Melvin Hicks v. St. Mary's Honor , 90 F.3d 285 ( 1996 )


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  •                                       ____________
    No. 95-3549
    ____________
    Melvin Hicks,                               *
    *
    Appellant,         *
    *
    v.                                    *
    * Appeal from the United States
    St. Mary's Honor Center;                    * District Court for the
    Department of Corrections and               * Eastern District of Missouri
    Human Resources, Division of                *
    Adult Institutions; Steve                   *
    Long,                                       *
    *
    Appellees.         *
    ____________
    Submitted:   April 11, 1996
    Filed:   July 22, 1996
    ____________
    Before McMILLIAN, JOHN R. GIBSON and FAGG, Circuit Judges.
    ____________
    McMILLIAN, Circuit Judge.
    Melvin Hicks appeals from a final judgment entered in the United
    States District Court1 for the Eastern District of Missouri in favor of his
    former       employer,    St.   Mary's   Honor   Center   (St.   Mary's),   and   the
    superintendent of St. Mary's, Steve Long (together defendants), on his
    claims arising under Title VII and the equal protection clause.             Hicks v.
    St. Mary's Honor Ctr., No. 88-109C(5) (E.D. Mo. Aug. 31, 1995) (Hicks V).
    The judgment presently on appeal followed a remand from this court, 
    id., 2 F.3d
    265, 267 (8th
    1
    The Honorable Stephen N. Limbaugh, United States District
    Judge for the Eastern District of Missouri.
    Cir. 1993) (Hicks IV) (amended by substitution on Feb. 15, 1994),2 which,
    in turn, followed the Supreme Court's decision in St. Mary's Honor Ctr. v.
    Hicks, 
    509 U.S. 502
    (1993) (Hicks III), reversing our earlier decision,
    Hicks v. St. Mary's Honor Ctr., 
    970 F.2d 487
    (8th Cir. 1992) (Hicks II),
    which had reversed the district court's original judgment in favor of
    defendants, 
    id., 756 F. Supp.
    1244 (E.D. Mo. 1991) (Hicks I).           For
    reversal, plaintiff now argues that the district court clearly erred in
    finding that his demotion and discharge were not motivated by racial
    discrimination or a desire to retaliate against him for filing charges of
    employment discrimination with the Equal Employment Opportunity Commission
    (EEOC).3   Applying the analytical principles set forth by the Supreme Court
    in Hicks III, we now affirm.
    I.
    The facts of this case are stated in detail in the district court's
    1991 decision, Hicks 
    I, 756 F. Supp. at 1246-49
    , 1250-52, and supplemented
    in Hicks V, slip op. at 7-9.     Plaintiff, an African American male, was
    hired in August 1978 as a correctional officer at St. Mary's, a minimum
    security correctional facility
    2
    The unamended version of the panel's opinion is printed in
    the bound Volume 2 of the Federal Reporter, 3d Series. The final
    amended version of the panel opinion is available on Westlaw. Hicks
    v. St. Mary's Honor Ctr., 
    2 F.3d 265
    (8th Cir. 1993) (amended by
    substitution on Feb. 15, 1994) (Hicks IV).
    3
    The district court reaffirmed its findings of fact from its
    1991 decision and declared those findings applicable to both the
    issue of whether defendants' personal animosity toward plaintiff
    was racially motivated and plaintiff's retaliation claim. Hicks v.
    St. Mary's Honor Ctr., slip op. at 7, No. 88-109C(5) (E.D. Mo.
    Aug. 31, 1995) (Hicks V). In its 1991 decision, the district court
    found that defendants' proffered reasons for demoting and
    discharging plaintiff were pretextual and that he was treated
    unfairly, but nevertheless found that defendants' "unfair
    treatment" of plaintiff was not motivated by race.        Id., 
    756 F. Supp. 1244
    , 1252 (E.D. Mo. 1991) (Hicks I), rev'd and remanded,
    
    970 F.2d 487
    (8th Cir. 1992) (Hicks II), rev'd and remanded, 
    509 U.S. 502
    (1993) (Hicks III).
    -2-
    (also referred to as a "halfway house") operated by the Missouri Department
    of Corrections and Human Resources.                In February 1980, plaintiff was
    promoted to shift commander, a supervisory position.               In January 1984, St.
    Mary's underwent extensive supervisory changes and, among them, Long became
    the superintendent of St. Mary's and John Powell became the chief of
    custody (and plaintiff's immediate supervisor).                Hicks 
    I, 756 F. Supp. at 1246
    .    Prior to these personnel changes, plaintiff enjoyed a satisfactory
    employment record and had not been disciplined for any rule violations.
    
    Id. at 1249.
            Immediately afterward, however, he became the subject of
    repeated, and increasingly severe, disciplinary sanctions.                 
    Id. at 1246-48;
    Hicks 
    III, 509 U.S. at 505
    .
    Plaintiff was suspended for five days for rule violations committed
    on March 3, 1984, by his subordinates.             Hicks 
    I, 756 F. Supp. at 1246
    -47.
    Powell testified at trial that "it was his policy to discipline only the
    shift commander for violations which occurred on the commander's shift."
    
    Id. at 1250.
         However,    the     district   court    found   that   "plaintiff
    demonstrated such a policy only applied to violations which occurred on
    plaintiff's shift."        
    Id. For example,
    some of the very same infractions
    for which plaintiff was suspended occurred under the watch of shift
    commander Sharon Hefele (who is white) and yet she was not disciplined.
    
    Id. at 1246
    & n.3, 1250-51.
    Later that month, a fight broke out between two inmates during
    plaintiff's shift.        On March 29, 1984, plaintiff was given a letter of
    reprimand for allegedly failing to investigate the fight adequately.                   
    Id. at 1247.
         The district court found that, in comparison to this and other
    violations     for    which   plaintiff      was   disciplined,    "much    more    serious
    violations,      when    committed     by    plaintiff's    co-workers,      were    either
    disregarded or treated much more leniently."               
    Id. at 1251.
         For example,
    on one occasion, transportation officer Ed Ratliff (who is white) permitted
    an unescorted inmate access to Long's locked office.                
    Id. at 1247
    n.8,
    -3-
    1248, 1251.     The district court described this rule violation as "a
    striking and obvious breach of security," noting that "the inmate had
    access to Long's private files" and "could have acquired a weapon to use
    against a correctional officer or another inmate."          
    Id. at 1251.
      In
    response, however, "Powell not only refused to discipline Ratliff but
    praised him for 'diffusing a volatile situation.'"       
    Id. On March
    19, 1984, two correctional officers under plaintiff's
    supervision used a St. Mary's vehicle without entering the vehicle use in
    a log book.   
    Id. at 1247.
       Following that incident, Powell recommended that
    plaintiff be disciplined -- not for authorizing the use of the vehicle, but
    rather for failing to ensure that the use was logged.     
    Id. A disciplinary
    review board comprised of two African Americans and two Caucasians voted
    on April 6, 1984, in support of plaintiff's demotion.     
    Id. Powell was
    one
    of the four members of the disciplinary review board which voted on his
    recommendation that plaintiff be demoted; as a member of the disciplinary
    review board, Powell then voted to terminate rather than merely demote
    plaintiff.    
    Id. at 1247
    n.7.
    On April 11, 1984, plaintiff filed a complaint with the EEOC.     Hicks
    V, slip op. at 8.     The complaint alleged racial discrimination in his
    employment conditions.       Joint Appendix, Vol. I, at 9 (Plaintiff's First
    Amended Complaint, ¶ 10).      At that point, plaintiff had received the five-
    day suspension and the letter of reprimand, but had not been notified of
    his demotion.
    On April 19, 1984, plaintiff was notified in a meeting with Powell,
    Long, and the assistant superintendent, Vincent Banks, that he was being
    demoted from shift commander to correctional officer.           Hicks 
    I, 756 F. Supp. at 1247
    .   Upon review of plaintiff's demotion, the district court
    found that this was an example of how plaintiff was treated much more
    harshly than co-workers whose rule violations were equally severe or more
    severe.   
    Id. at 1251.
      For
    -4-
    example, acting shift commander Michael Doss (who is white) allowed an
    inmate to escape during his shift.                
    Id. at 1251,
    1248 & n.12.         Doss
    admitted that his negligence permitted the escape.                 
    Id. at 1251.
         The
    district court noted "[a]lthough the escape of an inmate is clearly much
    more serious than the failure to log the authorized use of a vehicle, Doss
    was only given a letter of reprimand for the violation."              
    Id. On May
    7, 1984, plaintiff filed another complaint with the EEOC.
    Hicks V, slip op. at 8.         He alleged in his second EEOC complaint that he
    had been demoted due to racial discrimination and in retaliation for having
    filed   the    first    EEOC   complaint.     Joint    Appendix,   Vol.   I,   at   9-10
    (Plaintiff's First Amended Complaint, ¶ 15).
    On June 7, 1984, plaintiff was discharged ostensibly for threatening
    Powell during an argument, which occurred after plaintiff was informed of
    his demotion.          According to the district court's findings, plaintiff
    requested the day off upon being told of the demotion.              Long granted the
    request and, as plaintiff attempted to leave, Powell followed him and
    ordered him to open his locker so that Powell could retrieve plaintiff's
    shift commander's manual.           Plaintiff refused to comply, and the two
    exchanged heated words.        Plaintiff indicated that he would "step outside"
    with Powell, to which Powell warned that his words could be perceived as
    a threat.      Plaintiff then left.     Hicks 
    I, 756 F. Supp. at 1247
    .          Powell
    claimed that plaintiff had threatened him and sought disciplinary action
    against plaintiff.         On May 9, 1984, a four-member disciplinary board,
    including at least two African Americans, voted to suspend plaintiff for
    three days.      
    Id. However, contrary
    to the disciplinary review board's
    decision, Long recommended to his superiors that plaintiff be terminated.
    
    Id. at 1247
    -48.         At trial, Long testified that his recommendation was
    based upon "the severity and accumulation of plaintiff's violations."               
    Id. at 1248.
         With respect to plaintiff's alleged
    -5-
    threats to Powell, the district court found "the evidence suggests that
    Powell manufactured the confrontation between plaintiff and himself in
    order to terminate plaintiff."      
    Id. at 1251.
       As to the severity and
    accumulation of plaintiff's violations, upon which Long allegedly relied
    in recommending plaintiff's termination, the district court concluded that
    those reasons were pretextual.    
    Id. Plaintiff brought
    this employment discrimination action in federal
    district court, asserting Title VII claims against St. Mary's and a § 1983
    equal protection claim against Long.    The district court held a bench trial
    at which plaintiff presented a disparate treatment case.          Addressing
    plaintiff's racial discrimination claim only, the district court found for
    defendants.   In considering the evidence according to the analytical
    framework established in McDonnell Douglas Corp. v. Green, 
    411 U.S. 792
    (1973), the district court held that "[p]laintiff proved a prima facie case
    of race discrimination" and that "defendant has succeeded in setting forth
    a legitimate, non-discriminatory reason for the adverse employment action."
    Hicks 
    I, 756 F. Supp. at 1250
    .   At that time, defendants had proffered "two
    legitimate, non-discriminatory reasons for their actions: the severity and
    the accumulation of rules violations committed by [plaintiff]."   Hicks 
    III, 509 U.S. at 507
    (citing Hicks 
    I, 576 F. Supp. at 1250
    ).   Upon consideration
    of the evidence at trial, the district court found that defendants'
    proffered reasons were not the real reasons for their adverse treatment of
    plaintiff because plaintiff was the only supervisor disciplined for rule
    violations committed by subordinates; similar and even more serious
    violations committed by plaintiff's co-workers were disregarded or treated
    more leniently; and Powell had manufactured the final argument with
    plaintiff in order to provoke plaintiff into threatening him.     
    Id. at 508
    (citing Hicks 
    I, 576 F. Supp. at 1250
    -51).         Thus, the district court
    concluded "[p]laintiff has carried his burden in proving that the reasons
    given for his demotion and termination were
    -6-
    pretextual."           Hicks 
    I, 576 F. Supp. at 1251
    .            Nevertheless, the district
    court held that plaintiff had failed to prove that his race motivated
    defendants' decisions to demote and to discharge him.                        The district court
    relied on evidence that: each of the two four-member disciplinary review
    boards which recommended disciplining plaintiff included two African
    Americans4;           plaintiff's      African     American     subordinates       (i.e.,    non-
    supervisors),          who     actually     committed    the   rule     violations,   were      not
    disciplined; and the total number of African American employees at St.
    Mary's remained relatively constant despite the numerous personnel changes
    that occurred.5              Hicks 
    III, 509 U.S. at 508
    n.2 (citing Hicks 
    I, 756 F. Supp. at 1244
    , 1252).              The district court stated "although plaintiff has
    proven the existence of a crusade to terminate him, he has not proven that
    the crusade was racially rather than personally motivated."                        Hicks I, 756
    F.   Supp.       at    1252.        Thus,   the   district     court    entered   judgment      for
    defendants.       
    Id. at 1253.
            The district court did not address plaintiff's
    additional        claim      that    defendants    had   demoted       and   terminated   him    in
    retaliation for filing two charges of unlawful employment practices with
    the EEOC.
    On appeal to this court, we reversed because the district court's
    analysis was inconsistent with cases previously decided in
    4
    According to the district court's findings, the first
    disciplinary review board, which approved Powell's recommendation
    to demote plaintiff, included Powell himself as a member and, as a
    member of the review board, Powell voted for plaintiff's
    termination. Hicks 
    I, 756 F. Supp. at 1247
    & n.7. The second
    disciplinary review board, which voted to have plaintiff suspended
    for three days, was disregarded by Long who instead recommended
    plaintiff's discharge. 
    Id. at 1247
    -48.
    5
    In the period from December 1983 to December 1984,
    approximately twelve African American employees were terminated.
    Only one Caucasian employee was terminated.           Long hired
    approximately the same number of African Americans as were fired.
    
    Id. at 1249.
    Consequently, the total number of African American
    employees remained relatively constant, although the number of
    African American supervisors declined.     See infra note 8 and
    accompanying text.
    -7-
    our circuit.   Hicks 
    II, 970 F.2d at 493
    (citing cases).   We held that once
    plaintiff had proven all of defendants' proffered reasons for the demotion
    and discharge to be pretextual, plaintiff was entitled to judgment as a
    matter of law.    
    Id. at 492.
      Having reversed the district court's judgment
    on the merits of plaintiff's racial discrimination claim, we declined to
    reach plaintiff's separate argument that the district court had erred in
    failing to address his retaliation claim.      
    Id. at 493
    n.9.
    Defendants petitioned the Supreme Court for a writ of certiorari.
    The Supreme Court granted defendants' petition to address the legal issue
    presented by this case, upon which the circuits were fairly evenly divided.
    See Hicks 
    III, 509 U.S. at 512-13
    (citing cases).      The Supreme Court, in
    a 5-4 decision, reversed our decision.       Justice Scalia, writing for the
    majority, held:
    The factfinder's disbelief of the reasons put forward by
    the defendant (particularly if disbelief is accompanied
    by a suspicion of mendacity) may, together with the
    elements of the prima facie case, suffice to show
    intentional discrimination.     Thus, rejection of the
    defendant's proffered reasons will permit the trier of
    fact to infer the ultimate fact of discrimination,[] and
    the Court of Appeals was correct when it noted that,
    upon such rejection, "[n]o additional proof of
    discrimination is 
    required," 970 F.2d at 493
    (emphasis
    added).    But the Court of Appeals' holding that
    rejection of the defendant's proffered reasons compels
    judgment for the plaintiff disregards the fundamental
    principle of Rule 301 that a presumption does not shift
    the burden of proof, and ignores our repeated admonition
    that the Title VII plaintiff at all times bears the
    "ultimate burden of persuasion."
    
    Id. at 511
    (footnote and citations omitted).
    On remand from the Supreme Court, this court remanded the case to the
    district court in order to provide the parties and the district court a
    full and fair opportunity to apply the Supreme
    -8-
    Court's clarification.   Hicks 
    IV, 2 F.3d at 267
    .    Initially, the Hicks IV
    opinion stated the following.
    In particular, the district court may decide to hold an
    evidentiary hearing in order to permit the parties to
    present additional evidence on the now-critical question
    of personal animosity. For example, Hicks may be able
    to demonstrate that defendants were not motivated by
    personal   animosity   or   that  defendants'   personal
    animosity was itself racially motivated.
    
    Id. (as published
    in bound volume).    Six months later, however, this court
    entered an order denying a petition for rehearing by the panel and
    substituting the following language for the language quoted above.
    The issue of retaliatory discharge as a basis for Title
    VII liability was not reached in the district court's
    first opinion. [Hicks 
    II, 970 F.2d at 493
    n.9]. The
    district court may decide to hold an evidentiary hearing
    in order to permit the parties to present additional
    evidence.
    Hicks v. St. Mary's Honor Ctr., No. 91-1571 (8th Cir. Feb. 15, 1994) (order
    denying petition for rehearing by the panel and substituting a new page 4
    for page 4 of the opinion as originally filed).     Thereafter, a suggestion
    for rehearing en banc was denied.
    On remand, the district court correctly opined that the language that
    accompanied the February 15, 1994, order superseded the language in the
    original Hicks IV opinion.   Nevertheless, noting the confusion created by
    the page substitution, the district court decided to address both (1) the
    issue of whether defendants' personal animosity toward plaintiff was
    motivated by race and (2) plaintiff's retaliation claim.   See Hicks V, slip
    op. at 3.
    The parties agreed, with the district court's approval, that, rather
    than hold a rehearing, plaintiff would be permitted to take
    -9-
    new depositions of Powell and Long.    
    Id. at 4.
      The transcripts of Powell's
    and Long's depositions, along with other forms of documentary evidence,
    were then submitted to the district court for its consideration.    
    Id. Upon review
    of the evidence related to the personal animosity issue, the
    district court concluded "[e]xtensive findings of fact were initially made
    by this Court and there is no new reason to change those findings.        The
    Court determines that those findings are applicable . . . to the alleged
    racially motivated personal animosity directed at plaintiff by defendants."
    
    Id. at 7.
       In other words, the district court reaffirmed its earlier
    finding that defendants' unfair treatment of plaintiff was motivated by
    personal animosity; the district court, as factfinder, further concluded
    that this personal animosity was not motivated by race.    The district court
    stated "[t]here is no suspicion of mendacity here, and the ultimate fact
    of intentional discrimination, therefore, should not be inferred."     
    Id. at 9.
    On plaintiff's separate retaliation claim, the district court noted
    that its initial findings were applicable to that claim as well, 
    id. at 7,
    and concluded that plaintiff's discharge was not motivated by a desire to
    retaliate against plaintiff for filing a complaint with the EEOC.      
    Id. at 8.
      In an effort to be more specific, the district court explained:
    Plaintiff filed his initial complaint with the
    Equal Employment Opportunity Commission on April 11,
    1984 and a second complaint was filed May 7, 1984. The
    decision to discharge plaintiff was made May 21, 1984,
    four days after the Department of Corrections received
    notice of the second complaint on May 17, 1984.      The
    decision-maker was the Director of the Division of Adult
    Institutions, Donald Wyrick. There is no evidence to
    indicate that Wyrick was aware of the filing of the
    second complaint. In any event, the Court as the trier
    of fact determines that there was a lack of racial
    motivation in the decision to demote and discharge the
    plaintiff as retaliation for his filing of complaints
    with the Equal Employment Opportunity Commission. The
    same reasons are applicable as were stated in this
    Court's initial decision and finding.
    -10-
    
    Id. at 8-9.
    The district court entered judgment for defendants on the merits of
    plaintiffs' claims, 
    id. at 9,
    and this appeal followed.
    II.
    Plaintiff argues in the present appeal that the district court
    clearly erred in finding that defendants treated him unfairly because of
    personal animosity unrelated to his race.         Plaintiff argues that the
    overwhelming evidence of disparate treatment between himself, an African
    American, and similarly situated Caucasians who also held supervisory
    positions at St. Mary's, leads inescapably to the conclusion that race was
    an underlying motivation in defendants' "crusade to terminate him."     Hicks
    
    I, 756 F. Supp. at 1252
    .   Moreover, he emphasizes, the only reasons given
    by defendants at trial for demoting and discharging him were the severity
    and accumulation of his alleged rule violations -- reasons which were
    conclusively proven to be pretextual.       
    Id. at 1251.
      Finally, plaintiff
    notes that, when Long and Powell were deposed following the remand from
    this court, each testified that he did not feel any personal animosity
    toward plaintiff.6    In fact,
    6
    Long testified in his deposition as follows.
    Q.     Did you have any personal animosity towards Mr.
    Hicks?
    A.     No, sir.
    Q.     Was there any reason other than his alleged
    violation of rules that caused you to make a
    recommendation for his termination?
    A.     No, sir.
    Joint Appendix, Vol. II at 121-22 (deposition Steve Long).
    Powell testified in his deposition as follows.
    Q.     Okay. Just directing your attention to then Mr.
    Hicks, did you have any personal problems with him
    of any nature?
    A.        Personal, no.
    -11-
    notwithstanding the district court's finding of pretext, Long continued to
    maintain that the only reason why he recommended plaintiff's termination
    was that plaintiff had committed rule violations.
    In response, defendants' counsel now abandons the rule violations
    explanation (even though Long himself does not) and astutely embraces
    "personal animosity" as the justification for defendants' actions.            Brief
    for Appellees at 13, 17-19.       Defendants now argue that Powell's personal
    animosity   toward   plaintiff    is   "the   lawful   reason   for   [plaintiff's]
    discharge."    
    Id. at 19.
         In addition, even though Powell's own personal
    animosity now purportedly constitutes the real reason for plaintiff's
    demotion and discharge, defendants continue to rely on statistical evidence
    concerning, for example, the constancy in the overall number of African
    Americans employed at St. Mary's (i.e., the total number of supervisors and
    non-supervisors) and the fact that the four-member disciplinary review
    boards which recommended disciplining plaintiff
    . . . .
    Q.     Okay.   Now, what I'm trying to find out, Mr.
    Powell, the court has made certain findings that
    you and Mr. Long put him on an express track for
    dismissal. And I'm trying to find out if there
    was any reason other than your feeling that he had
    violated some rules for your actions.
    A.     No, sir.     I just reported the activities.
    Q.     You just reported on his activities?
    A.     Yes, sir.
    Q.     So you had no personal animosity?
    A.     No, sir.     None whatsoever.
    Joint Appendix, Vol. II at 146, 147 (deposition of John Powell).
    -12-
    included at least two African Americans.         
    Id. at 14,
    19-20.7          Defendants
    also highlight the fact that the number of African Americans and Caucasians
    in supervisory positions would have been equal (3 and 3) but for the
    decision by an African American male to turn down the chief of custody
    position (which was later offered to Powell).8          
    Id. Upon review
    for clear error of the district court's finding that
    racial discrimination did not motivate plaintiff's demotion and discharge,
    we affirm in light of the Supreme Court's mandate in Hicks 
    III. 509 U.S. at 514-15
    ("We have no authority to impose liability upon an employer for
    alleged       discriminatory   employment   practices      unless    an   appropriate
    factfinder determines, according to proper procedures, that the employer
    has unlawfully discrimi-nated. . . . [N]othing in law would permit us to
    substitute for the required finding that the employer's action was the
    product of unlawful discrimination, the much different (and much lesser)
    finding       that   the   employer's   explanation   of    its     action    was   not
    believable.").
    III.
    Plaintiff separately argues that the district court clearly erred in
    concluding that "the decision to discharge plaintiff was not motivated by
    a desire to retaliate against plaintiff for instituting a complaint with
    the Equal Employment Opportunity Commission."              Hicks V, slip op. at 8
    (citing Greenwood v. Ross, 
    778 F.2d 448
    , 456 (8th Cir. 1985) (reversing
    district court's dismissal
    7
    But see supra notes 4, 5 and infra note 8.
    8
    Consequently, the ratio of African American to Caucasian
    supervisors changed from 5:1 in 1983 to 2:4 after January 1984 (but
    could have been 3:3 in 1984). Brief for Appellees at 12, 14, 20,
    29; Joint Appendix, Vol. I, at 70. Of the two African Americans
    retained after January 1984, one was plaintiff. Joint Appendix,
    Vol. I, at 70.
    -13-
    of plaintiff's Title VII retaliatory discharge claim and holding that
    plaintiff established a prima facie case by showing that defendants,
    knowing that plaintiff had engaged in protected activity, refused to renew
    his employment contract)).   In response, defendants argue that the lawful
    nondiscriminatory reason defendants now rely upon to rebut plaintiff's
    racial discrimination claim (i.e., Powell's personal animosity) equally
    applies to plaintiff's retaliation claim and, together with evidence that
    is "inconsistent" with racial discrimination, "compels" a finding for
    defendants on plaintiff's retaliation claim.   Brief for Appellees at 24-25.
    We begin by noting that, in discussing plaintiff's retaliation claim,
    the district court stated the following.
    Plaintiff filed his initial complaint with the
    Equal Employment Opportunity Commission on April 11,
    1984 and a second complaint was filed May 7, 1984. The
    decision to discharge plaintiff was made May 21, 1984,
    four days after the Department of Corrections received
    notice of the second complaint on May 17, 1984.      The
    decision-maker was the Director of the Division of Adult
    Institutions, Donald Wyrick. There is no evidence to
    indicate that Wyrick was aware of the filing of the
    second complaint. In any event, the Court as the trier
    of fact determines that there was a lack of racial
    motivation in the decision to demote and discharge the
    plaintiff as retaliation for his filing of complaints
    with the Equal Employment Opportunity Commission. The
    same reasons are applicable as were stated in this
    Court's initial decision and finding.
    Slip op. at 9 (emphasis added).     The sentence underlined above clearly
    suggests that defendants made a "decision to demote and discharge the
    plaintiff as retaliation for his filing of complaints with the [EEOC]," but
    that these adverse actions were not unlawful because they were not racially
    motivated.   The sentence therefore indicates that the district court
    assumed plaintiff was required to prove racial motivation in order to
    prevail on his retaliation claim.   Racial motivation was not an element of
    plaintiff's burden
    -14-
    of proof.9   See 42 U.S.C. § 2000e-3(a) ("It shall be an unlawful employment
    practice for an employer to discriminate against any of his [or her]
    employees . . . because he [or she] has made a charge . . . under this
    subchapter."); Womack v. Munson, 
    619 F.2d 1292
    , 1296 (8th Cir. 1980)
    (Womack) (setting forth legal standards applicable to Title VII retaliatory
    discharge claim), cert. denied, 
    450 U.S. 979
    (1981); cf. Wentz v. Maryland
    Casualty Co., 
    869 F.2d 1153
    , 1154-55 (8th Cir. 1989) (Wentz) (analogizing
    Title VII and ADEA retaliation claims and citing Womack as providing
    applicable analytical framework) (reversing summary judgment granted to
    defendant on plaintiff's ADEA retaliatory discharge claim where district
    court relied on the failure of plaintiff's age discrimination claim to
    decide plaintiff's retaliation claim).
    In Wentz, the district court had stated the following reasons for
    holding, on summary judgment, that the plaintiff had failed as a matter of
    law to establish his prima facie case of unlawful retaliation under the
    ADEA.
    The [c]ourt finds that Wentz did not engage in protected
    opposition to age discrimination in light of its ruling
    above that Maryland did not discriminate against Wentz
    on the basis of age. While Wentz'[] complaint may have
    been a legitimate reaction to allegedly rude conduct by
    [a supervisor], it could not constitute justifiable
    opposition to age discrimination, as Wentz was
    criticized and ultimately terminated because of his poor
    work performance, and not because of his 
    age. 869 F.2d at 1154
    (quoting the district court's opinion below, No. 4-87-195,
    slip op. at 8 (D. Minn. Dec. 3, 1987)).    On appeal,
    9
    Likewise, contrary to defendants' argument on appeal, the
    statistical evidence relied upon by defendants as inconsistent with
    a finding of racial discrimination is not relevant to plaintiff's
    retaliation claim. Brief for Appellees at 25 ("Other evidence is
    inconsistent with intentional, racial discrimination.          That
    evidence of a lawful, nonracial motive for his demotion and
    discharge equally proves the absence of a retaliatory motive.").
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    this court reversed and remanded the case to the district court, explaining
    that, in order to establish statutorily protected activity, a plaintiff
    need   not   show   that     the   conduct    he   or   she    opposed   was   in   fact
    discriminatory.     
    Id. at 1155.
        Instead, the plaintiff "must demonstrate a
    good   faith, reasonable belief that the underlying challenged action
    violated the law."     
    Id. In the
    present case, there can be
    little doubt that plaintiff demonstrated a good faith reasonable belief
    that defendants' actions violated the law in light of the district court's
    extensive findings which illustrated that "[a]lthough plaintiff committed
    several violations of institutional rules, plaintiff was treated much more
    harshly than his co-workers who committed equally severe or more severe
    violations."   Hicks 
    I, 756 F. Supp. at 1251
    .           However, by contrast to the
    plaintiff in Wentz, plaintiff in the present case has failed to raise on
    appeal the district court's apparent error, and we hold that it does not
    rise to the level of plain error.
    As to whether the district court clearly erred in deciding that
    defendants were not motivated by a desire to retaliate against plaintiff
    for engaging in protected activity, which plaintiff did raise on appeal,
    we consider the district court's additional findings regarding some of the
    significant dates in the present case.             The district court specifically
    noted the dates on which plaintiff filed with the EEOC (April 11, 1984, and
    May 7, 1984), the date on which the Department of Corrections received
    notice of the second complaint (May 17, 1984), and the date the decision
    was made to discharge plaintiff (May 21, 1984).               Hicks V, slip op. at 8.
    The district court further found "[t]he decision-maker was the Director of
    the Division of Adult Institutions, Donald Wyrick.               There is no evidence
    to indicate that Wyrick was aware of the filing of the second complaint."
    
    Id. The finding
    that Donald Wyrick was unaware of plaintiff's second EEOC
    filing reveals nothing with respect to the relationship
    -16-
    between plaintiff's discharge and his first EEOC filing.10 Moreover, Wyrick
    was not solely responsible for plaintiff's discharge as it was Powell who
    initiated the disciplinary proceedings, and it was Long who recommended
    plaintiff's termination notwithstanding the disciplinary review board's
    endorsement of a three-day suspension.    Hicks 
    I, 756 F. Supp. at 1247
    -48
    (describing the roles of Powell and Long in the context of plaintiff's
    claim that his discharge was racially motivated, but nowhere mentioning
    Donald Wyrick's role).   Finally, to the extent that "personal animosity"
    led to plaintiff's termination, clearly it was not solely Wyrick's personal
    feelings that made it so.   See 
    id. at 1251
    ("It is clear that Powell had
    placed plaintiff on the express track to termination.     It is also clear
    that Powell received the aid of Ed Ratliff and Steve Long in this
    endeavor.").
    10
    With respect to plaintiff's first EEOC filing and his
    demotion, plaintiff failed even to establish a prima facie case.
    The April 6, 1984, vote by a disciplinary review board in favor of
    his demotion occurred five days before plaintiff filed his first
    EEOC complaint. Powell, therefore, had to have recommended the
    demotion at least five days before plaintiff's first filing. By
    contrast, however, Long's decision to recommend plaintiff's
    discharge (despite the disciplinary review board's vote on May 9,
    1984, in favor of a three-day suspension) as well as Donald
    Wyrick's formal decision to accept Long's recommendation, occurred
    approximately one month after the date on which plaintiff filed his
    first EEOC complaint (April 11, 1984), and at least nine days after
    the date on which, according to defendants, they received actual
    notice of plaintiff's first EEOC complaint (April 30, 1984). See
    Brief for Appellees at 24 n.5, & Addendum, at 7 (memorandum from
    Long to Leigh Wayne, Human Relations Officer, stating that notice
    was received on April 30).       Therefore, the timing of events
    supports the inference that plaintiff's first EEOC filing was
    causally related to his discharge. See Greenwood v. Ross, 
    778 F.2d 448
    , 456 (8th Cir. 1985) (holding that the facts were sufficient to
    establish a prima facie case of retaliatory discharge where (1) the
    plaintiff had filed an EEOC complaint and a federal lawsuit,
    (2) the defendants knew about his protected activity and considered
    it detrimental, and (3) his immediate supervisor, with the
    knowledge and consent of his superiors, refused to renew the
    plaintiff's employment contract).
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    Nevertheless, the district court did state in its opinion the
    ultimate    factual   conclusion   that   defendants'   decision   to   discharge
    plaintiff "was not motivated by a desire to retaliate against plaintiff for
    instituting a complaint with the [EEOC]."           Hicks V, slip op. at 8.
    Therefore, we affirm in light of the Supreme Court's mandate in Hicks III.
    IV.
    For the foregoing reasons, the judgment of the district court is
    affirmed.
    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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