*1 right speech, free involves personal injury just as much as a physical assault. injury
While the physical, well psychic
involve mental or pain and suffer-
ing. Just as in the pain case of the and suf-
fering resulting physical from a injury, the
injury individual from pain mental suffering
and only can estimated mon- is,
ey. nonetheless, But it compensable and
the courts estimate it as best can.
Moreover, any injury economic proximately such
resulting, as of wages loss in this in-
stance, may compensated for in an award damages personal injuries in-
volved denial of the right. civil
parties agreed in their settlement of dam-
ages in this instance did not choose to allow
for the mental stress but based their award
on wages the lost appellee and his
attorney’s fee which proximately resulted
from the denial of right his speech. free
This was entirely appropriate. petition will be denied. Eileen McGinley Stein, Chevy Chase, Md.
(Leslye Orloff, Washington, D.C., brief), on for plaintiff-appellant.
Waller S. Hairston (Henry, Hairston & Price, Easton, Md., brief), for defend- BEATTY, Sandra K. ants-appellees. Plaintiff-Appellant, WINTER, Before Judge, RUSSELL, WIDENER, HALL, CENTER, INC.; CHESAPEAKE Chesa- PHILLIPS, MURNAGHAN, peake SPROUSE, Developmental Unit, Inc.; Chesa- ERVIN, CHAPMAN, peake Group Homes, Inc., WILKINSON Defendants- WILKINS, Judges, Appellees. HAYNSWORTH, Judge, Senior Circuit No. 86-1176. sitting en banc. Appeals, States Court United Circuit. Fourth HAYNSWORTH, Senior Circuit 6, 1987. Argued Oct. Judge: Dec. Decided Sandra Beatty brought K. this action
alleging employment be- discrimination cause of pregnancy. During a bench trial, there conflicting testimony said, or- session, regarding plaintiff’s ientation undergoing a tuberculin test. At the con- clusion hearing, the district acceptance announced his his testimony Mary man- ager of the unit. appeal, of this court
On
divided
upon
ground
that Brown’s
reversed
improbable
testimony
inherently
so
as
Concluding
to be
unbelievable.
plaintiff
prima
case that
facie
*2
said,
testimonial
of what was
version
Beat-
unrebutted,
di-
court
entirely
out was
ty testified that she had told Brown “It’s
plain-
for the
entry
rected
good
I’m
probably
that
certified because it
Inc.,
Center,
Chesapeake
Beatty
tiff.
probably
healthy for me to
wouldn’t be
Cir.1987).
(4th
F.2d 318
have one at this time.”
pe-
defendant’s
of the
Upon consideration
Beatty’s
accepts
If one
testimonial ver-
of the
rehearing, a
tition
orientation
sion
what was said at the
ser-
judges of this court
session,
reasonably
it
one cannot
construe
the en
granted a
before
vice
as an adamant refusal
to take
test.
Cir.1987).
(4th
F.2d 60
court. 823
however,
testified,
that she under-
Brown
I.
Beatty
Beatty
told
stood
to have
her that
privately operat-
Chesapeake Center is a
test, though she
would not take the
was
subject
regu-
agency
ed
to extensive
social
pleased that she need not take it.
1983,
by Maryland.
Beatty
Late in
lation
interrupted the orientation ses-
Brown
applied
position
as an instructor of
director,
sion to consult the Center’s
John
mentally retarded adults. After an inter-
Wright. According to both Brown and
Brown,
manager,
view with the unit’s
Beat-
Wright,
Wright
Beatty
Brown told
that
2,
ty
job
was offered a
December
test,
sought
refusing to take the
but
to
on Janu-
reported for orientation
Beatty
satisfy
requirement
her evidence of
wearing maternity
16,1984.
ary
She was
testing. Upon
the results
earlier
preg-
she was
Beatty told Brown
blouse.
Wright’s instructions,
Beatty
Brown told
nant, though
not known she was
she had
suspended
process
that the orientation
job
sought the
several
pregnant when she
status,”
Beatty’s “change
because
of the women testi-
earlier. Each
weeks
promised to be in touch with her.
Beatty’s preg-
they agreed that
fied that
instructions,
Upon Wright’s
Brown con-
problem.
employment
nancy created no real
public
tacted the
nurse at the Talbot Coun-
granted
had
mater-
past,
In
the Center
ty, Maryland,
Department,
Health
the Cen-
separate occasions with-
nity leave on ten
TB
The nurse
ter’s contact for
tests.
told
problem.
encountering any serious
out
Beatty’s
her that
documentation was stale
sign
Brown
Beatty
had
accepted.
and could not be
agreement,
after which
proceeded
Brown wrote Beatty, stating,
light
“In
with the
process.
orientation
employ-
your
position
stated
subjecting
agreement
ment
provision
contained a
that
yourself
time,
to a tuberculin test at this
the employee
willing
must be
undergo
we are unable to
process you
continue to
as
physical examinations,
annual
including tu-
employee.”
new
tests, and
berculin
the orientation instruc-
Beatty immediately
physi-
contacted her
tions
inquiry
directed
to that matter. Beat-
cian, who told her that a tuberculin test
ty presented a certificate of Charles Coun-
present
would not be harmful in her
condi-
ty, Maryland, to the effect that she was
Beatty
explain-
tion.
then wrote to
free of communicable tuberculosis on Octo-
ing
willingness
her
to take a TB test.
4,
ber
presented
1981. She also
a letter
responded
job
Brown
had been
from
physician
her
that a tuberculin test
filled.
had been
4,
administered on November
significance that
matter of some
It is a
negative
Earlier,
with
results.
a skin
January
responded on
test on Beatty had
positive
been read as
20,1984,
January
letter of
to Brown’s
tuberculosis, although subsequent chest x-
misstated
say that Brown
did not
she
rays
being
were read as
negative.
dur-
Beatty had said
or misconstrued
a discussion
engaged in
women
The two
Beatty admit-
session.
ing the orientation
as
agreement
There was
matter.
think it
“I didn’t
said that
she had
ted that
is clear
it
said but
exactly what
done
TB test
healthy
have the
be
would
undergoing
concern
some
Beatty had
though
said
she
pregnant,”
I am
because
pregnan-
of her
testing because
tuberculin
context of
in the
was made
statement
records
thought her
she
cy, and
the earlier
results of
belief
satisfy-
as
accepted
testing should
prior
unnecessary for her to
tests
in her
point
oneAt
requirement.
ing the
again. Nor did she claim
pregnancy.
tested
that she
That was what Brown report-
expressed willingness
would
Wright,
ed to
as confirmed by Wright’s
she had been told
test
testimony,
that is
what Brown said in
meeting
orientation
results
her letter
Beatty,
a statement which
unacceptable.
Instead,
earlier tests were
went without direct refutation in Beatty’s
that, upon receipt
she
let-
said
Brown’s
response.
*3
ter,
physician
called her
she
and was then
The fact
questioned
that Brown
Beatty
might safely
told that she
the test.
take
as to
Beatty
whether
knew of her pregnan-
advice,
On the basis of that fresh
she told cy
position
at the time the
was offered to
willing
that she
Brown
was then
to take
support
would lend
to an adverse infer-
the test.
ence, but no adverse inference was com-
that, earlier,
testimony
There was also
pelled in light of
testimony
the
that both
employees
some new
had been allowed to
agreed
women
that the pregnancy would
undergoing
commence work before
the test
create no
serious
problem.
weeks,
months,
later,
even
several
but
Finally, Beatty contends that
the Cen-
there was also evidence that
Center’s
the
story
ter’s
plausible
is
only if Brown and
operations would soon be
in
reviewed
con-
Wright acted for a discriminatory purpose
procedures
nection with recertification
intent,
with a discriminatory
but the con-
compliance
regu-
that strict
with the state’s
tention is
upon complete
founded
accept-
latory
thought
rules was
necessary
to be
Beatty’s
ance of
testimonial version of
necessary
assure the
recertification.
during
what was said
the
proce-
orientation
That,
dure.
may
do,
this court
not
II.
Beatty’s testimonial version of what was
The role of the fact finder is vested ex
said was
by
contradicted
the
clusively in the
judge,
district
whom
the
January
letters of
20
January
23 tend
jury.
case
tried without a
have no
We
support
Brown’s testimonial version of
power
to set aside those
of fact
what was said rather than Beatty’s.
“clearly
unless
are
erroneous.”
The district
testimony
heard the
City
Anderson v.
City, 470
Bessemer
him,
and saw the witnesses.
It was for
not
564,
1504,
U.S.
105 S.Ct.
plausible accepted by that it could not be of the district court is reasonable fact finder. Id. at affirmed. S.Ct. 1512-13. at AFFIRMED. story
Brown’s internally neither so inconsistent implausible pos- nor so as to WINTER, L. HARRISON sess believability. Judge, concurring: That enforcement of the tuberculin test majority judges Since a of the active employees for new had been somewhat voted to rehear in this case banc and since past might lax in the justify adverse vote, I have a to sit and to duty concur in finder, by inference the fact no such Judge Haynsworth’s opinion. I do re- so compelled inference was in light of the luctantly, because I not doubt testimony preparation the im- proper, pending affirmance is but because I am operations. review of convinced case should not have There is no such inconsistency implau- or by been heard the in banc court even if it sibility Brown’s testimonial version of incorrectly by majority decided Beatty said the orientation panel. procedure. Brown testified that her that Beatty unwilling by told The determination of causes a court test at appeals sitting governed by that time because of her banc is (1985). pertinent part, In F.R.App.P. L.Ed.2d 518 That case of Rule that, binding authority crystal clear rule is: trial, in court district court’s determina- Determination Causes Rule 35. appellate tion which court finds uncon- Banc the Court must, nevertheless, genial be affirmed as (a) Hearing Rehearing When clearly to an issue of fact unless erroneous. A be Ordered. Banc Will (two dissenters of twelve judges circuit who are appellate judges, that is two of thirteen appeal order that an service heard who have the case heard or reheard proceeding or other included) judge is district allowed them- appeals banc. Such a by the court swayed by apparent selves to be uncon- rehearing is not favored and hearing or so, geniality. doing they gave By lip ser- (1) except ordered ordinarily will then, by proceeding vice to the rule but by the full court is consideration *4 judge clearly find the district to have been necessary to secure or maintain uniform- erroneous where there nonetheless was ad- decisions, (2) pro- ity of its equate support finding, his evidence ac- exception- of ceeding question a involves ruling. tually emasculated the If the hold- importance. al ing panel (the of the at the level reading panel opinions of the and From a appeal) pre- dissenters on en banc Judge Haynsworth’s opinion for the in of vailed, departure would met a we be with court, manifest it is that even ruling spirit from the of the in the opinion erroneous did not breach the case, City City Anderson v. Bessemer of decisions,* in uniformity our nor did it of which we would have found difficult to exceptional importance. of question volve a precedential correct view of the value of disputed it a call on At most was holding. such a facts. It follows that the letter and Judge Winter seeks to dismiss the spirit the case were observed merely judgment disputed a on case as call should not have been reheard in banc. The regrets facts. He the time consumed in judges. in banc court consisted of twelve rehearing the case en banc and the waste rehearing, During the time consumed in this sitting of valuable court resources banc, they case in should have sat four requiring presence of all the panels heard four other cases. other could heard. when otherwise cases be Judge say PHILLIPS authorizes me to However, merely one this was not involv- opinion. that he concurs in this ing disagreement as to which of two disputed findings prevail. should factual MURNAGHAN, Judge, Circuit judge every appellate Even if found more concurring: acceptable they of the facts as the version dissenters, were, appear they to the never- sympathetic plaintiffs Here had a we theless, accept contrary bound to find- evidentiary material case where sub- ings judge of the district inasmuch as mitted to the trial was indicative of evidentiary support. had sufficient possible either of results. There were two adequately support facts which would disturbing imag- me it is To somewhat also, finding plaintiff. and, for the There how- handing ine down an incorrect there- ever, adequately support fore, decision, recognize were facts I unjust that finding major- for the defendant. Both the there can cases of that kind which do be appeal ap- ity and dissenters en banc not merit en banc reconsideration. How- ever, hearing pear accept City the rule of one reason for en banc is the Anderson security uniformity City, 470 U.S. 105 S.Ct. and maintenance Bessemer * banc, reject Judge Murnaghan's every appeal emphatically or rehear thesis hear notwith- uniformity standing Judge Murnaghan's of our decisions is breached disavowal to the argued panel opinion whenever it that a contrary, every appeal because in there is some prece- incorrectly applies Supreme a basic Court Supreme holding Court which is involved. basic prevail, ought we dent. Were this view to 35(a). That re- our decisions. See FRAP that it necessary important as use of the word “or” indi- quirement, we take the trouble to hear the case cates, disjunctive grounds for an banc Judge Haynsworth trouble en banc hearing or “when the himself to write and to correctly. write question excep- proceeding involves a Judge Widener has say authorized me to holding importance.” The in a Su- tional that he concurs in my opinion. so, In doing preme Court case is one as to which we he does not intend to reduce in way the strive to secure or maintain uniform- must strength and enthusiasm of his concur- presented The case here had to ity. Judge Haynsworth’s rence opinion for heard en banc to secure or maintain such the en banc majority. uniformity, regard important and I it as encourage do not we ill-conceived “achieving justice” sympa- for the notion HALL, K.K. Judge, party ignoring thetic the factual evi- dissenting: judge’s dence and the district court deci- Although great sion.1 mandated deference to fact, a district court’s the Su already my I have indicated concurrence preme Court in City Anderson v. Bes opinion produced by Judge with the fine City, semer 564, 105 470 U.S. S.Ct. Haynsworth. I concur specially, not to (1985), L.Ed.2d 518 articulated a standard suggest my acceptance enthusiastic review, appellate Judge Haynsworth is in a standard that has written diminished, any way present precludes but to a view review. Even a decision that re- *5 worth, techniques promoting Judge of Sprouse Judge 1. One the court's Since Hall. order, justice randomly panel changes there are six to select members to such irrelevant of to cases, customarily groups arrive at the hear in of three. correct number of combinations of randomly panels technique selected different we must di- Here the has led us into an unfortu- (The by panels bog vide six. six Slough Despond. different which are nate veritable of —a Hall, purposes Judge identical for these are: judges originally assigned the When were Judge Hall, Judge Sprouse, Haynsworth; Judge case, was, panel consideration of the there of Judge Haynsworth, Judge Judge Sprouse; course, way knowing prior argument of to Hall, Haynsworth, Judge Judge Judge Sprouse; members, panel non-panel how the or the mem- Hall; Haynsworth, Judge Judge Sprouse, Judge bers, However, of the court would vote. Hall, Judge Sprouse, Judge Haynsworth; Judge retrospect, only appears it now that there was Sprouse, Judge Haynsworth, Judge Hall). That extraordinary concatenation circumstanc- (1320/6) yields possible 220 as the number Judge problem Haynsworth’s led to es which panels. Using technique the same we find opinion any judge, en banc addresses. other If panels possible ten different could making up than either of the two members Judge makeup include in their both Hall and selected, panel majority, been decision likelihood, therefore, Judge Sprouse. The and, prob- would have below been correct in all wrong being panel decision here reached at the ability, peti- successfully would have been never (10/220). level was I to 4.54% submit tioned to en banc. If either one of panel leave the decision undisturbed would em- panel majority replaced had been body system an error of which 4.54% in a we (t.e., judges complement the other nine the full bring success introduced counting Judge judges of active circuit not Hall is, justice. quest to achieve full and fair It service, Judge Sprouse) he short, necessary say repeated oft panel would have voted at the level and his judges fungible, the Fourth Circuit are replacement Judge would have sided with fungible enough or at result, the correct least to insure Haynsworth, converting panel his dissent at the panel did not work selection here. majority opinion. level The defendant's counsel here would have appears judges, namely, It 95,46 with twelve complain of since much to times out the eleven active circuit and one senior (He he should have won. would and judge, circuit available for random selection time.) have won It is should 100% dis- panel, separate possible form the there were 220 tasteful me see the work the court panels. only Of those ten could be com- guise operated by on the of a roulette wheel Judge Judge posed Sprouse. of both Hall and emphatically by my suggestion I chance. stick permutations judges organized of twelve security that there has not been and mainte- panels judges yields of three 1320 distinct uniformity may into possible panels. nance of in our decisions. It However, purposes argued proceeding our even be that we have here a Hall, Judge Judge Sprouse Judge exceptional question impor- involves a which Haynsworth Judge Hayns- would the same as tance. of witness credibil upon lies an assessment “clearly erroneous” reversed as
ity “in account viewed
when the witness’s entirety” is “im in its
light of the record Anderson, 470 U.S.
plausible on its face.” also, 1512. See Bish
at
105 S.Ct. at
Columbia,
opp v. District of
(D.C.Cir.1986). stated in the previously the reasons
For opinion Chesapeake
majority
Center, Inc., (4th Cir.1987), I F.2d 318 Chesapeake Cen-
remain convinced that prima its facie act of explanation for
ter’s utterly un-
employment discrimination majority’s
worthy of belief. suggests
contrary the “conclu- conclusion 52(a)
sory” application of Rule which Jus- against in
tice Powell cautioned his concur- I, therefore,
ring opinion in Anderson.
respectfully dissent from the decision en banc announces to-
which
day. Judge to state that am authorized opinion.
Sprouse joins in this *6 America,
UNITED STATES
Plaintiff-Appellee, AUGUST,
Allen Pierre
Defendant-Appellant.
No. 87-3578
Summary Calendar. Appeals, United States Court Charles, La., Gray, Alcide J. Lake Fifth Circuit. defendant-appellant. Dec. Hamilton, Collier, Asst. Curtis Robert Volz, Atty., Attys., P. U.S. New
U.S. John Orleans, La., plaintiff-appellee. GEE, Before GARWOOD JONES, Judges.