Charles PAYNE, Plaintiff-Appellee, v. McLEMORE’S WHOLESALE & RETAIL STORES, a Louisiana Corporation, Defendant-Appellant

1130 produce any expert care. Plaintiff failed to of fact existed on ground question a contrary, although given negli- care post-operative affidavits

whether the however, court, opportunity do so. The affidavit reconsidered its gent. The nurse, registered of a was that submitted affidavits submitted order after defendant expert re- post- qualify who did not as with physicians to the effect by three case, spect to medical issues in the cf. proper care and in accord- operative Avret, 178, Ga.App. 154 267 v. standards medical McCormick ance with reasonable aff’d, 401, (1980), 271 Noting plaintiff ex- 246 Ga. failed submit S.E.2d 759 care. (1980), and in event did not held 832 opposition, court S.E.2d pert affidavits dispute a sufficient to over- or law remained raise factual material issues of fact no judgment. summary judgment. summary come granted correctly held no Since the district not abuse The court did its discre genuine remained be tried issue deny reconsidering its initial order tion in summary jury, judgment its must grant of summary light of ing judgment the new be affirmed. Time, Inc., v. Air Hotel affidavits. See Bon (5th 1970). Lind 426 F.2d 858 Cir. See also AFFIRMED. Corp., Dayton-Hudson 592 F.2d 1118

sey v.

(10th 1979). affidavits served disputed forming issues the ba

resolve for the earlier denial.

sis grant err The court also did not PAYNE, Plaintiff-Appellee, Charles ing summary judgment. Georgia Under v. action, law, applicable to this malpractice present asserting medical must WHOLESALE & RETAIL McLEMORE’S testimony expert medical to overcome the STORES, Corporation, a Louisiana care, physician’s presumption of a skill and Defendant-Appellant. See, diligence. g., Fregosi, v. 370 e. Starr No. 79-3674. 1966); Knight, Parker F.2d 15 v. 782, (1980); Appeals, Hughes 222 Court of

245 Ga. 267 United States S.E.2d Malone, 341, 146 247 Fifth Circuit. Ga.App. v. S.E.2d 107 A (1978); Kornegay, Ga.App. Unit Wilson v.

318, (1963). recognition S.E.2d Sept. 4, 1981. rule, Georgia Supreme has of this Court Rehearing Rehearing and En Banc held: 16, 1981. Denied Oct. produces ex- defendant [W]hen

pert’s opinion in his favor on motion for

summary judgment and the fails produce contrary expert opinion motion,

opposition to then there is no

genuine jury issue to be tried judg- grant summary is not error to

ment to defendant. 406, Walker, v.

Howard Ga. 249 S.E.2d Accord, (1978). Knight, Parker 46-47

245 Ga. 267 S.E.2d case, present

In the physicians

presented affidavits several opinion that defend

who each offered treatment of reasonable

ant’s general standards

and consistent McComb, Shuler, L. Jar- Phillip David

G. Orleans, La., Jr., New for Godfrey, rell E. ‍​​​‌​​​‌​‌‌​‌‌​​‌‌​‌​‌‌​‌​​‌‌‌‌‌​‌‌​​​​‌‌​‌​​‌‌‌‍defendant-appellant. La., Orleans, Kellogg, New

R. James plaintiff-appellee. COLEMAN, D. GARZA SAM

Before JOHNSON, Judges. Circuit JOHNSON, Judge: Circuit D. SAM alleging that in action This is a Title VII Whole- McLemore’s early defendant Stores, failed to rehire Inc. sale & Retail par- his because of plaintiff Payne Charles it operations the same had by section maintain ticipation activities officers, Rights past years. Act of 1964. for the several 704(a) of the Civil stockholders, two of the 2000e-3(a). principal court di- The district U.S.C.A. § corporation were J. W. successfully carried rectors of the McLe- concluded that more, Jr., Quinten McLemore.1 proving discrimina- ultimate burden court found that The district tion. Although there is some confusion with prima facie case of discrimina- established a respect to the time at which exact showing that tion under section defendant, appears began working employer’s failure to rehire plaintiff began by plaintiff’s participation was caused May about or June opposi- picketing activities originally worked McLemore’s Plaintiff employment practice tion to an unlawful plant plant.2 operation fertilizer the district defendant. since the was seasonal in nature demand for plaintiff proved that found that dependent upon the farmers’ fertilizer explanation for its employer’s proffered During the first planting seasons. two failure to rehire plaintiff’s employment —that with de- years of job employ- reapply for a with the failed fendant, three he was laid off for months merely pretextual. Because er —was during seasonal decline in year each retaliatory sup- finding years, during thе work. In later off-season facts, af- ported by requisite subsidiary we off, plaintiff was not laid but instead judgment firm the district court for positions parts other of the shifted to in plaintiff. result, operations. during As a defendant’s McLemore’s, plaintiff employment with his During period time in which plant operator, a worked as a fertilizer challenged by plaintiff place, actions took worker, driver, a a warehouse dock truck was McLemore’s Wholesale & Retail Stores worker, porter. and a farm store partnership partners a commercial whose McLemore, Jr., Quinten were and 1970, J. W. was plaintiff November once In Winnsboro, McLemore, both of Louisiana. again off due seasonal business laid operations partnership’s The included employees Two decline. other black and Grocery, McLemore McLemore Wholesale employees laid off at two white were (a operation), later, Jitney Jungle grocery retail About same time. a month hardware, (a light Farm McLemore Store involved in formation and or- became feed, seed, wear, goods, Improve- sporting ganization western Parish Franklin fertilizer, store), Big nonprofit and civil Organization, rights and chemical sales ment a (a organization. M. Homes mobile home The Im- Mobile retail formation Organization precipitated outlet). provement & Retail was McLemore’s Wholesale Stores, Inc., corporation, involving was incident two black children a Louisiana 1976, 26, public August away 1975. In were turned from a swim- incorporated who filed, operation ming pool. The was interested organization lawsuit was when this Stores, improving social conditions blacks in of McLemore’s Wholesale & Retail in Parish, especially it focused on changed significantly from Franklin and Inc. had not get in retail stores partnership; it continued the need blacks hired time it was a dismiss, 1976, 15, apparently July motion to because of the McLemore’s On defendant identity Stores, part motion the former Inc. filed a substantial between Wholesale & Retail upon nership present corporation. This rul for failure state a claim and dismiss granted. challenged by appeal. ing Defendant not which relief could be is not complaint challenged plaintiff’s (The actions ed defendant will hereinafter referred to early McLemore’s.) simply 1971. Defend of the defendant taken in as 1971; in not exist ant then contended it did rather, present corpo acquired it its status as operated the owned and fertiliz- 2. McLemore’s 26, 1975, August incor it was ration on porated when 1978, plant January at which time the er until July the laws On under of Louisiana. plant was sold. defendant’s the district court denied

H35 supervisory posi- any discriminatory had committed and money-handling improve actions, treatment and asserted that tions order reason the shopping in while stores. blacks received rehired because he formation, the members of Shortly its after reapply position failed to McLe- boycott organization several decided he was off. The more’s after laid district businesses, including those defend- retail reapply did held that organized Plaintiff and ant in Winnsboro. job, but he was not rehired because of boycott actively implemented the and boycotting and participation picketing Jitney picketing McLemore’s involved in court further activities. The found that knew of Jungle Defendant Food Stores. participation boycott picketing in the boycott plaintiff’s involvement protected activity 704(a) under section Moreover, boycott pick- picketing. VII; words, of Title in other the district eting defendant’s busi- were effective and picket- court concluded that the as a result. ness suffered ing were in to an unlawful em- ployment previous the defendant. The years In when he had been laid costs, off, always pay, back gone had back work court awarded $16,260.90. picked attorney’s totalling when work back for defendant fees however, boycott, up. year In The clause of February was not recalled or rehired.3 protection against provides Title VII retali- 1971, plaintiff charge of discrimina- filed employees oppose ation for who against Equal with the tion McLemore’s employment practices em- committed Employment Opportunity Commission (Section 704(a) ployer. par- also contains a (EEOC). charge alleged The ticipation protects employees clause that was not to work because he had called back participation retaliation for their rights meeting. A Febru- attended a civil procedures Title established VII to ary inviting from the 1974 letter EEOC provisions. participation enforce its engаge in efforts parties to conciliation lawsuit.) clause is not involved in charge alleging as characterized 704(a) provides: opposition clause of section “failed recall him follow- employment It shall be an unlawful race . . . and ing layoff a because of his for an discriminate Rights participation because his in Civil against any employees appli- or Record, 1, at 106. The activities.” vol. employment . . . because he has cants for ultimately right to sue letter EEOC issued a opposed any practice made unlawful 23, 1976. on March employment practice subchapter this 17, 1976, plaintiff filed ac- On June alleging in tion federal district 2000e-3(a) added).5 (emphasis 42 U.S.C.A. § a defendant’s failure rehire case, plaintiff contends that rights his civil In this result of race and activity.4 answer, rehired in retaliation for his its McLemore’s denied was not In against employees is be- other who were laid racial discrimination 3. Of the four only plaintiff, at fore off the same time as one this Court. employee who was not in- rehired —a black 703(a)(1), with unlawful pertinent part which deals 5. Section boycott picketing or the Frank- volved in practices, employment in states Organization. Improvement Both lin Parish plaintiff that: (the other black em- and Russell Brass prac- employment (a) be an unlawful It shall ployee rehired) were who was laid and not employer— tice for boycott picketing. involved in the and Accord- discharge (1) or to to hire to fail or refuse defendant, ing who was re- individual, any discriminate or otherwise employees hired one the five respect against individual job. reapplied for who laid off a were conditions, terms, privileg- or compensation, employment, of such individu- es because alleged Although plaintiff originally racial color, sex, race, religion, ori- national al’s him, against pursue discrimination he did gin — allegation at trial and no contention of 2000e-2(a)(l). § 42 U.S.C.A. 1136 that was made unlawful which McLemore’s activities6 picketing and

boycott plaintiff, According to the opposition to Title VII. plaintiff, in were, according to boycott picketing and was to purpose of practices committed employment unlawful against McLemore’s discrimination oppose asserted that Plaintiff by McLemore’s. hiring promotion. and Plaintiff’s blacks boycott practices his еmployment complaint stated that the Franklin Parish were intended to picketing activities “engaged Organization Improvement protest McLemore’s were stores, peaceful boycotting of Winnsboro promotion— hiring and against blacks Jitney Jungle among McLemore’s them employ failure to specifically, McLemore’s Stores, employ which had refused to Food clerking, or su money-handling, blacks in positions.” menial except blacks in a few demonstrating his pervisory positions. In Record, 1, prepared at 2. An affidavit vol. trial, initial at had the contentions stated, by plaintiff “In De- for the EEOC establishing prima facie case of burden of Improvement Parish cember the Franklin Douglas Corp. McDonnell discrimination. organized boycotted Organization 1817, 792, 802, Green, S.Ct. v. U.S. they stores because refused to downtown 1824, The burden 36 L.Ed.2d Testimony Id. at 104. hire Blacks.” to articulate a shifted to the defendant than indicating that McLemore’s offered at trial nondiscriminatory reason for the legitimate, employment blacks in discriminated plaintiff. Id. rehire the Se failure to e pick- boycott opportunities and Community Affairs v. Department of Texas eting to the failure of wеre 1089, 1093, 248, 101 Burdin, 450 S.Ct. U.S. given clerking, money-han- to be blacks (1981). Finally, if the de 67 L.Ed.2d jobs in dling, supervisory McLemore’s burden, carried his fendant enterprises enterprises, as well as in other opportunity show that was entitled to an Brass, Winnsboro, Louisiana. Russell stated reason for its failure the defendant’s plaintiff, for the testified that witness pretextual. plaintiff was in fact to rehire get purpose was “to some Douglas, McDonnell 411 U.S. Supp. hired in the stores.” 1st Rec- blacks 1825; Burdine, 101 at 1093. Ct. at S.Ct. S. plaintiff testified that when ord at 87. The Rapid Whatley Metropolitan Atlanta See formed, Improvement Organization was Authority, 632 F.2d 1327-28 Transit began investigating “why people black case). 1980) (participation clause get jobs.” Id. at 27. could not some facie case “To establish immediately he testified that after 704(a)] must under [section organization, “we the formation (1) statutorily protected expres establish getting people started to work —worked action, sion, (2) an adverse jobs jobs; going finding down and —some protected ex (3) between the a causal link get jobs.” Id. at 26-27. When could not pression Smalley action.” and ‍​​​‌​​​‌​‌‌​‌‌​​‌‌​‌​‌‌​‌​​‌‌‌‌‌​‌‌​​​​‌‌​‌​​‌‌‌‍the adverse cross-examining attorney was plaintiff’s Eatonville, (5th 769 City v. of 640 F.2d McLemore, Jr., following in- J. W. Mr. 1981); Whatley, The 632 F.2d at 1328. place: terchange took prima case —stat element of the facie first Q. you alleged It was that and other protected expression requires con utorily — would not hire blacks merchants opposition is in to duct that position and dol- supervisory within a practice of the employment an unlawful right? handling positions, is that lar Thus, prove to for the defendant. the McLe- is incorrect so far as A. That statutorily protected engaged that he were concerned. mores boycott show that expression, he must alleged, right? Q. was That partici picketing activity in which he and Right. A. pated to conduct was originally allegations made of 6. While him, against those conten- racial discrimination appeal. tions are not before this Court

1137 deposition, employment an unlawful under at his In at 119-20. Id. MeLemore, Jr., 703(a)(1), was asked what that McLemore’s discrimi- section when J.W. was, boycott he employ- stated: store against nated blacks in retail the reason for opportunities. mer- ment They claimed that —uh —the A. to were unfair in Winnsboro chants apparently was Ninth Circuit —uh—blacks. court appellate first to decide whethеr unfair, they they say? did

Q. were How 704(a) required of opposition clause section employing they were City A. Said v. proof of actual discrimination. Sias not —uh — and —uh— supervisory them Agency, F.2d Demonstration in—uh — they capacity and —uh —where sales Sias, 1978). plaintiff alleged funds, money. handled discharged by City that Demon- he (an Agency agency City of stration Record, there at 288. is sub vol. Angeles) opposi- Los in retaliation for his support to the district stantial evidence purpose boy tion of racial discrimination finding that to acts court oppose City Angeles. City deny to defend did picketing and of Los not cott discharged writing blacks in cer ant’s that “was opportunities 7—an unlaw employment grievance Regional tain letter of Adminis- practice under section employment Department ful Housing trator of 703(a)(1).8 Rather, Development (HUD). Urban it that, as trial inasmuch contend[ed] however, argues, Defendant finding court made no of actual discrimina- prima to facie plaintiff failed establish tion, to have be held violated” not] [could prove failed to that defend case because he 704(a). Id. at 694. The Ninth Cir- section employ had unlawful ant committed cuit а narrow inter- concluded “[s]uch responds he practices. ment Plaintiff legit- would chill pretation ... not prove actual exist required rights imate assertion of under employment prac ence of unlawful those employees would force Title VII but tend to tices; instead, it was suffi he asserts that charges than seek con- to file formal rather facie case if he cient establish adjustment griev- ciliation or informal defendant had had a belief that reasonable quoted at 695. The ances.” Id. Sias employment prac engaged unlawful in the extensively Metropolitan from Hearth agree and conclude tices. We Commission, F.Supp. Transit fatal it was not (D.Minn.1977), long as prove, which held “as under case that failed Douglas employee had reasonable belief that proving criteria for the McDonnell may engage picketing have been to some extent a did 7. Defendant claims picketing oppose protest position, boycott unlawful this the district court’s con- boycott picketing activity employment practices McLemore’s. In- clusion stead, contention that it is McLemore’s publi- supported by picketing practices sub- were conducted to of McLemore’s is integration public facilities cize the issues stantial evidence. courtesy support To blacks. and common points allegation, to the incident supra. 703(a)(1) provides Section note See of the Franklin Par- that initiated the formation employment prac- part that it is an unlawful Organization Improvement black chil- ish employer —two refuse to hire or to tice for an away segre- being dren gated turned from town’s respect individual with discriminate swimming pool. public In employment privileges because of testimony points of Russell McLemore’s plaintiff, According race. McLe- individual’s that, Brass, a white “[I]f stated trial who promote in or failed to hire blacks more’s lady waiting customer] black ... [a positions solely because of blacks to certain lady by then . . . would come another white Thus, plaintiff contended that their race. they [saleslady] black would ... tell the engaged employment in McLemore’s practices Supp. Al- had to though 1st Record wait.” plaintiff’s boycott pick- was, Organization Improvement in opposition eting em- in to those unlawful were position part, blacks occasioned ployment practices. although general, Winnsboro opposition require proof constituted dis- clause to of an being opposed what was VII, the claim of employment practice under Title actual unlawful crimination hinge upon showing retaliation does not purpose, Title VII’s central undermines in fact in violation of employer was employment the elimination of discrimi- The Hearth court Id. at 688. Title VII.” means; destroys one nation informal went on to state: achieving pur- of the chief means of appropri- But this Court believes pose, nondisruptive ex- the frank and perceived opposition to dis- ate informal change employers and of ideas between by the not be chilled crimination must employees; redeeming no and serves retaliatory action in the event the fear of statutory policy purposes of its own. or not exist. It alleged wrongdoing does 2000e-3(a) plays a central role in Section necessary employee for an should not be effectuating objectives. By pro- these immediately to the or EEOC to resort retaliation, employеes tecting from it is bring agencies in order to similar State designed encourage employees to call complaints of discrimination to the atten- employers’ to their attention discrimina- with some measure employer tion of may tory practices of which the protection. resolution of such The might pro- unaware or which result in prodding charges governmental without litigation le- tracted to determine their encouraged. should be gality they voluntarily changed. if are statutory language does not com- The 612 F.2d at 1045. pel contrary The elimination of result. pur- employment is the The Fifth Circuit has not heretofore di- is pose Title VII and the statute behind rectly proof the issue whether addressed interpretation. When to a liberal entitled employment practice an actual unlawful is reasonably that dis- employee believes clause, necessary under exists, opposition thereto is crimination employee protected whether an from re- employment practice opposition to an taliation under the clause if the by Title VII even if the made unlawful employee reasonably believes that thе em- employee turns out to be mistaken as ployer engaged in unlawful the facts. practices. To the extent that earlier Fifth (footnote omitted), quoted Id. at 688-89 Court, provide guidance Circuit cases to this Sias, The Circuit 588 F.2d at 695. Seventh however, they the reasonable indicate Berg adopted position.

has also this v. La Ninth belief test of the Seventh and Cir- (7th Co., Crosse Cooler 612 F.2d 1041 comports of this cuits with the decisions 1980). Berg, was dis- In policies underlying Title Circuit and the challenged employ- charged when she her Pettway VII. v. American Cast Iron provide pregnancy benefits as er’s failure to Co., Pipe 1969), 411 F.2d 998 discrimination. After she was sex-based protected employee held that an Court fired, Supreme Court United States participation clause of section plan disability ruled that a benefits does not filing a discharge from in retaliation for violate Title VII because of its failure to EEOC, charge regardless of the with the pregnancy cover related disabilities. Gen- falsity truth or the contents of the Gilbert, 125, 97 eral Electric Co. v. 429 U.S. charge. that: The Court stated 50 L.Ed.2d 343 Sev- S.Ct. purpose about the There can be no doubt enth Circuit held that where the language In unmistakable § opposed practice reasonably that she be- protect employee who utilizes is to employment prac- lieved was an unlawful by Congress protect provided the tools VII, opposition was tice under Title her if rights. Act will be frustrated discharge retaliatory from even unilaterally employer may determine where the was later determined charges and take falsity truth or practice. the employment not be an unlawful independent interpret that to the action. court concluded reasonably that Thus, employee an who believes held that the Court Id. at 1004-05. “is exists consistent with a the EEOC communication where the imple- VII to construction of Title “charge,” liberal requirements of a satisfied the Congressional purpose ment eliminat- ‍​​​‌​​​‌​‌‌​‌‌​​‌‌​‌​‌‌​‌​​‌‌‌‌‌​‌‌​​​​‌‌​‌​​‌‌‌‍the discharged not party could be charging the Id. ing employment.” discrimination in could writing the court not the for employer disciplinary “either sustain provided with also somé This Court pres- the because of deny relief action or AFL-CIO, Doe v. by guidance measure of Id. material.” malicious ence of ... aff’d, (N.D.Ga.1975), F.Supp. 537 389 1007.9 denied, 1976), cert. F.2d 1141 recognized 51 L.Ed.2d 552 that the U.S. S.Ct. The Ninth Circuit case, plаintiff, a union or- controlling interpreta- In that the “considerations AFL-CIO, alleged ganizer for defendant entirely opposition clause are not of the tion discharged opposition for his to that he applying participa- those the same as employment prac- employer’s his unlawful clause,” opposition clause and that the tion characterized tices. The district purpose” than does limited “serves a more Sias, opposition as follows: 588 F.2d at participation clause. the However, opposition interpreting expressed the that 695. Plaintiff often belief proof of an actual unlaw- require and its were not clause to the AFL-CIO affiliates workers, practice “chill the would to needs of black employment responding ful rights un- employee historically movement had legitimate assertion of the union VII,” id., surely as as would to the needs of black just been insensitive der Title workers, exploit- to to be participation clause re- that blacks tended interpreting hand, membership purposes, ed for charge. by On the other unions quire a truthful protect to that blacks had been excluded from interpreting opposition clause president Sportswear, employee reasoning Although an called the this Court considers 9. Pettway support company discharged to the reasona- decision a racist cases, opposition making test in clause ble belief rea- accusation. The district court Pettway has least one district court viewed soned quite differently. The in district court case protected. to the EEOC must be On access Sportswear Corp., F.Supp. D EEOC v. C & hand, ought other accusations of racism (M.D.Ga.1975), that “baseless accusa- held lightly. to be Unfounded accusa- made “only protected as a means of tions” were might where none tions well incite racism protecting Commission.” Id. at access to the employees previously free had existed. Were that the result 305. that court concluded of racism make unfounded accusations to Pettway to under the in was limited actions employers employ- their fellow clause, apply participation did to ac- ees, discord, disruption, and disharmo- racial opposition The C D clause. & tions under wholly likely ny would be would ensue. This Sportswear court hеld: contrary Congress’ be intention race interpreta- Accordingly, only reasonable removed, possible, an as as as issue far placed be on Section tion to employment. are made in the context of where accusations unfounded, inflammatory Id. at 305-06. While EEOC, falsity charges before the the truth balance, might, be of racism accusations is a to be of that accusation matter deter- provide legiti- with a found to EEOC, by by the and thereafter mined mate, nondiscriminatory discharging reason However, courts. where accusations are require employee, nor an this would neither by procedures set forth madé outside the suggest should that all unfounded accusations Congress that is made at accusation the ac- totally unprotected be clause peril. protected, it cuser’s In order be important protect is as It the accusation is must established right perceived is, is, fact, employee’s oppose dis- it there well-founded. If employment practice appropriate, as informal means has crimination unlawful right, 704(a), oppose right protect Section EEOC. access is to However, undеrlying engages there is no employee it. where activi- An who employment ty peril required to at his not be act own should right has gation that accusation dero- no make employment if out that no unlawful it turns provided by procedures statute. exists, employ- practice actually long as as reasoning of the C D Id. at We find the & that the unlawful ee a reasonable belief holds unpersuasive Sportswear and the district court practices do exist. unjustifiably In C D result restrictive. & process leadership posi- union elective was unable to show that those reasons were and, workers should seek merely pretextual. Indeed, tions that black the district active roles in union affairs. Plaintiff stated, dicta, albeit that: expressed view also that the AFL- peculiar aspects of this case are regressive CIO leaders were and lacked philosophy plaintiff deals problems to the social awareness of black with race-related matters and some of his workers. statements tended to criticize the union plaintiff Id. at 391. The claimed that he alleged movement for its recog- failure to was fired because of these statements promote nize and the interests of blacks. which, him, according op- were made in plaintiff These beliefs of the certainly are position discriminatory practices plaintiff and the could not be and its AFL-CIO affiliates. The dis- discharged holding for espousing plaintiff trict court that concluded was law- . . . opinion them. Court fully discharged because “he not an plaintiff that discharged could not be effective worker and refused to follow the job holding from his expressing superior.” instructions of his his beliefs whether valid or invalid. employer suspected “his him submitting added). Id. at (emphasis While it is not expense inaccurate vouchers and ... definitive, the Fifth Circuit affirmance of quarreled often bickered and over his as- approval this case would seem to ” indicate Thus, signments . . . . Id. 394. position employee that an need not of- district court plaintiff concluded that proof fer of actual unlawful discharged legitimate had been and non- practices by employer in order to estab- diseriminatory reasons. lish a facie case under findings In its of fact and conclusions of 704(a).10 law, the district court noted that “[t]here To effectuate policies of Titlе attempt has been no by way to show of a VII chilling and to avoid the effect statistical case or otherwise that the de- arise, would compelled otherwise we are engaged historically fendant has in discrim- plaintiff conclude that a can inatory employment practices.” establish a Id. at 392. indication, however, prima facie retaliatory discharge There is no case of plain- 704(a) court considered this under the to be fatal clause of section Rather, plaintiff tiff’s section case. if he shows that he had a reasonable belief failed to recover employer employer because the engaged in unlawful legitimate, able to articulate employment practices.11 nondiscrimina- While the district tory discharge, reasons for the explicit finding court made no plain Instruments, Inc., discriminatory Cf. Turner v. Texas in fact —the must show 1977) (where employer F.2d 1251 response that his so-called was in wrongly company believes held, violated honestly mistaken, feeling some if policy, employer does not discriminate in viola- discriminatory practices (empha- existed.” Id. belief), tion of Title VII if it acts over- added) (footnote omitted). according sis grounds, Dep’t ruled on other Texas of Commu- court, person might to that if a reasonable have Burdine, 248, nity Affairs 450 U.S. 101 S.Ct. engaged believed that the in un- 67 L.Ed.2d 207 employment practices, lawful but the actually belief, good did not in faith hold such a adopted 11. The First Circuit has a somewhat plaintiff’s opposition unpro- then the conduct is different test than have the Seventh and Ninth Id. tected. at 8 n.6. We need not decide here explicitly Circuits. The First Circuit has not necessary adopt good whether it is faith 704(a) decided whether a section must requirement in addition to the reasonable belief “demonstrate that he harbored a ‘reasonable since, requirement in the case before this discriminatory employer belief of behavior” or Court, reasonably and in believed— whether the must show har- that he “ good engaged faith —that McLemore’s was ‘conscientiously bored a held belief of such employment practices, unlawful opposition Co., misconduct.” Monteiro v. Poole Silver response conduct was in to this be- (1st 1980) (footnote omitted). F.2d lief. The Monteiro court found that either “[u]nder employer’s being standard —the conduct non- a A. That’s correct. upon reasona opposition was based tiff’s hiring pro and that McLemore’s ble belief Q. person charge You were the in of VII, such a policies violated Title motional hiring firing; and that correct? sup implicit sufficiently and is finding is A. That is correct. Thus, by in the record.12 ported evidence reasonably be plaintiff established that he sir, not, Q. your position, It is it discrimi McLemore’s lieved that defendant [plaintiff] reapplied for the never oppor employment in against nated blacks job? Moreover, plaintiff showed that tunities. reapply job. He for A. did not He activities were boycott picketing his job reapply did not for next employment this unlawful spring. to rehire the practice. failure Defendant’s em plaintiff undoubtedly Q. was an adverse during He time apply did at there evi ployment Finally, spring action. of 1971? support an inference defend

dence to I so. A. don’t believe causally ant’s failure rehire Supp. Similarly, 1st Record at 127-28. boycott picketing plaintiff’s related deposition Albert Hill testified as fol- successfully es activities.13 lows: case, raising thereby tablished a facie Q. get Why Payne didn’t re- Charles un оf unlawful discrimination inference your your when work hired —when 704(a). The burden then shifted der section stoppage your— was over —when presumption defendant to “rebut the your lay off over? of by producing evidence” He for A. didn’t come back and ask nondiscriminatory for legitimate, a reason job." Burdine, 101 plaintiff. its failure rehire Q. the only That’s reason? at 1094. S.Ct. only A. The reason. steadfastly McLemore’s Defendant Record, 1, at vol. 267. only reason maintained trial plaintiff was not rehired was because Supreme explained The has Court reapply position a with defend failed to clarified the nature of the rebuttal burden complete comprised ant. This the full as follows: shifts presented extent of rebuttal evidence not persuade The defendant need agents effort by the of the defendant actually it was motivated legitimate, nondiscriminato articulate proffered ... It is suffi- reasons. plain ry failure to rehire the reason raises a cient if the defendant’s evidence Hill, manager of Mr. former tiff. Albert genuine issue of as to whether it fact plant owned McLemore’s fertilizer plaintiff. To discriminated as fol testified on cross-examination this, аccomplish the defendant must lows: forth, clearly through set the introduction evidence, Q. your the reasons for position is that of admissible Isn’t true plaintiff’s rejection. explanation [plaintiff] was reason that jus- legally sufficient to reapplied provided never must rehired is that he tify judgment job; for the defendant. for a is that correct? testimony quoted An failure to re- inference that defendant’s 12. The earlier by plaintiffs par- supports the conclusion hire the ticipation was caused and of Russell Brass activity picketing the defendant believed that proper engaged employment practices in view the existence of evidence was that the was by in unlawful plaintiff’s aware failure to hire blacks virtue McLemore’s that, relatively short within promote employment activities and in positions, blacks certain place, took the ad- those activities time after and that this belief consequence occurred. The verse was a reasonable one. opportunity to an was then entitled defendant to rebut this inference. evidence to introduce Burdine, (footnotes activity tiff’s was in at 1094 omit- to unlawful 101 S.Ct. Here, defendant, tеd). employment practices plain McLemore’s did the defendant forth, through the “clearly protected by set introduction tiff’s actions were not evidence, the reasons for the plaintiff’s oppo of admissible because the form of rejection.” single, exclusive sition was not covered the statute. It is upon by the defendant was reason relied activity op that not all well-established plaintiff because that the was not rehired position employment practices to Unlawful position reapply he failed for his with the protected by Hochstadt v. failure to re- defendant. This reason —the Experimental Foundation for Bi Worcester believed, apply would, legally 222, if suffi- (1st 1976). ology, 545 F.2d 229-34 — justify judgment cient for the defend- example, illegal Certain conduct —for acts Thus, ant. the defendant carried its rebut- opposition unreasonably ag or hostile or tal trial. burden at gressive may provide legitimate, conduct — independent, nondiscriminatory and basis op After the defendant has an discharge. employee’s for an Id. at 229. portunity plaintiff’s to rebut facie may “There arise instances where the em case, corresponding рlaintiff op the has a ployee’s protest conduct in of an unlawful portunity show that the defendant’s employment practice so interferes with the proffered explanation pretextu inwas fact performance job of his that it renders him Here, plaintiff presented al. substantial position in the ineffective for which he was reapply job he evidence that did for a with case, conduct, employed. In such a his The trial court found “as a McLemore’s. opposition, form of is not covered Payne reapply fact that Mr. did for his 704(a).” Rosser v. Laborers’ Internation § position corporation.” with the defendant Union, 438, 221, (5th al Local 616 F.2d Record, 2, is,'therefore, vol. at 313. There denied, 887, Cir.), cert. U.S. 101 S.Ct. sup substantial evidence in the record to 66 L.Ed.2d 112 In order to port the district court’s conclusion that the exists, determine when such a situation the explanation defendant’s for its failure to engage balancing court must in a test: merely pretextual. rehire the was required courts have that the em- “[T]he The district court further found mem ployee light conduct be reasonable in of the plaintiff’s par bers of McLemore’s knew of circumstanсes, and have held that ‘the em- ticipation picketing, and ployer’s right to run his business must be relationship there was a causal be against rights balanced tween defendant’s failure to rehire express grievances promote his plaintiff’s participation protest in ” County own welfare.’ Jefferies v. Harris activity. There is substantial evidence also Association, Community Action 615 F.2d support in the record to the district court’s 1980) (quoting Ho- Thus, regard. conclusion in this on the chstadt, 233). 545 F.2d at arguments presented facts and to the trial court, correctly that court held that appears It that a number of eases defendant’s failure to rehire the part have that it is assumed defendant’s is, 704(a); violated section rebuttal burden to show that the form of rehiring defendant’s stated reason for not plaintiff’s opposition unprotected by plaintiff (the plaintiff’s reap failure to See, Rosser, g., the statute. e. 616 F.2d at ply job) merely pretextual for a 223-24; Jefferies, 1035-37; 615 F.2d at Ho the defendant’s actual reason for not chstadt, at 229-34. If the defend 545 F.2d rehiring plaintiff’s was the ant took an adverse action participation in activities in because of employment practices of the de that was outside conduct fendant. statute, protection then the de appeal, may legitimate,

Now on for the first fendant have had a nondis time, plain- criminatory ‍​​​‌​​​‌​‌‌​‌‌​​‌‌​‌​‌‌​‌​​‌‌‌‌‌​‌‌​​​​‌‌​‌​​‌‌‌‍justify that even if reason to its actions. defendant contends

H43 activities, Court, if and that the case before placed subsequently discharged, them within a rela- plaintiff’s activities form of 704(a), per- of section protection tively time interval after outside short legiti- may have had the defendant This series of then formance of the activities. mate, nondiscriminatory reason for its fail- enable a court to events sufficient However, if plaintiff. motivation, ure to rehire retaliatory fur- infer absent was the nondis- plaintiff’s activities form of . explanation employer. . . ther from criminatory for the defendant’s fail- reason plaintiff, the de- ure to rehire rebuttal, however, In defendant evi- responsibility introduce fendant’s through presented proof, tes- substantial Rosser, effect at trial. dence to that exhibits, documentary timony posting clerk plaintiff was a dues example, disruptive insubordination and union, and her immedi- the cause for his outbursts were fact secretаry- was the union’s supervisor ate reasons, accepted termination. These if was nominated to Ms. Rosser treasurer. whole, proof on as a would constitute supervisor for the secre- against her run non-discriminatory explanation a valid request position at tary-treasurer action. for defendant’s felt members who that some black union Id. at 601-02. Since the court further its black the union discriminated plaintiff that failed to establish that found Although Rosser was subse- Ms. members. proffered justification was in defendant’s race, she quently disqualified from was pretextual, court concluded that fact discharged days supervisor her two after the limits of exceeded “[b]ecause brought a Title VII was re-elected. She opposition activity on a continu- reasonable action, alleging candidacy that her was in ing basis and his dismissal is attributable to practices made unlawful transgressions, forced to these the Court is VII, discharged was and that she Title pre- conclude that his termination was not The district violation section textual, but rather was for valid non-dis- granted motion for sum- the union’s criminatory reasons.” Id. at 601. The Gon- ground mary judgment on the “that clearly plaсed the zalez court burden opposition, an at- of Mrs. Rosser’s form part as of its rebuttal defendant show ouster, political protected tempted not burden, “plaintiff’s excessive con- union thus had a the statute and the duct was the cause for termination.” prima her facie case” of valid defense to Id. at 603. at 616 F.2d 223. Fifth discrimination. affirmed, finding that Ms. Rosser Circuit Similarly, in Hochstadt prima facie case of discrimi- did make out a discharge violated section claimed her nation, had a valid but that “the union 704(a). The court in that case formulated opposi- form her since the chosen

defense plaintiff’s as hostile con- the issue whether tion, challenge, protect- political [was] independent, duct “afforded an nondiscrimi- Id. at ed under Title VII.” discharge, it natory basis her or whether protected ‘opposition’ conduct under Bolger, F.Supp. 595 was Gonzalez ” post 704(a) F.2d 229. This (D.D.C. 1980), plaintiff, a . .. . former section employment of the issue indicates that employee, brought an characterization office activity participation in un- pursuant plaintiff’s suit to section discharged 704(a) provide can 704(a) alleging protected that he un- legitimate, exercise of lawfully employer in retaliation for his nondiscrimina- protected by Title VII. The district actions. rights tory reason for its findings: plain- following court made the court concluded that The Hochstadt disloyalty, acts of which dam- tiff’s “serious trial, presented a At were discrimination, aged employer’s interests retaliatory facie ease was not warrant- an excessive nature which engaged by showing that he activities, response any ed conduct employer aware of as that his provided plaintiff, with a for defendant’s failure to [employer]” rehire nondiscriminatory legitimate, basis for dis- surely carry the defendant did not its rebut- charging Id. at 234. plaintiff. tal burden on this issue at trial. apparent becomes It therefore urges Defendant nevertheless we case, after estab in the instant newly consider this raised contention for case, prima facie it was the re lished his appeal. general the first time on “As a to show sponsibility of the defendant review, principle appellate this court will placed activities the form of legal theory not consider a issue or that was protection them of section outside presented to the trial court. . . . legiti with a provided economy is prejudice served and ‘[J]udicial its failure to rehire the mate reason for by binding parties avoided to the plaintiff. rely intended to If the defendant presented argued facts and the theories be contention, upon defendant’s ” Equitable low.’ Bliss v. Life Assurance responsibility the issue at trial. to raise (5th Society, 1980) F.2d Here, failed to offer the defendant (quoting Higginbotham Co., v. Ford Motor legitimate evidence trial its 1976)). 540 F.2d 768 n.10 This nondiscriminatory rehiring reason for not general appellate rule of review—that is engaged was that had sues not raised trial court will not be hostile, unprotected activity that was de appeal considered for the first time on —is employer’s trimental interests.14 exceptions, not without its however. respect With to the defendant’s burden of pure question “when a of law is involved case, rebutting plaintiff’s prima facie and a refusal to consider it would result in a Burdine Court stated that: “An articula miscarriage justice,” of Martinez v. Math tion not into evidence will not admitted ews, 1233, (5th 1976), 544 F.2d 1237 Cir. Thus, suffice. the defendant cannot meet general will rule not bar a consideration of merely through its burden an answer to the McCrary Poythress, the new issue. v. 638 complaint by argument of or counsel.” 101 1308, (5th 1981); F.2d 1314 n.6 Cir. Guerra S.Ct. at 1094 n.9. If the defendant cannot 641, Corp., v. Manchester Terminal 498 F.2d by meet its answer rebuttal burden (5th 1974); Triple 658 n.47 Cir. Evans v. R complaint by argument of counsel at Welding Corp., & Oil Field Maintenance 472 trial, undoubtedly the defendant cannot 713, (5th 1973). Higgin F.2d 716 See by solely argu meet its rebuttal burden botham, (The 540 F.2d at 768 n.10 rule appeal on ment of counsel for first time apply injustice “does not if a manifest permissible It is not for this Court to relate ignoring legal would result from the new arguments appeal the defendant’s on back theory.”). Some courts have stated that the to the time of trial in order to determine consideration of a new issue for the first whether defendant met its rebuttal burden appeal requires time on the existence of trial. Since the defendant failed to “exceptional present circumstances.” D. H. Over any egre evidence at trial Loflin, 1213, gious disruptive plaintiff’s myer (5th 440 F.2d op form of Co. v. 1215 Cir.) (“In position legitimate exceptional constituted the reason the absence of circum position 14. plied early In the defendant did not raise this for a with defendant pleadings. activities, issue in its contention 1971 because of militant made the defendant the conduct must show that those militant activi- protected by was not practice ties were in made picketing was that the were not in employment practice by an unlawful Sub- to an unlawful chapter Chapter VI of 21 of 42 U.S.C. satisfy of the defendant and so did not Record, 1, While vol. at 245. defendant did requirements 704(a). pre- of section allege plaintiffs activity opposi- was not trial order stated: employment practice tion to an only, McLemore’s, In the alternative event that the did not assert [plaintiff] plaintiff’s activity Court finds that was not recalled in was outside the form of early 1971 or scope was refused a of section position plaintiff reap- with defendant after

H45 justice prove, the miscarriage of McDermott is entitled to in- where a stances here, result, present warranty demnity condition not for breach of the would a presented performance Triple to or questions that were workmanlike R, provisions express the trial court will not be but under the of its passed denied, appeal.”), theory cert. 404 contract and under a of im- considеred on plied warranty. L.Ed.2d U.S. S.Ct. Welding, Triple 472 F.2d R

See findings at 716. Since no further F.2d issue, required resolve of fact were this generally issue will While an appeals and since the court of concluded appeal the first time on considered for miscarriage justice a if would occur purely legal is a one and the issue when the Court failed consider McDermott’s in a it would result mis failure consider right indemnity contract, under the carriage justice, “the rationale for the Court allowed McDermott to raise this ar requires application its if [general] rule ad gument appeal. the first time on for Simi developed have facts would been ditional larly, the in T.J. Court Stevenson & Co. theory been trial court had new ” 81, 193Bags Flour, 629 F.2d 338 Higginbotham, ... . presented there 1980), parties one a allowed to raise added). (emphasis at 768 n.10 When F.2d appeal new issue for the first time on “be- required development further factual no entirely legal question cause the issue a justice miscarriage of would other and a require development and does not result, appellate courts in this Circuit wise facts.” at 375. additional Id. willing new been to consider issues for have Triple R apрeal. Weld the first time on The new issue that McLemore’s ing, example, the district court denied wishes Court to consider the first (the indemnity pro McDermott claim for appeal plain time on the form of —whether owner) against Triple (theR barge hac vice provided tiff's activities McLemore’s with injured employee). employer of McDer legitimate, nondiscriminatory its reason for Triple argued at trial R’s mott had pure failure to rehire not—is duty indemnify McDermott based require not question of law that would warranty of workmanlike upon implied development of additional facts. To find The district court concluded performance. pro conduct is outside the express existed an contract that since there 704(a), the court must tection of Triple covering R McDermott between engage balancing a of the interests performance, warranty of workmanlike employee. and the Courts rely implied on an McDermott could employee’s conduct required have that the warranty. appeal, argued McDermott On light be of the circumstances reasonable time that it was entitled to first unjustifiably and that the conduct not indemnity The Fifth under contract. employer’s detrimental interests. stated: Circuit When evidence that the defendant offers appellants protec conduct outside the apparent It is have provid changed legal theory. they 704(a), Had tion and therefore their of section nondiscriminatory judgment ed the with a request asserted of in- a action, plain demnity express provisions reason for its based on contract, opportunity to show they would un- tiff entitled of the written under doubtedly were reasonable prevailed have ‍​​​‌​​​‌​‌‌​‌‌​​‌‌​‌​‌‌​‌​​‌‌‌‌‌​‌‌​​​​‌‌​‌​​‌‌‌‍District that his activities were warranted pertaining to the circumstances and the evidence Court. All of record, including This Court is not employer’s conduct. the case law that prepared to hold as a matter of Triple McDermott and contract between boycotting peaceful R, participation no and there is failure therefore is not picketing by a who former adequate have evidence before Court. However, time of employed by the defendant is clear from the District protec- fact, ap- conduct is outside Judge’s findings of which we specificity. Placing pro- At least wherе con- this burden of tion of section law, unprotected as a matter of duction on the defendant thus serves duct is not opportunity simultaneously plaintiff’s pri- have an to meet the the fact finder must evidence, competing by presenting legitimate facie to balance the ma case hear considerations, and to reach a conclusion as reason for the action and to frame the Here, clarity of the conduct. factual issue with sufficient so to the reasonableness argument failure to raise this will have a full and fair defendant’s opportunity pretext. from to demonstrate precluded trial that, under the cir- presenting evidence (footnote omitted). 101 S.Ct. at 1094-95 cumstances, plaintiff’s organization of a Thus, when the defendant relied at trial participation peaceful pick- in a boycott upon solely the contention that unprotect- nor et was neither unreasonable reapply was not rehired because he did not This, development further factual ed. job, for a the defendant narrowed the fac- proper be essential for a resolution of would inquiry tual to this issue alone. It became this issue. plaintiff’s responsibility to show that reason —the reason offered the de- say we cannot plain- fendant for the failure rehire the miscarriage justice would result from a pretextual. tiff —was Plaintiff was not re- failure to consider this issue for the first quired indeed, per- would have been — First, appeal. time on it is not at all cer respond to an issue mitted —to that defend- prevailed tain that McLemore’s would have raised, pleadings ant had never either in its ground on this had it raised this issue be or in evidence introduced at trial. Where it activity clearly low. Plaintiff’s is not un upon is incumbent the defendant to narrow since, protected activity at the time of the issues, the defendant should not be enti- picketing, plaintiff was not ac appeal simply tled to raise new issues on tively working thus for McLemore’s and upon those he because relied at trial were opportunity had little for direct access to precisely unsuccessful. This is the kind of grievances.15 McLemore’s in to air his order “judicial economy situation where is served Second, responsibili it was the defendant’s prejudice by binding is avoided ty to at trial. The de narrow issues parties presented to the facts and the theo- exclusively upon fendant’s reliance at trial argued Higginbotham, ries below.” single argument explain its failure to F.2d at 768 n.10. rehire the did not —that Supreme recognized Court has that: reapply job for a as a limitation —served questions may The be matter of what upon plaintiff’s response. the The conten up taken for the first time resolved by tion made the defendant dictated that appeal primarily on is one left respond allegation by to that appeals, discretion of the courts of to be showing allegation pretextu facts exercised on the individual al. The Burdine Court noted that one rea Certainly cases. . . . there are circum- placing upon son for a rebuttal burden the appellate stances in which a federal court parties defendant was to enable the to nar justified resolving an not is in issue during progression row the issues the below, passed proper the as where trial. The Burdine Court stated: beyond any ... or resolution is doubt If the defendant carries this burden of “injustice might otherwise result.” where production, presumption the raised the Wulff, rebutted, Singleton prima case faс- v. 428 U.S. 96 S.Ct. facie is and the 2868, 2877, inquiry proceeds We do tual to a new level of 49 L.Ed.2d 826 Court, however, activity expresses opinion protected 15. This no the trial court to be if the plaintiffs argument as to whether conduct defendant had raised at trial the would have been—or should have been—found employer engaged employ- is in us here.16 In unlawful have such case before not practices”. Supreme conclusion in ment fact, Sin- Court’s likely more be injustice would gleton —that proceeds majority The then to hold that deciding the issue than avoided caused enough. reasonable is belief having opportuni- had an party one without However, statute, 2000e-3(a), applicable here. equally ty to be heard —is stripped inapplicable verbiage, reads: of its finding is While a of discrimination It for an practice shall be an review, plenary subject fact an ultimate employer against to discriminate . . . be- subsidiary as are bound facts we any practice cause made opposed he has they unless by the are found district employment practice by an unlawful Thompson clearly Leland erroneous. See subehaptеr. Department, F.2d Police speaks prac- in statute terms of 1980). Here, district court’s find “reasonably someone tices —not what be- subsidiary clearly not erro ings of fact are practice when, lieves” to have been neous, subsidiary sufficient there are fact, practice did not exist. I cannot support finding that the ultimate facts Congress (since believe that intended it did rehire con McLemore’s failure to say so) penalize employers for what discriminatory action under section stituted when, applicant “believes” out Since made fact, is innocent. To hold case of under section facie deprive employers otherwise is to of their explanation 704(a), of and since the property rights proc- in violation due by the for its failure to fered ess clause. correctly plaintiff was determined rehire because, Finally, majority I dissent as the pretextual, judgment district 1140, 1141, pages concedes on the District court for is finding made majority Court no adds [the AFFIRMED. “explicit”] op- word upon tion was based “reasonable belief”. COLEMAN, Judge, dissenting. Circuit inferential, own, proceeding make its long recognized dissenting I have findings majority citеs not a of fact and, opinions generally are useless for that specific single support fact would reason, always filed a have not dissent finding belief. of reasonable majority opinion disagreeing when with a finish, In the I do wish to be cast Here, part of I choose to record or some it. boy- appearing approve the role of even my views my disagreement with the inno- community, cotts a whole distinguished majority. Brethren alike, guilty cent and as the kind of gravamen my concern found activity Congress protect intended to which majority opinion p. concession by this statute. 1138 that “The Fifth Circuit has not here- respectfully I dissent. directly the issue whether tofore addressed proof of actual unlawful necessary under

clause, employee is or whether an retaliation under the clause

from employee reasonably believes that the

if the however, bar, unprotected by case there exists neither the the form of the specifically statute. circumstances mentioned Court, Supreme circum- nor additional Supreme partic- require Court’s enumeration of our stances us to exercise that would appellate ular circumstances in which new to consider defendant’s discretion and theory justified considering might juncture. Consequently, issue for we appeal to be the first time on intended refuse to do so. at 2877 In the an exclusive list. 96 S.Ct. n.8.

Case Details

Case Name: Charles PAYNE, Plaintiff-Appellee, v. McLEMORE’S WHOLESALE & RETAIL STORES, a Louisiana Corporation, Defendant-Appellant

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Sep 4, 1981

Citation: 654 F.2d 1130

Docket Number: 79-3674

Court Abbreviation: 5th Cir.