author: NANGLE, Chief Judge.

text:
    David B. WASHINGTON, Plaintiff, v. DAYTON HUDSON CORPORATION, Defendant.
    No. 83-1584C(1).
    United States District Court E.D. Missouri, E.D.
    June 6, 1985.

      David B. Washington, pro se.
    Edward J. Griesedieck, George J. Bude, St. Louis, Mo., for defendant.
   MEMORANDUM

NANGLE, Chief Judge.

Plaintiff David B. Washington brought this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Plaintiff alleges that he was discharged from employment with defendant on account of his race and that he was denied a promotion and treated differently than similarly situated white employees on account of his race.

This case was tried to this Court sitting without a jury. This Court having considered the pleadings, the testimony of the witnesses, the documents in evidence, and the stipulations of the parties, and being fully advised in the premises, hereby makes the following findings of fact and conclusions of law, as required by Rule 52 of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 52.

A. FINDINGS OF FACT

1. Plaintiff David B. Washington is a black male resident of the State of Missouri and was at all times relevant herein a citizen of the United States.

2. Defendant Dayton Hudson Corporation owns Target Stores, a retail department store chain which has several stores in the St. Louis area.

3. Plaintiff was employed by Target Stores from May 1, 1977 through February 28, 1983. He was originally employed at the Target Store located in University City, Missouri, and was promoted in April, 1981, to the position of Total Store Merchandise Manager at the Target Store located in Kirkwood, Missouri. Both University City and Kirkwood are municipalities located in St. Louis County, Missouri.

4. As the Total Store Merchandise Manager, plaintiff held the second highest position in the store, next to the Store Manager. His duties included responsibility for total store merchandising, setting up and maintenance of store sales areas and the stock room, display, ordering and replenishing merchandise, and supervising department managers. There were eight (8) department managers under plaintiffs supervision. Seven (7) of these managers were white and one (1) was black.

5. Prior to January 1, 1983, the Kirk-wood Store Manager was Jim Cisco, a white male. Plaintiff reported directly to Mr. Cisco, as did Bill Meyers, a white male and Operations Manager. In addition to plaintiff and Bill Meyers, Vicki Wainz, a white female and Personnel Coordinator for the Kirkwood store, also reported directly to the Store Manager. Miss Wainz was responsible for time cards, time card maintenance and calculations, payroll and record keeping, and training of employees. Defendant’s Regional Personnel Manager was Connie Lindemann, a white female. Gary White, a black male, was the District Manager for the district in which the Kirk-wood Target Store was located.

6. During the period that plaintiff was stationed at the University City store, plaintiff received good performance reviews and was commended for taking on extra duties.

7. Upon his arrival at the Kirkwood store, plaintiff met with the Store Manager, Mr. Cisco, to discuss several problems that existed at the store and to formulate a plan to solve those problems. Among the problems at the Kirkwood store were poor merchandising standards and poor employee discipline. Part of the plan arrived at by plaintiff and Mr. Cisco consisted of plaintiff conducting weekly tours of different areas of the store, taking notes on the conditions therein and giving said notes to the various department managers. Approximately six months after plaintiff arrived at the Kirkwood store, several department managers went to Mr. Cisco and complained to him that they found plaintiff’s management style threatening. Mr. Cisco reported this to plaintiff and at that time Mr. Cisco recommended that plaintiff continue with the agreed upon plan. Later, plaintiff was directed to cease taking notes on his department stores.

8. On August 31, 1981, plaintiff received his mid year performance review. It was completed by Mr. Cisco and plaintiff signed it. Among the weaknesses listed therein were that plaintiff over-delegated responsibility, polarized personalities, and was insensitive to his subordinate’s needs. Under the section entitled “Goals, Objectives Or Position Responsibilities Not Attained As Agreed Upon”, were the following entries: 1) “Store housekeeping and zone defense standards inconsistent and at times unsatisfactory”; and 2) “Stockrooms not maintained daily in organized fashion”. These criticisms were true. On this review, plaintiff received an overall rating of “S”, or satisfactory.

9. On March 25, 1982, plaintiff received his annual performance review. It was signed by both plaintiff and Mr. Cisco. Under the heading of “Goals, Objectives Or Position Responsibilities Not Attained”, were the following entries: 1) “Sales floor, stockroom standards not consistently maintained, at times excellent, at times substandard”; and 2) “Effective management of people, sensitive to needs, two way communication”. Under the heading of “Supervisor’s Comments” and the subheading entitled “Development Needs”, were the following:

1. Authoritarian style and effort to resolve tasks has led to a perception of insensitivity to subordinates by subordinates. It is noted that this problem has been serviced and addressed in an effort for resolution. Improvement is being demonstrated.
2. At times gives incorrect responses when facts are unknown.
3. Use of check list to inforce [sic] standards impairs two-way communication: at times common sense does not prevail.

These criticisms were true. Under the heading “Career Development Plans”, the following entry was made: “Continue to develop a personal style of management that addresses people needs as well as task accomplishment.” In addition, Mr. Cisco stated in the review that plaintiff was ready for promotion to a “C” Store Manager in June, 1982. Plaintiff’s overall score, out of a possible score of 100, on this review was 63.

10. In June, 1982, there was a Store Manager opening at the Target Store in Alton, Illinois. Plaintiff was not given this promotion. Rex Cheek, an American Indian, was given the position. His score on his March, 1982, performance review was 69. Rex Cheek was given the position due to his higher score.

11. The entry in plaintiff’s March, 1982 performance review that he was ready for promotion in June, 1982, was merely a recommendation by Mr. Cisco. Mr. Cisco had no authority to promote plaintiff to the position of Store Manager at another store. Only Gary White, the District Manager, and Connie Lindemann, the Regional Personnel Coordinator, had the authority to promote an individual to Store Manager. Plaintiff’s testimony that he believed that Mr. Cisco could promote him to Store Manager was not credible.

12. On August 21, 1982, plaintiff received an “Executive Mid-Year Performance Review”. It was signed by Mr. Cisco and plaintiff. Under the heading “Goals, Objectives Or Position Responsibilities Not Attained As Agreed Upon”, were the following two entries: 1) “Stock room maintenance inconsistent”; and 2) “Zone defense inconsistent”. Under the heading of “Summary of Job Related Strengths And Development Needs” and the subheading “Weaknesses” were the following:

1. At times drops total store concern causing performance lapses at front lane/service desk operation.
2. Lack of consistency in own and subordinates work level causing performance lapses that effect the total store appearance and sales result. A high level of consistency incorporating store, district and company programs is required to successfully manage a Target Store.

These criticisms were true.

13. On September 1, 1982, plaintiff sent a memo to his department managers in which he essentially blamed them for the comments and the developmental needs/weaknesses section of his mid year review. As a result, plaintiff received a memorandum from Gary White stating that plaintiff’s memorandum to his department managers was “totally out of order and unprofessional, as well as, poor use of management supervision skills.” Gary White demanded that plaintiff apologize to his department managers. Plaintiff did apologize to his department managers in writing on September 15, 1982, as follows:

The memo was not done in a professional manner and I consider it out of order as well as a poor use of management supervision skills. Problems that relate to my performance review should not be a group issue. I should have discussed individual developmental needs pertaining to specific merchandising standards. I feel that each of you deserves an apology in writing and in person. My results orientated nature should not replace interpersonal skills.

14. During the summer and fall of 1982, several store tours by plaintiff’s superiors turned up several deficiencies in merchandising practices for which plaintiff was responsible. For example, in a memorandum dated September 10, 1982, from Mr. Cisco to plaintiff, Mr. Cisco stated, as follows:

As we have discussed in the past and again today, [the Kirkwood Target Store] has a need for more awareness and attention to the basic part of merchandising: more specifically planogram maintenance, in-stock position, assuring that items out on the sales floor are pulled from the stockroom, signing, sample tagging and consistent high level of zoning. The past several tours have not been good. The last tour with Mark Dawkins was acutely embarrassing with the hardware planogram not complete, sales floor outs with like merchandise in the stockroom, and signing.
You must be aware that this level of performance cannot continue. I expect immediate improvement in the items mentioned above, and a commitment from you that reoccurrences will not happen again.

In a responsive memorandum dated October 22, 1982, plaintiff stated that he “had profound guilt feeling that [his] merchandising skills were substandard.” On November 10, 1982, Mr. Cisco sent plaintiff a memorandum concerning the stockroom problem which stated, as follows:

The Fire Marshall responded to one of our employees who made several complaints about the conditions of our stockrooms regarding fire safety.
Several fire exits were blocked. This has been discussed in the past, and has been a topic on the weekly security activities report.
Needless to say, this will not be allowed to continue. The standard is for no fire exits to be blocked at any time.

In addition, a program that was designed to make sure that the store’s sales stock was replaced promptly, known as the “White Dot” program, was not being implemented.

15. Target Stores employed a two step industrial due process procedure. Under the first step, a “Phase I Warning Notice” was given to the employee. This notice consisted of three sections: 1) “Problem Definition”; 2) “Improvement Required”; and 3) “Suggested Improvement Method”. A time period was established within which the company’s requirements were to be met and the failure to meet said requirements within the specified date resulted in the issuance of a “Phase II Warning Notice”. A Phase II Warning Notice also gave the employee a deadline to comply with company requirements, but the failure to so comply would result in termination.

16. On November 27, 1982, plaintiff received a Phase I Warning Notice. The problem was defined as “failure to follow instructions/unsatisfactory work performance”. Plaintiff was given until December 27, 1982, to meet the company’s requirements. The warning was signed by Mr. Cisco, but plaintiff refused to sign it. The problem was defined in more detail, as follows:

1. White Dot program not implemented — agreed date 11-12-82.
2. Stockroom not to agreed standards on agreed date 11-12-82.
3. Inappropriate communication resulting in subordinates feeling threatened and intimidated.
4. Due to overspending payroll and merchandising, the store has not made payroll standard YTD.

The notice further detailed the nature of the improvements that were required and suggested a detailed method for achieving said improvements. Attached to the last page of the Phase I Warning Notice was a note by Mr. Cisco memorializing an oral discussion held between plaintiff and Mr. Cisco on October 29, 1982, in which Mr. Cisco advised plaintiff of his dissatisfaction with the White Dot program and the condition of the stockrooms. At that meeting, plaintiff was directed to resolve these problems by November 12, 1982.

17. By the end of the Phase I Warning Notice period, plaintiff had made little improvement. On December 29, 1982, Mr. Cisco issued a Phase II Warning Notice to plaintiff, which notice plaintiff refused to sign. This notice essentially restated the problem, the improvement required, and the suggested method for improvement. The problem concerning his relationships with his subordinates was elaborated on as follows: “Subordinates, peers, and others feel intimidated by your comments and actions; ____”

18. On January 1, 1983, Jim Cisco left the employment of defendant for medical reasons and was replaced as Kirkwood Store Manager by Stan Schwede, a white male. Mr. Schwede had numerous meetings with plaintiff during the month of January, 1983, in connection with plaintiffs Phase II Warning Notice, constantly reminding him about the items plaintiff needed to accomplish and lending his assistance in the way of suggestions and counsel. However, plaintiff was unable to meet the deadlines given to him with regard to improvement in the stockroom and maintenance of the sales areas, including the replenishment of stock under the White Dot program.

19. At the end of the Phase II Warning period, on or about January 29, 1983, at plaintiffs request, his Phase II Warning Notice was extended an additional thirty (30) days so that the new Store Manager would have a better opportunity to evaluate plaintiffs performance. Thus, his Phase II Warning Notice period was extended to February 28, 1983. The Phase II Warning Notice extending the period to February 28, 1983, was signed by both Mr. Schwede and plaintiff.

20. On January 18, 1983, it came to Mr. Schwede’s attention that plaintiff had failed to immediately respond to a burglar alarm call at 4:28 a.m. on December 26, 1982. Plaintiff did not respond until approximately five (5) hours later at 9:02 a.m. Plaintiffs explanation was that he fell back asleep.

21. Although Mr. Schwede had numerous meetings with plaintiff during the month of February, 1983, and plaintiff made numerous promises with respect to deadlines, plaintiff was unable to meet said deadlines and to satisfy the requirements of the Phase II Warning Notice. On February 28, 1983, Mr. Schwede terminated plaintiff with the concurrence of the District Manager and the Regional Personnel Supervisor.

22. Plaintiff was replaced with a black female named Janice Jamieson who continued in the position of Total Store Merchandise Manager until November, 1984, when she voluntarily left defendant’s employ for personal reasons.

23. Several employees of the Kirkwood Target Store made statements of a racial nature about plaintiff. However, these statements were not brought to the attention of the Store Manager, the District Manager or the Regional Personnel Supervisor. In addition, the persons making the statements did not have authority to make any decisions concerning plaintiff’s working conditions.

24. Plaintiff was not denied a promotion on the basis of race.

25. Defendant’s decision to terminate plaintiff was not based on race or affected in any way by any racial bias on the part of any subordinate employee at the Kirkwood Target Store.

26. Defendant did not fail to give plaintiff support in his position as Total Store Merchandise Manager.

27. The plaintiff was not treated differently than other white managers, plaintiff was not subjected to harassment, and no action taken with respect to plaintiff by defendant was based in any part on plaintiff’s race.

B. CONCLUSIONS OF LAW

This Court has subject matter jurisdiction of this case pursuant to 28 U.S.C. § 1331 and 42 U.S.C. § 2000e-5(f)(3). Defendant is an employer as defined in 42 U.S.C. § 2000e(b).

In a Title VII cause of action, plaintiff has the initial burden of proving by a preponderance of the evidence a prima facie case of discrimination. If plaintiff is successful, defendant must then articulate a legitimate non-discriminatory reason for its actions. In order to sustain this burden, defendant need only present evidence which raises a genuine issue of fact as to whether it discriminated against plaintiff. The burden of producing evidence then shifts back to plaintiff, who must show by a preponderance of the evidence, that defendant’s explanation was merely a pretext for discrimination within the meaning of the statute. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Coleman v. Missouri Pacific Railroad Co., 622 F.2d 408 (8th Cir.1980); Kirby v. Colony Furniture Co., Inc., 613 F.2d 696 (8th Cir.1980); Walton v. St. Louis Community College, 583 F.Supp. 458 (E.D.Mo.1984). Once defendant responds to plaintiff's proof by offering evidence of the reason for its actions, the presumption “drops from the case” and the Court must then determine whether there was discrimination within the meaning of Title VII. United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983). The ultimate “ ‘factual inquiry’ in a Title VII case is ‘whether the defendant intentionally discriminated against the plaintiff’.” Id. at 715, 103 S.Ct. at 1482 citing Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089,1093, 67 L.Ed.2d 207 (1981). Plaintiff always retains the burden of persuasion with respect to this ultimate factual issue. The division of intermediate evidentiary burdens serves merely to allow the court to evaluate more easily the evidence as it bears on the critical issue of discrimination. Id.

The elements of a prima facie case in a Title VII cause of action vary according to the particular claim that a plaintiff asserts. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 n. 13, 93 S.Ct. 1817, 1824 n. 13, 36 L.Ed.2d 668 (1973). On all of plaintiff’s claims herein he asserts disparate treatment as a basis for recovery. Disparate treatment occurs where “[t]he employer simply treats some people less favorably than others because of their race.” International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977). In the context of promotions, a prima facie case of disparate treatment requires plaintiff to show: 1) he is a member of a protected class; 2) he applied for and was qualified for the promotion in question; 3) he was not promoted; and 4) the promotion was filled by someone with similar qualifications. Burrows v. Chemed Corp., 567 F.Supp. 978, 984 (E.D.Mo.1983). See also Wells v. Gotfredson Motor Co., Inc., 709 F.2d 493 (8th Cir.1983). In the context of terminations, a prima facie case of disparate treatment requires plaintiff to show: 1) he was a member of a protected class; 2) he was capable of performing the job; and 3) he was discharged from the job. Johnson v. Bunny Bread Company, 646 F.2d 1250, 1253 (8th Cir.1981).

Plaintiff claims that he was discriminated against on the basis of his race in that he was denied a promotion, he was subjected to harassment, and he was terminated. In the opinion of this Court, plaintiff failed to establish a prima facie case with respect to any of these claims. On his promotion claim, plaintiff did not prove that the promotion in question was filled by someone with similar qualifications. The Store Manager position at the Alton, Illinois store was filled by an individual, also a minority, with a higher mid-year performance evaluation score than plaintiff. See Findings of Fact No. 10. Alternatively, assuming plaintiff established a prima facie case of discriminatory denial of promotion, the other applicant’s higher evaluation score was a legitimate non-discriminatory reason for not promoting plaintiff. Moreover, plaintiff did not prove that defendant’s reliance on the other applicant’s higher score was pretextual or that plaintiff’s race had even the slightest affect on defendant’s failure to promote plaintiff. See Findings of Fact No. 24.

It is also the opinion of this Court that plaintiff failed to establish a prima facie case of discriminatory discharge. The evidence was overwhelming that plaintiff was not performing his job properly and that he was given many opportunities to correct the situation. See Findings of Fact Nos. 12,13,14, 16,17,18, 19, 20, and 21. Alternatively, assuming that plaintiff’s evidence established a prima facie case of discriminatory discharge, plaintiff’s failure to meet defendant's work requirements was a legitimate non-discriminatory reason for his discharge. Id. Moreover, plaintiff did not establish that said reason was pretextual or that plaintiff’s race played any part in defendant’s decision to terminate plaintiff. See Findings of Fact No. 25. Defendant did not fail to give plaintiff the support he needed to perform his job properly. See Findings of Fact No. 26.

Finally, it is the opinion of this Court that plaintiff was not treated any differently, harassed or subjected to any action by defendant on the basis of his race. See Findings of Fact No. 27. Evidence concerning racial statements by plaintiff’s co-workers or subordinates does not taint the legitimacy of defendant’s actions, because said statements were never brought to the attention of plaintiff’s superiors and the individuals who made such statements had no authority to make decisions concerning plaintiff. See Findings of Fact No. 23. Although plaintiff handled himself quite well in the pro se presentation of this case, the evidence established that plaintiff did have a very poor management style that was not suited to the retail environment and that he was unable to meet the legitimate demands of his employer.

Accordingly, plaintiff’s claim that he was discriminated against on the basis of his race must be rejected and defendant is entitled to a judgment in its favor.


source: Caselaw Access Project

author: DUEÑAS, District Judge.

license: Public Domain

text:
    Ricardo J. BORDALLO, Governor of Guam, Plaintiff, v. Tony REYES, Taro Kanai, Roberto Olaya, and Carl Peterson, Defendants.
    Civ. No. 83-0095.
    United States District Court, D. Guam.
    Feb. 8, 1984.
    Nancy Nye, Asst. Atty. Gen., Agana, Guam, for plaintiff.

      Gary Hull, Baumann & Hull, Agana, Guam, for defendants.
   MEMORANDUM ORDER

DUEÑAS, District Judge.

On December 13,1983, Ricardo J. Bordallo, Governor of Guam (hereinafter referred to as “Governor”), filed a complaint for Injunction and Declaratory Relief. Named as defendants in this action are Tony L.G. Reyes, Taro Kanai, Roberto Olaya, and Carl Peterson, directors, elected by the existing Guam Visitors Bureau (hereinafter referred to as “GVB”). It is the contention of the Governor that GVB is an instrumentality of the Government of Guam. The injunctive relief sought by the Governor had earlier been denied by the Court and the only issue remaining before the Court is one for declaratory relief.

Public Law 17-32, as enacted by the Guam Legislature, became effective on November 22, 1983, when the Legislature agreed to pass the bill, notwithstanding non-approval of the measure by the Governor, by a vote of two-thirds of all the members of the Legislature.

Public Law 17-32 repealed Chapter 1 of Title 34 of the Government Code of Guam. Title 34 (Sections 38000-38005) was enacted by the First Guam Legislature on July 5, 1952, under Public Law 67. Section 4 of Public Law 67 provides:

“The Guam Visitors Bureau shall be a non-profit organization formed for the purpose of promoting the establishment of travel industries on Guam and whose constitution and bylaws and amendments thereof, shall be approved by the Governor.”

Public Law 17-32 enacted Article 1 of Chapter 9 of Title 12 of the Guam Code Annotated (GCA). Article 1 consists of Sections 9101 to 9115, inclusive.

Under Section 9102, GVB is established as a public corporation.

“Section 9102. Creation. There is hereby created a public corporation to be known as the ‘Guam Visitors Bureau’ as hereinafter provided. The corporation shall be a non-stock, non-profit membership corporation to be governed in accordance with the applicable general corporation laws of the Territory of Guam, except as provided otherwise by this Article. No articles of incorporation shall be required; this Article shall be its charter.”

It is the Governor’s contention that Public Law 17-32 is a nullity, specifically Section 9106 setting forth the composition and appointment of the Board of Directors as such is a derogation of his authority to supervise and control an instrumentality within the Executive Branch of the Government of Guam. 48 U.S.C. § 1422.

Section 9106 provides:

“Section 9106. Board, (a) The exercise of the powers of the Bureau shall be directed by the Board of Directors composed of nine (9) members selected in accordance with this Section. Four (4) directors, referred to as ‘appointed directors’ shall be members and shall be appointed by the Governor with the advice and consent from the Legislature. One of the appointed directors shall be a commissioner or assistant commissioner selected by the Commissioner’s Council. Four (4) directors, referred to as ‘elected directors’ shall be contributing members in good standing elected by the membership. The four (4) appointed and four (4) elected directors shall then select the ninth (9th) director by a vote requiring concurrence of six (6) of the directors. The ninth (9th) director shall be actively and directly involved in the tourism industry. The Board of Directors shall elect from amongst its body a chairperson and vice-chairperson. The ninth director from a previous board shall not be held over solely to act as the ninth director of a new board. The ninth director of a previous board may be appointed as the ninth director of any subsequent board as set forth herein.”

Section 1422 of 48 U.S.C. provides in part:

“The Governor shall have general supervision and control of all the departments, bureaus, agencies, and other instrumentalities of the executive branch of the government of Guam.”

Counsel for the Governor, in his oral argument, contended that under the Organic Act of Guam the only governmental entity duly established by the Act are the three branches of the Government of Guam: Executive, Legislative, and Judicial. Counsel for the Governor further contended that, in the absence of any specific provision within the context of Article 1, Chapter 9, Title 12, GCA, which squarely places GVB within the purview of the legislative or judicial branches of the Government of Guam, GVB is an instrumentality of the Executive Branch of the Government of Guam.

To buttress his contention that GVB is an instrumentality of the government, as well as one within the Executive Branch, the Governor cited certain provisions of Article 1 (12 GCA Chapter 9).

A. GVB shall have the power to adopt such rules and regulations pursuant to the Administrative Adjudication Act.

Section 9105.

“Section 9105. Powers. The Bureau shall have and exercise each and all of the following powers.
(a) ...
(b) ...
(c) ...
(d) ...
(e) Adopt such rules and regulations pursuant to the Administrative Adjudication Act as may be necessary for the exercise of the powers and performance of the duties conferred or imposed upon the Bureau of the Board or the Board by this Article; (Underscoring supplied.) Since the Administrative Adjudication

Act excludes in its application the legislative and judicial branches of the Government of Guam, the Governor concludes that by virtue of subsection (e), supra, GVB falls within the Executive Branch.

The term “agency,” as defined in the Act, means a board, commission, department, division, bureau, or an officer of the territory of Guam authorized by law to make rules or adjudicate contested cases. It may be argued, however, that despite the non-inclusion of “public corporations” in such definition the legislature, by virtue of Section 9105(e), made it applicable to GVB.

Section 9105(e) did not mandate GVB to adopt rules and regulations under the Administrative Adjudication Act. It merely empowers GVB to do so, if necessary, for the exercise of the powers and performance or duties conferred upon it by Article 1, Chapter 9 of 12 GCA.

The basic purpose of the Administrative Adjudication Act is to provide a forum for adjudication of contested cases within the purview of a department, board, commission, division, bureau, or an officer of the territory. The adoption of rules under the Act is geared primarily to procedures and practices governing administrative adjudication of contested cases before an administrative forum, a quasi-judicial body, whose decisions could then be reviewed by a court of competent jurisdiction. This administrative adjudicative process as it relates to GVB is obviated by legislative provisions subjecting GVB to be sued in the first instance in a court of law.

As to other rules and regulations, outside the basic purpose of the Administrative Adjudication Act, such are amply covered by Section 9105(d) which provides as follows:

“(d) Adopt, amend and repeal reasonable by-laws, and other rules, regulations and directives, pursuant to the general corporation laws of the Territory of Guam, as may be necessary for the conduct and administration of its activities and the exercise of the powers and performance of the duties conferred or imposed upon the Bureau or the Board by this Article;”

Section 9105(e) is meaningless and has no proper stance or relevancy within the corporate structures of GVB as chartered by the Guam Legislature.

B. Under Section 3 of Public Law 17-32 and Section 9110 of Article 1, employment of GVB personnel shall be pursuant to the provisions of 4 GCA Section 4105.

“Section 9110. Employment.
(a) Pursuant to the provisions of 4 GCA Section 4105, the Board shall establish rules and regulations governing selection, promotion, performance evaluation, demotion, suspension, removal and other disciplinary action for the employees of the Bureau.”

Under Section 4105 all the listed boards and authorities are mandated to adopt personnel rules. Of all the listed boards and authorities adopting personnel rules, only the University of Guam, Guam Airport Authority, Guam Telephone Authority, Port Authority of Guam, Guam Power Authority, Department of Education, Guam Memorial Hospital, and the Guam Visitors Bureau are further mandated or required by their rules to provide that all their classified employee appeals be heard by the Civil Service Commission. Section 4105 further provides that “as to all other Executive Branch employment” personnel rules shall be adopted by the Director of Administration [Department within the Executive Branch]. The rules to be adopted by the Director of Administration shall also provide that classified employees “as to all other Executive Branch employment ” shall have their appeals heard by the Civil Service Commission. Section 4105 further provides:

“Personnel rules governing any other Executive Branch entities may require that their classified employee appeals be heard by the Civil Service Commission.”

The personnel rules to be promulgated or adopted under Section 4105 cover employees under four different groups: Judiciary, Boards and Authorities, Executive Branch employment, and Executive Branch entities.

Under the rules of some Boards and Authorities, classified employees are expressly given rights of appeals to the Civil Service Commission, but such expressly given rights of appeal are silent as to the rules of other boards. Employees of “other Executive Branch employment” are given rights of appeal to the Civil Service Commission. As to the employees “of the other Executive Branch entities,” their rights to appeal to the Civil Service Commission rest upon the discretion of the authority adopting personnel rules whoever it may be.

Once again, counsel for the Governor contended that since GVB is distinguished from the Judiciary under Section 4105, it follows that GVB and, presumably, the other listed boards and authorities, the Executive Branch employment, and the Executive Branch entities are all part of the Executive Branch of the Government of Guam.

Such a contention is without merit. It is untenable considering the nebulous structure of Section 4105.

C. Employees of GVB are members of the Government of Guam Retirement Fund.

Section 9110 of Article 1 provides:

“Section 9110. Employment.
(a) ...
(b) Employees of the Bureau, excluding the Directors, and the General Manager, shall be members of the Government of Guam Retirement Fund, subject to the provisions of 4 GCA Section 8105....”

It is readily ascertainable from a reading of Section 8105 that there is a distinction between employees of the Government of Guam and employees of public corporations.

“Employee,” as used in Section 8105, is defined under subsection (c) of Section 8104 to mean any person in the employ of the Government.

Under subsection (b) of Section 8105, all employees of the Government of Guam shall become members of the Fund as a condition of employment.

An employee of a public corporation, such as GVB, has the option of accepting or rejecting membership and shall become a member only upon submission of a written request to the Board for membership. Subsection (d), Section 8105.

Other public corporations, such as the Guam Airport Authority, Guam Telephone Authority, Guam Power Authority, Port Authority of Guam, Public Defender Service Corporation, have all provided that their employees become members of the Government of Guam Retirement Fund.

The Guam Power Authority so provided as follows under Section 8118 of Chapter 8, 12 GCA:

“Section 8118. Employment.
(a) ...
(b) Employees of the Authority excluding the Directors, shall be members of the Government of Guam Retirement Fund, subject to the provisions of 4 GCA Section 8105, except that for the purposes of Subsection (a) of said Section, the employees of the Authority shall not be considered employees of a ‘public corporation’ whereby their membership in the Fund is optional and membership therein must be specifically requested....”

Similar provisions are contained in the membership sections for the Guam Telephone Authority, Port Authority of Guam, and the Public Defender Service Corporation. May it be noted that the entitlement to membership of GVB employees in the Government of Guam Retirement Fund is optional under Section 8105(d), unlike employees of the other Authorities.

The contention of the Governor that by virtue of Public Law 17-32 making GVB employees members of the Government of Guam Retirement Fund GVB, thus, automatically became an instrumentality of the Executive Branch of the Government of Guam is untenable and must fail. Contrariwise, the retirement law clearly indicates that employees of public corporations are not employees of the Government of Guam.

In its totality, the Governor has failed to prove that, by virtue of the applicability of the Administrative Adjudication Act, the Personnel Rules provisions of 4 GCA, Chapter 4, Section 4105, as amended by Section 3 of Public Law 17-32, and the laws relating to Retirement of Public Employees under 4 GCA, Chapter 8, GVB is an instrumentality of the Executive Branch of the Government of Guam.

Under Public Law 17-32, GVB is chartered by the Seventeenth Guam Legislature as a public corporation.

Aside from the discussions of whether GVB is an instrumentality of the Executive Branch of the Government of Guam because of its being intertwined with other Guam statutory provisions, supra, could GVB still be designated as an instrumentality of the Government of Guam and, more specifically, an instrumentality of the Executive Branch of the Government of Guam within the coverage of 48 U.S.C. Section 1422, merely by virtue of its status as a public corporation?

It could not be ascertained from the statutes of Guam what a public corporation really is. Nowhere within the context of said statutes is “public corporation” defined, despite the creation of a dozen or so public corporations by the various Guam Legislatures since the inception of the Government of Guam under the Organic Act of Guam. Neither is the term “instrumentality” or “instrumentality of government” anywhere defined within local statutory context, though the term “instrumentality” was mentioned in connection with some of the public corporations created under local laws. Instrumentality, as the term is used in 48 U.S.C. Section 1422, is also devoid of definition.

Illustrative of the establishment or creation of public corporations, pursuant to 12 GCA, Chapters 1 to 8, 10 and 11, is the following:

A. The Guam Airport Authority (GAA). (Chapter 1, Section 1102)
“There is within, and a public corporation an autonomous instrumentality of, the government of Guam called the Guam Airport Authority.”
B. The Guam Economic Development Authority (GEDA) (Chapter 2, Section 2101)
“There is hereby created a public corporation to be known as ‘Guam Economic Development Authority’ — ”
C. The Guam Educational Telecommunications Corporation (GETC) (Chapter 3, Section 3102)
“There is hereby created a public corporation to be known as the ‘Guam Educational Telecommunications Corporation’....”
D. Guam Housing Corporation (GHC) (Chapter 4, Section 4101)
“In order to promote the general welfare of the inhabitants of the territory of Guam through the improvement of housing standards in Guam, there is created a body corporate to be known as the Guam Housing Corporation ... The Housing Corporation shall be subject to the general direction of the Governor of Guam.”
E. Guam Housing and Urban Renewal Authority (GHURA) (Chapter 5, Section 5, Section 5103)
“(a) There is hereby created a public body corporate and politic to be known as the ‘Guam Housing and Urban Renewal Authority.’"
F. The Guam Mass Transit Authority (GMTA) (Chapter 6, Section 6201)
“There is hereby created the Guam Mass Transit Authority, a public corporation....”
G. Guam Telephone Authority (GTA) (Chapter 7, Section 7103)
“There is within, and a public corporation and autonomous instrumentality of the government of Guam, a Guam Telephone Authority.”
H. Guam Power Authority (GPA) (Chapter 8, Section 8103)
“There is within, and a public corporation and autonomous instrumentality of, the government of Guam, a Guam Power Authority.”
I. Port Authority of Guam (PAG) (Chapter 10, Section 10102)
“There is hereby established the Port Authority of Guam as a public corporation and autonomous instrumentality of the government of Guam.”
J. Public Defender Service Corporation (PDSC) (Chapter 11, Section 11103)
“In order to provide effective legal aid and assistance to those persons in Guam who are unable to afford counsel, there is created a public corporation to be known as Public Defender Service Corporation.”

Other corporations created by the Legislature are:

A.A. The Guam Territorial Law Library (GTLL) (Title XXIX, Chapter 2, Section 28500(a), Government Code of Guam)
“(a) A non-profit public corporation ‘The Guam Territorial Law Library’ is hereby chartered.”
B.B. The University of Guam (UOG) (17 GCA, Chapter 16, Section 16101)
“There is established in the territory of Guam a non-membership, non-profit corporation, which shall be known as the ‘University of Guam.’ ”

Public corporations such as GAA, GTA, GPA, and PAG, supra, are the only public corporations wherein each one is specifically designated as an instrumentality of the government of Guam. It is construed that the legislature, in expressly designating each one of the four public corporations as an instrumentality of the government, had determined that the other public corporations not so designated are not instrumentalities of the government. Ergo, GVB is not an instrumentality of the Executive Branch of the government.

Absent definitions of “public corporation” and “instrumentality of government” in our local statutes, a determination of what a public corporation and instrumentality of government has to be made.

Generally, a public corporation is organized for certain governmental purposes, such as counties, townships, school districts, cities, and incorporated towns, the so-called municipal or political corporations. Guam’s public corporations cannot be categorized as public corporations in the true sense of municipal corporations.

Guam’s legislatively-created public corporations are not public in the sense of being organized for governmental purposes; nevertheless, their operations contribute to the comfort, convenience, or welfare of the general public. They perform functions ordinarily undertaken by private enterprises such as electric, telephone, and water companies. In essence, these private enterprises are said to be “affected with a public interest” and, for that reason, they are subject to legislative regulation and control to a greater extent than corporations not of this character. These are usually designated as “public service corporations” or “quasi-public corporations.”

Because of the non-availability of such private enterprises to perform the functions of public service corporations, it became necessary to create public corporations to perform the functions of public service corporations. In a real sense, such public corporations — GTA and GPA, supra —perform the functions of public service corporations. The same is true of the Public Utility Agency of Guam (PUAG) as to water supplies and distribution, although PUAG is not a public corporation.

On matters of public transportation, ordinarily such matter is handled by a private company on an exclusive franchise basis; but in the absence of a private company undertaking the responsibility, the GMTA, supra, is created to cover the alleged basic public necessity.

On matters of financing and housing, there is GEDA, supra, which ventures into financing in certain aspects, despite the availability of financial institutions. Justification of the existence of such is based on a basic need to lure private enterprises to come to Guam which in the end will inure to the benefit of the people of Guam. The operation of such, however, is not to compete with private financing institutions, but to supplement a need where private institutions will not readily venture. The GHC, supra, is duly established to cater to the needs of a certain segment of the public in matters of housing where such needs could not be served by private institutions. Though it could be concluded that Guam’s public corporations do not primarily perform governmental function; nevertheless, they cater to certain needs and convenience of the public. GVB as a public corporation fits within one of these categories. It does not perform any governmental function. To maintain that it is an instrumentality of the Executive Branch of the government, though devoid of governmental functions, defies the basic concept of government.

IS GVB AN “INSTRUMENTALITY” OF THE GOVERNMENT?

In a North Carolina case where “instrumentality of government” was determined on the issue of immunity from taxation, the court held that important factors to be considered in determining whether an agency is an instrumentality .of government were the following: Was the agency created by the government, wholly owned thereby, is not operated for profit, and is primarily engaged in performing essential governmental function? Unemployment Compensation Commission of North Carolina v. Wachovia Bank and Trust Co., 2 S.E.2d 592, 595, 596, 215 N.C. 491.

If the Wachovia factors are to be applied, obviously GVB is not an instrumentality of the Government of Guam.

As chartered by the Seventeenth Guam Legislature, GVB is a public corporation. It is a non-stock, non-profit membership corporation governed according to applicable general corporation laws of Guam. Section 9102, supra.

The membership of this public corporation (GVB) is contained in Section 9112, which states as follows:

“Section 9112. Members, (a) Any person including natural persons, partnerships, and corporations shall be entitled to be a member of the Bureau.
(b) There shall be two (2) classes of membership: (i) ‘Contributing Members’ who shall be those members contributing the sum of One Hundred Dollars ($100.00) or more annually; and (ii) ‘Honorary Members’ being those members contributing less than One Hundred Dollars ($100.00) annually. Only contributing Members shall be entitled to vote, however, membership meetings shall be open to all members.
(c) Contributing members may acquire multiple voting rights on the basis of one (1) vote for each annual contribution of One Hundred Dollars ($100.00), payable in lump sum or installments, provided, no single membership shall be entitled to more than ten (10) votes. All contributions of contributing members herein mentioned shall be cash and must be paid in full ninety (90) days prior to having any voting rights.
(d) a quorum of the membership shall require attendance of at least fifty percent (50%) of the total voting power of the members. Except as otherwise provided by law, any act of the members shall require a vote of a majority of the voting power of the members present at any meeting duly held. Contributing members may be present and may vote by proxy, provided written authorization of proxy is delivered to the Secretary or General Manager, or the Chairperson of the meeting at least twenty-four (24) hours prior to the commencement of the meeting which is the subject of the proxy.”

Under subsection (a), it is permissible to have within the membership of GVB private corporations (businesses, etc.), religious corporations, industrial development corporations, non-profit cooperative associations, and colleges, and institutions of learning, as well as natural persons. Such membership in GVB could be substantial.

GVB is to be governed in accordance with the applicable general corporation laws of Guam.

Corporations, as a rule, give the shareholders the right to elect their board of directors. The contributing members of GVB, though not shareholders, should be accorded such right by virtue of their membership in GVB.

• The contributions to be made by the contributing and honorary members in the form of dues may be minimal compared to what may be appropriated by the Government of Guam to the “Tourist-Attraction Fund” in the form of grants-in-aid; and the membership dues supplemented by whatever revenues may be raised by GVB pursuant to Section 9105(1) may still not achieve parity with appropriated funds.

Nevertheless, the contributing members of GVB should not be deprived of their rights to have representation in the Board of Directors of GVB merely because the Government of Guam contributes the “lion’s share” in the “pot” (Tourist Attraction Fund).

It is the express intent of the Legislature pursuant to Section 9106 that members of GYB should have such representation in the Board.

In the thrust of his oral argument, counsel for the Governor emphatically enunciated that the Organic Act provided for the traditional three branches in the Government of Guam, and nothing more, and that GVB comes within the jurisdiction of the Executive Branch. Could it be possible that the Seventeenth Guam Legislature in its wisdom in enacting Section 9115 of 12 GCA, Chapter 9, Article 1, has expressly determined that GVB should be within the purview of the Legislature?

“Section 9115. Reservation of Powers.
The Legislature hereby reserves the power to alter, amend or repeal any or all the sections of this Article.”

It is the opinion of the Court that the Guam Visitors Bureau, a public corporation created by the Seventeenth Guam Legislature, is not an instrumentality of the Executive Branch of the Government.

Public Law 17-32 is constitutionally valid. It is not in contravention of 48 U.S.C., Section 1422.

Let Judgment issue.

      . Administrative Adjudication Law, Title XXV, Government Code of Guam.

        “Section 24002. Agency. The word ‘agency’ whenever used in this Title shall mean and include any board, commission, department, division, bureau or officer of the territory of Guam authorized by law to make rules or to adjudicate contested cases. Agency does not include any entitity in the legislative or judicial branches and for purposes of establishing charges for utility services, it does not include Guam Power Authority, Guam Telephone Authority or the Public Utility Agency of Guam.”

        “Section 24007. Rule. The word ‘rule’ means any rule, regulation, standard, classification, procedure or requirement of any agency, designed to have or having the effect of law or interpreting, supplementing or implementing any law enforced or administered by it or to govern its organization or procedure, but does not include regulations, resolutions or directions relating solely to internal policy, internal agency organization or internal procedure which do not directly affect the rights of or procedures available to the public and does not include ‘administrative adjudication’.”

        "Section 24008. Administrative Adjudication. 'Administrative adjudication’ means that administrative investigation, hearing and determination by any agency of issues or cases applicable to particular parties.”

        "Section 24100. Applicability. The procedure of any agency pursuant to the provisions of this Title in any proceeding before an agency in which legal rights, duties or privileges of specific parties are required by law to be determined after an agency hearing.”

      . Section 3 of Public Law 17-32 amended Section 4104 of 4 Guam Code Annotated to include GVB. As amended, Section 4104 reads as follows:

        "Section 4104. Department Personnel Rules.

      Rules subject to criteria established by this Chapter governing the selection, promotion, performance evaluation, demotion, suspension and other disciplinary action, shall be adopted by the Board of Directors for the Guam Airport Authority, Board of Directors for Guam Economic Development Authority, Board of Directors for Guam Housing Corporation, Board of Commissioners for Guam Housing and Urban Renewal Authority, Judicial Council, the Board of Directors of the Guam Telephone Authority, the Board of Directors of the Port Authority of Guam, the Board of Directors of the Guam Power Authority, the Board of Education, the Board of Regents of the University of Guam, the Guam Community College Board of Trustees, the Board of Trustees of the Guam Memorial Hospital Authority, and by the Board of Directors of Guam Visitors Bureau with respect to personnel matters within their respective branches, agencies or departments, and by the Director of Administration as to all other Executive Branch employment. Such rules shall, to the extent practicable, provide standard conditions for entry into and other matters concerning the government service. The personnel rules adopted for University of Guam, Guam Airport Authority, Guam Telephone Authority, Port Authority of Guam, Guam Power Authority, Department of Education, Guam Memorial Hospital Authority, Guam Visitors Bureau and by the Director of Administration shall require that all their classified employee appeals be heard by the Civil Service Commission. The personnel rules adopted for the Judiciary Branch by Judicial Council shall require that all their classified employee appeals be heard by the Council. Personnel rules governing any other Executive Branch entities may require that their classified employee appeals be heard by the Civil Service Commission. Rules concerning the Executive Branch shall take effect upon their approval by the Civil Service Commission, by Executive Order of the Governor and filing with Legislative Secretary. Rules concerning the Judicial Branch shall take effect upon adoption by the Judicial Council of Guam."

      . Section 8105 is a part of Guam's laws relating to retirement of public employees contained in 4 Guam Code Annotated, Chapter 8 which provides as follows:

        “Section 8101. Retirement Fund: Purpose.

      The purpose of the Fund is to provide retirement annuities and other benefits for the employees of the government of Guam who become aged or otherwise incapacitated, and widows’ annuities and other benefits to the dependents of such employees, thereby enabling the employees to accumulate reserves for themselves and their dependents to meet, without prejudice or hardship, the hazards of old age, disability, death and termination of employment, with the objective of encouraging qualified personnel to enter and remain in the service of the Government, thus effecting economy and efficiency in the administration of the Government.

        "Section 8102. Same: Title.

      The Fund hereby created shall be known as the ‘Government of Guam Retirement Fund.’ In such name or for the account thereof, all of its business shall be transacted, all of its money invested and all of its cash, securities and other property shall be held.

        "Section 8104. Definitions.

      Word and phrases, wherever used in this Chapter, unless a different meaning is clearly indicated by the context, shall have the following meanings:
      (a) ‘Fund’ shall mean the ‘Government of Guam Retirement Fund.’
      (b) ...
      (c) ‘Employee’ shall mean any person in the employ of the Government, in all occupational classifications, including a person whose work is classified as casual or temporary.
      (d) ....

        “Section 8105. Fund: Members.

      The following employees shall be members of the Fund and subject to the provisions hereof:
      (a) All employees regardless of age or length of service, in the service of the Government on operative date, shall become members of the Fund by virtue of their employment.
      Any person who shall be on an approved leave of absence on the operative date, on account of disability or military service, shall be subject to membership as of such date, as though he were in active service. If such leave of absence was for any other cause, such person shall be subject to membership as of the operative date only if the leave of absence shall have extended, in the aggregate for less than one (1) year at the operative date.
      (b) All persons becoming employees after the effective date, shall become members as a condition of their employment, provided they are under the age of sixty (60) years on the date of entry into service.
      (c) ...
      (d) An employee of a public corporation of the Government or of the University of Guam shall have the option of accepting or rejecting membership and shall become a member only upon submission of a written request to the Board for membership.

      (e) ...
      [Source: Section 4204 GC; Subsection (d) amended by P.L. 13-194;____]