Nolan Richardson, Jr v. B. Alan Sugg

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
Nos. 04-3049/3187
___________
Nolan Richardson, Jr., *
*
Plaintiff/Appellant/ *
Cross-Appellee, *
*
v. *
*
B. Alan Sugg, President, University * Appeal from the United States
of Arkansas, in his official and his * District Court for the
individual capacities; John White, * Eastern District of Arkansas.
Chancellor, University of Arkansas, *
Fayetteville, in his official and his *
individual capacities; J. Frank Broyles, *
Athletic Director, University of *
Arkansas, Fayetteville, in his official *
and his individual capacities, *
*
Defendants/Appellees/ *
Cross-Appellants, *
*
Razorback Foundation, Inc., *
*
Defendant, *
*
University of Arkansas Board of *
Trustees, *
*
Defendant/Appellee/ *
Cross-Appellant. *
*
___________
Submitted: November 17, 2005
Filed: May 26, 2006
___________
Before ARNOLD, BEAM, and RILEY, Circuit Judges.
___________
BEAM, Circuit Judge.
Nolan Richardson, Jr., appeals the district court's1 dismissal, following a bench
trial, of his race-discrimination and free-speech claims arising out of his termination
as the men's head basketball coach for the University of Arkansas-Fayetteville (UAF)
Razorbacks. Richardson brought suit against B. Alan Sugg, President of the
University of Arkansas; John White, Jr., Chancellor of UAF; J. Frank Broyles,
Athletic Director of UAF; and the University of Arkansas Board of Trustees
("Defendants").2 Defendants cross-appeal the district court's decision that a claims-
release clause in Richardson's October 2000 employment contract applied only to
claims accrued up to the date of execution of the agreement, and not to prospective
claims. We affirm.
I. BACKGROUND
Richardson had a basketball coaching career with UAF that spanned seventeen
years and spawned an impressive record of NCAA playoff and championship
appearances, and one national championship. He was hired as the Razorbacks' head
1
The Honorable William R. Wilson, Jr., United States District Judge for the
Eastern District of Arkansas.
2
Richardson also brought suit against the Razorback Foundation, Inc. The
district court dismissed the Foundation and it is not a party on appeal.
-2-
men's basketball coach in 1985. Broyles, a Caucasian, hired Richardson, who became
the first black head coach in UAF history. Broyles had been at UAF since 1958,
starting as the head football coach and eventually becoming the athletic director.
White, also a Caucasian, has been UAF's chancellor since 1997 and reports to Sugg.
Sugg, a Caucasian, has been the university's president since 1990 and reports to the
university's board of trustees.
The events leading to this appeal occurred principally in 2000 and after. In
October 2000, Richardson executed a new employment contract (Contract) with the
University of Arkansas, and a Personal Services and Guaranty Agreement (Guaranty)
with the Razorback Foundation, Inc. (Foundation). The execution of these compacts
followed the airing of a number of issues between Richardson and Broyles over the
years, including control over shoes and apparel and the contracting process for such
(1998); Nolan's hiring of his son, Nolan Richardson III, as an assistant basketball
coach (1998); the nature of Richardson's appointment as an assistant athletic director
(1999); and alleged pay disparity between football assistant coaches and basketball
assistant coaches (1997 and 2000). The record is replete, however, with
correspondence from Broyles, White, and Sugg supporting and encouraging
Richardson in his run up to making the Razorbacks national champions in 1994, as
well as during the years following, when the team fell short of recapturing that same
glory.
On February 23, 2002, the Razorbacks lost to Kentucky at Kentucky, 58-71,
near the end of a season where the Razorbacks went 14-15. At a post-game press
conference, Richardson was asked what he and Kentucky coach Tubby Smith
discussed on the floor prior to tip-off. Richardson replied that the two acknowledged
the pressures they felt to win games, and that they would each do the best they could.
Richardson said,
-3-
But we certainly understand the pressures, and that's what we talked a
little bit about, is that, "Hey, you do the best you can and I'll do the best
I can and we'll leave the rest to the good man upstairs. We ain't going
to have to worry about all that." If they go ahead and pay me my money,
they can take the job tomorrow. That's the bottom line because it is a
business and we've got to work hard and try to get our kids to play the
best they possibly can.
Appellant's App. at 5296. Following the press conference, Richardson twice more
commented that UAF could replace him by buying him out.
White became aware of Richardson's post-game comments the next day,
February 24, when asked about them by news reporters. White responded that he
thought Richardson had made the comments in the heat of the moment out of
frustration over a difficult season. He also stated that he expected Richardson to
complete his contract. Meanwhile, that same morning, Broyles had read three press
accounts of Richardson's statement. Later that day, Broyles asked to meet with White
to discuss Richardson's comments. Before meeting with Broyles, White spoke with
Fred Vorsanger, manager of UAF's Bud Walton Arena, at a women's basketball game.
In their conversation, Vorsanger told White that he was not surprised by Richardson's
comments at the press conference because Richardson had made the same comment
to Vorsanger several times. Vorsanger told White that Richardson had once said, "If
they don't think I'm doing a good job or don't want me here, they can buy me out."
Id. at 1635.
Broyles and White talked about Richardson's comments four times on February
24. At one meeting, Broyles told White that he had spoken with someone with an
athletic background, who told Broyles that when a coach says something like
Richardson had said at the press conference, it means the coach "want[s] out." Id. at
1000. Later that day, White's impression of Richardson's statement changed, and he
felt the statement was "all about the money" and showed a "lack of commitment to
-4-
the university." Id. at 1034-35. White believed Richardson's statement was
damaging to basketball recruiting. Id.
At a final meeting on February 24, Broyles expressed to White that he thought
Richardson wanted to retire but was trying to find a way to be fired in order to take
advantage of the buyout clause in Richardson's contract. Broyles told White that
what Richardson had publicly said was "so damaging, it was irreparable," and that he
should be terminated under the contract. Id. at 349. Broyles testified that his
comment was in concurrence with White's suggestion to Broyles that Richardson be
terminated because of the statement.
After the meetings with Broyles, White called Sugg the evening of February
24. White told Sugg that he and Broyles had conferenced, and that White decided,
with Broyles' concurrence, to fire Richardson. Sugg agreed. He had seen
Richardson's comments on television, and was "stunned" and "shocked." Id. at 4166.
I couldn't believe he was saying it. I said [to the television], Coach, why
are you saying that? I thought it was – it was a put-down to the fans of
Arkansas, to the basketball program, and to the University of Arkansas.
And I said, I just cannot believe you're saying that.
Id. at 4166-67. Sugg contacted the members of the Board of Trustees that he could
locate that evening to let them know of the decision. Each board member who was
contacted testified that they agreed with the decision.
On the morning of February 25, White told Gail Moore, his executive assistant;
Dr. Dave Gearhart, Vice Chancellor for University Advancement; and Dr. Roger
Williams, Associate Vice Chancellor for University Relations; that a decision had
been made to give Richardson a chance to resign or retire, and failing that, to fire him.
That afternoon, Richardson held another press conference, which turned into a lecture
of the press corps about the fact that he did not ask to be hired by UAF but that they
-5-
had recruited him, how from that day forward he was shutting off press access to
himself and his team except in press conferences, and that during press conferences
they would have "twenty minutes to ask . . . as many questions as you possibly can."
Id. at 5719. He also opined about a lack of racial diversity among the press corps
and racial inequality in his job. Richardson reiterated that "when they [Broyles,
White, and Sugg] decide that it's enough, then that's when they can pay me off and
I'll be on my way." Id. at 5718.
White and Broyles met with Richardson on February 28, following
Richardson's return from an away basketball game. The two told Richardson that
they had concluded it was time for a change in leadership of the basketball team, and
attempted to get Richardson to retire so that they would not have to fire him.
Richardson was offered the buyout under his contract, amounting to $500,000
annually for six years, as well as full retiree benefits. Richardson refused to retire and
told the two they would have to fire him.
The next day, March 1, 2002, White dispatched a letter to Richardson stating
that, given White's decision that new leadership was needed for the basketball team,
and since Richardson had declined to retire, he was terminated effective immediately.
The letter informed Richardson he had the right, under his employment contract, to
request that Sugg review the decision. Sugg did so, and on March 21 issued a letter
to Richardson confirming the decision.
II. DISCUSSION
Because this case was tried to the judge, we review the trial court's factual
findings for clear error and its legal conclusions de novo. Tadlock v. Powell, 291
F.3d 541, 546 (8th Cir. 2002). Using this standard, we will overturn a factual finding
only if it is not supported by substantial evidence in the record, if it is based on an
erroneous view of the law, or if we are left with the definite and firm conviction that
-6-
an error was made. Id. (citing Estate of Davis v. Delo, 115 F.3d 1388, 1393-94 (8th
Cir. 1997)). We afford due regard to the district court's judgment of the credibility
of the witnesses. Id. A factual finding supported by substantial evidence, as well as
a district court's choice between two permissible views of the evidence, are not
clearly erroneous. Id.
We deal first with Defendants' cross-appeal, for if it is successful, Richardson's
claims are barred.
A. Does Richardson's Contract Bar His Claims?
Section 12 of the Contract provides that should Richardson be terminated by
the university at its "convenience" (meaning at any time, for any reason), he would
"accept the guaranty of the Razorback Foundation, Inc. . . . as full and complete
satisfaction of any obligations of the University." That guaranty is defined in Section
9 of the Guaranty agreement: "If Richardson is terminated for the convenience of the
University of Arkansas, the Foundation shall pay to Richardson the sum of Five
Hundred Thousand Dollars ($500,000) per year . . . for the remaining period left on
the Employment Agreement." The Contract also provides that "[i]n consideration of
such guaranty . . . [Richardson] will, and does hereby, release and discharge the
University, its officers, trustees and employees from and against any liability of any
nature whatsoever related to or arising out of this Agreement and [Richardson's]
termination for convenience of the University hereunder." Defendants argue that
through this clause, Richardson agreed to forgo any employment claims, accrued or
prospective, he had or might have against the university.
The district court held that Title VII rights may not be prospectively waived
and held the clause effective only as to any claims Richardson had at the time of
executing the contract. The court also held that the common law doctrines of tender
back and ratification did not commit Richardson to the release clause. On appeal,
-7-
Defendants argue that Richardson is bound by the release clause because (1) persons
may contract to waive prospective claims under Title VII, or (2) Richardson's
acceptance of the guaranty payments after he was fired and failure to tender them
back constitutes ratification of the release.
1. Prospective Waiver of Title VII Claims
Defendants begin their argument by trying to deal with the elephant in the
room–a Supreme Court case that apparently forecloses their assertion. They
acknowledge the Court's statement in Alexander v. Gardner-Denver Co., 415 U.S. 36
(1974) that "we think it clear that there can be no prospective waiver of an employee's
rights under Title VII," but claim this pronouncement is limited to collective
bargaining agreements (CBAs). Id. at 51. But the context of the Supreme Court's
statement does not limit it to CBAs. In Gardner-Denver, the plaintiff brought suit
against his employer for discrimination after having pursued arbitration under the
CBA negotiated by his union. The Court rejected election-of-remedy and waiver
arguments. Regarding the purported waiver, the Court stated "[w]e are . . . unable to
accept the proposition that petitioner waived his cause of action under Title VII. To
begin, we think it clear that there can be no prospective waiver of an employee's
rights under Title VII." Id. (emphasis added). The Court said only that the rights
conferred by Title VII "can form no part of the collective-bargaining process since
waiver of these rights would defeat the paramount congressional purpose behind
Title VII. In these circumstances, an employee's rights under Title VII are not
susceptible of prospective waiver."3 Id. at 51-52 (emphasis added). The Court was
applying a general rule–that Title VII rights cannot be waived–to the CBA context.
3
Defendants seize upon the Court's choice of words in this last sentence, "in
these circumstances," to show that its discussion of the non-waivability of prospective
claims applies only in the CBA context. Whatever their meaning in that sentence,
they do not diminish the broader rule stated at the beginning of that section–that Title
VII rights cannot be prospectively waived.
-8-
Later in the opinion, the Court noted that while presumably employees could waive
Title VII as part of a settlement agreement, submitting the claim to arbitration did not
constitute such a waiver. "Since an employee's rights under Title VII may not be
waived prospectively, existing contractual rights and remedies against discrimination
must result from other concessions already made by the union as part of the economic
bargain struck with the employer." Id. at 52 (emphasis added) (contrasting the
collective rights of employees such as the right to strike, which a union may
relinquish in the process of bargaining with an employer for collective economic
benefits; with individual rights conferred by Title VII, which belong to the individual
and may not be collectively bargained).
A number of other circuits have also held, relying on Gardner-Denver, that
persons may not contract away prospective claims under Title VII. Adams v. Philip
Morris, Inc., 67 F.3d 580, 584 (6th Cir. 1995) ("The Supreme Court has stated that
'an employee's rights under Title VII are not susceptible of prospective waiver.' . . .
It is the general rule in this circuit that an employee may not prospectively waive his
or her rights under either Title VII or the ADEA [Age Discrimination in Employment
Act].") (quoting Gardner-Denver, 415 U.S. at 51-52); Cole v. Burns Int'l Sec. Servs.,
105 F.3d 1465, 1482 (D.C. Cir. 1997) (stating, in support of the proposition that
arbitration agreements are not always enforceable, that employees cannot be held to
an agreement that waives their right to be free from discrimination as a condition of
employment, and citing Adams for the rule that employees may not prospectively
waive Title VII rights); Thompson v. Plante & Moran, No. 95-2019, 1996 WL
616675, at *3 (6th Cir., Oct. 24, 1996) (unpublished) (citing Adams for the
proposition that "[a]n employee may . . . waive rights under Title VII or the ADEA
that have already accrued, but an employee cannot waive claims arising from conduct
that has not yet occurred"); Kendall v. Watkins, 998 F.2d 848, 851 (10th Cir. 1993)
(citing Gardner-Denver in holding that "an employee may agree to waive Title VII
rights that have accrued, but cannot waive rights that have not yet accrued"); Rogers
v. Gen. Elec. Co., 781 F.2d 452, 454 (5th Cir. 1986) ("[A]n employee may validly
-9-
release only those Title VII claims arising from 'discriminatory acts or practices
which antedate the execution of the release.' . . . Thus, an otherwise valid release that
waives prospective Title VII rights is invalid as violative of public policy.") (quoting
United States v. Allegheny-Ludlum Indus., Inc., 517 F.2d 826, 853 (5th Cir. 1975)).
The public policy concerns that inhere in allowing prospective waivers of Title
VII rights support the conclusion that such waiver is invalid. First, Congress
designed Title VII so that the enforcement of its substantive measures against
employers would be effected, at least in substantial part, through private individuals
asserting a claim. "In such cases, the private litigant not only redresses his own injury
but also vindicates the important congressional policy against discriminatory
employment practices." Gardner-Denver, 415 U.S. at 45. Allowing an employee to
bargain away the right to pursue a prospective discrimination claim frustrates this
statutory scheme. Second, allowing employers to ink a deal with an employee to
waive prospective claims strikes at the heart of Congress' aim to deter discriminatory
conduct by employers. "An employer cannot purchase a license to discriminate. An
employment agreement that attempts to settle prospective claims of discrimination for
job applicants or current employees may violate public policy under Gardner-Denver
. . . ." Adams, 67 F.3d at 585.
Defendants cite Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991)
for the proposition that so long as an employee may vindicate statutory rights by any
other means (even by contracting to waive prospective claims in return for monetary
compensation), the goals of civil rights statutes are preserved. This is an overly broad
reading of what the Court said. Gilmer does not say that persons may waive
prospective civil rights claims. Rather, Gilmer stands for the proposition that
employees may make the individual decision to contract away a right to have a
federal court hear a civil rights claim in favor of an arbitration forum. Citing cases
where it had recognized that statutory rights may be subject to an arbitration clause,
the Court said "[i]n these cases we recognized that by agreeing to arbitrate a statutory
-10-
claim, a party does not forgo the substantive rights afforded by the statute; it only
submits to their resolution in an arbitral, rather than a judicial, forum." Id. at 26
(emphasis added) (internal quotations and alterations omitted). See Taylor v.
Progress Energy, Inc., 415 F.3d 364, 372 (4th Cir. 2005) ("An agreement to arbitrate
preserves the claim; the agreement simply shifts the forum for resolving the claim
from a court to an arbitration setting."). The upshot is that so long as some forum is
available to hear prospective claims, civil rights statutes are not violated. The Court
later said that "'[s]o long as the prospective litigant effectively may vindicate [his or
her] statutory cause of action in the arbitral forum, the statute will continue to serve
both its remedial and deterrent function.'" Gilmer, 500 U.S. at 28 (emphasis added)
(second alteration in original) (quoting Mitsubishi Motors Corp. v. Soler
Chrysler-Plymouth, Inc., 473 U.S. 614, 637 (1985)).
Defendants also cite this court's decision in Patterson v. Tenet Healthcare, Inc.,
113 F.3d 832 (8th Cir. 1997), for the proposition that an employee may contractually
waive his right to vindicate a prospective Title VII claim in court. It is true Patterson
says that, but only where an alternative arbitration forum is available. In that case,
a forum was still available to hear prospective claims. That is not the case here.
Defendants assert that Richardson could and did waive any prospective claims under
Title VII. Existing Supreme Court precedent forecloses that assertion. We hold that
Richardson could not, and thus did not, waive his prospective claims under Title VII.
2. Tender-Back and Ratification
Defendants argue in the alternative that under general contract law, since
Richardson has retained moneys under the guaranty, he has ratified the waiver clause,
making it applicable to his prospective claims, and that unless he tenders back the
moneys received, he may not bring suit. We likewise reject this argument.
-11-
The Supreme Court has not addressed the applicability of the tender-back and
ratification doctrines to Title VII claims, but in Oubre v. Entergy Operations, Inc.,
522 U.S. 422 (1998), the Court addressed their applicability to claims under the
ADEA. While Oubre involved considerations not directly implicated in this case, the
Court's decision persuasively guides us to ours.
In Oubre, the plaintiff signed a release as part of a termination agreement from
her position with Entergy that purported to discharge Entergy from any claims arising
from her employment. Oubre later brought an age discrimination claim under the
ADEA. Entergy asserted that the claim was barred by the release she signed. But the
release did not comply with a provision in the ADEA (created by the Old Workers
Benefit Protection Act (OWBPA)) that prescribes standards that must be followed for
a release of claims to be valid. Entergy admitted the release was defective, but argued
the doctrines of tender-back and ratification still barred Oubre's suit. The Court held
otherwise. "The statutory command is clear: An employee 'may not waive' an ADEA
claim unless the waiver or release satisfies the OWBPA's requirements." Id. at 426-
27. In the instant case, Title VII does not have a similar statutory requirement for
releases. But the Court, in analyzing the waivability of prospective discrimination
claims, has stated in equally strict terms: "[W]e think it clear that there can be no
prospective waiver of an employee's rights under Title VII." Gardner-Denver, 415
U.S. at 51 (emphasis added). In Taylor, the Fourth Circuit held that because the
Family Medical Leave Act (FMLA) prohibits waiver or release of FMLA claims,
such waivers or releases could not be ratified. "Because FMLA claims are not
waivable by agreement, neither are they waivable by ratification." 415 F.3d at 372.
We apply the same reasoning. Since prospective Title VII claims are not waivable
by virtue of the Supreme Court's command in Gardner-Denver, neither are they
susceptible to ratification.
Moreover, the reasoning the Court used in Oubre is equally applicable to Title
VII:
-12-
[Applying the tender-back and ratification doctrines] would frustrate the
statute's practical operation . . . . In many instances a discharged
employee likely will have spent the moneys received and will lack the
means to tender their return. These realities might tempt employers to
risk noncompliance with the OWBPA's waiver provisions, knowing it
will be difficult to repay the moneys and relying on ratification. We
ought not to open the door to an evasion of the statute by this device.
Oubre, 522 U.S. at 427. The same applies to prospective releases under Title VII.
To forbid them as a matter of policy, but then allow them to be saved under the
doctrines of tender-back or ratification, would frustrate the no-prospective-waiver
rule, and thereby Title VII's objectives.
Few other courts have dealt with the applicability of the tender-back and
ratification doctrines to Title VII claims. In Fleming v. United States Postal Service
AMF O'Hare, 27 F.3d 259 (7th Cir. 1994), the court held that the plaintiff in a Title
VII case had to tender back payments received under a settlement agreement with the
postal service before she could bring an employment suit. The court decided that,
since Title VII does not statutorily regulate releases like the Federal Employers'
Liability Act (FELA), the Jones Act, or the ADEA, ordinary contract rules like
tender-back and ratification apply. "This is a garden-variety rescission case requiring
tender back of consideration received." Id. at 262.
However, two important caveats counsel that we not rely on Fleming. First, the
case deals with a settlement agreement executed by both parties to dispense with
accrued employment claims, which agreements are not invalid under Title VII as the
Supreme Court recognized in Gardner-Denver. "[P]resumably an employee may
waive his cause of action under Title VII as part of a voluntary settlement . . . ."
Gardner-Denver, 415 U.S. at 52. In the instant case, we deal with a prospective
waiver, not a settlement of accrued claims. Second, Fleming was decided without the
-13-
aid of Oubre's policy underpinnings to the effect that releases of claims under
remedial statutes like the ADEA and Title VII frustrate the purposes of those statutes.
Given the policy concerns that rendered invalid the release at issue in Oubre,
and the fact that the release of prospective claims is invalid under Gardner-Denver,
we find that the doctrines of tender-back and ratification do not bar Richardson's suit.
Given that Richardson could not prospectively waive his Title VII claims, and the
inapplicability of the tender-back and ratification doctrines, we hold that Richardson's
claims in this case are not barred.
B. Richardson's Race Claims
The district court found that Richardson had not proven by a preponderance of
the evidence that his firing was because of his race. Richardson argues that under
either a mixed-motive analysis or the familiar McDonnell-Douglas framework, the
evidence proves that he was a victim of race discrimination.
1. Mixed-Motive Analysis
Richardson first argues that the district court erred in not applying a mixed-
motive analysis. A mixed-motive case is one in which "it has been shown that an
employment decision resulted from a mixture of legitimate and illegitimate motives."
Price Waterhouse v. Hopkins, 490 U.S. 228, 232 (1989). To qualify for application
of the mixed-motive analysis, the plaintiff must "demonstrate that an illegitimate
criterion was a motivating factor in the employment decision." Stacks v. Sw. Bell
Yellow Pages, Inc., 996 F.2d 200, 201-02 (8th Cir. 1993); 42 U.S.C. § 2000e-2(m).
Once that has occurred, the employer may come forward with an affirmative defense
that it would have made the same decision absent the illegal criterion. Price
Waterhouse, 490 U.S. at 246 ("[T]he employer's burden is most appropriately deemed
an affirmative defense: the plaintiff must persuade the factfinder on one point, and
-14-
then the employer, if it wishes to prevail, must persuade it on another."). The
employer's affirmative defense "does not absolve it of liability, but restricts the
remedies available to a plaintiff." Desert Palace, Inc. v. Costa, 539 U.S. 90, 94
(2003); 42 U.S.C. § 2000e-5(g)(2)(B).
The principal evidence meriting a mixed-motive analysis was an incident that
occurred at a sports banquet in February 2000, some two years before Richardson's
ultimate termination. On February 17, Richardson contacted Wally Hall, a sports
writer, to complain about an article Hall had written that was critical of Richardson's
son. In the course of the conversation, Richardson called Hall a "redneck." Hall
wrote an article on February 18 about the exchange, and said Richardson had called
Razorback fans "redneck SOB's." Fans from east Arkansas called Jim Lindsey, a
former member of the Board of Trustees, complaining about Richardson's comment.
Lindsey contacted Broyles and told him he thought the statement justified Richardson
being fired. The night of February 18, Broyles attended a sports banquet and sat next
to members of the media. Broyles asked Clay Henry, a sports columnist, if he would
write a column equating Richardson's calling white people "rednecks" with a white
person calling Richardson a "nigger." Henry told Broyles he wanted to avoid
controversy. Henry later told Richardson about the conversation. At trial, Henry
testified that Broyles was quoting someone else when he used the word "nigger," and
that it was not a direct statement from Broyles. The district court credited the
testimony of Paul Eels, also seated next to Broyles at the banquet, who said that
Broyles was not quoting someone else, but the court did not find the distinction
noteworthy, finding the fact that Broyles solicited the article at all the important
evidence.
The district court found that Broyles' statement was "direct evidence of
discrimination and is sufficient to require a mixed motive analysis of any employment
decisions made by Broyles before October 2000 . . . ." The court later stated that
"[w]hile I do believe the statements at the banquet would have required a direct
-15-
evidence standard of review to any claims pre-October 2000, I do not believe that
they carry over for the reasons stated below." The court then held the statement could
not be viewed as bearing on decisions made after that date because it found that
Broyles and Richardson had "buried the hatchet" just after the signing of Richardson's
new contract in October 2000. The record contains cordial letters and statements
between Broyles and Richardson at that time, prompting the district court to hold that
"[t]here is substantial evidence that demonstrates that the problems between Broyles
and Richardson had been resolved."
The district court's use of the term "direct evidence" is best understood in the
context of legal causation, and not to distinguish it from "circumstantial evidence."
In Stacks, the court noted:
We use [the] term ["demonstrate" in the context of racial bias] advisedly,
in order to avoid the "thicket" created by some courts' use of the term
"direct evidence" to describe the plaintiff's initial burden of proof in a
Price Waterhouse case. We conclude that there is no restriction on the
type of evidence a plaintiff may produce to demonstrate that an
illegitimate criterion was a motivating factor in the challenged
employment decision. The plaintiff need only present evidence, be it
direct or circumstantial, sufficient to support a finding by a reasonable
fact finder that an illegitimate criterion actually motivated the
challenged decision.
996 F.2d at 201 n.1 (citation omitted). In the context of determining whether the
evidence warrants an application of a mixed-motive analysis, "'direct' refers to the
causal strength of the proof, not whether it is 'circumstantial' evidence." Griffith v.
City of Des Moines, 387 F.3d 733, 736 (8th Cir. 2004) (emphasis added). With that
in mind, we find no error in the district court's evaluation.
In order to merit a mixed-motive inquiry, the plaintiff must show a "'specific
link between the discriminatory animus and the challenged [employment] decision.'"
-16-
Philipp v. ANR Freight Sys., Inc., 61 F.3d 669, 673 (8th Cir. 1995) (quoting Stacks,
996 F.2d at 201 n.1). The required causal link renders stray remarks, statements by
nondecisionmakers, or statements by decisionmakers that are unrelated to the
decisional process insufficient to require a mixed-motive analysis. Id. And though
the district court discounted it, we find the span of time between Broyles' remarks and
the decision to fire Richardson relevant to a determination of whether discriminatory
animus motivated the firing. See Simmons v. Océ-USA, Inc., 174 F.3d 913, 916 (8th
Cir. 1999).
We need not weigh in on the correctness of the district court's finding that
Broyles' remarks at the sports banquet were "direct" evidence–evidence strong
enough to causally link the statement to adverse employment actions–of racial animus
in employment actions taken before October 2000. That is because Richardson was
fired nearly two years later, and we agree with the district court's finding that
Richardson and Broyles had made amends by then. The importance of the ample
record evidence of the goodwill between Broyles and Richardson is that it
substantially severs any possible causal link between the comments Broyles made at
the 2000 sports banquet, and any animus Broyles allegedly might have had toward
Richardson at that time, and the decision to fire Richardson in 2002.4 Further, the
4
In addition to testimony by staff close to Broyles and Richardson that the two
had made amends, Richardson wrote Broyles a letter in September 2000 extending
an olive branch:
The 2000-2001 Millennium year is upon us. The past 15 years has [sic]
been very rewarding for me having one of the best jobs in the country.
I am very proud of the fact that you gave me this opportunity.
Now, I am trying to focus on winning another National Championship.
There is no question that I would need your support in trying to get this
mission accomplished. I have always had the utmost respect for you as
a person and an athletic director. Probably there were times when the
-17-
time-span between the comments and Richardson's firing required Richardson to
establish a causal link. "Because the [racially-charged] statements [by a supervisor]
and the adverse employment decision were not close in time, [separated by some two
years,] [plaintiff] must establish a causal link between the comments and his
termination." Id. at 916. See Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 779
line of communication between us was not where it should have been.
However, I feel we can work through that because we both want to make
Arkansas the best program in the country. . . .
Once again, you are my boss and I will follow your lead to further
establish the U of A Basketball Program and Athletic Department.
If you need me at anytime, please call and I will make myself available
to you.
Broyles responded in a letter to Richardson:
Your letter was the first thing I saw when I got to the office this morning
and I cannot tell you how happy I was to read your words. In recent
months, not a day has gone by that I didn't wish for us to return to our
former comfortable relationship and communication. I agree with you
that we can work through whatever we need to do in order for that to
happen.
Nolan, you have my complete support and whatever assistance I can
provide to achieve the goal of winning another National Championship.
We truly appreciate your commitment to extra efforts toward graduation
rates and your willingness to promote the entire department in our goals
of national competitiveness in all sports. . . .
Before your season begins, if time permits, I'd like to have an
opportunity for us to sit down and visit in person.
-18-
(8th Cir. 1995) ("[W]e [have] held that a four-year gap between the statement and the
termination rendered the statement effectively stale when it came to allowing an
inference of intentional discrimination. Because these statements had an insufficient
causal relationship to the actual decision to terminate, we [have] ruled that they could
not support a jury finding of intentional discrimination.").
Richardson asserts that the district court was wrong in not considering or
erroneously discounting other scattered evidence purporting to discredit the notion
that Richardson and Broyles had made amends. Reviewing the district court's factual
determinations in these matters, we cannot say it clearly erred.
Richardson also asserts that the district court erred in not applying a "cat's paw"
analysis to the evidence he presented at trial. It does not appear Richardson squarely
raised this argument below. "[W]e will not consider arguments raised for the first
time on appeal." Alexander v. Pathfinder, Inc., 189 F.3d 735, 742 (8th Cir. 1999).
Nonetheless, the district court's conclusion that the clincher in support of the
articulated reason for firing Richardson was Sugg's (who had to approve the firing
and who the court found was not motivated by race) view of Richardson's comments,
is not clearly erroneous, and forecloses a "cat's paw" evaluation.
This circuit's "cat's paw" rule provides that "an employer cannot shield itself
from liability for unlawful termination by using a purportedly independent person or
committee as the decisionmaker where the decisionmaker merely serves as the
conduit, vehicle, or rubber stamp by which another achieves his or her unlawful
design." Dedmon v. Staley, 315 F.3d 948, 949 n.2 (8th Cir. 2003). Where a
decisionmaker makes an independent determination as to whether an employee
should be terminated and does not serve as a mere conduit for another's
discriminatory motives, the "cat's-paw" theory fails. Lacks v. Ferguson Reorganized
Sch. Dist. R-2, 147 F.3d 718, 725 (8th Cir. 1998). In this case, any claim that Broyles
used White and/or Sugg as a "cat's paw" to advance any animus he might have held
-19-
fails. Richardson's contract provided for independent review by Sugg of any decision
to fire Richardson, which review was amply undertaken, and Sugg's own impression
of Richardson's comments at the press conference provided an independent basis for
his decision to approve Richardson's termination. As such, Sugg, who had the final
say on Richardson's termination, was not used as a "cat's paw" to carry out someone
else's alleged discriminatory motive.
2. The McDonnell Douglas Framework
Richardson argues alternatively that this case should be analyzed under the
familiar McDonnell Douglas burden-shifting framework. Under McDonnell Douglas,
when a plaintiff meets his burden of establishing a prima facie case of employment
discrimination, a presumption of such discrimination is created. Davis v. KARK-TV,
Inc., 421 F.3d 699, 704 (8th Cir. 2005). To establish a prima facie case, the plaintiff
must show (1) he is a member of a protected class, (2) he met the legitimate
expectations of his employer, (3) he suffered an adverse employment action, and (4)
similarly situated employees who were not members of the protected class received
different treatment. Id. "Once a plaintiff successfully establishes a prima facie case,
the burden shifts to the employer to articulate 'a legitimate, non-discriminatory reason
for its adverse employment action.'" Id. (quoting Williams v. Ford Motor Co., 14 F.3d
1305, 1309 (8th Cir.1994)). "If the employer meets its burden, 'the presumption of
discrimination disappears, requiring the plaintiff to prove that the proffered
justification is merely a pretext for discrimination.' The plaintiff has the burden of
persuasion at all times." Id. (quoting Pope v. ESA Servs., Inc., 406 F.3d 1001, 1007
(8th Cir. 2005)).
Richardson challenges the district court's conclusion that Defendants' stated
reason for firing Richardson–the "buy me out" comment at the February 23 press
conference–was not pretext for a racially discriminatory action. Richardson asserts
that the district court "essentially found that the reason given for terminating
-20-
Richardson was false, but de-emphasized this finding." Br. of Appellant at 69. The
district court made no such finding and, by weighing all of the evidence as it related
to the February 23 comments, found quite the opposite.
At trial, Richardson asserted that the "buy me out" reason was pretext because
he had made a similar remark in a press conference in 1995 and was not terminated.
The district court considered Defendants' reply that the contexts in which both
comments were made were quite different. The court stated, "Quite frankly, I am not
convinced. It could be argued that the 1995 remarks were worse. . . . According to
the testimony of Richardson's secretary, and Scott Cain, a news reporter, Richardson
made this type of statement often." The court said only that it was not convinced the
two statements were substantially different; not that it was not convinced that
Defendants' reason was free of pretext. The court made no conclusion on the matter
at that point, but moved on to Richardson's other pieces of evidence of alleged
pretext, rejecting each.
The court then returned to two key pieces of evidence bearing on Richardson's
"buy me out" statement made in 2002 and Defendants' use of it as a basis for firing
him. First, the court pointed to testimony by Doug Dickey, a former athletic director
at the University of Tennessee. The court found his testimony "impressive and
convincing" concerning the need for a college basketball program to have a particular
"public aura." That testimony included assertions that since basketball programs are
in the marketing and entertainment business, for a program to be successful, the
public needs to know that its coach is content with the university, and that s/he is a
"player on the team," so that fans will buy tickets and support the team. Dickey
testified that he had fired a basketball coach for saying, "If they want somebody else
to do this job, just pay me off." Second, the court cited the fact that Sugg saw
Richardson's statements at the February 23 press conference as "the clincher for
Defendants' articulated reason for the firing." That is because Sugg testified that he
thought Richardson's remarks were a slap in the face of the fans, the university, and
-21-
the Razorback program. The district court found no suggestion of racial animus by
Sugg against Richardson, and credited Richardson's testimony that he had a great deal
of respect for Sugg. Thus, Sugg, the university official who had to approve
Richardson's firing, stood free of any allegations of racial discrimination, and his
assertion of Richardson's statement as the reason for his firing negates any claim that
such reason is mere pretext.
We can find no fault in the district court's thorough analysis on this point, and
agree that Richardson failed in his burden to show pretext. As such, Defendants'
legitimate, nondiscriminatory reason for firing Richardson stands undiminished.
Thus, any presumption of race-based animus vanished and Richardson offered no
other evidence in support of his continuing burden to prove unlawful discrimination.
We therefore conclude, as did the district court, that Richardson was not fired because
of his race.
C. Richardson's First Amendment Claims
1. The February 11, 2002, Statement
Richardson asserts he was fired, in part, because of comments he made on
February 11, 2002, reported in a February 12 Morning News/RazorbackCentral
Internet news article, as well as his comments at the February 25, 2002, press
conference. In the February 11 statement, Richardson opined about the difficulty
recruiting basketball players:
Richardson said the Razorbacks have had to fight many problems, from
negative recruiting to an NCAA investigation into the program in the
mid-1990's, and that has made it difficult to convince kids to attend
Arkansas. "Coaches say, 'If you want to go to Arkansas, are you going
to the blue-light sale on Saturdays and Sundays?'" Richardson said.
-22-
"They ain't got nothing to do there but play basketball. You've got to
have a social life."
Appellant's App. at 5500. Richardson contends that his "blue-light sale" comment
touched on a matter of public concern to the Fayetteville community, specifically that
black students and student athletes who attend UAF have limited social opportunities
beyond going to class or playing a sport at the university.
In Pickering v. Board of Education, 391 U.S. 563, 568 (1968), the Court said
that statements of public employees on matters of public interest are entitled to First
Amendment protection. "'[T]he theory that public employment which may be denied
altogether may be subjected to any conditions, regardless of how unreasonable, has
been uniformly rejected.'" Id. (quoting Keyishian v. Bd. of Regents, 385 U.S. 589,
605-06 (1967)). But the Court also recognized the government's interest as an
employer in the orderly administration of the public's business. Id. at 569. The result
was the so-called Pickering balancing test, which seeks to "balance . . . the interests
of the [public 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." Id. at 568. In Connick v. Myers, 461
U.S. 138 (1983), the Court reemphasized that Pickering applied to statements made
by a public employee "'as a citizen, in commenting upon matters of public concern.'"
Id. at 143 (quoting Pickering, 391 U.S. at 568). The Court in Connick also stated that
"[w]hether an employee's speech addresses a matter of public concern must be
determined by the content, form, and context of a given statement, as revealed by the
whole record." Id. at 147-48.
In evaluating a claim by an employee that s/he was discharged because of
speech, courts must employ the Connick two-part test. Barnard v. Jackson County,
43 F.3d 1218, 1223 (8th Cir. 1995). That is, first, we must determine whether the
speech at issue can be "'fairly characterized as constituting speech on a matter of
-23-
public concern.'" Id. (quoting Connick, 461 U.S. at 146). If so, we then move to step
two, which is to undertake the Pickering balancing. Id. "These two questions are
matters of law for the court to resolve." Id. The Pickering balancing "requires full
consideration of the government's interest in the effective and efficient fulfillment of
its responsibilities to the public." Connick, 461 U.S. at 150. Factors considered
include any detrimental impact the speech has on working relationships, loyalty,
confidence, or the efficient working of government. Barnard, 43 F.3d at 1224.
"Employee acts of insubordination may tip the balancing process in favor of the
employer's interests in the efficient promotion of its services." Id. The primary
question in applying the Pickering balancing is whether the employee's speech has
undermined "'the effective functioning of the public employer's enterprise.'" Id.
(quoting Rankin v. McPherson, 483 U.S. 378, 388 (1987)).
Only after applying the Connick two-part test do we then ask whether the
plaintiff has met the burden to show that the speech was a motivating factor in the
employment decision. Id. at 1226. If so, the burden shifts to the employer to prove
it would have made the same decision in the absence of the speech. Id.
Richardson contends that the "blue-light sale" comment addressed a matter of
racial diversity and opportunity. Looking to the content, form, and context of the
"blue-light sale" comment, as revealed by the whole record, we do not find that it
addresses a matter of public concern. While matters of racial discrimination are
"inherently of public concern," Connick, 461 U.S. at 148 n.8, neither the content nor
context of Richardson's statement indicate that he was addressing race matters. The
comment was Richardson's characterization of what other coaches were telling
athletes looking at the Razorbacks, and was made in the course of Richardson
explaining recruiting challenges caused in part by an NCAA investigation. In
Pickering, the issue about which a school teacher wrote a letter that was published in
a local newspaper, involved a proposed tax increase by the board of education, and
concerns about how the board and superintendent had handled past revenue
-24-
proposals. The content of the letter directly addressed a matter of public
concern–taxes. In this case, though Richardson attempts to characterize the "blue-
light sale" comment as a matter of racial diversity, its content does not plainly convey
that. Nor does its context. We agree with the district court that Richardson's
February 11, 2002, comment did not touch on a matter of public concern for purposes
of the Connick test.
Even if we were to find that Richardson's statement met the first step in
Connick, under part two–the Pickering balancing–we would find that Defendants'
concerns about the statements outweigh his right to make them as a citizen. The
record indicates that both Broyles and Sugg believed the comment was detrimental
to the recruiting efforts of UAF teams. Specifically, Sugg testified that Razorback
head football coach Houston Nutt was troubled about the statement's impact on
recruiting for his team because other coaches were using it to lure recruits away from
UAF. The district court credited the testimony of Doug Dickey for its McDonnell
Douglas context, but under the Connick test, Dickey's testimony also bears on the
legitimacy of Defendants' concerns about Richardson's statement. Dickey testified
that head sports coaches at a university are part of a team effort to promote their
sports and the university. He noted that such a team endeavor operates in a
competitive marketing and entertainment environment, competing for fans. As such,
a few major sports often finance several other minor sports at a university. Dickey
emphasized that when the public perceives lackluster support from a coach, public
support, which can impact financial support, also decreases. In sum, we find that the
record amply supports a conclusion that Richardson's statement had a detrimental
impact on the effective functioning of the public employer's enterprise–namely, the
university's total athletic program. This public interest clearly outweighed any First
Amendment privilege Richardson allegedly may have had in the making of the
comment.
-25-
Finally, even if we were to advance beyond the Connick two-part test, we agree
with the district court that there is no direct evidence that Richardson's February 11
statement was a factor in the decision to fire him. Richardson points only to the
proximity in time to his termination, to argue that the statement was a motivating
factor in that decision. By contrast, the employers in both Pickering and Connick
specifically stated they were terminating the employees in those cases because of the
statements they had made. We find the proximity argument too tenuous and hold that
Richardson's statement was not a factor in his firing.
2. Timing of the Decision to Fire Richardson
Richardson claims that statements he made at the February 25, 2002, press
conference were also a factor in the decision to fire him, and thus violated his First
Amendment rights. This claim, as well as Richardson's claim of retaliation, hinges
on when the decision was made to discharge Richardson. Because the district court
found that the decision was made on February 24, it did not reach the question of
whether statements made by Richardson on February 25 were protected by the First
Amendment, and it did not mention Richardson's retaliation claim based on the
February 25 statements. We agree with the district court and similarly do not reach
Richardson's claims based on those statements.
Substantial evidence in the record supports the district court's conclusion that
the decision to fire Richardson was made by White and Sugg on February 24, several
hours before Richardson even uttered his comments at the February 25 press
conference. Throughout briefing, Richardson consistently refers to the "March 1"
decision to fire him. But March 1 is the date White sent Richardson a memo
confirming that a decision had already been made to terminate him, and that he had
the option of having Sugg review the decision. Richardson also relies on language
in a March 5 memo from White to Richardson's file wherein White states, "[i]t was
clear to me that relations with the media and fans were irreparably damaged through
-26-
the combination of Nolan's remarks on Saturday [February 23] and Monday [February
25]." But just before that statement, White penned that a tape of the February 23
press conference "confirmed the necessity to move forward with the actions I had
discussed with Frank Broyles [on February 24]." This, combined with record
evidence recounted above about how the decision was made to fire Richardson, leads
us to the same conclusion as the district court: that the decision to terminate was
made February 24, in advance of Richardson's February 25 comments.
Finally, Richardson points to Sugg's letter upholding White's decision as proof
that it was made after February 25. That conclusion can be arrived at only by taking
portions of the letter out of context. Sugg's letter, quoting university general counsel,
stated:
"On Sunday, February 24, 2002, Chancellor White and Coach Broyles
discussed Coach Richardson's published comments following the
Kentucky game. Chancellor White had also become aware earlier that
day of private comments made by Coach Richardson on February 22 to
the same effect. Chancellor White and Coach Broyles concluded that
the comments by Coach Richardson indicating that he could be bought
out of his contract immediately indicated a lack of his confidence in the
basketball program and leadership for it. They also believed these
comments to have a negative impact on fan support and other aspects of
the program. Likewise it undermined their confidence in Coach
Richardson's leadership for the future."
Appellant's App. at 5450. In the next paragraph, Sugg expands on the reason the
decision to terminate was made: "Coach Richardson's recent public and private
comments clearly indicated that he wanted out of the Employment Agreement." As
further support for the assertion that Richardson wanted out of his contract, and not
as a further reason for the decision to terminate him, Sugg noted Richardson's
comments at the February 25 press conference.
-27-
This was further substantiated by his published comments on Monday,
February 25, 2002, during which Coach Richardson, with deliberation,
restated that when Coach Broyles, Dr. White and Dr. Sugg decide that
"it's enough, then that's when they can pay me off and I'll be on my
way."
Appellant's App. at 5450 (emphasis added). We find the evidence supports the
conclusion that the decision to fire Richardson was made on February 24. At the very
least, it provides ample proof that the district court was not clearly erroneous in its
factual finding on this issue. Thus, we need not reach his First Amendment and
retaliation claims based on that statement.
III. CONCLUSION
We have carefully considered the voluminous record in this case, the briefs,
and arguments on appeal, and affirm the district court.
______________________________
-28-