Payne v. McLemore's Wholesale & Retail Stores

• Citation: 26 Fair Empl.Prac.Cas. (BNA) 1500,654 F.2d 1130
• Decision Date: 04 September 1981
• Docket Number: No. 79-3674,79-3674
• Parties: 26 Fair Empl.Prac.Cas. 1500, 26 Empl. Prac. Dec. P 32,097 Charles PAYNE, Plaintiff-Appellee, v. McLEMORE'S WHOLESALE & RETAIL STORES, a Louisiana Corporation, Defendant- Appellant. . Unit A
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1130

654 F.2d 1130

26 Fair Empl.Prac.Cas. 1500,

26 Empl. Prac. Dec. P 32,097

Charles PAYNE, Plaintiff-Appellee, v. McLEMORE'S WHOLESALE & RETAIL STORES, a Louisiana

Corporation, Defendant- Appellant.

No. 79-3674.

United States Court of Appeals, Fifth Circuit.

Unit A

Sept. 4, 1981.

G. Phillip Shuler, David L. McComb, Jarrell E. Godfrey, Jr., New Orleans, La., for defendant-appellant.

R. James Kellogg, New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before COLEMAN, GARZA and SAM D. JOHNSON, Circuit Judges.

SAM D. JOHNSON, Circuit Judge:

This is a Title VII action alleging that in early 1971, defendant McLemore's Wholesale & Retail Stores, Inc. failed to rehire plaintiff Charles Payne because of his participation in activities protected by section 704(a) of the Civil Rights Act of 1964. 42 U.S.C.A. § 2000e-3(a). The district court concluded that plaintiff successfully carried his ultimate burden of proving discrimination. The district court found that plaintiff established a prima facie case of discrimination under section 704(a) by showing that the employer's failure to rehire plaintiff was caused by plaintiff's participation in boycott and picketing activities in opposition to an unlawful employment practice of the defendant. In addition, the district court found that plaintiff proved that the employer's proffered explanation for its failure to rehire the plaintiff that plaintiff failed to reapply for a job with the employer was merely pretextual. Because the finding of retaliatory discrimination is supported by requisite subsidiary facts, we affirm the district court judgment for the plaintiff.

During the period of time in which the actions challenged by plaintiff took place, McLemore's Wholesale & Retail Stores was a commercial partnership whose partners were J. W. McLemore, Jr., and Quinten McLemore, both of Winnsboro, Louisiana. The partnership's operations included McLemore Wholesale Grocery, McLemore Jitney Jungle (a retail grocery operation), McLemore Farm Store (a light hardware, sporting goods, western wear, feed, seed, fertilizer, and chemical sales store), and Big M. Mobile Homes (a retail mobile home outlet). McLemore's Wholesale & Retail Stores, Inc., a Louisiana corporation, was incorporated August 26, 1975. In 1976, when this lawsuit was filed, the operation of McLemore's Wholesale & Retail Stores, Inc. had not changed significantly from the time it was a partnership; it continued to maintain the same operations that it had for the past several years. The officers, principal stockholders, and two of the directors of the corporation were J. W. McLemore, Jr., and Quinten McLemore. ¹

Although there is some confusion with respect to the exact time at which plaintiff began working for defendant, it appears that plaintiff began his employment with defendant about May or June of 1966. Plaintiff originally worked in McLemore's fertilizer plant. ² The operation of the plant was seasonal in nature since the demand for fertilizer was dependent upon the farmers' planting seasons. During the first two years of plaintiff's employment with defendant, he was laid off for three months each year during the seasonal decline in work. In later years, during the off-season plaintiff was not laid off, but was instead shifted to positions in other parts of the defendant's operations. As a result, during his employment with McLemore's, plaintiff worked as a fertilizer plant operator, a truck driver, a warehouse worker, a dock worker, and a farm store porter.

In November 1970, plaintiff was once again laid off due to the seasonal business decline. Two other black employees and two white employees were laid off at the same time. About a month later, plaintiff became involved in the formation and organization of the Franklin Parish Improvement Organization, a nonprofit civil rights organization. The formation of the Improvement Organization was precipitated by an incident involving two black children who were turned away from a public swimming pool. The organization was interested in improving social conditions of blacks in Franklin Parish, and it focused especially on the need to get blacks hired in retail stores in money-handling and supervisory positions in order to improve the treatment that blacks received while shopping in stores. Shortly after its formation, the members of the organization decided to boycott several retail businesses, including those of defendant in Winnsboro. Plaintiff organized and implemented the boycott and was actively involved in picketing McLemore's Jitney Jungle Food Stores. Defendant knew of plaintiff's involvement in the boycott and picketing. Moreover, the boycott and picketing were effective and defendant's business suffered as a result.

In previous years when he had been laid off, plaintiff had always gone back to work for defendant when the work picked back up. In the year of the boycott, however, he was not recalled or rehired. ³ In February 1971, plaintiff filed a charge of discrimination against McLemore's with the Equal Employment Opportunity Commission (EEOC). The charge alleged that plaintiff was not called back to work because he had attended a civil rights meeting. A February 1974 letter from the EEOC inviting the parties to engage in conciliation efforts characterized plaintiff's charge as alleging that defendant "failed to recall him following a layoff because of his race ... and because of his participation in Civil Rights activities." Record, vol. 1, at 106. The EEOC ultimately issued a right to sue letter on March 23, 1976.

On June 17, 1976, plaintiff filed this action in federal district court alleging that defendant's failure to rehire plaintiff was a result of plaintiff's race and his civil rights activity. ⁴ In its answer, McLemore's denied that it had committed any discriminatory actions, and asserted that the reason the plaintiff was not rehired was because he failed to reapply for a position with McLemore's after he was laid off. The district court held that plaintiff did reapply for his job, but that he was not rehired because of his participation in boycotting and picketing activities. The court further found that participation in the boycott and picketing was protected activity under section 704(a) of Title VII; in other words, the district court concluded that the boycott and picketing were in opposition to an unlawful employment practice of the defendant. The court awarded plaintiff back pay, costs, and attorney's fees totalling $16,260.90.

The opposition clause of section 704(a) of Title VII provides protection against retaliation for employees who oppose unlawful employment practices committed by an employer. (Section 704(a) also contains a participation clause that protects employees against retaliation for their participation in the procedures established by Title VII to enforce its provisions. The participation clause is not involved in this lawsuit.) The opposition clause of section 704(a) provides:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment ... because he has opposed any practice made an unlawful employment practice by this subchapter....

42 U.S.C.A. § 2000e-3(a) (emphasis added). ⁵

In this case, plaintiff contends that he was not rehired in retaliation for his boycott and picketing activities ⁶ which were, according to plaintiff, in opposition to unlawful employment practices committed by McLemore's. Plaintiff asserted that the unlawful employment practices his boycott and picketing activities were intended to protest were McLemore's discrimination against blacks in hiring and promotion specifically, McLemore's failure to employ blacks in money-handling, clerking, or supervisory positions. In demonstrating his contentions at trial, plaintiff had the initial burden of establishing a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). The burden than shifted to the defendant to articulate a legitimate, nondiscriminatory reason for the failure to rehire the plaintiff. Id. See Texas Department of Community Affairs v. Burdin, --- U.S. ----, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). Finally, if the defendant carried his burden, the plaintiff was entitled to an opportunity to show that the defendant's stated reason for its failure to rehire plaintiff was in fact pretextual. McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825; Burdine, 101 S.Ct. at 1093. See Whatley v. Metropolitan Atlanta Rapid Transit Authority, 632 F.2d 1325, 1327-28 (5th Cir. 1980) (participation clause case).

"To establish a prima facie case under (section 704(a)) the plaintiff must establish (1) statutorily protected expression, (2) an adverse employment action, and (3) a causal link between the protected expression and the adverse action." Smalley v. City of Eatonville, 640 F.2d 765, 769 (5th Cir. 1981); Whatley, 632 F.2d at 1328. The first element of the prima facie case statutorily protected expression requires conduct by the plaintiff that is in opposition to an unlawful employment practice of the defendant. Thus, for the plaintiff to prove that he engaged in statutorily protected expression, he must show that the boycott and picketing activity in which he participated was in opposition to conduct by McLemore's that was made unlawful by Title VII. According to the plaintiff, the purpose of the boycott and picketing was to oppose McLemore's discrimination against blacks in hiring and promotion. Plaintiff's complaint stated that the Franklin Parish Improvement Organization "engaged in the peaceful boycotting of Winnsboro stores, among them McLemore's Jitney Jungle Food Stores, which had refused to employ blacks except in a few menial positions." Record, vol. 1, at 2. An affidavit prepared for the EEOC by pl...