The U.S. 5th Circuit Court of Appeals devotes much of its time correcting trial court judges when their legal rulings miss the mark. And while the 5th Circuit found that U.S. District Judge Lynn Hughes was correct to dismiss a Title VII racial discrimination case on summary judgment in its Jan. 7 decision in Mr. Albert J. Autry v. Fort Bend Independent School District, the 5th Circuit noted that he was incorrect in deeming some racially offensive testimony that the plaintiff attempted to offer at trial as “political.”
According to the decision in Albert Autry, the plaintiff sued the Fort Bend Independent School District (FBISD), alleging that the school district hired a lesser qualified Caucasian to fill a job he was seeking. After FBISD met its burden of showing a legitimate non-discriminatory reason for hiring the Caucasian, Hughes approved the FBISD’s summary judgment motion, the 5th Circuit notes in its decision. After appealing that decision to the 5th Circuit, Autry argued among other things testified that a member of the hiring committee that interviewed him in October 2008 told him that another FBISD official involved with hiring decisions had said: “If President Obama’s elected, they’re going to have to take down the Statute of Liberty and put a piece of fried chicken in his [sic] hand” according to the decision. “While FBISD challenged the statement as rank hearsay, the district judge rejected it as political, observing that ‘no black individually and no blacks collectively owns [sic] the sensitivity rights to fried chicken or anything else,” according to the 5th Circuit’s decision in Autry.
“The district judge’s comment misses the mark, as it overlooks the racial component of” the alleged statement, wrote Senior Judge Patrick Higginbotham in an opinion joined by Judges Priscilla Owen and Leslie Southwick. According to a footnote in the decision “When Autry’s lawyer tentatively suggested that Johnson’s alleged reference to fried chicken was ‘a long-standing racial slur,’ the district judge rejoined that ‘That’s really surprising to Colonel Sanders.” That footnote also referenced the U.S. Supreme Court’s 2006 decision in Ash v. Tyson Foods which held that “the term ‘boy’ may be evidence of racial animus, depending on the context in which it is used,” the 5th Circuit wrote.
While the 5th Circuit affirmed the trial court’s decision, it reversed and vacated the award of attorney fees to FBISD in the case because while Autry’s claims could not survive summary judgment, they were not “frivolous, unreasonable or without foundation.”
Hughes declines to comment about the 5th Circuit’s decision. Paul Lamp, a partner in Houston’s Rogers, Morris & Grove who represents FBISD and was present at the hearing in which the “fried chicken” testimony was challenged says, “That is what the judge said” of Hughes' comments. Lamp says Hughes’ comments were part of an hour-long hearing. Lamp adds that Hughes is “is a very well respected jurist in the Southern District of Texas” who is “extremely qualified” to hear Title VII discrimination cases.
Ronald Merriweather, a Houston attorney who represents Autry, did not return an e-mailed request for comment.