Full opinion text
MEMORANDUM MORTON, Chief Judge. Plaintiff .James M. Croushorn instituted two actions in this court, which have been consolidated for trial. In the first action, plaintiff, a white male, claims that his employers, the University of Tennessee (the University) and its Board of Trustees, discriminated against him on the basis of race in violation of 42 U.S.C. § 2000e-2 and that they retaliated against him by discharging him in violation of 42 U.S.C. § 2000e-3. During trial plaintiff withdrew his claim of reverse racial discrimination, leaving only the retaliatory discharge claim for consideration by the court. Plaintiff seeks compensatory damages, attorney’s fees, and injunctive relief in this first cause. In the second action, plaintiff contends that defendants Horace Bass, former Commissioner of Human Services for the State of Tennessee, Ben P. Granger, Dean of the School of Social Work of the University (UTSSW), and the University infringed upon his first amendment rights in violation of 42 U.S.C. §§ 1983, 1985, and 1986. In this action, plaintiff seeks compensatory damages, punitive damages, attorney’s fees, and injunctive relief. Prior to the filing of the first action, plaintiff fulfilled all statutory prerequisites for Title VII suits. Jurisdiction over both these causes is predicated upon 28 U.S.C. § 1343. I. THE EMPLOYMENT DISCRIMINATION CLAIM A. FACTS In September 1974, plaintiff commenced his employment as an assistant professor of social work on the faculty of the Nashville branch of the UTSSW. His annual salary was $14,500. At the same time, Dr. John Colen, a black male, and Ms. Josephine Allen, a black female, also joined the faculty of UTSSW. During his first quarter of employment, plaintiff became aware that Colen had been hired as an associate professor, the rank above assistant professor, despite his lack of teaching experience. Plaintiff, who also had not previously taught, decided to investigate the matter further to determine whether there was inequity between his salary and Colen’s. In order to obtain information, plaintiff checked the public records at the Tennessee Higher Education Commission. Although Colen’s salary was not listed, plaintiff learned that Allen, who was also in her first teaching position, was receiving a salary of $16,500. Since Allen had been hired as an assistant professor, plaintiff speculated that Colen’s salary as an associate professor was equal to or greater than Allen’s. Plaintiff believed that he, Allen, and Colen were all performing virtually identical jobs. None of them had teaching experience, and only plaintiff and Colen had received their doctorate degrees. Plaintiff therefore believed that he was more highly qualified than Allen and that he and Colen were equally qualified. See Trial Transcript, at 53, 55. Based on this information, plaintiff concluded that there was inequity among the three salaries, and he decided that the differences resulted from reverse racial discrimination against him. In early December, plaintiff contacted Colen and Allen to inform them that he intended to raise the matters of salary inequity and reverse racial discrimination formally with Dean Granger, the Department of Labor, and the Equal Employment Opportunity Commission. After Colen and Allen expressed to Dean Granger their concerns about plaintiff’s activities, the dean and Dr. Bonovich, the director of the Nashville branch of the UTSSW, called plaintiff to question him about his complaints. They also related their extreme dissatisfaction that plaintiff had not confronted the administration with the problem before contacting other faculty members. Plaintiff stated that he was preparing a letter containing his allegations of salary inequity and that he would soon mail it to them. After receiving the letter, Dean Granger and Dr. Bonovich met with plaintiff to discuss the reverse discrimination complaint and also the manner in which plaintiff had pursued it. The conference was unproductive. The administrators primarily emphasized the inappropriateness of plaintiff’s discussing salary complaints with Colen and Allen. The dean made no effort to explain that Colen and Allen were considered more highly qualified than plaintiff and thus entitled to higher salaries, but instead he insisted that no discrimination had occurred. Plaintiff, however, continued to believe that he was a victim of reverse discrimination. In February 1975, Dr. Bonovich, following normal University procedures, prepared an annual “Academic Evaluation Form” on which plaintiff’s professional performance was appraised. Dr. Bonovich rated plaintiff “satisfactory” overall, “satisfactory” or better on nine separate areas of evaluation, and “unsatisfactory” in one category designated as “institutional commitment.” See Trial Exhibit P-9. Although Dr. Bonovich made no recommendation about whether or not plaintiff should be retained for the next academic year, he assumed that based on the evaluation plaintiff would be retained. See Trial Transcript, at 444. Dr. Bonovich based his “unsatisfactory” rating in the area of institutional commitment primarily on the manner in which plaintiff proceeded with his salary complaint and an earlier grievance concerning Bonovich’s handling of a security problem at Clement Hall, the facility housing the UTSSW. The Clement Hall incident had erupted when Bonovich assigned each male faculty member the responsibility of supervising the closing of the building one evening every two weeks. Plaintiff immediately objected to this assignment as an encroachment on his time and in writing refused to participate. See Trial Exhibit D-7. In a memorandum Bonovich explained to plaintiff that he could not simply refuse to participate but that he could appeal Bonovich’s decision to the Dean. Plaintiff wrote several comments on this memorandum labeling Bonovich’s conduct as authoritarian and calling for a discussion of the issue at the next meeting of the faculty, and he circulated copies to the male faculty members. Id. Bonovich again informed plaintiff of the proper method of reviewing an administrative decision of the branch director and advised him that neither formal nor informal review by the faculty was appropriate. Id. The issue was ultimately resolved when male and female faculty members volunteered to perform the assignment. Dean Granger, who was aware of plaintiff’s salary complaint and the Clement Hall episode, informed plaintiff that he believed that Bonovich’s evaluation of plaintiff had been too generous in some areas; he did not, however, indicate whether or not he would recommend that plaintiff be retained for the next academic year. On February 17,1975, plaintiff contacted Granger by telephone to inquire whether he had made a decision on retention, and Granger stated that he had not. Plaintiff then advised Granger that he intended to file the next day a formal EEOC charge against the University on the ground of reverse racial discrimination. The following day, February 18, plaintiff filed the charge, by mail, with the EEOC; he also sent a copy to Dean Granger. On the same day, Granger, with full knowledge of plaintiff’s intention to file the charge, recommended to Dr. Smith, the Vice Chancellor of Graduate Studies, that plaintiff not be retained on the faculty the following year. In justifying the recommendation, Granger noted that [u]p until recently Mr. Croushorn had not gone through administrative channels or the established University process in discussing [his] grievances. For example, he has initiated reverse discrimination charges without initially discussing the matter with the Dean or with [the] University administration. See Trial Exhibit P — 11; Stipulations, No. 17 (filed June 11, 1979). The next day, Granger revised the evaluation made by Bonovich and inserted his own evaluation of plaintiff as “unsatisfactory” overall. In explanation, Granger wrote: Mr. Croushorn has been extremely uncooperative. He has been unwilling to accept certain branch assignments as a member of the faculty. There have been specific situations where he initiated action without first discussing the concern with Dr. Bonovich or myself, or through University processes. Although he may have qualities of good teaching, he has been very difficult to work with and insists on going outside of University procedure on issues that he disagrees on. See Trial Exhibit P-9; Stipulations, No. 18 (filed June 11, 1979). On February 25, plaintiff received notification, by letter dated February 20, that he would not be retained and that his duties would end with the close of the spring quarter. On March 4, plaintiff filed an additional charge with the EEOC alleging that the University had discharged him in retaliation for his filing the discrimination complaint with the EEOC. Plaintiff simultaneously commenced an appeal of the nonretention decision through the University’s appeals apparatus, based, in part, on his claim that tenured faculty at the Nashville branch were not consulted in the making of the nonretention decision as required by the University handbook. The tenured faculty supported plaintiff’s claim and urged the repeal of the decision on this ground. In April, plaintiff, his attorney, the University’s attorneys, Dean Granger, Dr. Bonovich, and Dr. Smith met to discuss plaintiff’s claim concerning that failure to follow handbook procedures. After reviewing the situation, Dr. Smith concluded that proper procedures had not been followed and ruled that the nonretention decision would have to be rescinded. See Trial Transcript, at 524. In light of Dr. Smith’s determination, plaintiff’s attorney stated that the retaliation charge pending before the EEOC would probably be moot, and he indicated that he would therefore seek to have it terminated. Withdrawal of the charge, however, was in no way a bargained-for consideration for the University’s rescinding the nonretention decision. Dr. Smith would have ruled in plaintiff’s favor even if there had been no mention of withdrawing the EEOC complaint. See Trial Transcript, at 524-256. Plaintiff’s attorney subsequently requested the EEOC to terminate the retaliatory discharge complaint. See Trial Exhibit P-25. The EEOC never gave its consent to the attempt to withdraw the charge, and it subsequently issued plaintiff a right-to-sue letter. See Trial Exhibit P-50. Dr. Smith’s decision to rescind the earlier nonretention of plaintiff came after the deadline established by University regulations for notifying a faculty member of his nonretention, and so it was impossible to terminate plaintiff’s employment at that point. Therefore, plaintiff was retained for the 1975-76 academic year. Plaintiff was thereafter reappointed to serve on the faculty for the 1976-77 academic year, however, after receiving an overall “satisfactory” evaluation from Dr. Bonovich on March 9, 1976, in which Dean Granger concurred. See Trial Exhibit P-26. Since Dr. Smith rescinded the non-retention decision before it became effective, plaintiff did not lose a single day of work during the 1974-75 academic year. Plaintiff was, however, denied employment in the UTSSW’s summer school program for which appointments were made in the interim between the nonretention decision and its rescission. According to plaintiff’s testimony, prior to receiving the notice of nonretention, he had been told by Mr. Or-ten, the director of the summer school, that he could teach in the program. See Trial Transcript, at 30, 88. Plaintiff was aware that his appointment was subject to the final approval of Dean Granger, but he had been assured by Orten that Granger had in the past always approved Orten’s recommendations and that Orten intended to recommend plaintiff’s selection. See Trial Transcript, at 88. Granger himself corroborated this by testifying that he based his decisions concerning the appointments on Orten’s recommendations. See Trial Transcript, at 192. After receiving the notice of nonretention, plaintiff asked Orten whether he could still teach in the summer school, and Orten reported that Granger had said that he could not have the position. See Trial Transcript, at 117-18. Defendants offered no evidence that Dean Granger would have acted contrary to his previous practice of following Orten’s advice by denying plaintiff the summer school employment regardless of disposition of the retention question. The court therefore finds that but for the nonretention decision, plaintiff would have received the summer teaching position. B. TITLE VII VIOLATION After receiving his right-to-sue letter, plaintiff brought this action based upon Title VII of the Civil Rights Act of 1964. Section 704(a) of the Act, as now codified in 42 U.S.C. § 2000e-3(a), provides in pertinent part that [i]t 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). In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the Supreme Court of the United States established guidelines for the “order and allocation of proof in a private, non-class-action challenging employment discrimination.” As summarized by one authority, under McDonnell Douglas [t]he plaintiff must establish a prima facie case of retaliation. The defendant must come forward with a legitimate, nondiscriminatory explanation for its conduct, and, if the defendant succeeds, the plaintiff must demonstrate that the supposed nondiscriminatory reason for the action “was in fact pretext.” B. Schlei & P. Grossman, Employment Discrimination Law 436 (1976) [hereinafter cited as Schlei & Grossman]. The McDonnell Douglas Court recognized that the elements of plaintiff’s prima facie case would vary according to the factual situations presented, McDonnell Douglas Corp. v. Green, supra, 411 U.S. at 802 n. 13, 93 S.Ct. at 1824 n. 13, 36 L.Ed.2d at 677-78, and the lower federal courts have employed several different formulations of the required showing. See, e. g., Romero v. Union Pacific R. R., 459 F.Supp. 741 (D.Wyo.1978); Sutton v. National Distillers Products Co., 445 F.Supp. 1319, 1325-26 (S.D.Ohio 1978); Mead v. United States Fidelity & Guaranty Co., 442 F.Supp. 114, 129-30 (D.Minn.1977); Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425 F.Supp. 318 (D.Mass.1976). This court believes that in order to make out a prima facie case in the retaliation context, a plaintiff must show (1) that he belonged to the class protected by Title VII; (2) that he was qualified for the position that he sought or that he held at the time of the retaliation; (3) that he engaged in an activity protected by 42 U.S.C. § 2000e-3(a); (4) that the employer knew that plaintiff engaged in such an activity; (5) that subsequently plaintiff was discharged or subjected to other damage; (6) that the employer acted with a retaliatory motive; and (7) that at the time of the retaliation the employer had no intention to eliminate the position that plaintiff sought or held. In this case plaintiff has clearly carried his burden of proving a prima facie case. Several of the elements are undisputed. Plaintiff, as an employee of the University, was unquestionably a member of the protected class. That plaintiff was qualified for the position of assistant professor was evidenced not only by the fact that plaintiff was retained for the 1976-77 academic year, but also by the direct testimony of Dean Granger. See Trial Transcript, at 155. Plaintiff told Granger that he intended to file a charge of reverse discrimination with the EEOC, and he contends that making that statement and subsequently filing the charge were activities protected by § 2000e-3(a). There is no question that his employer knew that plaintiff planned to make such a charge, nor that subsequently plaintiff was discharged in that he was notified that he would not be retained for the following academic year. Furthermore, no evidence was introduced that defendants at any time considered eliminating plaintiff’s position. 1. Retaliatory Motivation Two crucial issues are disputed, however. The first is whether or not defendants acted with a retaliatory motive when they decided not to retain plaintiff on the faculty for the 1975-76 academic year. The focus of this inquiry is on whether the notice of nonretention was causally connected with plaintiff’s announcement to Dean Granger that he intended to file an EEOC charge. For purposes of plaintiff’s prima facie case, the court believes that the inference arising from the timing of the nonretention decision is alone sufficient proof of retaliatory motive. See, e. g., Sutton v. National Distillers Products Co., supra, 445 F.Supp. 1319 (S.D.Ohio 1978); Hochstadt v. Worcester Foundation for Experimental Biology, Inc., supra, 425 F.Supp. 318 (D.Mass.1976). Defendants have attempted to meet plaintiff’s prima facie showing on this element by articulating legitimate nondiscriminatory reasons for the nonretention. Conceding that they had knowledge that plaintiff intended to file a charge, defendants contend that this did not influence their action. Instead they claim that plaintiff was nonretained because of the manner in which he pursued his salary inequity and Clement Hall complaints. Defendants’ witnesses testified at length on the inappropriateness of plaintiff’s contacting Colen and Allen about his salary concerns prior to presenting the matter to the UTSSW administration. Some evidence was also introduced about the proper manner for processing such complaints through the administration of the University. From the record it is abundantly clear, however, that the ostensible rules proscribing the discussion of salary matters with faculty members and prescribing the manner for processing certain grievances within the University were nothing more than customs that were unwritten, unpublicized, and, to plaintiff, unknown. Therefore, the court rejects defendants’ theory in its entirety. Undoubtedly, plaintiff had exercised poor judgment in several of his dealings with his superiors, and Granger and Bonovich were on occasion exasperated with plaintiff’s actions. Nevertheless, the ineluctable conclusion is that these pretexts were not the true reasons for the nonretention decision. First, Bonovieh, the administrator who had to work the most closely with plaintiff, was well aware of plaintiff’s allegedly obnoxious behavior at the time that he completed his evaluation of plaintiff’s performance; in spite of this knowledge, Bonovieh awarded plaintiff an overall “satisfactory” rating and assumed that on the basis of his evaluation, plaintiff would be retained. Furthermore, before plaintiff told Granger that he would file an EEOC charge, Granger, who was fully cognizant of the controversies that plaintiff had fomented, was undecided on the retention question; immediately after plaintiff made his intention known, Granger made the decision not to retain plaintiff. The clear and reasonable inference arising from those facts is that plaintiff’s plan to utilize the EEOC’s complaint mechanism was the principal reason for his nonretention. Moreover, the court believes that defendants’ insistence that they were unhappy only with the manner in which plaintiff proceeded with his grievances is a mere coverup for their actual displeasure with his intention to go to the EEOC. “Any statements which indicate that the employer was displeased with the fact that the employee actively protested Title VII discrimination, or that the employer punished the employee because it objected to the ‘form’ which the opposition took, constitute significant direct evidence of retaliatory motive.” Schlei & Grossman 438. In light of all the evidence, the court concludes that notwithstanding his faults, plaintiff would not have received a notice of nonretention had he not stated his intention to file the charge. That statement was the principal, if not the sole, factor in the nonretention decision. Therefore, by a preponderance of the evidence, plaintiff has proven that defendants acted with a retaliatory motive. See, e. g., Sut ton v. National Distillers Products Co., supra, 445 F.Supp. at 1328. 2. Protected Activity Another major disputed issue remains in this phase of the ease. In order to decide that this retaliation amounted to a violation of 42 U.S.C. § 2000e-3, the court must find that plaintiff was engaged in a protected activity when he formed the intention to file the EEOC charge and expressed that intention to his employer. The statute gives immunity to two types of activities. See Schlei & Grossman 416. “Opposition” is protected by the clause that prohibits employers from discriminating against an employee because he has opposed any practice made an unlawful employment practice by [Title VII].” 42 U.S.C. § 2000e-3(a). The “participation” clause forbids discrimination against an employee “because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII].” Id. Whether an activity was “opposition” or “participation” is often of critical importance in Title VII retaliation cases because the scope of protection afforded by the two clauses is different. While the “participation” clause covers a narrower range of activities than the other, it gives those activities stronger protection than the “opposition” clause provides. See, e. g., Sias v. City Demonstration Agency, 588 F.2d 692, 695 (9th Cir. 1978); Hearth v. Metropolitan Transit Commission, 436 F.Supp. 685, 687 (D.Minn.1977). The unique circumstances here presented make difficult the determination of which of the clauses is applicable. Therefore, the court has chosen to analyze the facts under both clauses; the court- concludes that plaintiff would prevail under either. As a preliminary matter under the “participation” clause, the court would note that “[a]n employee need not establish the validity of his original claim to establish a charge of employer retaliation for having made the original charge or otherwise engaging in conduct protected by [the ‘participation’ clause].” EEOC v. Kallir, Philips, Ross, Inc., 401 F.Supp. 66, 70 n.6; see, e. g., Sias v. City Demonstration Agency, supra, 588 F.2d at 695; Pettway v. American Cast Iron Pipe Co., 411 F.2d 998 (5th Cir. 1969). Therefore, the fact that plaintiff dropped his complaint of reverse discrimination during trial and conceded that he could not bear his burden of proof on that issue is of no consequence to the success or failure of his retaliation claim under the “participation” clause. See Trial Transcript, at 467. The difficult question is whether or not plaintiff’s conduct is covered by the “participation” clause at all. Most cases arising under this clause have involved retaliatory acts against an employee that occurred subsequent to his filing of a charge with the EEOC, see, e. g., Pettway v. American Cast Iron Pipe Co., supra, or some other appropriate agency, see, e. g., Hicks v. ABT Associates, Inc., 572 F.2d 960, 969 (3d Cir. 1978); EEOC v. Kallir, Philips, Ross, Inc., supra. Thus, were the sequence of events different, and plaintiff had filed the EEOC charge and notified defendants of that fact before defendants made the non-retention decision, the case would clearly fall within the ambit of the “participation” clause. At the time of the conduct that provoked the reprisal in this case, however, no “investigation, proceeding, or hearing” concerning plaintiff’s reverse discrimination claim was pending before the EEOC or any other agency. The court’s inquiry must therefore focus upon whether the “participation” clause protects an employee who has formed a definite intention to file an EEOC charge, whose employer learns of this intention and retaliates because of it, and who actually does file the intended charge the next day. Because of the “exceptionally broad protection” intended by Congress under this section, evidenced by the inclusion of the expansive terms “assisted” and “participated,” the court believes that plaintiff’s conduct is covered by this clause. The lack of a pending formal charge before the EEOC or some other body does not necessarily defeat plaintiff’s claim under this clause. There is nothing talismanic about the filing of a charge. In Silver v. KCA, Inc., 586 F.2d 138 (9th Cir. 1978), the court held that an employee who did not communicate with a government agency about her discrimination claim or even threaten to do so until three days after her discharge could not establish a retaliatory discharge claim under the “participation” clause. Although the court noted a distinction between cases in which a charge is filed prior to the discharge and in which the charge is not filed until afterward, it recognized implicitly that this distinction is important only insofar as it promotes the primary rationale of the clause: The issue addressed by this subsection is the employer’s motivation, permissible or impermissible, in discharging the employee. Obviously, if a charge is not filed with the EEOC until after the discharge, the latter cannot be motivated by a desire to retaliate for the former. Id. at 143. If an employer learns, as did defendants in this case, that an employee intends to file a charge and discharges the employee for that reason, however, it is obvious that the employer was motivated by a desire to retaliate because of the employee’s invocation of the Title VII complaint procedure. The motivation is the same whether the charge has actually been filed or is simply imminent. Thus the case at bar is distinguishable from Silver and any other case in which the employee’s intent to file a charge is inchoate and unarticulated at the time of the retaliation. Not only did plaintiff have a definite intent to file a charge, he also communicated that intent to his employer and actually filed the charge. Shortly thereafter, plaintiff was notified that defendants had decided to terminate his employment at the end of the academic year. Unquestionably, defendants were motivated by a desire to punish plaintiff in anticipation that he would act in furtherance of his intent. The lack of a pending EEOC charge is thus not only not a controlling consideration, it is generally inconsequential as long as the reprisal is animated by the requisite improper motivation. Still, when the conduct of the plaintiff that produces the retaliation predates the actual filing of a charge, that conduct must have a sufficiently close connection with EEOC charge-filing before it will be protected by the “participation” clause. The court must therefore determine whether plaintiff’s conduct was so connected. The court begins with the general and well-settled propositions that the purpose of the “participation” clause is to protect all forms of access to the EEOC, see Schlei & Grossman 418, and that resort to the EEOC to vindicate equal employment rights is to be encouraged. These eonsiderations dictate that broad immunity from retaliation be provided “to ensure the effective implementation and maintenance of the statutory mechanism for protection of [those] rights . . . . ” Mead v. United States Fidelity & Guaranty Co., supra, 442 F.Supp. at 129 (D.Minn.1977). Accordingly, persons actually utilizing EEOC procedures are protected for their own sakes, and also to prevent a chilling effect on the exercise of equal employment rights by others who are considering filing charges or taking part in the prosecution or presentation of such charges. See, e. g., id. at 132. Likewise, conduct that predates or falls short of the actual filing of a charge deserves “participation” clause protection if it is an intimately related and integral step in the process of making a formal charge. Therefore, the determination of whether conduct falls within or without this protected area must be based on two factors: the necessity of the conduct to formal charge filing and the effect that retaliation for that conduct would have on recourse to the EEOC procedures. As has been repeatedly stated, defendants retaliated against plaintiff because he intended to file a formal charge. The fact that he informed Dean Granger of his intention was merely incidental. It should be readily apparent that before an employee can make a formal charge, he must form the requisite intent to do so. That intent essentially gives life to the act of filing a charge. Without it, no charge would be filed by the employee. Therefore, the “necessity” of plaintiff’s conduct is clear. The effect of retaliation against those who intend to file charges is also easily imaginable. Because forming the intent is necessarily part and parcel of filing a charge, retaliation aimed at punishing those who intend to complain to the EEOC would have a chilling effect as great as that caused by a reprisal against one who has already filed a charge. The threat of unremediable retaliation against those who file charges is an unquestionable deterrent to the exercise of those rights, see, e. g., id., and so such retaliation is specifically prohibited by the statute. If, however, an employer could with impunity retaliate against an employee who, it is discovered, plans to file a charge, or who is writing a letter or completing a charge form to send to the EEOC, the protection of the “participation” clause would be dramatically undermined. The court thus concludes that the conduct for which plaintiff was penalized was an intimately related and integral step in the process of filing a charge, and that it is protected by the “participation” clause. Despite what logic would seem to dictate, this interpretation could not be adopted if unsupported by the language of the clause itself. Congress used broad language when drafting this statute, however, and the court believes that the conduct in question here easily fits into the categories of “assisting” or “participating” in EEOC proceedings. Those two terms are undefined in the statute, see note 8, supra, and must be read in light of the overall purpose of the clause as outlined in the foregoing discussion. Forming the intent to do an act clearly “assists” the performance of that act. Thus the statutory language supports the court’s analysis. The court has located only one reported decision that involved a similar factual setting. In EEOC v. Johnson Co., 18 FEP 896 (D.Minn.1978), the court held that an employee’s threat to file an employment discrimination charge was not eligible for the strong protection of the “participation” clause, but was sheltered, if at all, by the more limited “opposition” clause. The employee had written a letter to her employer setting forth her various complaints and concluded: “I have talked with the State Human Rights Commission .... I have the complaint made out — It’s up to you if I file it.” Id. at 899. The employer discharged the employee immediately upon receiving the letter. Although recognizing that the “participation” clause shields all forms of access to the EEOC, the court stated that “threats are something short of recourse to the [EEOC] machinery.” Id. at 902. The court reasoned that [t]hreats are wont to occur in many forms and in many contexts. To confer the extraordinary protection of the participation clause on all the manifold activities that could be interpreted as threats could tend to encourage unreasonable and fractious demands by employees. Considering threats generally to be mere opposition will not inhibit employees with reasonable complaints from referring to the possibility of filing charges in informal discussions with their employers. Id. Without considering whether or not the fear of “unreasonable and fractious demands” is justified, this court believes that the rationale should apply only to cases, such as EEOC v. Johnson Co., in which the “threat” is designed to coerce the employer into acquiescence in employee demands and is conditioned upon the employer’s failure to submit to those demands. In other cases, such as the instant one, involving mere communication of a definite and unswerving intent to file a charge with the EEOC not conditioned upon future action by the employer, the reasoning is not appropriate. The point of the latter is to inform, not to coerce. Thus the statement is not made in order to advance any “unreasonable and fractious demands” or to gain undue leverage in bargaining with the employer. Moreover, it is not an ambiguous activity that may or may not be construed as a threat, protection of which would improperly enlarge the scope of the “participation” clause. Instead, it is a statement of an intention to engage in an activity that is protected by the very core of the “participation” clause, that is, making a charge. The court therefore concludes that EEOC v. Johnson Co. is distinguishable and that the “participation” clause should apply to the present case. In the alternative, the court believes that plaintiff’s statement to Dean Granger is clearly protected by the “opposition” clause. That clause is often relied upon in cases in which application of the “participation” clause to the employee’s conduct is considered dubious. See, e. g., Hicks v. ABT Associates, Inc., supra, 572 F.2d at 969; EEOC v. Kallir, Philips, Ross, Inc., supra, 401 F.Supp. at 71 n.12. Such reliance is possible because, in conceptual terms, “participation” is a subset of “opposition”; “participation” is primarily a specialized form of “opposition” that requires a connection with an “investigation, proceeding, or hearing” before the EEOC and receives more intensive protection than other opposition activities. Not all alleged “opposition” activities are given immunity from retaliation, however. Two requirements not present in the context of the “participation” clause must be met under the “opposition” clause. First, the form of the “opposition” must not be unlawful, Green v. McDonnell Douglas Corp., 463 F.2d 337 (8th Cir. 1972), nor excessively disloyal or hostile, or disruptive and damaging to the employer’s business, Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 545 F.2d 222 (1st Cir. 1976). In the present case, the form of the opposition, plaintiff’s stating to Dean Granger that he intended to file a charge with the EEOC, was reasonable, discreet, and not excessive. Therefore, the first requirement is satisfied. The second requirement embodies the major difference between the “participation” and “opposition” clauses. Unlike the “participation” clause, under which the validity of the claim of employment discrimination that gave rise to the retaliation need not be established, the language of the “opposition” clause imposes a requirement that the practice opposed be an unlawful employment practice under Title VII. No decision of the Court of Appeals for the Sixth Circuit has construed this language, but two interpretations of the precise meaning of the clause have emerged from other courts. Under one view, the employer must actually be guilty of the employment discrimination opposed for the employee to be protected. See EEOC v. C & D Sportswear Corp., 398 F.Supp. 300 (M.D.Ga.1975). Were the court to adopt this standard, plaintiff would be entitled to no protection under the “opposition” clause because of his failure to prove that defendants were practicing reverse discrimination. According to the other interpretation, the employee need only have a reasonable belief that the employer was engaged in the unlawful employment practice opposed. See, e. g., Sias v. City Demonstration Agency, supra, 588 F.2d at 695; EEOC v. Johnson Co., supra, 18 FEP at 902; Hearth v. Metropolitan Transit Commission, supra, 436 F.Supp. at 688. The court in Hearth v. Metropolitan Transit Commission, supra, cogently stated its reasons for adopting the “reasonable belief” standard: [Appropriate informal opposition to perceived discrimination must not be chilled by the fear of retaliatory action in the event the alleged wrongdoing does not exist. It should not be necessary for an employee to resort immediately to the EEOC or similar State agencies in order to bring complaints of discrimination to the attention of the employer with some measure of protection. The resolution of such charges without governmental prodding should be encouraged. The statutory language does not compel a contrary result. The elimination of discrimination in employment is the purpose behind Title VII and the statute is entitled to a liberal interpretation. When an employee reasonably believes that discrimination exists, opposition thereto is opposition to an employment practice made unlawful by Title VII even if the employee turns out to be mistaken as to the facts. Id. at 688-689. This court finds that logic compelling and thus holds that the “opposition” clause requires only a reasonable belief on the employee’s part that the employer is engaged in an unlawful employment practice. It is clear from the record that under this view, plaintiff would be protected by the “opposition” clause. Undisputably plaintiff actually and in good faith believed that the differences in his, Colen’s, and Allen’s salaries resulted from reverse racial discrimination. Furthermore, the proof establishes that this belief was reasonable. Based on the information available to him, plaintiff believed that he and the other two faculty members were performing essentially the same jobs. He knew that none of them had prior teaching experience and that only he and Colen had doctorate degrees. Having learned of the amount of Allen’s salary from the records at the Tennessee Higher Education Commission, he was certain that his salary was lower than Colen’s or Allen’s. At trial, defendants offered extensive evidence comparing the relative qualifications of the three faculty members in order to justify the differences in salaries. See, e. g., Trial Transcript, at 147, 384, and 386. This information, however, was never communicated to plaintiff before he filed his complaint with the EEOC. See Trial Transcript, at 114, 230, and 233. Plaintiff had been present when other faculty members discussed what they perceived as the anomalousness of Colen’s salary. See Trial Transcript, at 8-9. In addition, one faculty member, Mary Bloch, testified that she believed that Colen’s higher salary was due to his race and sex; in 1976 she stated to Dean Granger her feeling that UTSSW generally paid blacks higher salaries than whites with comparable qualifications. See Trial Transcript, at 130. In light of all this evidence, the court concludes that plaintiff reasonably believed that he was a victim of reverse discrimination. Therefore, plaintiff’s statement to Dean Granger was protected by the “opposition” clause. Plaintiff has established all the elements of a prima facie showing that defendants discharged him in retaliation for his engaging in an activity protected by 42 U.S.C. § 2000e-3. The explanation offered by defendants to show that plaintiff was discharged for legitimate nondiscriminatory reasons has been found to be a mere pretext. Therefore, plaintiff has clearly established that defendants violated Title VII. The only remaining questions concern the measure and type of relief to which plaintiff is entitled for this violation. C. REMEDY Defendants have presented several arguments in an effort to persuade the court to deny all relief to plaintiff. First, they contend that because plaintiff’s attorney agreed to withdraw the EEOC charge of unlawful retaliation in light of defendants’ rescinding the nonretention decision, plaintiff is estopped from maintaining this suit. Plaintiff counters that charges filed with the EEOC can be withdrawn only with the consent of the EEOC, 29 C.F.R. § 1601.-10 (1978), and therefore any such agreement between the parties is unenforceable as a matter of law. The cited regulation was promulgated, however, not for the benefit of individual discriminatees, but to preserve the EEOC’s ability to protect the public interest by allowing it to file suit based upon a charge of discrimination even after the charging party has entered into a private settlement with the employer in which the employee’s personal rights have been vindicated. See, e. g., EEOC v. McLean Tracking Co., 525 F.2d 1007, 1010-11 (6th Cir. 1975); EEOC v. Kimberly-Clark Corp., 511 F.2d 1352, 1361 (6th Cir. 1975). In spite of this regulation, an individual employee will be bound by the settlement agreement he has made. See id. Bat see Voatsis v. Union Carbide Corp., 452 F.2d 889, 894 (2d Cir. 1971). In this case, however, as discussed previously, the parties did not enter into a settlement agreement of any sort. Rescission of the nonretention decision and withdrawal of the EEOC retaliation complaint did not constitute a bargained-for exchange. Reinstatement of plaintiff was based solely upon Dr. Smith’s conclusion that proper procedures had not been followed in reaching the nonretention decision. Therefore, no agreement exists to enforce. Moreover, although plaintiff’s attorney did state that he would withdraw the charge, defendants offered no evidence that they relied on this representation to their detriment. Thus there is no reason to estop plaintiff from pursuing his remedies under Title VII. Defendants next contend that plaintiff suffered no injury as a result of the Title VII violation because Dr. Smith rescinded the nonretention decision before it became effective, and the rescission rendered the retaliation claim moot. The court, however, has found that plaintiff suffered a loss of summer employment as a result of the nonretention decision. Since that decision was made in violation of Title VII, it is clear that the loss of the summer teaching position resulted from that violation. The claim cannot, therefore, be moot. Furthermore, plaintiff has made a claim for an injunction requiring defendants to expunge his personnel records of any reference to the manner in which he has pursued his reverse discrimination complaint. Plaintiff thus has such a stake in the outcome of the controversy that the case could not be considered moot even without the existence of the claim for monetary relief. Defendants argue that plaintiff has suffered no injury for which he can obtain monetary relief in a Title VII action. The enforcement section of Title VII provides in pertinent part: If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without backpay ..., or any other equitable relief as the court deems appropriate. 42 U.S.C. § 2000e-5(g). From the language of this statute, it is clear that equitable relief can be awarded to the successful Title VII claimant; recovery of damages is not specifically authorized, however. Plaintiff, who seeks various elements of damages including compensation for lost wages, humiliation, and emotional distress, contends that damage awards are not precluded by the statute. He argues that because the purpose of Title VII is to eliminate the inconvenience, unfairness, and humiliation of discrimination in employment, compensation for employees who have suffered such psychic injuries is appropriate. Several cases have stated that such is the purpose of Title VII. See, e. g., Nesmith v. YMCA, 397 F.2d 96 (4th Cir. 1968); Miller v. Amusement Enterprises, Inc., 394 F.2d 342 (5th Cir. 1968); Green v. McDonnell Douglas Corp., 318 F.Supp. 846 (E.D.Mo.1970); United States v. Medical Society, 298 F.Supp. 145 (D.S.C.1969). Compensatory damages for mental distress have actually been awarded in only one case, however. See Humphrey v. Southwestern Portland Cement Co., 369 F.Supp. 832 (W.D.Tex.1973). In any event, plaintiff's claim for such relief must be denied because the Sixth Circuit has held that damages are not recoverable in Title VII cases. Harrington v. Vandalia-Butler Board of Education, 585 F.2d 192 (6th Cir.1978) (compensatory damages); EEOC v. Detroit Edison Co., 515 F.2d 301 (6th Cir.1975) (punitive damages). Plaintiff’s request for compensation for the summer employment he lost as a result of the unlawful discrimination may be granted, however, in the form of an award of backpay. Backpay essentially consists of lost or unpaid wages or salary to which an employee, for whatever reason, is entitled. Whenever a court finds that an employer has violated Title VII, an award of backpay should generally be granted to the discriminatee. Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). In fact, such an award should be denied “only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination.” Id. at 421, 95 S.Ct. at 2373, 45 L.Ed.2d at 298-99. Since defendants have suggested no reasons that would justify a denial of backpay under the Albemarle standard, and the court believes that no such reasons exist, plaintiff is entitled to an award of backpay in the amount of the salary he would have received for teaching in the summer school program. The fact that plaintiff made no specific prayer for relief in the form of backpay and persisted in characterizing his claim for compensation for the loss of the summer teaching position as a claim for damages instead of backpay, is of no consequence. A similar issue arose in Albemarle Paper Co. v. Moody, supra. The Court there held that such conduct by the plaintiff may constitute a proper reason for denying an award of backpay in a particular case if that conduct causes the employer to suffer actual and substantial prejudice. Id. at 424, 95 S.Ct. at 2374, 45 L.Ed.2d at 300. Plaintiffs in Albemarle had originally sought only injunctive relief and had assured the trial court that the case involved no claims for monetary relief; only after several years of discovery did plaintiffs move to add a prayer for backpay. While such a course of events may well substantially prejudice an employer’s ability to defend against a claim for backpay, plaintiff’s failure to assert a claim for backpay in the case at bar will not. Plaintiff has throughout this litigation sought compensation for the loss of the summer employment. No matter whether the claim is characterized as one for damages or for backpay, plaintiff’s pleadings and conduct of his lawsuit have clearly placed defendants on notice that those lost wages would be at issue. The lack of such notice in Albemarle created the possibility of prejudice in that case; its presence removes that possibility in the instant case. Moreover, defendants did actually put on a defense against plaintiff’s claim for the lost salary. The court does not believe that their defense would have been any different had plaintiff denominated his claim as one for backpay. Since no prejudice is possible or demonstrable in this case, the court holds that plaintiff is not barred from recovering backpay. Thus defendants’ contention that plaintiff has suffered no compensable injury is without merit. Plaintiff is also seeking various types of injunctive relief against defendants. Pursuant to the enforcement section of Title VII, the court has the authority to enjoin unlawful employment practices that have been found to exist and order such other affirmative relief as may be appropriate. 42 U.S.C. § 2000e-5(g). Whether or not “other affirmative relief” is appropriate should be determined in light of the same considerations that guide decisions on the grant or denial of backpay. Thus, affirmative relief should be granted in this case if it will further the two major purposes of Title VII: to eliminate unlawful retaliation, in the future against those who complain of employment discrimination and to make whole those particular persons who have been victims of unlawful retaliation. Plaintiff first seeks an injunction requiring defendants to remove from his personnel files and all other records at the University and the UTSSW, and wherever otherwise located, all references to the manner in which he has pursued his employment discrimination claims. The court believes that this injunction should be granted and that eradication of all references to plaintiff’s pay inequity and employment discrimination claims generally should be required. A similar expungement remedy was specifically approved in Mead v. United States Fidelity & Guaranty Co., supra, 442 F.Supp. at 136. The court there stated that such relief is necessary “both to eliminate the discriminatory effects of past retaliation and to preclude any future discriminatory effects” on the discriminatee because of the past acts of retaliation. Id. This court believes that reasoning is applicable in the present case. Expungement of these records therefore serves the statutory objective of making the victim of retaliation whole. Another injunction requested by plaintiff would require defendants to develop and disseminate a grievance procedure for employment discrimination claims within the University. The deficiencies of the present “system” were noted in an earlier discussion in this memorandum. The court believes, however, that the requested relief should be denied. Plaintiff has neither alleged nor proven that there is any constitutional or statutory basis for requiring defendants to develop such a procedure. Moreover, plaintiff has not established that the present “system” violates anyone’s rights. The right to be free from unlawful employment discrimination is protected by the grievance mechanism established by Congress in Title VII and administered by the EEOC. Additional protection by an internal grievance system within the University would not seem necessary. Finally, plaintiff seeks an order of this court enjoining defendants from retaliating against persons who file grievances, complaints, or EEOC charges, and requiring defendants to develop and disseminate a clear and direct policy forbidding such retaliation. The court has decided to deny this prayer because plaintiff’s claim for such relief is moot. Plaintiff is no longer employed by defendants and does not seek to regain his former employee status by having this court order his reinstatement. He is therefore not subject to the threat of retaliation of which he complains because these defendants are no longer able to interfere with plaintiff’s right to make employment discrimination complaints. Such a situation obviates the need for an injunction against retaliation and renders the claim moot. See, e. g., Caldwell v. Craighead, 432 F.2d 213 (6th Cir. 1970); Bransted v. Wolke, 455 F.Supp. 489 (E.D.Wis.1978). Like the court in Caldwell, this court believes that “[a]t best, an extremely remote chance exists that [defendant’s] . . . wrongful conduct will be repeated and directed at [plaintiff] to deny him his [rights].” Caldwell v. Craighead, 432 F.2d at 218. Such a remote chance is not enough to vivify plaintiff’s claim for this relief. Furthermore, if the court were to grant this injunction, the order would not affect the parties’ relative positions or change plaintiff’s status for the better. See, e. g., Caldwell v. Craighead, supra; Cramer v. Virginia Commonwealth University, supra, 486 F.Supp. 187. It is apparent that granting such an order would in no way serve the statutory purpose of making the plaintiff whole. Nor was this action brought or tried as a class action, a posture that could have saved this aspect of the case from mootness. See Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). Some courts, concluding that Title VII cases inherently involve discrimination against a class of employees, allow class-wide injunctive relief even when the lawsuit is not in the form of a class action. See, e. g., Saracini v. Missouri Pacific Railroad, 431 F.Supp. 389, 395 (E.D.Ark.1977). Such relief has not been granted, however, in a case in which the claim has become moot as to the only official plaintiff. Were it otherwise, numerous practical difficulties in enforcing the court’s decree would arise. The relief plaintiff has requested is designed to compel defendants to comply with positive law, that is the portion of Title VII that prohibits retaliation against those who file charges with the EEOC or oppose unlawful employment discrimination. Such an injunction would have the sole practical benefit of entitling plaintiff to move the court to hold defendants in contempt for violating the injunction and impose sanctions therefor, instead of requiring an aggrieved party to file a new lawsuit and establish that defendants have violated the mandate of Title VII itself. Plaintiff, who now works in another state, will not be in a position to learn of any contumacious behavior in order to make such a motion, and since this is not a class action, none of defendants’ employees would be able to step into plaintiff’s shoes. The practical effect of the injunction plaintiff requests would therefore be a nullity and would not serve the other statutory goal of eradicating future unlawful retaliation. For these reasons, the court believes that plaintiff’s request for this relief should be denied. Plaintiff also seeks an award of attorneys’ fees. Title VII specifically enables the court to allow the prevailing party a reasonable attorney’s fee. 42 U.S.C. § 2000e-5(k). Although the grant of an attorney’s fee award is within the discretion of the court, the power should ordinarily be exercised in favor of the prevailing plaintiff. See Albemarle Paper Co. v. Moody, supra, 422 U.S. at 415, 95 S.Ct. at 2370, 45 L.Ed.2d at 295; Newman v. Piggie Park Enterprises, 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968). The court believes that plaintiff is entitled to such an award. Plaintiff has established that defendants engaged in an unlawful employment practice and has successfully obtained some, although not all, of the relief he requested. He is therefore a prevailing party within the meaning of the statute. Since the court denied several of his prayers for relief, however, plaintiff actually only partially prevailed in this case; the court must thus confront the issue of what effect this partial victory has on the award of attorney’s fees. There is a split of authority on this question, with some courts holding that the award “should be proportionate to the extent to which plaintiff prevailed,” and others allowing the award to include even the time spent on the unsuccessful portions of the case. See Schlei & Grossman 1303, 1306. The Sixth Circuit has not yet spoken on this issue in a Title VII case but has adopted the latter, more liberal, position in the context of the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988. See Northcross v. Board of Education, 611 F.2d 624 (6th Cir. 1979). The court there held that once it has been determined that the plaintiff is the prevailing party, he is entitled to recover attorneys’ fees for “all time reasonably spent on a matter.” The fact that some of that time was spent in pursuing issues on research which was ultimately unproductive, rejected by the court, or mooted by intervening events is wholly irrelevant. So long as the party has prevailed on the case as a whole the district courts are to allow compensation for hours expended on unsuccessful research or litigation, unless the positions asserted are frivolous or in bad faith. Id. at 636. This court believes that the same rule should apply in Title VII cases. The Fees Awards Act of 1976 is written in essentially the same language as the provision allowing attorneys’ fees under Title VII. Moreover, Congress was clearly mindful of Title VII when it drafted the 1976 Act. See S.Rep.No.94-1011, 94th Cong., 2d Sess., reprinted in [1976] U.S.Code Cong. & Ad.News 5908. In light of this, it would be anomalous not to apply the Northcross rule in the present case. Plaintiff is therefore entitled to recover a reasonable attorney’s fee for all time reasonably spent on this action. Since the exact amount of plaintiff’s attorney’s fee award cannot be calculated on the present record, the court will, upon proper application by plaintiff, hold an evidentiary hearing on the matter at a later date. Finally, plaintiff seeks compensation for the fee he paid his original attorney for representing him in his successful effort to have the nonretention decision rescinded. Defendants contend that plaintiff cannot recover this amount because the attorney represented him only with respect to the claim that plaintiff had been nonretained in violation of the University handbook procedures and without regard to the Title VII claim. This assertion is easily countered by referring to the evidence. After Dr. Smith decided to rescind the earlier nonretention, plaintiff’s attorney wrote the EEOC to inform them of this action. See Trial Exhibit P-25. That letter reveals that the attorney had previously been in contact with the EEOC concerning plaintiff’s retaliation claim, that he considered the meeting with Dr. Smith to be a private conciliation effort in conformity with Title VII, and that he intended to assist the EEOC with plaintiff’s reverse discrimination claim, which all parties agreed was not to be affected by the rescission of the nonretention decision. Based upon this, the court believes that plaintiff’s efforts to have the decision rescinded were intimately related with his Title VII claims so as to constitute one single dispute between the parties. When Dr. Smith rescinded the earlier decision, plaintiff became the “prevailing party” on that issue; under the Northcross “practical” interpretation of that term, plaintiff is entitled to these attorney’s fees. II. THE FIRST AMENDMENT CLAIM A. FACTS In the fall of 1976 an unfortunate incident occurred in Bradley County, Tennessee, in which a child, who had been under the supervision of the Tennessee Department of Human Services, died as the result of extreme child abuse. Prior to the occurrence employees of the local office of the department had allowed the child’s parents to regain custody of the child in spite of their past history of child abuse. Defendant Horace Bass, then the commissioner of that department, responded to the incident by taking disciplinary action against employees in the local office. Plaintiff, on November 4, 1976, wrote a letter to Commissioner Bass criticizing him for taking such action, indicating his opinion that Bass’ response to the situation was “hasty and ill-advised” and that Bass lacked “sensitivity” to the needs of the department’s employees. See Trial Exhibit P-28. This letter was written on plaintiff’s personal stationery, which had the University seal and the words “from the desk of . . . Jim Croushorn” at the top. On November 8, a letter to the editor written by plaintiff and criticizing Bass was published in the Nashville Banner, a newspaper circulated throughout Middle Tennessee. The gist of the letter was that Bass was motivated by political considerations when he took the punitive actions against the Bradley County personnel. See Trial Exhibit P-29. No intimation of plaintiff’s connection with the University or the UTSSW appeared in the letter. Bass was extremely upset about these letters, see Trial Transcript, at 202-03, 325; he called plaintiff on the evening of November 8 to demand a public retract