                                      ____________

                                       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 Court1 for the Eastern District of Missouri in favor of his
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




         1
       The Honorable Stephen N. Limbaugh, United States District
Judge for the Eastern District of Missouri.
Cir. 1993) (Hicks IV) (amended by substitution on Feb. 15, 1994),2 which,
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).3   Applying the analytical principles set forth by the Supreme Court
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




      2
      The unamended version of the panel's opinion is printed in
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).
      3
      The district court reaffirmed its findings of fact from its
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).

                                     -2-
(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,




                                             -3-
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 five-
day 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




                                       -4-
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




                                            -5-
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




                                    -6-
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
Americans4;           plaintiff's      African     American     subordinates       (i.e.,    non-
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.5              Hicks III, 509 U.S. at 508 n.2 (citing Hicks I, 756
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




         4
         According to the district court's findings, the first
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.
             5
         In the period from December 1983 to December 1984,
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.

                                                  -7-
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




                                      -8-
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




                                      -9-
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.




                                      -10-
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.6    In fact,

     6
      Long testified in his deposition as follows.

              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.

                                     -11-
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




                     . . . .

              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).

                                       -12-
included at least two African Americans.         Id. at 14, 19-20.7          Defendants
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).8          Id.


      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




     7
      But see supra notes 4, 5 and infra note 8.
          8
       Consequently, the ratio of African American to Caucasian
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.

                                        -13-
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




                                    -14-
of proof.9   See 42 U.S.C. § 2000e-3(a) ("It shall be an unlawful employment
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,




        9
       Likewise, contrary to defendants' argument on appeal, the
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.").

                                    -15-
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




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




        10
         With respect to plaintiff's first EEOC filing and his
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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      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.




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