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