F I L E D

United States Court of Appeals

Tenth Circuit

APR 1 1997

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CHET A. HURD,

Plaintiff-Appellant,

v.

PITTSBURG STATE UNIVERSITY,

Defendant-Appellee.

============================

UNITED STATES OF AMERICA,

 Intervenor.

No. 95-3236

Appeal from the United States District Court

for the District of Kansas

(D.C. No. 92-CV-2253)

Mark A. Buchanan, The Popham Law Firm, P.C., Kansas City, Missouri, for

Plaintiff-Appellant.

Kevin D. Case, Assistant Attorney General, Topeka, Kansas, for DefendantAppellee.

Jessica Dunsay Silver and Seth M. Galanter, Attorneys, Department of Justice,

Washington, D.C., filed a brief for Intervenor. 
-2-

Before SEYMOUR, Chief Judge, PORFILIO, and LUCERO, Circuit Judges.

SEYMOUR, Chief Judge.
1The Eleventh Amendment provides:

The Judicial power of the United States shall not be construed to

extend to any suit in law or equity, commenced or prosecuted against

one of the United States by Citizens of another State, or by Citizens

or Subjects of any Foreign State.

- 3 -

Plaintiff Chet A. Hurd appeals from a jury verdict in favor of defendant

Pittsburg State University on Mr. Hurd’s claim of discrimination under the Age

Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634. After

concluding that Seminole Tribe of Florida v. Florida , 116 S. Ct. 1114 (1996),

does not deprive us of jurisdiction over Mr. Hurd’s claim against the state, we

affirm.

I

BACKGROUND

Mr. Hurd brought this action against Pittsburg State University (PSU),

claiming he was discharged in violation of the ADEA. PSU moved to dismiss on

the basis that, as an agency of the state of Kansas, it was entitled to Eleventh

Amendment immunity from suit in federal court. 1

 The district court rejected that

contention, holding that Congress abrogated state sovereign immunity by enacting

the 1974 amendments to the ADEA. Hurd v. Pittsburg State Univ. , 821 F. Supp.
- 4 -

1410 (D. Kan. 1993) ( Hurd I ). We affirmed on an interlocutory appeal. Hurd v.

Pittsburg State Univ. , 29 F.3d 564 (10th Cir. 1994) ( Hurd II ), cert. denied , 115 S.

Ct. 321 (1994). 

After a jury verdict for PSU, Mr. Hurd moved for a new trial arguing the

district court had erred in overruling his Batson challenge to PSU’s peremptory

strike of the sole African-American juror. The district court denied the motion,

Hurd v. Pittsburg State Univ. , 892 F. Supp. 245 (D. Kan. 1995) ( Hurd III ), and

Mr. Hurd appeals this single issue. While this appeal was pending, the Supreme

Court held in Seminole Tribe that the Interstate Commerce Clause does not

provide authority for Congress to abrogate a state’s immunity from suit under the

Eleventh Amendment. PSU asserted during oral argument on Mr. Hurd’s appeal

that the decision in Seminole Tribe substantially altered the landscape of Eleventh

Amendment jurisprudence, requiring us to reconsider our decision in Hurd II on

PSU’s Eleventh Amendment immunity claim. We asked the parties to file

supplemental briefs on this latter issue. The United States exercised its right

under 28 U.S.C. § 2403(a) to intervene to defend the constitutionality of the

ADEA as it applies to the states. 
- 5 -

II

ELEVENTH AMENDMENT

We first address PSU’s claim that our Eleventh Amendment immunity

determination in Hurd II was overruled by Seminole Tribe . In the case of an

intervening Supreme Court ruling, a single panel is permitted to reconsider a

previous Tenth Circuit decision to the extent the new case law invalidates our

previous analysis. Berry v. Stevinson Chevrolet , 74 F.3d 980, 985 (10th Cir.

1996) (“Absent an intervening Supreme Court or en banc decision justifying such

action, we lack the power to overrule” a previous decision.); United States v.

Platero , 72 F.3d 806, 811 (10th Cir. 1995) (“[A]n intervening change in the law

may serve as a cogent reason for relaxing the doctrine of the law of the case . . .

.”). Because Seminole Tribe did indeed change Eleventh Amendment law, it is

appropriate for us to review its impact on our previous ruling. 

In Seminole Tribe , the Court considered whether Congress could abrogate

state sovereign immunity by enacting the Indian Gaming R EGULATORY Act of

1988 pursuant to the Indian Commerce Clause, U.S. CONST ., art. I, § 8, cl. 3. 

Seminole Tribe , 116 S. Ct. at 1119. To resolve that question, the Court asked:

“first, whether Congress has ‘unequivocally expressed its intent to abrogate . . .

immunity;’ and second, whether Congress has ‘acted pursuant to a valid exercise
- 6 -

of power.’” Id. at 1123 (citations omitted). By applying standards set out in its

prior opinions, the Court concluded that Congress had unquestionably intended to

subject states to suit. Id. at 1123-24. In discussing whether Congress has the

power to abrogate state sovereign immunity, the Court acknowledged it had

previously recognized two sources of authority for abrogation, the Commerce

Clause and section five of the Fourteenth Amendment. Id. at 1125. The Court

then expressly overruled the Union Gas plurality’s conclusion that the Interstate

Commerce Clause constituted authority for abrogation of state sovereign

immunity. Id. at 1128 (overruling Pennsylvania v. Union Gas Co. , 491 U.S. 1

(1989)). Likening the Indian Commerce Clause to the Interstate Commerce

Clause, id. at 1127, the Court held that Congress lacked authority under those

provisions to authorize suits by Indian tribes against the states, id. at 1128, 1131-

32. The Court left untouched case law relying on the Fourteenth Amendment as

authority. Id. at 1128. 

Seminole Tribe thus imposed two significant changes. First, it brought into

sharp focus a two-part test that had been previously only implicitly stated. Id. at

1123 (quoting Green v. Mansour , 474 U.S. 64, 68 (1985)). Second, it invalidated

the Commerce Clause as an appropriate source of authority for abrogation of state

sovereign immunity. Id. at 1128. We apply those principles to this case.

In Hurd I , the district court presciently applied the two-part analysis now
2PSU also asserts that because the Court in Seminole Tribe performed its

analysis of Congress’ intent to abrogate state sovereign immunity before it

analyzed Congress’ power to do so, 116 S. Ct. at 1123, the district court erred

- 7 -

required by Seminole Tribe . Hurd I , 821 F. Supp. at 1412-13. The district court

concluded that the 1974 ADEA amendments were enacted pursuant to Congress’

Fourteenth Amendment authority and that Congress had intended to subject states

to suit. Id. We affirmed the district court and expressly concurred in its

conclusion that Congress had intended to abrogate state sovereign immunity. 

Hurd II , 29 F.3d at 565. We did not specifically state we were adopting the

district court’s conclusion that Congress had acted pursuant to its Fourteenth

Amendment authority; we said only that "we affirm[ed] for substantially the same

reasons given by the district court." Id. PSU now claims in light of Seminole

Tribe that the district court’s reasoning, and therefore our reasoning, was flawed

in several respects. We will consider each of PSU’s arguments. 

A. Intent to Abrogate

PSU contends the district court’s analysis of Congress’ intent to abrogate

was flawed for two reasons: the district court looked to the legislative history of

the ADEA in violation of Seminole Tribe’s express prohibition of such recourse;

and the ADEA’s jurisdictional provisions incorporate language previously found

insufficient by the Court to establish intent to abrogate. 2

 PSU’s concerns about
when it performed the analysis in the reverse order. Aplee.’s Supp. Br. at 6. 

However, the “power” and “intent” inquiries are independent; we discern no

necessary linkage between them beyond the fact they must both be satisfied

before concluding that an act abrogates state sovereign immunity. The likely

reason for the order of analysis propounded by Seminole Tribe is that the more

problematic constitutional “power” inquiry need not be reached if the relatively

straightforward “intent” inquiry is resolved in the negative. 

- 8 -

this part of the Seminole Tribe test are unfounded.

Seminole Tribe reaffirms that Congress’ intent to abrogate state sovereign

immunity must be “‘unmistakably clear in the language of the statute.’” Seminole

Tribe , 116 S. Ct. at 1123 (quoting Dellmuth v. Muth , 491 U.S. 223, 227-28

(1989)). “Legislative history generally will be irrelevant to a judicial inquiry into

whether Congress intended to abrogate the Eleventh Amendment.” Muth , 491

U.S. at 230 (emphasis added). The district court did not rely on legislative

history in the intent-to-abrogate inquiry, Hurd I , 821 F. Supp. at 1413; it relied on

legislative history only in its assessment of whether Congress had the power to

abrogate state sovereign immunity, id. at 1412. PSU is wrong in assuming that

the district court applied legislative history in the intent-to-abrogate prong of the

Seminole Tribe test. 

PSU further argues the district court erred in its evaluation because the

ADEA shared language with a version of the Fair Labor Standards Act, a statute

found not to clearly express Congress’ intent to abrogate, see Employees v.
3We do note here that the Fair Labor Standards Act enforcement provisions

invalidated by Employees v. Missouri Public Health Dept., 411 U.S. 279 (1973),

were specifically amended in 1974 to accommodate the concerns of the Court in

Employees and now authorize suit in any federal court. 29 U.S.C. § 216(b). 

Thus, the enforcement provisions which the ADEA now references specifically

authorize ADEA suits in federal court. 29 U.S.C. § 626(b). The ADEA,

therefore, no longer suffers from the ambiguity which would have prevented it

from passing muster under Employees.

Moreover, rather than calling into question our conclusion that Congress

intended to abrogate state sovereign immunity, the rationale of Employees

bolsters it. Hale v. Arizona, 993 F.2d 1387, 1391 (9th Cir. 1993) (en banc);

Timmer v. Michigan Dept. of Commerce, No. 95-1706, 1997 WL 11361, at *3

(6th Cir. Jan. 15, 1997) (concluding that, by defining employers to include states

under the Equal Pay Act and amending the FLSA enforcement provisions to allow

suit in federal court, Congress intended to abrogate state sovereign immunity).

- 9 -

Missouri Public Health Dept. , 411 U.S. 279, 285 (1973). Employees was decided

long before Seminole Tribe . By raising Employees , PSU is re-arguing an issue

already presented to the district court, Hurd I , 821 F. Supp. at 1413, and decided

by this court, Hurd II , 29 F.3d at 565. As a single panel reviewing a Tenth

Circuit decision, we are strictly concerned with new guidance provided by

Seminole Tribe . We are not at liberty to revisit issues previously decided by this

court and unaltered by Seminole Tribe .

3

 

More importantly, Seminole Tribe does nothing to draw into question our

conclusion regarding congressional intent. On the contrary, the Court there notes

that “numerous references to the ‘State’” as a defendant “make it indubitable that

Congress intended . . . to abrogate the States’ sovereign immunity from suit.” 

Seminole Tribe , 116 S. Ct. at 1124. We have no reason to question our decision
4We are not the only court to conclude that the ADEA, as amended in 1974,

was intended to abrogate state sovereign immunity. Since the 1974 amendments

to the ADEA and the FLSA, the Supreme Court and other lower courts have

uniformly held that Congress expressly intended to abrogate state sovereign

immunity and subject states to suit under the ADEA. Gregory v. Ashcroft, 501

U.S. 452, 467 (1991) (“The ADEA plainly covers all state employees except those

excluded by one of the exceptions.”); EEOC v. Wyoming, 460 U.S. 226, 233

(1983) (“In 1974, Congress extended the substantive prohibitions of the [ADEA] .

. . to . . . State Governments.”); Blanciak v. Allegheny Ludlum Corp., 77 F.3d

690, 695 (3d Cir. 1996) (“The statute simply leaves no room to dispute whether

states and state agencies are included among the class of potential defendants

when sued under the ADEA for their actions as ‘employers.’”); Davidson v.

Board of Governors, 920 F.2d 441, 443 (7th Cir. 1990) (Congress “could not have

made its desire to override the states’ sovereign immunity clearer.”); Ramirez v.

Puerto Rico Fire Serv., 715 F.2d 694, 701 (1st Cir. 1983) (“[T]he ADEA’s

express authorization for the maintenance of suits against state employers

comprises adequate evidence to demonstrate the congressional will that Eleventh

Amendment immunity be abrogated.”).

- 10 -

in Hurd II that Congress intended to abrogate state sovereign immunity by

enacting the 1974 amendments to the ADEA. 4

B. Power to Abrogate

PSU next turns its attention to the second prong of the Seminole Tribe test,

Congress’ power to abrogate state sovereign immunity. This is the area of

analysis most significantly changed by Seminole Tribe , and we will consider it in

some detail.

The district court expressly concluded that the 1974 amendments to the

ADEA were enacted pursuant to Congress’ power under section five of the
- 11 -

Fourteenth Amendment. Hurd I , 821 F. Supp. at 1412. We affirmed that decision

on the basis of the district court’s analysis and by citing two cases from our sister

circuits, both of which held that the 1974 amendments were passed pursuant to

Fourteenth Amendment authority. Hurd II , 29 F.3d at 565 (citing Heiar v.

Crawford County , 746 F.2d 1190, 1194 (7th Cir. 1984) and Ramirez v. Puerto

Rico Fire Serv. , 715 F.2d 694, 700 (1st Cir. 1983)). 

PSU does not dispute that Seminole Tribe left untouched Congress’ power

to abrogate the Eleventh Amendment by exercise of its authority under section

five of the Fourteenth Amendment. Aplee.’s Supp. Br. at 15; Seminole Tribe , 116

S. Ct. at 1125; Timmer , 1997 WL 11361, at *4 (noting that, after the issuance of

Seminole Tribe , "[section five] of the Fourteenth Amendment remains a provision

that vests Congress with the power to abrogate Eleventh Amendment immunity”). 

Instead, PSU asserts that the 1974 amendments to the ADEA were enacted

pursuant to the Commerce Clause not the Fourteenth Amendment. Aplee.’s Supp.

Br. at 15. Because we did not specifically state in Hurd II that we were approving

the district court’s reliance on the Fourteenth Amendment, and because at the

time of our affirmance congressional authority under either the Commerce Clause

or the Fourteenth Amendment would have been sufficient to uphold the district

court, PSU argues we should reconsider the issue. 

Prior to Seminole Tribe , the Supreme Court upheld the general applicability
5Only a few courts have concluded that the 1974 amendments to the ADEA

were enacted solely pursuant to the Commerce Clause. MacPherson v. University

of Montevallo, 938 F. Supp. 785, 789 (N.D. Ala. 1996) (ADEA claim against a

state university dismissed as barred by Eleventh Amendment), appeal filed, No.

96-6947, 11th Cir. 1996; Black v. Goodman, 736 F. Supp. 1042, 1045 (D. Mont.

1990) (ADEA enacted pursuant to Commerce Clause); Farkas v. New York State

(continued...)

- 12 -

of the ADEA to the states by concluding that Congress had exercised its

Commerce Clause power in enacting the ADEA. EEOC v. Wyoming, 460 U.S.

226, 243 (1983) (finding the exercise of this power did not infringe the state’s

implied Tenth Amendment immunity). The Court chose not to decide whether

Congress in passing the 1974 ADEA amendments had also acted pursuant to its

Fourteenth Amendment power. Id. & n.18. Nonetheless, those circuit courts

which have considered the issue have uniformly concluded the 1974 amendments

to the ADEA were enacted pursuant to section five of the Fourteenth Amendment. 

Davidson v. Board of Governors, 920 F.2d 441, 443 (7th Cir. 1990); Heiar v.

Crawford County, 746 F.2d 1190, 1194 (7th Cir. 1984); EEOC v. Elrod, 674 F.2d

601, 603 (7th Cir. 1982); Ramirez v. Puerto Rico Fire Serv., 715 F.2d 694, 699-

700 (1st Cir. 1983) (legislative history of act makes clear Congress’ intent to

enact 1974 amendments pursuant to Fourteenth Amendment authority); Arritt v.

Grisell, 567 F.2d 1267, 1270-71 (4th Cir. 1977) (legislative history makes

enactment pursuant to Fourteenth Amendment authority clear); Santiago v. New

York State Dept. of Correctional Servs., 945 F.2d 25, 31 (2d Cir. 1991) (dicta).5 
5

(...continued)

Dept. of Health, 554 F. Supp. 24, 27 (N.D. N.Y. 1982) (denying retroactive relief

under the ADEA because 1974 amendments to ADEA were not enacted pursuant

to Fourteenth Amendment power). Of those cases, only MacPherson was decided

after the issuance of Seminole Tribe.

- 13 -

PSU suggests that the failure of these courts to utilize the Seminole Tribe

two-part test renders their conclusions on congressional power, and our reliance

on those conclusions, inapposite. We are not persuaded. Although Seminole

Tribe requires courts to ascertain that Congress exercised valid legislative

authority, Seminole Tribe articulates no particular method for determining the

source of that authority. Timmer, 1997 WL 11361, at *7 (“Seminole Tribe says

nothing about the situation presented here where there is a question about whether

Congress legislated pursuant to an unstated Constitutional provision.”). The only

recent guidance the Court has offered on determining which of Congress’ powers

it utilized in attempting to abrogate state sovereign immunity was in dicta, some

five years before the issuance of Seminole Tribe. Gregory, 501 U.S. at 469-70

(denying applicability of ADEA to state judges after concluding that Congress’

intent to include these employees was not clearly enough stated regardless of

whether the authority to abrogate derived from the Commerce Clause or

Fourteenth Amendment power). The Court stated “‘we should not quickly

attribute to Congress an unstated intent to act under its authority to enforce the

Fourteenth Amendment.’” Id. at 469 (quoting Pennhurst State Sch. & Hosp. v.
6PSU also argues that Kansas could effectively deter age discrimination

without the necessity of ADEA suits against it in federal court. We do not

disagree with that proposition, but it is not relevant to our determination today. 

Seminole Tribe takes no note of a state’s ability to provide alternative remedies or

protections. Rather, Seminole Tribe proposes a two-prong test for determining

whether Congress appropriately abrogated the states’ Eleventh Amendment

immunity from suit, both prongs of which have been met here.

- 14 -

Halderman, 451 U.S. 1, 16 (1981)). The Sixth Circuit has recently interpreted

this statement in a case involving the Equal Pay Act: 

[A] court should carefully consider the propriety and effect of

concluding that Congress has acted pursuant to § 5. . . . [T]he Court

did not suggest that a court should never infer congressional intent to

legislate pursuant to § 5 of the Fourteenth Amendment, but rather

that it should first consider a number of factors before making such

an inference.

Timmer, 1997 WL 11361, at *6. The courts on which we rely for review of

Congress’ power to extend the ADEA to the states in no way flout the cautionary

note in Gregory; each gave careful and measured consideration to Congress’

source of authority in enacting the 1974 amendments. Ramirez, 715 F.2d at 698-

700; Elrod, 674 F.2d at 604-609; cf. EEOC v. Wyoming, 460 U.S. at 243 n.18

(approving the use of legislative history to determine the source of congressional

authority). We are as persuaded now by the reasoning in these cases as we no

doubt were when we relied on them in Hurd II.

6

 

In sum, nothing in Seminole Tribe requires us to alter our implicit

conclusion in Hurd II that the legislative history of the 1974 amendments to the
- 15 -

ADEA reflects a purpose consistent with the Fourteenth Amendment and that

Congress acted pursuant to its powers under the Fourteenth Amendment when it

applied the ADEA to the states. Congress intended to and had authority to

abrogate the states’ Eleventh Amendment immunity from suit by the 1974

amendments to the ADEA. We clearly have jurisdiction under the ADEA over

Mr. Hurd’s action against PSU.

III

BATSON CHALLENGE

In his appeal, Mr. Hurd, a white plaintiff, claims the district court erred in

overruling his Batson challenge to PSU’s peremptory strike of the sole AfricanAmerican juror. In Batson v. Kentucky, 476 U.S. 79, 100 (1986), the Supreme

Court prohibited prosecution use of peremptory challenges to exclude jurors in

criminal cases solely on the basis of race. That rule has since been applied to

civil cases, Edmonson v. Leesville Concrete Co., 500 U.S. 614, 616 (1991), and

to cases where a defendant does not share racial identity with jurors removed by

peremptory strikes, Powers v. Ohio, 499 U.S. 400, 415 (1991). “This court

reviews a challenge to the improper striking of prospective jurors based on their

race de novo, giving deference to the trial court’s first-hand observation of the
- 16 -

circumstances of each case.” United States v. Hartsfield, 976 F.2d 1349, 1355-56

(10th Cir. 1992). This means “[w]e review de novo whether the . . . explanation

is facially race neutral” and then review for clear error the district court’s ruling

regarding the discriminatory intent of the striking party. United States v. Sneed,

34 F.3d 1570, 1580 (10th Cir. 1994).

A three-step inquiry is used to evaluate a Batson challenge to a peremptory

strike. Purkett v. Elem, 115 S. Ct. 1769, 1770-71 (1995) (per curiam). First, the

“opponent of a peremptory challenge [must make] out a prima facie case of racial

discrimination.” Id. at 1770. Then, “the burden of production shifts to the

proponent of the strike to come forward with a race-neutral explanation” for the

strike. Id. “If a race-neutral explanation is tendered, the trial court must then

decide . . . whether the opponent of the strike has proved purposeful racial

discrimination.” Id. at 1770-71. The “ultimate burden of persuasion regarding

racial motivation rests with, and never shifts from, the opponent of the strike.” 

Id. at 1771.

Mr. Hurd timely objected to PSU’s strike of Mr. Huie Cunningham, the

only African-American juror. The district court then asked PSU to justify its

strike. Counsel for PSU stated he had rejected Mr. Cunningham as a juror

because “Mr. Cunningham revealed that he was previously involved in jury

service where a jury found, in a civil case, for an employee in a railroad benefits
7Mr. Cunningham actually stated that he had served on a “civil case” and

that “the jury did reach--render a verdict.” Aplt.’s App., tr. at 31. In response to

further questioning from the court regarding the nature of the case, Mr.

Cunningham recalled that: “It was an employee of a railroad suing for benefits.” 

Id.

8Where the proponent “offer[s] a race-neutral explanation for the

peremptory challenges and the trial court has ruled on the ultimate question of

intentional discrimination, the preliminary issue of whether the defendant ha[s]

(continued...)

- 17 -

matter.” Aplt.’s App., tr. at 80. Both the district court and Mr. Hurd’s attorneys

corrected PSU’s counsel, clarifying that Mr. Cunningham had not actually stated

that the jury on which he previously served had rendered a verdict for the

plaintiff, only that a verdict had been reached. Id.7 But the district court went on

to conclude that “even if wrong” in recalling what Mr. Cunningham stated, PSU

had proffered a satisfactorily race neutral explanation for its strike. Id. The

district court then asked Mr. Hurd’s counsel to respond, whereupon counsel said

that the motivation offered for the strike was not “strong enough” given that it

resulted in striking the sole African American and created a jury which was not a

“representative cross-section.” Id. at 81-82. However, he did not request that

PSU be required to offer a better explanation or withdraw the peremptory strike. 

The district court found that while PSU may have in part relied on an erroneous

recollection of what Mr. Cunningham had said about his prior jury service, the

strike was “not a discriminatorily based challenge.” Id. at 83; see also Hurd III,

892 F. Supp. at 248.8 The court relied heavily on its observation of the demeanor
(...continued)

made a prima facie showing becomes moot.” Hernandez v. New York, 500 U.S. 

352, 359 (1991); United States v. Sneed, 34 F.3d 1570, 1580 (10th Cir. 1994)

(“[T]he issue of whether the defendants established a prima facie case of

discrimination is moot because the prosecutor gave his explanation . . . and the

district court ruled on the ultimate question of intentional discrimination.”). 

9PSU’s recollection of Mr. Cunningham’s statement was only partly

erroneous. Mr. Cunningham had in fact served as a juror on an employment case. 

That fact alone could support a peremptory strike of Mr. Cunningham absent

evidence of pretext.

- 18 -

of PSU’s counsel in determining “not only that counsel was credible, but that he

had truthfully represented his belief and intent and had not struck the juror

because of the color of his skin.” Hurd III, 892 F. Supp. at 248.

On appeal, Mr. Hurd argues that a mistaken belief underpinning a

peremptory strike amounts to no reason at all, and thus should not survive a

Batson challenge. Mr. Hurd asserts that to uphold a strike once the factual basis

is eliminated is tantamount to allowing the proponent of the strike to merely

assert his or her good faith as an explanation. In essence, Mr. Hurd urges us to

conclude that when a proffered explanation for a strike relies in part9

 on

erroneous information or a mistaken belief, it is “pretextual as a matter of law

because it [is] contradicted by undisputed facts.” Aplt.’s Br. at 2; id. at 10-11.

Mr. Hurd confuses the second and third steps of the Batson inquiry. At the

second step, the party making the strike can rebut the presumption of improper

motive by proffering a race neutral explanation for its strike. “A neutral
10Mr. Hurd mistakenly relies on our recent holding in Sneed for the

proposition that a mistaken reason cannot constitute a race-neutral proffer. In

that case, we upheld a prosecutorial strike based, in part, on a misunderstanding

of a juror’s response to a question, after additional reasons for the strike were

articulated. Sneed, 34 F.3d at 1580. Sneed does not stand for the proposition that

when a race-neutral reason for a strike rests in part on a mistaken belief, the

burden of the opponent of the strike to show pretext is eliminated.

- 19 -

explanation . . . means an explanation based on something other than the race of

the juror.” Hernandez v. New York, 500 U.S. 352, 360 (1991). It is not

necessary that the “explanation [offered] is persuasive, or even plausible.” Elem,

115 S. Ct. at 1771. As long as the proffered reason “does not deny equal

protection,” the second step in the analysis is satisfied. Id. We agree with the

district court that the reason proffered by PSU, although mistaken, was race

neutral.10

In the third step of the inquiry, the “trial court . . . ha[s] the duty to

determine if the [opponent of the strike] has established purposeful

discrimination.” Batson, 476 U.S. at 98. It is at this stage that the credibility of

the proffered reason is tested and the trial court “may choose to disbelieve” the

proffered reason. Elem, 115 S. Ct. at 1771 (emphasis omitted). The ultimate

burden of persuasion rested with Mr. Hurd to convince the district court that the

reason proffered for the strike was unworthy of belief and that the strike was

racially motivated. Cf. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 514-15

(1993) (“[N]othing in law would permit us to substitute for the required finding
11Cases in which mistaken beliefs have been held sufficient to support a

Batson challenge are distinguishable from the case at bar. See, e.g., Johnson v.

Vasquez, 3 F.3d 1327, 1331 (9th Cir. 1993) (where the inference of intentional 

discrimination had already been raised by the prosecutor’s statement that his juror

selection changed in response to defense strikes on racial grounds, the

prosecutor’s “mistaken beliefs [will not] support a challenge free of constitutional

taint.”). 

- 20 -

that the employer’s action was the product of unlawful discrimination, the much

different (and much lesser) finding that the employer’s explanation of its action

was not believable.”). Unless clearly erroneous, we will defer to the district

court’s specific factual finding that the proffered reason for the strike was the true

reason and that the challenge was not motivated by the juror’s race. Hernandez,

500 U.S. at 365. In this case, Mr. Hurd did nothing more than note a mistake had

been made. He did not articulate how the mistake, which was an understandable

error in recollection, should give rise to an inference of discrimination. The mere

assertion of racial discrimination unsupported by evidence of pretext entitled the

district court to conclude that no particular inference of discrimination should be

drawn from these circumstances.11 Id. at 364 (“[T]he trial court’s decision on the

ultimate question of discriminatory intent represents a finding of fact of the sort

accorded great deference on appeal.”). Mr. Hurd failed to carry his burden to

show that PSU’s peremptory strike was racially motivated. It was not clear error

for the district court to overrule Mr. Hurd’s Batson challenge or to deny Mr.

Hurd’s motion for a new trial.
- 21 -

IV

CONCLUSION

For the foregoing reasons, we conclude that Seminole Tribe does not

disturb our previous decision that Mr. Hurd was not barred by the Eleventh

Amendment from bringing his ADEA suit against PSU. We also hold that the

district court did not err in overruling Mr. Hurd’s Batson challenge and in

denying Mr. Hurd a new trial. We AFFIRM the judgment of the district court. 
95-3236, Hurd v. Pittsburgh State University

Carlos F. Lucero, Circuit Judge, Concurring in part and dissenting in part:

I join the holding that Seminole Tribe of Florida v. Florida, 116 S. Ct. 

1114 (1996), does not deprive us of jurisdiction over Mr. Hurd’s ADEA claim

against the state. I disagree, however, with the majority’s analysis of the Batson

issue. My review of the record persuades me that plaintiff proved that the

asserted reason for the peremptory strike against the only African-American juror

was pretextual. In my view, the district court clearly erred when it ruled that the

peremptory strike was not racially motivated. 

The “Constitution prohibits all forms of purposeful racial discrimination in

selection of jurors.” Batson v. Kentucky, 476 U.S. 79, 88 (1986); see also

Edmonson v. Leesville Concrete Co., 500 U.S. 614, 616 (1991) (applying Batson

in a civil context). Our commitment to equal justice under law, carved into stone

outside the courthouse, would be mocked by allowing discriminatory peremptory

challenges inside. The practice not only causes the silent sting of discrimination,

it “mars the integrity of the judicial system and prevents the idea of democratic

government from becoming a reality.” Edmonson, 500 U.S. at 628.

In this case, plaintiff established a prima facie case of racial discrimination

by showing that defendant’s attorney excluded the only African American on the
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twenty-six person venire, a church pastor named Mr. Cunningham. See United

States v. Joe, 8 F.3d 1488, 1499 (10th Cir. 1993) (peremptory challenge of only

Native-American juror on venire establishes prima facie case of purposeful

discrimination). Defendant’s attorney justified the strike on grounds that Mr.

Cunningham “was previously involved in a jury service where the jury found, in a

civil case, for an employee in a railroad benefits matter.” Appellant’s App. at 79. 

This must be deemed a race-neutral explanation under Purkett v. Elem, 115 S. Ct. 

1769, 1771 (1995) (“Unless a discriminatory intent is inherent in the . . .

explanation, the reason offered will be deemed race neutral.”) (citation and

quotation omitted). See also United States v. Hernandez, 500 U.S. 352, 359

(1991) (plurality opinion) (“In evaluating the race neutrality of an attorney’s

explanation, a court must determine whether, assuming the proffered reasons for

the peremptory challenges are true, the challenges violate the Equal Protection

Clause as a matter of law.”). 

Although defendant’s proffered reason was facially race-neutral, the

sequence of events following the proffer demonstrates that it was pretextual. 

First, plaintiff’s attorney explained that the proffered reason was factually wrong. 

The excluded juror, Mr. Cunningham, never said that the jury returned a verdict

for the employee; he said only that the jury reached a verdict. The district court

judge agreed that the proffered reason was inaccurate, and asked defendant’s
12Contrary to the majority, I do not rely on Mr. Cunningham’s prior jury

service in an employment case, because those details were not relied upon by

defendant or the district court. The district court regarded the proffered reason as

completely inaccurate. Appellant’s App. at 26 (finding “as a matter of fact that

counsel’s belief that this prospective juror had previously reached a plaintiff’s

verdict, although mistaken, was the true motivation for the peremptory

challenge”). 

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counsel whether this was “the only basis on which you selected this particular

juror.” Appellant’s App. at 80. Counsel replied, “That’s right, your Honor.” Id.

Thus, the only reason defendant relied upon to strike Mr. Cunningham was known

to be untrue by defendant’s attorney.12 Moreover, the reason was exposed as false

before the court approved the peremptory challenge, and before Mr. Cunningham

learned that he had been struck. Yet defendant’s attorney persisted in excluding

the sole African-American juror, even after realizing that the reason he gave for

the exclusion was incorrect. Under these circumstances, I conclude that the

behavior of defendant’s attorney establishes discriminatory intent. The district

court’s contrary findings are based almost entirely on observation of the

attorney’s demeanor. On this record, the court’s generalized statements about a

credible demeanor carry little weight. 

In reaching a contrary conclusion, the majority faults plaintiff’s counsel for

not explaining “how the mistake, which was an understandable error in

recollection, should give rise to an inference of discrimination.” Majority Op. at

20. Counsel did, however, reiterate the facts that gave rise to the inference of
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discrimination, by pointing out that Mr. Cunningham was the only black person

on the entire venire. See Batson, 476 U.S. at 96 (party trying to prove racial

animus “is entitled to rely on the fact, as to which there can be no dispute, that

peremptory challenges constitute a jury selection practice that permits ‘those to

discriminate who are of a mind to discriminate.’” (quoting Avery v. Georgia, 345

U.S. 559, 562 (1953))). There is little else counsel could have done given he had

already shown the falsity of the proffer, because exclusion of a juror for racial

reasons can rarely be proven by direct evidence. Not only does an inference of

discrimination continue to arise from the prima facie case but a very strong

inference of discrimination was created by counsel’s continued reliance on a false

reason as justification for the peremptory strike. What was, perhaps, an

understandable error in recollection could no longer be regarded as such, once

counsel was alerted to his mistake.

 My review of this record leads me to conclude that the peremptory strike

against Mr. Cunningham was racially motivated. I am left with the definite and

firm conviction that the district court erred in ruling that race did not motivate the

strike. I respectfully dissent from the majority’s holding to the contrary.