Finley MULDREW, Appellee, v. ANHEUSER-BUSCH, INCORPORATED, Appellant

728 F.2d 989, 34 Fair Empl. Prac. Cas. (BNA) 93, 1984 U.S. App. LEXIS 25317, 33 Empl. Prac. Dec. (CCH) 34,187
CourtCourt of Appeals for the Eighth Circuit
DecidedFebruary 21, 1984
Docket83-1134
StatusPublished
Cited by52 cases

This text of 728 F.2d 989 (Finley MULDREW, Appellee, v. ANHEUSER-BUSCH, INCORPORATED, Appellant) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Finley MULDREW, Appellee, v. ANHEUSER-BUSCH, INCORPORATED, Appellant, 728 F.2d 989, 34 Fair Empl. Prac. Cas. (BNA) 93, 1984 U.S. App. LEXIS 25317, 33 Empl. Prac. Dec. (CCH) 34,187 (8th Cir. 1984).

Opinions

LAY, Chief Judge.

Finley Muldrew brought this action under Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. §§ 2000e to 2000e-17 (1976 & Supp. V 1981), and under 42 U.S.C. § 1981 (1976), alleging that his discharge by his employer, Anheuser-Busch, Incorporated, was for impermissibly discriminatory reasons. In a bifurcated trial, the jury found in favor of Muldrew on his claim under § 1981 and awarded him $125,-000; the trial court found in favor of Mul-drew on his Title VII claim and awarded him reinstatement with full seniority and attorney’s fees. Anheuser-Busch appeals from the judgments of the jury and trial court, 554 F.Supp. 808.

Muldrew, who is black, worked for An-heuser-Busch from 1970 to May 1979 when he was discharged, allegedly for excessive absenteeism. Muldrew brought suit against Anheuser-Busch alleging that the company had discriminated against him on the basis of his race in its decision to fire him.

Sufficiency of the Evidence '

Anheuser-Busch contends on appeal that at trial Muldrew failed to present a prima facie case of racial discrimination. Mul-drew submitted evidence that several white workers with absentee records equal to, or [991]*991worse than, his were still employed at the time of his termination. Anheuser-Busch argues that this evidence made no allowance for the bona fide medical excuses of the white workers and for the divergent periods of time over which Muldrew’s evidence was collected on each worker.

The weighing and sifting of conflicting evidence is for the trier of fact. Muldrew presented evidence which reasonably could be interpreted as establishing unequal treatment by his employer. Viewing the evidence in the light most favorable to the jury verdict, we find that Muldrew made out a prima facie showing of discriminatory treatment by Anheuser-Busch.

After a plaintiff has made a prima facie showing of discrimination, the burden shifts to the defendant to articulate a nondiserim-inatory reason for its actions. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). At trial, Anheuser-Busch put on evidence that plaintiff’s termination was the result of a neutral application of Anheuser-Busch’s absentee control policy. Anheuser-Busch argued that the policy inherently allowed significant disparities between the number of absences and tardies one employee might receive and the number another might receive before either were disciplined. Thus, Anheuser-Busch contends, the apparently unequal treatment of Mul-drew is explained by the mechanics of the absentee policy itself and is not due to any subjective, discriminatory motives of plaintiff’s supervisors.

After the defendant has articulated a nondiscriminatory reason for plaintiff’s termination, the burden shifts to the plaintiff to prove by a preponderance of the evidence that the alleged reason was merely pretextual. Id. at 804, 93 S.Ct. at 1825. The plaintiff “may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981). In persuading the court, the plaintiff may rely solely on the evidence it presented in establishing the prima facie case or it may introduce additional evidence. See id. at 255 n. 10, 101 S.Ct. at 1094 n. 10.

Although Anheuser-Busch presented evidence to explain the apparently unequal treatment of Muldrew, this evidence was not so persuasive that we can say that the jury and court should have credited only Anheuser-Busch’s version of the facts. “An appellate court may not substitute its view of the facts for that of the trier of fact unless it is in a position to hold that reasonable minds, viewing the evidence in the light most favorable to the prevailing party, could only have found otherwise than the trier of fact.” McIntyre v. Everest & Jennings, Inc., 575 F.2d 155, 158 (8th Cir.), cert. denied, 439 U.S. 864, 99 S.Ct. 187, 58 L.Ed.2d 173 (1978). Thus, while AnheuserBusch’s explanation of the apparently unequal treatment of the plaintiff may be plausible, we cannot say that the evidence was so persuasive that the triers of fact had no choice but to find for Anheuser-Busch. Therefore, because substantial evidence exists to support the judgments of the jury and court, we affirm those judgments.

Motion for New Trial

Anheuser-Busch also contends on appeal that the district court erred in denying Anheuser-Busch’s motion for a new trial. To support this contention, Anheuser-Busch argues that the testimony presented by Muldrew was effectively rebutted by the testimony presented by Anheuser-Busch’s witnesses; that Muldrew presented evidence irrelevant to the basic issue of his termination; and that Muldrew’s counsel misstated at closing argument AnheuserBusch’s absentee ■ policy. As we have said, the weighing of contradictory evidence is for the trier of fact. Determining the truthfulness of witnesses is properly left to those who heard and saw the original presentations of the testimony. Thus, Anheuser-Busch’s argument that Muldrew’s evi[992]*992dence was less persuasive than Anheuser-Busch’s evidence should have been made only to the trier of fact and not to this court.

After reviewing all of Anheuser-Busch’s arguments, we find that any of the alleged admissions of irrelevant testimony or misstatements of plaintiff’s counsel were inconsequential and would not constitute reversible error. We affirm the district court’s denial of Anheuser-Busch’s motion for a new trial.

Damages

Finally, Anheuser-Busch contends that the jury’s award of $125,000 in damages was not supported by the evidence. Specifically, Anheuser-Busch contends that Mul-drew failed to diligently seek work after his termination and that Muldrew’s evidence of mental and emotional distress was an insufficient basis for the jury’s award.1

An employee wrongfully discharged must use reasonable efforts to mitigate his or her damages. Fielder v. Indianhead Truck Line, Inc., 670 F.2d 806, 809 (8th Cir.1982). However, the burden is on the defendant to prove failure to mitigate. Hegler v. Board of Education, 447 F.2d 1078, 1081 (8th Cir.1971). At trial, Muldrew presented evidence that he attempted to obtain employment after his discharge but was unable to find work until approximately a year and a half after his discharge. Given the effect of the discharge on Muldrew’s work record and the employment market at the time, Muldrew’s failure to find a new job for that period of time is not unreasonable.

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728 F.2d 989, 34 Fair Empl. Prac. Cas. (BNA) 93, 1984 U.S. App. LEXIS 25317, 33 Empl. Prac. Dec. (CCH) 34,187, Counsel Stack Legal Research, https://law.counselstack.com/opinion/finley-muldrew-appellee-v-anheuser-busch-incorporated-appellant-ca8-1984.