Farmer v. Richman Gordman Stores, Inc., 41947

Decision Date01 May 1979
Docket NumberNo. 41947,41947
Citation278 N.W.2d 332,203 Neb. 222
CourtNebraska Supreme Court
Parties, 39 Fair Empl.Prac.Cas. (BNA) 41, 19 Empl. Prac. Dec. P 9170 John Richard FARMER, Appellee, v. RICHMAN GORDMAN STORES, INC., Appellant.

Syllabus by the Court

1. Administrative Law: Appeal and Error. Upon appeal to the District Court from an order of the Nebraska Equal Opportunity Commission the review is by trial de novo upon the record.

2. Evidence: Appeal and Error. Where the evidence supporting the District Court's findings of fact is substantial, the findings will not be disturbed.

George C. Rozmarin, of Swarr, May, Smith & Andersen, Omaha, for appellant.

Thomas F. Dowd, P.C., Omaha, for appellee.

Heard before KRIVOSHA, C. J., McCOWN, CLINTON, and WHITE, JJ., and J. KELLY, District Judge.

WHITE, Justice.

This is an appeal from an order of the District Court for Douglas County affirming a decision of the Nebraska Equal Opportunity Commission that the appellee, John Richard Farmer, was discriminated against by the appellant, Richman Gordman Stores, Inc., on account of race and color in violation of the Nebraska Fair Employment Practice Act, section 48-1101 et seq., R.R.S.1943, as amended. We affirm..

Section 48-1104, R.R.S.1943, amended in 1977, provided in 1973, when this action began, as follows: "It shall be an unlawful employment practice for an employer: (1) * * * to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, disability, or national origin; * * * ."

The assignments of error all relate to the findings of the District Court alleging that they were arbitrary and not supported by a preponderance of the evidence. An appeal to the District Court from an order of the Nebraska Equal Opportunity Commission is now governed by section 48-1120, R.S.Supp., 1978. This section provides that the determination by the District Court shall extend to all questions of law and fact presented by the entire record and an order of the commission shall not be vacated, modified, or set aside unless the findings of the commission in support of the order are unreasonable or arbitrary or are not supported by a preponderance of the evidence. "The District Court is required to review the entire record, weigh the evidence, and determine what is the preponderance of the evidence. * * * The review in the District Court amounts to a trial de novo upon the record." Snygg v. City of Scottsbluff Police Dept., 201 Neb. 16, 266 N.W.2d 76; Duffy v. Physicians Mut. Ins. Co., 191 Neb. 233, 214 N.W.2d 471.

In overruling Richman Gordman's motion for a new trial, the trial court said: "* * * if I were deciding this case de novo, I think I would probably find for the defendant, but my review is limited." Appellant points to this statement as an indication that the District Court applied an incorrect standard of review. However, the court went on to say: "I have decided it on the basis of whether or not the finding and the judgment of the Commission is supported by the preponderance of the evidence and whether or not it is contrary to law. I don't think it is contrary to law, and I think that it is supported by the evidence, and that is what I am basing it on." By the former statement, the court may have been alluding to the deference owed to the original forum, which had the opportunity to observe the witnesses and their manner of testifying. See Tedco Development Corp. v. Overland Hills, Inc., 200 Neb. 748, 266 N.W.2d 56. The latter statement of the District Court and the following analysis indicates the proper standard of review was applied.

The evidence most favorable to the appellee's position indicates that the appellee, a black, was employed by Richman Gordman Stores, Inc., from July 17, 1965, to May 2, 1973; that for the 6 months prior to his discharge, the appellee worked at the appellant's store at 120th and Center Streets in Omaha and prior thereto worked at the appellant's store at 16th and Burt Streets.

Eighty percent of the customers at the Burt Street store were black. The appellee...

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4 cases
  • Airport Inn, Inc. v. Nebraska Equal Opportunity Com'n
    • United States
    • Nebraska Supreme Court
    • 13 July 1984
    ...etc., 637 F.2d 506 (8th Cir.1980); Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974); Farmer v. Richman Gordman Stores, Inc., 203 Neb. 222, 278 N.W.2d 332 (1979); Zalkins Peerless Co. v. Nebraska Equal Opp. Comm., 217 Neb. 289, 348 N.W.2d 846 The Court in New York Gaslig......
  • Ranger Div., Ryder Truck Lines, Inc. v. Bayne
    • United States
    • Nebraska Supreme Court
    • 6 May 1983
    ...on review of a commission order if the District Court's findings are supported by substantial evidence. Farmer v. Richman Gordman Stores, Inc., 203 Neb. 222, 278 N.W.2d 332 (1979); Snygg v. City of Scottsbluff Police Dept., 201 Neb. 16, 266 N.W.2d 76 (1978); Duffy v. Physicians Mut. Ins. Co......
  • Zalkins Peerless Wiping Co. v. Nebraska Equal Opportunity Com'n
    • United States
    • Nebraska Supreme Court
    • 11 May 1984
    ...therefore one of a de novo review of the record, with an independent determination by the district court. Farmer v. Richman Gordman Stores, Inc., 203 Neb. 222, 278 N.W.2d 332 (1979); Duffy v. Physicians Mut. Ins. Co., 191 Neb. 233, 214 N.W.2d 471 (1974). In this court, however, since no dif......
  • Brown's Estate, In re
    • United States
    • Nebraska Supreme Court
    • 1 May 1979

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