# Charles PAYNE, Plaintiff-Appellee, v. McLEMORE’S WHOLESALE & RETAIL STORES, a Louisiana Corporation, Defendant-Appellant > Court of Appeals for the Fifth Circuit · September 4, 1981 · 654 F.2d 1130 URL: https://www.frixlaw.com/law-library/cases/9468179 ## Case - **Full name:** 26 Fair empl.prac.cas. 1500, 26 Empl. Prac. Dec. P 32,097 Charles Payne v. McLemore Wholesale & Retail Stores, a Louisiana Corporation - **Court:** Court of Appeals for the Fifth Circuit - **Decided:** September 4, 1981 - **Citations:** 654 F.2d 1130; 26 Empl. Prac. Dec. (CCH) 32,097; 26 Fair Empl. Prac. Cas. (BNA) 1500; 1981 U.S. App. LEXIS 17990 - **Precedential status:** Published - **Opinion:** Dissent by Coleman - **Judges:** Coleman, Garza, Johnson - **Cited by:** 210 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9468179 ## How later opinions describe it (automated extraction) - describing plaintiff’s .oppositional activity as participating in a boycott targeting retailers including his employer for not hiring black people in money-handling’ and supervisory positions; no indication that plaintiff himself, who worked in the employer's farm operations, … - finding that plaintiffs failure to prove unlawful employment practice concerning alleged discrimination against blacks was not fatal to his retaliation claim - affirming district court’s finding of opposition where there was “substantial evidence ... that the purpose of the boycott and picketing was to opposed defendant’s discrimination against blacks in certain employment opportunities” - noting a reasonable belief of discrimination was established “by virtue of McLemore’s failure to hire blacks in or promote blacks to certain employment positions” ## Opinion text COLEMAN, Circuit Judge, dissenting. I have long recognized that dissenting opinions are generally useless and, for that reason, have not always filed a dissent when disagreeing with a majority opinion or some part of it. Here, I choose to record my disagreement with the views of my distinguished Brethren of the majority. The gravamen of my concern is found in the concession of the majority opinion p. 1138 that “The Fifth Circuit has not heretofore directly addressed the issue whether proof of an actual unlawful employment practice is necessary under the opposition clause, or whether an employee is protected from retaliation under the opposition clause if the employee reasonably believes that the employer is engaged in unlawful employment practices”. The majority then proceeds to hold that reasonable belief is enough. However, the statute, 2000e-3(a), stripped of its inapplicable verbiage, reads: It shall be an unlawful practice for an employer to discriminate against . . . because he has opposed any practice made an unlawful employment practice by this subehapter. The statute speaks in terms of practices — not what someone “reasonably believes” to have been a practice when, in fact, the practice did not exist. I cannot believe that Congress intended (since it did not say so) to penalize employers for what an employee or applicant “believes” when, in fact, the employer is innocent. To hold otherwise is to deprive employers of their property rights in violation of the due process clause. Finally, I dissent because, as the majority concedes on pages 1140, 1141, the District Court made no finding [the majority adds the word “explicit”] that the plaintiff’s option was based upon “reasonable belief”. In proceeding to make its own, inferential, findings of fact the majority cites not a single specific fact that would support a finding of reasonable belief. In the finish, I do not wish to be cast in the role of even appearing to approve boycotts against a whole community, the innocent and the guilty alike, as the kind of activity which Congress intended to protect by this statute. I respectfully dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9468179. Public record. Not legal advice.