author: CHARLES R. RICHEY, District Judge.

text:
    Carolee Brady HARTMAN, et al., Plaintiffs, v. Charles Z. WICK, Defendant.
    Civ. A. No. 77-2019.
    United States District Court, District of Columbia.
    Nov. 16, 1984.

      Bruce A. Fredrickson, Webster & Fredrickson, Susan L. Brackshaw, Webster & Fredrickson, Washington, D.C., on brief, for plaintiffs.
    Robert E.L. Eaton, Asst. U.S. Atty., Joseph E. diGenova, U.S. Atty., Judith A. Futch, Richard H. Swan, Assts. Gen. Counsel, U.S. Information Agency, Washington, D.C., on brief, for defendant.
   CHARLES R. RICHEY, District Judge.

INTRODUCTION

This case is before the Court on remand by the Court of Appeals. Although the Court of Appeals affirmed this Court’s decision as to the individual discrimination claim of Luba De Medina and a class claim of discrimination in the promotion of women, it remanded the case as to (1) a class claim of discrimination in hiring, (2) a class claim of retaliation for participation in protected activities, and (3) the individual claim of Rose Kobylinski. For the background of this protracted litigation, see De Medina v. Reinhardt, 686 F.2d 997, 1000-01 (D.C.Cir.1982). With the express agreement of the parties, the Court has considered these claims on the existing trial record, post-remand briefs, supplemental memoranda, and oral argument. After careful consideration, the Court has decided that it must deny the class claim of retaliation, but it will grant relief on the class claim of discrimination in hiring, and on the individual claim of Rose Kobylinski. This Opinion shall constitute the Court’s findings of fact and conclusions of law on these claims.

THE COURT FINDS THAT ROSE KOBY-LINSKI WAS DISCRIMINATED AGAINST ON THE BASIS OF HER SEX

Following trial, this Court denied jurisdiction over Rose Kobylinski’s claim on the ground that she had failed to file a discrimination charge with the Equal Employment Opportunity Commission (“EEOC”) and had thus failed to exhaust her administrative remedies as required by 42 U.S.C. § 2000e-16. The Circuit Court reversed this Court’s dismissal, noting that since the trial, “the Supreme Court has decided that the requirement of timely filing is akin to a statute of limitations and is not a jurisdictional prerequisite ....” De Medina v. Reinhardt, 686 F.2d at 1012 (citing Zipes v. Trans World Airlines, 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982)). The Circuit Court found the Kobylinski complaint so similar to the complaint filed by Josefina Martinez, an intevenor with Ms. Kobylinski, “ ‘that it can fairly be said that no conciliatory purpose would be served by filing separate EEOC charges.’ ” Id. (quoting Foster v. Gueory, 655 F.2d 1319, 1322 (D.C.Cir.1981)). Thus, the Court will reach the merits of Ms. Kobylinski’s claim.

Ms. Rose Kobylinski, a female naturalized citizen of the United States born in Poland, began working in 1964 as a foreign language broadcaster in the Polish Service of the Voice of America, a component of the United States Information Agency (“Agency”). In June, 1977, the Agency posted a vacancy announcement for a GS-12 writer-editor (radio) position in the Polish Service. At that time Ms. Kobylinski was a GS-11. She held a Bachelor of Arts degree and was experienced in radio broadcasting, as well as writing and journalism. The job description in the vacancy announcement stated that the job included writing weekly features on American Space and other scientific achievements. At that time, there was one Polish Service employee, a male, who occasionally wrote features on American space and other scientific achievements. Ms. Kobylinski complained to the personnel office that the Agency had preselected the male candidate, whom she named, to fill the GS-12 vacancy. Subsequently, the vacancy announcement was withdrawn, and the reposted announcement made no reference to writing features on American space and other scientific achievements. Nevertheless, the male who Ms. Kobylinski had asserted had been preselected for the position was selected to fill it. Ms. Kobylinski did not apply for it because, as she informed officials of the Agency, she felt it would be futile in light of the Agency’s preselection.

Ms. Kobylinski’s claim is one of disparate treatment. She alleges that the Agency violated Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-16, by discriminating against her on the basis of sex with regard to job promotions. The gravamen of her complaint is that the Agency preselected a male candidate to fill the vacant position. If proven, such preselection, in the form of “tailoring” job qualifications to those of a particular candidate, violates Title VII. E.g. Coble v. Hot Springs School District No. 6, 682 F.2d 721, 728 (8th Cir.1982); Mallard v. Claytor, 471 F.Supp. 16, 22 (D.D.C.1978).

MS. KOBYLINSKI HAS ESTABLISHED A PRIMA FACIE CASE

In order to prevail on a disparate treatment claim, the plaintiff first “has the burden of proving by a preponderance of the evidence a prima facie case of discrimination.” Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981). A plaintiff establishes a prima facie case by showing:

(1) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which an employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). Of course, “[t]he facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required ... is not necessarily applicable in every respect in differing factual situations.” Id. at 802, n. 13, 93 S.Ct. at 1824, n. 13.

Here the record is clear that Ms. Kobylinski did not apply for the job which she alleges was discriminatorily tailored for male candidates. The Supreme Court has held that a non-applicant may prevail in a disparate treatment case if she meets “the not always easy burden of proving that [she] would have applied for the job had it not been for those [discriminatory] practices.” International Brotherhood of Teamsters v. United States, 431 U.S. 324, 367-68, 97 S.Ct. 1843, 1870-71, 52 L.Ed.2d 396 (1977). In Ms. Kobylinski’s case, the Court finds that the Agency had, in fact, preselected a male candidate to fill the GS-12 writer-editor (radio) position in the Polish Service. Ms. Kobylinski’s application, therefore, would have been an exercise in futility, despite her qualifications. For this reason, and because the allegedly “targeted” male actually filled the vacant position, Ms. Kobylinski has established her prima facie case.

THE AGENCY CANNOT REBUT MS. KOBYLINSKI’S PRIMA FACIE CASE

Once the plaintiff establishes a prima facie case, the defendant may rebut by producing evidence that someone was preferred over the plaintiff for a legitimate, nondiscriminatory reason. Texas Dept. of Community Affairs, 450 U.S. at 254, 101 S.Ct. at 1094. The defendant need only raise a genuine issue of fact as to whether it discriminated against the plaintiff. Id. at 254-55, 101 S.Ct. at 1094-95. Here the Agency asserts three arguments in rebuttal. All three arguments must fail.

The Agency claims that because Ms. Kobylinski had not applied for the GS-12 position, it had no way to ascertain her interest in the position. This assertion is flatly contradicted by the evidence. It was Ms. Kobylinski who complained to the Agency’s personnel office about the “tailored” nature of the vacancy announcement. In light of her complaint and her qualifications, the Agency will not be heard to claim that it did not know about Ms. Kobylinski’s interest in the job.

The Agency also asserts that the “tailored” notice was inadvertent. Once Ms. Kobylinski alerted the Agency to the error, the Agency removed the announcement, and then posted one without the “tailored” qualifications. The response to this assertion is two-fold. First, it is the preselection that is discriminatory, not the written content of the vacancy notice. Although the Agency claims that the qualifications for the position did not include writing features on American space and scientific achievements, even after the posting of the neutral vacancy announcement, the originally targeted male candidate was selected to fill the vacancy. Furthermore, the claim of inadvertence is doubtful. This was not the only “preselected” vacancy announcement — it happened on at least two other occasions. In October, 1979, a vacancy occurred in the Polish Service for a GS-12 writer position. The posted vacancy announcement required experience in writing scripts on economics and other specialized topics. At that time there was only one Polish Service employee with this type of background, and he received the job. Another Polish Service vacancy occurred in 1980, and the announcement required experience in teaching English lessons on international radio. Only one employee, a male, had such experience, and he was selected to fill the position. Because of these other instances of preselection, the Court finds that the Agency’s preselection in this case was not inadvertent.

The Agency also contends that the rejection of Ms. Kobylinski was not discriminatory because the position was filled pursuant to its standard personnel procedures. The applications were initially screened by the personnel office, which referred a list of “best qualified” applications to the selecting official. The selecting official then made the final choice, choosing the male candidate from the “best qualified” group. The Agency contends that this procedure protects against preselection. Again, the flaw in the Agency’s reasoning is obvious. The personnel office knew about Ms. Kobylinski’s interest in the position, but she was never considered because she did not file an application. As stated above, such an application would have been futile. The whole procedure, therefore, was not neutral, as the Agency suggests, but tainted by the preselection. Moreover, a 1976 Civil Service Commission review of the Agency’s personnel actions found that the “promotion actions for competitive service have not met the standards of the Federal Merit Promotion Policy.” In particular, the Commission concluded that, in some cases, there was evidence “which supports] that there was preselection and favoritism exhibited in competitive actions.” Clearly the Agency cannot rebut the plaintiff’s prima facie case by following its standard procedures.

EVEN ASSUMING THAT THE AGENCY REBUTTED MS. KOBYLINSKI’S PRIMA FACIE CASE, THE AGENCY’S STATED REASONS ARE PRETEXTUAL

Even if the defendant successfully rebuts the plaintiff’s prima facie case, the plaintiff may still show that the defendant’s stated reasons for the plaintiff’s rejection are mere pretext. McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825. The pretext is clear in the present record. As noted above, the Agency preselected male candidates on at least three occasions. The Civil Service Commission also concluded that the Agency’s promotion procedures had not met the appropriate standards. Therefore, even assuming that the Agency successfully rebutted Ms. Kobylinski’s prima facie case, Ms. Kobylinski must prevail because the Agency’s justifications are a mere pretext for discrimination.

THE COURT FINDS THAT THE AGENCY DID NOT RETALIATE AGAINST THE CLASS

By Order of April 19, 1978, this Court conditionally certified this case as a class action. The conditionally certified class consisted of “all women who have applied for employment with or are currently employed by the United States Information Agency and who have been or continue to be adversely affected by the discriminatory employment practices of the defendant.” At that time, the only discriminatory practices at issue concerned “promotion and hiring practices.” Original Complaint ¶ 1. However, by Order of October 10,1978, the Court granted plaintiffs leave to file an amended supplemental complaint. That complaint, as amended, included a claim that the Agency “maintained a practice of reprisals against women who have filed sex discrimination charges against the Agency.” Supplemental Complaint ¶ 2. Thus, the action contains a class claim against the Agency based on its allegedly discriminatory retaliation. Although this Court denied the class claims, including the retaliation claim, by its October 24,1979, Findings of Fact and Conclusions of Law, it did not make any findings regarding the class retaliation claim. In remanding the case, the Court of Appeals directed this Court to make findings of fact and conclusions of law concerning this claim. The Court now considers that claim.

The class retaliation claim is brought under Section 704(a) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a). That section provides, in pertinent part:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by this title, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title.

42 U.S.C. § 2000e-3(a).

This section protects those plaintiffs who filed EEO charges against the defendant, or who otherwise “participated” in such a proceeding. It is also clear that the “opposition” clause of this section protects those plaintiffs whose opposition to the defendant’s practice fell short of actually filing EEO charges. Parker v. Baltimore and Ohio Railroad, 652 F.2d 1012, 1019 (D.C.Cir.1981). However, because of the language of the Supplemental Complaint, which limited the retaliation claim to “women who have filed sex discrimination charges”, the defendant seeks to preclude the Court from considering reprisals against women who did not file charges against the Agency. The Court rejects this contention because, ever since April, 1979, when the plaintiffs sought to enjoin the Agency from retaliating against individuals who opposed the Agency’s actions or who “otherwise exereise[d] their rights under Title VII”, the Agency has had sufficient notice that the plaintiffs’ class claim extended to women who opposed, in any way, the Agency’s discrimination. “Fair notice”, such as this, is all that is required. Conley v. Gibson, 355 U.S. 41, 48, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957). The Court also notes that throughout the period for discovery and the trial in this case, the defendant has not objected to any evidence on the basis that it was beyond the scope of the complaint. Thus, the class retaliation claim is not limited to plaintiffs who filed EEO charges; it encompasses all plaintiffs who have opposed the Agency’s discriminatory practices.

BECAUSE THE PLAINTIFFS HAVE FAILED TO PROVE A PATTERN OR PRACTICE OF REPRISALS, THEY HAVE NOT ESTABLISHED A PRIMA FACIE CASE OF CLASS-WIDE RETALIATION

The analytical framework for a retaliation claim derives from that announced in McDonnell Douglas, supra. To establish a prima facie case, an individual plaintiff must show that (1) she engaged in a protected opposition to unlawful discrimination, (2) her employer subsequently took an adverse employment action, and (3) there was a causal connection between the protected activity and the adverse action. Burrus v. United Telephone Company of Kansas, Inc., 683 F.2d 339, 343 (10th Cir.), cert. denied, 459 U.S. 1071, 103 S.Ct. 491, 74 L.Ed.2d 633 (1982); Hickman v. Flood & Peterson Insurance, 29 Fair Empl. Prac. Cases 1467, 1469 (D.C.Colo.1982). The present case involves a class claim of retaliation, however, not an individual one.

Claims based upon retaliation are “generally personal in nature.” Pendleton v. Crown, Cork & Seal Co., 31 Fair Empl. Prac.Cases 1701, 1705 (D.Md.1980). See also Colbert v. City of Wichita, 33 Fair Empl.Prac.Cases 218, 220 (D.Kan.1983) (retaliation usually takes many forms, and thus it is not well-suited for class treatment). Thus, there are very few cases involving class claims of retaliation such as this one. Because retaliation manifests itself in many ways, and often turns on facts peculiar to each case, the Court holds that, to establish a prima facie case, the retaliation must have been pursuant to a general practice of the defendant. Cf. General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 159 n. 15, 102 S.Ct. 2364, 2371 n. 15, 72 L.Ed.2d 740 (1982) (rejecting class certification for “across-the-board” attacks against various discriminatory practices, but leaving open the possibility that a single general practice of discrimination could justify a class, because “it is noteworthy that Title VII prohibits discriminatory employment practices, not an abstract policy of discrimination.”) (emphasis in original). Therefore, in the analytical framework mentioned above, step (2) must be modified in class actions to reflect the requirement that the adverse actions must have been taken pursuant to a general practice or policy of the defendant.

In presenting this class retaliation claim against the Agency, the plaintiffs chiefly rely upon deposition testimony, and related exhibits, of six female Agency employees. Plaintiffs’ Post-Remand Brief on Class Retaliation Claims at 1. As explained below, this evidence is insufficient to establish a general practice of reprisals taken by the Agency, and thus the plaintiffs have failed to present a prima facie case of retaliation.

Ms. Barbara Callihan testified for the plaintiffs. She was employed in the Current Affairs Division of the Voice of America as a researcher/writer. She complained to her supervisor, Mr. Hanu, that she felt that she was being asked to do secretarial-type duties. After she complained in writing about typing duties, Mr. Hanu wrote her a note stating, “As I told you before, no one refuses any type work in this division. If you are still unclear about your duties in this division, please consult your job description which, I am sure, contains the clause ‘plus any other type work assigned,’ etc. And if you are still unsatisfied, I will have to accept your resignation.” (Callihan Exhibit # 1).

However, Ms. Callihan also testified that Mr. Hanu’s temper was not aimed solely at women. She stated, “if you are asking me if he is picking on women, I couldn’t tell you. I don’t think he does.” (Callihan Deposition, 108). She further stated, in response to a question about whether his disagreements with employees was limited to women, “[m]an or woman, black or white, it doesn’t make a bit of difference if he is upset with you, but look out.” Id. Finally, Ms. Callihan testified that she knew of no one who was threatened with reprisals for their participation in the suit. Id. at 115.

Ms. Michala de Souza was a foreign language broadcaster in the Czechoslovakian Service who felt that she was assigned secretarial duties. She once complained to her supervisors, who responded that, because she was an alien, she should not complaint, (de Souza Deposition, 26-27, 58). Although she was frightened, id. at 34, after speaking with an Agency personnel officer, the situation was resolved to her satisfaction. Id. at 61. In fact, by the time of her deposition, she had recently been promoted. Id. at 59.

The plaintiffs also rely upon the deposition testimony of Anita K. Tong, who was employed in the Chinese Service as a producer. She complained to a union representative that she was required to perform greater services for less pay than males in the same job. (Tong Deposition, 43-44). She testified that she was severely criticized by her supervisors afterwards. Id. at 45-46. And, after her deposition, one of these supervisors signed an unfavorable performance evaluation for Ms. Tong. (Tr. 5/31/79, 46-48).

Ms. Deborah Showalter also testified. Although she was a college graduate, she applied and was hired as a clerk/typist. (Showalter Deposition, 6). She received some professional duties as a writer even though she remained a clerk/typist. Id. at 25. She felt as though she deserved a promotion, and she went over her supervisors’ heads to speak to the Deputy Administrator concerning a promotion. Id. at 26-27. This upset her supervisors, one of whom was Mr. Hanu. Ms. Showalter sought the help of a union representative to obtain a promotion. Id. at 46-60. Mr. Hanu had apparently called her a troublemaker, and at a staff meeting, he inaccurately stated that she had filed a class action against him. Id. at 71, 73-75. After realizing that his information was incorrect, Mr. Hanu publicly retracted the statement and personally apologized to Ms. Showalter. Id. at 83. As previously noted, some plaintiffs testified about Mr. Hanu’s temper, and that his disagreements are not limited to women. (Callihan Deposition at 108).

Ms. Etel Berger, a GS-9 foreign language broadcaster in the Brazilian Branch of Voice of America, testified as to Agency reprisals. She felt that she was performing the same duties as others at GS-11 or GS-12 levels. (Berger Exhibit # 8). She felt as though she would not receive a promotion, so she wrote a letter to the Director of Personnel announcing her intention to leave. (Berger Exhibit #9). Her supervisors then called her in for a meeting to discuss her problems. (Berger Deposition, 100). One of her supervisors, Ms. Lucille DePalma, did not like the way her voice sounded on the air, and suggested that she take some lessons on how to improve it. Id. at 102. Ms. DePalma also stated that Ms. Berger did not have enough experience to handle a particular show (“Informe”) because she had not worked on weekends, where the broadcast format is less structured and less supervised. Id. Ms. Berger said that she “welcome[d] the opportunity to” try the weekend work, and she was thereafter assigned such work. Id. at 102, 107. After she performed a particular Saturday show, the senior producer in the Brazilian Department applauded and congratulated her. Id. at 107-08. Also, after learning of Ms. Berger’s expressed intention to leave the Agency, the assistant to the Director of Voice of America had personally called her to express her appreciation for her work and to assure her that she would get a grade raise. Id. at 148.

Ms. Rose Kobylinski, the remaining individual plaintiff, testified that some women expressed fear for her because she was participating in the suit. (Tr. 5/30/79, 158). The plaintiffs have not demonstrated the grounds for this expressed fear. Nor is there any evidence that Ms. Kobylinski suffered reprisals for her participation in this case.

The plaintiff’s evidence does not establish the requisite policy or practice of discrimination. The plaintiffs chiefly rely upon the testimony of only six witnesses. Some (but probably not all) of these witnesses may have been able to substantiate individual claims of retaliation. However, there is no evidence of a general policy of retaliation in the Agency. The plaintiffs have presented no evidence linking these incidents. The alleged reprisals took various forms and came from various officials. In short, there is insufficient evidence to overturn this Court’s October 24, 1979, Finding of Fact that there is an “absence of any pattern or practice of discrimination based on sex at the Agency at all relevant periods in this litigation.” Medina v. Reinhardt, Nos. 77-0360, 77-2019, and 78-0762, slip op. at 11 (D.D.C. Oct. 24, 1979) (hereafter “slip op.”). Therefore, the plaintiffs have failed to establish a prima facie case of class-wide discrimination in the form of retaliation.

THE COURT FINDS THAT THE AGENCY DISCRIMINATED AGAINST WOMEN IN HIRING

During the trial of this case the Court heard considerable testimony from statistical experts. Each side presented an expert who subdivided the Agency’s workforce into occupational categories and sought to translate (“cross-map”) each Agency category into a Census category. Thus, the experts agreed on the basic methodology involved in defining the relevant labor market. However, in some instances, they disagreed as to which specific Census categories they would compare to the Agency’s occupational categories. In its October 24, 1979 Findings of Fact and Conclusions of Law, this Court held that the cross-mapping presented by both sides was insufficient to gain meaningful insight into whether the Agency’s hiring practices were discriminatory.

The Court finds that both plaintiffs’ and defendant’s experts have failed to produce sufficiently precise labor-pool-availability figures whether nationally or locally. Due to the inherent unreliability of broad and general cross-mapping with a specialized variety of highly-skilled positions at the Agency as compared to the available Census and BLS [Bureau of Labor Statistics] job categories, the “cross-mapping” done here is of little or no value in the case at bar.

The Court concluded that the plaintiff class had failed to establish a prima facie ease of discrimination under 42 U.S.C. § 2000e et seq.

The Court of Appeals reversed and remanded this part of the Court’s decision. After reviewing the Supreme Court’s holdings in International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), and Hazelwood School District v. United States, 433 U.S. 299, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977), the Court stated that this Court required too much precision in the use of statistics:

The standard of precision the district court demanded, far from being mandated by these cases, is unprecedented and unjustifiable, insofar as it results in a total rejection of the Census data as a basis for statistical comparisons to establish a prima facie case.

686 F.2d at 1005.

Noting that the Census has fewer occupational categories than the Civil Service system, the Court of Appeals stated:

We are satisfied that comparing Agency occupational categories to the broader Census categories is appropriate because all types of jobs the Census includes within any given Census occupational categories are sub-specialties of that occupation; thus, such aggregations retain “generally similar job skills” in common. Valentino v. USPS, 674 F.2d [56] at 68.

686 F.2d at 1006. Thus, the Court will turn to the merits of the class-wide hiring claim, considering the parties’ statistics.

In light of the Court of Appeals’ decision, this Court must reconsider its previous determination that there was insufficient evidence of a pattern or practice of discrimination at the Agency, (slip op. at 11). As the following analysis demonstrates, after careful scrutiny, the Court has also reconsidered its earlier determination that the conclusions of Dr. Wolfbein, the defendant’s expert, are entitled to more weight than those of Dr. Rosenblum, the plaintiff’s expert. Id. at 7. Upon reconsideration, the Court finds that, in six major occupational categories, which constitute approximately fifty percent of the Agency’s work force, the Agency has discriminated against women.

BECAUSE OF GROSS STATISTICAL DISPARITIES, THE PLAINTIFFS HAVE ESTABLISHED A PRIMA FACIE CASE OF DISCRIMINATION IN HIRING

In Hazelwood School District v. United States, the Supreme Court stated:

Where gross statistical disparities can be shown, they alone may in proper case constitute prima facie proof of a pattern or practice of discrimination.

433 U.S. at 307-08, 97 S.Ct. at 2741-42. Thus, plaintiffs may establish a prima facie case by demonstrating that statistically significant disparities exist between the proportion of female Agency employees by job category and their availability in the relevant labor market.

The plaintiff’s expert, Dr. Rosenblum, performed a relevant labor market analysis of the Agency’s work force to assess its utilization of women in comparison with the availability of women in the relevant labor market. Dr. Rosenblum obtained a list of the fourteen major occupational titles at the Agency. These occupational categories represented over 75% of the Agency’s workforce. Of those fourteen categories, Dr. Rosenblum eliminated four which were primarily clerical in function. Women who had sought employment with the Agency in these occupations are no longer class members since this Court modified the class to exclude women who applied for or were in clerical positions. (Order of October 24, 1979). Dr. Rosenblum then cross-mapped the Agency occupations with occupational categories used by the Bureau of Census.

After completing the cross-mapping, Dr. Rosenblum compared the proportion of women employed by the Agency in each of these ten categories with the proportion of women available in what he considered to be the most appropriate Census category, i.e., the relevant labor market. Dr. Rosenblum examined the Agency’s workforce as December 31, 1978. He determined that the disparities were not substantial in four of the ten major job categories. These four categories constituted about thirteen percent of the Agency’s total employment.

In six major categories, Dr. Rosenblum found statistically significant disparities between the Agency’s utilization of women and the availability of women in the appropriate Census category. These six categories were Electronic Technician, Foreign Language Broadcaster, Production Specialist, Writer/Editor, Foreign Information Specialist, and Radio Broadcast Technician. These six categories constitute about 50% of the Agency’s total employment. The following table summarizes Dr. Rosenblum’s standard deviation analysis concerning the utilization of women in these six categories:

UTILIZATION OF FEMALE WORKERS BY THE AGENCY
Job Title Employed Expected Difference Significance
Electronic Technician 10 9 2.97 S.D.
Foreign Language Broadcaster 60 114 54 10.23 S.D.
Production Specialist 28 43 15 2.82 S.D.
Writer, Editor 94 155 61 6.45 S.D.
Foreign Information Specialist 172 388 216 13.56 S.D.
Radio Broadcast Technician 64 59 14.77 S.D.

As Dr. Rosenblum testified, customary scientific practice recognizes that where the number of standard deviations of the difference exceeds 1.65, the disparity is unlikely to have occurred by chance. (Tr. 5/29/79, 124-125). The underutilization of women was significant in each of these six categories, where the standard deviations ranged from 2.82 to 14.77, in each case well beyond the threshold for statistical significance.

The defendant at this point attacks plaintiffs’ statistics in two major respects. The defendant questioned Dr. Rosenblum’s focus only on the larger Agency job categories rather than on each of the Agency’s occupations. The defendant also disputes the validity of Dr. Rosenblum’s cross-mapping to the Census categories in some occupations. As shown below, neither of these attacks defeats plaintiffs’ prima facie case.

The defendant asserts that Dr. Rosenblum’s analysis is flawed because it focuses on only about fifty percent of the Agency’s total employment. First, it must be noted that the class action no longer concerns those Agency employees in clerical positions, so Dr. Rosenblum properly excluded those employees from his analysis. (Slip op. of October 24, 1979, p. 7). Dr. Rosenblum also focused only on the major occupational categories at the Agency, those contained in the Agency’s affirmative action plan. (Tr. 5/29/79,146). Dr. Rosenblum was then left with ten major categories to analyze, which comprised sixty-three percent of the Agency’s total work force. Id. at 101. Of these ten categories, Dr. Rosenblum found significant underutilization of women in the six explained above. These six categories constituted slightly over fifty percent of the Agency’s work force. Id. at 147.

To the extent that the defendant quarrels with Dr. Rosenblum’s exclusion from analysis of numerically small categories, the defendant’s argument misses the mark. Ever since Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 611, 94 S.Ct. 1323, 1328, 39 L.Ed.2d 630 (1974), it has been clear that unreliable statistics based on small sample sizes are discouraged. See also Valentino v. United States Postal Service, 674 F.2d 56, 72 (D.C.Cir.1982) (numbers may be too small to properly conduct a statistical analysis, but “small numbers are not per se useless, especially if the disparity shown is egregious.”)

Moreover, a glance at some of the smaller occupational categories serves to confirm, rather than weaken, plaintiffs’ prima facie case. Indeed, the disparities seem to reach the “egregious” level mentioned in Valentino, supra. The following table, based on Defendant’s Exhibit # 6, sets forth twenty-one white collar occupational categories in which the Agency employed no females as of December 31, 1978:

OCCUPATIONAL CATEGORY TOTAL MALES FEMALES
Guard 12 12 0
History 110
Labor Relations 2 2 0
Office Service Management 110
Financial Management 110
General Engineer 2 2 0
Engineer Technician 11 11 0
Civil Engineer 4 4 0
Mechanical Engineer 11 11 0
Electronic Engineer 16 16 0
Photography 14 14 0
Tech. Writer & Editor 110
Gen. Facilities & Equipment 2 2 0
Facility Management 4 4 0
Printing Management 15 15 0
Equipment Specialist 6 6 0
Training & Instruction 110
General Supply 2 2 0
Supply Progress Management 2 2 0
Distribution Facilities 2 2 0
Traffic Management 5 5 0
115 115 0

The same exhibit, (Def. # 6), also demonstrates that the Agency employed no women in eighteen of the Agency’s twenty-three blue collar categories, where a total of sixty-two men were employed. However, because each of these categories contained sixteen men or fewer, these categories were insufficient in size to determine whether statistically significant disparities existed. Thus, Dr. Rosenblum was justified in eliminating them from his relevant labor market analysis.

In summary, Dr. Rosenblum did not perform a relevant labor market analysis in every Agency job category. Small categories, which could not support a meaningful statistical analysis, were not analyzed. Even in many of those categories, however, it appears that women were underutilized. Although Dr. Rosenblum properly refused to draw conclusions from these categories, Mayor of Philadelphia, 415 U.S. at 611, 94 S.Ct. at 1328, the Agency can find little comfort in his failure to analyze them.

The Agency also challenges Dr. Rosenblum’s cross-mapping in some of the six particular categories where Dr. Rosenblum found significant underutilization by women. Initially, it is noted that the plaintiffs and defendants agreed on which Census category to use for the Agency category of Electronic Technician. In two other Agency categories, the defendant’s choice for the proper Census category still leads to statistically significant disparities. Concerning the cross-mapping of the other categories, Dr. Rosenblum reviewed the job descriptions contained within the Civil Service Commission’s Qualifications Handbook, as well as additional material published by the Agency, to compare them to “the most compatible Census occupation[s].” (Tr. 5/29/79, 65-66). While the experts agreed as to this methodology, they disagreed as to the categories in some instances. The Court, however, finds that this is an area where reasonable experts could disagree. In short, at this prima facie case stage, the defendant’s attack on Dr. Rosenblum’s particular instances of cross-mapping would have the Court impose the “inappropriately high standard of precision” that has been rejected by the Court of Appeals. 686 F.2d at 1007.

Thus, because of the persuasive statistical disparities presented, the plaintiffs have established a prima facie case of sex discrimination in hiring for the six major occupational categories. See Hazelwood, 433 U.S. at 307-08, 97 S.Ct. at 2741-42 (“where gross statistical disparities can be shown, they alone may in a proper case constitute prima facie proof of a pattern or practice of discrimination.”)

THE DEFENDANT’S STATISTICS ARE INSUFFICIENT TO REBUT THE PLAINTIFFS’ PRIMA FACIE CASE

Once the plaintiffs have established through statistical evidence a pattern or practice of sex discrimination, the burden shifts to the employer to show that the plaintiffs’ “proof is either inaccurate or insignificant.” Teamsters, 431 U.S. at 360, 97 S.Ct. at 1867. Here the Agency attempts to rebut the plaintiffs’ prima facie case through the labor market analysis of its own expert, Dr. Seymour Wolfbein.

Dr. Wolfbein cross-mapped Agency categories to what he considered to be the most appropriate Census category, as did Dr. Rosenblum. Although the experts agreed as to methodology, their approaches differed in certain respects. The defendant, through Dr. Wolfbein, sets forth four main attacks on Dr. Rosenblum’s analysis. Dr. Wolfbein initially asserts that Dr. Rosenblum’s analysis was flawed because he only focused on approximately fifty percent of the Agency work force. Second, Dr. Wolfbein contends that Dr. Rosenblum’s analysis only provided a “snapshot” of the Agency’s work force, and did not consider the Agency’s hiring statistics over a period of time. Third, Dr. Wolfbein disagrees with Dr. Rosenblum’s judgment of which Census categories were appropriate in five of the six major categories where Dr. Rosenblum found significant underutilization of women. Fourth, Dr. Wolfbein asserts that Dr. Rosenblum should not have relied upon the 1978 Current Population Survey for employment data. However, none of these arguments rebuts the prima facie case established by the plaintiffs.

As previously explained, supra pp. 20-23, Dr. Rosenblum did not simply examine only one half of the Agency’s work force. He started with the numerically large categories, covering about seventy-five percent of the work force, then he properly eliminated those in clerical positions. After cross-mapping the remaining ten categories, he found statistically significant underutilization of women in six of those categories. It is these six categories which comprise about fifty percent of the Agency’s total employment.

In contrast to Dr. Rosenblum’s careful focus only on numerically large categories, Dr. Wolfbein performed a relevant market analysis for virtually all of the Agency’s positions, without regard to the size of the categories. Because he failed to take into account the small numerical size of many categories, however, Dr. Wolfbein’s analysis produced some extremely distorted results. For example, using Dr. Wolfbein’s cross-mappings and calculations for 1978 figures, Dr. Wolfbein concluded that in the Agency’s professional occupations, the proportion of women employed by the Agency exceeded their availability in eight of these occupations, while the proportion of women was below their availability in the remaining eight occupations. Thus, Dr. Wolfbein asserts that this presents a balanced employment of women by the Agency.

Upon closer examination of the actual number of employees involved, however, the distortion of these figures becomes apparent. For example, in some of the categories where Dr. Wolfbein found the Agency to have employed women in proportions exceeding the market availability, the Agency employed the following numbers of employees:

OCCUPATION TOTAL MALES FEMALES
Lawyer 10 8 2
Public Relations 12 6 6
Writer (Translator) 4 1 3
Research Workers n.e.c. 20 10 10

The size of these categories stands in stark contrast to two of the professional occupations where Dr. Wolfbein found a proportionately low number of women employees:

OCCUPATION TOTAL MALES FEMALES
Editors & Reporters 1,506 1,224 282
Technician 276 270 6

These numbers alone clearly demonstrate that Dr. Wolfbein’s attack on Dr. Rosenblum’s focus on large categories cannot be sustained. It is apparent that Dr. Rosenblum properly rejected categories with few employees. See Mayor of Philadelphia, 415 U.S. at 611, 94 S.Ct. at 1328.

Dr. Wolfbein’s hiring analysis suffers from the same problem as his utilization analysis: Dr. Wolfbein did not take into account the disproportionate results that numerically small categories would produce. In four of the nine professional job categories where Dr. Wolfbein found that the agency hired, from 1973 to 1978, more women proportionately than were available in the relevant labor market, the actual numbers are insignificant:

FULL TIME HIRES BY OCCUPATION, 1973-1978
OCCUPATION TOTAL MALES FEMALES _ _
Lawyer 12 11 1
Public Relations 4 1 3
Writer (Translator) 3 2 1
Research Workers, n.e.c. 7 3 4

In contrast to these small numbers are two of the seven professional categories where Dr. Wolfbein found a disproportionately low number of women hires:

FULL TIME HIRES BY OCCUPATION, 1973-1978
OCCUPATION TOTAL MALES FEMALES
Editors & Reporters 436 299 137
Technician 103 103 0

In light of these disproportionate results, Dr. Wolfbein’s hiring figures obviously cannot rebut plaintiffs’ prima facie case. Dr. Wolfbein simply has failed to show that Dr. Rosenblum’s focus on the statistically large categories is “inaccurate or insignificant.” See Teamsters, 431 U.S. at 360, 97 S.Ct. at 1867.

Dr. Wolfbein also attacks Dr. Rosenblum’s use of the 1978 Current Population Survey data. Dr. Wolfbein himself used data from the 1970 Decennial Census. Although the Current Population Survey used a smaller sample than did the Census, Dr. Wolfbein has failed to show that the figures are unreliable. Moreover, the 1978 figures are, of course, more recent than the 1970 figures. Thus, the Court finds that the choice of the more recent 1978 Current Population Survey statistics was a reasonable one.

Dr. Wolfbein’s final rebuttal argument attacks Dr. Rosenblum’s cross-mapping in four of the six relevant categories. When each category is individually analyzed, however, one can see that Dr. Rosenblum carefully selected an appropriate Census category for the cross-mapping.

For the Agency category of Radio Broadcast Technician, Dr. Rosenblum chose the Census Radio Operator category. Dr. Wolfbein disagreed, choosing the Census Electronic Technician category. However, even using the cross-mapping chosen by Dr. Wolfbein, both experts agreed that the Agency underutilized women in the Radio Broadcast Technician category to a statistically significant degree. (Tr. 5/29/79,160-61; Tr. 6/1/79, 99).

Dr. Rosenblum cross-mapped the Agency category of Foreign Information Specialist with the Census category of Writers and Artists not elsewhere classified. Dr. Wolfbein compared it to the Census category of Editors and Reporters. However, the availability of women in the Editors and Reporters category exceeded the availability of women in the category of Writers and Artists not elsewhere classified. Thus, had Dr. Rosenblum accepted Dr. Wolfbein’s cross-mapping in this category, the disparity found by Dr. Rosenblum would ■ have increased.

Dr. Rosenblum compared the number of women employed as Foreign Language Broadcasters with the availability of women in the Census category of Editors and Reporters. Dr. Wolfbein chose the Census category of Radio Announcers. However, the record demonstrates that Dr. Rosenblum’s choice was well-reasoned. He considered the duties required in that Agency position, and concluded that the Census Editors and Reporters category was the most appropriate “because of the emphasis on the writing and the preparation of the material.” (Tr. 5/29/79, 99). This conclusion is supported by the testimonial evidence of Agency employees in the Foreign Language Broadcaster category. Ms. Michala de Souza testified that her Broadcaster job involved duties such as “working on the programming, translating, writing, narrating, editing, ----” (de Souza Deposition, 22). Because of the consideration of the duties of a Foreign Language Broadcaster, Dr. Rosenblum’s choice of Editors and Reporters was an appropriate one. Dr. Wolfbein has failed to show that his choice was more appropriate.

Dr. Rosenblum cross-mapped Audio Visual Production Specialists with Writers and Artists, while Dr. Wolfbein compared them to the Census managerial category. Ms. Luba Medina testified that, as a producer, she was required to select and edit musical inserts, produce live radio shows, coach announcers, and control the timing of shows. (Tr. 12/15/80, 41-49). She also testified that the nonprofessional duties were simply “incidental”, and “not the essence of [her] job.” Id. at 44. This uncontradicted testimony demonstrates that the skills required of an Agency Audio Visual Specialist were those of a professional artist rather than a manager. Thus, Dr. Rosenblum properly chose the Writers and Artists category for this cross-mapping.

In sum, the defendant’s rebuttal attack on Dr. Rosenblum’s statistical analysis fails on all fronts. Dr. Rosenblum considered all statistically meaningful categories at the Agency, and found significant disparities in six major categories. Although he analyzed the Agency’s work force at a specific point in time, the defendant’s hiring statistics are clearly insufficient to rebut the plaintiffs’ prima facie ease. Dr. Rosenblum’s use of the 1978 Current Population Survey figures was justified because those statistics were much more current than the 1970 Census figures used by Dr. Wolfbein. Finally, Dr. Rosenblum carefully and appropriately cross-mapped each Agency category he considered. Therefore, the plaintiffs have presented and unrebutted prima facie case of sex discrimination at the Agency. This discrimination was particularly meaningful in six major Agency occupations. The Court finds that the plaintiffs are entitled to judgment in these six categories, which constitute approximately fifty percent of the Agency’s employment. See United States v. County of Fairfax, 25 Fair Empl. Prac.Cases 662, 666 (E.D.Va.1981) (where the court found liability in particular occupational categories).

CONCLUSION

The Court today has found that the Agency discriminated against the individual plaintiff, Rose Kobylinski, with respect to a promotion opportunity. The Court has also found significant discrimination against women as a class with regard to hiring in non-clerical Agency positions. This discrimination is meaningful in six major occupational categories, and the Court’s holding is limited to those categories. Finally, the Court has decided that the Agency did not maintain a pattern or practice of discrimination in the form of retaliation. In view of the fact that this case was bifurcated into liability and relief stages, the Court will next proceed to the question of relief. The Court has today issued an Order consistent with this Opinion, which Order shall direct the parties to attend a status call to address the question of further proceedings.

ORDER

For the reasons set forth in the Court’s Opinion of even date herewith, it is, by the Court, this 16th day of November, 1984,

ORDERED: That judgment as to liability be, and the same hereby is, entered against the defendant for the individual discrimination claim of Ms. Rose Kobylinski; and it is

FURTHER ORDERED: That judgment as to liability be, and the same hereby is, entered against the plaintiffs for the class claim of retaliation; and it is

FURTHER ORDERED: That judgment as to liability be, and the same hereby is, entered against the defendant for the class claim of discrimination in hiring; and it is

FURTHER ORDERED: that this case shall be set down for a status conference, to be held on the 3rd day of January, 1985, at 10:00 A.M. in Courtroom 11, at which time the Court will consider further proceedings in this case.

      . The Court, by Order of October 24, 1979, amended the class to exclude women employees in clerical positions.

      . The Court realizes that Falcon did not rule on the merits of the claim, but denied class certification. The Court also recognizes that, under Rule 23(c), Fed.R.Civ.P., it could even now deny certification. Cf. Larionoff v. United States, 533 F.2d 1167, 1183 (D.C.Cir.1976), aff'd 431 U.S. 864, 97 S.Ct. 2150, 53 L.Ed.2d 48 (1977); Jimenez v. Weinberger, 523 F.2d 689, 697 (7th Cir. 1975), cert. denied sub nom., Mathews v. Jimenez, 427 U.S. 912, 96 S.Ct. 3200, 49 L.Ed.2d 1204 (1976) (both cases ruling on class certification when also deciding the case on the merits). However, it has been over five years since this case was first filed, and the Court considers it best to finally reach the merits of this retaliation claim. This also seems to be what the Court of Appeals had in mind when it remanded this claim for findings of fact and conclusions of law. 686 F.2d at 1011.

      . In addition to the scientific community, the Supreme Court has also approved the use of standard deviation analysis. See Hazelwood, 433 U.S. at 311, n. 17, 97 S.Ct. at 2743 Castaneda v. Partida, 430 U.S. 482, 496-97, n. 17, 97 S.Ct. 1272, 1281, n. 17, 51 L.Ed.2d 498 (1977).

      . Indeed, for the Agency category of Foreign Information Specialist, the plaintiffs chose the Census category of Writers and Artists while the defendant compared it to the Census category of Editors and Reporters. Had Dr. Rosenblum sed the defendant’s category for comparison, because the availability of women there exceeded that in the Writers and Artists category, the" size of the disparity would have increased. (Tr. 5/29/79, 161-162).

      . The abbreviation "n.e.c." stands for “not elsewhere classified.’


source: Caselaw Access Project

author: LOUIS H. POLLAK, District Judge.

license: Public Domain

text:
    Brian P. McVAN and Michelle B. McVan v. BOLCO ATHLETIC COMPANY v. The UNITED STATES of America DEPARTMENT OF the ARMY.
    Civ. A. No. 84-0435.
    United States District Court, E.D. Pennsylvania.
    Nov. 20, 1984.

      Ronald L. Wolf, Litvin, Blumberg, Matusow & Young, Philadelphia, Pa., for plaintiffs.
    Arthur L. Shanker, Glenside, Pa., for defendant/third-party plaintiff Boleo Athletic Co.
    Edward T. Ellis, Asst. U.S. Atty., Philadelphia, Pa., for third-party defendant U.S.
   MEMORANDUM

LOUIS H. POLLAK, District Judge.

In this action, plaintiffs Brian and Michelle McVan seek to recover damages for injuries Brian McVan suffered in a softball game at Fort Dix, New Jersey in May 1982. The alleged injury occurred when plaintiff slid into second base; the design of the base and its anchor allegedly caused severe and multiple injuries to plaintiff’s leg.

Plaintiff filed this action against Boleo Athletic Company, the alleged manufacturer of the offending base. Boleo then filed a third-party complaint against the United States, alleging that plaintiff’s injuries, if any, were caused by the “negligence or other liability activity” of the Department of the Army. Third-Party Complaint at ¶ 3. The third-party complaint does not allege any particular facts which might give rise to a finding of negligence on the Army’s part.

The United States has moved to dismiss the third-party complaint, either under Federal Rule of Civil Procedure 12(b)(1) or under Rule 56(c), because the third-party complaint falls within the Feres doctrine, which holds that the Government has not waived sovereign immunity (and therefore cannot be sued) for injuries to those in active military service, when those injuries are “incident to” such service. See Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). See also Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977). Plaintiff has filed a memorandum in support of the Government’s motion.

Boleo opposes the Government’s motion on two grounds. First, Boleo urges that it has not had sufficient discovery to respond to a motion for summary judgment. See Fed.R.Civ.P. 56(f). Second, Boleo maintains that genuine issues of material fact remain as to the Army’s connection with the softball game and Bolco’s own relationship to the Army.

Although the Government initially characterized its motion as a motion to dismiss under Rule 12(b), all sides have since treated it as a motion for summary judgment. Accordingly, I will so consider it here. The threshold question is whether Bolco’s request for an extension of time in which to respond should be granted pursuant to Rule 56(f). If such an extension is not justified under Rule 56(f), I must consider whether, based on the affidavits before the court, there is a genuine issue of material fact that would justify permitting Boleo to go forward with its third-party claim against the Government. Fed.R.Civ.P. 56(c). See, e.g., Peterson v. Lehigh Valley District Council, 676 F.2d 81, 84 (3d Cir.1982); Betz Laboratories, Inc. v. Hines, 647 F.2d 402, 404 (3d Cir.1981).

I. Boleo’s Request for a Rule 56(f) Extension of Time

Federal Rule of Civil Procedure 56(f) provides relief for a party unable to respond to a motion for summary judgment because of insufficient opportunity for discovery. The purpose of the rule is to prevent premature grants of summary judgment in cases where, given adequate time to obtain discoverable material from the moving party, the party opposing the motion might be able to establish genuine issues of fact which would preclude summary judgment. See Ward v. United States, 471 F.2d 667, 670-71 (3d Cir.1973); C. Wright, A. Miller & M. Kane, Federal Practice and Procedure: Civil 2d § 2740 (1983). Under many circumstances, parties seeking relief under Rule 56(f) should be granted that relief “almost as a matter of course.” Ward v. United States, 471 F.2d at 670; Costlow v. United States, 552 F.2d 560, 563-64 (3d Cir.1977). Such is the case particularly where the party opposing the motion possesses critically important evidence and there is some reason for doubt about what that evidence may ultimately show. See Ward v. United States, 471 F.2d at 670-71.

At the same time, Rule 56(f) does not provide parties with a doctrinal vehicle for defeating motions for summary judgment based on unsupported speculation about what may be forthcoming if an extension is granted. Mid-South Grizzlies v. National Football League, 720 F.2d 772, 779-81 (3d Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 2657, 81 L.Ed.2d 364 (1984). Thus, the Rule states that a party must submit affidavits showing why it cannot “justify [its] opposition” to the motion in order to receive an extension of time in which to respond. The requirement that affidavits must be filed is no mere mechanical trap for unwary lawyers; rather, it serves the important purpose of preventing delay in cases where there is no basis for supposing that, if only the time for response is stretched out, an issue of fact may emerge. Judge Freedman’s exposition of this principle, quoted below, remains apt:

It is true that Rule 56(f) also authorizes the court in appropriate cases to refuse to enter summary judgment where the party opposing the motion shows a legitimate basis for his inability to present by affidavit the facts essential to justify his opposition; but to take advantage of this provision he must state by affidavit the reasons for his inability to do so and these reasons must be genuine and convincing to the court rather than merely colorable. It is not enough to rest upon the uncertainty which broods over all human affairs or to pose philosophic doubts regarding the conclusiveness of evidentiary facts. In the world of speculation such doubts have an honored place, but in the daily affairs of mankind and the intensely practical business of litigation they are put aside as conjectural.

Robin Construction Co. v. United States, 345 F.2d 610, 614 (3d Cir.1965) (quoted in Mid-South Grizzlies v. National Football League, supra, 720 F.2d at 779-80).

Judge Freedman's discussion applies to Bolco’s 56(f) motion on two levels. First, Boleo did not file an affidavit stating why it could not now respond to the Government’s motion. That omission is by itself sufficient reason to deny Boleo the relief it seeks. See Mid-South Grizzlies v. National Football League, supra, 720 F.2d at 780 & n. 4 (citing cases). In addition, the factual uncertainties raised in Bolco’s brief are, as I discuss below, either irrelevant to the legal issue raised by the Government’s motion or too speculative to constitute potentially “genuine” issues of fact under Rule 56(c). I will accordingly deny Bolco’s Rule 56(f) motion, and proceed to consider the Government’s motion for summary judgment pursuant to Rule 56(c).

II. The Government’s Motion for Summary Judgment

Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), establishes that a serviceman who suffers an injury incident to his military service cannot sue the United States for damages arising out of that injury. In Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977), the Supreme Court held that the Feres doctrine bars not only direct actions by service personnel against the Government, but also third-party actions seeking indemnity or contribution for injuries to service personnel incident to their military service. The Government argues that these cases render it immune from suit in this case, because plaintiff’s alleged injuries were suffered while plaintiff was on active duty and present on a military base.

Along with two briefs in support of its motion, the Government has submitted two affidavits. In the first affidavit, plaintiff Brian McVan states (1) that at the time of the softball accident he was a Captain in the United States Army, Judge Advocate General Corps; (2) that he “participated in an organized amateur office softball game at Headquarters Command Field at Fort Dix, New Jersey,” in which he sustained the injuries which led to this suit; and (3) that “the majority of participants in the aforementioned softball game consisted of active duty servicemen stationed at Fort Dix.” The second affidavit is of Robert K. Beske, whose title is stated as “Sports Director, Morale Support Activities Division, Directorate of Personnel and Community Activities, Fort Dix.” Mr. Beske states that the slow pitch softball league at Fort Dix is designed “to provide military personnel an opportunity to participate in a seasonal sport,” and that participating teams consisted of a mix of active-duty military personnel, retired military personnel, reservists, relatives, and “other individuals having command authorization.”

No other affidavits or exhibits have been submitted by any of the parties. Consequently, I accept the statements of plaintiff and Mr. Beske as true for purposes of deciding the Government’s motion. At the same time, I recognize that the submissions of the parties must be viewed in the light most favorable to Boleo. Accordingly, the following discussion assumes that plaintiff was neither on duty nor in any way acting under orders at the time of his accident.

Feres itself holds that service personnel may not maintain suits against the Government “where the injuries rise out of or are in the course of activity incident to service.” Feres v. United States, 340 U.S. 135, 146, 71 S.Ct. 153, 159, 95 L.Ed. 152 (1950). When the injury is not “incident to” the plaintiff’s military service, the Feres doctrine does not apply and suit is not barred under the Federal Tort Claims Act. United States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139 (1954); Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1949).

The line between these two categories is not bright. There is a good deal of language in judicial opinions to the effect that the inquiry is fact-specific and not easily susceptible to clear rules. See, e.g., Wood-side v. United States, 606 F.2d 134, 141 (6th Cir.1979), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980). Nevertheless, the Court of Appeals for the Third Circuit has delineated four factors to be taken into account in determining whether an injury was “incident to” military service under Feres: “the status of the injured soldier at the time of injury, the place of the injury, and the nature of the activity engaged in, and whether the injured party was acting under orders or compulsion.” Shearer v. United States, 723 F.2d 1102, 1105 (3d Cir.1983). Thus, claims arising from radiation exposure suffered during military tours of duty are barred by Feres, Heilman v. United States, 731 F.2d 1104, 1106-07 (3d Cir.1984); Jaffee v. United States, 663 F.2d 1226 (3d Cir.1981), cert. denied, 456 U.S. 972, 102 S.Ct. 2234, 72 L.Ed.2d 845 (1982), while claims arising from an off-base kidnapping/murder by an off-duty enlisted man are not barred. Shearer, supra, 723 F.2d at 1106.

In the instant case, the four Shearer factors do not all point in the same direction. Plaintiff was on active duty at the time of his injury, and the injury occurred on a military base. Plaintiff was not, however, “acting under orders or compulsion.” This last fact does not automatically decide the case: in Thomason v. Sanchez, 539 F.2d 955, 957 (3d Cir.1976), cert. denied, 429 U.S. 1072, 97 S.Ct. 809, 50 L.Ed.2d 790 (1977), the Third Circuit held that vehicular accidents on a military base cannot be the basis for a suit by a soldier against the Government. The plaintiff in that case, although on the base, was not on duty. Thomason v. Sanchez, 398 F.Supp. 500, 501 (D.N.J.1975), aff'd, 539 F.2d 955 (3d Cir.1976), cert. denied, 429 U.S. 1072, 97 S.Ct. 809, 50 L.Ed.2d 790 (1977). Thomason thus suggests that the absence of any evidence that plaintiff was acting under orders is a factor to be considered, but is not decisive.

The remaining factor listed by the court in Shearer — and the decisive factor in this case — is the nature of the activity in which the soldier was engaged at the time of the injury. 723 F.2d at 1105. There is no factual dispute about what plaintiff was doing when he hurt his leg: he was playing in a softball game on a military base. The game was apparently organized, although the degree of organization is unclear from the affidavits before the court. The game was also, taking the best possible view of the facts for Boleo, not a required activity for plaintiff or any of the other participants.

These facts describe a wholly recreational activity which utilized military facilities and was joined in by military personnel. The activity was not closely related to plaintiffs military work, although participation in it was linked to some extent with military status, as shown by the statement in plaintiff’s affidavit that a majority of the participants were military personnel. Plaintiff’s Affidavit at ¶ 4. The activity was thus tied to the facilities and organization of the base, but was not part of the official duties of the plaintiff or anyone else.

For purposes of determining the potential liability of the United States under Feres, the issue is the relationship between this activity and plaintiff’s military status. I begin by noting that this is not a case like Shearer, in which the Third Circuit found that such a relationship did not exist. Plaintiff’s decedent in Shearer was kidnapped and murdered by another enlisted man while on leave and off the military base to which he was assigned. 723 F.2d at 1104. The private who committed the murder, one Andrew Heard, had served time in prison for a murder he committed while stationed in Germany. The plaintiff argued that the Army had negligently failed to discharge or restrict Heard despite recommendations that it do so. Id. The Court of Appeals held that the Feres doctrine did not bar the plaintiffs action. Id. at 1106. In so holding, the court compared the activity at issue in Shearer with that involved in actions brought against the United States for medical malpractice at military hospitals:

Although receiving medical treatment in military hospitals may be considered an activity and benefit “incident to military service” and therefore barred under Feres, certainly being kidnapped off base at gun point can never be perceived as one of the activities or anticipated free benefits of being in the armed services. Thus, there is no legitimate basis on which Feres can bar appellant’s claim.

Id. Unlike the activity at issue in Shearer, the activity in the instant case does have some relation to plaintiff’s military status. Two important links are established by the affidavits offered by the Government: the participants in plaintiff’s activity were mostly other service personnel, Plaintiff’s affidavit at ¶ 4, and the activity advanced a military purpose. Affidavit of Robert K. Beske at ¶ 1.

I find those links sufficient to invoke Feres’ prohibition of suits against the Government for injuries sustained “incident to” military service, despite the fact that plaintiff was not acting under orders at the time of his injury and that the injury does not arise from any of plaintiff’s assigned duties. The Feres doctrine is not limited to activities involving the working relationship of soldiers and their superiors. Malpractice claims against military doctors do not ordinarily involve such a relationship, but Feres itself found malpractice claims within its scope where the plaintiff is in the military at the time of the alleged malpractice. 340 U.S. at 136-37, 146, 71 S.Ct. at 154-55, 159. See also Peluso v. United States, 474 F.2d 605 (3d Cir.) (per curiam), cert. denied, 414 U.S. 879, 94 S.Ct. 50, 38 L.Ed.2d 124 (1973). Similarly, automobile accidents between off-duty service personnel do not arise out of a soldier-to-soldier or soldier-to-commander relationship; such accidents nevertheless have been held to fall within the Feres doctrine when they occur on the injured party’s assigned military base. See, e.g., Thomason v. Sanchez, 539 F.2d 955, 957 (3d Cir.1976); cert. denied, 429 U.S. 1072, 97 S.Ct. 809, 50 L.Ed.2d 790 (1977); Watkins v. United States, 462 F.Supp. 980 (S.D.Ga.1977), aff'd, 587 F.2d 279 (5th Cir.1979). Cf. Johnson v. United States, 704 F.2d 1431 (9th Cir.1983) (accident occurred one mile off base and was caused by driver’s alcohol consumption which occurred after hours at on-base NCO Club; Feres doctrine held not to bar claim).

These cases suggest that the military activities which the Feres doctrine seeks to protect include the whole range of activities in which service personnel take part because of their military status. Thus, driving to an on-base auto parts store has been found to be an activity with enough military connection to justify applying Feres, see Warner v. United States, 720 F.2d 837 (5th Cir.1983) (per curiam), while driving off-base on vacation is not such an activity. See United States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139 (1954). And while recreational flying in a barracks aero club triggers Feres, see Eckles v. United States, 471 F.Supp. 108 (M.D.Pa.1979), off-base fights or personal violence, even between servicemen, does not. See Shearer, supra, 723 F.2d at 1106.

Under such a standard, on-base recreational activities, such as the softball game which led to this action, are clearly “military” enough to trigger Feres’ prohibition of suits against the Government. Such recreational activities serve as an outlet for the athletic skills and ambitions of service personnel. They may also serve to develop and maintain the participants' physical condition without the drudgery of required exercises. For these and other reasons, those courts that have considered the issue have found such activities within the scope of the Feres doctrine. See Hass v. United States, 518 F.2d 1138 (4th Cir.1975) (plaintiff injured while riding horse rented from military-owned stable; Feres applied); Chambers v. United States, 357 F.2d 224 (8th Cir.1966) (plaintiff's decedent died while swimming in on-base pool; Feres applied); Eckles v. United States, 471 F.Supp. 108 (M.D.Pa.1979) (plaintiffs decedent killed while flying in barracks aeronautics club; Feres applied); Knight v. United States, 361 F.Supp. 708 (W.D.Tenn.1972) (plaintiffs decedent drowned in on-base swimming pool; Feres applied), aff'd, 480 F.2d 927 (6th Cir.1973).

Boleo nevertheless contends that “many unanswered questions” remain regarding “the relationship of the plaintiff to the softball game and the relationship of the United States Government to Boleo Athletic Company.” Defendant’s Brief in Opposition to the Government’s Motion at 2. These questions, Boleo argues, preclude the granting of summary judgment in this case.

Plaintiffs affidavit defines his relationship to the softball game: he was a participant. Under the cases just cited, no more substantial relationship is necessary to trigger Feres. It suffices that plaintiff, a serviceman, participated in a recreational activity with other military personnel using military facilities. See Eckles, supra, 471 F.Supp. at 110.

The relationship between Boleo and the Government is wholly undefined on this record, but that relationship is also irrelevant to the Feres determination I must make. The Third Circuit has expressly rejected the argument that Feres’ application turns on the activity of the alleged tortfeasor. Shearer v. United States, supra, 723 F.2d at 1106. Thus, the nature of the Government’s supposed negligence, whether in design or inspection of the base or in organization of the softball game, does not affect Feres’ application to this case. Id.

I therefore hold that the activity in this case — a softball game involving military personnel on a military base — falls within the range of activities covered by the Feres doctrine. The nature of the activity is only one of four factors listed in Shearer, the others being plaintiff’s military status, the accident’s location, and whether or not plaintiff was acting under orders. As I discussed earlier, however, two of the other three Shearer factors — plaintiff’s military status and the accident’s location — weigh also in favor of applying Feres to bar the third-party action in this case. Accordingly, I hold that Feres does apply and would bar plaintiff from instituting this action directly against the Government. It follows that Boleo cannot bring this third-party action against the Government unless the Government’s waiver of sovereign immunity is greater as to Boleo than as to plaintiff.

Under Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977), Boleo is precluded from pursuing, as a third-party action against the United States, a claim which plaintiff could not, by virtue of Feres, sue on directly. I have held that plaintiff would be precluded from bringing an action against the Government for damages for the injury alleged here. Boleo is thereby precluded as well.

For the foregoing reasons, Bolco’s motion for an extension of time under Rule 56(f) is DENIED, and the Government’s motion for summary judgment is GRANTED. An order to that effect is attached.

      . Although both Brian and Michelle McVan are plaintiffs in this action, I use "plaintiff’ in this opinion to mean Brian McVan. I adopt this usage for the sake of convenience, and express no opinion on the merits of Michelle McVan’s claims in this case.

      . By “on duty," I mean that status in which a serviceman is on the job. Plaintiff, in any given day, would have both on- and off- duty time. This is to be contrasted with "active duty,” which refers to an ongoing status of military employment.

      . Plaintiffs affidavit states that plaintiff was injured in "an organized amateur softball game.” Plaintiffs Affidavit ¶ 3. Mr. Beske’s affidavit states that ”[t]he purpose of the slow pitch softball league at Fort Dix, New Jersey is to provide military personnel an opportunity to participate in a seasonal sport.” Affidavit of Robert K. Beske ¶ 1. Neither affidavit expressly states that the game in which plaintiff was injured was played as part of the league to which Mr. Beske refers, nor does either affidavit state that that league was organized by Mr. Beske or other military officials at Fort Dix. Because I must resolve all factual ambiguities in Bolco’s favor for purposes of deciding the Government's motion, I therefore cannot conclude that the game was part of a military-organized softball league.
      At the same time, the affidavits do establish (1) that the game was played on a military base, (2) that most of the participants were military personnel, Plaintiff s Affidavit ¶ 4, and (3) that the military gave some degree of official sanction to such voluntary recreational activities (thus Mr. Beske’s statement about the purpose of the slow pitch softball league). My discussion assumes that this describes the extent of the connection between Fort Dix and the softball game which gave rise to this lawsuit.

      . Of course, in some sense every interaction between members of the Armed Forces involves the working relationship of the actors, since even off-duty soldiers are subject to the orders' of their superiors. The point is especially true of contact between soldiers one or both of whom is on duty. This is the sense in which military doctors have a "command” relationship with the service personnel in their care. See Bailey v. DeQuevedo, 375 F.2d 72 (3d Cir.), cert. denied, 389 U.S. 923, 88 S.Ct. 247, 19 L.Ed.2d 274 (1967); Schwager v. United States, 326 F.Supp. 1081, 1085 (E.D.Pa.1971).
      Nevertheless, there is a substantial difference between the case in which the injured soldier has an ongoing working relationship with the persons alleged to have caused his injury and the case in which no such relationship exists. In malpractice actions, contact between injured party and tortfeasor is largely limited to the events surrounding the injury. If Feres were limited to those situations which involved ongoing soldier-commander relationships, therefore, malpractice actions would not be covered.

        Feres itself establishes that the immunity doctrine it spawned applies to both sorts of military relationships. The Feres opinion decided three separate appeals, two of which involved alleged malpractice by military doctors, and one of which alleged negligent failure to correct a dangerously flawed barracks heating system. Feres, 340 U.S. at 136-37, 71 S.Ct. at 154-55. In each of the three cases, the Government was held to be immune from suit. Id. at 146, 71 S.Ct. at 159.

      . There is language in Henning v. United States, 446 F.2d 774 (3d Cir.1971), cert. denied, 404 U.S. 1016, 92 S.Ct. 676, 30 L.Ed.2d 664 (1972), that suggests otherwise. See id. at 777. Henning was, however, expressly considered in Shearer, the court finding that Henning "did not adopt a tortfeasor status-activity analysis as the lower court suggested.” Shearer, supra, 723 F.2d at 1106. Thus, the Shearer court analyzed the "nature of the activity” exclusively in terms of the Shearer plaintiff's activity at the time of his death: "certainly being kidnapped off base at gun point can never be perceived as one of the activities or anticipated free benefits of being in the armed services." Id. The allegedly negligent activity in Shearer — permitting an emotionally disturbed soldier with a violent criminal record to remain in the Army — was not a factor in the court’s Feres determination.


author: HULL, District Judge.

text:
    FIRST AMERICAN NATIONAL BANK EASTERN, Trustee v. FEDERAL DEPOSIT INSURANCE CORPORATION, et al.
    No. CIV-2-83-409.
    United States District Court, E.D. Tennessee, Northeastern Division.
    Nov. 23, 1984.

      Walter L. Price, Johnson City, Tenn., for plaintiff.
    Earl D. Wilson, Scott R. Fransen, Ambrose, Wilson & Grimm, Knoxville, Tenn., for defendants.
    Craig J. Donaldson, Knoxville, Tenn., for William B. Greene, Jr. and Sr. and Greene Inv. Corp.
    E. Reynolds Davies, Jr., Henry Haile, Morton, Lewis, King & Krieg, Nashville, Tenn., for FDIC.
    Dale Allen, Rick Bearfield, Baker, Worthington, Crossley, Stansberry & Woolf, Johnson City, Tenn., for Blount Nat. Bank.
    Robert R. Campbell, Dean B. Farmer, Knoxville, Tenn., for Merrill-Lynch.
    Bernard E. Bernstein, David L. Buuck and D. Scott Hurley, Claiborne, Buuck & Hurley, Knoxville, Tenn., for Citizens Bank of Sneedville.
    Thomas N. McAdams, Knoxville, Tenn., for Joe Snyder.
   ORDER

HULL, District Judge.

This is an action for declaratory judgment on the issue of who is entitled to receive distribution of certain funds currently in the possession of plaintiff First American National Bank — Eastern (FANB) as successor trustee to First Peoples Bank of Washington County (FPB). The action came before the Court for a hearing on cross-motions for summary judgment on November 9, 1984.

I.

The following undisputed facts gave rise to this litigation:

On January 14, 1969, the shareholders of FPB authorized the bank to increase its capital through the issuance of convertible debentures in the total amount of $700,-000.00 at 6°?o interest, payable semi-annually, with a maturity date of not more than fifteen years from the date of issuance; and, by resolution of April 8, 1969, the bank’s board of directors approved the issuance of $700,000.00 in principal amount of 6% convertible debentures and directed the bank’s officers to prepare the certificates. The resolution also provided, in relevant part, that:

BE IT FURTHER RESOLVED: That following the sale of the debentures there shall be accumulated in a “Sinking Fund” on deposit in the First Peoples Bank in the name of the President as Trustee for the debenture-holders, and to be deposited without interest, the sum of $46,666.67 per annum, which sum when accumulated to the amount of $700,-000.00, or any portion that is accumulated at the time of the payment of the debentures, shall be issued to pay off such debentures as may demand cash at the maturity of the notes or when the notes are called.

The debenture certificates as approved by both the Federal Deposit Insurance Corporation (FDIC) and state banking department provided a maturity date of “on or before June 1, 1984” and contained the following provision:

The [bank] will deposit in the Bank in an Escrow Deposit the sum of at least $46,-666.67 per annum which will be accumulated to provide a fund for the repayment of the debentures. '

The sinking fund or escrow account contemplated by the board of directors was established at the bank some time after the issuance of the debentures in June of 1969. No deposits were made until 1970 when the bank transferred $93,333.37 from its general fund into the account. On December 3, 1971, the sinking fund balance was transferred to an account in the trust department of FPB in accordance with the terms of a trust agreement entered into by the bank and itself as trustee for the debenture holders dated November 22, 1971. The trust agreement provided, in relevant part:

THIS TRUST AGREEMENT, made and entered into ... by and between FIRST PEOPLES BANK ... and FIRST PEOPLES BANK, AS TRUSTEE, for the holders of the six (6%) percent Convertible Debentures due 1984...
NOW, THEREFORE, ... the Bank and the Trustee agree as follows:
1. That the Trustee shall act as Trustee for the holders of the six (6%) percent debentures of the Bank due in 1984.
2. That the Bank shall deposit with the Trustee the sum of Ninety Three Thousand Three Hundred Thirty Three Dollars and Thirty Four Cents ($93,333.34) upon the execution of this agreement and shall thereafter during the term of this agreement deposit, on or before the 1st day of May of each year, the sum of $46,666.67 as a sinking fund for the payment of the 6% convertible debentures due 1984 of the Bank.
3. During the term of this Agreement the Trustee shall invest the funds received from the Bank in securities issued or guaranteed by the United States Government and no others and to pay to the Bank, at least annually, any interest earned thereon.
4. The securities held in such sinking fund by the Trustee shall be clearly designated as being held by the Trustee as security for the debenture holders, and shall be physically segregated from other assets held by the Trust Department of the Bank.
5. The Trustee shall have the right at any time to resign and to appoint a Successor Trustee and in the event of the inability of the Trustee to act, then the president of the Bank shall have the authority to appoint a Successor Trustee.
6. The terms of the trust debentures give First Peoples Bank the option to pay the debentures after five (5) years and holders have the option to convert same to stock or be paid in cash. On Proof that First Peoples Bank has exercised its option, and holders have converted or been paid the debentures, this agreement shall terminate and Trustee will deliver the investment or the money from sale of same to the Bank, and the Trust will be terminated.

The bank also transferred the sum of $42,779.79 into the sinking fund on December 3, 1971. Thereafter, with a few exceptions, monthly transfers of $3,888.89 were made beginning December 29, 1971, and ending May 4, 1981. The bank transferred $44,666.67 into the sinking fund on May 4, 1982, $2,000.00 more was added on May 5, 1982, and $46,666.67 was transferred on May 11, 1983, shortly before the bank failed (as of July 24, 1984, the market value of the sinking fund was $751,776.80).

On July 29, 1983, the Tennessee Commissioner of Financial Institutions declared FPB insolvent, and immediately closed and assumed possession of the bank. The FDIC was appointed receiver and the bank is currently in liquidation. Also on July 29, 1983, with the approval of the Chancery Court for Washington County, Tennessee, the FDIC as receiver and plaintiff FANB entered into a purchase and assumption agreement whereby FANB purchased certain assets of and assumed the deposits and other liabilities of the former bank. Pursuant to Section 17 of the Purchase and Assumption Agreement of July 29, 1983, FANB accepted the trust duties and obligations of FPB.

FANB filed this action in December of 1983 seeking a declaration that all of the sinking fund assets in its possession should be paid, pro rata, to the holders of the debentures issued by FBP in 1969. The FDIC and the debenture holders were named defendants. Subsequently, the FDIC filed a counterclaim seeking a declaration that it is the lawful owner of the fund in question. Counterclaims were also filed by several of the debenture holders.

II.

This action is now before the Court on cross-motions for summary judgment by plaintiff FANB, defendant and counter-claimant Joseph C. Snyder, Jr., Executor of the Estate of Beulah Snyder Rose (as a debenture holder), and defendant and counter-claimant FDIC.

The primary question in this case is simply who is entitled to receive distribution of the sinking fund assets — the debenture holders or the FDIC in its corporate capacity as assignee of the receiver of the failed bank and as subrogee to the rights of its former depositors? If the debenture holders are entitled to distribution of the fund, then a number of other issues arise, including: whether the FDIC is entitled to recover payments made into the fund at a time when the bank’s capital was impaired; whether the FDIC is entitled to recover interest attributable to the fund after FPB was declared insolvent; whether FANB’s attorneys are entitled to recover fees and costs out of the fund; and, in a few instances, who is the lawful owner of certain debentures.

III.

Section 45-2-208(a) and (b) of the Tennessee Code Annotated provides as follows:

(a) Any bank after obtaining the prior approval of the shareholders owing two-thirds (%) of the stock of the bank entitled to vote and after obtaining the prior approval of the commissioner, may issue and sell its convertible or nonconvertible capital notes or debentures. Capital notes or debentures which are by their terms convertible into stock may be converted into shares of common or preferred stock in accordance with such provisions therefor as may be made in such capital notes or debentures with the approval of the commissioner.
(b) Capital notes and debentures issued by banks shall be unsecured indebtedness of the bank and shall be subordinate to the claims of all depositors and of all other creditors of the bank, regardless of whether the claims of such depositors arose before or after the issuance of such capital notes or debentures. In order to secure the payment of any such capital notes or debentures, however, provisions for sinking funds may be made. In the event of liquidation, all depositors and all other creditors of the bank shall be entitled to be paid in full before payment shall be made on account of principal or interest on such capital notes or debentures. No payment shall be made at any time on account of the principal thereof unless following such payment the aggregate of the capital, surplus and undivided profits and capital notes or debentures thereafter outstanding shall be at least equal to such aggregate immediately before the original issuance of such capital notes or debentures, or as may otherwise be expressly authorized by the commissioner. The claims of holders of capital notes or debentures shall, however, be superior to the claims of stockholders for dividends or other claims on account of shares of capital stock held by them, (emphasis added).

The debenture holders rely primarily on the second sentence of T.C.A. § 45-2-208(b) as the basis for their claim of entitlement to the funds, while the FDIC, for the most part, relies on the first, third, and fourth sentences of T.C.A. § 45-2-208(b) to support its counterclaim. Statutory construction thus becomes central to the outcome of this case.

IV.

Debentures issued by a bank are ordinarily unsecured indebtedness of the bank and are subordinate to the claims of general creditors. However, sentence two of T.C.A. § 45-2-208(b) makes the provision that: “In order to secure payment of any such capital notes or debentures, however; provisions for sinking funds may be made”.

In this instance, the resolutions of FPB’s board in 1969 provided, in part, “[t]hat following the sale of the debentures there shall be accumulated in a ‘Sinking Fund’ in the [FPB] in the name of the President as Trustee for the debenture-holders...” The 1971 trust agreement provided that the agreement was made between FPB and FPB “AS TRUSTEE, for the holders of the six (6%) percent Convertible Debentures ... ”; that FPB would deposit “on or before the 1st day of May of each year, the sum of $46,666.67 as a sinking fund for the payment of the 6% convertible debentures ... ”, and that “[t]he securities held in such sinking fund ... shall be clearly designated as being held by the Trustee as security for the debenture holders, and shall be physically segregated from other assets held by the Trust Department of the Bank.” It is undisputed that an escrow account was established in the name of FPB’s President as Trustee for the debenture holders some time after the issuance of the debentures in 1969 and that the money from the escrow account was transferred into a segregated account in the trust department of FPB in 1971.

The debenture holders contend that the Court, when construing this statute, should assume that the legislature used each word purposefully so that no statutory expression becomes superfluous or without meaning. So construed, the debenture holders contend that T.C.A. § 45-2-208(b) must be read to provide that debentures holders may become secured through provisions for sinking funds. The Court agrees. The debenture holders also claim that the resolutions passed by FPB’s board on April 8, 1969, the subsequent issuance of the debenture certificates with the provision for the escrow account, and the trust agreement properly established a sinking fund under T.C.A. § 45-2-208(b). After careful review of the documents and records before the Court along with argument of counsel for the parties at the hearing on November 9, 1984, the Court finds that FPB through its resolutions, debenture certificate, escrow account and trust agreement did properly and legally establish a sinking fund. FDIC asserts that the debentures could not have been paid if they had matured in 1988, because FPB’s capital was impaired (since it was insolvent at that time) and that such payment would violate the public policy as expressed by the prohibition contained in the fourth sentence of T.C.A. § 45-2-208(b). The FDIC interprets this sentence to mean that “[pjayment by a bank of any principal amount of its capital notes or debentures cannot occur at a time when payment would reduce the bank’s aggregate capital below the amount existing immediately prior to the issuance and inclusion of the debentures in the capital structure of the bank (emphasis added)”. However, the sentence does not say “of any principal amount”; rather, sentence four says that “[n]o payment shall be made at any time on account of the principal thereof...”

The Court finds that reading the statute as a whole, sentence four of T.C.A. § 45-2-208(b) should be construed to prohibit payment into the principal account of a sinking fund while the capital of the bank is impaired, not payment out of the principal to the debenture holders while the capital of the bank is impaired.

The FDIC also contends that the transfers made by FPB into the sinking fund were not payments to the debenture holders within the meaning of the banking act because FPB represented that the sinking fund balance was an unrestricted asset of the bank both before and after the establishment of the sinking fund as a trust obligation. Thus, the FDIC reasons that the proper time for determining the bank’s ability to pay its debentures is at the time of actual distribution and since FPB became insolvent prior to distribution, the assets must now be distributed by the receiver.

After careful review of the entire record, the Court finds that payments within the meaning of the banking act were made into a clearly segregated sinking fund account — said account was first an escrow account with the president of FPB as trustee for the debenture holders and then became a segregated sinking fund within the trust department of FPB (from which, pursuant to the trust agreement, funds were invested in securities issued or guaranteed by the United States Government and no others) with the bank as trustee for the debenture holders.

A further contention of the FDIC is that the third sentence of T.C.A. § 45-2-208(b) prohibits distribution of the sinking fund to the debenture holders now that FPB is in liquidation. This interpretation of the statute, however, would render meaningless the second sentence regarding sinking funds. As pointed out by counsel for the debenture holders at the hearing on November 9, 1984, a person does not seek security against the possibility that a bank will remain solvent and prosper; rather, a person seeks security against the possibility of insolvency and liquidation.

The final contention brought by the FDIC is that the debenture holders have unperfected security interests in the assets of the sinking fund which are subordinate to the rights of the FDIC as a lien creditor. The FDIC asserts that FPB, rather than the debenture holders, is the true beneficiary of the trust agreement of 1971, and that, as secured creditors of the trust instead of beneficiaries, their security interests are unperfected since they do not have possession of the securities purchased by the trustee. However, after careful review of the trust agreement, the Court finds that the debenture holders are the beneficiaries of the trust agreement. FPB held the funds as trustee for the debenture holders and pursuant to the trust agreement invested the funds in securities issued or guaranteed by the United States Government and no others.

At common law, the beneficiary of a trust account with a bank is entitled to the funds held in trust by the bank if the beneficiary can establish the existence of a trust relationship and can trace or identify the trust funds. In this case, a legal document established an escrow account with FPB’s president named as trustee for the debenture holders; a formal trust agreement was executed; and payments were made by the bank into the trust fund maintained by the trust department. The funds are easily traced and identified as separate funds — segregated from the other assets managed by the trust department.

V.

After careful consideration of the entire record before the Court, including oral argument by counsel for the parties at the hearing on November 9, 1984, it is ORDERED that the motions for summary judgment by FANB, Joseph C. Snyder, Jr., Executor of the Estate of Beulah Snyder Rose, and the FDIC are hereby GRANTED IN PART and DENIED IN PART.

Accordingly, judgment is hereby entered declaring:

(1) That the FDIC is entitled to recover from the fund $46,666.67 plus interest paid by FPB into the fund on May 11, 1983, at a time when the bank’s capital was impaired. T.C.A. § 45-2-208(b) and T.C.A. § 45-2-1502(d)(2) (Supp.1983).

(2) That the FDIC is entitled to recover all interest or earnings attributable to the fund from July 29,1983 (the date FPB was declared insolvent) to June 1, 1984 (the maturity date on the debenture certificates), pursuant to paragraph 3 of the agreement.

(3) That FANB’s attorneys are entitled to recover their reasonable attorneys’ fees and costs to be paid out of the fund.

(4) That the debenture holders are entitled to recover their pro rata share of the remaining fund. T.C.A. § 45-2-208(b).

(5) That Scott Fransen as Trustee in Bankruptcy for Earl Wilson is entitled to recover any payment for any debentures held by Earl Wilson or Wilson Properties, Ltd. (undisputed in the record).

(6) That Jennie Velma Bryant, Executrix of the Estate of Frank Bryant is entitled to recover any payment for any debentures held by Frank Bryant (undisputed).

(7) That Merrill Lynch, Pierce, Fenner & Smith, Inc. has no interest in the debentures and is hereby DISMISSED from this action.

(8) That the dispute between Joe Snyder, Executor of the Estate of Beulah Snyder Rose, James Martin, Trustee in Bankruptcy for C.H. Butcher, Jr. and Blount National Bank (over entitlement to any payment for any debentures which were or may be held by C.H. Butcher, Jr.) was reported to the Court at the November 9, 1984 hearing as having been resolved, and therefore, that this issue is hereby DISMISSED as moot.

The Court was also asked to resolve the issue of who shall be responsible for the payment of capital gains taxes in connection with the fund. The Court hereby declines to render an advisory opinion on the tax issue.

      . The debenture certificates also provided that "[t]he indebtedness evidence [sic] by the debentures, is to the extent and in the manner provided in the indenture, subordinate and subject in right of payment to the prior payment in full of all Senior Debt (as defined in the indenture) of the [bank] whether outstanding at the date of the indenture or thereafter incurred. Each holder of this debenture, by his acceptance hereof, agree to and shall be bound by all the provisions of the indenture relating to such subordination." However, it is apparent from the record that no indenture ever existed. This provision, therefore, is not material to the outcome of the case.

      . The parties are in dispute as to whether the FDIC advised FPB to transfer the funds in the escrow account to a separate account in the bank’s trust department as provided in the trust agreement. This fact, however, is not material to the outcome of the case.

      . Although FANB accepted the trust duties of FPB, it expressly declined to assume any liability with regard to the trust for retirement of the 6% convertible debentures sold by FPB in 1969. Section 2.4 of the Purchase and Assumption Agreement of July 29, 1983 reads as follows: “Debentures. Assuming Bank hereby assumes no liability whatever in connection with payment of the six percent (6%) Convertable Debentures due 1984 (as described in a Trust Agreement dated November 22, 1981 by and between First Peoples Bank of Johnson City, Tennessee, and First Peoples Bank as Trustee for the holder of the six percent (6%) Convertible Debentures due 1984).”

      . No case law directly on point was cited by any of the parties, nor was any such case law found by the Court.

      . Cf. Warder v. Brady, 115 F.2d 89, 96 (4th Cir.1940) (A sinking fund under a bond mortgage is a trust fund, the title to which passes from the debtor to the trustee who holds it for the benefit of the bondholders.); Jenkins et al. v. Dugger, 96 F.2d 727, 730 (6th Cir.1938) (A sinking fund paid to any one other than the lender by a borrower is nothing more than additional security.).

      . At the hearing on November 9, 1984, the Court instructed said attorneys to file affidavits itemizing hours and expenses. The Court also indicated that it is willing to consider briefs from interested parties on the issues of the amount of attorneys' fees to be awarded and whether the award should be paid out of the fund.