29 Fair Empl.prac.cas. 824,29 Empl. Prac. Dec. P 32,989delores J. Robbins, Plaintiff-appellant, v. White-wilson Medical Clinic, Inc., Defendant-appellee, 682 F.2d 503 (5th Cir. 1981)

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US Court of Appeals for the Fifth Circuit - 682 F.2d 503 (5th Cir. 1981)

Unit B* 

Aug. 12, 1982.

Joseph L. Hammons, Pensacola, Fla., for plaintiff-appellant.

Peter O. Zinober, Tampa, Fla., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Florida.


Before HILL, Circuit Judge, SMITH** , Judge, and HENDERSON, Circuit Judge.

JAMES C. HILL, Circuit Judge:

An opinion of this court was handed down on November 12, 1981, Robbins v. White-Wilson Medical Clinic, Inc., 660 F.2d 1064 (5th Cir. 1981). Upon the petition of White-Wilson Medical Clinic, Inc., the Supreme Court, --- U.S. ----, 102 S. Ct. 2229, 72 L. Ed. 2d ---- granted the writ of certiorari, vacated this court's judgment and remanded the case to us for further consideration in light of Pullman-Standard, Inc. v. Swint, 456 U.S. ----, 102 S. Ct. 1781, 72 L. Ed. 2d 66 (1982).

Memoranda have been solicited and received from counsel and, as directed, we have reconsidered the case.

We reaffirm the statement made by the majority in the now vacated opinion, "We agree that the evidence supports these findings of subsidiary fact, ...." In our original opinion, we distinguished between subsidiary facts and ultimate facts in describing our standard of review. Under the dichotomy formerly applied in this circuit, the "ultimate fact" of whether the employer discriminated against appellant was not subject to a clearly erroneous standard of review. This differentiation between subsidiary and ultimate facts, however, was specifically rejected in Pullman-Standard, Inc. v. Swint.

Applying the appropriate clearly erroneous standard of review, we conclude that sufficient evidence supports the finding of the district judge that the appellant's failure to obtain employment with appellee was not the result of unlawful discrimination against appellant. Accordingly, the judgment of the district court is



Former Fifth Circuit case, Section 9(1) of Public Law 96-452-October 14, 1980


Honorable Edward S. Smith, Judge for the U. S. Court of Claims, sitting by designation