738 F.2d 1181 (11th Cir. 1984), 82-5769, Nix v. WLCY Radio/Rahall Communications

Docket Nº:82-5769.
Citation:738 F.2d 1181
Party Name:George W. NIX, Jr., Plaintiff-Appellee, v. WLCY RADIO/RAHALL COMMUNICATIONS, Defendant-Appellant.
Case Date:August 13, 1984
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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738 F.2d 1181 (11th Cir. 1984)

George W. NIX, Jr., Plaintiff-Appellee,



No. 82-5769.

United States Court of Appeals, Eleventh Circuit

August 13, 1984

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Claude H. Tison, Jr., Tampa, Fla., for defendant-appellant.

Stevan T. Northcutt, Tampa, Fla., for plaintiff-appellee.

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Appeal from the United States District Court for the Middle District of Florida.

Before TJOFLAT and FAY, Circuit Judges, and WISDOM [*], Senior Circuit Judge.

WISDOM, Senior Circuit Judge:

George Nix brought this Title VII action after he was fired from his job as a disc jockey on WLCY Radio in Tampa. WLCY alleged that Nix was fired for violating a company rule against competitive moonlighting. Nix, who is black, alleged that the moonlighting accusation was a pretext for racial discrimination. After a bench trial, the court entered judgment for Nix and awarded him $20,000 in back pay and $8,216 in attorney fees. We hold that there is insufficient evidence to support the trial court's finding that Nix was fired because of his race, and we reverse.


WLCY first hired Nix as a part-time radio announcer in late 1970. In 1971, after Nix filed an EEOC complaint, WLCY made him a full-time announcer. In addition to their regular salaries, announcers were often paid "talent fees" for work done on commercials. In January 1976, Nix made a commercial at WLCY for Air Florida. Nix believed that he was entitled to a talent fee for his commercial. He spoke to Tom Watson, the General Manager, about the fee, but he was unable to get an answer. On Wednesday, January 21, 1976, Nix left a typewritten note, along with a business card, on Watson's desk. The note asked Watson to "advise ... as to the necessary billing procedure" and added, "A copy of my production rate card is enclosed". The "production rate card" was a business card for Galaxy Productions. The card contained a list of prices for different lengths of commercials, and carried the names of George Nix and Ted Webb. Ted Webb was the air name of Henry Ruiz, another announcer at WLCY. Galaxy Productions was the name of a production venture that Webb and Ruiz had attempted to start in 1975, when Ruiz was not working at WLCY. The trial court found that Galaxy Productions had never been more than an idea, and had never done any actual business.

The card appeared to be a current business card, however. Watson reported to the station's executive committee that Nix and Ruiz had violated the station's moonlighting policy by producing commercials in competition with WLCY and by failing to report outside activities. The executive committee decided on Thursday to fire Nix and Ruiz, and Watson had final paychecks drawn for both.

On Friday, January 23, 1976, Watson met with Nix and Ruiz and told them they had been fired. In the ensuing discussion, it became clear that Ruiz had not been an employee of WLCY when he was involved in Galaxy Productions. Nix testified that he also told Watson that Galaxy had never done any business; Watson disputed this at trial. In any event, Watson fired Nix and gave him his final paycheck, but Watson tore up Ruiz's final paycheck and decided not to fire him.

On Monday Nix delivered a letter to Watson asking for reinstatement and explaining that Galaxy Productions was "DEFUNCT ... DISBANDED ...." Watson told Nix that the station would not reconsider the termination.

After his discharge, Nix filed a complaint with the NLRB alleging that he had been fired in retaliation for union activities. This claim was eventually dismissed. On March 18, 1976, Nix filed a complaint with the EEOC charging that his firing was racially motivated. Later that summer, WLCY hired a black to replace Nix. In July 1978 the EEOC issued a right-to-sue letter; Nix filed suit on October 12, 1978. The case was tried to the court on February 17-18 and April 10, 1981. On June 23,

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1981 the court issued its findings of fact and conclusions of law as to liability. The court found that Nix had established a prima facie case of racial discrimination because he was fired while Ruiz, who is white, was retained "under apparently similar circumstances". This placed upon WLCY the burden of articulating a legitimate, nondiscriminatory reason for the firing. Texas Department of Community Affairs v. Burdine, 1981, 450 U.S. 248, 253-54, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207. The court found that the defendant met this burden by asserting that Nix was fired because the station believed he had violated its moonlighting policy. But the court found that this articulated reason was "incredible in the light of the facts found herein", "that said belief was not validly held", and that this reason "was in fact a pretext for prohibited racial discrimination under Title VII". The court found that "defendant terminated plaintiff on January 23, 1976, because of his race".


A Title VII disparate treatment plaintiff must prove that the defendant acted with discriminatory purpose. Clark v. Huntsville City Board of Education, 11 Cir.1983, 717 F.2d 525, 529. Because direct evidence of discriminatory animus can be difficult to produce, it is often appropriate to analyze circumstantial evidence of discrimination according to the three-step procedure first developed in McDonnell Douglas Corp. v. Green, 1973, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668. Under that procedure, the plaintiff must create an inference of discrimination by establishing a prima facie...

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