author: FILIPPINE, District Judge.

text:
    EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. STATE OF MISSOURI, DEPARTMENT OF SOCIAL SERVICES, DIVISION OF CORRECTIONS, Defendant. Lessye HAWKINS-SIMPSON, Plaintiff, v. STATE OF MISSOURI, DEPARTMENT OF SOCIAL SERVICES, DIVISION OF CORRECTIONS, Defendant.
    Nos. 83-1971 C (2), 84-1383 C (2).
    United States District Court, E.D. Missouri, E.D.
    July 12, 1985.

      C. Felix Miller, E.E.O.C. — St. Louis District Office, St. Louis, Mo., for plaintiff.
    Frank A. Anzalone, Clayton, Mo., for plaintiff-intervenor Lessye Hawkins-Simpson.
    James C. Martin, Chief Legal Counsel, Dept, of Corrections and Human Resources, Melinda Corbin, Mary Stewart Tansey, Asst. Attys. Gen., Jefferson City, Mo., for defendant.
   MEMORANDUM AND ORDER

FILIPPINE, District Judge.

This matter is before the Court for a decision on the merits following trial to the Court. After consideration of the pleadings, the testimony and exhibits introduced at trial, the parties’ briefs, and the applicable law, the Court enters the following memorandum which it adopts as its findings of fact and conclusions of law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

On August 12, 1983, the EEOC brought suit against defendant to enforce the Equal Pay Act, 29 U.S.C. § 206(d), in Cause Number 83-1971C(2). On June 13, 1984, Hawkins-Simpson brought suit against defendant in Cause Number 84-1383C(2), pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., for alleged discrimination based on race and/or sex. On June 26, 1984, the parties consented to consolidation of the cases and waived their right to a jury trial. A trial on the merits was held on November 19, 20 and 21, 1984.

The parties have entered into the following Joint Stipulation of Facts.

JOINT STIPULATION OF FACTS

1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1337, 1343 and 1345. This action is authorized and instituted pursuant to Sections 16(c) and 17 of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201, et seq. (hereinafter referred to as the “FLSA”), to enforce the Equal Pay Act requirements stated in Section 6(d) of the FLSA, 29 U.S.C. § 206(d).

2. Plaintiff Equal Employment Opportunity Commission (hereinafter the “Commission”) is an agency of the United States of America charged with the administration, interpretation and enforcement of the equal pay requirements of the FLSA and is expressly authorized to bring this action by Sections 16(c) and 17 of the FLSA, 29 U.S.C. §§ 216(c) and 217, as amended by Section 1 of Reorganization Plan No. 1 of 1978, 92 Stat. 3781, and by Public Law 98-532 (1984), 98 Stat. 2705.

3. Since May 1, 1974, defendant, State of Missouri, Department of Social Services, Division of Corrections (hereinafter referred to as “Division of Corrections”), has continuously been and is now a public agency within the meaning of Section 3(x) of the FLSA, 29 U.S.C. § 203(x), in that it is the government of the State of Missouri and is engaged in the operation of the Criminal Corrections Systems for the State of Missouri.

4. Since May 1, 1974, the Division of Corrections has at all times acted directly and indirectly in the interest of an employer in relation to its employees who performed and are performing work at the St. Mary’s Honor Center, and is and was thus an employer of employees within the meaning of Section 3(d) of the FLSA, 29 U.S.C. § 203(d).

5. The Division of Corrections operates the St. Mary’s Honor Center as a correctional facility in the City of St. Louis, Missouri.

6. Since May 1, 1974, the Division of Corrections has continuously employed and now employs employees in commerce or in the production of goods for commerce within the meaning of Section 3(b), (i) and (j) of the FLSA, 29 U.S.C. § 203(b), (i) and (j).

7. Since May 1, 1974, the Division of Corrections has continuously been and is now engaged in related activities performed through unified operation or common control for a common business purpose, and has continuously been and is now an enterprise within the meaning of Section 3(r)(3) of the FLSA, 29 U.S.C. § 203(r)(3).

8. Since May 1, 1974, the Division of Corrections has continuously been and is now an enterprise engaged in commerce or in the production of goods for commerce within the meaning of Section 3(s)(6) of the FLSA, 29 U.S.C. § 203(s)(6), in that said enterprise has continuously had and does now have employees engaged in commerce or in the production of goods for commerce, including employees handling or otherwise working on goods or materials that have been moved in or produced for commerce, and in that said enterprise is an activity of a public agency.

9. Mr. Mortimer J. Reilly is a male, who was employed in the position of Executive I at St. Mary’s Honor Center from March 12, 1980, to January 31, 1981.

10. Ms. Lessye Hawkins-Simpson is a female, who has been employed in the position of Executive I at St. Mary’s Honor Center from March 12,1981, to the present.

11. The duties performed by Mr. Reilly as Executive I consisted of managing the St. Mary’s Honor Center’s business office, which required the supervision of an account clerk, a clerk-typist, and the food service staff of three cooks. It also required the purchasing of supplies for the Center, which included: determining what purchases were needed, making those purchases by state contract procedures, ensuring that the state was properly billed and properly paid its bills, and working with vendors to assure that the state was provided the services and goods it contracted for. It also required keeping the books of the inmate accounts.

12. The duties of the Executive I when Ms. Hawkins-Simpson was promoted to the position were identical to those when Mr. Reilly held the position. They have remained unchanged since Ms. Hawkins-Simpson began as Executive I, with the exception of a gradual increase in the budget of St. Mary’s Honor Center, and an increase in the inmate population, which has required a greater volume of purchasing and more bookkeeping for the inmate accounts.

13. During their employment as Executive I at St. Mary’s Honor Center, both Mr. Reilly and Ms. Hawkins-Simpson worked at the same office at 1458 Papin Street, St. Louis, Missouri, and under the same working conditions.

14. Mr. Mortimer J. Reilly, while employed as an Executive I at St. Mary’s Honor Center was subject to Basic Compensation Plan “A” used by the Division of Corrections and was initially placed at range 15, step E of that plan upon his hire on March 12, 1980.

15. While compensated at the range 15, step E salary level, Mr. Reilly received $1,057.00 per month. On July 1, 1980, Mr. Reilly received a salary adjustment to $1,136.00 a month.

16. Pursuant to the Basic Compensation Plan A, Mr. Reilly received a one step increase to range 15,. step F, upon the completion of his probationary period on January 14, 1981.

17. While compensated at the range 15, step F salary level, Mr. Reilly received $1,186.00 per month, until he left the employ of the State of Missouri on January 31, 1981.

18. Ms. Lessye Hawkins-Simpson, while employed as an Executive I at St. Mary’s Honor Center, was subject to the Basic Compensation Plan “A” and was initially placed on March 12, 1981, at range 15, step C of that plan, thereby receiving a monthly salary of $1,043.00 until September 12, 1981. The monthly salary for the range 15, step E salary level was $1,136.00 per month for this time period.

19. Ms. Hawkins-Simpson, pursuant to the Basic Compensation Plan A, received a one step increase upon the completion of her probationary period on September 12, 1981, to the range 15, step D level and thereafter received a monthly salary of $1,088.00 until July 1, 1982. The monthly salary for the range 15, step F salary level was $1,186.00 per month for this period of time.

20. Had Ms. Hawkins-Simpson been originally placed at the range 15, step E salary level upon her promotion to Executive I, her step increase on September 12, 1981, would have placed her at the range 15, step F salary level.

21. On July 1, 1982, Ms. Hawkins-Simpson received a salary adjustment to $1,149 per month. She received that salary until August 1, 1982. Thereafter she received a one step increase in pay to range 15, step E for her satisfactory completion of one year of service at the range 15 pay level. Her new salary was $1,197.00 per month until July 1, 1983.

21a. On July 1, 1982, the Basic Compensation Plan A was replaced by the Revised Basic Compensation Plan, which increased salary steps by 1% plus $.50 per month costs of living adjustment.

22. Had Ms. Hawkins-Simpson been originally placed at the range 15, step E salary level upon her promotion to Executive I, her step increase on August 1, 1982, would have placed her at the range 15, step G level of the Revised Basic Compensation Plan.

23. The monthly salary for an employee at the range 15, step G level on the Revised Basic Compensation Plan salary scale as of July 1, 1982, was $1,300.00 and remained at that rate until at least July 1, 1983.

24. Ms. Hawkins-Simpson, pursuant to the repositioning of the Executive I classification within the Revised Basic Compensation Plan, was placed at the range 16, step E level on July 1, 1983. Her new monthly salary at this level was $1,268.00, which she received until July 1, 1984.

25. Had Ms. Hawkins-Simpson been originally placed at the range 15, step E salary level upon her promotion to Executive I, the repositioning of the Executive I classification would have placed her at the range 16, step G level on the Revised Basic Compensation Plan salary scale.

26. The monthly salary for an employee at the range 16, step G level on the Revised Basic Compensation Plan as of July 1, 1983, was $1,357.00 and remained at that rate until July 1, 1984.

27. Ms. Hawkins-Simpson, pursuant to a general cost of living salary increase, received a salary increase on July 1, 1984, to $1,357.00 per month which she has continuously received thereafter.

28. Had Ms. Hawkins-Simpson been originally placed at the range 15, step E salary level upon her promotion to Executive I, her salary level on July 1, 1984, would have been at the range 16 step G salary level of the Revised Basic Compensation Plan.

29. Since July 1, 1984, the monthly salary for an employee at the range 16, step G salary level has been and remains at $1,473.00.

30. Mr. Reilly had not been employed by the State of Missouri or the Division of Corrections prior to his hire as Executive I at St. Mary’s Honor Center and thus his placement at the range 15, step E salary level upon his hire was not based upon his prior job performance with the State of Missouri.

31. Ms. Hawkins-Simpson had not been employed as an Executive I by the Division of Corrections prior to her promotion to that position on March 12, 1981, and thus her initial placement at the range 15, step C salary level was not based upon her prior job performance in the Executive I position.

32. Plaintiff’s Exhibit 10 is the Certification List prepared for the vacancy of the Executive I position at St. Mary’s Honor Center, which was filled by Lessye Hawkins-Simpson.

33. Pamela S. Buchta (now Kelley) was one of the candidates appearing on Plaintiff’s Exhibit 10. She declined an interview for the position because she did not wish to move to St. Louis at that time and did not want to work at a correctional facility. Accordingly, she was not available to fill that vacancy.

34. Louise A. Swain was one of the candidates appearing on Plaintiff’s Exhibit 10. She declined an interview for the position because she did not want to move to St. Louis. Accordingly, she was not available to fill that vacancy.

35. The Division of Corrections must fill vacant positions from a Personnel Requisition and Certification for the position prepared by the. State of Missouri Personnel Division. To be eligible for hire for a vacant position, an applicant’s name must appear on the Certifications for the position. Applicants whose names appear on a Certification List for a position are qualified for that position.

36. From March 12, 1981, to September 12, 1981, the total salary that would have been paid to Lessye Hawkins-Simpson had she been at the range 15, step E rate, would have been $558.00 more than the salary actually paid to her over that period when she was paid at the range 15, step C rate.

37. From September 12, 1981, to July 1, 1982, the total salary that would have been paid to Lessye Hawkins-Simpson had she been at the range 15, step F rate, would have been $940.80 more than the salary actually paid to her over that period when she was paid at the range 15, step D rate.

38. From July 1, 1982, to July 1, 1983, the total salary that would have been paid to Lessye Hawkins-Simpson had she been at the range 15, step G rate would have been $1,236.00 more than the salary actually paid to her over that period, when she was paid at the range 15, step E rate.

39. From July 1, 1983, to July 1, 1984, the total salary that would have been paid to Lessye Hawkins-Simpson had she been at the range 16, step G rate, would have been $1,308.00 more than the salary actually paid to her over that period when she was paid at the range 16, step E rate.

40. From July 1, 1984, to November 19, 1984, the total salary that would have been paid to Lessye Hawkins-Simpson had she been at the range 16, step G rate, would have been $537.46 more than the salary actually paid to her over that period when she was paid at the range 16, step E rate.

41. The Division of Corrections officials, Arthur Schulte, Superintendent of St. Mary’s Honor Center, and Donald Gerling, Chief of Fiscal Management, and Dale Witte, Director of Division of Finance of the Department of Social Services, were aware of the Equal Pay Act, 29 U.S.C. § 206(d) and that it applied to the Division of Corrections.

42. Ms. Hawkins-Simpson’s first written complaint about her pay being lower than what Mr. Reilly’s had been was made to Arthur J. Schulte, Superintendent at St. Mary’s Honor Center, on May 28, 1981. In it Ms. Hawkins-Simpson specifically protested that she was not receiving equal pay for equal work.

43. Ms. Hawkins-Simpson filed an Equal Pay charge with the United States Equal Employment Opportunity Commission on February 8, 1982, and the Division of Corrections was notified of that charge by letter mailed on February 26, 1982.

44. The United States Equal Employment Opportunity Commission issued a Letter of Violation in regard to Ms. Hawkins-Simpson’s Equal Pay Act charge on December 10, 1982, which wás received by the Division of Corrections on December 14, 1982.

45. All exhibits are authentic.

Equal Pay Act

In order to make a prima facie case under the Equal Pay Act (EPA), 29 U.S.C. § 206(d)(1), plaintiffs have the burden of showing that “an employer pays different wages to employees of opposite sexes ‘for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.’ ” Corning Glass Works v. Brennan, Secretary of Labor, 417 U.S. 188, 195, 94 S.Ct. 2223, 2228, 41 L.Ed.2d 1 (1974). Horner v. Mary Institute, 613 F.2d 706, 713 (8th Cir. 1980). There are, however, four exceptions to compliance with the Act: where “payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures work by quantity or quality of production; or (iv) a differential based on any other factor than sex.” 29 U.S.C. § 206(d)(1). Once plaintiffs have carried their burden and made a prima facie case, the burden is then shifted to the defendant to show that one of the Act’s four exceptions apply. Corning Glass Works, supra, 417 U.S. at 196, 94 S.Ct. at 2229; Horner, supra, 613 F.2d at 713.

Defendant first argues, contrary to its earlier statements contained in its pre-trial material, that plaintiffs have failed to make a prima facie case. The basis of their argument is the testimony of Dale Witte, one-time director of the Division of Finance for the Department of Social Services of the State of Missouri. Witte testified that Reilly was never an employee of defendant, but was exclusively employed by the Division of Finance which paid his wages (Tr. 2-156). Hawkins-Simpson, he testified, was employed by the Division of Finance when promoted to the Executive I position (Tr. 2-160). Thereafter, as part of a reorganization plan, defendant Division of Corrections was made a separate Department of Corrections, Human Resources (Tr. 2-164) and Hawkins-Simpson’s job was transferred to the new Department of Corrections (Tr. 2-165-166). Thus defendant argues that plaintiffs have failed to demonstrate that Hawkins-Simpson and Reilly were both paid by defendant thereby having failed to make a prima facie case.

In the context of the EPA “ ‘Employer' includes any person acting directly or indirectly in the interest of an employer in relation to an employee... 29 U.S.C. § 203(d). The term employer has been interpreted broadly, Donovan v. Agnew, 712 F.2d 1509 (1st Cir.1983); Bonnette v. California Health and Welfare Agency, 704 F.2d 1465, 1469 (9th Cir.1983), and an employee may have more than one employer at a given time. Donovan, supra, 712 F.2d at 1509-10; Bonnette, supra, 704 F.2d at 1469. The evidence presented at trial establishes that both Reilly and Hawkins-Simpson before the departmental reorganization had as their employers both the Division of Finance and the Division of Corrections. Although the Division of Finance had ultimate authority over the Executive I position and was responsible for paying those who filled those positions, “ ‘a consideration of the total employment situation and the economic realities of the work relationship,’ ” Bonnette, supra, 704 F.2d at 1470, convince the Court that defendant also stood as an employer of both Reilly and Hawkins. Factors considered in reaching this conclusion include:

“whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.” In varying combinations, these factors have been considered by other courts for the same purpose. See, e.g., [Real v. Driscoll Strawberry Associates, Inc., 603 F.2d 748, 756 (9th Cir. 1979)]; Hodgson v. Griffin and Brand of McAllen, Inc., [471 F.2d 235, 237-38 (5th Cir.1973)].

Id.

The facility within the Division of Corrections at which the Executive I worked, in this case St. Mary’s Honor Center (SMHC), determined Reilly’s and Hawkins-Simpson’s job duties with Witte’s approval (Tr. 2-158). Evaluation of their performance was initially performed by the Superintendent of SMHC (Tr. 2-158), and then reviewed on occasion by Witte (Tr. 2-159). The Superintendent at SMHC made the decision to hire someone for the Executive I position (Witte depo. 25-26, 35), although ultimate approval of the appointment came from Witte, who did not undertake independent assessment of the applicant’s qualifications (Tr. 2-168). Thus, consideration of “the total employment situation,” Bonnette, supra, 704 F.2d at 1470, leads one to the conclusion that the Division of Corrections was the employer of both Reilly and Hawkins-Simpson.

Defendant, however, argues that even though the Division of Corrections was the employer of both, it did not pay both and thus cannot be responsible for their unequal pay. In essence, it appears that defendant argues that plaintiffs have sued the wrong party. However, the Department of Labor’s regulations in this regard state that

[i]f the facts establish that the employee is employed jointly by two or more employers, i.e., that employment by one employer is not completely disassociated from employment by the other employees), all of the employee's work for all of the joint employers during the workweek is considered as one employment for purposes of the act. In this event, all joint employers are responsible, both individually and jointly, for compliance with all of the applicable provisions of the act, including the overtime provisions, with respect to the entire employment for the particular workweek.

29 C.F.R. § 791.2(a) (footnote omitted) (emphasis added). Thus, the regulation makes clear that once it is determined that one is a joint employer of an employee the joint employer is responsible for compliance with the EPA. Accordingly, the Division of Corrections is properly a party to this lawsuit and plaintiffs have made a prima facie case as is evident from the stipulations which indicate that both Reilly and Hawkins performed the exact same job, but Reilly was paid more. See Corning Glass Works, supra, 417 U.S. at 195, 94 S.Ct. at 2228; Horner, supra, 613 F.2d at 713.

Nevertheless, defendant argues that it has not violated the EPA because the payment of higher wages to Reilly was determined in accordance with a merit system or was based on a factor other than sex, both of which are exceptions to the EPA, 29 U.S.C. § 206(d)(1)(h) and (iv). Plaintiffs first argue that the merit system defense is available only if the salaries of both Hawkins-Simpson and Reilly were based upon their job performance in the Executive I position. Plaintiffs cite as authority for this proposition both the legislative history of the EPA and a number of cases wherein the applicability of the merit system defense was based on the actual job performance. See Plaintiffs’ post-trial brief at 3-4. The Court has found no cases wherein the issue has been addressed and, in fact, found only one case in which the issue was recognized. However, in light of congressional intent that the exceptions to the Act be narrowly construed, EEOC v. Aetna Insur. Co., supra, 616 F.2d at 724; EEOC v. McCarthy, 578 F.Supp. 45, 47 (D.Mass.1983), the Court agrees with plaintiffs that the merit system defense is not applicable unless the merit system utilized is based on employee performance on the job. The legislative history supports this view. In the Senate Labor Committee’s Report on the EPA the committee stated with regard to the merit system defense:

Similarly, a merit system or piecework system which measures either the quantity or quality of production or performance can result in far greater gross earnings by one person compared to another, even though both are technically doing the same type of work. Obviously, such systems which measure quantity or quality of production or performance will be valid exceptions to the equal-pay requirements.

S.Rep. No. 176, 88th Cong. 1st Sess. (1963). Said comments indicate that a merit system is used to measure an employee’s quantity or quality of performance. Such a system necessarily requires that the employee has done work for the employer in a given position which can be assessed. Representative Green’s comments during congressional debate on the proposed Findley amendment to the Act, which would allow wage differentials for heads of families, reflect a similar belief: “This is based on merit, on work that is performed, rather than on other factors.” 88th Cong. 1st Sess., Cong.Rec. 8695 (House, May 23, 1963).

This construction of the statute in no way precludes an employer from paying one newly hired employee more than another newly hired employee where the one has qualifications which are clearly superior to those of the other. Such a wage differential is authorized under the factor other than sex exception to the EPA, 29 U.S.C. § 206(d)(l)(iv). See Horner v. Mary Institute, 613 F.2d 706, 714 (8th Cir.1980). See also, Kouba v. Allstate Insurance Company, 691 F.2d 873, 876 (9th Cir.1983); EEOC v. Aetna Insurance Company, supra, 616 F.2d at 725; Craft v. Metromedia, Inc., 572 F.Supp. 868, 879 (W.D.Mo.1983), aff'd in relevant part, rev’d in part, 766 F.2d 1205 (8th Cir.1985). This is precisely the argument made by defendant herein. Defendant argues that Reilly's qualifications for the Executive I position were such that, coupled with an alleged recruitment problem, his higher starting salary was justified. The Court, however, finds that defendant has failed to show that Reilly had such superior qualifications justifying the higher salary and that it did not show the existence of a recruitment problem.

With regard to Reilly’s qualifications as compared to those of Hawkins-Simpson they clearly could not be described as superior. Leigh Wayne, defendant’s human relations officer, testified that the qualifications of both were comparable (Tr. 1-150-151). Don Gerling, one of the hiring officials (Tr. 1-206), admitted that Hawkins-Simpson was at least as well qualified as Reilly (Tr. 2-211-212) and was superior to him with respect to bookkeeping and accounting skills (Tr. 1-220-221). He also indicated that Hawkins-Simpson was a person of greater ability and responsibility than Reilly in the handling of inmate accounts (Tr. 1-220). Gerling expressed concerns about Reilly’s qualifications for the Executive I position (Exh. 5, Tr. 1-195, 1-208). He expressed no such concerns about Hawkins-Simpson’s qualifications and thought she would do a satisfactory job (Exh. 9, Tr. 1-196, 2-209). Both Reilly and Hawkins-Simpson received the same merit test score (Exh. 3, Exh. 10). Reilly’s strengths were in meeting the public and in his knowledge of purchasing (Tr. 2-207-208). There is no evidence that Hawkins-Simpson was weak in these areas. The Court finds it difficult to believe that Reilly’s strength in these two areas justified the pay differential in the Executive I position which consisted primarily of purchasing, budgeting, supervision of employees and of the inmate banking system (Tr. 1-43). This is especially true in light of Hawkins-Simpson’s clearly superior training in accounting and her prior experience in supervising employees and dealing with people.

Similarly, a comparison of Reilly’s qualifications as set forth in his employment application to those of Hawkins-Simpson further demonstrate that his qualifications were not superior to Hawkins-Simpson’s qualifications. Reilly had never worked for the State of Missouri or at SMHC when hired (Joint Stip. 30) and thus was not as familiar with state procedures as was Hawkins-Simpson who had one year of experience at SMHC in the very position she would be expected to supervise (Tr. 1-32). Although Reilly’s application reflects some twenty years of experience in a supervisory capacity (Exh. 2), he had been unemployed for the four years prior to the time he was hired (Tr. 2-204). Hawkins-Simpson had over nine years of supervisory experience (Tr. 1-29-30) and had performed accounting work for over twelve years (Tr. 1-29-30). Reilly’s educational background was in speech (Exh. 2), while Hawkins-Simpson had taken college courses in financial and management accounting, algebra, psychology and sociology (Tr. 1-26), and had taken a ten week course on supervision provided by a previous employer (1-26-27). Again, these facts provide no basis for the conclusion that Reilly’s qualifications were superior to those of Hawkins-Simpson and the Court, therefore, concludes that Reilly’s qualifications were not superior to those of Hawkins-Simpson and thus do not constitute a defense to plaintiffs’ prima facie case.

The Court further notes that defendant’s assertions of a recruitment problem to justify the higher salary have no basis in fact. Defendant asserts that because Reilly was the only qualified person for the job and he demanded a higher salary, the higher salary is justified as being based on a factor other than sex under 29 U.S.C. § 206(d)(iv). The evidence presented, however, shows that at the time Reilly was hired there were other qualified candidates for the job. J.T. Vanhorn, Jr., testified that he had applied for the job, that he had been interviewed for it and that, had it been offered to him, he would have accepted the position at the entry salary (Tr. 2-2-6). At trial both selecting officials, Arthur Schulte and Donald Gerling, first could not recall why Vanhorn was not offered the position (Tr. 2-34, 2-35, 1-200, 1-201). Gerling, however, later testified, after seeing Vanhorn in court, that Vanhorn was not hired because he was of the opinion that Vanhorn was incapable of dealing with inmates (Tr. 2-182). This, of course, would be a legitimate reason not to consider someone qualified for a position at a correctional facility which position concerns the handling of inmate accounts. On this point, however, the Court questions Gerling’s credibility, finding it difficult to believe that after seeing Vanhorn, who Gerling only interviewed for five minutes to one hour, for the first time in four and one-half years his memory was so refreshed that he remembered the precise reason for not hiring him.

In addition to Vanhorn, one Jerry L. Smith was also available and willing to accept the Executive I position at the entry level salary (Tr. 2-10-11). Smith, however, was never offered the position (Tr. 2-50). The reason advanced by Schulte at trial was Smith’s poor performance as an Account Clerk II at SMHC (Tr. 2-50). Schulte’s explanation is not credible given Smith’s performance rating of “Outstanding” while an Account Clerk II at SMHC (Exh. 29, Exh. 30), especially when these evaluations were reviewed and approved by Schulte himself (Exh. 29, p. 2; Exh. 30, p. 2; Tr. 2-217, 2-219). Defendant has thus failed to show the existence of a recruitment problem for the Executive I position at SMHC.

In summary, after a careful review of the facts and the applicable law, the Court finds that plaintiffs herein have made a prima facie case that defendant has violated the Equal Pay Act and that defendant has failed to rebut that case.

Title VII

Plaintiff Hawkins-Simpson’s Title VII claim arises out of essentially the same facts as the EEOC’s Equal Pay Act claim. Hawkins-Simpson alleges that she was denied equal pay for performing the same job as Reilly on the basis of her race and/or her sex.

Title VII and the Equal Pay Act must be construed in harmony. DiSalvo v. Chamber of Commerce of Greater Kansas City, 568 F.2d 593, 596 (8th Cir.1978). Although plaintiff has brought suit under the Equal Pay Act as well as title VII, our basic analysis is essentially the same under either theory. To show a prima facie case, [plaintiff] must prove she performed substantially equal work as [Reilly] but was paid less for it.

Strecker v. Grand Forks County Social Service Board, 640 F.2d 96, 99-100 (8th Cir.1980) (footnote omitted). See also Odomes v. Nucare, Inc., 653 F.2d 246, 250 (6th Cir.1981); Heymann v. Tetra Plastics Corp., 640 F.2d 115, 120 (8th Cir.1981). As above discussed, plaintiffs have made a prima facie case by showing that Hawkins-Simpson performed the same job as Reilly but was paid less for it. Further, defendant has failed to articulate a legitimate non-discriminatory reason for the pay differential as is required in Title VII cases. See McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). As discussed above, defendant has not established any of the EPA defenses, which Title VII incorporates, Strecker, supra, 640 F.2d at 99-100, n. 1; nor has defendant advanced any additional nondiscriminatory reason for the unequal pay. Thus defendant’s actions also constitute a violation of Title VII.

Damages

Plaintiffs pray for the following: (1) an injunction enjoining defendant from further violation of the Equal Pay Act, (2) back wages to be paid to plaintiff Hawkins-Simpson and an equal amount as liquidated damages, (3) an order to provide Hawkins-Simpson a prospective wage increase in an amount sufficient to attain her rightful place on the appropriate pay scale; and (4) the costs of this action. Plaintiff Hawkins-Simpson further prays for reasonable at: torneys’ fees pursuant to 42 U.S.C. § 2000e-5(K).

29 U.S.C. § 216(b) requires an award of back pay for violations of the Equal Pay Act. The parties herein have stipulated that from March 12,1981, to September 12, 1981, the total salary that would have been paid to Lessye Hawkins-Simpson had she been at the range 15, step E rate, the level at which Reilly was placed when originally hired, would have been $558.00 more than the salary actually paid to her over that period when she was paid at the range 15, step C rate (Joint Stip. 36). From September 12, 1981, to July 1, 1982, the total salary that would have been paid to Lessye Hawkins-Simpson had she been at the range 15, step F rate, would have been $940.80 more than the salary actually paid to her over that period when she was paid at the range 15, step D rate (Joint Stip. 37). From July 1, 1982, to July 1, 1983, the total salary that would have been paid to Lessye Hawkins-Simpson had she been at the range 15, step G rate would have been $1,236.00 more than the salary actually paid to her over that period, when she was paid at the range 15, step E rate (Joint Stip. 38) . From July 1, 1983, to July 1, 1984, the total salary that would have been paid to Lessye Hawkins-Simpson had she been at the range 16, step G rate, would have been $1,308.00 more than the salary actually paid to her over that period when she was paid at the range 16, step E rate (Joint Stip. 39) . From July 1, 1984, to November 19, 1984, the total salary that would have been paid to Lessye Hawkins-Simpson had she been at the range 16, step G rate, would have been $357.46 more than the salary actually paid to her over that period when she was paid at the range 16, step E rate (Joint Stip. 40). Thus, the amount of back wages due until November 19, 1984, is $4,580.26. In addition, plaintiff is due in back wages an amount of $45.23 per day from November 19, 1984, to the date of entry of judgment.

Plaintiffs also request liquidated damages in the same amount. Liquidated damages, however, are not awarded as a matter of right even though 29 U.S.C. § 216(b) would seem to so indicate.

By its terms, 29 U.S.C. § 216(b) requires that liquidated damages be awarded as a matter of right for violations of the FLSA. However, in response to its dissatisfaction with that judicial interpretation of the provision, Congress enacted the Portal-to-Portal Pay Act of 1947, 61 Stat. 84, which, inter alia, grants courts authority to deny or limit liquidated damages where the “employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of” the FLSA, § 11, 29 U.S.C. § 260 (1970 ed., Supp. V).

Lorillard, A Division of Loew’s Theatres, Inc. v. Pons, 434 U.S. 575, 583-84 n. 11, 98 S.Ct. 866, 871-72 n. 11, 55 L.Ed.2d 40 (1978). The Court, however, is not satisfied that defendant herein acted in good faith in paying Hawkins-Simpson less than Reilly. Hawkins-Simpson several times attempted to resolve the matter through various channels within the department (Tr. 1-45-52). These attempts were made immediately upon receipt of her first paycheck (Tr. 1-46). She received little, if any, response by her superiors. Further, the Court does not find it credible that defendant in good faith believed it could justify Reilly’s higher salary on the basis of his qualifications and/or a recruitment problem. Accordingly, the Court will award liquidated damages in an amount equal to plaintiff’s back pay award. 29 U.S.C. § 216(b).

The only issue remaining before the Court is plaintiff Hawkins-Simpson’s claim for attorney’s fees which the parties agreed at trial to bifurcate. Judgment on the merits will not be entered, however, until the attorney’s fees claim has been determined, at which time a single final judgment determining all issues will be entered.

Accordingly,

IT IS HEREBY ORDERED that the plaintiff Hawkins-Simpson shall submit within ten days of the date of this order affidavits and other appropriate materials on the issue of her attorneys’ fees and defendant shall have ten days from the filing thereof to respond thereto.

      . In EEOC v. Aetna Insurance Co., 616 F.2d 719, 725-26 (4th Cir.1980), the Fourth Circuit stated in dicta as follows:
      Reading the legislative history provides some indications that references to “a merit system” contemplated an arrangement applicable only to existing employees. We are not certain that such was the intention, but it is not necessary to decide whether a compensation system for new employees falls within the statutory exception for a merit system. Even assuming that Aetna’s scheme for compensating Archer, as a new employee, was not a "merit system", we are nevertheless satisfied that the pay differential was not based on sex.

      . The Court’s finding, below, that Reilly did not possess superior qualifications justifying the higher salary would also eliminate any merit system defense of defendant were it available to it. Defendant argues that under the merit system it was authorized to pay Reilly more if he had superior qualifications. See defendant's post-trial brief at 12-13. Because defendant has not shown that Reilly had superior qualifications, even if the merit system defense were available to it, defendant has not established the affirmative defense.

      . In her complaint Hawkins-Simpson also alleges discrimination on the basis of race. No evidence has been presented which would lead the Court to conclude that the pay differential was the result of racial discrimination.


source: Caselaw Access Project

author: IRVING, District Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff, v. MEDINA-MEDINA, et al., Defendants. UNITED STATES of America, Plaintiff, v. Juvenal GOMEZ-BARAJAS, et al., Defendants. UNITED STATES of America, Plaintiff, v. Juvenal GOMEZ-BARAJAS, et al., Defendants.
    Nos. 85-0307-JLI-Crim. to 85-0309-JLI-Crim.
    United States District Court, S.D. California.
    July 23, 1985.

      Michael Lasater, Warren Reese and Stephen Nelson, San Diego, Cal., for U.S.
    Eugene Iredale, San Diego, Cal., for Juvenal Gomez-Barajas and Javier Bravo.
    Michael McCabe, San Diego, Cal, for Manuel Cretin-Sandoval.
    Ramon Castro, San Diego, Cal., for Adolfo Holguin.
    Richard de la Garza, Escondido, Cal., for Ester Holguin.
    Juanita Brooks, San Diego, Cal., for William Tolmasoff.
    Thomas Warwick, San Diego, Cal., appeared on behalf of John Hall.
    David Semco, San Diego, Cal., for Mark Wheat.
    George Boisseau, Chula Vista, Cal., for Angel Figueredo.
    James Gattey, San Diego, Cal., for Jon Cline.
   MEMORANDUM DECISION AND ORDER

IRVING, District Judge.

Numerous defense motions in cases 85-307-JLI, 85-308-JLI and 85-309-JLI, and related case 84-1099-JLI, came on for hearing June 5, 6 & 7 and July 1, 2, 3 & 10, 1985, before the Honorable J. Lawrence Irving.

Having considered the pleadings, the testimony presented and the oral argument of counsel, the court issues the following memorandum decision.

PROCEDURAL BACKGROUND

Following his arrest on June 27, 1984, Juvenal Gomez-Barajas was indicted, along with Ester and Adolfo Holguin, William Tolmasoff, Victor and Irina Vidal, Bridgett and Mark Witschger, Jose Manuel and Rosalia Antuna, and Manuel Lizarraga-Sanchez on July 6, 1984, in Case No. 84-646. All defendants were charged with conspiracy to possess marijuana in excess of 1,000 pounds with intent to distribute, as well as other narcotics and firearms violations.

On December 11, 1984, by way of secret indictment (unsealed December 13, 1984), Juvenal Gomez-Barajas, Victor and Irina Vidal, Adolfo and Ester Holguin, William Tolmasoff, Manuel Cretin-Sandoval, Mark Wheat, Sheryl Walsh, John Hall and fourteen others, were charged with conspiracy to possess marijuana in excess of 1,000 pounds with intent to distribute and many other narcotics, tax and firearms violations in Case No. 84-1099.

On April 10, 1985, Indictments 85-307, 85-308 and 85-309 were filed. Indictment 85-307 charges Mark Wheat, Manuel Cretin-Sandoval, Angel Figueredo, Javier Bravo, John Thompson and nine others with conspiracy to possess marijuana in excess of 1,000 pounds with intent to distribute and other narcotics violations. Indictment 85-308 charges Juvenal Gomez-Barajas, Manuel Cretin-Sandoval and six others with conspiracy to possess marijuana in excess of 1,000 pounds with intent to distribute and other narcotics violations involving both marijuana and cocaine. Indictment 85-309 charges Juvenal Gomez-Barajas, Adolfo and Ester Holguin, Michael and Sheryl Walsh, William Tolmasoff, John Hall and four others with conspiracy to possess marijuana in excess of 1,000 pounds with intent to distribute and other narcotics, racketeering and firearms violations. These three indictments were intended to supersede Indictments 84-646 and 84-1099 and to the extent they duplicated charges in the earlier indictments, the government moved to dismiss the earlier charges. That motion was granted on April 24, 1985.

On June 5,1985, superseding indictments were filed in case nos. 85-307 and 85-309. On July 10, 1985, a superseding indictment was filed in case no. 85-308. These supersedures made either minor or technical changes.

Defendants filed a multitude of motions in this case and the related cases. Most motions were disposed of by oral rulings at the time of the motions hearings. This memorandum decision will address defendants’ motions 1) to dismiss based on alleged Massiah violations; 2) to dismiss based on interference with the attorney-client relationship; 3) to dismiss for prosecutorial misconduct before the grand jury; and 4) for disclosure of grand jury transcripts.

FACTUAL BACKGROUND

Following his arrest in June, 1984, Victor Vidal was incarcerated at the Metropolitan Correctional Center (hereinafter “MCC”) pending trial on Indictment 84-646. Thereafter, he retained an attorney, Howard Frank, filed pretrial motions, and remained in contact with his co-defendants. Sometime in the beginning of November 1984, Vidal decided to become a government informant. He testified before the grand jury in late November, 1984. He was released from the MCC on December 6, 1984, after his bail was reduced. After assuming the role of informant, Vidal remained in contact with some of his co-defendants, and persons soon to be indicted in case 84-1099, and with an investigator hired to assist Juvenal Gomez-Barajas, Vidal and Manuel Cretin-Sandoval in the defense of their case.

These motions arise from the contact Vidal had with Juan Antonio Lopez, the investigator, and some of the defendants in the cases before the court. The contacts will be discussed as they pertain to each defendant, however, the court is mindful that the crux of the argument favoring the remedy of dismissal of the indictment rests on the cumulative cause and effect of these contacts.

A. Vidal’s Contacts with Juan Antonio Lopez

After his arrest, Gomez-Barajas hired Juan Antonio Lopez, a private investigator, to assist him in the defense of his case. An ambiguous agreement was struck between Gomez-Barajas and Vidal — and following his indictment in December, 1984, Cretin-Sandoval — or more appropriately, their attorneys, to share the fruits of the investigation. The extent of this cooperation was never clearly defined in Lopez’ or Vidal’s testimony. It is certain, however, that Vidal did not have the funds to pay for Lopez’ services.

Lopez met with Vidal seven or eight times from June through early November, 1984, while Vidal was at MCC and prior to his becoming an informant. Their discussions at these meetings focused primarily on Vidal’s obtaining release on bail. Vidal’s case was also discussed; Vidal and Lopez speculated about who possible informants might be. Alfred Gallegos’ status as an informant was discussed and Lopez related the results of a meeting he had with Gallegos. Lopez testified that he and Vidal discussed bail and Vidal’s thought’s of escape from MCC at their second to last meeting. At their last meeting in early November, Lopez told Vidal that he couldn’t help him anymore, and he terminated their arrangement.

Lopez testified that their relationship resumed after Vidal was released from MCC for a period of approximately two to three weeks, at which time Lopez considered himself retained by Vidal, Gomez-Barajas and Cretin-Sandoval. During this time, Lopez had four encounters with Vidal, at which time he shared information with Vidal “regarding the case.” Lopez stated that some of this information had been obtained from Cretin-Sandoval. However, the information that was shared was not specified, nor was it shared with Vidal’s attorney, Howard Frank.

B. Vidal’s Contacts with Gomez-Barajas

Vidal had no contact with Gomez-Barajas, who had been released on bail, while he was in jail. After Vidal’s release from MCC, Vidal spoke with Gomez-Barajas many times on the phone and met with him approximately ten times.

Gomez-Barajas initiated contact with Vidal after his release from MCC and arranged a meeting for December 7, 1984. At that meeting, Gomez-Barajas conveyed his apologies for not being able to contribute to a bond to secure Vidal’s release from jail. He also suggested that Vidal leave the jurisdiction and go to Mexico. Following the meeting, Vidal made notes of the conversation and gave them to Drug Enforcement Administration (hereinafter “DEA”) Agent Steven Dunn, Vidal’s contact at DEA.

In January, 1985, Vidal and Gomez-Barajas had another meeting. At that meeting Vidal attempted to induce Gomez-Barajas to view marijuana he was selling (which, in fact, belonged to DEA) at a warehouse somewhere in San Diego County. GomezBarajas showed an interest in purchasing the marijuana but refused to go to the warehouse; no deal was consummated.

On January 3, 1985, Gomez-Barajas and Vidal had another meeting at Love’s restaurant in Chula Vista, CA. Vidal wore a body recorder to the meeting, which was surveilled by Agent Dunn. Jacinto Silva-Leos also attended the meeting, which then relocated to his home. No testimony was elicited as to the content of those discussions.

Vidal also had between ten and twenty-five phone conversations with Gomez-Barajas. There is testimony, not ascribed to any date or meeting, that the identity of possible informants was discussed between Gomez-Barajas and Vidal, including the possible cooperation of Manuel Antuna, another co-defendant.

C. Vidal’s Contacts with Cretin-Sandoval

Vidal is Cretin-Sandoval’s brother-in-law. Prior to Cretin’s arrest on December 13, 1985, Vidal met with him and later assisted DEA agents in arresting him by disclosing Cretin-Sandoval’s location at the Early California Motel in Chula Vista, CA. Vidal and Cretin-Sandoval had no contact while Cretin-Sandoval was held in MCC, after his arrest.

One or two days after Cretin-Sandoval’s release from custody, Vidal and Cretin-Sandoval conversed, discussing “things he (Cretin-Sandoval) had done prior to his arrest” and “facts underlying the case.” Cretin-Sandoval and Vidal continued to talk on almost a daily basis. In their conversations, they discussed Cretin-Sandoval’s past involvement in the case, other facts involving the case and who might possibly be a government informant. During these conversations, Vidal denied being an informant and offered to intercede with Gomez-Barajas on Cretin-Sandoval’s behalf to obtain Gomez-Barajas’ financial assistance for attorney’s fees. Vidal testified that he passed all this information onto Agent Dunn.

During this time period, Vidal also borrowed a van from Cretin-Sandoval to transport marijuana in another investigation in which Vidal was participating.

Vidal testified he had one other encounter with Cretin-Sandoval at the Early California Motel. At that meeting Cretin-Sandoval reviewed a box of reports and documents provided to him by his attorney. Cretin-Sandoval told Vidal that he had paid his attorney to acquire those reports but that he did not mind the expense because “he wanted to find out about everything.” When Cretin-Sandoval reviewed those documents in Vidal’s presence, he did not, however, explain to Vidal how he was going to defend his case.

D. Vidal’s Contact with Tolmasoff and Adolfo Holguin

Tolmasoff was incarcerated on the same floor at MCC with Vidal for a five-day period after Vidal decided to become an informant. However, Vidal did not relate any conversations he had with Tolmasoff to government agents.

On December 19th or 20th, 1984, Adolfo Holguin phoned Vidal and told him that he was bringing Tolmasoff to visit him. Holguin complained to Vidal that Tolmasoff was pressuring him for money. When Tolmasoff and Holguin arrived at Vidal’s home, the three men conversed in the driveway. Tolmasoff repeated to Vidal that he wanted money. Vidal assured him that he would ask Gomez-Barajas for money, though his testimony reveals that he never did. This conversation was reported to Agent Dunn.

In the beginning of January, 1985, Tolmasoff and his brother visited Vidal at his residence. Tolmasoff was angry, and requested that Vidal speak to Gomez-Barajas because if he did not “make money soon,” he was going to start cooperating with the police. Vidal once again represented that he would speak to Gomez-Barajas. This conversation allegedly was also reported to Agent Dunn.

Approximately a week before Christmas, 1984, Tolmasoff and Holguin traveled to El Centro to meet with Vidal, who was there to meet with his family. They met at the Travelodge Motel where Vidal was staying. Upon meeting, Vidal gave Tolmasoff some money. They went to a restaurant, ate dinner and then had a few drinks at a bar. Vidal testified that they discussed the case and that they may have possibly discussed the fact that one of the receipts for guns recovered in a search of Tolmasoff’s residence was found in Vidal’s car when he was arrested and the possible defense that fact provided Tolmasoff. Vidal asserts that later that evening he made notes of their meeting and conversations, which he gave to Dunn. He did not indicate in his notes, or verbally inform Dunn, that he had given Tolmasoff money.

Vidal and Holguin conversed at least fifteen times by telephone. The government consensually recorded two or three of those conversations, though their content was not presented to the court.

Vidal had at least two more encounters with Holguin. Vidal called Holguin on one occasion asking for money. Holguin honored the request and in the end of December or first part of January gave Vidal $500.00. Vidal asserts that he reported this in one of the notes turned over to Agent Dunn.

Vidal had his last encounter with Holguin sometime in mid-March, 1985. Vidal asked Holguin if he wanted to deal with a drug trafficker, Simon Murrillo, that Vidal had contact with. Holguin refused the deal. The agents working with Vidal were made aware that this offer and rejection had occurred.

E. Vidal’s Contact with John Hall

After he became an informant, Vidal was in John Hall’s company on one occasion in January, 1985. Their meeting was surveilled by agents, and began at a 7-Eleven convenience store, north of Escondido, California. Vidal had traveled to this site with Cretin-Sandoval, who intended to meet Hall to discuss financial affairs relating to marijuana sales. Hall’s brother was also in attendance. The meeting was conducted in English and Vidal, who speaks Spanish, was not able to understand much of it. After the meeting Cretin-Sandoval recounted his discussions with Hall to Vidal. Cretin-Sandoval told Vidal that the government had seized from Hall machine guns and silencers that belonged to Cretin-Sandoval and Hall had agreed to claim that he was their owner. Vidal asserts that he passed this information to Agent Dunn by way of notes he made soon after his encounter with Cretin-Sandoval.

F. Vidal’s Contact with Ester Holguin

Vidal spoke with Ester Holguin three or four times by phone, after he became an informant. He states that his conversation with her was limited to inquiry about Adolfo Holguin’s whereabouts and that they did not discuss the case.

G. The Government’s Instructions to and Receipt of Information from Vidal

Maria Arroyo-Tabin was the prosecutor initially assigned to these cases, and the prosecutor on the case when Vidal decided to become an informant. She testified that she received no information about defense strategy at any time. Michael Lasater, the prosecutor presently assigned to the case, has also represented to the court that he has received no information about defense strategy.

Vidal’s relationship with the government has been almost exclusively maintained through his dealings with Agent Dunn. Both Vidal and Dunn testified to the understanding the two had reached regarding Vidal’s role as an informant.

Vidal’s agreement to cooperate with the government in November, 1984, resulted from negotiations between Maria ArroyoTabin, Agent Dunn, DEA Agent Tim Tierney, U.S. Customs Agent Steven Jeffrey, Howard Frank and Vidal. No promises were made regarding dismissal of charges or recommendations by the government at the time of Vidal’s sentencing. Vidal is not a permanent resident in the United States and the government promised that neither he nor his family would be deported to Mexico. The government also promised that once Vidal testified before the grand jury, which he did, that they would recommend that his bail be reduced, which they did. These concessions were made by the government in exchange for complete cooperation from Vidal, Vidal’s testimony against Gomez-Barajas, and Vidal’s promise to report to Dunn anything he heard out on the streets regarding persons targeted in certain ongoing investigations operated by Dunn. Dunn also requested Vidal to gather information about drug trafficking, including efforts by the defendants to traffic.

Vidal and Dunn conversed a day or two after Vidal was released on bail, and it was at that time that Dunn provided Vidal with instructions for his actions as an informant. Vidal was told to act in character, and to remain in contact with his co-defendants, for his own safety while on bail as well as to augment his effectiveness as an informant. Dunn also expressly informed Vidal that he did not want him to seek from defendants, or relate to him, any information regarding defense strategy in the pending case. (Dunn also told Ms. Arroyo of his plans to have Vidal contact defendants in the then-pending case.)

Vidal then described to Dunn his last contacts with Gomez-Barajas, Cretin-Sandoval and Tolmasoff and allegedly provided the notes he had made regarding those contacts to Dunn. Vidal informed Dunn that Gomez-Barajas had hired an investigator, Lopez, to do an investigation. Vidal also told Dunn that Lopez was investigating the identity of persons suspected to be informants in the case and their background.

Vidal and Dunn had almost daily contact. Dunn testified that Vidal did locate Cretin-Sandoval for the DEA (for his arrest). Dunn also stated that no defense strategy of Gomez-Barajas’ or Cretin-Sandoval’s was passed on to him, although Vidal did apprise Dunn of the fact that he thought Cretin-Sandoval might fugitate prior to trial in the pending case.

Vidal assisted the DEA in investigations not involving defendants in these cases, and as a result, other indictments were filed. Seizures of large quantities of marijuana were made as a result of his taped conversations with Adolfo Holguin; however, charges against Holguin arising from these seizures had not been brought at the time Dunn testified. No new charges were brought against other defendants in these cases as a result of Vidal’s contacts with them.

H. Defense Meeting at the Frank & Milchen Law Offices

On January 29, 1985, at 1:30 P.M., Joseph Milchen, attorney for Irina Cretin-Sandoval, called a defense strategy session for attorneys representing defendants in case 84-1099. Prior to the commencement of that meeting, it was specified by one or more of the attorneys present that the subject of conversation was protected by the attorney-client privilege. During the course of the meeting, an attempt to formulate an overall defense strategy was made. The meeting was presided over by Milchen, and Michael McCabe, Cretin-Sandoval’s attorney, was in attendance. The court does not have before it a clear record of the other lawyers in attendance at the meeting, however, it is undisputed that neither Howard Frank nor Victor Vidal were present. There is also nothing in the record that suggests that any information disclosed at this meeting was conveyed to Vidal, Dunn or the prosecutors.

I. The July, 1985, Seizure of Gomez-Ba-rajas’ Home

On July 1, 1985, counsel for Gomez-Barajas filed a motion to dismiss for repeated instances of government misconduct. This motion is based on the government’s alleged filing of needless charges against Gomez-Barajas and repeated interferences with Gomez-Barajas’ sixth amendment rights, as set forth in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). The court took additional evidence on the incidents that prompted the filing of this motion. Evidence pertaining to this motion will be considered along with those alleging sixth amendment violations already on file.

On the morning of June 24, 1985, DEA agents seized Gomez-Barajas’ home on Sunnyview Drive, Bonita, California, pursuant to 21 U.S.C. § 881(a)(6). When agents entered the home, Gomez-Barajas’ children and nephew were there, but Gomez-Barajas and his wife, Refugio, were not. Forty minutes after the agents entered the home, Gomez-Barajas and his wife arrived. They were searched and then sent to different rooms in the house. Gomez-Barajas was informed that his house was being seized and that agents were taking an inventory of items in the home. Gomez-Barajas was given a copy of the seizure warrant. One of the agents executing the seizure, Edmundo Apodaca, “invited” Gomez-Barajas into one of the bedrooms of the home and had a conversation with him. The five minute conversation was not witnessed by any other DEA agents or Gomez-Barajas’ family. Apodaca told Gomez-Barajas that he was interested in speaking with him about a person named “Acuna.” Apodaca also told him that he knew his case was pending and that he had no desire to talk with him about the case. Apodaca was aware that Gomez-Barajas was represented by counsel. Apodaca told Gomez-Barajas that if he were interested in cooperating he could “do something” in Gomez-Barajas’ behalf.

On June 28, 1985, Gomez-Barajas was arrested while picking up property that had been seized earlier that week at the DEA office in Chula Vista, California. GomezBarajas was transported from Chula Vista to downtown San Diego by Agent Dunn. During the brief ride, Dunn inquired whether Gomez-Barajas was ready to cooperate with authorities.

DISCUSSION

I. Motion to Dismiss for Violation of Massiah v. United States

The only issue presented for this court’s consideration is whether the behavior of the government and its informant, Vidal, alleged by defendants to violate sixth amendment rights expressly recognized in Massiah v. United States, supra, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, warrants the remedy of dismissal of the indictment. The government has stipulated that it will not offer as evidence in either its case-in-chief or rebuttal any of the defendants’ post-indictment statements to Vidal after he became an informant. The court accepts the stipulation and so orders.

A defendant’s sixth amendment right to counsel protects him from use against him at his trial evidence of his own incriminating words deliberately elicited from him by government agents, without counsel present, after he has been indicted. Massiah, supra, 377 U.S. at 206, 84 S.Ct. at 1203. The Sixth Amendment applies to both statements elicited by persons who have been identified to the defendant as government agents as well as statements elicited in surreptitious encounters with persons acting undercover. Id.; United States v. Henry, 447 U.S. 264, 273, 100 S.Ct. 2183, 2188, 65 L.Ed.2d 115 (1980).

There is no question in the case at hand that Vidal was acting as a confidential informant and maintained an “agency” relationship with the government. It is also clear that defendants’ sixth amendment rights, which triggered when they were indicted, were, in part, infringed.

However, not all Vidal’s contacts with defendants were in violation of their sixth amendment rights. Agent Dunn communicated to Vidal his suspicion that defendants would continue to traffic drugs after they were indicted. Some of Vidal’s contacts with defendants revealed evidence of post-indictment criminal acts. Gomez-Barajas’ suggestion that Vidal absent himself from the United States in violation of his bail bond and presumably in order to make himself unavailable to stand trial would be a separate criminal act, and one for which he is not on trial. Similarly, Vidal’s borrowing of Cretin-Sandoval’s van to transport marijuana in another investigation can also be classified as new, potentially criminal activity, if even that. Vidal’s mid-March, 1985 offer to Holguin to connect him with alleged drug traffiker Simon Murillo also concerns new, potentially criminal, activity.

It is entirely proper for the government to continue investigation of the suspected criminal activities of a defendant even though he has already been indicted: “Massiah offers no immunity from liability for uncounseled, post-indictment statements that involve(d) criminal acts or constituted criminal acts in them-selves.” United States v. Moschiano, 695 F.2d 236, 240 (7th Cir.1982) cert. denied, — U.S. -, 104 S.Ct. 110, 78 L.Ed.2d 111 (1983).

Other conversations between Vidal and the defendants were not incriminating, and in fact, were innocuous. For example, Gomez-Barajas’ statement of apology to Vidal, bemoaning his inability to assist Vidal in gathering bail money is not incriminating. Likewise, Cretin-Sandoval’s comments about the acquisition of the government reports, provided to his attorney in the discovery process, are innocuous. Tolmasoff s requests for monetary assistance from Vidal or Gomez-Barajas, as well as his suggestion that he might cooperate with the government, are also not incriminating.

Based on the record before the court, there can be no assumption the defendants’ sixth amendment rights were violated during the numerous phone conversations with Vidal, regardless of who initiated the calls. See United States v. Muzychka, 725 F.2d 1061 (3rd Cir.) cert. denied — U.S.-, 104 S.Ct. 2390, 81 L.Ed.2d 348 (1984) (it is irrelevant who initiates calls or conversation after sixth amendment right attaches and government agent had deliberately elicited information from defendant).

However, the court finds that incriminating statements were elicited which could be highly prejudicial to defendants if used at their trials. It is necessary to identify those statements, in order to evaluate whether they were elicited in violation of Massiah, and, if they were, if dismissal of the indictment is warranted. First, Vidal's discussions with Cretin-Sandoval about “the facts of the case” and Cretin-Sandoval’s past behaviour are incriminating, as are Cretin-Sandoval’s statements to Vidal after the meeting at the 7-Eleven regarding Hall’s agreement to claim ownership of his guns and silencers. Second, Tolmasoff’s statements to Vidal about his possession of the guns, for which Vidal had one of the receipts, is also incriminating.

One of the preliminary inquiries facing the court is whether these incriminating statements were deliberately elicited, as in Massiah, or whether the government created a situation likely to induce defendants to make incriminating statements without the assistance of counsel, as was present in Henry. See United States v. Harris, 738 F.2d 1068, 1071 (9th Cir.1984) (the determinative issue is not informant’s subjective intentions, but rather whether government officials created a situation which would likely cause defendant to make incriminating statements). In Massiah, a co-defendant invited Massiah to discuss the pending case with him in his car, which had a radio transmitter under the front seat. An agent equipped with a recording device was parked near the co-defendant’s car and overheard the transmitted, incriminating conversations. There is no indication in the record before the court that Vidal directly inquired about Cretin-Sandoval’s involvement in the case, Cretin-Sandoval’s agreement with Hall regarding ownership of the guns or silencers, or Tolmasoff’s intention to demonstrate at trial that guns found in his possession were Vidal’s. There is also no indication that the government instructed Vidal to make such inquiries.

While Vidal’s behavior can be distinguished from the deliberate information-seeking situation of Massiah, it is more closely akin to the situation presented in Henry. In Henry, defendant’s cellblock mate had been a confidential informant for the Federal Bureau of Investigation (hereinafter “FBI”). In a conversation with an FBI agent during his stay in custody, the informant told the agent that he was housed in the same cellblock as Henry and other federal prisoners. The agent told the informant to be alert for any statements made by the federal prisoners, but not to initiate any conversation with, or question, Henry about his pending bank robbery charges. The informant later reported to the agent what Henry told him about the robbery, and subsequently testified against Henry at trial. The Supreme Court found that the government had created a situation which would likely cause a defendant to proffer incriminating statements. Henry, supra, 447 U.S. at 274, 100 S.Ct. at 2188. See also Geittmann, supra, 733 F.2d 1419 (sixth amendment rights violated and new trial ordered where co-defendant, after agreeing to cooperate with government, taped incriminating telephone conversations with defendant, after defendant’s indictment, and inculpatory statements were presented at trial).

The situation created by the DEA in the case at hand is similar to that created in Henry. Though Vidal and his co-defendants were not trapped in a custodial environment, Vidal was intentionally injected back into a society where he was likely to have contact with the defendants, and was in fact, instructed to listen for and report back information about drug trafficking activities, including that of defendants. The court recognizes the fact that Vidal was not in a witness protection program at the time of his release from prison, and that if he were unable to relocate, his safety might necessitate “acting in character” and remaining in contact with defendants; however, the government was aware at the time of his release that a dual purpose would be served if he remained in contact with certain defendants.

Considering all the evidence presented, the court finds that the DEA created a situation that was likely to induce defendants to make incriminating statements without the assistance of counsel. Vidal’s mission to develop drug trafficking information, DEA’s awareness of his past friendship and involvement with certain defendants and Vidal’s reentry into his past society create such a situation. The issue now becomes whether the creation of a situation likely to evoke damaging statements, and which, in fact, did elicit a number of incriminating statements (though there is no indication that those statements are to be used at trial), warrants the imposition of the remedy of the dismissal of the indictment.

The court can find no case where violation of a defendant’s sixth amendment right to counsel in the aforementioned fashion warranted the remedy of dismissal of the indictment. Indeed, no court has expanded the issue beyond an inquiry whether statements violative of the Sixth Amendment may be used against the accused at trial. See e.g. Henry, supra, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115; Geittmann, supra, 733 F.2d at 1419; Harris, supra, 738 F.2d at 1068. A survey of the case law reveals that courts have never levied the harsh remedy of dismissal of the indictment for violation of the sixth amendment right to counsel in the absence of outrageous government misconduct. See United States v. Glover, 596 F.2d 857, 864 n. 12 (9th Cir.) cert. denied, 444 U.S. 857, 100 S.Ct. 117, 62 L.Ed.2d 76 (1979); see generally, United States v. Rogers, 751 F.2d 1074, 1076-80 (9th Cir.1985). The court feels that the sixth amendment violations that did occur were not so outrageous that dismissal of the indictment is warranted; prohibition of governmental use at trial of any of the statements in question will preserve defendants’ rights and sufficiently sanction the government.

II. Motion to Dismiss for Interference with the Attorney-Client Relationship

Defendants contend that the acquisition of defense strategy information by Vidal during his contact with them was an intentional interference with their attorney-client relationships. As such, they argue that the indictment should be dismissed because they are now prejudiced and will be unable to adequately defend their cases. They also argue that Vidal’s activities, including borrowing money from and giving money to defendants, discussion of the pending case with defendants and attempts to embroil defendants in new criminal activity warrant dismissal of the indictment.

The sixth amendment right to counsel has been construed as a right to effective assistance of counsel. See Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Note, The Sixth Amendment Implications of a Government Informer’s Presence at Defense Meetings, 93 U. Dayton L.Rev. 535, 536 (1984). Before the court can analyze whether defendants’ rights to effective assistance of counsel and to a fair trial have been infringed, it is necessary to sort through the record and determine what behaviour on the part of the government and its “agent,” Vidal, threatens these rights.

Motions initially filed by defendants suggested that information shared at the defense strategy meeting at the Frank & Milchen offices was conveyed to Vidal, and then possibly passed to the government. The facts do not support this allegation. Vidal did not attend that meeting, nor did his attorney Howard Frank. There is no evidence before the court that suggests that any defendant possessed knowledge of the discussions at this meeting and/or passed it on to Vidal.

Vidal’s contacts with Lopez, the investigator, also do not support the allegation that defense information had been siphoned through Vidal to the government. There was a general statement by Lopez that he shared with Vidal information regarding the case after Vidal’s release from MCC. However, Lopez did not specify what information was shared. In response to the court’s inquiry about a similar allegation made by Lopez about his discussions with Vidal preceding his release from MCC, the information “about the case” turned out to be speculation about who the informants in the case might be and information about one.suspected informant, Alfred Gallegos.

Speculation about the government’s reliance on information provided by informants was engaged in by both Gomez-Ba-rajas and Cretin-Sandoval in Vidal’s presence. The court does not think that such speculation is properly classified as defense strategy. Impeachment of any witness, most especially an informant, is usually anticipated by government counsel in every case. The identities of the informants testifying at trial has since been disclosed to defendants, and they have been provided an opportunity to question the informants, pursuant to an order of this court.

The information that defendants had retained an investigator, in and of itself, is also not defense strategy information. Even if it were, Vidal had acquired this knowledge prior to his decision to become an informant and there is no evidence before the court to suggest that he agreed to enter into the agreement to share Lopez’ services with Gomez-Barajas for any purpose other than defense of his case.

Vidal’s elicitation of two specific pieces of information from Cretin-Sandoval, as well as general information about the case, can be defined as acquisition of defense strategy and information, and requires more extensive analysis. Cretin-Sandoval’s plan to have Hall testify that he owned the guns and silencers is clearly a defense strategy and not a routine one, though it was not the product of government infiltration into confidential attorney-client communications. Similarly, Tolmasoff’s plan to emphasize the fact that a receipt for one of the guns found in a search of his home was recovered by police from Vidal, could be characterized as a defense strategy.

Vidal’s acquisition of this information cannot be evaluated in isolation from other relevant facts. Vidal was expressly instructed not to seek, or relate to Agent Dunn, any defense strategy information. The record hints that the disclosures by defendants Cretin-Sandoval and Tomalsoff were passed onto Dunn via one of Vidal’s notes, but the court has reviewed all notes turned over to Agent Dunn by Vidal in camera and finds that this information was not conveyed in any note turned over to Dunn.

“Government intrusion into the attorney-client relationship, although not condoned by the court, is not of itself violative of the Sixth Amendment right to counsel. Rather the right is only violated when the intrusion substantially prejudices the defendant. Prejudice can manifest itself in several ways. It results when evidence gained through the interference is used against the defendant at trial. It also can result from the prosecution’s use of confidential information pertaining to the defense plans and strategy, from government influence which destroys the defendant’s confidence in his attorney, and from other actions designed to give the prosecution an unfair advantage at trial.”

United States v. Irwin, 612 F.2d 1182, 1186-87 (9th Cir.1980). The court finds that there is no evidence to suggest that any defendant has been prejudiced by Vidal’s acquisition of information; there is no evidence that this information was passed along to Dunn or to the prosecutors. Whether the informant had conveyed the information he acquired to prosecutors or agents was a dispositive factor considered by the Supreme Court in its determination of whether sixth amendment rights were violated in Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977). In Weatherford, an informant attended a meeting between the defendant and his counsel, at their request, for the purpose of securing information or suggestions regarding the defendant’s defense. The court reversed the civil judgment in the 42 U.S.C. § 1983 action for Bursey because it found that there was no use of tainted evidence in the case, no communication of defense strategy to the prosecution, and no purposeful intrusion by Weatherford. Thus, it concluded that there was no violation of the Sixth Amendment, as it applied to the States by virtue of the Fourteenth Amendment. Id. at 558, 97 S.Ct. at 845.

In the instant case, there is no suggestion that Dunn purposefully urged Vidal to acquire defense strategy information, nor is there conclusive evidence that such information was conveyed to him or to any other government official. Of course, the court cannot know at this time whether “tainted” evidence might be used at trial, but the government is prevented from using the statements themselves and defendants may renew their motion to dismiss at trial, if necessary.

Defendants urge the court to follow the Third Circuit’s use of the sanction of dismissal in United States v. Levy, 577 F.2d 200 (3d Cir.1978). However, the facts in Levy are distinguishable from those presented in the instant case. In Levy, DEA agents sought and received information from a confidential informant who they knew to be represented by the same attorney that represented the defendant in the case. While dismissal was the only appropriate remedy in that situation, it is not called for in the instant case.

The method of analysis employed thus far has sought to isolate and categorize Vidal’s contacts with defendants, rather than accumulate them. Defendants’ urge that when Vidal's behaviour, and the behaviour of government agents in this case is considered in toto, it warrants dismissal of the indictment. The court disagrees. In sum, there were a few instances where statements were elicited in violation of the Sixth Amendment, however, there was no interference with defendants’ attorney-client relationship. Vidal’s taking and lending of money is not to be encouraged, but the court is certain that defense counsel will use evidence of this financial interaction to its advantage at trial. As discussed previously, the government may continue to investigate ongoing and new criminal activity. To the extent that defendants are later charged with crimes as a result of their involvement with Vidal, defendants may present a defense of entrapment or overreaching governmental misconduct. Finally, the court feels that Agent Apodaca’s téte-á-téte with Gomez-Barajas during the seizure of his house was infelicitous and unwise. However, that behaviour alone, or when considered in light of all other factors of this case, does not warrant dismissal of the indictment.

III. Motion to Dismiss for Prosecutorial Misconduct Before the Grand Jury

Defendants speculate that there must have been prosecutorial misconduct before the grand jury, because the facts as they interpret them do not support the charges in the indictment. They also allege that a grand jury witness, Guillermo Mesa, Gomez-Barajas’ accountant, was harassed and placed in the uncomfortable position of having to invoke the Fifth Amendment numerous times even though the government was well aware that he intended to invoke the Fifth Amendment. The declaration of Warren Reese, filed March 29, 1985, refutes this characterization of Mesa’s presentation to the grand jury. The facts do not suggest misconduct.

The motion as a whole is unmeritorious at this time. An indictment returned by a legally constituted and unbiased grand jury, valid on its face, is sufficient to call for trial of the charge on the merits. Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956). There is not a scintilla of evidence before the court at this time to suggest that the prosecutors misconducted themselves before the grand jury. Applying the Costello rule to the facts before the court in this case, defendants’ challenge to the indictment on the ground that it is not supported by adequate or competent evidence is rejected. See United States v. Addington, 471 F.2d 560, 568 (10th Cir.1973). If it is later discovered that defendants’ allegations regarding the discrepancy between the offenses charged and the evidence presented are true, they will prevail at trial with an acquittal or by motion to dismiss for prejudicial variance.

IV. Motion to Disclose Grand Jury Transcripts

This motion requests the court to order the disclosure of grand jury transcripts containing information that would support defendants’ motion to dismiss for prosecutorial misconduct before the grand jury. Defendants argue that they need grand jury transcripts of witness testimony and prosecutors’ legal instruction to the grand jury in order to prove that misconduct occurred.

Defendants’ motion to dismiss is based on much speculation, and unfounded mischaracterization of government decisions to dismiss charges. Accordingly, the court finds no persuasive reason for ordering disclosure of grand jury testimony or instruction that the defendants are not otherwise entitled to under the Jencks Act, 18 U.S.C. § 3500.

ORDER

Defendants’ motions to dismiss for violation of Massiah, interference with the attorney-client privilege and government misconduct before the grand jury are DENIED. The motion to disclose grand jury transcripts is also DENIED.

IT IS SO ORDERED.

      . Indictment 84-1099 was intended to supersede indictment 84-646, but could not be assigned the same number due to the order in which defendants were listed in the caption.

      . After Vidal became an informant, Dunn and Vidal established a routine where Vidal created notes and then turned them over to Dunn, within a day or two of their execution. These notes contained contemporaneous records of encounters with defendants in this case and targets in other investigations, and Vidal’s recollections of past events. To the Court’s knowledge, this procedure was followed through May, 1985.

      . Vidal’s testimony is inconsistent as to the sum rendered. At one point Vidal testified that he gave Tolmasoff $300.00, at another time he testified that he gave Tolmasoff only $150.00.

      . Gomez-Barajas was arrested because the collateral for his bail bond — his home in Bonita, California, — had been forfeited earlier in the week and the magistrate issuing the arrest warrant felt there was not sufficient collateral left in the bond to insure his appearance at court proceedings.

      . Most of the defendants in the three cases joined in this motion, initially filed by GomezBarajas and supplementally briefed by Tolmasoff. The court finds that only defendants who made post-indictment statements to Vidal have standing to join in the motion. They are Gomez-Barajas, Cretin-Sandoval, Tolmasoff and Adolfo Holguin.
      There is no evidence before the court that Vidal elicited any statements from John Hall; the evidence before the court shows only that Vidal observed the meeting at 7-Eleven. The later description provided by Cretin-Sandoval of the meeting was not deliberately elicited from Hall.

      Ester Holguin does not have standing to join the motion. To the extent that her brief conversation with Vidal was a "statement," it was innocuous and not incriminating.

      . See Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972) (sixth amendment right to counsel attaches at indictment); United States v. Geittmann, 733 F.2d 1419, 1425 (10th Cir.1984) (Sixth Amendment right to counsel at post-indictment police interrogations).

      . The record is not clear as to whether Cretin-Sandoval’s loan of the van was unwitting or whether he was informed that it would be used in narcotics-related activity.