*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. 84 L.Ed.2d 518 us, to decide whom and what to believe. (1985). finding A may be clearly erroneous if testimony tending support finding internally is so inconsistent or im III.

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, 788 F.2d 781

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.