Kellin v. ACF Industries, 365

• Decision Date: 05 September 1980
• Docket Number: 79-1924,A,No. 365,Nos. 78-1772,365,s. 78-1772
• Citation: 629 F.2d 532
• Parties: 25 Fair Empl.Prac.Cas. 1309, 24 Empl. Prac. Dec. P 31,196 Kenneth W. KELLIN, Appellant, v. ACF INDUSTRIES and Brotherhood of Railway Carmen Localppellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 532

629 F.2d 532

25 Fair Empl.Prac.Cas. 1309,

24 Empl. Prac. Dec. P 31,196

Kenneth W. KELLIN, Appellant, v. ACF INDUSTRIES and Brotherhood of Railway Carmen Local No 365, Appellees.

Nos. 78-1772, 79-1924.

United States Court of Appeals Eighth Circuit.

Submitted April 14, 1980.

Decided Aug. 20, 1980.

As Corrected Sept. 5, 1980.

John H. Quinn, III, St. Louis, Mo., for appellant.

Thomas C. Walsh, St. Louis, Mo., for appellee, ACF; Hollye Stolz Atwood, St. Louis, Mo., on brief.

Marilyn S. Teitelbaum, Schuchat, Cook & Werner, St. Louis, Mo., for appellee, Union; Charles A. Werner, St. Louis, Mo., on brief.

Before STEPHENSON and McMILLIAN, Circuit Judges, and VIETOR, ^* District Judge.

McMILLIAN, Circuit Judge.

Appellant Kenneth W. Kellin appeals from orders of the district court granting judgment to appellees ACF Industries, Inc. (hereinafter ACF) and Brotherhood of Railway Carmen Lodge No. 365 (hereinafter Lodge 365), and denying appellant's motion for relief from judgment under Rule 60(b) of the Federal Rules of Civil Procedure. After a trial on the merits, the district court dismissed appellant's claims that appellees had violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and the Civil Rights Act of 1866, 42 U.S.C. § 1981, by discriminating against him on the basis of his race and by retaliating against him for opposition to practices made unlawful by the civil rights act. ¹ We affirm, except as to the claim against ACF for retaliation in violation of § 704(a) of Title VII, 42 U.S.C. § 2000e-3(a), which we remand to the district court for further consideration.

On appeal appellant argues that the district court erred in finding that ACF's discharge of appellant and Lodge 365's decision not to compel arbitration of the discharge were based on legitimate, nondiscriminatory factors and therefore neither appellee had discriminated against appellant on the basis of race or retaliated against appellant for protected activity.

I. The Company

Appellant, who had been a fork lift operator at ACF, claimed that ACF discharged him because of his race and because of his civil rights activities, which included the filing of a previous charge of discrimination at the Equal Employment Opportunity Commission (EEOC). ACF claimed appellant was discharged because of misconduct. At trial the racial discrimination issue basically amounted to a question of conflicting oral testimony by appellant and ACF representatives, although ACF presented some documents to support its claim that it had discharged white employees for less cause than appellant. The district court found:

. . . On September 11, 1974, (appellant) was directed by the Senior Plant Engineer, Daniel Beckmeier, through (appellant's) supervisor, John Oldham, to operate a fork lift. (Appellant) refused several times in the presence of Beckmeier, Oldham and "Preacher" Darragh. (Appellant) objected to working in the rain, despite his wearing the coat of the (coat-and-bib) raingear employees normally wore when working in the rain.

After ten minutes of pleading by Oldham, (appellant) made the lift. It took (appellant) one hour and fifteen minutes to do this job, which normally took fifteen minutes. As a result of (appellant's) refusal to work and the length of time it took him to perform the job, production on shear No. 117 was interrupted for approximately one and one quarter hours.

. . . In the course of the dispute about the operation of the fork lift, (appellant) directed profane language at his superiors. He also threatened Darragh, Oldham, and Beckmeier.

. . . (Appellant) was charged with violation of five work rules, including failure to follow prescribed work procedures, wasting time during working hours, disorderly conduct, threatening a supervisor, and insubordination. . . .

. . . (Appellant) was suspended subject to discharge by Jim Fuller, the Acting Manager of Labor Relations, . . . (who) is black.

. . . (subsequently,) ACF through Miguel Lopez decided that the suspension would be changed to a discharge.

. . . Other employees, both black and white, with better personnel records have been discharged for similar behavior. (Appellant) presented no evidence that white employees with similar records received less severe disciplinary action for the same or similar rules.

460 F.Supp. at 954-55.

Appellant now makes a lengthy argument that the district court was wrong in many of its findings. The specific points raised by appellant are weak. For example, appellant attacks the district court's conclusion that white employees were discharged for less cause than appellant. This conclusion was based primarily upon oral testimony of Miguel Lopez, ACF's Labor Relations Administrator at the time of appellant's discharge. ² Appellant argues that this oral testimony was not sufficient evidence to convince the district court. But appellant's own case consisted of oral testimony which was no more substantial. Appellant also attacks the district court's conclusion that there was cause to discharge appellant under the collective bargaining agreement. Appellant points out that the agreement was not introduced into evidence. But union officials testified that they decided not to seek arbitration over appellant's discharge, because they considered the discharge warranted under the collective bargaining agreement. This testimony supported the district court's conclusion. Other claims by appellant are similarly unfounded.

Because appellant's evidence at the trial was almost entirely oral testimony, appellant is in a difficult position on appeal. This court cannot hear the live testimony or watch the witnesses. The trial judge does observe firsthand how sure the witness seems about the facts and whether the witness appears to be believable or evasive or lying. During the trial the judge may catch implied meanings and tones of voice that do not come across in the written transcript which we see on appeal. Therefore, when the trial judge considers conflicting testimony at trial and believes one side, appellate courts are very reluctant to make a contrary decision on the transcript of the testimony. See Bowers v. Kraft Foods Corp., 606 F.2d 816 (8th Cir. 1979). We do not decide the case anew, but review the trial court's decision.

Under Fed.R.Civ.P. 52(a), we must accept the district court's factual findings unless they are "clearly erroneous." This court has explained

a finding of fact is only deemed clearly erroneous if it is not supported by substantial evidence, if it proceeds from an erroneous conception of the applicable law, or if on a consideration of the entire record the appellate court is left with the definite and firm conviction that a mistake has been made.

Southern Illinois Stone Co. v. Universal Engineering Corp., 592 F.2d 446, 451 (8th Cir. 1979). The testimony and records supporting the court's findings of fact relating to racial discrimination were much more substantial than the version given by appellant. We are not convinced any mistake was made. The findings were based on a sound conception of the law, reflected in the district court's efforts to determine whether appellant's case of racial discrimination was countered by substantial evidence from ACF that the discharge was based upon factors that were not racially discriminatory. Osborne v. Cleland, 620 F.2d 195, 199 n.5 (8th Cir. 1980); Burdine v. Texas Department of Community Affairs, 608 F.2d 563 (5th Cir. 1979). See also Kendrick v. Commission of Zoological Subdistrict, 565 F.2d 524 (8th Cir. 1977); Stevens v. Junior College District, 548 F.2d 779 (8th Cir. 1977). Appellant was given an opportunity for rebuttal to demonstrate that the asserted reason was a pretext for racial discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

We are especially sensitive to the district court's firsthand impression of the testimony in a case like this, where the record before us contains only limited information, much of it in dispute. As appellant points out, ACF put on testimony of only one of the three supervisors who were present at the incident which led to appellant's discharge, and some testimony by ACF's personnel officials concerning appellant's misconduct may have been hearsay. On the other hand, much of appellant's case was based upon his ideas about the motives of others. As far as the record before us shows, appellant made no effort to discover information before trial by deposition or by sending written interrogatories to the company or union, or by requesting documents of any kind. Therefore, appellant is on weak ground when he claims that ACF failed to provide possibly meaningful evidence such as testimony of supervisors, because appellant made no effort to seek this information. We do not know whether or not the supervisors were available within the court's jurisdiction or what their testimony may have shown.

We recognize, of course, that limitations on a discharged employee's resources may hamper his actual ability to gather information before trial because of expenses, whatever the theoretical possibilities under the rules. Where the merits of a case seem questionable it may not be reasonable for the complainant's attorney to devote uncompensated time generously with only a small probability she or he may obtain attorney's fees years in the future and only if the complainant prevails. In any event, because of the special circumstances, we have scrutinized the record with especial care in this case to determine if there is anything that may suggest there is more to appellant's case than weak, disputed oral assertions of discrimination.

We find in the record one piece of evidence which warrants further consideration by the district court of appellant's claim that ACF retaliated against him for filing an EEOC charge or for opposing alleged racial discrimination. We therefore remand the...