### The Honorable Stephen N. Limbaugh, United States Distric t 1 

### Judge for the Eastern District of Missouri. ____________ No. 95-3549

____________
Melvin Hicks, * * Appellant, * * v. * * Appeal from the United States St. Mary's Honor Center; * District Court for the Department of Corrections and * Eastern District of Missouri Human Resources, Division of * Adult Institutions; Steve * Long, * * Appellees. *

____________ Submitted: April 11, 1996 Filed: July 22, 1996

____________ Before McMILLIAN, JOHN R. GIBSON and FAGG, Circuit Judges.

____________ McMILLIAN, Circuit Judge.

Melvin Hicks appeals from a final judgment entered in the Unite d States District Court for the Eastern District of Missouri in favor of his 1 former employer, St. Mary's Honor Center (St. Mary's), and th e superi ntendent of St. Mary's, Steve Long (together defendants), on hi s claims arising under Title VII and the equal protection clause. Hicks v. St. Mary's Honor Ctr. , No. 88-109C(5) (E.D. Mo. Aug. 31, 1995) ( Hicks V ). The judgment presently on appeal followed a remand from this court, id. , 2 F.3d 265, 267 (8th

### The unamended version of the panel's opinion is printed i n 2 

### the bound Volume 2 of the Federal Reporter, 3d Series. The final amended version of the panel opinion is available on Westlaw

. Hicks v. St. Mary's Honor Ctr. , 2 F.3d 265 (8th Cir. 1993) (amended b y substitution on Feb. 15, 1994) ( Hicks IV ). The district court reaffirmed its findings of fact from its 3 

### 199 1 decision and declared those findings applicable to both th e is sue of whether defendants' personal animosity toward plaintif f was racially motivated and plaintiff's retaliation claim. H icks v. St

. Mary's Honor Ctr. , slip op. at 7, No. 88-109C(5) (E.D. Mo

. Aug. 31, 1995) ( Hicks V ). In its 1991 decision, the distric t court fo und that defendants' proffered reasons for demoting an d discharging plaintiff were pretextual and that he was treate d unfairly, but nevertheless found that defendants' "unfai r treatment" of plaintiff was not motivated by race. Id. , 75 6 F. Supp. 1244, 1252 (E.D. Mo. 1991) ( Hicks I ), rev'd and remanded , 970 F.2d 487 (8th Cir. 1992) ( Hicks II ), rev'd and remanded , 50 9 U.S. 502 (1993) ( Hicks III ).
-2- Cir. 1993) ( Hicks IV ) (amended by substitution on Feb. 15, 1994), which, 2 in turn, followed the Supreme Court's decision i n St. Mary's Honor Ctr. v. Hic ks , 509 U.S. 502 (1993) ( Hicks III ), reversing our earlier decision , Hicks v. St. Mary's Honor Ctr. , 970 F.2d 487 (8th Cir. 1992) ( Hicks II ), which h ad reversed the district court's original judgment in favor o f defendants, id. , 756 F. Supp. 1244 (E.D. Mo. 1991) ( Hicks I ). Fo r
rev ersal, plaintiff now argues that the district court clearly erred i n find ing that his demotion and discharge were not motivated by racia l discrimination or a d esire to retaliate against him for filing charges of employment discrimination with the Equal Employm ent Opportunity Commission (EEOC). Applying the analytical principles set forth by the S upreme Court

3 in Hicks III , we now affirm.

I.

The facts of this ca se are stated in detail in the district court's 1991 decision, Hicks I , 756 F. Supp. at 1246-49, 1250-52, and supplemented in Hicks V , slip op. at 7-9. Plaintiff, an African American male, wa s hired in August 1978 as a correctional officer at St. Mary's, a minimu m security correctional facility

### -3-

(also referred to as a "halfway house") operated by the Missouri Departmen t of C orrections and Human Resources. In February 1980, plaintiff wa s promoted to shift commander, a supervisory posit ion. In January 1984, St. Mary's underwent extensive supervisory changes and, among them, Long becam e the superintendent of St. Mary's and John Powell became the chief o f custody (and plaintif f's immediate supervisor). Hicks I , 756 F. Supp. at 1246. Prior to these personnel changes, plaintiff enjoyed a satisfactory emp loyment record and had not been disciplined for any rule violations

. Id. a t 1249. Immediately afterward, however, he became the subject o f repeated, and increasingly severe, disciplinary sanctions. Id. at 1246-48 ; Hicks III , 509 U.S. at 505.

Plaintiff was suspen ded for five days for rule violations committed on March 3, 1984, by his subordinates. Hicks I , 756 F. Supp. at 1246-47. Powell testified at trial that "it was his policy to discipline only the shift commander for violations which occurred on the commander's shift." Id. at 12 50. However, the district court found that "plaintif f dem onstrated such a policy only applied to violations which occurred o n plaintiff's shift." Id. For example, some of the very same infractions for which plaintiff was suspended occurred under the watch of shif t commander Sharon Hefele (who is white) and yet she was not disciplined

. Id. at 1246 & n.3, 1250-51.

Late r that month, a fight broke out between two inmates durin g plaintiff's shift. On March 29, 1984, plaintiff was given a letter o f reprimand for alleged ly failing to investigate the fight adequately. Id. at 1247. The district court found that, in comparison to this and other violations for which plaintiff was disciplined, "much more seriou s violat ions, when committed by plaintiff's co-workers, were eithe r disregarded or treated much more leniently." Id. at 1251. For example,

on one occasion, transportation officer Ed Ratliff (who is white) permitte d an unescorted inmate access to Long's locked office. Id. at 1247 n.8,

### -4-

1248, 125 1. The district court described this rule violation as " a strikin g and obvious breach of security," noting that "the inmate ha d

access to Long's private files" and "could have acquired a weapon to use agains t a correctional officer or another inmate." Id. at 1251. I n respon se, however, "Powell not only refused to discipline Ratliff bu t praised him for 'diffusing a volatile situation.'" Id.

On March 19, 1984, two correctional officers under plaintiff' s supervision used a St . Mary's vehicle without entering the vehicle use in

a log book. Id. at 1247. Following that incident, Powell recommended tha t plaintiff be disciplined -- not for authorizing the use of the vehicle, bu t rather for failing to ensure that the use was lo gged. Id. A disciplinary review board comprised of two African Americans and two Caucasians voted on April 6, 1984, in support of plaintiff's demo tion. Id. Powell was one of the fo ur members of the disciplinary review board which voted on hi s recommendation that p laintiff be demoted; as a member of the disciplinary review board, Powell then voted to terminate rather than merely demot e plaintiff. Id. at 1247 n.7.

On April 11, 1984, plaintiff filed a complaint with the EEOC. Hicks V , slip op. at 8. The complaint alleged racial discrimination in hi s emp loyment conditions. Joint Appendix, Vol. I, at 9 (Plaintiff's Firs t Amended Complaint, ¶ 10). At that point, plaint iff had received the fiveday suspension and the letter of reprimand, but had not been notified of his demotion.

On April 19, 1984, p laintiff was notified in a meeting with Powell, Long, and the assistant superintendent, Vincent Banks, that he was being demoted from shift commander to correctional officer. Hicks I , 75 6 F. Supp. at 1247. Upon review of plaintiff's de motion, the district court fou nd that this was an example of how plaintiff was treated much mor e harshly than co-worke rs whose rule violations were equally severe or more

severe. Id. at 1251. For

### -5-

example, acting shift commander Michael Doss (who is white) allowed a n inmate to escape during his shift. Id. at 1251, 1248 & n.12. Dos s adm itted that his negligence permitted the escape. Id. at 1251. Th e district court noted "[a]lthough the escape of an inmate is clearly much more serious than the failure to log the authori zed use of a vehicle, Doss was only given a letter of reprimand for the violation." Id.

On May 7, 1984, plaintiff filed another complaint with the EEOC

. Hicks V , slip op. at 8. He alleged in his second EEOC complaint that he had been demoted due to racial discrimination and in retaliation for havin g fi led the first EEOC complaint. Joint Appendix, Vol. I, at 9-1 0 (Plaintiff's First Amended Complaint, ¶ 15).

On June 7, 1984, plaintiff was discharged osten sibly for threatening Powell during an argu ment, which occurred after plaintiff was informed of his de motion. According to the district court's findings, plaintif f requested the day off upon being told of the demotion. Long granted the request and, as plaintiff attempted to leave, Powell followed him an d ordered him to open his locker so that Powell could retrieve plaintiff's shift commander's manual. Plaintiff refused to comply, and the tw o exchanged heated word s. Plaintiff indicated that he would "step outside" with Powell, to which Powell warned that his words could be perceived as

a t hreat. Plaintiff then left. Hicks I , 756 F. Supp. at 1247. Powel l claimed that plaintiff had threatened him and sought disciplinary action against plaintiff. On May 9, 1984, a four-member disciplinary board , including at least two African Americans, voted to suspend plaintiff for three days. Id. However, contrary to the disciplinary review board' s decision, Long recomm ended to his superiors that plaintiff be terminated. Id. at 1247-48. At trial, Long testified that his recommendation wa s based upon "the severity and accumulation of pla intiff's violations." Id. at 1248. With respect to plaintiff's alleged

### -6-

thr eats to Powell, the district court found "the evidence suggests tha t Powe ll manufactured the confrontation between plaintiff and himself i n order to t erminate plaintiff." Id. at 1251. As to the severity an d accumulation of plaintiff's violations, upon which Long allegedly relied in recommending plaintiff's termination, the dis trict court concluded that those reasons were pretextual. Id.

Plaintiff brought this employment discrimination action in federal district court, asserting Title VII claims again st St. Mary's and a § 1983 equal protection claim against Long. The district court held a bench tria l at whi ch plaintiff presented a disparate treatment case. Addressin g plaintiff's racial discrimination claim only, th e district court found for defend ants. In considering the evidence according to the analytica l fra mework established in McDonnell Douglas Corp. v. Green , 411 U.S. 79 2 (1973), the district court held that "[p]laintiff proved a prima facie cas e of race discrimination" and that "defendant has succeeded in setting forth

a legitimate, non-discriminatory reason for the adverse employment action. " Hicks I , 756 F. Supp. at 1250. At that time, defendants had proffered "tw o legitimate, non-discriminatory reasons for their actions: the severity and the accumulation of rules violations committed by [plaintiff]." Hicks III , 509 U.S. at 507 (citing Hicks I , 576 F. Supp. at 1250). Upon consideratio n of the evidence at trial, the district court found that defendants ' proffered reasons were not the real reasons for their adverse treatment of plaintiff because plaintiff was the only supervisor disciplined for rule viola tions committed by subordinates; similar and even more seriou s violations committed by plaintiff's co-workers w ere disregarded or treated

more l eniently; and Powell had manufactured the final argument wit h plaintiff in order to provoke plaintiff into threatening him. Id. at 508 (citin g Hicks I , 576 F. Supp. at 1250-51). Thus, the district cour t concluded "[p]laintif f has carried his burden in proving that the reasons given for his demotion and termination were

### According to the district court's findings, the firs t 4 

### disciplinary review board, which approved Powell's recommendation to demote plaintiff, included Powell himself as a member and, as a member of the review board, Powell voted for plaintiff' s termination. Hicks I , 756 F. Supp. at 1247 & n.7. The secon d disciplinary review board, whi ch voted to have plaintiff suspended for th ree days, was disregarded by Long who instead recommende d plaintiff's discharge. Id. at 1247-48.

In the period from December 1983 to December 1984 , 5 

### approximately twelve African American employees were terminated

. Only one Caucasian employee was terminated. Long hire d approximately the same number of African Americans as were fired. Id. at 1249. Consequently, the total number of African America n employ ees remained relatively constant, although the number o f Africa n American supervisors declined. See infra note 8 an d accompanying text.
-7- pretextual." Hicks I , 576 F. Supp. at 1251. Nevertheless, the district court held that plaintiff had failed to prove that his race motivate d defendants' decisions to demote and to discharge him. The district court relied on evidence that: each of the two four-member disciplinary review bo ards which recommended disciplining plaintiff included two Africa n Am ericans ; plaintiff's African American subordinates (i.e., non

4 supervisors), who actually committed the rule violations, were no t disciplined; and the total number of African American employees at St

. Mary's remained relatively constant despite the numerous personnel changes that occ urred. Hicks III , 509 U.S. at 508 n.2 (citing Hicks I , 75 6 5 F. Supp. at 1244, 1252). The district court stated "although plaintiff ha s proven the existence of a crusade to terminate h im, he has not proven that the crusade was racia lly rather than personally motivated." Hicks I , 756 F. Supp. at 1252. Thus, the district court entered judgment fo r defendants. Id. at 1 253. The district court did not address plaintiff's additi onal claim that defendants had demoted and terminated him i n retaliation for filing two charges of unlawful employment practices with the EEOC.

On appeal to this court, we reversed because the district court' s analysis was inconsistent with cases previously decided in

### -8-

our circuit. Hicks II , 970 F.2d at 493 (citing cases). We held that once plaintiff had proven all of defendants' proffere d reasons for the demotion and discharge to be pretextual, plaintiff was entitled to judgment as a matter of law. Id. at 492. Having reversed the district court's judgment

on the merits of plaintiff's racial discrimination claim, we declined to reach plaintiff's separate argument that the district court had erred in failing to address his retaliation claim. Id. at 493 n.9.

Defend ants petitioned the Supreme Court for a writ of certiorari

. The Supreme Court gra nted defendants' petition to address the legal issue presented by this case, upon which the circuits were fairly evenly divided

. See Hicks III , 509 U.S. at 512-13 (citing cases). The Supreme Court, in

a 5-4 decision, reversed our decision. Justice Scalia, writing for th e majority, held:

The factfinder's disbelief of the reasons put forward by the def endant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with th e el ements of the prima facie case, suffice to sho w inte ntional discrimination. Thus, rejection of th e defen dant's proffered reasons will permit the trier o f fact to infe r the ultimate fact of discrimination, and [] the Court of Appeals was correct when it noted that , upon such rejection, "[n]o additional proof o f discr imination is required ," 970 F.2d at 493 (emphasi s added). But the Court of Appeals' holding tha t rejection of the defendant's proffered reasons compel s judg ment for the plaintiff disregards the fundamenta l princip le of Rule 301 that a presumption does not shift the burden of proof, and ignores o ur repeated admonition that the Title VII plaintiff at all times bears th e "ultimate burden of persuasion."

Id. at 511 (footnote and citations omitted).

On remand from the Supreme Court, this court remanded the case to th e district court in order to provide the parties and the district court a full and fair opportunity to apply the Supreme

### -9-

Court's clarification

. Hicks IV , 2 F.3d at 267. Initially, the Hicks IV opinion stated the following.

In part icular, the district court may decide to hold an eviden tiary hearing in order to permit the parties t o present additional evidence on the now-critical question of personal animosity. For example, Hicks may be abl e to demonstrate that defendants were not motivated b y per sonal animosity or that defendants' persona l animosity was itself racially motivated.

Id. (as published in bound volume). Six months later, however, this court ent ered an order denying a petition for rehearing by the panel an d substituting the following language for the language quoted above.

The iss ue of retaliatory discharge as a basis for Title VII li ability was not reached in the district court' s fi rst opinion. [ Hicks II , 970 F.2d at 493 n.9]. Th e district court may decide to hold an evidentiary hearing in order to permit the parties to present additiona l evidence.

Hicks v. St. Mary's Honor Ctr. , No. 91-1571 (8th Cir. Feb. 15, 1994) (orde r denying petition for rehearing by the panel and substituting a new page 4 for page 4 of the opi nion as originally filed). Thereafter, a suggestion for rehearing en banc was denied.

On remand, the district court correctly opined that the language tha t

acc ompanied the February 15, 1994, order superseded the language in th e original Hicks IV

opi nion. Nevertheless, noting the confusion created by the page substitution , the district court decided to address both (1) the is sue of whether defendants' personal animosity toward plaintiff wa s motivated by race and (2) plaintiff's retaliation claim. See Hicks V , sli p op. at 3.

The parties agreed, with the district court's a pproval, that, rather than hold a rehearing, plaintiff would be permitted to take

### -10-

new depositions of Powell and Long. Id. at 4. The transcripts of Powell' s and Lo ng's depositions, along with other forms of documentary evidence , were then submitted to the district court for its consideration. Id. Upo n review of the evidence related to the personal animosity issue, th e district court concluded "[e]xtensive findings o f fact were initially made by th is Court and there is no new reason to change those findings. Th e Court determines that those findings are applicable . . . to the alleged racially motivated personal animosity directed at plaintiff by defendants. " Id. at 7. In other words, the district court reaffirmed its earlie r findin g that defendants' unfair treatment of plaintiff was motivated b y personal animosity; the district court, as factfinder, further concluded that this personal animosity was not motivated by race. The district cour t stated "[t]here is no suspicion of mendacity here, and the ultimate fact of intentional discrimination, therefore, should not be inferred." Id. at 9.

On plaintiff's separ ate retaliation claim, the district court noted that its initial findings were applicable to tha t claim as well, id. at 7, and concluded that pl aintiff's discharge was not motivated by a desire to retaliate against pla intiff for filing a complaint with the EEOC. Id. at 8. In an effort to be more specific, the district court explained:

Pl aintiff filed his initial complaint with th e Equal Employment Opportunity Commission on April 11 , 1984 an d a second complaint was filed May 7, 1984. The dec ision to discharge plaintiff was made May 21, 1984 , four days after the Department of Corrections receive d not ice of the second complaint on May 17, 1984. Th e decision-maker was the Director of the Division of Adult Instit utions, Donald Wyrick. There is no evidence t o indicate that Wyrick was aware of the filing of th e second complaint. In any event, the Court as the trier of fact determines that there was a lack of racia l mot ivation in the decision to demote and discharge th e plai ntiff as retaliation for his filing of complaint s with the Equal Employment Opportunity Commission. Th e same re asons are applicable as were stated in thi s Court's initial decision and finding.

### Long testified in his deposition as follows. 6


### Q. Did you have any personal animosity towards Mr

.

Hicks? A. No, sir. Q. Was there any reason other than his allege d vi olation of rules that caused you to make a recommendation for his termination? A. No, sir. Joint Appendix, Vol. II at 121-22 (deposition Steve Long). Powell testified in his deposition as follows.
Q. Ok ay. Just directing your attention to then Mr

. Hicks, did you have any personal problems with him of any nature?

A. Personal, no.
-11- Id. at 8-9.

The district court e ntered judgment for defendants on the merits of plaintiffs' claims, id. at 9, and this appeal followed.

II.

Plaint iff argues in the present appeal that the district cour t clearly erred in finding that defendants treated him unfairly because of
pers onal animosity unrelated to his race . Plaintiff argues that th e overwhelming evidence of disparate treatment between himself, an African America n, and similarly situated Caucasians who also held supervisor y positions at St. Mary's, leads inescapably to th e conclusion that race was an underlying motivation in defendants' "crusade to terminate him." Hicks I , 756 F. Supp. at 12 52. Moreover, he emphasizes, the only reasons given by defendants at tria l for demoting and discharging him were the severity and acc umulation of his alleged rule violations -- reasons which wer e conclusively proven to be pretextual. Id. at 1251. Finally, plaintif f notes that, when Long and Powell were deposed following the remand fro m this court, each testified that he did not feel any personal animosit y toward plaintiff

. In fact, 6

### . . . . Q. Ok ay. Now, what I'm trying to find out, Mr

. Powel l, the court has made certain findings tha t you an d Mr. Long put him on an express track fo r di smissal. And I'm trying to find out if ther e was any reason other than your fe eling that he had violated some rules for your actions.

A. No, sir. I just reported the activities.
Q. You just reported on his activities?

A. Yes, sir.
Q. So you had no personal animosity?

A. No, sir. None whatsoever.

Joint Appendix, Vol. II at 146, 147 (deposition of John Powell).
-12- notwithstanding the district court's finding of pretext, Long continued to maintain that the only reason why he recommended plaintiff's termination was that plaintiff had committed rule violations. In response, defendants' counsel now abandons the rule violation s explan ation (even though Long himself does not) and astutely embrace s "personal animosity" as the justification for defendants' actions. Brief for Appellees at 13, 17-19. Defendants now argue that Powell's personal animosity toward plaintiff is "the lawful reason for [plaintiff's ] discharge ." Id. at 19. In addition, even though Powell's own persona l animosi ty now purportedly constitutes the real reason for plaintiff' s demotion and discharge, defendants continue to rely on statistical evidenc e
con cerning, for example, the constancy in the overall number of Africa n Americans employed at St. Mary's (i.e., the total number of supervisors an d

non- supervisors) and the fact that the four-member disciplinary revie w boards which recommended disciplining plaintiff

### But see supra notes 4, 5 and infra note 8. 7 

### Consequently, the ratio of African American to Caucasia n 8 

### supervisors changed from 5:1 in 1983 to 2:4 after January 19 84 (but could have been 3:3 in 1984). Brief for Appellees at 12, 14, 20, 29; Jo int Appendix, Vol. I, at 70. Of the two African American s ret ained after January 1984, one was plaintiff. Joint Appendix , Vol. I, at 70.
-13- inclu ded at least two African Americans. Id. at 14, 19-20. Defendant s 7 also highlight the fact that the number of African Americans and Caucasian s in sup ervisory positions would have been equal (3 and 3) but for th e decision by an African American male to turn down the chief of custod y position (which was later offered to Powell). Id. 8

Upon review for clear error of the district court's finding tha t racial discrimination did not motivate plaintiff 's demotion and discharge, we affirm in light of the Supreme Court's mandate in Hicks III . 509 U.S. at 514-15 ("We have n o authority to impose liability upon an employer for all eged discriminatory employment practices unless an appropriat e factfinder determines, according to proper procedures, that the employer has unlawfully discrimi-nated

. . . . [N]othing in law would permit us to substitute for the required finding that the employer's action was th e product of unlawful discrimination, the much different (and much lesser) findin g that the employer's explanation of its action was no t believable.").

III.

Plaintiff separately argues that the district c ourt clearly erred in concluding that "the decision to discharge plaintiff was not motivated by

a desire to retaliate against plaintiff for instituting a complaint with the Equal Employment Opportunity Commission." Hicks V , slip op. at 8 (citing Greenwood v. Ross , 778 F.2d 448, 456 (8th Cir. 1985) (reversin g district court's dismissal

### -14-

of pla intiff's Title VII retaliatory discharge claim and holding tha t plaint iff established a prima facie case by showing that defendants , knowing that plaintiff had engaged in protected activity, refused to renew his employment contra ct)). In response, defendants argue that the lawful nond iscriminatory reason defendants now rely upon to rebut plaintiff' s racia l discrimination claim (i.e., Powell's personal animosity) equall y applies to plaintiff' s retaliation claim and, together with evidence that is "inc onsistent" with racial discrimination, "compels" a finding fo r defendants on plaintiff's retaliation claim. Brief for Appellees at 24-25

.

We begin by noting that, in discussing plaintiff's retaliation claim , the district court stated the following.

Pl aintiff filed his initial complaint with th e Equal Employment Opportunity Commission on April 11 , 1984 an d a second complaint was filed May 7, 1984. The dec ision to discharge plaintiff was made May 21, 1984 , four days after the Department of Corrections receive d not ice of the second complaint on May 17, 1984. Th e decision-maker was the Director of the Division of Adult Instit utions, Donald Wyrick. There is no evidence t o indicate that Wyrick was aware of the filing of th e second complaint. In any event, the Court as the trier of fact determines that there was a lack of racia l mot ivation in the decision to demote and discharge th e plai ntiff as retaliation for his filing of complaint s with the Equal Employment Opportunity Commission. Th e same re asons are applicable as were stated in thi s Court's initial decision and finding.

Slip op. at 9 (emphasis added). The sentence underlined above clearl y suggest s that defendants made a "decision to demote and discharge th e plaintiff as retaliation for his filing of complaints with the [EEOC]," bu t that these adverse actions were not unlawful because they were not raciall y motiva ted. The sentence therefore indicates that the district cour t assumed plaintiff was required to prove racial motivation in order t o prevail on his retaliation claim. Racial motiva tion was not an element of plaintiff's burden

### Likewise, contrary to defendants' argument on appeal, th e 9 

### statistical evidence relied upon by defendants as inconsiste nt with a finding of racial discrimination is not relevant to plaintiff's retaliation claim. Brief for Appellees at 25 ("Other evidence is inconsistent with intentional, racial discrimination. Tha t evidence of a lawful, nonracial motive for his demotion an d discharge equally proves the absence of a retaliatory motive.").
-15- of proof. See 42 U.S.C. § 2000e-3(a) ("It shall be an unlawfu l employment

9
prac tice for an employer to discriminate against any of his [or her ] employees

. . . because he [or she] has made a charge . . . under thi s subc hapter."); Womack v. Munson , 619 F.2d 1292, 1296 (8th Cir. 1980 ) ( Womack ) (setting forth legal standards applicable to Title VII retaliator y discharge claim), cert. denied , 450 U.S. 979 (19 81); cf. Wentz v. Maryland Casualty Co. , 869 F.2 d 1153, 1154-55 (8th Cir. 1989) ( Wentz ) (analogizing Titl e VII and ADEA retaliation claims and citing Womack as providin g appli cable analytical framework) (reversing summary judgment granted t o defendant on plaintiff's ADEA retaliatory discharge claim where district court relied on the failure of plaintiff's age discrimination claim t o decide plaintiff's retaliation claim).

In Wentz , the district court had stated the following reasons fo r holding, on summary judgment, that the plaintiff had failed as a matter of law to establish his prima facie case of unlawful retaliation under th e ADEA.

The [c]ourt finds that Wentz did n ot engage in protected opposit ion to age discrimination in light of its ruling above that Maryland did not discriminate against Went z on the basis of age. While Wentz'[] complaint may have been a legitimate reaction to allegedly rude conduct by [a s upervisor], it could not constitute justifiabl e opposition to age discrimination, as Wentz wa s criticized and ultimately terminat ed because of his poor work performance, and not because of his age.

869 F.2d at 1154 (quoting the district court's opinion below, No. 4-87-195 , slip op. at 8 (D. Minn. Dec. 3, 1987)). On appeal,

### -16-

this court reversed and remanded the case to the district court, explainin g that, in order to establish statutorily protected activity, a plaintif f need n ot show that the conduct he or she opposed was in fac t discriminatory. Id. at 1155. Instead, the plaintiff "must demonstrate a good faith, reasonable belief that the underlying challenged actio n violated the law." Id. In the present case, there can b e little doubt that plaintiff demonstrated a good faith reasonable belie f that defendants' actions violated the law in lig ht of the district court's extensive findings wh ich illustrated that "[a]lthough plaintiff committed several violations of institutional rules, plain tiff was treated much more har shly than his co-workers who committed equally severe or more sever e violations." Hicks I , 756 F. Supp. at 1251. However, by contrast to the plaintiff in Wentz , plaintiff in the present case has failed to raise on appeal the district court's apparent error, and we hold that it does not rise to the level of plain error.

As to w hether the district court clearly erred in deciding tha t defendants were not motivated by a desire to retaliate against plaintiff for engaging in protected activity, which plaintiff did raise on appeal, we consider the district court's additional find ings regarding some of the sig nificant dates in the present case. The district court specificall y noted the dates on which plaintiff filed with the EEOC (April 11, 1984, an d May 7 , 1984), the date on which the Department of Corrections receive d notice of the second complaint (May 17, 1984), and the date the decision

was made to discharge plaintiff (May 21, 1984). Hicks V , slip op. at 8. The district court further found "[t]he decision -maker was the Director of the Division of Adult Institutions, Donald Wyrick. There is no evidence to indicate that Wyri ck was aware of the filing of the second complaint." Id.

The finding that Donald Wyrick was unaware of plaintiff's second EEO C filing reveals nothing with respect to the relationship

### With respect to plaintiff's first EEOC filing and hi s 10 

### dem otion , plaintiff failed even to establish a prima facie case

. The April 6, 1984, vote by a d isciplinary review board in favor of his demotion occurred five days before plaintiff filed his firs t EEOC c omplaint. Powell, therefore, had to have recommended th e demotion at least five days before plaintiff's first filing. B y contrast, however, Long's decision to recommend plaintiff' s discharge (despite the disciplinary review board's vote on May 9, 1984, in favor of a three-day suspension) as well as Donal d Wyrick's formal decision to ac cept Long's recommendation, occurred approximately one month after the date on which plaintiff fi led his first EEOC complaint (April 11, 1984), and at least nine day s after the date on which, according to defendants, they received actua l notice of plaintiff's first EEOC complaint (April 30, 1984). See Brief fo r Appellees at 24 n.5, & Addendum, at 7 (memorandum fro m Long to Leigh Wayne, Human Relations Officer, stating that notice was received on April 30). Therefore, the timing of event s supports the inference that plaintiff's first EEOC filing wa s causally related to his discharge. See Greenwood v. Ross , 7 78 F.2d 448, 456 (8th Cir. 1985) (holding that the facts were suffic ient to establish a prima facie case of retaliatory discharge where (1) the plaint iff had filed an EEOC complaint and a federal lawsuit , (2) the defendants knew about his protected activity and con sidered it detrimental, and (3) his immediate supervisor, with th e knowle dge and consent of his superiors, refused to renew th e plaintiff's employment contract).
-17- between plaintiff's discharge and his first EEOC fili ng. Moreover, Wyrick 10 was not solely respon sible for plaintiff's discharge as it was Powell who initia ted the disciplinary proceedings, and it was Long who recommende d pla intiff's termination notwithstanding the disciplinary review board' s endorsement of a three-day suspension. Hicks I , 756 F. Supp. at 1247-48 (desc ribing the roles of Powell and Long in the context of plaintiff' s claim that his discharge was racially motivated, but nowhere mentionin g Donald Wyrick's role). Finally, to the extent that "personal animosity" led to plaintiff's termination, clearly it was not solely Wyrick's persona l feelings that made it so. See id. at 1251 ("It is clear that Powell had placed pl aintiff on the express track to termination. It is also clea r tha t Powell received the aid of Ed Ratliff and Steve Long in thi s endeavor.").

### -18- Nevert heless, the district court did state in its opinion th e ultimate factual conclusion that defendants' decision to discharg e plaintiff "was not motivated by a desire to retaliate against plaintiff fo r instituting a complaint with the [EEOC]." Hicks V , slip op. at 8

. Therefore, we affirm in light of the Supreme Cou rt's mandate in Hicks III

.

IV.

For the foregoing reasons, the judgment of the district court i s affirmed.

A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.