Rush v. Columbus Muni Sch, et al

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-60910
Summary Calendar
_______________
KING DAVID RUSH,
Plaintiff-Appellant,
VERSUS
COLUMBUS MUNICIPAL SCHOOL DISTRICT;
GLENN LAUTZENHISER,
IN HIS OFFICIAL AND INDIVIDUAL CAPACITY;
JANNETTE ADAMS,
IN HER OFFICIAL AND INDIVIDUAL CAPACITY;
SARA JONES,
IN HER OFFICIAL AND INDIVIDUAL CAPACITY;
JAN KLING,
IN HER OFFICIAL AND INDIVIDUAL CAPACITY,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Northern District of Mississippi
(1:98-CV-193)
_________________________
September 28, 2000

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Before SMITH, BENAVIDES, and
DENNIS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
King Rush appeals a summary judgment in
favor of Columbus Municipal School District
(the “District”) and its board members on
Rush’s 42 U.S.C. § 1983 action relating to the
refusal to rehire him as an assistant principal.
Rush also appeals the denial of his motion to
compel the disclosure of discussions among
members of the District’s school board (the
“Board”) during executive session. Because
we conclude that the district court did not
abuse its discretion in denying the motion to
compel and that Rush has failed to produce
sufficient evidence to convince a reasonable
factfinder that the District unlawfully
discriminate in its refusal to rehire him, we
affirm.
I.
The District employed Rush from 1983 to
1994, mainly as a teacher and coach. During
his final year, Rush, who is black, was assistant
principal at a middle school. He enjoyed an
exemplary personnel record and received
excellent performance evaluations and no dis-
ciplinary actions. The District tendered a re-
newal offer to him before the 1994-95 school
year, but he never accepted. One week before
the beginning of that year, he notified the Dis-
trict that he had accepted an assistant principal
position with a high school in a different dis-
trict.
In January 1995, an assistant principal posi-
tion became available in one of the District’s
high schools, and Rush applied. The school’s
principal, T. Scott Murrah, and the District’s
superintendent, Ruben Dilworth, recommend-
ed Rush to the Board. When the Board met to
discuss the recommendation, however, Board
member Sara Jones opposed the
recommendation, and the Board retired into an
executive session at which, in accordance with
usual practice, the District’s attorney was
present. The record contains no evidence
regarding the matters discussed during the
executive session,1 but after returning from it
the Board rejected the recommendation by a 3-
2 vote.
In June of the same year, Rush again
applied for an assistant principal position, this
time at a different high school in the District.
Once again, Dilworth and the principal, Bob
Williford, recommended Rush. Williford also
posted a notice that described Rush as the new
assistant principal. The Board again rejected
the recommendation, opting instead to offer
the position to a white male with little or no
experience in school administration. Rush re-
quested a hearing,2 but the District denied the
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be
published and is not precedent except under the
limited circumstances set forth in 5TH CIR. R.
47.5.4.
1 Jones’s deposition testimony indicates that she
had seen or heard of at least two separate
interactions between Rush and his students that
reflected unfavorably on his ability properly to
impose discipline. The first involved Rush’s un-
acceptable use of profanity during practices and
games, as reported by parents. The second was an
“overly harsh” exchange between Rush and a black
male student. Rush disputes whether these events
occurred.
2 An affidavit filed by Pam Rush, the wife of
King Rush, indicates that Board member Janette
Adams typed a letter for Rush’s signature,
(continued...)

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3
request, citing a lack of controlling law or
policy.
Finally, in 1997, Rush applied for another
position as assistant principal. Once again,
Williford recommended him, and Rush
received an interview with the new
superintendent, Owen Bush. Bush’s
deposition testimony indicates that Rush’s
responses during the interview failed to satisfy
Bush, especially in the areas of instructional
knowledge and the use of test scores for
school improvement. Bush therefore declined
to recommend Rush to the Board.3
II.
On June 22, 1998, Rush sued the District
and the Board members in their official and in-
dividual capacities, alleging, inter alia, racial
discrimination in violation of the Fourteenth
Amendment, seeking recovery under § 1983.
He filed a motion to compel the disclosure of
conversations held during an executive
session. The court denied the motion on the
ground of attorney-client privilege. After
completing discovery, defendants moved for
and obtained summary judgment on all claims
and on the Board members’ affirmative
defense of qualified immunity.4
III.
A.
We review a discovery order for abuse of
discretion. See Sierra Club v. Cedar Point Oil
Co., 73 F.3d 546, 569 (5th Cir. 1996). The
discretion with which the trial court supervises
discovery has been characterized as both
“broad” and “considerable”; thus, “[i]t is un-
usual for an appellate court to find abuse of
discretion in [discovery] matters . . . .
Generally, we will only reverse the trial court's
discovery rulings in unusual and exceptional
cases.” Scott v. Monsanto Co., 868 F.2d 786,
793 (5th Cir. 1989) (citations and internal quo-
tation marks omitted) (compiling authorities).
B.
Evidentiary privileges “shall be governed by
the principles of the common law as they may
be interpreted by the courts of the United
States in the light of reason and experience,
[except] with respect to an element of a claim
or defense as to which State law supplies the
rule of decision . . . .” FED. R. EVID. 501. The
asserted privilege covers issues relating solely
to Rush’s § 1983 claims. Federal common law
therefore governs the applicability of the
privilege to the Board’s communications dur-
ing executive session. Under the common law
of this circuit, “[a] corporate client has a priv-
2(...continued)
requesting the hearing. The affidavit also states
that Adams commented to her that fellow Board
members Jan Kling and Jones “did not have a le-
gitimate reason for effectively blacklisting King
David,” leading to Pam Rush’s conclusion that the
“white board members dislike King David and
refer to him as a bigot and a racist.” Because,
however, the record is devoid of testimony by
Adams, we cannot determine what, if any, basis
she had for taking such a position.
3 The record is uncertain with respect to whether
Bush had received unfavorable comments about
Rush from Board members before forming his
recommendations to the Board.
4 In addition to the protective order and the
Fourteenth Amendment claims, Rush appeals the
summary judgment on his claims under the First,
Fourth, and Fifth Amendments and in favor of the
individual defendants under the doctrine of
qualified immunity. We see no reversible error
with respect to these issues and, accordingly, af-
firm for the reasons discussed in the district court’s
opinion.

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ilege to refuse to disclose, and prevent its at-
torneys from disclosing, confidential
communications between its representatives
and its attorneys when the communications
were made to obtain legal services.” Nguyen
v. Excel Corp., 197 F.3d 200, 206 (5th Cir.
1999).5 It follows that confidential
communications between Board members and
the District’s attorney for the purpose of ob-
taining legal advice fall under the attorney-
client privilege.
The communications that occurred during
the executive session were not exclusively be-
tween the Board members and the attorney,
however. Defendants concede that some oc-
curred strictly between and among members of
the Board, but they maintain that even those
communications are protected by the privilege.
Rush contends that, because such
communications were not addressed to
counsel, they do not benefit from the privilege.
In Upjohn Co. v. United States, 449 U.S.
383 (1981), the Court recognized that the cor-
porate attorney-client privilege is designed to
encourage full and frank communication be-
tween a corporation and its attorneys to
facilitate fully informed legal advice and that
the only way to ensure such communication is
to construe the privilege broadly.6 Similar
policy dictat es encouraging full
communication between a school board and its
counsel. Therefore, the attorney-client
privilege protects all communications during a
meeting between a school board and its
attorney for the purpose of obtaining legal
advice, even those communications not
addressed directly to the attorney. That is not
to say, however, that the mere presence of an
attorney serves to insulate a meeting from
discoverySSthe privilege protects only those
communications made for the purpose of
obtaining legal advice.
The District’s attorney participated in all
the executive sessions, at each of which the
Board discussed the legality of refusing to re-
hire Rush. There is nothing in the record indi-
cating that any of the communications was for
purposes other than the procurement of legal
advice. While the Board members did discuss
their reasons for refusing to rehire Rush, the
discussions occurred in the context of in-
quiring about the legality of those reasons.
Under these circumstances, the district court
did not abuse its discretion in holding that the
attorney-client privilege prot ects
communications made during the executive
sessions.
IV.
A.
We review a summary judgment de novo,
applying the same standards as did the district
court. See Urbano v. Continental Airlines,
Inc., 138 F.3d 204, 205 (5th Cir.), cert.
denied, 525 U.S. 1000 (1998). Summary
judgment is appropriate where, viewing the
evidence most favorably to the nonmoving
party, there is no genuine issue of material fact
and the moving party is entitled to judgment as
a matter of law. See Celotex Corp. v. Catrett,
477 U.S. 317, 322-24 (1986). Once the
moving party has made such a showing, “the
nonmovant must go beyond the pleadings and
designate the specific facts showing that there
5 See also FED. R. CIV. P. 26(b)(1) (“Parties
may obtain discovery regarding any matter, not
privileged . . . .”).
6 See Upjohn, 449 U.S. at 389-94 (rejecting a
lower court’s “control group” test in favor of a
broader privilege covering all communications be-
tween employees and corporate counsel for
purposes of rendering legal advice).

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is a genuine issue for trial.” Urbano, 138 F.3d
at 205.
B.
1.
For discrimination claims, we follow Mc-
Donnell Douglas Corp. v. Green, 411 U.S.
792 (1973). Although McDonnell Douglas
dealt with an action under title VII, we use the
same analytical model when evaluating a claim
under § 1983. See Lee v. Conecuh County Bd.
of Educ., 634 F.2d 959, 961-62 (5th Cir. Jan.
1981). Although the district court properly
analyzed Rush’s claims under the McDonnell
Douglas standard, we must consider the
intervening decision in Reeves v. Sanderson
Plumbing Prods., Inc., 120 S. Ct. 2097
(2000).
Under McDonnell Douglas, the plaintiff
may establish a prima facie case by a
preponderance of the evidence; then the
defendant has the burden to produce evidence
that the allegedly discriminatory action has a
non-discriminatory justification. See Reeves,
120 S. Ct. at 2106. We assume arguendo, as
did the district court, that Rush presents a pri-
ma facie showing of discrimination. As its le-
gitimate, nondiscriminatory reason for refusing
to hire Rush, the District offers his
unsatisfactory interview responses. Because
the defendant bears only the burden of
production, not persuasion, see id., we must
accept the District’s proffered justification.
If the defendant successfully asserts a non-
discriminatory justification, “the McDonnell
Douglas frameworkSSwith its presumptions
and burdensSSdisappear[s].” Id. (internal quo-
tation marks omitted). The plaintiff, however,
still must be given “the opportunity to prove
by a preponderance of the evidence that the
legitimate reasons offered by the defendant
were not its true reasons, but were a pretext
for discrimination.” Id. Moreover, “a
plaintiff’s prima facie case, combined with
sufficient evidence to find that the employer’s
asserted justification is false, may permit the
trier of fact to conclude that the employer
unlawfully discriminated.” Id. at 2109.
In Reeves, however, the Court did allow
that “there will be instances where, although
the plaintiff has established a prima facie case
and set forth sufficient evidence to reject the
defendant’s explanation, no rational factfinder
could conclude that the action was
discriminatory.” Id. Indeed, even where the
plaintiff shows pretext, “all that [such
showing] proves . . . is that the [defendant’s]
decision-makers had some unidentifiable
reason for not wanting to hire [the plaintiff].”
Vadie v. Mississippi State Univ., 218 F.3d
365, 373 (5th Cir. 2000).
Rush alleges that the asserted justification
for not hiring him is merely pretext and that, in
reality, Bush’s failure to recommend Rush to
the Board resulted from improper influence
exerted over Bush by individual Board
members. Assuming, arguendo, that Rush can
successfully show pretext,7 he has failed to
7 Despite Rush’s repeated assertions to the
contrary, the record does not at all plainly establish
that Bush was improperly influenced by Board
members before making his recommendation. The
record establishes that Bush made a practice of
discussing candidates with Board members before
making official recommendations, but it fails to
show that, with respect to Rush, this practice
resulted in any influence over Bush, proper or
improper. The only evidence tending to show any
influence exerted by the Board over Bush is Rush’s
affidavit, in which he quotes Johnny Johnson as
stating that Bush explained in a Board meeting that
“‘[Bush] had to follow the sentiments of the
(continued...)

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produce any evidence of racial discrimination
as a motivating factor in the decision not to
hire him for the 1997 position. To the
contrary, he asserts that the District refused to
hire him because Jones carried a personal
grudge against him, based on the way Rush
had treated her child.
Moreover, the affidavit of Pam Rush asserts
that the Board rejected Rush’s application
because some Board members considered him
a bigot. Assuming, again without deciding,
that these contentions have merit, they do not
support Rush’s allegations of racial
discrimination.
The fact that Jones harbors a grudge
against Rush or that the Board views him as a
bigot is of no probative value in determining
whether the decision not to hire him was mo-
tivated by racial discrimination. Even under
Reeves, such a showing is insufficient to over-
come a motion for summary judgment.8 Be-
cause Rush has not produced any evidence of
racial discrimination by the Board, we affirm
the summary judgment with respect to the
1997 discrimination claim.
2.
The district court found the 1995 claims
barred by the applicable statute of limitations.
Rush asserts (1) that the court improperly cal-
culated the date from which limitations began
to run and (2) that the District’s 1997 decision
not to rehire him tolled the statute of
limitations. In the context of a § 1983 action,
federal law governs the date on which the
statute begins to run, while state tort law
governs the limitation period and tolling
provisions. See Russell v. Board of Trustees,
968 F.2d 489, 492-93 (5th Cir. 1992).
Under Mississippi’s residual statute of lim-
itations, the limitation period for the 1995 dis-
crimination claims is three years. See MISS.
CODE ANN. § 15-1-49 (1999). “The
limitations period begins to run the moment
the plaintiff becomes aware that he has
suffered an injury or has sufficient information
to know that he has been injured.” Piotrowski
v. City of Houston, 51 F.3d 512, 516 (5th Cir.
1995).
Rush did not file this suit until June 22,
1998, so, absent any conditions that would toll
the statute, a limitation period beginning be-
fore June 22, 1995, would bar the 1995 claims.
The Board notified Rush of its decision not to
hire him for the June 1995 position on June
15, 1995.
Although the record does not reflect when
Rush received notice that he had not been
hired for the January 1995 position, he
presumably knew by June 15 that he had not
been hired for that position either. In any
event, according to Pam Rush’s affidavit, the
conversation in which Adams told Pam Rush
7(...continued)
majority of the board’” with respect to the decision
to hire Rush.
Rush has presented no evidence to establish that
a majority of the Board does not have decisionmak-
ing power with respect to hiring decisions. It is
therefore difficult to see why a decision of a
majority of the Board constitutes improper
influence.
8 See Vadie, 218 F.3d at 373-74 (affirming, un-
der Reeves, judgment for the defendant as a matter
of law where the plaintiff produced “nothing pro-
bative anywhere on the record of the ultimate ques-
tion of . . . discrimination”). We note the recent re-
affirmation that “[t]he standard for judgment as a
matter of law under Rule 50 mirrors the standard
for summary judgment under Rule 56.” Reeves,
120 S. Ct. at 2102.

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that “the white board members did not ‘care
for King David Rush’” and that Rush should
request a hearing to obtain a “‘real reason’ for
the white board members [sic] rejection of his
applications for employment” occurred on
June 15.
Although Rush contends that he did not
have sufficient information to form the basis
for his claims until after June 22, “[a] plaintiff
need not realize that a legal cause of action
exists; a plaintiff need only know the facts that
would support a claim” to trigger the
limitation period. See Piotrowski, 51 F.3d at
516. To support a prima facie showing of dis-
crimination under the McDonnell Douglas
framework, a plaintiff need only show that he
is a member of a protected class, that he
qualifies for the job, that he failed to procure
the job, and that the job remained open. See
McDonnell Douglas, 411 U.S. at 801-02.
The events of June 15 informed Rush of all
facts necessary to support a prima facie claim
under McDonnell Douglas. His contention
that he possessed insufficient information to
start the limitation period lacks merit. Unless
he can show that some event tolled limitations,
the statute bars his 1995 claims.
Citing Hendrix v. City of Yazoo City, 911
F.2d 1102, 1103-04 (5th Cir. 1990), Rush ar-
gues that the “continuing violation” theory
acts to toll limitations. Both branches of that
theory, however, require some “violation”
within the applicable statute of limitations to
toll the statute. See id. Because we conclude,
supra, that the 1997 decision not to hire Rush
did not violate his Fourteenth Amendment
rights, Rush has failed to produce any evidence
of a violation within the limitation period that
would support tolling under that theory.9
AFFIRMED.
9 Even if the statute of limitations did not bar
the 1995 claims, the claims would almost certainly
fail for the same reasons as does the 1997 claim,
discussed supra.

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