Rehearing and Rehearing En Banc Denied May 23, 1980.
LAY, Chief Judge.
This appeal challenges judgment entered in favor of the defendant in a title VII action that alleged retaliatory discharge from employment.
The district court found Womack had made a prima facie case of retaliatory discharge, but that Munson had established an independent, nondiscriminatory ground for the discharge. It dismissed the complaint. We reverse with directions to enter judgment for Womack, and to award back pay from the date of discharge.
Womack filed the lawsuit against the sheriff on June 3, 1975. On Thursday morning, June 5, 1975, Munson called Womack into his office to "determine what sort of a lawsuit this was." Munson testified his initial concern was the potential conflict of interest raised by his employee suing a party whom he had the responsibility of defending. According to a June 9 memorandum
At this initial meeting Womack was questioned about an allegation in the lawsuit concerning abuse of suspects by the sheriff's office, and his knowledge of and involvement in the abuse. He testified at trial that he told Munson that the sheriff's practice was to call in black officers when white officers were interrogating black suspects. He stated he had once been "called in" when a white officer was abusing a black suspect. Munson, Bentley and deputy prosecutor Haynes testified Womack said at the June 5 meeting that he had personally participated in the physical abuse of black prisoners in order to keep his job. Womack denied making the statement. The trial judge credited Munson's testimony that Womack had made this admission on June 5.
On the morning of Monday, June 9, Womack told Bentley he did not want to leave and take a job Bentley had suggested to him on June 6. Later that day, Womack was placed on leave of absence and told the matter of mistreatment of black prisoners would be investigated. Deputy prosecutor Crank, who had been put in charge of the investigation, then interrogated him further. Womack refused to give a sworn statement without a lawyer present. In response to Crank's questions, he denied he had said at the June 5 meeting that he had personally been required to brutalize anyone.
Crank investigated and failed to find any corroboration for Womack's allegations that black deputy sheriffs had been required to abuse black suspects.
Bentley's memorandum to his file, dated June 26, stated Womack's discharge was for: (1) moonlighting as an armed security guard; (2) campaigning for political office; and (3) his admission that he had mistreated blacks while employed as a deputy sheriff. No mention was made of Womack's denial of the admission. Bentley testified he had informed Munson of the first two reasons, but that the principal reason for Womack's discharge was the admission of abuse.
II. Legal Standards.
Section 704(a) of title VII provides:
42 U.S.C. § 2000e-3(a).
The order and allocation of proof in title VII suits generally, see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-1825, 36 L.Ed.2d 668 (1973); Furnco Construction Corp. v. Waters, 438 U.S. 567, 577-78, 98 S.Ct. 2943, 2949-50, 57 L.Ed.2d 957 (1978); Board of Trustees v. Sweeney, 439 U.S. 24, 99 S.Ct. 295, 58 L.Ed.2d 216 (1978) (per curiam), is also applied in cases alleging retaliation for participation in title VII processes. See Garrett v. Mobil Oil Corp., 531 F.2d 892, 895 (8th Cir. 1976); Aguirre v. Chula Vista Sanitary Service, 542 F.2d 779, 781 (9th Cir. 1976); Hochstadt v. Worcester Foundation, 425 F.Supp. 318, 324 (D.Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976); B. Schlei, Employment Discrimination Law, ch. 15 at 436 (1976). Section 704(a) requires a plaintiff to show: (1) statutorily protected participation; (2) adverse employment action; and (3) a causal connection between the two. Hochstadt v. Worcester Foundation, 425 F.Supp. at 324; B. Schlei, supra at 417. Once Womack had made out a prima facie case of retaliatory termination, the burden shifted to Munson to articulate a legitimate, nondiscriminatory reason for the dismissal. Miller v. Williams, 590 F.2d 317, 320 (9th Cir. 1979); Hochstadt v. Worcester Foundation, 425 F.Supp. at 324. Munson did not have to prove absence of retaliatory motive, but only produce evidence that would dispel the inference of retaliation by establishing the existence of a legitimate reason. Furnco Construction Corp. v. Waters, 438 U.S. at 577-78, 98 S.Ct. at 2949-50, Kirby v. Colony Furniture Co., 613 F.2d 696, at 702 (8th Cir. 1980). If Munson produced evidence of a reason other than retaliation, Womack could still prevail if the evidence showed the proffered justification was in fact a pretext, a cover up for retaliation. Aguirre v. Chula Vista Sanitary Service, 542 F.2d at 781; Hochstadt v. Worcester Foundation, 425 F.Supp. at 324. The overall burden of persuasion remained with Womack.
We hold the district court erred in concluding Munson's reason for discharge was a legitimate and nonretaliatory one. We also hold Womack met his burden of showing he was discharged because of the lawsuit he filed against the sheriff.
A. Legitimacy of the Reason for Discharge.
We agree with the district court that Womack made out a prima facie case of retaliatory discharge.
The district court found Munson established a legitimate, nondiscriminatory reason for the discharge: Womack's admission of physically abusing black suspects and subsequent denial of both the admission and the abuse. We agree that there is substantial evidence to support the finding that the admission and denial occurred, and
Womack alleged in his complaint that the sheriff required black deputies to physically abuse black suspects. Womack's standing to raise that claim stemmed from his prior employment as a black deputy sheriff—the crux of his complaint was racial discrimination in his discharge from the sheriff's office. The complaint itself necessarily implies Womack had personal knowledge of such abuse, or at the minimum, that the abuse affected him sufficiently to challenge it. Thus, Womack's admission of personal knowledge of or participation in the abuse varies little from the allegation he made in his complaint. The admission was made in a meeting in which Womack was being interrogated about the allegations in the complaint. In Munson's own words, the allegation and admission were "all wrapped up in one statement." We conclude the admission and denial of abuse by Womack are so inextricably related to the allegation in the complaint that they cannot be considered independently of one another.
Access to the EEOC and federal courts by filing charges is clearly conduct protected from employer retaliation by section 704(a). See Emporium Capwell Co. v. Western Addition Community Organization, 420 U.S. 50, 71 n.25, 95 S.Ct. 977, 989 n.25, 43 L.Ed.2d 12 (1975); Pettway v. American Cast Iron Pipe Co., 411 F.2d 998 (5th Cir. 1969). Filing a lawsuit alleging a former employer violated title VII by requiring black employees to abuse black suspects is protected activity.
In a closely analogous area, retaliatory discharge of public employees for exercise of First Amendment rights, a strict standard is employed to determine causation. Givhan v. Western Line Consolidated School District, 439 U.S. 410, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979); Mt. Healthy City School District v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Even if protected conduct is shown to be a substantial factor in the termination decision, the employer may not be liable if the discharge would have taken place even in the absence of the protected activity. Givhan, 439 U.S. at 416, 99 S.Ct. at 697; Mt. Healthy, 429 U.S. at 285-87, 97 S.Ct. at 575-76.
The sole inference the evidence allows here is that Womack's discharge would not have taken place in the absence of the lawsuit he filed against the sheriff. He was initially questioned only because he filed the lawsuit. His admission and denial were responses to employer questions on an allegation he made in the lawsuit: discriminatory, abusive practices by the sheriff's office. They were answers to questions on his personal knowledge of the substance of his allegation. As such, they are virtually inextricable from his protected charge. For purposes of determining the nature and extent of protected activity under section 704(a), they are inseparable from the court complaint that is clearly protected by statute.
The district court found that the reason given by Munson for Womack's discharge was not pretextual. Assuming arguendo that the reason could be a legitimate basis for discharge, we hold the district court's finding that it was not pretextual is clearly erroneous. Our review of the record leaves us with a firm and definite impression that a mistake was made and that the evidence overwhelmingly established Womack was fired because he filed the lawsuit.
The chronological sequence of events does not support Munson's explanation. Womack's controverted admission was made on Thursday, June 5. He was discharged on June 26. His denial of the admission was reported to Bentley and Munson on June 9: after the decision to suspend him had been made and over two weeks before he was discharged.
The district court found that Munson's intervening investigation substantiated his testimony that Womack's admission and denial put Munson in an untenable situation and required Womack's discharge. Yet the record shows the investigation did not concern Womack's admission or his denial of personally abusing suspects. Munson testified verification of Womack's admission of personal involvement was not the point of the investigation.
Womack's subsequent attempt to explain his June 5 statement concerning his personal knowledge of abusive practices in the sheriff's office was not pursued, but simply treated as a denial. Crank failed to find any evidence of physical abuse of any suspect. These facts demonstrate that Womack's admission alone was not the reason for his discharge. This perhaps explains why the reason proffered at trial was the admission coupled with the subsequent denial. The difficulty with this defense is shown by the record. Evidence closest to the actual occurrence is a memorandum by chief deputy Bentley, which was dictated
Another memorandum was prepared by Bentley for his file on June 9 that summarizes the initial, June 5, meeting with Womack. It substantiates Womack's testimony by stating that Womack was told at the first meeting that he had "placed this office in an embarrassing position because it would appear that we [the prosecutor's office] sanctioned the charges [against the sheriff]." It also says that Womack was told Munson would like him to take a leave of absence until the lawsuit was settled before Womack was questioned as to the veracity of, and his personal knowledge of, the allegations of physical abuse.
Munson's expression of anxiety over the lawsuit and desire to have Womack leave is significant, because no adverse action was taken against Womack until after he refused, on June 9, to leave voluntarily. The district court stated at the close of trial that it credited the testimony of defense witness Bentley. However, it apparently failed to consider also Bentley's earlier, written account of the events, which had been admitted in evidence. Bearing in mind the district court's credibility determination, we must nevertheless include these memoranda in our review of the entire record. They show predisposition to have Womack leave and failure on June 26 to record for the file, or mention to Womack, that his denial of his earlier admission was a motivating reason for discharge. This must be considered together with the irrelevancy of the investigation to any permissible or proffered reason for discharge, the timing of events, and testimony by both Munson and Bentley that Womack was otherwise a satisfactory employee. We are left with the firm and definite impression that the admission-denial rationale was a pretext to legitimatize the discharge. The record makes clear the real reason for discharge: Womack's lawsuit against the sheriff.
The judgment is reversed and the cause remanded for findings and a determination on Womack's request for back pay, as he no longer requests reinstatement. Absent extraordinary circumstances, back pay is awarded to fashion the most complete relief possible for proscribed discrimination. Albemarle Paper Co. v. Moody, 422 U.S. 405, 421, 95 S.Ct. 2362, 2373, 45 L.Ed.2d 280 (1975); Wells v. Meyer's Bakery, 561 F.2d 1268, 1272 (8th Cir. 1977). Absence of bad faith is not a sufficient reason to deny back pay. Albemarle, 422 U.S. at 422, 95 S.Ct. at 2373. We also note a prevailing plaintiff in a title VII action ordinarily receives attorney fees. Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 417, 98 S.Ct. 694, 698, 54 L.Ed.2d 648 (1978). Plaintiff's counsel is awarded attorney fees on appeal in the sum of $1,500.00.
Pettway v. American Cast Iron Pipe Co., 411 F.2d 998, 1007 (5th Cir. 1969).