Grubb v. W.A. Foote Memorial Hosp., Inc., s. 82-1879

• Decision Date: 16 April 1985
• Docket Number: Nos. 82-1879,82-1888,s. 82-1879
• Citation: 759 F.2d 546
• Parties: 37 Fair Empl.Prac.Cas. 867, 36 Empl. Prac. Dec. P 35,142 Charles H. GRUBB, Plaintiff-Appellee, Cross-Appellant, v. W.A. FOOTE MEMORIAL HOSPITAL, INC., a Michigan corporation, Defendant- Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 546

759 F.2d 546

37 Fair Empl.Prac.Cas. 867,

36 Empl. Prac. Dec. P 35,142

Charles H. GRUBB, Plaintiff-Appellee, Cross-Appellant, v. W.A. FOOTE MEMORIAL HOSPITAL, INC., a Michigan corporation Defendant- Appellant, Cross-Appellee.

Nos. 82-1879, 82-1888.

United States Court of Appeals Sixth Circuit.

Argued Jan. 24, 1984.

Decided April 16, 1985.

Edward M. Richters (argued), Day, Berry & Howard, Hartford, Conn., John H Schomer, Dykema, Gossett, Spencer, Goodnow & Trigg, Jackson, Mich., for defendant-appellant, cross-appellee.

Joseph C. Marshall, III (argued), Dickerson, Wright, Moon, Robert P. Young, Detroit, Mich., for plaintiff-appellee, cross-appellant.

Before ENGEL and WELLFORD, Circuit Judges, and WEICK, Senior Circuit Judge.

ENGEL, Circuit Judge.

In Grubb v. W.A. Foote Memorial Hospital, Inc., 741 F.2d 1486 (6th Cir.1984), a majority of this panel, Judge Engel dissenting, directed the reversal of the judgment of the district court, 533 F.Supp. 671, insofar as it had found in favor of the plaintiff on his claim of racial discrimination and granted monetary and other relief therefrom. In all other respects the judgment was affirmed but the cause was directed to be remanded to the district court for the dismissal of the plaintiff's complaint. A timely motion for rehearing en banc was filed, and voting on the petition en banc was suspended when it appeared that the panel was reconsidering its original position.

Having now reconsidered its position in the light of the petition filed, a majority of the panel concludes that the issues with respect to Grubb's claim of racial discrimination are primarily factual and that the determinations made by the trial judge finding that plaintiff had been discharged because of racial discrimination are not clearly erroneous. In view of the completeness of the statement of facts, which is already published, a majority of the court believes that they are sufficient to support such a finding. A majority of the court also concludes that the trial judge did not err in fashioning appropriate relief. Accordingly, the original judgment of this court is vacated and the petition for rehearing is granted. Upon reconsideration, the judgment of the district court is AFFIRMED.

WELLFORD, Circuit Judge, concurring.

I concur with the decision of Judge Engel, upon reconsideration, despite serious misgivings about the facts in this case. While I probably would have reached a different result with respect to the findings and conclusions made by the trial judge, it is she who had the responsibility to make the credibility determinations after an opportunity to assess the proof and evidence. I do not have the conviction after examining the record carefully that error has been committed and/or that an unjust result has been reached as does our brother, Judge Weick.

WEICK, Senior Circuit Judge, dissenting:

I adhere to the decision of this court, reported in 741 F.2d 1486 (6th Cir.1984), in which a majority of the panel held that the findings of fact of District Judge Patricia J. Boyle ¹ relative to racial discrimination were not supported by substantial evidence and were clearly erroneous. Grubb filed a petition for rehearing with a suggestion that it be reheard en banc. A majority of the judges did not vote in favor of en banc consideration and the petition for rehearing was referred to the panel for...