Filed: Sep. 29, 2000
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ m 99-60910 Summary Calendar _ KING DAVID RUSH, Plaintiff-Appellant, VERSUS COLUMBUS MUNICIPAL SCHOOL DISTRICT; GLENN LAUTZENHISER, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY; JANNETTE ADAMS, IN HER OFFICIAL AND INDIVIDUAL CAPACITY; SARA JONES, IN HER OFFICIAL AND INDIVIDUAL CAPACITY; JAN KLING, IN HER OFFICIAL AND INDIVIDUAL CAPACITY, Defendants-Appellees. _ Appeal from the United States District Court for the Northern District of Missis
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ m 99-60910 Summary Calendar _ KING DAVID RUSH, Plaintiff-Appellant, VERSUS COLUMBUS MUNICIPAL SCHOOL DISTRICT; GLENN LAUTZENHISER, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY; JANNETTE ADAMS, IN HER OFFICIAL AND INDIVIDUAL CAPACITY; SARA JONES, IN HER OFFICIAL AND INDIVIDUAL CAPACITY; JAN KLING, IN HER OFFICIAL AND INDIVIDUAL CAPACITY, Defendants-Appellees. _ Appeal from the United States District Court for the Northern District of Mississ..
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-60910
Summary Calendar
_______________
KING DAVID RUSH,
Plaintiff-Appellant,
VERSUS
COLUMBUS MUNICIPAL SCHOOL DISTRICT;
GLENN LAUTZENHISER,
IN HIS OFFICIAL AND INDIVIDUAL CAPACITY;
JANNETTE ADAMS,
IN HER OFFICIAL AND INDIVIDUAL CAPACITY;
SARA JONES,
IN HER OFFICIAL AND INDIVIDUAL CAPACITY;
JAN KLING,
IN HER OFFICIAL AND INDIVIDUAL CAPACITY,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Northern District of Mississippi
(1:98-CV-193)
_________________________
September 28, 2000
Before SMITH, BENAVIDES, and In January 1995, an assistant principal posi-
DENNIS, Circuit Judges. tion became available in one of the District’s
high schools, and Rush applied. The school’s
JERRY E. SMITH, Circuit Judge:* principal, T. Scott Murrah, and the District’s
superintendent, Ruben Dilworth, recommend-
King Rush appeals a summary judgment in ed Rush to the Board. When the Board met to
favor of Columbus Municipal School District discuss the recommendation, however, Board
(the “District”) and its board members on member Sara Jones opposed the
Rush’s 42 U.S.C. § 1983 action relating to the recommendation, and the Board retired into an
refusal to rehire him as an assistant principal. executive session at which, in accordance with
Rush also appeals the denial of his motion to usual practice, the District’s attorney was
compel the disclosure of discussions among present. The record contains no evidence
members of the District’s school board (the regarding the matters discussed during the
“Board”) during executive session. Because executive session,1 but after returning from it
we conclude that the district court did not the Board rejected the recommendation by a 3-
abuse its discretion in denying the motion to 2 vote.
compel and that Rush has failed to produce
sufficient evidence to convince a reasonable In June of the same year, Rush again
factfinder that the District unlawfully applied for an assistant principal position, this
discriminate in its refusal to rehire him, we time at a different high school in the District.
affirm. Once again, Dilworth and the principal, Bob
Williford, recommended Rush. Williford also
I. posted a notice that described Rush as the new
The District employed Rush from 1983 to assistant principal. The Board again rejected
1994, mainly as a teacher and coach. During the recommendation, opting instead to offer
his final year, Rush, who is black, was assistant the position to a white male with little or no
principal at a middle school. He enjoyed an experience in school administration. Rush re-
exemplary personnel record and received quested a hearing,2 but the District denied the
excellent performance evaluations and no dis-
ciplinary actions. The District tendered a re-
newal offer to him before the 1994-95 school 1
Jones’s deposition testimony indicates that she
year, but he never accepted. One week before had seen or heard of at least two separate
the beginning of that year, he notified the Dis- interactions between Rush and his students that
trict that he had accepted an assistant principal reflected unfavorably on his ability properly to
position with a high school in a different dis- impose discipline. The first involved Rush’s un-
trict. acceptable use of profanity during practices and
games, as reported by parents. The second was an
“overly harsh” exchange between Rush and a black
male student. Rush disputes whether these events
occurred.
*
Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be 2
An affidavit filed by Pam Rush, the wife of
published and is not precedent except under the King Rush, indicates that Board member Janette
limited circumstances set forth in 5TH CIR. R. Adams typed a letter for Rush’s signature,
47.5.4. (continued...)
2
request, citing a lack of controlling law or and on the Board members’ affirmative
policy. defense of qualified immunity.4
Finally, in 1997, Rush applied for another III.
position as assistant principal. Once again, A.
Williford recommended him, and Rush We review a discovery order for abuse of
received an interview with the new discretion. See Sierra Club v. Cedar Point Oil
superintendent, Owen Bush. Bush’s Co., 73 F.3d 546, 569 (5th Cir. 1996). The
deposition testimony indicates that Rush’s discretion with which the trial court supervises
responses during the interview failed to satisfy discovery has been characterized as both
Bush, especially in the areas of instructional “broad” and “considerable”; thus, “[i]t is un-
knowledge and the use of test scores for usual for an appellate court to find abuse of
school improvement. Bush therefore declined discretion in [discovery] matters . . . .
to recommend Rush to the Board.3 Generally, we will only reverse the trial court's
discovery rulings in unusual and exceptional
II. cases.” Scott v. Monsanto Co., 868 F.2d 786,
On June 22, 1998, Rush sued the District 793 (5th Cir. 1989) (citations and internal quo-
and the Board members in their official and in- tation marks omitted) (compiling authorities).
dividual capacities, alleging, inter alia, racial
discrimination in violation of the Fourteenth B.
Amendment, seeking recovery under § 1983. Evidentiary privileges “shall be governed by
He filed a motion to compel the disclosure of the principles of the common law as they may
conversations held during an executive be interpreted by the courts of the United
session. The court denied the motion on the States in the light of reason and experience,
ground of attorney-client privilege. After [except] with respect to an element of a claim
completing discovery, defendants moved for or defense as to which State law supplies the
and obtained summary judgment on all claims rule of decision . . . .” FED. R. EVID. 501. The
asserted privilege covers issues relating solely
to Rush’s § 1983 claims. Federal common law
2
(...continued) therefore governs the applicability of the
requesting the hearing. The affidavit also states privilege to the Board’s communications dur-
that Adams commented to her that fellow Board ing executive session. Under the common law
members Jan Kling and Jones “did not have a le- of this circuit, “[a] corporate client has a priv-
gitimate reason for effectively blacklisting King
David,” leading to Pam Rush’s conclusion that the
“white board members dislike King David and
4
refer to him as a bigot and a racist.” Because, In addition to the protective order and the
however, the record is devoid of testimony by Fourteenth Amendment claims, Rush appeals the
Adams, we cannot determine what, if any, basis summary judgment on his claims under the First,
she had for taking such a position. Fourth, and Fifth Amendments and in favor of the
individual defendants under the doctrine of
3
The record is uncertain with respect to whether qualified immunity. We see no reversible error
Bush had received unfavorable comments about with respect to these issues and, accordingly, af-
Rush from Board members before forming his firm for the reasons discussed in the district court’s
recommendations to the Board. opinion.
3
ilege to refuse to disclose, and prevent its at- counsel. Therefore, the attorney-client
torneys from disclosing, confidential privilege protects all communications during a
communications between its representatives meeting between a school board and its
and its attorneys when the communications attorney for the purpose of obtaining legal
were made to obtain legal services.” Nguyen advice, even those communications not
v. Excel Corp., 197 F.3d 200, 206 (5th Cir. addressed directly to the attorney. That is not
1999). 5 It follows that confidential to say, however, that the mere presence of an
communications between Board members and attorney serves to insulate a meeting from
the District’s attorney for the purpose of ob- discoverySSthe privilege protects only those
taining legal advice fall under the attorney- communications made for the purpose of
client privilege. obtaining legal advice.
The communications that occurred during The District’s attorney participated in all
the executive session were not exclusively be- the executive sessions, at each of which the
tween the Board members and the attorney, Board discussed the legality of refusing to re-
however. Defendants concede that some oc- hire Rush. There is nothing in the record indi-
curred strictly between and among members of cating that any of the communications was for
the Board, but they maintain that even those purposes other than the procurement of legal
communications are protected by the privilege. advice. While the Board members did discuss
Rush contends that, because such their reasons for refusing to rehire Rush, the
communications were not addressed to discussions occurred in the context of in-
counsel, they do not benefit from the privilege. quiring about the legality of those reasons.
Under these circumstances, the district court
did not abuse its discretion in holding that the
In Upjohn Co. v. United States, 449 U.S. a t t o r n e y- c l i e n t p r i v i l e g e p r o t e c t s
383 (1981), the Court recognized that the cor- communications made during the executive
porate attorney-client privilege is designed to sessions.
encourage full and frank communication be-
tween a corporation and its attorneys to IV.
facilitate fully informed legal advice and that A.
the only way to ensure such communication is We review a summary judgment de novo,
to construe the privilege broadly.6 Similar applying the same standards as did the district
policy dictat es encouraging full court. See Urbano v. Continental Airlines,
communication between a school board and its Inc., 138 F.3d 204, 205 (5th Cir.), cert.
denied, 525 U.S. 1000 (1998). Summary
judgment is appropriate where, viewing the
5
See also F ED. R. CIV. P. 26(b)(1) (“Parties evidence most favorably to the nonmoving
may obtain discovery regarding any matter, not party, there is no genuine issue of material fact
privileged . . . .”).
and the moving party is entitled to judgment as
6
See Upjohn, 449 U.S. at 389-94 (rejecting a a matter of law. See Celotex Corp. v. Catrett,
lower court’s “control group” test in favor of a
477 U.S. 317, 322-24 (1986). Once the
broader privilege covering all communications be- moving party has made such a showing, “the
tween employees and corporate counsel for nonmovant must go beyond the pleadings and
purposes of rendering legal advice). designate the specific facts showing that there
4
is a genuine issue for trial.” Urbano, 138 F.3d for discrimination.” Id. Moreover, “a
at 205. plaintiff’s prima facie case, combined with
sufficient evidence to find that the employer’s
B. asserted justification is false, may permit the
1. trier of fact to conclude that the employer
For discrimination claims, we follow Mc- unlawfully discriminated.” Id. at 2109.
Donnell Douglas Corp. v. Green,
411 U.S.
792 (1973). Although McDonnell Douglas In Reeves, however, the Court did allow
dealt with an action under title VII, we use the that “there will be instances where, although
same analytical model when evaluating a claim the plaintiff has established a prima facie case
under § 1983. See Lee v. Conecuh County Bd. and set forth sufficient evidence to reject the
of Educ.,
634 F.2d 959, 961-62 (5th Cir. Jan. defendant’s explanation, no rational factfinder
1981). Although the district court properly could conclude that the action was
analyzed Rush’s claims under the McDonnell discriminatory.”
Id. Indeed, even where the
Douglas standard, we must consider the plaintiff shows pretext, “all that [such
intervening decision in Reeves v. Sanderson showing] proves . . . is that the [defendant’s]
Plumbing Prods., Inc.,
120 S. Ct. 2097 decision-makers had some unidentifiable
(2000). reason for not wanting to hire [the plaintiff].”
Vadie v. Mississippi State Univ., 218 F.3d
Under McDonnell Douglas, the plaintiff 365, 373 (5th Cir. 2000).
may establish a prima facie case by a
preponderance of the evidence; then the Rush alleges that the asserted justification
defendant has the burden to produce evidence for not hiring him is merely pretext and that, in
that the allegedly discriminatory action has a reality, Bush’s failure to recommend Rush to
non-discriminatory justification. See Reeves, the Board resulted from improper influence
120 S. Ct. at 2106. We assume arguendo, as exerted over Bush by individual Board
did the district court, that Rush presents a pri- members. Assuming, arguendo, that Rush can
ma facie showing of discrimination. As its le- successfully show pretext,7 he has failed to
gitimate, nondiscriminatory reason for refusing
to hire Rush, the District offers his
unsatisfactory interview responses. Because 7
Despite Rush’s repeated assertions to the
the defendant bears only the burden of contrary, the record does not at all plainly establish
production, not persuasion, see id., we must that Bush was improperly influenced by Board
accept the District’s proffered justification. members before making his recommendation. The
record establishes that Bush made a practice of
If the defendant successfully asserts a non- discussing candidates with Board members before
discriminatory justification, “the McDonnell making official recommendations, but it fails to
Douglas frameworkSSwith its presumptions show that, with respect to Rush, this practice
resulted in any influence over Bush, proper or
and burdensSSdisappear[s].” Id. (internal quo-
improper. The only evidence tending to show any
tation marks omitted). The plaintiff, however,
influence exerted by the Board over Bush is Rush’s
still must be given “the opportunity to prove affidavit, in which he quotes Johnny Johnson as
by a preponderance of the evidence that the stating that Bush explained in a Board meeting that
legitimate reasons offered by the defendant “‘[Bush] had to follow the sentiments of the
were not its true reasons, but were a pretext (continued...)
5
produce any evidence of racial discrimination racial discrimination by the Board, we affirm
as a motivating factor in the decision not to the summary judgment with respect to the
hire him for the 1997 position. To the 1997 discrimination claim.
contrary, he asserts that the District refused to
hire him because Jones carried a personal 2.
grudge against him, based on the way Rush The district court found the 1995 claims
had treated her child. barred by the applicable statute of limitations.
Rush asserts (1) that the court improperly cal-
Moreover, the affidavit of Pam Rush asserts culated the date from which limitations began
that the Board rejected Rush’s application to run and (2) that the District’s 1997 decision
because some Board members considered him not to rehire him tolled the statute of
a bigot. Assuming, again without deciding, limitations. In the context of a § 1983 action,
that these contentions have merit, they do not federal law governs the date on which the
support Rush’s allegations of racial statute begins to run, while state tort law
discrimination. governs the limitation period and tolling
provisions. See Russell v. Board of Trustees,
The fact that Jones harbors a grudge 968 F.2d 489, 492-93 (5th Cir. 1992).
against Rush or that the Board views him as a
bigot is of no probative value in determining Under Mississippi’s residual statute of lim-
whether the decision not to hire him was mo- itations, the limitation period for the 1995 dis-
tivated by racial discrimination. Even under crimination claims is three years. See MISS.
Reeves, such a showing is insufficient to over- CODE ANN. § 15-1-49 (1999). “The
come a motion for summary judgment.8 Be- limitations period begins to run the moment
cause Rush has not produced any evidence of the plaintiff becomes aware that he has
suffered an injury or has sufficient information
to know that he has been injured.” Piotrowski
7
(...continued)
v. City of Houston, 51 F.3d 512, 516 (5th Cir.
majority of the board’” with respect to the decision 1995).
to hire Rush.
Rush has presented no evidence to establish that Rush did not file this suit until June 22,
a majority of the Board does not have decisionmak- 1998, so, absent any conditions that would toll
ing power with respect to hiring decisions. It is the statute, a limitation period beginning be-
therefore difficult to see why a decision of a fore June 22, 1995, would bar the 1995 claims.
majority of the Board constitutes improper The Board notified Rush of its decision not to
influence. hire him for the June 1995 position on June
8
15, 1995.
See Vadie, 218 F.3d at 373-74 (affirming, un-
der Reeves, judgment for the defendant as a matter
Although the record does not reflect when
of law where the plaintiff produced “nothing pro-
Rush received notice that he had not been
bative anywhere on the record of the ultimate ques-
tion of . . . discrimination”). We note the recent re- hired for the January 1995 position, he
affirmation that “[t]he standard for judgment as a presumably knew by June 15 that he had not
matter of law under Rule 50 mirrors the standard been hired for that position either. In any
for summary judgment under Rule 56.” Reeves, event, according to Pam Rush’s affidavit, the
120 S. Ct. at 2102. conversation in which Adams told Pam Rush
6
that “the white board members did not ‘care would support tolling under that theory.9
for King David Rush’” and that Rush should
request a hearing to obtain a “‘real reason’ for AFFIRMED.
the white board members [sic] rejection of his
applications for employment” occurred on
June 15.
Although Rush contends that he did not
have sufficient information to form the basis
for his claims until after June 22, “[a] plaintiff
need not realize that a legal cause of action
exists; a plaintiff need only know the facts that
would support a claim” to trigger the
limitation period. See Piotrowski, 51 F.3d at
516. To support a prima facie showing of dis-
crimination under the McDonnell Douglas
framework, a plaintiff need only show that he
is a member of a protected class, that he
qualifies for the job, that he failed to procure
the job, and that the job remained open. See
McDonnell
Douglas, 411 U.S. at 801-02.
The events of June 15 informed Rush of all
facts necessary to support a prima facie claim
under McDonnell Douglas. His contention
that he possessed insufficient information to
start the limitation period lacks merit. Unless
he can show that some event tolled limitations,
the statute bars his 1995 claims.
Citing Hendrix v. City of Yazoo City, 911
F.2d 1102, 1103-04 (5th Cir. 1990), Rush ar-
gues that the “continuing violation” theory
acts to toll limitations. Both branches of that
theory, however, require some “violation”
within the applicable statute of limitations to
toll the statute. See
id. Because we conclude,
supra, that the 1997 decision not to hire Rush
did not violate his Fourteenth Amendment
rights, Rush has failed to produce any evidence
of a violation within the limitation period that 9
Even if the statute of limitations did not bar
the 1995 claims, the claims would almost certainly
fail for the same reasons as does the 1997 claim,
discussed supra.
7
