## 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, Attorne ys, Department of Justice, Washington, D.C., filed a brief for Intervenor.-2-

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

SEYMOUR , Chief Judge.1 The Eleventh Amendment provides:

The Judicial power of the United States shall not b e construed to extend to any suit in law or equity, commenced or p rosecuted 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 d iscrimination 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 Stat e 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 s overeign 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 dis trict 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 app eal 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 argum ent 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 Unit ed States exercised its right under 28 U.S.C. § 2403(a) to intervene to defend th e constitutionality of the ADEA as it applies to the states.- 5 - II ELEVENTH AMENDMENT

We first address PSU’s claim that our Eleventh Amen dment 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 n ew 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 b anc 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 interven ing change in the law may serve as a cogent reason for relaxing the doctr ine 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 prev ious ruling. In Seminole Tribe , the Court considered whether Congress could abrog ate state sovereign immunity by enacting the Indian Gaming R EGULATORY Act of 1988 pursuant to the Indian Commerce Clause, U.S. C ONST ., art. I, § 8, cl. 3. Seminole Tribe , 116 S. Ct. at 1119. To resolve that question, th e Court asked: “first, whether Congress has ‘unequivocally express ed 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 standard s 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 th e
power to abrogate state sovereign immunity, the Court ack nowledged 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 abrogatio n of state sovereign immunity. Id. at 1128 (overruling Pennsylvania v. Union Gas Co. , 491 U.S. 1 (1989)). Likening the Indian Commerce Clause to th e Interstate Commerce Clause, id. at 1127, the Court held that Congress lacked autho rity 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 t he Fourteenth Amendment as authority. Id. at 1128. Seminole Tribe thus imposed two significant changes. First, it b rought 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-pa rt analysis now2 PSU also asserts that because the Court in Seminole Tribe performed its

analysis of Congress’ intent to abrogate state sove reign immunity before it analyzed Congress’ power to do so, 116 S. Ct. at 11 23, 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 enacte d pursuant to Congress’ Fourteenth Amendment authority and that Congress ha d intended to subject states to suit. Id. We affirmed the district court and expressly conc urred 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 actedpursuant to its Fourteenth Amendment authority; we said only that "we affirm[e d] 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 Congr ess’ intent to abrogate was flawed for two reasons: the district court look ed to the legislative history of the ADEA in violation of Seminole Tribe’s express prohibition of such recourse; and the ADEA’s jurisdictional provisions incorporat e language previously found insufficient by the Court to establish intent to abrogate. 2 PSU’s concerns aboutwhen it performed the analysis in the reverse order . Aplee.’s Supp. Br. at 6.

However, the “power” and “intent” inquiries are ind ependent; we discern no necessary linkage between them beyond the fact theymust both be satisfied before concluding that an act abrogates state sover eign immunity. The likely reason for the order of analysis propounded by Seminole Tribe is that the more problematic constitutional “power” inquiry need notbe 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 ir relevant to a judicial inquiry into whether Congress intended to abrogate the Eleventh Amendment.” Muth , 491 U.S. at 230 (emphasis added). The district court d id 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 t he 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 Lab or Standards Act, a statute found not to clearly express Congress’ intent to abrogate, see Employees v.3 We do note here that the Fair Labor Standards Act e nforcement provisions

invalidated by Employees v. Missouri Public Health Dept. , 411 U.S. 279 (1973), were specifically amended in 1974 to accommodate th e 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 whi ch would have prevented it from passing muster under Employees

. Moreover, rather than calling into question our con clusion 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 defin ing employers to include states under the Equal Pay Act and amending the FLSA enfor cement provisions to allow suit in federal court, Congress intended to abrogat e 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 Te nth Circuit decision, we are strictly concerned with ne w guidance provided by Seminole Tribe . We are not at liberty to revisit issues previous ly 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 defe ndant “make it indubitable that Congress intended . . . to abrogate the States’ sov ereign immunity from suit.” Seminole Tribe , 116 S. Ct. at 1124. We have no reason to questio n our decision4 We 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 oth er 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. Wyomi ng , 460 U.S. 226, 233 (1983) (“In 1974, Congress extended the substantive prohibitions of the [ADEA] . . . to . . . State Governments.”); Blanciak v. Alle gheny 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 cl ass of potential defendants when sued under the ADEA for their actions as ‘empl oyers.’”); Davidson v. Board of Governors , 920 F.2d 441, 443 (7th Cir. 1990) (Congress “coul d not have made its desire to override the states’ sovereign i mmunity 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 cong ressional will that Eleventh Amendment immunity be abrogated.”). - 10 - in Hurd II that Congress intended to abrogate state sovereignimmunity 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 197 4 amendments to the ADEA were enacted pursuant to Congress’ power undersection 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 b y citing two cases from our sister circuits, both of which held that the 1974 amendmen ts 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 i ts 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 issu ance of Seminole Tribe , "[section five] of the Fourteenth Amendment remai ns a provision that vests Congress with the power to abrogate Elev enth Amendment immunity”). Instead, PSU asserts that the 1974 amendments to th e 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 Ame ndment, and because at the time of our affirmance congressional authority unde r either the Commerce Clause or the Fourteenth Amendment would have been suffici ent to uphold the district court, PSU argues we should reconsider the issue. Prior to Seminole Tribe , the Supreme Court upheld the general applicability5 Only a few courts have concluded that the 1974 amen dments 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 clai m against a state university dismissed as barred by Eleventh Am endment), 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); F arkas v. New York State (continued...) - 12 - of the ADEA to the states by concluding that Congre ss had exercised its Commerce Clause power in enacting the ADEA. EEOC v. Wyoming , 460 U.S. 226, 243 (1983) (finding the exercise of this powerdid not infringe the state’s implied Tenth Amendment immunity). The Court chose not to decide whether Congress in passing the 1974 ADEA amendments had al so acted pursuant to its Fourteenth Amendment power. Id. & n.18. Nonetheless, those circuit courts which have considered the issue have uniformly conc luded the 1974 amendments to the ADEA were enacted pursuant to section five o f 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. Elro d , 674 F.2d 601, 603 (7th Cir. 1982); Ramirez v. Puerto Rico Fi re Serv. , 715 F.2d 694, 699- 700 (1st Cir. 1983) (legislative history of act mak es clear Congress’ intent to enact 1974 amendments pursuant to Fourteenth Amendm ent authority); Arritt v. Grisell , 567 F.2d 1267, 1270-71 (4th Cir. 1977) (legislati ve 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). 55 (...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, on ly MacPhersonwas decided after the issuance of Seminole Tribe

. - 13 - PSU suggests that the failure of these courts to ut ilize the Seminole Tribe two-part test renders their conclusions on congress ional power, and our reliance on those conclusions, inapposite. We are not persu aded. Although Seminole Tribe requires courts to ascertain that Congress exercis ed valid legislative authority, Seminole Tribe articulates no particular method for determining t he source of that authority. Timmer , 1997 WL 11361, at *7 (“Seminole Tribe says nothing about the situation presented here where th ere is a question about whether Congress legislated pursuant to an unstated Constitutional provision.”). The only recent guidance the Court has offered on determinin g which of Congress’ powers it utilized in attempting to abrogate state soverei gn 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 afte r concluding that Congress’ intent to include these employees was not clearly e nough 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 und er its authority to enforce the Fourteenth Amendment.’” Id. at 469 (quoting Pennhurst State Sch. & Hosp. v.6 PSU also argues that Kansas could effectively deterage discrimination

without the necessity of ADEA suits against it in f ederal court. We do not disagree with that proposition, but it is not relev ant to our determination today. Seminole Tribe takes no note of a state’s ability to provide alte rnative 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 re cently interpreted this statement in a case involving the Equal Pay Ac t: [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 con gressional intent to legislate pursuant to § 5 of the Fourteenth Amendme nt, but rather that it should first consider a number of factors b efore making such an inference. Timmer , 1997 WL 11361, at *6. The courts on which we rel y for review of Congress’ power to extend the ADEA to the states inno way flout the cautionary note in Gregory ; each gave careful and measured consideration to C ongress’ 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 determ ine the source of congressional authority). We are as persuaded now by the reasoni ng 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 amendment s to the- 15 -

ADEA reflects a purpose consistent with the Fourtee nth Amendment and that Congress acted pursuant to its powers under the Fou rteenth Amendment when it applied the ADEA to the states. Congress intended to and had authority to abrogate the states’ Eleventh Amendment immunity fr om suit by the 1974 amendments to the ADEA. We clearly have jurisdicti on 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 Batsonchallenge to PSU’s peremptory strike of the sole A fricanAmerican juror. In Batson v. Kentucky , 476 U.S. 79, 100 (1986), the Supreme Court prohibited prosecution use of peremptory chal lenges to exclude jurors in criminal cases solely on the basis of race. That r ule 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 id entity 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 pro spective 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. Hart sfield , 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 clearerror 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 Batsonchallenge to a peremptory strike. Purkett v. Elem , 115 S. Ct. 1769, 1770-71 (1995) (per curiam). Fi rst, the “opponent of a peremptory challenge [must make] outa prima facie case of racial discrimination.” Id. at 1770. Then, “the burden of production shifts t o 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 t rial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.” Id. at 1770-71. The “ultimate burden of persuasion re garding 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. Hui e Cunningham, the only African-American juror. The district court th en 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 previo usly involved in jury service where a jury found, in a civil case, for an employee in a railroad benefits7 Mr. Cunningham actually stated that he had served o n 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.

8 Where the proponent “offer[s] a race-neutral explan ation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue o f whether the defendant ha[s] (continued...) - 17 - matter.” Aplt.’s App., tr. at 80. Both the distri ct court and Mr. Hurd’s attorneys corrected PSU’s counsel, clarifying that Mr. Cunnin gham had not actually stated that the jury on which he previously served had ren dered a verdict for the plaintiff, only that a verdict had been reached. I d. 7But 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 res pond, 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 wi thdraw the peremptory strike. The district court found that while PSU may have inpart 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 th e demeanor(...continued)

made a prima facie showing becomes moot.” Hernande z 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 establisheda prima facie case of discrimination is moot because the prosecutor gave his explanation . . . and the district court ruled on the ultimate question of in tentional discrimination.”).

9 PSU’s recollection of Mr. Cunningham’s statement wa s only partly erroneous. Mr. Cunningham had in fact served as a juror on an employment case. That fact alone could support a peremptory strike o f Mr. Cunningham absent evidence of pretext. - 18 - of PSU’s counsel in determining “not only that coun sel was credible, but that he had truthfully represented his belief and intent an d 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 u nderpinning a peremptory strike amounts to no reason at all, and thus should not survive a
Batsonchallenge. Mr. Hurd asserts that to uphold a stri ke once the factual basis is eliminated is tantamount to allowing the propone nt of the strike to merely assert his or her good faith as an explanation. Inessence, Mr. Hurd urges us to conclude that when a proffered explanation for a st rike relies in part 9 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 Batsoninquiry. At the second step, the party making the strike can rebut the presumption of improper motive by proffering a race neutral explanation forits strike. “A neutral10 Mr. Hurd mistakenly relies on our recent holding inSneedfor the

proposition that a mistaken reason cannot constitut e 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 addition al reasons for the strike were articulated. Sneed , 34 F.3d at 1580. Sneeddoes 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 som ething 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 persua sive, or even plausible.” Elem , 115 S. Ct. at 1771. As long as the proffered reaso n “does not deny equal protection,” the second step in the analysis is sat isfied. Id. We agree with the district court that the reason proffered by PSU, al though 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 estab lished purposeful discrimination.” Batson , 476 U.S. at 98. It is at this stage that the cre dibility 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 convin ce the district court that the reason proffered for the strike was unworthy of bel ief 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 substi tute for the required finding11 Cases in which mistaken beliefs have been held suff icient to support a Batsonchallenge are distinguishable from the case at bar . See, e.g. , Johnson v. Vasquez , 3 F.3d 1327, 1331 (9th Cir. 1993) (where the infe rence of intentional discrimination had already been raised by the prosecutor’s statement that his juror selection changed in response to defense strikes onracial grounds, the prosecutor’s “mistaken beliefs [will not] support achallenge free of constitutional taint.”). - 20 - that the employer’s action was the product of unlaw ful discrimination, the much different (and much lesser) finding that the employ er’s explanation of its action was not believable.”). Unless clearly erroneous, w e 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 nothin g 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 infer ence of discrimination. The mere assertion of racial discrimination unsupported by e vidence of pretext entitled the district court to conclude that no particular infer ence 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 fa iled to carry his burden to show that PSU’s peremptory strike was racially moti vated. 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 notbarred 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 partand 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 ov er Mr. Hurd’s ADEA claim against the state. I disagree, however, with the m ajority’s analysis of the Batson issue. My review of the record persuades me that p laintiff proved that the asserted reason for the peremptory strike against the only African-American juror was pretextual. In my view, the district court cle arly 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 justi ce under law, carved into stone outside the courthouse, would be mocked by allowing discriminatory peremptory challenges inside. The practice not only causes th e silent sting of discrimination, it “mars the integrity of the judicial system and p revents the idea of democratic government from becoming a reality.” Edmonson , 500 U.S. at 628. In this case, plaintiff established a prima facie c ase of racial discrimination by showing that defendant’s attorney excluded the o nly African American on the- 2 -

twenty-six person venire, a church pastor named Mr. Cunningham. See United
States v. Joe , 8 F.3d 1488, 1499 (10th Cir. 1993) (peremptory ch allenge of only Native-American juror on venire establishes prima f acie case of purposeful discrimination). Defendant’s attorney justified th e strike on grounds that Mr. Cunningham “was previously involved in a jury servi ce 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 unde r 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, assumi ng 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 demonstrat es that it was pretextual. First, plaintiff’s attorney explained that the prof fered reason was factually wrong. The excluded juror, Mr. Cunningham, never said thatthe jury returned a verdict for the employee; he said only that the jury reache d a verdict. The district court judge agreed that the proffered reason was inaccurate, and asked defendant’s12 Contrary to the majority, I do not rely on Mr. Cunn ingham’s prior jury

service in an employment case, because those detail s 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 (fin ding “as a matter of fact that counsel’s belief that this prospective juror had pr eviously reached a plaintiff’s verdict, although mistaken, was the true motivation for the peremptory challenge”). - 3 - counsel whether this was “the only basis on which y ou 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 stri ke 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 realizi ng that the reason he gave for the exclusion was incorrect. Under these circumstances, I conclude that the behavior of defendant’s attorney establishes discri minatory intent. The district court’s contrary findings are based almost entirelyon observation of the attorney’s demeanor. On this record, the court’s g eneralized statements about a credible demeanor carry little weight. In reaching a contrary conclusion, the majority fau lts plaintiff’s counsel for not explaining “how the mistake, which was an under standable error in recollection, should give rise to an inference of d iscrimination.” Majority Op. at 20. Counsel did, however, reiterate the facts thatgave rise to the inference of- 4 -

discrimination, by pointing out that Mr. Cunninghamwas 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 whic h there can be no dispute, that peremptory challenges constitute a jury selection p ractice 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 couns el could have done given he had already shown the falsity of the proffer, because e xclusion of a juror for racial reasons can rarely be proven by direct evidence. N ot only does an inference of discrimination continue to arise from the prima fac ie 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 longe r be regarded as such, once counsel was alerted to his mistake. My review of this record leads me to conclude thatthe peremptory strike against Mr. Cunningham was racially motivated. I a m left with the definite and firm conviction that the district court erred in ru ling that race did not motivate the strike. I respectfully dissent from the majority’s holding to the contrary.