author: RAMSEY, District Judge.

text:
    William H. GRANT, Plaintiff v. Daniel A. ALLISON and Arthur Allison, Defendants.
    Civ. A. No. R-85-1790.
    United States District Court, D. Maryland.
    Aug. 16, 1985.

      Joseph A. Miklasz, Glen Burnie, Md., for plaintiff.
    Robert A. Henley, Glen Burnie, Md., for defendants.
   MEMORANDUM

RAMSEY, District Judge.

Invoking the diversity jurisdiction of this Court, plaintiff brought this action to recover for personal injuries he allegedly sustained as a result of an automobile collision in Maryland on May 3, 1984. Plaintiff alleges that his vehicle was struck that day by an uninsured automobile operated by defendant Daniel Allison (hereinafter “the Driver”), and owned by defendant Arthur Allison (“the Owner”).

Currently before the Court are the motions to dismiss (Papers No. 5 and 6) filed by the defendants on June 17, 1985. Plaintiff filed his opposition to defendants’ motions (Paper No. 7) on June 26, 1985. Defendants have not filed reply memoranda within the time provided by local rule, and the motions are now ripe for decision without need for a hearing. See Local Rule 6 (D.Md.1985).

Plaintiff’s complaint asserts three claims. In Count I, plaintiff alleges that defendant Driver negligently operated the motor vehicle which struck plaintiff’s vehicle. Count II alleges gross negligence on the part of defendant Driver in operating the vehicle with the actual or constructive knowledge that the vehicle was uninsured in contravention of state law. Count III asserts gross negligence on the part of defendant Owner in failing to obtain insurance on his vehicle and in allowing the vehicle to be operated on the roads of Maryland knowing that the vehicle was uninsured. Plaintiff seeks compensatory damages on all counts, and punitive damages based on the allegations in Counts II and III.

Defendants have separately moved to dismiss Counts II and III on the ground that the law does not recognize a cause of action by a person injured by an uninsured motor vehicle against the owner or operator of the vehicle for their failure to maintain the minimum automobile liability insurance coverage required by state law. Plaintiff concedes the lack of any decisional or statutory law creating such a cause of action, but argues that his reckless-failure-to-insure theory should be recognized as a expansion of the common law “grounded in traditional principles of tort law.”

The grant of a motion to dismiss pursuant to Rule 12(b)(6) is appropriate only when “... it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). In ruling upon the pending motions to dismiss, this Court must view the complaint in the light most favorable to plaintiff and resolve every doubt in plaintiff’s behalf. See Wright and Miller, Federal Practice and Procedure: § 1357 (1969) and cases cited therein. The plaintiff’s allegations are to be taken as true for the purposes of ruling upon the motion. See id. and cases cited therein. See also Jenkins v. McKeithen, 395 U.S. 411, 421-22, 89 S.Ct. 1843, 1848-49, 23 L.Ed.2d 404 (1969). Moreover, any inference that may reasonably be drawn or construed from plaintiff’s complaint shall be considered together with the allegations of fact. Murray v. City of Milford, Connecticut, 380 F.2d 468, 470 (2d Cir.1967); L.S. Good & Co. v. H. Daroff & Sons, Inc., 263 F.Supp. 635, 644 (N.D.W. Va.1967).

The Court is satisfied that defendants’ motions present a narrow legal issue that may properly be decided upon a motion to dismiss pursuant to Rule 12(b)(6). The question for the Court is whether the courts of Maryland would, after assuming the truth of plaintiff’s factual allegations and inferences reasonably drawn therefrom, recognize the cause of action asserted in Counts II and III of plaintiff’s complaint. This Court is confident that the courts of Maryland would answer that question in the negative.

As plaintiff apparently concedes, no court has recognized a common law right of an injured party to recover against an uninsured vehicle’s owner or operator solely for their failure to maintain liability insurance. Stated another way, there is no common law duty to insure against one’s potential liability in tort. Because the duty to maintain liability insurance arises, if at all, only from legislative prescription, it is to the statute that the Court must look to determine whether the legislature intended to create a private right enforceable by the plaintiff.

Several provisions of the Maryland Code address the issue of compensation for' victims of automobile torts committed by uninsured motorists. Title 17 of the Transportation Article concerns requirements for financial responsibility on the part of vehicle owners and operators. Md. Transportation Code Ann §§ 17-101 et seq. Evidence of a vehicle liability insurance policy or a comparable form of security is a prerequisite to registration of a motor vehicle. Transportation § 17-104. If the required security terminates or lapses, the vehicle registration is automatically suspended and the owner is required to surrender evidences of registration and is subject to penalties. Transportation § 17-106. A person “who has knowledge that a motor vehicle is not covered by the required security” is forbidden to drive the vehicle or, if he is the owner, to “knowingly permit another person to drive it.” Transportation § 17-107. The violation of this prohibition is a misdemeanor subjecting the violator to a fine of not more than $500. Transportation § 27-101.

In addition to the provisions in the Transportation Code requiring liability insurance on motor vehicles, the legislature has provided for innocent victims of uninsured motorists in several sections of the Insurance Code, Md.Code Ann. Art. 48A. Section 541(c) provides that that every vehicle liability insurance policy issued in Maryland include uninsured motorist coverage for damages which an insured would be able to recover from the owner or operator of an uninsured motor vehicle because of bodily injuries sustained in an accident arising out of the ownership, maintenance, or use of the uninsured motor vehicle. Art. 48A § 541(c)(2). The uninsured motorist coverage must be in amounts which are at least equal to the minimum amounts of liability insurance required by law. Art. 48A § 541(c)(2). The purpose of the uninsured motorist provision is that “each insured under such coverage have available the full statutory minimum to exactly the same extent as would have been available had the tortfeasor complied with the minimum requirements of the financial responsibility law.” Nationwide Mutual Ins. v. Webb, 291 Md. 721, 737, 436 A.2d 465 (1981).

In addition to the uninsured motorist coverage requirements, provision has been made for innocent victims of uninsured motorists in Section 243H of the Insurance Code, which is a part of the subtitle creating the Maryland Automobile Insurance Fund (MAIF). Art. 48A §§ 243 et seq. A qualified victim whose claim is not covered by a vehicle insurance policy may make a claim against MAIF for personal injury or for property damage in excess of $100 which was caused by an uninsured operator. Art. 48A § 243H(a)(3). A “qualified person” includes a resident of Maryland, the owner of a vehicle registered in Maryland, as well as residents of other states and countries “in which recourse is afforded to residents of [Maryland] of substantially similar character to that provided by [the MAIF subtitle]”.’ Art. 48A § 243L(e).

As is clear from the above, Maryland has “an established legislative policy to make certain that those who own and operate motor vehicles in [the] State are financially responsible.” Pennsylvania National Mutual v. Gartelman, 288 Md. 151, 154, 416 A.2d 734 (1980). The uninsured motorist and MAIF provisions serve the remedial purpose of recovery for innocent victims of motor vehicle accidents. Id. at 157-60, 416 A.2d 734. The exclusions from coverage contained in those statutory provisions are designed to discourage the owners and operators of uninsured vehicles by excluding them from the remedial benefits because of their failure to obtain insurance. Id.

The Maryland statutory scheme for addressing the problem of compensation for victims of motor vehicle accidents is a comprehensive one. It provides sanctions and inducements for the enforcement of its prohibitions and prescriptions. It likewise provides specific remedies for the victims of financially irresponsible motor vehicle owners and operators. This Court finds nothing in the legislative scheme which supports plaintiffs contention that the legislature meant to imply an independent, private cause of action against financially irresponsible owners and operators. For the courts to create a heretofore unrecognized cause of action in the face of such a comprehensive and balanced statutory scheme would be to disregard traditional common law principles and to infringe upon the legislative prerogative. Believing that the courts of Maryland would decline such an invitation, this Court must reject plaintiffs contentions. Because Counts II and III of plaintiffs complaint do not state a claim for which relief can be granted, defendants’ motions to dismiss will be granted.

      . Plaintiff's Answer to defendants' Motions to Dismiss.

      . The parties and the Court agree that the substantive law of Maryland is applicable under familiar choice-of-law principles.

      . Maryland’s statutory scheme with regard to automobile liability insurance was summarized by the Maryland Court of Appeals in National Grange Mutual Insurance Co. v. Pinkney, 284 Md. 694, 700-05, 399 A.2d 877 (1979).

      . See Md. Transportation Code Ann. §§ 17-101, 17-103.

      . The policy "may exclude from coverage benefits for named insured or members of his family residing in the household when occupying, or struck as a pedestrian by, an uninsured motor vehicle that is owned by the named insured or a member of his immediate family residing in his household.” Md.Code Ann. Art. 48A § 541(c)(2) (1984 Cum.Supp.).

      . Such a claim may be made against MAIF provided that:
      (i) The claimant is not a spouse of the uninsured operator or the personal representative of such a spouse;
      (ii) The claimant was not, at the time of the accident, operating or riding in an uninsured motor vehicle owned by him and is not the personal representative of a person who was operating or riding in such a vehicle;
      (iii) The claimant was not, at the time of accident, operating a motor vehicle in violation of an order of suspension, cancellation, or revocation with respect to a certificate of registration or an operator's license, and is not the personal representative of a person so operating;
      (iv) The claim is not being made for damage to or destruction of an uninsured motor vehicle owned wholly or partly by him.
      (v) The claim is not made by or on behalf of any insurer by reason of the existence of a policy of insurance whereby the insurer is liable to pay, in whole or in part, the amount of the claim or by or on behalf of any insurer for any amount sought or claimed for damages to or destruction to the claimant’s or an insured’s real or personal property including automobiles by reason of collision with an automobile or object or by upset of the automobile, or by reason of coverage afforded the insured providing indemnification from injury or damages caused by uninsured motorist, and that no part of the amount to be paid out of the Fund is sought in lieu of making a claim or receiving a payment which is payable by reason of the existence of such a policy of insurance, and that no part of the amount so sought will be paid to an insurer to reimburse or otherwise indemnify the insurer in respect of any amount paid or payable by the insurer by reason of the existence of such a policy of insurance; and,
      (vi) The claimant is ineligible to make a claim arising from the same accident under Subtitle 33 of this article, the Maryland Insurance Guaranty Association.
      Md.Code Ann. Art 48A § 234H (1979 Replacement Volume and 1984 Cum.Supp.).

      . See footnotes 5 and 6, and Art. 48A § 243I.(e).


source: Caselaw Access Project

author: HERMAN JACOB WEBER, District Judge.

license: Public Domain

text:
    Emily P. GIVAN, Plaintiff, v. GREYHOUND LINES, INC., Claud Czekaj, Dennis Yatteau, John Doe I, John Doe II, Defendants.
    No. C-1-83-1959.
    United States District Court, S.D. Ohio, W.D.
    Aug. 12, 1985.

      Richard C. Curry, Charles H. Bartlett, Jr., Cincinnati, Ohio, for plaintiff.
    Lawrence J. Barty, Cincinnati, Ohio, Donald R. Day, Phoenix, Ariz., for defendants.
   MEMORANDUM AND ORDER

HERMAN JACOB WEBER, District Judge.

This matter is before the Court upon (1) defendants’ Motion to Dismiss Plaintiff’s Second Statement of Claim and Plaintiff’s Third Statement of Claim insofar as that claim relies upon allegations of sex discrimination in employment, pursuant to Fed.R. Civ.P. 12(b)(6) (doc, no. 10), and (2) defendants’ Motion for Partial Summary Judgment (doc. no. 11).

I

The Court will first review defendants’ motion to dismiss.

Plaintiff alleges in her Third Statement of Claim that she was discriminated against on the basis of her sex in violation of 42 U.S.C. § 1981.

Section 1981 is not applicable to claims of sex discrimination. Runyon v. McCrary, 427 U.S. 160, 168, 96 S.Ct. 2586, 2593, 49 L.Ed.2d 415 (1976). Consequently, plaintiff’s Third Statement of Claim is DISMISSED insofar as it presents a claim of sex discrimination.

Defendants maintain that plaintiff’s claim under 42 U.S.C. § 1985(3) is invalid for two reasons. The first is that plaintiff’s § 1985(3) claim fails to allege a valid conspiracy.

To come within § 1985(3), a complaint must allege that (1) the defendants did conspire or go in disguise on the highway or on the premises of another, (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws, and that (3) one or more of the conspirators did, or caused to be done, any act in furtherance of the object of the conspiracy, whereby another was injured in his person or property or deprived of having and exercising any right or privilege of a citizen of the United States. Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971).

The complaint in this case reveals that plaintiff has failed to plead any proper claim of conspiracy. Defendants Claud Czekaj and Dennis Yatteau are employees and supervisors for defendant Greyhound Lines, Inc. Plaintiff in fact asserts in paragraph five of the complaint that Mr. Czekaj and Mr. Yatteau at all material times were employees of Greyhound and were acting within the scope of their employment. Thus, under the facts and circumstances in this case, defendants comprise a single legal entity—a corporation acting exclusively through its employees, each within the scope of their employment—not capable of entering into a conspiracy. Doherty v. American Motors Corp., 728 F.2d 334, 339-40 (6th Cir. 1984). See also Girard v. 94th Street & 5th Avenue Corp., 530 F.2d 66, 70 (2d Cir.), cert. denied, 425 U.S. 974, 96 S.Ct. 2173, 48 L.Ed.2d 798 (1976); Baker v. Stuart Broadcasting Co., 505 F.2d 181 (8th Cir.1974), Dombrowski v. Dowling, 459 F.2d 190, 196 (7th Cir.1972); Fallis v. Dunbar, 386 F.Supp. 1117, 1121 (N.D.Ohio 1974), aff’d., 532 F.2d 1061 (6th Cir.1976). See generally 52 A.L.R.Fed. 106 (1981). But see Novotny v. Great American Federal Savings & Loan Association, 584 F.2d 1235, 1256-59 (3d Cir.1978), vacated on other grounds, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979). This case does not present a situation where individuals in a corporation act outside the scope of their employment.

This Court notes that in a criminal context a corporation may be convicted of conspiring with its officers, United States v. S & Vee Cartage Co., 704 F.2d 914 (6th Cir. 1988), cert. denied, — U.S. —, 104 S.Ct. 343, 78 L.Ed.2d 310 (1984); however, in this case, plaintiffs § 1985(3) conspiracy count must fail, as discussed previously.

The defendants’ second argument in support of their motion to dismiss the second claim is similarly well taken. The defendants correctly note that § 1985(3) may not be invoked to redress violations of Title VII. Great American Federal Savings & Loan Association v. Novotny, 442 U.S. 366, 372-78, 99 S.Ct. 2345, 2349-52, 60 L.Ed.2d 957 (1979). The plaintiff’s complaint alleges acts of employment discrimination in violation of Title VII. Since plaintiff has not articulated in the complaint any other rights, privileges or immunities infringed by the defendants’ actions, other than violations of Title VII and § 1981, the § 1985(3) claim fails even if plaintiff could demonstrate a conspiracy.

Finally, the plaintiff’s 42 U.S.C. § 1986 claim, contained in the Second Statement of Claim, must fail, as it was filed more than one year after the plaintiff’s cause had accrued. Additionally, as plaintiff has failed to state a valid § 1985 claim, the § 1986 claim must similarly fail. Mollnow v. Carlton, 716 F.2d 627, 632 (9th Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 1595, 80 L.Ed.2d 126 (1984).

The motion to dismiss the second claim is GRANTED. The Second Statement of Claim is DISMISSED.

II

Defendants raise two issues in their Motion for Summary Judgment. Initially, defendants maintain that they should be granted summary judgment on the claim that plaintiff was involuntariy compelled to resign her employment from Greyhound Lines, Inc.

The Agreed Statement of Facts concerning the motion reveals that plaintiff Emily Givan began employment as a bus driver with Greyhound Lines in June, 1982. On or about August 1, 1982, plaintiff was driving a bus which “sideswiped” a guard post at the Knoxville, Tennessee terminal. The “sideswiping incident” was investigated by Greyhound employees Yatteau and Czekaj. On or about September 3, 1982, plaintiff was informed by Mr. Yatteau that because she allegedly failed to report the “sideswiping incident of August 1,” she must either resign or be discharged. Plaintiff resigned on September 3, 1982. Defendants Yatteau and Czekaj were supervisory employees of Greyhound. Plaintiff was subordinate to Yatteau, who reported in turn to Czekaj.

Plaintiff filed a grievance challenging her discharge with her collective bargaining representative. The grievance was eventually heard by a Board of Arbitration, and the arbitrator determined that plaintiff voluntarily resigned to gain the advantage of a better paper record for subsequent employment than would have been her “wont” if she had declined resignation and was involuntarily terminated with the option to grieve the just cause of the Company’s action. The grievance was therefore dismissed, as plaintiff in the arbitrator’s eyes, gave up any right to resort to the grievance procedure to challenge an alleged discharge which never took place.

In instituting an action under Title VII, an employee is not seeking review of an arbitrator’s decision. Rather, the employee is asserting a statutory right independent of the arbitration process. Alexander v. Gardner-Denver Co., 415 U.S. 36, 54, 94 S.Ct. 1011, 1022, 39 L.Ed.2d 147 (1974). The Supreme Court went on to state in Alexander at 59-60, 94 S.Ct. at 1025:

... [T]he federal policy favoring arbitration of labor disputes and the federal policy against discriminatory employment practices can best be accommodated by permitting an employee to pursue fully both his remedy under the grievance-arbitration clause of a collective bargaining agreement and his cause of action under Title VII. The federal court should consider the employee’s claim de novo. The arbitral decision may be admitted as evidence and accorded such weight as the court deems appropriate. (Emphasis added.)

While an arbitration decision in favor of the employer is sufficient to carry the employer’s burden of articulating some legitimate, nondiscriminatory reason for the employee’s rejection, the arbitrator’s decision is not conclusive to the issue, nor even persuasive if the court deems it not to be. Becton v. Detroit Terminal of Consolidated Freightways, 687 F.2d 140, 142 (6th Cir.1982), cert. denied, 460 U.S. 1040, 103 S.Ct. 1432, 75 L.Ed.2d 791 (1983). See also Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973).

Pursuant to Fed.R.Civ.P. 56(c), summary judgment shall not be rendered unless the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Further, the evidence and pleadings must be construed in a light most favorable to the non-moving party.

Here, construing the pleadings and evidence most favorably for plaintiff, there is a genuine issue whether plaintiff voluntarily resigned her employment or whether she was the victim of discriminatory behavior by defendant.

Defendants’ second branch to its Motion for Summary Judgment raises the issue of dismissal of defendants Yatteau and Czekaj under the First Statement of Claim (42 U.S.C. § 2000e et seq.), as defendants assert that plaintiff failed to file Equal Employment Opportunity Commission (EEOC) discrimination charges against the two individual defendants.

A charge under 42 U.S.C. § 2000e must be filed with the EEOC within 180 days of the alleged unlawful employment practice in most cases. Upon compliance with certain procedures, a civil action may be brought against the respondent named in the charge. 42 U.S.C. § 2000e-5(e) and (f)d).

The charge in this action, filed by plaintiff, listed as the “employer, labor organization, employment agency, apprenticeship committee, state or local government agency who discriminated against me” as Greyhound Lines. The particulars listed by plaintiff are:

I. I am a Black female who has worked successfully for the Company since April 26, 1982. I was sexually and otherwise harassed, unjustly disciplined and forced to resign. I feel this is due to my race, Black, and sex, female.
II. On September 3, 1982,1 was forced to sign a resignation by Dennis Checki (sic), Supervisor. He alleged I failed to report an accident approximately one month earlier, which is untrue.
III. I feel that I have been discriminated against because of my sex, female and race, Black, in that:
A. I was touched and told I would not pass the D.C.T. test by Fred Daniels, Supervisor, unless I ‘went to bed with him.’
B. The Company put a Driving Instructor in my bus after I had completed training. This was demeaning, as it was not done with Caucasian male Drivers.
C. The Company did not support me in removing an intoxicated passenger from my bus even though I complied with procedures. When I asked for relief on the same trip in Louisville after the passenger had harassed me, I was denied this right even though I had a headache and should not have been forced to return to Cincinnati.
D. I attempted to file a grievance, but the Company claimed it was untimely. I did submit it in a timely fashion.
E. I feel the Company ‘set me up’ for constructive discharge because I did report a sideswipe accident in Knoxville to Robert Colvin, Supervisor. He told me no written report was necessary, yet the rule book was quoted to me. There are two conflicting rules. I was forced to resign by Dennis Checki (sic), who said he would discharge me if I did not sign a resignation statement.

The scope of the EEOC investigation triggered by an EEOC charge defines the substantive limits of a subsequent Title VII action, and also the parties potentially liable in that action. Terrell v. United States Pipe & Foundary Co., 644 F.2d 1112, 1123 (5th Cir.1981), vacated on other grounds, 456 U.S. 955, 102 S.Ct. 2028, 72 L.Ed.2d 479 (1982). The rule in the Sixth Circuit is that the EEOC’s complaint is limited to the scope of the EEOC investigation reasonably expected to grow out of the charge of discrimination. Charges of discrimination, often filed by lay complainants, should not result in the restriction of subsequent complaints based on procedural technicalities or the failure of the charges to contain the exact wording which might be required in a judicial pleading. Equal Employment Opportunity Commission v. McCall Printing Corp., 633 F.2d 1232, 1235 (6th Cir.1980).

The scope of the EEOC investigation which should have reasonably grown out of the administrative charge filed by plaintiff would have included Mr. Claud Czekaj and Mr. Dennis Yatteau. In fact, the defendants’ names were combined into one name in the particulars set forth by plaintiff in the EEOC charge.

Consequently, both Motions for Summary Judgment are DENIED.

It is so ORDERED.


author: JOSÉ A. CABRANES, District Judge.

text:
    Karen PINEMAN, et al. v. William G. OECHSLIN, Chairman of the State Employees Retirement Commission, et al.
    Civ. No. H-77-164 (J.A.C.).
    United States District Court, D. Connecticut.
    Aug. 13, 1985.

      Paul W. Orth, Hoppin, Carey & Powell, Hartford, Conn., for plaintiffs.
    Peter T. Zarella, Richard R. Brown, Brown, Paindiris & Zarella, Hartford, Conn., for defendants.
   RULING ON MOTION FOR DETERMINATION OF THE STATUS OF THE PROCEEDING

JOSÉ A. CABRANES, District Judge.

This class action is a sequel to this court’s decision in Fitzpatrick v. Bitzer, 390 F.Supp. 278 (D.Conn.1974), aff’d in part and rev’d in part on grounds not relevant here, 519 F.2d 559 (2d Cir.1975), aff’d in part and rev’d in part on grounds not relevant here, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). In that case, decided in 1974, then-Chief Judge T. Emmet Clarie held invalid the provisions of the Connecticut State Employees Retirement Act, Conn.Gen.Stat. § 5-152 et seq. (“the Act”), which required male employees of the state to work five years longer to earn pension benefits than similarly situated female employees.

I.

Following the decision in Fitzpatrick v. Bitzer, supra, the state legislature in 1975 amended the Act to establish for all employees retirement ages identical to the higher retirement ages previously applicable only to male employees. In this action, certain male and female employees challenge the constitutionality of the 1975 amendment to the Act.

On April 16, 1980, this court granted the plaintiffs’ motion for summary judgment, finding that the Act created a contractual obligation requiring the state to maintain the pre-1975 retirement ages for female state employees who had not yet begun receiving retirement benefits when the Act was amended. See Pineman v. Oechslin, 494 F.Supp. 525, 545 (D.Conn.1980) (“Pine-man I”), vacated and remanded on grounds of abstention, 637 F.2d 601, 604 (2d Cir.1981) (“Pineman II”). In making this finding, this court in effect predicted that the Connecticut state courts would recognize contractual rights to public pensions arising immediately upon entry into state employment. The court concluded that the 1975 amendment was an unreasonable impairment of a contractual obligation, in contravention of the Contract Clause of the United States Constitution. Pineman I, supra, 494 F.Supp. at 553.

On appeal, the Court of Appeals observed that “[n]o Connecticut court has yet ruled on the precise question whether state employees have vested pension rights prior to becoming eligible to receive benefits.” Pineman II, supra, 637 F.2d at 604. The Court of Appeals declined to rule on this question of state law; rather, it held that abstention was appropriate “to afford the state courts an opportunity to adjudicate the contract law aspect of appellees’ claim, even though the federal courts, thereafter resolving the constitutional issue, will not be obliged to give the state court ruling the conclusive deference that abstention normally entails.” Id. at 605. The Court of Appeals vacated the judgment of this court, and remanded the case for further proceedings in accordance with its opinion. The Court of Appeals also directed that, following the procedure established in England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964), this court should retain jurisdiction pending the state court determination of the state law question. Pineman II, 637 F.2d at 606 n. 9. In accordance with the decision of the Court of Appeals, this court entered an appropriate abstention order on August 4, 1981.

The plaintiffs filed a complaint in Connecticut Superior Court on August 25, 1981, and, invoking the doctrine of England v. Louisiana State Board of Medical Examiners, supra, reserved their right to return to this court. On May 4, 1984, the Superior Court ruled that no contractual obligation was created by the Act. That decision was affirmed by the Connecticut Supreme Court in a ruling issued on March 12, 1985. Pineman v. Oechslin, 195 Conn. 405, 488 A.2d 803 (1985) (“Pineman IIP’).

Pursuant to a scheduling order entered by this court on April 22, 1985, the defendants on June 17, 1985 filed the instant Motion for Determination of the Status of the Proceeding, as well as a Motion for Permission to File Amended Answers and Add Special Defenses, and a Motion for Permission to File Responses to Plaintiffs Requests for Admission Out of Order. At a status conference held on July 2, 1985, the defendants requested that the court rule first on the Motion for Determination of the Status of the Proceeding. Without intimating a view on whether a favorable ruling on the first motion would render moot the defendants’ remaining motions, the court agreed to hold in abeyance consideration of the defendants’ remaining motions. Oral argument on the instant motion was heard on July 29, 1985, and the motion is now ripe for decision.

II.

With this motion, the defendants ask the court to declare that this case is now a “de novo proceeding,” thereby “permitting the defendants the appropriate time allotted under the Federal Rules of Civil Procedure for filing motions directed at the complaint.” Motion for Determination of the Status of the Proceeding (filed June 17, 1985) at 1. The defendants contend that the Court of Appeals’ order vaeating the judgment and remanding the case for further proceedings requires this court to treat the action as if the complaint had just been filed. See Memorandum in Support of Motion for Determination of the Status of the Proceeding (filed June 17, 1985) (“Defendants’ Memorandum”) at 4-5.

As counsel for the defendants conceded at oral argument, see Certified Official Transcript of Proceedings Held July 29, 1985 (filed Aug. 7, 1985) (“Tr.”) at 19, 26, there is no authority for the argument that the vacatur of a judgment automatically voids all proceedings, pleadings, and orders that preceded entry of the judgment. Indeed, it is difficult to imagine that such authority could exist. The vacatur of a judgment operates to annul the judgment and, to the extent indicated, invalidates the ruling that supports the judgment. Although the Defendants’ Memorandum refers to the prior proceedings in the district court as the “vacated district court proceeding,” Defendants’ Memorandum at 10, it is only this court’s judgment, and particular aspects of the ruling underlying its judgment, that were vacated by the Court of Appeals, not the entire three-year course of proceedings before this court antedating the entry of this court’s judgment.

Nothing in the ruling issued by the Court of Appeals supports the defendants’ argument that the appellate court intended this court to conduct a “de novo proceeding.” The Court of Appeals directed that the judgment be vacated and that the district court retain jurisdiction pending the state court’s determination of a state law question. Pineman II, supra, 637 F.2d at 606 n. 9. The Court of Appeals anticipated two possible courses of action upon the return of the case to this court: if the state courts adopted the view of state law articulated by this court in 1980, this court “may enter a fresh judgment embodying its view of the constitutionality” of the 1975 amendment; if the state courts rejected the view of state law adopted by this court in 1980, this court “will have to consider the contract issue independently, enlightened by the reasoning of the state courts.” Id.

The command of the Court of Appeals that the district court retain jurisdiction of the case and, if necessary, reconsider its view of the contract issue “enlightened by the reasoning of the state courts,” see id., belies the defendants’ argument that the Court of Appeals intended this court to begin the action anew. Had the Court of Appeals intended for this court to undertake additional discovery or to permit the parties to amend their pleadings, it easily could have instructed this court to do so. See, e.g., Ruhlin v. New York Life Insurance Co., 304 U.S. 202, 208, 58 S.Ct. 860, 862, 82 L.Ed. 1290 (1938) (judgment vacated and action remanded to district court, with explicit directions to permit the parties to amend their pleadings).

Treating as void all proceedings following the filing of the complaint also would not serve to correct any error identified by the Court of Appeals. The Court of Appeals found no error in the conduct of the case other than the district court’s failure to have the parties seek a determination by the state courts of an undecided question of state law. That error can be corrected by the court’s reconsideration of the constitutional questions presented, having now had the benefit of the state court’s views on the previously undecided question of state law. Inasmuch as the pleadings, admissions, and orders filed prior to the court’s ruling were in no sense implicated by the 1981 decision of the Court of Appeals, they should remain in full effect.

III.

The defendants also contend that a de novo proceeding is required by the principles of abstention upon which the 1981 decision of the Court of Appeals was based. See Defendants’ Memorandum at 6. However, the defendants have not drawn to this court’s attention any case involving the abstention doctrine where all events that occured prior to the entry of the abstention order were treated as a nullity. As counsel for the defendants conceded at oral argument, nothing in the abstention cases relied upon by the Court of Appeals directly supports the defendants’ view. See Tr. 19; Railroad Commission v. Pullman, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941); Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). Nor have the defendants persuaded the court that treating this action as a de novo proceeding would assist this court in giving the appropriate deference to the state courts’ views.

IV.

The final argument advanced in support of the motion is that the interests of justice would best be served by permitting the defendants to amend their answers and withdraw their admissions. Tr. 28-37. Specifically, the defendants contend that they should be permitted to amend their answers to take into account defenses of which they were unaware prior to the rulings of the state courts. Id. They also contend that the issues raised in this case should be decided on the basis of all of the testimony introduced in the state courts, rather than the arguably limited record that was before this court on the plaintiffs’ motion for summary judgment. Id.

These arguments, while possibly persuasive, are irrelevant to the instant motion. The Motion for Determination of the Status of the Proceeding seeks a declaration that the action of the Court of Appeals rendered void all of the pleadings and admissions filed after the filing of the complaint. If the defendants seek to amend their answers and to amend or withdraw their admissions, they may seek leave to do so pursuant to Rules 15 and 36, Fed.R. Civ.P. The defendants’ arguments may be relevant to motions filed pursuant to these rules; they are not applicable to the instant motion. See Tr. 45.

Conclusion

For the reasons stated above, the defendants’ Motion for Determination of the Status of the Proceeding (filed June 17, 1985) is denied.

It is so ordered.

      . The defendants agreed at oral argument with the court’s observation that, in the defendants’ view, the effect of a vacatur of a judgment is "the legal equivalent of a blast from a ray gun in a science fiction movie,” that is, the object of the blast disappears without a trace. See Certified Official Transcript of Proceedings Held July 29, 1985 (filed Aug. 7, 1985) at 5-6, 8. The defendants apparently believe that, in this case, the object of the blast is not only the judgment but the entire course of proceedings antedating the judgment.

      . In fact, the defendants have sought leave to amend their answers and withdraw or amend their admissions. See Motion for Permission to File Amended Answers and Add Special Defenses (filed June 17, 1985); Motion for Permission to File Responses to Plaintiffs Requests for Admission Out of Order (filed June 17, 1985). At the defendants' request, consideration of these motions has been held in abeyance pending a ruling on the instant motion. See supra, at 1229.


author: ALLEN, Chief Judge.

text:
    NINTH & O STREET BAPTIST CHURCH, Plaintiff, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Grabon, W.S., Brooks, Fred D., Felton, Sammie, Defendants.
    Civ. A. No. C 85-0768-L(A).
    United States District Court, W.D. Kentucky, at Louisville.
    Aug. 16, 1985.
    George R. Rawlings, Henry V. Sanders, Louisville, Ky., for plaintiff.
    Michael Spalding, Asst. U.S. Atty., Katherine Kores, Sr. Trial Atty., E.E.O.C., Memphis, Tenn., Fred Brooks, Area Director, Sammie Felton, E.E.O.C., Louisville, Ky., for defendants.
   FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION

ALLEN, Chief Judge.

Plaintiff Ninth & 0 Street Baptist Church of Louisville, Kentucky [hereinafter “Church”], previously obtained a temporary restraining order enjoining and restraining defendant Equal Employment Opportunity Commission [hereinafter “EEOC”] from taking, issuing or enforcing any subpoenas against the plaintiff or from proceeding in any manner with an investigative or enforcement activity. Following the issuance of the temporary restraining order, a preliminary injunction hearing was held on August 13, 1985; and the matter is now ripe for a determination by this Court.

The EEOC subpoena, which is the subject matter of this controversy, is directed to the “Reverend Laverne Butler, Ninth & 0 Baptist Church, Early Childhood Development Center, In the Matter of Janice A. Teagardner.” Before setting out the details of the subpoena, we note that Janice A. Teagardner is a white female who was discharged from her position as a teacher at the Early Childhood Development Center [hereinafter “Center”] on or about April 18, 1985. Some three days prior to the discharge, plaintiff announced its April 8, 1985, policy decision that all employees of the Center would be required to join the Church and that current staff who were members would be required to be active in the Church in order to retain their Center employment. Plaintiff also announced that the deadline for joining the Church would be September 1, 1985, with all non-member employees thereafter subject to discharge. See Exhibit 4 to Memorandum in Support of Plaintiffs Motion for Temporary Restraining Order and Preliminary Injunction.

Mrs. Teagardner, who is a Baptist but not a member of Ninth & 0, was concerned about this announcement. It appears from statements made by plaintiffs counsel that Mrs. Teagardner’s sister then went to the EEOC to determine what Mrs. Teagardner’s rights would be under the newly announced Church policy.

On April 30, 1985, Mrs. Teagardner filed a complaint with the EEOC alleging a retaliatory discharge in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. In this complaint Mrs. Teagardner stated that she was discharged because her employer had learned that the EEOC had been contacted about its recent personnel policy. She also stated that other employees who had not contacted the EEOC were not discharged. Her charge, therefore, specifically arises under 42 U.S.C. § 2000e-3, commonly referred to as the retaliation clause.

The subpoena addressed to the plaintiff is dated July 10, 1985, and requires plaintiff to bring to the EEOC all documents describing the relationship of the Ninth and 0 Street Baptist Church to the Center’s day care workers; all documents describing the relationship of the Church to the children who attend the Center and their parents; all documents pertaining to the services provided by the Center; all documents and contracts relating to the day care workers at the Center; all documents describing their responsibilities; all documents describing the Center’s policies relating to discipline; a copy of Mrs. Teagardner’s personnel file; and a request for access to the personnel files of current and terminated employees during the time period of July 1, 1984 to the present.

Plaintiff vigorously contends its First Amendment rights would be violated if the EEOC were allowed to conduct any investigation into matters pertaining to Mrs. Teagardner and to its policies. Plaintiff further states that because Mrs. Teagardner’s discharge was based on “her repeated conduct in ‘sowing discord among the brethren’ as condemned” in Proverbs Ch. 6, verses 16-19, this basic religious belief is protected by the First Amendment and not subject to interference by the EEOC. See Plaintiff’s Memorandum in Support. EEOC, on the other hand, contends that it has the authority to determine whether it has jurisdiction in this matter, that the controversy is not ripe for review, that the plaintiff will not suffer irreparable harm, and that the public interest would not be served by the issuance of a preliminary injunction.

Defendant cites several cases which help to resolve this controversy. In EEOC v. Mississippi College, 626 F.2d 477 (5th Cir. 1980), cert. denied, 453 U.S. 912, 101 S.Ct. 3143, 69 L.Ed.2d 994 (1981), EEOC appealed the district court’s denial of a petition seeking enforcement of a subpoena issued in cpnnection with its investigation of a charge of discrimination filed against Mississippi College. Mississippi College was owned and operated by the Mississippi Baptist Convention, which acquired the college in 1850. Ninety-five percent of the faculty members and eighty-eight percent of the students were Baptists. The college sought to assure that educational knowledge occurred in a Christian atmosphere and that the faculty and administrative officers were committed to the principle that the best preparation for life is a program of cultural and human studies permeated by the Christian ideal as evidenced in the tenets, practices and customs of the Convention and the Bible.

Although the college hired only males to teach biblical courses, it did employ Dr. Patricia Summers as a part-time assistant professor in the psychology department. While employed, Dr. Sommers expressed a desire for promotion to a vacant full-time slot. When she was not promoted, but a male was, she filed a charge of discrimination with the EEOC.

As in this case, the college refused to comply voluntarily with the EEOC’s request for information which it deemed necessary to investigate the charges. When the college refused, the EEOC brought action in the district court seeking enforcement of the subpoena; but the district court denied enforcement. EEOC v. Mississippi College, 451 F.Supp. 564 (S.D.Miss. 1978).

On appeal, the Fifth Circuit, in vacating the district court’s order and remanding on the question of which portions of the EEOC subpoena should be enforced, 626 F.2d at 489, first stated that if a religious institution of the type described in Title VII’s exemption clause, 42 U.S.C. § 2000e-l, presents convincing evidence that its challenged employment practice results from discrimination on the basis of religion, then the EEOC is deprived of jurisdiction to investigate further to determine whether the religious discrimination was a pretext for some other form of discrimination prohibited by Title VII. However, the Court went on to hold that even if an institution falls within the exemption of § 2000e-1, the EEOC retains the authority to investigate allegations of discrimination based upon sex or race. Id. at 485.

Moreover, in discussing the college’s First Amendment rights, the Fifth Circuit held that the application of Title VII to the college violated neither the Establishment Clause nor the Free Exercise Clause. Id. at 489. In determining whether a federal statute violates the Establishment Clause, the Fifth Circuit relied on the Supreme Court’s three prong test: first, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; and third, it must not foster excessive government entanglement with religion. Id. at 486 (citing Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971); Committee for Public Education and Religious Liberty v. Regan, 444 U.S. 646, 100 S.Ct. 840, 63 L.Ed.2d 94 (1980); Roemer v. Maryland Public Works Bd., 426 U.S. 736, 96 S.Ct. 2337, 49 L.Ed.2d 179 (1976)). This Court is convinced that Title VII has a secular legislative purpose, that its effect neither advances nor inhibits religion, and that its application to the plaintiff does not foster excessive government entanglement with religion. An investigation by the EEOC to determine whether it has jurisdiction will only minimally intrude upon the Center’s and Ninth & O’s religious beliefs. No on-going interference with the religious practices of the Church will result from an EEOC investigation. Moreover, the EEOC has no power to require the Center or the Church to change its employment policies as only a federal court can require such change.

In finding no violation of the Free Exercise Clause, the Fifth Circuit again relied on criteria emphasized by the Supreme Court: namely, the magnitude of the statute’s impact upon the exercise of religious belief; the existence of a compelling governmental interest justifying the burden imposed upon the exercise of the religious belief; and the extent to which recognition of an exemption from the statute would impede governmental objectives. Id. 626 F.2d at 488 (citing Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963)). This Court agrees with the Fifth Circuit’s analysis and conclusions.

In EEOC v. Pacific Press Pub. Ass’n., 676 F.2d 1272 (9th Cir.1982), the Ninth Circuit Court of Appeals affirmed the district court’s judgment that defendant Pacific Press, a non-profit religious publishing house, had violated Title VII by terminating a female employee in retaliation for her filing of discrimination charges with the EEOC. Pacific Press argued that because its dismissal of the employee was based on religious grounds, namely, her violation of church doctrines prohibiting lawsuits by members against the Adventist Church, it was exempt from the operation of Title VII. The defendant also argued that Title VII is unconstitutional under the First Amendment if applied to religious organizations.

In rejecting these arguments, the Court of Appeals found that by enacting Title VII, Congress clearly targeted the elimination of all forms of discrimination as a “highest priority.” Id. at 1280. The Court pointed out that Congress’ purpose to end discrimination is equally if not more compelling than other interests that have been held to justify legislation that burdened the exercise of religious convictions. Id.

Significantly, the Court also pointed out that an individual has a constitutional right to inform the government of violations of federal law. Id. (citing In re Quarles, 158 U.S. 532, 15 S.Ct. 959, 39 L.Ed. 1080 (1895) and Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97 (1908)). As noted by the Ninth Circuit, “protection of employees who participate in EEOC proceedings from retalitory job actions is essential to accomplish the purpose of Title VII.” Id. 676 F.2d at 1281.

In EEOC v. Southwestern Bap. Theological Seminary, 651 F.2d 277 (5th Cir.1981), the Fifth Circuit in part reversed the district court’s judgment that the seminary was not required to file EEOC reporting forms. The seminary, a non-profit corporation controlled by the Southern Baptist Convention, argued that under the § 702 exemption in Title VII, it was exempt from the reporting requirement. Although the Court of Appeals held that the seminary was an institution entitled to the status of a church, it nonetheless was required under 29 C.F.R. § 1602.50 to fill out Report EEO-6. According to the Court, the burden of filing the information required in the report was not so heavy as to require a finding that the Free Exercise Clause of the First Amendment was violated. In addition, the Court noted that every fact set out in the report could be learned by the exercise of EEOC’s subpoena power, and that enforcement of a subpoena in the context of an actual charge of discrimination is vital to the enforcement of Title VII. The Court did hold, however, that the seminary did not have to answer the form insofar as it applied to the employment relation between the seminary and its faculty because the faculty instructed the seminary in the whole of religious doctrine and only religiously-oriented courses were taught.

We conclude that at this stage of the proceedings the EEOC has the right to conduct an investigation to determine whether it has jurisdiction over the Center and Mrs. Teagardner’s claim. While the EEOC has initiated a broad and sweeping subpoena, it has no power to enforce any of its findings, all of which are subject to a de novo review by a district court. In addition, while the EEOC investigation procedures may be somewhat burdensome, they will not interfere with the on-going activities of the Church and the Center.

In reaching a conclusion that a preliminary injunction should not be granted, we observe that we are governed by the standards set forth in Mason County Medical Ass’n. v. Knebel, 563 F.2d 256 (6th Cir.1977). In order to determine whether a preliminary injunction should issue, the district court must consider: (1) whether plaintiff has shown a strong or substantial likelihood or probability of success on the merits; (2) whether the plaintiff has shown irreparable damage; (3) whether the issuance would cause substantial harm to others; and (4) whether the public interest would be served by the issuance. Id. at 261.

In the case at bar, we believe that plaintiff has not demonstrated the probability of success on the merits or of irreparable damage. We also believe that plaintiff has failed to show that its interest in religious freedom under the facts is superior to the public interest in having Title VII administered in a manner that protects all employees to whom it extends its protection. Therefore,

A judgment in accordance with this opinion will be entered this day.

JUDGMENT

Plaintiff, having moved for a preliminary injunction, and the Court, having heard the arguments of counsel and having considered the matters of record, and having entered its Findings of Fact, Conclusions of Law and Memorandum Opinion,

IT IS ORDERED AND ADJUDGED that the motion of the plaintiff for a preliminary injunction be, and hereby is, denied.

IT IS FURTHER ORDERED AND ADJUDGED that the temporary restraining order previously entered be, and hereby is, vacated.

This is an appealable judgment, and there is no just cause for delay.