1 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS 2 CENTRAL DIVISION 3 JOYCE ASBERRY 4 Plaintiff 5 Vs. No. 4:21-cv-00875-LPR August 1, 2023 6 Little Rock, Arkansas LITTLE ROCK SCHOOL DISTRICT 7 Defendant 8 9 10 11 RULING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 12 BEFORE THE HONORABLE LEE P. RUDOFSKY 13 UNITED STATES DISTRICT JUDGE 14 15 16 APPEARANCES: 17 On Behalf of the Plaintiff: 18 MICHAEL MUSKHELI Mitchell Blackstock Wright & Alagood, PLLC 19 1001 West Third Street Little Rock, Arkansas 72201 20 On Behalf of the Defendant: 21 CHRIS J. HELLER 22 Friday, Eldredge & Clark, LLP 400 West Capitol Avenue, Suite 2000 23 Little Rock, Arkansas 72201 24 Proceedings reported by machine stenography and 25 displayed in realtime; transcript prepared utilizing computer-aided transcription. Valarie D. Flora, FCRR, TX-CSR, AR-CCR United States Court Reporter 1 THE COURT: First, in terms of the sort of 2 factual background here, I am not going to go over all of 3 the factual background. What I am going to do is adopt 4 what is admitted to with clean admissions. And by "clean 5 admissions," I mean either the party saying, just admit, 6 or the party saying, I admit this much but no more. I am 7 going to adopt the clean admissions in Document 38, which 8 is plaintiff's response to defendant's statement of 9 undisputed material fact, and the clean admissions in 10 Document 33, which is LRSD's response to plaintiff's 11 statement of undisputed material facts. 12 For purposes of the rulings I am going to make 13 today, I think that is sufficient as a background. I 14 don't think there is anything further I need in terms of 15 background. 16 In terms of my ruling, here is why I am granting 17 defendant's summary judgment motion on the outstanding 18 claim, which is the disparate impact claims. First, there 19 is what I will call a McDonnell-Douglas issue that 20 plaintiffs really can't surmount, at least down here at 21 the district court level. And I'm referring to the case 22 set forth at 191 F.3d 948, Eighth Circuit. I believe it's 23 1999, but don't quote me on the exact date. And here is 24 the general issue. 25 In that case, the Eighth Circuit made it pretty Valarie D. Flora, FCRR, TX-CSR, AR-CCR United States Court Reporter 1 clear that in the Eighth Circuit a disparate impact 2 analysis can only be done on a basis of under 40 versus 40 3 and over, so on a full, I guess what I will call, older 4 worker group as opposed to subgroups within the over 40 5 range or the 40 and over range. 6 The problem there for plaintiffs, of course, is that 7 plaintiff's expert analysis -- their statistical analysis 8 is based on a group of older teachers, 60 and older. And 9 while other circuits -- namely, the Third, but maybe some 10 others that I haven't seen -- say that's okay, it's not 11 okay yet in the Eighth Circuit. And, in fact, the Eighth 12 Circuit has affirmatively ruled that it's not okay and you 13 can't do it by subgroup. 14 I think I made clear in my questioning today that 15 I'm not sure the McDonnell-Douglas decision comes out the 16 right way and is the right understanding of the relevant 17 statutory language and whatever gloss has already been 18 made in various other parts of disparate either treatment 19 or impact analysis by the Supreme Court, but that's an 20 issue that's above my pay grade. The Eighth Circuit will 21 have to decide either whether it thinks that there's any 22 Supreme Court case that means they can sort of -- a 23 three-judge panel can overrule a prior panel or whether it 24 needs to take it en banc and wants to take it en banc to 25 consider overruling itself. I personally don't think Valarie D. Flora, FCRR, TX-CSR, AR-CCR United States Court Reporter 1 there is any clear Supreme Court precedent that would 2 allow me to say the McDonnell-Douglas rule of the Eighth 3 Circuit doesn't apply. So that's issue number one. 4 I'm tempted to stop there, but I am going to add one 5 more issue because I also think it is a fairly clear, 6 clean, legal issue that it will help if -- assuming this 7 case goes up to the Eighth Circuit, it will help if the 8 Eighth Circuit gives some guidance on, if it ends up -- if 9 the Eighth Circuit ends up sending the case back down here 10 again. And this is what I am going to call the Clark V. 11 Matthews and McWhorter issue. 12 The Clark V. Matthews case is 628 F.3d 462. In that 13 case, it's pretty clear that for a prime facie case, one 14 of the things that -- one of the burdens that is on the 15 plaintiff is to identify a specific facially neutral 16 policy or policies and statistically analyze the impacts 17 of that policy or policies on older workers. 18 I'm intentionally saying "older workers" here 19 because I'm trying to avoid the 40-year-old or 60-year-old 20 subgroup issue. This is a sort of separate issue. 21 Obviously, there's some bleed over, but it's also a 22 separate issue. 23 The problem here for plaintiffs is what I believe is 24 a mismatch between the identified policy and the 25 statistical analysis that the plaintiffs have provided. Valarie D. Flora, FCRR, TX-CSR, AR-CCR United States Court Reporter 1 On one hand, if the policy is what I'm going to call the 2 five percent escape hatch used by the school district to 3 avoid the RIF law -- and I say that merely as a 4 descriptive matter, not suggesting whether or not that's 5 appropriate under current state law. Let the state courts 6 deal with that. 7 But let me say this again now. If the policy is the 8 five percent escape hatch used by the school district to 9 avoid the RIF law, then the statistics don't isolate the 10 effect of this policy on older workers because there is no 11 analysis that compares what actually happened to older 12 workers under this policy versus what would have happened 13 under a RIF. 14 I think, as far as I can tell, the plaintiff's 15 response to that is, essentially, common sense dictates 16 what would have happened under the RIF, and that it's that 17 all of the older workers in the district would have kept 18 their job. I just don't think common sense here is sort 19 of what is necessary under the law. I think I need real 20 evidence in front of me in terms of both what would have 21 happened and the statistical analysis between those two 22 worlds. 23 If on the other hand, the specific facially neutral 24 policy is instead thought of as a combination of 25 displacement plus the subjective hiring decisions of Valarie D. Flora, FCRR, TX-CSR, AR-CCR United States Court Reporter 1 individual schools or principals -- so in this situation, 2 it would be both the decision to displace the teachers at 3 the closed schools and the vacated school or the vacated 4 position at the school that didn't close, plus the sort of 5 hiring decisions of each school or principal in the new 6 schools or the reconstituted school. If that's the kind 7 of facially neutral policy, then there is a -- what I'm 8 going to call a McWhorter problem, referring to McWhorter 9 against Maynard from the Western District of Arkansas. 10 That case cited, among other cases, the 11 McDonnell-Douglas case, and it explained the need for 12 analyzing the difference between the number of older 13 teachers that were there before the facially-neutral event 14 occurred and the number of older teachers that ended up in 15 all of these new schools -- hired into all of these new 16 positions. I don't think the plaintiff's expert has done 17 that.
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1 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS 2 CENTRAL DIVISION 3 JOYCE ASBERRY 4 Plaintiff 5 Vs. No. 4:21-cv-00875-LPR August 1, 2023 6 Little Rock, Arkansas LITTLE ROCK SCHOOL DISTRICT 7 Defendant 8 9 10 11 RULING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 12 BEFORE THE HONORABLE LEE P. RUDOFSKY 13 UNITED STATES DISTRICT JUDGE 14 15 16 APPEARANCES: 17 On Behalf of the Plaintiff: 18 MICHAEL MUSKHELI Mitchell Blackstock Wright & Alagood, PLLC 19 1001 West Third Street Little Rock, Arkansas 72201 20 On Behalf of the Defendant: 21 CHRIS J. HELLER 22 Friday, Eldredge & Clark, LLP 400 West Capitol Avenue, Suite 2000 23 Little Rock, Arkansas 72201 24 Proceedings reported by machine stenography and 25 displayed in realtime; transcript prepared utilizing computer-aided transcription. Valarie D. Flora, FCRR, TX-CSR, AR-CCR United States Court Reporter 1 THE COURT: First, in terms of the sort of 2 factual background here, I am not going to go over all of 3 the factual background. What I am going to do is adopt 4 what is admitted to with clean admissions. And by "clean 5 admissions," I mean either the party saying, just admit, 6 or the party saying, I admit this much but no more. I am 7 going to adopt the clean admissions in Document 38, which 8 is plaintiff's response to defendant's statement of 9 undisputed material fact, and the clean admissions in 10 Document 33, which is LRSD's response to plaintiff's 11 statement of undisputed material facts. 12 For purposes of the rulings I am going to make 13 today, I think that is sufficient as a background. I 14 don't think there is anything further I need in terms of 15 background. 16 In terms of my ruling, here is why I am granting 17 defendant's summary judgment motion on the outstanding 18 claim, which is the disparate impact claims. First, there 19 is what I will call a McDonnell-Douglas issue that 20 plaintiffs really can't surmount, at least down here at 21 the district court level. And I'm referring to the case 22 set forth at 191 F.3d 948, Eighth Circuit. I believe it's 23 1999, but don't quote me on the exact date. And here is 24 the general issue. 25 In that case, the Eighth Circuit made it pretty Valarie D. Flora, FCRR, TX-CSR, AR-CCR United States Court Reporter 1 clear that in the Eighth Circuit a disparate impact 2 analysis can only be done on a basis of under 40 versus 40 3 and over, so on a full, I guess what I will call, older 4 worker group as opposed to subgroups within the over 40 5 range or the 40 and over range. 6 The problem there for plaintiffs, of course, is that 7 plaintiff's expert analysis -- their statistical analysis 8 is based on a group of older teachers, 60 and older. And 9 while other circuits -- namely, the Third, but maybe some 10 others that I haven't seen -- say that's okay, it's not 11 okay yet in the Eighth Circuit. And, in fact, the Eighth 12 Circuit has affirmatively ruled that it's not okay and you 13 can't do it by subgroup. 14 I think I made clear in my questioning today that 15 I'm not sure the McDonnell-Douglas decision comes out the 16 right way and is the right understanding of the relevant 17 statutory language and whatever gloss has already been 18 made in various other parts of disparate either treatment 19 or impact analysis by the Supreme Court, but that's an 20 issue that's above my pay grade. The Eighth Circuit will 21 have to decide either whether it thinks that there's any 22 Supreme Court case that means they can sort of -- a 23 three-judge panel can overrule a prior panel or whether it 24 needs to take it en banc and wants to take it en banc to 25 consider overruling itself. I personally don't think Valarie D. Flora, FCRR, TX-CSR, AR-CCR United States Court Reporter 1 there is any clear Supreme Court precedent that would 2 allow me to say the McDonnell-Douglas rule of the Eighth 3 Circuit doesn't apply. So that's issue number one. 4 I'm tempted to stop there, but I am going to add one 5 more issue because I also think it is a fairly clear, 6 clean, legal issue that it will help if -- assuming this 7 case goes up to the Eighth Circuit, it will help if the 8 Eighth Circuit gives some guidance on, if it ends up -- if 9 the Eighth Circuit ends up sending the case back down here 10 again. And this is what I am going to call the Clark V. 11 Matthews and McWhorter issue. 12 The Clark V. Matthews case is 628 F.3d 462. In that 13 case, it's pretty clear that for a prime facie case, one 14 of the things that -- one of the burdens that is on the 15 plaintiff is to identify a specific facially neutral 16 policy or policies and statistically analyze the impacts 17 of that policy or policies on older workers. 18 I'm intentionally saying "older workers" here 19 because I'm trying to avoid the 40-year-old or 60-year-old 20 subgroup issue. This is a sort of separate issue. 21 Obviously, there's some bleed over, but it's also a 22 separate issue. 23 The problem here for plaintiffs is what I believe is 24 a mismatch between the identified policy and the 25 statistical analysis that the plaintiffs have provided. Valarie D. Flora, FCRR, TX-CSR, AR-CCR United States Court Reporter 1 On one hand, if the policy is what I'm going to call the 2 five percent escape hatch used by the school district to 3 avoid the RIF law -- and I say that merely as a 4 descriptive matter, not suggesting whether or not that's 5 appropriate under current state law. Let the state courts 6 deal with that. 7 But let me say this again now. If the policy is the 8 five percent escape hatch used by the school district to 9 avoid the RIF law, then the statistics don't isolate the 10 effect of this policy on older workers because there is no 11 analysis that compares what actually happened to older 12 workers under this policy versus what would have happened 13 under a RIF. 14 I think, as far as I can tell, the plaintiff's 15 response to that is, essentially, common sense dictates 16 what would have happened under the RIF, and that it's that 17 all of the older workers in the district would have kept 18 their job. I just don't think common sense here is sort 19 of what is necessary under the law. I think I need real 20 evidence in front of me in terms of both what would have 21 happened and the statistical analysis between those two 22 worlds. 23 If on the other hand, the specific facially neutral 24 policy is instead thought of as a combination of 25 displacement plus the subjective hiring decisions of Valarie D. Flora, FCRR, TX-CSR, AR-CCR United States Court Reporter 1 individual schools or principals -- so in this situation, 2 it would be both the decision to displace the teachers at 3 the closed schools and the vacated school or the vacated 4 position at the school that didn't close, plus the sort of 5 hiring decisions of each school or principal in the new 6 schools or the reconstituted school. If that's the kind 7 of facially neutral policy, then there is a -- what I'm 8 going to call a McWhorter problem, referring to McWhorter 9 against Maynard from the Western District of Arkansas. 10 That case cited, among other cases, the 11 McDonnell-Douglas case, and it explained the need for 12 analyzing the difference between the number of older 13 teachers that were there before the facially-neutral event 14 occurred and the number of older teachers that ended up in 15 all of these new schools -- hired into all of these new 16 positions. I don't think the plaintiff's expert has done 17 that. 18 The problem there is, among other problems, we don't 19 know, for example, if many older workers who were 20 displaced and applied for these new jobs were not hired, 21 but they weren't hired because other 60-year-old or other 22 70-year-old workers were hired from outside the district. 23 That may be some kind of problem, but it's not a disparate 24 impact problem potentially. 25 Of course, I don't know the differences. I don't Valarie D. Flora, FCRR, TX-CSR, AR-CCR United States Court Reporter 1 know the numbers, I don't know the statistics because they 2 weren't provided by plaintiff's counsel and by the expert. 3 I think those are the real hard core legal issues 4 for this to go up to the Eighth Circuit the first time on. 5 And, hopefully, the Eighth Circuit will give answers on 6 both -- arguably there are three issues in here, maybe 7 two. Whatever there are, hopefully, the Eighth Circuit 8 will give us answers on all of them. 9 And I guess on one hand, they could affirm me and the 10 case goes away, at least this iteration of the case. On 11 the other hand, the Eighth Circuit could change course on 12 the McDonnell-Douglas issue and could provide a little bit 13 more clarity on the -- what I guess I'll call the 14 Clark/McWhorter issues, and it will come back here and 15 we'll see -- the case will come back down here and we'll 16 see where to go from there. 17 * * * * * 18 REPORTER'S CERTIFICATE 19 I, Valarie D. Flora, FCRR, RPR, certify that the foregoing 20 is a correct transcript of proceedings in the above-entitled 21 matter. 22 Dated this the 1st day of August, 2023. 23 /s/ Valarie D. Flora, FCRR 24 ------------------------- 25 United States Court Reporter Valarie D. Flora, FCRR, TX-CSR, AR-CCR United States Court Reporter