Full opinion text
MEMORANDUM OPINION JUSTICE, Chief Judge. Introduction There are 254 counties in Texas; Panola County is the only one not served by the Texas Agricultura Extension Service.1 The events which led to this curious situation are in issue in this civil action. The plaintiff, Harold Wells, a black man, is a former employee of the Texas Agricultural Extension Service (“TAES”). Wells worked in Panola County, Texas, as a TAES employee, from October 1964 through 1974. Two groups of defendants are present in this civil action, the state defendants and the county defendants. The state defendants include the Texas Agricultural Extension Service and its former director, John Hutchinson. The county defendants include Panola County, its governing body, the Commissioners Court of Panola County, and the individual members of the Court, Commissioners Ford, Brooks, Rich, and Davis, and Danny Buck Davidson, the County Judge of Panola County. Plaintiff contends that, throughout his employment, he was the victim of impermissible racial discrimination. Wells asserts that defendants: (1) maintained a segregated employment environment; (2) discriminated against him in his job assignment, assignment of responsibilities, and promotion; (3) paid him a lesser salary than white workers because he was black; and (4) discharged him because of formal and informal allegations of racial discrimination that he made against his employers. Wells bases his employment discrimination claims on Title VII of the 1964 Civil Rights Act, 42 U.S.C. §§ 2000e to 2000e-5, the Civil Rights Act of 1870, 42 U.S.C. § 1981, and the Civil Rights Act of 1871, 42 U.S.C. § 1983. The defendants severally deny all of Wells’ claims of racial discriminátion. I. TAES IN TEXAS AND PANOLA COUNTY As a prelude to discussion of plaintiff’s claims, it is important to describe the nature of the Texas Agricultural Extension Service. TAES is a cooperative extension service, operating on funds received from the federal government, the state of Texas, and the county government of each county within which it operates. TAES’s roots can be traced to the Smith-Lever Act of 1914, 38 Stat. 372, 7 U.S.C. § 341 et seq., in which Congress provided for partial federal funding of state agricultural extension services. The federal funds were channeled through the United States Department of Agriculture to the state extension services, who were expected to work in cooperation with the Department. Congress contemplated that these federal funds were to go to the land grant college selected by the legislature in a particular state, to be used to disseminate “useful and practical information on subjects relating to agriculture and home economics.” Prompted by the federal legislation, the Texas legislature passed a resolution in 1915 which created the Texas Agricultural Service. Consonant with the federal enabling statute and its educational mission, TAES was established as, and continues to be, a part of Texas A&M University. The principal offices of TAES are located at the University including the offices of TAES’s director. The Director is at the head of TAES’s organization, reporting to the President of Texas A&M University through the Dean of Agriculture. Defendant Hutchinson served as Director of TAES throughout all of the years that plaintiff was employed by TAES. Below the state level, TAES is organized into districts. Each district is supervised by a district agent, who oversees extension work in the counties which comprise the district. Each county within a district is served by several TAES employees. Principally, these include county agricultural extension agents and county home demonstration extension agents. This civil action focuses almost exclusively on the agricultural extension component of the county extension services. It is the duty of agricultural extension agents to inform and advise county residents, inter alia, as to the best methods for raising livestock, growing crops, raising timber, and conducting other activities associated with farm and ranch industries. To this end, they also supervise youth clubs designed to impart such information. Similarly, agricultural agents visit citizens in their homes and at their farms and ranches, speak to citizens at public meetings, and communicate information through the communications media. County agricultural agents maintain offices, which citizens may visit to obtain answers to such questions as they might have. In essence, the agricultural agents are informational links between the universities, where new concepts and methods are developed, and the persons in the field who can ultimately implement those concepts. Shortly after the creation of TAES in 1915, the Texas legislature created a Negro Agricultural Extension Service. This all-black extension service was maintained until the passage of the Civil Rights Act of 1964. The black and white extension services were entirely segregated, with the black services operating completely parallel to the equivalent white components. The black service employed only black personnel, served only black residents of Texas, and operated out of an all-black university, Prairie View A&M University in Prairie View, Texas, which is a component of the Texas A&M University. The white extension service consisted only of white personnel, operated out of an all-white university, and served only white Texas residents. The sole overlap between the two “separate but equal” services occurred when the state leader for the black service reported to the TAES director located at College Station, Texas. Harold Wells entered the TAES system in April 1963, when he interviewed with Reuben A. Sanders, Negro District Agent, to obtain a position with the black extension service. Thus, the dual system described above was the system which Wells entered, when Sanders hired him to be a junior assistant agricultural agent in Harrison County, Texas. The Harrison County position was merely a training position. In October 1964, Wells became Negro assistant county agent in Panola County. In a short while, he advanced to the position of Negro county agent for Panola County. Panola County’s white extension agent at the time was Alfred Croix. Wells operated the black extension service out of offices in an all-black local school; Croix’s office, and the offices of the white extension service, were located in the Panola County courthouse. It is noteworthy that the white extension service in Panola County had a full-time secretary and a janitor, whereas the black service was not provided these positions. The salaries of the secretary and janitor for the white service in Panola County were paid by Panola County; no similar contribution was made to the black service. As a cooperative extension service, operating with federal, state, and county funds, every extension agent’s salary is comprised of contributions from all three levels of government. Each of these governmental units made lower contributions to Wells’ salary than to the white county agent. Wells’ total salary was, therefore, lower than the total salary of Alfred Croix, the white agent. Although Wells and Croix performed essentially identical duties as county agent, TAES and Panola County attempted to justify the salary disparity by reference to the number of residents that each agent served, i. e., there were more white than black residents in Panola County. It was asserted that this difference created a difference in the amount of work required of white and black agents, thereby justifying the salary disparity. The situation which prevailed in Panola Coúnty, Texas, was present in all Texas counties in which both a white and a black extension service operated. Counties with black populations considered to be insignificant had no black county agent. Because most counties with large black populations were located in the eastern portion of Texas, the black extension service was concentrated there. In every county with a black agent, he was paid less than his white counterpart. A justification paralleling Panola County’s was offered by all such counties as to these marked salary disparities. In sum, black extension work across the state of Texas was segregated from white extension work, and all black agents received significantly lower salaries than did their white counterparts performing the same duties. Shortly after Wells became Negro county agent, his title — and the title of all Negro county agents in Texas — was changed to associate county agent. The only change was in the title, for all job responsibilities remained the same. The black and white services remained segregated. No Negro county agent became a county agent, because the latter job was for a white man. Hence “associate agent” became the virtual title for black extension agents. All black agents were associate agents, and only a very small handful of white agents had the title of associate agent (usually temporarily, pending promotion). Associate agents continued to receive lower total salaries and lower contributions from each of the three governmental levels than did their white counterparts. As a direct result of the Civil Rights Act of 1964 and the consequent pressure from the United States Department of Agriculture, the Texas Agricultural Extension Service began to merge the white and black extension services in 1965. The abolition of dual lines of supervision and administration was the first step. As a practical matter, the Negro extension service disappeared and was absorbed into the white extension service. The Prairie View A&M extension facilities were abolished, and all extension service activity was directed through Texas A&M University. As was the case in most counties, the black extension offices in Panola County disappeared. Wells moved his office from the all-black school to the Panola County Courthouse. After the merger, it could be said that only one extension service operated in Texas. However, black agent jobs and white agent jobs still existed, black agents being called “associate agents” and white agents being called “county agents.” An agent’s niche in this system was determined by his race. Salaries were similarly determined. Each governmental entity continued to contribute less to black than to white agents. One more change occurred in TAES’s organization, after the merger of the black and white services. This encompassed the creation of the new positions of “county chairman” and “county program leader” in each Texas county. No black agent received either title. All county chairmen and county program leaders were white and were drawn from the corps of all-white county agents. In Panola County, Alfred Croix was designated county chairman and county program leader. Wells continued in his position as associate agent, drawing a lower salary than his white counterpart, Alfred Croix, until 1972. As always, each governmental unit contributed less to Wells’ salary than to Croix’s salary, and Wells drew a lower total salary than did Croix. On January 15, 1972, Croix resigned from the Texas Agricultural Extension Service. From January 15,1972, until March 15, 1972, Wells performed his own duties and those formerly performed by Croix, although he continued to receive the same pay he had been receiving. At this juncture, Wells informed his supervisor of a desire to receive Croix’s title; the supervisor stated that he would look into the possibility. The members of the Commissioners Court of Panola County indicated, however, that no black person would be acceptable in the position of county agent; therefore, the extension service did not accord Wells the title. Gordon Ford, a white man, was after-wards employed to replace Alfred Croix. Ford was named county agent, county chairman, and county program leader. Ford began work at the salary that Croix had been receiving, and Wells continued to receive the same lower salary that he had been receiving. The presence of the new agent, then, changed nothing, since there continued to be a white agent’s position and title, a black agent’s position and title, and pay levels established on a racial basis. After the decision to confer Alfred Croix’s titles on Gordon Ford instead of Wells, the latter began to complain relative to his discriminatory job assignments and salary levels. On December 3, 1973, Wells filed an employment discrimination charge, against the Commissioners Court of Panola County, with the Equal Employment Opportunity Commission (“EEOC”). After these complaints and the EEOC charge, the County Commissioners decided to eliminate county funding of TAES services in Panola County. It is not clear when or how this decision was reached; it is probable, however, that it was reached prior to September 10, 1974. The applicable statutes provide that the Texas Agricultural Extension Service can operate in a particular county, only if the county contributes to the operation of the county program. Because Panola County discontinued its contribution to the operation of TAES in Panola County after December 31, 1974, the extension service program in the county was discontinued, beginning January 1, 1975. After the termination of TAES work in Panola County, both Ford and Wells became agents-at-large, employed by TAES. TAES made it clear to Wells and Ford that they would be permitted to work at full pay for ninety days as agents-at-large, but that it would be necessary that they choose a permanent position in another county. The only option given Wells and Ford was to leave the employ of the Texas Agricultural Extension Service. Ford eventually took a job as county agent in Wood County, Texas. TAES offered Wells the position of county agent in Limestone County, Texas, but he declined the offer. Similarly, he chose not to apply for positions throughout the state which were listed in TAES job vacancy announcements. Eventually, TAES informed Wells that it was compulsory that he take a job in a particular county or else resign. Because Wells would do neither, TAES terminated his employment on June 30, 1975. Finally, as a preface to a legal analyses of plaintiff’s claims, it would be useful to set forth a list of dates which will be relevant to the analyses. Event Date EEOC charge filed naming Commissioners Court 10-03-73 EEOC charge amended to include TAES 9-26-74 Civil action filed against Commissioners Court and TAES alleging Sections 1981 and 1983 violations 12-26-74 Complaint in civil action amended to include Director Hutchinson, County Judge, and Commissioners 1-15-75 Right to sue letter 2-21-75 Complaint in civil action amended to include Title VII allegations 5-02-75 II. TITLE VII FORMALITIES Plaintiff’s Title VII claims are directed against TAES and the Commissioners Court of Panola County. Although no party raised the issue of legislative immunity, it appears that the Commissioners Court and the individual commissioners benefit from an absolute legislative immunity, insulating all of these parties from lawsuits seeking equitable relief arising out of decisions made, and actions taken, by the Commissioners Court concerning Wells’ employment and the operation of TAES in Panola County. See Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980); Lake Country Estates v. Tahoe Regional Planning Agency, 440 U.S. 391, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979); Universal Amusement Co. v. Hofheinz, 616 F.2d 202, 205 (5th Cir. 1980); Green v. DeCamp, 612 F.2d 368, 371-72 (8th Cir. 1980); Rhevark v. Shaw, 477 F.Supp. 897, 921-25 (N.D.Tex.1979). Because, first, the United States Supreme Court has explicitly left open the issue of legislative immunity for county legislators and legislative bodies, Lake Country Estates v. Tahoe Regional Planning Agency, 440 U.S. 391, 404 n. 26, 99 S.Ct. 1171, 1179 n. 26, 59 L.Ed.2d 401 (1979), and second, Title VIPs amendment to include state and local employees may be said to have removed this legislative immunity for county legislative decisions resulting in employment discrimination, see Occidental Life Insurance Co. v. EEOC, 432 U.S. 355, 370 & n. 26, 97 S.Ct. 2447, 2456 & n. 26, 53 L.Ed.2d 402 (1977) (Title VII amended to include state and local employees), the applicability of absolute legislative immunity to the Panola County Commissioners Court’s defense of plaintiff’s Title VII allegations is not certain. Nevertheless, the issue of legislative immunity need not detain further analysis of plaintiff’s claims. The only manner in which Panola County can act is through its Commissioners Court; hence, a suit against the Commissioners Court is actually a suit against Panola County itself. See Monell v. Department of Social Services, 436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 2036, n. 55, 56 L.Ed.2d 611 (1978); Kingsville Independent School District v. Cooper, 611 F.2d 1109, 1112 (5th Cir. 1980); Bogard v. Cook, 586 F.2d 399, 410 (5th Cir. 1978). Cf. Gay Students Services v. Texas A&M University, 612 F.2d 160, 164 (5th Cir. 1980) (official capacity suits are actually suits against governmental entity represented by official). See also McCulloch v. Glasgow, 620 F.2d 47, 52 (5th Cir. 1980). Consequently, there is no reason that the Title VII allegations cannot be analyzed as applying to Panola County and seeking appropriate relief from the county. See Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 731, 100 S.Ct. 1967, 1974, 64 L.Ed.2d 641 (1980). Defendants contend that this court is without jurisdiction to decide the Title VII issues presented by plaintiff. These jurisdictional defenses relate to the intricate pattern of time requirements established in the Title VII framework. The most serious jurisdictional defense raised concerns the 180-day time limit within which to file an EEOC charge after an alleged discriminatory act. In order to base a court action on an alleged act of employment discrimination, an aggrieved employee must file a charge with the EEOC within 180 days of that act of employment discrimination. Crawford v. Western Electric Co., 614 F.2d 1300, 1306-09 (5th Cir. 1980); Hoffman v. Boeing, 596 F.2d 683, 685 (5th Cir. 1979); Green v. Forney Engineering Co., 589 F.2d 243, 246 (5th Cir. 1979); East v. Romine, Inc., 518 F.2d 332, 336 (5th Cir. 1976). Defendants argue that plaintiff cannot base this civil action on their failure to give him Croix’s job when it became vacant in early 1972, noting, specifically, that plaintiff filed his EEOC charge against the Commissioners Court of Panola County on December 3, 1973, about one and one-half years after Ford was awarded Croix’s position in Panola County. Based on this calculation, defendants assert that the failure to place Wells in Croix’s job, for whatever reason, cannot be judicially determined to be a Title VII violation. Defendants would be correct, had plaintiff simply alleged and proved that he continued to suffer the ill effects of a single violation of Title VII, occurring more than 180 days before the filing of his EEOC charge, United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977), for merely alleging the continued effects of a past Title VII violation does not suffice to identify an infraction which occurred during the 180-day time frame. However, plaintiff alleged much more than the mere continued effect of a past violation; he charged that he was the victim of a policy of discrimination which continued into the 180-day period. He alleges that the very structure of the extension service in Panola County was discriminatory — that his working environment was riddled with discrimination and, indeed, designed to perpetuate a dual system of extension service activity. Respecting this contention, plaintiff did not assert the mere effects of past discrimination, he maintained the existence of actual discrimination, taking the form of a dual system. Under this arrangement, plaintiff argued, he was continuously disadvantaged in promotional opportunities, the assignment of job responsibilities, and pay. In essence, his claim is, that he was paid less because he was black, and that his lower pay was justified by reference to a system whose very structure was intended to assure that black workers continued to receive lower salaries and lower positions. Such allegations allege a “continuing violation” of Title VII and satisfy Title VII’s 180-day requirement. See, e. g., Satz v. ITT Financial Corp., 619 F.2d 738, 743-44 (8th Cir. 1980); Moore v. City of San Jose, 615 F.2d 1265, 1274 (9th Cir. 1980) (“A pervasive policy of systematic discrimination is a continuing violation of Title VII.”); Fisher v. Proctor & Gamble Manufacturing Co., 613 F.2d 527, 540 (5th Cir. 1980) (“[Where an entire promotion system is challenged on the basis that it operates to hold plaintiffs ‘in lower echelons,’ the 180 day statutory period is inconsequential in determining the admissibility of prior discriminatory acts.”); Gonzales v. Firestone Tire & Rubber Co., 610 F.2d 241, 249 (5th Cir. 1980) (“Where an employee charges an employer with continuously maintaining an illegal employment practice, he may file a valid charge of discrimination based upon that illegal practice until 180 days after the last occurrence of an instance of that practice.”); Clark v. Olinkraft, Inc., 556 F.2d 1219, 1222-23 (5th Cir. 1977). See generally Dumas v. Town of Mount Vernon, 612 F.2d 974, 977-78 (5th Cir. 1980) (failure to promote usually considered continuing violation); Fowler v. Birmingham News Co., 608 F.2d 1055, 1057-58 (5th Cir. 1979); Patterson v. American Tobacco Co., 586 F.2d 300, 304 (4th Cir. 1978); Macklin v. Spector Freight Systems, Inc., 478 F.2d 979, 986-88 (D.C.Cir.1973). As another reason why the 180-day requirement has been met, plaintiff alleged that the termination of TAES operation in Panola County was done in retaliation for his informal and formal complaints of employment discrimination. This claimed retaliation occurred after Wells’ December 3, 1973, charge against the Commissioners Court of Panola County and before the amendment of the charge on September 26, 1974, so as to include TAES. The September 26th amendment occurred within 180 days of the August decision to terminate county funding of extension service activity in Panola County. Although the amendment served to bring in an additional party, it is to be noted that it also was instrumental in charging acts of discrimination occurring within 180 days of the amendment. Defendants also assert a fatal variance between plaintiff’s judicial complaint and his Title VII charge. Plaintiff’s charge before the EEOC complained of disparate pay levels between himself and white agents in Panola County. In his amended complaint in this civil action, plaintiff specifies, more particularly, allegations of discriminatory promotions, unequal pay for racial reasons, and retaliatory discharge. It has already been determined that the promotion allegation cannot serve as a basis for this Title VII cause of action; therefore, it is unnecessary to consider the variance allegation in this respect. With regard to the claims of discriminatory pay and retaliatory discharge, defendants’ contention is without merit. “[T]he ‘scope’ of the judicial complaint is limited to the ‘scope’ of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.” Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970). Plaintiff’s claim as to pay in this civil action is substantially identical to the claim presented to the EEOC for investigation and possible conciliation, because the retaliatory discharge claim is virtually inseparable from the pay claim, i. e., the basis of the first claim resulted from the assertion of the latter. Moreover, the EEOC could not have missed the retaliation claim in conducting its investigation. As will hereafter be made clear, plaintiff’s allegations of discrimination are intimately related; they cannot be compartmentalized for analysis, for each is part of a system of discrimination. Defendants were aware of plaintiff’s allegations at the time of the filing of the EEOC charge, as was the EEOC. As such, defendants will not be heard to argue that they are presently being sued for activity not subject to EEOC investigation and conciliation. See EEOC v. Brookhaven Bank & Trust Co., 614 F.2d 1022, 1025 (5th Cir. 1980); Silver v. Mohasco, 602 F.2d 1083, 1090 (2d Cir. 1979); Hicks v. ABT Associates, 572 F.2d 960, 966 (3d Cir. 1979); EEOC v. General Electric Co., 532 F.2d 359, 364-65 (4th Cir. 1976). See generally Love v. Pullman, 404 U.S. 522, 527, 92 S.Ct. 616, 619, 30 L.Ed.2d 679 (1972) (EEOC charges should not be technically construed); Gamble v. Birmingham Southern Railroad Co., 514 F.2d 678 (5th Cir. 1975); Drew v. Liberty Mutual, 480 F.2d 69 (5th Cir. 1973). Defendants TAES and the Commissioners Court of Panola County further contend that they cannot be held liable to plaintiff under Title VII, because plaintiff filed this civil action before receipt of a right-to-sue letter from the EEOC. The error in defendants’ contention lies in the fact that “this civil action” comprises a number of different causes of action. On December 26, 1974, plaintiff filed suit against TAES and the Commissioners Court of Panola County alleging causes of action pursuant to 42 U.S.C. §§ 1981 and 1983. Although defendants are correct that filing of this civil action preceded plaintiff’s receipt of his right-to-sue letter on February 21, 1975, it does not follow that plaintiff’s Title VII civil action preceded receipt of that right-to-sue letter. In fact, plaintiff amended his complaint on May 2, 1975, within ninety days after receipt of the right-to-sue letter, to include a cause of action against TAES and the Commissioners Court of Panola County pursuant to Title VII. See Hoffman v. Boeing, 596 F.2d 683, 685 (5th Cir. 1979) (“The timely filing of an administrative complaint is a condition precedent to bringing a discrimination suit under Title VII”). Because Title VII remedies are separate and distinct from other statutory remedies, a Title VII cause of action may be asserted independently of, or in sequence to, these other statutory causes of action; thus, plaintiff’s assertion of causes of action under sections 1981 and 1983 prior to receipt of a right-to-sue letter was valid, since his right to sue under those statutes was unaffected by Title VII requirements. Similarly, his filing of a Title VII cause of action was valid, by reason of the fact that it was made following receipt of a right-to-sue letter, thus being unaffected by the previous assertion of separate, independent statutory causes of action. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 461, 95 S.Ct. 1716, 1720, 44 L.Ed.2d 295 (1975) (Title VII and section 1981 remedies “are separate, distinct, and independent”). See Alexander v. Gardner-Denver Co., 415 U.S. 36, 48-49, 94 S.Ct. 1011, 1019-20, 39 L.Ed.2d 147 (1974) (Title VII remedies independent of other federal statutory remedies). TAES also argues that the EEOC invalidly issued plaintiff his right-to-sue letter on February 21, 1975, because 180 days had not elapsed since the filing of plaintiff’s amended EEOC charge against TAES on September 26, 1974. TAES is correct that receipt of a valid right-to-sue letter from the EEOC is a jurisdictional prerequisite to suit under Title VII. 42 U.S.C. § 2000e-5(f)(l). Green v. Forney Engineering Co., 589 F.2d 243, 246 (5th Cir. 1979). However, TAES is incorrect in asserting that the EEOC must await the passage of 180 days after a charge is filed before issuing a right-to-sue letter. Indeed, the express terms of Title VII indicate that a plaintiff may be entitled to receive a right-to-sue letter “within one hundred and eighty days from the filing” of his EEOC charge. 42 U.S.C. § 2000e-5(f)(1). TAES’s argument must be dismissed as unpersuasive, then, because it is based on an incorrect legal assumption. See Bryant v. California Brewers Association, 585 F.2d 421, 425 (9th Cir. 1978), vacated on other grounds, 444 U.S. 598, 100 S.Ct. 814, 63 L.Ed.2d 55 (1980); Milner v. National School of Health Technology, 409 F.Supp. 1389, 1392 (E.D.Pa.1976) (Lord, C. J.) (“The statute does not require a minimum of 180 days for conciliation; rather, it requires issuance of a right-to-sue letter within 180 days.”). Cf. Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 361, 97 S.Ct. 2447, 2452, 53 L.Ed.2d 402 (1977) (“The 180-day limitation provides only that this private right of action does not arise until 180 days after a charge has been filed.”); Brown v. GSA, 425 U.S. 820, 832, 96 S.Ct. 1961, 1967, 48 L.Ed.2d 402 (1976) (42 U.S.C. § 2000e-5(f)(1) provides that “the complainant may file a civil action if, after 180 days from the filing of the charge or the appeal, the agency .. . has not taken final action.”). Certain of the individual defendants complain that they have not been named in plaintiff’s EEOC charge and that they cannot, therefore, be defendants in plaintiff’s Title VII claim. However, these defendants have not been sued under Title VII. Hence, in this regard, nothing is presented which should further detain the analysis. Panola County lodges a similar objection. As indicated earlier, Panola County is to be considered a Title VII defendant, even though plaintiff named only the Commissioners Court in his EEOC charge and in this civil action. The fact that the county is treated as a Title VII defendant does not contravene the rule that Title VII defendants must be named in an EEOC charge, in that the county and the Commissioners Court are, for all relevant purposes, the same entity. The county undoubtedly had notice of the administrative and judicial complaints lodged by plaintiff, and it has defended against those complaints. See Tillman v. City of Boaz, 548 F.2d 592, 594 (5th Cir. 1977); Williams v. Southern Bell Telephone & Telegraph Co., 464 F.Supp. 367, 370-71 (S.D.Fla.1979); Stringer v. Commonwealth, 446 F.Supp. 704, 706 (M.D.Pa.1978). III. DISPARATE TREATMENT CLAIM In this civil action, subtle analyses of neutral employment practices with supposedly unintended discriminatory effects is not required. Nor is this a case in which intentional discrimination is “inferred from the mere fact of differences in treatment.” Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854, n. 15, 52 L.Ed.2d 396 (1977). Rather, the evidence presents a strong case of overt, deliberate, and intentional discrimination by the defendant employers against Harold Wells. Specifically, plaintiff proved that defendants’ decision to pay him less than his white counterparts was substantially motivated by consideration of race; indeed, it is unquestionable that race was the most significant factor in the decision to pay him less than whites doing corresponding work, and that, absent racial considerations, plaintiff would not have been paid less than the analogous whites. Such proof- entitles plaintiff to relief. McDonald v, Santa Fe Trail Transportation, 427 U.S. 273, 282 n. 10, 96 S.Ct. 2574, 2580, 49 L.Ed.2d 493 (1976) (other rationales for employer action are pretextual if racial factors were “but for” cause of action); Whiting v. Jackson State University, 616 F.2d 116, 121 (5th Cir. 1980) (“The forbidden taint need not be the sole basis for the action to warrant relief, but it must be a significant factor.”); Garcia v. Gloor, 609 F.2d 156, 160 (5th Cir. 1980) (violation of Title VII if forbidden reason is significant factor in employment decision); Corley v. Jackson, 566 F.2d .994, 999-1000 (5th Cir. 1980) (Title VII violated if impermissible factor significant in decision, even if permissible reasons could have justified decision). The facts produced in this lawsuit lead to one fundamental conclusion: defendants maintained in Panola County a segregated system of employment, with a white agent’s position and a black agent’s position. Job responsibility and pay levels were set accordingly, the white agent being made superior in all respects. This central reality, or basic theme, explains the pay disparity from which Harold Wells suffered for years. This two-tiered structure in Panola County began in the days of “separate-but-equal” intentional segregation, when job assignment and salary were set along racial lines. Defendants do not even deny the illegality of this historic arrangement; and despite their arguments to the contrary, it cannot be said that, while the form of the arrangement changed, the substance did not. Merger of the white and black services resulted in a demotion for plaintiff and all other black extension agents. Prior to the merger, white agents were county agents and black agents were Negro county agents. These agents performed essentially parallel jobs. Upon merger, the black agents became associate agents, while the white agents remained county agents. This unmistakably indicated that plaintiff and all associate agents occupied a status inferi- or to the white agents. To further signify the split between the white and black positions, the white agent in Panola County (and all other counties) was given the title of county chairman. Finally, the discriminatory pay existing prior to merger was continued thereafter in Panola County and all other Texas counties. Although job titles and agency organization were changed, the meaning of this structure was apparent to all: an extension agent position in TAES was strictly determined by race. These statistics, which indicate the rigid separation of TAES agents along racial lines, plainly indicate the intentional nature of the discrimination. As the Fifth Circuit has noted, “[n]othing is so emphatic as a zero .. ..” United States v. Hinds County School Board, 417 F.2d 852, 858 (5th Cir. 1969). Nevertheless, there are six other factors which demonstrate that plaintiff was the victim of intentional racial discrimination. First, black employees of Panola County have always suffered from discrimination. At best only a small handful of black persons have been employed by the county, and these have been employed only in janitorial and unskilled labor capacities. Black county employees have always been lower in salaries and positions than any white county employee. Moreover, social segregation in the county has been blatant and rigid. At the time of the trial of this civil action, clubs, churches, and private associations were totally segregated. It is true that Wells had a higher position than any other black person on the county payroll, but this fact neither neutralizes the discrimination against plaintiff nor diminishes the probative effect of the general segregation in the county. Second, the evidence indicates that the black female employees of TAES in Panola County, and all Texas counties, found themselves in a situation parallel to the situation of the male employees. TAES hired females to be county home demonstration extension agents only. The history of racial segregation in the home demonstration position is roughly analogous to the history relating to the agricultural extension agent position; that is, provision was made for a white home demonstration agent and a black home demonstration agent. The occupant of the white position received a higher salary and appeared to have a greater responsibility. Moreover, the secretarial staff in each county often had a white and a black position, the white position being authorized more pay than the black position. This systematic segregation of TAES employees into white and black positions clearly indicates the intentional placement of plaintiff into a position whose pay and perquisites were diminished by reason of his race. Third, Wells’ duties were substantially the same as the duties of his white counterparts. Differences between the white position and the black position largely derived from differing titles and paper responsibilities, for actual responsibilities did not vary substantially. Given the substantially similar positions, the salary difference manifested racial discrimination. Insofar as there were actual differences in Wells’ job and the job of his white counterparts, the dissimilarities related directly to discrimination in job assignments and promotions. Moreover, the evidence showed that, throughout TAES, black agents with similar qualifications to white agents received substantially less salary. Thus, defendants’ arguments that salary differences were justified by differing job qualifications, job responsibilities, and job performance is generally untrue. To the extremely limited extent that these arguments of differing qualifications, responsibilities, and performance are accurate, they constitute more pretext for overt racial discrimination, being merely post hoc justification for intentional discrimination. While certain of these factors may conceivably have justified a salary differential, this does not mean that defendants did, in fact, rely on them in determining the variance in salary. The evidence disclosed an illuminating example, occurring in 1972, of the intentional discrimination inherent in the maintenance of a black position and a white position. When Gordon Ford was hired in 1972 to replace Alfred Croix, he was given exactly the same salary that Croix had received. It seems unlikely that he possessed the exact qualifications of Croix. Moreover, at the time Ford was hired, he had not been named county agent and program leader; his job was thus identical to that of Wells. In sum, this incident is a circumstance to evidence the existence of a white job and a white salary, separate and apart from a black job and black salary, and having nothing to do with personnel evaluations. Fourth, the failure to promote Wells in 1972 evidences the intentionality of discrimination. On January 15, 1972, white agent Croix resigned from his position. Wells made inquiry of District Agent Lehmberg whether he, Wells, could have the job vacated by Croix. Lehmberg had already asked the members of the Commissioners Court of Panola County if they would consider a black person for the position of county agent. The Commissioners unquestionably knew that he was speaking of Wells; their response was that a black person would not be considered for the position; that the citizens of the county were not ready for such an arrangement. Later, Wells made an outright application to Lehmberg for the job. In reply, Lehmberg candidly stated, in substance, that Wells was a fine agent, but could not be promoted because he was black. The evidence revealed, with little doubt, that Wells was as well qualified for the job as Gordon Ford. Hence, the refusal to promote plaintiff stemmed from unequivocal racial discrimination and perpetuated the segregated employment system in the county. Fifth, there is disturbing and convincing evidence that Commissioner W. J. “Pig” Rich, in responding to requests for an increase in the county contribution to the salaries of black TAES employees, referred to plaintiff as a “nigger.” When challenged on his word choice, he repeated the racial epithet, insisting that Wells be called a “nigger”, because “that’s what he is.” It is also in evidence that one commissioner told a Panola County citizen that the extension service would be reinstated when Wells was eliminated, saying, in substance, “With the nigger gone and when the uproar dies down we will have an extension agent.” Sixth, it will be explained in the following section that Panola County’s decision to terminate its contribution to TAES was taken in retaliation against Wells’ complaints of employment discrimination. The response of the Commissioners Court to allegations of discrimination, itself discriminatory, is probative of the Court’s intent in making previous employment decisions. The members of the Commissioners Court maintains that it should not be held liable for the shortfall in Wells’ salary, because they could not know the qualifications, job performance, and responsibilities of extension agents — a rather curious argument, since it conflicts with their contention that these same factors justified the pay differential between the white and black positions. In any event, the county paid out differing amounts of money to white and black agents, and if the members of the Commissioners Court had inadequate knowledge of the relative merits of each employee, then it follows that they based their decision on racial considerations. The members of the Commissioners Court also assert that the county’s contribution to the agents’ salaries were set in total ignorance; that they relied solely on the recommendation of TAES in this respect. Similarly, the extension service argues that it could not control the level of county contribution. Neither of these arguments is correct. In actuality, both the state and the county are responsible for the varying contributions of the county to the agents’ salaries. Although TAES regularly made a formal salary request, which the county always approved, the formal request and approval represented an after-the-fact decisional process. The salary decisions, in reality, arose out of an informal dynamic, consisting of ad hoc consultations between TAES supervisors and the Commissioners Court. In these discussions, TAES undertook to determine informally what salary would be approved. In the utilization of this process, both the county and the extension service were active participants in making the determination of the amount of the county’s contributions to the agents’ salaries. This process also reduced open conflict between the county and TAES; that is, the county was able to discriminate in its salary contributions without objection from TAES, and TAES maintained a smoothly operating relationship with the county by acquiescing in the flagrant discrimination. The actual county contribution, then, was determined by negotiation between the county and the state, both parties considering race as a factor in setting the amount of the county’s contribution to agents’ salaries. When parties join in such discrimination, both are liable. James v. Stockham Valves & Fittings Co., 559 F.2d 310 (1977); Myers v. Gilman Paper Co., 544 F.2d 837, 848 (5th Cir. 1977); Sagers v. Yellow Freight System, Inc., 529 F.2d 721 (5th Cir. 1976); Macklin v. Spector Freight Co., 478 F.2d 979 (D.C.Cir.1973). The cases make it plain that the members of the Commissioners Court may not validly assert that they merely assented to the feelings of local citizens, and that TAES cannot be permitted to argue that it merely conformed to the judgment of county officials. Faraca v. Clements, 506 F.2d 956 (5th Cir. 1975). See Wade v. Mississippi Cooperative Extension Service, 372 F.Supp. 126 (N.D.Miss.), aff'd in part, rev’d in part, and vacated and remanded in part, 528 F.2d 508 (5th Cir.), on remand, 424 F.Supp. 1242 (N.D.Miss.1976). The county similarly contends that it should not be liable for the disparity in salary between Wells and his white counterparts, because the members of the Commissioners Court were never made aware of the total salary received by any agent. Whether or not the county’s governing body knew the agents’ total salaries, they assuredly knew of the county’s contribution to those salaries. The intentional discrimination evidenced by the differing contribution to the respective salaries paid to the black and white agents is, in itself, unlawful. Beyond what has been said, the county could have requested information about total salaries in which it was interested, and TAES would have provided such information. The county never attempted to determine the total salaries of the Panola County extension agents, and, in the final analysis, this indifference is no better than the actual discrimination in which the county is found to have engaged. Further, the county’s contribution to the agents’ salaries is not the only reason for the deficiency between Wells’ salary and those of his white counterparts. A state and federal component is present in every agent’s salary. TAES is responsible for designating the particular share of state and federal funds included in each agent’s salary. In most of the years of Wells’ employment, the total of the state and federal portions of his salary was lower than the aggregate for the white agents. TAES had control over the whole amount of these two constituents and thus had the power to equalize the salaries of its agents. Indeed, by generally adjusting the state’s portion of the black agents’ salaries, TAES could have ended the federal, county, and state disparities in Wells’ particular salary. No doubt, TAES was slowly moving in this direction; nevertheless, it had never ceased to pay Wells at a lower salary level than his white counterparts, merely because Wells was black. The members of the Commissioners Court of Panola County also assert that they are not guilty of discrimination, because salary increases for Wells and his white analogues were based on the application of an equal percentage to the salary each agent had been receiving between 1968 and 1964. However, because salaries had already been established at discriminatory levels, this percentage increase exacerbated the existing salary disparities. Moreover, each increase was itself discriminatory, inasmuch as the white agent always received more than Wells. Hence, the Commissioners Court cannot avoid responsibility for unequal salary contributions by pointing to such a percentage increase, especially where, as here, each increase worsened an existing inequality. It is further argued by the members of the Commissioners Court that they could not increase Wells’ salary without increasing the salary of all county employees, reasoning that an increase in the salary of only one employee might agitate other county employees. Racial discrimination cannot be justified because its abolition might roil other employees. Wells’ salary having been set illegally low because he was black, the illegality cannot be expiated by reference to general employee attitudes. Similarly, the argument of the Commissioners Court that Wells made more than most county employees cannot be accepted as valid, since this alleged state of facts, even if true, does not in any respect diminish the Commissioners Court’s discrimination between Wells and the parallel whites. Finally, the members of the Commissioners Court maintain that the county could not afford an increase in Wells’ salary. This “lack of funds” hypothesis cannot be approved. The evidence revealed rising assessments and revenues in Panola County. Panola County had operated in the black, and was so operating in 1974. The county manifestly did not lack the funds with which to pay Harold Wells or any other employee whose salary was set too low on account of race. The Commissioners Court also argues that the equalization request from TAES came in mid-year, preventing any action upon it. This contention is likewise invalid. First, the Commissioners Court was not obliged to wait for a request to cease discrimination; its members could not discriminate with impunity until requested to stop the discrimination. Second, the Commissioners Court could have transferred funds from different accounts in order to accomplish an increase in Wells’ salary. Third, the Commissioners Court did not choose to equalize the county contributions to agents’ salaries in 1975; instead, it terminated all funding of TAES operation in Panola County, which calls into question all that went on before. IV. RETALIATION CLAIM Title VII’s provisions plainly make it illegal to discriminate against an employee who opposes an unlawful employment practice. Rosser v. Laborers’ International Union of North America, Local Number 438, 616 F.2d 221, 223 (5th Cir. 1980). It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter. 42 U.S.C. § 2000e-3(a). Plaintiff has established by the clear preponderance of the evidence that TAES and Panola County violated this provision of Title VII, discharging him in retaliation for his assertion of his constitutional and statutory rights to be freed from employment discrimination. See Jeffries v. Harris County Community Action Association, 615 F.2d 1025 (5th Cir. 1980). Initially, it is necessary to identify the protected activity in which plaintiff engaged and for which he suffered discharge. In essence, plaintiff suffered retaliation for having filed a charge with the EEOC. However, to understand the dynamic which developed after the EEOC charge was filed, it is useful to recall the historical context of Wells’ complaints. As early as 1965 or 1966, Wells aired his grievance to the Commissioners Court concerning the difference between his salary and the higher salary of Alfred Croix, the white agent. In December 1971, Wells again mentioned to Lehmberg, the TAES district agent, the dissatisfaction he felt regarding his discriminatory pay and job assignments. On January 10, 1972, Lehmberg communicated Wells’ discontent to the Commissioners Court. At that time, Lehmberg was told that Panola County was not prepared for a black county agent, and that there would be no equalization of the salaries of the two agents. Immediately after Croix’s resignation from TAES on January 15, 1972, Wells discussed with Lehmberg a promotion to the county agent position vacated by Croix. Lehmberg refused Wells this promotion, on the ground that the Commissioners Court of Panola County was not ready for it. At this juncture, because he was not even considered as a candidate to fill Croix’s vacated position, Wells considered filing suit against the county. Lehmberg thereupon suggested to Wells the inadvisability of this course, rationalizing that Wells would thereafter have trouble with TAES, the Commissioners Court, and the producers served by TAES in Panola County. Wells decided not to file a lawsuit at that time, early in 1972, because, first Lehmberg assured him that the Commissioners Court would be approached again by TAES regarding the discriminatory pay levels and job assignments, and, secondly, he had difficulty finding a lawyer to represent him in his civil rights case. On February 2, 1972, Lehmberg and Wells confronted the Commissioners Court regarding the salary disparities of the white and black agents working in the county, Lehmberg requesting the Court to equalize the agents’ salaries. Again, the Commissioners Court expressed no desire to accommodate this request, and Commissioner Rich, in referring to Wells, called him a “nigger.” Lehmberg reported the court’s response to his superior in TAES, Joe Roethe, by way of a letter. It was only after Ford had been chosen county agent, county chairman, and county program leader, and after the Commissioners Court had refused to equalize the agents’ salaries, that Wells decided to file a charge with the Equal Employment Opportunity Commission. The charge was filed on December 3, 1973. Within half a year, the county had decided to terminate its contribution to TAES’ operations in Panola County. Throughout that period, Wells’ EEOC charge was a controversial and highly visible issue in the county. On December 5, 1973, two days after the filing of the charge, Commissioner Brooks contacted Gordon Ford, the white agent, regarding Wells’ charge. Brooks stated that he was concerned about the charge. The next day, Thursday, December 6, 1973, Ford called Lehmberg to tell the latter of Brooks’ concern. Lehmberg told Ford to call County Judge Bailey and request that the Commissioners Court meet to consider the problem presented by Wells’ complaints and EEOC charge. The Commissioners Court met with Lehmberg on the following day. At the meeting, Judge Bailey indicated that the members of the Commissioners Court were extremely upset abut the EEOC charge and that they were considering three alternatives: (1) doing away with all extension activity in Panola County; (2) abolishing Wells’ job; or (3) taking no action. The circumstances strongly suggest that, at some time before September 10,1974, the Commissioners .Court reached an informal decision to terminate county contributions to TAES. This decision was not taken in an open vote or in an open meeting whose agenda had been announced; rather, the Commissioners privately decided among themselves to delete the county contribution. After the decision, the Commissioners Court held a meeting on September 10, 1974, which was attended by citizens who were irate about the termination of TAES. At this meeting, a citizen and former newspaper editor stated a concern that termination of county funding of TAES might result in a loss of federal revenue sharing funds. Commissioner Rich replied that if the federal government held revenue sharing funds over their heads in that way, he would prefer to see the money sent to Russia. After this meeting, one Commissioner told a concerned citizen that TAES would be reinstated in Panola County after the EEOC charge affair blew over. As already mentioned, another Commissioner told a citizen: “With the nigger gone and when the uproar dies down we will have an extension agent.” All of this evidence is probative of the county’s retaliation against Wells. The termination decision was made a half-year after the EEOC charge. Many statements indicate the motivation of the Commissioners Court in ending the extension service. The manner in which the Commissioners Court actually made the decision to discontinue TAES indicates an element of deviousness and conscious guilt. It is also significant that the budget from which the extension service was eliminated contained a proposed county contribution to agents’ salaries that would have been equal for white and black agents. When cumulated, this evidence belies the county’s claim that TAES was terminated in Panola County because it was no longer serving a useful purpose there, and that it was not worth the money. Moreover, the preponderance of the evidence at trial indicated that TAES served an important, almost vital, purpose in Panola County. The Commissioners Court cannot successfully avoid liability for this naked retaliation because all TAES employees, white and black, lost their jobs in Panola County. The decision of the Commissioners Court to terminate extension funding was taken by its members, in an effort to punish TAES, as well as plaintiff, for presuming to suggest that the county obey federal constitutional and statutory law. It is of no moment that Wells was not the only person to suffer as a consequence of having engaged in protected activity. An employer cannot be heard to argue that all employees, white or black, are subject to discharge when they assert the right to be free of illegal discrimination. Cf. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (black employee may be fired for illegal activity if white employees are treated similarly). Moreover, this is not a case in which black and white employees have been treated similarly for engaging in a particular behavior. Wells was the only employee complaining; the white employees who were forced to leave the county suffered for Wells’ act— not for an act of their own. The difficult question arises as to whether TAES should be jointly liable with the county, when the evidence so clearly establishes that it was a legislative decision of the county’s government body which terminated extension service operations in Panola County. The troublesomeness of this issue is magnified by three other factors: (1) TAES finally requested the county to raise Wells’ salary; (2) it fought termination of county funding; (3) TAES truly desired to serve Panola County and did not wish to cease operations there. Despite these complications, the question must be answered in the affirmative. Shortly after the county discontinued contributions to TAES, the latter terminated Wells’ employment. TAES gave Wells the option of working in another county for the agency or resigning. Having been “run out” of Panola County for impermissible reasons relating to race, Wells was under no obligation to work in another county; he maintained this position to TAES. The subsequent action of TAES in discharging Wells was, therefore, essentially in retaliation for having asserted his right to work free of employment discrimination. The events occurring at the time of Wells’ dismissal cannot be adequately comprehended unless consideration is also given to Wells’ past employment history. Wells had been the victim of intentional racial discrimination since the first moment of his employment with TAES, most of the discrimination having come from TAES and Panola County. Both of these parties actively furthered a system in which discrimination was the activating principle, since there were black jobs, and these jobs paid less than corresponding white jobs. The faint effort TAES made to persuade the county to change this pattern was a case of too little, too late. It was the action of both parties that put Wells in the untenable position in which he found himself in the years 1973, 1974 and 1975; and TAES cannot hide behind the decision of the Commissioners Court to terminate extension funding in Panola County any more than the county can rely upon TAES’ decision to fire Wells altogether as a justification for its actions. These decisions and the past pattern of intentional discrimination are inextricably bound together. Consequently, Wells’ right to recovery against the defendants for the results of these decisions is likewise infixed. V. SECTION 1981 CAUSE OF ACTION [35,36] Plaintiff has named five defendants in his section 1981 cause of action: (1) Panda County, (2) the Commissioners Court of Panola County, (3) TAES, (4) TAES Director John Hutchinson, and (5) the individual Commissioners and the County Judge, who constitute the membership of the Commissioners Court of Panola County. “When section 1981 is used as a parallel basis for relief with section 706 of Title VII against disparate treatment in employment, its elements appear to be identical to those of section 706.” Whiting v. Jackson State University, 616 F.2d 116, 121 (5th Cir. 1980). In the preceding section, TAES and Panola County were found to have violated this provision of Title VII. Consequently, these two entities are also in violation of 42 U.S.C. § 1981. The County Judge, the Commissioners, and the Commissioners Court are absolutely immune in a lawsuit brought under Section 1981 that brings into issue actions which they have taken in a legislative capacity. All actions taken by these defendants which are relevant to this cause of action were taken in such a capacity. See Supreme Court v. Consumers Unions, 446 U.S. 719, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980); Lake Country Estates v. Tahoe Regional Planning Agency, 440 U.S. 391, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979). John Hutchinson was Director of TAES during all the years of Wells’ employment with TAES, although he is no longer the Director. As Director, Hutchinson was amenable for official agency policy, since he was the person primarily responsible for changes in agency structure during the years that Wells was employed. Title changes, merger of the two services, institution of the county chairman position-all these alterations were directly conceived and implemented by Hutchinson. Given his position and the reality of its exercise, all of the foregoing analysis applicable to TAES’ responsibility for employment discrimination is also applicable to the Se