_____________

No. 95-4024EA

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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. *

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Submitted: September 9, 1996

 Filed: July 10, 1997

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Before FAGG, HEANEY, and BEAM, Circuit Judges.

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FAGG, Circuit Judge.

In his 1994 campaign for Pulaski County sheriff, Randy Johnson

capitalized on the sorry state of affairs in the newly opened Pulaski

County Jail, promising, if elected, to make changes in the jail's

administration. After Johnson won, he notified Captains Richard Day, the

jail's administrator, and Calvin Hollowell, head of the jail's troubled

intake area, they would not be reappointed to their positions. Day and

Hollowell are black, and Johnson is white. Before Johnson took office, and

while Day and Hollowell were still employed by Johnson’s predecessor

Sheriff Gravett, Day and Hollowell filed suit against Johnson and the

Pulaski County 
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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 First and Fourteenth Amendments. Johnson was ordered to

retain Day and Hollowell pending trial. The district court ruled for Day

and Hollowell on their Title VII claims and for Hollowell on his § 1983

free speech claim. As a remedy, the district court ordered Johnson to

place Day and Hollowell in unspecified captain-level positions. Johnson

appeals, and we reverse.

When he was appointed jail administrator in January 1993, Day became

chair of the committee charged with managing the upcoming transition from

the old to the new jail. The committee discussed at length the likelihood

that the new jail’s housing units would quickly become overcrowded. When

overcrowding became a reality shortly after the new jail opened in August

1994, however, Day acted like a man caught unawares. Although others

disagreed, Day put the overflow from the housing units in the jail's intake

area, the hub of the new jail's entire operation. Every person arrested

in Pulaski County must be processed through intake, and every jail inmate

transported to the local courts must go out through intake. Day's decision

to turn intake into a full-blown housing unit turned out badly for those

housed there. The miserable living conditions caught the attention of the

Arkansas Democrat-Gazette, which reported them in widely read stories that

neither Day nor Hollowell disputed at trial. Hollowell believed the

conditions were unconstitutional. Up to 120 inmates at a time lived in the

intake area, sharing twelve toilets and three showers, sleeping and

sometimes even eating on the floor. Conditions were filthy. Unlike

inmates held in the jail's housing units, inmates in intake could not

receive family visits and were denied access to the outdoor exercise area.

Intake staff had to meet inmates' daily 
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living needs, distracting staff from inmate processing and making the

logjam still worse. A number of staff quit under the pressure, leaving

vacancies that went unfilled. Moreover, inmates waiting in intake for

transportation to court often got lost in the crowd, turning up in court

hours late and sometimes not at all. One municipal 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 and

disruptive, it was dangerous. Unlike properly housed inmates, who are

segregated by sex, criminal history, and type of offense, inmates in intake

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 major riot.” Day complicated

matters by keeping the 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 “crisis

management” on his part, Day was unfamiliar with the county’s hiring

policies, and merely acquiesced in Sheriff Gravett’s mistaken belief that

vacancies could not be filled until the departing deputies’ accrued

vacation time had elapsed. In fact, vacant positions could be filled

immediately.

Day doggedly stuck with his failed intake policy, despite front-page

newspaper coverage of intake’s deplorable condition and instructions from

Sheriff Gravett to move the overflow into the housing units. In midOctober Hollowell entered the picture when he replaced Captain Talley as

head of intake and prisoner transportation. Hollowell had been familiar

with intake's problems since at least early September, when he reported

those problems to the district court on Sheriff Gravett's orders.

Hollowell also 
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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 and

inmate transportation failed to improve under Hollowell's supervision.

Hollowell made matters worse when he decided to cure overcrowding by

releasing, without the 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 county

prosecutor and two local judges. Although Hollowell apologized and Sheriff

Gravett condoned Hollowell's action, Johnson agreed with the prosecutor,

the judges, and the public that the release was a clear sign of

"exceedingly bad judgment" on Hollowell’s part. 

In Arkansas, when a sheriff’s term in office expires, so do the

appointments of the sheriff’s deputies. This puts the newly elected

sheriff in a position to assemble a competent workforce that meets the new

sheriff’s expectations. After he was elected, Johnson interviewed all

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 intake 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 Police

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 for

the county prosecutor, also advised against keeping Day and Hollowell based

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 
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observed Day's leadership when Kincaid worked with the transition committee

Day chaired. Based on what he saw, Kincaid told Johnson that Day was not

an effective administrator.

On December 12, 1994, Johnson informed Day and Hollowell they would

not be reappointed to their posts. After taking office on the first of

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 nor the district court questioned Kincaid’s qualifications for this

position. Jail conditions improved under Kincaid's leadership: intake was

restored to its intended purposes, disciplinary proceedings against

disruptive inmates declined, and the jail’s failures in transporting

inmates to court were eliminated.

Johnson made very few personnel moves when he took office. Out of

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 left

voluntarily, all of them white. Day and Hollowell were the only blacks

whom Johnson did not reappoint. Johnson transferred Captain Talley, who

is black and who had moved to the enforcement division when Hollowell took

over intake, back to detention. Johnson also promoted two deputies to

lieutenant, both black. Although Johnson inherited a Department with a

detention division that historically has employed a higher proportion of

blacks than enforcement, neither Day nor Hollowell contended, nor did the

district court find, that the Department’s racial composition reflected

race discrimination. Johnson's employment decisions have left that

composition virtually undisturbed.
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Johnson testified 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 would

manage in the way Johnson wanted." Johnson testified he rejected Hollowell

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 "job performance and the perception of that job performance" by the

public. In keeping with Johnson’s stated reasons, the district court found

the new jail was “chaotic” and understaffed, with a “deplorable” intake

area that posed “a security risk.” The district court also found that

inmates were “delivered to court late,” and acknowledged that Johnson

genuinely believed Hollowell'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 finding of intentional discrimination

for clear error. See Fed. R. Civ. P. 52(a); St. Mary's Honor Ctr. v.

Hicks, 509 U.S. 502, 524 (1993). A finding is clearly erroneous if it

lacks substantial evidence to support it, see Johnson v. Arkansas State

Police, 10 F.3d 547, 552 (8th Cir. 1993), or if, even when there is

evidence to support the finding, the reviewing court on the entire evidence

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 accept

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.

1996). Because Day and Hollowell produced no direct evidence of

discriminatory intent, we must decide whether they introduced sufficient

circumstantial evidence to permit the district court reasonably to infer

that Johnson's expressed reasons were unworthy of belief, see Texas Dept.

of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981), and that

intentional discrimination was the real reason Johnson rejected Day and

Hollowell, see Hicks, 509 U.S. at 515. In other words, even when an

employee presents some circumstantial evidence of pretext, a finding of

intentional discrimination is clearly erroneous if the finding lacks

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. KARE

11, 108 F.3d 832, 848 (8th Cir. 1997) (en banc) (Part I.A. of concurring

and dissenting opinion, in which eight active judges joined), petition for

cert. filed, 65 U.S.L.W. 3694 (U.S. Apr. 4, 1997) (No. 96-1571). Reviewing

the evidence relied on by the district court, we conclude Day and Hollowell

failed to present sufficient circumstantial evidence for the district court

reasonably to infer that Johnson's stated reasons were a coverup for racial

discrimination.

To begin with, the district court was clearly mistaken in its view

that Johnson was too poorly informed to make an honest assessment of Day's

and Hollowell's job performances. The district court made light of

Johnson’s reliance on news accounts despite its recognition that the jail’s

problems were thoroughly aired in media reports that Day and Hollowell

never challenged. Johnson was also informed by “general talk in the

community,” which included the opinions of local police officers and

prosecutors, sources public employers like Johnson may rely on. See Waters

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 “chaotic” and “deplorable” state, what Johnson saw during

his visits would be enough reasonably to convince an observer in Johnson’s

position that the jail’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 and

Hollowell's qualifications with Sheriff Gravett undermined the plausibility

of Johnson's nondiscriminatory explanation. We disagree. Johnson was

entitled to put little stock in what Gravett might say about Day’s and

Hollowell’s current job performances because Johnson could evaluate their

performances himself. Further, Gravett's assessment of Day's and

Hollowell's work histories sheds no light on whether Johnson honestly based

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 “too

broad to withstand scrutiny” 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 and

failed to resolve. As the district court found, "everyone involved with

the planning of the new jail anticipated that it would be overcrowded," and

"[s]taff turnover was also expected." Likewise, Hollowell knew about these

problems before he took over intake and transportation, and he was unable

to deal with the problems despite his forewarning. Johnson was also

justified in relying on Hollowell’s release of unbailable felons into the

community as a reason for rejecting him. The district court found

Johnson’s reliance was pretextual because Sheriff Gravett condoned the 
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release and Hollowell apologized and promised never to do it again. The

focus of the pretext inquiry is Johnson’s motivation, however, and neither

Gravett’s approval nor Hollowell’s promises cast any doubt on the sincerity

of Johnson’s belief that Hollowell had shown bad judgment.

According to the district court, the "most telling" evidence of

pretext was Johnson's appointment of three whites to the top posts in his

administration. Although the district court recognized Johnson had the

right to hire anyone he wanted for these policymaking 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

Hollowell are captains and have earned four-year college degrees, but

Johnson’s top three officers have not graduated from college, and only one,

Bradley, had made captain in the NLRPD. Contrary to the district court's

view, comparing resumes is meaningless because Day and Hollowell were not

candidates for any of the positions Bradley, Polk, and Scarborough

received. Disparate treatment of black and white employees who are not

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.3d

968, 972 (8th Cir. 1994). Besides, there is powerful evidence that Day and

Hollowell mismanaged the jail despite their fine resumes.

Although Johnson made approximately 350 employment decisions when he

took office, the district court believed Johnson’s treatment of one black

officer, Captain Talley, was "probative of Johnson's discriminatory

attitude." Johnson moved Talley back to detention without asking him if

he wanted to move, but Johnson asked a white captain who had no experience

in the new jail, Jimmy White, if he wanted to remain in his current

position and left him 
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there. Setting aside that Talley and White were not similarly situated,

the district court’s concern about Talley is misplaced because any

disparate 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 preferred to stay in enforcement, we see nothing amiss in

Johnson’s decision to move Talley back to an administrative position in

detention to shore up the jail’s troubled operation. Talley experienced

the jail’s failures when carrying out Day’s directions, which he disagreed

with, before Day appointed Hollowell to head intake. Having promised the

voters he would solve the jail’s problems, Johnson needed the steadying

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. 

The district court found more evidence of Johnson’s discriminatory

attitude in a career-path policy Johnson established after he took office.

Because Johnson considers the Department’s enforcement and detention

divisions as separate career paths requiring different skills and training,

Johnson wants to minimize cross-divisional transfers to take advantage of

the expertise that comes with extended experience within a division.

Without addressing this race-neutral reason, the district court took the

view that Johnson’s policy will “lock African-Americans in what is

considered by some as . . . less desirable position[s] in detention,” which

“traditionally has had a larger percentage of African-American employees”

than enforcement. The record does not support the district court’s view,

however. In the first place, Johnson’s career-path policy is irrelevant

to Day’s and Hollowell’s claims because it was not adopted until after

Johnson decided against their reappointment. Besides, Johnson inherited

the racial imbalance from his predecessors, and Day and Hollowell never

alleged, nor did the district court find, any racial discrimination in the

hiring practices of the earlier sheriffs. Also, the 
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district court is mistaken that blacks are “lock[ed]” into detention

“without the opportunity to work in enforcement.” In uncontradicted

testimony, Johnson made clear that under his policy, deputies in detention

remain free to apply for available positions in enforcement (and vice

versa), they receive preference over outsiders, and they switch divisions

without loss of salary or seniority. They may have to start anew to earn

rank only because their expertise in the division they left does not

necessarily qualify them to exercise command in their new division.

Although the district court’s findings do not reveal who feels jobs in

detention are “less desirable” or why, those views shed no light at all on

Johnson’s attitude. Actually, the district court’s findings about the

sorry state of affairs 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 erroneously

believed Johnson’s appointees lacked "personal knowledge" about Day and

Hollowell and thus found their advice “suspect.” But Kincaid worked with

Day on the new jail’s transition committee. Bradley and Polk knew all they

needed to know from news reports of the jail’s turmoil and from

conversations with local 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 during

his campaign for election, 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 
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anyone’s race, and the mere fact Johnson's closest 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 and

Hollowell, the district court felt it was "incredible" Johnson would reject

veteran, well-educated employees with years of satisfactory service in the

Department. Thus, declaring Day and Hollowell "competent captain[s]," the

district court ordered Johnson to place them in unspecified positions "at

the captain level." Because there is a difference between performing a job

and holding a rank, a court applying Title VII must ask whether the job

applicant was qualified for a particular available position, not whether

the applicant is an otherwise deserving rankholder. See Burdine, 450 U.S.

at 253. No doubt Day and Hollowell advanced in rank over the years because

they ably handled the positions their increasing rank progressively

entitled them to fill. They failed, however, to measure up to their most

recent assignments, and rank earned through satisfactory performance in

other positions does not insulate them from the consequences of failure in

their positions at the new jail. The district court’s strongly held

feeling that Johnson should have paid attention to Day’s and Hollowell’s

positive past accomplishments “is nothing more than an attack on

[Johnson’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 selection 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 Day

and Hollowell for other positions, Day and Hollowell never 
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showed interest in any other specific positions, suggested bumping other

captains in their favor, or indicated their willingness to accept demotions

so they might fill lesser positions. Johnson did not discriminate against

Day and Hollowell when he did not consider them for positions they did not

seek. See Tart v. Levi Strauss & Co., 864 F.2d 615, 618 (8th Cir. 1988).

Although we understand the district court’s disappointment that Day and

Hollowell lost their jobs, federal courts are not self-appointed personnel

managers, and they may not second-guess the fairness or wisdom of an

employer’s nondiscriminatory employment decisions. See Aucutt v. Six Flags

Over Mid-America, Inc., 85 F.3d 1311, 1317 (8th Cir. 1996); Harvey, 38 F.3d

at 973.

The district 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 wideranging search for hints of pretext, the district court overlooked

substantial evidence that, job performances aside, Johnson rejected Day and

Hollowell for political reasons. Assuming Day and Hollowell did the best

anyone could do under the circumstances at the new jail, the situation

looked bad, and they paid the political price for being in the wrong place

at the wrong time. Johnson acknowledged he was concerned about the

public’s perception of their job performance. Viewing the facts as

sympathetically to Day and Hollowell as we can, Day and Hollowell emerge

as political scapegoats, forced out by Johnson to make good on his campaign

pledge. In sum, we are convinced Day and Hollowell lost their jobs because

they either were or seemed 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 his

§ 1983 free speech claim. In 1979, the District Court for the 
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Eastern District of Arkansas assumed jurisdiction over the old Pulaski

County jail under the terms of a consent decree. About a month after the

new jail opened, the district court contacted Hollowell and asked about

jail conditions. The district court found Hollowell communicated with the

district court as part of his duties as the Department’s public information

officer and at the direction of Sheriff Gravett. During Hollowell's

employment interview, Johnson told Hollowell he disfavors federal court

oversight of the new jail. The district court believed Johnson's view was

a reasonable one, and recognized as well that neither “[S]heriff [Gravett]

[n]or anybody else” wanted federal supervision. Johnson also told

Hollowell he disagreed with Hollowell's having gone to the district court.

When Johnson gave Hollowell notice he would not be retained, Hollowell felt

Johnson was retaliating against him for speaking to the court. The

district court agreed.

A public employee's speech enjoys limited protection under the First

Amendment. See Connick v. Myers, 461 U.S. 138, 154 (1983). Whether

Hollowell's speech was protected is a question of law we review de novo.

See Mumford v. Godfried, 52 F.3d 756, 760 (8th Cir. 1995). Because

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). Although

Hollowell’s conversation with the district court about jail conditions was

not put into evidence, we glean from the record that Hollowell’s report

left no doubt about the dismal situation at the new jail, which Hollowell

did nothing to make better and made even worse through his felon release.

Consequently, even if Hollowell's speech were protected, his failings as

head of intake and transportation 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.

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

We thus reverse 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 captain level. Because Day

and Hollowell are no longer prevailing parties, we also reverse the

district court's award to them of costs and attorney's fees. See Pottgen

v. Missouri State High Sch. Activities Ass’n, 103 F.3d 720, 723-24 (8th

Cir. 1997).

HEANEY, Circuit Judge, concurring and dissenting.

I respectfully dissent from the majority’s reversal of the district

court’s judgment for Day and Hollowell on their claims under Title VII.1

I have no quarrel with the legal standard as outlined by the majority and

applied by the district court in rendering its decision. I also believe

that the result reached by the majority is one that a trier of fact could

have reached given the evidence presented at trial. Were the majority the

factfinder, I would not hesitate to join in its opinion. But the district

court is the trier of fact and it had the responsibility to examine the

evidence and to draw the permissible inferences from that evidence. I do

not believe the district court’s finding of intentional discrimination was

clearly erroneous and I would affirm. 

The district court discredited Johnson’s explanation for not

retaining Day and Hollowell. Although the court acknowledged that 
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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 and

delay caused by the lawsuit over control of the jail. Particularly

Hollowell, who was not even in charge of intake at the jail until after the

conditions were publicized, could not be considered responsible for the

problems at the jail. The district court also found the circumstances

surrounding Johnson’s decision not to retain Day and Hollowell suspicious:

Johnson knew very little about either Day or Hollowell when he decided not

to retain them and he replaced them with white men whose experience and

qualifications paled in comparison to those of Day and Hollowell. Having

rejected Johnson’s proffered reasons for his employment decisions and

finding the circumstances surrounding those decisions indicative of

discriminatory intent, the district court’s ultimate finding of intentional

discrimination was not clearly erroneous.

A true copy.

Attest:

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