author: ROVNER, District Judge.

text:
    Helen FILLOU, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
    No. 84 C 5516.
    United States District Court, N.D. Illinois, E.D.
    May 9, 1985.
   MEMORANDUM OPINION AND ORDER

ROVNER, District Judge.

This is an action for judicial review of a final determination by defendant, Secretary of Health and Human Services (the “Secretary”), that plaintiff, Helen Fillou, is not entitled to a period of disability and disability insurance benefits pursuant to Title II, sections 216(i) and 223 of the Social Security Act (the “Act”), 42 U.S.C. §§ 416(i), 423.

Plaintiff filed applications for a period of disability and disability insurance benefits, and for Supplemental Security Income (“SSI”) under Title XVI of the Act, on August 24, 1982, alleging that she became disabled and unable to work on October 2, 1977, at the age of 38. The applications were denied initially and upon reconsideration. Plaintiff made a timely request for an administrative hearing, and on August 24, 1983, she appeared before an Administrative Law Judge (“AU”), who considered the case de novo.

In a decision dated December 3,1983, the AU found that plaintiff became “disabled” within the meaning of the Act on August 24, 1982, approximately five months after the expiration of her insurance coverage for disability benefits (insured status). Thus, he ruled that Fillou was entitled to SSI benefits, contingent upon her meeting the non-disability requirements for SSI, but he denied her application for disability benefits. On May 16, 1983, the decision of the AU became the final decision of the Secretary when the Appeals Council denied plaintiff’s request for review.

Presently before this Court are the parties’ cross-motions for summary judgment. In addition to seeking reversal of the defendant’s final decision, plaintiff requests an award of disability benefits based upon a period of disability commencing October 2, 1977. For the reasons stated below, defendant’s motion for summary judgment is denied, and plaintiff’s motion for summary judgment is granted as to reversal of the Secretary’s denial of disability benefits.

I. Applicable Law

In order to qualify for disability insurance benefits, a claimant must meet the insured status requirements, be under age 65, and be under a ‘disability’ as defined in the Act. 42 U.S.C. §§ 416(i), 423.

The term “disability” is defined in section 223 as:

* * * * * *
(A) inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months;
* * * * * *
(2) For purposes of paragraphs (1)(A)
(A) an individual ... shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy____

A claimant’s insured status continues as long as she meets the minimum earnings requirements under Title II. It is well established that the claimant must have been disabled within the meaning of the Act on or before the expiration of her insured status in order to qualify for disability benefits.

There is no insured status requirement, however, for SSI benefits. In order to qualify for SSI benefits on the basis of disability under section 1602 for the Act, 42 U.S.C. § 1381a, a claimant must be a “disabled individual” and meet certain need requirements. The definition of “disabled individual” found in section 1614(a), 42 U.S.C. § 1382c(a), is virtually identical to the section 223 definition quoted above.

In the instant case, the AU found that plaintiff Fillou’s last day of insurance coverage for disability benefits was March 31, 1982, and that prior to that date, her physical and mental impairments were not severe. He further decided that she has been under a “disability” as defined in the Act since August 24, 1982. In his December 3, 1983 decision, the AU specifically found that as of August 24, 1982, Fillou did not retain the residual functional capacity to understand, remember, or carry out simple instructions, to perform simple, routine, repetitive tasks at a competitive rate, or to respond appropriately to supervisors, coworkers, or work pressures in a routine work setting. The AU then considered her age, education, and vocational background, and concluded that there are no jobs existing in significant numbers in the national economy which she would be able to perform.

The medical evidence shows, and the Secretary concedes, that the plaintiff has suffered from a mental impairment, chronic obstructive pulmonary disease, and oesteoarthritis, among other ailments, since before her insured status expired. The Secretary maintains, however, that these impairments, whether singly or in combination, were not severe enough to be disabling until after March 31, 1982.

Judicial review of the Secretary’s determinations is limited to a determination of whether those findings are supported by “substantial evidence” based on the record as a whole. Rhoderick v. Heckler, 737 F.2d 714 (7th Cir.1984). The Supreme Court has defined “substantial evidence” as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). Given the decision of the AU, the question for review in the instant case is whether the AU’s finding that plaintiff did not become “disabled” until August 24, 1982, after the expiration of her insured status, is supported by “substantial evidence.” This Court, after an extensive and careful review of the record as presented to the AU finds that his conclusion was not so supported.

II. Facts

Helen Fillou is a forty-five year old woman, originally from Greece, who is divorced and lives with her two sons in Chicago, Illinois. She last worked as a press operator, from September, 1969 to October 2, 1977.

Plaintiffs medical records show a series of hospitalizations and treatment for both her mental and physical afflictions. Plaintiff has a history of chronic obstructive pulmonary disease; she was hospitalized for acute exacerbation of that condition on two separate occasions, in February, 1981 and in June, 1982.

The medical evidence also indicates that plaintiff has a history of depression dating back to 1975. She was hospitalized twice in 1975 at Chicago Lakeside Hospital; her diagnosis was psychoncurosis with dissociative and depressive features. Her first admission followed an episode of agitated behavior at work, including banging her head against the wall. On the second occasion, she was brought in by her family following a sequence of uncontrolled behavior, culminating in plaintiff taking off her clothes and running outside. Plaintiff subsequently returned to work, but she alleges in her disability insurance application that her mental condition. caused her to miss so much work that she was forced to quit her job on October 2, 1977.

There is no evidence of further psychiatric treatment until October, 1981, when plaintiff was hospitalized at Chicago Reed Mental Health Center (Chicago Reed’) because she was depressed and suicidal. According to her history, plaintiff frequently engaged in uncontrolled behavior such as crying, screaming, fighting and throwing things, and she suffered delusions of meeting with God and the Virgin Mary. Plaintiff’s final diagnosis was dysthymic disorder, which requires symptomatology lasting at least two years prior to the diagnosis, and histrionic personality disorder.

Shortly after the expiration of plaintiff’s insured status, on May 26, 1982, she was readmitted to Chicago Reed because of alcohol induced delusions. She demanded to be discharged on June 10, 1982. The final diagnosis was alcohol induced delirium, dysthymic disorder, and hypertension; her prognosis was poor.

Finally, on two occasions in 1983, plaintiff was brought by the police to Ravens-wood Hospital Medical Center (“Ravens-wood”): she was depressed, disoriented, and suicidal. The final diagnosis on May 7, 1982, by her treating psychiatrist, Dr. Papas, was major depression, recurrent, with melancholic; atypical impulse control disorder; mixed personality disorder; emphysema; and degenerative arthritis.

The record also contains a number of significant medical reports in addition to the hospital records. Dr. George L. Housakos, who has been plaintiffs treating physician since June, 1982, gave his opinion that plaintiff has been totally disabled since 1979 due to her lung and mental impairments. Dr. Richard Brady, an examining psychiatrist for defendant, while suspecting malingering, diagnosed possible major depression, recurrent, with possible mood-congruent psychotic features. A psychiatric review by Dr. Albert Kwedar, a Social Security staff consultant, gave plaintiff a total psychiatric impairment rating of “4.” A “4” indicates: “Symptom, Sign, Behavior or Lab finding is present to a moderately severe degree and very significantly limits ability to perform basic work-related activities.” Significantly, Dr. Kwedar expressly noted that this same evaluation would apply equally for March, 1982.

Furthermore, the AU was also presented with testimony at the hearing. It is apparent from the record that plaintiff had a great deal of difficulty testifying at the hearing: she was unable to speak loudly enough to be audible and she cried during much of the proceeding. She was unable to remember where she worked, when she came to the United States, or how many years she went to school. She did testify to her poor memory, emphysema, weak heart, back, knee and feet pain, and that she can lift about ten pounds, stand for five minutes and walk short distances.

Anita Vasquez, a neighbor, testified that she has known the plaintiff for approximately one and a half years. During that period, she has found the plaintiff incoherent, outrageously abusive to her family, herself, and others, suicidal, and foregetful. Mrs. Vasquez also testified that plaintiff requires help with cooking and the laundry, has pain doing simple household tasks, forgets to take her medications, and frequently loses her temper. She further stated that plaintiff is unable to go out alone, and that she never leaves her home, except to go to church about once every two months or to pick up a welfare check. Mrs. Vasquez reported observing plaintiff walk up steps one at a time due to shortness of breath.

Additionally, Bill Darras, a cousin of the plaintiff, testified that plaintiff had to stop working in 1977 after becoming sick. He is aware of five suicide attempts. Mr. Darras further informed the ALJ that plaintiff, a native of Greece, is basically illiterate in English.

III. Discussion

In his December 13, 1983 opinion, the AU offered several justifications for his decision that plaintiff was not disabled until August 24, 1982. He noted that although plaintiff did have a history of emotional problems prior to the date she was last insured, March 31, 1982, she was not under ongoing psychiatric care and she had not undergone numerous, long-term psychiatric hospitalizations. The AU characterized her psychiatric medical history while insured as episodic, and found no indication that her emotional condition significantly affected her ability to perform basic work-related activities for a continuous 12-month period. According to the AU, the evidence shows that plaintiffs emotional condition deteriorated rapidly following her May, 1982 hospitalization. He claimed that plaintiffs records at Chicago Road and Ravenswood, and evaluations by her treating psychiatrist, Dr. Papas, show that since August 24, 1982, plaintiff has been unable to understand simple instructions or respond appropriately to co-workers and the customary pressures of the work place.

After an extensive review of the record, this Court finds that not only is the final decision of the Secretary unsupported by “substantial evidence,” there exists no evidence to support a finding that plaintiffs mental impairments did not become severe and disabling until August 24, 1982.

First, there is nothing in the report of Dr. Papas, dated June 25, 1983, to indicate an onset date of August 24, 1982. The report details characteristics of a very seriously disturbed woman: plaintiffs reasoning, memory, and interpersonal relationships are very impaired by a pervasive depression and psychosis; she is unstable with explosive tendencies and an extremely low frustration tolerance level; she spends all her time at home, has multiple phobias, and does not go out unescorted; and she has attempted suicide at least five times. Dr. Papas’ report nowhere indicates a particular onset date, but it certainly does suggest an individual who has been unable to function for a significant period of time.

Second, the AU stated that he relied on the records of plaintiff’s hospitalizations at Chicago Road and Ravenswood to support his conclusion that plaintiff’s mental condition became severe after her May, 1982 hospitalization but before August 24. He offers no reason for this reliance, and none is apparent.

The record of plaintiff’s hospitalizations indicate instead that plaintiffs mental impairment became severe prior to March 31, 1982. She was hospitalized October 23-No-vember 2, 1981 at Chicago Road Mental Health Center, because she was depressed, suicidal, and suffering from delusions. Her final diagnosis was dysthymic disorder and histrionic personality disorder with a prognosis of “fair.” Plaintiff was again hospitalized at Chicago Reed May 26-June 10, 1982, shortly after her insured status expired. She was admitted because of alcoholic induced delusions and suicidal tendencies. Her final diagnosis was alcohol induced delirium, dysthymic disorder, and hypertension.

Further, the AU’s reliance on the fact that plaintiffs psychiatric treatment and hospitalizations were not continuous is misplaced. Symptom free intervals do not preclude a finding of disability with respect to mental impairments. Johnson v. Secretary of Health, Education, and Welfare, 679 F.2d 605 (6th Cir.1982). In Johnson, the Sixth Circuit reversed a finding that the claimant was not disabled at the time his insured status expired, where the claimant was hospitalized for mental illness only sixteen days after that date. Id. at 608. The court held that the fact that a claimant was released from a mental institution and off medication was not substantial medical evidence that the claimant’s mental impairments were no longer severe.

Similarly, in Parsons v. Heckler, 739 F.2d 1334 (8th Cir.1984), where a claimant was diagnosed as having certain serious mental problems nine months before the date his insured status expired, and there were strong correlations between the psychological evaluations of claimant before and after the expiration date, the Eighth Circuit reversed the AU’s conclusion that claimant was not disabled during his insured status. Id. at 1340-41.

As both Johnson and Parsons demonstrate, in order to obtain an accurate picture of the severity of the claimant’s mental impairment while he is insured, courts look to psychiatric evaluations of claimants dating both before and after the insured status expiration. These cases also show that intervals where a claimant does not receive any type of psychiatric care are not to be regarded as substantial evidence of a less than severe mental impairment. In sum, the AU lacks any evidence for his conclusion that plaintiff’s mental impairment reached the level of a disability between June and August of 1982.

In contrast, there is substantial evidence to indicate that plaintiff’s mental condition was so severe as to significantly interfere with her ability to work before March 31, 1982. First, the two physicians who analyzed plaintiffs medical records in order to determine a disability onset date both concluded that plaintiff became disabled while she was still insured. The Social Security Administration’s staff physician, Dr. Kwedar, concluded that in March, 1982, the plaintiff exhibited symptoms, signs, and behavior which very significantly limited her ability to perform basic work related activities. Dr. Housakos, a treating physician, has stated that plaintiff was disabled since at least 1979. The opinion of an examining physician is entitled to substantial weight, and explicit reasoning must be set forth in a decision which rejects the physician’s conclusions. Munks v. Heckler, 580 F.Supp. 871, 873 (N.D.Ill.1984). Further, the Seventh Circuit has stated that the Secretary may not ignore uncontroverted medical evidence as to the nature and extent of a mental impairment. Hassler v. Weinberger, 502 F.2d 172 (7th Cir.1974).

In addition, the AU never analyzed the lay witnesses’ testimony. Both Mrs. Valasquez and Mr. Darras testified that they have known the plaintiff since at least March, 1982, and each graphically described a severely disabled woman. Lay testimony is relevant to the issues of onset date and residual functional capacity for mental impairments, Social Security Ruling, 83-20, 83-16, and must be considered, Munks, 580 F.Supp. at 874.

Conclusion

It appears from the record that the onset date of August 24, 1982 was arbitrarily selected by the AU. Uncontroverted medical evidence and lay testimony establish that Helen Fillou was under a ‘disability’ prior to the expiration of her insured status on March 31, 1984.

It is well established that if the record as presented to the AU contains substantial evidence supporting a finding that the claimant was disabled, then the district court may reverse the determination of the Secretary and enter an order granting disability benefits to the claimant. See, e.g., Parsons, 739 F.2d at 1341.

Fillou’s demonstrated chronic depression and suicidal tendencies, as diagnosed on November 2, 1981, together with her uncontrollable, abusive behavior, multiple phobias, and faulty memory and reasoning ability, as corroborated by subsequent psychiatric evaluations and lay testimony, lead this Court to the conclusion that the AD erred in failing to find that Fillou had been disabled since before March 31,1982, at the latest. Although there is some evidence indicating an onset date of as early as October 2, 1977, this Court finds there is substantial evidence supporting a finding that Fillou was disabled before March 31, 1982. Therefore, the determination of the Secretary denying disability benefits to Fillou is denied.

Summary judgment is granted in favor of plaintiff Fillou. Defendant’s cross-motion for summary judgment is denied. Defendant is directed to award her disability benefits under 42 U.S.C. § 423.


source: Caselaw Access Project

author: KISER, District Judge.

license: Public Domain

text:
    Thomas H. McDANIEL, et al, Plaintiffs, v. MEAD CORPORATION, d/b/a Lynchburg Foundry, et al, Defendants.
    Civ. A. No. 83-0550-R.
    United States District Court, W.D. Virginia, Roanoke Division.
    May 29, 1985.

      Donald W. Huffman, Bird, Kinder & Huffman, Roanoke, Va., for plaintiffs.
    Clifton A. Woodrum, Dodson, Pence, Viar, Young & Woodrum, Roanoke, Va., Charles M. Rice, Kilpatrick & Cody, Atlanta, Ga., for Lynchburg Foundry.
    Mark E. Feldman, William H. Lindsey, Eggleston, Glenn & Feldmann, Roanoke, Va., for Mead Corp.
   MEMORANDUM OPINION

KISER, District Judge.

This action arises under the Age Discrimination and Employment Act, 29 U.S.C. § 621, et seq., (the “ADEA”). Plaintiffs Thomas H. McDaniel, Ersal Alderman, Troy M. Hawley, Iris W. Sayers, and Jean R. Stokley are former employees of the Lynchburg Foundry Company which is a subsidiary of the Mead Corporation. Plaintiffs allege that they were discharged by the Defendants in October, 1982, based upon their ages in violation of the ADEA. Defendant Lynchburg Foundry has moved for summary judgment alleging that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Defendant Mead Corporation has joined in this motion, and has also alleged additional grounds for summary judgment on its behalf.

I. Statement of Facts

A. Reductions-in-Force at Lynchburg Foundry

Lynchburg Foundry is a corporation engaged in the manufacture of cast metal products. Lynchburg Foundry operates several facilities in and around Lynchburg, Virginia, and one plant in Radford, Virginia.' All five Plaintiffs were employed at the Radford plant prior to their termination.

Before 1977, Lynchburg Foundry operated three separate facilities at the Radford plant: the Shell Foundry, the Pipe Foundry, and the “Special” Foundry. In late 1977, Lynchburg Foundry closed the Special Foundry due to decreased demand and opened a new plant, the Medium Castings Foundry (“MCF”). One of the chief customers for MCF products was the Caterpillar Tractor Company. At this time, the Radford work force consisted of approximately 1,425 total employees. Of these employees, 160 were “salaried” employees; the remainder were “hourly” employees.

The terms and conditions of employment for Lynchburg Foundry’s hourly employees are governed by a collective bargaining agreement, which provides seniority rights in termination decisions. All five Plaintiffs were salaried employees, and were not covered by a collective bargaining agreement or any other contract. Although Lynch-burg Foundry managers usually view seniority as a factor favoring the retention of a salaried employee, they are not required to do so.

In March of 1980, changing customer demand resulted in the closing of the Pipe Foundry. The Lynchburg Foundry Corporation terminated several hundred employees, including salaried personnel. Proportionately more salaried employees under the age of 40 were terminated in the March, 1980 force reduction than salaried employees over the age of 40.

Economic conditions continued to decline in the following years, and Lynchburg Foundry undertook force reductions in September, 1980; December, 1980; April, 1981; and May, 1982. Each of these force reductions impacted more severely on salaried employees under the age of 40. For example, in the May, 1982 force reduction Lynchburg Foundry terminated 16% of its under-40 salaried work force, as compared to 6% of its over-40 salaried work force. By May, 1982, the work force at the Rad-ford plant had been cut in half: from 1,425 employees in July, 1979, to 707 employees in May, 1982. Over one-third of the salaried work force had been terminated: from 160 in July, 1979, to 99 in May, 1982.

By the Fall of 1982, a continued decline in customer demand coupled with an impending strike at the Caterpillar Tractor Company resulted in a management decision to close the Medium Castings Foundry. The closing of the MCF resulted in the termination of several hundred additional employees, including 27 salaried employees. All five Plaintiffs were among the 27 salaried employees terminated in this force reduction. According to Donald Carson, the Radford Plant Operations Manager, the closing of the MCF and these force reductions were necessary for the Radford plant to remain in business. Of the 27 salaried employees terminated in October, 1982, 15 were under the age of 40 (representing 42% of the under-40 salaried workforce), and 12 were over the age of 40.

B. The Individual Employment Decisions

1. Thomas E. McDaniel.

McDaniel began work at Lynchburg Foundry in March of 1965. He was promoted to the position of Maintenance Supervisor in the Maintenance Department in 1969. He remained in that position until his termination in October, 1982. McDaniel’s immediate supervisor from 1976 to 1982 was Robert Coalson (age 44). There were a total of seven maintenance supervisors employed in October, 1982: David Forbes (age 36), Jack Ratcliffe (age 34), Clarence Sowers (age 51), Willard Jones (age 45), Thomas McDaniel (age 55), David Byrd (age 32), and George Valach (age 44). All seven maintenance supervisors provided general supervision to the hourly maintenance employees. In addition, Jones and Byrd were certified to provide technical supervision to electricians, and Forbes and Ratcliffe were certified to provide technical supervision to machinist-mechanics. Their additional training and certification had come through the joint Lynchburg Foundry/New River Community College Craft Apprenticeship Program. Neither McDaniel, Sowers, or Valach had any specialized training or qualifications in electrical or machinist-mechanic work beyond that acquired on the job.

When the Medium Castings Foundry was closed, three maintenance shifts were eliminated and, accordingly, three maintenance supervisors had to be terminated. Jones was retained as an electrical specialist. Byrd was retained to continue on a special electrical assignment at the Shell Foundry. The Foundry also wished to retain at least one certified machinist-mechanic specialist. Forbes was determined to be the better qualified so he was retained and Ratcliffe was terminated. Of the three remaining supervisors, Sowers was retained because of his seniority (30 years). McDaniel and Valach were terminated.

2. Troy M. Hawley.

Hawley’s last continuous service with Lynchburg Foundry began in 1958 when he was employed as an hourly employee in the Special Foundry. Hawley transferred into the Storeroom Department in approximately 1970. The Storeroom Department is responsible for ordering, stocking, and distributing all parts and materials used by Lynchburg Foundry in the production of castings. Hawley’s first position in the Storeroom Department was window attendant. In 1974, he was assigned the position of messenger/mail clerk which he held until his termination in October, 1982. The messenger’s duties included picking up and delivering mail, distributing interoffice mail, and running errands.

There were nine salaried jobs in the Storeroom Department in 1981. By October, 1982, three of these positions had been eliminated, and the Foundry decided to eliminate three additional salaried positions. The head of the department, Don Wood (age 44), was retained along with Gerald Duncan (age 45), another exempt level supervisor who had been Mr. Wood’s assistant for approximately 8 years. The only non-exempt salaried employee retained was Marshal Wirt (age 41). Wirt was a salary grade “D”, who had operated the storeroom computer and handled bookkeeping. Hawley’s messenger position, a salary grade “A” (the lowest salary grade in the Foundry) was eliminated. Certain of the messenger’s duties, such as personal delivery of the mail, were no longer performed. Other responsibilities were assumed by Foundry employees on as-needed basis.

8. Iris W Sayers.

Sayers was employed by the Foundry in September, 1968. For several years prior to her termination she held the position of Senior Process Clerk in the' Payroll Services Department. This was a non-exempt clerical position. As a Senior Process Clerk, Sayers was responsible, along with other clerks, for processing employee time cards and determining the amount of pay for each employee. Sayers’ supervisor was Gerald Lyons, the Payroll Supervisor. The staff of the Payroll Services Department had been significantly decreased during earlier force reductions, and the positions of three Payroll Services Clerks had been eliminated. Management decided to eliminate two of the final three Payroll Services Clerk positions in October, 1982, leaving only one Payroll Services Clerk employed.

The three remaining clerks were Sayers (age 58), Scotty Smith (age 42), and Linda Cecil (age 33). Lyons felt that Sayers was the least productive of these three clerks, and was not qualified to conduct the full range of payroll operations. Because Smith was fully qualified in all areas of the payroll operation and had been employed longer than Cecil, Smith was retained. Sayers and Cecil were terminated.

4. Jean R. Stokley.

Stokley was employed by Lynchburg Foundry on May 7, 1962. Stokley held a variety of non-exempt clerical jobs. Prior to 1980, Stokley was a clerk in the Production Control Department. This Department was entirely eliminated in March, 1980, at which time Stokley and her supervisor, Betty Craig, were assigned other positions. Stokley was transferred to the position of switchboard operator which she held until her termination in October, 1982. During this reduction-in-force, Stokley was displaced by her former supervisor, Betty Craig. Craig had been employed in an exempt salaried position as scheduler of the Medium Castings Foundry. Craig and Stokley were both age 54 at the time of this action, but Craig was approximately 5 months younger than Stokley. However, Craig had been employed by the Foundry longer than Stokley and in higher rated positions. Craig took over the switchboard position, and also continued performing some of her prior duties as a scheduler. Stokley was terminated.

5. Ersal W. Alderman.

Alderman was employed by the Foundry on several occasions, and his last continuous service began in 1962. Alderman spent approximately 15 years working as an hourly employee in the Special Foundry. When the Special Foundry closed in 1977, Alderman was transferred to the Medium Castings Foundry. He was promoted to Production Supervisor at the MCF in 1978. His MCF supervisor was Thomas Hudson. In 1980, Alderman was transferred to the Shell Foundry as a Molding Cork Supervisor. When the MCF ceased operations, Thomas Hudson was transferred to the Shell Foundry. Because of his substantial prior experience with shell molding operations, management decided that Hudson would displace one of the Shell Foundry Production Supervisors. Hudson was age 35 at this time.

The Shell Foundry Supervisors were Alderman (age 46), Richard Quesenberry (age 41), Jewell Higgs (age 39), Ellis Daniely (age 45), and Jerry Clark (age 38). Alderman had been a Supervisor for the shortest length of time and was perceived to be the least qualified Shell Foundry Supervisor. Alderman was terminated on October 81, 1982.

Timely charges of age discrimination were filed with the Equal Employment Opportunity Commission by McDaniel, Hawley, Sayers and Stokley. There is some dispute as to whether Alderman’s charge was timely. Apparently Alderman contacted the EEOC by telephone in early 1983. On March 25,1983, approximately 145 days after his discharge, Alderman sent a handwritten letter to the EEOC discussing his discharge. On March 29, 1983, in response to this letter, the EEOC requested additional information. Alderman’s complaint in this action was filed in June, 1983. A telephone conversation with the EEOC was held in early July, and the EEOC sent a draft charge of employment discrimination to Alderman on July 6, 1983. This charge was filed with the EEOC on July 12, 1983, 254 days after Alderman’s discharge. Alderman was re-employed by Lynchburg Foundry on June 17, 1983, and remains employed to this date. Because of the disposition of Alderman’s claim on the merits, I need not resolve whether his claim with the EEOC was timely filed. I assume, without deciding the issue, that Alderman's March 25, 1983, letter constituted a charge of discrimination under 29 C.F.R. §§ 1626.6 and .8.

II. Summary Judgment in ADEA Cases

Under Fed.R.Civ.P. 56, summary judgment is to be granted only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The moving party bears the burden of proof on these issues. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The Court must draw inferences most favorable to the party opposing the motion, United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962), and the opposing party is to be given the benefit of all favorable legal theories invoked by the evidence. Charbonnages de France v. Smith, 597 F.2d 406 (4th Cir.1979).

Summary judgment is not inappropriate in age discrimination cases merely because they involve issues of intent and motive. In order to resist a motion for summary judgment, plaintiffs cannot rest on the allegations in their complaint, but must counter the evidence produced by the defendants. International Woodworkers v. Chesapeake Bay Plywood Co., 659 F.2d 1259, 1271 (4th Cir.1981). At a bare minimum, plaintiffs must make out a prima facie case. Palmer v. District Board of Trustees, 748 F.2d 595, 599, 36 F.E.P. 778, 781 (11th Cir.1984). But even establishment of a prima facie case does not mean the case must be submitted to the jury or that summary judgment is improper. Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 241 at n. 12 (4th Cir.1982). As the Eleventh Circuit stated in Pace v. Southern Railway System:

A plaintiff when faced with a motion for summary judgment cannot rely on attenuated possibilities that a jury would infer a discriminatory motive, but rather must come forward with sufficient evidence to establish a prima facie case and respond sufficiently to any rebuttal by the defendant to create a general issue of material fact. Even where a prima facie case has been established but the defendant has rebutted with a proffer of legitimate, non-discriminatory reasons for the discharge, a genuine issue of material fact is not automatically presented.

701 F.2d 1383, 1391 (11th Cir.1983).

III. Elements of a Prima Facie Case

Before considering whether there are any genuine issues of material fact presented, it is first appropriate to determine whether any or all of the Plaintiffs have made out a prima facie case of age discrimination. In EEOC v. Western Electric Co., Inc., 713 F.2d 1011 (4th Cir.1983), the Fourth Circuit extensively discussed the requirements of the A DEA in the context of reductions-in-force:

As adapted from the McDonnell-Dougas line of cases, the elements of the plaintiffs ‘prima facie case’ in the usual ADEA case are: (1) the plaintiff is in the protected age group; (2) the plaintiff was discharged or demoted; (3) at the time of discharge or demotion, plaintiff was performing his job at a level that met his employer’s legitimate expectations; and (4) following his discharge or demotion, the plaintiff was replaced by someone of comparable qualifications outside the protected class, [citations omitted]. It is readily apparent that the fourth element will not fit well in most reduction-in-force cases. See McCorstin v. U.S. Steel Corp., 621 F.2d 749 (5th Cir.1980). In such cases, the claimant’s job is often phased out, and thus he would be unable to point to a replacement. While we do not believe that a claimant in such a case should be precluded for all practical purposes from using the McDonnell-Douglas proof scheme by being required to satisfy the fourth element, the claimant should not be permitted to establish a ‘prima facie case’ by satisfying only the first three elements.
* * * * * *
... The fourth element required to establish a ‘prima facie case’ of discrimination was intended to demonstrate unequal treatment by the relatively objective evidence of replacement by a member of the non-protected class. See McCorstin, 621 F.2d 753. Although a plaintiff in a reduction-in-force case normally is unable to show that he was replaced by such a person, he can nevertheless establish a ‘prima facie case’ by producing some other evidence that the employer did not treat age neutrally. See Fink, [v. Western Electric], supra, 708 F.2d [909] at 916-19 [4th Cir.1983]; Williams v. General Motors Corp., 656 F.2d 120, 129-30 (5th Cir.1981), cert. denied, 455 U.S. 943 [102 S.Ct. 1439, 71 L.Ed.2d 655] (1982).

713 F.2d 1014, 1015.

The Fourth Circuit has also noted that replacement by a person outside the protected age group is not an essential legal element of an ADEA claim. However, the absolute and relative ages of the claimant and his replacement (if any), are relevant in assessing whether a factual inference of age discrimination is permissible.

We agree with the First Circuit that replacement of a sixty year old by a thirty-five year old or even a forty-five year old within the protected class would be more suggestive of discrimination than replacement of a forty-five year old by a forty-two year old within the protected class or a thirty-nine year old outside it.

Lovelace v. Sherwin-Williams Co., 681 F.2d 242 at fn. 13 (4th Cir.1982).

All five Plaintiffs in this case have made out the first three elements of a prima facie case: they are members of the protected group, they were all discharged, and at the time of their discharges they were performing their jobs at a level that was satisfactory to Lynchburg Foundry. The Foundry concedes that these were all good employees who had survived the previous force reductions.

The Foundry admits that Alderman has made out a prima facie case for the fourth element. After his discharge, Alderman was replaced by someone outside the protected class. Stokley, on the other hand, was replaced by Betty Craig, who was only four months younger. It would be unreasonable to allow an inference of age discrimination based on this minute difference in ages. As will be explained below, this does not foreclose Stokley from showing direct proof of age discrimination. Rather, it merely means that Stokley is not entitled to the permissible presumption of age discrimination under the McDonnell-Douglas formula.

The other three Plaintiffs cannot show that they were replaced by younger employees because, according to the Foundry, their jobs were entirely eliminated. The evidence is uncontroverted that Troy Hawley’s full-time position as messenger was eliminated. Even though some of his prior duties, such as running errands, were assumed by other employees, this does not mean that those employees “replaced” him. LaGrant v. Gulf & Western Manufacturing Co., 748 F.2d 1087, 1090-91 (6th Cir.1984). In the absence of other evidence, Hawley cannot satisfy the fourth element of McDonnell-Douglas.

The situation of McDaniel and Sayers is more difficult. The evidence shows that a certain number of positions were eliminated in the Maintenance Department and the Payroll Department. In the Maintenance Department, three of the seven Maintenance Supervisor positions were eliminated; in the Payroll Services Department, two of the three Payroll Services Clerk positions were eliminated. Although there was no actual replacement of. these individuals, management made a selection among employees holding the same position as to which employees would be terminated. Sayers, age 58, was terminated while Scotty Smith, age 42, was retained. Similarly, McDaniel, age 55, was terminated while David Forbes, age 36, was retained.

This situation, while not uncommon in reduction-in-force cases, has not been explicitly addressed by the Fourth Circuit Court of Appeals. Lovelace v. Sherwin-Williams involved demotions. Fink v. Western Electric, 708 F.2d 909 (4th Cir.1983), involved the termination of an entire program with no jobs or employees retained. 708 F.2d 916. EEOC v. Western Electric was a workforce reduction demotion case, and the court intimated that a prima facie case might be made if it was shown that persons outside the protected age class were retained in the same positions. 713 F.2d 1011.

There was no one-for-one replacement of McDaniel and Sayers. Nor was there an entire elimination of their positions. Others held equivalent positions with the same title, duties and responsibilities. What management did was eliminate a certain number of positions in a particular job category, then decide which employees would be retained in the remaining positions. Under these circumstances, the retention of younger employees is the functional equivalent of a one-for-one replacement which fulfills the fourth element of a prima facie case. Moore v. Sears, Roebuck and Co., 464 F.Supp. 357, 363, n. 6 (N.D.Ga.1979).

In reaching this conclusion, I do not hold that a plaintiff can establish a prima facie case merely by claiming that he was capable of handling one or more positions other than his own, yet was not relocated to such a job during a reduction-in-force. But See Williams v. General Motors, 656 F.2d 120, 129 (5th Cir.1981) (conscious refusal to consider relocating plaintiff because of his age satisfies final element of prima facie case). Troy Hawley may have been qualified for some other position in the Foundry, but his position in the storeroom was entirely eliminated. His situation is different than that of McDaniel and Sayers who held essentially the same position as those retained, but simply lost out in a competition for the positions that remained after the reduction-in-force. Only in the latter case does the McDonnell-Douglas presumption apply.

IV. Other Evidence of Age Animus

Under EEOC v. Western Electric, plaintiffs can establish a prima facie in the absence of a McDonnell-Douglas presumption by producing some other evidence that age was not treated neutrally. 713 F.2d 1015. This can be done through statistical evidence, evidence of past expressions of age bias or other proof. Williams v. General Motors Corp., 656 F.2d 120, 130 (5th Cir.1981), cert. denied, 455 U.S. 943, 102 S.Ct. 1439, 71 L.Ed.2d 655 (1982).

The Plaintiffs have not been able to support a presumption of discrimination through statistical evidence. Indeed, the evidence shows that in all the Lynchburg Foundry force reductions since 1979, including the October, 1982 force reductions, salaried employees under the age of 40 were terminated much more frequently than salaried employees over the age of 40. In the October, 1982 force reduction, 42% of Lynchburg Foundry’s under age 40 salaried work force was terminated, while only 19% of the over age 40 salaried work force was terminated. Obviously, this statistical evidence does not support an inference of age animus on the part of Lynchburg Foundry.

Nor have the individual Plaintiffs provided any direct or circumstantial evidence that age bias was a factor in their terminations. All five Plaintiffs have testified that until their terminations each had been treated fairly by the company, and had never experienced age discrimination in the course of his or her employment. The Plaintiffs have presented no examples of age-discriminatory comments or actions by the Foundry or any of its supervisors. Other than the legal presumptions discussed above, the Plaintiffs have pointed to only one area of testimony to support prima facie claims of age discrimination. There is evidence that during the deliberations among Lynchburg Foundry managers as to which individuals would be terminated or retained, those managers worked from employee lists which also reflected the birth date and seniority date for each employee. The Plaintiffs allege that these lists were used early in the decision-making process, and provide direct evidence that “the employer did not treat age neutrally”. This conclusion is not justified by the record.

The deposition testimony of Donald Carson, Manager of Manufacturing at Lynchburg Foundry, reveals that representatives of Lynchburg Foundry’s Human Resources Department were present during one of the last meetings before the terminations. Information on the age and date of seniority of all employees was reviewed and recorded. Carson explained that Human Resources had requested this information so Bernard Tilley got the files and provided the dates. Carson says that these dates were examined because Human Resources wished to review the entire job termination procedure and make sure that there was no discrimination as far as minorities, age, or sex. (Carson Depo. at 36-37).

Evidently more than one set of employee lists was used in the course of the termination process, and Carson says that those lists with numbers beside employees’ names (i.e., date of birth and seniority dates) were used toward the end of the discussions as to who would be terminated (Carson Depo. at 24-25, 28). The testimony of Ira W. Hoover concerning when the notations as to age and seniority date were added is mixed, and cannot be relied on (compare Hoover Depo. at 72-73 and Hoover Depo. at 79). The only other evidence concerning these age lists was provided by T. J. Coleman, the Radford Plant Manager. Coleman testified that they did have a list that showed employees’ age, the date of birth and seniority dates, and that they got such a list from Human Resources (Coleman Depo. at 39). Human Resources had input into the termination process (Coleman Depo. at 27).

I do not believe that this testimony, standing alone, provides the Plaintiffs with a prima facie case of age discrimination. When all inferences are drawn favorably to the Plaintiffs, the evidence shows that the ages of the employees were reviewed when selecting employees for termination. The Plaintiffs would have the Court strictly interpret the language of the Fourth Circuit in EEOC v. Western Electric and rule that any use of age in the termination process establishes a prima facie case. Such a strict construction would ignore the entire purpose behind the Circuit Court’s opinion — to explain why a plaintiff has to prove something more than the first three elements before a prima facie case is established. 713 F.2d 1014.

There are many non-neutral ways in which age can be used which are not discriminatory. Age can be used in a favorable fashion where the older employee is preferred to the younger employee. Age can also be used in a purely benign fashion, such as when the ages of the employees are analyzed to insure that there is no age discrimination. In either case, even though age is not used “neutrally”, the use of age as a factor cannot be considered to give rise to a presumption of age discrimination.

The intent of the Fourth Circuit in the EEOC v. Western Electric opinion is clear when considered together with the authorities cited by the Court. The Circuit Court was heavily influenced by the Fifth Circuit’s opinion in Williams v. General Motors Corp.:

Our third requirement simply insists that a plaintiff produce some evidence that an employer has not treated age neutrally, but has instead discriminated based upon it. Specifically, the evidence must lead the factfinder reasonably to conclude either (1) that 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.

Id. at 129-30. See also Fink v. Western Electric Co., 708 F.2d 916-19.

The record only shows that lists including the employees’ ages were available and used during the termination process. There is no evidence that these lists were used in a discriminatory manner. On the contrary, the record supports the Foundry’s claim that these lists were used as a check on discriminatory practices. Thus, I cannot find that the use of the employee lists is evidence to support the fourth element of a prima facie case.

Plaintiffs also rely on Coleman’s testimony (at pp. 36-39 of his deposition) where he said that the Foundry considered the employees’ ages. Although Plaintiffs’ counsel strenuously tried to determine what Coleman meant by this comment, it is not clear what use, if any, was made of the employees’ ages. Admittedly, it is possible to draw an inference that McDaniel’s age was used in a negative manner, but only if Coleman’s responses are taken out of context. Coleman also testified that they were not trying to discriminate against McDaniel or anybody else because of age. (Coleman Depo. at 39). Coleman later testified on cross-examination that he would not be a party to any age discrimination, and if he thought discrimination was present, he would not have allowed it. (Coleman Depo. at 72-73). Taken as a whole, this testimony lends little weight to the Plaintiffs’ claims.

Thus, in the absence of any other evidence of discriminatory intent, or negative use of age, only three of the Plaintiffs have made out a prima facie case: Alderman, under the McDonnell-Douglas formula, and McDaniel and Sayers, based upon a modified McDonnell-Douglas formula for use in force reductions when younger employees are retained in equivalent positions. Hawley and Stokley have not made out a prima facie case under EEOC v. Western Electric.

V. Lynchburg Foundry’s Business Justifications

In response to the Plaintiffs’ showing of a prima facie case, Lynchburg Foundry has proffered evidence that these employees were dismissed for legitimate, non-discriminatory business reasons. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Articulation of legitimate, non-discriminatory reasons for these decisions eliminates any presumption of age discrimination, and places on the plaintiff the burden of proving the ultimate issue. United States Postal Service Board v. Aikens, 461 U.S. 941, 103 S.Ct. 2117, 77 L.Ed.2d 1299 (1983).

Lynchburg Foundry contends that these employment decisions were made based upon management’s evaluation of the relative qualifications of each employee, as well as the needs of the Foundry after the reductions-in-force.

Contrary to the Defendants’ assertion, it is not the decided law in this Circuit that where relative qualifications are advanced as the non-discriminatory reason for an employment decision the plaintiff bears the burden of establishing that she was better qualified than the retained employee. That rule has been limited to hiring cases, Anderson v. Bessemer City, 717 F.2d 149, 153 (4th Cir.1983), and promotion cases, Young v. Lehman, 748 F.2d 194, 198 (4th Cir.1984). The Circuit Court has not applied this standard to discharge cases even though the recent case of Gairola v. Commonwealth of Virginia, Department of General Services, 753 F.2d 1281 (4th Cir.1985) provided an opportunity to do so. I do not believe it is appropriate to place this burden on the discharged plaintiff. However, the defense is still a valid one. The court’s conclusions in EEOC v. Western Electric regarding demotions during a reduction-in-force should be applied to the termination decisions in this case:

In each individual case, the area supervisor responsible for the demotion testified concerning legitimate business reasons for each demotion. They testified that while most of the supervisors demoted were good supervisors, poor business conditions required a reduction in the number of supervisors, and the supervisors selected were less qualified, based on their performance and expertise, than those supervisors retained. We find no reasons legally sufficient to discredit this testimony. It is true that the trial court held that the qualification assessments were subjective. That appellation, however, does not convert an otherwise legitimate reason into an illegal one. [citations omitted].

713 F.2d 1016.

Lynchburg Foundry has defended its decisions on similar grounds, and has articulated the considerations that went into each of these dismissals.

Thomas McDaniel had no specialized training or certification in technical electrical or machinist-mechanic work. His own perceptions of his ability to perform as well as those certified employees is irrelevant. Smith v. Flax, 618 F.2d 1062, 1067 (4th Cir.1980). The Foundry felt it needed to retain two certified supervisors, as well as the second electrical supervisor on special assignment. McDaniel was considered to be one of the three generalists. Sowers (age 51), with 14 more years experience than McDaniel, was retained. The Lynch-burg Foundry managers say they placed a great deal of weight on the certification program, and that is why Forbes, Byrd and Jones were retained instead of McDaniel.

The testimony of two of Iris Sayers’ supervisors, Lyons and Willis, is that Sayers was the slowest and least productive of the three Payroll Services Clerks remaining in October, 1982. Only one clerk was to be retained, and would have to perform all the duties in the department in an efficient and speedy manner. Willis felt that Cecil (age 33) was the most efficient, but she had less seniority than Smith (age 42). Smith was retained because it was felt she was better qualified than Sayers to perform the work required.

Ersal Alderman (age 46) was replaced by his former supervisor, Thomas Hudson (age 35). Hudson was transferred to the Shell Foundry when the MCF was closed. Hudson was a college graduate with extensive supervisory experience and experience in shell molding operations. Lynchburg Foundry decided to “bump” one of the existing shell foundry production supervisors to make a place for Hudson. Alderman had been a supervisor for less time than any of the other shell foundry production supervisors. As the person with the least supervisory experience, he was dismissed.

VI. The Appropriateness of Summary Judgment

The shifting burdens of production set out by the McDonnell-Douglas/Burdine formula are also applicable to a motion for summary judgment. Obviously a plaintiff is not required to prove the employer’s articulated business reason is pretextual at this stage of the suit. He is, however, required to present sufficient rebuttal to create a genuine issue of material fact. Pace v. Southern Railway System, 701 F.2d 1391. The ultimate issue which the plaintiff must prove is that he suffered an unfavorable employment action under circumstances in which the employee’s age was a determining factor in the action in the sense that “but for” his employer’s motive to discriminate against him because of his age, he would not have suffered the action. Lovelace v. Sherwin-Williams Co., 681 F.2d 238. If the plaintiff cannot produce sufficient evidence to create an inference of discriminatory motive, then the employer’s articulated business reasons remain unrebutted, and summary judgment is appropriate. Goode v. Department of Health, Commonwealth of Virginia, 758 F.2d 647 (4th Cir.1985) (UP); Steckl v. Motorola, Inc., 703 F.2d 392 (9th Cir.1983).

The Plaintiffs have hinged their rebuttal on two arguments. The first is a legal standard adopted by some district courts which precludes summary judgment if an employer presents evidence of a legitimate business justification. The reasoning of these courts is that the plaintiff should be given an opportunity to cross examine the defendant before the finder of fact. Bower v. State Equip. Div., 31 F.E.P. Cases 825 (W.D.Pa.1983). This standard is nothing more than a restatement of Fed.R.Civ.P. 56 — summary judgment is not appropriate where there are genuine issues of material fact in dispute.

The Plaintiffs’ second argument is that there is direct evidence of discrimination which creates a genuine issue as to material facts. The evidence they rely on is the testimony of Coleman, and the use of employee lists which included the employees’ ages. As I made clear above, this evidence provides very little support to the Plaintiffs’ case. The lists were used, but the record does not support an inference that they were used in a negative way. The same conclusion applies to Coleman’s testimony.

There may be some factual issues that are in dispute. For example, it is not clear precisely when the information about the employees ages and seniority dates was first considered. But these are not material facts because there is no evidence to rebut Lynchburg Foundry’s explanation of how and why this information was considered. Black’s Law Dictionary defines a “material fact” as follows:

A fact is “material” and precludes a grant of summary judgment if proof of that fact would have effect of establishing or refuting one of essential elements of a cause of action or defense asserted by the parties, and would necessarily affect application of appropriate principle of law to the rights and obligations of the parties, [citations omitted].

Black’s Law Dictionary 881 (6th Ed. 1979), cited in Kendall v. Hoover Co., 751 F.2d 171, 174, 36 F.E.P. Cases 891, 893 (6th Cir.1984).

If this case were to go to trial, and the evidence developed as it has been during discovery, this Court would be compelled to enter a directed verdict for the Defendants at the close of the evidence. There is substantial evidence that the Foundry’s articulated justifications for these dismissals are not pretextual. All five Plaintiffs knew that Lynchburg Foundry was in economic trouble, and that numerous qualified employees had already been laid off. The statistical evidence supports the Foundry’s position that age animus was not a factor in the terminations. The Foundry’s reasons for choosing which employees would be retained are “clear and reasonably specific”. Burdine, 450 U.S. 258, 101 S.Ct. 1096. This is particularly true for McDaniel, who lacked specific qualifications, and for Alderman, who was the least senior supervisor in his department. The reasons for Sayers’ dismissal are more subjective, but the Foundry has stated that speed and efficiency were the decisive factors, and such decisions must be accorded deference.

Where the evidence is so overwhelming that these dismissals were not based on age discrimination, a directed verdict would be proper. Gairolo, 753 F.2d 1288. A jury would not be permitted to examine an employer’s reasons for the discharge and determine that the employer’s business judgment or policies do not appeal to its sensibilities. Their inquiry is limited to age discrimination. Elliott v. Group Medical & Surgical Service, 714 F.2d 556, 567 (5th Cir.1983). In light of the extensive discovery already conducted in this case, I find it unlikely that additional evidence would be developed at trial which would change the present posture of the evidence. I am not unmindful of the Plaintiffs’ right to cross-examine the Defendants on the legitimacy of their business justification. That right was exercised during depositions to no avail. In the absence of any evidence of age animus on the part of Lynchburg Foundry, I do not believe there is a sufficient question of credibility to justify a trial of this matter.

There is no genuine issue as to any material fact, and both Defendant Lynchburg Foundry and Mead Corporation are entitled to judgment as a matter of law. Having resolved this case on the merits, there is no need to address the Defendants’ other defenses.

The Clerk is directed to send certified copies of this Memorandum Opinion to all counsel of record.

      . Salaried employees are classified as either “exempt" or "non-exempt" depending upon whether they are subject to federal and state wage-hour laws. For example, mid to upper management employees are exempt while clerks and clerical staff are non-exempt.


author: IRVING BEN COOPER, District Judge.

text:
    REVLON, INC., a Delaware corporation, Plaintiff, v. CARSON PRODUCTS CO., a Georgia corporation, Defendant.
    No. 82 Civ. 4326 (IBC).
    United States District Court, S.D. New York.
    May 29, 1985.

      Wigman & Cohen, P.C., Arlington, Va., and Cooper, Dunham, Clark, Griffin & Moran, New York City, for plaintiff; Herbert Cohen, George C. Myers, Jr., Arlington, Va., and Gerald W. Griffin, Thomas Carulli, New York City, of counsel.
    Wyatt, Gerber, Shoup, Scopey & Badie, New York City, for defendant; Gerard F. Dunne, New York City, William N. Needle, Lawrence K. Nodine, Atlanta, Ga., of counsel.
   IRVING BEN COOPER, District Judge.

By opinion dated January 30, 1985 we granted, inter alia, an award of attorney fees in favor of plaintiff pursuant to 35 U.S.C. § 285 and directed the parties to endeavor to agree on the amount. The parties were unsuccessful in their attempts to accomplish this. Plaintiff now brings this application to recover its fees. On the same date (March 21, 1985) that Revlon filed its Reply to Defendant’s Opposition to Plaintiff’s Application, Revlon also filed a motion to quash a subpoena duces tecum issued by defendant to Ernest B. Lipscomb III, Esq., in-house counsel for plaintiff. We proceed to examine both applications.

Plaintiff contends that it is entitled to $639,838.44, broken down as follows:

Defendant raises no specific objection to the first two categories of fees, but requests a reasonable period of time to investigate these claims by discovery and a hearing before us to consider the reasonableness of the claims. Further, defendant firmly resists in-house counsel fees and related litigation expenses.

I. Outside Counsel Fees

Outside counsel for plaintiff has submitted copies of bills sent to its client, Revlon, during the period September 17, 1980 to April 30, 1984. The bills list the services rendered by counsel together with fees and expenses. However, not presented to us are time sheets of individual attorneys listing the name of the attorney, the specific activity performed and the hours expended on it. It is well-settled that “reasonable” attorney fees do not include, for instance, costs for duplication of work, reading prior unrelated decisions by the trial judge, or extra costs incurred because the office of counsel was located out of state. Thermovac Industries Corp. v. The Virtis Co., Inc., 159 U.S.P.Q. 349, 354-55 (S.D.N.Y.1968); see Arbrook, Inc. v. American Hospital Supply Corp., 202 U.S.P.Q. 685 (N.D.Tex.1979). The extremely limited amount of material presented to us does not disclose sufficient information enabling us to determine whether the requested fee is reasonable. Furthermore, plaintiffs failure to submit this significantly vital material has completely stifled defendant’s ability to either accept as reasonable the figure sought by Revlon for outside counsel or to point out to the Court the reasons defendant believes it unreasonable. Consequently, we direct plaintiff to submit this material in detail to defendant, and accordingly grant defendant’s request (we find it duly made) for a “reasonable period of time to investigate Revlon’s claims by discovery” (Defendant’s Opposition to Revlon’s Application for Attorney’s Fees, at 3). All discovery on this question must be completed within 60 days of the date of filing of this order.

II. In-House Counsel Fees

The Federal Circuit Court of Appeals has stated:

The purpose of § 285 is, in a proper case and in the discretion of the trial judge, to compensate the prevailing party for its monetary outlays in the prosecution or defense of the suit. Codex Corp. v. Milgo Electronic Corp., 541 F.Supp. 1198, 1201, 217 U.S.P.Q. 878, 879 (D.Mass.1982) (“The compensatory purpose of § 285 is best served if the prevailing party is allowed to recover his reasonable expenses in prosecuting the entire action.”) We interpret attorney fees to include those sums that the prevailing party incurs in the preparation for and ■performance of legal services related to the suit____

Central Soya Co., Inc. v. Geo. A. Hormel & Co., 723 F.2d 1573, 1578 (Fed.Cir.1983). The question which now confronts us is whether compensation for the prevailing party’s in-house counsel is a reasonable expense under section 285.

Our efforts have revealed only one case (arising under the patent law) in which compensation for in-house counsel has been addressed. In Scott Paper Co. et al. v. Moore Business Forms, Inc., 404 F.Supp. 835 (D.Del. Oct. 2,1984) (Exhibit F in Plaintiff’s Application for Award of Attorney Fees), the Court found that an award of fees for in-house counsel was included in the meaning of “reasonable attorney fees.” In so deciding, the Court quoted the following language from Textor v. Board of Regents of Northern Illinois University, 711 F.2d 1387, 1397 (7th Cir.1983), where in-house counsel fees were awarded under Fed.R.Civ.P. 37:

A more realistic assessment of the situation would indicate that for every hour in-house counsel spent on this case defendants lost an hour of legal services that could have been spent on other matters. The value to defendant of this lost time is, of course, the amount it would require additional counsel to do the neglected work. Whether defendants actually hired additional counsel or went without legal advice on some matters is irrelevant as the value of the loss is the same. An award of reasonable fees will compensate defendants for this loss.

Scott Paper Co., supra, slip op. at 3.

Applying similar reasoning, the Third Circuit Court of Appeals in an insurance contract case awarded reasonable fees for in-house counsel. The Court found that if in-house counsel had refrained from activity, the workload and fee of the outside counsel would have increased, and “[t]here is no reason in law or in equity why the insurer should benefit from [the prevailing party’s] choice to proceed with some of the work through its own legal department.” Pittsburgh Plate Glass Co. v. Fidelity & Casualty Co. of New York, 281 F.2d 538, 542 (3d Cir.1960); see Johnston v. Detroit Hoist & Crane Co., 142 Mich.App. 597, 600, 370 N.W.2d 1 (Mich.Ct. of Appeals 1985) (reasonable salary of in-house counsel attributable to work performed in products liability case may be awarded).

Our opinion is in accord with courts finding in-house counsel fees recoverable by a prevailing party. Indeed, we note that in his Affidavit (verified February 27, 1985) (“Affidavit”), Ernest B. Lipscomb III, Esq., Revlon’s in-house counsel, states: “Had I not been so actively involved [in this litigation] ... I would have been able to devote my time to other matters, which I could not do...” (at 4-5). However, it is essential, as section 285 clearly states, that only reasonable fees be awarded. We agree with defendant that reasonable fees do not include the hours in-house counsel spent acting as a liaison between the client and outside counsel. See Burger King Corp. v. Mason, 710 F.2d 1480, 1498 (11th Cir.1983).

We are of the opinion that defendant should have the opportunity to determine both the time actually spent by Mr. Lipscomb on the case (which Mr. Lipscomb frankly states he cannot ascertain precisely) (Affidavit at 4), and whether Mr. Lipscomb properly segregated his client/liaison time from time spent as litigator. Accordingly, we hold that defendant may conduct discovery on these issues — to be completed within 60 days from the filing of this order.

In its pursuit of answers to these questions, defendant served a deposition subpoena on Mr. Lipscomb (Exhibit A attached to Defendant’s Opposition to Revlon’s Application for Attorney’s Fees) which plaintiff moves to quash. The subpoena commanded Mr. Lipscomb to bring with him, inter alia, all opinions he prepared for Revlon regarding this suit; all documents he prepared encompassing his suggestions to persons at Revlon; his diary and other ancillary documents used to ascertain the number of hours he worked on this case; and documents reflecting completely the actual compensation paid to Mr. Lipscomb by Revlon from 1979 to date.

We find that the first two categories of services rendered that Mr. Lipscomb was commanded to bring violate Fed.R.Civ.P. 26(b)(3) in that they require disclosure of “the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” We disagree with defendant’s argument that Mr. Lipscomb has waived this privilege by voluntarily referring to these opinions and suggestions in his Affidavit sworn to on February 27, 1985 where he stated:

I have extensively studied the prior art and the file histories of the patents in suit, prepared opinions for Revlon management, and worked closely with trial counsel at depositions and at trial. I have answered or obtained answers to discovery interrogatories from Carson, reviewed briefs and made suggestions, discussed strategy, attended to gathering and reviewing documents requested by Carson and interviewed witnesses for deposition and trial purposes.

In short, Mr. Lipscomb merely submitted a list of his activities; he did not divulge or allude to the substance of any of them. Consequently, Mr. Lipscomb’s statement did not waive his attorney/client privilege as to the substance of the activities called for by the list, cf. Handgards, Inc. v. Johnson & Johnson, 413 F.Supp. 926, 929 (N.D.Cal.1976) (voluntary disclosure of part of substance of privileged communication waives remainder of privileged communication about same subject), and we find that plaintiff is not required to bring with him to his deposition the first two items set out on the subpoena duces tecum.

With regard to the third item, i.e., Mr. Lipscomb’s diary and other ancillary documents used to determine the number of hours he worked on the case, plaintiff claims no privilege but argues that this information is private. In response, defendant offers to abide by the Protective Order previously entered in this case and to mark Mr. Lipscomb’s comments contained in these documents that are unrelated to this litigation “CONFIDENTIAL — ATTORNEYS ONLY.”

We believe disclosure of this information is vital to defendant and unprotected by any legal privilege. Thus, defendant is entitled to this discovery. Further, we agree that such materials should be marked as defendant suggests, each subject to the Protective Order.

Finally, plaintiff argues that the fourth item which the subpoena demands Mr. Lipscomb produce — documents prepared in 1979 reflecting his actual compensation — extends too far back in time. In Defendant’s Reply to Revlon’s Motion to Quash the Subpoena, defendant consents to limit its request to the period covered by its claim for attorney fees. The production of these documents goes to defendant’s contention that payment of in-house counsel fees may not exceed the actual cost to Revlon lest plaintiff profit from the practice of law and violate Canon 3 of the Code of Professional Responsibility which in essence prohibits a lawyer from aiding a non-lawyer in the unauthorized practice of law.

To arrive at and advance before us its estimate of “reasonable” fees, defendant is entitled to see documents reflecting Mr. Lipscomb’s compensation during the period covered by the claim for attorney fees. Accordingly, Mr. Lipscomb is directed to bring to his deposition documents reflecting his actual compensation during the time period covered by the claim for attorney fees.

III. Related Litigation Expenses

As we have already noted, the purpose of section 285 is, in the discretion of the trial judge, to compensate the prevailing party for its outlay of monies during the course of the suit. See Central Soya Co., supra, at 1578; Codex Corp., supra, at 1201. Indeed, the Federal Circuit Court of Appeals has recently and specifically stated that “section 285 also permits the prevailing party to recover disbursements that were necessary for the case.” Lam, Inc. v. Johns-Manville Corp., 718 F.2d 1056, 1069 (Fed.Cir.1983). Accordingly, we are compelled to grant plaintiff’s application for. related litigation expenses to the extent that such expenses were necessary. During the course of its discovery period, defendant may pursue this point.

Conclusion

Plaintiff is entitled to recover attorney fees pursuant to 35 U.S.C. § 285 for reasonable outside counsel and in-house counsel fees and for necessary disbursements. In order for us to be presented with the full detailed scope of information, we believe it necessary to allow defendant time to conduct discovery and in that manner examine plaintiff’s determinations — all discovery to be completed within 60 days from the filing of this order. Further, plaintiff’s motion to quash defendant’s subpoena is denied to the extent set forth hereinabove.

After discovery has been completed and both sides are fully familiar with their respective positions, we again urge the parties to get together and attempt to arrive at an agreed fee. If they are unable to do so, we order that they submit renewed and updated applications for fees within 90 days from the filing of this order. Upon receipt of these applications and request by either side, a date will be set for an evidentiary hearing so that we may decide “the extent and nature of the services rendered,” Perkins v. Standard Oil Co. of California, 399 U.S. 222, 223, 90 S.Ct. 1989, 1990, 26 L.Ed.2d 534 (1970), in order to ascertain the total amount due plaintiff. See Marable v. Walker, 704 F.2d 1219, 1222 (11th Cir.1983); King v. McCord, 621 F.2d 205, 206 (5th Cir.1980). It might well prove to be the better part of wisdom that such a hearing embrace each and every part of the total “reasonable” fee requested.

SO ORDERED.


author: NORGLE, District Judge.

text:
    Doris H. EKERN, Plaintiff, v. SEW/FIT COMPANY, INC. and Ruth Oblander, Defendants.
    No. 82 C 4455.
    United States District Court, N.D. Illinois, E.D.
    June 14, 1985.

      Thomas R. Juettner, Michael Piontek, Paul G. Juettner, Gary, Juettner & Pyle, Chicago, 111., for plaintiff.
    Howard L. Ward, Chicago, 111., L. John Crittenden, LaGrange, 111., Ronald A. Sandler, Jerry A. Schulman, E. Leonard Rubin, Gerald S. Green, Epton Mullin Segal «fe Druth, Ltd., Chicago, 111., for defendants.
   ORDER

NORGLE, District Judge.

The parties have filed cross motions for summary judgment. Plaintiff moves for summary judgment on Counts II (breach of contract) and III (breach of fiduciary duty). Defendants move for summary judgment on all counts of the complaint. A brief description of the relevant facts precedes a discussion of the cross motions.

Plaintiff, Doris Ekern (“EKERN”), is a self-employed dressmaker, sewing teacher and author. Defendant, Sew/Fit Company (“SEW/FIT”), is a publisher of books on the subject of sewing and fitting garments using the “Sew/Fit Method.” Defendant, Ruth Oblander (“OBLANDER”), is the founder, sole shareholder and president of Sew/Fit. Oblander also teaches and has experience in the sewing and fitting of garments using the “Sew/Fit Method.” She is also the author of a number of books on the subject of sewing.

In the summer of 1975 Oblander asked Ekern to write a book on the subject of the fitting of women’s slacks using the Sew/Fit method. Beginning on December 21,1976 Ekern and Oblander entered into a series of written agreements by which Defendants became entitled to the exclusive right to publish Ekern’s book (“Slacks Cut-to-Fit Your Figure” (“SLACKS”)) in return for the payment of certain royalties.

Plaintiff began “Slacks” in 1975 and finished the work sometime in late 1976. “Slacks” was apparently a successful publication. From 1977 through 1981 “Slacks” sold over 124,000 copies and placed at a respectable number three (3) on the Sew/Fit list of “top sellers.” Despite the success of her book, however, Ekern’s full-time employment with Sew/Fit was terminated on December 1, 1980.

Prior to Plaintiff’s termination, Oblander began to work on a book entitled “Slacks for a Perfect Fit” (“PERFECT FIT”). Some four weeks after Plaintiff’s termination, on January 9, 1981, Defendants decided to discontinue publication of “Slacks” and to begin publication of Oblander’s book “Perfect Fit.” Oblander completed the book in the last two weeks of January (along with her usual travel and lecture activities). Spring of 1981 saw the publication of over 10,000 copies of “Perfect Fit." Further, the Oblander book was substituted for Plaintiff’s book on the April 1981 Sew/Fit publication list. Thereafter Oblander’s book replaced “Slacks” on all subsequent Sew/Fit publication lists and orders requesting copies of “Slacks” were consistently filled with copies of Oblander’s “Perfect Fit.”

The party moving for summary judgment has the burden of establishing that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. Cedillo v. International Association of Bridge and Structural Iron Workers, 603 F.2d 7, 10 (CA 7 1979). All factual doubts are resolved against the movant. Although some courts have expressed a preference that certain copyright issues be decided by a jury (viz. “substantial similarity”), the nature of the action does not, in and of itself, preclude summary disposition. E.g., Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 977 (CA 2), cert. denied, 449 U.S. 841, 101 S.Ct. 121, 66 L.Ed.2d 49 (1981).

I. Defendants’ motion for summary judgment

Counts I and IV allege that Oblander’s book (“Perfect Fit”) and the “Sew/Fit Manual” infringe on the Ekem copyright to “Slacks.” In order to establish an infringement Ekem must prove 1) ownership of a valid copyright and 2) copying of the work by the Defendants. Atari, Inc. v. North American Phillips Corp., 672 F.2d 607, 614 (CA 7) cert. denied, 459 U.S. 880, 103 S.Ct. 176, 74 L.Ed.2d 145 (1982). See generally 3 M. Nimmer, Nimmer on Copyright § 13.01, at 13-3 (1983) (hereinafter “NIMMER”). “Because direct evidence of copying is often unavailable, copying may be inferred where the defendant had access to the copyrighted work and the accused work is substantially similar to the copyrighted work.” Atari, supra, at 614.

Initially, Defendants contend Ekern asserts no protectable copyright interest and therefore she may not maintain an action for infringement. We address this issue before proceeding to a discussion of the elements identified in Atari. Copyright provides no protection to such broad areas as theories, writing styles and technical explanations. Atari, supra, at 615. “Unlike a patent, a copyright gives no exclusive right to the art disclosed, protection is given only to the expression of the idea — not the idea itself.” Mazer v. Stein, 347 U.S. 201, 217, 74 S.Ct. 460, 470, 98 L.Ed. 630 (1954). Likewise, instructional vocabulary and thematic elements are not protected. Reyher v. Children’s Television Workshop, 533 F.2d 87, 90 (CA 2), cert. denied, 429 U.S. 980, 97 S.Ct. 492, 50 L.Ed.2d 588 (1976); McMahon v. Prentice-Hall, Inc., 486 F.Supp. 1296, 1304 (E.D.Mo.1980). Defendants argue that certain “trade dress” common to Sew/Fit publications and elements of “common expressions within the vocabulary of sewing” cannot serve as a basis for Ekem’s infringement claim. This is a correct statement of the law (E.g., See v. Durang, 711 F.2d 141, 143 (CA 1983)), but the alleged infringement in this case does not consist solely of “trade dress” and common sewing expressions.

Plaintiff complains Defendants have appropriated specific text and artwork from her book; text and artwork which is subject to her copyright. Therefore, the issue we must address is whether the artwork identified by Plaintiff, in conjunction with the supporting text, warrants copyright protection. For the purpose of this motion the court finds Ekern is the owner of the copyright in the illustration contained in “Slacks.” Moreover, we find the identified text and artwork are sufficiently removed from the realm of theories, ideas and concepts to warrant copyright protection.

As Nimmer explains, the copyrightability of a work’s subject matter is one of the elements of “ownership.” Nimmer § 1301.[A]. Registration of a copyright constitutes prima facie proof of ownership. 17 U.S.C. § 410(c). Baldwin Cooke Co. v. Keith Clark, Inc., 383 F.Supp. 650, 655 (N.D.Ill., aff'd. 505 F.2d 1250 (7th Cir.1974). Defendants, therefore, have the burden of overcoming Plaintiff’s prima facie proof of the copyrightability of the subject matter of her work. The Ninth Circuit’s decision in Landsberg v. Scrabble Crossword Game Players, Inc., 736 F.2d 485 (CA 9), cert. denied, — U.S.-, 105 S.Ct. 513, 83 L.Ed.2d 403 (1984) provides an instructive analysis of the copyrightability issue. See also Reyher v. Children’s Television Workshop, 533 F.2d 87, 91 (CA 2 1976).

The Plaintiff in Landsberg developed a strategy for the playing of Scrabble and, in the course of publishing an account of his strategy, requested permission of the Defendant, Selchow and Richter (“S & R”), to use the Scrabble trademark. In order to evaluate Plaintiff’s request, S & R requested and received a copy of Plaintiff's manuscript.

At the time it received Plaintiff’s manuscript S & R was in the process of formulating its own instruction book on the playing of Scrabble (the “Scrabble Handbook”). The employee reported Plaintiff’s manuscript had merit and S & R initiated negotiations with Landsberg for the rights to the manuscript. Negotiations, however, broke off and S & R severed whatever relationship it had with Landsberg. S & R thereafter published its Scrabble Handbook.

The district court found for Landsberg on the infringement claim. Although the court found no verbatim copying, it did find S & R had paraphrased large parts of Plaintiff’s manuscript and created a handbook substantially similar to Plaintiff’s work. The Ninth Circuit Court of Appeals reversed, holding no infringement occurred because the alleged appropriations were non-copyrightable ideas. The Court of Appeals found the similarity between the two works resulted from the Defendant’s restatement of unprotectable ideas contained in Plaintiff’s manuscript. 736 F.2d at 489.

Central to the Landsberg holding is the understanding that the copyrightability of fact-based works is fundamentally different from that of fictional accounts. Fact-based works are limited to a rather narrow range of expression. Landsberg, supra, at 488 (a fact based idea “cannot be expressed in in a wide variety of ways”). More likely than not a subsequent expression of a fact-based idea will appear to be a substantially similar paraphrase of the original work. Thus, before an infringement of a fact-based work will be found, the similarity of the works “may have to amount to verbatim reproduction or very close paraphrasing.” Id.; 1 Nimmer, § 2.11 [A]-[B].

The rationale behind Judge Goodwin’s analysis in Landsberg is relatively straightforward. The finding that a fact-based work is copyrightable effectively grants its author a copyright on ideas when no later author could restate the ideas contained in the original work without being found to infringe on the original work. Such a result runs against the policy behind the Copyright Act to grant protection to the expression contained in a work without diminishing the free exchange of ideas. See Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (CA2 1930), cert. denied, 282 U.S. 902, 51 S.Ct. 216, 75 L.Ed. 795 (1931).

Defendants’ argument parallels the reasoning found in Landsberg. They argue the appropriations alleged by Ekern are not copyrightable. Specifically Defendants focus on short technical phrases and sentence fragments which appear in both works. If the only appropriations alleged in this case consisted of such short technical textual passages describing sewing techniques, we might agree with Defendants. However, Ekern alleges more than appropriation of textual passages. She alleges the appropriation of text and artwork and this is what we think distinguishes this ease from the cases cited by Defendants.

For example, McMahon v. Prentice-Hall, supra, involved allegations of appropriated text, photographs and organization, but the principal claims involved appropriations of text. To the extent McMahon involved issues of appropriated artwork (photographs and organization) that case is inapposite because there the Plaintiff did not own the copyright to specific artwork and the court specifically found only a sporadic use of the unprotected photographs contained in the original work. 486 F.Supp. at 1303. This case involves the direct lifting of illustrations to which Plaintiff held the copyright. Originality of expression in this case stems from the combination of textual explanation and pictorial illustration. See Baldwin Cooke, supra, at 656. We, therefore, find Ekern’s work is copyrightable.

We now turn to the remaining elements of copyright ownership. During discovery, Defendants twice admitted Plaintiff was the owner of a valid copyright in “Slacks.” Defendants now contend “Slacks” was a work for hire under the 1909 Copyright Act. The inconsistency of these two positions raises genuine issues of material fact. Consequently, for the purposes of this motion, we deem Plaintiff the owner of the copyright in “Slacks.”

At this point we specifically note that Plaintiff is also the owner of the copyright in the artwork contained in “Slacks.” In the absence of contradicting evidence from Defendants we must assume the artwork in “Slacks” was “work for hire” under the 1909 Act. 1 Nimmer. § 5.03 [B][2][c] at 321. See May v. Morganelli-Heumann & Assoc., 618 F.2d 1363, 1366-69 (CA 9 1980). Thus we find the first Atari element satisfied: Plaintiff is the owner of a valid copyright in the text and artwork contained in “Slacks.”

The second element identified in Atari is the existence of copying by the Defendants. As previously mentioned, this element is satisfied by a showing that Defendants had access to the work and a showing of substantial similarity between the two works. Defendants do not contest access to Plaintiff’s work. Therefore, the remaining issue is whether a substantial similarity exists between the text and artwork in “Slacks” and the text and artwork in “Perfect Fit.” Plaintiff need only show a substantial similarity between the elements of the two works. Atari, supra, at 614.

Plaintiff’s brief alleges thirty appropriations. At least five of the alleged appropriated illustrations appear to be direct copies of Plaintiff’s work with substantially similar supporting text. The specific examples of direct lifting {supra, note 2), along with other alleged appropriations (appropriations which do not clearly constitute direct lifting) are sufficient to create triable issues of fact. This finding is sufficient to preclude summary judgment in favor of Defendants. Consequently, Defendants’ motion for summary judgment on Count I and VI is denied. Defendants’ motion for summary judgment on Count IV, however, is granted.

Count IV alleges an infringement of “Slacks” by the Sew/Fit Manual. Plaintiff, however, has failed to specifically identify any appropriated material contained in the Manual. Inasmuch as copyright does not protect ideas, theories and concepts, Plaintiff cannot make such a generalized infringement claim and Defendants’ motion for summary judgment must be granted. Accordingly, we also dismiss Count V (alleging a breach of an oral contract based on the Sew/Fit Manual) for lack of pendent jurisdiction. See United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).

II. Plaintiffs motion for summary judgment

Plaintiff has moved for partial summary judgment on Counts II and III contending that the undisputed facts in this case establish a breach of contract and a breach of fiduciary duty by Defendants. First, Plaintiff contends Defendants’ replacement of her book with the Oblander book constitutes a breach of their express promise to use their best efforts to sell, promote and distribute “Slacks.” Next, Plaintiff contends the substitution of the Oblander book also constitutes a breach of an implied promise of good faith and fair dealing by Defendants. Defendants argue that no breach of either express or implied terms occurred because the writings signed by the parties (Ex. A through C) provide Defendants with substantial discretion in discontinuing the publication of Plaintiff’s book.

The initial royalty agreement allows Sew/Fit, “in its discretion [to] discontinue the publication or distribution” of “Slacks.” Ex. B. The second royalty agreement provides for termination of the agreement if “Slacks” is no longer on sale and if Sew/Fit chooses not to bring out another edition of the book. See Ex. C. As we read these provisions, the discretionary right of the publisher to discontinue publication is not necessarily at odds with the automatic operation of the termination clause (where the book is not on sale and the publisher decides not to bring out a new edition). The first provision operates to the publisher’s advantage, while the second clearly operates to the advantage of the author. Plaintiff’s contrary interpretation both ignores and distorts the plain meaning of the contract language. For example, the initial royalty agreement clearly gives Sew/Fit the right to discontinue publication at its discretion: Plaintiff’s interpretation of the second royalty agreement ignores this language and would hold Sew/Fit to the agreement for the length of Plaintiff’s copyright. Therefore, we agree with Defendants that the decision to discontinue publication of Plaintiff’s book constituted the exercise of an express contract term and cannot constitute a breach of the best efforts clause. However, we do not agree with Defendants that such a finding compels the conclusion that substitution of the Oblander book for Plaintiff's work did not constitute a breach of the implied covenant of good faith and fair dealing. See Rao v. Rao, 718 F.2d 219, 222-23 (CA7 1983); S Nimmer § 10.11[B], at 1096-96.1 (1983). As we have already found, Plaintiff may be able to make out infringement in this case. Consequently, if infringement is shown, Defendants may also have breached the implied covenant of good faith in that they published a book based on Plaintiff’s work for the purpose of diverting royalties from Plaintiff. See Corner v. Israel, 732 F.2d 267, 271 (CA 2 1984); Nelson v. Mills Music, 278 A.D. 311, 104 N.Y.S.2d 605 (N.Y.1951), aff'd, 304 N.Y. 966, 10 N.E.2d 892 (1953). Although our interpretation of the contract in this case precludes Plaintiff from arguing a breach by Defendants of the best efforts clause based on the decision to discontinue Plaintiff’s book, the motion for summary judgment on Count II must be denied.

In Count III Plaintiff contends Defendants have breached a fiduciary duty. Defendants maintain no breach can be found where no fiduciary relation has been shown to exist. We agree with Defendants that no fiduciary relation exists in this case and therefore grant summary judgment for Defendants on Count III.

The relationship between a publisher and an author is not generally regarded as one between fiduciaries. E.g., Van Valkenburgh, Nooger & Neville, Inc. v. Hayden Publishing Co., Inc., 30 N.Y.2d 34, 330 N.Y.S.2d 329, 281 N.E.2d 142, 145 (1972). Consequently the proponent of the fiduciary relationship bears the burden of showing by clear and convincing evidence that the “circumstances make it certain that confidence was reposed on one side and influence resulted on the other.” Vargas v. Esquire, 166 F.2d 651, 653 (CA 7), cert. denied, 335 U.S. 813, 69 S.Ct. 29, 93 L.Ed. 368 (1948). See also In Re Estate of Nelson, 132 Ill.App.2d 544, 270 N.E.2d 65, 70 (1st Dist 1971) (evidence of fiduciary relation must be so strong “it can lead only to one conclusion”). Because we find the rights and duties of the parties in this case are governed by the various writings, we do not believe Plaintiff has met her burden of making a clear and convincing showing that a fiduciary relationship existed in this case. Defendants motion for summary judgment on Count III is therefore granted.

III. Conclusion

In sum, then, Defendants’ motion for summary judgment on Counts I, II and VI is denied. Defendants’ motion for summary judgment on Counts III and IV, however, is granted. Count V is dismissed for, a lack of pendent jurisdiction. Plaintiff’s motion for summary judgment is, in all respects, denied.

IT IS SO ORDERED.

      . In passing on Plaintiffs artwork claim, the McMahon court noted the potential for an infringement claim based solely on the organization of a "unique collection and arrangement” of photographs to which the Plaintiff does not have the copyright. McMahon, supra, at 1303. McMahon therefore suggests Ekern would arguably have an infringement claim even if she did not own the copyright in the “Slacks" illustrations.

      . E.g., Dx-2, 3 at 26, 47 (stomach); at 31, 54 (pin side seam); at 31, 54 (pin waist to waist); at 45, 59 (zipper); at 47, 59 (elastic band).