concurring in part and dissenting in part.
I concur in the majority’s conclusion that an award of $2.60 per hour is not supported by the evidence. The evidence clearly demonstrates that the defendant paid all his starting employees the minimum wage which, at all relevant times herein, was $2.00 per hour. However, I am unable to agree that there was “no logical basis for making the award extend for a period of four months . . . .” maj. op. at 1127. The four-month period chosen by the Magistrate began when the plaintiffs were summarily discharged and ended when the enterprise was closed by the actions of the Internal Revenue Service. Thus, this period was not taken “out of thin air” as the majority opinion asserts, but rather reflected the Magistrate’s judgment that this period comprised the plaintiffs’ likely employment span had they not been wrongfully discharged. Such a finding was not, in my opinion, clearly erroneous.
I am also unable to agree with the majority’s implicit holding that the successorship doctrine is inapplicable to the facts of this case. See EEOC v. MacMillan Bloedel Containers, Inc., 503 F.2d 1086 (6th Cir. 1974). Utilizing the test developed there, id. at 1094, I conclude that the corporation formed after the tax sale was a successor corporation to the one forced out of business.
Finally, I am unable to agree that plaintiffs failed to establish a prima facie case of race discrimination. The Burdine case, Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), of which the Magistrate did not have notice, does not mandate a different conclusion:
The burden of establishing a prima fa-cie case of disparate treatment is not onerous. . . . [It] ‘raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.’
Burdine, supra, at 253-54, 101 S.Ct. at 1093-94, quoting Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978).
In the instant case, plaintiffs demonstrated that although their work had been satisfactory, without explanation they were summarily discharged when other similarly situated white employees were not. In fact, plaintiffs were the only two full-time black employees working for the defendant at the time of their discharge. This is sufficient, in my opinion, to raise an “inference of discrimination.” And, contrary to the majority opinion, it is not “novel” to prove discrimination by inference. Indeed, since proving an intent to discriminate is often difficult, proof by inference is often the only method available to a plaintiff.
However, the Magistrate did err in requiring the defendant to bear the burden of proving that his proffered non-discriminatory reason for the firing was in fact the actual reason. As Burdine now makes clear:
*1131The defendant need not persuade the court that it was actually motivated by the proffered reasons, [citations omitted], It is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff.
Id. at 254-55, 101 S.Ct. at 1094-95. The defendant need only set forth a legally sufficient explanation. The explanation, however, must be actually admitted into evidence, not argued by counsel or surmised by the court. Id. at 255 n.9, 101 S.Ct. at 1094 n.9. Here, the explanation which was actually offered by the defendant — that he thought plaintiffs had quit — was rejected by the Magistrate although it was legally sufficient to rebut the prima facie case. This was improper. Once an explanation is offered, plaintiff must demonstrate that it “was not the true reason for the employment decision. .. . [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.” Burdine, supra, at 256, 101 S.Ct. at 1095.
For these reasons, I would remand the case to the District Court for further proceedings in light of Burdine.