## Facts

- Charles Payne, a Black employee, worked for McLemore’s Wholesale & Retail Stores in Winnsboro, Louisiana, beginning around 1966.
- The employer’s business was seasonal; Payne was typically laid off for several months each year and rehired when business increased.
- In November 1970, Payne was laid off during the seasonal downturn.
- About a month later, Payne participated in a boycott and picketing directed at the employer to protest alleged racial discrimination in hiring and promotion.
- McLemore’s knew of Payne’s participation in the protest activity.
- Evidence supported that Payne’s belief in discriminatory practices was reasonable, including evidence that the employer failed to hire or promote Black workers into certain positions.
- After the boycott and picketing, McLemore’s did not rehire Payne when business improved, unlike prior seasons.
- McLemore’s asserted it did not rehire Payne because he never reapplied for work; Payne contended this was inconsistent with the employer’s prior rehire practice and was retaliation for his protest activity.

## Issues

1. Whether an employee’s participation in a boycott and picketing opposing perceived race discrimination constitutes protected “opposition” activity under Title VII § 704(a).
2. Whether the district court clearly erred in finding retaliatory causation and in rejecting the employer’s stated reason for non-rehire (failure to reapply) as pretext.

## Decision

- The Fifth Circuit affirmed the district court’s judgment for Payne.
- The court held Payne’s boycott and picketing qualified as protected opposition under § 704(a) because they were based on a reasonable, good-faith belief that the employer engaged in unlawful employment practices.
- The court upheld the finding that the failure to rehire was retaliatory and that the “failure to reapply” explanation was pretextual.
- The remedies awarded by the district court, including back pay, costs, and attorney’s fees, remained in effect.

## Legal Principles

- Title VII § 704(a) protects employees who oppose practices they reasonably and in good faith believe are unlawful under Title VII; protected opposition can include boycott and picketing aimed at discriminatory hiring or promotion.
- A retaliation claim may be proven through a prima facie showing that protected activity was a cause of an adverse action, including a departure from an established pattern of seasonal rehiring following known protest activity.
- Once an employer articulates a non-retaliatory reason, the factfinder may find retaliation if the proffered reason is not credible and is pretext for retaliation.
- Appellate review of retaliation and pretext findings after a bench trial is deferential; factual determinations and credibility assessments are reviewed for clear error.

## Conclusion

The Fifth Circuit affirmed liability for retaliatory failure to rehire, concluding that boycott and picketing opposing perceived discriminatory employment practices are protected under Title VII’s opposition clause when grounded in a reasonable belief, and that the district court did not clearly err in finding the employer’s “no reapplication” rationale pretextual.


Payne v. McLemore’s Wholesale & Retail Stores, 654 F.2d 1130 (5th Cir. 1981)