*2 BRIGHT, Circuit Judge.
LAY, Judge. Chief brought Finley Muldrew this action un- der VII Rights Title of the Civil Act of 1964, as amended 42 U.S.C. 2000e to §§ (1976 1981), V 2000e-17 and under Supp. (1976), alleging U.S.C. his § Anheuser-Busch, discharge his employer, Incorporated, impermissibly was for dis- criminatory reasons. In a bifurcated the jury found in of Muldrew on his favor $125,- claim under awarded him § 000; the trial court found in favor of Mul- drew on his Title VII claim and awarded him full seniority reinstatement with appeals fees. attorney’s Anheuser-Busch from judgments and trial court, F.Supp. black,
Muldrew, who is worked An- when May heuser-Busch he discharged, allegedly for excessive absenteeism. suit brought Muldrew against alleging Anheuser-Busch against had him on company discriminated basis of race in decision fire him. ' Sufficiency Evidence on appeal Anheuser-Busch contends at trial to present Muldrew failed facie of racial Mul- case drew white submitted evidence that several to, equal workers with absentee records or court, than, employed persuading his were still at the worse plaintiff may rely solely of his termination. Anheuser-Busch on the evidence it time no allow- this evidence made argues establishing bona fide medical excuses of ance for the case or it introduce additional evi- divergent and for the the white workers dence. id. at 255 n. See evi- of time over which Muldrew’s periods 1094 n. 10. *3 was collected on each worker. dence Although presented Anheuser-Busch weighing sifting of conflict explain apparently unequal evidence to the the trier of fact. Mul ing evidence is for Muldrew, treatment of this evidence was reasonably evidence which presented drew we the persuasive say not so that can that interpreted establishing unequal could be as and court should have credited jury only the by employer. Viewing treatment Anheuser-Busch’s version of the facts. “An light in the most favorable to the evidence appellate may court not substitute view verdict, Muldrew made we find that
jury the facts for that the trier of of of fact discriminatory facie of showing out a unless it in that position to hold reason treatment Anheuser-Busch. by minds, viewing able the evidence the plaintiff After a has made a light prevailing party, most favorable to the discrimination, the burden shifts showing of have only could found otherwise than the to articulate a to the defendant nondiserim- trier of fact.” v. Everest Jen McIntyre inatory reason for its actions. McDonnell Inc., nings, (8th Cir.), 575 F.2d cert. Green, 792, 802, Corp. v. 411 U.S. Douglas denied, S.Ct. 1817, 1824, L.Ed.2d S.Ct. (1978). Thus, while Anheuser put At Anheuser-Busch on evidence explanation Busch’s of the apparently un termination was the result plaintiff’s equal treatment of the be application of a neutral of Anheuser- plausible, say we cannot the evidence policy. Busch’s absentee control Anheuser- was so the of fact persuasive that triers had argued policy Busch that the al- inherently no choice but to for find Anheuser-Busch. lowed significant disparities between the Therefore, because evidence ex substantial number of absences and tardies one employ- ists to the of support judgments the might ee receive and the number another court, we judgments. affirm those might before either disci- receive were Thus, contends, plined. Anheuser-Busch Motion for New Trial
the apparently unequal treatment of Mul- explained by drew is the mechanics of the ap Anheuser-Busch also contends on policy any absentee itself and is not due to peal that the district court erred in denying subjective, discriminatory plain- motives of Anheuser-Busch’s motion for a new trial. tiff’s supervisors. contention, support To this Anheuser-Busch argues testimony presented by After the defendant has articulated Muldrew was rebutted effectively plaintiff’s reason for nondiscriminatory testimony presented by Anheuser-Busch’s termination, plain the burden shifts to the witnesses; that Muldrew evi prove by preponderance tiff of the dence irrelevant to the basic issue of his alleged merely evidence that the reason was termination; and that Muldrew’s counsel pretextual. Id. at at 1825. closing argument in this either misstated at Anheuser plaintiff “may succeed n said, policy. the court that a dis Busch’s absentee As we have directly by persuading likely weighing contradictory reason more motivated of evidence is criminatory Determining or the trier of fact. employer indirectly by showing explanation properly is un truthfulness of witnesses is left to employer’s proffered original Department pre of credence.” Texas those who heard and saw the worthy Thus, Burdine, sentations of the Anheu Community testimony. Affairs v. 450 U.S. 1089, 1095, evi- argument 67 L.Ed.2d ser-Busch’s that Muldrew’s testimony than Anheuser- Muldrew’s as well as the efforts persuasive dence was less made impeach should have been Anheuser-Busch to his evidence Busch’s evidence this fact and not to to the trier of only mitigation. evidence of Mul- Substantial court. sup- efforts to find work exists to drew’s verdict. port jury’s Anheuser-Busch’s reviewing all of
After
alleged
arguments,
any
we find that
Anheuser-Busch contends that Mul
mis-
testimony
of irrelevant
or
admissions
drew failed to substantiate his claims of
in-
counsel were
plaintiff’s
statements of
anguish
mental
and emotional distress.
not constitute re-
consequential and would
During
argument
brought
oral
it was
the district
versible error. We affirm
ambiguity
this court’s attention that some
motion
court’s denial of Anheuser-Busch’s
damages
exists in this circuit as to whether
for a new trial.
for emotional distress are available under
Damages
Smith,
*4
v.
719
Title VII. Cf. Behlar
F.2d
Finally, Anheuser-Busch contends that
950,
(8th Cir.1983); Fiedler v.
953
Indian
$125,000
damages
the
award of
in
jury’s
Line, Inc.,
806,
n. 3
head Truck
670 F.2d
supported by
Specif-
was not
the evidence.
(8th Cir.1982); Williams v. Trans World
that Mul-
ically, Anheuser-Busch contends
Inc.,
1267,
(8th
Airlines,
660 F.2d
Cir.
work after his
diligently
drew failed to
seek
Williams,
opin
of this
1981). In
the author
Muldrew’s evidence of
termination and that
that “the award
ion made the observation
mental
was an insuf-
and emotional distress
damages
of
for humiliation
compensatory
jury’s
ficient basis for the
award.1
suffering
appropriate
or emotional
is an
dis
employee wrongfully
An
remedy for
of a constitutional
deprivation
efforts to
charged must use reasonable
Williams,
at 1272. Al
right.”
660 F.2d
mitigate
damages.
his or her
Fielder
embodied a claim under
though Williams
806,
Line, Inc.,
Indianhead Truck
670 F.2d
VII,
1981 and Title
our statement should
§
However,
(8th Cir.1982).
the burden is
damage
have been confined to the
claim
prove
on the defendant
failure to asserted under
1981.2
§
Education,
mitigate. Hegler v. Board of
case,
jury
In the instant
the
award
(8th Cir.1971).
447 F.2d
At
ed
1981. Muldrew
damages under §
Muldrew
evidence that he at
presented evidence that as a result of his
tempted
employment
to obtain
after his
house,
discharge he lost his car and
he and
discharge but was unable to find work until
began experiencing
prob
his wife
marital
approximately
year
a
and a half after
lems,
respected
and he felt that his children
the
discharge. Given the effect of
dis
him
of the
computation
damages
less. The
and the
charge on Muldrew’s work record
time,
an individual for
necessary
compensate
at the
employment market
Muldrew’s
job
deprivation
right
failure to find new
for that
of
the
of a constitutional
is a
period
jury
time is not unreasonable. The
heard
An
court cannot
question
appellate
fact.
provision
1. Anheuser-Busch
calculates Muldrew’s
lost
on a
of the National Labor Relations
$72,355.20;
thus, $52,644.80
wages
dealing
practices
at
of the
Act
with unfair labor
which
allotted,
presumably,
award is
to Mul-
interpreted
permit
has been
not to
an award of
drew’s claim of emotional distress and mental
Third,
compensatory
damages.
because Con-
suffering.
gress
explicitly provided
compensatory
has
damages
addressing
in other statutes
discrimi-
in Walker v. Ford
2. As the Eleventh Circuit
nation, see, e.g.,
Laws,
Housing
Fair
42 U.S.C.
Co.,
(11th Cir.1982),
Motor
has
F.2d
(1976
Supp.
1981),
logi-
3601-3631
V
it is
§§
out,
unavailability
pointed
the reason for the
provision
cal to read the absence of such
in
compensatory damages
VII
under Title
is three-
by Congress
Title VII as a conscious choice
not
First,
language
fold.
of the statute offers
damages
to make those
available in a Title VII
reinstatement,
relief,
only equitable
such as
Therefore, any
Id. at 1363-64.
action.
dicta in
compensation
whereas
for humiliation
implying
damages for
cases of this circuit
that
legal
suffering
emotional
form of
relief.
is a
suffering
humiliation and emotional
are availa-
Second,
legislative history
indicates
that
disregarded.
under
VII should be
ble
Title
damages provision
VII was modeled
of Title
a finding
overturn
of fact unless the court
1093-94,
I respectfully dissent. I have difficulty However, event, any in perceiving plaintiff has been discri- defendant tendered a legitimate, nondis- all, against minated particularly on criminatory reason —excessive absentee- account of race. To recover in a Title VII ism —for action, must, firing plaintiff. plaintiff aby preponderance prove failed to evidence, pre- this reason was a establish a case discrimination, text for and thus discrimination. Once this is accom- failed to sustain plished, proof, the burden shifts to the his burden of he defendant because *5 to failed legitimate, prove articulate a nondiscriminato- to that he was treated differ- ry ently reason for its action. If the than similarly employ- defendant situated white burden, fact, carries this ees. then the must as an examination of the table prove, by preponderance evidence, reveals, below the evidence showed that the proffered is a pretext reason there were no similarly situated white em- Dep’t Texas of Community ployees except for who Resinger also was Burdine, 248, Affairs v. 252-53, 450 U.S. fired. Number of Unexcused Absences (Includes Late Early Departures) Arrivals and Employee Records into Evidence Introduced
GENO RESINGER FEAGER REISING PLAINTIFF 1977 44 98 14 0 101 suspensions 2 suspension 1 suspension 1 1978 40 44 45 50 114 reprimand suspension 1 suspension suspensions 1 3 1979 17 43 27 38 reprimand suspension fired suspension; suspension suspension fired i figures fail to take medical absenc- record that the medical absences However, es into account. medical absenc- other employees pretextual. were In addi- es were excused and to them tion, include in the there was evidence on the record that total is illegitimate an use of statistics. during period the time in question, eleven There is no basis for including medical ab- employees white em- only one black sences in the total because none of the ployee, plaintiff, were fired for exces- plaintiff’s absences were for medical rea- sive support absenteeism. This does not sons, and there was no evidence in claim of racial discrimination. plaintiffs attendance is atro- record cious. Employers expected cannot be to America, Appellee, UNITED STATES
tolerate plaintiff’s records like the and still Further, stay in business. of law courts FRANKLIN, Appellant. Cornelius should not exploitation tolerate the of civil No. 83-1286. rights legislation. by As noted the Su- preme Court: United Court of Appeals, States
“Congress by did not intend Title VII Eighth Circuit. guarantee job ... to every person Sept. Submitted 1983. ' regardless qualifications .... Decided Feb. required Congress What is by artificial, removal of arbitrary, and un-
necessary employment barriers to when operate barriers invidiously dis-
criminate on the basis of racial or other
impermissible classification.”
There are personal societal as well as
interests on both equation. sides of this broad, interest, overriding shared consumer,
employer, employee, and is ef-
ficient and trustworthy [performance] as-
sured through racially fair and neutral
employment personnel decisions. Green,
McDonnellDouglas Corp. v. 411 U.S.
792, 800-01, 1817, 1823-24, 93 S.Ct. (1972), quoting, Griggs v. Duke Co.,
Power *6 The plaintiff
certainly was neither an efficient nor trust- worker;
worthy by his own action he
strayed so far from that norm that he de-
served to be rights legislation fired. Civil protect conscientious, intended to mod-
erately productive employees race and discrimination;
sex it was not intended to
protect irresponsible employees from the
natural consequences of their I behavior.
would reverse.