Baker v. Jefferson County Brief for Plaintiffs-Appellants

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

NO... 8.0-3205

CHARLES W. BAKER and 
JOHN W. ARNOLD,

Plaintiffs-Appellants,
vs.

COUNTY OF JEFFERSON, et al.,
Defendants-Appellees.

On Appeal from the United States District 
Court for the Western District of Kentucky 

(Charles M. Allen, J.)

BRIEF FOR PLAINTIFFS-APPELLANTS

JUANITA LOGAN CHRISTIAN 
Suite 490
730 West Main Street 
Louisville, Kentucky 40202

JACK GREENBERG 
PATRICK O. PATTERSON 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Counsel for Plaintiffs-Appellants



Table of Contents

Page

Table of Authorities ...............................  ii
Questions Presented ....    1
Statement of the Case ..............................  2
Statement of Facts .................................  3
Summary of Argument.... ............................ 15
Argument ...........................................  16

I. The district court misconstrued 
Title VII of the Civil Rights
Act of 1964 and 42 U.S.C. § 1981 ......  16
A. Standards of proof .................  16
B. The district court erred as 

a matter of law in holding
that an employer may lawfully 
retaliate against employees 
because they have accused 
their supervisors of racial
discrimination .....................  18

C. The district court erred as 
a matter of law in holding 
that an employer may lawfully 
retaliate against an employee 
because he has supported a 
co-worker's claim of dis­
criminatory treatment ..............  23

II. The district court based its 
decision on clearly erroneous
findings of fact ........................ 26

III. The district court abused its 
discretion in denying the motion
for a preliminary injunction ........... 35

Conclusion ..........................................  40
Addendum: § 704(a), Title VII of the

Civil Rights Act of 1964, as 
amended, 42 U.S.C. § 2000e-3(a);
Civil Rights Act of 1866,
42 U.S.C. § 1981 ........................ 41

- i -



Table of Authorities

Cases; Page

Aguirre v. Chula Vista Sanitary Service,
Inc., 542 F . 2d 779 (9th Cir. 1976) ..............  16, 17,

35, 36, 39
Alexander v. Gardner-Denver Co., 415

U.S. 36 (1974) ..................................  23
Berg v. La Crosse Cooler Co., 612 F.2d

1041 (7th Cir. 1980) ............................  19, 20
DeMatteis v. Eastman Kodak Co., 511 F.2d 

306, modified on other grounds, 520
F .2d 409 (2d Cir. 1975) ......................  21, 24

Eichman v. Indiana State University 
Board of Trustees, 597 F.2d 1104
(7th Cir. 1979) .................................  25

Federoff v. Walden, 17 FEP Cases 91
(S.D. Ohio 1978) ............................ 25, 35, 37

Garcia v. Rush-Presbyterian-St. Luke's 
Medical Center, 80 F.R.D. 254
(N.D. 111. 1978) ..............  24

Grant v. Bethlehem Steel Corp., 622 F.2d
43 (2d Cir. 1980) ...............................  16, 17

Gresham v. Chambers, 501 F.2d 687
(2d Cir. 1974) ..................................  35

Hearn v. R.R. Donnelly & Sons Co.,
460 F. Supp. 546 (N.D. 111. 1978) ..............  20, 21

Hearth v. Metropolitan Transit 
Commission, 436 F. Supp. 685
(D. Minn. 1977) .................................  20, 21

Kirkland v. Buffalo Board of Education,
487 F. Supp. 760 (W.D.N.Y. 1979)
aff'd, 622 F .2d 1066 (2d Cir. 1980) ............ 16

Liotta v. National Forge Co., 473
F. Supp. 1139 (W.D. Pa. 1979) ..................  24

-ii-



Page
Mason County Medical Ass'n v. Knebel,

563 F. 2d 256 (6th Cir. 1977) ..................  35, 36
McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973) ............................ 16, 20
National Organization for Women v.

Sperry Rand Corp., 457 F. Supp. 1338
(D. Conn. 1978) ................................  24

Novotny v. Great American Federal Savings 
& Loan Ass'n, 584 F.2d 1235 (3rd Cir.
1978) (en banc), vacated on other grounds,
442 U.S. 366 (1979) ............................  19,20, 24

Pettway v. American Cast Iron Pipe Co.,
411 F .2d 998 (5th Cir. 1969) ..................  19

Ragheb v. Blue Cross & Blue Shield of 
Michigan, 467 F. Supp. 94 (E.D. Mich.
1979) ...........................................  24

Senter v. General Motors Corp., 532 F.2d 
511 (6th Cir.), cert, denied, 429 U.S.
870 (1976) ...................................... 22

Sias v. City Demonstration Agency, 588
F . 2d 692 (9th Cir. 1978) ......................  19, 20

Sullivan v. Little Hunting Park, Inc.,
396 U.S. 229 (1969) ............................ 25

Swint v. Pullman-Standard, 624 F.2d 525
(5th Cir. 1980) ................................  22, 34

United States v. United States Gypsum Co.,
333 U.S. 364 (1948) ............................ 34

Winston v. Lear-Siegler, Inc., 558 F.2d
1266 (6th Cir. 1977) ........................... 21, 24

Womack v. Munson, 619 F.2d 1292 (8th
Cir. 1980) ....................................  16, 19, 21

Statutes and Rules;

28 U.S.C § 1292 ..................................  3

-iii-



Page

Civil Rights Act of 1866, 42 U.S.C.
§. 1981 ...........................................  Passim

Title VII of the Civil Rights Act of 
1964, as amended, 42 U.S.C.
§ 2000e et seq..........   Passim

Rule 52, Fed. R. Civ. P.................    34
Rule 65, Fed. R. Civ. P. ......................... 35

-iv-



IN THE
UNITED STATES COURT OP APPEALS 

FOR THE SIXTH CIRCUIT

No... 80-3.205.

CHARLES W. BAKER and 
JOHN W. ARNOLD,

Plaintiffs-Appellants,
vs.

COUNTY OF JEFFERSON, et al.,
Defendants-Appellees.

On Appeal from the United States District 
Court for the Western District of Kentucky 

(Charles M. Allen, J.)

BRIEF FOR PLAINTIFFS-APPELLANTS

Questions Presented

1. Whether the district court erred in holding that 
an employer may lawfully retaliate against employees 
because they have accused their supervisors of racial dis­
crimination.



2. Whether the district court erred in holding that 
an employer may lawfully retaliate against one employee 
because he has supported another employee's claims of dis­
criminatory treatment.

3. Whether the district court based its decision on 
clearly erroneous findings of fact.

4. Whether the district court abused its discretion 
in refusing to grant a preliminary injunction protecting 
the plaintiffs from unlawful retaliation.

Statement of the Case

This case was brought as a class action in January 
1980 under, inter alia, Title VII of the Civil Rights Act 
of 1964 and the Civil Rights Act of 1866, to remedy racial 
discrimination in employment in the Police Department of 
Jefferson County, Kentucky. The plaintiffs also sought a 
temporary restraining order and preliminary and permanent 
injunctions protecting plaintiffs Charles W. Baker, John 
W. Arnold, and other employees from retaliation for their 
opposition to the defendants' racially discriminatory prac­
tices. The district court initially granted a temporary 
restraining order (order of Jan. 25, 1980) but, after a 
hearing, dissolved that order and denied plaintiffs' motion 
for a preliminary injunction (order of March 4, 1980). This 
Court has jurisdiction of plaintiffs' appeal pursuant to

- 2 -



28 U.S.C. § 1292 (a) (1) .

Statement of Facts

Plaintiff Charles W. Baker, who is black, joined the 
Jefferson County Police Department as a Class A Patrolman 
in 1972 and became a plainclothes detective in 1973. Tr.
Vol. I, at 13, 24 (Baker). Except for a brief period in 
1977, during which he first served in the Department's 
training unit and then temporarily left the police force, 
plaintiff Baker remained a detective until January 1980, 
shortly before this suit was filed, rd. at 24. Before 
joining the Jefferson County Department, he had worked as 
a police officer in both Washington, D.C., and Louisville, 
Kentucky, and before that he had been in the U.S. Marine 
Corps for ten years. Id_. at 13-14. Plaintiff Baker also holds 
a Doctor of Divinity degree (Tr. vol. I, at 14); he serves 
both as the pastor of a church (id_. at 13) and as a volun­
teer chaplain for the Police Department (Helm Dep. at 18- 
19). His Police Department personnel file (PX 11) 
contains 14 letters of commendation from his commanding 
officers, private.citizens, and others; it contains only 
one letter of reprimand, which was issued in 1974 because 
he was overweight.

Plaintiff John W. Arnold, who is white, has been an 
officer in the Jefferson County Police Department since 
1968. Tr. Vol. I, at 199 (Arnold). He served as a nar­
cotics detective in 1972-73 (id. at 200; Vol. II, at 6),

-3-



and he became a burglary bea-t detective and then a homicide 
detective in 1977 (Tr. Vol. I, at 201-202). His personnel 
file (PX 18) contains 26 letters of commendation from his 
commanding officers, private citizens, and others. The 
file shows that he was the subject of formal discipline 
only once: in 1974, he received a letter of reprimand 
because his hair needed trimming..

In the fall of 1978, Detectives Baker and Arnold were 
selected to work as a team in a new burglary intelligence 
unit funded through a federal grant administered by the 
Louisville/Jefferson County Criminal Justice Commission.
Tr. Vol. I, at 202 (Arnold); PX 20, at 3. The primary 
purpose of the unit was to reduce residential burglaries 
by means of new and inventive methods of crime prevention, 
apprehension of burglars, and recovery of stolen property.
PX 20, at 3-4. Unlike other detectives in the residen­
tial burglary squad, Baker and Arnold were not assigned to 
specific geographical areas or beats, but were responsible . 
for conducting surveillance and gathering intelligence 
throughout Jefferson County and surrounding areas. Tr.
Vol. I, at 202-203 (Arnold); Vol. IV, at 1-3 (Whalin).

Detectives Baker and Arnold were selected for the new 
unit in 1978 because the lieutenant in charge of the unit 
regarded them as the best qualified persons in the Department 
to fill these two positions. Tr. Vol. I, at 202 (Arnold). 
They remained in the unit until January 1980, shortly before

-4-



this suit was filed. When the unit was evaluated in 
November and December of 1979, the staff of the Criminal 
Justice Commission found that Baker and Arnold were 
"enthusiastic about the project," that they had logged 
"an impressive amount of surveillance time," and that 
"there was nothing that we found to be lacking" in their 
performance. Tr. vol. IV, at 206-207 (Bewley). A month 
later, however, Baker and Arnold not only were removed 
from the burglary intelligence unit, but were demoted from 
detectives to uniformed patrol officers. Tr. vol. I, at 68- 
70 (Baker), 236-37 (Arnold).

The events which culminated in Baker's and Arnold's 
demotion began in April 1979, when plaintiff Baker filed 
a charge of discrimination with the U.S. Equal Employment 
Opportunity Commission and the Kentucky Commission on 
Human Rights. A copy of the charge was served on the 
Chief of Police (Helm Dep. at 14), and the fact that it 
had been filed was common knowledge within the Department.
Tr. Vol. I, at 19-20 (Baker); Vol. Ill, at 87 (White);
Vol. V, at 13 (Hall). Another black officer, Detective 
Bruce White, considered filing a charge of discrimination 
at the same time but decided against it because he feared 
retaliation by the defendants. Tr. Vol. Ill, at 86-87 (White).

Baker's charge (PX 1) alleged that he and other black 
officers had been denied promotions to higher ranks in the 
Police Department because of their race; it further alleged

-5-



that less than 3% of the officers in the Department were 
black, and that no black person held any position aboveuthe rank of patrol officer. By contrast, in 1970 blacks 
accounted for 13.8% of the population of Jefferson County 
and 12.2% of the population in the Louisville Standard

yMetropolitan Statistical Area. At the time of the February 
1980 hearing in this case, blacks held only 12, or 2.7%, 
of 450 jobs as sworn officers in the Department (Helm Dep. 
at 12; Tr. Vol. I, at 17 (Baker)); of approximately
71 commanding officers, only one was black. This sole 
black sergeant, J. C. Carter, had been promoted to that 
rank late in 1979, several months after plaintiff Baker 
had filed his charge of discrimination. Helm Dep. at 12-14;
Tr. Vol. I, at 194 (Baker). Carter is the only black person 
who has ever attained the rank of sergeant in the entire 
history of the Jefferson County Police Department. Id.

After Baker filed his EEOC charge, he was subjected 
to racial harassment and intimidation by other officers in 
the Department, and he experienced an increasing level of 
hostility and criticism from his commanding officers. For 
example, soon after the charge was filed in April 1979, 
Detective Jack Wright, told Baker that he had heard about

1/ Two black applicants who were denied jobs as police 
officers in the Department, Ronald Coley and Purgie Mack, 
also filed charges of discrimination. They are plaintiffs 
in this action but are not directly involved in this appeal.
2/ U.S. Bureau of the Census, Census Tracts, Louisville, Ky. 
Ind. Standard Metropolitan Statistical Area, Table P-1 (General 
Characteristics of the Population: 1970).

- 6 -



it and said, "You know, we've never had a nigger to retire 
on the Police Department yet, and I see that you're killing 
your chance right now of doing so." Tr. Vol. I, at 20-21 
(Baker), 205-206 (Arnold). Baker also received several 
threatening calls over the Police Department's intercom 
system telling him, "Nigger, you'd better drop that suit."
Id. at 21-23 (Baker). Lt. David Whalin, who assumed command 
of Baker's squad in June, told Baker in July that he was no 
longer permitted to hang his Doctor of Divinity degree above 
his desk. Tr. Vol. I, at 30-33 (Baker). Other detectives 
in comparable offices were allowed to hang pictures, degrees, 
and awards on the walls (id_. at 33-35), and as late as 
November 1979 other officers in squad rooms under Lt. Whalin's 
command were permitted to hang things on the walls. Tr. Vol. 
IV, at 146-47 (Brodt). Baker's immediate supervisor, Sgt. 
Edward Brodt, openly criticized Baker's work and called it 
"garbage" in the presence of another detective junior to 
Baker. Tr. Vol. I, at 35-39 (Baker).

Baker testified that, after several such incidents had 
occurred, "I knew that I was headed for some problems back 
there in Burglary. I was either going to be gotten rid of 
or fired or something ...." Tr. Vol. I, at 67. Therefore, 
in August 1979 he went to Col. Helm, the Chief of Police, 
and requested a transfer from the burglary intelligence 
unit to the chaplain's office. Chief Helm denied his request 
on the ground that there was no one available to replace him 
in the burglary intelligence unit. Id.

-7-



By January of 1980, the hostility directed at Baker 
by his commanding officers had intensified. On January 
2, Sgt. Brodt orally reprimanded Baker for failing to 
appear on New Year's Eve at an invesitgative detail to 
which Baker had never been assigned. Tr. Vol. IV, at 135-36 
(Brodt); vol. I, at 41-43 (Baker). The detail resulted 
from information which had been developed by Arnold. Tr.
Vol. I, at 231 (Arnold). However, Sgt. Brodt had not 
assigned Arnold to the detail even though Baker and Arnold 
worked as a team, and he had attempted to reach only Baker 
on New Year's Eve. Tr. vol. IV, at 135 (Brodt). Both 
Baker and Arnold were on vacation on the date in question, 
their vacation requests having previously been approved 
by Sgt. Brodt himself. Tr. Vol. I, at 41-43 (Baker), 232 
(Arnold). Although both Baker and Arnold were present at 
the time of the reprimand, only Baker was reprimanded. Id; 
see also, Tr. Vol. IV, at 135-36 (Brodt).

Then, on January 7, Sgt. Brodt and Lt. Whalin repri­
manded both Baker and Arnold for allegedly failing to 
follow Sgt. Brodt's instructions when they made arrests 
without notifying Detective Michael Doughty, a white bur­
glary detective. Tr. Vol. IV, at 30-31 (Whalin). The 
record shows that Sgt. Brodt had instructed them to notify 
the detective assigned to a particular beat before making 
any arrests on that beat, and to include that detective in 
any such arrests. Tr. Vol. I, at 43-44 (Baker), 226 (Arnold).

- 8 -



When Baker and Arnold began investigating a series of 
burglaries in December 1979, they believed that the sus­
pects had committed crimes on Detective Doughty's beat.
In accordance with their sergeant's instructions, they 
communicated their findings to Doughty and they gave 
Doughty leads, suggestions, and photographs to assist 
him in his own investigation. Tr. Vol. IV, at 136-37 
(Brodt); Vol. I, at 222-24 (Arnold). When Baker and 
Arnold learned through further investigation that the 
suspects had in fact committed burglaries on the beat of 
Detective Bruce White (a black detective) and. not on 
Detective Doughty's beat, they continued to follow the 
instructions they had been given: after telling Sgt.
Brodt what they were planning to do, they notified 
Detective White, they gave him the information they had 
developed in their investigation, and they involved him in 
the arrests. Tr. Vol. I, 43-48 (Baker), 226-28 (Arnold). 
Despite their compliance with the procedures they were 
directed to follow, on January 7 Baker and Arnold were 
reprimanded for their conduct.

Baker's growing concern about his future in the Depart 
ment prompted him to write his letter of January 9, 1980, 
to Chief Helm (PX 7). The letter recounted the facts of 
the New Year's Eve incident and the Doughty incident, and 
it stated as follows (id. at 4):

-9-



It is obvious that this action is aimed 
against me because I am black. The lieutenant 
and sergeant have indicated that the guys are 
envious. I feel that they believe a black 
should not hold this position. ...

This pressure has been experienced over 
a period of time and because of this, I came 
to you as Chief of Police, in August 1979 
seeking another assignment, but you were not 
able to reassign me. I feel that, in light 
of these facts my job would be in constant 
jeopardy as long as the lieutenant desires 
to put someone else [i.e., a white officer,
Detective Doughty] where I am.
B a k e r  the r e f o r e  r e q u e s t e d  t h a t  he b e  

transferred to another detective position outside the 
burglary intelligence unit. He also requested that a copy 
of the letter be placed in his personnel file for future 
reference, and he delivered a copy of the letter to his 
attorney and to each officer in the chain of command— Sgt. 
Brodt, Lt. Whalin, Maj. Minter, Lt. Col. Roemele, and 
Chief Helm.

Upon receiving the letter, Chief Helm directed Maj. 
William Minter, Commander of the Criminal Investigation 
Division and Chief of Detectives, to invesitgate the matter. 
Tr. Vol. IV, at 171 (Helm). Maj. Minter's investigation, 
which took place on January 16, 1980, consisted of inter­
viewing Baker, Arnold, and seven or eight other persons.
Tr. Vol. Ill, at 40-43 (Minter). When Minter's deposition 
was taken only two weeks later, however, he testified under 
oath that he could not remember the nature of his conversa­
tion with Baker (id. at 32); that he could not recall the

- 10 -



reason he interviewed Arnold, or the questions he asked 
Arnold, or the substance of his conversation with Arnold 
(id. at 37-39); that he could not remember the names of any 
of the eight other persons he had interviewed (id_. at 41-42); 
that he could not think of anything he had discussed with 
any of these persons (id. at 45-46); that he knew he had 
recommended that Baker and Arnold be transferred because 
there was friction in their section, but that he could not 
remember the name of even one person with whom they had 
such friction (id. at 50-52); and that he could not remem­
ber any specific problem with Baker's or Arnold's job per-Vformance (id. at 53).

Baker testified that Minter’s interview of him consisted 
of questions about the contents of the letter, a statement 
by Minter that he did not believe there was any discrimina­
tion in the Department, and an inquiry as to why he had sent 
a copy of the letter to a "civil rights attorney." Tr. Vol. 
I, at 63-64. Arnold testified that Maj. Minter pressed him 
to deny the allegations in Baker's letter, and to state that 
Baker was not being singled out because he was black. Id. 
at 235-36. Arnold refused to discredit Baker's letter; 
instead, he told Minter that the letter was Baker's, not his,

3/ At the hearing on February 6, Minter testified that he 
now remembered some of the facts which he had so completely 
forgotten between the date of his investigation, January 16, 
and the date of his deposition, January 31. The reason for 
the remarkable improvement in his memory, he said, was that 
before testifying at the hearing he had refreshed his recol­
lection by reviewing some notes. Tr. Vol. Ill, at 32-33. 
Minter did not explain why he had not reviewed these notes 
before his deposition.

- 11-



that he could not state that Baker was not being subjected 
to racial discrimination, and that "the incidents in the 
letter spoke for themselves." Id. at 235-36; Vol. II, at 
38. On the basis of Baker's letter and Minter's "investi­
gation, " Chief Helm decided on January 17, 1980, to transfer 
both Baker and Arnold, not to different positions within 
the detective bureau as Baker had requested, but rather to 
jobs as uniformed patrol officers. Helm Dep. at 29; Tr.
Vol. IV, at 191-92 (Helm). After being notified of the 
transfer, Arnold informed Minter that he believed Baker's 
allegations of racial discrimination were true. Tr. Vol.
II, at 38-40 (Arnold). He had not told this to Minter in 
his earlier interview because he feared retaliation. Id; 
Vol. Ill, at 7-9 (Arnold).

The transfer resulted in the loss of substantial extra 
wages which had been available to Baker and Arnold as detec­
tives, and in the loss of status and prestige within the 
Department. It also deprived them of the use of unmarked 
cars and the privilege of flexible working hours, and it 
damaged their professional reputations and their ability to 
perform as detectives by depriving them of the confidence of 
contacts and informants they had cultivated through years 
of work as detectives. Tr. Vol. I, at 70-79 (Baker), 240- 
49 (Arnold). Therefore, their reassignment to uniformed 
patrol duties was widely regarded by officers throughout 
the Department not as a lateral transfer, but as a punitive

- 12-



demotion. Id; Vol. Ill, at 59-60 (Pike), 85 (White);
Vol. IV, at 196-98 (Moore); Vol. V, at 14 (Hall).

In the complaint which they filed in this action on 
January 24, 1980, and in a motion and supporting affidavits 
filed on the same date, the plaintiffs sought a temporary 
restraining order and a preliminary injunction to restrain 
the defendants from transferring, demoting, or otherwise 
retaliating against plaintiffs Baker and Arnold pending a 
final decision on the merits of their case. The district 
court granted a temporary restraining order the following 
day. Baker and Arnold were thereafter reinstated as detec­
tives, but they were not granted the full benefits and privi­
leges of their previous employment. Tr. Vol. I, at 79-81, 
182-83 (Baker), 249-50 (Arnold).

After holding an evidentiary hearing, the district 
court on March 4, 1980, dissolved the temporary restraining 
order and denied the motion for a preliminary injunction.
In its memorandum opinion, the court held or assumed that 
the plaintiffs had established a prima facie case of re­
taliatory demotion for exercising their rights under Title 
VII and 42 U.S.C. §. 1981. Opinion at 4. However, the court 
went on to hold as follows (id. at 5):

4/ On January 28, 1980, Baker's attorney received his statu­
tory Notice of Right To Sue from the U.S. Department of. Justice 
(PX 2) . On January 22, Arnold filed an EEOC charge alleging 
unlawful retaliation (PX 13). He requested a Notice of Right 
To Sue which, at the time of the hearing, had not yet been 
issued. Tr. Vol. I, at 253 (Arnold).

-13-



The weight of the evidence ... shows that 
the decision to transfer Baker and Arnold was 
primarily due to the following factors:
1. Baker's specific contention that he could 
not work under Lt. Whalin whom he accused of 
playing favorites and of being racially biased;
2. The conclusions of the Commanding Officer 
that it was not in the best welfare of the 
Police Department to have Baker and Arnold 
continue on the detective force where they 
have shown inability to follow direct commands 
and more importantly, had expressed their lack 
of trust in the impartiality of the chain of 
command.

The court ... concluded that defendants 
have shown a legitimate nondiscriminatory 
reason for the transfer of plaintiffs. ... [T]he 
alleged reason for their transfer was a legitimate 
one.
After reaching this conclusion of law, the court recited 

four findings of fact which were said to prove that the 
defendants' asserted reasons for transferring Baker and 
Arnold were not a pretext for unlawful discrimination or 
retaliation. Opinion at 5-6. Accordingly, the court 
dissolved the temporary restraining order and denied plain­
tiffs' motion for a preliminary injunction. Order of March 
4, 1980. Baker and Arnold were then demoted once again to 
positions as uniformed patrol officers. They subsequently 
filed a timely notice of appeal.

-14-



Summary of Argument

In holding that an employer may lawfully retaliate 
against employees for their opposition to racially dis­
criminatory employment practices, the district court 
misconstrued Title VII of the Civil Rights Act of 1964 
and 42 U.S.C. § 1981. The court further erred as a matter 
of law in holding that an employee may be punished for 
supporting a co-worker's claims of discriminatory treat­
ment. The court also based its decision on clearly 
erroneous findings of fact, and it abused its discretion 
in refusing to grant a preliminary injunction.

-15-



Argument

I. THE DISTRICT COURT MISCONSTRUED TITLE VII OF THE
CIVIL RIGHTS ACT OF 1964 AND 42 U.S.C. § 1981.

A. Standards of Proof

As the district court acknowledged (Opinion at 4), the 

Supreme Court1s decision in McDonnell Douglas Corp. v. Green.

411 U.S. 792 (1973), controls the order and allocation of proof 
in cases of alleged retaliation for activities protected by Title 
VII and § 1981. Under McDonnell Douglas, the plaintiff must first 

establish a prima facie case of retaliation? the burden then shifts 
to the employer to demonstrate a legitimate nondiscriminatory 
reason for the apparent acts of reprisal; and finally, the burden 

returns to the plaintiff, who has an opportunity to show that the 

employer's asserted reasons are a pretext for unlawful retaliation. 
See, e.g., Grant v. Bethlehem Steel Corp., 622 F.2d 43, 46 (2d cir. 

1980); Womack v. Munson, 619 F.2d 1292, 1296 (8th Cir. 1980); 
Aguirre v. Chula Vista Sanitary Service, Inc., 542 F.2d 779, 781 
(9th Cir. 1976). The plaintiff's prima facie case may be estab­
lished by evidence showing: (1) statutorily p r o t e c t e d  

a c t i v i t y ;  (2) adverse employment action; and (3) a causal con­

nection between the two. Womack, supra, 619 F.2d at 1296; Grant, 

supra, 622 F.2d at 46; Kirkland v. Buffalo Board of Education, 487

-16-



F.Supp. 760, 772-73 (W.D.N.Y. 1979), aff'd, 622 F.2d 1066 (2d Cir.
1980). The requisite causal connection can be established by 

circumstantial evidence showing that protected activity was fol­

lowed by adverse treatment. Grant, supra, 622 F.2d at 46-47; 

Aguirre, supra, 542 F.2d at 781.
The evidence in the case at bar demonstrates that both 

plaintiff Baker and plaintiff Arnold engaged in protected activity. 
See Sections IB and IC, infra. Baker filed a formal EEOC charge 
alleging discrimination in promotions. He also wrote a letter to 

his supervisors, informing them of treatment which he reasonably 

believed to be discriminatory and seeking their assistance in im­
proving the situation through informal means. Arnold refused to 

deny or discredit the statements in Baker's letter, although 

pressed by his commanding officer to do so. This activity was 
followed by prompt adverse action: both Baker and Arnold were re­

moved from the detective bureau and demoted to positions as uni­
formed patrol officers. There is overwhelming evidence, circum­

stantial and direct, that the protected activity was the primary 

cause of the demotion. See pp. 6-12, supra. Indeed, Major 
Minter, who conducted the internal "investigation11 into Baker's 

allegations, admitted that one of the reasons for the action taken 

against Baker and Arnold was that "[t]hey had accused the sergeant 

and lieutenant of being prejudiced." Tr. Vol. Ill, at 50. Chief

-17-



Helm also admitted that he transferred Baker to uniformed patrol 
duties in part because of Baker's statement to the Chief that he 

believed Minter was racially biased- Tr. Vol. IV, at 190-91.
Thus, the district court was clearly correct insofar as it 

held that Baker and Arnold had established a prima facie case of 
unlawful retaliation. Opinion at 4. However, as set forth below, 

the court erred as a matter of law in concluding that the defend­

ants had demonstrated legitimate nondiscriminatory reasons for de­
moting the plaintiffs, and it relied on clearly erroneous findings 

of fact in holding that the defendants1 asserted reasons were not a 

pretext for unlawful retaliation.

B. The District Court Erred as a Matter of Law in 
Holding that an Employer May Lawfully Retaliate 
Against Employees Because They Have Accused their 
Supervisors of Racial Discrimination.

Section 704 (a) of Title VII prohibits discrimination against 

any person "because he has opposed any practice, made an unlawful 
employment practice by this title, or because he has made a charge, 

testified, assisted, or participated in any manner in an investiga­

tion, proceeding, or hearing under this title." 42 U.S.C. § 2000e-
5/3(a). The courts have recognized that the two disjunctive clauses

5/ The full texts of Section 704(a) of Title VII and 42 U.S.C. § 1981 
are reproduced in an addendum to this brief.

-18-



of this section protect two different kinds of activities. The

"participation" clause protects employees from retaliation for 
filing formal charges of discrimination or lawsuits under Title VII, 
and it protects other persons who testify, assist, or otherwise 
participate in such formal proceedings. The purpose of this clause 

is "to protect the employee who utilizes the tools provided by Con­

gress to protect his rights." Pettway v. American Cast Iron Pipe 
Co., 411 F.2d 998, 1005 (5th Cir. 1969). Accordingly, the merits 
of the charges made in formal administrative or judicial proceed­

ings are irrelevant to the protection granted by the participation 

clause; "employer retaliation even against those whose charges are 
unwarranted cannot be sanctioned." Womack v. Munson, supra, 619 

F.2d at 1298. See also, Sias v. City Demonstration Agency, 588 F.2d 

692, 695 (9th Cir. 1978).
The "opposition" clause of § 704 (a), on the other hand, 

reaches beyond the protection of direct participation in formal 
proceedings. Novotny v. Great American Federal Savings & Loan 

Ass1n , 584 F.2d 1235, 1260 (3rd Cir. 1978) (en banc), vacated on 

on other grounds, 442 U.S. 366 (1979). This clause "is designed

to encourage employees to call to their employers' attention dis­

criminatory practices of which the employer may be unaware or which 

might result in protracted litigation to determine their legality 

if they are not voluntarily changed." Berg v. La Crosse Cooler Co.,

-19-



612 F-2d 1041, 1045 (7th Cir. 1980). See also, McDonnell Douglas
Corp. v. Green, supra, 411 U.S. at 796 (§ 704(a) "forbids discri­

mination against applicants or employees for attempting to protest 

or correct allegedly discriminatory conditions of employment").
The protection afforded by the opposition clause does not 

depend upon a determination that the practices complained of are 
in fact unlawful. The imposition of such a requirement would 

"undermine Title VII1s central purpose, the elimination of employ­

ment discrimination by informal means," and it would "destroy one 

of the chief means of achieving that purpose, the frank and nondis- 

ruptive exchange of ideas between employers and employees. . . . "  
Berg v. La Crosse Cooler Co., supra, 612 F.2d at 1045. The courts 

have refused to interpret the opposition clause in a manner which 
"would not only chill the legitimate assertion of employee rights 

under Title VII but would tend to force employees to file formal 
charges rather than seek conciliation or informal adjustment of 

grievances." Sias v. City Demonstration Agency, supra, 588 F.2d at 
695. Therefore, it is now well settled that this clause of § 704(a) 

protects employees from retaliation for peaceful, nondisruptive 
opposition to practices which they reasonably believe to be dis­
criminatory. Berg, supra, 612 F.2d at 1045-46? Sias, supra, 588 

F.2d at 695-96? Novotny, supra, 584 F.2d at 1260-62? Hearn v. R.R. 

Donnelley & Sons Co., 460 F.Supp. 546, 548 (N.D. 111. 1978)? Hearth

- 20 -



v. Metropolitan Transit Commission, 436 F.Supp. 685, 688-89 (D.

Minn. 1977) .
It is also well settled that 42 U.S.G. § 1981, like § 704(a) 

of Title VII, protects employees who seek to improve the conditions 

of their work place through informal methods as well as through 

formal legal proceedings. See Hearn v. R.R. Donnelley & Sons Co., 
supra, 460 F.Supp. at 548. The substantive protection from retali­
ation afforded by § 1981 is essentially the same as that afforded 

by Title VII. See, e.g., Winston v. Lear-Siegler, Inc., 558 F.2d 
1266 (6th Cir. 1977); DeMatteis v. Eastman Kodak Co., 511 F.2d 306, 

modified on other grounds, 520 F.2d 409 (2d Cir. 1975).
In the case at bar,-the district court found that Baker and 

Arnold were demoted primarily because Baker had accused his lieuten­

ant "of playing favorites and of being racially biased," and because 
they had shown an "inability to follow direct commands" and "more

6/ Plaintiffs demonstrate in Section II, infra, that this finding 
is not supported by the record and should therefore be set aside 
as clearly erroneous. Even if this finding were accepted at face 
value, however, it would not legitimize the demotion of Detectives 
Baker and Arnold. It is clear from the court's opinion that the 
trial judge regarded the plaintiffs' alleged inability to follow 
orders as, at best, a secondary reason for the action taken against 
them. The primary reason, the court found, was that they had made 
complaints to their supervisors of favoritism, partiality, and 
racial discrimination. Opinion at 5. The evidence shows that, in 
the absence of these complaints, the plaintiffs would not have been 
demoted. Thus, their alleged inability to follow orders, even if 
proved, could not be considered as an independent justification for 
their demotion. See Womack v. Munson, supra, 619 F.2d at 1297 and 
n. 7.

- 21-



importantly, had expressed their lack of trust in the impartiality 

of the chain of command." Opinion at 5. The complaints of favor­

itism, partiality, and racial discrimination were made in Baker's 

letter of January 9, 1980, to Chief Helm (PX 7), and in Baker’s 
and Arnold's subsequent discussions of the letter with their com­

manding officers. Tr. Vol. I, at 63-64 (Baker), 235-36 (Arnold); 
Vol.II, at 38-40 (Arnold); Vol. Ill, at 7-9 (Arnold). The district 

court concluded that, by calling these problems to the attention of 

their supervisors and by seeking to resolve these problems through 

informal means, Baker and Arnold provided the defendants with a

"legitimate nondiscriminatory reason" to demote them. Opinion at2/5. This conclusion is at odds with the language and purpose of 

the "opposition" clause of § 704(a) of Title VII, and it is contrary 

to the decisions interpreting both that provision and 42 U.S.C.

§ 1981.
The congressional purpose underlying Title VII is to elimi­

nate unlawful discrimination in employment. "Cooperation and volun-

7/ Since this conclusion depends upon the application of legal 
standards and not upon the resolution of contested factual ques­
tions, the clearly erroneous rule does not apply. Therefore, this 
Court must make an independent determination of whether the defend­
ants demonstrated a legitimate nondiscriminatory reason for demoting 
the plaintiffs. See Senter v. General Motors Corp., 532 F.2d 511, 
526 (6th Cir.), cert, denied, 429 U.S. 870 (1976); Swint v. Pullman 
Standard, 624 F . 2d 525, 533 n.6 (5th Cir. 1980).

- 22-



tary compliance were selected as the preferred means for achieving 
this goal." Alexander v. Gardner-Denver Co., 415 U.S. 36, 44 (1974). 
Section 704(a) serves this congressional objective by protecting 
employees from retaliation because they have "opposed any practice, 
made an unlawful employment practice by this title ...." 42 U.S.C.
§ 2000e-3(a). The district court's decision, on the other hand 
ignores the language and frustrates the purpose of Title VII by 
authorizing employers to punish employees who advise their super­
visors of discriminatory treatment and who seek to eliminate such 
discrimination through informal means. The district court erred 
in holding that Title VII and § 1981 permit the punishment of em­
ployees for engaging in conduct which Congress plainly intended to 
protect and encourage. See pp. 19-21, supra.

C. The District Court Erred as a Matter of Law in 
Holding that an.Employer May Lawfully Retaliate 
Against an Employee Because he has Supported a 
Co-worker's Claim of Discriminatory Treatment.

Although the district court treated the two plaintiffs' 
claims as if they were identical, the conduct for which Arnold was 
punished differed in significant respects from that of Baker. Un­
like his black partner, Arnold had not filed any formal charges 
of discrimination and had not written any letter of complaint 
to his commanding officers. When he was interviewed by Major 
Minter on January 16, 1980, he refused to confirm or deny Baker's 
allegations of racial discrimination (Tr. Vol. I, at 235-36); he

-23-



merely stated that "the incidents in the letter spoke for them­

selves." Tr. Vol. II, at 38. Only after he had already been 

demoted and had nothing more to fear did he tell Minter that he 

believed Baker's allegations were true. Id. at 38-40; Vol. Ill, 

at 7-9.
Thus, contrary to the district court's finding, Arnold was 

not demoted because he personally complained of favoritism, partial 
ity, or racial bias, but rather because he refused to discredit the 

complaints made by Baker. As this court held in Winston v. Lear- 

Siegler, Inc.., supra, 558 F.2d at 1268-70, it is a violation of 

42 U.S.C. § 1981 for an employer to punish a white employee for 

supporting a black co-worker's claim of discriminatory treatment.
This Court's decision in Winston has been followed in the district

2/courts, and it is consistent with other appellate decisions under 
both § 1981 and § 704(a) of Title VII. See DeMatteis v. Eastman 

Kodak Co., supra, 511 F.2d at 312 (employer's punishment of a white 

employee for selling his home to a black co-worker violates § 1981) 

Novotny v. Great American Federal Savings & Loan Ass'n, supra, 584 
F.2d at 1262 (discharge of a male employee for reasonable opposi­

tion to employer's alleged discrimination against a female employee

8/ See Ragheb v. Blue Cross & Blue Shield of Michigan. 467 F.Supp.. 
94, 95 (E.D. Mich. 1979); Liotta v. National Force Co.. 473 F.Supp. 
1139, 1145-46 (W.D. Pa. 1979); National Organization for Women v . 
Sperry Rand Corp., 457 F.Supp. 1338, 1346 (D. Conn. 1978); Garcia
v. Rush-Presbyterian-St. Luke's Medical Center, 80 F.R.D. 254, 265- 
66 (N.D. 111. 1978).

-24-



violates § 704 (a)); Eichman v. Indiana State University Board of 
Trustees, 597 F.2d 1104, 1107 (7th Cir. 1979) (failure to reappoint 
a male faculty member because he assisted a female faculty member 

in pursuing discrimination claims violates § 704(a)); Federoff v . 
Walden, 17 FEP Cases 91, 96-97 (S.D. Ohio 1978) (discharge of 

employee for supporting co-worker's charge violates § 704(a)).

These decisions recognize the principle that a white employee 

at times may be the only effective adversary of unlawful discrimina­
tion against minorities, and that to permit the punishment of such 
an employee will result in the perpetuation of discrimination.

See Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 237 (1969). 
The court below ignored this principle, and its conclusion that 

the defendants demonstrated a legitimate nondiscriminatory reason 
for demoting Arnold is therefore in error.

-25-



II. THE DISTRICT COURT BASED ITS DECISION ON
CLEARLY ERRONEOUS FINDINGS OF FACT.

After reaching the erroneous legal conclusion that the 
defendants1 asserted reasons for demoting Baker and Arnold 
were legitimate and nondiscriminatory, the district court 
recited four numbered findings of fact which, it said, proved 
that these reasons were not a pretext for unlawful discrimina­
tion or retaliation. Opinion at 5-6. As set forth below, each 
of these findings is clearly erroneous and should therefore be 
set aside.

1. The district court found that "[t]he oral reprimand 
which was administered to Baker for failing to be present at 
a detail [on New Year's Eve], was not administered to Arnold. 
That reprimand happened to be administered to Baker alone, 
since Arnold was not present and the reprimand was meant to 
be conveyed to Anold [sic], since he and Baker acted as a 
team." Opinion at 5.

The record shows that Detectives Baker and Arnold were 
both present when Sgt. Brodt called Baker into his office 
and reprimanded him for failing to appear at a detail on 
New Year's Eve. Tr. Vol. I, at 232 (Arnold). On New Year's 
Eve, both Baker and Arnold had been on vacation; their vaca­
tion requests had been approved by Sgt. Brodt himself. Id; 
Tr. Vol. I, at 41-43 (Baker). But when Arnold asked Brodt if 
he should come into the office with Baker, Brodt replied that 
he did not want Arnold to be there, and he did not reprimand

-26-



Arnold. Tr. Vol. I, at 232 (Arnold); see also, Tr. Vol. IV, 
at 135-36 (Brodt). The district court's finding to the con­
trary is clearly erroneous.

2. The district court found that "[i]t appeared with­
out question that Lt. Whalin did not allow any officers to 
hang any degrees or any other matters in the area under his 
command." Opinion at 5. But Sgt. Brodt, testifying for the 
defendants, admitted that when he came into Whalin's unit in 
October or November of 1979, there were things hanging on the 
walls in the squad rooms. Tr. Vol. IV, at 146-47. This 
occurred long after July of 1979, when Lt. Whalin had told 
Detective Baker that he was no longer permitted to hang his 
Doctor of Divinity degree on the wall. Tr. Vol. I, at 30-33 
(Baker).

3. The court found as follows: "Baker alleged that he 
had been called a 'nigger' by fellow officers from the Police 
Force, but stated that many of the occasions were in a joking 
mood. He and Arnold were able to identify only one person, 
Detective Wright, whom they claimed used the word in a serious 
and biased manner and they showed no relationship between 
Detective Wright and the chain of command in which they were 
involved." Opinion at 6.

Baker did in fact testify that Detective Jack Wright 
called him a "nigger" to his face after he filed his EEOC 
charge in April 1979. Tr. Vol. I, at 20-21. Baker never

-27-



testified that he was called "nigger" in a joking mood. See 
Tr. Vol. I, at 22-23.

Arnold testified that he frequently heard other officers 
call Baker names and make derogatory comments about Baker's 
race. Tr. Vol. I, at 206-208. He often heard statements 
about "niggers" and other racial slurs made in the presence 
of Chief Helm, Lt. Whalin, and other commanding officers, but 
no one was ever reprimanded for this conduct. Tr. Vol. II, at 
69-70; Vol. Ill, at 1. Arnold believed that some of these 
statements were made "in a joking manner" but others were 
meant to be taken seriously. Tr. Vol. I, at 207; Vol. II, at 70. 
In September 1977, Arnold's immediate supervisor, Sgt. Flowers, 
asked him if he would have any objections to riding with a 
"nigger." When Arnold replied that he had no objections,
Flowers said, "then Charlie is your nigger. You've got him 
..." Tr. Vol. Ill, at 1-2.

It was not Detective Baker, as found by the court, but 
rather Detective Ronald Pike, the white president of the 
Fraternal Order of Police, who testified that in his opinion 
racial epithets were used in the department in a "joking 
manner." Tr. Vol. Ill, 61. He also testified that he himself 
had made racial slurs, that he had heard racial slurs made by 
commanding officers and in the presence of commanding officers, 
and that neither he nor any other officer had been reprimanded 
for this conduct. Tr. Vol. Ill, at 61, 69-70.

-28-



4. The court found that "Baker and Arnold made refer­
ences to some members of the Police Force being members of
Ku Klux Klan but were unable to identify any particular officer 
as a member." Opinion at 6. The record shows, however, that 
Detective Baker and Detective Bruce White testified that there 
were members of the Klan in the Police Department. Tr. Vol.
I, at 63 ; Vol. Ill, at 89. Baker was never asked to identify 
any of these officers. White testified that he did not know 
their names but he knew some faces. Tr. Vol. Ill, at 100.

In addition to the four clearly erroneous findings dis­
cussed above, the district court also clearly erred in making 
the following findings of fact:

5. The court found that "Baker specifically addressed 
a letter to Col. Helm in July, 1979, praising him for the 
objective and racially fair manner in which he had run the 
Police Force." Opinion at 6. In fact, the subject of the 
letter (DX 2) is limited to the discharge of one officer:
"The action taken by yourself as Chief of this department
in reference to Officer M. Jones has received my full support 
and the support of the many other Black Officers." Id. at 
1. The letter does not praise Chief Helm for being "objec­
tive and racially fair" in his overall operation of the 
police force (Opinion at 6), but refers only to the Chief's 
handling of the Jones incident. Tr. Vol. I, at 96, 98-99 
(Baker).

-29-



6. The district court found as follows: "During 
December, 1979, plaintiffs were engaged in detective work in 
an area where Detective Michael Doughty was the beat detective. 
The weight of the evidence is that they had been instructed by 
Sgt. Brodt, their superior officer, to keep in touch with 
Doughty as to all events which transpired with regard to the 
break in which they were investigating in his area. They 
failed to do this and were called on the carpet by Lt. Whalin 
and Sgt. Brodt on January 6, 1980. Lt. Whalin and Sgt. Brodt 
found fault with Detectives Baker and Arnold for the manner 
in which they had handled the matter and for their failure to 
communicate with Doughty as per instructions." Opinion at 2.

The record does not show that Baker and Arnold were told 
"to keep in touch with Doughty as to all events which transpired 
with regard to the break in ...." Opinion at 2. Rather, the 
record shows that Sgt. Brodt told Detectives Baker and Arnold 
to notify the detective assigned to a particular beat before 
making any arrests on that beat, and to include that detective 
in any such arrests. Tr. Vol. I, at 43-44 (Baker), at 226 
(Arnold).

When Baker and Arnold began investigating the Norfolk 
Apartment burglaries in December 1979, they believed that 
the suspects had committed crimes on Detective Doughty's 
beat, and accordingly they gave Doughty leads, suggestions, 
and photographs to assist him in investigating the burglaries. 
Tr. Vol. IV, at 136-37 (Brodt); Vol. I, at 222-24 (Arnold).

-30-



When Baker and Arnold learned through their investigation that 
the suspects had committed crimes on Detective Bruce White's 
beat and not on Detective Doughty's beat, they then assisted 
Detective White, in accordance with their instructions. Tr. Vol. 
I, at 43-48 (Baker), at 226-28 (Arnold). See pp. 8-9, supra. 
The court below clearly erred in finding that Baker and Arnold 
failed "to communicate with Doughty as per insturctions."
Opinion at 2.

7. The district court found that "plaintiff Baker, 
despite the fact that no action had been taken against him 
[following the Doughty incident], proceeded to write a five- 
page letter to Col. Helm ...." Opinion at 2-3.

The record shows that action had been taken against 
Detective Baker before he wrote his letter of January 9, 1980, 
to Chief Helm. On January 2, Sgt. Brodt reprimanded Baker 
for failing to appear at a detail on New Year's Eve, when he 
had been on a vacation approved by Sgt. Brodt himself. Tr.
Vol. IV, at 135-36 (Brodt); Vol. I, at 41-43 (Baker); Vol. I, 
at 231-34 (Arnold). In addition, on January 7 both Baker and 
Arnold were orally reprimanded by Lt. Whalin and Sgt. Brodt 
for allegedly failing to follow instructions regarding 
Detective Doughty. Tr. Vol. IV, at 137-40 (Brodt); Vol. I, 
at 43-45 (Baker); Vol. I, at 226-28 (Arnold).

8. The district court found that " [a]11 witnesses who 
testified attested to their [i.e., Baker's and Arnold's] out­
standing ability in the field of detective work, but the

-31-



weight of the evidence also was to the effect that they had 
some problems in cooperating with detectives on the beat ...." 
Opinion at 1-2. However, all of the detectives who testified, 
including one detective called by the defendants, stated that 
Baker and Arnold had been helpful and cooperative at all 
times.

Detective Bruce White testified that he had always enjoyed 
a good working relationship with Detectives Baker and Arnold, 
and that Baker had assisted him in developing informants on 
his beat. White further testified that Baker and Arnold were 
regarded highly by the rank-and-file in the Police Department. 
Tr. Vol. Ill, at 81-83. Contrary to the testimony of Major 
Minter regarding Detective White (Tr. Vol. Ill, at 51), White 
himself denied that he had experienced any friction with Baker 
and Arnold. Tr. Vol. Ill, at 83-84.

Detective Ronald Pike, the president of the local lodge 
of the Fraternal Order of Police, testified that he had worked 
with both Detective Baker and Detective Arnond, and that he 
had found them to be cooperative. He had not heard any 
criticism of them from other detectives or commanding officers 
in the Department. He testified that both Baker and Arnold had 
always performed in a professional manner wherever they were 
assigned. Tr. Vol. Ill, at 60-61.

Detective Jerry Hall also testified that Baker and Arnold 
had worked well with him in the past. Tr. Vol. V, at 12, 14.
He stated that Arnold had readily accompanied him on a lengthy

-32-



surveillance detail in October 1979, even though Arnold was 
suffering from an injury sustained the prior weekend and was 
scheduled to be off duty at that time. Id. at 17. Detective 
Hall had "never seen anything but cooperation from Detective 
Arnold or Detective Baker either one," and he had "never asked 
them to do anything they haven 11 done . . . . " Id.. at 12 .

Detective Garland Conway testified that his experience 
with Baker and Arnold had been positive and that he had en­
countered no difficulties in working with them. Tr. Vol. V, 
at 5, 8.

Detective Joe Carter, a defense witness, testified that 
on one occasion he had made a complaint about the plaintiffs 1 
participation in an investigation. But on cross-examination 
he admitted that Baker and Arnold were helpful, and that the 
problem in that one case might have been due to his own lack 
of experience. Furthermore, he testified that Baker's and 
Arnold's assistance helped him solve the case. Tr. Vol. IV, 
at 163-66.

Michael Doughty, a detective with whom Baker and Arnold 
were said to have encountered difficulties, was not called as 
a witness although defendants' counsel made repeated references 
to him and to an alleged lack of cooperation with him. Thus, 
the district court clearly erred in finding that Baker and 
Arnold had problems in cooperating with detectives on the beat.

-33-



Since a review of the evidence leaves "the definite and 
firm conviction that a mistake has been committed," the fore­
going findings of fact are clearly erroneous and should be set 
aside. United States v. United States Gypsum Co., 333 U.S. 
364, 395 (1948); Swint v. Pullman-Standard, 624 F.2d 525, 533 
n. 6 (5th Cir. 1980); Rule 52(a), Fed. R. Civ. P.

-34-



III. THE DISTRICT COURT ABUSED ITS DISCRETION IN
DENYING THE MOTION FOR A PRELIMINARY INJUNC­
TION.

Under Rule 65, Fed. R. Civ. P., as interpreted by 
this Court in Mason County Medical Ass'n v. Knebel, 563 
F.2d 256, 261 (6th Cir. 1977), a preliminary injunction 
should be granted where: (1)the plaintiffs have shown a sub­
stantial probability of success on the merits; (2) the 
plaintiffs have shown irreparable injury; (3) the injunc­
tion would not cause substantial harm to others; and (4) 
the injunction would serve the public interest. See also, 
Federoff v. Walden, 17 FEP Cases 91, 96-97 (S.D. Ohio 1978). 
In retaliation cases under Title VII and § 1981, some courts 
have adopted a less demanding standard, holding that a pre­
liminary injunction should issue

"... upon a clear showing of either (1) probable 
success on the merits and possible irreparable 
injury, or (2) sufficiently serious questions 
going to the merits to make them a fair ground 
for litigation and a balance of hardships tipping 
decidedly toward the party requesting the pre­
liminary relief."

Aguirre v. Chula Vista Sanitary Service, Inc., supra, 542 
F.2d at 781 (emphasis in original), quoting Gresham v. 
Chambers, 501 F.2d 687, 691 (2d Cir. 1974). Under either 
the Mason standard or the Aguirre standard, the district 
court here abused its discretion in refusing to grant plain­
tiffs the protection of a preliminary injunction.

-35-



The court below denied the motion for a preliminary- 
injunction on the ground that plaintiffs failed to show a 
substantial chance of success on the merits. Opinion at 
7. As demonstrated above, this conclusion was based on 
the district court's misconstruction of Title VII and § 1981 
(see Section I, supra) and on a series of clearly erroneous 
findings of fact (see Section II, supra). The foregoing 
sections of this brief show that, on a correct view of the 
law and the facts, the plaintiffs not only raised serious 
questions requiring litigation (Aguirre, supra) but they 
also established a substantial probability of success on 
the merits of their retaliation claims (Mason, supra).

Having erroneously concluded that the plaintiffs had 
little chance of success on the merits, the district court 
failed to determine whether the plaintiffs had established 
irreparable injury, whether an injunction would cause any 
substantial harm to others, or whether an injunction would 
serve the public interest. The record shows that, on all 
of these counts, the plaintiffs satisfied, the requirements 
for obtaining a preliminary injunction.

The demotion of plaintiffs Baker and Arnold to uniformed 
patrol positions not only deprived them of extra wages they 
would have earned as detectives, but also caused them to 
lose status and! prestige within the Police Department. See 
Opinion at 3. The demotion also deprived them of the use of 
unmarked cars, the privilege of flexible working hours, and

other non-monetary benefits and privileges, and it damaged

b -36-



their professional reputations and their ability to perform 
as detectives in the future by depriving them of the confi­
dence of contacts and informants they had developed through 
years of work as detectives. See pp. 12-13, supra. It 
is now impossible to fully remedy these injuries.

Moreover, "[i]ndependently of the threat to [the plain­
tiffs'] employment future, there is irreparable damage done 
to the administrative process if other employees feel that 
their positions are in jeopardy if they cooperate with 
agency investigations." Federoff v. Walden, supra, 17 FEP 
Cases at 96-97. There is direct evidence of such irreparable 
damage in the instant case. Bruce White, another black de­
tective, testified that he had considered joining Baker in 
filing a charge of discrimination, but he decided against 
it because he feared that such action would be met by re­
taliation. Tr. Vol. Ill, at 86-87. After the court granted 
a temporary restraining order to Baker and Arnold, Detective 
White agreed to testify on their behalf. When asked at the 
hearing why he previously had been afraid to file a charge 
of discrimination but now was willing to testify in open 
court, he answered as follows (id. at 89):

Well, maybe the Court could probably grant 
me some sort of protection, not that I am going 
to be physically harmed or something like that; 
but as far as shift to uniform or late shift or 
radio room or something like that, that worried 
me. I think it worried —  it's worried a lot 
of people that have testified. It's probably 
... the biggest worry of anybody that will come in, 
the fact that you might get transferred or some­
thing like that.

-37-



Detective White and other officers were willing to testify 
for the plaintiffs because they had some reason to believe 
the court would protect them from retaliation. The removal 
of that protection irreparably damaged the integrity and 
effectiveness of the legal process.

There is ample evidence in the record that a preliminary 
injunction protecting Baker and Arnold from retaliatory de­
motion would not have caused any substantial harm to others.
As the district court acknowledged, they had "outstanding 
ability in the field of detective work ... . " Opinion at 
1-2. There is no substantial evidence that they were un­
cooperative toward other detectives; the great weight of 
the evidence is to the contrary. See Section II, supra.
Their personnel files contained many commendations and no 
serious reprimands. PX 11, 18. Their performance in the 
burglary intelligence unit was rated highly by the independent 
Criminal Justice Commission- Tr. vol. IV, at 206-207 (Bewley). 
Thus, a preliminary injunction requiring that Baker and Arnold 
be permitted to remain as detectives pending the outcome of 
the lawsuit would not have caused any harm to others but, on 
the contrary, would have preserved their considerable skills 
as detectives and would have assured the continued use of 
those skills for the benefit of the citizens of Jefferson 
County.

Finally, "the public interest would be served by an 
injunctive order which protects the process designed by 
Congress to attack employment discrimination in this country."

-38-



Federoff v. Walden, supra, 17 FEP Cases at 97. The district 
court's decision in this case has not served the public interest; 
rather, it has sanctioned retaliation against employees who 
oppose discriminatory practices and who seek to correct those 
practices, either through congressionally authorized informal 
means or through the formal administrative and judicial pro­
cess. Few employees will be so courageous —  or so foolhardy 
—  as to ignore this warning from the district court. Many 
employees who believe they have been victimized by unlawful 
discrimination, and others who might wish to support their 
claims, now will remain silent rather than risk their jobs 
to assert their rights. The preliminary injunction requested 
by plaintiffs, on the other hand, would have served the public 
interest by protecting the process established by Congress 
for the peaceful and fair resolution of employment discrimina­
tion claims.

Since the plaintiffs satisfied all the applicable require­
ments, the district court abused its discretion in denying 
their motion for a preliminary injunction. On remand, the 
district court therefore should be directed to enter an appro­
priate preliminary injunction.. See Aguirre v. Chula Vista 
Sanitary Service, Inc., supra, 542 F.2d at 781.

-39-



Conclusion

For the foregoing reasons, the district court's order 
dissolving the temporary restraining order and denying the 
motion for a preliminary injunction should be reversed, and 
the case should be remanded for the entry of appropriate 
injunctive relief pending a final decision on the merits.

Respectfully submitted.

JUANITA LOGAN CHRISTIAN 7 
Suite 490
730 West Main Street 
Louisville, Kentucky 40202 
(502) 587-8.091

JACK GREENBERG 
PATRICK 0. PATTERSON 

Suite 2030 
10 Columbus Circle 
New York, New York 10019 
(212) 586-8397

Counsel for Plaintiffs-Appellants

-40-



Addendum

§ 704(a), Title VII of the Civil Rights Act of 1964, as 
amended, 42 U.S.C. § 2000e-3(a):

It shall be an unlawful employment 
practice for an employer to discriminate 
against any of his employees or applicants 
for employment, for an employment agency, 
or joint labor-management committee con­
trolling apprenticeship or other training 
or retraining, including on-the-job train­
ing programs, to discriminate against any 
individual, or for a labor organization to 
discriminate against any member thereof or 
applicant for membership, because he has 
opposed any practice, made an unlawful 
employment practice by this title, or be­
cause he has made a charge, testified, 
assisted, or participated in any manner 
in an investigation, proceeding, or hearing 
under this title.

Civil Rights Act of 1866, 42 U.S.C. § 1981:
All persons within the jurisdiction 

of the United States shall have the same 
right in every State and Territory to 
make and enforce contracts, to sue, be 
parties, give evidence, and to the full 
and equal benefit of all laws and proceed­
ings for the security of persons and pro­
perty as is enjoyed by white citizens, and 
shall be subject to like punishment, pains, 
penalties, taxes, licenses, and exactions 
of every kind, and to no other.

-41-



CERTIFICATE OF SERVICE

I certify that two copies of the foregoing brief 
for plaintiffs-appellants were served on this date by 
United States mail, first class postage prepaid, addressed 
to William L. Hoge, III, Assistant County Attorney, 1112 
Kentucky Home Life Building, Louisville, Kentucky 40202.

Dated: November 14, 1980

Patrick 0. Patterson



1