concurring in part and dissenting in part.
I concur with the majority that the record supports the trial court finding of discrimination against respondent when she was discharged. However, I would remand for the court to clarify its February 6, 1986, order for back-pay damages in light of Bibbs v. Block, 778 F.2d 1318 (8th Cir.1985).
Here the court found,
The pregnancy of the [appellant] was a discernible, discriminatory, and causative *85factor of the [appellant’s] denial of maternity leave to the [respondent] * * *.
But the court also found:
The [appellant] produced some evidence of a legitimate nondiscriminatory reason for the [appellant’s] denial of maternity leave and her discharge, to wit: dissatisfaction with the job performance of the [respondent].
Under Bibbs, where an employer has both a legitimate motive and a discriminatory motive for terminating an employee,
the plaintiff is entitled to some relief * *. However, even after a finding of unlawful discrimination is made, the defendant may avoid an award of * * * back pay if it can prove by a preponderance of the evidence that the plaintiff would not have been hired or promoted even in the absence of proven discrimination.
Id. at 1324. This case requires a remand because the court did not reach this step of analysis.
If the court finds appellant was motivated, in part, by a discriminatory purpose, the decision to terminate is not automatically unlawful. Rather, that finding shifts to appellant the burden of establishing that respondent would have been discharged even if the impermissible purpose had not been considered. Bibbs, 778 F.2d at 1322-23.
A defendant’s showing that the plaintiff would not have gotten the job anyway does not extinguish liability. It simply precludes the remedy of * * * reinstatement.
Id. at 1323. It also precludes the remedy of back pay. Id. at 1324.
The record supports the trial court’s finding that part of appellant’s reason for terminating respondent was legitimate. Appellant’s officers discussed, on more than one occasion, their dissatisfaction with respondent’s job performance. They had notified respondent of their dissatisfaction. The fact that they once privately discussed terminating respondent does not prove their motives were discriminatory. Appellant’s officers stated the reason for discussing respondent’s termination off the record in the Steamboat Springs board meeting was to spare respondent embarrassment. That does not prove a conspiracy of silence. While the minutes of this meeting were silent on respondent’s termination, I find it speculative to conclude that appellant’s motives could only be wrongful. The record does not support that appellant was motivated only by intent to discriminate against respondent.
Under Bibbs, a remand is appropriate to determine whether the legitimate motive for discharging respondent, even though contemporaneous with her pregnancy, would have led to respondent’s discharge despite her pregnancy. Should the court find appellant’s reasons were legitimate, and that those reasons justified termination even though the impermissible motive is also present, there would have to have been, under Bibbs, a redetermination of damages, as much of respondent’s damages are back pay.