result in manifest injustice." 

Cleveland v. Piper Aircraft Corp., 890 F.2d 1540 (10th Cir. 1989)(citing Cabrales v. County 

of Los Angeles, 864 F.2d 1454, 1459 (9th Cir. 1988)). Dr. Price-Curtis’s position at OCPS 

entitled him to continued employment but for just cause reasons to terminate. Here, in 

light of the Board members’ admissions that they did not conclude that plaintiff was 

incompetent or wilful neglect of his duty, (Aplt. App. at 3093-3103), defendants had no just 

cause for the termination. Manifest injustice will result, if this plain error is not reversed.

Further error was committed by the district court in limiting any damages 

recoverable by Dr. Price-Curtis for the breach of contract to $18,767.56, (id. at 1875-76; 

1896) -- the remaining salary under Dr. Price-Curtis’s 1990-91 contract, from the date of 

his termination until the end of that year’s contractual term. The court held that the 

Oklahoma Constitution limits contractual relationships to one year. (Af. )48

Article 10 of the Oklahoma Constitution, which prohibits governmental indebtedness 

beyond the fiscal year, is inapplicable. This provision of the state constitution specifically 

seeks to require municipalities to operate on a cash basis and to prevent indebtedness 

extending beyond one year. Clearly, the Constitution does not operate to deprive all state 

employees of an interest in continued employment by limiting their expectations to one- 

year employment opportunities. In fact, the Oklahoma Attorney General has specifically 

opined that the continuing employment and teacher tenure provisions of Oklahoma 

statutes, 70 O.S. §§ 6-101, 6-122, do not violate the State Constitution. See Op. Atty. Gen. 

No. 77-112 (February 23, 1977) (concluding that "the system of continuing employment...is 

not in violation of the constitutional prohibition"). (Aplt. App. at 991-92.)

Dr. Price-Curtis had a continuing contractual right that extended beyond June 30,

4SThis court’s review of this legal error is subject to de novo review. (See Section II.)

49



1991. Dr. Price-Curtis’s contract specifically stated that "such assignment shall 

automatically be extended until Employee is either reassigned or notified that the 

assignment has been terminated." (Id. at 2170.) This contract provides a continuing 

contractual relationship absent reassignment or termination. Thus, Dr. Price-Curtis could 

expect continued employment beyond one year.49

CONCLUSION

Plaintiff respectfully urges the Court to reverse the district court’s denial of his 

motion for summary judgment on the due process claims, reverse the rulings on other 

issues to which he has assigned error, vacate the judgment and remand for a new trial.

Oral argument is requested due to the important and complex constitutional and 

statutory rights at issue and the historical context of this case.

Respectfully submitted.

Steven M. Angel, OBA #  303 Elaine R. Jones
KLINE & KLINE Director-Counsel

Theodore M. Shaw 
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

Kline Law Building 
720 N.E. 63rd Street 
Oklahoma City, OK 73105 
(405) 848-0286

49Regardless of any state law limitations on damages. Dr. Price-Curtis would be entitled 
to an award of damages under federal civil rights statutes. See Gairick v. City & County of 
Denver, 652 F.2d 969, 971 (10th Cir. 1981).

50



CERTIFICATE OF SERVICE

I hereby certify that on this/^th day of January, 1997 I served a copy of Plaintiff- 

Appellant’s Opening Brief and Appellant’s Appendix on counsel for defendant-appellees 

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

Jerry Steward, Esq.
Steward & Culbert 
10007 South Pennsylvania 
Oklahoma City, OK 73159

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



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that is not an issue for them to resolve, that the Court has 
already resolved it. And the Court feels that it would clear 
up any confusion that has been created by the issue being 
interjected into the trial. So the Court will overrule the 
Plaintiff's objection to the giving of that instruction.

MS. BROWNE: Excuse me, Judge. Can the Plaintiff also
offer a compromise on that just as a matter of course for the 
record?

THE COURT: Okay, you need to do that before, Ms.
Browne. I will let you do it this one time.

MS. BROWNE: Okay, I am sorry. Plaintiff's offer of
compromise is that this issue is not before you period.

THE COURT: The Court is going to give the instruction
as proposed. I understand there is no objection to the Section 
1983 instruction. No objection to Section 1983 elements 
instruction.

The Court has on the next one is a Section 1983 depravation 
of First Amendment rights. 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. And I would ask if there is objection 
to the Section 1983 depravation of First Amendment rights 
instruction as proposed?

Let's go off the record.
(AN OFF-THE-RECORD DISCUSSION WAS HAD.)

Charvse C. Crawford, CSR. RPR
UNITED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUILDING
OKLAHOMA CITY. OK 73102 - PH. (405) 236-3980



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THE COURT: Let me see. Is there objection to this?
MR. BROWN: We would object to items 1 an 2 on laundry 

ist as this as the basis of part of his official duty as 
:quity/affirmative action officer. It's an internal matter, so 
iur argument would be it is not a matter of public concern and 
inder the balancing, the matter would be protected.

THE COURT: Any objection to 3 and 4?
MR. BROWN: No, Your Honor.
THE COURT: But you do object then to 1 and 2 in that

ihese are internal -- let me understand again your objection.
MR. BROWN: The Board has the right to make the

charge. The Equity Committee has the right to follow it. This 
is an internal matter in which all of the parties were subject 
to the Board's direction and control. There was a debate, Your 
Honor, among the parties, but it is not -- these do not 
constitute whistle-blowing or disclosure of wrongdoing as many 
of the First Amendment cases.

Not all of them, but many of them, and we agree with the 
law. It is not a part of the official duties. It is therefore 
not in entitled to First Amendment protection, but we do 
contend that because it was internal, because he was doing his 
job, because it was a debate that it is not entitled to First 
Amendment protection.

MS. CARTER: Your Honor, this particular cause of
action has been dismissed as against the Board. However,

Charvse C. Crawford. CSR. RPR
UNITED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUILDING
OKLAHOMA CITY, OK 73102 - PH. (405) 236-3800



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whatever happens with regard to the First Amendment and 
fourteenth Amendment claims with regard to this will effect the 
retaliatory discharge cause of action, so I have to first 
indicate that I agree with Mr. Brown. I would take it one step
further. I believe that Plaintiff's job was in fact to assist 
the Equity Committee and part and parcel of that job was 
speaking before the board and hashing out that charge.

As Mr. Brown said, the Board did ultimately determine the 
charge and it did. And I think anything he did in connection 
with working out that charge was job related, and in this 
instance I don't believe that job-related conduct was 
protected.

THE COURT: Ms. Browne?
MS. BROWNE: We believe that these issues are matters

of public concern, matters of racial discrimination and 
inequities are per se matters of public concern. There was an 
ongoing debate about what the Equity Committee should be 
looking at. And in fact, that debate was a public debate, and 
this obviously was a social and political concern to the 
community at the time.

And we believe that although part of his job 
responsibilities was to work with the Equity Committee, that in 
fact this -- these particular issues are still protected by the 
First Amendment, and I believe we have cited previously a case 
Feldman v. Philadelphia Housing Authority to support our

Chary se C. Crawford. CSR. RPR
UNfTED STATES COURT REPORTER

5012 UNfTED STATES COURTHOUSE BUILDING
OKLAHOMA CfTY, OK 73102 - PH. (405) 236-3980



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conclusions that these are matters of public concern.
THE COURT: Ms. Browne, what about the other items?

There was a laundry list of other items. Do you want to make 
any records on those that the Court did not?

MS. BROWNE: Yes, I did. Thank you. First, Plaintiff
believes that the previous proposal -- that the list should 
include Plaintiff's advocacy to the Equity Committee and Board 
inquiry of equity upon the 90 percent black schools created at 
the 1985 Student Reassignment Plan. The Dowell schools should 
also be included. This was a continuing course of conduct.

THE COURT: Where are you?
MS. BROWNE: This was actually on a draft before this

i one.
: THE COURT: I am looking at your Plaintiff's claims of
j protected activities.
5 MS. BROWNE: I am sorry. It is not included on this
7 last list, but it was something in Plaintiff's original
3 proposal. Plaintiff asserted and would like to keep that on
9 the record. And then the other -- the other thing that
D Plaintiff also objects to, to the exclusion of the last one
1 which is Plaintiff's association with and advocacy in preparing
2 and submitting its 1988-89 and '89-90 report addressing issues
3 of racial equity in the school district.
4 We believe that the Board of Education viewed the Plaintiff
5 as a de facto member of the Equity Committee, and in fact the

Charvse C. Crawford. CSR. RPR
UNfTED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUILDING
OKLAHOMA CITY. OK 73102 - PH. (405) 238-3980



1278
JURY INSTRUCTION CONFERENCE

1 testimony of Dr. Steiler and Dr. Little in which they indicated
2 had Plaintiff written a minority report or critique distancing
3 himself from the Equity Committee then that brings that within
4 the First Amendment. And we believe that because of his work
5 with the Equity Committee during that ’89-90 year that he was
6 terminated and it was because of the conclusions of that
7 report.
8 Dr. Steiler in his -- in Exhibit No. 254 states that he
9 thought that there was a political agenda, that the timing was
10 suspicious in light of the Supreme Court arguments, and we
11 believe because of his work with the Equity Committee,
12 inferring the Equity Committee's examination of racial equity
13 in the '89-90 report, that he was terminated.
14 THE COURT: Mr. Brown?
15 MR. BROWN: If the Court wishes, I can respond to
16 those. We agree with the Court that those on the original list
17 should be stricken. I can go through each one and respond,
18 Your Honor.
19 THE COURT: What about those that Ms. Browne has just
20 talked about?
21 MR. BROWN: Which particular ones by number?
22 THE COURT: They aren't on the numbers.
23 MS. BROWNE: It's the last one.
24 MR. BROWN: Your Honor, we cited a case previously
25 that said the speech must be particularly identified as the

Charvse C. Crawford. CSR. RPR
UNRED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUILDING
OKLAHOMA CITY, OK 73102 - PH. (405) 236-3880



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Evers case. This is a general description of something that 
occurred over a two-year period of time. There was no 
evidence, Your Honor, as to the ’88-89 report that -- that 
there was -- that would arise to the level of speech or 
retaliation or harassment. This is the Equity Committee's 
report, not his report.

The report is generated as part of the normal process by 
the Equity Committee and by the equity officer, so it is part 
of his normal duties, but it is not his speech. The Equity 
Committee versus the Board is not the case on trial here.
Although we heard a lot of evidence on that, this strongly 
suggests that that in fact is the issue that is before the 
jury.

Also particularly as it regards the '89-90 report, his 
admitted conduct in not including particulars that were 
identified in the Board's charge and not reporting that the 
report didn't meet the charge, and not reporting this to the 
Board in advance all reflects on his ability to do his job and 
in the Koch case particularly states "consideration comes into 
place if the disputed speech affects negatively on the 
employee's ability and performance to complete his job."

There are other cites that are in there that would indicate 
that a speech might be protected under those circumstances.
For all of those reasons, we would object to the inclusion on 
that on the laundry list of particular speech items as 
______________________________________ __________________________

Charvse C. Crawford. CSR. RPR
UNITED STATES COURT REPORTER 

5012 UNITED STATES COURTHOUSE BUILDING 
OKLAHOMA CTTY. OK 73102 ■ PH. (405) 238KJS60

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protected, Your Honor.

THE COURT: Okay. Ms. Browne, you have got and I
think these can kind of be put into one. Inviting Carol Gibson 
to present a workshop to the Equity Committee, and then 
refusing to take responsibility for the cancellation of the 
workshop. How is that protected? 1 and 3?

MS. BROWNE: I am sorry. 1 and 3. These matters,
Your Honor, were matters of public concern because the Equity 
Committee was starting to look at more substantive issues with 
regard to equity and in fact what he was trying to do is 
present information to the committee so that they could look at 
these issues. And the prevention of doing that, especially 
with the cancellation of the Equity Committee workshop is also 
protected by the First Amendment.

THE COURT: So these are not internal matters on a
workshop, is it set up or not set up or prepared?

MS. BROWNE: In some respects, these are not internal
matters because they were issues that were going to be 
presented to the Equity Committee.

THE COURT: What about all the evidence that he didn't
have the materials ready for Ms. Gibson to present?

MS. BROWNE: There is some dispute as to that.
Dr. Price-Curtis testified that in fact he was told that the 
Equity Committee workshop was being cancelled because of the 
Dowell litigation and that was a pretextual reason.

1280

Charyse C. Crawford. CSR. RPR
UNITED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUIUOING
OKLAHOMA CITY, OK 73102 - PH. (403) 238-3980



1281
JURY INSTRUCTION CONFERENCE

1 THE COURT: Mr. Brown?
2 MR. BROWN: As to those two particular reasons, it's
3 our contention this is not a matter of the public concern.
4 Carol Gibson's speech is not his speech. There is no evidence
5 that would even support an inference that there was any
6 retaliation or harassment even relating to these matters.
7 In fact, in the pre-trial order, they never suggested these
8 facts as the facts in dispute. This goes well beyond that.
9 The Plaintiff also has the burden along this line to prove that
10 if it is protected speech that this was a motivating factor m
11 his harassment.
12 Your Honor, there is a complete absence of evidence.
13 Particularly, Plaintiff testified during this case that he was
14 not harassed. He testified in 1989, the harassment he suffered
15 was a result of his salary and only as a result of his
16 complaints about salary. There is no evidence or there was no
17 evidence sufficient to support an inference.
18 It is not a matter of public concern. It's part of his
19 official duties, particularly on the refusal to take
20 responsibility. That's a personal matter or personnel matter.
21 It is not a matter of public concern whether or not he took
22 responsibility for cancellation of the workshop.
23 THE COURT: The Court agrees with the Defendants'
24 position on those two matters and feels that it would certainly
25 not be a matter of public concern, and I have heard no evidence

Charvse C. Crawford. CSR. RPR
UNITED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUILDING
OKLAHOMA CITY. OK 73102 - PH. (403) 238-3900



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indicating that it was. So the Court is not going to put those 
two -- the Carol Gibson workshop issue in front of the jury.
What about helping Tiana Douglas prepare the Blueprint for 
Equity in January of 1990, Ms. Browne?

MS. BROWNE: Your Honor, we contend it was part of his
job responsibility. Because it was part of his job 
responsibility, it doesn't mean it's not a matter of public 
concern. In fact, the Blueprint for Equity was the way in 
which the Equity Committee would go about assessing racial 
inequities in the district. And a matter was set up, and it 
was set up because of the 1985 Reassignment Plan and the way in 
which they were going to address the racial inequities in the 
district is also a matter of public concern, and the Blueprint 
itself set out actually looking at the Dowell schools versus 
the other schools.

It was presented to the Equity Committee. The Equity 
Committee used it, and that was the basis for 1989-90 report 
which is a matter clearly of public concern.

MR. BROWN: Again, helping her do something does not
equal his speech. In fact, the evidence shows that the 
Blueprint breaches the Board's charge. It is undisputed the 
Board has made the charge and the Plaintiff admitted the 
committee is supposed to follow the charge. These would 
specifically breach that charge. It reflects on his competence 
and his ability to do his job. It's was an internal matter on

Charyse C. Crawford. CSR. RPR
UNfTED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUILDING
OKLAHOMA CITY, O K 73102-P H . (405) 236-3980



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the committee, him helping her. It was not a matter of public 
concern.

THE COURT: The Court agrees with that position and is 
not going to include it in the instructions. What about filing 
a charge with the Equal Employment Opportunity Commission?

MS. BROWNE: Plaintiff believes that filing a charge
with the Equal Employment Opportunity Commission is protected. 
If there is an issue that is of constitutional in which a 
constitutional violation has been charged that is a matter of 
public concern even though it is an internal personnel issue.

MR. BROWN: Your Honor, our position is the Title 7
matter is adequately covered by Title 7 and improper to turn a 
Title 7 case into a First Amendment case.

THE COURT: Ms. Browne?
MS. BROWNE: We think that any retaliation for the

actual filing of that claim is still protected by the First 
Amendment. He has free speech to actually file that complaint 
with the EEOC.

THE COURT: Ms. Carter?
MS. CARTER: Your Honor, I have one thing to say in

response to everything that I have heard from Ms. Browne this 
morning. She did indicate that the proof that the discussions 
regarding the Equity Committee were of public concern were the 
fact that they were held in open meeting.

I have to tell the Court everything the Board of Education

1283
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Charyse C. Crawford. CSR. RPR
UNfTED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUILDING
OKLAHOMA COY. OK 73102 - PH. (405) 236-3980



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does has to be held in open meeting. The fact that it was held 
in open meeting was of no particular significance. I think 
there are several exceptions to that, and they are specifically 
delineated in state statute, so I don't think that gives this 
particular discussion regarding the Equity Committee any more 
legitimacy as regarding anything else the Board would do.

THE COURT: Thank you, Ms. Carter.
MR. BROWN: Additionally, we would say a personnel

matter, and it is not on the EEO complaint.
THE COURT: I think number two, did you cover that?
MS. BROWNE: No.
THE COURT: On academic achievement, number two.
MS. BROWNE: That's partially covered. The discussion

about the move to try and get the Equity Committee to look at 
more substantive information with regard to equity issues. And 
Dr. Price-Curtis, throughout this whole list, we have to keep 
in mind that Dr. Price-Curtis was supposed to and actually was 
reprimanded for not taking leadership of the Equity Committee, 
and in fact did take leadership for the Equity Committee and 
his testimony as to academic achievement were matters of public 
concern because he was trying to ensure that the Equity 
Committee was doing what the Board of Education supposedly 
wanted the Equity Committee to do.

THE COURT: I guess one of the problems in this case
as I heard -- I have some on confusion from the evidence

Charyse C. Crawford, CSR. RPR
UNITED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUILDING
OKLAHOMA CITY, OK 73102-PH. (405)238-3880



1285
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1 Dr. Price-Curtis's testimony where he testified he was more of
2 just a facilitator with the committee and did pretty much what
3 they wanted to do and headed in the direction that they wanted
4 to head, and then got blamed for their report and all of this.
5 What I see in all of these instructions is almost like what
6 you are saying is that he actually did lead the Equity
7 Committee. He did do all of this. He was almost a de facto
8 member and that all of this action should be protected. When I
9 heard his testimony, he was pretty much a facilitator and got
10 them what they wanted and there wasn't any way he could control
11 this.
12 I am having a little confusion over really what the
13 Plaintiff's position is that he took with the Equity
14 Committee. What I am seeing in all these instructions that you
15 are setting out that he was the one that guided them, directed
16 them, and drafted the blueprint, and whether it followed the
17 Board's charge or not was all protected activity and speech.
18 That's not what I heard his testimony to be. So I am a little
19 confused, Ms. Browne, on what you feel his role was.
20 MS. BROWNE: Well, Your Honor, I believe he also
21 testified that he facilitated the committee, but he also gave
22 guidance to the committee. He made recommendations to the
23 committee, and through the information he provided on November
24 21st, if you look at the Equity Committee minutes, he sets out
25 what the purpose of the Equity Committee is, and he actually

Charyse C. Crawford. CSR. RPR
UNITED STATES COURT REPORTER

5012 UNfTED STATES COURTHOUSE BUILDING
OKLAHOMA CfTY, OK 73102 - PH. (405) 238-3980



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ells the Equity Committee if it all boils down to it, they 
eed to be looking at racial issues, and that actually, that 
ina of speech is definitely protected by the First Amendment, 
nd in Ms. Douglas's letter which is attached to the Blueprint 
or Equity, she relied on Dr. Price-Curtis's recommendation, 
nd in fact, one of the things that the Defendants have charged 
urn with is misleading the Equity Committee, and in fact, he 
lid give recommendations. He did try to push them to look at 
racial equity issues.

THE COURT: Let me ask you a question.
MS. BROWNE: Uh-huh.
THE COURT: If the Board told him to do "X", and he

iid "Y", no matter what it is, if "Y" dealt with racial issues 
or some issues like that, would you say that is protected, if 
it was in direct contrast to what the Board told him to do?

MS. BROWNE: I think the Defendants would have to show
that that was disruptive.

THE COURT: What is a direct violation of what his job
description was, and what he was told to do.

MS. BROWNE: They would have to show that it was
disruptive. And Your Honor, I think the hypothetical is hard 
to do because here we have a charge which the testimony 
actually shows that the charge was a flexible charge.

THE COURT: I don't want to get into argument of
that. I want to know your position, and I am asking a

Charyse C. Crawford. CSR. RPR
UNITED STATES COURT REPORTER

5012 UNRED STATES COURTHOUSE BUILDING
OKLAHOMA CITY. O K73102-P H . (405) 236-3980



1287
JURY INSTRUCTION CONFERENCE

1 hypothetical. What if Dr. Price-Curtis was the facilitator or
2 the go-between for the Board and the administration with a
3 committee set up solely to discuss or solely to look into
4 something? What if the charge of this committee was nothing
5 but the equality of the facilities themselves and the
6 materials, nothing else, not test scores, not anything else?
7 It was just to make sure that all facilities, everywhere were
8 of equal, had equal access or equal buildings, equal classroom
9 space, and those things.
10 And what if he then went off and set up his own agenda
11 relating to equal numbers of whites and blacks in classes, had
12 a whole separate agenda. Although, it may be worthwhile and
13 may be well motivated from the standpoint of creating some kind
14 of racial equality, but was totally different from what the
15 board directed him to do; would that be protected?
16 MS. BROWNE: If it was totally -- totally opposite of
17 what the Board asked?
18 THE COURT: Not opposite, just different.
19 MS. BROWNE: If it was totally different from what the
20 Board wanted it to do, what the Board would have to show is in
21 fact, it is not protected activity because it was disruptive
22 and -- that gets -- if he wanted to look at something that was
23 a matter of public concern, and then they showed that what he
24 did was disruptive with regard to what their original intent
25 was, then it would not be protected activity.

Charvse C. Crawford, CSR. RPR
UNfTED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUILDING
OKLAHOMA CfTY, OK 73102 - PH. (405)236-3080



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There's two parts to the protected activity question 
analysis, and that would be first, was it a matter of public 
concern. And if he actually went and did something that was a 
matter of public concern, they could then come back and show 
well, what he did was disruptive of our services and not what 
we intended for him to do.

THE COURT: Let's take this. What if his charge was
to do what the charge was, and he goes out and the Equity 
Committee writes a report, and his whole agenda is child abuse 
in the schools? And the Equity Committee has a report that 
shows what schools have the most child abuse and what that 
matter is. That is a matter of public concern, but is that 
protected when it relates not to what the charge was and what 
the committee was set up to do?

MS. BROWNE: No, it would not be protected because it
would be disruptive -- not what the committee asked them to do.

MR. BROWN: Your Honor, could I ask one question. Shaw
542 F. 2d 929 specifically held, "The conduct of the employees 
that went to pure speech and in the realm of expressed 
obligation of their employment agreement were not protected 
speech."

MS. CARTER: Your Honor, the disruptive analysis goes
to where a person is doing his or her job they are speaking on 
some aspect there has not been an issue of the person 
performing the job, this is different on that, and I agree with

Charvse C. Crawford. CSR. RPR
UNfTED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUILDING
OKLAHOMA OTY. OK 73102-PH. (405) 236-3080



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you on that.
THE COURT: I am going to come back to this one.

Section 1983. We are going to have to move along here.
Section 1985 (3) depravation of Fourteenth Amendment right.
This is a new instruction. I understand the Defendants object 
because it does not contain an animus instruction.

MR. BROWN: Your Honor, as the instruction is written,
the only objection we would have in the middle, "Plaintiff must 
prove" and it goes onto say "an intentional." We think the 
word racially should be injected or inserted there.

THE COURT: Where? "Plaintiff must prove Steller
and/or Little and Griffin had an intended racially 
discriminatory purpose. The authorities we cited in our trial 
brief, I won't repeat them, that phrase, "intentionally 
racially discriminatory purpose" is consistent throughout.
It's even found in the Tenth Circuit case on advocacy.

THE CLERK: Phelps.
MR. BROWN: Phelps.
THE COURT: Mr. Phelps, we know him well. I know him

personally. Not him, but his daughters. I had a case up there 
where every federal judge disqualified.

MR. BROWN: Your Honor, additionally even in the
Plaintiff's trial brief at page 11 when they cite white lawyers 
stated a Fourteenth Amendment claim based upon racial animus 
against blacks. And at page 18, "Conspiracy must deprive equal

Charvse C. Crawford. CSR. RPR
UNITED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUILDING
OKLAHOMA CITY. OK 73102 ■ PH. (403) 238-3030



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JURY INSTRUCTION CONFERENCE

THE JUDGE'S CHAMBERS, WITH ALL COUNSEL PRESENT, AND OUT OF THE 
PRESENCE AND HEARING OF THE JURY.)

THE COURT: I understand the parties have agreed on
the verdict form to put in the actual dollar amount and the 
verdict form and that would be $18,756.56 and that amount is 
agreed to by the parties.

MS . CARTER: Yes, it is.
MS . BROWNE: Yes, it is .
THE COURT: I would ask is there any objection to the

verdict form as proposed?
MS. BROWNE: Not on our part.
MS. CARTER: I don't have any objection.
MR. BROWN: None, Your Honor.
THE COURT: Well, from our prior conference I reserved

several issues primarily in the instruction relating to Section 
1983, the depravation of the First Amendment right. After 
reviewing the Tenth Circuit opinion in Koch v. City of 
Hutchinson and in light of the evidence presented in this 
case I have decided to sustain the Defendant's objection to 
items 1 and 2 in the proposed instruction which I had given the 
parties this morning on this subject matter. And specifically, 
I would find that the following activity was not protected by 
the First Amendment. First, the Plaintiff's recommended to the 
Equity Committee on November 21, 1989 that it focused on the 90
percent schools also known as the Dowell schools in preparing

Charvse C. Crawford. CSR. RPR
UNITED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUILDING
OKLAHOMA CITY. OK 73102-PH. (406) 236-3980



1302
JURY INSTRUCTION CONFERENCE

1 its '39-90 report. And secondly, speaking before the Board of
2 Education in '39 in his desire to focus on the Dowell schools
3 with respect to a new charge. I feel that such activity
4 occurred during and as a direct result of the Plaintiff's job
5 responsibility. And I believe in the Koch case the Court said
6 the speech in the course of an employee' s duty will usually or
7 not always reflect upon the employee's competence to perform
8 his or her job.
9 From the evidence I heard in this case the speech at issue
10 was not calculated to disclose any wrongdoing or any
11 malfeasance on the part of the government officials. I would
12 also hold that the Defendants were entitled to view Plaintiffs
13 direction to the Equity Committee as reflecting negatively on
14 his competence. And likewise, I find that there is evidence
15 that the Plaintiff's speech was disruptive both with the
16 relationship of superiors and relationships wit the Equity
17 Committee and the Board of Education.
18 Likewise, I find I think the other issue was on the issue
19 of whether the filing of a charge with the Equal Employment
20 Opportunity Commission should be included in protected speech,
21 and I think the law is clear on that, that that is a personal
22 and personnel issue, and not one of public concern, and it is
23 covered in the other instructions that are pertinent that are
24 applicable to that. So the Court does not feel that that is a
25 protected speech.

Charvse C. Crawford. CSR. RPR
UNITED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUILDING
OKLAHOMA CITY. OK 73102 - PH. (405) 238-0980



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So with that, that will be the Court's ruling on that 
instruction, and I think that takes care of any issues that the 
Court reserved as to ruling on from the prior instruction 
conference. Anything further?

MR. 3ROWN: Nothing, Judge.
THE COURT: Mr. Runalet?
MR. RUNDLET: I want to make sure that our objections

remain on the record.
THE COURT: Ms. Carter?
MS. CARTER: Nothing, Your Honor.
THE COURT: Okay, we will be ready to start at 1:00

p . m.

(THE FOLLOWING PROCEEDINGS WERE HAD IN OPEN COURT, WITH ALL 
PARTIES AND COUNSEL PRESENT, AND WITHIN THE PRESENCE AND 
HEARING OF THE JURY.)

THE COURT: Be seated, please. Welcome back. I am
having Ms. Shinn give you copies of the instructions that I am 
to give you and it's up to you. Those are just to assist and I 
would ask you a couple favors, one is that you are certainly 
welcome to read along with me as I read you instructions on the 
law, but you don't have to, so don't feel obligated to. 
Sometimes it's a little easier to follow, but secondly, I would 
ask that you not read ahead or other things, but to follow 
along if you want to, but don't feel obligated to.

(THE INSTRUCTIONS WERE READ TO THE JURY BY THE COURT.)

1303
JURY INSTRUCTION CONFERENCE ___________________________________________

Charvse C. Crawford. CSR. RPR
UNITED STATES COURT REPORTER

5012 UNRED STATES COURTHOUSE BUILDING
OKLAHOMA CRY. OK 73102 ■ PH. (405) 236-3980







INSTRUCTION NO. _/&

SECTION 1983 -  DEPRIVATION OF FIRST AMENDMENT RIGHT 

The third element of plaintiffs claim is that he was deprived a federal 

right by one or more of the individual defendants. In order for plaintiff to 

establish the third element, he must prove the following by a preponderance 

of the evidence: ^

First: That plaintiffs activity was protected by the first
amendment to the United States Constitution;

Second: That one or more of the individual defendants
committed the acts of retaliation as alleged by 
plaintiff; and

®  Third: That plaintiffs protected activity was a motivating
factor in that defendant’s decision to retaliate against
plaintiff.

The first issue is a question of law for the court. You are instructed that I 

have found that the first amendment protects the following activity of

plaintiff:

(1) Testifying before the Board of Education in support of a 

black employee, Dr. Belinda Biscoe, who was alleging 

discrimination; and

(2) Testifying before a grand jury in January 1990.

nu Jl'jO'l



P age  2

You must now decide whether one orrnore of the individual defendants 

committed the acts of retaliation as alleged by plaintiff and, if so, whether any 

or all of plaintiffs protected activity was a motivating factor in defendants5 

decision to retaliate against plaintiff. Plaintiff does not have to prove that his 

protected activity was the only reason for defendants’ actions. Plaintiff need 

only prove that his protected activity was a "motivating factor1' in defendants 

decision. A factor is a "motivating factor" if it made a difference in or 

influenced the decision.

If plaintiff proves that his protected activity was a motivating factor m  

defendant’s decision to retaliate against him, the burden shifts to that 

defendant to prove by preponderance of the evidence that he or she would 

have reached the same decision even in the absence of plaintiffs protected 

activity. In other words, that defendant must show that he or she would have 

made the same decision without considering plaintiffs protected activity. If 

a defendant makes this showing, you must find in favor of that defendant on 

plaintiffs section 1983 claim.

19 8 3  - Deprivation o f  F i r s t  Amendment R ig h t

^  J  J .  J  v I , )





A
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ER
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IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA APR 2 7 1995

WILLIAM PRICE-CURTIS,
Plaintiff,

v . Case No. CIV-92-2059-L
BOARD OF EDUCATION OF OKLAHOMA 
CITY PUBLIC SCHOOLS, ISD NO. 39 
OF OKLAHOMA COUNTY, et al.,

Defendants.

O R D E R
On October 16, 1992, plaintiff filed this action for damages 

and declaratory and injunctive relief. Plaintiff alleges a pattern 
cl harassment and discrimination that ultimately led to his termin­
ation. He seeks redress pursuant to 42 U.S.C. §§ 1981, 1983, and 
^98 5 and Titles VI and VII of the Civil Rights Act of 1964, 42 
U.S.lU §§ 2000d and 2000e. In addition to his federal claims, 
plaintiff asserts state law claims for breach of contract and 
violation of the public policy of the State of Oklahoma.

This matter is before the court on the motion for summary 
judgment presented by defendants Arthur Steller, Sylvia Little and 
Gloria Griffin, who were administrative personnel of the Oklahoma 
City Public School District ("District") at the time of plaintiff's 
termination. Defendants seek summary judgment on plaintiff's due 
process claim on the ground that no due process violation 
occurred.1 Defendants also contend that they are entitled to

1 Defendants also contend that they are entitled to judgment "with respect to any liberty interest which 
[plaintiff] mav claim." Brief in Support of Motion for Summary Judgment of Defendants Steller. Little and

001749



judgment on plaintiff's Title VII claim because he cannot prove the 
^^istence of a causal connection between his protected activity and 
the alleged retaliation.2 Finally, defendants argue that they are 
entitled to qualified immunity with respect to plaintiff's claims 
pursuant to 42 U.S.C. §§ 1981, 1983 and 1985.3

Summary judgment is appropriate if the pleadings, affidavits 
and depositions "show that there is no genuine issue as to any 
material fact and the moving party is entitled to a judgment as a 
matter of law." Fed. *‘R. Civ. P. 56(c). Any doubt as to - the 
existence of a genuine issue of material fact must be resolved 
against the party seeking summary judgment. In addition, the 
inferences drawn from the facts presented must be construed in the 
light most favorable to the nonmoving party. Board of Education v. 
Pico. 457 U.S. 853, 863 (1982). Nonetheless, a party opposing a
Motion for summary judgment may not simply allege that there are 
disputed issues of fact; rather, the party "must set forth specific 
facts showing that there is a genuine issue for trial." Fed. R.
Civ. P. 56(e) (emphasis added). See also, Anderson v . Liberty
Lobby. Inc.. 477 U.S. 242, 249 (1986). "[Tjhere is no issue for 
trial unless there is sufficient evidence favoring the nonmoving

Griffin at 11. In his response, plaintiff notes that he has not asserted a liberty interest claim. Defendants’ 
motion is therefore DENIED as moot with respect to this issue.

defendants do not address plaintiffs claim under Title VI of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000d.

3The court rejects defendants’ invitation to disregard 40 O.S. § 2-610A, which provides that actions 
before the Oklahoma Employment Security Commission "shall not be used as evidence in any separate or 
subsequent action or proceeding . . . .” The court therefore will not address defendants’ collateral estoppel 
argument, which is premised on the findings of the Oklahoma Employment Security Commission.

2



If theparty for a jury to return a verdict for that party.
^■idence is merely colorable, or is not significantly probative, 
summary judgment may be granted." Anderson, 477 U.S. at 249-50 
(citations omitted). In addition, "the plain language of Rule 
56(c) mandates the entry of summary judgment, after adequate time 
for discovery and upon motion, against a party who fails to make a 
showing sufficient to establish the existence of an element 
essential to that party's case, and on which that party will bear 
the burden of proof at £rial." Celotex Coro, v. Catrett. 477 U.S. 
317, 322 (1986).

TITLE VII CLAIM
With respect to this claim, the court finds that there are 

genuine issues of material fact in dispute regarding whether 
plaintiff was subjected to retaliation from defendants. Thus, 
summary judgment is inappropriate. See Fed. R. Civ. P. 56(c). See 
also Mustang Fuel Corn, v. Youngstown Sheet & Tube Co.. 561 F.2d 
202, 204 (10th Cir. 1977). Defendants' Motion for Summary Judgment 
with respect to this claim is DENIED.

QUALIFIED IMMUNITY
The court finds that plaintiff has met his burden with respect

to the issue of qualified immunity.
The Supreme Court recently clarified the 
analytical inquiry a district court must 
conduct when a claim of qualified immunity is 
raised on summary judgment. "To reach the 
question of whether a defendant official is 
entitled to qualified immunity, a court must 
first ascertain whether the plaintiff has 
sufficiently asserted the violation of a

3



constitutional right at all." This requires 
the district court to "first determine whether 
plaintiff's allegations, if true, state a 
claim ‘for a violation of a constitutional 
right that was clearly established when 
defendant acted." "Decision of this purely 
legal question permits courts expeditiously to 
weed out suits which fail the test without 
requiring a defendant who rightly claims 
qualified immunity to engage in expensive and 
time consuming preparation to defend the suit 
on its merits." '-'Whether an asserted federal 
right was clearly established at a particular 
time . . . presents a question of law . . . .
In order to carry his burden, the plaintiff 
must do more 'than identify in the abstract a 
clearly established right and allege that the 
defendant has violated it. Rather, the plain­
tiff must articulate the clearly established 
constitutional right and the defendant's con­
duct which violated the right with specific­
ity, and "demonstrate a 'substantial corres­
pondence between the conduct in question and 
prior law . . . establishing that the defen­
dant's actions were clearly prohibited.'"
"Unless such a showing is made, the defendant prevails." "Once the plaintiff has
sufficiently alleged the conduct violated 
clearly established law, then the defendant 
bears the burden, as a movant for summary 
judgment, of showing no material issues of 
fact remain that would defeat the claim of 
qualified immunity."

Romero v. Fav. 45 F.3d 1472, 1475 (10th Cir. 1995) (citations
omitted).

The court concludes that at the time plaintiff testified 
before the School Board on the Belinda Biscoe matter and when he 
gave grand jury testimony, the protected nature of that speech was 
"sufficiently clear that defendants should have been reasonably on 
notice" that disciplining him for his speech would not survive a 
balancing inquiry. See Melton v. Citv of Oklahoma City, 879 F.2d 
706, 729 (10th Cir.), reh'g en banc granted on other grounds 888

4

001752



F.2d 724 (1989). See also Patrick v. Miller, 953 F.2d 1240, 1246-
^  (10th Cir. 1992). Whether defendants engaged in retaliatory 
conduct is a guestion of fact; they therefore are not entitled to 
qualified immunity on plaintiff's claims pursuant to sections 1981, 
1983 and 1985. Defendants' motion for summary judgment on this 
issue is therefore DENIED.

DUE PROCESS CLAIM
Whether plaintiff has a property interest in continued 

employment with the District is a question of state law. Bishop v . 
Wood. 426 U.S. 341, 344 (1976). ''[A] property interest is
determined by whether the terms of employment created by contract, 
federal statute, city charter or an employee manual create a 
sufficient expectancy of continued employment to constitute a 
property interest which must be afforded constitutionally 
guaranteed due process." Vinvard v. King. 728 F.2d 428, 432 (10th 
Cir. 1984).

Based on the evidence presented, the court finds that
plaintiff clearly had a property interest in continued employment
with the District. The District policy regarding staff suspension
and termination provides that:

Employees may be dismissed from employment 
with the district for just cause. Employees 
are entitled to procedural due process related 
to demotion or dismissal and are encouraged to 
appeal any demotion or dismissal action they 
feel to be unjustified. The support and 
certified bargaining agreements, Board policy, 
and Oklahoma statutes provide procedural 
protection related to fair demotion or 
dismissal of employees.

5

0 0 . 1 7



Exhibit 97 to Brief in Support of Motion for Summary Judgment of 
^j^fendants Steller, Little and Griffin at 2 (hereinafter cited as 
"Defendants' Brief") (emphasis added). This language belies 
defendants' assertion that plaintiff had no protected interest in 
his employment. See Goudeau v. Independent School Dist. No. 37 of 
Oklahoma Countv. 323 F.2d 1429, 1430-31 (10th Cir. 1987) (finding
property interest based on statute that limited suspension, 
demotion or termination "only for cause"); Bailey v . Kirk, 777 F.2d 
567, 573-74 (10th Cir/* 1985) (holding that public employee who
could not be suspended except "for cause" has a property interest) .

Nonetheless, defendants are entitled to summary judgment on
plaintiff's procedural due process claim. The due process clause
requires "'that an individual be given an opportunity for a hearing
before he is deprived of any significant property interest.'"

^ ^leveland Bd. of Educ. v. Loudermill. 470 U.S. 532, 542 (1985)
(quoting Boddie v. Connecticut. 401 U.S. 371, 379 (1971)) (emphasis
in original). The clause does not require a full evidentiary
hearing; rather, the law provides that:

[t]he opportunity to present reasons, either 
in person or in writing, why proposed action 
should not be taken is a fundamental due 
process requirement. The tenured public 
employee is entitled to oral or written notice 
of the charges against him, an explanation of 
the employer's evidence, and an opportunity to 
present his side of the story.

Loudermill. 470 U.S. at 546.
In this case, plaintiff was given all the process he was due. 

See Aronson v. Gressly. 961 F.2d 907, 909-10 (10th Cir. 1992) . It 
is undisputed that plaintiff received written notice of the charges

6

001754



against him, together with an explanation of the evidence in 
^^)port of those charges. See Exhibit 79 to Defendants' Brief. It 
is also undisputed that plaintiff was given the opportunity to 
present his side of the story at a special meeting of the School 
Board on January 19, 1991. Exhibit 86 to Defendants' Brief at 2. 
That plaintiff chose not to attend that meeting does not negate the 
fact that he was given the opportunity to be heard. See Aronson, 
961 F.2d at 910.

The Motion for Summary Judgment of Defendants Steller, Little 
and Griffin (Docket No. 119) is GRANTED in part and DENIED in part. 
The motion is GRANTED with respect to plaintiff's procedural due 
process claim; in all other respects, the motion is DENIED.

CONCLUSION

-HLIt is so ordered this day of April, 1995.

TIM LEONARDUnited States District Judge

7

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 PO

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IN THE UNITED STATES DISTRICT COURT FOR^TCI^ ^  0  
WESTERN DISTRICT OF OKLAHOMA ^pp £ n  ̂ 95

WILLIAM PRICE-CURTIS,
Plaintiff, 

v.
BOARD OF EDUCATION OF OKLAHOMA 
CITY PUBLIC SCHOOLS, ISD NO. 89 
OF OKLAHOMA COUNTY, et al.,

Defendants. )

- w. Li  ̂i - wuJn 1 . *' ̂  1 1
'V,8Y — ir -

L ’i CiST. Cr CKD-i _  .ClriTY

Case No. CIV-92-2059-L

O R D E R

On October 16, 1992, plaintiff filed this action for damages 
and declaratory and injunctive relief. Plaintiff alleges a pattern 
of harassment and discrimination that ultimately led to his termin­
ation. He seeks redress pursuant to 42 U.S.C. §§ 1981, 1983, and 
9̂85 and Titles VI and VII of the Civil Rights Act of 1964, 42

U.S.C. §§ 2000d and 2000e. In addition to his federal claims, 
plaintiff asserts state law claims for breach of contract and for 
discharge in violation of the public policy of the State of 
Oklahoma.

This matter is before the court on plaintiff's motion for 
partial summary judgment against defendant Board of Education of 
Oklahoma City Public Schools, ISD No. 89 of Oklahoma County 
("Board"). Plaintiff seeks judgment in his favor on his breach of 
contract claim and his procedural and substantive due process 
claims.

Summary judgment is appropriate if the pleadings, affidavits 
^and depositions "show that there is no genuine issue as to any

0 0 1 7 4 6



material fact and the moving party is entitled to a judgment as a 
0 t e r  of law." Fed. R. Civ. P. 56(c). Any doubt as to the 
existence of a genuine issue of material fact must be resolved 
against the party seeking summary judgment. In addition, the 
inferences drawn from the facts presented must be construed in the 
light most favorable to the nonmoving party. Board of Education 
Pico. 457 U.S. 353, 863 (1982). Nonetheless, a party opposing a
motion for summary judgment may not simply allege that there are 
disputed issues of fact;* rather, the party "must set forth specific 
facts showing that there is a genuine issue for trial." Fed. R. 
Civ. P. 56(e) (emphasis added) . See also, Anderson— v_.— Liberty 
T,obbv. Inc.. 477 U.S. 242, 249 (1986). "[T]here is no issue for
trial unless there is sufficient evidence favoring the nonmoving 
party for a jury to return a verdict for that party. If the 

^Ptidence is merely colorable, or is not significantly probative, 
summary judgment may be granted." Anderson, 477 U.S. at 249-50
(citations omitted). In addition, "the plain language of Rule
56(c) mandates the entry of summary judgment, after adequate time 
for discovery and upon motion, against a party who fails to make a 
showing sufficient to establish the existence of an element 
essential to that party's case, and on which that party will bear 
the burden of proof at trial." Celotex Corp. v.— Catrett, 477 U.S.
317, 322 (1986).

Based on this standard, the court concludes that plaintiff's 
motion must be denied. Plaintiff has failed to show the absence of 
genuine issues of material fact with respect to his breach of



contract claim, nor has plaintiff demonstrated that he is entitled

process claims, the undisputed facts establish the opposite of the 
relief plaintiff seeks. The record demonstrates that plaintiff 
received all the process he was due and that no substantive due 
process violation occurred. See Order granting in part and denying 
in part the Motion for Summary Judgment of Defendants Steller, 
Little and Griffin at 5-7 (W.D. Okla. Apr. 18, 1995); Order
granting in part and denying in part the Motion for Summary 
Judgment of Defendants Board of Education of Oklahoma City Public 
Schools ISD No. 89, and Board Members Sued in Their Official 
Capacities at 4-6 (W.D. Okla. Apr. 18, 1995). Therefore, plaintiff 
is not entitled to summary judgment on his due process claims; in 
fact, judgment must be entered in favor of defendants on these

Plaintiff's Motion for Partial Summary Judgment Against 
Defendant Board of Education of Oklahoma City Public Schools, ISD 
No. 89 of Oklahoma County (Docket No. 68) is DENIED. Plaintiff's 
due process claims are DISMISSED WITH PREJUDICE.

judgment as a matter of law. With respect to plaintiff's due

%aims.

-tSl.It is so ordered this day of April, 1995.

TIM LEONARDUnited States District Judge

NTERED IN JU D G E M E N T  DO CKET ON H  -  - °\S







IN THE UNITED STATES DISTRICT COURT FOR $<E|  I P  I )
WESTERN DISTRICT OF OKLAHOMA

APR 2 :  1995

WILLIAM PRICE-CURTIS,
Plaintiff, BY — Ĉ W - - - - - CIP U T Y

v . Case No. CIV-92-2059-L
BOARD OF EDUCATION OF OKLAHOMA 
CITY PUBLIC SCHOOLS, ISD NO. 89 
OF OKLAHOMA COUNTY, et al.,

Defendants.

O R D E R

On October 16, 1992, plaintiff filed this action for damages
and declaratory and injunctive relief. Plaintiff alleges a pattern 
of harassment and discrimination that ultimately led to his termin­
ation. He seeks redress pursuant to 42 U.S.C. §§ 1981, 1983, and
^985 and Titles VI and VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000d and 2000e. In addition to his federal claims,
plaintiff asserts state law claims for breach of contract and for 
discharge in violation of the public policy of the State of 
Oklahoma.

This matter is before the court on a motion for summary 
judgment presented by defendants Board of Education of Oklahoma 
City Public Schools, ISD No. 89 of Oklahoma County and the 
individual Board members sued in their official capacity 
(hereinafter collectively referred to as "Board"). The Board 
contends that plaintiff has failed to submit any evidence that the 
Board was personally involved in the alleged harassment, 

^discrimination or retaliation such that the Board should be held

001740



liable under 42 U.S.C. § 1983. In addition, the Board argues that
(aintiff has failed to prove the necessary elements for liability 

under Title VII or 42 U.S.C. § 1981. Finally, the Board asserts 
that plaintiff does not state a cognizable claim under 42 U.S.C. § 
1985 .

Summary judgment is appropriate if the pleadings, affidavits 
and depositions "show that there is no genuine issue as to any 
material fact and the moving party is entitled to a judgment as a 
matter of law." Fed. 'R. Civ. P. 56(c). Any doubt as to the 
existence of a genuine issue of material fact must be resolved 
against the party seeking summary judgment. In addition, the 
inferences drawn from the facts presented must be construed in the 
light most favorable to the nonmoving party. Board of Education v. 
Pico. 457 U.S. 853, 863 (1982). Nonetheless, a party opposing a
potion for summary judgment may not simply allege that there are 
disputed issues of fact; rather, the party "must set forth specific 
facts showing that there is a genuine issue for trial." Fed. R. 
Civ. P. 56(e) (emphasis added). See also. Anderson v. Liberty 
Lobby, Inc. . 477 U.S. 242, 249 (1986). "[T]here is no issue for 
trial unless there is sufficient evidence favoring the nonmoving 
party for a jury to return a verdict for that party. If the 
evidence is merely colorable, or is not significantly probative, 
summary judgment may be granted." Anderson. 477 U.S. at 249-50
(citations omitted). In addition, "the plain language of Rule 
56(c) mandates the entry of summary judgment, after adequate time 
for discovery and upon motion, against a party who fails to make a



showing sufficient to establish the existence of an element 
^^ential to that party's case, and on which that party will bear 
the burden of proof at trial." Celotex Coro, v. Catrett, 477 U.S. 
317, 322 (1986).

Based on this standard, the court concludes that the Board's 
motion must be denied in part and granted in part. With respect to 
plaintiff's claims under Title VII and § 1981, the Board has failed 
to establish that there are no disputed issues of material fact. 
Plaintiff has presented sufficient evidence to raise a jury 
question regarding whether he was subjected to a retaliatory 
discharge. As plaintiff's employer, the Board is the proper 
defendant in a Title VII action. See Sauers v. Salt Lake County,
1 F.3d 1122, 1125 (10th Cir. 1993).

Likewise, with respect to plaintiff's § 1985 claim, the court 
fcinds that summary judgment is not appropriate. The Board contends 
that plaintiff does not present a cognizable claim because his § 
1985 claim is premised on a violation of Title VII. The Board, 
citing Great Am. Fed. Sav. & Loan Ass'n v. Novotny. 442 U.S. 366, 
378 (1979), argues that "deprivation of a right created by Title
VII cannot be the basis for a cause of action under § 1985 (3)."
Id. The Board's argument, however, fails to recognize that 
plaintiff has also alleged that defendants conspired to violate his 
first and fourteenth amendment rights. As plaintiff's § 1985 claim 
is not premised solely on a violation of Title VII, the Board is 
not entitled to summary judgment on this basis.

r\ r, • •*, » •->
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The Board also argues that it cannot be held liable for 
^^ilating § 1985 because as a corporate entity, it cannot conspire 
with itself. In support of this argument, the Board cites Hull v. 
Cuyahoga Valiev Joint Vocational School Dist. Bd. of Educ., 926 
F. 2d 505 (6th Cir.) , cert, denied. 501 U.S. 1261 (1991) . The Court 
of Appeals for the Tenth Circuit recently rejected the reasoning 
and holding of Hull. In Brever v. Rockwell Int'l Corp.. 40 F.3d
1119 (10th Cir. 1994), the Court held:

We agree with’the latter group of courts that 
the [intracorporate conspiracy] doctrine, 
designed to allow one corporation to take 
actions that two corporations could not agree 
to do, should not be construed to permit the 
same corporation and its employees to engage 
in civil rights violations. See Stathos v.
Bowden. 728 F.2d 15, 21 (1st Cir. 1984) (per
Breyer, J.) ("Where 'equal protection' is at 
issue . . . one cannot readily distinguish in 
terms of harm between the individual conduct 
of one enterprise and the joint conduct of 
several."). "In these situations, the action 
by an incorporated collection of individuals 
creates the 'group danger' at which conspiracy 
liability is aimed, and the view of the 
corporation as a single legal actor becomes a 
fiction without a purpose." Dussouv v. Gulf 
Coast Inv. Coro.. 660 F.2d 594, 603 (5th Cir.
1981).

Id. at 1127. The Board's motion for summary judgment based on the 
intracorporate conspiracy doctrine is therefore denied.1

With respect to plaintiff's § 1983 claim, however, the court 
concludes that summary judgment is appropriate. It is well- 
established "that a municipality cannot be held liable under § 1983

1As the Board does not argue that the evidence is insufficient to establish the existence of a § 1985 
conspiracy, the court expresses no opinion with respect to that issue.

4

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on a respondeat superior theory." Monell v. Dept.__of— Social
^h/ices, 436 U.S. 658, 691 (1978). Rather, "a direct causal link 
must exist between the acts of the governing body sought to be held
liable and the alleged constitutional deprivation." Ware_v_;_
Unified School Dist. No. 492. 902 F.2d 815, 819 (10th Cir. 1990)
(citation omitted) . Such a link "may be established when the 
governing body has exercised its decisionmaking authority with 
deliberate indifference to the constitutional rights of those 
affected by its decisions." Id.

In this case, however, plaintiff has not shown that the Board 
was deliberately indifferent to his constitutional rights. Unlike 
in Ware. plaintiff presented no evidence that the Board was 
informed on the record of plaintiff's belief that he was being 
terminated in retaliation for exercising first amendment rights. 
f̂e.1 the Board had on the record before it were letters from 
plaintiff and his counsel indicating their belief that the Board's 
action was premature in light of plaintiff's filing a complaint 
with the Equal Employment Opportunity Commission, which alleged 
violations of Title VII.2 No one testified at the hearing or even 
raised the possibility that plaintiff was being terminated in 
retaliation for exercising first amendment rights. Therefore, 
unlike in Ware, there was no reason for the Board to conduct an 
independent investigation on this issue. Furthermore, the Board

2See Exhibits 81 and 82 to Brief in Support of Motion for Summary Judgment of Defendants Steller, 
Little and Griffin; Exhibits 14(B) and 14(C) to Memorandum in Support of Plaintiffs Motion for Partial 
Summarv Judgment Against Defendant Board of Education of Oklahoma City Public Schools. ISD No. 89 of 
Oklahoma Countv.

5



was thwarted in its attempt to be informed of plaintiff's position
respect to his termination by his refusal to appear at the 

hearing or to submit any written response to the Superintendent's 
recommendation.

Likewise, plaintiff's claim that the Board failed to provide 
reasons for its decision to terminate plaintiff is without merit. 
The Superintendent's letter to the Board recommending plaintiff's 
dismissal contains not only the reasons for his termination, but 
also the evidence in support. See Exhibit 11 to Plaintiff's Motion 
[Transcription of Board of Education Meeting of Jan. 19, 1991 at
18. When it voted to terminate plaintiff, the Board adopted the 
Superintendent's recommendation as its own. Id. at 19-20, 22.
Plaintiff's argument that the Board did not provide reasons or an 
evidentiary basis for plaintiff's termination is thus incorrect.

In sum, the Motion for Summary Judgment of Defendants Board of 
Education of Oklahoma City Public Schools ISD No. 89, and Board 
Members Sued in Their Official Capacities (Docket No. 117) is 
GRANTED with respect to plaintiff's § 1983 claim, but is DENIED in
all other respects.

It is so ordered this day of April, 1995.

United States District Judge

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£  1 L  5  D
WESTERN DISTRICT OF OKLAHOMA APR 2 7 1995

IN THE UNITED STATES DISTRICT COURT FOR THE 'J

WILLIAM PRICE-CURTIS,
Plaintiff,

v .

BOARD OF EDUCATION OF OKLAHOMA 
CITY PUBLIC SCHOOLS, ISD NO. 89 
OF OKLAHOMA COUNTY, et al.,

Defendants. )

-.o. uiST. CCUfiT, W c o  i tmN uiST. CF OKLr. 
BY- - .CIPUTY

Case No. CIV-92-2059-L

O R D E R

On October 16, 1992, plaintiff filed this action for damages 
and declaratory and injunctive relief. Plaintiff alleges a pattern 
of harassment and discrimination that ultimately led to his termin­
ation. He seeks redress pursuant to 42 U.S.C. §§ 1981, 1983, and 

^^85 and Titles VI and VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000d and 2000e. In addition to his federal claims, 
plaintiff asserts state law claims for breach of contract and for 
discharge in violation of the public policy of the State of 
Oklahoma.

This matter is before the court on a motion for summary 
judgment presented by defendants Kay Floyd, Michael Fogarty, Betty 
Hill, Leo Hise and Frank Kellert. Defendants are the five members 
of the Oklahoma City Public School Board who voted to accept the 
Superintendent's recommendation to terminate plaintiff. Defendants 
have been sued in both their individual and their official 
capacity. The motion at issue addresses plaintiff's complaint 
igainst the defendants in their individual capacity. Defendants

001738



contend that they are entitled to qualified immunity with respect 
^^plaintiff's claim for damages pursuant to 42 U.S.C. § 1983. In 
a separate Order, the court has ruled that the Board is entitled to 
summary judgment with respect to plaintiff's § 1983 claim. That 
ruling requires that the court GRANT the Motion for Summary 
Judgment of Defendants Floyd, Fogarty, Hill, Hise and Kellert 
(Docket No. 75) .

It is so ordered this day of April, 1995.

TIM LEONARDUnited States District Judge.

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DIRECT EXAMINATION OF DR. PRICE-CURTIS BY MR. ANGEL
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1 that point. If you want us to formally read the stipulation
2 into the record now, I think we can do that.
3 MR. NELSON: I don't think it makes much sense at the
4 moment because it hasn't been discussed. If I cross on it, it
5 will be very, very limited. I don't think the jury is going to
6 know. I think it's like telling them something they have not
7 heard about.
8 I was going to say, Your Honor, there were two other
9 witnesses that they intend to call that we thought we should go
10 ahead and address now which is essentially a motion in limine
11 with regard to their testimony now.
12 THE COURT: Who are they?
13 MR. NELSON: The first one, Your Honor, is Belinda
14 Biscoe who is the colleague that he testified on behalf of,
15 which we don't contest that he did, and in fact, that
16 transcript is now in the record.
17 The scope of the testimony as they have listed in the
18 pre-trial order says that she will testify regarding
19 retaliatory and harassing conduct by Defendants similar to that
20 experienced by Dr. Price-Curtis. And then goes on to say the
21 harmful effect of Defendants' conduct on Dr. Price-Curtis and
22 her experience working on the Dowell case and the district
23 testing program. So there is a whole litany of those items.
24 First, if she wants to come in and testify as to the harmful
25 effect on Dr. Price-Curtis, that goes to damages. I think that

Charvse C. Crawford. CSR. RPR
UNRED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUILDING
OKLAHOMA CITY, OK 73102 - PH. (405) 238-3960



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DIRECT EXAMINATION OF D R .  PRICE-CURTIS BY MR. ANGEL
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nay be appropriate testimony. The rest of it, Your Honor, the 
£act that she thinks she was retaliated and harassed by 
Defendants similar to that experienced by this Defendant (sic) 
is irrelevant and highly prejudicial. It's seeking to 
introduce evidence of prior bad acts by these particular 
Defendants. It essentially forces a mini-trial within the main 
trial here. The issue is did they retaliate against this 
Plaintiff, not did they retaliate against Dr. Biscoe.

And we have some cases, Your Honor, that are cited. They 
are First Amendment cases. One is McQuarter v. Birmingham,
906 F.2d 674. It's an Eleventh Circuit, 1990 case, where a 
police officer claimed discharge in retaliation for his 
statements to the press related to the police chief's abuse of 
arrested suspect. And the Court reasoned an issue in this case 
was the Plaintiff's history of employment under the police 
chief, the admission of testimony relating to other police 
officers' grievance against the police chief could have 
resulted in a series of mini-trials centering on the employment 
history of each officer.

There is another case McLooney v. Joseph Slitz Brewing 
Company 728 F.2d 924, which also kept out that type of 
testimony.

I think the Court can see the prejudicial nature in rules 
403 and 404 specifically cover attempts to introduce evidence 
of prior bad acts.

Charvse C. Crawford, CSR. RPR
UNITED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUILDING
OKLAHOMA CITY, OK 73102 - PH. (405) 238-3980



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THE COURT: Mr. Angel?
MR. ANGEL: Yes, well, there are a number of things

that Ms. Biscoe is listed for. Obviously, she is a friend, a 
colleague of Dr. Price-Curtis and will testify about her 
observations concerning his physical appearance and what she 
observed with respect to his reaction to his discharge which 
may go to damages. She knew him both before and after the 
discharge.

With respect to the Dowell case, she was the 
administration's point man on the Dowell case. We don't intend 
to put on much evidence about that, but I was cut off to some 
degree with Tiana Douglas what the Dowell case was. She didn't 
know, didn't know how it came up. We need to get it nailed 
down how the Dowell case related to the Equity Committee. I 
intend to have her testify about that. I believe she will also 
testify with respect to certain written instructions from 
Steller concerning what -- I am sorry -- Dr. Steller concerning 
what a team player was. I don't think any of that should be in 
much dispute.

With respect to the comparative treatment, this is a little 
different from the other cases. I wished we had been afforded 
the opportunity of having this motion in limine in advance so 
we could also go and research it and provide cases. This was 
the woman who was in the very same proceeding as
Dr. Price-Curtis. It seems to me in circumstantial evidence in

Charvse C. Crawford. CSR. RPR
UNITED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUILDING
OKLAHOMA CrTY, OK 73102 - PH. (405) 236-3980



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which pretext is involved comparative treatment is always an 
issue, how have you treated others.

Now, there may be a distinction in other cases. I haven't 
read them, but it seems to me there may be a distinction where 
you have a grievance over here that may be you have a whole 
different subject, whole different set of circumstances. That 
may be different where you have two people doing the same thing 
at the same time and how they are treated thereafter. If you 
don't hear that, then you don't hear comparative data. It 
would be equivalent.

Just to use an example, if Belinda Biscoe and 
Dr. Price-Curtis testified in that hearing and a day later they 
were both discharged, it would be like saying you can talk 
about Dr. Price-Curtis being discharged, but you can't talk 
about the person who did the same thing he did, receiving the 
same treatment. And it seems to me because of the identity of 
their protected activity in this regard, we should be able to 
put on evidence of comparative treatment.

MR. NELSON: Dr. Biscoe was not terminated. She was
offered a contract several months after that hearing, and she 
voluntarily chose to leave the district. That brings up a 
point whether or not we are going to get into a mini-trial 
about Dr. Biscoe's claim, about why she was unhappy, and why 
she left, and how that relates to this particular case.

MR. ANGEL: She was placed on --

Chaivse C. Crawford, CSR, RPR
UNITED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUILDING
OKLAHOMA CITY, OK 73102 - PH. (405) 238-3980



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THE COURT: Wait, wait. Let him finish. Are you
through, Mr. Nelson?

MR. NELSON: She also had a completely different
supervisor. Her supervisor was not any of these Defendants 
that are here today. Dr. Little inherited her for a very short 
period of time before she left. All of the evaluations, plans 
for improvement and disciplinary problems that were assessed 
against her were different supervisors, a Dr. Carolyn Hughes. 
They are not in the same department, and they are not doing the 
same thing with regard to their job.

THE COURT: Well, I have certainly no difficulty with
Dr. Biscoe discussing the issue of any damages and so forth 
from her knowledge of the Plaintiff in this case. I have no 
difficulty with you asking the question about how Dowell 
relates to the Equity Committee. I don't think we need to 
spend much time on it. I think one question will do that, if 
she has that knowledge and history. But I don't see and the 
Court is well aware of similar incidents and all this and the 
pattern things that would allow going into other cases and 
other complaints. I don't see enough similarity in these two 
persons' situation, Mr. Angel, that it would allow going into 
all of her problems or her complaints or whatever her 
differences were with the administration.

From what is represented, they were not similar enough that 
the Court would want to go in and have a whole other trial on

Charyse C. Crawford. CSR. RPR
UNITED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUILDING
OKLAHOMA CITY, OK 73102 - PH. (405) 236-3980



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sr case, so I would grant the motion in limine as far as it 
oes to other than -- I understand that he did testify for her 
t this one hearing and if there is some question so that the 
ury realizes this is who he was supporting at this hearing, I 
hink that is fine. I don't want to go into all the issues 
nvolving her complaints with the school or the administration 
>r the school board.

MR. ANGEL: What I am concerned about and I understand
rour ruling, and I don1t want to keep going back and forth, but 
Counsel had an opportunity to make the differences, and I 
wanted to be certain the Court understood and 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.

THE COURT: How long was she under Dr. Little?
MR. ANGEL: I will have to get that. I will accept 

their representation it was a month and a half. She quit 
because she said she couldn't take the pressure. She says she 
was given job assignments that were impossible to do, much the 
same as happened with Price-Curtis.

THE COURT: Mr. Angel, we are just not going to try
her case, and that's what we would end up doing, and we are

Charvse C. Crawford. CSR. RPR
UNITED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUILDING
OKLAHOMA CITY, OK 73102 • PH. (405) 236-3980



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DIRECT EXAMINATION OF DR. PRICE-CURTIS BY MR. ANGEL
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just not going to do that.
THE COURT: Then we have to supbpoena the Defendants

and maybe persons who aren't Defendants can be brought in, and 
we have a whole subtrial on her performance or lack of 
performance and all that. And I don't see that there is a 
similar enough incident involved in what I have heard today, 
and I heard all yesterday on the Equity Committee itself and 
his role in that. Was she involved with the Equity Committee?

MR. ANGEL: She was not.
THE COURT: That's almost 95 percent of what I have

heard this trial was about.
MR. ANGEL: I think you are right.
THE COURT: I think it would be confusing and I think

it would be not relevant. And as far as the matters that she 
can testify on, I certainly think she can, and I think she can 
answer the question about that he did testify for her and very 
briefly about that. But I don't think we need to go into her 
whole entire set of problems.

MR. NELSON: There is one other area that is very
general. The reason I am having to address it this way is I 
inherited the case six weeks ago and did not have depositions.

THE COURT: I understand that. I have given you a
little more latitude than I would have if you had been in the 
case all along.

5 MR. NELSON: I don't have depositions for Dr. Biscoe,

Charyse C. Crawford. CSR. RPR
UNTIED STATES COURT REPORTER

5012 UNfTED STATES COURTHOUSE BUILDING
OKLAHOMA CRY, OK 73102 - PH. (405) 238-3980



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A. No, I understand that he had -- 
MS. CARTER: Objection.
MR. NELSON: Objection.
THE COURT: It will be sustained. Any

cross-examination?
MS. CARTER: No questions.
MR. NELSON: No questions.
THE COURT: Ms. Tarver, you may be excused, and the

Court would advise you that you are not to discuss your 
testimony with any other persons who may be a witness. You may 
be excused.

(WITNESS EXCUSED.)
THE COURT: Plaintiff may call your next witness.
MS. BROWNE: Judge, we have a motion in limine that we

have to deal with, with regard to an outstanding issue for this 
witness.

THE COURT: Whose the witness?
MS. BROWNE: This is John Cathey.
THE COURT: Counsel approach.

(FOLLOWING PROCEEDINGS WERE HAD AT THE BENCH, WITH ALL 
COUNSEL PRESENT, AND OUT OF THE HEARING OF THE JURY.)

THE COURT: Who is Mr. Cathey? Refresh my memory.
MR. NELSON: He was an employee of the district for 

six months, and they are offering him to testify that he was 
also a victim of this retaliation like Dr. Price-Curtis. It's

Charyse C. Crawford, CSR. RPR
UNITED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUILDING
OKLAHOMA CITY, OK 73102 - PH. (405) 236-3980



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vy understanding that's the only purpose.
THE COURT: What's the purpose of Mr. Cathey's

:estimony?
MS. BROWNE: That is not it.
THE COURT: Make your offer of proof.
MS. BROWNE: He was employed at Oklahoma City Public

Schools. He was aware of what it was and brought it to the 
attention of the administration. He also was aware of 
information about the harassment of Dr. Price-Curtis. He is 
not here to testify about harassment against himself at all.

THE COURT: Did he directly observe harassment of
Dr. Price-Curtis? When you say he was aware --

MS. BROWNE: He was told basically to stay away from
Dr. Price-Curtis because Dr. Price-Curtis was not a team 
player, and he was told by his supervisor, Carolyn Hughes, who 
was part of the superintendent's cabinet.

THE COURT: I think that is too far removed. It
doesn't have anything to do with these Defendants.

MS. BROWNE: Well, she was a member of the cabinet,
and so was Dr. Little, and so was Dr. Steller. It's his 
cabinet, and that's obviously where that information is coming 
from.

THE COURT: Ms. Browne, I think you are basing that
solely on hearsay.

MS. BROWNE: Secondly - -

Charyse C. CrawfordCSR, RPR
UNITED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUILDING
OKLAHOMA CRY, 0 K  73102-PH. (405)238-3880



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THE COURT: The Court is not going to allow that
testimony.

MS. BROWNE: Secondly, Your Honor, he also had
information with regard to inequities in the district which 
obviously is important to this case, and he wanted to fully get 
information to the equity officer and was told not to.

THE COURT: How is that relevant to the case?
MS. BROWNE: That goes to the conspiracy claim.
THE COURT: How is that relevant in this case?
MS. BROWNE: That's relevant because he had

information about racial animus with regard to the school 
district.

THE COURT: What information?
MS. BROWNE: He is the head of the Gifted Program and

he in that capacity observed that the school district was not 
giving the same amount of resources to the African American 
schools that they were to the white schools, and he brought 
that to the attention of the supervisor, and he was told not to 
give that information to Dr. Price-Curtis because of the Dowell 
case.

THE COURT: What does that have to do with this
litigation? I am having difficulty tying this together.

MS. BROWNE: Okay, let me tie it together. Part of
this claim is that Dr. Price-Curtis was retaliated against 
because of his work with the Equity Committee that was involved

Charyse C. Crawford, CSR. RPR
UNITED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUILDING
OKLAHOMA CITY, OK 73102 - PH. (405) 236-3980



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.n investigating issues of racial inequities. And because of 
iis involvement with that committee, he was terminated. And he 
aas information about racial inequities. And Dr. Price-Curtis 
lad a First Amendment right to work with that committee and 
within the responsibilities of his job. And he was retaliated 
against because he did his job and the Board didn't like the 
outcome of that report, and it was all tied into the Dowell 
litigation, Your Honor.

MR. NELSON: Your Honor, clearly it has nothing to do
with the issues in this case. First of all, I will remind 
Counsel made a statement at the beginning of this case that 
this was not a race case, and they were not going to prove 
racial animus. Following that, is Mr. Cathey's observation.
Are we going to try a school discrimination case here in the 
Oklahoma City Public Schools?

This hasn't been pled that way, Your Honor, and we are not 
prepared to defend that, and that is about a three-month 
trial. It has nothing to do with the issues of why he was 
discharged. They have gotten into the Equity Committee 
adnauseam, and they can argue that all they want. This is one 
man's observations and conclusions about what he thinks is 
going on in the district, and he was there a grand total of six 
months, and he wasn't in the same department with any of these 
Defendants.

THE COURT: When was he there?

Charvse C. Crawford, CSR, RPR
UNITED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUILDING
OKLAHOMA CITY, OK 73102 - PH. (405) 236-3980



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MS. BROWNE: He was there in 1990.
THE COURT: What time?
MR. NELSON: January to June. I will take her
:ations of that.
MS. BROWNE: He was there from January to June.
THE COURT: Ms. Carter?
MS. CARTER: I think it is totally irrelevant, has

nothing to do with the issues before the Court. Equity in the 
gifted program, it's not relevant.

MR. NELSON: The case is a discrimination case.
MS. BROWNE: It's a what?
THE COURT: The Court has reviewed very carefully all

of the complaints. The Court has reviewed the briefs. The 
Court has sat here three days and heard all of the evidence and 
what I understand in your offer of proof is that Mr. Cathey's 
testimony, the Court does not see that it is in any way related 
to any of the evidence that has been offered or any of the 
allegations made in this case against these Defendants.

It is totally from what the Court understands and your 
offer of proof would totally cause confusion of the whole 
issues that are involved in this case, would cause total 
confusion to the jury. The Court has not seen anything from 
your offer of proof that his testimony would be in any way 
probative, and whatever any probative value that anyone could 
imagine, it would be more prejudicial than probative.

Charvse C. Crawford. CSR, RPR
UNITED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUILDING
OKLAHOMA CITY. OK 73102 ■ PH. (405) 238-3880



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But the main reason is the Court sees there is totally no 
relevance to what you propose his testimony to be with any of 
the facts and issues involved in this case. So it's based upon 
his perceptions and conclusions about issues that the Court is 
not even aware from reading all of the complaints and all of 
the allegations and hearing all of the evidence is related to 
the issues in this case. So the Court is going to sustain the 
objection to his testimony based upon that offer of proof.

MR. ANGEL: Your Honor, before we sit down, before we
have to come up again, at this point we would intend to read 
those portions of the depositions now. At the conference we 
had before we went to lunch, there was an indication that only 
two of the people were current members of the Board, and I 
found out in the conference of co-counsel that all five Board 
members at that time --

THE COURT: Have you-all worked out an agreement?
MS. CARTER: I strenuously object to that. I have

seen what they are going to do, and strenuously object to what 
they are going to do.

THE COURT: I couldn't hear what she said. I was
seeing if you worked out anything. What do you propose to do?

MR. ANGEL: We have the depositions of the five board
members. We have provided those to the Defendants. The 
excerpts that we would propose to read to them, read into the 
record, at the time of the taking of the deposition, all of

Charvse C. Crawford. CSR. RPR
UNITED STATES COURT REPORTER

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OKLAHOMA CITY, OK 73102 - PH. (405) 236-3980



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(THE FOLLOWING PROCEEDINGS WERE HAD IN OPEN COURT, WITH ALL 
PARTIES AND COUNSEL PRESENT, AND OUTSIDE THE PRESENCE AND 
HEARING OF THE JURY.)

THE COURT: Be seated, please. There are a couple
matters before we begin. First of all, I have reviewed the 
biography of Frank Morris, Dr. Morris, who is listed as a 
Plaintiff's witness, as an expert witness, and I have reviewed 
his report. Mr. Angel, would you briefly tell me how his 
report -- and I assume his proposed testimony relates to the 
issues in this case?

MR. ANGEL: Since Judy was going to put him on and
prepare him, could I ask Ms. Browne to present that?

THE COURT: Yes.
MS. BROWNE: Dr. Morris is basically going to testify

to the recruitment efforts that Dr. Little directed
Dr. Price-Curtis to carry out, and basically his testimony is 
that he went to schools at times of the year in which no 
recruiter would go to a school and be successful. That the 
management style that they used for him, not allowing him any 
discretion with regard to timing and setting up of 
appointments, did not allow him to be successful in those 
efforts. And it would be against any type of expertise in the 
area of recruiting to send somebody out to do those kinds of 
things and it was poor management.

And that basically you have to allow someone, who is

Charyse C. Crawford, CSR. RPR
UNITED STATES COURT REPORTER

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OKLAHOMA CITY. OK 73102 - PH. (405) 236-3980



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1 !rsci!"uiting, sorns type of discretion in ordsr to be successful.
2 And that' s the only way they can be accountable for their
3 efforts, to allow the discretion to develop their own
4 recruitment plan.
5 THE COURT: That's the way I read it. How does poor
6 management and the reason for his unsuccessful recruiting
7 efforts -- how does that deal with any issues in this lawsuit?
8 MS. BROWNE: One of the things that was on his plan
9 for improvement was continually trying to get him to do
10 I follow-ups. There is a letter that is actually on the exhibit
11 list, which was a critique of Dr. Price-Curtis's efforts in the
12 recruitment area, that was written by Vern Moore, who is the
13 head of the personnel department.
14 It's stating that his efforts were not successful and that
15 was one of the criticisms they had of him in his performance
16 area.
17 THE COURT: I understand that. What does that have to
18 do with the allegations in this lawsuit?
19 MS. BROWNE: Because beyond the Equity Committee
20 report there was a plan for improvement he was put on, and he
21 was continually getting his plan for improvement extended and
22 some of those issues that went to his performance because his
23 performance and the termination was not only the Equity
24 Committee.
25 THE COURT: Ms. Browne, if I am a poor manager and I

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m really not that competent, and you are an employee of mine,
.nd I ask you to do certain things and you fail to do it 
jecause the directions in my management are not good, and I 
:erminate you because you failed to do what I asked you to do 
Dased upon your failure to perform these duties, does that give 
rise to the lawsuit of this kind that I have terminated you 
Dased upon your race?

MS. BROWNE: If your motivations, Your Honor, first of
all, that you are retaliating against me --

THE COURT: Well --
MS. BROWNE: -- for something else that I did, then

it's possible that what you were doing was directing me to do 
things so that I would fail so that you would set up a record.

THE COURT: I don't see anything in his report that
goes to the motivations.

MS. BROWNE: The motivations can be inferred. This is
not something —  he would not know what was in the mind of 
Sylvia Little at that time. However, it can be inferred from 
what the directions were that he -- that they were setting him 
up to fail in this particular area, and that's an inference and 
inferences are permissible.

THE COURT: Is there any other direct proof of that,
any other evidence of that other than that inference?

MS. BROWNE: Of which? For the recruitment,
specifically?

Charyse C. Crawford. CSR, RPR
UNITED STATES COURT REPORTER

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THE COURT: That he was being set up to fail based
pon his race.

MS. BROWNE: Yes, speech and race. Based upon his
peech definitely. Not only in the recruitment area, the 
ffirmative action plan which he was -- which he was directed 
o do. There was an affirmative action plan which he had done 
>ne year perfectly. It was approved by the board and 
)r. Steller put on his evaluation that he did a good 
iffirmative action plan.

The next year, as things started to heat up with the Equity 
Committee, he does an affirmative action plan and they do small 
;dits, and every time it's a moving target, the assignment he 
Is supposed to have. The first draft he does a one-year plan. 
\nd a few months later, as he keeps working on this trying to 
get information, Dr. Little sends it back and forth when she 
does new edits.

She sent it out to get input with unreasonable time 
limits. What she does a few months later is say, "Oh, no, I 
wanted a one-year and a three-year plan." He starts working on 
a one-year and three-year plan and a few months later he comes 
back with the report, and they say, "No, we wanted a two-year 
plan." It was a moving target.

THE COURT: Isn't that evidence the jury is going to
hear and make a determination without a summary conclusion of 
the same evidence by this witness?

Charvse C. Crawford. CSR. RPR
UNITED STATES COURT REPORTER

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MS. BROWNE: Well, what Dr. Morris adds to it is the
facts that he is someone who is in the recruitment area who was 
actually a dean of a department of education where 
Dr. Price-Curtis would have been recruiting. He also did 
recruiting himself, so he knows that if you send 
Dr. Price-Curtis, you direct him to go in July to a campus to 
recruit students, there are no students on campus in July.
That is something he can testify to that will give credibility 
to what happened to Dr. Price-Curtis.

THE COURT: Isn't that what Dr. Price-Curtis is going
to testify to?

MS. BROWNE: He will testify to that also.
THE COURT: Is this witness used to bolster his

testimony then?
MS. BROWNE: Dr. Morris has actual experience in this

area and adds to it -- adds to what happened to Dr.
Price-Curtis.

THE COURT: How does that add to it? Dr. Price-Curtis
went to the campus and there were no students in the summer.
How does it add to it, other than just bolster testimony?

MS. BROWNE: Explains recruitment from the other
side. Explains the person that was actually there who would 
have met with Dr. Price-Curtis, who would have said, "No, I 
can't meet with you. You only gave me a day's notice."

THE COURT: My other problem with Dr. Morris's

Charyse C. Crawford. CSR. RPR
UNITED STATES COURT REPORTER

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OKLAHOMA CITY, OK 73102- PH. (405) 236-3980



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1 testimony is the very beginning sentence, which I think is what
2 I interpret his entire attempt to be, is that he has examined a
3 series of memorandums from Dr. Price-Curtis's different
4 superiors from a certain date, and from this examination he has
5 drawn the following conclusion.
6 It appears to me what you are asking him to do is look at
7 the evidence that we are presenting to this jury to make a
8 decision on, and this person is just going to summarize that
9 evidence and make his own conclusions, and I am not sure that
10 that is proper expert testimony and would aid the jury in its
11 determination.
12 It appears to me it's more of just a summary witness who is
13 going to put his own personal interpretation on that evidence.
14 m s . BROWNE: I think that he is someone that brings to
15 the table the experience of someone who recruited and also
16 someone who has students who have been recruited. What he does
17 is he can talk about the fact that this was not reasonable.
18 Everything that they were directing him to do was not
19 reasonable. There was no way he could have been successful in
20 efforts if you send him to a campus and students are not there.
21 If you tell him to go travel the next day by bus from
22 Oklahoma to Arkansas and don't give him the ability to do his
23 own j ob.
24 THE COURT: Ms. Carter?
25 MS. CARTER: Your Honor, I think I am understanding

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Ms. Browne to say that their expert is going to come in and 
testify that Dr. Little's requirements that Dr. Price-Curtis do 
recruitment was retaliatory, and I guess she was retaliating 
against him for exercising protected rights.

I would point out to the Court that as a matter of fact,
Dr. Little advised Dr. Price-Curtis to start recruiting in June 
of '89. From what I remember of the facts, his first protected 
activity did not occur until September of '89, so I hardly 
think that he can speak on the issue of retaliation since he 
was required to recruit before any such activity occurred.

Secondly, I don't believe this evidence -- his testimony at 
all to be relevant. I think that we can all agree there is 
more than one way to do recruitment, and he is going to come 
and talk about the way he does recruitment. That doesn't mean 
that's the way Dr. Price-Curtis did it.

Thirdly, the fact that Dr. Price-Curtis was not successful 
at recruiting has less to do with what Dr. Little told him to 
do than his own lack of energy and lack of ability to make it 
happen. So I don't think the testimony is at all relevant to 
anything that is going on in this lawsuit.

I did at some point get the understanding that he was going 
to testify to an ultimate issue of whether or not it was 
retaliatory, which I definitely object, because I don't think 
that's within the purview of the kind of testimony he should be 
giving.

Charvse C. Crawford. CSR. RPR
UNITED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUIUDING
OKLAHOMA CITY, OK 73102 - PH. (4051 238-3880



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1 THE COURT: Mr. Nelson?
2 MR. NELSON: Your Honor, we do not believe, number
3 one, it's the subject of expert testimony with regard to
4 recruiting practices. It is not a specialized knowledge, so no
5 expert will be able to assist the trier of fact in making a
6 determination. The witnesses already listed in this case will
7 cover that, and they will disagree about those recruiting
8 practices.
9 Secondly, and most importantly, the real conclusion they
10 want this expert: to come down with is that all of this must
11 have been retaliatory and discrimination. That, Your Honor, is
12 impermissible expert testimony and we would object in these
13 instances.
14 THE COURT: Ms. Browne?
1 5 MS. BROWNE: Two points. First of all, Ms. Carter
16 talked about the fact this was before his protected activity.
17 I will put this in the context of what the Equity Committee was
18 doing also. Dr. Little directed Dr. Price-Curtis to go out in
19 June, I think Ms. Carter said, and in June of '89 he was taken
20 out, and that's when the Equity Committee was doing most of its
21 work. That's when the Carol Gipson Equity Workshop was
22 cancelled.
23 He was sent out in July just about when that workshop was
24 about to happen. He was sent out that summer, so he could not
25 help the Equity Committee.

Charvse C. Crawford. CSR. R PR
UNITED STATES COURT REPORTER

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Secondly, all with regard to the specialized knowledge, 
there is specialized knowledge in the area of recruitment. You 
have to know the time of the year. You have to have contacts. 
That’s an important thing when you are recruiting on campuses. 
You have to go on days they have recruitment days. You can’t 
show up at anytime.

This is something Dr. Morris can offer. He also served on 
the board of historically black colleges, which is where Dr. 
Price-Curtis recruited, historically black colleges. He knows 
the system. He knows how important contacts are and how you 
put together a successful recruitment plan.

The jury should be able to infer from that testimony 
i without any conclusions about whether or not this was
. definitely retaliation. They should be able to have that
j testimony to be able to infer that there was retaliation.
5 THE COURT: Well, the Court in reviewing the report
7 and in using the standard, and I would say after hearing other 
3 evidence, may change its mind and allow Dr. Morris to testify,
9 if there is certain evidence that the Court feels that his 
3 expertise would aid the jury.
1 But at this point, from what I understand from his report,
2 the area that he is going to testify on regarding the
3 recruitment practices and the recruitment directives, and
4 Dr. Price-Curtis’s efforts in that, I am having trouble.
5 That’s why I say, if the evidence lends itself at some point, I

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may change my mind on that, but from what I understand the case 
is about, I have trouble fully appreciating the relevancy of 
his testimony.

Secondly, it would appear that he does not -- that his 
testimony would not be particularly helpful to the triers of 
fact. I think the recruitment efforts and the success of 
those, or unsuccessful recruitment efforts and the types of 
recruitment, those are all going to be matters which I assume 
the Defendants and Dr. Price-Curtis are all going to testify 
about, why they were successful or unsuccessful.

So I have some concern that then to allow an expert to come 
in and merely look at the evidence that the jury is all going 
to have and give his conclusory opinions as to that evidence. 
And I just don't think that that is the role of an expert in 
this particular case and that it would be helpful and would 
appear to be -- the testimony would appear to be to put his 
spin on the evidence to bolster the Plaintiff's view, and I do 
not think at this point that it would assist the triers of fact 
because all of these issues are going to be for the jury 
members to decide. And all of the same disputes over whether 
this was some method to discriminate or to retaliate in setting 
up Dr. Price-Curtis to fail and those are all issues of fact 
which the jury can draw the proper inferences if they are 
there.

And so from what I have in front of me and what has been

Charvse C. Crawford. CSR. RPR
UNITED STATES COURT REPORTER

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1 represented as to what Dr. Morris is going to testify, it would
2 be my intent to rule that his testimony would not be helpful to
3 the triers of fact. There is nothing particularly beyond the
4 common knowledge of any of these jurors, and to allow him to
5 simply summarize evidence and put his interpretation on the
6 evidence that the jury is all going to have in front of the
7 jury would be improper and prejudicial.
8 The Court wanted to discuss this issue early because I
9 don't know whether Dr. Morris is already here.
10 MS. BROWNE: Yes, he is.
11 THE COURT: If he was not here, I wanted the parties
12 to be aware of the Court's ruling and perhaps save some
13 expense. I say if there is certain evidence that develops
14 throughout the Plaintiff's case that the Court feels that
15 Dr. Morris could be of some assistance to the jury with his
16 expertise, I have read his curriculum vitae and he is a
17 distinguished individual.
18 The Court is not questioning his distinguished record and
19 distinguished biography in any way, but I feel like what he is
20 being called for as an expert, number one, I question the
21 relevance of it. And number two, I think it would not aid the
22 jury. And number three, it could cause some confusion. And
23 number four, it would be improper and prejudicial to allow him
24 to simply summarize evidence that they are going to have and
25 make their interpretation rather than just him interpreting for

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UNfTED STATES COURT REPORTER

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:he jury his interpretation of the various memos and actions 
md practices of Dr. Price-Curtis.

The other issue --
MR. ANGEL: Could I have just a moment on that issue?

rhere is no further argument I need to make a record on.
MS. BROWNE: What we would do is he is here already.

When we get to his testimony, we would call him and either make 
an offer of proof or otherwise and have the Court directly rule 
on him at that point.

THE COURT: All right. The other issue that the Court
is having some difficulty with and based upon the 
representations of Counsel and the discussions at the end of 
the day yesterday regarding the Plaintiff's claims, I would 
just say in viewing all of the Plaintiff's claims the Court is 
having some difficulty with the Plaintiff's Section 1981 claim 
from what I understand the allegations are, but it is perhaps a 
little early to make any determination on that claim until I 
hear the evidence.

But from what I understand the Plaintiff's 1981 claim is, I 
would just simply say that it would appear to the Court that it 
would be properly brought under 1981 if the actions being 
complained of had all been after the 1991 changes. But from 
what the Court understands, the Plaintiff is complaining about 
under his 1981 claim, the Court is having some difficulty 
seeing how that fits into what the Court understands the law to

Charvse C. Crawford, CSR. RPR
UNITED STATES COURT REPORTER

5012 UNITED STATES COUHTHOUSE BUILDING
OKLAHOMA CITY, OK 73102 ■ PH. (405) 206-3980



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-- we have made a record on the request for judicial notice and 
we can certainly discuss that further, table it until we can 
talk further.

THE COURT: We will do that later.
MR. ANGEL: We were up to the expert again. We would

like to put on an offer of proof by question and answer, so we 
don't have summary of testimony, but something fairly specific, 
so the Court can be fully apprised of the exact nature of his 
testimony rather than handling it just by summary.

THE COURT: The Court is not hearing his entire
testimony and then making a decision. You can make a summary 
or have him summarize.

MR. ANGEL: Over the lunch break I will talk with
counsel. I understand the Court wants to streamline it and not 
take up undue time, and we can certainly do that. But 
particularly with the area of the evaluation on the question of 
recruiting, whether recruiting at that particular time was 
appropriate in that area. That's something I would have him 
look at. I think we can summarize that.

There is one additional thing that I would ask the Court 
how to -- I guess it is going to affect somewhat what we are 
going to do and this is why I asked to speak to the Court. If 
you remember yesterday I had sought to ask Dr. Price-Curtis 
about remarks made in depositions of the board members. We 
have their depositions. We could as party opponents, we could

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UNITED STATES COURT REPORTER

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MS. CARTER: Frank Kellert and Leo Hise.
MR. ANGEL: We can get the information in from those

two.
THE COURT: Why don't you work together over the lunch

hour to determine how much your designating and what you are 
designating and the Court can view that.

MR. ANGEL: Okay.
MR. NELSON: Do we have additional witnesses? I know

we have got Ms. Carter.
MS. CARTER: I have witnesses sitting, waiting now.
MR. ANGEL: I am going to talk to Counsel. This

helped. The Court has ruled with respect to the depositions.
I think this will help.

THE COURT: And we are not -- on Dr. Morris, I believe
it is. Either he or Counsel can make an offer of proof through 
a summary fashion, but we are not going -- the Court isn't 
going to listen to his entire testimony and make a decision. I 
think the offer of proof needs to be in some sort of summary 
fashion as to what you would call him for.

MR. ANGEL: Okay, thank you, Your Honor.
THE COURT: The Court will be in recess. All rise.

(A RECESS WAS HAD, AFTER WHICH THE FOLLOWING PROCEEDINGS 
WERE HAD IN OPEN COURT, WITH ALL PARTIES AND COUNSEL PRESENT, 
AND OUTSIDE THE PRESENCE AND HEARING OF THE JURY.)

THE COURT: Be seated, please. Mr. Angel, do you have

Charvse C. Crawford. CSR. RPR
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other witnesses?
MR. ANGEL:

take care of the Dr.
THE COURT:

We have some other witnesses. We could 
Morris issue right now if we could.
How long would you anticipate that

taking?
MR. ANGEL: Maybe five minutes.
THE COURT: Okay, let's do that now.
MR. ANGEL: Are we on the record? I can go ahead and

streamline this thing before he gets in here. The Court 
reviewed his resume. May I ask that his resume be introduced?

THE COURT: It will be made a part of the record.
MR. ANGEL: Yes.
THE COURT: The resume and summary or just the

resume? Although, the Court has indicated in its initial 
ruling based on the summary, maybe we ought to have the summary 
in there as well. The resume and summary will be made part of 
the record.

(DR. FRANK MORRIS TAKES STAND.)
Q. (BY MR. ANGEL) What I would like to do is to talk about 
you. What I would like to do is explain in a summary fashion, 
first of all, the nature of recruiting, why that is a science 
and its relationship to what you know about 
Dr. Price-Curtis's case?
A. Okay, let me begin. I think it's probably understandable, 
but it's incorrect to not believe that over the years we

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laven't learned an awful lot about recruitment, especially 
\frican American professionals and African American students, 
especially at HBCUs. They are fundamental tenants of this 
experience and science which we have learned. I can quote a 
lot of learned journals, Harvard Administrator Journal,
Black Issues and Higher Education, a number of things that 
can re-enforce various aspects of what I am about to say.

One of the things about the recruitments especially 
involving HBCUs to realize you must understand the culture of 
historically black colleges and universities. It differs. 
Various aspects of colleges differs from the predominantly 
black institutions. Successful recruitment really involves 
this culture and working with it.

Let me give you an example of what kinds of things in 
talking about in this culture. One of the things that happens 
is often in historically black colleges and universities, they 
felt that they get requests for minority recruiting, but they 
are not serious requests, so they have sort of developed little 
tests that sort of re-enforce or separate what they call the 
wheat from the chaff, and some of these tests are tests to see 
whether the institutions or the individuals are serious.

For instance, one of the tests to see whether the 
institutions are consistent over time is that they don't show 
up one time, they will show up other times and consistently 
come, even recognizing that relationships take time to

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levelop. Another thing that is part of this kind of test is to 
realize that they are personal, they are often personal 
contacts that are very, very important and very, very vital.
And in addition to the personal contacts, many institutions 
//ill be concerned about institutional contacts.

For instance, some of the most successful type 
institutional mechanisms involve the development of 
relationships between the institutions over time. For 
instance, at an HBCU, if a professor or sometimes a dean or 
others refers a student to an institution, they are expecting 
that student would be accepted. Basically, no questions asked, 
and only if they find over time that students are not 
successful that they would be resistant. Other kinds of tests 
often involve whether the institution appreciates the alumni of 
the HBCU, and they realize that institutions that often do will 
sometimes involve alumni, alumni teachers, et cetera, who are 
involved in the recruitment. So there are a number of these 
kinds of things that are involved.

Also many times they will consider respect for 
institutions, when institutions' rules or standards are 
respected. For instance, they often will have a day, a 
recruitment day, and they will expect external institutions to 
recruit on that day. Sometimes this is a fund raiser. This is 
tied in with fund raisers.

Institutions who come are expected to provide booths or to

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buy booths or buy space, et cetera. Those and other kinds of 
things are the difference between those who are serious 
recruiters and those who aren't. Sometimes the institutions 
will pay for students or potential students to come to wherever 
the recruiters are coming from.

There are little signs that like this and many other things 
I can talk about competitive packages and brochures that we 
have learned over time are really consistently effective of 
minorities, teachers, and students at historically black 
college institutions.
Q. If you could tell the Court, what effect in your opinion 
would recruiting in July have on that culture?
A. Well, one of the things those of us who are familiar are 
aware that historically black college institutions -- they are 
really different than the others. Often, they were smaller. 
Often, they are institutions that are sometimes located not in 
the urban areas and if they were located in an urban area, face 
tremendous competition in the summer time. So you don't find, 
many of them offering summer courses at all because if they are 
in urban areas have competition. They are often in the rural 
areas, then students are not going to be able to be there and 
support themselves in the summer.

You will find that often during the summer, people are not 
going to be there, especially critical people. Even department 
chairs, and et cetera are often on ten-month contracts and

Charyse C. Crawford, CSR. RPR
UNITED STATES COURT REPORTER

5012 UNTIED STATES COURTHOUSE BUILDING
OKLAHOMA CITY,OK 73102-PH. (405)236-3980



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imply aren't available for summer time kinds of contacts,
:ummer time kinds of recruitment, et cetera. So anyone who 
rould come during the summer time probably is not giving the 
:ind of respect or will simply not be considered serious by 
lany of the other institutions.
j. Would that have any affect potentially on future 
recruitment if they felt that coming in July was a sign of lack 
Df respect?

Well, I am sure it would vary from institution to 
institution. The fact it would be extremely difficult to 
recruit at this time, not July, but often June and often 
August, and sometimes could be the case too.

MR. ANGEL: Okay, Judge, two additional things with
respect to our offer. I would note in Defendant's Exhibit 444, 
they have proposed to introduce a document from Vern Moore, and 
I believe they are going to call Vern Moore that is highly 
critical of the effectiveness of Dr. Price-Curtis recruiting 
during this time, which is the very issue this witness will be 
able to offer opinions with regard to.

In addition, we believe that based on the deposition of 
Sylvia Little that she will express her criticism of the 
effectiveness of Dr. Price-Curtis recruiting and if they are 
going -- if that is part of the item, if it is relevant for 
them, it seems it should be appropriate to offer an expert to 
explain why particularly in the black culture, this would not

Charyse C. Crawford. CSR. RPR
UNITED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUILDING
OKLAHOMA CITY, OK 73102-PH . (405)238-3980



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be a very effective recruiting technique. That would be my 
offer of proof, his testimony, and just what I represented,
Judge.

THE COURT: And then in the other areas, the Court
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. We would have him address the issue 
whether recruiting in this fashion, in the fashion that 
occurred with Dr. Price-Curtis would have been effective with 
his expertise in the culture of the black colleges.

THE COURT: So what your offer of proof is, is for
Dr. Morris to simply testify basically what he has testified to 
here about the science of recruiting in historically black 
colleges.

MR. ANGEL: The culture and to testify as to the
recruiting in black colleges during this period of time and the 
negative affect of that recruiting in July.

THE COURT: Which is, in effect, what he has just
said.

MR. ANGEL: Right.
MR. NELSON: Your Honor, we have made a previous

record regarding this testimony. I don't think the offer of 
proof has changed, other than they reduced it by not coming to

Charvse C. Crawford, CSR, RPR
UNITED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUILDING
OKLAHOMA CITY, OK 73102 • PH. (405) 236-3980



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the conclusion that there was harassment. It is not a proper 
subject of expert testimony, Your Honor.

Dr. Price-Curtis testified about it. Yes, Dr. Little will, 
if required, will testify about it, and Dr. Moore did as well.

THE COURT: Part of my problem is to date, Mr. Angel,
it really puts me at a little disadvantage, I have heard 
nothing other than a brief statement by Dr. Price-Curtis 
regarding a trip to Arkansas which was directed by Ramona Paul,
I believe. That's the only thing I have heard in any of the 
documentation or seen in any documentation as to reasons for 
termination or anything else.

I have heard nothing else regarding recruitment as being an 
issue in this case and one of the reasons for his termination.

MR. ANGEL: First of all, I believe there was
testimony Sylvia Little was sending him out during that period 
to recruit. I remember part of the testimony was --

THE COURT: Has there been any testimony regarding
that recruitment was one of the issues in his termination? I 
have seen nothing on any of the documentation.

MR. ANGEL: I agree there was nothing on documentation
about recruitment. The recruitment comes as it was part of the 
delay in the Affirmative Action Plan which is part of the 
reason for the termination. Clearly, the recruitment issues 
was on the Plan for Improvement that he had here, and in 
addition, as in it.

Charyse C. Crawford, CSR, RPR
UNITED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUILDING
OKLAHOMA CITY, OK 73102 - PH. (405) 238-3980



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Maybe Defense Counsel can correct me. It's my 
understanding they intend to offer Sylvia Little and Vern Moore 
to criticize his efforts.

MR. NELSON: Excuse me, Your Honor, I saw a memo that
also dealt with failure to follow directive with regard to 
recruitment. If it was mentioned in the termination, it was 
failure to follow directives.

THE COURT: Out of abundance of caution, not knowing
what is going to come up on the Defendants' case and not to 
keep this witness here for a proposed rebuttal witness for some 
reason, I am going to allow Dr. Morris to give very limited 
testimony regarding the science of recruiting in historically 
black colleges.

I am not going to allow testimony as to his conclusions of 
reviewing the issues into this case and giving conclusion 
statements whether this was effective or not. But I will allow 
-- I think basically the testimony that he has just given, and 
the offer of proof about what is effective recruiting, and then 
the jury will have the opportunity to see what was done or 
wasn't done in this case, and make their own determination.

But I think that -- that I will allow Dr. Morris to testify 
as an expert in the area of what is effective recruiting, but 
not to address the particular issues and fact issues in this 
case which the jury will all have in front of them, and then 
based upon their own evaluations can make that determination.

Charyse C. Crawford. CSR. RPR
UNfTED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUILDING
OKLAHOMA CrP/, OK 73102 - PH. (405) 236-3980



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MR. ANGEL: Without reference to this case, though, as
part of the is questions of recruiting, I can ask him about the 
effectiveness of recruiting during the summer months between 
May and August?

THE COURT: Sure.
MR. ANGEL: Without regard to calling it harassment.
THE COURT: I think you need to ask Dr. Morris one

question or two, and he pretty well gave a prospective of what 
recruiting, what is effective recruiting and not effective and 
particularly in historically black colleges, it would or 
wouldn't be.

But Dr. Morris, I would caution you what I had previously 
ruled inadmissible was any conclusions, other statements 
regarding the issues and the facts, questions that are involved 
in this case as I feel that those are all matters which are 
within the ability and all facts which this jury is going to 
have to make that decision based upon all the facts.

THE WITNESS: I see, Your Honor.
THE COURT: I do think there is some permissible

information that you as an expert can provide regarding 
recruiting at historical black colleges.

THE WITNESS: Thank you, sir.
THE COURT: The rest of it again, as I told Counsel 

and may have been referred, I am not challenging any of your 
credentials on anything. You seem to be a very well-qualified

Charyse C. Crawford. CSR. RPR
UNITED STATES COUHT REPORTER

5012 UNITED STATES COURTHOUSE BUILDING
OKLAHOMA CITY, OK 73102 - PH. (405) 236-3880



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DIRECT EXAMINATION OF DR. FRANK MORRIS BY MS. BROWNE
533

erson. It was just the offer from the report appeared to be 
overing major areas which the Court did not feel required the 
pinion of an expert, but were merely summary conclusions of 
rours based upon what information you had and that's what the
ury is here to do.

lere,

iidn'

THE WITNESS: I understand, Your Honor.
THE COURT: With that, the jury is waiting outside.
MR. NELSON: Your Honor, they have another witness

Mr. John Cathey, who we have also addressed. I don't 
if they are going to call him right after Dr. Morris, 
t want to interrupt and have another long bench

I

MR. ANGEL: Can Dr. Morris be on the stand now?
THE COURT: Yes. All rise for the jury.

(THE FOLLOWING PROCEEDINGS WERE HAD IN OPEN COURT, WITH ALL 
PARTIES AND COUNSEL PRESENT, AND WITHIN THE PRESENCE AND 
HEARING OF THE JURY.)

THE COURT: Dr. Morris, if you would raise your right
hand and be sworn by the clerk, please.

DR. FRANK L. MORRIS, SR,
having been first duly sworn to tell the truth, the whole 
truth, and nothing but the truth, testified as follows: 

D I R E C T  E X A M I N A T I O N  
Q. (BY MR. ANGEL) State your name for the record.
A. My name is Frank L. Morris, Sr.

Charyse C. Crawford. CSR, RPR
UNITED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUILDING
OKLAHOMA CITY, OK 73102 • PH. (405) 238-3980



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DIRECT EXAMINATION OF DR. FRANK MORRIS BY MS. BROWNE 
Q. By whom are you employed, sir?
A. I recently retired in November as Dean of Graduate Studies 
and Research at Morgan State University which is a historically 
olack institution in Baltimore, Maryland.
Q. How long did you hold that position?
A. I held that position eight years.
Q. And just in a very summary fashion would you give us a 
little bit of history of your educational background.
A. Okay, I would be delighted to. I grew up in Boston, 
Massachusetts. I received a scholarship to Colgate University 
and got a bachelor of arts. Then I went to Syracuse University 
in another fellowship and got a master's in public 
administration.

From there, I went to Georgetown University and qualified 
for a master's in international affairs. And finally to the 
Massachusetts Institute of Technology for a Ph.D. in political 
science and economics.
Q. What year did you receive your Ph.D.?
A. In 1976.
Q. Did you indicate you had been the Dean at Morgan State from 

1 1988 until the present time?
A. Until last November, that is correct.
Q. Can you give us a little bit of your background on any 
papers or articles that you have written with respect to the 
issue of recruitment?

534

Charyse C. Crawford, CSR. RPR
UNITED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUILDING
OKLAHOMA CITY, OK 73102 - PH. (405) 236-3980



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DIRECT EXAMINATION OF DR. FRANK MORRIS BY MS. BROWNE
535

1. Yes, the New York Times on page 1 of April 21st of 1992 
quoted an article which I had given from a paper at the 1991 
Zonference of the Council of Graduate Schools. It had to do 
A/ith recruiting African American doctorates for Ph.D. and the 
kinds of barriers being placed in African Americans that are 
being shown up in numbers as inadequate, not only African 
American professionals, but in many of the other professions 
and some of the causes for that, and I really addressed that.
I have an article from the Urban League Review, winter of '93.
I was quoted in Science Magazine, November of '93 and November 
of ' 94 having to do with minority recruitment and the need for 
greater emphasis in minority recruitment, especially in the 
sciences, and numerous other articles.
Q. Are there any associations which are concerned particularly 
with recruitment of black professionals?
A. I am immediate past president of the National Council for 
Historically Black Graduate Schools. These are mostly 
institutions in the south of predominantly black institutions 
who have had graduate programs, and I have been the immediate 
past president, two terms for that.

I have also served on a council, the Council of Graduate 
Schools. I have been on the Board of Graduate Record 
Examination, their committee on minorities.

I am on the Center for Immigration Studies and other kinds 
of things like that.

Charvse C. Crawford. CSR. RPR
UNrTED STATES COURT REPORTER

5012 UNrTED STATES COURTHOUSE BUILDING
OKLAHOMA CrTY, OK 73102 - PH. (405) 236-3080



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EXAMINATION OF DR. FRANK MORRIS BY MS. BROWNE
536

MR. ANGEL: Your Honor, I would move the introduction
nf Dr. Morris's resume. It's Exhibit 299.

MR. NELSON: Your Honor, I have no objection.
MS. CARTER: No objection.
THE COURT: It will be admitted.

Q. (BY MR. ANGEL) Could you tell me with respect to recruiting 
in black colleges, are you familiar with that?
A. I am very familiar with that.
Q. How are you familiar with that?
A. We have had meetings at our Council of Graduate Schools as 
well as with the Council of Southern Graduate Schools which are 
majority institutions and Council of Graduate Schools. I 
didn't mention on the Council of Graduate Schools. I am former 
vice chair of the Council on Minorities. Minority recruitment 
has been a major concern, and so there is an awful lot that I 
could say about that.
Q. Is minority recruitment in some way different than 
recruitment of anybody else out of college?
A. Yes, it is especially if you are trying to recruit 
minorities from historically black institutions. Historically 
black institutions have sort of a culture that has developed 
that is a little bit different in some ways, and a lot 
different than majority institutions. In some ways, the 
culture is a little more formal.

For instance, in our area, as you see I also taught at

Charyse C. Crawford\ CSR. RPR
UNITED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUILDING
OKLAHOMA CITY, OK 73102 - PH. (405)238-3980



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DIRECT EXAMINATION OF DR. FRANK MORRIS BY MS. BROWNE
537

forthwestern in Maryland, as well as Morgan and Colgate, my 
Lima mater. It's funny at the majority institutions, you are 
>ften a little more informal. If you have a doctorate, it's 
.mportant you be called Doctor. You can be called -- at 
listorically black institutions, if you are a doctor, you are 
ilways Dr. Morris. The formality goes back to the culture of 
:he importance of that.

But in recruitment, this even affects recruitment. At many 
of historically black institutions, we have talked about this 
as well as had formal conferences. There are many ways that we 
have learned over time to be able to determine what are 
considered effective recruitment or true recruitment efforts 
than those that are not. Would you like for me to go into some 
of those?
Q. Yes.
A. Depending upon degrees, for instance, for effective 
recruitment one of the things that is really important is that 
the personal contacts and the continuity over time. At 
historically black institutions, some of the most important 
ways of recruiting is to know people, to know a professor or 
know a department chair. And at institutions and as a dean, I 
have gotten many of them. You see them all the time. I guess 
you see maybe it's attempts to cover affirmative action 
things. A lot of materials say that they are interested, but 
that's considered a completely different category from the

Charyse C. Crawford. CSR, RPR
UNITED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUILDING
OKLAHOMA CITY. O K73102-P H . (405)238-3880



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DIRECT EXAMINATION OF DR. FRANK MORRIS BY MS. BROWNE
538

inas of personal contact.
And these personal contacts, it's assumed if a professor or 

ean or someone makes a recommendation to a school district or 
law school, that that would be accepted, that at least that 

erson would be given a try and that person would be given a 
ry with adequate financial aid or adequate financial benefit 
intil that person fails.

In other words, if an institution makes the contacts and 
:hese contacts are developed over time, they will be 
respected. At some of the legitimate ones, an effective one 
tfill involve institutional kinds of contact where you have a 
rontact at an institution that will agree and is also expected 
-hat the rules that the institution may have for recruitment 
//ill be honored. If these rules require sometimes a 
recruitment day that that will be honored at historically black 
institutions. They are often poorer institutions than the 
majority ones, so they often have fund raising times, 
recruitment fairs, and institutions that will participate in 
those are really considered more legitimate and more effective 
and more serious than those that don't.
Q. With respect to the personal contacts, you indicated that 
sometimes takes time to develop?
A. Oh, yes, it does. Certainly at our black institutions you 
often will find that fault will have been there over time, and 
the staying power of the recruit or recruiting institution is

Charyse C. Crawford. CSR. R P R
UNITED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUILDING
OKLAHOMA CITY, OK 73102 - PH (405) 236-3980



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DIRECT EXAMINATION OF DR. FRANK MORRIS BY MS. BROWNE
5 3 9

>ften something that is considered a positive factor whether 
someone comes in, makes an appearance, and has shown over time, 
:oming back, especially coming back, to the same people and 
:hat's another thing.

You often don't know an institution until you know who is 
Important as a key recruiter for different kinds of students. 
Sometimes that person can be an honors director. Sometimes 
that person is a department chair. Sometimes that person is an 
associate dean. Sometimes that person, it varies from 
institution to institution, that are sort of involved in the 
culture of the institution. This is what we have really 
learned after years of recruitment and success and failures.
Q. From the standpoint of recruiting somebody who is just 
starting to recruit within this culture, do you have any 
opinion as to how effective they would be at the outset?
A. I think it would be difficult at the outset unless that 
person themselves had ties. That's why many times the 
institution itself recognizes there are things that can be done
to show sort of concern.

One of the things is to whether the institution who is 
doing the recruitment will utilize any of the alumni or even 
students if they had students who are alumni from that area to 
send them back because they realize that's one of the more 
effective kinds of tools along with a recruiter that gives the 
recruiter legitimacy. There are various techniques. Many of

Charvse C. Crawford. CSR. R PR
UNITED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUILDING
OKLAHOMA CITY, O K73102-P H . (405)238-3980



540
DIRECT EXAMINATION OF DR. FRANK MORRIS BY MS. BROWNE

1 these techniques involve expenditure of funds because that is
2 also an extension of the commitment.
3 Q. You mentioned something about job fairs and stuff, is there 
4 a  certain time of year that historically black colleges are
5 recruited --or graduates are recruited?
6 A. Oh, yes in every field. That time will vary because often
7 when these job fairs or recruitment fairs, many times are in
8 the fall. They are usually in the fall or spring because
9 that's when the really best students are going to be making
10 their decision. They really want to get themselves tied down.
11 Q. What about in the summer months June and July?
12 A. In the summer months, I would think most school districts
13 have already made many commitments. Some of them will make
14 commitments in the fall. Most of the competitive students are
15 already recruited by then, and the summer at historically black
16 institutions, I need to tell you a little bit about that.
17 Often the summer is the time that would be a down time for
18 historically black institutions. There are 117 historically
19 black institutions. About 40 percent are small institutions,
20 usually what we called the United Negro College, that are
21 smaller, church-related, many of those are in the south.
22 Now, many of these institutions produce great teachers. In
23 the summer, no one is going to be on the campus for a couple
24 reasons. Of the 117 historically black institutions, we differ
25 in that almost 85 percent of our students have financial aid.

Charvse C. Crawford, CSR. R PR
UNITED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUILDING
OKLAHOMA CITY, OK 73102 - PH. (405) 236-3980



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DIRECT EXAMINATION OF DR. FRANK MORRIS BY MS. BROWNE 
In some of majority institutions that number will drop down to 
3 5 percent for public, to a higher rate at Harvard of five 
percent. That's millions of dollars. It is a little bit 
different.

Because of the fact that almost all students have to work, 
they have to work in the summer. In your financial package 
with 85 percent on financial aid, a certain amount of money you 
have to raise yourself and work yourself. So these students 
are going to be working and the faculty is gone too because the 
institutions find they don't have to pay the faculty for not 
having them around in the summer.

Even department chairs have ten-month contracts instead of 
the regular contract. If you are approached in the summer, you 
will find even the larger HBCUs who are part -- I am sorry -- 
historically black colleges and universities, the larger ones 
who are part of our Council often in the summer will not have 
summer school programs because if you are located in a large 
city, Texas Southern would be in Houston or Fayetteville, 
Arkansas, you are in competition with other institutions and 
the summer programs must be self-sufficient, and you really 
want your faculty to get research done during the summer.

You don't have key people who are around in the summer at 
HBCUs. They are not going to be around to a much greater 
institution, to our majority institutions.
Q. You mentioned previously in respect to how the recruiting

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Charvse C. Crawford. CSR. RPR
UNRED STATES COURT REPORTER

5012 UNrTED STATES COURTHOUSE BUILDING
OKLAHOMA CITY, 0 K  73102-P H . (405)238-3880



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DIRECT EXAMINATION OF DR. FRANK MORRIS BY MS. BROWNE
542

.nstitution would be viewed. Do you have any experience or 
:ould you express any opinion with respect to how an 
.nstitution recruiting in June or July would be viewed in this 
environment in the small black college environment? 
i. I think the smaller the black college, the less chances of 
success. Even the larger ones -- I won't say that. I will 
simply say any of them. It would be extremely difficult to 
express anything in the summer time other than trying to make 
contacts that would go for the fall. You would have lost the 
previous class because you would have missed the prior earlier 
year, and you are too early for the next class.

The students are not there. They are home working and 
faculty members are not going to be there, and it would make it 
appear that you are fairly naive. You don't know what you are 
doing, if you are recruiting in the summer time for not knowing 
this.
Q. And is there with respect to that, is there any method for 
having flexibility of setting up time for appointments and 
having lead times?
A. Oh, if you are trying to recruit in the summer time, the 
HBCU, you better have a great deal of flexibility -- I won't 
say divine intervention -- you will need a lot of flexibility. 
It's absolutely the wrong time. You are going to run into all 
kinds of barriers, all kinds. Difficulties even if you try to 
call early, you are not going to be very, very successful.

Charyse C. Crawford, CSR, RPR
UNITED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUILDING
OKLAHOMA CITY, O K73102-P H . (405)236-3980



543
DIRECT EXAMINATION OF DR. FRANK MORRIS BY MS. BROWNE

1 Q. What about --
2 A. Let me say one other thing. If you do reach anybody, most
3 likely they would urge you and maybe somebody who is twelve
4 months, career office who may be there, if they would urge you
5 to consider coming in the fall or coming in to career days.
6 Q. What about having the recruiting organization, what kind of
7 resources are they going to have to have to effectively, if you
8 know when I say resources, to demonstrate to the colleges?
9 A. We have learned a lot about that and it often depends, of
10 course, on whom you are trying to recruit. Teachers are a
11 little different than engineers, et cetera. There are a number
12 of things you need to know. If you are recruiting out of
13 state, you need to be sure you have things to sell your
14 community about, to sell an external community.
15 If it's a hard sell, in other words, if the student doesn't
16 know your institution or the people with your institution, you
17 need to have a lot of really good brochures, professionally
18 done brochures that tell about the institution, tell about why
19 it' s important for you to want to come not only to that
20 institution, but to that community.
21 If you have other resources for instance, some of the best
22 resources are having students who have been at that university
23 that can compensate. It's better than some of these other
24 kinds of factors, but you just really need to be able to be
25 available when students are there, be available more

Charyse C. Crawford. CSR. RPR
UNrTED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUILDING
OKLAHOMA CITY, OK 73102 - PH. (405) 238-3980



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DIRECT EXAMINATION OF DR. FRANK MORRIS BY MS. BROWNE
544

.mportantly when the key facility person is available to talk 
:o you, faculty personnel. It can be a dean or associate dean, 
Dut be flexible because with the culture of the institutions,
Lt is considered not only arrogant, but considered -- how shall 
fje say -- indicates you are not serious if you are not willing 
to take account of the institution's priorities, concerns, and

Q. And from your experience, if you are identified as being 
not serious about that recruiting, can that affect you in 
subsequent recruiting efforts?
A. I would think it would have a very negative effect. You 
may not be able to notice at first. Phone calls don't get 
returned at the same time. And many of our institutions are in 
the south, and there is a wonderful southern hospitality that 
will receive you that won't really move on those kinds of 
priorities. You won't understand why you don't get more 
students or if you don't get serious requests from students or 
you don't understand why your mail might not be followed up as 
quickly as it is in other places.

I am not saying it would be very overt, but you would -- 
you would not be as successful and it might take you a year or 
two to understand why until you have changed your modus 
operandi.
Q. Do you have an opinion if a recruiting organization made 
an attempt to recruit on a specific date, at specific time, the

Charyse C. Crawford, CSR. RPR
UNRED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUILDING
OKLAHOMA CITY, OK 73102 - PH. (405) 238-3880



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first time it ever came to a university, in the summer months,
June and July, would that be very effective?
A. Recruiting teachers, I can't imagine one of our 
institutions where that would be effective or even trying to 
approach it in that kind of manner.

MR. ANGEL: I don't have anything further.
THE COURT: Ms. Carter, any questions?
MS. CARTER: No questions.
THE COURT: Mr. Nelson?
MR. NELSON: No questions.
THE COURT: Dr. Morris, you may be excused.
THE WITNESS: Thank you, Your Honor.

(WITNESS EXCUSED.)
THE COURT: Plaintiff call their next witness.
MR. RUNDLET: Call Marie Tarver.

MARIE TARVER
having been first duly sworn to tell the truth, the whole 
truth, and nothing but the truth, testified as follows: 

D I R E C T  E X A M I N A T I O N  
Q. (BY MR. RUNDLET) Good afternoon, ma'am, could you please 
state your name for the record?
A. Marie Robinson Tarver.
Q. Ms. Tarver, where do you live now?
A. In Oklahoma City, 2225 Northeast 17th.
Q. How long have you lived in Oklahoma City?

545
DIRECT EXAMINATION OF MARIE TARVER BY MR. RUNDLET

Charyse C. Crawford, CSR, RPR
UNITED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUILDING
OKLAHOMA CITY. OK 73102 • PH. (405) 230-3980



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RECROSS-EXAMINATION OF WALTER LONG BY MR. NELSON
232

that is going to have some impact.
MR. NELSON: We also object to Mr. Lazalier taking the

stand. He was a previous supervisor at Oscar Rose several 
years before the incidents that are the subject of this case.
If we are going to try cases based upon job performance, we are 
going to bring supervisors over twenty years say he did a good 
job, I don't think it's relevant and we are going to object to 
all of this at this time.

THE COURT: Who is Mr. Lazalier? Does he have any
involvement with this case, Ms. Browne?

MS. BROWNE: He was Dr. Price-Curtis's supervisor when
Dr. Price-Curtis taught psychology classes at Rose State and is 
not related to Oklahoma City Public Schools, but as a previous 
employer who is familiar with Dr. Price-Curtis's work.

THE COURT: Is he familiar with any of the issues
involved in this case?

MS. BROWNE: No, he is not.
THE COURT: What is the relevance of his testimony?
MS. BROWNE: The relevance is he worked with

Dr. Price-Curtis and he knows his competence level. He knows 
he is professional.

2 MR. ANGEL
3 THE COURT
1 MR. ANGEL
5 THE COURT

With respect to -- 
I like to hear from one Counsel. 
I am sorry.
Ms. Browne, go ahead.

Charvse C. Crawford. CSR, RPR
UNrTED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUILDING
OKLAHOMA CITY, OK 73102 * PH. (405) 238-3980



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MS. BROWNE: That was it.
THE COURT: You mean they counseled you to quit

talking?
MS. BROWNE: They didn't convince me.
MR. ANGEL: If we couldn't convince her, we knew we

couldn't convince you.
THE COURT: Ms. Carter, you have not been heard on Mr.

Lazalier. Any comments on his testimony?
MS. CARTER: We have, Your Honor, I agree with Mr.

Nelson. Mr. Lazalier's testimony is irrelevant. He supervised 
him before he went to Oklahoma City Public Schools. I am not 
aware he has any knowledge that would have occurred giving rise 
to this lawsuit, so I would tend to object to his testimony 
also.

THE COURT: Well, I guess we can have an offer of
proof when he is prepared to testify, but just based upon the 
representations, I am not sure of the relevancy of his 
testimony, Ms. Browne. Unless there is something brought out 
in cross-examination or in the Defendant's case that he could 
be used as a rebuttal witness, but as far as he was a good 
employee at Rose State, I don't think is an issue in this case.

MS. BROWNE: Okay.
THE COURT: Unless there is something that he can

offer to this case, other than just to say Dr. Price-Curtis was 
a good employee at Rose State, I don't think that is an issue

Charyse C. Crawford, CSR, RPR
UNITED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUILDING
OKLAHOMA CITY, OK 73102 • PH. (405) 238-3980



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RECROSS-EXAMINATION OF WALTER LONG BY MR. NELSON 
that is involved in this case and has any relevance to this 
case any more than any other employer or Dr. Price-Curtis's 
present or past really wouldn't have any relevance unless it's 
something to do with some rebuttal testimony that would need to 
be brought out by a former employer. Those facts, I don't 
think, are relevant. Anything further?

MR. NELSON: Nothing from the individual Defendants,
Your Honor.

MS. CARTER: Nothing from the Board, Your Honor.
THE COURT: I would only comment on one other -- just

kind of a brief comment. We have gotten a little lax and I 
have let you because of the number of books and volumes of 
exhibits and so forth, but we do need to request permission to 
approach, and we do not need to chat with the witnesses while 
we are finding the exhibits and assisting them in that 
process.

Other than that, the Court will be in recess until 9:15
a. m.

(THE COURT WAS IN RECESS FOR THE EVENING.)

Charyse C. Crawford, CSR, RPR
UNITED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUILDING
OKLAHOMA CITY, OK 73102 - PH. (405) 236-3980





312
DIRECT EXAMINATION OF DR. PRICE-CURTIS BY MR. ANGEL

1 || MR. ANGEL: Yes, the supervisor, Mr. Lazalier.
2 || MS. CARTER: I would object to Mr. Lazalier's
3 testimony as being irrelevant. I don't have a problem with the
4 || offer of proof.
5 II THE COURT: Mr. Nelson?
6 MR. NELSON: Same, Your Honor.
7 || MR. ANGEL: Why don't you make an offer of proof.
8|| MR. RUNDLET: We want to call Dr. Jim Lazalier so that
9 || he can testify regarding the supervision he had over
10 Dr. Price-Curtis and findings of competence and talking about
11 whether he had any willful neglect of duty while he was
12 supervising Dr. Price-Curtis, and he was a team player and able
13 to get long with others. He conducted evaluations of
14 || Dr. Price-Curtis for three years.
1 5 H THE COURT: What's the relevance, Mr. Rundlet, of his
16 || testimony in this case, the issues involved in this case?
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MR. RUNDLET: We assert that Dr. Price-Curtis is a
professional who has a history of acting competently and not 
neglecting his duties, had a good working relationship with 
people, also in the educational area. And it's basically we 
want to show that he is a diligent, hard-working employee and 
and hadn't had previous problems as alleged here.

THE COURT: Does this witness have any knowledge of
any of the issues involved in this case? Other than hearsay, 
does he have any direct information or knowledge regarding the

Charyse C. Crawford. CSR. RPR
UNITED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUILDING
OKLAHOMA CfTY, O K73102-P H . (405) 236-3980



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DIRECT EXAMINATION OF DR. PRICE-CURTIS BY MR. ANGEL
313

Eacts involved in this case?
MR. RUNDLET: No, Your Honor.
THE COURT: Or any of the issues in this case?
MR. RUNDLET: No.
THE COURT: Ms. Carter?
MS. CARTER: I maintain my objection, Your Honor. I

see no relevance.
THE COURT: Mr. Nelson?
MR. NELSON: Your Honor, I stand on the previous

objection that we made, but it's testimony -- it's like the 
issue of a driver of a particular instance trying to bring in 
testimony that they drove real well for the three years that 
they knew him has no relevance as to this particular instance. 
It's the same here, Your Honor.

THE COURT: Mr. Rundlet, anything else?
MR. RUNDLET: No.
THE COURT: Well, the Court has ruled previously, and

the Court sees no reason to change its ruling that the 
testimony of the former supervisor of the Plaintiff in this 
case would have no bearing, no relevance on any of the issues 
involved in this particular case. And the Court, based upon 
the offer of proof as to what this witness, Mr. Lazalier, would 
testify to, the Court feels is not relevant and is not going to 
allow the testimony because it has no relevance on any of the 
issues involved in this case. He has no knowledge.

Charyse C. Crawford. CSR. RPR
UNITED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUILDING
OKLAHOMA CfTY, OK 73102 - PH. (405) 238-3980



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EXAMINATION OF DR. PRICE-CURTIS BY MR. ANGEL
314

It hasn't been represented that he has any knowledge of any 
ssues or the facts involved in this case, so the Court feels 
t would be improper to allow that testimony.

What else, Mr. Angel?
MR. ANGEL: There is a couple things from Defense

Counsel.
MR. NELSON: Your Honor, we did work out the language

tfith regard to the stipulation of the grand jury. I don't know 
If the Court wanted to read that in the record and I can give 
it to you in written form.

THE COURT: How do you want to do that?
MR. ANGEL: Judge, we have reached substantially a

stipulation. There was one area that we need assistance with.
I had an objection going into detail about everything the grand 
jury was about. We have agreed to the language and the 
details. This is the part that we have agreed to. We have 
agreed that a grand jury was called to investigate allegations 
of willful refusal, failure, and neglect of duty by the 
Oklahoma City School Board of Education and Superintendent of 
Schools, Dr. Arthur Steller, and that the grand jury has 
determined that there is no intentional misconduct on the part 
of any members of the Board or the administration of the 
district. That's the part we agreed to.

MR. NELSON: There is a date. I did want the date on
the finding.

Charyse C. Crawford, CSR. RPR
UNITED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUILDING
OKLAHOMA CITY, OK 73102 - PH. (405) 238-3980



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1068

MS. BROWNE: There was no question. It was our
.nterpretation of the law that it was any court in the United 
States that you were protected under that section 1985(2) 
really goes to the obstruction of justice just generally.

THE CLERK: This issue was not raised until yesterday
at the close of evidence when Defendants, the individual 
Defendants Counsel informed me that under their interpretation 
of the law it had to be a federal grand jury.

MR. BROWN: And in the pre-trial order, the Plaintiff 
has only pled 1985. It was not broken down prior to I think 
their trial brief they were seeking relief under 1985(2) and 
1985(3), and I apologize for not bringing that sooner. We 
always interpreted 1985(3) conspiracy. We didn't know they 
were coming up with 1985(2). We have been researching that and 
I'm sorry we didn't get it out sooner.

THE COURT: What else?
MS. BROWNE: Can I just -- I need to make a record on

the breach of contract.
THE COURT: We will do that tomorrow. We will make a

record on everything. That's why I say we won't do it to the 
jury tomorrow. We will have an opportunity to do that.

THE CLERK: The only issues I am aware of relate to
the verdict form.

MR. BROWN: I did have one other, the due process
instruction. I have got another copy of it here.

Charyse C. Crawford. CSR. RPR
UNITED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUILDING
OKLAHOMA CITY. OK 73102 - PH. (405) 238-3980



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1069

THE CLERK: I am sorry. Did you submit that?
MR. BROWN: Yes, I did yesterday. But I am sure it

could have gotten lost in the shuffle and we had asked, we just 
filed this additional short instruction requested on a due 
process claim because this issue seems to have been revised, 
Judge, and there has been evidence about the hearing whether he 
had notice, and the jury may be confused on this, and we would 
just like to point out to the jury that this is not an issue in 
the case.

THE COURT: Plaintiff has no disagreement with that?
MS. BROWNE: We object to that. We think the jury

gets the idea there was a hearing. There has been testimony on 
that in addition to Plaintiff has not been able to go into the 
details regarding that due process issue and the continuance 
and et cetera, all of that evidence. And we think it would be 
prejudicial to have that instruction put before the jury.

THE COURT: Even if the Court's ruled on it?
MS. BROWNE: Even if the Court ruled on it, it has not

been an issue before the Court now during this trial.
THE COURT: It has been raised. Certain inferences

can be drawn.
MS. BROWNE: We have no claim right now.
THE COURT: I know that the inference is out there

regarding this.
MR. BROWN: It was particularly raised when they read

Charvse C. Crawford. CSR. RPR
UNITED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUILDING
OKLAHOMA CITY, OK 73102 - PH. (405) 238-3980



1070

1 | the Board's summary deposition suggesting there was no reason
2 | or no basis for them to find.
3 I MS. CARTER: Not only that the minutes from that
4 | meeting from January 19th talk about the hearing, and they talk
5 || about the fact that a continuance wasn't granted and on and on
6 || and on, so it has been raised.
7 11 THE COURT: Well, we will put it on the record
8 || tomorrow, and I will make a decision then. I want to make sure
9 where we are, so I can go to sleep thinking about all of this
10 || tonight. So what three things did we agree on?
11 || (LAUGHTER.)
12|| THE COURT: Let's go home. We can go off the record.
13 11 (THE COURT WAS IN RECESS FOR THE EVENING.)
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Charyse C. Crawford, CSR, RPR
UNITED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUILDING
OKLAHOMA CITY, OK 73102 - PH. (405) 236-39BO



INSTRUCTION NO. i ^

DUF. PROCESS

The due process clause requires that an individual be given an 

opportunity for a hearing before he is deprived of any significant property 

interest. This issue is not before you because the court has determined that 

plaintiff was given all the*process he was due.



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JURY INSTRUCTION CONFERENCE
1271

at the beginning as I read the title, if there is no objection 
put that on the record.

The first. is the opening. There is no objection.
MR. ANGEL: Correct.
MS. CARTER: Correct.
MR. BROWN: Correct.
THE COURT: Burden of proof, no objection.
MR. ANGEL: Correct.
MR. BROWN: Correct.
THE COURT: If you find or if you decide, no

ection.
MR. ANGEL: Correct.
MS. CARTER: Correct.
MR. BROWN: Correct.
THE COURT: Consideration of the evidence, no

j ection. Evidence, no objection. Evidence, direct
indirect or circumstantial evidence, no objection. Evaluation 
of evidence and credibility of witnesses, no objection. 
Impeachment, no objection. Deposition evidence, no objection. 
Expert witness, no objection. Number of witnesses, no 
objection. Is that correct to date?

MS. BROWNE: Yes, Your Honor; that is correct.
MR. BROWN: Yes.
THE COURT: The first objection proposed is on due

process the Defendants have requested from what I understand

Charyse C. Crawford, CSR. RPR
UNITED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUILDING
OKLAHOMA CITY, OK 73102 - PH. (405) 236-3980



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JURY INSTRUCTION CONFERENCE
1272

the argument to be and this is not quite like the Defendant' s 

requested instruction, but it is an instruction on due 
process.

Very briefly, Mr. Brown, if you want to tell the Court why 
you think it is necessary to give that.

MR. BROWN: Your Honor, although the Court has
previously ruled on this matter, we think it has been injected 
back into the case that the jury might be confused concerning 
the termination case for the Plaintiff.

The Court has ruled that he was given all the process that 
he was due. We think it was injected when we think the 
Defendants were reading the excerpts when the Board suggested 
there was no basis for their decision to terminate the 
Plaintiff. And then there was discussion and other testimony 
generated as a result of that, all going to the issue of 
whether or not he had a hearing, whether he was at the hearing, 
whether he was given notice of the hearing, and who voted to 
not give him a hearing or continue the hearing, so we think 
those matters bring it into place that there is a likelihood of 
confusion and we think this clears it up.

THE COURT: Ms. Carter?
MS. CARTER: Your Honor, I agree. It has been

interjected in the proceedings. I think an instruction is 
necessary to avoid confusion.

THE COURT: Ms. Browne?

Charvse C. Crawford. CSR. RPR
UNITED STATES COURT REPORTER

5012 UNITED STATES COURTHOUSE BUILDING
OKLAHOMA CITY, OK 73102 - PH. (405) 238-3980



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;n the u n i t e d s t a t e s d i s t r i c t c o u r t f o r  t h e

“WESTERN DISTRICT OF OKLAHOMA

WILLIAM PRICE-CURTIS,
Plaintiff,

v. Case No. CIV-92-2059-L

BOARD OF EDUCATION OF 
OKLAHOMA CITY PUBLIC SCHOOLS, 
ISD NO. 89 OF OKLAHOMA 
COUNTY, et al.,

Defendants.

MEMORANDUM OPINION

On October 16, 1992, plaintiff filed this action for damages 
and declaratory and injunctive relief. Plaintiff alleges a pattern 

harassment and retaliation that ultimately led to his termin­
ation. In his complaint, plaintiff sought redress pursuant to 42 
U.S.C. §§ 1981, 1983, and 1985 and Titles VI and VII of the Civil 
Rights Act of 1964, 42 U.S.C. §§ 2000d and 2000e. In addition to 
his federal claims, plaintiff asserted state law claims for breach 
of contract and violation of the public policy of the State of 
Oklahoma. Defendants are the Board of Education of Oklanoma City 
Public Schools ("Board") and three individuals who were adminis­
trative employees of the Oklahoma City Public Schools at the time 
plaintiff was terminated ("the.individual defendants") . Prior to 
trial, plaintiff voluntarily dismissed his claim pursuant to Title 
VI of the Civil Rights Act.

Plaintiff's civil rights claims and state law claims were 
^^ried to a jury beginning February 20, 1996. Plaintiff's Title VII

0013(31



At the conclusion of:laim was concurrently tried to the court.1 
3l a ® i f f ’s case in- chief, defendants moved for judgment as a 
aatter of law pursuant to Fed. R. Civ. P. 50. The court grantsd 
defendants' motions for judgment as a matter of law with respect to 
plaintiff's § 1981 claim. In addition, the court granted the
individual defendants' motion for judgment as a matter of law with 
respect to plaintiff's Title VII claim and his state law claims.
In all other respects, the motions were denied.

The Board and the individual defendants presented their cases 
in chief beginning on February 26, 1996. On March 4, 1996, the
jury returned a verdict in favor of all defendants on plaintiff's 
§ 1983 claim and § 1985 claim. In addition, the jury found in 
favor of the Board on plaintiff’s claims for breach of contract and 
-^Lation of public policy. In accordance with Fed. R. Civ. P. 
52(a), this memorandum opinion constitutes the court's findings of 
fact and conclusions of law with respect to plaintiff's Title VII

claim.
Plaintiff claims that the Board terminated him in retaliation

for his filing a charge of discrimination with the Equal Employment
Opportunity Commission ("EEOC") . To establish a prina lasis case
of unlawful retaliation, plaintiff must prove:

(1 ) protected opposition to discrimination or 
participation in a proceeding arising out of 
discrimination; (2) adverse action by the 
employer contemporaneously or subsequent to 
the employee's protected activity; and (3) a

1 Plaintiff w is not entitled to a jury tr ill of his Title VTI cUisi ss the daim  arcs* prior to the effective 
i te  of tbe Civil Rights Act of 1991.

C013&2



causal connection between 3uch activity and 
the employer's action.

Anderson v. Phillips Petroleum Co.. 861 F.2d 631, 634 (10th Cir.
1988) . Once plaintiff establishes a prima facie case, the burden 
of production shifts to defendant to articulate a legitimate, non- 
discriminatory reason for plaintiff's discharge. "Once the defen­
dant has dispelled the inference of retaliation by establishing a 
legitimate reason, 'the plaintiff may still prevail if 3he demon­
strates the articulated Reason was a mere pretext.'" 1£L. at 634 
(quoting Burrus v. United Telephone Co. of Kansas. Inc^_, 683 F.2d 
339, 343 (10th Cir. 1982)).

Based on the evidence presented at trial, the court finds that 
plaintiff established the first two elements of his prima facie 
case, but failed to prove the third element. It is undisputed that 
^^aintiff filed a complaint of discrimination with the EEOC on 
March 26, 1990. Exhibit 184. It is also undisputed that
plaintiff was discharged on January 19, 1991. What plaintiff has 
failed to demonstrate is a causal link between his protected 
activity and his discharge.

Plaintiff failed to show that his filing of an EEOC complaint 
played any part in the Board's decision to terminate him. In fact, 
each of the Board members who voted to discharge plaintiff testi­
fied that his filing of an EEOC complaint had no bearing on the 
decision to terminate plaintiff. Rather, the testimony established 
that plaintiff was discharged because he failed to adequately per­
form his job and that his performance problems dated back to 1989, 
.ong before he filed his charge of discrimination. Plaintiff

3

r. . C-
1



presented no evidence that tied his January 1991 discharge to his 
1990 EEOC filing.

Even if the court were to find that plaintiff established his 
prime facie casef the Board is still entitled to judgment in its 
favor because plaintiff failed to carry his ultimate burden of 
proof.2 Through the testimony of the individual defendants and 
Board members, defendants articulated a facially non-retaliatory 
reason for plaintiff’s discharge: his failure to perform his job.
This reason, which on its face does not violate Title VII, is 
sufficient to discharge defendants' burden. See E.Z.Q.C. v, 
Flasher Co. . 986 F.2d 1312, 1318 n.6 (10th Cir. 1992).

At this point, the burden shifted to plaintiff to prove that 
his discharge was in retaliation for filing his EEOC complaint.

plaintiff did not do. Plaintiff presented no direct evidence 
that his EEOC charge was a factor, much less a motivating or 
determinative factor, in the decision to discharge him. Indeed 
many of the Board members testified that they were not aware of 
plaintiff's EEOC complaint until the pretermination hearing. 
Plaintiff presented no evidence that defendants' explanation "was 
a 'pretext for the sort of discrimination prohibited by [Title 
VII]' —  that is, that the facially nondiscriminatory reason was 'a 
cover-up for a . . . discriminatory decision.'" Flasher Co., 986

2The coon notes that this finding conforms with the jury*! finding on ptnindfTs stale taw rctahnaocy 
discharge d a le . In his state law daim. plaintiff argued that he wan discharged not only in rrtaMarine tar 
exercising his fint and fourteenth amendment rights, bat also in retaliation (or excrdaing his statutory rights 
under Title VIL In finding for the Board, the jury necessarily (bund that plaintiffs protected activity was not

significant reason for his discharge.

4

001.904



.2d at 1317 (quoting McDonnell Douglas v. Green 411 U.S. 792, 804- 
i5 ^^973)). Title VII is not "a vehicle for reviewing the
jropriety of business decisions. Lucas v ,__Dover_CPCPi ,— S C K IS
3iv. . 857 F.2d 1397, 1404 (10th Cir. 1988). As (the Court] stated 
in Lucas. '(t]his court will not second guess business decisions
made by employers, in the absence of some evidence of impermissible 
motives.'" Faulkner v. Super Valu Stores. Inc.. 3 F.3d 1419, 1426- 
27 (10th Cir. 1993). Plaintiff presented no evidence of imper-
missible motives; thus, the Board and the individual defendants in 
their official capacity are entitled to judgment on plaintiff's 
Title VII claim. Judgment will issue accordingly.

It is so ordered this \ di day of March, 1996.

TIM LEONARD
United States District Judge



IN THE UNITED STATES DISTRICT COURT FOR

_ WESTERN DISTRICT OF OKLAHOMA
THH1 U. ^

VlAR 1 3 1996

WILLIAM PRICE-CURTIS,
Plaintiff,

v.
BOARD OF EDUCATION OF 
OKLAHOMA CITY PUBLIC SCHOOLS, 
ISD NO. 39 OF OKLAHOMA 
COUNTY, et al.,

Defendants.

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O.W. wl w’ I . U U U l X i ,  t . _  J

GY
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CiST.CFOKLA 
. .DEPUTY

Case No. CIV—92-2059—L

J U D G M E N T

Pursuant to the jury verdict issued March 4, 1996 and the-
court's Orders issued February 26, 1996 and March 12, 1996,
iudgment is hereby entered in favor of defendants and against 

^^Laintif f.
Entered this \~3̂> day of March, 1996.

United States District Judge

ENTERED ON JUDGMENT DOG"' 3 - A - ? o

001900





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JURY INSTRUCTION CONFERENCE 1294

Elements for claim of breach of contract, any objection 
other than I understand Plaintiff objects to the lost wages 
being limited to January 19 to June 30, 1991? Any objection 
other than that and then we will deal with that, Ms. Browne.
Any objection?

MR. BROWN: No, Your Honor.
THE COURT: Any objection?
MS. CARTER: No, Your Honor.
THE COURT: Ms. Browne, any objection other than

that?
MS. BROWNE: No.
THE COURT: You want to make a quick record.
MS. BROWNE: Sure. Plaintiff objects to the Court's

holding that the contract lasted only one year. Plaintiff had 
a continuing expectation to employment as the terms of the 
contract so stated. And also the Plaintiff refers to 
Plaintiff's motion in opposition to Defendant's summary 
judgment motion which states the state law which supports that 
claim.

THE COURT: Well, the Court in reviewing the Oklahoma
Constitution and Oklahoma state law finds no support for the 
Plaintiff's position that he had a continuing contractual 
right.

The Court feels that there was no evidence that he was 
either tenured or certified or in any other type position which

Charyse C. Crawford, CSR, RPR
UNITED STATES COURT REPORTER 

5012 UNnED STATES COURTHOUSE BUILDING 
OKLAHOMA CITY, OK 73102 - PH. (405) 238-3980



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INSTRUCTION CONFERENCE
1295

would create any continuing contractual obligation by the state 
and the school district to Dr. Price-Curtis. And that the 
Court feels that the Constitution of Oklahoma is pretty clear 
in its contractual relationship terminated on June 30, 1991.
And so the Court is -- feels that the instruction as given 
limiting the damages for that period of time is correct under 
Oklahoma law.

The Court understands there is no objection to the 
retaliatory discharge. No objections for reason for 
discharge. No objection to pretext. No objection to 
retaliatory defined. No objection to the effect of 
instructions as to damages. No objection to damages reasonable 
not speculative. No objection to damages must have been 
directly caused.

Civil rights and retaliatory discharge claims, damages, the 
Court has drafted the proposed instruction as a present value 
instruction. I understand the Plaintiff wants the instruction 
dealing with the probable salary increases. Is that correct, 
Ms. Browne?

MS. BROWNE: Yes.
THE COURT: And I understand your argument is that he

had received increases in the past, and therefore the Court 
should instruct on damages that there would be evidence that he 
would receive increases in the future; is that correct?

MS . BROWNE: Correct.

Charyse C. Crawford. CSR. RPR
UNITED STATES COURT REPORTER 

5012 UNITED STATES COURTHOUSE BUILDING 
OKLAHOMA CITY, OK 73102 - PH. (405) 238-3980



INSTRUCTION NO.

ELEMENTS OF A  CLAIM FOR BRF.ACH OF CONTRACT

Plaintiff is required to prove by preponderance of the evidence the 

following in order to recover on the claim for breach of contract against the

Board:

1. Formation of a contract between plaintiff and the Board,

2. The Board breached the contract; and

3. Plaintiff suffered damages as a direct result of the breach.

 ̂ It is undisputed that plaintiff and the Board entered into a contract for 

the 1990-91 school year, with an expiration date of June 30, 1991. Under 

this contract, plaintiff could only be discharged for just cause. Just cause is 

defined as lack of performance sufficient to warrant discharge. A contract is 

breached or broken when a party does not do what he promised to do in the

contract.

If you find that the Board did not have just cause to terminate plaintiff, 

you should find for plaintiff. If you find there was just cause, you should find -

for the Board.

If you find for plaintiff, you must determine the amount of damages 

suffered by plaintiff that were directly caused by the breach of contract. In

O r \ « —



Page 2ents of a Claim For Breach of Contract.

this regard, you are instructed that the damages related to this claim are 

limited to lost wages for the period January 19, 1991 to June 30, 1991.

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