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Henry O. Tyler v. University of Arkansas Board of Trustees; Stephanie Gardner

January 6, 2011

HENRY O. TYLER, APPELLANT,
v.
UNIVERSITY OF ARKANSAS BOARD OF TRUSTEES; STEPHANIE GARDNER, DR., IN HER OFFICIAL AND INDIVIDUAL CAPACITIES AS DEAN OF THE COLLEGE OF PHARMACY FOR THE UNIVERSITY OF ARKANSAS FOR MEDICAL SCIENCES, APPELLEES.



Appeal from the United States District Court for the Eastern District of Arkansas.

The opinion of the court was delivered by: Bye, Circuit Judge.

Submitted: September 22, 2010

Before BYE, BEAM, and SMITH, Circuit Judges.

Henry Tyler, an African American assistant dean for diversity at the University of Arkansas, is suing the University and his former supervisor, Dean of the College of Pharmacy Dr. Stephanie Gardner, alleging the school did not hire him for the newly-created position of Director of Recruitment for Diversity in retaliation for the charge of race discrimination he had filed against the school back in 2004. Tyler also alleges that the University discriminated against him on the basis of gender when it selected a young female with purportedly inferior qualifications, Vivian Flowers, for the coveted spot. Because Tyler's claims are not supported by the required evidence of impermissible motivation behind the University's decision to hire Flowers, we affirm the district court's*fn1 grant of summary judgment in favor of Tyler's employer.

I

Tyler has been employed at the University of Arkansas for Medical Sciences (UAMS) since 1980. For the first twenty years at the school, Tyler worked as a minority recruitment specialist at the College of Pharmacy (COP); in 2000, he was promoted to Assistant Dean for Diversity for the Center of Diversity Affairs within the same college. In both positions, Tyler was responsible for recruiting minority students to the COP. Along with the College of Medicine (COM), the COP had a particularly dismal record of minority student enrollment and faculty representation out of the UAMS's six colleges.

The present litigation finds its roots in September of 2004, when Tyler sued the University, alleging race discrimination in the University's wage policy and retaliation for his challenge to the policy. The parties settled the lawsuit in October of 2005. The Settlement Agreement fixed Tyler's job duties and elaborated on the University's then-nascent plan to create a campus-wide Office of Diversity, supervised by a single Director of Diversity. One provision in the agreement clarified that the scheme would not in any way disadvantage Tyler:

The parties understand and agree that UAMS has for some time been exploring the creation of a campus-wide Office of Diversity, to be supervised by a Director of Diversity. The parties further understand and agree that if such Office of Diversity is implemented, it is possible that Plaintiff and others at UAMS who currently perform minority recruiting or diversity functions may be transferred from their current colleges or units to the Office of Diversity, may then be directly supervised by the Director of Diversity, and may have their current titles and/or specific job responsibilities appropriately altered. The parties agree that in the event Plaintiff's job position is moved from the College of Pharmacy to an Office of Diversity, this shall have no negative impact on his current salary or benefits.

Appellant App'x at 449.

The plan referenced in the Settlement Agreement was a result of joint efforts by Dean of the COP Dr. Gardner and Dean of the COM Dr. E. Albert Reece to improve their colleges' weak performance on the minority representation front. Both Deans saw a unitary office of diversity comprising all six colleges as a solution to the problem. When the COM began a nationwide search to fill the Director of Recruitment for Diversity spot in 2005, it was looking for a candidate with a Ph.D., experience in recruiting minority students, and a track record of writing grant applications. The search yielded two finalists -- Dr. Landefeld and Dr. Brown -- with Dr. Landefeld being in the lead based on his strong qualifications and extensive experience in the area. Ultimately, however, the Committee decided against hiring Dr. Landefeld, citing his flamboyant sartorial style in explanation. At that point, the efforts to fill the position stalled.

That is until 2006. At that time, a new dean was installed at one of the colleges and the Search Committee was reassembled. The Committee consisted of the deans of all six colleges (a body referred to as the "Council of Deans"), with Dean Gardner acting as the Committee Chair. By sheer coincidence, around the same time Dean of the College of Health Related Professions Dr. Ronald H. Winters attended his child's high school graduation, where he was impressed by a commencement address given by one Joyce Elliott. Elliott was an African American member of the Arkansas General Assembly and the Legislative Black Caucus, who dedicated her entire career to issues of diversity in education. Winters thought she would be a perfect fit for the position and relayed his assessment to the Council. Having heard Winters's enthusiastic endorsement of Elliott, Vice Chancellor for Administration and Government Affairs Tom Butler, not a member of the Search Committee, volunteered to contact Elliott to gauge her interest in the job.

While Elliott herself was not interested, she recommended Vivian Flowers as someone who was "eminently qualified" for the job. At the time, Flowers was completing the master's program at the Clinton School of Public Service; in college, she double-majored in political science and rhetoric and writing. Flowers was also involved in various civic organizations: she served as the Executive Director of the Arkansas Legislative Black Caucus, a Commissioner on the Arkansas Minority Health Commission, and a member of the Committee Staff for the Arkansas Bureau of Legislative Research. In addition to her academic bona fides, Flowers had the benefit of a politically-connected family. Her father, Dr. John Flowers, was a physician serving on the UAMS's Minority Advisory Committee, and her cousin, Stephanie Flowers, served in the Arkansas General Assembly along with Elliott.

Following up on Elliott's recommendation, Butler contacted Flowers. Flowers was interested and pursued the opportunity wholeheartedly. After conversing with several UAMS officials on the phone, she had an "informational" meeting with the entire Search Committee on December 20, 2006, before the Committee announced the vacancy publicly. After that meeting, Flowers met with Dr. I. Dodd Wilson, UAMS's Chancellor at the time, and then again with Butler, who alerted her that a formal announcement for the position would be forthcoming. In the days prior to the formal posting, Flowers had her recommenders submit letters on her behalf to Chancellor Wilson, who eventually forwarded them to the Committee. No other candidate was afforded similar privileges prior to the public announcement of the position.

The said public announcement first appeared on the UAMS's website on January 25, 2007. It called for a candidate with a master's degree and three years of experience in public recruiting. A newly-minted graduate, Flowers could not satisfy the latter prerequisite. When the announcement appeared in a print format, however, three years of public recruiting experience was downgraded to a desired qualification, and experience in writing grant applications -- Flowers's forte -- was added as another desirable skill. The Deans denied any manipulation of the position's description to suit Flowers's ...


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