Appendix — McDonnell Douglas Corp. v. Green

3

APPENDIX A

United States Court of Appeals

For the Eighth Circuit

No. 20,596

Appeal from the

Plaintiff-Appellant, — 7

* N trict Court for the

. Eastern District of

ell Douglas Corporation, Wisseesl.

Defendant-A ppellee. J

March 30, 1972

efore Jounsen, Lay and Bricut, Circuit Judges.

r, Circuit Judge.

om, a black citizen, brought this action against

l-Douglas Corporation (McDonnell) under Title

n of 1964, seeking relief from

ie latter’ s allegedly discriminatory conduct in denying

re employment in July 1965. Green also pressed a

m that McDonnell had discharged him from a job in

gust 1964 for reasons of race in violation of 42 U.S.C.

The district court denied Green any relief. Green

u- Douglas Corporation, 318 F.Supp. 846 (E.D.

aus. §§ 2000e et seq.

>

cay We eee

Mo, 1970). Green prosecutes this timely appeal. For th

reasons stated below, we reverse and remand this cag

for further proceedings.

To place this controversy in an appropriate frame of

reference, we find it necessary to examine chronologically

both the underlying facts and the procedures followed in

the district court. Although the immediate controversy

springs from the refusal of McDonnell to employ Green

on July 26, 1965, its origin lies in an earlier employment

relationship. In 1956, McDonnell employed Green as 1

mechanic. He remained with the company continuously,

except for twenty-one months of honorable military serv.

ice, until he was laid off on August 28, 1964. Initially,

Green’s job was protected by union security, but in 198

he transferred to a non-union position as a laboratory

technician, performing work on research projects in the

Electronic Equipment Division of McDonnell. In 1964,

the workload decreased in the Electronic Equipment Divi-

sion, and the company laid off several persons, including

Green.

Green, a long-time activist in the movement to obtain

equal rights for black citizens, vigorously protested his

discharge as being racially motivated. He also filed formal

complaints of discrimination with the President s Com

mission on Civil Rights, the Justice, Department, the De

partment of the Navy, the Defense Department, and th

Missouri Commission on Human Rights. As a member dt

OORE, and later as a member of ACTION, another civil

rights organization, Green, in late 1964 and during 196%,

participated in several demonstrations which were staged

to call attention to McDonnell’s allegedly imi

employment practices. These demonstrations included

picketing the home of James F. McDonnell, Chairman of

the Board of McDonnell; blocking a main highway access

route leading to the McDonnell plant during a trafic

Oe

“gtall-in’’, and, participating in a civil rights demonstra-

tion during which the doors of a downtown St. Louis

building which housed certain McDonnell employees were

‘locked with chains by some of the demonstrators.

On July 25, 1965, McDonnell ran an advertisement in

the St. Louis, Missouri, newspapers seeking qualified elec-

trical mechanics. The next day Green applied for one of

these positions, but McDonnell, although still seeking quali-

fied mechanics, refused to hire him. McDonnell never has

disputed Green’s technical ability to perform the work

required in that position.’ Thereafter, on September 14,

1965, Green filed a formal complaint with the Equal Em-

ployment Opportunity Commission (EEOC), alleging that

McDonnell had discriminated against him because of

{his] race and because of [his] persistent involvement in

the Civil Rights Movement.“ On May 8, 1967, the EEOC

determined that reasonable cause existed to believe that

McDonnell had violated 42 U.S.C. § 2000e-3(a) by refusing

to employ Green because of his involvement in civil

rights activities.’’ It made no determination on the alle-

gation of racial bias.

The EEOC unsuccessfully attempted to conciliate the

dispute. Accordingly, on March 19, 1968, it issued a thirty-

day letter notifying Green that he might institute civil

action in federal court pursuant to 42 U.S.C. § 2000e-5(e).

This litigation followed.

In a complaint filed April 15, 1968, Green alleged that

McDonnell had discriminated against him by denying him

employment ‘‘because of his involvement in civil rights

activities.’’ On March 20, 1969, Green filed an amended

complaint alleging that McDonnell also had discriminated

* The EEOC abstained from taking action in deference to the

Commission on Human Rights, see 42 U.S.C. § 2000e-

S(e), until February 4, 1966, when Green requested the EEOC to

assert jurisdiction.

—A4—

against him by denying him employment ‘‘because of his

race and color. Upon motion of McDonnell, the district

court struck this additional claim on the ground that the

EEOC had made no finding as to reasonable cause on this

claim. Green v. McDonnell-Douglas Corp., 299 F.Supp.

1100 (E. D. Mo. 1969).

Although 42 U.S.C. § 1981 was not specifically men.

tioned in any of the pleadings, Green, during trial and in

post-trial briefs, construed the pleadings to assert that his

1964 layoff was motivated by racial prejudice in violation

of that statute.

The district court rejected Green’s claim that McDonnell

denied him employment in 1965 because of his participa.

tion in protected civil rights activities. The court also re

jected the 1964 layoff claim brought under § 1981. It sum

marized its conclusions as follows:

(a) Plaintiff has not shown that defendant wa

motivated by racial prejudice or because of as:

legitimate civil rights activities.

(b) Plaintiff’s layoff claim under 42 U.S. C. 6 1981

is barred by the statute of limitations.

(c) The Civil Rights Act does not protect activity

which blocks entrance into or from an employer“

plant or office.

(d) Defendant’s refusal to reemploy plaintiff wa

based on plaintiff’s misconduct, which justified the

refusal to rehire. [318 F. Supp. 851]

security of

zens, and

8

On this appeal, Green raises the following contentions:

(1) The trial court erred in dismissing his claim under

42 U.S.C. $1981 for relief from his allegedly unlawful

layoff.

(2) The trial court erred in determining that his par-

ticipation in the ‘‘lock-in’’ and ‘‘stall-in’’ demonstrations

did not fall within the protection of 42 U.S.C. § 2000e-3(a).

(3) The trial court erred in striking the allegations

of the complaint which charged McDonnell with denying

him employment for reasons of race.

*

We turn first to the issues relating to the 1964 layoff.

Several circuits, following the rationale of Jones v. Mayer

Co., 392 U.S. 409 (1968), have concluded that 42 U.S. C.

91981 affords a remedy in federal court for private dis-

crimination in employment. T oung v. International Tele-

phone & Telegraph Co., 438 F.2d 757 (3d Cir. 1971);

Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th Cir.

1970), cert. denied, 401 U.S. 948 (1971); Waters v. Wis-

consin Steel Works of International Harvester Co., 427

F.2d 476 (7th Cir.), cert. denied, 400 U.S. 911 (1970). This

court has not yet passed upon this question. We find it

unnecessary to do so here since, even if we assume that

such an action will lie, the action in this case would be

barred by the applicable statute of limitations.

Although § 1981 contains no limitation period, an action

for deprivation of civil rights brought under a federal

statute such as § 1981 is governed by the most analogous

state statute of limitations. See Glassco v. Howell, 431

F.2d 863, 864 (8th Cir. 1970); Waters v. Wisconsin Steel

Works of International Harvester Co., supra, 427 F.2d at

8

488. In this case, the parties agree that Missouri’s five.

year limitation period for contracts“ is the most analogous

period of limitation. Within that limitation period, Green

filed no pleading which mentioned either the 1964 layoff

or 42 U.S.C. § 1981.

. On August 24, 1970, several months after the trial court

had heard the evidence, and more than five years after

the 1964 layoff, Green moved under Fed R. Civ. P. 15(b)

to amend his complaint to charge discrimination in vio-

lation of 42 U.S.C. § 1981 in that it was based on race,

color, and civil rights activities. The trial court denied

leave to amend. The record discloses that McDonnell did

not expressly or impliedly consent to any action under

§ 1981, and that any evidence relating to the 1964 layoff

was introduced as a background for Green’s claim to re

lief from McDonnell’s refusal to hire him in July 1965.

Green contends that his amended complaint, which was

filed within the limitation period, should be construed to

state a claim under § 1981 for discrimination in the 1964

layoff. We cannot accept his broad reading of the language

contained in the amended complaint. Although that com-

plaint alleges discrimination because of . . . race and

color, it specifically refers to unlawful employment prac-

tices occurring on July 26, 1965, and thereafter.’’ This

language convinces us that the amended complaint was

not intended to encompass the 1964 layoff. Accordingly,

we conclude that the district court properly dismissed the

layoff claim.

. : 1

We now examine Green’s contention that the district

court erred in ruling that his participation in the ‘‘stall-in”

4 Mo. Ann. Stat. §516.120(1) (1952).

| | : )

3

—

—

and ‘‘lock-in’’ demonstrations did not fall within the

protection of 42 U.S.C. §2000e-3(a). We confine our dis-

cussion here to the question whether Green’s participation

in the ‘‘stall-in’’ is a protected activity under §2000e-3(a).

The record does not support the trial court’s conclusion

that Green actively cooperated’’ in chaining the doors

of the downtown St. Louis building during the ‘‘lock-in’’

demonstration. See Judge Lay’s concurring opinion, infra.

We therefore measure the protection afforded by §2000e-

3(a) against Green’s admitted participation in the ‘‘stall-

in.

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

It shall be an unlawful employment practice for an

employer to discriminate against any of his employees

or applicants for employment . . because he has

opposed any practice made an unlawful employment

practice by this subchapter, or because he has made

a charge, testified, assisted, or participated in any

manner in an investigation, proceeding, or hearing

under this subchapter. .

In support of his protection argument, Green stresses the

language forbidding discrimination „because [an appli-

cant] has opposed any practice made an unlawful -employ-

ment practice by this subchapter.’’ According to Green,

since the ‘‘stall-in’”? was a non-violent protest designed to

call attention to McDonnell’s allegedly discriminatory

practices, this activity commands the protection of §2000e-

3(a). McDonnell, on the other hand, asserts that the

unlawfulness of this protest removes it from the protection

of that section.

We find little relevant authority for either position. The

islative history of Title VII provides us with no guid-

ance as to the scope of the protection afforded by §2000e-

Aa), and the small body of case law surrounding that

—

6

section contains little discussion on the subject.“ Never.

theless, we think it is clear from the language of th

statute that Congress sought to protect employees and

job applicants from employer retaliation for filing com.

plaints to the EEOC. Those who have the courage t

challenge discriminatory practices of an employer merit

that protection. Without doubt, lawful protest also com.

mands the same protection, but we find no suggestion that

protection extends to activities which run afoul of the

law. Accordingly, we agree with the district court ‘that

the ‘‘stall-in’’ demonstration was not a protected activity

under §2000e-3(a).

III

We find merit in Green’s contention that the district

court erred in striking the allegation that McDonnell de.

nied him employment in July 1965 ‘‘because of his race

and color. Such discriminatory practices are pro

hibited by 42 U.S. C. 62000e-2(a) (1), which provides:

(a) It shall be an unlawful employment practice for

conditions, or privileges of employment, because of

such individual’s race, color, religion, sex, or national

origin.

7

=

998 (Sth Cir. 1

F

Te

terized the e e § 2000e-3(a) as ae

ection affo an oyee under ir Labor

cs * 29 U.S.C. 5 215 (a) (3), and under the Nati

Relations Act, 29 U.S.C. § 158(a) (4), the court did not

to define the parameters of § 2000e-3 (a).

111

gE

=~ A-9 —

As noted above, the district court struck this allegation

on the ground that the EEOC had made no finding of

reasonable cause. Although the enforcement provisions of

Title VII are silent as to the necessity of such a finding,

it is now well settled that a complaining party need satisfy

only two jurisdictional uisites in order to bring

suit against an employer under Title VII: first, he must

file a complaint with the EEOC; second, he must re-

ceive the statutory notice of the right to sue. See Robinson

v. Lorillard Corp., 444 F. 2d 791 (4th Cir. 1971); Beverly

v. Lone Star Lead Construction Corp., 437 F.2d 1136 (5th

Cir. 1971); Flowers v. Local No. 6, Laborers International

Union of North America, 431 F.2d 205 (7th Cir. 1970);

Fekete v. U. S. Steel Corp., 424 F.2d 331 (3d Cir. 1970);

Culpepper v. Reynolds Metal Co., 421 F.2d 888 (5th Cir.

1970) ; Miller v. International Paper Co., 408 F.2d 283 (5th

Cir. 1969). Moreover, four circuits have squarely held that

an EEOC finding of reasonable cause is not a jurisdic-

tional prerequisite to suit. Robinson v. Lorillard Corp.,

supra; Beverly v. Lone Star Lead Construction Corp.,

supra; Flowers v. Local No. 6, Laborers International

Union of North America, supra; Fekete v. U. F. Steel

Corp., supra.

In this proceeding, Green satisfied the established pre-

requisites to a Title VII suit. His formal complaint to

the EEOC stated that McDonnell had discriminated against

him because of [his] race and because of [his] persistent

involvement in the Civil Rights Movement.’’ We hold that

Green was entitled to judicial review of all grounds of

employment discrimination alleged in his complaint to the

EEOC, and that the district court’s ruling to the oe

was erroneous.

IV

In anticipation of an adverse ruling on this issue, Mo-

Donnell argues that Green sustained no prejudice from

the trial court’s erroneous ruling because the trial court

— A-10—

actually considered the racial discrimination claim and

ruled against Green on the merits. Therefore, the argu-

‘ment continues, the district court’s decision should be

affirmed despite this erroneous ruling.

We cannot accept McDonnell’s suggestion that it should

prevail on an issue that Green was not privileged to pre

sent. We cannot say that the district court’s action in

striking the racial discrimination claim did not hamper

the preparation and presentation of Green’s case, not-

withstanding the commendable zeal displayed by his coun-

sel in producing an abundant record of events and cir.

cumstances relating to Green’s employment relationship

with McDonnell. Additionally, as discussed in part V

below, the district court failed to consider whether the

reasons given by McDonnell for not rehiring Green were

related to the requirements of the job. Instead, the dis

trict court simply assumed that, since the ‘‘lock-in’’ and

‘‘stall-in’’ protests were unprotected activities, MeDon.

nell’s refusal to rehire Green could not be violative of

42 U.S.C. §2000e-2(a)(1). The district court said:

It must be remembered that so far as the Civil Rights

Act goes, the employer may discharge or refuse to

reemploy for any reason, except discrimination or

because of practices made unlawful under Title VIL

The testimony and evidence before the court fails to

establish by its greater weight, or preponderance, that

defendant’s refusal to rehire plaintiff resulted from

racial prejudice or plaintiff’s legitimate civil rights

activities. It seems clear from the record that de.

fendant’s reasons for refusing to rehire the plaintiff

were motivated solely and simply by the plaintiff's

participation in the stall-in' and the ‘‘lock-in”

demonstrations. The burden of proving other reasons

was on the plaintiff. [318 F.Supp. at 850].

We think it is clear that an applicant for employment

may be entitled to the protection of §2000e-2(a)(1) even

— A-11—

though he participates in activities which fall outside the

protection of §2000e-3(a). These statutes apply to wholly

different facets of the employment relationship. Section

2000e-3(a) serves peripherally in the scheme of Title VII

to shield an employee or applicant from employer retalia-

tion. Section 2000e-2(a)(1) expresses Title VII’s primary

promise equal employment opportunities for all. It would

be antithetical to the remedial purposes of the Act to inter-

relate these sections so as to construe the Act to mean

that an applicant’s civil rights activities which fall out-

side §2000e-3(a) may serve as a basis for employment dis-

qualification without consideration of the separate stand-

ards called for by §2000e-2(a)(1).

In the light of this record, we deem it necessary to re-

mand this case to the district court for reconsideration

of the racial discrimination issue in accordance with the

standards discussed below. On remand, the parties should

be permitted to present such additional evidence as may

be relevant to the issue.

V.

The record shows that MeDonnell has taken the position

that it has the right under Title VII to make subjective

hiring judgments which do not necessarily rest upon the

ability of the applicant to perform the work required.

Upon that hypothesis, and apparently because the plead-

ings did not require McDonnell to defend the charge that

its refusal to rehire Green was racially motivated, McDon-

nell made little effort to show that Green’s participation

in the “stall-in” would affect his ability to perform the

job or to work harmoniously with other employees and

supervisors. We need to evaluate this position in light

of our cases dealing with job discrimination based on race.

Our prior decisions make clear that, in cases presenting

questions of discriminatory hiring practices, employment

90

decisions based on subjective, ites than objective, eri

teria carry little weight in rebutting charges of discrimins

tion. See Moore v. Board of Education of Chidester School

District No. 59, Ark., 448 F.2d 709 (8th Cir. 1971). See

also Carter v. en ... F.2d ... (8th Cir., No

71-1181, Sept. 9, 1971). We reaffirm this principle here,

„If an employment practice which operates to exclude

Negroes cannot be shown to be related to job performance,

the practice is prohibited. Griggs v. Duke Power Co,,

401 U.S. 424, 431 (1971). In enacting Title VII, Congres

has mandated the removal of racial barriers to employ.

ment. Judicial acceptance of subjectively based hiring

decisions must be limited if Title VII is to be more than

an illusory commitment to that end, for subjective criteria

may mask aspects of prohibited prejudice. Employers

seldom admit racial discrimination. Marquee v. Omaha,

Ford Division, 440 F.2d 1157, 1162 (8th Cir. 1971). Its

presence is often cloaked in generalities or vague criteria

which do not measure an applicant’s qualifications in

terms of job requirements. Consequently, a black job ap-

plicant must usually rest his case of discrimination upon

proof that he possessed the requisite qualifications to fill

the position which was denied him. In this case, it is un-

disputed that Green possessed the requisite skills to per-

form the work for which he applied, and that McDonnell

was seeking qualified applicants at the time it refused to

hire him and continued to seek qualified applicants there-

after. Moreover, Green’s prior performance with McDon-

nell had earned him a satisfactory rating.

When a black man demonstrates that he possesses the

qualifications to fill a job opening and that he was denied

the job, we think he presents a prima facie case of racial

discrimination and that the burden passes to the employer

to demonstrate a substantial relationship between the

reasons offered for denying employment and the require.

— A-13 —

ments of the job. Here, McDonnell has not demonstrated

by any testimony or other evidence that Green’s participa-

tion in the ‘‘stall-in’’ would impede his ability to perform

the job for which he applied. There is no evidence that

Green’s conduct would cause fellow employees or super-

visors to refuse to cooperate with Green, thereby disrupt-

ing plant operations.“

In this connection, we note that McDonnell employs over

thirty thousand men and women at its St. Louis plant.

The record demonstrates that few employees were actually

affected by the stall-in.“ We recognize that an em-

ployee’s participation in an activity such as a ‘‘stall-in’’

could impede his ability to work harmoniously in surround-

ings characterized by close personal, or working, relation

ships among employees or between employees and man-

agement. This problem might be present at McDonnell,

but the record is bare on this point. This aspect of the

case remains for further exploration. On remand, Mc-

Donnell will have the opportunity to present evidence on

this matter. |

We do not, as does the dissent, construe this remand as

a command to McDonnell to rehire Green. The remand is

required because the district court did not use the correct

standard in determining whether McDonnell’s refusal to

rehire Green was racially motivated. If McDonnell can

demonstrate that Green's participation in the ‘‘stall-in’”’ in

some objective way reflects adversely upon job perform-

ance, McDonnell’s refusal to rehire Green will be justified.

But, if McDonnell’s refusal to rehire Green rests upon

management's personal dislike for Green or personal dis-

si We mote also that the reasons advanced by McDonnell for re

fusing to rehire Green may be found to pretextual, particularly

since. McDonnell advanced the unsupported charge that Green had

“actively cooperated” in the “lock-in.” See Judge Lay's concurring

ion, infra,

— A-14—

‘taste for his conduct in the civil rights field, Green is

entitled to some relief.’

The amount of lost earnings claimed by Green is not

great, see note 8, supra, [sic] but the parties regard this as

an important case and have devoted substantial time and

energy to its litigation. Although the litigation is still

znot completed, we deem it appropriate to allow appellant

a reasonable attorney’s fee for this appeal, to be taxed

as costs, upon counsel’s submission of an estimate of his

fee containing details of his services and time spent on this

appeal. See 42 U.S.C. 4 2000e-5(k).

Lay, Circuit Judge, concurring.

I join in the reversal and remand. I do so for the rea-

sons stated by Judge Bright and some others as well.

The court’s order refusing plaintiff leave to amend his

complaint and utilize discovery on the issue of racial dis

crimination because the E.E.0.C. had not based its find-

ing of probable cause on this ground is conceded error.

Argument is made that nevertheless the issue was tried

by consent and that the trial judge found there was in-

sufficient evidence to support plaintiff’s claim. The ancient

Hebrew expression, ‘‘They tie our hands and then re

proach us that we do not use them, gives sufficient re

sponse here.

Trial counsel who is foreclosed from pleading and pur-

suing discovery of facts relating to a particular legal

refused to rehire him nder these circumstances, the district

court may limit relief, if any is to be given, to damages based on

Green’s loss of earnings between July 26, 1965, and the date on

which he acquired reasonably equi employment, which loss

Green estimated to be between four and five thousand dollars.

1

theory is scarcely prepared to try the case on that theory.

It is not realistic to urge that thereafter where facts per-

taining to that theory are drawn into the case, the issue

has been tried by consent and the party has no cause for

complaint. If the adversary system means anything at all

it is that lawsuits and issues are not designed to be tried

by happenchance. To make inquiry as to what additional

facts could have been shown is remote to the practicalities

of the trial of any lawsuit. Preparation is the gute and

heart of effective representation in any litigation. The

very contemplation of trying a specific legal issue can

trigger mental processes as to strategy in building docu-

mentary and testimonial proof of the case. The order of

proof, as well as the direct and crose-examination, may

well vary as the strategy to present the issues as planned.

Without adequate preparation by interviewing the wit-

nesses, by discovery of facts unknown, by collation of the

facts, by marshalling the documentary evidence, by in-

vestigating the law as to the particular issue to be tried,

it is little wonder that a trial court dismisses a suit for

insufficient evidence. Here, the trial court passed on a

claim that it earlier foreclosed from being raised in the

pleadings and on which it refused discovery. For

the above stated reasons that finding must be reversed.

Turning to the issues tried, the record presents no evi-

dence whatsoever that the plaintiff actively and illegally

participated in the so-called ‘‘lock-in.’’ Yet the company

wed this reason to support their rejection of Green as an

employee. I deem this reason pretextual.

The record shows that one of the grounds stated by

Mr. Windsor, defendant’s Director of Personnel Services,

for the refusal to hire Green was because he had ‘‘chained

the doors of the Roberts Building.“ There is no evidence

which supports this charge. On the day of the lock-in

Green was engaged in protected picketing activities, He

— A-16 —

was told by one member of the picketing group that some.

one was going to chain the doors of the Roberts Building.

When Green arrived at the scene, the chain had either

already been removed or officials were in the process of

removing it. A complete stranger to this litigation did the

chaining. Evidence of mere subjective approval of this

incident at the time of trial is not proof of Green’s direc.

tion or authorization of it. Only if it could be shown that

a principal-agent relationship existed between Green and

the active participants can their wrongdoing be imputed to

him. Cf. International Ladies Garment Workers Union v.

V. L. R. B., 237 F.2d 545 (D.C. Cir. 1956). Since the com-

pany erroneously imputed the wrongdoing to Green, it

would be compounding the error to allow the company to

use these facts as a basis for refusal to hire. Thus the

district court’s reliance on this fact is clearly erroneous

The trial court held that the ‘‘stall-in’”’ and lock: in“

were ‘‘unprotected”’ activities on which the company based

its refusal to hire. The trial court’s opinion gives little

analysis as to why these reasons were singled out to be

the sole cause when the record is undisputed that the

company was disturbed over Green’s lawful picketing ac

tivities as well. These activities were cited by company

officials to the E. E. O. C. as part of their motive for refusing

to rehire Green as an employee. One has grave difficulty in

coming away from analysis of the present record without

the belief that the company’s rejection of Green was

based not so much on an isolated illegal protest but on

Green’s prolonged activity in bringing public attention to

the company’s alleged discriminatory practices. Blind ac

ceptance of any non-discriminatory reason offered by an

employer in a fair employment case would always pre

clude correction of any discriminatory practices otherwise

existing. It has generally been said that an employer may

refuse to hire or decide to fire any employee for any res

son he chooses. Civil rights legislation and case law deal

8 — 417 —

ing with discriminatory employment practices have added

modification to these principles. Discriminatory motives

even though they constitute only a partial basis for an

employer’s refusal to hire are not sanctioned. Smith v.

Sol D. Adler Realty Co., 436 F.2d 344 (7 Cir. 1970); Arm-

stead v. Starkville School Dist., 3 F.E.P. Cases 977, 982-

983 (N.D. Miss. 1971); Stebbins v. Keystone Ins. Co., 2

FE. P. Cases 861 (D. D.C. 1970). In other words the pro-

tected activities of Green cannot give the employer even

partial cause to deny the employment. It is argued that it

is unrealistic to think that an employer must hire an in-

dividual who vigorously, and at times even unlawfully,

challenges the company’s fairness and integrity. The

syllogistic conclusion is that the applicant has bit the hand

he asks to feed him. Yet to the limit that the law protects

an individual’s right to protest unlawful discrimination,

by exercise of free speech and free assembly, an employer

ig precluded from the use of coercive or intimidating

sanctions to circumvent the law’s protective cloak. The

hard nut of it all is that the public interest to be carried

out in the legislative requirement of fair and equal em-

ployment practices possesses a higher value than the likes

or dislikes of a particular employer.

Thus, when an employee challenges his rejected employ-

ment as a violation of the civil rights law and makes a

prima facie case of discrimination as has been done here, i

the record must demonstrate more than a mere subjective

reason, as Judge Bright authoritatively demonstrates, for

the employer’s action. The evidence must show that the

employee’s lawful activities under § 2000e-3a were in no

part a motivating factor in the employer’s decision and

that the reason for the rejection ie objectively related to

job performance. Without this showing any reason could

otherwise be used to mask the denial of protected rights.

“2 Cf. Marques v. Ford Motor Co., 440 F.2d 1157 (8 Cir. 1971).

— A-18 —

Jokxenx, Senior Circuit Judge, dissenting in part.

I

I agree with the holding in subdivision I of the majority

opinion that Green’s attempt to assert a claim under 4

US.C. § 1981 in 1970, for his layoff which occurred in 1964,

was barred as a matter of limitations.

I also agree with the holding in subdivision II that the

‘‘stall-in’’ activity engaged in by Green against McDonnell

constituted an unlawful form of protest and was without

any right of protection under 42 U.S.C. § 2000e-3 (a).

I further agree with the holding in subdivision III that

the district court was mistaken in its initial view and

ruling that Green could not make assertion in his com-

plaint of a claim that he had been denied rehiring because

of his race, since the Equal Employment Opportunity

Commission had not made a finding that reasonable cause

existed to believe that this basis had underlain McDonnell’s

refusal to rehire him. The question has not been passed

upon by the Supreme Court, but such an array of decisions

by the lower federal courts exists thereon that I think it

presently must be regarded as accepted law that where

charges of violation of Title VII of the Civil Rights Act

of 1964 have been lodged with the Commission, and the

Commission thereafter notifies the complainant that it has

not been able (for whatever reason) to effect compliance

in respect thereto, the failure of the Commission to make a

finding of reasonable cause on some particular charge does

not preclude that charge from being asserted as a claim

in a suit brought under § 2000ce-5.

II.

I am not, however, able to agree with the holding in

subdivision II that Green had no such part in the ‘‘lock-in”

activity involved as to enable it to be regarded as an un-

lawful form of protest on his part against McDonnell,

1

The ‘‘lock-in’’ was the focal point of a demonstration

which was planned and put on against McDonnell by an

activist organization calling itself ACTION. Green was

chairman or head of the organization. In organizing the

demonstration, it would be only natural conduct, as com-

mon experience is able to attest, that the members would

communicate and discuss with Green, as their chairman

and leader, the activities which were organizationally to

be engaged in. Further, the record to me carries sufficient

implication that this was indeed the actual fact of the

situation. There is no testimony that Green had delegated

to anyone the role of serving as leader of the ACTION

group for the occasion or that anyone had presumed to

take over and carry on this function for him. Green ad-

mitted having knowledge that a part of what was going

to be done was to chain and padlock the doors of the office

building. 2 . 0

The building housed a part of McDonnell’s Offices, and

a staff of McDonnell’s exployees was working in it at the

time. I should have supposed that, within common ex-

perience, no one could have any difficulty in believing that

the primary objective of the affair was to be the locking

up of McDonnell’s employees in the building, and that it

was because of this unlawful aspect that the matter was

taken up with Green as the organization’s head.

The majority opinion passes all this off with the mere

statement that ‘‘The record does not support the trial

court’s conclusion that Green ‘actively cooperated’ in

chaining the doors of the downtown St. Louis building

during the ‘lock-in’ demonstration“. The concurring opin-

ion, apparently to give this a bit of bolstering, engages in

adding:

The record shows that one of the grounds stated by

Mr. Windsor, defendant’s Director of Personnel Serv-

ices, for the refusal to hire Green was because he had

~

2080

‘chained the doors of the Roberts Building’. There is

no evidence which supports this charge. On the day of

the ‘lock-in’, Green was engaged in protected picket-

ing getivities. He was told by one member of the

picketing group that someone was going to chain the

doors of the Roberts Building. When Green arrived

at the scene, the chain had either already been re

moved or officials were in the process of removing

it. A complete stranger to this litigation did the chain.

ing. Evidence of mere subjective approval of this

incident at the time of trial is not proof of Green’s

direction or authorization of it. Only if it could be

shown that a principal-agent relationship existed be-

tween Green and the active participants can their

wrongdoing be imputed to him’’.

I have some difficulty with these statements. I pause on

them only because they appear to be accepted and made

part of the majority opinion, by Judge Bright’s statement

‘therein, ‘‘See Judge Lay’s concurring opinion, infra”.

Thus the position of the majority seems to be that no

responsibility for the chaining of the doors can properly

be ‘attributed to Green because, from his own testimony,

he did not personally do the act and McDonnell did not

show that he had commissioned the others to do it for him

I think this overlooks the reality that the demonstration

was not one made by a mere aggregation of separate in-

dividuals, each of whom was intendedly free to carry out

his own aims and engage in such personal actions as he

might see fit. As I have indicated, it was conduct engaged

in by the membership of ACTION as a body. It was con-

certed action planned and taken by the organization. It

was heralded and was intended to have attribution and

credit given to the organization ACTION. It «as action

carried on by those who went to the scene as the mem-

bership body of ACTION. Its focal point was intended to

—4 —

de the chaining and padlocking of the doors of the build-

ing. Because of the character of this aspect, it would be

only natural, as I have said, within ordinary experience,

that it should be and had been taken up with Green in his

organizational prerogatives. peas?

To repeat—like the district court, I have no difficulty

regarding it as a rational inference, (1) that the com-

munication with Green was done for the purpose of having

him give assent and authorization thereto; (2) that with

the chaining and padlocking being carried out as planned,

Green had in fact given it such approval and authoriza-

tion; and (3) that further, with no other reason or basis

being shown therefor, Green’s presence at ‘the scene could

only have been for the purpose of constituting a participa-

tion by him in the organization’s intention and action of

chaining the doors of the building and of giving any

direction and other assistance necessary to have it ac-

complished.

Thus, in my view, McDonnell could properly regard

Green as having responsibility for the chaining and pad-

locking and as having intended this to constitute a target-

ing on his part of McDonnell. In the unlawfulness of the

act, his responsibility as to McDonnell would be a per-

sonal one; it could not be shunted off by him on the basis

of official cloak or shield. I am therefore not quite able

to understand how it can realistically be said that all

Green did was ‘‘to make a mere subjective approval of

this incident at the time of trial“. It seems to me that in

making reversal of the trial court’s finding as to Green’s

responsibility for the lock- in“ action, the majority have

engaged in artificiality.

III

McDonnell’s right to consider the question of rehiring

Green thus was, in my opinion, entitled to have as its basis

both the ‘‘lock-in’’ and the .‘‘stall-in” action which had

ni A 88

been engaged in against it. The majority opinion merely

makes reference to the ‘‘sfall-in’’ situation; it does not

set out the facts. Rows of cars were lined up across all

four of the public highways from which entrance had to

be made to the McDonnell plant area. The blockades were

set up just before a shift of some 10,000 employees was

due to arrive for work. The plant, with its total of over

30,000 employees, was being operated in three shifts. The

members of the shift which the 7:00 am. one was to re

place would thereupon be leaving for their homes.

It is not difficult to envision—and indeed it seems to

me that McDonnell could hardly escape having concern for

this aspect—what consequence the blockade could and pre.

sumably was intended to effect, in its public significance,

in its substantial disruption of plant operation, and in

natural reaction on the part of the vast number of em-

ployees whose right of ingress and egress were sought

to be thwarted. It happened that these consequences were

averted, not by any change in conscience on Green’s part,

but by the prompt action of the police in breaking up the

blockade and in placing Green under arrest. The record

does not enable any subjective immunity to be accorded

Green on the ‘‘stall-in’’ events, as has been done in rela-

tion to the ‘‘lock-in’’ action, for Green chose not to try

public-wise to deny or to justify the unlawful action of

tying up general highway traffic and seeking to prevent

10,000 of McDonnell’s employees from getting to their

work, but elected instead to engage in the expedient of

pleading guilty and being permitted to pay a fine of

$50.00 for the traffic violation.

It was both the ‘‘stall-in’’ and the ‘‘lock-in’’ situations

with which McDonnell was faced when Green presented

himself at its personnel office and made application for

one of the newly-opened jobs that had been «advertised

As noted, I think both of these situations were properly

entitled to be given consideration by McDonnell on the

a! poe

question of rehiring Green. The majority have now, how-

ever, closed the door upon McDonnell’s right to give any

consideration to the ‘‘lock-in” affair. But even on the

“stall-in’’ situation alone, I should not suppose that a

Gallup poll would be needed to show that any employer

with self respect and with concern for his relations with

his other employees hardly would hire a workman, whether

white or black, who had engaged in such an unlawful and

indicative misdeed against him, against his employees,

and against his business being permitted to operate.

I am therefore not able to see how any presumption of

racial discrimination would legally be capable of attaching

or could rationally be given application to such a situation.

Green could have no right to have the question of hiring

consideration dealt with in these circumstances differently

than would be done by McDonnell in relation to any other

person, white or black, who had engaged in such unlawful

conduct against it. It is familiar fact that whites, as well

as blacks, have through the years engaged in illegal acts,

such as the ‘‘stall-in’’ and ‘‘lock-in” here and other pos-

session-takings and worse, against particular businesses

and employers, for varying reasons, sometimes personal,

sometimes social, and sometimes political.

But whatever the reason therefor, one who has com-

mitted such unlawful deeds against some business and then

seeks to be hired by it, does not, in my opinion, stand in

any different position or have any right to different treat-

ment because he is a black, than if he were a white, in

relation to the right of refusal to hire him. Of course,

racial motivation may not enter into such a situation in

relation to a black. On the prima facie aspect, however,

created by the commission of the illegal deeds here in-

‘volved, it cannot, in my judgment, properly be held that

‘nevertheless if the perpetrator has been a black, the situa-

tion should be regarded as one of prima facie racial dis-

dination.

IV

But the majority opinion goes still farther in ite holdi

in subdivision V. If I read the statements in this sub.

together with some of those appearing

in subdivision IV, the effect of the court’s holding is that,

even though the actual reason for McDonnell’s refusal to

hire Green was the unlawful acts which he had committed

against it and no racial motivation was involved therein,

this would not be able to constitute a justification for its

not hiring him. :

In subdivision IV, the statement is made that “Addi.

tionally, as discussed in part V below, the district court

failed to consider whether the reasons given by

for not rehiring Green were — 1

of the job“. Subdivision V then goes on to declare:

„When a black man demonstrates that he possesses

the qualifications to fill a job opening and that he was

denied the job, we think he presents a prima facie case

of racial discrimination and that the burden passes to

the employer to demonstrate a substantial relationship

between the reasons offered for denying employment

and the requirements of the job. Here, McDonnell has

not demonstrated by any testimony or other evidence

that Green’s participation in the ‘stall-in’ would im- |

pede his ability to perform the job for which he ap-

plied. There is no evidence that Green’s conduct would

cause fellow employees or supervisors to refuse to

coopagate with Green, thereby disrupting plant opera

tions

f

I had thought the question in the case was whether, in

the denial of employment to Green, the situation either

was one in which McDonnell had acted with some racial

motive, or otherwise was one in which there did not exist

an equal opportunity for Green to get a job with & white

— so

person that had engaged in doing the same things against

it Green had done. Under Title VII, no racial discrimina-

tion may exist as to Negro employment, either actually in

the form of racial bias or operatively in not producing the

same degree of employment opportunity with a white

person (other than in a respect recognized by the statute).

The effect of the majority holding is, as I view it, that

even though no racial motivation was in fact involved on

the part of McDonnell, and even though its refusal to hire

anyone who had engaged in such unlawful acts against it

as were involved would’ not afford Green any less op-

portunity for employment than it did a white who had

engaged in the same unlawful acts against it, McDonnell

could nevertheless not refuse to hire Green unless his pres-

ence in the plant would disrupt its operations.

The holding purports to be predicated on a sentence in

Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971) that

“If an employment practice which operates to exclude

Negroes cannot be shown to be related to job performance,

the practice is prohibited. But this sentence may not be

read apart from the one which immediately precedes it:

“The [1964 Civil Rights] Act proscribes not only overt

discrimination but also practices that are fair in form

but discriminatory in operation“.

The thrust of Duke, as I read it, is that, within the pur-

pose and scope of the 1964 Act, a lack of equal opportunity,

and hence a discrimination, is created by an employer’s

Utilization of practices, procedures or tests which, even

though not so intended, operatively produce the result of

keeping blacks from obtaining jobs or of not being able

to progress to other jobs or classifications the same as

whites, where the things so utilized are without any sig-

Rificant relationship to a performance of the work involved.

I do not see in this a warrant for a holding that refusal

by an employer to hire a person who has engaged in such

“=

— A-26—

illegal conduct against it, as is here involved, is entitled

to be deemed to operate as a lack of equal opportunity

in employment, if the one who has done the misdeeds is

a Negro. Surely, the majority does not mean to say that

a Negro will not have equal opportunity for employment

within the intent of Title VII unless unlawful acts oom

mitted by him against a business or an employer are re

quired to be condoned, although American concepts have

never required such a business condonation as to a white.

I take the liberty of adding a word, in realistic certainty

and not in mystic prophecy, as to what the significance and

result of the majority’s holding will actually be. While

the opinion allows McDonnell ‘‘the opportunity to present

evidence’’ on whether Green’s ‘‘stall-in’’ misdeeds could

impede his ability to work harmoniously in surroundings

characterized by close personal, or working, relationships

among employees or between employees and management“,

that opportunity can hardly under the indications and

intimations of the opinion, constitute more than a theo

retical and hollow one to McDonnell.

The opinion says that McDonnell must be able to make

proof in some objective way that Green’s presence in

the plant would disrupt its operations. Testimony on the

part of McDonnell’s officials as to what their opinion would

be on this aspect would not be able to meet the court’s

prescription, in light of its further declaration that em.

ployment decisions based on subjective, rather than objec-

tive, criteria carry little weight in rebutting charges of

discrimination’’.

Nor would I think that McDonnell could properly go

around in the plant and undertake to canvass its employees

on how they would feel if Green were to be rehired. And

if McDonnell did presume to do so, one would have to be

naive to expect that an employee who might have feelings

or concern would be willing to make such an expression—

3

although within factory life he might not hesitate to mani-

fest his attitude toward Green upon a favorable opportu-

nity presenting itself in the plant for personally doing

80. Beyond this, even if some employee might be willing

to so declare and testify, this would only carry the situa-

tion onto the side track of a charge of racial bias being

hurled against him.

What the court has held can therefore, in my opinion,

only mean that McDonnell is being required to rehire

Green.

V.

The opinion contains still another ground for making

reversal. I have previously indicated my agreement that

the district court was mistaken in its initial view and

ruling that Green was not entitled to make assertion in

his complaint of a claim that he had been denied rehiring

because of his race. I am not able, however, in the cir-

cumstances shown by the record, to agree with the holding

in subdivision IV that the initial striking from the oom.

plaint of Green’s allegation of racial motivation entitles

him to a reversal of the judgment.

Despite the district court’s initial pleading ruling, Green

was allowed discovery in respect to McDonnell’s require-

ments for employment, on the nature of the tests and

interviews given, on the exemptions made therefrom, and

on the weight accorded to the ratings arrived at from

these processes, as they existed at the time of his applica-

tion for rehiring. He had access to and introduced evi-

dence at the trial on what the racial composition of the

work force at the plant had been during a substantial

number of years, and as to the applications, terminations,

status changes, classifications, et cetera, which had been

Involved as to nonwhite persons. He was permitted to

Give detailed testimony at the trial on his own employ-

ment history at the plant, including all incidents which

— A283 —

he regarded as having racial significance, such as conver.

gations had with him about the matter of his personal

grooming and the attire worn by him. Indeed, such was

_ the volume of this that the majority opinion takes occa.

sion to note the commendable zeal displayed by his

counsel in producing an abundant record of events and

circumstances relating to Green’s employment relationship

with McDonnell’’.

It is clear to me that at the trial the district court did

not adhere to its initial pleading ruling. It is also clear

that Green’s counsel, from the evidence which he adduced

at the trial, did not regard himself as being subject to

any such restriction. It further is clear from the character

and scope of Green’s personal testimony that he had such

familiarity with the plant as to provide rational basis

for inferring that he could and would have produced in.

stances of discriminatory practices if these had existed in

the plant.

The district court appraised all of the evidence thu

produced and found that it did not indicate or suggest

that ‘‘defendant was motivated by racial prejudice in itz

- refusal to rehire Green’’. The court recognized and de

clared in its Memorandum that the ‘controlling and ulti-

mate’’ considerations in the situation were whether the

‘‘stall-in’’ and ‘‘lock-in’’ actions of Green were the real

reason for defendant’s refusal to rehire the plaintiff”,

and whether, if they were, this could constitute sufficient

basis legally to justify defendant’s refusal to rehire the

plaintiff’.

The majority take the abstract position here, that We

cannot say that the district court’s action in striking the

racial discrimination claim did not hamper the prepars-

tion and presentation of Green’s case“. With the lack of

adherence to its pleading ruling which the district cout

engaged in; with the scope and character of the discovery

cS ee

which the court allowed; and with the nature and extent

of the evidence which Green’s counsel produced at the

trial—the practical effect of the majority’s holding can

only be that the district court must now accord Green the

full extent of the discovery which he sought. To me,

Green was allowed sufficient representative information—

part of whose character and scope I have indicated above

—so that no reversible error existed in the court’s denial

of his burdensome and harassing initial request to be

given access to some 200,000 general McDonnell files or

of his later request to be permitted to go through some

70,000 individual employment files. The denials which the

court made and the alternatives which it allowed in rela-

tion to Green’s requests seem to me to be well within the

scope of the judicial discretion which the court had a

right to exercise in the situation.

Again, I do not hesitate to state that I am certain, that,

after all the discovery has occurred to which Green has

now been given access, no more objectivity is likely to

be produced thereby than that which can be argued to

exist in the representative information, figures, et cetera,

to which Green has had access and which he adduced at

the trial.

VI

For the reasons I have indicated, I respectfully must

dissent from the reversal made of the judgment, and to

each of the three separate grounds on which it has been

predicated.

A true copy.

Attest:

Clerk, U. S. Court of Appeals, Eighth Circuit.

2

APPENDIX B

United States Court of Appeals

For the Eighth Circuit

es No. 20,596

Percy H. Green, a

Plaintiff-Appellant,

v. On Petition for

N Rehearing.

McDonnell Douglas Corporation,

Defendant-Appellee. 3

Before Jounsen, Lay, and Bricut, Circuit J udges.

*

May 12, 1972

ORDER ON PETITION FOR REHEARING

In response to a petition by McDonnell Douglas Cor. [

poration for a rehearing, the majority of the court have

decided to modify the court’s opinion by striking Part V

thereof and substituting a revised Part V, which is set

forth below.

Judge Lay joins in the revised opinion and adheres to

his prior separate concurring opinion.

Judge Johnsen dissents and files a supplemental dis

senting opinion, which is set forth below. .

In light of these modifications, the court denies McDon-

nell Douglas Corporation’s petition for a rehearing en

1

banc for the reason that the petition has failed to obtain

the vote of a majority of the Circuit J udges who are in

regular active service. A rehearing before the panel is

likewise denied.

The denial of the rehearing is without prejudice to the

right of either party to file a petition for a rehearing

on the court’s modified opinion.

No. 20,596. Percy H. Green v. McDonnell Corporation.

REVISED OPINION

Bricut, Circuit Judge.

| V

The record shows that McDonnell has taken the po-

sition that it has the right under Title VII to make

subjective hiring judgments which do not necessarily

rest upon the ability of the applicant to perform the work

required. Upon that hypothesis, and apparently because

the pleadings did not require McDonnell to defend the

charge that its refusal to rehire Green was racially mo-

tivated, McDonnell rested its case upon a showing that

Green had participated in unlawful civil rights activities

as reasons for declining to rehire him.

Our prior decisions make clear that, in cases presenting

questions of discriminatory hiring practices, employment

decisions based on subjective, rather than objective,

criteria carry little weight in rebutting charges of dis-

crimination. See Moore v. Board of Education of Chidester

School District No. 59, Ark., 448 F.2d 709 (8th Cir. 1971).

See also Carter v. Gallagher, F.2d ... (8th Cir., No.

71-1181, Sept. 9, 1971). We reaffirm this principle here.

“If an employment practice which operates to exclude

Negroes cannot be shown to be related to job performance,

the practice is prohibited.“ Griggs v. Duke Power Co.,

401 U.S. 424, 431 (1971). In enacting Title VII, Congress

Pos et ack Don Soc a

8

has mandated the removal of racial barriers to employ.

ment. Judicial acceptance of subjectively based hiring

decisions must be limited if Title VII is to be more tha

an illusory commitment to that end, for subjective criteris

may mask aspects of prohibited prejudice. Employers

seldom admit racial discrimination. Marquee v. Omaha,

Ford Division, 440 F.2d 1157, 1162 (8th Cir. 1971). Its

presence is often cloaked in generalities or vague criteria

which do not measure an applicant’s qualifications in

terms of job requirements. Consequently, a black job

applicant must usually rest his case of discrimination

upon proof that he possessed the requisite qualifications

to fill the position which was denied him. In this case,

it is undisputed that Green possessed the requisite skills

to perform the work for which he applied, and that Me.

Donnell was seeking qualified applicants at the time it

refused to hire him and continued to seek qualified ap

plicants thereafter. Moreover, Green’s prior performance

with McDonnell had earned him a satisfactory“ rating

When a black man demonstrates that he possesses the

qualifications to fill a job opening and that he was denied

the job which continues to remain open, we think he

presents a prima facie case of racial discrimination. How.

ever, an applicant’s past participation in unlawful conduct

directed at his prospective employer might indicate the

applicant’s lack of a responsible attitude toward perform.

ing work for that employer.

Of the several civil rights protests which Green di-

rected against McDonnell, the employer selected two, the

‘*lock-in’’ and the ‘‘stall-in’’, as reasons for its refusal

to rehire Green. Green should be given the opportunity

to show that these reasons offered by the Company were

pretextual, or otherwise show the presence of racially

„ McDonnell advanced an unsupported charge that Green had

“scively cooperated” i the. “lock-in.” See Jedge Lay's comer

:

*

diseriminatory hiring practices by MeDonnell which af.

fected its decision.

The district court did not use appropriate standards

in determining whether McDonnell’s refusal to hire Green

was racially motivated. On remand, both parties will

have the opportunity to present evidence on this matter.

The amount of lost earnings claimed by Green is not

great, but the parties regard this as an important case

and have devoted substantial time and energy to its liti-

gation, Although the litigation is still not completed, we

deem it appropriate to allow appellant a reasonable at-

torney’s fee for this appeal, to be taxed as costs, upon

counsel’s submission of an estimate of his fee containing

details of his services and time spent on this appeal.

See 42 U.S.C. § 2000e-5(k).

No. 20,596.

Green v. McDonnell-Douglas Corp.

Jounsen, Senior Circuit Judge, in supplemental dissent.

Modification and substitution has now been made as to

subdivision V of the previously-filed majority opinion. For

convenience and facilitation in checking whether this rep-

resents anything more than a language change, I set out

the modifications.

A

The statements in the second and third sentences of the

first paragraph of the subdivision as previously filed, read-

ing, ;

7 The record shows that Green obtained reasonably equivalent

9 to July 26, 1965, the date when McDonnell

to relire him. Under these

which he acquired reasonably equivalent employment, which loss

Green estimated to be between four and five thousand dollars,

ii

% © MeDonnell made little effort to show that

Green’s participation in the ‘stall-in’ would affect his

ability to perform the job or to work harmoniously

with. other employees and supervisors. We need to

evaluate this position in light of our cases dealing

with job discrimination based on race”,

have been changed to read,

4% © © McDonnell rested its case upon a showing that

Green had participated in unlawful civil rights ac

tivities as reasons for declining to rehire him.“

B

Paragraphs 3, 4, and 5 of the subdivision as previously

filed, reading,

„When a black man demonstrates that he possesses

the qualifications to fill a job opening and that he was

denied the job, we think he presents a prima facie

case of racial discrimination and that the burden

passes to the employer to demonstrate a substantial

relationship between the reasons offered for denying

employment and the requirements of the job. Here,

McDonnell has not demonstrated by any testimony or

other evidence that Green’s participation in the

‘stall-in’ would impede his ability to perform the job

for which he applied. There is no evidence that

Green’s conduct would cause fellow employees or su.

pervisors to refuse to cooperate with Green, thereby

disrupting plant operations.

In this connection, we note that McDonnell em-

ploys over thirty thousand men and women at its

St. Louis plant. The record demonstrates that few

employees were actually affected by the ‘gtall-in’. We

recognize that an employee’s participation in an 80

tivity such as a ‘stall-in’ could impede his ability t

1

work harmoniously in surroundings characterized by

close personal, or working, relationships among em-

ployees or between employees and management. This

problem might be present at McDonnell, but the rec-

ord is bare on this point. This aspect of the case re-

mains for further exploration. On remand, McDon-

nell will have the opportunity to present evidence on

this matter.

We do not, as does the dissent, construe this re-

mand as a command to McDonnell to rehire Green.

The remand is required because the district court

did not use the correct standard in determining

whether McDonnell’s refusal to rehire Green was ra-

cially motivated. If McDonnell can demonstrate that

Green’s participation in the ‘stall-in’ in some objec-

tive way reflects adversely upon job performance, Me-

Donnell’s refusal to rehire Green will be justified.

But, if McDonnell’s refusal to rehire Green rests

upon management’s personal dislike for Green or

personal distaste for his conduct in the civil rights

field, Green is entitled to some relief.’’,

have been changed to read (omitting here the footnote),

„When a black man demonstrates that he possesses

the qualifications to fill a job opening and that he has

been denied the job which continues to remain open,

we think he presents a prima facie case of racial dis-

crimination. However, an applicant’s past participa-

tion in unlawful conduct directed at his prospective

employer might indicate the applicant’s lack of a re-

sponsible attitude toward performing work for that

employer.

„Of the several civil rights protests which Green

directed against McDonnell, the employer selected

two, the ‘lock-in’ and the ‘stall-in’, as reasons for its

refusal to rehire Green. Green should be given the

subdivision V, as to the burden resting on McDonnell “‘to

in the ‘stall-in’ would impede his ability to perform the

—A-96—

opportunity to show that these reasons offered by the

Company were pretextual, or otherwise show the pres

ence of racial discriminatory hiring practices by Me

- Donnell which affected its decision.

„The district court did not use appropriate stand.

ards in determining whether McDonnell’s refusal to

hire Green was racially motivated. On remand, both

parties will have the opportunity to present evidenee

.on this matter.’’

0

I am not certain as to the intended effect of thew

changes, and I suspect that the district court also wil

have difficulty in trying to assess the significance of the

substituted language.

Thus, while the previous indication in the first pam

graph of the subdivision has been stricken that McDon-

nell was required ‘‘to show that Green’s participation in

the ‘stall-in’ would affect his ability to perform the job o

to work harmoniously with other employees and super

visors, the statement has been left standing in subdivi-

sion IV that Additionally, as discussed in part V below,

the district court failed to consider whether the reason

given by McDonnell for not rehiring Green were related

the requirements of the job.’’

Further, the language used in the third paragraph of

demonstrate a substantial relationship between the reason

a for denying employment and the requirements of

the job’’ and that ‘‘McDonnell has not demonstrated by

any testimony or other evidence that Green’s. participation

job for which he applied’’, has now been changed to real,

„However, an applicant’s past participation in unlawftl

— A-37 —

conduct directed at his prospective employer might indi-

eate the applicant’s lack of a responsible attitude toward

performing work for that employer”’,

The difficulty I have with all this is that the opinion

continues to adhere to the position that such unlawful

acts as Green committed against McDonnell would not

legally entitle McDonnell to refuse to hire him, even

though no racial motivation was involved, although they

would entitle and would cause it to do so in the case of

white persons. In taking, the position that such unlawful

and immediate misdeeds do not of themselves, even though

no racial motivation ig involved, provide a sufficient basis

for McDonnell to refuse to hire Green, the majority thus

are holding, not that Green is entitled to the same oppor-

tunity as a white, but that he is entitled to one of a dif-

ferent and greater degree,

As indicated in my original dissent, I am not able to

read Title VII of the Equal Employment Opportunity Act

of 1964 as providing for such an inherently different em-

ployment opportunity or such a curbing employer pre-

sription, nor do I believe that Congress, as a matter of

respect for law adherence, would presume to impose such

a requirement of business condonation upon employers in

respect to the commission of unlawful acts against them,

such as are here involved. And in the majority’s holding

that, even though no racial motivation was involved, Mc-

Donnell was not entitled to refuse to hire Green because

of his unlawful misdeeds against it, but that something

more than this would have to exist in the situation, I con-

fess that I am not able to see any practical difference, s0

far as McDonnell’s situation is concerned, between the

opinion’s original statement, that it must be shown that

the hiring of Green would result in disrupting plant oper-

ations” and its substituted statement that ‘‘an applicant’s

pest participation in unlawful conduct directed at its

—A-38—

prospective employer might indicate the applicant’s lad

of a responsible attitude toward performing work for that

employer

Any proof that would be possible in attempting to show

that Green would be an industrial handicap to the opera

tion of the plant, would necessarily involve opinion or sub.

jective testimony which, as pointed out in my original d

sent, the majority opinion declares to be of little weight

in rebutting charges of discrimination

I do not degire to prolong this discussion further, ex.

cept to reiterate, as noted in my original dissent, that

I believe the majority have engaged in a mistaken in

terpretation of the holding in Griggs v. Duke Power Co,

401 U.S. 424, 431 (1971). I adhere to my original dissent,

with this supplemental expression added.

— A-39 —

APPENDIX O

United States Court of Appeals

for the Eighth Circuit

No. 20596 September Term, 1971

Percy H. Green, +s

ppeal from the

Appellant, | United States Dis-

_ . trict Court for the

Eastern District of

McDonnell-Douglas Corp., eto., Missouri.

Appellee. |

The Court having considered renewed petition for re-

hearing en banc filed by counsel for appellee, it is now

here ordered that the petition for rehearing en banc be, and

it is hereby, denied by an evenly divided Court.

Treating the petition for rehearing en banc as also being

intended as a petition for rehearing to the original panel

in the case, the petition for rehearing is denied by such

panel, with Johnsen, Senior Circuit Judge, dissenting.

June 28, 1972

18

APPENDIX D

United States District Court

E. D. Missouri, E. D.

Sept. 25, 1970

Percy H. Green, Plaintiff,

v.

McDonnell-Dougias Corporation, Defendant.

No. 68 0 187(2).

: MEMORANDUM

-Munzgprra, District Judge.

This case was tried by the Court and this memorandm

constitutes the Court’s findings of facts and conclusions of

law. : ,

Plaintiff, Percy H. Green, filed suit against defendant,

McDonnell-Douglas Corporation, alleging that defendant

violated section 704(a) of the Civil Rights Act of 1964 [4

U.S.C. §2000e-3(a)] by refusing to accept plaintiff for

employment because of his involvement in civil rights ac

tivities and because he opposed practices made an unlaw-

ful employment practice by law. The Civil Rights Act of

1964 became effective on July 2, 1965.

Defendant contends that the refusal to reemploy plain

tiff stems not from his past civil rights activities, but from

his participation in a “stall in” in which access to the de

fendant’s plant was blocked and his participation in a pro

test at which defendant’s employees were padlocked in the

building at which they were employed.

8

Plaintiff had been employed by defendant, McDonnell-

Douglas Corporation, since 1956. Plaintiff was a qualified

mechanic, who had been rated average by his supervisors

at MeDonnell-Douglas Corporation.

In 1962, plaintiff inquired about transferring from his

union job to the non-union job of laboratory technician in

the Electronic Equipment Division. Plaintiff spoke with

Edward Sinecki, supervisor of laboratory services in the

department, who explained the work and cautioned him of

the danger of a layoff because of the sacrifice of union sen-

iority and that work in the department was expected to

decline. At that time plaintiff decided to remain at the

position he then held.

In 1963, plaintiff reapplied to work in the Electronic

Equipment Division. He talked to Mr. Sinecki and Bob

Godefroid, who reiterated the discussion of the previous

year about the possibility of layoff and the short term of

the project upon which they were working. The plaintiff's

manner of dress was discussed and he was cautioned of the

informal policy of the department as to working attire, be-

cause of the number of visitors touring the department.

Plaintiff took the job and was assigned work similar to

that performed by others in his grade and experience.

As evidence of discrimination, plaintiff contends that

upon transferring he was given no tour of the department

or training as was given to other employees. While the

widenoe is not conclusive that plaintiff received the tour,

there is enough evidence in the record to satisfy this Court

that he received the tour as a customary practice of the

eompany. Training was not given the plaintiff because he

possessed adequate training for the job. This was a stand

ard practice of the company and was not discriminatory.

Plaintiff has been active and publicly involved in civil

tights activities since the early 1960's. His testimony was

=F

that he had participated in various protests, including th

climbing of the Gateway Arch, while employed at Me

Donnell. This protest activity is relied upon by the plain

tiff to show that officials at McDonnell had knowledge ¢

his activities and were laying him off because of the»

_activities. The evidence shows that plaintiffs civil right

activities were not considered as a factor in the decision to

lay off the plaintiff.

In the spring of 1964 with the completion of the Gemini

simulator program, several people from the departmai

wers laid off; plaintiff was not included.

Later it became evident that more technicians were to be

declared “surplus”, so a semiannual ranking of employes

by means of a “totem pole” was made in accordance with

company policy. The “totem pole” was used for pay an

promotional purposes and as a job evaluator.

After determining the men to be declared ‘‘surplus”,

an effort was made through the personnel department to

relocate the men in various other departments. A volu-

tary test was given to help determine the qualifications of

the men for higher job classifications which were open

Plaintiff refused to take the test.

Meetings with company officials were requested by

plaintiff-to discuss his layoff. Plaintiff indicated at thee

meetings that he felt he was being laid off because of his

race and civil rights activities. Representatives of the de

fendant assured the plaintiff that this was not so. An

investigation of the plaintiff’s layoff was conducted by

Mr. Krone, vice president of personnel, who ascertained

that the layoff was due to a reduction in work force ani

not because of racial discrimination. Plaintiff also er

pressed the idea that because he was black and because

of his prominence in civil rights activities, he should n

ceive preferential treatment in the layoff. The defendant

continued to search for a job for plaintiff in the company.

—A43—

This. task was made more difficult in that the evidence

showed that plaintiff insisted that any job found for him

must involve no reduction in job status or be the equiva-

lent of his then present position. With plaintiff’s exacting

standards and the work force reduction, the defendant

failed in finding a job for the plaintiff. On August 28,

1964, plaintiff was laid off with eight other technicians.

After being laid off, plaintiff initiated protests by writ-

ing letters, filing charges, picketing, and various other

means to protest his layoff. These various protest activi-

ties culminated in a demonstration in October of 1964.

Plaintiff and other members of the Congress on Racial

Equality organization stalled their cars on the main roads

leading to defendant’s plant at the time of a shift change.

The second demonstration led by plaintiff was at the Rob-

erts Building and resulted in the employees of the defend-

ant being locked in the building at quitting time.

The stall in’’, as described in defendant’s Exhibit A,

was, in summary: five teams, each consisting of four cars

would ‘‘tie up’? five main access roads into McDonnell

at the time of the morning rush hour. The drivers of the

cats were instructed to line up next to each other com-

pletely blocking the intersections or roads. The drivers

were also instructed to stop their cars, turn off the engines,

pall the emergency brake, raise all windows, lock the

doors, and remain in their cars until the police arrived.

The plan was to have the cars remain in position for one

“Acting under the “stall in” plan, plaintiff drove his

tar onto Brown Road, a McDonnell access road, at ap.

proximately 7:00 a. m., at the start of the morning rush

nour. Plaintiff was aware of the traffic problems that

‘Would result. He stopped his car with the intent to block

ae The police arrived shortly and requested plaintiff to

move his car. He refused to move his car voluntarily.

8

Plaintiff’s car was towed away by the police, and he wy

arrested for obstructing traffic. Plaintiff pleaded guily

to the charge of obetructing traffic and was fined.

The lock in“ arose out of a demonstration on July}

1965, in which plaintiff, as chairman of ACTION, a ain

rights organization, was in charge of a picket line demos

stration against McDonnell. On the way to this demonstn

tion, a member of ACTION told plaintiff that he vn

planning to chain the front door of the Roberte Building

which housed employees of McDonnell. Plaintiff did un

instruct him to refrain. During the demonstration, a chan

and padlock were placed on the front door of the Robert

Building, and as a result, the defendant’s employees wer

locked in the building. Plaintiff testified that he approve

of chaining the door.

On July 26, 1965, plaintiff applied for work at McD

nell. Although plaintiff was qualified for the job, he vu

not hired. The defendant based its rejection of the plaintif

on his participation in the stall in“ and the lock in“

demonstrations.

The plaintiff raises two causes of action in his pot

trial briefs. First, that the defendant discriminated agains

him in the layoff under 42 U.S.C. 41981 because of his

race and civil rights activities. Second, that defendant r

fused to rehire the plaintiff because of his race, particips

tion in civil rights activities and opposing practices mad

unlawful under the Civil Rights Act of 1964, thus, violat

ing 42 U.S.C. §§ 1981 and 2000e-3(a).

The Court finds that the issue of discrimination in th

layoff is being raised for the first time in the post-trid

briefs. The plaintiff’s layoff claim is not pled in bi

neee eee eee

it.

3

Flaintiff's layoff claim is based on his employment con-

tract with the defendant. Although 42 U.S.C. § 1981 con-

tains no étatute of limitations, the applicable state statute

controls, Glasseoe v. Howell, 431 F. 2d 863 (8th Cir. Aug.

12, 1970); Waters v. Wisconsin Steel Works of Interna-

tional Harvester Co., 427 F.2d 476 (7th Cir. 1970); Butler

v, Sinn, 423 F.2d 1116 (3rd Cir. 1970); Lambert v. Conrad,

308 F.2d 571 (9th Cir. 1962). The Missouri statute of

limitations for employment contracts is five years, See,

V.AMS, 516.120. Plaintiff was laid off on August 28, 1964.

He did not introduce or offer at trial any evidence to

substantiate this claim. The five-year period has expired.

The Oourt finds that the claim is barred by the statute of

limitati

The Court will next consider the plaintiff’s claim with

regard to the defendant’s refusal to rehire the plaintiff.

Before filing suit, plaintiff complied with the statutory

requirements of 42 U.S.C. 5 2000e-5 of complaining first to

the Equal Employment Opportunity Commission. Plaintiff

filed a charge with the EEOC that he was discriminated

against because of his race and because of his civil rights

mtivities. The EEOC found that there was probable cause

to believe that plaintiff was discriminated against in not

being rehired only because of his civil rights activities.

Tue plaintiff contends that defendant violated 42 U.S.C.

§2000e-8(a) because of his opposition to employment prac-

tices made unlawful by Title VII of the Civil Rights Act

of 1964. Plaintiff also contends in his post-trial brief that

defendant’s refusal to rehire him was based on race and

his participation in civil rights activities, which is a viola-

‘fon of 42 U.S. C. 6 1981.

~The Court feels that the Court’s discussion of the case

‘wader 42 U.S.C. § 20000-3(a) will effectively dispose of any

claim arising under section 1981. Section 42 U.S.C. § 2000e-

(a) provides;

iii Mais

It shall be an unlawful employment practice fo

an employer to discriminate against any of his en

ployees or applicants for employment, because be

has opposed any practice made an unlawful employ.

ment practice by this subchapter, or because he hy

made a charge, testified, assisted, or participated in

any manner in an investigation, proceeding, or hearing

under this subchapter.’’

The Court approaches this issue hearing in mind that th

purpose of Title VII is to eliminate the inconvenience, m

fairness, and humiliation of discrimination in employment

United States v. Medical Society of South Carolina, 298 J.

Supp. 145, 151 (D. S. C. 1969).

In the matter before the Court, the controlling ani

ultimate fact questions are: (1) whether the plaintiffs

misconduct is sufficient to justify defendant’s refusal t

rehire, and (2) whether the ‘‘stall in“ and the / lock in”

‘are the real reasons for defendant’s refusal to rehire th

plaintiff. The Court finds that they are.

Violations of the Civil Rights Act, like the Nation

Labor Relations Act, depends on the employer’s intent a

the time of the decision. N. L. R. B. v. Ace Comb Co., 3#

F.2d 841, 846 (8th Cir. 1965). It must be remembered that

so far as the Civil Rights Act goes, the employer may dis

charge or refuse to reemploy for any reason, except discrim

ination or because of practices made unlawful under Title

VII. The testimony and evidence before the Court fails to

establish by its greater weight, or preponderance, that de

fendant’s refusal to rehire plaintiff resulted from racial

prejudice or plaintiff’s legitimate civil rights activities

It seems clear from the record that defendant’s reasons for

refusing to rehire the plaintiff were motivated solely and

simply by the plaintiff’s participation in the*‘‘stall in”

and the lock in' demonstrations. The burden of proviy

— A-47 —

other reasons was on the plaintiff. The plaintiff has not

sustained this burden.

“The plaintiff contends that his protest activities are pro-

tected by the First Amendment right to freedom of speech.

The blocking of public streets and the locking in of de-

fendant’s employees does not come within the protection

of the First Amendment. Communication of ideas by

picketing and marching on streets is not afforded the

game kind of protection under the First Amendment as is

pure speech. Cox v. Louisiana, 379 U.S. 536, 555, 85 S.Ct.

453, 13 L.Ed.2d 471 (1965).

The plaintiff could, of course, protest and try to per-

suade the defendant to rehire him, however, the right to

engage in protests does not encompass unlawful acts.

N. L. R B. v. Fansteel Metallurgical Corp., 306 U.S. 240,

59 8. Ot. 490, 83 L. Ed. 627 (1939). Protest must be kept

within reasonable limits if it is to be protected. Impeding

the flow of traffic into or from an employer’s plant exceeds

such reasonable limits. Title VII of the Civil Rights Act of

1964 does not protect such activity as employed by the

‘plaintiff in the stall in'“ and lock in’’ demonstrations.

The evidence shows that plaintiff, who participated in

many civil rights activities from 1960 through the time

he was laid off in 1964, received no criticism from his em-

ployer because of these activities.

The plaintiff’s actions are analogous to picketing in

labor disputes. In labor law, picketing, as a general rule, is

wlawfal where either its object or its method is unlawful.

The blocking of access to or exit from employer’s place of

business is not protected as lawful protest. N. L. R. B. v.

Perfect Circle Co., 162 F.2d 566 (7th Cir. 1947). The Court

finds that conduct such as the plaintiff’s, which creates

situations fraught with danger to other employees or to

the general public, is not protected by Title VII. This type

of conduct would justify a refusal to reinstate a striking

— A-48 —

employee in labor law. See W. J. Rusooe Oo. v. N. L. R B.

406 F. 2d 725 (6th Cir. 1969); Oneita Knitting Mills, In

v. N. L. R. B., 375 F.2d 385 (4th Cir. 1967); Victor Prod

ucts Corp. v. N. L. R. B., 93 U.S. App. DO. 56, 208 F. 2d 8

(1953); N. L. R. B. v. Longview Furniture Co., 206 Fy

274 (4th Cir. 1953); W. T. Rawleigh Oo. v. N. L. R B.

190 F. 2d 832 (7th Cir. 1951).

The. plaintiff argues that his offenses are of a minx

nature and that no property damage occurred. The fad

that no personal injury or property damage occurred wu

due solely to the fact that law enforcement officials had o

tained notice in advance of plaintiff’s demonstration u

were at the scene to remove plaintiff’s car from the hig

way. In the lock in’’, if an emergency had occurred, th

blocking of access to the outside of the building woul

have been disastrous. The evidence shows that plaintif

participated in both demonstrations knowing full well th

consequences of his conduct. The plaintiff argues that h.

did not chain the doors in the lock in'. Nevertheles

those who actively cooperate with offenders who excel

the permissible scope of protest are equally to blame ut

forfeit the right to be rehired by the defendant. N. L. RI

v. Fansteel Metallurgical Corp., 306 U.S. 240, 261, 59 80

490, 83 L.Ed. 627 (1939); W. J. Ruscoe Co. v. N. L. R. B.

supra. To order the rehiring of plaintiff, who has bea

guilty of such serious act of misconduct, cannot reason

ably be said proper action to effectuate the policies d

Title VII. To hold that plaintiff is entitled to be rehired is

to put a premium on misconduct of this type and to a

courage like conduct on the part of others. The purpose d

the Act is to secure effective redress of employees’ rights

to seoure for them the right to exercise their lawful ein

rights without discrimination because of this exercise, 10

to license them to commit unlawful or tortieds acts or u

protect them from the consequences of unlawful condu

against their employers.

si AAO ace

Tho Court finds and concludes on the record before it:

(a) Plaintiff has not shown that defendant was

motivated by racial prejudice or because of plaintiff’s

legitimate civil rights activities.

(b) Plaintiff’s layoff claim under 42 U.. O. 6 1981 is

barred by the statute of limitations.

(le) The Civil Rights Act does not protect activity

which blocks entrance into or from an employer’s

plant or office.

(a Defendant's refusal to reemploy plaintiff was

based on plaintiff’s misconduct, which justified the re-

fusal to rehire.

A judgment will be entered dismissing plaintiff’s com-

plaint with prejudice.