_____________ No. 95-4024EA

_____________ Richard Day; Calvin Hollowell, * * Plaintiffs-Appellees, * * v. * * Randy Johnson, Pulaski County * Appeal from the United States Sheriff Elect; * District Court for the Eastern * District of Arkansas. Defendant-Appellant, * * Pulaski County Sheriff's * Department, * * Defendant. *

_____________ Submitted: September 9, 1996 Filed: July 10, 1997

_____________ Before FAGG, HEANEY, and BEAM, Circuit Judges.

_____________ FAGG, Circuit Judge. In his 1994 campaign for Pulaski County sheriff, Randy Johnso n capitalize d on the sorry state of affairs in the newly opened Pulask i Count y Jail, promising, if elected, to make changes in the jail' s administration. Afte r Johnson won, he notified Captains Richard Day, the jail's administrator, and Calvin Hollowell, head of the jail's trouble d intake ar ea, they would not be reappointed to their positions. Day an d Hollowell are black, and Johnson is white. Before Johnson took office, an d while Day and Hollowell were still employed by Johnson’s predecesso r Sheriff Gravett, Day and Hollowell filed suit against Johnson and th e Pulaski County

### -2-

Sheriff's Department (the Department) under 42 U .S.C. §§ 2000e to 2000e-17 (1994) (Title VII) and 42 U.S.C. § 1983 (1994), claiming Johnson decided not to reappoint them because of their race and in retaliation for speech protected by the Firs t and Fourteenth Amendments. Johnson was ordered to retain Day and Hollow ell pending trial. The district court ruled for Day and Hol lowell on their Title VII claims and for Hollowell on his § 198 3 free speech claim. As a remedy, the district court ordered Johnson t o place Day and Hollowell in unspecified captain-level positions. Johnson appeals, and we reverse. When he was appointed jail administr ator in January 1993, Day became chair of the committe e charged with managing the upcoming transition from the old to the new jail. The committee discusse d at length the likelihood that the new jail’s h ousing units would quickly become overcrowded. When overcrowding became a reality shortly after the new jail opened in August 1994, howe ver, Day acted like a man caught unawares. Although other s disagreed, Day put the overflow from the housing units in the jail's intak e area, the hub of the new jail's entire operation. Every person arrested in Pulaski County mus t be processed through intake, and every jail inmate transported to the local courts must go out through intake. Day's decisio n to turn intake into a full-blown housing unit turned out badly for those housed there. The miserable living conditions c aught the attention of the Arkansas Democrat-Gazette , which reported them i n widely read stories that neit her Day nor Hollowell disputed at trial. Hollowell believed th e conditions were unconstitutional. Up to 120 inmates at a time lived in th e intake area, sharing twelve toilets and three showers, sleeping an d
some times even eating on the floor. Conditions were filthy. Unlik e inmates he ld in the jail's housing units, inmates in intake could no t receive family visits and were denied access to the outdoor exercise area. Intake staff had to meet inmates' daily

### -3-

living needs, distracting staff from inmate processing and making th e logjam st ill worse. A number of staff quit under the pressure, leavin g vacancies that went unfilled. Moreover, inmates waiting in intake fo r transportation to court often got lost in the crowd, turning up in court hours late and sometimes not at all. One munici pal court judge was forced to make his own separate inmate transportation arrangements after having thirteen no-shows in a single day.

Day 's use of intake for housing was not merely unsanitary an d disruptive, it was dangerous. Unlike properly housed inmates, who ar e segregated by sex, criminal history, and type of offense, inmates in intak e were not sorted out. Intake thus held an explosive mix of men and women, violent felons and petty misdemeanants, career criminals and juveniles

. Day believed the conditions were “ripe for a maj or riot.” Day complicated matters by keeping th e jail persistently understaffed. Instead of hiring needed personnel, Day turned back to the county $400,000 in authorized but unused salaries. Although Day believed the jail demanded “crisi s
mana gement” on his part, Day was unfamiliar with the county’s hirin g policies, and merely acquiesced in Sheriff Gravett’s mistaken belief that

vacanc ies could not be filled until the departing deputies’ accrue d vacation t ime had elapsed. In fact, vacant positions could be fille d immediately. Day doggedly stuck with his failed i ntake policy, despite front-page newspaper coverage of intake’s deplorable condition and instructions from She riff Gravett to move the overflow into the housing units. In mid

October Hollowell entered the picture when he replaced Captain Talley as head of intake and prisoner transportation. Hollowell had been familiar wit h intake's problems since at least early September, when he reporte d those problems to the district court on Sheriff Gravett's orders

. Hollowell also

### -4-

informed the media about jail conditions in his role as the Department’s public information officer. Advance notice of intake’s troubles did not help Hollowell either. The district court found intake conditions an d inma te transportation failed to improve under Hollowell's supervision

. Holl owell made matters worse when he decided to cure overcrowding b y releasing, without th e required authorization from a judge or prosecutor,
seven accused felons who were in custody without bail. Hollowell' s shortcut made front-page news, and he was reprimanded by the count y prosecutor and two local judges. Although Hollowell apologized and Sherif f Gravett condoned Hollowell's action, Johnson agreed with the prosecutor, the judge s, and the public that the release was a clear sign o f "exceedingly bad judgment" on Hollowell’s part. In Arkansas, when a sheriff’s term in office expires, so do th e appo intments of the sheriff’s deputies. This puts the newly electe d sheriff in a position to assemble a competent wo rkforce that meets the new sherif f’s expectations. After he was elected, Johnson interviewed al l deputies holding the rank of lieutenant or higher under outgoing Sheriff Gravett to help Johnson decide whom to reappoint . Johnson interviewed Day and Hollowell, among the rest, questioning Day about intake and staffing, and Hollowell about i ntake and the felon release. Johnson also conferred with his new chief deputy Danny Bradley and his operations major Skipper Polk, Johnson's long-time colleagues in the North Little Rock Polic e Department (NLRPD). Bradley opposed rehiring Day and Hollowell based on media accounts of the jail’s turmoil and because local police told Bradley they had lost confidence in the two men. Polk, who had recently worked fo r the county prosecutor, also advised against keeping Day and Hollowell base d
on Hollowell's felon release and on Day’s low regard by the prosecutor's office and local law enforcement. Johnson also spoke with Lowell Kincaid, who served as planning coordinator for the new jail. Kincaid had

### -5-

observed Day's leadership when Kincaid worked with the transition committe e Day chaired. Based o n what he saw, Kincaid told Johnson that Day was not an effective administrator.

On Decemb er 12, 1994, Johnson informed Day and Hollowell they would not be reappointed to their posts. After taking office on the first o f January, Johnson followed through on his campaign promise to put a professional administrator in charge of the new jail by appointing Kincaid to the newly created position of chief of detention operations. Neither Day no r the district court questioned Kincaid’s qualifications for thi s position. Jail conditions improved under Kincaid's leadership: intake wa s restored to its intended purposes, disciplinary proceedings agains t di sruptive inmates declined, and the jail’s failures in transportin g inmates to court were eliminated.

Johnso n made very few personnel moves when he took office. Out o f
a staff of roughly 350 under departing Sheriff Gravett, Johnson rejected only four: Day, Hollowell, and two whites, Gravett’s chief deputy and a lieutenant who opposed Johnson for sheriff. Four other employees lef t voluntari ly, all of them white. Day and Hollowell were the only black s whomJohnson did not reappoint. Johnson transferred Captain Talley, who is black and who had moved to the enforcement di vision when Hollowell took
over intake, back to detention. Johnson also promoted two deputies t o lie utenant, both black. Although Johnson inherited a Department with a detention division that historically has employed a higher proportion of blacks than enforceme nt, neither Day nor Hollowell contended, nor did the district court find, that the Department’s racial composition reflecte d
race discrimination. Johnson's employment decisions have left tha t composition virtually undisturbed.

### -6- Johnson t estified he rejected Day because Day mismanaged the intake
area and left staff positions unfilled. As the district court put it , Johnson’s "bottom line" was that he “did not have confidence that Day woul d manage in the way Johnson wanted." Johnson testified he rejected Hollowel l because Hollowell's felon release showed poor judgment, and also because of intake conditions and inmate transportation failures. Summarizing his reasons, Johnson said he decided not to reappoint Day and Hollowell based

on "j ob performance and the perception of that job performance" by th e public. In keeping with Johnson’s stated reasons, the district court foun d the new jail was “chaotic” and understaffed, with a “deplorable” intak e
area that posed “a security risk.” The district court also found tha t inmate s were “delivered to court late,” and acknowledged that Johnso n genuinely believed Ho llowell's felon release was not "an exercise in good judgment." Notwithstanding these vivid findings , the district court found race was the real reason Day and Hollowell lost their jobs. We review the district court's findi ng of intentional discrimination for clear error. See Fed. R. Civ. P. 52(a); St. Mary's Honor Ctr. v
. Hicks , 5 09 U.S. 502, 524 (1993). A finding is clearly erroneous if i t lac ks substantial evidence to support it, see Johnson v. Arkansas Stat e Police , 10 F.3d 547, 552 (8th Cir. 1993), or if, even when there i s evidence to support the finding, the reviewing court on the entire evidenc e is left with the definite and firm conviction that a mistake has been made , see United States v. United States Gypsum Co. , 333 U.S. 364, 395 (1948). Substantial evidence means "such evidence as a reasonable mind would accep t
as sufficient to support a conclusion." Roberts v. Browning , 610 F.2d 528 , 532 (8th Cir. 1979) ( citing Universal Camera Corp. v. NLRB , 340 U.S. 474, 477 (1951)). Day and Hollowell are entitled to reasonable inferences from the evidence, but inferences must be more than speculation or conjecture to be

### -7-

reasonable. See Hopper v. Hallmark Cards, Inc. , 87 F.3d 983, 988 (8th Cir

. 19 96). Because Day and Hollowell produced no direct evidence o f discriminatory intent, we must decide whether they introduced sufficient circumstantial evidence to permit the district court reasonably to infer that Johnson's expres sed reasons were unworthy of belief, see Texas Dept. of Commun ity Affairs v. Burdine , 450 U.S. 248, 256 (1981), and tha t intent ional discrimination was the real reason Johnson rejected Day an d Hollowell, see Hicks , 509 U.S. at 515. In other words, even when a n employ ee presents some circumstantial evidence of pretext, a finding o f in tentional discrimination is clearly erroneous if the finding lack s plausibility when the evidence is considered as a whole. See Anderson v. City of Bessemer City , 470 U.S. 564, 573-74 (1985); see also Ryther v. KAR E 11 , 108 F.3d 832, 848 (8th Cir. 1997) (en banc) (Part I.A. of concurring and dissenting opinion, in which eight active ju dges joined), petition for cert. filed , 65 U.S.L.W. 3694 (U.S. Apr. 4, 1997) (No. 96-1571). Reviewin g the evidence relied on by the district court, we conclude Day and Hollowel l failed to present sufficient circumstantial evidence for the district cour t reasonably to infer that Johnson's stated reasons were a coverup for racia l discrimination. To begi n with, the district court was clearly mistaken in its vie w that Johnson was too poorly informed to make an honest assessment of Day's and Hollowell's job performances. The district court made light o f Johnson’s reliance on news accounts despite its recognition that the jail’ s problems were thoroughly aired in media reports that Day and Hollowel l
neve r challenged. Johnson was also informed by “general talk in th e
commun ity,” which included the opinions of local police officers an d prosecutors, sources public employers like Johnson may rely on. See Water s v. Churchill , 511 U.S . 661, 676 (1994). Johnson also made his own firsthand observations at the jail, which he visited several times and for

### -8-

several hours at a time. Bolstered by the district court’s finding that intake was in a “chao tic” and “deplorable” state, what Johnson saw during his visits would be enough reasonably to convinc e an observer in Johnson’s position that the jai l’s management had failed. Additionally, the topics Johnson raised in Day 's and Hollowell's interviews--intake, staffing, and the felon release--show Johnson was well aware of the jail's problems in their areas of responsibility. The district court believed Johnson's failure to discuss Day's an d Hollowell's qualifications with Sheriff Gravett undermined the plausibilit y of Joh nson's nondiscriminatory explanation. We disagree. Johnson wa s entitled to put little stock in what Gravett might say about Day’s an d Hollowell’s current j ob performances because Johnson could evaluate their per formances himself. Further, Gravett's assessment of Day's an d Hollowell's work histories sheds no light on whether Johnson honestly base d his employment decisions on their job performances at the new jail. See Dey v. Colt Constr. & Dev. Co. , 28 F.3d 1446, 1460 (7th Cir. 1994). The district court also felt Johnson’s reasons for rejecting Day were “to o broad to withstand sc rutiny” because Johnson blamed Day for things beyond Day's control, like overcrowding and staff turnover. The district court is mistaken. Johnson blamed Day only for problems Day knew were coming an d failed to resolve. As the district court found, "everyone involved with the planning of the new jail anticipated that it would be overcrowded," an d "[s]taff turnover was also expected." Likewise, Hollowell knew about thes e problems before he to ok over intake and transportation, and he was unable to d eal with the problems despite his forewarning. Johnson was als o justified in relying on Hollowell’s release of unbailable felons into the
com munity as a reason for rejecting him. The district court foun d Johnson’s reliance was pretextual because Sheriff Gravett condoned the

### -9-

release and Hollowell apologized and promised never to do it again. The focus of the pretext inquiry is Johnson’s motiva tion, however, and neither Gravett’s approval nor Hollowell’s promises cast any doubt on the sincerit y of Johnson’s belief that Hollowell had shown bad judgment.
According to the district court, the "most telling" evidence o f pretext was Johnson's appointment of three whites to the top posts in his admini stration. Although the district court recognized Johnson had th e right to hire anyone he wanted for these policym aking positions, which are exempt from Title VII under 42 U.S.C. § 2000e(f) , the district court found pretext because Day and Hollowell have better resumes than the appointed whites, Chief Deputy Bradley, Major Polk, and Major Scarborough. Day and Hollow ell are captains and have earned four-year college degrees, bu t Johnson’s top three officers have not graduated from college, and only one , Bradley, had made cap tain in the NLRPD. Contrary to the district court's view, comparing resum es is meaningless because Day and Hollowell were not candid ates for any of the positions Bradley, Polk, and Scarboroug h received. Disparate treatment of black and white employees who are no t similarly situated is not evidence of pretext. See McDonnell Douglas Corp

. v. Green , 411 U.S. 792, 804 (1973); Harvey v. Anheuser-Busch, Inc. , 38 F.3 d 968, 972 (8th Cir. 1994). Besides, there is powerful evidence that Day an d Hollowell mismanaged the jail despite their fine resumes. Although Johnson made approximately 350 employment decisions when he took office, the dist rict court believed Johnson’s treatment of one black officer, Captain Talley, was "probative of Johnson's discriminator y attitude." Johnson moved Talley back to detention without asking him if he wanted to move, but Johnson asked a white cap tain who had no experience in the new jail, Jimmy White, if he wanted to remain in his curren t position and left him

### -10-

there. Setting aside that Talley and White were not similarly situated, the di strict court’s concern about Talley is misplaced because an y dispar ate treatment of Talley is irrelevant to Day's and Hollowell' s claims. See Swapshire v. Baer , 865 F.2d 948, 953 (8th Cir. 1989)

. Although Talley prefe rred to stay in enforcement, we see nothing amiss in Joh nson’s decision to move Talley back to an administrative position i n detention to shore up the jail’s troubled operation. Talley experienced the jail’s failures when carrying out Day’s dire ctions, which he disagreed with, before Day appo inted Hollowell to head intake. Having promised the vot ers he would solve the jail’s problems, Johnson needed the steadyin g hand of competent leadership at the jail, and Johnson's choice of Talley for a top jail position strikes us as a vote of confidence. Th e district court found more evidence of Johnson’s discriminator y attitude in a career-path policy Johnson establi shed after he took office. Be cause Johnson considers the Department’s enforcement and detentio n divisions as separate career paths requiring different skills and training , Johnson wants to mini mize cross-divisional transfers to take advantage of the ex pertise that comes with extended experience within a division

. Without addressing this race-neutral reason, the district court took the view t hat Johnson’s policy will “lock African-Americans in what i s considered by some as . . . less desirable position[s] in detention,” whic h “traditionally has ha d a larger percentage of African-American employees” than enforcement. Th e record does not support the district court’s view, however. In the first place, Johnson’s career-path policy is irrelevant to Da y’s and Hollowell’s claims because it was not adopted until afte r Johnson decided against their reappointment. Besides, Johnson inherited the racial imbalance from his predecessors, and Day and Hollowell neve r alleged, nor did the district court find, any ra cial discrimination in the hiring practices of the earlier sheriffs. Also, the

### -11-

distri ct court is mistaken that blacks are “lock[ed]” into detentio n “witho ut the opportunity to work in enforcement.” In uncontradicte d testimony, Johnson made clear that under his pol icy, deputies in detention remain free to apply for available positions in enforcement (and vic e versa), they receive preference over outsiders, and they switch divisions without loss of salar y or seniority. They may have to start anew to earn rank only because their expertise in the division they left does no t
necess arily qualify them to exercise command in their new division

. Altho ugh the district court’s findings do not reveal who feels jobs i n detention are “less desirable” or why, those vie ws shed no light at all on Johnso n’s attitude. Actually, the district court’s findings about th e sorry state of affair s in the jail drive home the importance of a program that encourages stable careers in detention.
Finally, the district court found evidence of pretext in Johnson’ s conferences with "white friends," appointees Kincaid, Bradley, and Polk, before rejecting Day and Hollowell. The district court erroneousl y believed Johnson’s appointees lacked "personal knowledge" about Day an d Hollowell and thus fo und their advice “suspect.” But Kincaid worked with Day on the new jail’s transition committee. Bradley and Polk knew all the y needed to know from news reports of the jail’s turmoil and fro m conversations with lo cal police officers: Day and Hollowell were running a failed operation. Moreover, the reasons Johnson gave for rejecting Day and Hollowell were not concocted with the after- the-fact help of so-called "white friends" because Johnson promised to make changes at the jail durin g his campaign for elec tion, and neither Day and Hollowell nor the district court suggest Johnson’s campaign was racially motivated. Additionally , there is no evidence that Johnson or his appointees ever made disparaging remarks about

### -12-

anyone’s race, and the mere fact Johnson's close st advisors are white does not render their advice "suspect."

Even though Day and Hollowell failed to discredit the legitimate , nondiscriminatory reasons motivating Johnson’s rejection of Day an d Hollowell, the district court felt it was "incredible" Johnson would rejec t veteran, well-educated employees with years of s atisfactory service in the Department. Thus, declaring Day and Hollowell " competent captain[s]," the district court ordere d Johnson to place them in unspecified positions "at the captain level." Because there is a difference between performing a jo b and hol ding a rank, a court applying Title VII must ask whether the jo b applicant was qualified for a particular available position, not whether the applicant is an otherwise deserving rankhold er. See Burdine , 450 U.S. at 253. No doubt Day and Hollowell advanced in rank over the years becaus e they ably handled the positions their increasing rank progressivel y entitled them to fill . They failed, however, to measure up to their most recent assignments, and rank earned through satisfactory performance i n other positions does not insulate them from the consequences of failure in thei r positions at the new jail. The district court’s strongly hel d feeling that Johnson should have paid attention to Day’s and Hollowell’s positi ve past accomplishments “is nothing more than an attack o n [John son’s] judgment [about] how [he] chose to evaluate [Gravett’s ] employees.” Hutson v. McDonnell Douglas Corp. , 63 F.3d 771, 780 (8th Cir. 1995). As we said of the reduction-in-force sel ection in Hutson , “[t]here is nothing inherently discriminatory” in Johnson’s reliance on Day’s and Hollowell’s recent failures in deciding whether he would include them in his administration. Id. Although the district court faults Johnson for not considering Da y and Hollowell for other positions, Day and Hollowell never

### -13-

showed interest in any other specific positions, suggested bumping other captains in their favor, or indicated their willingness to accept demotion s so they might fill lesser positions. Johnson di d not discriminate against Day and Hollowell when he did not consider them for positions they did not seek. See Tart v. Le vi Strauss & Co. , 864 F.2d 615, 618 (8th Cir. 1988). Althou gh we understand the district court’s disappointment that Day an d Hollowell lost their jobs, federal courts are no t self-appointed personnel

mana gers, and they may not second-guess the fairness or wisdom of a n employer’s nondiscriminatory employment decisions. See Aucutt v. Six Flag s Over Mid-America, Inc. , 85 F.3d 1311, 1317 (8th Cir. 1996); Harvey , 38 F.3 d at 973.

The distr ict court's Title VII findings are also flawed because the district court failed to draw another inference we find inescapable from the record. See Arkansas State Police , 10 F.3d at 552. In its wide

rangin g search for hints of pretext, the district court overlooke d substantial evidence that, job performances aside, Johnson rejected Day an d Hollowell for politic al reasons. Assuming Day and Hollowell did the best anyon e could do under the circumstances at the new jail, the situatio n looked bad, and they paid the political price fo r being in the wrong place at the wr ong time. Johnson acknowledged he was concerned about th e public’s perception of their job performance. Viewing the facts a s sympathetically to Day and Hollowell as we can, Day and Hollowell emerge
as political scapegoats, forced out by Johnson to make good on his campaig n pledge. In sum, we are convinced Day and Hollowell lost their jobs becaus e they either were or s eemed to be responsible for the tangled situation at the new jail, but not because of their race. We turn now to the district court's judgment for Hollowell on hi s § 1983 free speech claim. In 1979, the District Court for the

### -14-

Easter n District of Arkansas assumed jurisdiction over the old Pulask i County jail under the terms of a consent decree. About a month after the
new jail opened, the district court contacted Hollowell and asked abou t jail conditions. The district court found Hollo well communicated with the district court as part of his duties as the Department’s public informatio n offi cer and at the direction of Sheriff Gravett. During Hollowell' s employment interview, Johnson told Hollowell he disfavors federal cour t oversight of the new jail. The district court b elieved Johnson's view was a reasonable one, and recognized as well that ne ither “[S]heriff [Gravett] [n]or anybody else” wanted federal supervision. Johnson also tol d Hollowell he disagreed with Hollowell's having g one to the district court. When Johnson gave Hollowell notice he would not be retained, Hollowell fel t Johnson w as retaliating against him for speaking to the court. Th e district court agreed.
A public employee's speech enjoys li mited protection under the First Amendm ent. See Connick v. Myers , 461 U.S. 138, 154 (1983). Whethe r Hollowell's speech was protected is a question of law we review de novo. See Mumfo rd v. Godfried , 52 F.3d 756, 760 (8th Cir. 1995). Becaus e Hollowell spoke to the district court on orders from his superior and as the Department's public information officer, not as a concerned citizen,

we conclude Hollowell's speech was not protected. See Bausworth v

. Hazelwood Sch. Dist. , 986 F.2d 1197, 1198-99 (8th Cir. 1993). Althoug h Hollowell’s conversation with the district court about jail conditions was not put into evidence, we glean from the record that Hollowell’s repor t left no doubt about t he dismal situation at the new jail, which Hollowell did nothing to make b etter and made even worse through his felon release. Consequently, even if Hollowell's speech were protected, his failings as head of intake and tr ansportation convince us Johnson would have rejected his job candidacy anyway. See Mt.

### I concur in the majority opinion with respect to the 1 

### plaintiffs’ section 1983 free speech claim.

-15- Healthy City Sch. Dist. Bd. of Educ. v. Doyle , 429 U.S. 274, 287 (1977).

We thus r everse the district court's judgment for Day and Hollowell on their Title VII claims, and for Hollowell on his § 1983 First Amendment claim, and we dissolve the injunction compelling Johnson to retain Day and Hollowell in some unspecified positions at the c aptain level. Because Day and Hollowell are no longer prevailing parties, we also reverse th e district court's awar d to them of costs and attorney's fees. See Pottgen
v. Missouri State High Sch. Activities Ass’n , 103 F.3d 720, 723-24 (8t h Cir. 1997).
HEANEY, Circuit Judge, concurring and dissenting.
I respectfully dissent from the maj ority’s reversal of the district court’ s judgment for Day and Hollowell on their claims under Title VII. 1 I have no quarrel wit h the legal standard as outlined by the majority and applied by the district court in rendering its decision. I also believe that the result reach ed by the majority is one that a trier of fact could have reached given the evidence presented at tri al. Were the majority the factfinder, I would not hesitate to join in its opinion. But the district court i s the trier of fact and it had the responsibility to examine th e evidence and to draw the permissible inferences from that evidence. I do not believe the district court’s finding of inte ntional discrimination was clearly erroneous and I would affirm.

The d istrict court discredited Johnson’s explanation for no t retaining Day and Hollowell. Although the court acknowledged that

### -16-

the new facility was severely overcrowded, there was evidence that neither plaintiff was solely responsible for the problems at the jail. The court found that Day and Hollowell attempted to address the problems, but that they were met with lack of cooperation from other county officials an d delay cau sed by the lawsuit over control of the jail. Particularl y Hollowell, who was not even in charge of intake at the jail until after th e condit ions were publicized, could not be considered responsible for th e problem s at the jail. The district court also found the circumstance s surrounding Johnson’s decision not to retain Day and Hollowell suspicious : Johnson knew very little about either Day or Hol lowell when he decided not to retain them and he replaced them with white men whose experience an d qualifications paled in comparison to those of Day and Hollowell. Having rejecte d Johnson’s proffered reasons for his employment decisions an d finding the circumstances surrounding those decisions indicative o f discriminatory intent, the district court’s ultimate finding of intentiona l discrimination was not clearly erroneous.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.