Dace v. ACF Industries, Inc., 83-1024

• Decision Date: 16 February 1984
• Docket Number: No. 83-1024,83-1024
• Citation: 728 F.2d 976
• Parties: 40 Fair Empl.Prac.Cas. 1604, 33 Empl. Prac. Dec. P 34,210 Loyd S. DACE, Appellant, v. ACF INDUSTRIES, INC., Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 976

728 F.2d 976

40 Fair Empl.Prac.Cas. 1604,

33 Empl. Prac. Dec. P 34,210

Loyd S. DACE, Appellant, v. ACF INDUSTRIES, INC., Appellee.

No. 83-1024.

United States Court of Appeals Eighth Circuit.

Feb. 16, 1984.

Before BRIGHT, ARNOLD, and FAGG, Circuit Judges.

PER CURIAM.

In view of certain arguments made in defendant's petition for rehearing en banc, which is being denied today by separate order, we deem it appropriate to offer a few additional comments about the issues in this case.

The most serious argument made by the petition for rehearing en banc is that the opinion of the panel, 722 F.2d 374 (8th Cir.1983), by which we reversed the District Court's grant of a directed verdict for the defendant, 553 F.Supp. 545, is based on legal principles in conflict with those stated by another panel of this Court in Halsell v. Kimberly-Clark Corp., 683 F.2d 285 (8th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1194, 75 L.Ed.2d 438 (1983). The petition points, for example, to our statement that on motion for directed verdict or for judgment notwithstanding the verdict consideration should usually be limited to evidence supporting the party who opposes the motion. Specifically, we held that the strength of testimony given by employees of the defendant is to be weighed by the jury, not by the Court, at least in the normal case. In Halsell, by contrast, as the petition points out, we did consider evidence provided by employees of the defendant in deciding to affirm a directed verdict granted by the District Court. ¹

The petition for rehearing en banc correctly states that this issue is an important and recurring one in the administration of justice. Perhaps at some point it should and will be addressed by the Court en banc. We believe, however, that the instant case is not the appropriate vehicle for this inquiry.

In Halsell the Court upheld the grant of the directed verdict on two independent and alternative grounds: (1) that the plaintiff had not made a prima facie case of age discrimination, and (2) that even assuming a prima facie case had been made, the rebuttal evidence offered by the defendant overwhelmingly established a legitimate, nondiscriminatory reason for discharging the plaintiff. In the present case, of course, the plaintiff did make a prima facie case of age discrimination. Both the District Court and this Court have so held. The discussion in Halsell of the strength of the evidence offered by the defendant related only to the second alternative basis for our holding and was not necessary to the decision in that case.

Furthermore, even in that portion of the opinion discussing the alternative holding based on the strength of the defendant's evidence, the Halsell court took care to distinguish the case before it from Tribble v. Westinghouse Electric Corp., 669 F.2d 1193 (8th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1767, 76 L.Ed.2d 342 (1983), in which the denial of a defendant's motion for directed verdict in an ADEA case was affirmed. In Tribble, we stated that "[t]he mere fact that Westinghouse articulated a legitimate nondiscriminatory reason for its discharge of plaintiff does not mean that Westinghouse is entitled to have a verdict directed in its favor." Id. at 1196. The Halsell court distinguished Tribble in the following manner:

Unlike the case now before us, the plaintiff in Tribble had presented evidence...