KRAVITCH, Circuit Judge.
In this Title VII case, both Clyde Walker and Ford Motor Company appeal from a judgment entered for Walker after a bench trial. Walker contends that the trial court erred in not awarding him sufficient backpay
Appellant Walker is a black man who in 1975 entered a minority dealer training program instituted by Ford and administered through participating local dealerships. During the 18-month training program trainees received a stipend of $1500 per month. Walker was assigned for his training to the Northgate Lincoln-Mercury dealership in Tampa, Florida. He began the program on October 27, 1975, and over the course of the next few months complained to Ford that Northgate management and employees repeatedly used offensive racial epithets, including referring to poorly repaired cars as "nigger-rigged" and referring to the salesman with the lowest sales volume as "the black ass." On one occasion the Northgate leasing manager called Walker a "dumb nigger";
Walker was terminated from the training program on June 17, 1976, four days after a Northgate co-owner Parks incorrectly reported Walker absent from work and shortly after Walker had requested a transfer to another dealership because of the racial slurs used by Northgate personnel. Walker sought reinstatement from Ford, and when it refused, filed a complaint with the EEOC. After receiving his right-to-sue letter, Walker filed this action in federal district court, alleging that the termination violated Title VII. The district court found that the pervasive use of racial slurs at the Northgate dealership was an unlawful employment practice under 42 U.S.C. § 2000e-2(a)(1) and that the inaccurate attendance report which resulted in Walker's discharge was motivated by Walker's complaints about the racial epithets. Accordingly, the court found that Ford and Northgate were guilty of retaliatory discharge under 42 U.S.C. § 2000e-3(a). The court awarded Walker reinstatement in the training program, or alternatively backpay for the remainder of the training period missed by Walker after the discharge, and attorney's fees, but denied compensatory damages claimed by Walker and also denied punitive damages.
We first address the issues raised by Ford's cross-appeal. Ford makes two separate arguments concerning the trial court's finding that it violated Title VII. First, it claims that while a work atmosphere tainted by pervasive racially abusive language can be unlawful under § 2000e-2, the racial slurs used at the Northgate dealership were not sufficiently pervasive to rise to a violation of Title VII.
We disagree. As Ford correctly notes, "an employer violates Title VII simply by creating or condoning an environment at the workplace which significantly and adversely affects [the psychological well-being of] an employee because of his race or ethnicity, regardless of any other tangible job detriment to the employee." Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). See Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971), cert. denied, 406 U.S. 957, 92 S.Ct. 2058, 32 L.Ed.2d 343 (1972); Calcote v. Texas Education Foundation, Inc., 458 F.Supp. 231, 237 (W.D.Tex.1976), aff'd, 578 F.2d 95 (5th Cir. 1978). Accord Johnson v. Bunny Bread Co., 646 F.2d 1250, 1257 (8th Cir. 1981); Cariddi v. Kansas Chiefs Football Club, 568 F.2d 87, 88 (8th Cir. 1978). Ford argues, however, that the racial slurs used by Northgate personnel were either common parlance of an automobile
This court recognized in Henson that "the mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee `does not rise to a Title VII violation.' For  harassment to state a claim under Title VII, it must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment." Henson, 682 F.2d at 904. Here, however, the district court specifically found that Northgate personnel's use of the terms "nigger-rigged" and "black-ass," as well as other racially abusive language was "repeated," "continuous," and "prolonged" despite Walker's objections, and that the language made Walker feel unwanted and uncomfortable in his surroundings. These findings were findings of fact which must be upheld unless clearly erroneous. See id. at 907-07 (whether harassment is severe enough to seriously affect the psychological well-being of employees is a question to be determined with regard to the totality of the circumstances).
The findings were not clearly erroneous. Co-owner Karras admitted to repeatedly using the term "black ass." Although Parks claimed he had never heard the phrase "nigger-rigged" around the dealership, he admitted it was a common term in the car business. Both men asserted, however, that neither of these terms were intended to carry racial overtones. All other instances of opprobrious language alleged by Walker were confirmed by the record, and even Judson Powell, the manager of Ford's trainee program, tacitly admitted the conditions at the Northgate dealership by advising Walker that the racial slurs were "just something a black man would have to deal with in the South," and that Walker should not dwell on "trivialities" but concentrate on the broad goal of finishing the training program. Accordingly, we find no error in the court's conclusion that the work atmosphere at the Northgate dealership violated § 2000e-2.
Ford's next argument is that even if the trial court was correct in finding a § 2000e-2 violation, it erred in finding a retaliatory discharge under § 2000e-3. Ford contends that the trial court impermissibly shifted the burden of proof to Ford to show a legitimate non-discriminatory reason for the discharge contrary to the Supreme Court decision in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Further, Ford asserts that no evidence of a retaliatory discharge existed to support the trial court's findings.
We find both these arguments without merit. As to the first, we agree with Ford that Burdine mandates that the plaintiff always bear the burden of persuasion on the ultimate fact of discrimination. We also agree that under the traditional three-step proof in Title VII cases,
Ford's second claim is likewise meritless. The court found after reviewing all the evidence that "a significant motivation" for Walker's discharge was his complaints about the racial slurs at the Northgate dealership. This finding of ultimate fact can be overturned only if clearly erroneous. Pullman-Standard v. Swint, ___ U.S. ___, 102 S.Ct. 1781, 1787-91, 72 L.Ed.2d 66 (1982); Jones v. Lumberjack Meats, Inc., supra at 101. The trial court's finding was amply supported by the record. Walker's discharge resulted from co-owner Parks' report to Ford that Walker had been absent from work without excuse and Parks' request that Walker be removed from the Northgate training program. Parks had signed work reports for Walker indicating that the trainee had attended work on the disputed day, however, and the incorrect report and request for Walker's removal came shortly after Walker had asked Ford for a transfer because of the racial slurs at Northgate. Ford, moreover, offered Walker no viable explanation for his removal other than that he had "failed to live within the discipline of the dealership" and its proffered excuse at trial — Walker's alleged absenteeism — was rebutted by work reports introduced by Walker. Accordingly, we find no error in the trial court's conclusion that Ford was guilty of retaliatory discharge under 42 U.S.C. § 2000e-3.
We next turn to the claims raised by Walker concerning the backpay award. He first asserts that the trial court erred in awarding his backpay only from the time of dismissal to the end of the training program. The trial court based its denial of further backpay on the theory that because the training program had a fixed term of eighteen months and because the training agreement specifically relieved Ford of any obligation to employ Walker at the program's end,
Although we find under separate analysis that Walker was not entitled to further backpay, we conclude that the trial court's reasoning was too superficial. The mere fact that the training agreement was for a fixed term did not automatically end Ford's liability. On the contrary, our cases have recognized that even employees hired for fixed terms may be entitled to backpay from the date of the adverse employment action until reinstatement. See, e.g., McLaurin v. Columbia Municipal Separate School District, 478 F.2d 348, 356 (5th Cir. 1973) (teachers employed under one-year contracts entitled to backpay from date of discharge to date of reinstatement); Sparks v. Griffin, 460 F.2d 433, 443 (5th Cir. 1972) (same).
An employee's claim for backpay for a period beyond that set by the employment agreement raises issues of causation which have not been thoroughly analyzed by the courts. In cases involving employment terminable at will or otherwise of indefinite duration, courts in essence have presumed that once the plaintiff shows that discrimination resulted in economic injury, either through improper discharge or a failure to hire, the injury continues until reinstatement. See Merriweather v. Hercules, Inc., supra (once plaintiff proved injury due to discrimination plaintiff was entitled to backpay until date of reinstatement despite questions concerning plaintiff's health, since record did not show high rate of absenteeism); Mims v. Wilson, 514 F.2d 106, 110 (5th Cir. 1975) (plaintiff who proves he is victim of unlawful discrimination presumptively entitled to backpay until date of reinstatement). See also Edwards v. School Board, 658 F.2d 951, 954-55 (4th Cir. 1981) (Title VII plaintiff who proves intentional discrimination need not prove continuing property interest in job to recover backpay until reinstatement). This presumption is proper not only because the defendant's wrongful conduct prevents accurately reconstructing the plaintiff's work history but also because in the absence of evidence to the contrary, no reason exists to assume that employment for an indefinite term would not have lasted indefinitely.
The Fourth Circuit has held this presumption applicable even in cases which involve fixed terms of employment. Edwards v. School Board, supra. Unlike situations involving employment of indefinite duration where such a presumption is consistent with the facts of the case, however, applying a presumption of continued employment to fixed-term cases runs contrary to the evidence which, absent anything to
Generalizing these holdings to a broad rule of Title VII damages, we conclude that the proper allocation of proof in cases involving fixed-term contracts is that a plaintiff must initially introduce some evidence showing that the economic injury resulting from the discharge extended beyond the employment term. As in the teacher discharge cases, this proof may consist of no more than a showing that the particular plaintiff's contract had been renewed in the past, that contracts of similarly situated employees had been renewed, or that the employer had made a promise of continued employment. Once the plaintiff carries this burden, and thus in the words of Marks v. Prattco, supra, establishes the damages resulting from the discriminatory acts, then the burden shifts to the defendant to show by a preponderance of the evidence that the plaintiff would not have remained in employment beyond the contract term.
We also reject Walker's argument that his last three months' pay
Walker's final complaints concern the district court's denial of certain compensatory damages claimed by Walker
Perhaps the most persuasive rationale behind the damages ban, however, is the courts' observation that in 1968 Congress enacted the Fair Housing laws which specifically provided for both actual and punitive damages remedies, 42 U.S.C. § 3612, yet four years later when Congress amended § 2000e-5(g) it failed to include any provision for damages. As the Ninth Circuit has noted, "the very detailed provisions of § 2000e-5 almost compel the conclusion that Congress intentionally left out any provision for either general or punitive damages." Padway v. Palches, supra, 665 F.2d at 968.
We find the reasoning presented in these cases persuasive and adopt the rule that compensatory and punitive damages are unavailable in Title VII suits. We caution, however, that the compensatory damages ban does not include concomitants of employment such as fringe benefits, pension benefits, or other lost work benefits which at times have been referred to as "damages."
Shortly afterward the court again inquired:
We do not find any inconsistency between the allocation of proof we adopt here and the Supreme Court's decision in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). As the Ninth Circuit noted in City of Salinas, supra, Burdine's allocation of intermediate burdens of proof applies only to the initial decision whether intentional discrimination occurred. Where a court already has found intentional discrimination, either by defendant's admission, direct evidence, or through the Burdine circumstantial evidence analysis, Burdine is no longer applicable to subsidiary issues such as damages. In the case before us, we have already held Ford liable for intentional discrimination; the only remaining question is damage causation, a question outside Burdine's scope.
Finally, we also consider this test fully compatible with our recent decision in Pettway v. American Cast Iron Pipe Co., 681 F.2d 1259 (11th Cir. 1982) (Pettway V). In Pettway V a panel of this court held that plaintiffs in a class-action discrimination suit did not have to "prove" specific jobs denied and their qualifications for those jobs in order to be entitled to relief, but rather had only to give a "statement" of the essential facts entitling them to relief. We conclude that this test from Pettway V essentially is the same as requiring a Title VII plaintiff claiming economic loss for a period beyond the fixed term of employment to introduce some initial evidence that the economic loss in fact continued beyond the employment term, which then shifts the burden to the defendant to prove by a preponderance that the claimed loss was not the result of the unlawful discrimination.
Appellant cited Rosen v. Public Service Electric & Gas Co., 477 F.2d 90 (3d Cir. 1973) as supporting an award of compensatory damages in Title VII cases. Although the Rosen court referred to an award of back pension benefits as "compensatory damages," the Third Circuit later referred to Rosen as a case of "equitable restitution." Richerson v. Jones, 551 F.2d 918, 927 n.13 (3d Cir. 1977). As we note in the text, infra, moreover, we consider a restoration of lost work benefits such as pension benefits to be within the equitable remedies available in Title VII cases.