                                    _____________

                                    No. 95-4024EA
                                    _____________

Richard Day; Calvin Hollowell,             *
                                           *
            Plaintiffs-Appellees,          *
                                           *
      v.                              *
                                           *
Randy Johnson, Pulaski County              *   Appeal from the United States
Sheriff Elect;                        *    District Court for the Eastern
                                           *   District of Arkansas.
           Defendant-Appellant,       *
                                          *
Pulaski County Sheriff's                  *
Department,                               *
                                          *
           Defendant.                     *
                                    _____________

                         Submitted:       September 9, 1996

                           Filed: July 10, 1997
                                 _____________

Before FAGG, HEANEY, and BEAM, Circuit Judges.
                              _____________


FAGG, Circuit Judge.
     In his 1994 campaign for Pulaski County sheriff, Randy Johnson
capitalized on the sorry state of affairs in the newly opened Pulaski
County   Jail,    promising,   if   elected,    to    make   changes   in   the    jail's
administration.    After Johnson won, he notified Captains Richard Day, the
jail's administrator, and Calvin Hollowell, head of the jail's troubled
intake area, they would not be reappointed to their positions.                    Day and
Hollowell are black, and Johnson is white.           Before Johnson took office, and
while Day and Hollowell were still employed by Johnson’s predecessor
Sheriff Gravett, Day and Hollowell filed suit against Johnson and the
Pulaski County
Sheriff's Department (the Department) under 42 U.S.C. §§ 2000e to 2000e-17
(1994) (Title VII) and 42 U.S.C. § 1983 (1994), claiming Johnson decided
not to reappoint them because of their race and in retaliation for speech
protected by the First and Fourteenth Amendments.    Johnson was ordered to
retain Day and Hollowell pending trial.   The district court ruled for Day
and Hollowell on their Title VII claims and for Hollowell on his § 1983
free speech claim.    As a remedy, the district court ordered Johnson to
place Day and Hollowell in unspecified captain-level positions.       Johnson
appeals, and we reverse.
     When he was appointed jail administrator in January 1993, Day became
chair of the committee charged with managing the upcoming transition from
the old to the new jail.   The committee discussed at length the likelihood
that the new jail’s housing units would quickly become overcrowded.      When
overcrowding became a reality shortly after the new jail opened in August
1994, however, Day acted like a man caught unawares.          Although others
disagreed, Day put the overflow from the housing units in the jail's intake
area, the hub of the new jail's entire operation.     Every person arrested
in Pulaski County must be processed through intake, and every jail inmate
transported to the local courts must go out through intake.    Day's decision
to turn intake into a full-blown housing unit turned out badly for those
housed there.   The miserable living conditions caught the attention of the
Arkansas Democrat-Gazette, which reported them in widely read stories that
neither Day nor Hollowell disputed at trial.        Hollowell believed the
conditions were unconstitutional.   Up to 120 inmates at a time lived in the
intake area, sharing twelve toilets and three showers, sleeping and
sometimes even eating on the floor.       Conditions were filthy.      Unlike
inmates held in the jail's housing units, inmates in intake could not
receive family visits and were denied access to the outdoor exercise area.
Intake staff had to meet inmates' daily




                                    -2-
living needs, distracting staff from inmate processing and making the
logjam still worse.       A number of staff quit under the pressure, leaving
vacancies that went unfilled.         Moreover, inmates waiting in intake for
transportation to court often got lost in the crowd, turning up in court
hours late and sometimes not at all.       One municipal court judge was forced
to make his own separate inmate transportation arrangements after having
thirteen no-shows in a single day.


        Day's use of intake for housing was not merely unsanitary and
disruptive, it was dangerous.         Unlike properly housed inmates, who are
segregated by sex, criminal history, and type of offense, inmates in intake
were not sorted out.     Intake thus held an explosive mix of men and women,
violent felons and petty misdemeanants, career criminals and juveniles.
Day believed the conditions were “ripe for a major riot.”             Day complicated
matters by keeping the jail persistently understaffed.              Instead of hiring
needed personnel, Day turned back to the county $400,000 in authorized but
unused    salaries.      Although   Day   believed     the   jail   demanded    “crisis
management” on his part, Day was unfamiliar with the county’s hiring
policies, and merely acquiesced in Sheriff Gravett’s mistaken belief that
vacancies could not be filled until the departing deputies’ accrued
vacation time had elapsed.          In fact, vacant positions could be filled
immediately.
        Day doggedly stuck with his failed intake policy, despite front-page
newspaper coverage of intake’s deplorable condition and instructions from
Sheriff Gravett to move the overflow into the housing units.                    In mid-
October Hollowell entered the picture when he replaced Captain Talley as
head of intake and prisoner transportation.            Hollowell had been familiar
with intake's problems since at least early September, when he reported
those    problems   to   the   district   court   on   Sheriff      Gravett's   orders.
Hollowell also




                                          -3-
informed the media about jail conditions in his role as the Department’s
public information officer.      Advance notice of intake’s troubles did not
help Hollowell either.       The district court found intake conditions and
inmate transportation failed to improve under Hollowell's supervision.
Hollowell made matters worse when he decided to cure overcrowding by
releasing, without the required authorization from a judge or prosecutor,
seven accused felons who were in custody without bail.                     Hollowell's
shortcut made front-page news, and he was reprimanded by the county
prosecutor and two local judges.      Although Hollowell apologized and Sheriff
Gravett condoned Hollowell's action, Johnson agreed with the prosecutor,
the   judges,   and   the   public   that   the    release    was   a   clear   sign   of
"exceedingly bad judgment" on Hollowell’s part.
      In Arkansas, when a sheriff’s term in office expires, so do the
appointments of the sheriff’s deputies.              This puts the newly elected
sheriff in a position to assemble a competent workforce that meets the new
sheriff’s expectations.       After he was elected, Johnson interviewed all
deputies holding the rank of lieutenant or higher under outgoing Sheriff
Gravett to help Johnson decide whom to reappoint.            Johnson interviewed Day
and Hollowell, among the rest, questioning Day about intake and staffing,
and Hollowell about intake and the felon release.             Johnson also conferred
with his new chief deputy Danny Bradley and his operations major Skipper
Polk, Johnson's long-time colleagues in the North Little Rock Police
Department (NLRPD).     Bradley opposed rehiring Day and Hollowell based on
media accounts of the jail’s turmoil and because local police told Bradley
they had lost confidence in the two men.          Polk, who had recently worked for
the county prosecutor, also advised against keeping Day and Hollowell based
on Hollowell's felon release and on Day’s low regard by the prosecutor's
office and local law enforcement.      Johnson also spoke with Lowell Kincaid,
who served as planning coordinator for the new jail.                Kincaid had




                                        -4-
observed Day's leadership when Kincaid worked with the transition committee
Day chaired.      Based on what he saw, Kincaid told Johnson that Day was not
an effective administrator.


       On December 12, 1994, Johnson informed Day and Hollowell they would
not be reappointed to their posts.         After taking office on the first of
January, Johnson followed through on his campaign promise to put a
professional administrator in charge of the new jail by appointing Kincaid
to the newly created position of chief of detention operations.             Neither
Day nor the district court questioned Kincaid’s qualifications for this
position.    Jail conditions improved under Kincaid's leadership:       intake was
restored    to    its   intended   purposes,   disciplinary   proceedings   against
disruptive inmates declined, and the jail’s failures in transporting
inmates to court were eliminated.


       Johnson made very few personnel moves when he took office.           Out of
a staff of roughly 350 under departing Sheriff Gravett, Johnson rejected
only four:       Day, Hollowell, and two whites, Gravett’s chief deputy and a
lieutenant who opposed Johnson for sheriff.           Four other employees left
voluntarily, all of them white.         Day and Hollowell were the only blacks
whom Johnson did not reappoint.         Johnson transferred Captain Talley, who
is black and who had moved to the enforcement division when Hollowell took
over intake, back to detention.          Johnson also promoted two deputies to
lieutenant, both black.        Although Johnson inherited a Department with a
detention division that historically has employed a higher proportion of
blacks than enforcement, neither Day nor Hollowell contended, nor did the
district court find, that the Department’s racial composition reflected
race   discrimination.       Johnson's employment decisions have left that
composition virtually undisturbed.




                                         -5-
        Johnson testified he rejected Day because Day mismanaged the intake
area and left staff positions unfilled.      As the district court put it,
Johnson’s "bottom line" was that he “did not have confidence that Day would
manage in the way Johnson wanted."   Johnson testified he rejected Hollowell
because Hollowell's felon release showed poor judgment, and also because
of intake conditions and inmate transportation failures.     Summarizing his
reasons, Johnson said he decided not to reappoint Day and Hollowell based
on "job performance and the perception of that job performance" by the
public.    In keeping with Johnson’s stated reasons, the district court found
the new jail was “chaotic” and understaffed, with a “deplorable” intake
area that posed “a security risk.”      The district court also found that
inmates were “delivered to court late,” and acknowledged that Johnson
genuinely believed Hollowell's felon release was not "an exercise in good
judgment."    Notwithstanding these vivid findings, the district court found
race was the real reason Day and Hollowell lost their jobs.
        We review the district court's finding of intentional discrimination
for clear error.     See Fed. R. Civ. P. 52(a); St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 524 (1993).      A finding is clearly erroneous if it
lacks substantial evidence to support it, see Johnson v. Arkansas State
Police, 10 F.3d 547, 552 (8th Cir. 1993), or if, even when there is
evidence to support the finding, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mistake has been made,
see United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948).
Substantial evidence means "such evidence as a reasonable mind would accept
as sufficient to support a conclusion."    Roberts v. Browning, 610 F.2d 528,
532 (8th Cir. 1979) (citing Universal Camera Corp. v. NLRB, 340 U.S. 474,
477 (1951)).    Day and Hollowell are entitled to reasonable inferences from
the evidence, but inferences must be more than speculation or conjecture
to be




                                     -6-
reasonable.   See Hopper v. Hallmark Cards, Inc., 87 F.3d 983, 988 (8th Cir.
1996).    Because   Day   and   Hollowell    produced   no   direct   evidence   of
discriminatory intent, we must decide whether they introduced sufficient
circumstantial evidence to permit the district court reasonably to infer
that Johnson's expressed reasons were unworthy of belief, see Texas Dept.
of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981), and that
intentional discrimination was the real reason Johnson rejected Day and
Hollowell, see Hicks, 509 U.S. at 515.          In other words, even when an
employee presents some circumstantial evidence of pretext, a finding of
intentional discrimination is clearly erroneous if the finding lacks
plausibility when the evidence is considered as a whole.         See Anderson v.
City of Bessemer City, 470 U.S. 564, 573-74 (1985); see also Ryther v. KARE
11, 108 F.3d 832, 848 (8th Cir. 1997) (en banc) (Part I.A. of concurring
and dissenting opinion, in which eight active judges joined), petition for
cert. filed, 65 U.S.L.W. 3694 (U.S. Apr. 4, 1997) (No. 96-1571).         Reviewing
the evidence relied on by the district court, we conclude Day and Hollowell
failed to present sufficient circumstantial evidence for the district court
reasonably to infer that Johnson's stated reasons were a coverup for racial
discrimination.
     To begin with, the district court was clearly mistaken in its view
that Johnson was too poorly informed to make an honest assessment of Day's
and Hollowell's job performances.           The district court made light of
Johnson’s reliance on news accounts despite its recognition that the jail’s
problems were thoroughly aired in media reports that Day and Hollowell
never challenged.     Johnson was also informed by “general talk in the
community,” which included the opinions of local police officers and
prosecutors, sources public employers like Johnson may rely on.         See Waters
v. Churchill, 511 U.S. 661, 676 (1994).       Johnson also made his own first-
hand observations at the jail, which he visited several times and for




                                      -7-
several hours at a time.    Bolstered by the district court’s finding that
intake was in a “chaotic” and “deplorable” state, what Johnson saw during
his visits would be enough reasonably to convince an observer in Johnson’s
position that the jail’s management had failed.      Additionally, the topics
Johnson raised in Day's and Hollowell's interviews--intake, staffing, and
the felon release--show Johnson was well aware of the jail's problems in
their areas of responsibility.
     The district court believed Johnson's failure to discuss Day's and
Hollowell's qualifications with Sheriff Gravett undermined the plausibility
of Johnson's nondiscriminatory explanation.         We disagree.      Johnson was
entitled to put little stock in what Gravett might say about Day’s and
Hollowell’s current job performances because Johnson could evaluate their
performances   himself.    Further,     Gravett's   assessment   of    Day's   and
Hollowell's work histories sheds no light on whether Johnson honestly based
his employment decisions on their job performances at the new jail.            See
Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1460 (7th Cir. 1994).            The
district court also felt Johnson’s reasons for rejecting Day were “too
broad to withstand scrutiny” because Johnson blamed Day for things beyond
Day's control, like overcrowding and staff turnover.       The district court
is mistaken.   Johnson blamed Day only for problems Day knew were coming and
failed to resolve.   As the district court found, "everyone involved with
the planning of the new jail anticipated that it would be overcrowded," and
"[s]taff turnover was also expected."    Likewise, Hollowell knew about these
problems before he took over intake and transportation, and he was unable
to deal with the problems despite his forewarning.          Johnson was also
justified in relying on Hollowell’s release of unbailable felons into the
community as a reason for rejecting him.            The district court found
Johnson’s reliance was pretextual because Sheriff Gravett condoned the




                                      -8-
release and Hollowell apologized and promised never to do it again.                  The
focus of the pretext inquiry is Johnson’s motivation, however, and neither
Gravett’s approval nor Hollowell’s promises cast any doubt on the sincerity
of Johnson’s belief that Hollowell had shown bad judgment.


     According to the district court, the "most telling" evidence of
pretext was Johnson's appointment of three whites to the top posts in his
administration.       Although the district court recognized Johnson had the
right to hire anyone he wanted for these policymaking positions, which are
exempt from Title VII under 42 U.S.C. § 2000e(f), the district court found
pretext because Day and Hollowell have better resumes than the appointed
whites, Chief Deputy Bradley, Major Polk, and Major Scarborough.                 Day and
Hollowell are captains and have earned four-year college degrees, but
Johnson’s top three officers have not graduated from college, and only one,
Bradley, had made captain in the NLRPD.          Contrary to the district court's
view, comparing resumes is meaningless because Day and Hollowell were not
candidates    for   any   of   the   positions   Bradley,    Polk,     and   Scarborough
received.    Disparate treatment of black and white employees who are not
similarly situated is not evidence of pretext.            See McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 804 (1973); Harvey v. Anheuser-Busch, Inc., 38 F.3d
968, 972 (8th Cir. 1994).        Besides, there is powerful evidence that Day and
Hollowell mismanaged the jail despite their fine resumes.
     Although Johnson made approximately 350 employment decisions when he
took office, the district court believed Johnson’s treatment of one black
officer,    Captain    Talley,    was   "probative   of    Johnson's    discriminatory
attitude."    Johnson moved Talley back to detention without asking him if
he wanted to move, but Johnson asked a white captain who had no experience
in the new jail, Jimmy White, if he wanted to remain in his current
position and left him




                                          -9-
there.     Setting aside that Talley and White were not similarly situated,
the    district    court’s   concern   about    Talley   is   misplaced   because     any
disparate treatment of Talley is irrelevant to Day's and Hollowell's
claims.        See Swapshire v. Baer, 865 F.2d 948, 953 (8th Cir. 1989).
Although Talley preferred to stay in enforcement, we see nothing amiss in
Johnson’s decision to move Talley back to an administrative position in
detention to shore up the jail’s troubled operation.              Talley experienced
the jail’s failures when carrying out Day’s directions, which he disagreed
with, before Day appointed Hollowell to head intake.             Having promised the
voters he would solve the jail’s problems, Johnson needed the steadying
hand of competent leadership at the jail, and Johnson's choice of Talley
for a top jail position strikes us as a vote of confidence.
       The district court found more evidence of Johnson’s discriminatory
attitude in a career-path policy Johnson established after he took office.
Because Johnson considers the Department’s enforcement and detention
divisions as separate career paths requiring different skills and training,
Johnson wants to minimize cross-divisional transfers to take advantage of
the expertise that comes with extended experience within a division.
Without addressing this race-neutral reason, the district court took the
view    that    Johnson’s    policy   will   “lock   African-Americans    in   what    is
considered by some as . . . less desirable position[s] in detention,” which
“traditionally has had a larger percentage of African-American employees”
than enforcement.      The record does not support the district court’s view,
however.       In the first place, Johnson’s career-path policy is irrelevant
to Day’s and Hollowell’s claims because it was not adopted until after
Johnson decided against their reappointment.             Besides, Johnson inherited
the racial imbalance from his predecessors, and Day and Hollowell never
alleged, nor did the district court find, any racial discrimination in the
hiring practices of the earlier sheriffs.            Also, the




                                         -10-
district court is mistaken that blacks are “lock[ed]” into detention
“without the opportunity to work in enforcement.”                  In uncontradicted
testimony, Johnson made clear that under his policy, deputies in detention
remain free to apply for available positions in enforcement (and vice
versa), they receive preference over outsiders, and they switch divisions
without loss of salary or seniority.          They may have to start anew to earn
rank only because their expertise in the division they left does not
necessarily qualify them to exercise command in their new division.
Although the district court’s findings do not reveal who feels jobs in
detention are “less desirable” or why, those views shed no light at all on
Johnson’s attitude.         Actually, the district court’s findings about the
sorry state of affairs in the jail drive home the importance of a program
that encourages stable careers in detention.


     Finally, the district court found evidence of pretext in Johnson’s
conferences with "white friends," appointees Kincaid, Bradley, and Polk,
before rejecting Day and Hollowell.                The district court erroneously
believed Johnson’s appointees lacked "personal knowledge" about Day and
Hollowell and thus found their advice “suspect.”            But Kincaid worked with
Day on the new jail’s transition committee.          Bradley and Polk knew all they
needed   to   know   from    news   reports   of    the   jail’s   turmoil   and   from
conversations with local police officers:           Day and Hollowell were running
a failed operation.    Moreover, the reasons Johnson gave for rejecting Day
and Hollowell were not concocted with the after-the-fact help of so-called
"white friends" because Johnson promised to make changes at the jail during
his campaign for election, and neither Day and Hollowell nor the district
court suggest Johnson’s campaign was racially motivated.               Additionally,
there is no evidence that Johnson or his appointees ever made disparaging
remarks about




                                        -11-
anyone’s race, and the mere fact Johnson's closest advisors are white does
not render their advice "suspect."


       Even though Day and Hollowell failed to discredit the legitimate,
nondiscriminatory     reasons   motivating    Johnson’s   rejection        of   Day   and
Hollowell, the district court felt it was "incredible" Johnson would reject
veteran, well-educated employees with years of satisfactory service in the
Department.    Thus, declaring Day and Hollowell "competent captain[s]," the
district court ordered Johnson to place them in unspecified positions "at
the captain level."    Because there is a difference between performing a job
and holding a rank, a court applying Title VII must ask whether the job
applicant was qualified for a particular available position, not whether
the applicant is an otherwise deserving rankholder.           See Burdine, 450 U.S.
at 253.    No doubt Day and Hollowell advanced in rank over the years because
they   ably handled the positions their increasing rank progressively
entitled them to fill.    They failed, however, to measure up to their most
recent assignments, and rank earned through satisfactory performance in
other positions does not insulate them from the consequences of failure in
their positions at the new jail.           The district court’s strongly held
feeling that Johnson should have paid attention to Day’s and Hollowell’s
positive    past   accomplishments   “is     nothing   more    than   an    attack     on
[Johnson’s] judgment [about] how [he] chose to evaluate [Gravett’s]
employees.”    Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 780 (8th Cir.
1995).    As we said of the reduction-in-force selection in Hutson, “[t]here
is nothing inherently discriminatory” in Johnson’s reliance on Day’s and
Hollowell’s recent failures in deciding whether he would include them in
his administration.     Id.
       Although the district court faults Johnson for not considering Day
and Hollowell for other positions, Day and Hollowell never




                                      -12-
showed interest in any other specific positions, suggested bumping other
captains in their favor, or indicated their willingness to accept demotions
so they might fill lesser positions.        Johnson did not discriminate against
Day and Hollowell when he did not consider them for positions they did not
seek.    See Tart v. Levi Strauss & Co., 864 F.2d 615, 618 (8th Cir. 1988).
Although we understand the district court’s disappointment that Day and
Hollowell lost their jobs, federal courts are not self-appointed personnel
managers, and they may not second-guess the fairness or wisdom of an
employer’s nondiscriminatory employment decisions.          See Aucutt v. Six Flags
Over Mid-America, Inc., 85 F.3d 1311, 1317 (8th Cir. 1996); Harvey, 38 F.3d
at 973.


        The district court's Title VII findings are also flawed because the
district court failed to draw another inference we find inescapable from
the record.     See Arkansas State Police, 10 F.3d at 552.             In its wide-
ranging    search   for   hints   of   pretext,   the   district   court   overlooked
substantial evidence that, job performances aside, Johnson rejected Day and
Hollowell for political reasons.        Assuming Day and Hollowell did the best
anyone could do under the circumstances at the new jail, the situation
looked bad, and they paid the political price for being in the wrong place
at the wrong time.         Johnson acknowledged he was concerned about the
public’s perception of their job performance.               Viewing the facts as
sympathetically to Day and Hollowell as we can, Day and Hollowell emerge
as political scapegoats, forced out by Johnson to make good on his campaign
pledge.    In sum, we are convinced Day and Hollowell lost their jobs because
they either were or seemed to be responsible for the tangled situation at
the new jail, but not because of their race.
        We turn now to the district court's judgment for Hollowell on his
§ 1983 free speech claim.         In 1979, the District Court for the




                                         -13-
Eastern District of Arkansas assumed jurisdiction over the old Pulaski
County jail under the terms of a consent decree.         About a month after the
new jail opened, the district court contacted Hollowell and asked about
jail conditions.    The district court found Hollowell communicated with the
district court as part of his duties as the Department’s public information
officer and at the direction of Sheriff Gravett.              During Hollowell's
employment interview, Johnson told Hollowell he disfavors federal court
oversight of the new jail.     The district court believed Johnson's view was
a reasonable one, and recognized as well that neither “[S]heriff [Gravett]
[n]or    anybody   else”   wanted   federal    supervision.   Johnson   also   told
Hollowell he disagreed with Hollowell's having gone to the district court.
When Johnson gave Hollowell notice he would not be retained, Hollowell felt
Johnson was retaliating against him for speaking to the court.                  The
district court agreed.


        A public employee's speech enjoys limited protection under the First
Amendment.     See Connick v. Myers, 461 U.S. 138, 154 (1983).            Whether
Hollowell's speech was protected is a question of law we review de novo.
See Mumford v. Godfried, 52 F.3d 756, 760 (8th Cir. 1995).                Because
Hollowell spoke to the district court on orders from his superior and as
the Department's public information officer, not as a concerned citizen,
we conclude Hollowell's speech was not protected.              See Bausworth v.
Hazelwood Sch. Dist., 986 F.2d 1197, 1198-99 (8th Cir. 1993).            Although
Hollowell’s conversation with the district court about jail conditions was
not put into evidence, we glean from the record that Hollowell’s report
left no doubt about the dismal situation at the new jail, which Hollowell
did nothing to make better and made even worse through his felon release.
Consequently, even if Hollowell's speech were protected, his failings as
head of intake and transportation convince us Johnson would have rejected
his job candidacy anyway.      See Mt.




                                        -14-
Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977).


     We thus reverse the district court's judgment for Day and Hollowell
on their Title VII claims, and for Hollowell on his § 1983 First Amendment
claim, and we dissolve the injunction compelling Johnson to retain Day and
Hollowell in some unspecified positions at the captain level.     Because Day
and Hollowell are no longer prevailing parties, we also reverse the
district court's award to them of costs and attorney's fees.     See Pottgen
v. Missouri State High Sch. Activities Ass’n, 103 F.3d 720, 723-24 (8th
Cir. 1997).


HEANEY, Circuit Judge, concurring and dissenting.


     I   respectfully dissent from the majority’s reversal of the district
court’s judgment for Day and Hollowell on their claims under Title VII.1
I have no quarrel with the legal standard as outlined by the majority and
applied by the district court in rendering its decision.       I also believe
that the result reached by the majority is one that a trier of fact could
have reached given the evidence presented at trial.     Were the majority the
factfinder, I would not hesitate to join in its opinion.     But the district
court is the trier of fact and it had the responsibility to examine the
evidence and to draw the permissible inferences from that evidence.         I do
not believe the district court’s finding of intentional discrimination was
clearly erroneous and I would affirm.


     The   district   court   discredited   Johnson’s   explanation   for   not
retaining Day and Hollowell.    Although the court acknowledged that




     1
      I concur in the majority opinion with respect to the
plaintiffs’ section 1983 free speech claim.


                                    -15-
the new facility was severely overcrowded, there was evidence that neither
plaintiff was solely responsible for the problems at the jail.        The court
found that Day and Hollowell attempted to address the problems, but that
they were met with lack of cooperation from other county officials and
delay caused by the lawsuit over control of the jail.              Particularly
Hollowell, who was not even in charge of intake at the jail until after the
conditions were publicized, could not be considered responsible for the
problems at the jail. The district court also found the circumstances
surrounding Johnson’s decision not    to retain Day and Hollowell suspicious:
Johnson knew very little about either Day or Hollowell when he decided not
to retain them and he replaced them with white men whose experience and
qualifications paled in comparison to those of Day and Hollowell.        Having
rejected Johnson’s proffered reasons for his employment decisions and
finding   the   circumstances   surrounding   those   decisions   indicative   of
discriminatory intent, the district court’s ultimate finding of intentional
discrimination was not clearly erroneous.


     A true copy.


            Attest:


                   CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                     -16-
