George Dulin’s lawsuit against Greenwood Leflore Hospital from the beginning struck a hot-button issue in the Delta: a perception by whites that they face discrimination from a black majority looking to turn the tables from the Jim Crow era.
Now that the case has been settled in the hospital’s favor, another controversy has arisen: judges making decisions that should be left up to juries, violating the constitutional right to a trial by jury.
At least one person of influence believes that’s what happened in Dulin’s case: 5th U.S. Circuit Court of Appeals Judge Rhesa Hawkins Barksdale.
In a strongly worded dissent to a three-judge panel’s 2-1 decision, Barksdale calls for the entire 17-judge court to hear Dulin’s case.
He asserts that the trial judge and then the appeals panel overstepped their bounds by weighing the credibility of evidence and making decisions based on it.
Dulin, who is white, sued the majority-black hospital board in 2007, saying it fired him from his longtime post as board attorney because of his race.
U.S. District Judge Sharion Aycock threw out the case halfway through a 2010 jury trial because she said Dulin hadn’t presented enough evidence so that a juror could reasonably find in his favor. Such action by a judge is called a Rule 50(a) judgment.
The 5th Circuit panel upheld Aycock’s ruling in a decision handed down July 8.
Barksdale said it was clearly the wrong move.
“In the light of the trial record and our panel’s considerable experience at the trial and appellate levels, it should be quickly apparent that the district court should not have granted relief under Rule 50(a). Instead, the majority strains greatly to shoehorn the trial evidence in its attempt to justify that relief, including applying our court’s precedent incorrectly,” he said.
When reached for comment Friday at his home, Dulin, 85, said he hadn’t heard the results of the appeal yet. The longtime Itta Bena attorney is now retired and living in Madison. His attorney, Jim Waide of Tupelo, could not be reached for comment Friday.
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The seeds of the lawsuit began on Aug. 18, 2005, when George Dulin picked up his afternoon newspaper.
A front-page headline read, “Three officials want Hospital Board to pick black attorney.”
Those officials, state Sen. David Jordan, Leflore County Supervisor Robert Moore and state Rep. Willie Perkins, had questioned two members of the hospital board and the hospital’s administrator at a Greenwood Voters League meeting the night before.
Sammy Foster, then chairman of the hospital board, would later testify that Moore asked him at the meeting when the board would replace Dulin with a black attorney to better reflect Leflore County’s black majority. The hospital is jointly owned by the city and county.
“I think with time, these things will happen. I think what you said is something that needs to be done. I’m not going to say it is not going to happen. I have no problem making the change,” Foster replied.
“At the next board meeting?” Moore asked.
“I’m not going to tell you that,” Foster said.
In fact, the decision to replace Dulin didn’t come until a year later.
In August 2006, the board unanimously voted to fire Dulin and later hired W.M. Sanders, who is black.
Dulin said in 24 years as board attorney he had never received a complaint about his job performance. He said the hospital board’s three black members were motivated by race to fire him and that the two white members went along with the decision.
In addition to suing the board, Dulin sued Moore, alleging that Moore pushed for Dulin’s termination.
After losing the trial, Dulin appealed to the 5th Circuit but didn’t include Moore in the appeal.
In their decision, 5th Circuit Judges Edith Brown Clement and Edward Prado said the hospital board offered legitimate reasons for firing Dulin other than his race: alleged sleeping during meetings, which Dulin denied, and not providing sound legal advice.
The judges also found the 2005 Voters League meeting wasn’t close enough to Dulin’s 2006 termination to have affected it.
But Barksdale, a senior status judge appointed by President George H.W. Bush in 1990, wholly rejected their reasoning.
He said the Voters League meeting was clearly still on board members’ minds when they fired Dulin.
One member said then that, “the worst thing (the board) could have done (was) come back and fire him at the next meeting,” according to a transcript from an audio recording of the hospital board’s executive session.
“There was sufficient evidence from the transcript of the 2006 Board meeting so that a reasonable juror could find that the Board purposely waited a year to terminate Dulin in order for that decision not to appear to be motivated by race,” Barksdale said.
He said the judicial panel’s majority “ignored or discounted” the evidence Dulin presented, which Barksdale said was sufficient to allow a reasonable juror to find in Dulin’s favor.
“Credibility determinations and inferences to be drawn from facts, such as the ones presented by the majority in such detail, are, of course, for the jury,” he said. “They are not to be brushed aside by judgment as a matter of law. The majority renders meaningless Rule 50’s reasonable-juror standard.”
Barksdale said because of the importance of having a jury decide fact and credibility issues, he is urging the 5th Circuit to review Dulin’s appeal “en banc,” meaning all the judges would hear it instead of just three.
Barksdale said the court needs to clarify its precedent regarding racial discrimination on the job and give emphasis to the Seventh Amendment right to a jury trial.
• Contact Charlie Smith at csmith@gwcommonwealth.com.
