author: NEAHER, District Judge.

text:
    Gloria VERDELL, Gladstone S. Lawrence, Bettye Casselberry Vance and Fred Fayerweather, Plaintiffs, v. Rear Admiral Donald E. WILSON, as Commanding Officer, Navy Resale System and Supply Office, and John Leyman, as Secretary of the Navy, Defendants.
    76 CV 908 (ERN).
    United States District Court, E.D. New York.
    March 1, 1985.

      Karpatkin, Pollet Perlmutter & Beil, New York City by Marshall Beil, and Jack Greenberg, Judith Reed, New York City, for plaintiffs.
    Raymond J. Dearie, U.S. Atty., E.D.N.Y., Brooklyn, N.Y. by Beryl R. Jones, Charles Kleinberg, Asst. U.S. Attys., for defendants.
   MEMORANDUM OF DECISION AND ORDER

NEAHER, District Judge.

This is a consolidated action under Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. §§ 2000e, et seq., brought by four black employees of a federal government agency to redress claimed discrimination in employment based upon race. The Court has jurisdiction over the claims in issue and plaintiffs have exhausted their administrative remedies pursuant to 42 U.S.C. § 2000e-16(c). A trial de novo of plaintiffs’ respective claims has been conducted and the following findings of fact and conclusions of law constitute the decision of the Court. Rule 52(a), Fed.R.Civ.P.

FINDINGS OF FACT

Plaintiffs Gloria Verdell, Gladstone S. Lawrence, Bettye Casselberry Vance and Fred Fayerweather are black citizens who were at all relevant times employed by the Navy Resale System and Supply Office (hereinafter “NAVRESSO”), a federal agency within the Department of the Navy. The individual defendants are, respectively, Rear Admiral Donald E. Wilson, the commanding officer of NAVRESSO, and John Lehman, Secretary of the Department of the Navy. Since each plaintiff was employed in a separate activity of NAVRESSO, their respective claims will be considered seriatim.

NAVRESSO, now located at Fort Wads-worth on Staten Island, New York, provides overall supervision of the world-wide operations of the Navy’s commissary stores, exchanges, and ships stores, and of the Military Sealift Command exchanges. NAVRESSO’s primary functions included providing supervision, technical guidance and administrative assistance to these operations. In fiscal year 1980 it employed more than 80,000 persons worldwide and had sales in excess of $2 billion. The “head office” at Fort Wadsworth is staffed by approximately 800 employees, most of whom, including plaintiffs, are civilians.

Verdell’s Claim

Plaintiff Gloria Verdell began her employment in the Retail Merchandising Division (RMD) of NAVRESSO in August 1974 as a buyer of women’s clothing. She came to that position with 10 years of experience in the retailing field following a year of study at the University of Michigan and two years at the Chamberlain School of Retailing. Among her previous positions, she was a market representative later promoted to assistant buyer at Frederick Atkins (1964-70), a maternity buyer at Alexander’s (1970-72), and a market representative (buyer) at May’s Merchandising Corporation (1972-74).

Verdell was employed initially at Management Grade 10 under the then applicable NAVRESSO grading system. After a system-wide salary conversion in 1974 to the “Universal Annual” (UA) schedule (conforming to the “GS” schedule used elsewhere in the government), she became a Grade UA-11, where she remained until her resignation on August 6, 1982. Her claim of racial discrimination arises out of the following circumstances.

In May 1975, a vacancy was posted for the position of senior buyer of children’s wear in RMD because of the lateral transfer of the incumbent. The position was graded at UA-12 and represented a promotion in salary and managerial responsibility. The only listed qualification for the position was “8-10 years of diversified experience in retailing.” Verdell was the only person to submit an application. She was later interviewed by Henry Liebowitz, the branch manager responsible for the children’s wear section of RMD, who told her there were additional qualifications, namely, that the person to be selected for her position would be someone with prior children’s wear buying experience and “a thorough knowledge of the [NAVRESSO] system.” Liebowitz also interviewed three white Grade 11 buyers for the position: Inez Grikitis, Claire Messing and James LoNano, none of whom had submitted applications. Grikitis, who had been a children’s wear buyer for some 15 years and a NAVRESSO employee for 10 years, and had worked under the supervision of Liebowitz, was eventually selected for the senior buyer position. In addition to Liebowitz’s personal interview with each of the buyers named, he had access to their Industrial Relations Department (IRD) employee review profiles. These reflected that only Grikitis was considered “promotable”, in contrast to the “not promotable” ratings given Verdell, Messing and LoNano by the senior buyers who were their respective supervisors.

Verdell essentially contends that the selection process for the job for which she alone had applied was a sham designed to ensure that the vacancy would be filled by Liebowitz’s preordained candidate Grikitis, a white woman, regardless of qualifications. Although racial discrimination may assume many disguises, the preponderance of the credible evidence in this case does not support a finding that Verdell was denied the sought-after promotion solely because of her race.

Preliminarily it should be noted that the posting of notices of job vacancies by the IRD did not require interested employees to make a formal application in order to be considered, as Verdell had mistakenly thought. Obviously, those already employed as buyers in the children’s wear unit where the vacancy occurred were fully aware of the job opportunity and were likely candidates for consideration, as Liebowitz testified. Thus, the Court finds no support for the contention that the interviewing procedure which eventually resulted in the selection of Grikitis was a pretext to disguise race discrimination and eliminate Verdell, an equally qualified black candidate.

The evidence at trial clearly demonstrated that Grikitis possessed far superior qualifications compared to Verdell. As of the time of her promotion to senior buyer Grikitis had been a children’s wear buyer at NAVRESSO for over nine years. Prior to that she had twelve years of experience in the retailing of children’s wear, during which she had been a buyer of children’s wear for some six years. Previously she had been a department manager and assistant buyer at such well-known stores as Bloomingdale’s, Lane’s, and Kirby and Block. In contrast to Grikitis’ 15 years overall experience as a full-fledged buyer of children’s wear, Verdell had no experience in that specialty, her total buying experience of some four years having been limited to the maternity and budget dress areas.

In the important areas of NAVRESSO procedures and operations, Verdell’s experience extended over a brief ten months in contrast to Grikitis’ nine years. Verdell’s single work performance review in 1975, as summarized in Leibowitz’s testimony, indicated:

“On Mrs. Verdell’s work performance review, it said ‘Mrs. Verdell must still further her knowledge of procedures in the areas of procurement’, which is buying, ‘official correspondence’, which is our only way of communicating with exchanges and vendors, ‘listings’, which is the basis of our entire operation, ‘reports’, which is required to keep current, and it has ‘etcetera’.”

Grikitis, on the other hand, as of June 1974 — prior to Verdell’s employment — had already attained a “very good” rating, the highest a buyer could receive for overall performance. At that time also, she was listed as being “promotable” to the position of senior buyer. In February 1975, she continued her “very good” rating and her record noted that she was promotable to the position of merchandise manager within 18 months, a position even higher than that of senior buyer.

Finally, there is no merit in Verdell’s contention that the only requirement for the senior buyer job was “8-10 years experience in retailing.” The job description for senior buyer of children’s wear included the following: “Procure buy) and is responsible for departmental procurement”; “organize and control departmental buying and merchandise plans [for the children’s wear department]”; “responsible for management review of the retail operations of Navy Exchanges pertaining to categories [within the children’s wear department]”; “prepare reports on current operations, market trends, pricing”; and “review monthly operations of department.” Obviously, these responsibilities which pertained to the special needs of Navy Exchanges scattered all over the globe could best be discharged by a person having the special knowledge and experience which Grikitis had gained over a nine-year period working for NAVRESSO.

In a case such as this, “[t]he plaintiff retains the burden of persuasion ... to demonstrate that the proffered reason was not the true reason for the employment decision” not to promote her. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981). Verdell has failed to satisfy that burden since the preponderance of the credible evidence demonstrates that the determining factor was not Verdell’s race but the superior qualifications of a competing candidate.

Accordingly, defendants are entitled to judgment dismissing Verdell’s claim.

Lawrence’s Claim

Lawrence, age 59 and a naturalized citizen, has been employed by NAVRESSO since 1956 when he came to New York from his native Panama, and continues in its employ. His claim in this action is that the higher grade and salary he should have received when he was promoted to Branch Manager in 1974 was denied him because he was black, and that his loss of that title in 1976 was also the result of racial discrimination.

Possessing skills in art and graphics, Lawrence in 1968 became the Supervisor of Graphic Arts, a subdivision of NAVRESSO’s Management Operations Section (MO), which embraced a number of support units. In 1974 MO was reorganized, resulting in the formation of a Graphic Arts Branch within the Administrative Services Division of MO. Lawrence was then promoted to the position of Branch Manager. In 1976, however, a further reorganization of NAVRESSO occurred which resulted in new management groupings and changes in supervisory titles. The subdivisions of the former MO were no longer “branches” but “sections”, resulting in Lawrence’s title being changed from Branch Manager to Supervisor of three artists then comprising his unit.

Since the completion of trial the issues involved in Lawrence’s discrimination claim have been narrowed by virtue of a settlement agreement between the parties. Pursuant to that agreement, dated 9 December 1983, Lawrence’s pay scale was retroactively increased as of December 1, 1976 to UA Grade 11 (Step 10) and he received back pay accordingly. That action by NAVRESSO was prompted by a decision of the Equal Employment Opportunity Commission (EEOC) in a separate proceeding brought in 1982 by three female artists who were supervised by Lawrence. The EEOC agreed with their contention that under the Equal Pay Act they had been paid at a lower scale than their male coworker who had been graded UA-9. NAVRESSO accordingly upgraded the female workers to UA-9 retroactively to September 1, 1976, which in turn required the UA-11 grade increase granted Lawrence pursuant to Civil Service Commission salary classification principles.

The next question is whether the following clause in the December 1983 agreement puts an end to all of Lawrence’s discrimination claims in this action:

“This agreement constitutes the full agreement in settlement of the attached EEO complaint of Gladstone S. Lawrence. There are no other agreements between the parties, either expressed or implied, oral or written. Gladstone S. Lawrence agrees to accept the action by NAVRESSO set forth above as full satisfaction settlement of any and all claims allegedly arising from the allegations of discrimination contained in the attached EEO complaint against the United States, the Department of the Navy, NAVRESSO, its employees, its representatives, and Arthur A. La Valle and James W. Simmons. The fact that this settlement agreement has been entered into by NAVRESSO does not constitute an admission by NAVRESSO of the truth of any matter set forth in the attached EEO complaint of Gladstone S. Lawrence, nor does it constitute any admission of liability, fault or error on the part of the United States, the Department of the Navy, NAVRESSO, its employees, its representatives, Arthur A. La Valle, and James W. Simmons. This settlement agreement is the joint product of Gladstone S. Lawrence and NAVRESSO, and it shall not be construed against any party on the ground of sole authorship.” (Court Exh. A.)

In a post-trial letter to the Court (Court Exh. B), Lawrence’s counsel contends NAVRESSO insisted Lawrence decide immediately whether he would accept the settlement offer without being able to show it to counsel. Although the agreement is dated “9 December 1983”, there is no indication as to when Lawrence signed it. However, it was not until December 20, 1983, that he sent a memorandum to Admiral Wilson requesting that his September 1983 EEO appeal regarding “position classification” be cancelled. Court Exh. C. Aside from its declaration that the “settlement agreement is the joint product of” Lawrence and NAVRESSO, the lapse of eleven days before Lawrence withdrew his EEO appeal militates against any inference that his acceptance of its terms was not both informed and voluntary.

Still to be resolved, however, is whether the agreement disposed of all Lawrence’s claims in this action. NAVRESSO’s counsel in a post-trial letter (Court Exh. D) contends that it did, relying on the provision quoted above. Lawrence’s counsel disputes that construction (Court Exh. E), contending that the agreement deals only with so much of his retaliation claim as related to NAVRESSO’s failure to classify him upon the retroactive reclassification of his subordinates.

I conclude that the Settlement Agreement (Court Exh. A) must be construed in light of Lawrence’s attached EEO complaint referred to in the agreement and his previous memoranda to Admiral Wilson requesting cancellation of his belated EEO appeal. Court Exh. C. The latter documents clearly support the conclusion that Lawrence’s salary grade grievances dating back to 1976 were to be finally resolved by the retroactive award of the UA-11 (Step 10) grade to December 1976. The nature of this agreed disposition of a salary claim in controversy does not leave it open to the Court to award Lawrence additional back salary to September 1976 (as ordered by the EEOC in the female artists’ separate proceeding) or direct NAVRESSO to advance him to UA grade 12, as counsel suggests. As the agreement makes clear, if Lawrence still believes he is not properly graded, he must first pursue available administrative remedies, as he finally did in 1983. See 42 U.S.C. § 2000e-16.

There remains for consideration Lawrence’s claim of racial discrimination, which is not embraced within the settlement agreement. That claim is based upon his loss of title as “Branch Manager”, which resulted from NAVRESSO’s internal reorganization in 1976. Although this was understandably a blow to his sense of self-worth, the preponderant evidence bars a finding of racial motivation.

During the 1974-76 period when Lawrence gained and lost his branch manager title, NAVRESSO was engaged in an effort to conform its grades and salaries to Civil Service classification standards as required by law. The completion of that project necessarily resulted in a re-evaluation of both black and white employees having managerial titles who were not in fact performing executive responsibilities. A number of such employees having branch manager titles were accordingly re-classified as supervisors because they were not involved in overall planning and development functions and could not be considered key decision makers. Thus Lawrence, as previously noted, was downgraded in title because he was essentially a supervisory artist who performed graphic arts work himself and also directed the work of three assistant artists who comprised his Graphic Arts section, which was but one of several within the newly reorganized Administrative Services Branch. In no sense did Lawrence perform executive responsibilities. He simply carried out graphic arts work required by other departments of NAVRESSO. That he contributed useful ideas in the execution of such work by the artists he supervised did not qualify him as an executive.

As previously noted, Lawrence has compromised his salary claims. His claim of discrimination based on the NAVRESSO reorganization effort in 1974-1976 period cannot succeed on the evidence adduced. I find that the effort on NAVRESSO’s part to properly conform its salary grades and positions according to Civil Service classification requirements was a bona fide effort to comply with the law and not designed to discriminate against Lawrence or other black employees.

There remains for consideration Lawrence’s further claim of retaliation against him because he joined as a plaintiff in this lawsuit. He bases that claim on (1) his “demotion” from branch manager to supervisor in the 1976 reorganization of NAVRESSO; (2) his “harassment” in 1981 in the form of a two-week suspension without pay; and (3) NAVRESSO’s failure to reclassify and upgrade him during trial after the Equal Employment Opportunity Commission (EEOC) had directed the retroactive upgrading of the two white employees Lawrence supervised. This last contention is no longer in issue in light of the later salary settlement agreement between Lawrence and NAVRESSO previously referred to. The first contention is no longer viable in light of the Court’s findings regarding the bona fides of NAVRESSO’s internal reorganization in the 1974-1976 period. Only the second contention requires discussion in view of the undeniable punishment imposed upon Lawrence during the course of this lawsuit.

This action was commenced in early 1976. The events which ultimately led to Lawrence’s suspension for two weeks without pay did not surface until April 1980, some four years later. The instigators of the events were not persons in authority at NAVRESSO but two of the artists supervised by Lawrence. Briefly, these employees — who were white — compiled a log of Lawrence’s daily activities with exhibits extracted from his waste basket to support their complaint that he was spending substantial workday time on personal arts and travel business and using government supplies and equipment for such purposes. While attending an annual standards of conduct training program, the complaining employees brought this to the attention of naval intelligence investigator, James Whitener, who had urged attendees to call him if they had information about employee misconduct. Whitener advised NAVRESSO management, conducted an investigation and prepared reports. His findings were brought to the attention of Richard Passera, the director of MASD, who discussed the situation with Lawrence’s immediate supervisor, Ray Perlmutter, and with other NAVRESSO personnel. Thereafter, Passera suspended Lawrence without pay for 14 days, taking into account the seriousness of the charges, the substantiality of the evidence and Lawrence’s 25 years of service without prior offense.

Lawrence’s appeal was later denied by Captain Verplaetse, the Director of the System Support Group, who affirmed his suspension after reviewing Whitener’s reports, the substantial evidence which the complaining employees had documented, and Lawrence’s failure, though requested, to disclose what evidence he would produce to rebut the charges.

There is no evidence supporting Lawrence’s present contention that his discipline was prompted by racial animus. Captain Verplaetse testified that under NAVRESSO regulations a hearing was not required for the short suspension imposed and that he had handled five appeals during his tenure as Director of SSG in which hearings were not held, two of the appeals involving black employees and the others were three white employees.

Significant also is the fact that the naval intelligence investigation did not start for more than four years after Lawrence instituted his Title VII claim, and then only after his fellow employees came forward with the documented evidence they had amassed. In light of that evidence Lawrence’s supervisors could not ignore his improper behavior, and thus his further claim that his immediate supervisor harassed him by increasing his supervision of Lawrence cannot be considered discriminatory in the circumstances.

Accordingly, Lawrence’s claims of retaliation have no merit and are dismissed.

Vance

Plaintiff Vance at the time of trial was employed at NAVRESSO’s Oakland, California, field office as a personnel management specialist, grade UA-11, in the Industrial Relations Division (“IRD”). She has worked for the United States Government intermittently since 1959, gaining experience in personnel and counseling areas. In 1973 she was first employed by NAVRESSO in Brooklyn as a non-management personnel assistant in IRD. In June 1973 she was promoted to the position of personnel staffing specialist in IRD’s Recruitment and Employment Branch (IR3) and assigned NAVRESSO’s then salary grade 7 at an annual salary of approximately $10,-817.

Vance complains that she was subjected to disparate treatment by NAVRESSO in that her grade and salary were lower than that of white employees in her section who performed similar work. The credible evidence, however, does not support her claim of racial discrimination. Indeed, it reveals that she received the staffing specialist promotion in 1973 because of her race in order to reduce the ethnic imbalance in IRD, although there were seven other applicants, three of whom were given “serious consideration” for the position. DX 280. As previously noted, Vance’s salary was fixed at grade level 7 in accordance with NAVRESSO's then policy. DX 343. It was anticipated that after Vance demonstrated satisfactory performance in the new position, she would be raised to salary grade level 8. DX 280. This was based upon the procedure followed with the previous occupant of the position, Eileen Ryan, a white employee, who had been raised from grade 7 to 8 after holding the position for approximately a year. DX 320.

The evidence clearly demonstrates the reason why Vance, although assigned a salary grade 8 in July 1974, did not receive the same salary increase paid to her predecessor, Ryan, when the latter occupied the position. That reason was the necessity for compliance with Public Law 92-392, 86 Stat. 564 (1972), the Civil Service wage system used by most federal government agencies, which NAVRESSO was required to adopt. Under that system, federal employees doing similar work were to be paid in accordance with the same salary schedule, regardless of the agency employing them. Although NAVRESSO began the task of converting its grade and salary schedule in 1972 for some 30,000 employees scattered around the world, the enormity of the task delayed completion until late 1974. However, any salary increases which resulted from adoption of the system were made retroactive to June 1974.

Adoption of the Civil Service wage system eliminated NAVRESSO’s previous flexibility in granting salary increases. Pursuant to its Universal Annual Salary Plan (UA System), NAVRESSO was required to fix and increase salaries strictly in accordance with its 18 major salary grades, and the 10 increments or “steps” within each grade. The methodology for determining those grades — and thereby salaries — is set forth in the Civil Service Commission’s Handbook of Occupational Groups and Series of Classes (Handbook). DX 358. Those standards are race and color blind and were the determinants of the UA salary grade and incremental step applicable to Vance’s position, which in her case resulted in a Grade 8 Step 3 annual salary of $11,765. It was that change in the salary structure which barred a further grade increase and not the discriminatory reason asserted by Vance.

Under the principles expounded in United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983), Vance has failed to show that NAVRESSO’s application of the UA salary plan in her case was but a pretext for discrimination, as she claims. Accordingly, her claim of discriminatory treatment is dismissed.

Fayerweather

Plaintiff Fayerweather has been a federal government employee since 1948. During a 20-year period of service in the Air Force he attained the rank of Master Sergeant and held a number of demanding supervisory positions requiring managerial experience at Air Force bases in the United States and Japan. These included inventory maintenance, personnel scheduling, personnel evaluation and managing an airmen’s club in Japan having a staff of 20 people and gross revenues exceeding $500,-000 per month. Also, while serving as supervisor of Mail Order Merchandise Publications, he had responsibility for administration, personnel, historical and data compilation, instruction and policy formulation, non-routine correspondence, form maintenance, supply and equipment control, and advance planning logistics.

In November 1973 Fayerweather entered NAVRESSO’s employ in Brooklyn as Assistant Public Affairs officer, Management Grade 9. His education at that time consisted of four years of high school. However, during the next six years, while working full-time at NAVRESSO, he attended Pace University at night and obtained a bachelor’s degree in business in 1976, and in 1979, a master’s degree in public administration from Syracuse University. He also completed managerial courses, including three offered by the American Management Association, one of which dealt with financial management. Also, in 1976 he was selected to attend, and successfully completed, a course in Supervision and Group Performance given by the Civil Service Commission. And in 1977 he was nominated by his NAVRESSO supervisor to participate in an Executive Management Training Program at Penn State University, and later selected by NAVRESSO commanding officers to attend the Middle Management Program offered by the American Management Association, and to serve as a member of the NAVRESSO Management Council and as an Equal Employment Opportunity Counselor.

Fayerweather has also received awards from NAVRESSO for his recommendations concerning the reformulation of its personnel evaluation criteria and its advertising and marketing strategies in relation to EEO goals. He also assumed the additional workload of editing, designing and producing the systemwide monthly NEWS DIGEST Magazine.

Fayerweather’s discrimination complaint arises from events occurring in September 1979. At that time he had advanced to Management Analyst grade UA-11. Noting in NAVRESSO’s Weekly Bulletin that a vacancy would occur in the position of Director of the Management and Administration Services Division (MASD), a UA-14 salary grade position, Fayerweather applied. He and 13 other applicants were deemed “fully qualified” by the Recruitment and Employment Branch and their personnel files were forwarded to Captain Raymond P. Loftus, the white selecting official. Loftus had designed a personnel jacket evaluation sheet to evaluate the jackets on a numerical basis, employing six categories on a scale of “3” to “0”. Eighteen points was the highest score a jacket could receive. Fayerweather’s jacket was ranked first with 14 points, tieing that of Richard Passera, a white applicant eventually selected for the position.

To determine the best qualified candidate, Loftus had convened a panel consisting of himself, Nicholas Risucci, the departing MASD Director, and Joe Ortiz, a representative from the Equal Opportunity Division, to interview the 14 qualified applicants. Neither Risucci nor Ortiz were black. Risucci was chosen to serve as “technical” advisor on the panel. Each applicant was examined orally based upon a questionnaire developed by Loftus containing 18 questions which were assigned values from 1 to 5 per question. Thus each candidate’s answer could receive a rating ranging from “1” (poor) to “5” (excellent). The points awarded were derived by multiplication of the value and the rating, with the highest possible score being 390 points. Loftus conceded that such a test had not been used in prior or subsequent selections. Tr. 1106.

After the interviews Fayerweather and Passera received the following scores and rankings:

Interviewer Fayerweather Passera
Loftus 285(7) 312(2)
Risucci 256(5) 249(6)
Ortiz 262(5) 275(3)

Fayerweather contends in substance that the questionnaire selection procedure adopted by Loftus was but a device to conceal the latter’s predetermined decision to award Passera the MASD directorship. Fayerweather points out that previously an employee’s jacket evaluation together with his past experience had been considered the truly objective measure of his qualifications. As noted above, 18 points was the highest score a jacket could receive. Fayerweather’s jacket score was ranked first with 14 points and was tied with that of Passera, who was then Branch Manager of the Analysis and Budgets Branch, a grade 13 position. Fayerweather points out, however, that his ranking would have been much higher had Loftus not given him the lowest possible score of “1” for “Outside Related Experience,” completely ignoring the extensive experience Fayerweather had acquired in the areas of financial, personnel and inventory management during his 20 years of service in the United States Air Force.

Defendants concede that Fayer-weather made out a prima facie case of racial discrimination as defined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). As a member of a protected class who applied for a promotion, who met the qualifications for the job he applied for, and who was rejected for the promotion, which was given to a person not a member of the protected class, Fayerweather made out a case of disparate treatment under Title VII. Burdine, supra, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 1094-95; Acosta v. University of District of Columbia, 528 F.Supp. 1215, 1222 (D.D.C.1981). The burden was then on defendants to come forward with a legitimate, non-discriminatory reason for their action. Defendants contend that Passera was better qualified than Fayerweather and that discrimination played no part in his rejection. The preponderance of the credible evidence, however, does not support their contention.

The Court finds that the ad hoc questionnaire technique devised by Loftus (and never used before or after) was designed to assure that a white candidate, Passera, would emerge the front runner. That plan encountered difficulty, however, when Fayerweather’s jacket score tied Passera’s and Risucci, the retiring MASD director, gave Fayerweather a higher score than he gave Passera, and also ranked him ahead of Passera. Risucci’s opinion, as defendants acknowledge, Def. Br. at 74-75, was important, hence his rating of Fayerweather’s qualifications was entitled to considerable weight. This, however, was not in accord with Loftus’ plan. As defendants’ brief put it, he “was disappointed by the results of the personnel jacket evaluation ... [since] [m]any of the candidates’ scores were quite close and ... did not provide an effective] way to differentiate among” them. Def. Br. at 77. Loftus was disappointed again when his questionnaire innovation did not produce Passera as the clear-cut front runner. To achieve that end, he prepared his own “matrix” of the scoring on a numerical basis, which resulted in the elimination of all candidates except four whites, one of whom was Passera, Loftus’ inevitable selection for the MASD directorship.

Defendants endeavor to justify this discriminatory procedure by noting that Loftus had to pass it by NAVRESSO’s Review Board. That board was composed of two Navy captains, the director of industrial relations and the deputy Equal Employment Opportunity officer, all white persons. Not surprisingly, the Review Board accepted Loftus’ presentation of his reasons for selecting Passera. And although the EEO officer questioned Loftus about his consideration of minority candidates, he made no inquiry as to why the Review Board did not request Risucci, the retiring incumbent, to appear and explain his rating preference for Fayerweather.

By any standard Fayerweather was as well qualified for the MASD position as Passera. He was denied that promotion by an invalid testing procedure that the selecting official had not employed before or after the MASD vacancy. Captain Loftus had no training in psychology, testing or personnel selection, and the questionnaire he employed was not modeled on any examination approved by psychologists or other academics. No specific guidance was provided to the interviewers, and the answer sheet he prepared gave them little guidance, and was often confusing or wrong. Thus, for questions 10 and 13, two of three possible responses were deemed “correct”, even though those responses differed markedly. The problem of standardless discretion was compounded by failure to provide the interviewers with guidelines as to what value was to be assigned to a response.

For example, Loftus testified that the first nine questions were designed to elicit the candidate’s professional qualifications and knowledge of the MASD. Yet that had already been determined by the jacket ratings. Moreover, Loftus admitted that it was unnecessary for the director to have detailed knowledge of MASD functions, because he would be able to rely on highly skilled managers. Questions 10 through 16 were “designed to determine how the candidate is thinking”, a clearly intangible characteristic. Quéstion 17 sought to evaluate a candidate’s “attitude and contribution to the EEO program”, by asking him to define “equal employment opportunity”, “affirmative action”, and “upward mobility”, and question 18 asked for “specific actions” taken to show support in those areas. Curiously, Captain Loftus awarded Passera five more points than Fayerweather in this category even though the latter’s personnel jacket contained substantial evidence of his EEO participation and contributions, whereas Passera’s personnel jacket contained no reference to EEO contributions.

A further illustration of the standardless discretion inherent in the Loftus questionnaire is found in question 9 regarding inventory management experience. Risucci, the retiring MASD director, awarded Fayerweather and Passera 3 of 5 possible points, whereas Loftus gave Passera 4 and Fayerweather only 1. Yet there was scant evidence in Passera’s jacket of his having performed jobs entailing inventory management, in sharp contrast to Fayerweather’s extensive experience in that area. Loftus was well aware of this because he had reviewed the personnel jackets prior to the interviews.

Finally, the evidence is compelling that the convening of a panel had as its only purpose to lend the appearance of objectivity to a highly subjective procedure and thus provide a vehicle for the non-selection of a superior black candidate. That Fayer-weather was well qualified for the promotion is beyond cavil. In five and a half years he had moved upward from Assistant Public Affairs Officer, Management Grade 9, to Management Planning Analyst, Grade 11, in the Management Planning Branch. In that position he was charged with making policy and management recommendations after analyzing sales figures and performance data. He also aided in preparing the testimony of NAVRESSO’s Commanding Officer before the House of Representatives Armed Services Committee, which entailed research into NAVRESSO budgetary matters, specifically the utilization of non-appropriated funds. He had consistently been viewed as “excellent” and “outstanding” by his supervisors, and senior management officials have praised him for his “skill as a manager, diplomat, and professional,” for his initiative and creativity, and for his very significant contributions to NAVRESSO.

That Fayerweather was the victim of a prejudiced official is evident. In adopting his panel procedure, Loftus disregarded NAVRESSO’s instruction that a selecting official either not sit on the panel or act as a non-voting member. Obviously the purpose of such a rule is to insure objectivity in the interviewing process. Moreover, in disregarding Risucci’s ranking of Fayer-weather ahead of Passera, Loftus ignored the only panel member to have firsthand knowledge of the job in issue, and who had been included on the panel for his technical expertise. Indeed, Passera was not ranked first by any panel member including Loftus.

Furthermore, there is evidence that “preselection” occurred. Loftus testified he did not know Fayerweather “very well” but did know that Passera was in the financial management division. Thus his determination that the next director have proven budgetary skills — a requirement not at all emphasized or detailed in the NAVRESSO position description — was made with Pass-era’s experience in mind. Furthermore, Loftus developed his own qualification list despite an official list already existing, after 14 candidates were found to meet those qualifications. The qualification list developed by NAVRESSO’s Industrial Relations Division treats budgetary and inventory management experience as merely two of ten desired abilities. Those factors were emphasized only in Loftus’ list.

Finally, it is apparent that Loftus had determined he would make his selection from the top four white candidates, knowing that such limitation, combined with the test, eliminated all three qualified minority candidates, thereby continuing the under-representation of minorities at the UA-14 level. The NAVRESSO Review Board, in approving the selection, acted without careful review of the selection process or the test, and was not informed that a minority candidate had been ranked first, since it had before it only the personnel jackets of the top four candidates. Moreover, the Review Board presumably was unaware that where Loftus has been the selecting official and candidate pools included black persons, he had never selected a black candidate. Additionally, despite specific instructions to be followed for promotions and the Affirmative Action Policy, he testified that there were no “specific procedures”, and later admitted that he ignored EEO directives.

Viewed as a whole, the actions of defendants support a finding of discrimination against Fayerweather.

Conclusions of Law

As the Supreme Court pointed out in Aikens, supra, a plaintiff is not required as part of his prima facie case to show that he was more qualified than the person selected, only that he possessed minimum qualifications and that despite his qualifications, the employer selected a nonminority applicant.

The burden of establishing a prima facie case of disparate treatment is not an onerous one. Burdine, supra, 450 U.S. at 253, 101 S.Ct. at 1093. This Court holds that Fayerweather established a prima facie case of discrimination. Plaintiff is a black male who has established that he was qualified for the position of MASD Director, that despite his qualifications he was rejected and a white male, Passera, was selected for the position. See Page v. Bolger, 645 F.2d 227, 229-30 (4th Cir.) (en banc), cert. denied, 454 U.S. 892, 102 S.Ct. 388, 70 L.Ed.2d 206 (1981).

Once a prima facie case of discrimination has been established, the burden shifts to the defendant to articulate, through admissible evidence, a legitimate, non-discriminatory reason for the employment action. Burdine, 450 U.S. at 253, 101 S.Ct. at 193. While the “ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff,” id., the prima facie case creates a presumption that discrimination has occurred. Plaintiff may meet the ultimate burden by the introduction of direct or circumstantial evidence, he is not required to submit direct evidence of discriminatory intent. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358 n. 44, 97 S.Ct. 1843, 1866 n. 44, 52 L.Ed.2d 396 (1977); Lieberman v. Gant, 630 F.2d 60, 63 n. 2 (2d Cir.1980).

If defendant carries its burden, plaintiff must then be given an opportunity to prove by a preponderance of the evidence that the reasons offered by defendant are merely a “pretext” for discrimination. Burdine, 450 U.S. at 253, 101 S.Ct. at 1093; McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804, 93 S.Ct. 1817, 1825, 36 L.Ed.2d 668 (1973). The plaintiff may show pretext by proving that “a discriminatory reason more likely motivated the employer or ... that the employer’s profferred explanation is unworthy of credence.” Burdine, 450 U.S. at 256, 101 S.Ct. at 1095; citing McDonnell Douglas, 411 U.S. at 804-805, 93 S.Ct. at 1825-1826; Lieberman, 630 F.2d at 65.

Defendants attempted to meet their burden principally through testimony of the selecting official, who stated that he simply viewed the selectee as more qualified than plaintiff, based primarily on the scores he awarded the candidates on an oral examination.

This Court holds that the articulated reason is neither legitimate nor non-diseriminatory and, alternatively, that plaintiff has shown that the reasons given were but a pretext for discrimination.

The evidence shows that after the objective qualifications of the candidates were reviewed, plaintiff emerged as a frontrunner, tied for first place with the selectee. At that point defendants’ affirmative action policy dictated that, because of the admitted underrepresentation of blacks above grade 11, plaintiff should have been selected for the position.

Similarly, the selecting official ignored NAVRESSO guidelines on the composition of panels convened for selection purposes. This Court is of the opinion that where the Federal Government is involved, deviation from internal regulations and procedures cannot form the basis of a legitimate, lawful explanation sufficient to overcome a prima facie case of discrimination. See Hogan v. Pierce, 31 FEP Cases, 116, 126 (D.D.C.1983); Predmore v. Allen, 407 F.Supp. 1067, 1071 (D.Md.1976). Alternatively, the failure to follow guidelines may be viewed as evidence of pretext. Page v. Bolger, 645 F.2d at 231; Taylor v. Teletype Corp., 648 F.2d 1129, 1135 (8th Cir.), cert. denied, 454 U.S. 969, 102 S.Ct. 515, 70 L.Ed.2d 386 (1981).

Many courts, including those in this Circuit, have recognized that subjective evaluations “may mask prohibited prejudice.” Sweeney v. Research Foundation, 711 F.2d 1179, 1185 (2d Cir.1983) (citing Knight v. Nassau County Civil Service Commission, 649 F.2d 157, 161 (2d Cir.), cert. denied, 454 U.S. 818, 102 S.Ct. 97, 70 L.Ed.2d 87 (1981)); Crawford v. Western Electric Co., 614 F.2d 1300, 1316 (5th Cir.); rehearing denied en banc, 620 F.2d 300 (5th Cir.1980); United States v. N.L. Industries, Inc., 479 F.2d 354 (8th Cir.1973); see also, Davis v. Califano, 613 F.2d 957, 965 (D.C.Cir.1979). Objective criteria “should be used to the maximum extent possible,” Wells v. Meyers Bakery, 561 F.2d 1268, 1273 (8th Cir.1977), and a subjective system “must be carefully scrutinized for abuse.” Jenkins v. Caddo-Bossier Ass’n., 570 F.2d 1227, 1229 (5th Cir.1978). This potential for abuse is heightened where the evaluator is white, as was the selecting official here. Paxton v. Union National Bank, 688 F.2d 552, 563 n. 15 (8th Cir.1982), cert. denied, 460 U.S. 1083, 103 S.Ct. 1772, 76 L.Ed.2d 345 (1983); Fisher v. Procter & Gamble Mfg. Co., 613 F.2d 527, 545-46 (5th Cir.) rehearing denied en banc, 618 F.2d 1389 (5th Cir.1980), cert. denied, 449 U.S. 1115, 101 S.Ct. 929, 66 L.Ed.2d 845 (1981); see also Page v. Bolger, 645 F.2d at 230 (“... when ... evaluation is ... subjective and when the evaluators are themselves not members of the protected minority, the legitimacy and nondiscriminatory basis of the articulated reason for the decision may be subject to particularly close scrutiny by the trial judge”); Kinsey v. First Regional Securities, Inc., 557 F.2d 830, 838 (D.C.Cir.1977) (evaluation of intangible qualities of blacks may be made unknowingly against a white stereotype).

Applying these principles to this case, the Court finds there is ample evidence of pretext:

First, the selecting official, faced with the likely prospect of having to select Fayerweather on the basis of objective evaluation chose instead to rely solely on a non-validated, oral test, admittedly subjective in nature.

Second, the selecting official testified that he did not decide to use the test results until after the jacket review indicated Fayerweather was the best qualified candidate. As the Supreme Court has noted the “sequence of events leading up to the challenged decision” is relevant to a determination of purpose. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 267, 97 S.Ct. 555, 564, 50 L.Ed.2d 450 (1977).

Third, during the interview process, a number of the questions asked were of a highly subjective nature, deemed to elicit intangibles by the selecting official’s own admission. The procedure had not been validated under the federal guidelines (29 CFR § 1607.14) and supplied a ready “coverup” for the non-selection of a qualified black candidate. Bell v. Bolger, 708 F.2d 1312 (8th Cir.1983).

Fourth, the selecting official chose to emphasize a particular past experience (budgetary) that he knew prior to making the final selection decision directly corresponded with experience already gained by the selectee, who was not ranked first in the examination results by any panel member and who was ranked sixth by the incumbent. Such circumstances lend support to the possibility of pre-selection. Shaw v. Boorstin, 517 F.Supp. 336, 340 (D.D.C.1981).

Fifth, the Court finds that defendants’ affirmative action plans and other documents establish that there was a continuing pattern of exclusion of blacks from higher level grades. Nonetheless, the selecting official, who by his own testimony has admittedly never selected a black candidate for any position for which he was the official, and has never either before or after this selection used an oral examination, totally ignored EEO policy. Failure to “live up to [an] affirmative action policy” is relevant to indicating an intent to discriminate. Taylor v. Teletype Corp., 648 F.2d at 1135 n. 14.

Sixth, the role played by the selecting official violated the government’s guidelines on panels. Deviations from normal procedures are themselves evidence of discrimination. Arlington Heights, 429 U.S. at 267, 97 S.Ct. at 564.

Seventh, it would appear that the use of a panel was only a sham, since the selecting official relied on only his own “recommendations” and ignored those of the other panel members.

For all the foregoing reasons, the Court finds that plaintiff has met his burden of proof and that he was denied a promotion to Director MASD in 1979 in violation of 42 U.S.C. § 2000e-16. He therefore is entitled to appropriate relief, including a retroactive promotion, backpay and reasonable attorney’s fees.

Counsel will submit proposed forms of judgment in conformity with this decision within 30 days of the date hereof.

SO ORDERED.

      . The claims were originally certified as a class action but subsequently decertified pursuant to stipulation and order dated July 6, 1982.

      . Pursuant to the 1976 reorganization of NAVRESSO, a System Support Group (SSG) was formed consisting of three divisions: Data Processing, Planning, and Management and Administrative Services (MASD). In addition to the Graphic Arts Section, there were four others in MASD: Office Services, Editorial and Publication Services, Shipping and Receiving, and Requirements Control, each headed by a Supervisor, who prior to the reorganization had been titled a Branch Manager.

      . “DX” references are to defendants’ exhibits in evidence.

      . Vance’s own expert witness, David Knudsen, did not dispute that her grade 8 would be the proper grade, if her job responsibilities were as described by her supervisor, Peter Peugot. Tr. of April 20, 1983 at 451-2. Discrimination cannot be founded on a difference of opinion between experts as to job content in the absence of any tangible indication of discriminatory purpose as was the case here.


source: Caselaw Access Project

author: MILTON POLLACK, Senior District Judge.

license: Public Domain

text:
    SPERRY INTERNATIONAL TRADE, INC., Petitioner, v. GOVERNMENT OF ISRAEL, Respondent.
    No. 81 Civ. 5670(MP).
    United States District Court, S.D. New York.
    March 1, 1985.
    See also, 670 F.2d 8 and 689 F.2d 301.

      Holtzmann, Wise & Shepard by Norman Solovay, David R. Foley, Mark Moore, New York City, for petitioner.
    Finley, Kumble, Wagner, Heine, Under-berg & Casey by Jeffrey Fillman, David C. Burger, New York City, for respondent.
   DECISION AND OPINION

MILTON POLLACK, Senior District Judge.

The petitioner, Sperry International, Inc. (“Sperry”), moves to vacate an Award rendered in favor of respondent, Government of Israel, by arbitrators appointed by the American Arbitration Association (“AAA”), on the grounds that the Award allegedly resulted from arbitrator misconduct and/or was so imperfectly executed as to be invalid; or alternatively for an order modifying or correcting the Award to show that it was not unanimous. In furtherance of either alternative, Sperry seeks an order permitting it to take oral depositions of the arbitrators, all of whom signed the Award.

The respondent has moved for an order confirming the Award and opposes petitioner’s motion and seeks an award of attorney’s fees and costs.

For the reasons shown hereafter, the respondent’s motion to confirm the Award will be granted and the petitioner’s motions will be denied.

The arbitration arose out of a contract dispute between Sperry and the Government of Israel. The contract required Sperry, together with its subcontractors and with the cooperation of the Government of Israel, to furnish a modern ground-to-ground communications system for the Israeli Air Force.

After a dispute concerning Sperry’s contractual performance arose, Sperry sought and obtained an order from this Court directing arbitration to be held in New York under the Rules of the AAA. Thereafter, the matter was duly submitted to a panel of three neutral arbitrators selected by the Association: Two Canadians with construction contract backgrounds and the New York resident partner of a firm of English solicitors, the latter becoming the Chairman.

The evidentiary hearings, which consumed 212 hearing days, produced over 40,000 pages of transcript. Lengthy post-hearing briefs were submitted by each side. Four days of final oral arguments by counsel followed. On December 12, 1984, a written Award, signed by each of the three arbitrators, was rendered. The Award is complete in all respects and conforms to the Rules of the AAA. It calls for Sperry to pay the Government of Israel $16,413,-000 in United States currency with interest at twelve percent until paid. The Award also prescribes the terms for the release of an escrow account which previously had been established by the parties. The Award further provides for Sperry to deliver to Israel certain so called “protected material” which had been delivered by Israel to Sperry, or failing such re-delivery, for Sperry to destroy the material. The Award requires Sperry to bear certain bank charges; the parties to pay equally the AAA administrative fees, charges, and expenses, and the arbitrators’ and reporting agency’s compensation and expenses; and, each party to bear its own attorney’s fees and costs and those expenses of and incidental to the arbitration.

The Award states “this Order and Award is in full and final settlement of all claims and counterclaims submitted in this arbitration.” The Award is then signed manually by each of the three arbitrators and each acknowledged to a Notary Public that he executed the same.

Criticisms of the Award

Shortly after the Award was rendered, an attorney for Sperry phoned one of the arbitrators and reportedly told him that the outcome was totally unexpected and a complete shock to Sperry. Since no reasons were expressed in the Award, the attorney asked the arbitrator for any “expression” he felt he could make. The arbitrator declined to discuss the matter on the telephone, so the attorney suggested that they meet. The arbitrator responded that he wanted first to consult a legal advisor to an arbitration association in Canada of which he was a member. Ultimately, the arbitrator declined to meet Sperry’s attorney.

During the course of their talk, when the Sperry attorney mentioned to the arbitrator that the decision was unanimous, he was allegedly corrected by the arbitrator; the arbitrator stated that the Award was not unanimous since it did not so state expressly. In any event, neither a provision of the agreement to arbitrate nor any rule of the AAA required the arbitrators to render a unanimous award. Rule 28 of the AAA provides:

“Whenever there is more than one Arbitrator, all decisions of the Arbitrators must be by at least a majority. The Award must also be made by at least a majority unless the concurrence of all is expressly required by the Arbitration Agreement or by Law.”

A few days after the talk with the arbitrator mentioned above, the same Sperry attorney unexpectedly encountered the Chairman of the Arbitration Panel and reiterated that Sperry was interested in gaining an insight into how the Award was to be interpreted and what lessons were to be drawn from it. The Chairman allegedly replied that there “may be a way” but that this would have to be taken up through the AAA. The AAA Tribunal Administrator later told Sperry’s attorney that, after the time for challenging the award had expired, the AAA would likely make available to the parties certain notes made by the arbitrators during the course of the hearings.

On January 9, 1985, pursuant to an agreement by which Sperry retained its right to challenge the Award in court, Sperry paid the money awarded to the Government of Israel and the escrow account was distributed.

Briefly, Sperry argues that the Panel was dominated by its chairman who “may have advised the arbitrators erroneously” on various matters. Sperry says that the arbitrators’ alleged failure to reflect their actual vote “is a defect which goes to the very heart of the award.” Indeed, Sperry poses the hypothesis that if the Panel had actually been required to issue a divided award it might have reached a compromise award or even have realized that the majority’s decision was faulty. Consequently, Sperry wishes to depose the arbitrators only in order to determine whether misconduct occurred. Its hope is to ascertain whether the two arbitrators were deprived of their independence by the Chairman.

Sperry makes the further claim that it is possible that the Chairman consulted a former New York judge concerning applicable New York law. There is not a scintilla of objective evidence showing that the Chairman ever actually consulted anyone.

Finally, Sperry has learned that one of the arbitrators took a vacation in Israel during the hearings. The petitioner’s papers then speculate that, during his holiday, the visitor might have met some Israeli officials and/or viewed sites involved in the project under contract. Again there are no evidentiary facts or objective evidence to give any body to these musings, let alone any evidence of misconduct or improper access to the arbitrator. Indeed, Sperry’s lawyer tells us in his affidavit: “No charges of ‘misconduct’ are in fact yet being made as to such events, but they can and should be inquired into further in the requested depositions.”

In short, the record is bare of any evidentiary facts or objective basis creating a reasonable belief that misconduct has occurred or that any one of the arbitrators sacrificed his independence in any degree.

Neither the law of arbitration nor the Rules of the AAA require the arbitrators to give reasons for their conclusions or express anything other than their signature to an award. See Sobel v. Hertz, Warner & Co., 469 F.2d 1211, 1214 (2d Cir.1972). None of the grounds enumerated in 9 U.S.C. §§ 10 or 11 for vacating the Award exist; there is no evidence of any prejudicial misconduct on the part of any arbitrator.

The law is well settled that a court may not review any of the findings of fact or applications of law by the arbitrators. An arbitrator’s conclusions involve matters of judgment, and it would be contrary to the intent of an arbitration agreement for a court to interfere; the parties, by agreeing to an arbitration, did not intend the court’s determination to replace that made by the arbitrators. Consequently, in post-award proceedings an arbitrator cannot “be examined for the purpose of impeaching his award,” Brownko International, Inc. v. Ogden, 585 F.Supp. 1432, 1435 (S.D.N.Y.1983), or be impeached by his voluntary statements. See Big-W Construction Corp. v. Horowitz, 24 Misc.2d 145, 155-56, 192 N.Y.S.2d 721, 733-34, aff'd, 14 A.D.2d 817, 218 N.Y.S.2d 530 (N.Y.App.Div.1961). See also Gramling v. Food Machinery and Chemical Corp., 151 F.Supp. 853, 860 (W.D.S.C.1957).

“As a quasi-judicial officer, an arbitrator should not be called upon to give reasons for his decision.” Lief v. Brodsky, 126 N.Y.S.2d 657, 658 (N.Y.Sup.Ct.1953). “Inquisition of arbitrators for the purpose of determining the processes by which they arrived at an award, finds no sanction in law.” Reichman v. Creative Real Estate Consultants, Inc., 476 F.Supp. 1276, 1286 (S.D.N.Y.1979), quoting, Martin Weiner Co. v. Fred Freund Co., 2 A.D.2d 341, 342, 155 N.Y.S.2d 802, 805 (N.Y.App.Div.1956), aff'd, 3 N.Y.2d 806, 166 N.Y.S.2d 7, 144 N.E.2d 647 (N.Y.1957).

For like reasons an arbitrator may not testify as to the meaning or construction of his written award. See New York City Omnibus Corp. v. Quill, 189 Misc. 892, 73 N.Y.S.2d 289, aff'd, 272 A.D. 1015, 74 N.Y.S.2d 925, aff'd, 297 N.Y. 832, 78 N.E.2d 859 (N.Y.1948). Any other view would make arbitration not the end, but only one step in the progress of litigation. See generally Domke, The Law and Practice of Commercial Arbitration, Chpt. 33 (1968).

The Second Circuit has held that, as an absolute prerequisite to any questioning of arbitrators, the petitioning party must present “clear evidence of impropriety.” Andros Compania Maritima, S.A. v. Marc Rich & Co., A.G., 579 F.2d 691, 702 (2d Cir.1978) (emphasis added). See also DeFrayne v. Miller Brewing Co., 444 F.Supp. 130 (E.D.Mich.1978). Here, there is no such evidence; indeed the petitioner admits as much in the speculation and hypothesis it presents. It would be a disservice to arbitration to impair the finality of such proceedings by speculation on the decisional process.

At the hearing of this petition, the Court asked Sperry’s counsel what questions he would want to ask the arbitrators. Counsel responded that “we would want to start with Mr. Dinkla and assure him he was not going to be sued and would not have to give back his fees and that Sperry would indemnify him if that were at issue, and then we would want to ask him: ‘What was it Mr. Pettit was telling you about the law, if anything?”’ ’

After counsel expressed this notion, the Court asked him, “Would you like to have the opportunity to submit to me a set of questions that you would like to ask this man?” Counsel replied that he would very much like to do that. Accordingly, counsel for Sperry submitted proposed questions for the arbitrators together with a proposed letter of explanation to be sent to them by the Court. Counsel further stated, “Sperry feels strongly that no useful purpose would be served by obtaining written in place of oral answers to the enclosed questions.”

An examination of the suggested questions to the arbitrators leaves no doubt that the whole procedure suggested by Sperry would be entirely improper and destructive of the arbitral process. A copy of the proposed questionnaire has been placed in the file. It is self evident that the subjects dealt with by the proposed questions do not provide any basis for challenging or vacating the Award under 9 U.S.C. §§ 10 and 11.

The petition to vacate the Award is virtually frivolous and is in all respects denied. The Award is confirmed.

SO ORDERED.


author: REYNOLDS, Chief Judge.

text:
    George RAKOVICH, Plaintiff, v. Gregory WADE and Darryl Drake, Defendants. George RAKOVICH, Plaintiff, v. Chester KASS, Defendant.
    Civ. A. Nos. 82-C-254, 83-C-528.
    United States District Court, E.D. Wisconsin.
    March 4, 1985.

      Michael O. Bohren, Milwaukee, Wis., for plaintiff.
    Ronald L. Piette, G. George Lawrence, and Allan R. Strauss, Milwaukee, Wis., for defendants.
   DECISION AND ORDER

REYNOLDS, Chief Judge.

This action under 42 U.S.C. § 1983 was tried to a jury, which awarded the plaintiff compensatory damages of $50,000 and punitive damages of $25,000 against defendant Wade, $25,000 against defendant Drake, and $40,000 against defendant Kass. Defendants have moved for a judgment n.o.v. or a new trial, and for an order striking the awards of compensatory and punitive damages. Rakovich has moved for an award of attorney fees, and for' monetary sanctions against the defendants with respect to a discovery incident involving one Vincent Sheehan, and with respect to the purported harassment of a witness. The motions will be denied, except for the motion for attorney’s fees.

I. FACTS

At trial, the jury found that the defendant police officers Drake and Wade retaliated against plaintiff for his exercise of First Amendment rights by investigating him, photographing him, recording his conversations and releasing a statement to the press that he would be criminally prosecuted, and that these actions were undertaken at the direction of the officers’ superior, defendant Kass. The evidence at trial indicated that Rakovich had actively expressed his political opposition to the may- or of Greenfield and other local officials, that he opposed a commendation of a Greenfield police officer, one Mary Foley, made by the Greenfield Police Department in conjunction with a burglary at a local business enterprise called “Cars, Unlimited,” and that he conducted a private investigation of the burglary to determine whether there was a basis for the commendation. Rakovich proved that the defendants photographed him, recorded his conversations, and requested that he be summoned before the Milwaukee County District Attorney to be charged with violations of the Wisconsin criminal code, even though they knew that there was no reasonable basis for the surveillance or the charges. He further proved that the defendants disclosed to the media that he was the subject of a criminal investigation and had been ordered to appear before the District Attorney. His theory of liability was that the defendants’ acts were undertaken in retaliation for his political activity. The defendants sought to justify their investigation on the grounds that Rakovich was apparently harassing a state’s witness, but the jury rejected this defense.

II. DISCUSSION

In their motions for a new trial or a judgment n.o.v., the defendants argue that damage to reputation alone does not support a claim under 42 U.S.C. § 1983. They base their argument on Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), which involved the distribution by local police officers of an allegedly defamatory leaflet. That case held that reputation alone, apart from some more tangible interest, does not implicate any liberty or property interests sufficient to invoke the procedural protections of the Due Process clause, and therefore mere defamation by a state official does not give rise to a cause of action under § 1983.

The argument misses the mark in this case. Rakovich sustained damages to his reputation as the result of defendants’ acts undertaken in retaliation for his exercise of First Amendment rights, that is, his active political opposition to Greenfield public officials. Thus, the acts were undertaken to punish Rakovich for engaging in protected activity. Rakovich’s theory of relief in this action is wholly consistent with other cases holding that acts undertaken by persons acting under color of state law in retaliation for political activity protected by the First Amendment may give rise to a claim under § 1983. See e.g. Bart v. Telford, 677 F.2d 622 (7th Cir.1982); Nekolny v. Painter, 653 F.2d 1164 (7th Cir.1981), cert. denied, 455 U.S. 1021, 102 S.Ct. 1719, 72 L.Ed.2d 139 (1982). The fact that Rakovich’s injury took the form of damage to his reputation does not shield the defendants from liability under § 1983. See Benson v. Allphin, 544 F.Supp. 464 (N.D.Ill.1982). It is the implication of Rakovich’s rights freely to associate with persons of his choosing and to express political dissent that gives rise to his right of action under § 1983. Paul v. Davis is thus distinct.

Defendants further argue that they are immune by virtue of a good faith qualified immunity defense. The jury was instructed on this point, and it disagreed. The evidence in this regard raised a question for the jury, and there was evidence to support their verdict. It will not be set aside on this ground.

Defendants also argue that they were performing a quasi-prosecutorial function after Assistant District Attorney Frank Crivello became involved, and are therefore absolutely immune. They base this argument on the evidence that defendants Wade and Drake, the two police officers, met with Crivello during their investigation of Rakovich and that Crivello advised them with respect to the investigation and with respect to whether they could release information to the press. They rely on Crivello’s testimony that they were acting as his agents.

The defense of absolute immunity is not applicable to these defendants. By their reasoning, any investigator who confers with a prosecuting official would suddenly be shielded from civil liability with respect to a pending investigation. Crivello’s testimony is by no means conclusive of the issue of defendants’ authority to act as they did. The verdict will not be set aside on this basis.

Defendants have moved that the award of compensatory damages be stricken, on the ground that the amount was intended to compensate Rakovich for the injury to his reputation and was therefore speculative. However, emotional harm and injury to reputation are compensable in actions under the Civil Rights Act of 1866. See e.g., Seaton v. Sky Realty Co., 491 F.2d 634 (7th Cir.1974). Evidence of financial loss or medical evidence of mental impairment are not essential. Rakovich testified at some length that the incident caused him great humiliation and damaged his reputation. The jury, being instructed not to speculate, determined an amount that would fairly compensate him. The award of compensatory damages will not be stricken.

Defendants’ motion to strike the punitive damages award will also be denied. Whether the defendants’ acts were malicious, or in reckless or wanton disregard of Rakovich’s rights, was a question for the jury, and the jury determined that an award of punitive damages was appropriate. There was sufficient evidence to raise a jury question in this respect, and sufficient evidence to support the award.

Defendants have also moved for a new trial on the grounds that the verdict was against the weight of the evidence. I disagree. There was evidence sufficient to show the defendants took action against Rakovich in vindictive retaliation for his political activity, that the defendants did not act in good faith, that their conduct was malicious or in reckless disregard of Rakovich’s rights, and that Rakovich was injured thereby. The verdict is not against the weight of the evidence.

Defendants also have moved for a new trial on the grounds that the damage awards are excessive and that they were prejudiced by the Court’s refusal to give their proffered absolute immunity instruction. The evidence was sufficient to support the compensatory and punitive damage awards, but insufficient to create any question that the defendants might have been absolutely immune.

The defendants also argue that they were unfairly prejudiced by the Court’s comment, in the presence of the jury, that “you have a constitutional right in your good name.” In the context of the entire proceeding, this remark did not prejudice the defendants. The jury was instructed at length on the plaintiff’s burden of proof and the law applicable to his claims, but it was never instructed that a good reputation is a constitutional right. It was instructed that the rights to associate freely and to express dissent with respect to public officials’ acts were constitutionally protected, and the jury determined that the defendants violated these rights. A new trial will not be ordered on this ground.

Defendants have moved for a new trial on the basis of their discovery that Nancy Allan, who is a reporter for the Greenfield Observer and was one of Rakovich’s witnesses, gave materially false testimony. Apparently, the motion is made under Fed.R.Civ.P. 59. The Court did not receive this motion until October 30, 1984, but it was apparently omitted by oversight when defendants filed their other motions, and so the Court will consider it.

When a new trial is sought under Fed.R. Civ.P. 59 on the ground that a witness has committed perjury at trial on an issue central to the litigation, the court must inquire into the extent of the perjury to determine whether a new trial should be ordered. Phillips v. Crown Central Petroleum Corp., 556 F.2d 702 (3d Cir.1977).

In this case, there was a dispute over the date on which Ms. Allan was told that Rakovich had been ordered to appear before the Milwaukee County District Attorney. This dispute is not a proper basis for ordering a new trial for two reasons. First, Ms. Allan has sworn that she disagrees with the defendants’ recitation of what her testimony should have been, and that she stands by her trial testimony. She does not concede she has given false testimony. If defendants thought her testimony was false at the time she gave it, they should have tried to impeach her testimony at trial. Second, even if her testimony had been false, it was not crucial to the issues in dispute. It was scarcely material.

Rakovich has also moved the Court for an award of sanctions against defendant Kass and defense counsel for harassing and tampering with Nancy Allan. This motion is denied. Assuming that Ms. Allan was harassed and that Kass and the attorneys sought to coerce her to change her testimony after trial, that is a matter collateral to this lawsuit. If Ms. Allan thinks she was harassed, she can bring her own action.

Rakovich has renewed his motion for sanctions with respect to the discovery of Vincent Sheehan’s testimony. This motion was raised before trial, but was denied without prejudice. Mr. Sheehan was an employee of Cars, Unlimited and was a state’s witness in the matter of the burglary of that enterprise. It was Rakovich’s questioning of Sheehan that gave rise to this suit, and thus Sheehan was a critical defense witness. During discovery, plaintiff’s counsel sought to determine Sheehan’s whereabouts, but defendants declined to divulge this information on Sheehan’s request. However, the parties agreed that Sheehan would present himself for deposition on November 3, 1983 in Hartford, Connecticut. Accordingly, Rakovich’s attorney traveled to Hartford, only to find -upon arriving that Sheehan had a job commitment and would be unavailable. The defense attorneys, who were in Hartford on an unrelated matter, had sought to contact Sheehan at his residence but were told that he had gone “down the beach.” It was impossible to determine his location. Rakovich’s attorney returned to Milwaukee, and discovery of Sheehan’s testimony did not occur until December 21, 1983. Rakovich seeks to recover the cost of his attorney’s airplane ticket and a monetary penalty to punish defendants for their obstructionist tactics.

Neither defendants nor their attorneys had control over Sheehan’s movements, and his failure to appear for the deposition in Hartford was apparently vexatious for all the attorneys in this case. The request for sanctions is denied, but the travel expense will be compensated, as discussed later.

Rakovich has moved for an award of attorney’s fees pursuant to 42 U.S.C. § 1988. He has submitted affidavits itemizing the several expenses incurred by his attorney, Mr. Bohren, throughout the course of this litigation. He has also requested an upward adjustment of the hourly rate. The defendants oppose the motion, arguing that Rakovich did not prevail on all his claims, that the rates proposed are excessive, that certain items of expense are perfunctory, secretarial matters that should not be compensable at the attorney’s hourly rate, and that a multiplier is inappropriate.

In the absence of special circumstances rendering an award of attorney’s fees unjust, attorney’s fees should be awarded to a prevailing civil rights plaintiff. Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). Precisely what is meant by a “prevailing” plaintiff in this context is disputed by the parties, however, because the defendants argue that expenses incurred in pursuing the claims against the City of Greenfield, Francis Havey and Mary Foley are not compensable. They point to the facts that the claims against the City of Greenfield and Foley were ultimately not prosecuted and that Havey was dismissed at the close of Rakovich’s case.

Prior to Hensley, the law in this circuit was that attorney’s fees could only be awarded for preparation and presentation of claims upon which plaintiff actually prevailed. Johnson v. Brelje, 701 F.2d 1201, 1211 (7th Cir.1983). In Hensley, however, the Supreme Court held that a plaintiff could be considered “prevailing” if he succeeds on any significant issue in litigation that achieves some of the benefit he sought in bringing the suit. 103 S.Ct. at-1938-39. When a plaintiff succeeds on fewer than all the claims presented, the court must inquire 1) whether the claims that failed were unrelated to the successful claims, and 2) whether the plaintiff achieved a level of success that renders the hours reasonably expended a satisfactory basis for rendering a fee award. Id. at 1940-41.

The foregoing rules readily apply to cases in which a plaintiff asserts multiple claims against a single defendant, or where there are multiple defendants all of whom are ultimately held liable notwithstanding the dismissal of certain claims. However, where certain defendants are dismissed altogether, there is no finding that they violated plaintiff’s rights and no basis for finding that plaintiff is a prevailing party with respect to them. It would be anamolous to hold that the defendants ultimately found liable are also liable for the expenses incurred in pursuing claims against other defendants who are ultimately dismissed altogether. In this case, the items of expense attributable to the claims against defendants Foley and Havey may not be readily separable from the items of expense attributable to the claims against the other individual defendants, and the claims against the City of Greenfield may not be separable at all. Nonetheless, the defendants cannot be held liable for the expenses incurred solely in the pursuit of the claims against Foley and Havey. Therefore, counsel will be requested to resubmit his affidavit after excising to the fullest extent possible the items of expenditure attributable to defendants Foley, Havey and the City of Greenfield.

The request for an upward adjustment will be denied. Under Blum v. Stenson, _ U.S. _, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984), an upward adjustment is permissible in certain cases, but there must be a persuasive showing that the representation was of an exceptionally high quality in view of the hourly rate charged, and that the success was “exceptional.” Blum v. Stenson reflects the primary justification for a multiplier: that an attorney with exceptional expertise in an area of civil rights law will be able to prepare and try a case involving that area of law much quicker than an attorney of ordinary skill.

The present action was not extraordinary, for the purposes of analysis in conjunction with § 1988. The applicable legal principles were well-established. Moreover, while Mr. Bohren demonstrated a high degree of competence at trial, he has not established that he possesses such skill that an attorney of average competence would have required more time to prepare and try the case.

An aspect of the case that caused difficulty for Mr. Bohren was the discovery phase, because the record reflects that there were several motions to compel discovery brought by plaintiff. The expense incurred in that respect is compensable by application of the hourly rate. The Court has considered Mr. Bohren’s other contentions and finds them insufficient to support application of a multiplier.

Defendants challenge Mr. Bohren’s hourly rates as excessive. These rates are $75 to $125 per hour for out-of-court time and $125 to $150 per hour for jury trial time. Defendants state that these rates are unreasonably high. They do not suggest what a reasonable rate might be, nor do they state the rates at which their attorneys would have been compensated had they prevailed here. Mr. Bohren’s affidavit states conclusorily that his rates are fair and reasonable for similar work performed by similarly experienced attorneys in the Milwaukee metropolitan area.

The relevant geographic area is the metropolitan Milwaukee area, and in the Court’s experience, rates for civil rights attorneys in this area range from $75 to $100 per hour. See Henry v. Webermeier, 738 F.2d 188, 193 (7th Cir.1984). For the specific reason that the proffered rates exceed the upper ranges of the rates charged by similarly experienced attorneys in similar cases in this area, Mr. Bohren will be compensated at the rate of $80 per hour for out-of-court time and $100 per hour for court time.

Defendants also argue that some of the work itemized in Mr. Bohren’s affidavit could have been performed by a legal secretary. They refer to instances where Mr. Bohren traveled to the court to file papers. Mr. Bohren’s affidavit discloses that this occurred four times. That is not a substantial amount, but more importantly, it is common for attorneys in this district to file documents in person, even among large firms that employ messengers. Mr. Bohren’s fee request will not be trimmed back in this respect.

Mr. Bohren has included in his itemization the amount of time wasted at the abortive deposition in Hartford, Connecticut. He has not stated the cost of the air fare. However, travel expenses are presumptively compensable under § 1988, and this includes out-of-pocket expenses reasonably incurred. Mr. Bohren has asked the Court for recovery of this amount in the context of his motion for sanctions. The amount is recoverable, but Mr. Bohren should first disclose the amount to the Court.

Finally, Mr. Bohren has estimated an additional ten hours to be devoted to additional post-trial motions. An estimate can now be replaced with a specific figure. Mr. Bohren should substitute this figure for his estimate.

In sum, Mr. Bohren is requested to resubmit his fee request with the items attributable to claims against defendants City of Greenfield, Havey and Foley excised. Mr. Bohren shall also disclose his out-of-pocket expenses for the Hartford trip and the amount of time spent on post-trial motions. He will then be compensated at the rates of $80 per hour for out-of-court time and $100 per hour of court time. No multiplier will be applied.

Rakovich also moves for dismissal of defendants Drake’s and Wade’s counterclaims. These counterclaims allege that Rakovich’s action was frivolous and brought for the purpose of harassment. I find no basis for these counterclaims, and they are dismissed.

Rakovich’s motions for leave to file an extended reply brief outside the fourteen day period are granted.

THEREFORE, IT IS ORDERED:

(1) that defendants’ motions for a new trial or a judgment n.o.v. are denied;

(2) that defendants’ motion to strike the damage awards is denied;

(3) that plaintiff’s motion for sanctions with respect to the alleged harassment of Nancy Allan is denied;

(4) that plaintiff’s motion for sanctions with respect to the deposition of Vincent Sheehan is denied;

(5) that plaintiff’s motion for dismissal of defendants’ counterclaims is granted;

(6) that plaintiff’s motions for an extension of time to file a reply brief and for leave to file a brief in excess of the local page limit are granted;

(7) that plaintiff’s motion for an award of attorney’s fees is granted on the condition that within ten days of this order, the plaintiff’s attorney shall submit a revised itemization of the expenses incurred in this case as set forth in the foregoing decision.


author: JACKSON, District Judge.

text:
    Martha TUNE, Plaintiff, v. WALTER REED ARMY MEDICAL HOSPITAL, Defendant.
    Civ. A. No. 85-0697.
    United States District Court, District of Columbia.
    March 4, 1985.
    Martha Tune, pro se.
    James P. Schaller, Jackson & Campbell, P.C., Washington, D.C., guardian ad litem.
    Royce C. Lamberth, John O. Birch, Asst. U.S. Attys., Washington, D.C., for defendant.
   MEMORANDUM AND ORDER

JACKSON, District Judge.

On the afternoon of February 27, 1985, plaintiff Martha Tune, by her adult son Cecil L. Tune, Jr., acting as next friend, filed a pro se civil action against Walter Reed Army Medical Center, entitled “Complaint and Emergency Motion for Removal of Life Support,” in which she describes herself as a 71-year-old patient at the Walter Reed Army Medical Center, Washington, D.C., with terminal adenocarcinoma of the pericardium. She alleges that she is currently being maintained on a respirator, without which she would “immediately experience respiratory arrest and death.” While the physicians at the hospital are sympathetic to her desire to die a natural death, she says, the policy of the Department of Army (as reported to her by her physicians) precludes the withdrawal of life support systems once placed in operation for a patient at an Army medical facility. Plaintiff prays for an order directing Walter Reed “to remove the artificial life support from her ... to permit her to die with dignity.”

The Court has appointed James P. Schaller, Esq., a member of the Bar of this Court with experience in medical litigation, as guardian ad litem for plaintiff, and, with the consent of the U.S. Attorney who has agreed to enter an expedited appearance on behalf of defendant, brought the matter on for final hearing and disposition upon oral motion, if possible.

I.

From the report of the guardian ad litem, made orally in open court upon the record, in which defendant, by counsel, concurs in all particulars, the Court finds the following material facts to exist without dispute.

Plaintiff, the widow of an Army officer, with a history of breast cancer treated surgically approximately 10 years ago, was awaiting elective cataract surgery at home when she experienced an onset of shortness of breath and chest discomfort. She was admitted to Walter Reed on February 21, 1985, and placed on the respirator on or about February 23rd. Initially suspected of having pneumonia and being appropriately treated for it, Mrs. Tune underwent cardiac catheterization which revealed the presence of fluid in the pericardial sac and frank cardiac tamponade. The fluid was evacuated, following which Mrs. Tune improved briefly, but cytologic examination of the evacuate demonstrated the presence of the malignant adenocarcinoma. Oncological consultation suggested three possible modalities of treatment, directed primarily at preventing the recurrence of tamponade: medication with tetracycline; surgery, entailing opening the chest and removing the pericardium altogether (with a mean survival prognosis of 10-12 weeks, with progressive debilitation); and a less drastic procedure to fuse the pericardium to the heart. The attending physicians commenced the administration of tetracycline and performed the latter procedure.

Although there has been no recurrence of tamponade, and her cardiac function (following a brief episode of atrial fibrillation restored to normal sinus rhythm) appears normal, Mrs. Tune nevertheless developed sudden and dramatic respiratory difficulty, diagnosed as Adult Respiratory Distress Syndrome (ARDS), and her lungs have continued to deteriorate. Serial X-rays suggest the presence of tumor in the lungs.

The physicians are unanimous in their opinion that without the ventilation afforded by the respirator, Mrs. Tune will promptly die, but the respirator merely postpones the inevitable. Her cancer is terminal. When she was first placed on the respirator the physicians were unaware of the full extent of her illness. In combination, her malignancy and lung disease import a mortality rate approaching 100 percent, and had they known the circumstances they would not have ordered the respirator originally. Having done so, however, they are constrained to continue life support, despite the wishes of patient or family, by Army medical policy.

The guardian ad litem, having spoken personally with plaintiff, reports her to be lucid, fully apprised of her medical circumstances by her physicians, and still firm in her resolve to be removed from the respirator. When told by the guardian ad litem that if it were done as she wished, she would “very likely quickly die, probably immediately,” she acknowledged it, and affirmed that she nevertheless wanted it so, with “no reservations at all.” Both her desires and her competence to form them the guardian ad litem found evidenced by multiple pages of notes, written recently in her own hand, expressing final sentiments for her family and giving instructions for the disposition of her personal effects, her funeral and interment. When asked by the guardian ad litem what she wanted him to ask the Court to do, she wrote a similar note declaring her persistence in her desire to be taken off the respirator.

Plaintiffs two adult children, and their spouses, whom the guardian ad litem describes as a “remarkably close and loving family,” are in accord with Mrs. Tune’s wishes and join with the guardian ad litem in his recommendation that the Court grant the relief prayed. Defendant concurs in all but the prayer for relief, as to which it takes no position, although waiving any right to appeal from the Court’s decision.

For the reasons hereinafter set forth, the Court will grant the petition and enter an order directing that plaintiff be forthwith disconnected from life support systems.

II.

All parties in interest being agreed that Mrs. Tune is in full possession of her faculties, and that she herself has expressed the clear and unequivocal desire to be allowed to die naturally, the Court is fortunately not called upon to address the difficult issues presented when the patient is comatose or otherwise incompetent, and a “substituted judgment” must be made. See, e.g., Matter of Quinlan, 70 N.J. 10, 355 A.2d 647, cert. denied sub. nom. Garger v. New Jersey, 429 U.S. 922, 97 S.Ct. 319, 50 L.Ed.2d 289 (1976); Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977).

Although the Supreme Court has recognized the primacy of individual autonomy in certain matters of the more intimate and sensitive nature encountered in the course of human affairs, see, e.g., Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 reh’g denied, 410 U.S. 959, 93 S.Ct. 1409, 35 L.Ed.2d 694 (1973); Carey v. Population Services International, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977), it has yet to do so in the context of natural death. Roe v. Wade, supra, however, is instructive for purposes of this case, because the Supreme Court there proceeded upon the premise that a competent adult has a paramount right to control the disposition to be made of his or her own body, absent a compelling countervailing governmental interest opposed.

At least two state courts have adapted that premise, under the rubric of a “right of privacy,” to circumstances similar to those presented here. In Satz v. Perlmutter, 362 So.2d 160 (Fla.Dist.Ct.App.1978), aff'd, 379 So.2d 359 (Fla.1980), a Florida appeals court affirmed a trial court order permitting a competent but terminally ill adult afflicted with amyotrophic lateral sclerosis to be removed from a respirator. More recently, in Bartling v. Superior Court of the State of California, 163 Cal.App.3d 186, 209 Cal.Rptr. 220 (1984), a California appellate court held that a competent adult suffering -from serious, but not imminently terminal illnesses, had the right, over the objections of his attending physicians and the religiously-affiliated hospital that it would be unethical, to hasten his death by having life support equipment disengaged. The trial court had ruled that life support systems could be withdrawn only from the comatose and terminally ill, but the court of appeals reversed, declaring that “[t]he constitutional right of privacy guarantees to the individual the freedom to choose to reject, or refuse to consent to, intrusions of his bodily integrity.” Bartling, supra, 209 Cal.Rptr. at 225.

There appears to be no federal court ruling, in this circuit or elsewhere, determining the rights of compos mentis patients in federal institutions who are receiving therapy intended merely to prolong life in the face of mortal illness. But it is now a well-established rule of general law, as binding upon the government as it is upon the medical profession at large, that it is the patient, not the physician, who ultimately decides if treatment — any treatment — is to be given at all. Canterbury v. Spence, 464 F.2d 772 (D.C.Cir.), cert. denied, 409 U.S. 1064, 93 S.Ct. 560, 34 L.Ed.2d 518 (1972). The principle underlying Canterbury v. Spence is, simply, that a competent, mature patient has a right to be fully informed of the possible consequences of a course of treatment before he permits the medical ministrations to begin, and that the attending physicians are in breach of duty to the patient if they initiate treatment without the patient’s informed consent. The rule has never been qualified in its application by either the nature or purpose of the treatment, or the gravity of the consequences of acceding to or foregoing it. And at least one corollary pertinent here is necessarily implicit in it: such a patient who enters treatment in ignorance, with or without the physicians’ connivance, has the right to insist that treatment be halted once he is fully informed of the consequences and does not wish to incur them.

Although the Army has compassionately refrained from urging any governmental interest underlying its policy against life support termination which might obtrude upon plaintiff's right to insist upon it here, the various interests which are commonly advanced in like cases include society’s concern for the preservation of human life, the prevention of suicide, protection of innocent third parties, and the integrity of medical ethics. Only the first is implicated to any significant extent here.

But while preservation of life in the abstract is no doubt a transcendant goal for any society which values human life, the state’s interest in maintaining life must defer to the right to refuse treatment of a competent, emotionally stable, but terminally ill adult whose death is imminent and who is, therefore, the best, indeed, the only, true judge of how such life as remains to him may best be spent. As the Massachusetts Supreme Judicial Court has said:

It is clear that the most significant of the asserted State interests is that of the preservation of human life. Recognition of such an interest, however, does not necessarily resolve the problem where the affliction or disease clearly indicates that the life will soon, and inevitably, be extinguished. The interests of the State in prolonging a life must be reconciled with the interest of an individual to reject the traumatic cost of that prolongation. There is a substantial distinction in the State’s insistence that human life be saved where the affliction is curable, as opposed to the State interest where, as here, the issue is not whether, but when, for how long, and at what cost to the individual that life may be briefly extended____ The constitutional right to privacy, as we conceive it, is an expression of the sanctity of individual free choice and self-determination as fundamental constituents of life. The value of life so perceived is lessened not by a decision to refuse treatment, but by the failure to allow a competent human being the right of choice.

Saikewicz, supra 370 N.E.2d at 425-26.

The Court concludes that these various state interests, viewed singly or in combination as they may be present here, are insufficient to outweigh plaintiff’s interest in dying as she chooses. The anguish which now besets her and her family would only be intensified and extended were this Court to rule otherwise than for her, and to no discernible public or private good. The Court holds that competent adult patients of federal medical facilities with terminal illnesses and in the circumstances presented here have a right to determine for themselves whether to allow their lives to be prolonged by artificial means, including the right to demand the cessation of life support once begun.

It is, therefore, for the foregoing reasons, this 28th day of February, 1985,

ORDERED, that judgment is granted for plaintiff, and an order directing the removal of life support will issue forthwith.

      . In accordance with Fed.R.Civ.P. 1 and 8(f), the Court treats the pleading as a complaint for emergency declarative and injunctive relief against the Secretary of the Army, with jurisdiction predicated upon 28 U.S.C. §§ 1331, 1361, and relief available under either the All Writs Act, 28 U.S.C. § 1651, or the Administrative Procedure Act, 5 U.S.C. §§ 706(1) and (2).

      . As a federal institution, Walter Reed is not subject to the provisions of the District of Columbia Natural Death Act, D.C.Code §§ 6-2421 et seq., which would enable her to accomplish her purpose by signing a declaration to that effect in the presence of disinterested witnesses.

      . The Court has ordered the note to be filed as a part of the record. It reads, in its entirety: “I would like to get off the life support system under which I am now having to live." It is signed "Martha A. Tune," timed by the guardian ad litem at 7:25 p.m., February 27, 1985.

      . But see Dronenburg v. Zech, 741 F.2d 1388 (D.C.Cir.1984).

      . See also In Re Osborne, 294 A.2d 372 (D.C.1972) (refusal of life-saving blood transfusion by Jehovah’s Witness upheld). But see Application of President and Directors of Georgetown College, 331 F.2d 1000 (D.C.Cir.), reh’g denied, 331 F.2d 1010, cert. denied sub nom. Jones v. President and Directors of Georgetown College, 377 U.S. 978, 84 S.Ct. 1883, 12 L.Ed.2d 746 (1964) (ordering blood transfusion to be given to Jehovah’s Witness to preserve status quo pending determination on the merits).

      . The subject of the right of a patient in a federally-controlled hospital to have life support terminated appears to have arisen judicially only once before. Foster v. Tourtellotte, 704 F.2d 1109 (9th Cir.1983), involved a claim for attorney’s fees in connection with the case of a mentally competent patient in a Veterans Administration hospital who withdrew his consent to remain on a respirator and then sought a preliminary injunction to enforce his wishes when his doctor refused to comply. A federal district court granted the injunction in an unpublished opinion, but stayed the order to permit an appeal. Before the stay was to expire, however, the patient was declared "brain dead" under a California statute. No appeal having been filed, the machine was disconnected and the patient pronounced dead. The Ninth Circuit did not, therefore, address the merits.

      . Other federal courts have recognized an analagous right on the part of mental patients to resist the forcible administration of antipsychotic drugs, although generally grounding it in the Due Process Clause of the Fourteenth Amendment. See, e.g., Rogers v. Okin, 634 F.2d 650 (1st Cir.1980), vacated and remanded on other grounds sub. nom. Mills v. Rogers, 457 U.S. 291, 102 S.Ct. 2442, 73 L.Ed.2d 16 (1982), on remand, 738 F.2d 1 (1st Cir.1984); Rennie v. Klein, 653 F.2d 836, vacated and remanded for further consideration, 458 U.S. 1119, 102 S.Ct. 3506, 73 L.Ed.2d 1381 (1982), on remand, 720 F.2d 266 (3d Cir.1983) (en banc); Bee v. Greaves, 744 F.2d 1387 (10th Cir.1984).

      . The prevention of suicide is not involved when permission is not being sought to terminate a healthy life by artificial, self-induced means, but merely to allow nature to take its course. See Saikewicz, supra 370 N.E.2d at 426, n. 11; Bartling, supra 209 Cal.Rptr. at 225-26. Consideration of the rights of innocent third parties is generally limited to situations in which the interests of the patient’s dependents may be adversely affected. See, e.g., President and Directors of Georgetown College, supra at 1008. And medical ethics incorporates the duties owed the patient, including, among others, administering treatment only with consent in the case of a competent adult.