Davison v. Pensacola Junior College, FL Board of Trustees Brief for Plaintiff-Appellant

    No. 95-2562

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

ALBERTA DAVISON,

Plaintiff-Appellant,

v.

THE BOARD OF TRUSTEES OF PENSACOLA JUNIOR COLLEGE, FLORIDA,

Defendant-Appellee.

On Appeal from the 
United States District Court 

for the Northern District of Florida

BRIEF FOR PLAINTIFF-APPELLANT

Elaine R. Jones 
D irector-Counsel

Theodore M. Shaw 
Norman J. Chachkin 
Charles Stephen Ralston 
NAACP Legal D efense and 

Educational Fund , Inc.
99 Hudson Street 
Suite 1600
New York, New York 10013 
(212) 219-1900



No. 95-2562

ALBERTA DAVISON,

Plaintiff-Appellant,

v.

THE BOARD OF TRUSTEES OF PENSACOLA JUNIOR COLLEGE, FLORIDA,

Defendant-Appellee.

CERTIFICATE OF INTERESTED PERSONS AND 

CORPORATE DISCLOSURE STATEMENT

Plaintiff-appellant, by her undersigned counsel, certifies that the following are the 

persons having an interest in this proceeding pursuant to Cir. R. 26.1-1.

The Board of Trustees of Pensacola Junior College, Florida 

Marjorie M. Cain, Esq.

Alice Cano, Esq.

Norman J. Chachkin, Esq.

Hon. Lacey A. Collier

Alberta Davison

Manuel G. Escobar, Jr., Esq.

Fuller, Johnson & Farrell, P.A.

Raul E. Guerra, Esq.

Elaine R. Jones, Esq.

C-l of 3



No. 95-2562

ALBERTA DAVISON,

Plaintiff-Appellant,

v.

THE BOARD OF TRUSTEES OF PENSACOLA JUNIOR COLLEGE, FLORIDA,

Defendant-Appellee.

CERTIFICATE OF INTERESTED PERSONS AND 

CORPORATE DISCLOSURE STATEMENT

William R. Mabile, III, Esq.

M. J. Menge, Esq.

John L. Miller, Esq.

D. Lloyd Monroe, Esq.

David W. Moye, Esq.

NAACP Legal Defense and Educational Fund, Inc. 

Hon. Wilbur D. Owens, Jr.

Charles Stephen Ralston, Esq.

Paula S. Sanders, Esq.

Theodore M. Shaw, Esq.

Shell, Fleming, Davis & Menge

C-2 of 3



No. 95-2562

ALBERTA DAVISON,

Plaintiff-Appellant,

v.

THE BOARD OF TRUSTEES OF PENSACOLA JUNIOR COLLEGE, FLORIDA,

Defendant-Appellee.

CERTIFICATE OF INTERESTED PERSONS AND 

CORPORATE DISCLOSURE STATEMENT

Hon. William H. Stafford, Jr.

Stafman & Saunders, P.A.

Simon Tache, Esq.

Hon. Roger Vinson

S '" -

CHARLES STEPHEN RALSTON 

COUNSEL FOR PLAINTIFF-APPELLANT

C-3 of 3



STATEMENT REGARDING ORAL ARGUMENT

This case raises important issues concerning the standards for determining whether 

the defendant-appellee Board of Trustees is liable under 42 U.S.C. § 1981 for alleged racial 

discrimination and retaliation and, therefore, whether plaintiff-appellant was denied her 

right to a trial by jury. Plaintiff-appellant is of the view that oral argument would be of 

substantial assistance to the Court in deciding this and the other issues presented by this 

case.

i



TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PARTIES AND CORPORATE DISCLOSURE

STATEMENT ......................................................................................................................... C-l

STATEMENT REGARDING ORAL A R G U M E N T .....................................................  i

TABLE OF CONTENTS ...................................................................................................... ii

TABLE OF AUTHORITIES ..............................................................................................  iv

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

STATEMENT OF ISS U E S...................................................................................................  1

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

1. Statement of the Proceedings B e lo w .................................................................. 2

2. Statement of Facts..................................................................................................... 4

A. Introduction and Background ...............................................................  4

B. Liability under 42 U.S.C. §§ 1 9 8 1 ..........................................................  5

C. The Excluded Evidence.............................................................................. 8

D. Evidence Regarding Discrimination and Retaliation Against

P la in tif f .................................................................................................  9

3. Standard of Review ............................................................................................  12

SUMMARY OF A R G U M EN T.......................................................................................... 12

ARGUMENT .......................................................................................................................  14

I. THE DISTRICT COURT ERRED IN GRANTING SUMMARY

JUDGMENT ON THE ISSUE OF WHETHER THE DEFENDANT 

BOARD OF TRUSTEES COULD BE HELD LIABLE UNDER 42 

U.S.C. § 1 9 8 1 .................................................................................................  14

II. THE DISTRICT COURT ERRED IN EXCLUDING EVIDENCE

THAT WOULD HAVE ESTABLISHED A PATTERN OF 

UNDERREPRESENTATION OF AFRICAN AMERICAN 

FACULTY MEMBERS................................................................................. 18

u



III. THE DISTRICT ERRED IN HOLDING THAT PLAINTIFF HAD

N O T  E S T A B L IS H E D  PR IM A  F A C IE  CA SES OF 

DISCRIMINATION AND RETALIATION AND THAT SHE HAD 

NOT DEMONSTRATED THAT THE REASONS GIVEN WERE

PRETEXTUAL...............................................................................................  20

CONCLUSION ....................................................................................................................  24

CERTIFICATE OF S E R V IC E .......................................................................................... 25



TABLE OF AUTHORITIES

Cases: Pages:

*Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) .....................................................  17

Brown v. City o f Fort Lauderdale, 923 F.2d 1474 (11th Cir. 1991) ..................................17

Busby v. City o f Orlando, 931 F.2d 764 (11th Cir. 1 9 9 1 )...................................................20

Church v. City o f Huntsville, 30 F.3d 1332 (11th Cir. 1994)..............................................  16

*E.E.O.C. v. Reichhoold Chemicals, Inc., 988 F.2d 1564 (11th Cir. 1993)..............  20, 21

Jett v. Dallas Independent School Dist., 7 F.3d 1241 (5th Cir. 1 9 9 3 )................................ 18

Jett v. Dallas Independent School District, 491 U.S. 701 (1989).................... 3, 5, 14, 15, 18

* Lytle v. Household Manufacturing, 494 U.S. 545 (1990)...................................................  18

*Mandel v. Doe, 888 F.2d 783 (11th Cir. 1989) .................................................................  15

Manor Healthcare Corp. v. Comelo, 929 F.2d 633 (11th Cir. 1991)..................................17

Martinez v. City o f Opa-Locka, Fla., 971 F.2d 708 (11th Cir. 1992) ................................ 18

McDonnel Douglas v. Green, 411 U.S. 792 (1973) ............................................................. 19

Monell v. New York City Department of Social Services, 436 U.S. 658 (1978)............  3, 14

Patterson v. McLean Credit Union, 491 U.S. 164 (1989) ..................................................... 5

*Pembaur v. Cincinatti, 475 U.S. 469 (1986) ....................................................................  3, 6

Simmons v. Camden County Bd. of Ed., 757 F.2d 1187 (11th Cir. 1985) ...................... 21

*St. Louis v. Praprotnik, 485 U.S. 112 (1988).....................................................  3, 15, 17, 18

Statutes: Pages:

28 U.S.C. § 1291............................................................................................................................ 1

42 U.S.C. § 1981...............................................................................................1-3, 5, 12-15, 18

42 U.S.C. § 1983 ............................................................................................................................3

42 U.S.C. § 2000e-l, et seq............................................................................................................ 2

iv



Pages:

Fla. Stat. Section 240.313(6) .................................................................................................  14

Fla . stat . § 232.246(l)(a)-(b).................................................................................................23

Fla . Stat . § 240.319(1)(1).......................................................................................................... C

Rule 803(8), F .R .E .....................................................................................................................19

Title VII of the Civil Rights Act of 1964, as am ended ...................................................  2-5

v



No. 95-2562

IN THE

UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

ALBERTA DAVISON,

Plaintiff-Appellant,

v.

THE BOARD OF TRUSTEES OF PENSACOLA JUNIOR COLLEGE, FLORIDA,

Defendant-Appellee.

On Appeal from the 

United States District Court 

for the Northern District of Florida

BRIEF FOR PLAINTIFF-APPELLANT

STATEMENT OF JURISDICTION

The jurisdiction of this Court is conferred by 28 U.S.C. § 1291, this being an appeal 

from a final judgment of the United States District Court for the Northern District of 

Florida, dismissing this action and entering judgment for the defendant-appellee.

STATEMENT OF ISSUES

1. Did the District Court err in granting summary judgment against plaintiff- 

appellant on the issue of whether she had a claim under 42 U.S.C. § 1981, and thereby 

depriving her of the right to a jury trial?



2. Did the District Court err in excluding evidence that would have shown a 

pattern and practice of discrimination against African-American faculty by the defendant- 

appellee state college?

3. Did the District Court err in holding that the defendant-appellee had not 

discriminated against the plaintiff-appellant because of her race and sex or retaliated 

against her because she filed charges of discrimination?

STATEMENT OF THE CASE

1. Statement o f the Proceedings Below

This case was commenced by the filing of a complaint in the United States District 

Court for the Northern District of Florida on December 19, 1989. Record Excerpts 

(hereinafter "RE") Tab A, p. 2. The action raised claims under Title VII of the Civil 

Rights Act of 1964, as amended, 42 U.S.C. § 2000e-l, et seq., and 42 U.S.C. § 1981. 

Plaintiff alleged that when she was terminated from her employment as a faculty member 

with the Pensacola Junior College (hereinafter "PJC"), she had been discriminated against 

because of her race and sex, including a claim that she had been the victim of sexual 

harassment, and that she had been retaliated against because she had sought to vindicate 

her rights under Title VII. She sought a declaratory judgement, equitable relief in the form 

of reinstatement, a prohibitory injunction, and back pay, and legal relief in the form of 

compensatory damages. A jury trial was sought. Second Amended Complaint; RE Tab B.

The case was originally assigned to the Hon. Roger Vinson. Upon Judge Vinson’s 

recusal, the case was first assigned to the Hon. William Stafford, but was then reassigned 

to the Hon. Lacey Collier upon his appointment to the bench. A motion to recuse Judge 

Stafford was filed, and the case was then assigned to the Hon. Wilbur D. Owens, Chief 

Judge of the Middle District of Georgia, by an order of the Hon. Gerald B. Tjoflat, Chief 

Judge of this Court. A subsequent motion to recuse Judge Owens was denied by him.

Substantial discovery was taken in the form of interrogatories, production of

2



documents, and depositions. In June, 1992, the defendant-appellee filed a motion for 

partial summary judgment on the ground that plaintiff-appellant could not prevail on her 

claim under 42 U.S.C. § 1981 because it could not be shown that any acts of discrimination 

had been the result of a policy on the part of the sole defendant, the Board of Trustees of 

PJC. The motion was accompanied by an affidavit by Dr. James Blackwell, the Associate 

Vice President for Planning and Community Programs at PJC.

Judge Collier granted the motion of the defendant based on the decision of the 

United States Supreme Court in Jett v. Dallas Independent School District, 491 U.S. 701 

(1989), that claims under § 1981 against a state defendant were to be decided pursuant to 

42 U.S.C. § 1983, which provided the sole remedy for such claims. RE Tab F. Thus, 

whether the Board of Trustees of PJC could be found liable depended on whether the 

decision not to renew plaintiffs contract, and thereby terminate her, was taken by one with 

"final policymaking authority" under Monell v. New York City Department of Social Services, 

436 U.S. 658 (1978), St. Louis v. Praprotnik, 485 U.S. 112 (1988), and Pembaur v. Cincinnati, 

475 U.S. 469 (1986). The District Court held that Dr. Blackwell had exercised hk 

discretionary authority to fire plaintiff, and this action could not be ascribed to the Board 

of Trustees. RE Tab F.

The plaintiff-appellant subsequently filed motions to reconsider this holding, pointing 

specifically to the depositions of Dr. Blackwell and other officials of PJC which, it was 

claimed, contradicted by the statements in the affidavit of Dr. Blackwell. These motions 

were denied by Judges Collier and Owens summarily with no discussion of the additional 

evidence referred to by plaintiff. RE Tabs H, J and K. As a consequence of these rulings, 

the claims under 42 U.S.C. § 1981 were eliminated and the case proceeded solely under 

Title VII, with no jury trial.

After further proceedings, a bench trial was held before Judge Owens in September 

and November of 1994. On March 27, 1995, Judge Owens issued an order finding for the 

defendant-appellee on all issues. RE Tab E. Judgement was entered on March 31, 1995,

3



(RE Tab D) and a timely notice of appeal was filed by plaintiff-appellant on April 28, 1995.

2. Statement of Facts.

A. Introduction and Background

Plaintiff-Appellant, who is African-American, was hired in September, 1984, as an 

instructor to teach English in the Secondary Education Department at Pensacola Junior 

College. She was hired on an annual contract which was renewed for the 1985-86 and 

1986-87 academic years. Pensacola Junior College is a public institution, governed by 

statues of the State of Florida and governed by the defendant Board of Trustees.

Her immediate supervisor was Dr. James E. Grant, head of the department. 

Recommendations to renew or not to renew an annual contract were made first by Dr. 

Grant, and were approved by Dr. Grant’s immediate supervisor, and by a series of other 

supervisors up to the president of PJC, who sent on the recommendation to the defendant 

Board of Trustees for its approval.

On June 30, 1986, plaintiff filed a complaint against PJC with the United States 

Equal Employment Opportunity Commission pursuant to Title VII of the Civil Rights Act 

of 1964, as amended, alleging discrimination on the basis of race and sex. The complaint 

included charges that Dr. Grant, who is also African-American, had engaged in sexual 

harassment of the plaintiff in violation of Title VII.

On November 28, 1986, plaintiff filed a second complaint with the EEOC alleging 

retaliation by PJC because she had filed the first complaint.

On March 20, 1987, Dr. James T. Blackwell, associate vice president of PJC for 

planning and community programs, and Dr. Grant’s new immediate supervisor, informed 

plaintiff that he would not be recommending her reappointment for the 1987-88 academic 

year. Dr. Blackwell gave plaintiff no reason for his decision, and, indeed, told her that he 

did not have to give her any reason. At about the same time, Dr. Blackwell informed Dr. 

John E. Wilson, another African American faculty member in the Secondary Education

4



Department that his contract would not be renewed.

Plaintiff filed a third complaint with the EEOC on May 11, 1987, again alleging 

retaliation. The EEOC found probable cause for all three of plaintiffs charges: sexual 

harassment, racial discrimination, and retaliation.1 However, PJC refused to conciliate the 

charges with the EEOC, and plaintiff therefore filed the present action, alleging violations 

of both Title VII and 42 U.S.C. § 1981, on December 19, 1989.

B. Liability under 42 U.S.C. §§ 1981

In her complaint, plaintiff-appellant alleged that she had been discriminated against 

because of her race in violation of § 1981 and requested a jury trial. Defendants moved 

for partial summary judgement with regard to the § 1981 claim on three grounds: 1) no 

claim had been stated as a result of the decision of the United States Supreme Court in 

Patterson v. McLean Credit Union, 491 U.S. 164 (1989); 2) there was no liability as to the 

sole named defendant, the Board of Trustees of Pensacola Junior College as a result of the 

decision of the Supreme Court in Jett v. Dallas Independent School District, 491 U.S. 701 

(1989); and 3) Title VII was the exclusive remedies for the alleged discrimination. R3-182. 

The district court granted summary judgment with regard to the § 1981 claim solely on the 

basis of Jett, and thus did not decide the Patterson or exclusivity issues.2

The motion for summary judgment was supported by a one-page affidavit by James 

T. Blackwell, Jr., Associate Vice President for Planning and Community Programs of PJC. 

The statement asserted that one of Mr. Blackwell’s duties "was to make recommendations 

to the Board of Trustees for the reappointment of annual contract employees." It further

'Plaintiffs Exhibits 23, 24, 25.

2Although the issue is not before this Court, it is clear that plaintiff has a claim even 

under Patterson, since the issue was whether the Junior College discriminated against her 

when it refused to enter into a new contract with her after her prior contract had expired. 

See the decision of the district court, RE Tab E, p. 31.

5



states that he "made the ultimate decision to not renew Alberta Davison’s annual contract 

and thereby terminate her employment," and that "The College’s Board of Trustees did not 

take any action to terminate Alberta Davison." Id. The other documents filed in support 

of the motion for partial summary judgment were excerpts from answers to interrogatories 

provided by the plaintiff and to plaintiffs deposition. R3-183. See also, R3-182-2-3.

In opposition to the motion, plaintiff cited Florida statutes which made it clear that 

the ultimate decision-making authority for personnel matters lay in the Board of Trustees.1 

Therefore, the decision not to renew plaintiffs contract was that of the policy making body 

of the defendant. R3-184, 185, 186.

In granting the motion for partial summary judgment, the district court relied solely 

on the statement of Dr. Blackwell. Based on this statement alone, the court held that the 

Board had not delegated its final policy making authority with regard to employment to Dr. 

Blackwell, but had only given him discretion to make individual employment decisions, 

citing Pembaur v. Cincinatti, 475 U.S. at 465, n. 12. RE Tab F, pp. 48-49. Further, the 

plaintiff had not introduced competent evidence that the Board had a policy of 

discriminating on the basis of race in employment. Id. at pp. 47-49.

Subsequently, plaintiff filed two motions to reconsider this ruling and the issue was 

again raised at trial. For the purpose of reconsideration and the decision at trial, the 

district court had before it the depositions of Dr. Blackwell and other college officials, as 

well as their testimony at trial. This testimony was in substantial conflict with the assertions 

made in Dr. Blackwell’s affidavit. Thus, Dr. Horace E. Hartsell, President of PJC, testified 

at his deposition that hiring and firing is "done by the Board of Trustees at the highest 

level." Deposition of Horace E. Hartsell, May 30, 1991, R8-246-11. With regard *

}See the decision of the district court granting partial summary judgment, RE, Tab F, 

p. 47, citing Fla . Stat . § 240.319(1)(1), providing that "[ejach board of trustees shall 

provide for the appointment, employment, and removal of personnel."

6



specifically to a decision to renew or not to renew a faculty member’s contract, Dr. Hartsell 

testified that he would receive a recommendation from the faculty member’s supervisor and 

from Dr. Charles A. Atwell, the executive vice president for academic affairs. The 

recommendation "would come to the President’s office to be agendaed for our board 

meeting, and I would review them at that point." "I would every time agendaing [sic] it for 

the board." Id. at 15-16. He was asked specifically about the recommendation not to 

renew Ms. Davison’s contract.

"Q. At the time that you received the recommendation not to renew Ms.
Davison’s contract, did you know the reasons for that recommendation?

A. I would say yes, at the time that it came to the board, that I would at that
point know the reasons for that recommendation.

Id. at 37.

Dr. Blackwell, in his deposition, gave testimony consistent with that of Dr. Hartsell, 

and inconsistent with his prior statement indicating that he had final, discretionary authority 

not to renew her contract. Thus, Dr. Grant first recommended that plaintiffs contract not 

be renewed, and that recommendation was passed on up to Dr. Atwell, Dr. Blackwell’s 

superior. Deposition of Dr. James T. Blackwell, May 30, 1991, R4-226-18.4

At trial, Dr. Blackwell’s testimony was somewhat confused, but consistent with his 

deposition testimony. Thus, he testified that Dr. Grant recommended to him that plaintiffs 

contract not be renewed, and that he, Dr. Blackwell, concurred and got "concurrence with 

my superiors." Therefore, "I did not put the contract, the name of Ms. Davison for a

4Dr. Blackwell also testified that the same procedure was followed with regard to the 

decision not to renew Dr. Wilson’s contract. Dr. Wilson was the other African-American 

faculty member whose contract was not renewed at the same time as plaintiffs.

Q. Now, who made the decision not to renew Dr. Wilson’s contract?

A. Dr. Grant made a recommendation to me. I made a recommendation to
Dr. Atwell.

Id. at p. 24.

7



renewal — to go on continuing contract on an annual basis." With regard to whether he

had the ultimate decision, he testified, . . obviously, I do not. Only the Board of

Trustees." Trial Transcript ("TT), Vol. 9, September 6, 1994, pp. 94-95. Thus, he testified,

his affidavit only meant to say that "I had the authority to not suggest or recommend to the

Board that the contract be renewed." Id. at 96.

Similarly, Dr. James Grant testified at his deposition that:

The department head is a part of the decision [to renew or not to renew an 
instructor’s contract]. The department head’s immediate supervisor is a part 
of the decision. And usually the chain of command, I would think that the 
vice president for academic affairs would be a part of the decision. And I 
would think that the president would be a part of the decision. And that it’s 
also ratified by the Board of Trustees, so I think they would be a part of the 
decision.

Deposition of Dr. James E. Grant, May 31, 1991, R6-262-68-69.

Finally, Dr. Hartsell gave testimony at trial that was not consistent with his 

deposition testimony or to the testimony of the witnesses cited above, that the Board of 

Trustees had

delegated the authority to the college as to whether they want to write a new 
contract and move it forward to the Board to be approved or not. Dr. 
Blackwell acted in his role with that delegated authority is my understanding 
and it was reported to me, 1 mentioned in the deposition.

TT, Vol. 9, pp. 29-30.

C. The Excluded Evidence.

Both pretrial and at trial, plaintiff-appellant sought to introduce a portion of a 

report produced by officials at PJC pursuant to the Florida Educational Equity Act. 

Specifically, they moved the admission of the official report of the Minority Blue Ribbon 

Task Force Committee commissioned by the President of PJC on August 31, 1988. 

Plaintiffs Exhibit 27. The purpose of the exhibit was to provide official corroboration of 

plaintiffs claim that the decision not to renew her contract was part of a pattern of 

underrepresentation of African Americans on the faculty of PJC. Thus, the Blue Ribbon 

Task Force noted that:

8



Out of 1,301 faculty and adjuncts only 141 are Black. Full time instructional 
faculty number 237 of which 25 are Black, they are few Black faculty in the 
academic programs. There are no Blacks holding significant positions of 
responsibility at the administrative level, thereby, preventing any Black 
administrators from serving on the President’s Cabinet. Black faculty 
members are not represented adequately on any of the three Pensacola 
Junior College campuses.

Plaintiffs Exhibit 27, p. 43. The exhibit also contained a statistical chart showing that 

between 1986-87 and 1987-88, when plaintiff was terminated, the number of African- 

American faculty declined by three. Plaintiffs Exhibit 27, Part VI. Finally, the Blue 

Ribbon Task Force noted problems in the college’s internal EEO office and recommended 

that:

the administration should recruit a Black professional to fill that position 
[EA/EO Director]. The candidate should be familiar with laws, policies and 
procedures concerning Affirmative Action. This recommendation is 
particularly important in view of the recent EEOC discrimination charges 
filed against PJC. (Davidson vs. PJC)

The district court refused to consider the report on the ground that it was not 

relevant to plaintiffs individual charge of discrimination. TT Vol. 9, pp. 15-17.

D. Evidence Regarding Discrimination and Retaliation Against Plaintiff

Plaintiff made three claims: 1) she was discriminated against because of her race 

when her contract was not renewed; 2) she was discriminated against because of her sex 

in that she was subjected to "quid-pro-quo" sexual harassment that culminated in her 

supervisor recommending that her contract not be renewed because she rejected his 

advances; and 3) she was subjected to retaliation for having filing charges with the Equal 

Employment Opportunity Commission complaining of discrimination when her contract was 

not renewed. See Second Amended Complaint, RE Tab B.

At trial, the district court considered all of the depositions that had been taken and 

that were filed before the trial, as well as the testimony at trial. TT, Vol. 9, p. 5.

The evidence established that plaintiff-appellant had performed well in her teaching 

position, as evidenced by the two renewals of her contract in 1985-86 and 1986-87.

9



Moreover, her ratings by her students were consistently high throughout this period; 

indeed, her evaluations were significantly above the departmental average. Id. 81-84. She 

had never been subjected to any disciplinary actions (id. 175) and her performance had at 

all times been deemed satisfactory. Id. 355-56. During this period, however, plaintiff began 

experiencing difficulties with her immediate superior, Dr. James E. Grant, the head of the 

Secondary Education Department at PJC. Plaintiff testified that he made unwanted and 

persistent sexual advances to her which she rejected. TT Vol. 12, November 7, 1994, pp. 

11-42. This testimony was corroborated by other witnesses, including Dr. John E. Wilson, 

a colleague in the department. TT Vol. 10, Sept. 7, 1994, pp. 248, 251, 254.

Plaintiff testified that she complained about Dr. Grant’s conduct to PJC officials, 

attempted to have her complaint dealt with internally in March and April of 1986, but was 

told that she should work the matter out with Dr. Grant herself. TT Vol. 12, pp. 49-52. 

Plaintiff testified that after she had rebuffed Dr. Grant and complained about his conduct, 

he began to retaliate against her in a variety of ways. Id. pp. 57-60.

Dr. Grant denied both that he ever made any advances towards plaintiff or that he 

retaliated or discriminated against her in any way. TT Vol. 10, pp. 314-28. Testimony was 

also given by the investigator from the Equal Employment Opportunity Commission who 

investigated plaintiffs complaint that another subordinate of Dr. Grant’s had told her that 

he had sexually harassed her. TT Vol. 11, Sept. 8, 1994, pp. 518-22. However, that person 

denied that she had made any such statements to the EEOC investigator. Id. pp. 536-42. 

Similarly, other women employees and former employees of PJC denied that Dr. Grant had 

sexually harassed them. Id. pp. 467-70.

With regard to the claim of discrimination based on race, plaintiff testified that from 

the time she began her employment at PJC she was treated differently from white 

employees. Incidents included the support staff and a counselor in the department being 

disrespectful. Deposition of Alberta Davison, Oct. 30, 1990, Rl-76-310-14; TT Vol. 12, pp. 

6-7, 79-80. See also Rl-76-125-34. Moreover, Dr. Grant indicated that she should accept

10



disparate treatment in order to get along at PJC. TT Vol. 12, p.8.

On June 30, 1986, the plaintiff filed a complaint against Pensacola Junior College 

with the EEOC alleging discrimination based both on sex and race. On November 28, 

1986, she filed a second complaint against PJC alleging retaliation for having filed the first 

complaint. As noted above, plaintiff had also spoken to internal Equal Opportunity 

personnel at PJC about her problems with Dr. Grant in late 1985 and early 1986.

In the spring of 1987, Dr. Grant recommended to his immediate supervisor, Dr. 

James T. Blackwell, that plaintiffs contract not be renewed for the 1987-88 academic year. 

TT Vol. 10, p. 332. On March 20, 1987, Dr. Blackwell informed plaintiff that her contract 

would not be renewed at a meeting by handing her a letter to that effect. When she asked 

him the reasons for the decision not to renew her contract, he advised plaintiff that he did 

not have to give her a reason. In fact, he provided no reason for his action until his 

deposition in the present action. TT Vol. 9, p. 97. In addition to plaintiff, the contract of 

another African-American faculty member, Dr. John E. Wilson, was not renewed for the 

1987-88 academic year. Id. p. 98. On May 11, 1987, plaintiff filed a third complaint against 

PJC with the EEOC alleging retaliation.

With regard to the allegations of sexual harassment, as noted above Dr. Grant 

denied that he ever engaged in any such activities. With regard to the claims of racial 

discrimination and retaliation, the defendant gave a variety of reasons for the decision not 

to renew plaintiffs contract. First, it was alleged that she had received very poor 

evaluations from her students. TT Vol. 10, pp. 339-43. Second, it was alleged that her 

students had a low rate of success in her courses. Id. pp. 337-38. Third, it was alleged that 

there had been changes in staffing needs in the department because of shifts in state- 

mandated requirements so that more mathematics and fewer English courses were required; 

thus, plaintiffs position was eliminated and a new position for a mathematics instructor 

created. Id. pp. 328-31. It was claimed that an African-American woman was hired for this 

position. Finally, it was alleged that plaintiff had become insubordinate, and did not

11



communicate with Dr. Grant and others in her department. Id. pp. 336-38.

3. Standard o f Review

A. This Court reviews the determination of whether it was error to grant summary 

judgment with regard to the question of coverage under 42 U.S.C. § 1981 de novo, since 

it involves questions of law.

B. The standard of review with regard to the exclusion of evidence is whether the 

district court abused its discretion.

C. The standard of review with regard to the decision on the merits is whether the 

district court’s erred as a matter of law in analyzing the evidence and whether its findings 

of fact were clearly erroneous.

SUMMARY OF ARGUMENT 

I.

The granting of defendant’s motion for partial summary judgment dismissing her 

claim under 42 U.S.C. § 1981 was error. Under Florida law, the defendant Board of 

Trustees of Pensacola Junior College has sole authority over all employment matters. 

Thus, in the absence of clear evidence to the contrary, it must be concluded that the 

decision not to renew the contract of plaintiff was that of the Board of Trustees, or at least 

subject to review or ratification by the Board. The only evidence to the contrary before the 

district court when it granted the motion for partial summary judgment was a statement by 

a vice president at PJC to the effect that he had authority not to recommend the renewal 

of a contract, and that the decision not to renew plaintiffs contract was his alone. 

However, other evidence in the record contradicts this statement, and indicates that Dr. 

Blackwell’s recommendation was passed on to his superiors and eventually to the Board for 

its review and approval. Since the decision not to renew plaintiffs contract was made by 

or reviewed by the highest policy making authority at PJC, that decision is attributable tc

12



the defendant. Therefore, since a single act by the highest policy-making authority is 

actionable under § 1981, it was error to dismiss plaintiffs claim under that section. That 

decision resulted in the denial of her right to a jury trial, and the case must be remanded 

for a trial by a jury.

II.

The district court erred in excluding from evidence a report by a Blue Ribbon Task 

Force appointed by the president of PJC on minority affairs at the institution. The district 

court held that the report was immaterial and irrelevant to plaintiffs claim of racial 

discrimination. However, the report provided information regarding the representation of 

minorities in the faculty, disproportionate reductions in minority faculty members, and 

problems in recruiting and retaining African American faculty members. This information 

corroborated plaintiffs claim that there was an atmosphere of conducive to discrimination 

against African Americans at the college, and could support an inference that racial 

discrimination played a role in the decision not to continue her employment at the college.

III.

The district court made legal and factual errors in holding that plaintiff had not 

proven her claims of discrimination based on race and sex and retaliation. Plaintiff 

established prima facie cases as to each claim. The district court, in deciding whether the 

reasons given for the adverse action were pretexts for discrimination, failed to note and to 

give proper weight to the fact that the adverse action originated with the plaintiffs 

supervisor who had been charged by her with sexual harassment. The court also failed, by 

its exclusion of the report of the Blue Ribbon Task Force, to judge the credibility of the 

reasons given by the defendant in the context of an institution where there were continuing 

issues of racial discrimination.

13



ARGUMENT

L THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT

ON THE ISSUE OF WHETHER THE DEFENDANT BOARD OF TRUSTEES

COULD BE HELD LIABLE UNDER 42 U.S.C. § 1981

In analyzing the question of whether the defendant Board of Trustees may be liable 

under 42 U.S.C. § 1981 for an act of discrimination and/or retaliation when plaintiffs 

contract was not renewed by PJC, it is important to keep in mind precisely what is and is 

not at issue.

First, it is clear that, under Jett v. Dallas Independent School District, 491 U.S. 701 

(1989) and Monell v. New York Department o f Social Services, 436 U.S. 658 (1978), plaintiff 

can not recover under a theory of respondeat superior, and, indeed, she has never made 

such a claim.

Second, it is clear and undisputed, that under Florida statues, the Board of Trustees 

of PJC has complete authority over personnel matters, including the initial hiring of faculty 

and decisions whether or not to renew a contract of hire.5

Third, it is clear that plaintiff, in order to defeat the motion for summary judgment, 

was not required to prove that the Board had an established overall policy of discrimination

5FLA. STAT. § 240.319(1)(1) provides:

Each board of trustees shall provide for the appointment, employment, and 
removal of personnel. The board shall determine the compensation, 
including salaries and fringe benefits, and other conditions of employment for 
such personnel, including the president.

Fla. STAT. Section 240.313(6) provides:

A community college president shall be the executive officer and corporate 
secretary of the board of trustees as well as the chief administrative officer 
of the community college, and all the components of the institution and all 
aspects of its operation are responsible to the board of trustees through the 
president.

As noted above, the district court held that "the Board is the final policymaking body with 

respect to employment practices." RE Tab F, p. 47.

14



or retaliation. Under Pembauer v. Cincinnati, 475 U.S. 469 (1986) and St. Louis v 

Praprotnik, 485 U.S. 112 (1988), a single act of discrimination made by the Board or 

another person or entity with final policymaking authority would be enough to make the 

Board liable. See, Pembauer, 475 U.S. at 480; Praprotnik, 485 U.S. at 126-27. All plaintiff 

was required to do was to show that there was a substantial issue of fact as to whether the 

decision not to renew her contract was made by a "final policymaking authority." See, 

Mandel v. Doe, 888 F.2d 783, 791 (11th Cir. 1989), which holds that liability can be 

established either by proof of a pattern of unconstitutional acts, or by the single act of an 

official having final policymaking authority.

Thus, there are three possibilities, two of which result in potential liability by the 

Board under § 1981, and one of which does not. If the Board retained the final authority 

to review a recommendation to renew or not to renew a contract, then it could be sued for 

that decision under § 1981. St. Louis v. Praprotnik, 485 U.S. at 127. If, on the other hand, 

the Board had delegated its authority to make the final decision to the college and, thence, 

to Dr. Blackwell, then his decision not to renew was the decision of the Board and, under 

the teaching of Pembauer, it would be liable if he acted with a discriminatory or retaliatory 

motive. Pembauer v. Cincinatti, 475 U.S. at 481; Mandel v. Doe, 888 F.2d at 791.

However, if Dr. Blackwell was only given discretion to make individual and 

unreviewed employment decisions and he acted discriminatorily on his own and no* 

pursuant to a Board policy of discrimination, then the Board would not be liable. 

Pembauer v. Cincinnati, 475 U.S. at 465, n. 12. See also Jett v. Dallas Independent School 

District, 491 U.S. 701, 736-38 (1989).

Therefore, the question here is what evidence was before the district court when it 

granted partial summary judgement that was sufficient to overcome the uncontradicted 

evidence provided by the Florida statutes that the Board was the ultimate decision making 

authority and that, therefore, that the decision not to renew plaintiffs contract was thai of 

the Board. Put in a different way, given the language of the Florida statutes which, as

15



recognized by the district court, made it the final authority with regard to all personnel 

matters, the burden was on the defendant Board to introduce evidence that established that 

there was nevertheless no dispute that the Board had given full discretion over contract 

renewals to Dr. Blackwell. See, Church v. City of Huntsville, 30 F.3d 1332, 1343 (11th Cir. 

1994)(where state law rests policy-making authority in a particular body, it must be proven 

that the authority has been delegated). This, the Board utterly failed to do.

In the first place, the only evidence before the district court when it granted 

summary judgment that even purported to establish this crucial fact was Dr. Blackwell’s 

"affidavit."6 However, the record as a whole establishes that there was substantial dispute 

and indeed conflict with regard to this all-important issue. It is axiomatic, of course, that 

summary judgment cannot be granted if there is a genuine dispute over a material issue of 

fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

As has been noted above, after the motion for partial summary judgment was 

granted, plaintiff-appellant filed motions to reopen the question, pointing out that evidence 

adduced before the motion for summary judgment was filed and known to defendant’s

6Although the affidavit was notarized, it does indicate that Dr. Blackwell was put under 

oath, or that it given under penalty of perjury as required by /28 U.S.C. § 1746. The 

reliability of the statement was completely undermined at trial when Dr. Blackwell was 

questioned about it:

Q. In fact, the only thing you should have said in this affidavit is that your 
function and sole function is to make a recommendation to the Board that 
the contract should not be renewed.

A. Well, this was drawn up by an attorney and perhaps I didn’t read it 
closely enough.

* * * * * *

Q. What attorney drafted that affidavit for you to sign?

A. I don’t remember. I don’t recall.

T. 96.

16



counsel established a substantial dispute over whether Dr. Blackwell had indeed been given 

final discretionary authority to make such decisions. Excerpted above are portions of the 

depositions of Dr. Blackwell, Dr. Hartsell, the President of PJC, and Dr. Grant, plaintiffs 

department chair, brought to the attention of the district court in the motions to 

reconsider. Those depositions make clear that there is a substantial question as to whether 

Dr. Blackwell in fact had final discretionary authority or whether he only made a 

recommended decision that went up the chain all the way to the Board. As the Supreme 

Court held in Praprotnik:

[Wlhen a subordinate’s decision is subject to review by the municipality’s 
authorized policy makers, they have retained the authority to measure the 
official’s conduct for conformance with their policies. If the authorized 
policymakers approve a subordinate’s decision and the basis for it, their 
ratification would be chargeable to the municipality because their decision is 
final.

485 U.S. at 127 (emphasis in the original). See also, Manor Healthcare Corp. v. Comelo, 929 

F.2d 633, 637 (11th Cir. 1991). However, the attempts to have the issue reconsidered were 

summarily dealt with with no discussion or analysis of this evidence. RE Tabs H, I, J. As 

this Court has held, the district court was required "to consider all available evidence of 

policy making authority before deciding the issue." Brown v. City o f Fort Lauderdale, 923 

F.2d 1474, 1480 (11th Cir. 1991).

At trial, although the question of authority was not reopened as such, further 

evidence was inconsistent with a claim that Dr. Blackwell had discretion within the meaning 

of Pembauer. Either, according to Dr. Blackwell himself, he only made a recommendation 

which the Board of Trustees reviewed, or, according to Dr. Hartsell, the Board had 

delegated its authority to the college and hence to Dr. Blackwell. In either event, the 

Board would be liable.

Plaintiff-appellant urges that it is clear from the competent evidence in the record 

that the Board was the ultimate policy making authority with regard to all personnel 

matters and that either it reviewed the decision not to renew Ms. Davison’s contract, or Dr.

17



Blackwell was the ultimate policy making authority by delegation. At the least, the Board 

has failed to meet its burden of establishing that, despite the clear language of the Florida 

statutes, it gave Dr. Blackwell the discretion to make final employment decisions with 

regard to non-renewal of contracts.7 In either case, plaintiff-defendant is entitled to a 

decision that, as a matter of law, she stated a claim under 42 U.S.C. § 1981 against the 

Board and that, therefore, she was erroneously denied her right to a trial by jury on the 

merits of her claims. Lytle v. Household Manufacturing, 494 U.S. 545 (1990).

IF THE DISTRICT COURT ERRED IN EXCLUDING EVIDENCE THAT

WOULD HAVE ESTABLISHED A PATTERN OF UNDERREPRESENTATION

OF AFRICAN AMERICAN FACULTY MEMBERS.

At trial, plaintiff sought to introduce a study done by the defendant itself that dealt 

with the status and treatment of minority faculty members. Plaintiffs Exhibit 27. Indeed, 

plaintiff had sought to rely on the same study as part of her opposition to defendant’s 

motion for partial summary judgment, in order to show that there was evidence of a pattern 

or practice of discrimination in employment of faculty against African Americans and, 

therefore, that whether there was a policy of such discrimination was a matter of disputed 

fact.8

1Cf. Jett v. Dallas Independent School Dist., 7 F.3d 1241, 1246 (5th Cir. 1993), where 

there was a formal policy adopted by the Board making the subordinate official the final 

decision maker as to employee transfers. See also, St. Louis v. Praprotnik, 485 U.S. at 126; 

Martinez v. City o f Opa-Locka, Fla., 971 F.2d 708, 713-14 (11th Cir. 1992).

8 At the summary judgment phase, the district court held that the report would not be 

considered because it was hearsay. RE Tab F, p. 48. This conclusion was error, since the 

report was admissible as an exception to the hearsay rule under Rule 803(8), F.R.E., since 

it was a report of a public agency containing "matters observed pursuant to duty imposed

18



At trial, the district court refused to consider the report on the ground that it was 

"irrelevant and immaterial to what this case is about." TT Vol. 9, pp. 15-17. It is clear, 

however, that both the data contained in the report and its discussion of the lack of 

African-American faculty were relevant to a decision on whether there was race 

discrimination at the PJC. Thus, it provided evidence similar to that cited by the Supreme 

Court in McDonnel Douglas v. Green, 411 U.S. 792 (1973)(statistical evidence relevant to 

a determination of pretext), as indicating that the proffered reasons for the challenged 

employment action were pretexts for illegal discrimination. For example, the report noted 

that African Americans were substantially unrepresented in the ranks of the faculty, and 

that there were "no Blacks holding significant positions of responsibility at the 

administrative level." Plaintiffs Exhibit 27, p. 43. Although the report noted favorably an 

"innovative approach" to recruiting faculty (id.), this was a new program that began only in 

1988, after the refusal to renew plaintiffs contract. Thus, the report noted, this was "the 

first time a specific budget was set aside for faculty recruitment."

Particularly noteworthy is data in the report, which showed that in 1987-88 the 

number and percentage of African-American faculty declined; this was when plaintiff, 

another African American in her department, and a third unidentified African American 

were not retained. Id., Part VI. The situation with regard to recruitment, retention, and 

treatment of African-American faculty was mirrored in the report’s discussion of the 

recruitment and retention of African American students, as well as relationships with the 

African-American community in Pensacola. Id. at pp. 44-46. Thus, the report corroborated 

in a variety of ways plaintiffs testimony that she experienced PJC as being unfriendly to 

African-Americans and being a racially hostile environment.

Finally, the report noted with concern the fact that the current director of internal 

Equal Opportunity was returning to teaching. It urged that a Black professional be

by law as to which matters there was a duty to report."

19



recruited who had familiarity with "laws, policies, and procedures concerning Affirmative 

Action." Id,., p. 44.

In short, a fact-finder could infer from the report that there had been significant 

problems at PJC regarding the treatment of both African-American faculty and African- 

American students. This would place the claims of the plaintiff in a context quite different 

from that painted by the defendant, and could have led to the inference that the various 

reasons and excuses given for the refusal to renew plaintiffs contract were but pretexts for 

unlawful discrimination and/or retaliation. See, Busby v. City of Orlando, 931 F.2d 764, 782- 

84, 785-86 (11th Cir. 1991). For these reasons, the report was relevant to the claims made 

by plaintiff and should have been admitted into evidence and considered by the fact-finder.

IIL THE DISTRICT ERRED IN HOLDING THAT PLAINTIFF HAD NOT 

ESTABLISHED PRIMA FACIE CASES OF DISCRIMINATION AND 

RETALIATION AND THAT SHE HAD NOT DEMONSTRATED THAT THE 

REASONS GIVEN WERE PRETEXTUAL.

In its opinion, the district court first held that plaintiff had failed to establish a prima 

facie case as to either the retaliation or racial discrimination claims. With regard to 

retaliation, the court acknowledged that the timing of the refusal to renew her contract, 

coming at the first opportunity after she had filed her charges with the EEOC, might justify 

assuming a causal link between the two events. RE Tab E, p. 40. However, the court went 

on to hold that the timing was not enough, citing the decision of this Court in E.E.O.C. v. 

Reichhold Chemicals, Inc., 988 F.2d 1564 (11th Cir. 1993) as "indicating" that some facts 

must be set forth from which a causal link between the filing of the charge and the timing 

of the adverse action could be inferred, and concluded that plaintiff had failed to do so. 

This conclusion was in error.

First, EEOC v. Reichhold Chemicals, Inc. does not impose a heavy burden on a 

plaintiff to set out additional facts as the court below suggested. Indeed, its specific

20



holding is that this Court has interpreted the "causal link" requirement broadly as imposing 

a low burden, citing Simmons v. Camden County Bd. o f Ed., 757 F.2d 1187, 1189 (11th Cir. 

1985). Simmons states that plaintiff need show "merely that the protected activity and the 

adverse action were not wholly unrelated." EEOC v. Reichhold Chemicals, Inc., 988 F.2d 

at 1571-72.

Second, the evidence in the record in this case clearly met this burden. Of crucial 

importance is the fact that the process that culminated in plaintiffs contract not being 

renewed was begun by Dr. Grant, as her immediate supervisor. He made a 

recommendation that the contract not be renewed to Dr. Blackwell, who accepted Dr. 

Grant’s reasons and purported evidence without question, and passed that recommendation 

up the chain of command. Dr. Grant, of course, was the subject of plaintiffs complaints 

to PJC’s internal EA/EO officer and of the EEOC charge. Before she complained 

plaintiffs job performance had been rated not only acceptable but superior. Moreover, Dr. 

Grant took the first opportunity after the EEOC charges were filed to begin the process 

of nonrenewal of plaintiffs contract, by initiating a meeting with Dr. Blackwell at which he 

showed him summaries that purported to show that students were dissatisfied with 

plaintiffs performance. Since Dr. Grant had every motive to retaliate against plaintiff, the 

fact that he was the initiator of the adverse action against her was certainly all the 

additional evidence needed to establish a prima facie case.

The district court went on to hold, however, that even assuming that prima facie 

cases of race discrimination and retaliation had been established, they had been rebutted 

and pretext had not been shown. In these holdings as well, the district court erred.

First, as discussed in Part II, supra, the district court erroneously excluded from 

consideration the Blue Ribbon Task Force Commission Report on minority affairs at PJC. 

That report would have put into context the evidence adduced at trial, and could have led 

the finder of fact to discredit the legitimacy of the various reasons given by the defendant 

for the adverse action against the plaintiff.

21



Second, the district court failed to give any weight to a number of circumstances that 

seriously undermined the credibility of the reasons given. As noted, Dr. Blackwell admitted 

that he gave plaintiff no reasons for the decision not to renew her contract and that, 

indeed, the first time he explained the alleged reasons was when his deposition was taken 

in 1991, after this action had commenced. TT Vol. 9, p. 97. Of great importance, and 

unnoted by the district court, was the fact that all of the reasons advanced had their origin 

with Dr. Grant, who was the subject of the complaints made by plaintiff. Thus, Dr. 

Blackwell acknowledged that he saw neither the student evaluations that purported to give 

the plaintiff low scores9 nor the grades of the students themselves; he only saw a summary 

provided by Dr. Grant. Id. p. 80-81. Nor did he review Ms. Davison’s personnel file before 

he decided not to renew her contract. Id. p. 97.

Similarly, the other reasons advanced at trial all had their source in Dr. Grant. He 

told Dr. Blackwell that there was a problem communicating with plaintiff, and Dr. 

Blackwell made no independent inquiry into the matter. Id. p. 75-76. And, of course, it 

was Dr. Grant who testified at trial as to plaintiffs alleged insubordination and failure to 

communicate. TT Vol. 10, pp. 333, 336. Similarly, the two purported business reasons for 

not renewing plaintiffs contract, increased mathematics requirements and a reduction in 

staffing needs, also came from Dr. Grant. Once again, Dr. Blackwell relied completely on 

the information given to him by Dr. Grant and made no independent determination as to 

either their accuracy or their truth. TT Vol. 9, pp. 102-105.

Plaintiff, on the other hand, testified that there in fact had been no decrease in 

enrollment of students in English courses, and her testimony was corroborated by an exhibit

’Plaintiff testified that after she had learned of the purported low evaluations, she 

contacted the students (who would not be taking courses from her next year) and they 

denied giving her low evaluations. TT Vol. 12, pp. 63-64.

22



based on information provided by the defendant.10 TT Vol. 12, pp. 64, 67-68, Plaintiffs 

Exhibits 19 and 21. And. in fact. Dr. Grant himself testified that after plaintiff left, the 

same courses were given but with other personnel. TT Vol. 10, pp. 349-50."

In summary, the evidence in this case demonstrates wide discrepancies between what 

the defendant’s witnesses testified to and the documentary evidence. A proper analysis of 

the evidence required not only a judgment of the credibility of the witnesses based on their 

demeanor, but an assessment of their credibility in light of those discrepancies. The district 

court failed to make that analysis and to explain how his findings could be justified in light 

of the documentary and other evidence produced by plaintiff, including the testimony of 

neutral witnesses. Thus, this case must be remanded for a new trial and, for the reasons 

set out in Part I, supra, that trial must be before a jury.

‘“Indeed, an examination of the Florida statues regarding course requirements shows 

that there was in fact no increase in the number of credits required in mathematics or 

science between the 1984-85, 1985-86, and 1986-87 school years and the 1987-88 school 

year as claimed by Dr. Grant. Fla. STAT. § 232.246(l)(a) and (b) required three credits 

in each for graduation for each of those years, the same as in 1987-88. Thus, there was no 

increase from two to three courses as Dr. Grant claimed in his testimony. TT Vol. 10, pp. 

328-330.

"In fact, there is independent evidence that plaintiffs position was not changed to one 

for a mathematics teacher until 1989, more than two years after she was forced to leave, 

when Sandra Hodges was hired.

23



CONCLUSION

For the foregoing reasons, the decision of the district court should be reversed, and 

the case remanded for further proceedings, including a trial by jury.

Respectfully submitted,

E laine R. Jones 

D irector-Counsel 

Theodore  M. Shaw  

N orman  J. Chachkin 

Charles Stephen Ralston 

NAACP LEGAL DEFENSE AND 

E ducational  Fu n d , Inc .

99 Hudson Street 

Suite 1600

New York, New York 10013 

(212) 219-1900

Counsel for Plaintiff-Appellant

24



CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing Plaintiffs BRIEF FOR PLAINTIFF- 

APPELLANT and RECORD EXCERPTS, have been served by depositing same in the
'LUnited States mail, first class postage prepaid, on this T5th of December, 1995, 

addressed to the following:

William R. Mabile, III 

Marjorie M. Cain 

Fuller, Johnson & Farrell, P.A. 

I l l  N. Calhoun Street 

Tallahassee, FL 32302-1739

25