The Honorable Stephen N. Limbaugh, United States District

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 United

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 the

superintendent of St. Mary's, Steve Long (together defendants), on his

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 in

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 by

substitution on Feb. 15, 1994) (Hicks IV). 

 The district court reaffirmed its findings of fact from its 3

1991 decision and declared those findings applicable to both the

issue of whether defendants' personal animosity toward plaintiff

was racially motivated and plaintiff's retaliation claim. Hicks 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 district court

found that defendants' proffered reasons for demoting and

discharging plaintiff were pretextual and that he was treated

unfairly, but nevertheless found that defendants' "unfair

treatment" of plaintiff was not motivated by race. Id., 756

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, 509

U.S. 502 (1993) (Hicks III). 

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Cir. 1993) (Hicks IV) (amended by substitution on Feb. 15, 1994), which, 2

in turn, followed the Supreme Court's decision in St. Mary's Honor Ctr. v.

Hicks, 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 had reversed the district court's original judgment in favor of

defendants, id., 756 F. Supp. 1244 (E.D. Mo. 1991) (Hicks I). For

reversal, plaintiff now argues that the district court clearly erred in

finding that his demotion and discharge were not motivated by racial

discrimination or a desire to retaliate against him for filing charges of

employment discrimination with the Equal Employment Opportunity Commission

(EEOC). Applying the analytical principles set forth by the Supreme Court 3

in Hicks III, we now affirm.

I.

The facts of this case 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, was

hired in August 1978 as a correctional officer at St. Mary's, a minimum

security correctional facility
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(also referred to as a "halfway house") operated by the Missouri Department

of Corrections and Human Resources. In February 1980, plaintiff was

promoted to shift commander, a supervisory position. In January 1984, St.

Mary's underwent extensive supervisory changes and, among them, Long became

the superintendent of St. Mary's and John Powell became the chief of

custody (and plaintiff's immediate supervisor). Hicks I, 756 F. Supp. at

1246. Prior to these personnel changes, plaintiff enjoyed a satisfactory

employment record and had not been disciplined for any rule violations.

Id. at 1249. Immediately afterward, however, he became the subject of

repeated, and increasingly severe, disciplinary sanctions. Id. at 1246-48;

Hicks III, 509 U.S. at 505.

Plaintiff was suspended 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 1250. However, the district court found that "plaintiff

demonstrated such a policy only applied to violations which occurred on

plaintiff's shift." Id. For example, some of the very same infractions

for which plaintiff was suspended occurred under the watch of shift

commander Sharon Hefele (who is white) and yet she was not disciplined.

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

Later that month, a fight broke out between two inmates during

plaintiff's shift. On March 29, 1984, plaintiff was given a letter of

reprimand for allegedly 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 serious

violations, when committed by plaintiff's co-workers, were either

disregarded or treated much more leniently." Id. at 1251. For example,

on one occasion, transportation officer Ed Ratliff (who is white) permitted

an unescorted inmate access to Long's locked office. Id. at 1247 n.8,
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1248, 1251. The district court described this rule violation as "a

striking and obvious breach of security," noting that "the inmate had

access to Long's private files" and "could have acquired a weapon to use

against a correctional officer or another inmate." Id. at 1251. In

response, however, "Powell not only refused to discipline Ratliff but

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 that

plaintiff be disciplined -- not for authorizing the use of the vehicle, but

rather for failing to ensure that the use was logged. Id. A disciplinary

review board comprised of two African Americans and two Caucasians voted

on April 6, 1984, in support of plaintiff's demotion. Id. Powell was one

of the four members of the disciplinary review board which voted on his

recommendation that plaintiff be demoted; as a member of the disciplinary

review board, Powell then voted to terminate rather than merely demote

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 his

employment conditions. Joint Appendix, Vol. I, at 9 (Plaintiff's First

Amended Complaint, ¶ 10). At that point, plaintiff had received the fiveday suspension and the letter of reprimand, but had not been notified of

his demotion.

On April 19, 1984, plaintiff 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, 756

F. Supp. at 1247. Upon review of plaintiff's demotion, the district court

found that this was an example of how plaintiff was treated much more

harshly than co-workers whose rule violations were equally severe or more

severe. Id. at 1251. For
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example, acting shift commander Michael Doss (who is white) allowed an

inmate to escape during his shift. Id. at 1251, 1248 & n.12. Doss

admitted that his negligence permitted the escape. Id. at 1251. The

district court noted "[a]lthough the escape of an inmate is clearly much

more serious than the failure to log the authorized 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 having

filed the first EEOC complaint. Joint Appendix, Vol. I, at 9-10

(Plaintiff's First Amended Complaint, ¶ 15). 

On June 7, 1984, plaintiff was discharged ostensibly for threatening

Powell during an argument, which occurred after plaintiff was informed of

his demotion. According to the district court's findings, plaintiff

requested the day off upon being told of the demotion. Long granted the

request and, as plaintiff attempted to leave, Powell followed him and

ordered him to open his locker so that Powell could retrieve plaintiff's

shift commander's manual. Plaintiff refused to comply, and the two

exchanged heated words. Plaintiff indicated that he would "step outside"

with Powell, to which Powell warned that his words could be perceived as

a threat. Plaintiff then left. Hicks I, 756 F. Supp. at 1247. Powell

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 recommended to his superiors that plaintiff be terminated.

Id. at 1247-48. At trial, Long testified that his recommendation was

based upon "the severity and accumulation of plaintiff's violations." Id.

at 1248. With respect to plaintiff's alleged
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threats to Powell, the district court found "the evidence suggests that

Powell manufactured the confrontation between plaintiff and himself in

order to terminate plaintiff." Id. at 1251. As to the severity and

accumulation of plaintiff's violations, upon which Long allegedly relied

in recommending plaintiff's termination, the district court concluded that

those reasons were pretextual. Id. 

Plaintiff brought this employment discrimination action in federal

district court, asserting Title VII claims against St. Mary's and a § 1983

equal protection claim against Long. The district court held a bench trial

at which plaintiff presented a disparate treatment case. Addressing

plaintiff's racial discrimination claim only, the district court found for

defendants. In considering the evidence according to the analytical

framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973), the district court held that "[p]laintiff proved a prima facie case

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 "two

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 consideration

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

violations committed by subordinates; similar and even more serious

violations committed by plaintiff's co-workers were disregarded or treated

more leniently; and Powell had manufactured the final argument with

plaintiff in order to provoke plaintiff into threatening him. Id. at 508

(citing Hicks I, 576 F. Supp. at 1250-51). Thus, the district court

concluded "[p]laintiff has carried his burden in proving that the reasons

given for his demotion and termination were
 According to the district court's findings, the first

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 second

disciplinary review board, which voted to have plaintiff suspended

for three days, was disregarded by Long who instead recommended

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 hired

approximately the same number of African Americans as were fired.

Id. at 1249. Consequently, the total number of African American

employees remained relatively constant, although the number of

African American supervisors declined. See infra note 8 and

accompanying text.

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pretextual." Hicks I, 576 F. Supp. at 1251. Nevertheless, the district

court held that plaintiff had failed to prove that his race motivated

defendants' decisions to demote and to discharge him. The district court

relied on evidence that: each of the two four-member disciplinary review

boards which recommended disciplining plaintiff included two African

Americans ; plaintiff's African American subordinates (i.e., non4

supervisors), who actually committed the rule violations, were not

disciplined; and the total number of African American employees at St.

Mary's remained relatively constant despite the numerous personnel changes

that occurred. Hicks III, 509 U.S. at 508 n.2 (citing Hicks I, 756

5

F. Supp. at 1244, 1252). The district court stated "although plaintiff has

proven the existence of a crusade to terminate him, he has not proven that

the crusade was racially rather than personally motivated." Hicks I, 756

F. Supp. at 1252. Thus, the district court entered judgment for

defendants. Id. at 1253. The district court did not address plaintiff's

additional claim that defendants had demoted and terminated him in

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
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our circuit. Hicks II, 970 F.2d at 493 (citing cases). We held that once

plaintiff had proven all of defendants' proffered 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.

Defendants petitioned the Supreme Court for a writ of certiorari.

The Supreme Court granted 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 the

majority, held:

The factfinder's disbelief of the reasons put forward by

the defendant (particularly if disbelief is accompanied

by a suspicion of mendacity) may, together with the

elements of the prima facie case, suffice to show

intentional discrimination. Thus, rejection of the

defendant's proffered reasons will permit the trier of

fact to infer the ultimate fact of discrimination, and []

the Court of Appeals was correct when it noted that,

upon such rejection, "[n]o additional proof of

discrimination is required," 970 F.2d at 493 (emphasis

added). But the Court of Appeals' holding that

rejection of the defendant's proffered reasons compels

judgment for the plaintiff disregards the fundamental

principle of Rule 301 that a presumption does not shift

the burden of proof, and ignores our repeated admonition

that the Title VII plaintiff at all times bears the

"ultimate burden of persuasion."

Id. at 511 (footnote and citations omitted).

On remand from the Supreme Court, this court remanded the case to the

district court in order to provide the parties and the district court a

full and fair opportunity to apply the Supreme
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Court's clarification. Hicks IV, 2 F.3d at 267. Initially, the Hicks IV

opinion stated the following.

In particular, the district court may decide to hold an

evidentiary hearing in order to permit the parties to

present additional evidence on the now-critical question

of personal animosity. For example, Hicks may be able

to demonstrate that defendants were not motivated by

personal animosity or that defendants' personal

animosity was itself racially motivated.

Id. (as published in bound volume). Six months later, however, this court

entered an order denying a petition for rehearing by the panel and

substituting the following language for the language quoted above.

The issue of retaliatory discharge as a basis for Title

VII liability was not reached in the district court's

first opinion. [Hicks II, 970 F.2d at 493 n.9]. The

district court may decide to hold an evidentiary hearing

in order to permit the parties to present additional

evidence.

Hicks v. St. Mary's Honor Ctr., No. 91-1571 (8th Cir. Feb. 15, 1994) (order

denying petition for rehearing by the panel and substituting a new page 4

for page 4 of the opinion as originally filed). Thereafter, a suggestion

for rehearing en banc was denied.

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

accompanied the February 15, 1994, order superseded the language in the

original Hicks IV opinion. Nevertheless, noting the confusion created by

the page substitution, the district court decided to address both (1) the

issue of whether defendants' personal animosity toward plaintiff was

motivated by race and (2) plaintiff's retaliation claim. See Hicks V, slip

op. at 3.

The parties agreed, with the district court's approval, that, rather

than hold a rehearing, plaintiff would be permitted to take
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new depositions of Powell and Long. Id. at 4. The transcripts of Powell's

and Long's depositions, along with other forms of documentary evidence,

were then submitted to the district court for its consideration. Id. Upon

review of the evidence related to the personal animosity issue, the

district court concluded "[e]xtensive findings of fact were initially made

by this Court and there is no new reason to change those findings. The

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 earlier

finding that defendants' unfair treatment of plaintiff was motivated by

personal animosity; the district court, as factfinder, further concluded

that this personal animosity was not motivated by race. The district court

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 separate retaliation claim, the district court noted

that its initial findings were applicable to that claim as well, id. at 7,

and concluded that plaintiff's discharge was not motivated by a desire to

retaliate against plaintiff for filing a complaint with the EEOC. Id. at

8. In an effort to be more specific, the district court explained:

Plaintiff filed his initial complaint with the

Equal Employment Opportunity Commission on April 11,

1984 and a second complaint was filed May 7, 1984. The

decision to discharge plaintiff was made May 21, 1984,

four days after the Department of Corrections received

notice of the second complaint on May 17, 1984. The

decision-maker was the Director of the Division of Adult

Institutions, Donald Wyrick. There is no evidence to

indicate that Wyrick was aware of the filing of the

second complaint. In any event, the Court as the trier

of fact determines that there was a lack of racial

motivation in the decision to demote and discharge the

plaintiff as retaliation for his filing of complaints

with the Equal Employment Opportunity Commission. The

same reasons are applicable as were stated in this

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 alleged

violation 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. Okay. Just directing your attention to then Mr.

Hicks, did you have any personal problems with him

of any nature?

A. Personal, no.

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Id. at 8-9. 

The district court entered judgment for defendants on the merits of

plaintiffs' claims, id. at 9, and this appeal followed. 

II.

Plaintiff argues in the present appeal that the district court

clearly erred in finding that defendants treated him unfairly because of

personal animosity unrelated to his race. Plaintiff argues that the

overwhelming evidence of disparate treatment between himself, an African

American, and similarly situated Caucasians who also held supervisory

positions at St. Mary's, leads inescapably to the conclusion that race was

an underlying motivation in defendants' "crusade to terminate him." Hicks

I, 756 F. Supp. at 1252. Moreover, he emphasizes, the only reasons given

by defendants at trial for demoting and discharging him were the severity

and accumulation of his alleged rule violations -- reasons which were

conclusively proven to be pretextual. Id. at 1251. Finally, plaintiff

notes that, when Long and Powell were deposed following the remand from

this court, each testified that he did not feel any personal animosity

toward plaintiff. In fact, 6
. . . . 

Q. Okay. Now, what I'm trying to find out, Mr.

Powell, the court has made certain findings that

you and Mr. Long put him on an express track for

dismissal. And I'm trying to find out if there

was any reason other than your feeling 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).

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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 violations

explanation (even though Long himself does not) and astutely embraces

"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 personal

animosity now purportedly constitutes the real reason for plaintiff's

demotion and discharge, defendants continue to rely on statistical evidence

concerning, for example, the constancy in the overall number of African

Americans employed at St. Mary's (i.e., the total number of supervisors and

non-supervisors) and the fact that the four-member disciplinary review

boards which recommended disciplining plaintiff
 But see supra notes 4, 5 and infra note 8. 7

 Consequently, the ratio of African American to Caucasian

8

supervisors changed from 5:1 in 1983 to 2:4 after January 1984 (but

could have been 3:3 in 1984). Brief for Appellees at 12, 14, 20,

29; Joint Appendix, Vol. I, at 70. Of the two African Americans

retained after January 1984, one was plaintiff. Joint Appendix,

Vol. I, at 70.

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included at least two African Americans. Id. at 14, 19-20. Defendants

7

also highlight the fact that the number of African Americans and Caucasians

in supervisory positions would have been equal (3 and 3) but for the

decision by an African American male to turn down the chief of custody

position (which was later offered to Powell). Id. 8

Upon review for clear error of the district court's finding that

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 no authority to impose liability upon an employer for

alleged discriminatory employment practices unless an appropriate

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 the

product of unlawful discrimination, the much different (and much lesser)

finding that the employer's explanation of its action was not

believable.").

III.

Plaintiff separately argues that the district court 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) (reversing

district court's dismissal
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of plaintiff's Title VII retaliatory discharge claim and holding that

plaintiff established a prima facie case by showing that defendants,

knowing that plaintiff had engaged in protected activity, refused to renew

his employment contract)). In response, defendants argue that the lawful

nondiscriminatory reason defendants now rely upon to rebut plaintiff's

racial discrimination claim (i.e., Powell's personal animosity) equally

applies to plaintiff's retaliation claim and, together with evidence that

is "inconsistent" with racial discrimination, "compels" a finding for

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.

Plaintiff filed his initial complaint with the

Equal Employment Opportunity Commission on April 11,

1984 and a second complaint was filed May 7, 1984. The

decision to discharge plaintiff was made May 21, 1984,

four days after the Department of Corrections received

notice of the second complaint on May 17, 1984. The

decision-maker was the Director of the Division of Adult

Institutions, Donald Wyrick. There is no evidence to

indicate that Wyrick was aware of the filing of the

second complaint. In any event, the Court as the trier

of fact determines that there was a lack of racial

motivation in the decision to demote and discharge the

plaintiff as retaliation for his filing of complaints

with the Equal Employment Opportunity Commission. The

same reasons are applicable as were stated in this

Court's initial decision and finding.

Slip op. at 9 (emphasis added). The sentence underlined above clearly

suggests that defendants made a "decision to demote and discharge the

plaintiff as retaliation for his filing of complaints with the [EEOC]," but

that these adverse actions were not unlawful because they were not racially

motivated. The sentence therefore indicates that the district court

assumed plaintiff was required to prove racial motivation in order to

prevail on his retaliation claim. Racial motivation was not an element of

plaintiff's burden
 Likewise, contrary to defendants' argument on appeal, the

9

statistical evidence relied upon by defendants as inconsistent 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. That

evidence of a lawful, nonracial motive for his demotion and

discharge equally proves the absence of a retaliatory motive."). 

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of proof. See 42 U.S.C. § 2000e-3(a) ("It shall be an unlawful employment 9

practice for an employer to discriminate against any of his [or her]

employees . . . because he [or she] has made a charge . . . under this

subchapter."); Womack v. Munson, 619 F.2d 1292, 1296 (8th Cir. 1980)

(Womack) (setting forth legal standards applicable to Title VII retaliatory

discharge claim), cert. denied, 450 U.S. 979 (1981); cf. Wentz v. Maryland

Casualty Co., 869 F.2d 1153, 1154-55 (8th Cir. 1989) (Wentz) (analogizing

Title VII and ADEA retaliation claims and citing Womack as providing

applicable analytical framework) (reversing summary judgment granted to

defendant on plaintiff's ADEA retaliatory discharge claim where district

court relied on the failure of plaintiff's age discrimination claim to

decide plaintiff's retaliation claim).

In Wentz, the district court had stated the following reasons for

holding, on summary judgment, that the plaintiff had failed as a matter of

law to establish his prima facie case of unlawful retaliation under the

ADEA.

The [c]ourt finds that Wentz did not engage in protected

opposition to age discrimination in light of its ruling

above that Maryland did not discriminate against Wentz

on the basis of age. While Wentz'[] complaint may have

been a legitimate reaction to allegedly rude conduct by

[a supervisor], it could not constitute justifiable

opposition to age discrimination, as Wentz was

criticized and ultimately terminated 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,
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this court reversed and remanded the case to the district court, explaining

that, in order to establish statutorily protected activity, a plaintiff

need not show that the conduct he or she opposed was in fact

discriminatory. Id. at 1155. Instead, the plaintiff "must demonstrate a

good faith, reasonable belief that the underlying challenged action

violated the law." Id. In the present case, there can be

little doubt that plaintiff demonstrated a good faith reasonable belief

that defendants' actions violated the law in light of the district court's

extensive findings which illustrated that "[a]lthough plaintiff committed

several violations of institutional rules, plaintiff was treated much more

harshly than his co-workers who committed equally severe or more severe

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 whether the district court clearly erred in deciding that

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 findings regarding some of the

significant dates in the present case. The district court specifically

noted the dates on which plaintiff filed with the EEOC (April 11, 1984, and

May 7, 1984), the date on which the Department of Corrections received

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 Wyrick was aware of the filing of the second complaint."

Id. 

The finding that Donald Wyrick was unaware of plaintiff's second EEOC

filing reveals nothing with respect to the relationship
 With respect to plaintiff's first EEOC filing and his

10

demotion, plaintiff failed even to establish a prima facie case.

The April 6, 1984, vote by a disciplinary review board in favor of

his demotion occurred five days before plaintiff filed his first

EEOC complaint. Powell, therefore, had to have recommended the

demotion at least five days before plaintiff's first filing. By

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 Donald

Wyrick's formal decision to accept Long's recommendation, occurred

approximately one month after the date on which plaintiff filed his

first EEOC complaint (April 11, 1984), and at least nine days after

the date on which, according to defendants, they received actual

notice of plaintiff's first EEOC complaint (April 30, 1984). See

Brief for Appellees at 24 n.5, & Addendum, at 7 (memorandum from

Long to Leigh Wayne, Human Relations Officer, stating that notice

was received on April 30). Therefore, the timing of events

supports the inference that plaintiff's first EEOC filing was

causally related to his discharge. See Greenwood v. Ross, 778 F.2d

448, 456 (8th Cir. 1985) (holding that the facts were sufficient to

establish a prima facie case of retaliatory discharge where (1) the

plaintiff had filed an EEOC complaint and a federal lawsuit,

(2) the defendants knew about his protected activity and considered

it detrimental, and (3) his immediate supervisor, with the

knowledge and consent of his superiors, refused to renew the

plaintiff's employment contract).

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between plaintiff's discharge and his first EEOC filing. Moreover, Wyrick 10

was not solely responsible for plaintiff's discharge as it was Powell who

initiated the disciplinary proceedings, and it was Long who recommended

plaintiff's termination notwithstanding the disciplinary review board's

endorsement of a three-day suspension. Hicks I, 756 F. Supp. at 1247-48

(describing the roles of Powell and Long in the context of plaintiff's

claim that his discharge was racially motivated, but nowhere mentioning

Donald Wyrick's role). Finally, to the extent that "personal animosity"

led to plaintiff's termination, clearly it was not solely Wyrick's personal

feelings that made it so. See id. at 1251 ("It is clear that Powell had

placed plaintiff on the express track to termination. It is also clear

that Powell received the aid of Ed Ratliff and Steve Long in this

endeavor.").
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Nevertheless, the district court did state in its opinion the

ultimate factual conclusion that defendants' decision to discharge

plaintiff "was not motivated by a desire to retaliate against plaintiff for

instituting a complaint with the [EEOC]." Hicks V, slip op. at 8.

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

IV.

 

For the foregoing reasons, the judgment of the district court is

affirmed.

A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.