author: WILLIAM C. LEE, District Judge.

text:
    Dwight E. ROE, Plaintiff, v. INTERNATIONAL HARVESTER CO., Defendant.
    Civ. No. F 83-338.
    United States District Court, N.D. Indiana, Fort Wayne Division.
    June 13, 1984.

      Dennis H. Geisleman and William A. Kern, Fort Wayne, Ind., for plaintiff.
    Milford M. Miller, Fort Wayne, Ind., for defendant.
   MEMORANDUM OPINION AND ORDER

WILLIAM C. LEE, District Judge.

This matter is before the court for a decision on the merits following a bench trial held from Monday, June 4, 1984 to Wednesday, June 6, 1984. Plaintiff brought this action under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621, et seq., alleging discrimination in the employment separation practice of the defendant. The court, having examined the entire record and having determined the credibility of the witnesses after viewing their demeanor and considering their interests, hereby renders and enters thé following Findings of Fact and Conclusions of Law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.

Findings of Fact

1. Plaintiff, Dwight E. Roe, is a male citizen of the United States of America and the State of Indiana. He was born on April 18, 1931.

2. Defendant, International Harvester Company, is a Delaware corporation admitted to do business in Indiana. At all relevant times, International Harvester operated a manufacturing plant in Fort Wayne, Indiana and was an employer within the meaning of the Age Discrimination in Employment Act, 29 U.S.C. § 630(b).

3. International Harvester, which principally produces trucks and farm implements, is headquartered in Chicago, Illinois. Aside from its Fort Wayne operation, International Harvester had plants in various other locales including a plant in Chatham, Ontario and one in Springfield, Ohio. Those plants and others, to a certain extent, are interdependent because certain parts manufactured at one plant may be utilized elsewhere.

4. The Fort Wayne plant is, as of this date, closed. While still in operation, however, the Fort Wayne plant was a very large operation.

5. Physically, the plant covered 221 acres, 71 of which were under roof. Within the manufacturing compound there was a heavy duty truck plant, an axle and transmission division, and a Scout plant (which produced lighter utility vehicles). The heavy duty truck plant itself had two assembly lines, each of which was 1,662 feet long.

6. While in operation, International Harvester was a large employer in Fort Wayne. In 1978, International Harvester employed 6,498 hourly workers and 641 managerial workers locally and, in 1979, when production was quite high, 1,500 additional workers were employed.

7. Plaintiff was first employed by defendant at its Fort Wayne plant on February 16, 1953 as a sweeper/laborer in the machine shop. In 1964, plaintiff bid into the Inspection Department. Throughout this period plaintiff was an hourly non-management employee.

8. On June 29, 1970, plaintiff became a group leader in Inspection, Department 52. Because that too was an hourly position, plaintiff worked under the supervision of others, performing inspections on one or the other of the two assembly lines in the heavy duty truck plant. Though group leader was an hourly position, plaintiff performed many of the functions of a foreman with the main exception that he had no authority to hire or fire.

9. Plaintiff was promoted to management as a First Line Supervisor in the position Foreman, Inspection on September 2, 1979. Plaintiffs duties as Foreman, Inspection were performed in Department 52 where he had been an hourly rated employee.

10. Plaintiff continued as a managerial employee of defendant until his separation on December 11, 1981. At the time of his separation, plaintiff had approximately 28 years, 10 months’ service at International Harvester. Had he remained until February 1983, he would have had 30 years’ service and, consequently, would have been entitled to greater pension benefits.

11. Management employees at International Harvester have no seniority system. By plaintiff’s own testimony, he was aware that managers were not immune to the possibility of layoff or discharge.

12. Employees in Inspection, Department 52 performed many functions. Generally included among those were the following specific tasks:

a) Time Card Control — This task required an inspector to schedule hourly employees in recognition of the fact that some employees at a given time would not be there because of illness or leave. It was essential that the inspector doing time card control effectively distribute the available manpower.
b) Investigate Field Complaints — When a complaint was received about the performance of a truck, it was necessary to try to pinpoint and isolate any problems which may have occurred so that corrective measures, if any, could be implemented.
c) Inhouse Campaigns for Production Defects — Whenever it was discovered that a defective part or procedure had been utilized during the production phase, it became necessary to locate the particular units involved and correct the problem before the truck left the plant.
d) Maintain Inspection Procedures —As the name of the function suggests, inspection procedures that were implemented had to be maintained and, if necessary, revised or upgraded in light of the desire to produce a quality truck efficiently.
e) Perform Process Control Audits —This task essentially constituted a backup check whereby a foreman in the department would inspect another inspector’s individual performance.
f) Torque Surveillance Audits — This function required an inspector to check the torque (e.g. tightness) of bolts on various parts of the truck to assure that they were within given specifications.

Occasionally, Inspectors would perform additional tasks including:

g) Running the Rolls — This is a functional test of the vehicle — essentially a short run test drive.
h) Final Sales — After the truck had been painted, it would be taken to the “quonset” where the vehicle would be run, stopped and then such features as the lights, etc. would be checked.

The foregoing list is not all inclusive nor exclusive with respect to the functions of Inspectors in Department 52. This is so because of the fact that a heavy duty truck is comprised of several thousand basic parts and several thousand more parts in speciality items.

13. Plaintiff could perform all of the foregoing tasks/functions of an Inspector, Department 52 capably. Moreover, plaintiff had a vast technical knowledge with respect to the specifications of heavy duty trucks produced in the Fort Wayne plant.

14. Beginning in 1978, International Harvester experienced a higher than usual demand for both its utility (Scout) vehicles and its heavy duty trucks. On November 1, 1978, the Fort Wayne complex was responsible for the production of 142 heavy duty trucks and 186 utility (Scout) vehicles. By November 13, 1978, the respective figures were 178 heavy duty trucks and 200 Scouts.

15. In response to increasing demands, International Harvester added a second shift to its “B” assembly line on its heavy duty truck line in Fort Wayne.

16. The increasing demand for its product further led defendant to hire new workers (see Finding 6), both managerial and hourly rated (non-managerial) employees, in 1978 and 1979. Further, considering the need for increased managerial employees in Fort Wayne, International Harvester promoted to management positions qualified hourly-rated employees who expressed a desire for a management position.

17. Plaintiff became a managerial employee (Foreman in Inspection, Department 52) at a time when the production levels of defendant’s Fort Wayne operation were at their highest levels.

18. Less than two months after plaintiff assumed his position as a managerial employee, the hourly employees at defendant’s Fort Wayne plant went on strike. That strike, which began November 1, 1979 was to be the longest in defendant’s history and was to last until April 21, 1980.

19. During the strike, production of defendant’s vehicles in Fort Wayne was at a standstill. International Harvester did, however, retain its managerial employees on its payroll. The managerial employees attempted, if possible, to complete production of vehicles in progress and further sought to provide parts to sister-nonstriking plants and dealer/distributors of defendant. In essence, the managerial employees attempted to perform many of the tasks of the hourly employees during non-strike times.

20. After the strike, it was presumed that production overall (both in the heavy duty division and utility (Scout) division) would remain at the level which existed just prior to the strike.

21. The post-strike optimism regarding production levels was shortlived particularly with respect to the utility (Scout) plant in Fort Wayne. Any optimism with respect to the other operations in Fort Wayne was also to be shortlived.

22. Whether due to economic conditions or otherwise it became abundantly clear by mid-1980 that the utility (Scout) plant was in serious trouble. Though immediately subsequent to the strike approximately 100 Scouts were produced daily and approximately 100 managers were employed in that production, by late May 1980 only 51 Scout vehicles were produced daily.

23. Those managerial employees at the utility (Scout) plant not required with respect to the production of the remaining 51 vehicles a day were available for assimilation into the heavy duty truck plant and the Axle and Transmission Division. Those from the utility (Scout) plant who were not assimilated into the managerial work force of the heavy duty truck plant or the Axle and Transmission Division were separated.

24. The assimilation of utility (Scout) employees resulted in the displacement of those managerial employees at the heavy duty truck plant and the Axle and Transmission Division who were deemed to be less qualified than those assimilated.

25. The concern with respect to the utility (Scout) operation was not unfounded. By July 1980, it became clear that International Harvester would either have to sell the production of that vehicle in Fort Wayne or close its production in this City. In October 1980, the last Scout was built in Fort Wayne, Indiana.

26. As with the utility (Scout) plant, a similar decline occurred with respect to the heavy duty truck production of International Harvester in Fort Wayne. In late April 1980, the heavy duty truck -installation in Fort Wayne was producing approximately 202 vehicles per day. Within approximately three months, the same plant was producing 120 vehicles per day for a decrease of almost 40%.

27. With the reductions in production utility (Scout) vehicles and heavy duty trucks in Fort Wayne, it became readily apparent to both the upper echelon management locally, and corporate headquarters in Chicago, that the curtailed production should be offset with a corresponding reduction in operating costs.

28. Operating costs could be reduced either directly — by a reduction in the work force through separations and/or retirement — or indirectly — by cutting down phone and utility bills, etc.

29. Reductions in the work force at the Fort Wayne plant occurred in clusters and were precipitated by one or the other of two events: (1) reduction in production levels, or (2) directives (“edicts”) from defendant’s world headquarters in Chicago that separations would occur unrelated to production schedules.

30. At the Fort Wayne plant, the first of the managerial separations due to economic conditions occurred in June of 1980. Separations continued until the plant closed on July 15, 1983. Between June 1980 and July 1983, over 500 managerial employees were separated from defendant’s Fort Wayne manufacturing operations.

31. In an effort to make the separations equitable, certain guidelines were established by defendant’s headquarters. In determining who would go when, those involved in the separation process were to consider the following factors:

Any decision which is made as to the people who will be part of the reductions must take into consideration the work to be done, performance, length of service and our non-discrimination policy. In addition, affirmative action principles require that the percentage of minorities and women should remain approximately the same after reduction within each organizational area as it was before reduction.

(Def.Ex. FN; May 15, 1980 letter of R.H. Medland). Thus, affirmative steps were taken by the defendant to make sure that those separated were not less qualified and that the separations would not violate the non-discriminatory policy of the company.

32. Managerial responsibilities expanded as the managerial work force contracted given the fact that the process of building a truck encompasses a myriad of specific functions. In times of high production and consequent high employment, the tasks entailed in producing a truck, being performed as they are by larger numbers of people, have little overlap. When the number of managerial employees is reduced and production is not reduced, however, the scope of the supervising manager’s responsibilities necessarily increases 'both in terms of th» management of the functions of those subordinates under him, as well as the geographical area over which those functions are performed. Likewise, when production drops, and resulting concomitant reductions in both hourly rated and managerial work force occur, virtually the same basic tasks are still required to be performed with respect to the building of a truck, but in such a situation both the hourly rated employee and the managerial employee have assumed a greater number of these tasks. Thus, in times of a declining managerial work force, there is a frequent reordering of the managerial responsibilities, both in what the manager supervises with respect to tasks directly related to the assembly of a truck and in the geographical area over which the manager performs such supervision. Consequently, as the International Harvester managerial work force shrank, the emphasis upon managerial skills increased.

33. Upon notification of the necessity to reduce managerial manpower, the executive staff of the Fort Wayne plant, with assistance of its Industrial Engineering Department, reviewed the overall organization of the plant and assigned to the managers of the various departments within the plant the obligation to reduce their departments by a specific number of people. These assessments as to where managerial personnel would be eliminated were based upon judgments of the executive staff as to how the managerial organization could be reduced in size and still accomplish the required direct and indirect tasks involved in truck production. It was the task of the managers of the various divisions losing managerial personnel to determine which specific managerial employees within the managers’ respective divisions would be listed for separation. The criteria utilized by the managers was the performance of the individual managerial employees measured against the work to be performed presently and the work that would be performed in the future given a work force continually contracting in size.

34. When it became apparent that separations of managerial employees was to occur, the names of those managerial employees were reviewed by the executive staff of the plant in Fort Wayne including Human Resources, which at that time was managed by Roger Bartholow. Human Resources personnel studied the makeup of each list of those proposed for separation at any given time, monitoring the impact that such separations would have on persons of protected class status in the defendant’s work force at its Fort Wayne manufacturing installations. It was the responsibility of the Human Resources personnel to be satisfied that no protected class status individual was placed on a list of personnel proposed for separation by reason of that protected class status; and, as to those protected class status individuals who appeared on the list, to be satisfied that the decision for placing such persons on the list of those to be separated was because they were less qualified than those remaining in the work force to perform the work to be done.

35. Ultimately, as elsewhere, the need for reduction hit Inspection, Department 52. Department 52 fell within the jurisdiction of Product Quality which was headed by E. John Oltesvig who, at all relevant times, was the manager of Product Quality (the third highest position at the Fort Wayne heavy duty truck plant). The Product Quality Department encompassed both the Quality Assurance Department (headed by Mr. B. Biedenweg) and the Inspection Department (headed by Mr. Stanley Stacker).

36. Together, Inspection and Quality Assurance encompassed quality control functions with respect to the truck vehicles being produced at the Fort Wayne plant. Inspection was basically an on-site function, performed both contemporaneously with the functions of assembly as the truck passed through the various assembly procedures on the assembly line and included a final inspection of the finished truck before it left the manufacturing site for delivery to the customer. Quality Assurance, generally, was involved both with setting the procedures governing the inspection functions (done by Department 52) and with responding to information fed back to the Fort Wayne plant as the trucks were used by the customer in the field.

37. In December 1981, it was determined that three people should be separated from the Product Quality Division of the Fort Wayne heavy duty truck plant. As things turned out, plaintiff (Roe), Bocock, Lash and Durham were separated from Inspection, Department 52 that month, while Messrs. Swinger and Tucker were separated from the Quality Assurance Department.

38. Within one month of plaintiff’s separation, three other employees moved into Inspection, Department 52. Those three employees included Gene Landon, Judy Sciarini and Pete Matoraji. Thus, in total, the Product Quality Division had, in essence, reduced its work force by three members.

39. The ultimate responsibility for determining which members of the Inspection Department would be separated fell upon the shoulders of Stanley Stacker. From May of 1981 to June of 1982, Mr. Stacker was the Superintendent of Inspection of Department 52. Like many of his subordinates, Mr. Stacker had risen through the ranks of defendant’s company despite a limited formal education. The court found Mr. Stacker to be a remarkably diligent and conscientious management employee of International Harvester and a wholly credible witness.

40. In making the separation decisions, Mr. Stacker believed that the best managers for Inspection were those who could communicate well and motivate others. This was so because of the fact that with a decreasing number of managers each would have expanding duties. Thus, it was not necessary that a manager have the technical knowledge to build a truck from scratch. Rather, it was necessary that a manager be able to communicate to, and motivate, the hourly employees to which the manager was assigned. All things being equal, an employee with greater seniority would be retained over one with less seniority.

41. Further taken into consideration in determining whether a given employee was to be retained or separated was the employee’s performance as set forth on yearly achievement evaluation forms. The achievement evaluation forms contained comments about an employee’s abilities and shortcomings and further “ranked” the employee’s performance as a manager. When the relevant achievement evaluation forms of those remaining as Inspectors, Department 52 after plaintiffs separation are compared with plaintiff’s evaluation forms, it becomes quite clear that those retained were more qualified than plaintiff both in general and with respect to the particular criteria utilized by Stacker.

42. The decision to terminate plaintiff was concurred in by Mr. Oltesvig, the Manager of Product Quality. When that decision reached defendant’s Human Resources Department, its Manager, Mr. Bartholow, recognizing plaintiff’s seniority, spoke with both Mr. Oltesvig and Mr. Stacker to assure himself that plaintiff’s separation was to occur for reasons other than his age. After conversations with those involved, Mr. Bartholow was convinced that plaintiff’s separation was not because of age, but rather resulted from the company’s concern that the best of those remaining would be retained.

43. With few exceptions the managerial work force increased in age as each separation occurred. The increasing age of the work force was indicative of the fact that those with more experience (generally) were retained.

44. The court finds that age was not a factor in plaintiff’s separation. The court further finds that those retained in, or brought into, Inspection, Department 52, were more qualified than was plaintiff given the increasing workload each manager was expected to perform and the criteria which properly controlled the separation decisions.

Conclusions of Law

Out of concern that “older workers [would] find themselves disadvantaged in their efforts to retain employment,” 29 U.S.C. § 621(a)(1), Congress, in 1967, enacted the Age Discrimination in Employment Act. The central purpose behind the enactment was “to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; [and] to help employers and workers find ways of meeting problems arising from the impact of age in employment.” 29 U.S.C. § 621(b).

The Age Discrimination in Employment Act prohibits an employer from discriminating against any individual, between the ages of 40 and 70, with respect to the terms and conditions of employment because of such individual’s age. It does not, however, prohibit an employer from discharging an individual for good cause, so long as the individual’s age was not a determining factor in the employment decision. 29 U.S.C. §§ 623, 631. As with employment discrimination actions under Title VII (42 U.S.C. §§ 2000e, et seq.), there are two theories available for proving discrimination claims under the ADEA: disparate treatment and disparate impact. See generally EEOC v. Western Electric Co., 713 F.2d 1011 (4th Cir.1983); Allison v. Western Union Telegraph Co., 680 F.2d 1318 (11th Cir.1982).

As previously indicated, plaintiff alleges that he was discriminated against by reason of his age when he was separated on December 11, 1981. It is undisputed that plaintiff, being fifty years of age at the time, fell within the protections afforded by the provisions of the Age Discrimination in Employment Act statute referred to above. What is disputed is whether or not plaintiff has established a claim of disparate treatment under that Act. The court is of the view that he has not.

In an ADEA case, the plaintiff carries the initial burden of proving by a preponderance of the evidence a prima facie case of discrimination. Basically, the plaintiff must raise an inference that the employer intended to discriminate against him because of his age. Upon establishing a prima facie case of age discrimination, the burden of presenting evidence shifts to the defendant to rebut the presumption of discrimination by producing evidence that the plaintiff was rejected for a legitimate nondiscriminatory reason. The defendant must sufficiently justify its employment decision in order to meet the plaintiffs claim of a prima facie case by presenting the legitimate reasons, and to establish a framework so that the plaintiff has an opportunity to demonstrate that the defendant’s decisions were, in fact, pretextual. If the defendant carries its burden of articulating a legitimate nondiscriminatory reason for its employment decision, then the plaintiff has the burden to demonstrate that the defendant’s legitimate reasons are only a pretext for age discrimination. See e.g. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973).

Generally speaking, in order to establish a prima facie case it is incumbent upon plaintiff to show:

1. That plaintiff was a member of the protected class (age 40-70);
2. That he was qualified for the position;
3. That despite these qualifications he was discharged; and
4. That he was replaced with a person outside the protected class.

See e.g. Schwager v. Sun Oil Co., 591 F.2d 58 (10th Cir.1979); Price v. Maryland Casualty Co., 561 F.2d 609 (5th Cir.1977). Where, as here, an overall reduction in the work force takes place, the foregoing elements of a prima facie case have been refined by some courts. In such cases, a plaintiff must prove the following elements to establish a prima facie case:

(1) He must show that he is within the protected age group and that he has been adversely affected — discharged or demoted — by defendant’s employment decision;
(2) He must show that he was qualified to assume another position at the time of discharge or demotion; and
(3) He must produce evidence, circumstantial or direct, from which the fact finder may reasonably conclude that the employer intended to discriminate in reaching the decision at issue.

Williams v. General Motors Corp., 656 F.2d 120, 129 (5th Cir.1981) (emphasis added); see also EEOC v. Western Electric Co., 713 F.2d 1011 (4th Cir.1983); Allison v. Western Union Telegraph Co., 680 F.2d 1318 (11th Cir.1982); Marson v. Jones & Laughlin Steel Corp., 523 F.Supp. 503, 505 n. 1 (E.D.Wis.1981).

In the present matter, the parties disagree as to which of the foregoing elements of a prima facie case are applicable given the facts of this case. That dispute, however, is of no great moment because this court is of the view that under either approach, plaintiff has wholly failed to make out a prima facie case of age discrimination.

To be sure, plaintiff did establish a prima facie case of age discrimination insofar as he proved that he was within the protected class and that others, outside of the class, were retained. Plaintiff failed to prove by a preponderance of the evidence, however, that he remained qualified for the position of Inspection Foreman, Department 52 in the context of a declining work force and that, despite his qualifications, he was separated.

While plaintiff was a competent employee and qualified for the job of Inspection Foreman in normal economic times, his qualifications did not meet the company’s expectations of its managerial employees at the time of his separation, when the Fort Wayne installation was struggling for economic survival.

In order to be “qualified” for the purpose of proving a prima facie case, an employee must meet his employer’s expectations. That is, an employee is charged with the burden of affirmatively proving by a preponderance of the evidence that he was qualified, in the sense that he could satisfy his employer’s expectations at the time of his discharge. See Huhn v. Koehring Co., 718 F.2d 239 (7th Cir.1983); Kephart v. Institute of Gas Technology, 630 F.2d 1217 (7th Cir.1980).

As the findings of fact make clear, as the managerial work force at defendant’s Fort Wayne installation grew smaller, the responsibilities of individual managers increased making the job more difficult. As the job became more difficult, expectations increased. It was expected that the remaining managers would be able to communicate with and motivate the fewer and fewer remaining hourly employees. Plaintiff wholly failed to show that he possessed the requisite managerial skills to remain as a First Line Supervisor in the ever-diminishing Department 52.

If, in fact, plaintiff failed to establish a prima facie case of age discrimination under the generally recognized elements, he certainly failed to establish a prima facie case in a work force reduction case. The main difference between the two types of cases is that, in the latter, a plaintiff in his prima facie case must prove by a preponderance of the evidence that defendant intentionally discriminated against him on the basis of his age. That is, plaintiff must produce evidence showing that “(1) defendant consciously refused to consider retaining or relocating a plaintiff because of his age, or (2) defendant regarded age as a negative factor in such consideration.” Williams, supra at 130.

Plaintiff did not prove that defendant intended to discriminate against him on the basis of his age. While it may be true that plaintiff missed maximizing his pension benefits by one year and three months before he acquired thirty years’ service, that standing alone is insufficient to establish the element of intent for a prima facie case, see e.g. Marson v. Jones & Laughlin, supra, particularly given the fact that plaintiff was eligible for immediate pension benefits and further given the fact that other managerial employees who were retained became eligible for increased benefits. Moreover, the testimony was undisputed that age was a neutral factor in the separation decisions and, if anything, it was a positive factor in plaintiff’s case because he had many years of seniority.

Taken in balance, the court is of the view that plaintiff failed to establish a prima facie case of age discrimination. That conclusion remains whether the court applies the traditional test for a prima facie case under the ADEA, or the test utilized for reduction in work force cases.

Suppose the foregoing is incorrect and that plaintiff has established a prima facie case. The inquiry then would be whether or not defendant can prevail. The court is of the view that even assuming, arguendo, a prima facie case of age discrimination has been established, defendant can and should still prevail for the following reasons.

Much like the order of proof test established in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), for Title VII cases, “[o]nee a prima facie case has been made out [under the ADEA] the burden shifts to the employer to rebut plaintiffs showing.” Cova, supra at 959; Loeb v. Textron, 600 F.2d 1003 (1st Cir.1979). At this stage it is incumbent upon an employer to articulate legitimate, non-discriminatory reasons for its action. Kephart v. Institute of Gas Technology, 630 F.2d 1217, 1222 (7th Cir.1980). So far as relevant to the present inquiry, legitimate, non-discriminatory reasons may include economic factors, see Toussaint v. Ford Motor Co., 581 F.2d 812 (10th Cir.1978); company reorganization, see Schwager, supra; and company policy, see Moses v. Falstaff Brewing Co., 550 F.2d 1113 (8th Cir.1977).

In the present matter, it is clear beyond peradventure of doubt that defendant has articulated a legitimate, non-discriminatory reason for plaintiffs discharge — economic dictates. The Fort Wayne operation was scaled down as the demand for defendant’s products continually declined. With the corresponding reduction in the work force, each employee’s duties increased. For first line supervisors in Department 52 it was determined that the best managers were those who could communicate with, and motivate, the hourly employees. While a subjective criteria may have been utilized in determining who were the best motivators in Department 52, that standing alone does not violate the ADEA. See e.g. Movement for Opportunity and Equality v. General Motors, 622 F.2d 1235 (7th Cir.1980); Hereford v. Huntsville Board of Education, 574 F.2d 268, 270 (5th Cir.1978). “It is only when such [subjective] criteria results in discriminatory impact that a violation occurs.” Allison v. Western Union Telegraph Co., 680 F.2d 1318, 1322 (11th Cir.1982), citing Hester v. Southern Railroad Co., 497 F.2d 1374, 1381 (5th Cir.1974). Here, defendant’s decision, at least insofar as it impacted upon plaintiff, was not discriminatory.

Having found that the employer has articulated legitimate, non-discriminatory reasons for the discharge, “the burden of persuasion reverts to plaintiff.” Cova, supra at 960. Plaintiff “in an age discrimination suit need not prove that the articulated reason was false.” Golomb, supra at 551. “Instead, the plaintiff must prove that age was a determining factor in the employer’s decision; the employer’s articulated reason may in fact have been true, but if age was also a determining factor in the employer’s decision, the plaintiff has carried his burden of proof.” Id.; see also Kephart v. Institute of Gas Technology, supra at 1222.

In the present matter, plaintiff has not rebutted defendant’s legitimate non-discriminatory reason nor has plaintiff shown that the reasons given by defendant were, in fact, pretextual. To show pretext, plaintiff had the burden of proving that defendant’s actions favored employees who were less qualified. See Weidman v. Western Electric Co., 527 F.Supp. 263, 268 (M.N.C.1981); also Mason v. Continental Illinois Bank, 704 F.2d 361 (7th Cir.1983). This plaintiff did not do.

Taken in balance, the court is of the view that plaintiff failed to establish that he was discriminated against on the basis of his age in violation of the Age Discrimination in Employment Act. Accordingly, judgment must be entered in favor of the defendant.

Conclusion

On the basis of the foregoing, it is CONSIDERED, ORDERED, ADJUDGED and DECREED that judgment and costs be entered in favor of the defendant.

SO ORDERED.

      . Actually, Department 52 was comprised of the hourly employees assigned to Inspection in the heavy duty truck plant. Technically, supervisors of Inspection were in Managerial Department 113. For simplicity, the court will refer to Department 52 as if it were comprised of both the hourly and managerial employees in the Inspection Department of the heavy duty truck plant.

      . The "edicts” from Chicago took many forms. Occasionally, the Fort Wayne plant was directed to reduce costs by "x” amount of dollars. How that reduction was made was left in the hands of the managers at the Fort Wayne plant. On other occasions, headquarters would mandate that a particular division become as competent or cost efficient as a comparable division in a sister plant. This was known as "best ball.” All of the varied approaches had a common goal— to produce efficiently in light of the decreased demand for International Harvester trucks.

      . A disparate impact case results when employment practices that arc facially neutral in their treatment of different groups fall more harshly on one group than another, and they cannot be justified by business necessity. See Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971) cited in Allison v. Western Union Telegraph Co., 680 F.2d at 1321-1322.

      . Other courts, in nonreduction cases, while in substantial agreement with the first three elements, replace the fourth element and require plaintiff to show only that the position remained open and that the employer continued to seek applicants. See Cova v. Coca-Cola Bottling Co. of St. Louis, Inc., 574 F.2d 958, 959 (8th Cir.1978); cf. Mistretta v. Sandir Corp., 649 F.2d 1383, 1386 (10th Cir.1981).
      Given the choice, the court is of the view that the Price and Schwager cases present the better view in light of the purposes underlying the enactment of the ADEA. Since it is incumbent upon plaintiff to establish that age was a "determinative factor” in defendant’s action, Tribble v. Westinghouse Electric Corp., 669 F.2d 1193 (8th Cir.1982), proof that the employee replacing plaintiff was not in the protected class seems essential to establish any inference of discriminatory intent. Though it appears that the United States Court of Appeals for the Seventh Circuit has yet to directly pass on this precise issue, that court on at least one occasion has tacitly recognized this to be essential element for a prima facie case under the ADEA. Golomb v. Prudential Insurance Co. of America, 688 F.2d 547, 549 (7th Cir.1982). In the present matter, the distinction is irrelevant since it is clear that after plaintiff’s separation, persons both within and without the protected age group transferred into Department 52.


source: Caselaw Access Project

author: RICE, District Judge.

license: Public Domain

text:
    Mona BRONSON, et al., Plaintiffs, v. BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT OF the CITY OF CINCINNATI, et al., Defendants.
    No. C-1-74-205.
    United States District Court, S.D. Ohio, W.D.
    June 22, 1984.
    See also, D.C., 550 F.Supp. 941.

      Thomas I. Atkins, Reginald C. Govan, Office of General Counsel, NAACP Special Contribution Fund, Brooklyn Heights, N.Y., Thomas I. Atkins, Reginald C. Govan, NAACP Litigation Office, Cincinnati, Ohio, William Taylor, Center for Nat. Policy Review, Washington, D.C., Trudy D. Rauh, Cincinnati, Ohio, for Bronson plaintiff.
    Robert W. Blackmore, Cincinnati, Ohio, for plaintiff Beaty.
    George E. Roberts, III, Ennis & Roberts, Cincinnati, Ohio, for defendant Lockland City School Dist.
    Michael E. Maundrell, Rendigs, Fry, Kiely & Dennis, Cincinnati, Ohio, for defendant Princeton City School Dist.
    Lawrence McTurnan, McTurnan & Meyer, Indianapolis, Ind., for defendants Finneytown Local School Dist., Forest Hills Local School Dist., Northwest Local School Dist., Three Rivers Local School Dist., Hamilton County School Dist.
    John C. Elam, Suzanne K. Richards, Vorys, Sater, Seymour & Pease, Columbus, Ohio, for defendant Wyoming City School Dist.
    James W. Harper, Asst. Pros. Atty., Cincinnati, Ohio, for defendant Oak Hills Local City School Dist.
    Arnold Morelli, Bauer, Morelli & Heyd, Cincinnati, Ohio, for defendant Green-Hills Forest Park City School Dist.
    William E. Santen, William B. Singer, Santen, Santen & Hughes Co., LPA, Cincinnati, Ohio, for defendant Sycamore City School Dist.
    John A. Lloyd, Jr., Sally Conley Lux, Glen Weissenberger, Cincinnati, Ohio, for defendant City of Cincinnati School Dist.

      G. David Schiering, A. David Nichols, Metzger, Phillips & Nichols Co., LPA, Cincinnati, Ohio, Mark O’Neill, Weston, Hurd, Fallon, Paisley & Howley, Cleveland, Ohio, for State of Ohio, Special Counsel to Attorney General, State of Ohio; Represents State Bd. of Educ.
    James W. Farrell, Jr., Mark A. Vander Laan, Dinsmore, Shohl, Coates & Deupree, Cincinnati, Ohio, for defendants Deer Park City School Dist., Madeira City School Dist., Mariemont City School Dist., North College Hill City School Dist., Norwood City School Dist., St. Bernard-Elmwood Place City School Dist., Reading Community City School Dist.
    Bruce I. Petrie, Sr., John B. Pinney, Graydon, Head & Ritchey, Cincinnati, Ohio, for defendant Indian Hill Exempted Village School Dist.
   DECISION AND ENTRY FINDING THAT THE PROPOSED SETTLEMENT AGREEMENT OF THIS LAWSUIT IS FAIR, REASONABLE AND ADEQUATE; ORDER ADOPTING PROPOSED SETTLEMENT AGREEMENT AS A CONSENT DECREE AND ORDERING CINCINNATI DEFENDANTS AND STATE DEFENDANTS DISMISSED WITH PREJUDICE

RICE, District Judge.

This lawsuit was initiated on May 29, 1974, when the Plaintiffs, a group of Cincinnati schoolchildren and their parents, filed their Complaint. The Plaintiffs alleged that the Board of Education of the City School District of the City of Cincinnati (“Board”), its members and the Superintendent of the Cincinnati Public Schools (“Cincinnati Defendants”), together with the Ohio State Board of Education and Superintendent of Public Instruction for the State of Ohio (“State Defendants”), established and maintained the Cincinnati Public Schools as a racially segregated school system (doc. # l). Plaintiffs alleged that this violated the Fourteenth Amendment to the United States Constitution.

After this cause was filed, the parties undertook exhaustive discovery. Thousands of documents were exchanged. Numerous depositions were taken. Judge Porter ordered the case certified as a class action, see docs. # 266 and 267, defining the class as, “all students presently attending or who will in the future attend schools in the public school system of the City of Cincinnati and the parents of such children.” Id.

During this period from the filing of this lawsuit through mid-1982, the parties litigated the question of the preclusive effect of Deal v. Cincinnati Board of Education, 244 F.Supp. 572 (S.D.Ohio 1965), aff'd, 369 F.2d 55 (6th Cir.1966), cert. denied, 389 U.S. 847, 88 S.Ct. 39, 19 L.Ed.2d 114 (1967), aff'd on other issues, 419 F.2d 1387 (6th Cir.1969), cert. denied, 402 U.S. 962, 91 S.Ct. 1630, 29 L.Ed.2d 128 (1971). See Bronson v. Board of Education of the City School District of the City of Cincinnati (“Bronson I”), 525 F.2d 344 (6th Cir.1975), cert. denied, 425 U.S. 934, 96 S.Ct. 1665, 48 L.Ed. 175 (1976); Bronson v. Board of Education of the City School District of the City of Cincinnati (“Bronson II”), 687 F.2d 836 (6th Cir.1982).

Ultimately, in December, 1982, the Court set a trial date of January 10, 1984 for the liability phase of this case. See doc. # 559. On December 19, 1983, this Court appointed the Hon. David S. Porter, Senior District Judge for the Southern District of Ohio, and Mr. Warner Petterson of the Community Relations Division of the United States Department of Justice, to direct settlement efforts. From December 19, 1983 until the eve of trial, Judge Porter and Mr. Petterson, with great dedication and diligence, directed the parties in settlement discussions. On January 12, 1984, the day the liability phase of the trial was to commence, the Court postponed the trial until January 17, 1984 and ordered the parties to continue negotiations. On January 16, 1984, the negotiations broke down, and Judge Porter and Mr. Petterson discharged the negotiators. Nonetheless, on January 17, 1984, the Court once again postponed the trial and ordered the parties to resume negotiations. The parties bargained intensively, often times until after midnight and throughout the weekends. This process came to fruition on February 16, 1984, when the parties reached the proposed settlement agreement which is the subject of the present proceeding.

No class action can be dismissed or compromised without prior court approval. Rule 23(e), Fed.R.Civ.P. Before a court can approve a proposed settlement, it must give the class members notice of the proposed settlement and an opportunity to comment upon it. Id. The procedure for approving a settlement is a three-step process. The court must preliminarily approve the proposed settlement; then, members of the class must be given notice of the proposed settlement and after a hearing, the Court must decide whether the proposed settlement is fair, reasonable and adequate. Williams v. Vukovich, 720 F.2d 909 (6th Cir.1983); Stotts v. Memphis Fire Department (“Stotts”), 679 F.2d 541 (6th Cir.1982), reversed on other grounds, sub nom. Firefighters Local Union No. 1784 v. Stotts, — U.S. -, 104 S.Ct. 2576, 81 L.Ed.2d 483 (1984).

In Williams v. Vukovich, supra, the Court elaborated on the standards, in this Circuit, governing preliminary court approval of a proposed settlement.

Initially, a proposed decree should be preliminarily approved. The court should determine whether the compromise embodied within the decree is illegal or tainted with collusion. See Stotts, 679 F.2d at 551; United States v. City of Miami, 614 F.2d 1322, 1230-31 (5th Cir.1980), on reh’g, 644 F.2d 435 (5th Cir.1981); Flinn v. FMC Corp., 528 F.2d 1169, 1173 (4th Cir.1975), cert. denied, 424 U.S. 967, 96 S.Ct. 1462, 47 L.Ed.2d 734 (1976). The court’s determination should be based on its familiarity with the issues, the results of discovery, and the character of the negotiations prior to the entry of the decree. Preliminary approval is critical for a decree which is the product of arms-length negotiations. With such approval a decree is presumptively reasonable. See Stotts, 679 F.2d at 551; Metropolitan Housing Development Corp. v. Village of Arlington Heights, 616 F.2d 1006, 1013 (7th Cir.1980); United States v. City of Miami, 614 F.2d at 1333. An individual who objects, consequently, has a heavy burden of demonstrating that the decree is unreasonable. See Stotts, 679 F.2d at 551; Village of Arlington Heights, 616 F.2d at 1014.

720 F.2d at 921.

By Decision and Order of March 15, 1984 (doc. #713), this Court preliminarily approved the proposed settlement agreement. This Court based its preliminary approval on its familiarity with the issues presented in this case, the discovery conducted and the character of the negotiations. This Court concluded that the proposed settlement agreement was neither illegal nor tainted with collusion and that it was the product of arms-length negotiations.

Having given preliminary approval to the proposed settlement agreement, the Court was next required to give notice to the members of the class both of the proposed settlement and that a hearing, scheduled April 6, 1984, would be held to determine whether the settlement was fair, adequate and reasonable. Williams v. Vukovich, supra; Stotts, supra. Accordingly, contemporaneous with giving its preliminary approval to the proposed settlement agreement, the Court approved the form of the notice proposed by the parties. See doc. # 713, at H 2. The Court ordered that between March 16, 1984, and March 22, 1984, the approved form of the notice and the entire text of the settlement agreement be published once each in The Cincinnati Enquirer, The Cincinnati Post, The Call and Post (Cincinnati edition) and The Cincinnati Herald. Id. at H 3. The notice and proposed settlement agreement was published as directed. Transcript of April 6, 1984 Hearing (“Tr.”) at 24. Plaintiffs’ Ex. ## 1, 2 and 3.

In addition to the Court ordered notice by publication, the members of the class and other interested persons received notice in a variety of other ways. First, since this case is of great public interest, it was covered extensively by the Cincinnati media. On February 16, 1984, the parties announced that they had reached a tentative agreement, by holding a press conference which was televised and the subject of extensive reporting in the print media.

After the proposed settlement agreement was reached and before the fairness hearing was held, the parties took steps to inform members of the community of the contents of the proposed agreement and that the fairness hearing would be held. Plaintiffs' attorney, Reginald C. Govan, and the President of the local chapter of the NAACP, the Rev. Melvin C. Jones, sent letters which explained the proposed settlement agreement, together with copies of it, to numerous interested persons, churches, neighborhood groups' and civic organizations. Tr. at 24; Plaintiffs’ Ex. # 6. Representatives of the Plaintiffs and of the Cincinnati Defendants spoke at numerous public meetings throughout the District for the purpose of explaining the proposed settlement agreement, answering questions about it and notifying interested persons of the fairness hearing. Tr. at 24, 53-54; Defendants’ Ex. # C-2001. Finally, all students in the Cincinnati school system were given a “flyer” to take home. The flyer notified students and their parents or guardians of the proposed settlement agreement, that copies of it were available for inspection at each school in the district, during normal school hours, and that the fairness hearing would be held on April 6, 1984.

Based on the foregoing, the Court concludes that the notice of the proposed settlement agreement and the scheduled fairness hearing, given to members of the class, was the “best notice practical under the circumstances.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 315, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). The notice was sufficient to allow members of the class, “a full and fair opportunity to consider the proposed decree and develop a response.” Williams v. Vukovich, supra, 720 F.2d at 921. See Mendoza v. United States, 623 F.2d 1338, 1351 (9th Cir.1980).

The final step in the Court’s process of deciding whether to approve the proposed settlement agreement and to adopt it as a consent decree requires the Court to address the key question before it, to wit: is the proposed settlement agreement a fair, reasonable and adequate resolution of the Plaintiff’s allegations? On April 6, 1984, the Court held a hearing in order that the parties, members of the class and representatives of the Cincinnati community could comment on the proposed settlement agreement. Based upon the testimony adduced at that hearing, the Court’s familiarity with this litigation and the parties’ post-hearing submissions, the Court now renders its opinion on the fairness, reasonableness and adequacy of the proposed settlement agreement.

At the outset, since this agreement was reached between the parties as the result of arms-length negotiation and is most definitely not a court imposed settlement, this Court has the power to do only the following with regard to the settlement:

1. to approve the agreement as negotiated and agreed to by the parties, without changes;

2. to reject the agreement and, in effect, to send the parties back to the negotiating table, without suggestions or recommendations by the Court; or

3. to reject the agreement, as negotiated and approved, but with suggestions and recommended changes to the parties.

This Court does not have the power to order specific changes or modifications to be made in the agreement. Only the parties, during arms-length negotiations, such as those that proceeded the drafting and the approval of this agreement, have the power to agree upon changes. The Court’s power, should it not approve the agreement as written, is therefore limited to either rejecting the agreement, without comment, or, in the alternative, to rejecting the agreement with suggestions and recommendations.

In assessing the adequacy, fairness and reasonableness of a settlement agreement, the Court must consider certain factors and is guided by certain principles. First, the Court must weigh the Plaintiffs’ “likelihood of success on the merits against the amount and form of relief offered in the settlement.” Carson v. American Brands, 450 U.S. 79, 88 n. 14, 101 S.Ct. 993, 998 n. 14, 67 L.Ed.2d 59 (1981). See also, Williams v. Vukovich, supra, 720 F.2d at 922; Stotts, supra, 679 F.2d at 552; United States v. Trucking Employers, Inc., 561 F.2d 313, 317 (D.C.Cir.1977); Grunin v. International House of Pancakes, 513 F.2d 114, 124 (8th Cir.1975). The Court must also consider the complexity, expense and likely duration of the litigation, and the stage of the proceedings and the amount of discovery completed. Stotts, supra, 679 F.2d at 552.

Additionally, when significant discovery has been completed, the Court should defer to the judgment of experienced trial counsel who has evaluated the strength of his case. Williams v. Vukovich, supra, 720 F.2d at 922-23. See also, Flinn v. FMC Corp., 528 F.2d 1169, 1173 (4th Cir.1975), cert. denied, 424 U.S. 967, 96 S.Ct. 1462, 47 L.Ed.2d 734 (1976). Finally, the Court must consider carefully any objections raised by class members. Williams v. Vukovich, supra, 720 F.2d at 923; Stotts, supra, 679 F.2d at 552. However, a court should not withhold approval merely because some class members object to it. Flinn v. FMC Corp., supra; Bryan v. Pittsburgh Plate Glass Co., 494 F.2d 799, 803 (3d Cir.), cert. denied, 419 U.S. 900, 95 S.Ct. 184, 42 L.Ed.2d 146 (1974). The Court must also consider whether the agreement is the product of arms-length rather than collusive bargaining. Liddell, supra, 567 F.Supp. at 1042. In reviewing a proposed settlement agreement, the Court does not resolve the factual and legal issues that are the basis of the underlying lawsuit. Id. at 921. Likewise, a “court may not withhold approval simply because the benefits accrued from the [agreement] are not what a successful plaintiff would have received in a fully litigated case.” Williams v. Vukovich, supra, 720 F.2d at 922. Finally, the Court must determine whether the proposed settlement is consistent with the public interest. Id. at 923.

With these standards in mind, this Court turns to the proposed settlement agreement herein.

I. Plaintiffs’ likelihood of success on the merits balanced against the relief offered by the proposed settlement agreement.

Several impediments obstruct Plaintiffs on their journey to ultimate success in this action. Foremost of these obstacles is the Sixth Circuit decisions in Bronson I arid Bronson II. In Bronson I and Bronson II, the Sixth Circuit held that Deal precluded the Plaintiffs, herein, from “showing that the defendants did, prior to July 26, 1965, act with a segregative intent or that the actions, inactions or policies of the Board prior to that date violated the constitutional rights of minority pupils or their parents.” Bronson I, supra, 525 F.2d at 349. Previously, this Court discussed the preclusive effect of the Deal and Bronson decisions:

Based upon the analysis of the Deal and Bronson decisions set forth above, the Court concludes that:
1. Plaintiffs are precluded from attempting to prove that prior to July 26, 1965, the Cincinnati Defendants acted with segregative intent with respect to the Cincinnati School District.
2. Plaintiffs are also precluded from attempting to prove that as of 1954, the date of the rendering of the decision in Brown v. Board of Education, 347 U.S. 483 [74 S.Ct. 686, 98 L.Ed. 873] (1954), a dual school system existed in Cincinnati because of the prior segregative acts of the Cincinnati Defendants which triggered the Cincinnati Defendants’ responsibility after 1954 to act affirmatively to eliminate the continuing consequences of their prior acts.
In other words, Plaintiffs cannot attempt to prove that the Cincinnati Defendants acted with segregative intent prior to July 26, 1965 (the date of the Deal decision) or that they failed to take affirmative steps to eliminate a dual system' in Cincinnati prior to July 26, 1965.
3. Plaintiffs are also precluded from attempting to prove that the Cincinnati Defendants conspired with the State and/or any or all of the Suburban Defendants to create, maintain and/or perpetuate a de jure segregative school system in Cincinnati prior to July 26, 1965.
The above limitations on Plaintiffs’ causes of action are compelled by the finding in Deal, and the collateral estoppel effect of the Deal decision as has been interpreted by the Sixth Circuit in Bronson I and II, to wit: that the Cincinnati Defendants had not acted with segregative intent with respect to the Cincinnati school system prior to July 26, 1965.

Bronson v. Board of Education of the City School District of Cincinnati, 573 F.Supp. 767, 773-74 (S.D.Ohio 1983).

The difficulties that the Bronson and Deal decisions imposed upon Plaintiffs’ case cannot be minimized. Many of the events upon which Plaintiffs would have relied to prove their case occurred prior to July 26, 1965. See Transcript at p. 11-22. Clearly, the probative value of these events, to prove that a post-July 26, 1965 violation had occurred, is attenuated at best.

The Bronson and Deal decisions were not Plaintiffs’ only roadblock. The Plaintiffs were also limited in the presentation of their case by Bell v. Board of Education, 683 F.2d 963 (6th Cir.1982). This Court recognized the limiting effect of Bell in Bronson v. Board of Education, supra:

In Bell, the Sixth Circuit unequivocally determined that school officials “otherwise innocent of segregative intent,” could not be required to bear the burden and expense of integrating a school system whose segregated racial distribution was the result of other agencies, such as housing authorities, having acted independently with segregative intent in shaping the racial mix of the community. Bell v. Board of Education, 683 F.2d, supra, at 968.

573 F.Supp. at 773. Based upon that analysis of the Bell decision, this Court concluded that in the absence of proof that the Cincinnati Defendants and/or State Defendants had acted with segregative intent:

Plaintiffs are precluded from attempting to prove that other parties and/or agencies not before the Court acted with segregative intent individually and/or independently from the named Defendants in creating a de jure segregated community and/or school system in Cincinnati and/or any or all of Hamilton County.

Id. at 774.

Based on the foregoing, the Court concludes that had this case gone to trial, Plaintiffs would have faced significant risks which may have prevented their ultimately prevailing. Against this conclusion, the Court must balance the form of relief that the proposed settlement agreement will afford the Plaintiff class. This requires the Court to examine the agreement.

The heart of the agreement is that the district will, over the next seven years, continue to reduce racial isolation by the use of new and expanded alternative schools supported by a commitment of $35 million in state funds, over and above Cincinnati’s normal state aid. Open enrollment will continue to be available as a means of reducing racial isolation, and a strong program of remedial education will be instituted in low achieving schools. There is cause to believe that the wide variety of voluntary choices available under the settlement will make it unnecessary for any child to ride a bus except by choice. Instead of dictating the methods to be used in reducing racial isolation, the Agreement establishes certain standards to be reached over the seven-year term and leaves with the school district the authority to select the methods of meeting that responsibility. The Agreement acknowledges that the school district should have maximum flexibility in determining those methods and that no school-by-sehool standard should be applied.

The Agreement sets a district-wide standard under the Taeuber Index of Dissimilarity to be achieved by the seventh year, with the school district committed to use its best efforts to achieve annual progress and to show, by December, 1987, that there is a reasonable probability of achieving the ultimate standard by June 30, 1991.

The Taeuber Index measures the extent to which each school reflects the racial composition of the district as a whole. It combines the results of that measurement, and computes a single number between 0 and 100. A reduction in racial isolation causes a reduction in the number (on the Taeuber Index, 100 reflects complete racial isolation and zero shows that each school mirrors the racial composition of the district as a whole). In the 1973-74 school year, the district-wide Taeuber Index was 76 and by the 1983-84 school year it was approximately 53 — a reduction of 23 points in 10 years for an annual average reduction of 2.3 points. Under the Settlement Agreement, the 1983-84 school year index of approximately 53 is to be reduced to approximately 36 by the 1990-91 school year — a reduction of 17 points in seven years for an annual average reduction of 2.4 points.

The backbone of the Agreement is the establishment of new and expanded alternative programs that will offer sound educational options for students. The alternative school enrollment currently is approximately 14,000 students. By the end of the seventh year, it is expected that enrollment will be approximately 20,000 — an increase of about 6,000 students. To the extent consistent with sound educational planning, those new alternatives will be located at schools reflecting a high degree of racial isolation. Alternative programs will qualify for the new state aid only if they are projected to reduce, and after a year do in fact reduce, racial isolation. Additionally, the current open enrollment program will remain in place as will the district’s policy on staff racial balance.

The Taeuber Index levels called for in the proposed settlement agreement compare favorable with those in other school systems. Admittedly, the Taeuber Index levels for the Cincinnati school system will remain higher than they are in some school systems where, after findings of liability, court ordered desegregation plans are in place. Tr. at p. 28. However, the levels will be equal to or below those for many urban school systems, including some that are under court ordered plans. Id.

If the Taeuber Index levels do not go below the levels called for in the proposed settlement agreement, some school-children, both black and white, will remain in racially isolated schools. Nonetheless, the great majority of Cincinnati school-children will attend schools that are not racially isolated. Id. at 29.

Also, the agreement contains a provision directed at improving achievement in schools with low achievement records. Special strategies for improvement in achievement are to be directed to students in schools with low achievement records. In addition to other strategies being developed by the Superintendent, seven schools will receive special additional attention directed to improving basic skills. Approximately $5 million will be directed to this effort over the seven year term of the agreement.

The agreement calls for additional “ancillary” forms of relief. A review of discipline policy will be conducted annually beginning in 1985. A district-wide ad hoc discipline committee, which will include a representative of the NAACP, will review the policy annually. The results of its review will be conveyed to the Superintendent by June 30 of each year. Efforts also will be made to assure that tests are not culturally biased and to guard against racial isolation within school buildings. In many cases where there has been a court imposed remedy after a finding of liability, courts have recognized the importance of these types of ancillary relief. See e.g., Bradley v. Milliken, 402 F.Supp. 1096 (E.D.Mich.1975), aff'd, 540 F.2d 229 (6th Cir.1976), aff'd, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977); Evans v. Buchanan, 447 F.Supp. 982 (D.Del.), aff'd, 582 F.2d 750 (3d Cir.1978), cert. denied, 446 U.S. 923, 100 S.Ct. 1862, 64 L.Ed.2d 278 (1980); United States v. Board of School Commissioners of the City of Indianapolis, 506 F.Supp. 657 (D.Ind.1979), aff'd in part, vacated in part, 637 F.2d 1101 (7th Cir.) cert. denied, 449 U.S. 839, 101 S.Ct. 114, 66 L.Ed.2d 45 (1980).

A Facilitator will be selected jointly by Plaintiffs and the school district. The Facilitator will collect and analyze information on performance under the Agreement, act as a clearing-house for information, serve as a resource for a community-wide task force and file timely reports with the Court on progress under the Agreement. The task force, which will consist of seven persons selected by Plaintiffs and seven persons selected by the school district, will have the objective of mobilizing and securing the widest possible support throughout the community for fair and effective performance of the Agreement.

The agreement does not provide for the creation of any mechanism to resolve disputes arising under the agreement. A hearing will be held in nine months to determine whether disputes are being adequately resolved. If not, the Court has the option of creating such a mechanism.

Based upon the foregoing review, the Court concludes that the proposed settlement agreement will afford substantial relief to the Plaintiff class. While not eradicating all racial isolation, the agreement will require a meaningful reduction of racial isolation in the Cincinnati school system. When the Court balances the substantial relief that the proposed settlement agreement provides against the Plaintiffs’ likelihood of success on the merits, the inescapable conclusion is that the proposed settlement agreement is fair, reasonable and adequate.

2. The complexity, expense and likely duration of the litigation.

At this point, this case has been pending for over ten years. It has been to the Sixth Circuit on appeal twice even though there has not yet been a trial. If this case did go to trial, the trial would be long, expensive and complex. That portion of the trial scheduled to have begun in January, (the liability phase) would have exceeded four months. Assuming that the Court made a finding of liability, a remedy hearing would have been necessary. These hearings would have been followed by appeals. Thus, if this case had gone to trial and if the Plaintiffs had prevailed, there would have been additional delay before the Plaintiffs would begin to reap the benefits of a remedy. Adoption of the settlement agreement will speed the process of ending racial isolation in the Cincinnati schools. Consequently, the prospective length, expense and complexity of a trial in this case induce this Court to conclude that the proposed settlement agreement is fair, reasonable and adequate.

3. The stage of the proceedings and amount of discovery completed.

As previously stated, this case has passed its tenth anniversary. Extensive discovery has been completed. There are more than 700 docket entries in this case. Serious settlement negotiations did not commence until the eve of trial. Indeed, the negotiations required the trial to be postponed, repeatedly. Thus, this factor counsels toward the conclusion that the proposed settlement agreement is fair, reasonable and adequate. This was not a hurried agreement reached in the initial stages of a lawsuit. Rather, because of the stage of the proceedings and the amount of discovery completed, competent, experienced counsel for Plaintiffs were able to enter into this agreement with full knowledge of the strengths and weaknesses of their case.

4. Opinion of counsel.

In this case, counsel for all parties testified that the proposed settlement agreement is fair, reasonable and adequate. They also recommend that this Court adopt the proposed settlement agreement as a consent decree. Because of two factors present herein, the Court places particular reliance on the opinion of counsel.

First, as outlined above, this case was “mature.” There had been extensive discovery. Hence, counsel were able to fully evaluate the benefits afforded to the Plaintiffs by the proposed settlement in light of a complete understanding of the strengths and weaknesses of the Plaintiffs’ case. Second, Plaintiffs’ counsel is extraordinarily experienced. Tr. at p. 196-202; 207. Lead counsel for Plaintiffs, Mr. Thomas I. Atkins, has more experience litigating school desegregation cases than anyone now active in the field. Mr. Atkins has litigated school desegregation cases in 14 states, from coast to coast. The Plaintiffs’ lead negotiator, Mr. William Taylor, is also experienced in school desegregation cases. Mr. Taylor has been involved in school desegregation cases since 1954. In addition to Plaintiffs’ counsel, lead counsel for the State Defendants, Mr. Mark O. O’Neill, has experience in litigating school desegregation suits. He represented the state of Ohio in the Cleveland and Columbus cases.

Based on the exhaustive pretrial proceedings in this case and the experience of counsel, this Court pays particular attention to the opinion of counsel that the proposed settlement agreement is fair, adequate and reasonable.

5. The presence of collusion in reaching the proposed settlement agreement.

The proposed settlement agreement is not the product of collusion. There was no hint of collusion during the negotiating process. At the fairness hearing no such allegation was made. On the contrary, the proposed settlement was the result of intense, arms-length negotiations between the parties. Thus, because no hint of collusion is present, this factor is no barrier to this Court ultimately concluding that the proposed settlement agreement is fair, adequate and reasonable.

6. The concerns and comments of the class members.

In assessing the fairness and reasonableness of a proposed settlement agreement, a court must consider objections to it. Stotts, supra, 679 F.2d at 554. In Liddell v. Board of Education of City of St. Louis, 567 F.Supp. 1037 (E.D.Mo.1983), Judge Hungate summarized certain overriding considerations by which objections to a proposed settlement agreement, and the impact of same upon the Court’s ultimate resolution of the question of whether the proposed settlement agreement is fair, adequate and reasonable, must be evaluated.

In considering the extent of opposition, the Court must view the agreement in its entirety, rather than isolating'individual components of the agreement for analysis. Armstrong [v. Board of School Directors, 616 F.2d 305, 315 (7th Cir.1980) ]. The settlement, moreover, is a product of compromise efforts by adversaries. Usually neither side will attain all its goals in such a settlement. The Court must respect the terms derived from the parties’ negotiations as long as the agreement does not violate constitutional standards and is found adequate, reasonable, and fair. See Armstrong v. Board of School Directors, 471 F.Supp. 800, 805, 812-13 (E.D.Wis.1979), aff'd, 616 F.2d 305 (7th Cir.1980).

567 F.Supp. at 1037. Accord, Stotts, supra, 679 F.2d at 554.

In the present case, this Court received written comments on the proposed settlement agreement from 57 class members, not only individuals but also religious, civil and community groups and leaders. Of these, 47 (a great majority) were in favor of the agreement. Additionally, 46 individuals or spokespersons for various civic, community and religious groups chose to make oral presentations at the fairness hearing.

Initially, the Court wishes to commend all those who presented comments on the fairness, reasonableness and adequacy of the proposed settlement agreement. The sincerity and interest shown by the many speakers at the fairness hearing was indeed impressive. This Court has considered all of the comments, whether submitted only in writing or whether submitted both in writing and expressed orally at the fairness hearing. The comments expressed, considered in their totality, are a further basis for this Court’s finding that the proposed settlement agreement is fair, reasonable and adequate. Rather than merely state this determination in conclusory language, the Court will address many of the concerns raised by those opposed to the proposed settlement agreement and by those commentators who, although in favor of the agreement, were troubled by certain of its provisions..

One major area of concern for one opponent, the Cincinnati Federation of Teachers (“CFT”), as well as for some of its supporters, is the flexibility in the method of reducing the Taeuber Index that the proposed settlement agreement affords the Cincinnati Defendants and the absence from the agreement of a school-by-school standard. The CFT suggested that the Court order the agreement redrafted to require the annual adoption of a comprehensive, school-by-school desegregation plan. Further, the CFT would require the plan to be submitted to the Community-wide Task Force and the CFT for annual review.

Of central importance to the Plaintiffs is a given result, to wit: the reduction of racial isolation in the Cincinnati school system. The result is crucial, not the method of reaching that result. For the Cincinnati Defendants, maximum flexibility in the methods to be used in achieving the result was the central concern expressed in the negotiating process. Indeed, such a provision is so important to the Cincinnati Defendants that following the CFT’s suggestion would quite simply result in the termination of any effort to settle this lawsuit. The absence of a comprehensive plan for the method of reaching the goals of the agreement does not render it unfair, unreasonable or inadequate. Additionally, the Court notes that the adoption of a plan such as that envisioned by the CFT normally follows not an arms-length settlement, but rather a trial, a finding of liability, and a court ordered remedy.

One commentator, the Avondale Community Council, stated, in both its written submission and in its oral presentation, that it could neither support nor oppose the proposed settlement agreement. The Avondale Community Council opined that there had not been sufficient time for citizens to fully understand the proposed agreement.

This is an essential question. Members of the class were entitled to notice which gives them a full and fair opportunity to consider the proposed settlement agreement and to develop a response to it. Williams v. Vukovich, supra, 720 F.2d at 921. However, as the Court has ' concluded above, the notice afforded class members such an opportunity.

There was much comment at the fairness hearing concerning the adequacy of the proposed agreement’s major.goal, the reduction of racial isolation as measured by the Taeuber Index levels. Generally, the commentators supported the use of the Taeuber Index as a measure of the reduction in the levels of racial isolation in the Cincinnati schools. See e.g., Tr. at 77. Some supporters of the agreement questioned whether the Taeuber Index levels were set low enough to eliminate racial isolation in the elementary schools. Tr. at 77-78; 87-88; 95. The Court has considered these concerns and is of the opinion that the Taeuber Index is an acceptable method of measuring the reduction of racial isolation. Further, the Court does not agree with those who challenge levels at which the Taeuber Index is set. The proposed settlement agreement requires the reduction of the Taeuber Index to levels that are above those in some school systems operating under court imposed desegregation plans. However, the levels that must be attained are equal to or lower than those for many urban centers, including some operating under court imposed plans. Keeping in mind that this is a negotiated settlement and not a court imposed remedy, the Court concludes that the Taeuber Index levels provided for in the agreement are fair, reasonable and adequate.

There was a significant amount of comment about the provisions related to the establishment of new and expanded alternative schools and programs. This commentary ranged from enthusiastic support for the use of alternative schools to reduce racial isolation to outright opposition. This opposition was varied. For example, the Friends of the School for Creative and Performing Arts objected to the expansion of that school to include kindergarten through third grade. Tr. at 166-70. Other opponents worried about the impact of expanded alternative schools on neighborhood schools, including those which are racially balanced. Tr. at 80, 95, 143, 172-73. The CFT recommended that the proposed agreement be modified so that the Cincinnati Defendants are obligated to use all standard techniques to reach required levels of desegregation. Tr. at 151-52. Still others expressed their concerns about whether the Alternative Schools Committee would be truly representative of the community. Tr. at 83, 131, 143, 162.

The Court has considered, individually and collectively, all of these thoughtful comments about the prospect of new and expanded alternative programs. However, none of the comments convinces the Court that the proposed settlement agreement is unfair, unreasonable or inadequate. Initially, it should be noted that the provision for the expansion of alternative schools does not alter the Taeuber Index levels that the Cincinnati Defendants are contractually required to meet. The methods by which these levels are to be reached are left to the Cincinnati Defendants. However, the proposed agreement does put some limits on the placement, maintenance and funding of new alternative programs. For instance, alternatives that are in existence for one full school year and remain 90% or more of one race, are not eligible for continued state funding unless they are redesigned in a way that will reduce racial isolation. Additionally, to the extent consistent with sound educational planning, the new alternatives are to be located in schools in which 80% or more of the students are of one race.

The community is not without input into the alternatives’ process. At least one member of the Alternative Schools Committee may be designated by the NAACP. Two members of the Community-wide Task Force may be members of the Alternative Schools Committee. In addition to input from the community, the proposed agreement obligates the Cincinnati Defendants to inform all students of the availability of alternatives and to establish a recruitment and counseling center to assist in this process.

There was some comment directed at the Board’s obligation, undertaken in the proposed agreement, to maintain and enforce its policy on staff racial balance. Some commentary stressed the need for in-service training of staff. Tr. at 80-81, 143, 162; Written statement of Drs. Patricia O’Reilly and Jeannette Taylor. Also, the CFT recommended that the agreement be rejected unless modified to require unbiased assignment of administrators as well as teachers. Tr. at 153.

Neither of these comments cause this Court to conclude that the proposed agreement is unfair, unreasonable or inadequate. Although the agreement does not require the expenditure of funds on in-service training, the Court notes that the Cincinnati Defendants anticipate expending funds in that area. See Exhibit E to the settlement agreement. Also, when the agreement is viewed in its entirety, the absence of any provision regarding the racial balance of school administration does not cause it to become unfair, unreasonable or inadequate.

A number of persons commented on the potential problem of racial isolation within school buildings. They expressed their concern that alternatives’ programs would be placed in designated sections of otherwise racially isolated, neighborhood schools. As a consequence, students who attend the school as a neighborhood school would not significantly commingle with those who attend it as an alternative. One commentator termed this the specter of “fictional integration.” Tr. at 88.

In Section 7 of the proposed settlement agreement, the parties recognize the importance of guarding against racial isolation within school buildings. Section 7 recites that the Cincinnati Defendants have in effect policies to assure the unbiased placement of students within school buildings. The agreement obligates the Cincinnati Defendants to continue to implement those policies and to review them periodically to assure their effectiveness.

The Court received significant comments on the provisions in the agreement designed to assure its effective performance. Primarily, the commentators directed their remarks at Sections 11A and 11B which provide for the appointment of a Facilitator and of a Community-wide Task Force.

The negative statements regarding the Facilitator were directed, primarily, at its limited role. For instance, the CFT proposed that the Facilitator be empowered to submit recommendations to the Court about the means to be used to reduce racial isolation. Tr. at 149. Others suggested that the agreement be modified to require the Facilitator to file monthly reports. Tr. at 90; 95.

The Court does not concur with these criticisms of the Facilitator. Under the agreement, the Cincinnati Defendants are given wide discretion in choosing the means to reach the Taeuber Index levels to which the parties agreed. Consequently, it is of little importance that the Facilitator cannot (unless the Court so requests) make recommendations which are inconsistent with that provision. Likewise, the absence from the proposed agreement of a specific timetable establishing when the Facilitator is to file reports does not weaken it. The proposed settlement agreement requires the submission of timely reports. This is a sufficiently definitive directive.

The criticisms of the Community-wide Task Force were basically two-fold. Some commentators wanted its membership expanded so that other groups could either appoint members to it or be represented on it. Others suggested that the Task Force be given a broad role in overseeing the implementation of the proposed agreement.

The Court disagrees with both of these criticisms. The size of the Task Force is reasonable. A 40 or 50 member Task Force, as some suggested, would become unwieldy. In addition, the Task Force is to represent a broad cross section of the community. To allow various narrow interest groups to appoint one or more members to it would detract from this salutary purpose. Additionally, the Court does not feel that it is necessary to require the parties to renegotiate the proposed settlement agreement in order that the Community-wide Task Force might become a super board of education for the Cincinnati Public School System.

Although the Court has not commented upon every statement that it received, all have been thoroughly considered. Once again, the Court commends those who both submitted written statements and/or attended the fairness hearing to make oral presentations. The commentary was thoughtful, informed and sincere. Cincinnati can be justly proud of its citizenry.

7. The public interest.

The final factor for the Court to consider is whether the settlement is consistent with the public interest. Williams v. Vukovich, supra, 720 F.2d at 923. The proposed agreement is unquestionably in the public interest. It brings to a close more than ten years of litigation. It settles what was a divisive issue within the Cincinnati community. A trial of this case would be even more divisive because counsel for each party would advocate their theories to the extent propriety would allow. The settlement avoids that potentiality.

As the Sixth Circuit said in Williams v. Vukovich, supra:

Voluntary compliance will frequently contribute to the ultimate achievement of the public objectives. Consent decrees minimize the delay, expense, psychological bitterness, and adverse publicity which frequently accompanies adjudicated guilt.

720 F.2d at 923 (citation omitted).

It goes without saying that this is an extremely important lawsuit which, regardless of how this Court would have decided it, would have gone far toward shaping the quality of education received by schoolchildren in the Cincinnati public schools and, therefore, to a very large degree, the quality of life enjoyed in Cincinnati for the next quarter century and beyond.

In lawsuits, generally, and in an extraordinarily significant lawsuits such as this one, specifically, settlement negotiations must take place for the simple reason that a good settlement, fair to all sides, is infinitely preferable to the risk or the reality of a bad result at trial. Quite frankly, in a case of this magnitude, in a case with this community-wide significance, neither party can afford to lose, because when one side of the case loses, regardless of which party that is, the entire community is the loser; neither party can afford to win, because when one party wins, regardless of which party to the lawsuit that is, the other side loses and the entire community is the loser. This realization led the negotiators to the bargaining table and kept them at their task until an agreement was reached.

By settling this lawsuit, the public, and the parties, have avoided the risks inherent in either side winning or losing this lawsuit.

The Plaintiffs and the Cincinnati Defendants have requested that this Court strike from the agreement the language contained in Section 12 thereof, to the effect that during the term of the agreement, compliance with the agreement shall be deemed to be compliance with the Fourteenth Amendment of the United States Constitution, on the basic premise that said language is unenforceable. The State Defendants object to this Court’s striking of said language. See doc. #721 at 4.

Feeling that terms which the parties have chosen should not be stricken, this Court will decline to strike this or any term from the agreement. In the future, should the practical application of this language ever become at issue, this Court will interpret same both in the context in which it appears in the agreement and within the basic premise that the language was not intended by the drafters thereof to give the Defendants a license to commit constitutional violations.

The Court has assessed the proposed settlement agreement by considering all requisite factors. This process leads the Court to but one possible conclusion. The proposed settlement agreement is a fair, reasonable and adequate resolution of Plaintiffs’ allegations.

Accordingly, the Court hereby adopts the proposed settlement agreement as a consent decree. Further, the Court orders this action against the State Defendants and the City Defendants dismissed with prejudice. The Court shall retain jurisdiction over the consent decree during its term. See Williams v. Vukovich, supra, 720 F.2d at 920; Stotts, supra, 679 F.2d at 553.

      . More than two years after filing their Complaint, Plaintiffs, with leave of Court, filed an Amended Complaint. See doc. # 83. In their Amended Complaint, Plaintiffs joined numerous suburban Cincinnati school districts as defendants. Through their Amended Complaint, Plaintiffs sought inter-district relief. Ultimately, the court granted the suburban Defendants' motions for summary judgment and ordered same dismissed from this action. See docs. #681-87, #704 and #705. Consequently, this case was scheduled to go to trial against only those originally charged in the Complaint — -the Cincinnati Defendants and the State Defendants.

      . Court was convened on January 10, 1984. However, shortly after being convened, Court was recessed in order that the Court and counsel could go on a "view” of the Cincinnati Public School System.

      . The negotiators were Mr. William L. Taylor and Dr. Marvin B. Scott for the Plaintiffs, Mr. G. David Schiering, Dr. James N. Jacobs and Mr. Lynn E. Goodwin for the Cincinnati Defendants and Mr. Mark O’Neill and Mr. A. David Nichols for the State Defendants. Reaching a settlement in this lawsuit would not have been possible without the selfless and tireless efforts of these gentlemen.

      . This was the second of what would eventually be at least a half dozen postponements of the trial.

      . The State Defendants approved the proposed settlement agreement on February 19, 1984. The Cincinnati Defendants approved it on February 20, 1984.

      . Rule 23(e) provides:
      Dismissal or Compromise. A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs.

      . The notice that the Court approved and ordered published is attached, as Exhibit A, to the parties joint motion for preliminary approval of the proposed settlement agreement (doc. #711-A).

      . See generally, Liddell v. Board of Education, 567 F.Supp. 1037 (D.Mo.1983); Manual for Complex Litigation, § 1.46 at 56 (5th ed. 1982); 3 B. Moore, Federal Practice, ¶ 23.80[4] at p. 23-520 to 23-525; Developments in the Law— Class Actions, 89 Harv.L.Rev. 1318, 1569-76 (1976).

        . Deal v. Cincinnati Board of Education, 244 F.Supp. 572 (S.D.Ohio 1965), aff’d, 369 F.2d 55 (6th Cir.1966) cert. denied, 389 U.S. 847, 88 S.Ct. 39, 19 L.Ed.2d 114 (1967).

      . The Court deems it unnecessary in the present context to address, once again, the question of the permissible uses of “pre-Deal evidence." It is sufficient to point out that probative value of such evidence is somewhat limited.

      . The following discussion of the various provisions of the settlement agreement is taken from the parties’ Joint Statement and Summary of Agreement released on February 16, 1984.

      . Specifically, the proposed settlement agreement requires a reduction in the Taeuber Index to 36.5 for elementary schools, to 36 for middle and junior high schools and to 34 for senior high schools.

      . However, the issues are not so complex as to prevent Plaintiffs’ experienced trial counsel from fully evaluating the merits of their case and the proposed settlement.

      . The Court will not specifically address the favorable comments. Likewise, certain com-merits that were not relevant to the question at issue will not be addressed.

      . The CFT filed a post-hearing brief (doc. #716) in which they continue to argue that the proposed settlement agreement is not fair, adequate and reasonable. The Cincinnati Defendants have filed a motion to strike that brief (doc. #719), arguing that the CFT does not have standing. This Court does not dispute the Cincinnati Defendants’ assertion that the CFT does not have standing. Nonetheless, the Court overrules the motion in the interest of assuring that it will consider all possible objections to the proposed settlement agreement.

      . Others spoke in favor of the establishment of one or another specific alternative school. See Tr. at 80, 134-36; written statement of Elizabeth Newcomer and Shirley Green.

      . The CFT also wanted the agreement amended to prohibit the involuntary reassignment of teachers in the expansion of the alternative schools and programs. Tr. at 154-55. In this Court’s opinion, this is a subject for bargaining between the CFT and the Cincinnati school system rather than a question to be addressed in the settlement of this lawsuit.


author: SCOTT O. WRIGHT, Chief Judge.

text:
    William A. SATTERFIELD, Plaintiff, v. WESTERN ELECTRIC COMPANY, Defendant.
    No. 82-0894-CV-W-5.
    United States District Court, W.D. Missouri, W.D.
    June 27, 1984.

      L.R. Magee, Hines & Magee, Kansas City, Mo., for plaintiff.
    Jack L. Whitacre, James G. Baker, Georgann Eglinski, Spencer, Fane, Britt & Browne, Kansas City, Mo., for defendant.
   ORDER

SCOTT O. WRIGHT, Chief Judge.

Presently pending before the Court is defendant Western Electric Company’s motion to dismiss. The plaintiff is a former employee of Boese Hilburn Electric Service Company and a former member of Local No. 124, International Brotherhood of Electrical Workers. In his second amended complaint, the plaintiff alleges that in October, 1977 he was circulating “right-to-work” literature among union members working on a construction project for Western Electric. The plaintiff further alleges that, after becoming aware of his activities, Western Electric forced Boese Hilburn to terminate him in violation of his rights under a collective bargaining agreement. The plaintiff claims that Western Electric thereby tortiously interfered with his business relationship with his employer, causing him loss of wages and injury to reputation. The plaintiff also claims that his termination from employment violated his First Amendment right of free speech.

In support of its motion to dismiss, defendant Western Electric contends that this Court’s jurisdiction over the plaintiff’s tort claim is pre-empted by the National Labor Relations Act. The defendant also points out that the plaintiff's First Amendment claim is deficient in that there is no allegation of “state action” in the complaint. In response, the plaintiff offers nothing in support of his constitutional claim, but asserts that his tort claim is not pre-empted because the absence of an employer-employee relationship between the plaintiff and the defendant places the allegedly wrongful conduct beyond the primary jurisdiction of the National Labor Relations Board.

At the outset, the Court notes that the plaintiff has alleged neither federal nor state action as his constitutional claim. Accordingly, the plaintiff has failed to state a cause of action for violation of his First Amendment rights. See United Bhd. of Carpenters & Joiners v. Scott, 463 U.S. 825, 103 S.Ct. 3352, 3357-58, 77 L.Ed.2d 1049 (1983).

Turning to the more difficult issue, the Court finds that its jurisdiction over the plaintiff’s claim for tortious interference is pre-empted by the National Labor Relations Act (the Act). As a general rule, the National Labor Relations Board (the Board) has exclusive primary jurisdiction over conduct which is arguably protected by § 7 of the Act, 29 U.S.C. § 157, or arguably prohibited by § 8 of the Act, 29 U.S.C. § 158. San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 245, 79 S.Ct. 773, 779, 3 L.Ed.2d 775 (1959); see also Local 926, International Union of Operating Engineers v. Jones, 460 U.S. 669, 103 S.Ct. 1453, 1459-62, 75 L.Ed.2d 368 (1983); Local 727, International Ass’n of Bridge, Structural & Ornamental Iron Workers Union v. Perko, 373 U.S. 701, 706-708, 83 S.Ct. 1429, 1431-1433, 10 L.Ed.2d 646 (1963).

The plaintiff’s distribution of right-to-work literature to his fellow union members is “arguably protected” by § 7 of the Act. See Eastex, Inc. v. NLRB, 437 U.S. 556, 563-64, 569, 98 S.Ct. 2505, 2511, 2514, 57 L.Ed.2d 428 (1978). Moreover, any interference by Western Electric on account of the plaintiff’s exercise of rights protected by § 7 would be an unfair labor practice under § 8(a)(1). Contrary to the plaintiff’s suggestions, a strict employer-employee between the § 8(a) violator and the affected employee is not necessary to support the Board’s jurisdiction. On numerous occasions and under similar circumstances, the Board has held that “an employer may violate § 8(a) of the Act not only with respect to actions taken affecting its own employees, but also by actions affecting employees who do not stand in such an immediate employer-employee relationship.” Lucky Stores, Inc., 243 NLRB 642, 643 (1979); see, e.g., Jimmy Kilgore Trucking Co., 254 NLRB 935 (1981); Sainers Constructors, Inc., JD 387-79 (1979); A.M. Steigerwald Co., 236 NLRB 1512 (1978); Dews Construction Corp., 231 NLRB 182 (1977); see also Faulkner Hospital, 259 NLRB 364, 368 (1981); Red Food Store, 252 NLRB 116, 118 n. 5 (1980). Thus, the plaintiff’s claim against Western Electric falls directly into the teeth of the pre-emption doctrine which affords the Board the exclusive authority to fashion a uniform and consistent national labor policy.

Although there are two basic exceptions to the Garmon pre-emption rule, neither is applicable here. The first exception exists where the conduct at issue is only a peripheral concern of the Act. The determination of whether conduct is a peripheral concern of the Act turns on “whether the controversy presented to the [ ] court is identical with that which could be presented to the Board.” Belknap, Inc. v. Hale, 463 U.S. 591, 103 S.Ct. 3172, 3183, 77 L.Ed.2d 798 (1983). Here, the wrongful conduct allegedly undertaken by the defendant — coercing plaintiffs employer to terminate his employment — is identical to the controversy which the Board would have considered if the plaintiff had filed an unfair labor practice charge. See Jones, 103 S.Ct. at 1461-62 (claim for tortious interference with contract rights pre-empted); accord: Perko, 373 U.S. at 707-08, 83 S.Ct. 1432-33.

The second basic exception to the Garmon rule exists where the claim asserted “touches on interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, it could not be inferred that Congress intended to deprive the state of the power to act.” Jones, 103 S.Ct. at 1459. This exception is most frequently invoked where the Board lacks the authority to grant the remedy sought by the plaintiff. See, e.g., Belknap, Inc. v. Hale, 103 S.Ct. at 3183; Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters, 436 U.S. 180, 202-03, 98 S.Ct. 1745, 1760, 56 L.Ed.2d 209 (1978); Farmer v. United Bhd. of Carpenters & Joiners of Am., Local 25, 430 U.S. 290, 304, 97 S.Ct. 1056, 1065, 51 L.Ed.2d 338 (1977); Linn v. United Plant Guard Workers of Am., Local 114, 383 U.S. 53, 63, 64 n. 6, 86 S.Ct. 657, 663, 664 n. 6, 15 L.Ed.2d 582 (1966). Here, the injury sustained by the plaintiff primarily consists of lost wages. It is well-settled that the Board may award back pay to an employee who is wrongfully terminated as a result of third-party pressure on his employer. See, e.g., Jimmy Kilgore Trucking Co., 254 NLRB at 935; Lucky Stores, Inc., 243 NLRB at 649. It is also worth noting that the Board’s lack of authority to award punitive damages is irrelevant. Jones, 103 S.Ct. at 1463.

Furthermore, the issues raised by the plaintiff’s claim are so closely related to questions of national labor policy that it would undermine the Act’s goals of uniformity and consistency to allow the plaintiff to bypass his administrative remedies. Two of the elements of his claim for tortious interference are that the defendant’s actions were coercive and without justification. Francisco v. Kansas City Star Co., 629 S.W.2d 524, 529 (Mo.App.1981). It is for the administrative agency, not the courts, to decide whether an employer’s conduct is coercive and without justification. Jones, 103 S.Ct. at 1462. Therefore, the Court concludes that its jurisdiction to consider the plaintiff’s claim for tortious interference is pre-empted by the National Labor Relations Act. Moreover, assuming arguendo that the plaintiff’s claim is somehow cognizable under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, such claim is nevertheless barred by the applicable statute of limitations. Del-Costello v. International Bhd. of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 2294, 76 L.Ed.2d 476 (1983). Accordingly, it is hereby

ORDERED that defendant Western Electric Company’s motion to dismiss is granted. Costs shall be borne by the plaintiff.