Percy H. GREEN, Plaintiff-Appellant, v. McDONNELL DOUGLAS CORPORATION, Defendant-Appellee

463 F.2d 337

• Court: Court of Appeals for the Eighth Circuit
• Decided: June 28, 1972
• Docket: 20596
• Status: Published

Opinions

BRIGHT, Circuit Judge.

Percy Green, a black citizen, brought this action against McDonnell-Douglas Corporation (McDonnell) under Title VII¹ of the Civil Rights Act of 1964, seeking relief from the latter’s allegedly discriminatory conduct in denying Green employment in July 1965. Green also pressed a claim that McDonnell had discharged him from a job in August 1964 for reasons of race in violation of 42 U.S.C. § 1981. The district court denied Green any relief. Green v. McDonnell-Douglas Corporation, 318 F.Supp. 846 (E.D.Mo.1970). Green prosecutes this timely appeal. For the reasons stated below, we reverse and remand this case for further proceedings.

To place this controversy in an appropriate frame of reference, we find it necessary to examine chronologically both the underlying facts and the procedures followed in the district court. Although the immediate controversy springs from the refusal of McDonnell to employ Green on July 26, 1965, its origin lies in an earlier employment relationship. In 1956, McDonnell employed Green as a mechanic. He remained with the company continuously, except for twenty-one months of honorable military service, until he was laid off on August 28, 1964. Initially, Green’s job was protected by union security, but in 1963 he transferred to a non-union position as a laboratory technician, performing work on research projects in the Electronic Equipment Division of McDonnell. In 1964, the workload decreased in the Electronic Equipment Division, and the company laid off several persons, including Green.

Green, a long-time activist in the movement to obtain equal rights for black citizens, vigorously protested his discharge as being racially motivated. He also filed formal complaints of discrimination with the President’s Commission on Civil Rights, the Justice Department, the Department of the Navy, the Defense Department, and the Missouri Commission on Human Rights. As a member of CORE, and later as a member of ACTION, another civil rights organization, Green, in late 1964 and during 1965, participated in several demonstrations which were staged to call attention to McDonnell’s allegedly discriminatory employment practices. These demonstrations included picketing the home of James F. McDonnell, Chairman of the Board of McDonnell; blocking a main highway access route leading to the McDonnell plant during a traffic “stall-in” ; and, participating in a civil rights demonstration during which the. doors of a downtown St. Louis building which housed certain McDonnell employees were locked with chains by some of the demonstrators.

On July 25, 1965, McDonnell ran an advertisement in the St. Louis, Missouri, newspapers seeking qualified electrical mechanics. The next day Green applied for one of these positions, but McDonnell, although still seeking qualifed mechanics, refused to hire him. McDonnell never has disputed Green’s technical ability to perform the work required in that position. Thereafter, on September 14, 1965, Green filed a formal complaint with the Equal Employment Opportunity Commission (EEOC), alleging that McDonnell had discriminated against him “because of [his] race and because of [his] persistent involvement in the Civil Rights Movement.” On May 8, 1967, the EEOC determined that reasonable cause existed to believe that McDonnell had violated 42 U.S.C. § 2000e-3(a) by refusing to employ Green “because of his involvement in civil rights activities.” ² It made no determination on the allegation of racial bias.

The EEOC unsuccessfully attempted to conciliate the dispute. Accordingly, on March 19, 1968, it issued a thirty-day letter notifying Green that he might institute civil action in federal court pursuant to 42 U.S.C. § 2000e-5(e). This litigation followed.

In a complaint filed April 15, 1968, Green alleged that McDonnell had discriminated against him by denying him employment “because of his involvement in civil rights activities.” On March 20, 1969, Green filed an amended complaint alleging that McDonald also had discriminated against him by denying him employment “because of his race and color.” Upon motion of McDonnell, the district court struck this additional claim on the ground that the EEOC had made no finding as to reasonable cause on this claim. Green v. McDonnell-Douglas Corp., 299 F.Supp. 1100 (E.D.Mo.1969).

Although 42 U.S.C. § 1981 ³ was not specifically mentioned in any of the pleadings, Green, during trial and in post-trial briefs, construed the pleadings to assert that his 1964 layoff was motivated by racial prejudice in violation of that statute.

The district court rejected Green’s claim that McDonnell denied him employment in 1965 because of his participation in protected civil rights activities. The court also rejected the 1964 layoff claim brought under § 1981. It summarized its conclusions as follows:

(a) Plaintiff has not shown that defendant was motivated by racial prejudice or because of plaintiff’s legitimate civil rights activities.

(b) Plaintiff’s layoff claim under 42 U.S.C. § 1981 is barred by the statute of limitations.

(c) The Civil Rights Act does not protect activity which blocks entrance into or from an employer’s plant or office.

(d) Defendant’s refusal to reemploy plaintiff was based on plaintiff’s misconduct, which justified the refusal to rehire. [318 F.Supp. 851]

On this appeal, Green raises the following contentions:

(1) The trial court erred in dismissing his claim under 42 U.S.C. § 1981 for relief from his allegedly unlawful layoff.

(2) The trial court erred in determining that his participation in the “lock-in” and “stall-in” demonstrations did not fall within the protection of 42 U.S.C. § 2000e-3(a).

(3) The trial court erred in striking the allegations of the complaint which charged McDonnell with denying him employment for reasons of race,

I.

We turn first to the issues relating to the 1964 layoff. Several circuits, following the rationale of Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968), have concluded that 42 U.S.C. § 1981 affords a remedy in federal court for private discrimination in employment. Young v. International Telephone & Telegraph Co., 438 F.2d 757 (3d Cir. 1971); Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th Cir. 1970), cert. denied, 401 U.S. 948, 91 S.Ct. 935, 28 L.Ed.2d 231 (1971); Waters v. Wisconsin Steel Works of International Harvester Co., 427 F.2d 476 (7th Cir.), cert. denied, United Order of American Bricklayers and Stone Masons Local 21, 400 U.S. 911, 91 S.Ct. 137, 27 L.Ed.2d 151 (1970). This court has not yet passed upon this question. We find it unnecessary to do so here since, even if we assume that such an action will lie, the action in this case would be barred by the applicable statute of limitations.

Although § 1981 contains no limitation period, an action for deprivation of civil rights brought under a federal statute such as § 1981 is governed by the most analogous state statute of limitations. See Glassco v. Howell, 431 F.2d 863, 864 (8th Cir. 1970); Waters v. Wisconsin Steel Works of International Harvester Co., supra, 427 F.2d at 488. In this case, the parties agree that Missouri’s five-year limitation period for contracts⁴ is the most analogous period of limitation. Within that limitation period, Green filed no pleading which mentioned either the 1964 layoff or 42 U.S.C. § 1981.

On August 24, 1970, several months after the trial court had heard the evidence, and more than five years after the 1964 layoff, Green moved under Fed.R.Civ.P. 15(b) to amend his complaint to charge discrimination in “violation of 42 U.S.C. § 1981 in that it was based on race, color, and civil rights activities.” The trial court denied leave to amend. The record discloses that McDonnell did not expressly or impliedly consent to any action under § 1981, and that any evidence relating to the 1964 lay off was introduced as a background for Green’s claim to relief from McDonnell’s refusal to hire him in July 1965.

Green contends that his amended complaint, which was filed within the limitation period, should be construed to state a claim under § 1981 for discrimination in the 1964 layoff. We cannot accept his broad reading of the language contained in the amended complaint. Although that complaint alleges discrimination “because of . race and color,” it specifically refers to unlawful employment practices occurring on “July 26, 1965, and thereafter.” This language convinces us that the amended complaint was not intended to encompass the 1964 layoff. Accordingly, we conclude that the district court properly dismissed the layoff claim.

II.

We now examine Green’s contention that the district court erred in ruling that his participation in the “stall-in” and “lock-in” demonstrations did not fall within the protection of 42 U.S.C. § 2000e-3(a). We confine our discussion here to the question whether Green’s participation in the “stall-in” is a protected activity under § 2000e-3(a). The record does not support the trial court’s conclusion that Green “actively cooperated” in chaining the doors of the downtown St. Louis building during the “lock-in” demonstration. See Judge Lay’s concurring opinion, infra. We therefore measure the protection afforded by § 2000e-3(a) against Green’s admitted participation in the “stall-in.”

Section 2000e-3(a), as pertinent, reads:

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, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

In support of his protection argument, Green stresses the language forbidding discrimination “because [an applicant] has opposed any practice made an unlawful employment practice by this sub-chapter.” According to Green, since the “stall-in” was a non-violent protest designed to call attention to McDonnell’s allegedly discriminatory practices, this activity commands the protection of § 2000e-3(a). McDonnell, on the other hand, asserts that the unlawfulness of this protest removes it from the protection of that section.

We find little relevant authority for either position. The legislative history of Title VII provides us with no guidance as to the scope of the protection afforded by § 2000e-3(a), and the small body of case law surrounding that section contains little discussion on the subject.⁵ Nevertheless, we think it is clear from the language of the statute that Congress sought to protect employees and job applicants from employer retaliation for filing complaints to the EEOC. Those who have the courage to challenge discriminatory practices of an employer merit that protection. Without doubt, lawful protest also commands the same protection, but we find no suggestion that protection extends to activities which run afoul of the law. Accordingly, we agree with the district court that the “stall-in” demonstration was not a protected activity under § 2000e-3(a).

III.

We find merit in Green’s contention that the district court erred in striking the allegation that McDonnell denied him employment in July 1965 “because of his race and color.” Such discriminatory practices are prohibited by 42 U.S.C. § 2000e-2(a) (1), which provides:

(a) It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin. .

As noted above, the district court struck this allegation on the ground that the EEOC had made no finding of reasonable cause. Although the enforcement provisions of Title VII are silent as to the necessity of such a finding, it is now well settled that a complaining party need satisfy only two jurisdictional prerequisites in order to bring suit against an employer under Title VII: first, he must file a complaint with the EEOC; and second, he must receive the statutory notice of the right to sue. See Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir. 1971); Beverly v. Lone Star Lead Construction Corp., 437 F.2d 1136 (5th Cir. 1971); Flowers v. Local No. 6, Laborers International Union of North America, 431 F.2d 205 (7th Cir. 1970); Fekete v. U. S. Steel Corp., 424 F.2d 331 (3d Cir. 1970); Culpepper v. Reynolds Metal Co., 421 F.2d 888 (5th Cir. 1970) ; Miller v. International Paper Co., 408 F.2d 283 (5th Cir. 1969). Moreover, four circuits have squarely held that an EEOC finding of reasonable cause is not a jurisdictional prerequisite to suit. Robinson v. Lorillard Corp., supra; Beverly v. Lone Star Lead Construction Corp., supra; Flowers v. Local No. 6, Laborers International Union of North America, supra; Fekete v. U. S. Steel Corp., supra.

In this proceeding, Green satisfied the established prerequisites to a Title VII suit. His formal complaint to the EEOC stated that McDonnell had discriminated against him “because of [his] race and because of [his] persistent involvement in the Civil Rights Movement.” We hold that Green was entitled to judicial review of all grounds of employment discrimination alleged in his complaint to the EEOC, and that the district court’s ruling to the contrary was erroneous.

IV.

In anticipation of an adverse ruling on this issue, McDonnell argues that Green sustained no prejudice from the trial court’s erroneous ruling because the trial court actually considered the racial discrimination claim and ruled against Green on the merits. Therefore, the argument continues, the district court’s decision should be affirmed despite this erroneous ruling.

We cannot accept McDonnell’s suggestion that it should prevail on an issue that Green was not privileged to present. We cannot say that the district court’s action in striking the racial discrimination claim did not hamper the preparation and presentation of Green’s case, notwithstanding the commendable zeal displayed by his counsel in producing an abundant record of events and circumstances relating to Green’s employment relationship with McDonnell. Additionally, as discussed in part V below, the district court failed to consider whether the reasons given by McDonnell for not rehiring Green were related to the requirements of the job. Instead, the district court simply assumed that, since the “lock-in” and “stall-in” protests were unprotected activities, McDonnell’s refusal to rehire Green could not be violative of 42 U.S.C. § 2000e-2(a) (1). The district court said:

It must be remembered that so far as the Civil Rights Act goes, the employer may discharge or refuse to reemploy for any reason, except discrimination or because of practices made unlawful under Title VII. The testimony and evidence before the court fails to establish by its greater weight, or preponderance, that defendant’s refusal to rehire plaintiff resulted from racial prejudice or plaintiff’s legitimate civil rights activities. It seems clear from the record that defendant’s reasons for refusing to rehire the plaintiff were motivated solely and simply by the plaintiff's participation in the “stall in” and the “lock in” demonstrations. The burden of proving other reasons was on the plaintiff. [318 F.Supp. at 850]

We think it is clear that an applicant for employment may be entitled to the protection of § 2000e-2(a) (1) even though he participates in activities which fall outside the protection of § 2000e-3(a). These statutes apply to wholly different facets of the employment relationship. Section 2000e-3(a) serves peripherally in the scheme of Title VII to shield an employee or applicant from employer retaliation. Section 2000e-2(a) (1) expresses Title VII’s primary promise — equal employment opportunities for all. It would be antithetical to the remedial purposes of the Act to interrelate these sections so as to construe the Act to mean that an applicant’s civil rights activities which fall outside § 2000e-3(a) may serve as a basis for employment disqualification without consideration of the separate standards called for by § 2000e-2(a) (1).

In the light of this record, we deem it necessary to remand this case to the district court for reconsideration of the racial discrimination issue in accordance with the standards discussed below. On remand, the parties should be permitted to present such additional evidence as may be relevant to the issue.

V.

The record shows that McDonnell has taken the position that it has the right under Title VII to make subjective hiring judgments which do not necessarily rest upon the ability of the applicant to perform the work required. Upon that hypothesis, and apparently because the pleadings did not require McDonnell to defend the charge that its refusal to rehire Green was racially motivated, McDonnell made little effort to show that Green’s participation in the “stall-in” would affect his ability to perform the job or to work harmoniously with other employees and supervisors. We need to evaluate this position in light of our cases dealing with job discrimination based on race.

Our prior decisions make clear that, in cases presenting questions of discriminatory hiring practices, employment decisions based on subjective, rather than objective, criteria carry little weight in rebutting charges of discrimination. See Moore v. Board of Education of Chidester School District No. 59, Ark., 448 F.2d 709 (8th Cir. 1971). See also Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971). We reaffirm this principle here. “If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited.” Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). In enacting Title VII, Congress has mandated the removal of racial barriers to employment. Judicial acceptance of subjectively based hiring decisions must be limited if Title VII is to be more than an illusory commitment to that end, for subjective criteria may mask aspects of prohibited prejudice. Employers seldom admit racial discrimination. Marquez v. Omaha, Ford Division, 440 F.2d 1157, 1162 (8th Cir. 1971). Its presence is often cloaked in generalities or vague criteria which do not measure an applicant’s qualifications in terms of job requirements. Consequently, a black job applicant must usually rest his ease of discrimination upon proof that he possessed the requisite qualifications to fill the position which was denied him. In this case, it is undisputed that Green possessed the requisite skills to perform the work for which he applied, and that McDonnell was seeking qualified applicants at the time it refused to hire him and continued to seek qualified applicants thereafter. Moreover, Green’s pri- or performance with McDonnell had earned him a “satisfactory” rating.

When a black man demonstrates that he possesses the qualifications to fill á job opening and that he was denied the job, we think he presents a prima facie case of racial discrimination and that the burden passes to the employer to demonstrate a substantial relationship between the reasons offered for denying employment and the requirements of the job. Here, McDonnell has not demonstrated by any testimony or other evidence that Green’s participation in the “stall-in” would impede his ability to perform the job for which he applied. There is no evidence that Green’s conduct would cause fellow employees .or supervisors to refuse to cooperate with Green, thereby disrupting plant operations.⁶

In this connection, we note that McDonnell employs over thirty thousand men and women at its St. Louis plant. The record demonstrates that few employees were actually affected by the “stall-in.” We recognize that an employee’s participation in an activity such as a “stall-in” could impede his ability to work harmoniously in surroundings characterized by close personal, or working, relationships among employees or between employees and management. This problem might be present at McDonnell, but the record is bare on this point. This aspect of the case remains for further exploration. On remand, McDonnell will have the opportunity to present evidence on this matter.

We do not, as does the dissent, construe this remand as a command to McDonnell to rehire Green. The remand is required because the district court did not use the correct standard in determining whether McDonnell’s refusal to rehire Green was racially motivated. If McDonnell can demonstrate that Green’s participation in the “stall-in” in some objective way reflects adversely upon job performance, McDonnell’s refusal to rehire Green will be justified. But, if McDonnell’s refusal to rehire Green rests upon management’s personal dislike for Green or personal distaste for his conduct in the civil rights field, Green is entitled to some relief.⁷

The amount of lost earnings claimed by Green is not great, see note 8, supra, but the parties regard this as an important case and have devoted substantial time and energy to its litigation. Although the litigation is still not completed, we deem it appropriate to allow appellant a reasonable attorney’s fee for this appeal, to be taxed as costs, upon counsel’s submission of an estimate of his fee containing details of his services and time spent on this appeal. See 42 U.S.C. § 2000e-5 (k).

1 . 42 U.S.C. § 2000e et seq.

2 . The EEOC abstained from taking action in deference to the Missouri Commission on Human Rights, see 42 U.S.C. § 2000e-5(c), until February 4, 1966, when Green requested the EEOC to assert jurisdiction.

3 . Section 1981 provides :

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

4 . Mo.Ann.Stat. § 516.120(1) (1952).

5 . As support for his position, Green cites passages from Pettway v. American Cast Iron Pipe Co., 411 F.2d 998 (5th Cir. 1969). In that case, the Fifth Circuit held that § 2000e-3(a) prohibits an employer from discharging an employee who makes false statements in a complaint to the EEOC. Although the opinion characterized the protection of § 2000e-3(a) as broader than the analogous protection afforded an employee under the Fair Labor Standards Act, 29 U.S.C. § 215(a) (3), and under the National Labor Relations Act, 29 U.S.C. § 158(a) (4), the court did not attempt to define the parameters of § 2000e-3(a).

6 . We note also that the reasons advanced by McDonnell for refusing to rehire Green may be found to be p retextual, particularly since McDonnell advanced the unsupported charge that Green had “actively cooperated” in the “lock-in.” See Judge Lay’s concurring opinion, infra,.

7 . The record shows that Green obtained reasonably equivalent employment subsequent to July 26, 1965, the date when McDonnell refused to rehire him. Under these circumstances, the district court may limit relief, if any is to be given, to damages based on Green’s loss of earnings between July 26, 1965, and the date on which he acquired reasonably equivalent employment, which loss Green estimated to be between four and five thousand dollars.