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Dulin v. Board of Commissioners of the Greenwood LeFlore Hospital, No. 10-60095 (5th Cir. Sept. 15, 2011)

In a highly unusual development, a panel of the Fifth Circuit reverses itself in an employment discrimination case, in favor of the plaintiff. It had previously affirmed a Rule 50 judgment as a matter of law granted to the employer - a public hospital - in a § 1981 race discrimination case, but in a two-page per curiam order, it announces that it is vacating and remanding the case back for trial.

The panel's original opinion from July 8, 2011 affirmed the district court's grant of a judgment as a matter of law after the plaintiff rested at trial, but before the case went to the jury.

The plaintiff was the hospital Board Attorney, who was terminated by a vote of the Board, allegedly for "his inattention at Board meetings, his failure to proactively offer legal opinions, and its distrust of his legal advice."

The panel found that the following evidence failed as a matter of law to support a claim that the plaintiff was fired because of his race (white):

♦  The five-person Board included three African-American members.

♦  A local civil-rights organization, the Greenwood Voters' League, specifically agitated for Dulin's ouster, in favor of an African-American candidate.

♦  Scarcely any prior complaints about Dulin's performance have been raised by Board members to the plaintiff or the hospital administrator, and none were raised at the hearing at which he was terminated.

♦  In 2005, at a League meeting where two of the Board members (including the chair) were present, some of the League leadership supposedly "expressed strong opinions at the League meeting that they wanted Dulin replaced with a black attorney, to better represent the black-majority population in Greenwood."

♦  In 2006, at the Board meeting where Dulin was terminated, a Board member stated that "the worst thing [it] could have done [was] come back and fire him at the next meeting [following the 2005 Voters' League meeting]."

♦  Following Dulin's ouster, no white candidates were considered for the vacancy, and an African-American was chosen to be the new Board Attorney in 2007. There were no standards posted for the position and the Board apparently knew only that the replacement was a "licensed practicing attorney."

The panel (in a 2-1 decision) affirmed the judgment as a matter of law, with Judge Barksdale dissenting in part, finding that the evidence did not support an inference of racial discrimination.

Now comes the panel two months later, and unanimously reverses its prior decision. Minus some boilerplate, here's the entire rehearing order:

"The petition for rehearing is GRANTED. We WITHDRAW our earlier opinion, Dulin v. Board of Commissioners of Greenwood Leflore Hospital, 646 F.3d 232 (5th Cir. 2011), in its entirety, and substitute the following:

"We have reconsidered our opinion in the light of the Supreme Court's holding in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148 (2000) that a 'plaintiff's prima facie case [of discrimination], combined with sufficient evidence to find that the employer's asserted justification [for termination] is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.' Upon reconsideration, we now conclude that There is a triable issue of fact that requires a jury to decide fact and credibility issues. See id. at 150 ('Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.' (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)) (internal quotation marks omitted)). We hold that the district court reversibly erred in granting judgment as a matter of law under Federal Rule of Civil Procedure 50(a) to the Board of Commissioners on Dulin's claim under 42 U.S.C. § 1981. Consequently, the judgment of the district court is VACATED, and the case is REMANDED for further proceedings consistent with this order."

Cheered though the plaintiff's bar should be for the panel's belated wisdom, it would be helpful to know (and perhaps not too much to ask) what exactly changed its mind.

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