082485P.pdf   09/03/2009  Donna Humphries  v.  Pulaski County, etc.
   U.S. Court of Appeals Case No:  08-2485
                          and No:  08-2594
   U.S. District Court for the Eastern District of Arkansas - Little Rock   
   [PUBLISHED] [Gruender, Author, with Wollman and Melloy, Circuit Judges]
   Civil case - Employment discrimination. Evidence that an employer
   followed an affirmative action plan in declining to hire plaintiff, a white
   employee, for assistant principal positions may constitute direct evidence
   of unlawful discrimination; if the employer defends by asserting that it
   acted pursuant to a valid affirmative action plan, the question then
   becomes whether the affirmative action plan is valid under Title VII and
   the Equal Protection Clause; plaintiff raised a genuine issue of material
   fact concerning whether there was a specific link between the district's
   decision not to promote her to the assistant principal spots and the
   district's various affirmative action policies; based on the record, the
   court could not determine whether the district's affirmative action
   policies are consistent with court desegregation orders or Office of
   Desegregation Monitoring mandates; there were genuine issues of
   material fact related to questions whether the district's affirmative action
   policies addressed a manifest racial imbalance in the workforce and,
   relatedly, whether the policies were aimed at attaining a balance in the
   work force; in summary, plaintiff presented sufficient direct evidence of
   unlawful race discrimination by showing that there are genuine issues of
   material fact regarding the district's affirmative action policies, regarding
   whether the district acted pursuant to the policies when it failed to
   promote her to assistant principal positions, and regarding whether the
   district's affirmative action policies are valid; however, by failing to 
   raise the issue before the EEOC, plaintiff failed to exhaust her 
   administrative remedies on her claim that the district's failure to promote 
   her to the director of counseling services was racially discriminatory; 
   plaintiff's state law claims are also reinstated so that the district court 
   may reconsider whether to hear them along with the federal claims concerning
   the assistant principal positions. Judge Melloy, concurring in part.