Bigge v. Albertsons, Inc., s. 88-3468

• Decision Date: 12 February 1990
• Docket Number: 88-3721,Nos. 88-3468,s. 88-3468
• Citation: 894 F.2d 1497
• Parties: 52 Fair Empl.Prac.Cas. 239, 52 Empl. Prac. Dec. P 39,663 William BIGGE, Plaintiff-Appellant, v. ALBERTSONS, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1497

894 F.2d 1497

52 Fair Empl.Prac.Cas. 239,

52 Empl. Prac. Dec. P 39,663

William BIGGE, Plaintiff-Appellant, v. ALBERTSONS, INC., Defendant-Appellee.

Nos. 88-3468, 88-3721.

United States Court of Appeals Eleventh Circuit.

Feb. 12, 1990.

Richard Siwica, Egan, Lev & Siwica, Orlando, Fla., for plaintiff-appellant.

Miranda Franks Fitzgerald, Maguire, Voorhis & Wells, P.A., Orlando, Fla., for defendant-appellee.

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

Before ANDERSON and EDMONDSON, Circuit Judges, and HENDERSON, Senior Circuit Judge.

PER CURIAM:

William Bigge sued his former employer Albertsons, Inc., for alleged violations of Title VII of the Civil Rights Act of 1964. 42 U.S.C. Secs. 2000e et seq. This appeal concerns count two of Bigge's complaint in which he alleged that Albertsons terminated him in retaliation for his opposition to unlawful and discriminatory employment practices. Following a non-jury trial, the United States District Court for the Middle District of Florida found against the plaintiff and dismissed his action. ¹ The district court also awarded Albertsons attorney's fees. Bigge appeals the dismissal of his retaliatory discharge claim and the award of attorney's fees. Because we conclude that the district court applied the incorrect legal standard, we remand the case for further proceedings.

Bigge is of Oriental-Pacific Islander heritage. Albertsons hired Bigge as a polygraph examiner in October, 1982, and the defendant initially assigned him to its south Florida stores. Due to the consolidation of its polygraph department in October, 1984, Albertsons required Bigge to relocate to the Orlando, Florida area where he worked with his supervisor, Ubaldo Collazo, and two other polygraph examiners, Wendell Lee and Joe Brown. The examiners traveled to designated stores during the week to administer polygraph examinations and returned to the Orlando office on Friday or Saturday of each week.

Shortly after his relocation to Orlando, Bigge took exception to certain comments directed toward him and to certain tasks delegated to him by his co-workers. ² Collazo addressed Bigge's complaints of racial slurs, and these comments ceased for some time but began anew on at least one occasion.

Prior to and after Bigge's relocation to Orlando, several of Albertsons' employees criticized both the scope of Bigge's examinations and the methods he employed. Collazo investigated their complaints and generally found them to be without merit. He counselled Bigge on at least two occasions. ³

Despite Collazo's efforts to address his charges, Bigge remained dissatisfied and reduced his grievances to writing in a letter to Gary Allen, vice-president of Albertsons Southern Region. ⁴ Collazo, who received a copy of the letter, spoke with Bigge and understood the matter to have been settled. However, Bigge subsequently requested a meeting with Allen to discuss the May 24th letter. ⁵ This meeting occurred on June 10, 1985.

Only Bigge and Allen were present at the June 10th meeting. ⁶ Bigge raised again his concerns of discriminatory treatment and brought to Allen's attention for the first time his belief that Albertsons abused the polygraph examinations as a means of discriminating against handicapped persons, pregnant females, union sympathizers and black persons. ⁷ Evidently relying upon Allen's affidavit and with the mistaken impression that Materni corroborated Allen's statements, the district court found that:

Allen advised plaintiff of complaints which had been made against him, of the fact he had been leaving work early, that he had been given special consideration, and he had been given chances more than others, and that if he could not get along with Collazo, he had best make some change for his future.

ROA Vol.2-34-12. The district court also found that Bigge had indicated an inability to continue working with Collazo. ⁸ Id. at 20.

Bigge confirmed this meeting with a letter to Allen dated June 10, 1985. He repeated his complaints of discriminatory treatment and added that "you [Allen] conceded that Mr. Collazo had been referring to me [Bigge] in discriminatory terms, but ... you had to back him [Collazo] up." Brief of Appellant at p. 15, quoting June 10, 1985 letter.

Allen convened a meeting with Bigge on June 15, 1985. Materni was present on this occasion, and he testified at the trial with the aid of notes taken during the meeting. He stated that Allen reviewed the June 10th letter with Bigge "line by line," that Allen accused Bigge of misquoting him in the letter, that Allen did not believe Bigge's allegations of discrimination, that Allen criticized Bigge for cancelling two polygraph examinations on June 13, 1985, and that Allen noted employees' complaints regarding Bigge's polygraph examination technique. ⁹ Following this review, Allen terminated Bigge. Bigge's employee status report reflected that he had been fired for causing unrest or disturbance. Allen elaborated on the form as follows:

Mr. Bigge was terminated because he could no longer effectively work with his supervisor. Mr. Bigge made certain allegations against Collazo that proved to be unfounded. He was inconsiderate and antagonistic towards other members of his department which undermined his department's morale. Mr. Bigge's action and negative attitude towards the company and his responsibilities as a polygraph examiner left the company with no choice but to terminate him.

Brief of Appellant at 17. ¹⁰

Bigge pursued his allegations of discrimination before the Equal Employment Opportunity Commission. Following the Commission's determination that no cause existed to believe the plaintiff's allegations, he filed this action.

The district court found that the "plaintiff failed to establish that the defendant discriminated against him or any other of its employees. Hence, the alleged objection [to such discrimination] is totally without merit or support. There is no evidence that plaintiff's termination grew out of any protected activity." ROA Vol.3-34-20. The district court concluded that "[t]he evidence being as clear as it is, and failing to show any discrimination against plaintiff, or any other persons or class of persons, a charge of discrimination was wholly frivolous and false." Id. at 21. In buttressing its decision to dismiss the plaintiff's complaint, the district court stated that even assuming that the plaintiff's complaints of discrimination were protected activity, "the evidence clearly shows plaintiff would have been terminated in any event." Id. at 20. The court identified several statements and acts as sufficient reason to discharge Bigge, including Bigge's statement that he could no longer work with Collazo, Bigge's insubordination, Bigge's letter of June 10, 1985, "confirming" the meeting with Allen, and Bigge's cancellation of the polygraph examinations on June 13th. Id. at 20. The district court concluded that Bigge was discharged "for cause unrelated to any protected activity." Id. at 21.

To prove a prima facie case of a violation of 42 U.S.C. Sec. 2000e-3(a), ¹¹ sometimes referred to as the opposition clause, a plaintiff must establish "(1) that there was a statutorily protected participation; (2) that an adverse employment action occurred; and (3) that there was a causal link between the participation and the adverse employment action." Simmons v. Camden County Bd. of Education, 757 F.2d 1187, 1189 (11th Cir.1985), quoting Whatley v. Metropolitan Atlanta Rapid Transit Authority, 632 F.2d 1325, 1328 (5th Cir. Unit B, 1980); see McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The first element is established if the plaintiff can show that he opposed an unlawful employment practice which he reasonably believed had occurred. Wu v. Thomas, 863 F.2d 1543, 1549 (11th Cir.1989). Evidence that the protected activity and the adverse employment action were not totally unrelated satisfies the third prong of proof of a prima facie case. Simmons, 757 F.2d at 1189. Where a plaintiff has failed to produce direct evidence of discrimination, a defendant employer may rebut the prima facie case of retaliation by articulating legitimate reasons for the employment action, whereupon the plaintiff must prove by a preponderance of the evidence that the employer's articulated reasons constitute a pretext for discrimination. Id. In rebutting the plaintiff's prima facie case, a defendant employer must only produce credible evidence supporting its legitimate reasons. The employer does not bear the burden of persuasion. ¹² That burden remains with the plaintiff and is carried with evidence that the plaintiff's engagement in protected activity was a significant factor in the employer's decision. See Smalley v. City of Eatonville, 640 F.2d 765, 769 (5th Cir. Unit B 1981) ¹³ (plaintiff must prove that he was fired "because of" his opposition to unlawful employment practices); Whiting v. Jackson State University, 616 F.2d 116, 121 (5th Cir.1980) (impermissible factor must be a significant factor in employer's decision); Lincoln v. Board of Regents of University System, 697 F.2d 928, 938 (11th Cir.1983), cert. denied, 464 U.S. 826, 104 S.Ct. 97, 78 L.Ed.2d 102 (1983) (plaintiff must prove that [opposition to unlawful employment practice] was a significant factor in the employer's decision) (emphasis in original). ¹⁴ Reliance upon "an insignificant unconstitutional factor does not warrant relief, but significant reliance on an impermissible factor is a violation." Lee v. Russell County Bd. of Education, 684 F.2d 769, 775 (11th Cir.1982).

At the trial, Bigge presented considerable evidence which, if believed, would support a finding that he held a reasonable belief that Albertsons had engaged in or was engaging in unlawful and discriminatory employment practices. ¹⁵ He testified that Collazo had informed him of Albertsons' policy against hiring black persons...