835 F.2d 535

45 Fair Empl. Prac. Cas. (BNA) 1381,
45 Empl. Prac. Dec. P 37,715
Alvin WARREN and Alfred Warren, Appellants,
v.
HALSTEAD INDUSTRIES, INC., Appellee,
and
Chauffeurs, Teamsters and Helpers Local Union No. 391,
affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Defendants.

No. 85-1575.

United States Court of Appeals,
Fourth Circuit.

Argued June 1, 1987.
Decided Jan. 4, 1988.

Appeal from the United States District Court for the Middle District of North Carolina at Winston-Salem; Frank W. Bullock, District Judge. (C/A 82-153).

Harvey L. Kennedy, (Harvey L. Kennedy, III, Kennedy, Kennedy, Kennedy and Kennedy, Winston-Salem, N.C., on brief), for appellants.

James B. Spears, Jr., (Thomas A. Bright, Haynsworth, Baldwin, Miles, Johnson, Greaves and Edwards, Greenville, S.C., on brief), for appellee.

Prior reports: 802 F.2d 746, 613 F. Supp. 499.

Before WINTER, Chief Judge, RUSSELL, WIDENER, HALL, PHILLIPS, MURNAGHAN, SPROUSE, CHAPMAN, WILKINSON, and WILKINS, Circuit Judges, sitting En Banc.

PER CURIAM:

1

After reargument of this case to the en banc court, the court is of opinion that the fact finding of the district court was not clearly erroneous. We are of opinion that the district court did not commit reversible error either in the facts that it found or in its methods.

2

We have examined the record and are of opinion that the facts found by the district court are supported by the record, are not clearly erroneous, and are plausible. They are largely based on testimony taken ore tenus in open court, which are entitled to heightened deference under Anderson v. City of Bessemer City, 470 U.S. 564, 105 S. Ct. 1504, 84 L. Ed. 2d 518 (1985). So far as they are not based on oral testimony, they are based on weight of the evidence and on documentary evidence, much of which was supported by oral testimony, and those fact findings are also supported by the record and are plausible.

3

We note that the opinion and judgment of the panel was vacated by the granting of rehearing en banc under Local Rule 35(c). We are now of opinion that the district court should be affirmed for the reasons expressed in its careful and thorough opinion.

4

AFFIRMED.

5

HARRISON L. WINTER, Chief Judge, concurring and dissenting:

6

Having reheard this case in banc, I am persuaded of the error of my previous vote to reverse the district court's dismissal of plaintiffs' claim that they were denied on account of their race a promotion to leadman given to Stephen Boles. I therefore vote to affirm the district court's judgment in this respect.

7

I remain, however, persuaded that the district court committed reversible error in dismissing Alvin Warren's claim of retaliatory discharge. In this respect I would reverse and remand for the reasons set forth in the majority panel opinion,1 and I respectfully dissent from the contrary conclusion.

8

In all other respects, I concur in the majority opinion.

1

I now recognize that on this issue, the panel opinion contains minor factual errors. It is correct, however, in demonstrating that the district court's findings on the central issue of pretext were implausible and based on contradictory accounts of the reason for Alvin Warren's discharge, and, for that reason, Alvin was entitled to affirmative relief