second EEOC charge, and near the time Brent complained to Kristiansen about Goodwin's involvement in other CETA employees' wage complaints, Kristiansen went to the Shop to discuss both of these matters with Goodwin. Kristiansen, at that time, was annoyed generally about Goodwin's decision to go outside City channels with a grievance again, and was particularly annoyed that Goodwin had alleged his suspension was wrongful. This latter annoyance resulted from Kristiansen's belief that he had been instrumental in saving Goodwin's job after the McDonough incident. Goodwin had no knowledge about Kristiansen's intervention and, given Kristiansen's prior reaction to his wage claims and his role at Goodwin's suspension hearing, had no reason to assume Kristiansen had interceded for him.
28. At the meeting on March 25, 1976, only Goodwin, Kristiansen and Brent were present. Kristiansen opened the discussion by telling Goodwin that he did not feel it was reasonable for Goodwin to have filed another complaint against the City. He also stated that Goodwin was out of line in discussing wage disputes with other CETA workers. Kristiansen again asked that Goodwin withdraw his EEOC charges and stop encouraging others to challenge the CETA wage policy. He also informed Goodwin that he had corrected Goodwin's pay problems and saved him from termination after the McDonough incident. Goodwin reacted negatively to Kristiansen's comments and told him "you're a liar, you always were, and you always will be." Goodwin also said he would not stop his involvement with the EEOC. Kristiansen then told Goodwin that if that was his attitude, he would be terminated.
29. During the March 25, 1976 meeting, Kristiansen told Goodwin he was a good technical employee, but his abrasive and hostile attitude toward his superiors hurt his future opportunities with the City. He said Goodwin's attitude problem was typified by his characterization of job grievances as racial discrimination, and his filing of racial complaints when the grievances could be resolved in another manner. This approach was not justified and only aggravated the situation. Kristiansen also told Goodwin that he would be fired.
30. Following the meeting, Goodwin returned to work and Kristiansen had a termination notice drafted stating that Goodwin was being terminated because of his "wholly uncooperative attitude", his "disruptive influence" on other workers, and because he was "bad for employee morale". Thereafter, Kristiansen informed Director Hess of his decision to fire Goodwin and obtained his signature on the termination letter, which was delivered to Goodwin that night. Kristiansen, however, never told Hess that he felt Goodwin had been insubordinate to him that day. In fact, Kristiansen conceded that the official termination was intended to insulate the City from potential litigation.
31. Director Hess made no investigation of the grounds alleged for Goodwin's termination prior to accepting Kristiansen's recommendation.
32. Following his discharge, Goodwin unsuccessfully sought employment with Bell Telephone Company, and unsuccessfully applied for unemployment benefits. He was without work until June 1979, when he was hired by Marshall Elevator.
33. When Goodwin was discharged, there were between six to eight CETA workers at the Traffic Control Shop. Subsequent to his discharge until the present time, all the CETA workers who worked with Goodwin continued on as City electricians, except two who were fired and one who left voluntarily. During this time, City electricians worked a standard 40 hour week at the following rates of pay: 1976 $ 5.67 per hour; 1977 $ 6.06 per hour; 1978 $ 6.49 per hour; 1979 $ 6.87 per hour.
34. Goodwin's discharge was substantially motivated by the City's, and in particular, Kristiansen's, dislike of Goodwin's involvement in protected activities. This is buttressed by Kristiansen's admission at trial that he did have the matter of Goodwin's protected activities on his mind both before and during the meeting which resulted in Goodwin's discharge.
35. Goodwin's comments to Kristiansen on March 25, 1976, although not necessarily excusable, were not unjustified, and were clearly unpremeditated and arguably provoked.
A. The Title VII Claim
Initially, we must decide whether Goodwin's termination was motivated "at least in part" as a response to his contacting the EEOC or, in any event, by way of discriminating against him as a black person.
Section 704(a) of Title VII forbids an employer from discriminating against any of his employees "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 . . . under this subchapter." 42 U.S.C. § 2000e-3(a).
Section 703(a)(1) of Title VII provides, in part, that it is unlawful for an employer "to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment" because of the employee's race, color, or sex. 42 U.S.C. § 2000e-2(a)(1).
Our Court of Appeals, in Hicks v. ABT Assoc., Inc., 572 F.2d 960, 968-9 (3rd Cir. 1978), framed the discussion this way:
"Hicks' deposition raises an issue of whether he was discharged at least in part as a response to his contacting the Department of Housing and Urban Development (HUD) about alleged discriminatory practices of defendant. During his dispute with Abt Associates over several matters, Hicks had occasion to contact HUD, which provided funding for the project on which he was employed, the National Labor Relations Board, and finally the EEOC. From the evidence in the record, at least the contact with HUD, the first agency to which Hicks turned, might have occurred before the decision to discharge him. Hicks was told of his supervisor's decision to recommend the termination of his employment on July 13, 1973. The record does not clearly show when the company in fact decided to discharge him. The decision took effect on July 27. Hicks' deposition contains evidence that he had contacted HUD as early as July 9. Plaintiff also gave specific evidence of a conversation showing that defendant's home office was disturbed by the contact with the agency. The coincidence of the reaction at Abt Associates to the complaint to HUD and the decision to end Hicks' employment raises an inference that the complaint to HUD was one of the reasons for the decision to fire Hicks.
Even if a charge filed with the EEOC is found to be without merit, the employee is protected in making that charge by section 704 and cannot be fired. See, e.g., Pettway v. American Cast Iron Pipe Co., 411 F.2d 998, 1004-05 (5th Cir. 1969); Bradington v. International Business Machines Corp., 360 F. Supp. 845, 854 (D.Md.1973), Aff'd mem., 492 F.2d 1240 (4th Cir. 1974)." (Footnotes omitted)