F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH APR 1 1997
UNITED STATES COURT OF APPEALSPATRICK FISHER
Clerk
TENTH CIRCUIT
CHET A. HURD,
Plaintiff-Appellant,
v.
PITTSBURG STATE UNIVERSITY,
No. 95-3236
Defendant-Appellee.
============================
UNITED STATES OF AMERICA,
Intervenor.
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 Defendant-
Appellee.
Jessica Dunsay Silver and Seth M. Galanter, Attorneys, Department of Justice,
Washington, D.C., filed a brief for Intervenor.
Before SEYMOUR, Chief Judge, PORFILIO, and LUCERO, Circuit Judges.
SEYMOUR, Chief Judge.
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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.
1
The 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-
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.
-4-
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. C ONST ., 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
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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
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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
PSU also asserts that because the Court in
2
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-
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.
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.
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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
3
We 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).
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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
4
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 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.”).
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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
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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
Only 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...)
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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.
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.
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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
6
PSU 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.
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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 African-
American 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
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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
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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
7
Mr. 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.
8
Where 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...)
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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 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 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
(...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.”).
9
PSU’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.
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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
Mr. Hurd mistakenly relies on our recent holding in Sneed for the
10
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.
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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.
11
Cases 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.”).
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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.
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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
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
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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
12
Contrary 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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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.
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