*2 JOHNSEN, Before LAY Judges. BRIGHT, Circuit Judge. BRIGHT, Circuit brought citizen, Percy Green, a black McDonnell-Douglas this action Corporation (McDonnell) under Title Rights VII1 of Act of the Civil seeking allegedly relief from latter’s denying discriminatory conduct in Green July also 1965. Green pressed a had dis- claim McDonnell charged August 1964 from 42 of race reasons violation U.S.C. 1981. The district court § relief. McDonnell- Green v. Douglas Corporation, F.Supp. 846 (E.D.Mo.1970). prosecutes timely appeal. For the reasons stated below, we this case reverse remand proceedings. for further place appro- controversy To in an priate nec- reference, frame we find essary chronologically both examine underlying procedures facts and the Although followed in the court. controversy springs immediate employ origin July 26, lies relationship. earlier seq. 1. 2000e et U.S.C. day applied a mechanics. The next employed Green as

1956, McDonnell positions, one of McDon- for nell, but com- remained He mechanic. seeking although qualifed twenty-one except still me- continuously, pany chanics, service, military refused to hire of honorable months disputed August 28, never has technical abil- Green’s off on until laid he was ity required protected the work Initially, Thereafter, position. September in 1963 he trans- security, union *3 1965, complaint Green filed a formal position labo- as a ferred a non-union Equal Employment Opportunity technician, with the on ratory performing work alleging (EEOC), Commission that Mc- Electronic projects in the research Equipment against Donnell had discriminated him of McDonnell. Division “because of and race because of [his] in the Elec- 1964, decreased the workload Division, persistent involvement in the [his] com- Civil Equipment and the tronic Rights including 8,May 1967, persons, Movement.” On pany off laid several EEOC determined that reasonable cause Green. existed to believe that had long-time Green, in the activist 2000e-3(a) by violated 42 U.S.C. § rights equal movement obtain fusing employ Green “because of his citizens, vigorously protested his black discharge 2 rights in civil involvement activities.” being racially motivated. allega- It made no on the determination complaints of dis- He formal also filed tion of racial bias. Com- President’s crimination unsuccessfully attempted The EEOC Rights, the Justice De- on mission partment, Civil dispute. Accordingly, to conciliate the Navy, Department of the 1968, 19, thirty-day March it issued Department, and the Mis- Defense might notifying letter in- Green that he Rights. on Human As souri Commission pursu- stitute civil in action federal court CORE, and later as a mem- member of 2000e-5(e). ant 42 to U.S.C. This liti- ACTION, rights § civil or- ber of another gation followed. Green, ganization, late 1964 dur- in ing 1965, participated in several demon- 15, 1968, complaint April In a filed staged to strations were call atten- which alleged that McDonnell had dis- allegedly tion discrimina- denying criminated him him tory practices. dem- These employment “because of his involvement picketing rights home 20, onstrations included in civil activities.” On March McDonnell, F. Chairman of James 1969, Green filed amended McDonnell; blocking Board a main alleging that McDonaldalso discrim- leading highway denying access to the Mc- route inated him em- during ; plant Donnell a traffic ployment of his race and “because color.” and, participating rights McDonnell, in a civil dem- Upon motion during onstration of a the. doors court additional claim on the struck this building ground downtown Louis St. no find- that the EEOC had made housed certain McDonnell as to reasonable cause on claim. McDonnell-Douglas locked with chains some of the Corp., Green v. F.Supp. 299 demonstrators. (E.D.Mo.1969). 1100 3 July 25, Although 1965, On McDonnell ran an 1981 not 42 U.S.C. § Louis, Missouri, specifically St. advertisement newspapers mentioned seeking qualified during pleadings, electrical trial and taking 2. provides EEOC abstained action 3. Section : 1981 persons jurisdiction in deference to the Missouri Commission All within the Rights, 42 Human see U.S.C. § 2000e- shall have same United States 5(c), February 4, 1966, Territory every until when Green State requested jurisdic- contracts, sue, to assert EEOC make enforce parties, give evidence, tion. and to the full 340 (1968), pleadings briefs, 2186, post-trial 20 L.Ed.2d 1189 construed S.Ct. layoff affords moti- 42 1981 concluded that U.S.C. that his 1964 to assert private remedy in violation in federal prejudice vated racial Young employment. v. that statute. Telegraph Telephone International & rejected Green’s The district Co., (3d 1971); Cir. Sand 438 F.2d 757 him em- that McDonnell claim Inc., Houses, 1097 ers F.2d 431 Dobbs ployment partici- of his 1965 because (5th denied, 1970), 401 U.S. cert. pation protected activities. civil 948, 935, (1971); 91 231 28 L.Ed.2d S.Ct. layoff rejected the 1964 The court also In Waters Steel v. Wisconsin Works brought summar- claim under § Co., 476 F.2d ternational Harvester follows: ized its conclusions as Cir.), denied, cert. United Order (a) has shown Plaintiff Bricklayers Masons American Stone by defendant was motivated Local 91 S.Ct. 400 U.S. plaintiff’s prejudice le- (1970). L.Ed.2d This court *4 gitimate rights civil activities. yet passed question. find upon this We layoff (b) claim under Plaintiff’s since, unnecessary even do so here 42 the stat- U.S.C. 1981 is barred § that such an action will we assume of ute limitations. lie, bar the action in this case would be (c) Rights Act does The Civil applicable limita red of statute protect activity blocks entrance which tions. employer’s plant or into from an Although lim 1981 contains § office. deprivation period, itation an action for (d) reemploy refusal Defendant’s rights brought federal of civil under plaintiff plaintiff’s mis- was based governed by the statute 1981 is § conduct, justified the refusal which analogous most state statute limita of F.Supp. rehire. [318 851] Howell, tions. See F.2d v. 431 Glassco appeal, On raises the fol- Green this 1970); 864 Waters lowing contentions: Wisconsin Steel Works International (1) The erred in trial court dismiss- Co., supra, Harvester at 488. 427 F.2d ing his claim 42 1981 § under U.S.C. case, parties agree In Mis this that lay- allegedly relief from unlawful his five-year period souri’s limitation

off. analogous period contracts4 is the most (2) limitation erred determin- limitation. Within that trial court period, ing pleading “lock- filed no his which layoff in” mentioned and “stall-in” did not either the 1964 or 42 demonstrations protection fall within U.S.C. 1981. 42 U.S.C. § 2000e-3(a). § August 24, 1970, On several months (3) striking trial court erred after the trial court had heard the evi allegations complaint dence, years and more than after five charged denying him McDonnell with layoff, the 1964 under Fed. moved race, employment for reasons of 15(b) complaint R.Civ.P. amend charge in “violation I. 42 U.S.C. 1981 it was based on § race, color, and civil activities.” We turn first to the issues relat The trial amend. leave to layoff. circuits, to the 1964 Several The record discloses that following McDonnell did the rationale of Al Jones v. Mayer expressly any Co., impliedly fred H. 392 U.S. consent to equal ishment, pains, penalties, licenses, pro- taxes, benefit of all laws and every kind, ceedings security exactions of and to no persons for the other. property enjoyed by as is white citi- zens, subject pun- 516.120(1) (1952). shall be like Mo.Ann.Stat. § employees or against any of his any ate evi- and that under action . applicants for lay off was relating to the dence any practice opposed he has background for Green’s as a introduced prac- an unlawful made McDonnell’s claim to relief subchapter, or because this tice July 1965. to hire him assisted, testified, charge, amade has com- amended contends participated in manner limi- within plaint, filed hearing investigation, proceeding, or period, be construed should tation subchapter. under this discrim- 1981 for under § state a claim layoff. argument, cannot We protection in the 1964 support ination of his language reading forbidding accept language his broad stresses the complaint. Al- applicant] in the amended contained discrimination “because [an alleges though discrim- complaint any practice opposed made an unlaw- race and employment practice . ination “because ful this sub- color,” specifically chapter.” According refers to since the “July occurring employment practices protest de- non-violent was a 26, 1965, signed This lan- and thereafter.” to call attention to guage allegedly discriminatory the amended practices, convinces us activity protection intended to encom- was not commands the of § layoff. Accordingly, pass we 2000e-3(a). McDonnell, the 1964 on the properly hand, conclude the district asserts unlawfulness layoff protec- dismissed protest claim. it from the removes *5 tion of that section.

II. authority find relevant We little We now examine Green’s contention position. legislative his either ruling that the district court erred tory provides with no of Title us VII that his the “stall-in” guidance scope protection as to the and “lock-in” not demonstrations did fall by 2000e-3(a), afforded the small § protection within the of 42 U.S.C. § body surrounding of case law that sec 2000e-3(a). We confine our discussion subj tion contains little discussion the question the here to whether Green’s think it is clear Nevertheless, we ect.5 participation in pro- is a the “stall-in” language from of the statute the that activity 2000e-3(a). tected under § sought Congress protect employees support record does the trial court’s job applicants employer from retali “actively cooper- conclusion that Green filing complaints ation for EEOC. to the chaining ated” in doors of down- challenge courage who Those have the during building town St. Louis discriminatory practices employer of an Judge Lay’s “lock-in” demonstration. See doubt, protection. that Without merit concurring opinion, We therefore infra. protest protection measure 2000e-3(a) lawful also commands the same afforded § against suggestion protection, Green’s admitted find no we participation in “stall-in.” protection that extends to activities According 2000e-3(a), pertinent, Section run afoul of the law. reads: ly, agree the district court that we It shall an was unlawful “stall-in” demonstration

practice for an to discrimin- protected 2000e-3(a). activity under § support position, As for his protection 2000e-3(a) cites acterized the of § passages Pettway from protection analogous American Cast as broader than Pipe Co., Iron 411 F.2d employee 998 an afforded under the Fair La- 1969). case, In Act, that the Fifth 215(a) Circuit bor Standards § U.S.C. prohibits 2000e-3(a) held that (3), § an em and under the National Labor Rela- ployer discharging employee Act, an 158(a) (4), who § tions U.S.C. complaint para- makes false attempt statements in a did not court define Although opinion the EEOC. 2000e-3(a). char- meters of § proceeding, Green satis In this III. prerequisites to fied established contention in Green’s find merit We complaint to His formal Title suit. VII striking erred court district that the McDonnell the EEOC stated that allegation that against him “because discriminated July 1965 “because employment in persist and because [his] [his] race discriminatory Such color.” race Rights in the Civil ent involvement by 42 U.S.C. prohibited practices are en hold Movement.” We provides: 2000e-2(a) (1), which grounds of judicial review all titled alleged employ- (a) an It shall be EEOC, to the employer— practice ment contrary ruling to the court’s district (1) refuse fail erroneous. individual, discharge any or otherwise individual discriminate IV. compensation, respect to his ruling on anticipation of an adverse privileges conditions, of em- terms, argues issue, ployment, individual’s because of such prejudice trial no from the sustained sex, race, color, religion, or national ruling court’s erroneous trial origin. . actually racial dis- considered the claim and ruled crimination above, the As noted district Therefore, Green on the merits. ground allegation on struck argument continues, the court’s district finding EEOC had rea made despite this be affirmed decision should Although the enforce sonable cause. ruling. erroneous provisions of Title VII silent ment are necessity finding, sugges- of such a accept We cannot complaining now well prevail is party settled that on an issue tion should jurisdiction satisfy only privileged present. need two Green was not bring prerequisites in say order suit al against court’s We cannot VII: striking under Title action in discrimina- *6 first, EEOC; hamper he must file with prepara- the claim did the tion not second, and he must the case, receive presentation not- and of Green’s tion statutory notice to sue. See withstanding zeal dis- commendable Corp., Robinson v. 444 F.2d 791 by Lorillard played producing an his counsel (4th 1971); Beverly Cir. Lone Star v. circum- record of events and abundant Lead 437 Corp., Construction F.2d 1136 relating stances (5th 1971); Cir. No. relationship Flowers v. Local with McDonnell. Addition- 6, Laborers International ally, Union of North part below, the as discussed V America, (7th 1970); 431 F.2d 205 Cir. whether district failed court consider Corp., 424 Fekete v. S. 331 Steel F.2d U. not McDonnell for the reasons (3d 1970); Culpepper Reynolds Cir. v. rehiring re- Green were to the related Co., 1970) ; (5th Metal 421 F.2d 888 job. Cir. quirements Instead, dis- Paper Co., Miller v. International simply that, since trict court assumed (5th 1969). Moreover, F.2d 283 Cir. protests “lock-in” “stall-in” and squarely four circuits have held unprotected activities, finding EEOC not of reasonable cause is viola- fusal rehire could not be jurisdictional prerequisite suit. (1). 2000e-2(a) tive 42 U.S.C. § Corp., supra; Robinson v. Lorillard Bev said: erly Lone v. Lead Star Construction It must be remembered so far supra; Corp., 6, Flowers Local v. No. Rights employ- goes, the Civil Act Laborers International Union of North may discharge er reem- refuse to America, supra; Fekete U. v. S. Steel ploy any reason, except for discrim- supra. Corp., practices made ination or Upon required. perform work testi- Title under VII. apparently because hypothesis, mony before the and evidence require pleadings greater weight, its to establish fails charge that refusal to to defend the defendant’s preponderance, motivated, racially Mc- plaintiff from Green was rehire resulted rehire fusal to legiti- effort show plaintiff’s Donnell made little prejudice or participation in rights seems Green’s activities. It civil mate ability affect record that defendant’s clear harmoniously job refusing other or to work to rehire reasons supervisors. solely We need plaintiff were motivated light position of our cas- evaluate plaintiff's simply dealing based es dem- “lock in” in” “stall proving on race. The burden onstrations. plaintiff. was on the reasons that, prior Our decisions make clear F.Supp. at [318 850] presenting questions in criminatory hiring of dis- cases ap employ- that an practices, think it is clear We may entitled plicant subjective, be ment decisions based on rath- (1) 2000e-2(a) protection carry objective, to the § er criteria little than though participates in activities weight rebutting charges even of discrim- protection of § which fall outside Educa- Moore Board of ination. See v. apply 2000e-3(a). 59, These statutes No. tion School District of Chidester employ (8th wholly 1971). facets Ark., different 448 F.2d 709 See Cir. 2000e-3(a) relationship. Section Gallagher, ment 452 F.2d also Carter v. prin- of Title peripherally 1971). the scheme serves reaffirm this We applicant employee ciple employment practice to shield an VII here. “If an Negroes Section operates from 2000e-2(a) retaliation. can- exclude expresses per- (1) VII’s Title shown to related to employment op promise equal primary formance, practice prohibited.” — portunities Griggs Co., be antitheti for all. would Power 401 U.S. Duke purposes (1971). Act to cal to remedial 28 L.Ed.2d 158 91 S.Ct. Congress to con enacting so as VII, interrelate these sections man- Title applicant’s Act to mean strue the of racial barriers to dated removal acceptance outside employment. civil activities which fall of sub- Judicial 2000e-3(a) may jectively as a basis serve must be decisions § based employment disqualification con without than an VII limited Title is to more separate illusory standards sideration of end, commitment 2000e-2(a) (1). may aspects of called for criteria mask prohibited prejudice. Employers sel- *7 light In record, deem we this Mar- dom admit racial discrimination. necessary it to remand this case to quez Omaha, Division, 440 F.2d Ford for reconsideration 1971). presence 1157, Its racial discrimination in accordance issue generalities vague is often cloaked in with the On standards discussed below. appli- which do criteria not measure remand, parties permitted should be job qualifications re- cant’s terms present to evidence as such additional job quirements. Consequently, a black may be relevant the issue. usually applicant rest his ease must pos- upon proof he that V. requisite qualifications to fill sessed position The record shows McDonnell has which was denied position case, undisputed taken it this has the possessed requisite perform under Title VII to hir- skills to make ing judgments necessarily applied, the work for which he and do seeking appli- upon ability applicant qualified rest McDonnell hire him rehire at time Donnell to Green. remand cants it refused appli- qualified required continued seek because the and district court pri- Moreover, Green’s not use the correct standard in determin- cants thereafter. ing performance McDonnell had whether McDonnell’s refusal to rating. “satisfactory” racially If hire earned Green was a motivated. can demonstrate that Green’s man demonstrates When black participation in the “stall-in” in some possesses qualifications to fill he objective way adversely upon reflects job opening was denied á and that he performance, prima presents job, we think he justified. But, will be Mc- and case racial discrimination facie refusal to rests Donnell’s rehire Green passes the burden to the management’s upon personal dislike demonstrate a substantial relation personal Green or con- distaste for his ship offered for between the reasons rights field, duct in the civil denying require employment and the entitled to some relief.7 job. Here, ments of by earnings amount lost claimed testimony by any not demonstrated great, supra, is not see note other evidence that Green’s parties regard important as an this ability impede his case have devoted time and substantial applied. Although energy litigation. and to its There is evidence conduct that Green’s litigation completed, is still not we super employees would cause fellow .or appropriate appellant deem allow cooperate visors refuse attorney’s appeal, reasonable fee this thereby disrupting plant operations.6 upon costs, as taxed counsel’s sub- connection, In this we note that Mc- mission of an estimate of his fee contain- employs thirty Donnell over thousand spent of his details services time plant. men women Louis at St. appeal. on this See U.S.C. 2000e-5 The record ployees em- demonstrates that few (k). actually affected recognize “stall-in.” We an em- LAY, Judge (concurring). Circuit ployee’s participation activity in an join the reversal and remand. ability impede a “stall-in” could Judge do so for the reasons stated harmoniously surroundings to work Bright some others as well. personal, characterized close or work- refusing plaintiff The court’s order ing, relationships among employees or leave to amend and utilize management. between discovery on the issue of racial discrim- problem might present This Mc- ination E.E.O.C. had Donnell, but the record is bare finding probable based its cause point. aspect This case remains ground Argu- is conceded error. exploration. remand, further On ment is made that nevertheless the issue opportunity McDonnell will have the trial was tried consent and that the present evidence on this matter. judge evi- found there insufficient not, We do support plaintiff’s dissent, does the con- dence to claim. strue this expression, “They remand tie command Mc- ancient Hebrew July quent We note also that the reasons advanced the date when *8 by refusing McDonnell for to rehire Green refused to rehire Under may p particular- retextual, circumstances, be found to be the district ly unsup- may any given, since relief, the advanced limit is to be ported charge damages that Green “active- based on Green’s loss of earn- ly cooperated” July 26, 1965, ings in the “lock-in.” See between and the date Judge Lay’s infra,. concurring opinion, acquired reasonably equiva- on employment, which lent loss Green esti- record shows that Green obtained mated between four and five thou- reasonably equivalent subse- sand dollars. reproach supports charge. day our hands and then us that we the On the of them,” gives engaged protected do not lock-in use sufficient was picketing sponse by here. activities. He was told picketing group one member of the Trial counsel iswho foreclosed from going someone was chain the doors pleading pursuing discovery and of facts Building. the Roberts When Green ar relating particular legal theory to a scene, at rived the chain had either scarcely try prepared on that case already been removed or officials were theory. urge It is not realistic to process removing it. A com pertaining thereafter where facts to that stranger plete litigation to this did the theory case, are drawn into the issue chaining. Evidence of mere by party has been tried consent and the approval of this incident at the time of complaint. has no cause for If ad- proof trial is not of Green’s direction or system anything versary means all Only authorization of it. if it could be is that signed de- lawsuits issues are not principal-agent relationship shown that a by happenchance. to be tried To existed between Green active inquiry make to what as additional facts participants wrongdoing can their be im could have been shown remote to puted to him. Cf. Ladies International practicalities any of the trial of lawsuit. Garment Workers Union A.F.L. v. N.L. guts Preparation is the and heart of ef- R.B., U.S.App.D.C. 64, 237 F.2d 545 litigation. representation any fective (1956). company erroneously Since the very contemplation trying spe- imputed wrongdoing trigger legal proc- cific issue can mental compounding would be the error al strategy building as to esses documen- company low the to use these facts as tary proof and testimonial of the case. basis for refusal to hire. dis Thus the proof, The order of the direct as well as trict court’s reliance on fact cross-examination, vary may well clearly erroneous. strategy present the issues planned. adequate preparation Without “stall- The trial court held that by interviewing winesses, by discov- “unprotected” in’’ ac- and “lock-in” were ery unknown, by of facts collation of the company tivities on which based facts, marshalling documentary opin- refusal to hire. trial court’s evidence, investigating the law as gives why these analysis ion little as to particular tried, issue to be it is little singled reasons were out to sole wonder that a trial court dismisses a suit undisputed when cause the record is Here, for insufficient evidence. the trial company disturbed over Green’s was passed a on claim that it earlier picketing lawful as well. activities being foreclosed from raised in the by company These activities cited pleadings and on which it had refused part their officials to the E.E.O.C. discovery. For the above stated reasons refusing as an motive for to rehire Green finding must be reversed. grave difficulty employee. One has Turning tried, to the issues the record coming pres- away analysis presents no evidence whatsoever ent record without the belief plaintiff actively par- illegally company’s rejection based ticipated in the so-called “lock-in.” Yet illegal pro- not so much an isolated company support used this reason to' activity in prolonged test rejection employee. their of Green as an bringing public the com- attention pretextual. I deem this reason discriminatory practices. pany’s alleged acceptance any The record shows that one the Blind non-diserimina- grounds tory in a Windsor, stated Mr. defend- reason offered always pre- Services, ant’s Director of Personnel fair case would discriminatory the refusal to hire correction of clude gen- existing. practices he had “chained doors of the Roberts otherwise may Building.” erally There is no that an evidence which been said *9 346 any em- to mask reason could be used to fire otherwise refuse to hire decide rights. protected ployee any Civil the denial of reason he chooses. dealing rights legislation and case law JOHNSEN, Judge (dis- Senior Circuit prac- discriminatory with senting part).

tices have modification added Discriminatory principles. even motives I. partial though they only a constitute employer’s refusal basis an agree holding in with subdivision Ad- v. D. not sanctioned. Sol are Smith majority opinion that (7 Realty Co., ler F.2d 344 attempt to assert a under 42 U.S.C. claim 1970); Munici- Armstead v. Starkville layoff 1981 in his oc- § F.Supp. Separate pal Disk, 325 School curred in a matter was barred as Key- (N.D.Miss.1971); v. Stebbins of limitations. (D.D.C. Co., Ins. 2 F.E.P. stone Cases holding agree in sub- I also with the 1970). protected ac- In other words the activity en- division II that give employ- tivities Green cannot gaged in employ- partial deny er even cause to protest an form of constituted unlawful argued ment. that unrealistic is is right protection and was without an to think that an must hire 2000e-3(a). under 42 U.S.C. § times vigorously, individual who holding agree I further challenges unlawfully, the com- even that the district subdivision III syllo- pany’s integrity. fairness and rul- mistaken initial view in its gistic applicant that conclusion is ing that not make assertion Green could bit the Yet hand he asks feed him. had a claim that he protects the limit an indi- that the law race, rehiring of his been protest dis- vidual’s Equal Employment Opportuni- since crimination, speech by exercise of free finding ty made a Commission had not pre- assembly, and free to believe that reasonable cause existed in- cluded from use of coercive underlain McDon- this basis timidating to circumvent sanctions ques- him. The to rehire nell's protective nut of cloak. hard law’s upon by passed the Su- tion has been public it all interest preme Court, array de- but such legislative requirement carried in the out ex- federal courts cisions the lower equal employment practices of fair and presently thereon I think it ists possesses higher the likes a value than regarded accepted must be as law particular employer. or dislikes a charges Title VII of violation of where Rights have been Act of 1964 Civil Thus, challenges employee when an lodged Commission, with the rejected employment a violation of com- notifies the Commission thereafter prima civil facie law and makes (for plainant not been able it has done case of has been reason) compliance to effect whatever here,1 the more record must demonstrate respect thereto, the failure of Judge subjective reason, than mere finding rea- Commission to make Bright authoritatively demonstrates, charge particular cause sonable on some employer’s action. evidence charge being preclude does not employee’s lawful must brought show un- in a suit asserted as claim in no activities under 2000e-3a were der 2000e-5. § motivating employ- part a factor II. for the and that the reason er’s decision per- rejection objectively agree not, however, related able I am holding showing any II that Green subdivision formance. Without 1971). Co., (8 Marquez Omaha, 440 F.2d 1157 Cir. Ford Motor Cf. *10 activity- part in because he had the had no the “lock-in” ‘chained doors of such regarded Building’. be involved to enable Roberts is no There the protest charge. supports on his form of evidence which this day part ‘lock-in’, On the engaged of was McDonnell. the protected picketing activi- point of “lock-in” was the focal The by ties. He told one member of was planned and a demonstration which was picketing group the that someone was by put on an activist going to chain the doors of the Roberts organization calling itself ACTION. Building. or- chairman head of the at the Green was ganization. When Green arrived organizing scene, already demon- either the chain had stration, only natural con- it would be been removed or officials were duct, experience process removing complete is able to at- A as common of it. litigation test, stranger communi- did the the members this chaining. their cate and discuss with Evidence of mere leader, approval time chairman and the activities of this incident organizationally engaged proof in. direc- of trial not of be Only Further, me carries suffi- it. the record to tion or of authorization implication principal- cient was indeed that a this could shown agent relationship the actual fact of the situation. There existed between delegated testimony participants is no had can Green and active serving anyone wrongdoing imputed of as leader him”. the role their group the occasion of ACTION difficulty have some anyone presumed had to take or that pause only them be- statements. carry for him. over and function this appear they accepted and cause knowledge having a Green admitted majority opinion, by part made part going of what was be done was Judge Bright’s therein, “See statement padlock doors of of- to chain and Judge concurring Lay’s opinion, infra”. building. fice position seems Thus the building part responsibility housed of McDon- for the chain- be that no offices, properly nell’s employees of McDonnell's and staff can be attribut- doors working because, in it at the time. testi- was ed from his own supposed that, mony, personally I should have within com- the act he did do experience, mon could have that he one and McDonnell did not show primary difficulty believing that the it for commissioned the to do others objective of the affair was reality I think this overlooks locking employees up of McDonnell’s one made the demonstration was building, and that it because of was aggregation separate indi- a mere aspect the matter this unlawful was intendedly viduals, each whom was organiza- up taken with Green as en- carry free to out own aims tion’s head. gage personal as he actions passes majority opinion all this might indicated, it fit. I have see As that “The off with mere statement engaged member- was conduct support record the trial court’s does not ship body. It con- was of ACTION as a ‘actively cooperat- conclusion that Green planned and taken certed action chaining ed’ of the down- doors organization. and was It heralded was during building town St ‘lock- Louis credit intended to have attribution concurring in’ demonstration”. organization ACTION. to the opinion, apparently give bit by those went was carried on who action adding: bolstering, engages in body membership as the to the scene point intended Its focal ACTION. shows that “The record grounds one chaining padlocking Windsor, to be the de- Mr. stated building. Because of doors of Personnel Serv- Director of fendant’s only aspect, it would be ices, character the refusal to up just ordinary set The blockades were said, area. natural, within Ias 10,000 shift of some had before *11 be experience, it should plant, The organi- due arrive for work. was to in his up Green with been taken employees, 30,000 of its total with over prerogatives. zational being operated The in three shifts. was court, I the district repeat To —like the 7:00 of the members shift ra- regarding a it as difficulty have no thereupon replace to m. one was would a. communi- (1) inference, tional leaving for their homes. be pur- for done was Green cation with give au- having and assent pose of in- envision—and It is not difficult to thereto; (2) that with thorization it seems me that deed to being carried chaining padlocking and having hardly escape concern for could given in fact planned, out as aspect consequence the block- —what authorization; and and approval it such presumably intended ade could and was further, reason (3) with significance, effect, public in its in its therefor, being Green’s shown or basis disruption operation, plant of substantial only have presence could the scene part of and in natural reaction on constituting a purpose of been for right employees of vast number whose organiza- him in the ingress sought egress of and were chaining and of action intention tion’s happened It thwarted. quences conse- giving building and of the the doors averted, change by any not were neces- any and other assistance direction part, in conscience Green’s accomplished. sary it to have prompt police the ing action in of the break- view, could my Thus, up placing in the blockade and in having respon- regard properly Green as under record does not en- arrest. padlocking chaining any subjective immunity sibility and for the able to be ac- having constitute events, intended and corded Green on the “stall-in” as part targeting McDonnell. a on his has been done in relation to the “lock- act, action, try in” not to the unlawfulness Green chose public-wise justify be sponsibility deny McDonnell would as to or un- one; personal tying up general high- shunted it could not be lawful action of way seeking prevent 10,- cloak of official and off him on basis traffic quite able employees get- 000 ting I am of McDonnell’s therefore shield. realistically work, it can to their understand how but elected instead engage expedient pleading “to make that all said being guilty approval inci- permitted pay and of this a mere fine It for the time of seems traffic dent at trial”. violation. $50.00 making trial me reversal was both “stall-in” finding responsi- court’s “lock-in” situations which McDon- major- action, bility “lock-in” presented nell faced when Green ity engaged artificiality. have personnel himself at application its office made newly-opened for one of the III. jobs noted, that had As been advertised. right ques- to consider the think both of these situations were rehiring my was, properly tion of Green thus entitled to be considera- opinion, question entitled to as its basis both tion McDonnell have hiring majority now, “lock-in” and the action “stall-in” Green. engaged against however, it. upon which had been closed the door McDon- merely give opinion any ref- makes nell’s consideration to situation; erence “stall-in” “lock-in” affair. But even on the alone, does not set out the facts. Rows situation should not up suppose Gallup cars lined poll across all four be need- would public highways any employer from which entrance ed to show with self respect plant had to be made to the McDonnell concern his rela- hardly refusal to hire was the his other tions with against workman, acts which he had whether white committed would hire engaged and no racial involved black, in such an motivation was who had against therein, this would not able to con- misdeed and indicative unlawful him, justification stitute a employees, being operate. permitted to his business IV, In subdivision the statement see how therefore not able to am “Additionally, made that part presumption discussed below, attaching legally V the district capable of court failed *12 to by rationally given application consider whether the reasons could be rehiring McDonnell for not no could have a such situation. requirements were related to right of the question of con- to have job”. goes Subdivision V then on to de- dealt in these circum- sideration with clare : differently done than would be stances any by McDonnell in relation “When a man black demonstrates that engaged person, black, white or had who possesses qualifications to fill against in it. conduct unlawful job opening a and that he was denied whites, is familiar fact that well job, presents prima we think he a through blacks, years as gaged en- facie case of racial discrimination and illegal acts, in such as the “stall- passes employ- burden to the pos- in’’ and “lock-in” here and other er to a demonstrate substantial rela- session-takings against worse, par- tionship between the reasons offered employers, ticular businesses varying reasons, denying employment and the re- personal, sometimes quirements job. Here, of the McDon- social, politi- sometimes and sometimes nell by any has not demonstrated tes- cal. timony or other evidence that Green’s participation in therefor, the ‘stall-in’ im- But one would whatever the reason pede ability his who committed has such unlawful deeds applied. against which he There is evi- business and then seeks to some dence that by it, not, my Green’s opinion, conduct would cause be hired in does supervisors fellow position stand in any different or have cooperate fuse to Green, right with there- to different treatment because by disrupting plant operations”. white, black, he is a than if he in relation to the of refusal to hire thought I had question in the case course, may him. Of racial motivation whether, in employ- the denial of not enter into such a in situation rela- ment to the situation either was tion prima to a black. On the facie as- one in which McDonnell had acted with pect, however, created the commission motive, some racial or otherwise one illegal involved, deeds here it can- in which there did equal op- not exist an not, my judgment, in properly held portunity be get for Green to perpetrator nevertheless if the person a ing engaged white that had in do- black, been a the situation should things the same it Green had garded prima as one of facie racial dis- done. Under VII, Title no racial dis- crimination. may Negro crimination exist as to em- ployment, actually either in the form of IV. operatively racial produc- bias or in not degree employment op- same goes But opinion still portunity (other person with a white holding farther in its in subdivision V. respect recognized by than in If I read the statements this subdi- statute). correctly, together vision some appearing those IV, in subdivision majority holding is, The effect of the holding effect of that, it, court’s though even as I view that even no though the actual reason for McDonnell's motivation inwas fact involved required such never concepts have ican though its McDonnell, even part of white. as to a engaged a business condonation had anyone who to hire word, it were adding liberty acts in such take any less mystic certainty afford would not and not involved realistic than it significance opportunity prophecy, what majority’s as to engaged holding the same un- will who a white and result actually against it, could opinion allows acts lawful While be. un- present refuse opportunity nevertheless “the plant dis- presence in the less rupt on whether evidence” operations. ability impede misdeeds “could surroundings harmoniously char- work predicated holding purports working, personal, or acterized close Griggs Power v. Duke on a sentence among employees or be- relationships 849, 91 S.Ct. Co., 401 U.S. management”, that employees and tween (1971) that “If L.Ed.2d hardly indica- opportunity can under operates to practice opinion, con- tions and intimations Negroes shown to be cannot exclude and hollow than a theoretical stitute more practice *13 performance, to related to one McDonnell. may sentence prohibited”. this But is apart from read the one not be says must opinion The McDonnell immediately precedes it: “The [1964 objec- proof “in some be able to make only Rights] proscribes not Civil Act presence way” in tive plant that Green’s practices overt discrimination also but operations. disrupt Tes- its would form, discrimina- that are fair in timony part of of- McDonnell’s operation”. tory in opinion their would ficials as to what aspect to be would not able on this it, Duke, I read is thrust of The light prescription, meet in the court’s that, scope purpose within the “employment its further declaration that Act, equal opportun- a lack of the 1964 subjective, than rather decisions based on objective, discrimination, ity, cre- and hence a carry weight in criteria little by prac- employer’s ated tices, procedures an utilization of charges rebutting of discrimination”. which, tests even or though operatively pro- intended, not so think that Nor would I keeping duce result of blacks go plant properly could around in the obtaining jobs being able to or of and undertake canvass its progress jobs or classifications they feel if how Green were whites, things the same as so where pre- And if did rehired. any significant utilized are without so, sume one would be naive have to do lationship performance expect employee might work that an who willing feelings have concern would be involved. expression although to make an — do not see in a warrant for might factory within life not hesitate holding to manifest his attitude toward person engaged who has in such upon opportunity presenting a favorable illegal against it, conduct in- is here doing plant personally itself in for volved, op- deemed entitled to be Beyond this, employee even if so. some equal opportunity as a erate lack of in might willing tes- to so declare and employment, if the one who has done tify, only carry this would the situation Negro. Surely, major- misdeeds ais charge onto the track of a of racial side ity say Negro does not mean to that a being bias hurled will equal opportunity not have for em- ployment within the intent of Title VII What court has held can there- fore, my only unless unlawful opinion, acts committed that Mc- mean being required a business Donnell are to rehire required condoned, although Green. Amer- personal scope of character V. familiarity testimony that he had such another opinion still contains provide plant rational as to with the pre- making ground reversal. for inferring could and that he basis my agreement viously indicated produced of dis- would have instances initial its mistaken court was district criminatory practices if had exist- ruling en- was not view plant. ed in the complaint in his titled to make assertion appraised all The district that he had been of a claim hiring produced and found evidence thus I am not his race. because of suggest “de- not indicate however, able, in the circumstances preju- was motivated fendant agree record, with the shown holding refusal to rehire Green”. dice the initial IV that subdivision recognized in its and declared striking from the of Green’s “controlling and Memorandum that allegation motivation entitles of racial situation considerations ultimate” judgment. him ato reversal of the “lock-in” the “stall-in” and were whether initial Despite court’s reasons real actions Green were “the ruling, dis- pleading allowed to rehire defendant’s refusal require- covery respect they were, whether, plaintiff”, and employment, nature of on the ments legally could constitute sufficient basis given, on the inteiwiews the tests and exemptions “justify to rehire defendant’s refusal therefrom, on the made plaintiff]”. [the weight ratings arrived accorded they processes, existed from these posi- the abstract take application rehir- at the time ing. of his say here, that “We cannot tion to and introduced access He striking the ra- *14 action in district court’s evidence at trial what racial the the hamper not claim did cial discrimination composition of the work force at presentation preparation and plant during num- had been a substantial lack adher- case”. With the Green’s years, applications, ber of and as to the ruling pleading which ence to terminations, changes, status classifica- in; scope engaged district court tions, cetera, et which had been involved discovery which and of the character persons. per- as to nonwhite He was allowed; the nature court and with give testimony mitted detailed to at the which Green’s and extent of evidence employment history trial on his own at prac- produced trial —the counsel at the plant, including all which incidents holding majority’s can tical effect regarded having significance, he only must now that the district court be such as conversations had with him about dis- full extent of accord Green the grooming personal the matter of his sought me, covery To which he Indeed, the attire worn him. such representative in- was allowed sufficient majority was the volume of this that the part character and of whose formation — opinion takes occasion note “the com- to scope I have indicated above—so displayed by mendable zeal his counsel no reversible existed in the court’s error producing an abundant record of harassing denial of his burdensome and events relating and circumstances given request initial some access to Green’s relationship with 200,000 general McDonnell files or of McDonnell”. request go permitted later to be through 70,000 employ- some It is clear me that the trial the at individual ment did initial files. The denials the court to its which adhere ruling. pleading made and the clear that it al- alternatives which also counsel, requests lowed in relation to Green’s from the evidence which trial, seem to regard scope me to he adduced at be well within did not judicial being subject discretion himself as which had a restriction. It further exercise in the is clear from the situation. ability applicant to upon rest Again, not hesitate state I do Upon required. discovery perform the work that, certain, all the after I am apparently hypothesis, now has to which has occurred require objectivity pleadings access, more been charge its refusal to thereby defend than likely produced to be motived, racially Mc- rep- argued to exist which can showing upon a figures, its case information, cet- Donnell rested et resentative era, participated in unlawful that Green had access to which Green de- reasons for activities as civil clining the trial. which adduced to rehire VI. prior make clear decisions Our indicated, For reasons I questions that, presenting of dis in cases spectfully rever- dissent must hiring practices, employ criminatory judgment, and each sal made of subjective, rath decisions based ment grounds i< separate on which three carry objective, little criteria er than weight predicated. has been rebutting charges of discrimi of Educa Moore v. Board nation. See 59, PETITION FOR ORDER ON District School No. tion of Chidester REHEARING Chidester, Ark., 448 F.2d 709 Gallagher, 452 1971). also Carter v. See response petition In McDon- (8th Cir., 1971). reaffirm We F.2d 315 nell-Douglas Corporation for rehear- principle “If an here. ing, de- of the court have operates to Ne practice exclude modify opinion cided to the court’s related groes cannot be shown substituting striking Part V thereof and prohibit practice is job performance, the V, a revised Part is set forth be- Co., Griggs Duke 401 U.S. Power ed.” low. 853, 28 L.Ed.2d 91 S.Ct. Judge joins Lay in the revised Circuit enacting VII, (1971). Title Con 158 gress sepa- opinion prior to his and adheres of racial removal has mandated the concurring opinion. rate ac employment. Judicial barriers Judge Circuit Johnsen dissents subjectively de ceptance of based supplemental dissenting opinion, files a must limited Title VII cisions forth which is set below. *15 illusory commitment to more than light' modifications, In of the these may subjective end, criteria to that for McDonnell-Douglas Corpo- court denies prejudice. aspects prohibited mask petition rehearing a ration’s banc en Employers racial discrimi admit seldom petition the reason that has failed District Marquez v. Omaha nation. to obtain a the vote of Division, Office, 440 F.2d Ford Sales Judges regular Circuit in who are active presence 1971). Its rehearing panel A service. before the vague generalities or is often cloaked likewise denied. appli not measure which do criteria rehearing job denial of with- qualifications re in terms cant’s prejudice right party out to job Consequently, either quirements. a black petition rehearing a usually file the' a applicant his case rest must opinion. modified proof court’s upon pos he qualifications fill requisite sessed the BRIGHT, Judge. position which was Circuit case, undisputed that Green this V. perform requisite possessed skills applied, The record has and that shows he work for which position seeking appli qualified taken the that it McDonnell was under Title hir- VII to make to hire cants at it refused the time ing judgments necessarily appli- qualified do not and continued seek Judge, pri- JOHNSEN, Moreover, Circuit Green’s Senior thereafter. cants supplemental had dissent. performance with “satisfactory” rating. him a earned now Modification and substitution has pre- been made as to subdivision V the man demonstrates When a black viously-filed majority opinion. For con- qualifications fill possesses he checking venience and facilitation denied the job opening was and that he a job anything represents this more whether open, we to remain continues language change, than a out the set prima presents facie case think modifications. ap However, an racial discrimination. past plicant’s participation A. prospective em conduct directed at third statements second and might applicant’s ployer lack indicate paragraph of the first sentences perform responsible toward of a attitude reading, filed, previously subdivision as employer. for that work “ * ** ef- little McDonnell made rights protests several civil Of the fort to against McDonnell, show directed which Green ability in the ‘stall-in’ would affect his two, the “lock-in” selected har- work or to “stall-in”, reasons for its re- and the moniously rehire should be fusal to Green. supervisors. needWe to evaluate opportunity show that dealing position light of our cases Company reasons offered pretextual,6 race”, discrimination based pres- show otherwise discriminatory racially ence of changed read, been have practices by McDonnell which affected “* * * McDonnell rested its case decision. showing upon par- appro- The district court did use ticipated in unlawful ac- civil declining determining priate standards whether to re- as reasons tivities to hire McDonnell’s refusal hire him.” remand, racially motivated. On both pre- parties opportunity will B.

sent evidence on this matter. 3, 4, Paragraphs subdi- earnings previously filed, reading, amount vision of lost claimed great,7 parties Green is not but the a black “When man demonstrates regard important as an case possesses qualifications that he energy job opening have devoted time and fill substantial that he de- litigation. Although litigation job, to its presents nied the we think he completed, appro- prima is still we deem facie discrimina- case priate appellant to allow passes a reasonable at- tion and that burden torney’s appeal, fee for this taxed to demonstrate a substantial costs, upon relationship counsel’s of an of- submission between the reasons *16 containing denying employment estimate his fee details fered for Here, spent ap- requirements job. his services and Mc- time peal. 2000e-5(k). by any See U.S.C. Donnell demonstrated has not unsupported circumstances, 6. McDonnell an advanced tier the district court these “actively charge may cooper- given, relief, that Green had limit is to Judge Lay’s damages ated” “lock-in.” See earn- to based on Green’s loss of concurring opinion, July 26, ings date between and the infra. equiva- acquired reasonably on which he 7. The record shows Green obtained employment, lent loss Green reasonably equivalent subse- and five quent July be between four 26, 1965, estimated to the date when rehire McDonnell refused to him. Un- dollars. thousand prima discrimina- facie case of racial testimony or evidence past However, applicant’s ‘stall-in’ tion. participation in the di- perform participation in conduct ability impede would prospective is rected at might job applied. There for which he applicant’s lack indicate conduct would that Green’s no evidence perform- responsible supervisors toward employees attitude fellow cause employer. for that cooperate work to refuse operations. thereby disrupting plant rights protests “Of the several civil against McDon- connection, which Green directed nell, “In this note we two, the thirty selected employs thou- over McDonnell ‘stall-in’, reasons ‘lock-in’ and the Louis men and women at its St. sand refusal to Green rehire Green. plant. The record demonstrates opportunity should actually employees were affected few offered recognize show that company reasons the ‘stall-in’. We pretextual, activity or otherwise employee’sparticipation were in an presence discrimi- show the natory of racial impede his such as a ‘stall-in’ could ability practices by McDonnell harmoniously in sur- to work roundings per- affected its decision. characterized close among sonal, working, relationships ap- “The district did not use court employees or between determining propriate standards management. problem might This to hire whether refusal McDonnell’s present McDonnell, record but the racially re- motivated. On Green point. aspect on this bare This op- mand, parties both have the will explora- the case remains for further portunity present on this evidence remand, tion. On McDonnellwill have matter.” opportunity present evidence this matter. C. dissent, not, con- do does the “We intended ef- not certain as to am command remand strue suspect changes, of these fect The re- Green. rehire difficul- the district court also will required district mand significance of ty trying to assess the standard not use the correct language. the substituted determining McDonnell’s whether Thus, previous indication while the racially to rehire Green refusal paragraph first of the subdivision demon- If can motivated. stricken McDonnellwas has been that Green’s strate participa- quired “to show that Green’s way objective in some ‘stall-in’ his abil- tion in the ‘stall-in’ affect adversely upon performance, flects ity har- or to work rehire moniously employees and su- with other But, justified. if McDonnell’s bewill pervisors”, left been statement has upon rests refusal management’s to rehire Green standing that “Addi- in subdivision IV personal dislike below, tionally, part as discussed in V personal his con- distaste consider failed to field, duct in the civil given by McDonnell whether the reasons relief.”, entitled some rehiring related requirements job”. changed (omitting here to read have been footnote), language Further, in the third used Y, as to paragraph of subdivision demonstrates a black man “When *17 resting demon- “to McDonnell possesses qualifications burden that he relationship between job opening strate a substantial that has been fill a he employ- denying offered for the reasons continues denied the job” requirements open, presents of the a ment and main think he we operations” and its plant sub- rupting demonstrat- has “McDonnell that applicant’s “an statement that stituted testimony evidence ed conduct participation in unlawful past ‘stall-in’ employer prospective his at directed ability to impede his would applicant’s lack of might indicate the now applied”, been performing responsible attitude toward appli- read, “However, an changed to employer”. for that work con- unlawful participation in past cant’s prospective possible Any proof directed duct that would of a applicant’s lack might attempting indicate would be show that performing operation toward responsible handicap attitude industrial employer”. necessarily plant, work involve would which, testimony opinion or difficulty all I have dissent, original my pointed out in opinion adhere continues majority opinion of declares acts position that such charges weight rebutting “little against McDonnell committed discrimination”. legally entitle McDonnell would not though him, racial no even to hire refuse prolong this discus- not desire to I do they although involved, reiterate, was further, motivation except as noted sion so to do and would cause original entitle would my dissent, that I believe the taking persons. of white in the case majority engaged in mistaken in- im- position that such unlawful holding Griggs terpretation v. themselves, do not Co., 424, 431, misdeeds mediate Duke Power 401 U.S. in- though no motivation (1971). even I ad- 28 L.Ed.2d 158 S.Ct. volved, provide a sufficient basis original my dissent, with this here Green, the to refuse to expression supplemental added. holding, not that Green are thus opportunity aas the same is entitled to

white, he is entitled but that one greater degree. different and dissent, my original

As indicated to read Title

am not able VII Opportunity

Equal Employment Act of inherently providing for

1964 as opportunity

different curbing prescription, such a America, UNITED STATES Congress, mat- nor do as a believe Plaintiff-Appellee, adherence, respect for ter of law presume impose requirement such a al., Francisco PENTADO et Defendants- upon employers in business condonation Appellants. respect to the commission of unlawful No. 71-1612. them, acts such as in- are here holding majority’s volved. And Appeals, United States Court that, though Fifth even Circuit. racial motivation involved, not entitled June 1972. to refuse to hire Green un- Rehearing Rehearing En Banc it, misdeeds lawful July 18, Denied something more than this would have situation, exist in the I confess I am any practical difference, not able to see so far as McDonnell’s situation is con-

cerned, original opinion’s between the statement, must be shown that of Green would in “dis- result