author: MYRON L. GORDON, Senior District Judge.

text:
    Gunther GRAEFENHAIN, Philip Miller and Robert E. Loucks, Plaintiffs, v. PABST BREWING COMPANY, Defendant.
    No. 83-C-1670.
    United States District Court, E.D. Wisconsin.
    Nov. 2, 1985.

      Frank Schiro, Milwaukee, Wis., for plaintiffs.
    Michael, Best & Friedrich by John Sapp, John Busch, Milwaukee, Wis., for defendant.
   DECISION and ORDER

MYRON L. GORDON, Senior District Judge.

The plaintiffs brought this action under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq. The liability issues were tried to a jury; the damage issues were tried separately to the court. The jury returned a special verdict finding that the defendant, Pabst Brewing Company (Pabst), willfully discriminated against plaintiffs Gunther Graefenhain and Philip Miller by terminating them on the basis of age. At the time of their termination, Mr. Graefenhain was 47 years old and Mr. Miller was 62 years old. The jury also found that Pabst did not terminate plaintiff Robert Loucks because of his age. On March 11, 1985, the court entered judgment in the case and issued a decision and order on the damage issues. Mr. Graefen-hain was awarded nominal damages of $1.00. Mr. Miller was awarded $28,291.00 in liquidated damages and Pabst was ordered to reinstate him to his former position or a comparable one. In the event Mr. Miller refused reinstatement, Pabst was ordered to pay him damages of $56,582.00— $28,291.00 for his lost pension benefits and a like amount as liquidated damages.

Pabst has moved for judgment notwithstanding the verdict pursuant to Rule 50(b), Federal Rules of Civil Procedure, contesting the jury’s findings that the company willfully discriminated against Mr. Grae-fenhain and Mr. Miller on the basis of age. Plaintiffs Graefenhain and Miller have moved to amend the judgment to award them front pay damages, pursuant to Federal Rule of Civil Procedure 59(e). They also have moved the court to fix a superse-deas bond or, alternatively, to order the judgment placed in an escrow account. The defendant’s motion for judgment notwithstanding the verdict will be granted. The plaintiffs’ motions will be dismissed as moot.

In support of its motion for judgment, Pabst contends that no reasonable jury could have found that Mr. Graefenhain and Mr. Miller were terminated because of their age or, alternatively, that no reasonable jury could have found that the discrimination was willful. In deciding a motion for judgment, the court must consider whether the evidence presented, combined with all reasonable inferences that can be drawn from it, is sufficient to support the verdict when viewed in the light most favorable to the prevailing party. Syvock v. Milwaukee Boiler Mfg. Co., 665 F.2d 149, 153 (7th Cir.1981). It is not the court’s role to judge the credibility of the witnesses or to reweigh the evidence to find a preponderance on one side or the other. La Montague v. American Convenience Products, Inc., 750 F.2d 1405, 1410 (7th Cir.1984). The court, nonetheless, will consider whether the evidence to support the verdict is substantial; “a mere scintilla of evidence will not suffice.” Id.

The plaintiff in an age discrimination case has the burden of proving that he was discriminated against in employment because of his age. Golumb v. Prudential Ins. Co. of America, 688 F.2d 547, 550 (7th Cir.1982). To do so, he need not prove that age was the sole factor motivating the employer to terminate him but that age was a determining factor in the sense that “but for” the discrimination he would not have been terminated. La Montague, supra, 750 F.2d at 1409.

The plaintiff may attempt to meet this burden directly, by presenting direct or circumstantial evidence of discriminatory motive, or indirectly. Courts have generally employed modified versions of the formula set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), to cases involving indirect proof of age discrimination. See Huhn v. Koehring, 718 F.2d 239, 243 (7th Cir.1983); Kephart v. Institute of Gas Technology, 630 F.2d 1217, 1222 (7th Cir.1980), cert. denied, 450 U.S. 959, 101 S.Ct. 1418, 67 L.Ed.2d 383 (1981).

In this circuit, a plaintiff claiming that he was terminated from his job because of his age must first prove a prima facie case of discrimination by showing that: (1) he was in the protected age class; (2) he was performing his job well enough to meet his employer’s legitimate expectations; (3) he was discharged despite his performance; and (4) the employer sought to replace him with a younger person. La Montagne, supra, 750 F.2d at 1409. If the plaintiff establishes a prima facie case, the defendant then has the burden of articulating legitimate, nondiscriminatory reasons for the termination. Id. The defendant’s burden is one of production only; the burden of persuasion remains with the plaintiff throughout the case. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981). If the defendant satisfies its burden, then the plaintiff must prove that the reasons articulated by the defendant were a pretext, or cover-up, and were not its true reasons; this can be done by the plaintiff’s showing either that a discriminatory reason more likely than not motivated the defendant or that the reasons offered by the defendant are not worthy of credence. La Montagne, supra, 750 F.2d at 1409. The indirect method of proof, which allows the plaintiff to prove his case by eliminating all lawful motivations rather than directly proving a discriminatory motivation, recognizes that age discrimination may be subtle and often very difficult to prove. Id. at 1409-10.

The plaintiffs claim that they intended to employ both the direct and indirect methods of proving age discrimination. In their proposed jury instructions, however, they included instructions only on the indirect method. In any case, if no reasonable jury could have found age discrimination under the indirect method, they certainly could not have found for the plaintiffs under the direct method.

The defendant first argues that neither Mr. Graefenhain nor Mr. Miller established his prima facie case because neither plaintiff proved that he was meeting Pabst’s legitimate expectations when he was terminated. In United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 714-15,103 S.Ct. 1478, 1481-82, 75 L.Ed.2d 403 (1983), the Supreme Court, applying the McDonnell Douglas test in a Title VII action, observed that the prima facie threshold is no longer a relevant issue once the defendant has proffered legitimate, nondiscriminatory reasons for its actions that would rebut the prima facie showing. See also Jayasinghe v. Bethlehem Steel Corp., 760 F.2d 132, 135 (7th Cir.1985). The only relevant issue in this situation is whether sufficient evidence is presented from which the trier of fact could find that the defendant intentionally discriminated against the plaintiff. Id.

In the present case, the defendant offered legitimate reasons for terminating the plaintiffs after its motion for a directed verdict at the close of the plaintiffs’ case was denied by the court. Because this evidence was before the jury when it rendered its verdict, the court will not consider whether the plaintiff presented sufficient evidence to establish a prima facie case of age discrimination.

In response to the plaintiffs’ discrimination claims, Pabst offered evidence that the plaintiffs were terminated as part of a reduction in its sales force due to declining sales and because of the company’s dissatisfaction with their work. Even during a legitimate company reorganization or workforce reduction, however, a company may not choose an employee for termination because of his age. Hagelthorn v. Kennecott Corp., 710 F.2d 76, 81 (2d Cir.1983). At the same time, the ADEA does not place an affirmative duty on employers to afford special treatment to employees in the protected age class. Tice v. Lampert Yards, Inc., 761 F.2d 1210, 1217 (7th Cir.1985). The key issue presently before the court is whether there is sufficient evidence from which a reasonable jury could find that Mr. Graefenhain and Mr. Miller were chosen for termination as part of Pabst’s December 1981 sales force reduction because of their age.

First, as to Mr. Graefenhain, Pabst presented evidence that George Spencer, Mr. Graefenhain’s immediate supervisor and the individual who recommended his termination, was dissatisfied with the plaintiff’s performance in certain respects. Although Robert Lyons, Pabst’s acting general manager of sales in December 1981, was ultimately responsible for the decision to terminate Mr. Graefenhain, the uncontested evidence is that Mr. Lyons relied on Mr. Spencer’s recommendation in making the final termination decision. The record shows that Mr. Spencer and Mr. Graefen-hain met on two occasions, in March and July of 1981, to discuss certain problems, most notably the latter’s failure to submit the type of detailed information on pricing that Mr. Spencer sought. Mr. Spencer also told Mr. Graefenhain at these meetings that the latter’s reputation at Pabst had been severely damaged. When asked by his immediate superior, Mr. Lyons, to evaluate employees in the company’s western region in November 1981, Mr. Spencer rated Mr. Graefenhain as a four on a scale of one to nine and ranked him last among the four division managers in the western region.

Mr. Spencer also wrote to Mr. Graefen-hain in March 1981 to express his concern that he had received only one program plan from Mr. Graefenhain after repeated requests. On July 8, 1981, Mr. Spencer wrote to Mr. Graefenhain noting that his division was $6,000.00 over its annual budget and asking him to reevaluate his expenses. Mr. Spencer followed this letter with two additional communications over the next several months which expressed continued dissatisfaction with the budget overrun.

In May and July 1981 letters to Paul Roller, Pabst’s general sales manager at the time, Mr. Spencer expressed displeasure that Mr. Graefenhain had started beer sale promotions without prior approval. Mr. Spencer also wrote to Mr. Graefenhain in August and September of 1981 to express his concern about poor sales of certain Pabst products in parts of Mr. Grae-fenhain’s division.

Mr. Graefenhain acknowledged his problems with Mr. Spencer, testifying that Mr. Spencer gave him the “cold shoulder,” and that their management philosophies and ideas about the importance of certain paperwork were divergent. Mr. Graefenhain, for example, felt that the pricing information requested by Mr. Spencer was too detailed and too time-consuming to compile. In sum, Mr. Graefenhain’s own testimony supports the conclusion that Mr. Spencer was dissatisfied with his performance as Rocky Mountain division manager.

As for Mr. Miller, Pabst offered evidence that Mr. Lyons, who made the decision to terminate Mr. Miller, previously had worked with Mr. Miller when Mr. Lyons had been the director of the national account sales department of Pabst. Mr. Lyons testified that he felt Mr. Miller had been uncooperative with the national accounts department, particularly with regard to Pabst’s ill-fated 1981 venture into Yankee Stadium. He also testified that he had been dissatisfied with the quality of the wholesalers in Mr. Miller’s territory and that he did not like the way the plaintiff communicated with his subordinates. Mr. Lyons further stated that he terminated Mr. Miller as part of Pabst’s reduction in the sales force because he did not believe that Mr. Miller could work cooperatively with him as part of the company’s sales team.

One of the plaintiffs’ witnesses, Michael Matchey, Mr. Miller’s immediate supervisor at Pabst, testified that Mr. Miller had complained about the national accounts department and also that Mr. Lyons had told Mr. Matchey that he was not getting the type of cooperation he wanted from Mr. Miller. Mr. Matchey further stated that Mr. Lyons placed a good deal of the blame for the Yankee Stadium affair on Mr. Miller.

In response to the reasons advanced by the defendant for the terminations, both plaintiffs contend that Pabst’s true motivation for discharging them was to cut costs as part of an effort involving replacement of highly compensated, experienced employees with inexperienced, younger employees who could be paid less. The plaintiffs claim that their terminations were part of Pabst’s attempt to achieve a younger corporate image by phasing out the company’s “old guard.”

In La Montague, supra, 750 F.2d at 1410, the court, responding to a similar argument made by the plaintiff in that case, stated: “We think it questionable whether the motivation postulated by [the plaintiff’s] theory would constitute age discrimination.” Even assuming that the plaintiffs’ theory could support an age discrimination claim in a proper case, no reasonable jury could find that the theory applies under the evidence presented in the case at bar.

In support of their position, the plaintiffs largely rely on the testimony of Mr. Lyons who, as Pabst’s acting general sales manager at the time of the terminations, ultimately was responsible for the reduction of the company’s sales force. Mr. Lyons testified that in October 1981 he and another management employee had been given the task by the president of Pabst of reducing the sales force by approximately 30% to reflect the company’s declining sales. The men were given approximately- five weeks to accomplish the reduction in force. Mr. Lyons acknowledged that the purpose of the reduction was to save money through the elimination of the salaries and benefits of the terminated employees. His uncon-tradicted testimony was that approximately 30% of the sales force, in fact, was fired in December 1981.

Based on this testimony, the plaintiffs conclude that because older, more experienced employees generally have higher salaries and greater benefits than younger, less experienced employees in comparable positions, Pabst must have terminated the plaintiffs because of their age in order to maximize its cost savings. The plaintiffs merely state in conclusory form what they sought to prove at trial.

Companies, of course, save money when they terminate employees. This fact, however, does not support the plaintiffs’ age discrimination claims. See La Montagne, supra, 750 F.2d 1410-11. If such was the case, age discrimination could be established anytime a higher paid employee who happened to be within the protected age class was terminated while a younger, less highly paid employee was retained in a comparable position. It is not a violation of the ADEA, however, to terminate an employee in the protected age group so long as the action is not taken because of the employee’s age. See id. at 1413.

Moreover, there is no evidence that Pabst actually saved money by terminating the plaintiffs rather than choosing younger employees for termination. The plaintiffs did not rebut evidence presented by the company that because of its severance formula, which was based on years of service, it actually cost Pabst more to terminate veteran employees such as the plaintiffs as opposed to less-experienced employees. Mr. Miller and Mr. Graefenhain received over $26,000.00 and over $8,000.00, respectively, in severance pay. It should be noted, in addition, that at the time of their termination, the pension rights of both plaintiffs had vested. This is not a case where an employee was terminated suspiciously close to the time that his pension benefits were to vest. See Marshall v. Arlene Knitwear, Inc., 454 F.Supp. 715 (E.D.N.Y.1978).

The plaintiffs also point out that although the company fired approximately 30% of its sales force in December 1981, it did not present evidence that 30% of the sales positions were eliminated. The plaintiffs argue that a cover-up can be inferred from the fact that certain positions ostensibly eliminated in December 1981 subsequently were filled.

It was the plaintiffs’ burden to prove age discrimination and not the company’s task to establish that it did not fire the plaintiffs because of their age. Moreover, even if the company’s sales force ultimately was not reduced by 30%, the plaintiffs offered no evidence either that Pabst did not intend to reduce its sales force by this amount at the time the plaintiffs were terminated or that any sales positions subsequently restored were added as part of a company plan to replace older workers with younger ones.

The plaintiffs next bring the court’s attention to the evidence that 12 of the 16 division and district managers terminated in December 1981, or 75%, were in the protected age group. This figure is not statistically significant, however, because the plaintiffs failed to establish the percentage of such employees in the protected age class prior to the sales force reduction. If this latter percentage was higher than 75%, the fact that only 75% of those terminated were in the protected class actually would cut against the plaintiffs’ age discrimination claims.

Mr. Miller, specifically, cites evidence that the three oldest of the five division managers in Pabst’s eastern region were fired in December 1981. This evidence, standing alone, is not sufficient to create a reasonable inference of age discrimination. First, courts in employment discrimination cases almost uniformly have rejected statistical conclusions based on such small samples. See, e.g., Soria v. Ozinga Bros., Inc., 704 F.2d 990, 995 (7th Cir.1983) (and cases cited therein). Moreover, the plaintiff did not offer evidence to suggest that the other two division managers terminated in the eastern region were fired because of their age. In addition, the two division managers retained both were in the protected age class; one, Mr. Sweet, was in his late forties, and the other, Mr. Allison, was in his early fifties.

As evidence that the company’s stated reasons for his termination were pretextual, plaintiff Graefenhain, for his part, notes that he received annual merit pay increases for 13 consecutive years, including 1980 and 1981; that he received commendation letters from the company for nearly every year from 1968 to 1981; that in April 1981, Paul Roller, then general manager of sales at Pabst, authorized a bonus for Mr. Grae-fenhain; that 1981 sales in his division were up 7%, ranking him second out of the 13 Pabst sales divisions in terms of percentage increase; and, finally, that as Rocky Mountain division manager from 1972 to 1980, sales in the division increased over 300%, the highest percentage increase of any Pabst division for the same time period.

All of this evidence goes to whether Mr. Graefenhain was meeting his employer’s legitimate expectations at the time he was terminated, the third element of his prima facie case. The issue presently before the court, however, is not whether the plaintiff has established his prima facie case but whether he has offered sufficient evidence from which a reasonable jury could find that Pabst’s avowed reasons for terminating him were pretextual. At the prima facie stage of the trial, the plaintiff’s burden is to prove his “relative objective qualifications” for his job. Jayasinghe, supra, 760 F.2d at 135 (emphasis added). Subjective job qualifications come into play only later, after the prima facie showing, when the defendant has come forward with legitimate, nondiscriminatory reasons for the challenged action. Id.

The court has no doubt that Mr. Graefen-hain was a loyal, hardworking Pabst employee who had his supporters both within the company and the beer industry. It is also clear that he received generally excellent performance ratings prior to the time Mr. Spencer became his supervisor, in 1980. Such evidence, however, is not enough to support a finding of age discrimination.

The undisputed evidence is that Mr. Spencer was not satisfied with the way Mr. Graefenhain performed his job, particularly regarding the completion of pricing surveys; that the two men had discussed their problems several times prior to Mr. Grae-fenhain’s termination; that the two men did not share the same management philosophy; and that Mr. Spencer ranked Mr. Graefenhain last out of the four division managers in the company’s western region just one month prior to the plaintiff’s termination. Mr. Graefenhain essentially acknowledged the problems between Mr. Spencer and himself.

Whether Mr. Spencer’s assessment of Mr. Graefenhain’s performance was correct was not a question for the jury to decide. The ADEA “was not intended as a vehicle for judicial review of business decisions.” Kephart, supra, 630 F.2d at 1223. The jury only had to determine whether the defendant “in good faith believed plaintiff’s performance to be unsatisfactory....” Moore v. Sears, Roebuck & Co., 683 F.2d 1321, 1323 n. 4 (11th Cir.1982). Mr. Graefenhain may have been an excellent employee in many respects and to many people, but his performance was not satisfactory to the person that mattered, his supervisor Mr. Spencer. The ADEA is not violated when an employee is terminated because of a “personality conflict” with his supervisor. See Ackerman v. Diamond Shamrock, 670 F.2d 66, 70 (6th Cir.1982).

Mr. Graefenhain’s recitation of his sales performance at Pabst and of his rankings prior to the time Mr. Spencer became his supervisor may have been sufficient to establish the third element of his prima facie case, that he met his employer’s legitimate expectations, but it was not sufficient to support a finding that the company’s reasons for firing him were pretextual. In order to show pretext, it does not help for the plaintiff “to repeat the proof that his job performance was generally satisfactory.” La Montague, supra, 750 F.2d at 1414.

Mr. Miller similarly offered evidence that he had received merit pay increases for nearly all of his 32 years at Pabst, including 1980 and 1981; that his performance evaluations from 1974 to 1980 were all above average; that he received numerous letters of commendation; and that his division’s sales record compared favorably with the records of most other company divisions.

As in the case of Mr. Graefenhain, Mr. Miller’s evidence that his job performance was generally satisfactory is not sufficient to prove that the employer’s stated reasons for terminating him were pretextual. There was unrefuted evidence before the jury that Mr. Lyons, the man responsible for terminating Mr. Miller, was not satisfied with certain aspects of Mr. Miller’s performance, most notably his selection of distributors and his lack of cooperation with the national accounts department. Moreover, Mr. Lyons testified that he did not believe he could work cooperatively with Mr. Miller and, thus, did not want him on his sales team. Mr. Lyons also testified that in making the decision to terminate Mr. Miller he relied on Mr. Matchey’s March 1980 and February 1981 evaluations of Mr. Miller in which he was ranked third and fifth, respectively, out of the five division managers in the eastern region. Mr. Miller countered with evidence that in November 1981, Mr. Matchey ranked him second out of the five division managers in his region. Mr. Lyons testified, however, that he did not agree with this ranking because he did not see a change in Mr. Miller’s performance from February to November of 1981.

Mr. Miller also makes much of the fact that Mr. Lyons instituted a new form for the November 1981 performance evaluations and that Pabst was unable to locate Mr. Matchey’s November 1981 evaluation of the plaintiff. There is no evidence, however, that the new ranking system was created to discriminate or was used to discriminate against older employees. It was appropriate for Mr. Lyons, as the new Pabst sales manager, to come up with his own evaluation form. Nor does Mr. Miller’s missing evaluation bear any logical relation to a finding of age discrimination. See Stanojev v. Ebasco Services, Inc., 643 F.2d 914, 928 (2d Cir.1981). Ultimately, of course, it was Mr. Lyons’ judgment that counted as he, and not Mr. Matchey, made the decision to terminate Mr. Miller.

The plaintiffs next suggest in their post-judgment brief that Mr. Lyons indicated at trial that he based his termination decisions solely on sales performance; the plaintiffs then infer that because of the plaintiffs’ good sales performance, Pabst’s stated reasons for the terminations were pretextual. In fact, Mr. Lyons’ uncontra-dicted testimony was that sales performance was only one of the factors that he considered in making the termination decisions. He also looked at the employees’ most recent performance evaluations and spoke with Pabst supervisory personnel.

Both plaintiffs further contend that what they were told at the time of their termination supports a finding that the company’s proffered reasons for the terminations were a cover-up for age discrimination. The plaintiffs testified that at the time of their discharge they were not informed of any personality conflicts with their supervisors or performance problems but were simply told that they were being terminated as part of the company’s cutback in its sales force. There is no indication that the plaintiffs were misled about the reason for their termination or that their termination interviews were handled differently than those of other, younger employees who were terminated in December 1981. The record makes it clear that the plaintiffs were terminated as part of the company’s reduction in its sales force due to sagging beer sales; that they may not have been told why they were chosen for inclusion in this cutback does not, standing alone, suggest age discrimination or support a finding of pretext.

Mr. Graefenhain specifically notes that during his termination interview Mr. Spencer told him that the Rocky Mountain division was going to be eliminated and his office in Denver closed. Sometime within the next few months, David Kelly, then 29 years old, was hired to fill the position of Rocky Mountain division manager, and the Denver office remained open. The uncon-troverted testimony of both Mr. Spencer and Mr. Lyons, however, was that at the time Mr. Graefenhain was terminated, the company was unsure about what it was going to do with the Rocky Mountain division. Although Pabst ultimately decided to retain the division and replace Mr. Graefen-hain with a younger man, no automatic inference of age discrimination is to be deduced from this evidence; replacement of an employee within the protected age class with a younger person does not constitute age discrimination as long as the protected employee is not replaced because of his age. La Montagne, supra, 750 F.2d at 1413.

It is also worth noting that at the time of his termination, Mr. Graefenhain, then 47 years old, was far from the oldest employee in the western region or even the oldest of the four division managers in the region. Dick Rausch, for example, a division manager who was several years older than Mr. Graefenhain, retained his position in the December 1981 cutback.

Mr. Graefenhain also testified that Mr. Spencer refused his request that he be retained in a demoted position. If anything, this evidence reinforces Mr. Spencer’s testimony that Mr. Graefenhain was selected for termination because the two men could not work well together.

Mr. Miller, for his part, contends that Pabst’s elimination of his position was merely “gerrymandering” designed to mask the true reason for his termination: his age. Nevertheless, the uncontroverted evidence in the case shows that Mr. Miller’s division was eliminated and responsibility for his former territory was divided between the two remaining eastern region division managers. The Atlantic division was subsequently reformed as the Metro division but only after Pabst merged with the Olympia Brewing Company, a year and one-half after Mr. Miller was terminated. Mr. Joseph Leuzze, then in his mid-fifties, was appointed to head the Metro division. Mr. Leuzze was appointed by Peter Breed-love, who played no role in the termination of Mr. Miller. In short, there is no evidence that Pabst’s elimination and subsequent reformation of the Atlantic division were a pretext for terminating Mr. Miller because of his age.

Mr. Graefenhain cites the testimony of Eric Gagel who began working for Pabst in March 1983, almost a year and one-half after Mr. Graefenhain’s termination. Mr. Gagel testified that while he was employed at Pabst, he had a phone conversation with Mr. Spencer, his supervisor, in which he recommended a man for hiring who was in his mid-fifties. According to Mr. Gagel’s testimony, Mr. Spencer responded: “Then forget it, I don’t want any more old guys like that.” Mr. Gagel also testified that when he saw Mr. Spencer at a convention in March 1984, Mr. Spencer commented to him: “That’s all you old Olympia people seem to be able to do is delegate and sit back.” Accepting Mr. Ga-gel’s disputed version of the statements as true, they do not support a finding that Mr. Graefenhain was terminated because of his age. There is nothing to link Mr. Spencer’s comments to the termination of Mr. Grae-fenhain. Any connection between Mr. Spencer’s long-after-the-fact comments and the plaintiff’s termination would be sheer speculation.

Finally, Mr. Miller testified that Mr. Roller asked him when he was going to retire. This isolated inquiry is completely irrelevant in the present case as Mr. Roller played no part in Mr. Miller’s termination, having been terminated himself several months previously.

The court has evaluated each item of evidence advanced by the plaintiffs in support of their age discrimination claims and has determined that none of them, standing alone, is sufficient to support a finding of age discrimination. The observation of the court of appeals in La Montague, supra, 750 F.2d at 1413 is applicable in the matter at bar:

“We have concluded that none of the three items of evidence adduced by La Montagne is sufficient by itself to support a verdict of age discrimination. In addition, we think that their combined weight is still insufficient.”

The plaintiffs’ evidence, for the most part, concerns the elements of their prima facie case of age discrimination, particularly that they met Pabst’s legitimate job expectations. The plaintiffs cannot show that the defendants stated reasons for terminating them were a pretext for age discrimination merely by repeating the proof of their prima facie case. Id. The plaintiffs also questioned Mr. Spencer’s and Mr. Lyon’s judgment of their performance. The overwhelming weight of the evidence, however, was that Mr. Spencer and Mr. Lyons were genuinely dissatisfied with Mr. Graefenhain and Mr. Miller, respectively. The plaintiffs’ own testimony bears out this dissatisfaction. While the judgment of Mr. Spencer and Mr. Lyons may have seemed erroneous to the jury, it was not their role to question the defendant’s business judgment. See Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n. 6 (1st Cir.1979).

The court concludes that there is not sufficient evidence to support the jury’s verdict in this case that Mr. Graefenhain and Mr. Miller were terminated because of their age. Stated another way, the evidence is not sufficient to support a finding that Pabst’s proffered reasons for terminating the plaintiffs were a pretext for age discrimination. Accordingly, the defendant’s motion for judgment notwithstanding the verdict will be granted.

Therefore, IT IS ORDERED that defendant Pabst Brewing Company’s motion for judgment notwithstanding the verdict be and hereby is granted.

IT IS ALSO ORDERED that judgment shall be entered dismissing this action with prejudice as to plaintiff Gunther Graefen-hain.

IT IS FURTHER ORDERED that judgment shall be entered dismissing this action with prejudice as to plaintiff Philip Miller.

IT IS FURTHER ORDERED that the motion of plaintiffs Graefenhain and Miller to amend the March 11, 1985, judgment be and hereby is dismissed.

IT IS FURTHER ORDERED that the motion of plaintiffs Graefenhain and Miller for an order fixing a supersedeas bond or, in the alternative, requiring that the judgment be placed in an escrow account be and hereby is dismissed.

IT IS FURTHER ORDERED that that portion of the March 11, 1985, judgment in this case entered in favor of plaintiffs Gunther Graefenhain and Philip Miller be and hereby is vacated.


source: Caselaw Access Project

author: BUA, District Judge.

license: Public Domain

text:
    Eva BANKSTON, Plaintiff, v. Margaret HECKLER, Secretary of Health and Human Services, Defendant.
    No. 84 C 4874.
    United States District Court, N.D. Illinois, E.D.
    Nov. 5, 1985.

      Brian G. Hubka, Chicago, Ill., for plaintiff.
    Anton R. Valukas, U.S. Atty. by Gail Ginsberg, Asst. U.S. Atty., Chicago, Ill., for defendant.
   MEMORANDUM ORDER

BUA, District Judge.

Before this Court is plaintiff’s motion for summary judgment. Bankston brings this action pursuant to Section 1602 of the Social Security Act, 42 U.S.C. § 1381a. Bank-ston seeks summary reversal of defendant Secretary of Health and Human Services’ (“Secretary”) denial of Bankston’s Social Security disability benefits. Alternatively, Bankston requests that this case be remanded to the Secretary for further proceedings. Jurisdiction is based on 42 U.S.C. § 405(g).

The sole issue presented is whether the Secretary’s final decision is based upon substantial evidence. For the reasons stated herein, this Court finds that the Secretary’s decision is based upon substantial evidence. Accordingly, this Court denies Bankston’s motion for summary judgment.

FACTS

Bankston applied for Social Security disability benefits in 1981 alleging inability to work due to problems relating to his heart and stomach. His application was denied and an administrative hearing was held. Testimony at the hearing revealed that Bankston was 47 years old and 176 pounds. Bankston had been employed as a school aide for the Chicago Board of Education. Her most recent employment was owning and operating a tavern in 1982. The hearing also revealed the results of extensive medical testimony. That medical evidence established that Bankston had a chronic abdominal problem and cardiac arrhythmia, but that Bankston did not have an impairment or combination of impairments that qualified as a disability as defined by the Social Security Act. Consequently, the Administrative Law Judge (“AU”) found that Bankston’s impairments did not prevent Bankston from performing the duties required in her last job. Accordingly, the AU denied Bankston’s claim for benefits.

Bankston sought review of the AU’s decision by the Appeals Council of the Department of Health and Human Services. The Appeals Council affirmed the AU’s decision. Bankston now seeks judicial review by this Court.

DISCUSSION

Bankston argues that the Secretary’s decision is in error because it was not based on substantial evidence. First, Bankston asserts that the AU overlooked certain medical testimony. Second, Bankston maintains that the AU’s findings regarding Bankston’s abdominal problems support a finding of disability. Third, Bank-ston contends that the ALJ’s summary of testimony given during the hearing did not provide a complete record.

Judicial review of the Secretary’s decision is limited to a determination of whether the Secretary’s findings are supported by substantial evidence based on the record as a whole. Debolt v. Califano, 445 F.Supp. 893, 896 (S.D.Ill.1978). It is not this Court’s function to appraise the evidence de novo. Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971).

Substantial evidence exists in the record to support the Secretary’s finding that Bankston’s physical impairments do not rise to the level of a “disability.” Although Bankston was certainly not in the best of health, there is no evidence in the record to indicate that her condition was sufficiently incapacitating to meet the “disability” requirement of the Social Security Act. After holding a hearing and carefully considering the entire record, the AU concluded that Bankston’s allegations of disabling pain resulting in physical limitations were not supported by the objective medical evidence. In addition, the AU believed that Bankston’s allegations of disabling pain were not credible. This Court finds that the AU acted reasonably in concluding that Bankston was not disabled as defined by the Social Security Act.

Next, Bankston asserts that the administrative record is incomplete because the tape recording machine malfunctioned during Bankston’s testimony. This argument is unpersuasive. The entire administrative record consists of 433 pages. However, only four pages were affected by the malfunction. Moreover, the AU granted Bankston’s attorney the opportunity to read into the record anything the attorney believes was pertinent testimony given while the machine malfunctioned. Consequently, this Court believes that any bias that may have resulted because of the malfunction would be in favor of Bankston. In addition, the AU did not need to rely upon the attorney’s summation to make his decision since the AU conducted the hearing and heard Bankston’s live testimony. Accordingly, this Court finds that the record was sufficiently complete to affirm the AU’s finding of no disability.

CONCLUSION

This Court denies Bankston’s motion to summarily reverse the Secretary’s decision to deny Bankston Social Security disability benefits. In addition, Bankston’s alternative motion to remand this case for further proceedings is also denied.

IT IS SO ORDERED.


author: ANNA DIGGS TAYLOR, District Judge.

text:
    Habib Ibrahim MANSOOR, Petitioner, v. James MONTGOMERY et al., Respondents.
    Civ. A. No. 85 74324.
    United States District Court, E.D. Michigan, S.D.
    Nov. 7, 1985.

      Mark Jacob Thomas, Chicago, Ill., for petitioner.
    L. Michael Wicks, Asst. U.S. Atty., Detroit, Mich., for respondents.
   MEMORANDUM OPINION AND ORDER

ANNA DIGGS TAYLOR, District Judge.

Petitioner, Habib Ibrahim Mansoor, is a native and citizen of Iraq. He arrived in the United States on December 17, 1977 seeking political asylum. He was temporarily paroled into the United States pending the outcome of his application for asylum. His application was initially denied by the district director of the Immigration and Naturalization Service (INS) in August, 1978. Upon reconsideration in April,-1980, petitioner’s application was granted. Asylees are interviewed annually to determine their continuing eligibility for asylum, 8 C.F.R. § 208.8(1), and in February, 1983 petitioner’s asylum status was finally rescinded by the district director pursuant to 8 C.F.R. § 208.15(b).

Petitioner was then placed in exclusion proceedings. On October 6, 1983 an immigration judge (IJ) found petitioner excluda-ble under sections 212(a)(14) and 212(a)(20) of the Immigration and Nationality Act, 8 U.S.C. §§ 1182(a)(14) and 1182(a)(20). In addition, the IJ denied petitioner’s application under sections 208(a) and 243(h) of the Act, 8 U.S.C. §§ 1158(a) and 1253(h) respectively, which provide for asylum if it is determined by the Attorney General that the alien is a refugee, and for withholding of deportation to any country where the alien’s life or freedom would be threatened on account of race, religion or political opinion. Finding petitioner ineligible for relief under either section of the Act, the IJ ordered petitioner excluded and deported from the United States.

On appeal to the Board of Immigration Appeals (BIA), petitioner did not contest his excludability under sections 212(a)(14) and (20) of the Act. Rather, he argued that the IJ improperly denied his applications for asylum and withholding of deportation. On August 7, 1985 the Board dismissed petitioner’s appeal.

On September 23, 1985 petitioner motioned the INS to reopen his case and stay his deportation until his motion to reopen was heard. Petitioner’s motion to reopen realleged his claim of entitlement to asylum and withholding of deportation. Additionally, petitioner asserted as a ground for reopening that he is entitled to seek a suspension of deportation under section 244(a) of the Act, 8 U.S.C. § 1254(a). Section 244(a) provides for suspension of deportation of an alien who has been physically present in the United States and was of good moral character for a continuous period of seven years and whose deportation would result in extreme hardship to the alien, his citizen or lawfully admitted spouse, parent or child. Petitioner has a five year old, American-born son whose mother, to whom petitioner is not married, is on public assistance. He alleged that the child would suffer extreme hardship if the emotional and financial support petitioner provides were lost through his deportation.

On the same day that he filed his motion to reopen with the INS, Mansoor petitioned this court for a writ of habeas corpus alleging that to deport him before the INS reviews his pending motions is a denial of due process. He requests this court to issue an order directing the district director of the INS to refrain from taking, holding and deporting him until all administrative proceedings are terminated.

The case is now before the court on defendants’ motion for summary judgment. Defendants correctly argue that petitioner is ineligible for suspension of deportation under § 244 as the relief provided by the statute is available only to deportable aliens. Excluded aliens, like petitioner, do not fall within the purview of the statute. Thus, defendants argue that petitioner’s ineligibility for the relief sought requires this court to deny his petition for a writ of habeas corpus.

[O]ur immigration laws have long made a distinction between those aliens who have come to our shores seeking admission, ... and those who are within the United States after entry, irrespective of its legality. In the latter instance the Court has recognized additional rights and privileges not extended to those in the former category who are merely ‘on the threshold of initial entry.’ (citation omitted) The distinction was carefully preserved in Title II of the Immigration and Nationality Act. Chapter 4 subjects those seeking admission to ‘exclusion proceedings’ to determine whether they ‘shall be allowed to enter or shall be excluded and deported.’ (citation omitted) On the other hand, Chapter 5 concerns itself with aliens who have already entered the United States and are subject to ‘expulsion’ as distinguished from ‘exclusion’ if they fall within certain ‘general classes of deportable aliens.’ (citation omitted) Proceedings for expulsion under Chapter 5 are commonly referred to as ‘deportation proceedings.’ Parenthetically, the word ‘deportation’ appears also in Chapter 4 to refer to the return of excluded aliens from the country, but its use there reflects none of the technical gloss accompanying its use as a word of art in Chapter 5.

Leng May Ma v. Barber, 357 U.S. 185, 187, 78 S.Ct. 1072, 1073, 2 L.Ed.2d 1246 (1958).

In section 212(d)(5) of the Act, 8 U.S.C. § 1182(d)(5), Congress specifically provided that the Attorney General may temporarily parole an alien into the country, but “such parole ... shall not be regarded as an admission of the alien.” When the purposes of the parole have been served, “the case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.” Id. “The parole of aliens is simply a device through which needless confinement is avoided while administrative proceedings are conducted. It was never intended to affect an alien’s status.” Leng May Ma, at 190. See also, Jean v. Nelson, 472 U.S. -, 105 S.Ct. 2992, 86 L.Ed.2d 664 (1985).

Thus, the fact that petitioner has been in the United States since 1977 does not affect his status as an excludable alien. He was merely paroled into the country, not admitted, and courts apply the legal fiction that such aliens are theoretically at least, waiting at the border. Moreover, petitioner does not challenge his status of excluda-bility. In his motion to reopen the exclusion proceedings, however, he claims eligibility for a stay of deportation under § 244 based on his continuous residence in the country for seven years during which he maintained good moral character and the resultant “extreme hardship” which would result to his son if deportation is effectuated.

Section 244(a) is a provision of Chapter 5 of the Act which covers deportation and adjustment of status of deportable aliens. Chapter 4 of the Act contains provisions relating to entry and exclusion. The Supreme Court has noted that the two chapters enumerate “separate administrative procedures for exclusion and expulsion, separate provision for removal and transportation, and — most significantly — separate provisions for stays of deportation.” Leng May Ma, at 189-90, 78 S.Ct. at 1074-75. Applying the Court’s reasoning in Leng May Ma to the case before this court, the placement of § 244 squarely among the provisions of Chapter 5 relating to deporta-ble aliens, rather than in Chapter 4, is evidence that Congress did not intend for this section to apply to excluded aliens. (See, 2 C. Gordon & H. Rosenfield, Immigration Law and Procedure § 7.9(a)(5) (rev. ed. 1985), “[Suspension of deportation [under § 244] by its own terms relates only to aliens who are deportable. Therefore it is unavailable in exclusion proceedings.”)

Any doubt regarding the statute’s applicability to excluded aliens was resolved by the Court in Landon v. Plasencia, 459 U.S. 21, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982) in which the Court outlined some of the differences in the substantive rights afforded to the two classifications of aliens. The Court noted that a deportable alien, unlike an excluded alien, “can, within certain limits, designate the country of deportation ...; he may be able to depart voluntarily, ... avoiding both the stigma of deportation ... and the limitations on his selection of destination ...; or he can seek suspension of deportation_” Id. at 26-27, 103 S.Ct. at 325-26 (emphasis added). (See also, Castillo-Magallon v. INS, 729 F.2d 1227, 28 [9th Cir.1984], “At an exclusion proceeding an alien is not entitled to seek a suspension of deportation.”)

The provision cited by the Supreme Court for this proposition is section 242(e) of the Act, 8 U.S.C. § 1252(e) (1976 Ed. and Supp. Y) [8 U.S.C.S. § 1252(e) ] which limits suspension of deportation to particular classes of deportable aliens under section 241 of the Act, 8 U.S.C. § 1251. The class of excluded aliens is specifically mentioned in section 241 but is not one of the classes to which section 242(e) refers as being eligible for suspension of deportation. The language of the Act and its interpretation by the Supreme Court leads this court to conclude that petitioner is ineligible for a stay of deportation under section 244, and it follows that the motion addressed to the INS to reopen his case on this basis must be denied as a matter of law.

Although petitioner has stated that he is not contesting the exclusion proceeding itself, nor the finding that he is excludable, it is not altogether clear whether petitioner also based his motion to reopen on an allegation that the IJ and BIA improperly decided his .claims of eligibility for asylum under § 208(a) and withholding of deportation under § 243(h). The motion states that the relief sought is that the case be reopened “to allow Petitioner to submit an Application for Suspension of Deportation.” Yet, the motion recites at length petitioner’s fears of religious and political persecution should he be forced to return to Iraq. Assuming petitioner is raising this claim, his motion to reopen the case on these grounds must nevertheless fail as well.

The decision whether to grant political asylum under § 208(a) or to withhold deportation under § 243(h) lies within the discretion of the Attorney General. Section 3.2 of the Code of Federal Regulations provides that a motion to reopen “for the purpose of affording the alien an opportunity to apply for any form of discretionary relief” shall not be granted “if it appears that the alien’s right to apply for such relief was fully explained to him and an opportunity to apply therefor was afforded him at the former hearing unless the relief sought is on the basis of circumstances which have arisen subsequent to the hearing.”

Petitioner’s motion to reopen does not allege circumstances increasing the likelihood of a threat to his life or freedom which have arisen since the BIA proceeding. Thus, the administrative regulations preclude the BIA from reopening petitioner’s case and his motibn to reopen must be denied by the INS.

As a result of the BIA’s decision, petitioner is under a final order of deportation. The filing of a motion to reopen does not serve to stay the execution of any decision made in the case or to extend a previously set departure date. 8 C.F.R. § 103.5. Petitioner’s constitutional challenge alleges that failure to stay his deportation until his motion to reopen is heard will result in a denial of due process. Petitioner is not challenging the constitutionality of any provision of the Act or the process itself; nor is he challenging the constitutionality of any action taken in the proceedings below. He is merely stating an entitlement to pursue all administrative procedures pri- or to deportation. This court has found, however, that as a matter of law, his motion to reopen is fatally defective and must be denied by the BIA. Therefore, an order directing the INS to stay petitioner’s deportation until the motion is heard would be an exercise in futility.

Petitioner has already received the full benefit of the process prescribed by the statute in relation to the claims raised in his motion to reopen. Under these circumstances, this court will not grant a stay of deportation.

For the foregoing reasons, IT IS HEREBY ORDERED that the petition for writ of habeas corpus is denied and defendant’s motion for summary judgment is granted. IT IS SO ORDERED.


author: RE, Chief Judge:

text:
    Gene R. MILLER, President, United Transportation Union Local 887, Plaintiff, v. Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Defendant.
    Court No. 81-7-00855.
    United States Court of International Trade.
    Sept. 26, 1985.

      Collins, Collins & Dinardo, P.C., Buffalo, N.Y. (Michael H. Doran, Buffalo, N.Y., on the brief), for plaintiff.
    Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Washington, D.C. (Shiela N. Ziff, Washington, D.C., on the motion), for defendant.
   RE, Chief Judge:

In this action, plaintiff, on behalf of former employees of the Butte, Anaconda & Pacific Railway Company, seeks review of a final determination by the Secretary of Labor which denied certification of eligibility for benefits under the worker adjustment assistance program of the Trade Act of 1974, tit. II, §§ 221-249, 284, 19 U.S.C. §§ 2271-2321, 2395 (1982). Specifically, the Secretary found that the workers were not eligible for assistance because an increase in imports did not contribute importantly to the closing of either Anaconda Copper Company’s smelter or refinery, and thus did not contribute importantly to the railway workers’ separation from employment.

After reviewing the administrative record and the arguments of the parties, the court holds that the Secretary’s denial of certification is supported by substantial evidence and is in accordance with law. Therefore, the determination of the Secretary is affirmed.

On October 3, 1980, plaintiff, on behalf of former employees of the Butte, Anaconda and Pacific Railway Company of Anaconda, Montana (Railway), filed a petition for certification of eligibility to apply for trade adjustment assistance benefits. Pursuant to section 221(a) of the Trade Act of 1974, 19 U.S.C. § 2271(a), the Office of Trade Adjustment Assistance (OTAA) of the Department of Labor published a notice in the Federal Register stating that it had received a petition and instituted an investigation. 45 Fed.Reg. 75,368 (1980).

Section 222 of the Act requires the Secretary to certify a group of workers as eligible to apply for trade adjustment assistance benefits if it is determined:

(1) that a significant number or proportion of the workers in such workers’ firm or an appropriate subdivision of the firm have become totally or partially separated, or are threatened to become totally or partially separated,
(2) that sales or production, or both, of such firm or subdivision have decreased absolutely, and
(3) that increases of imports of articles like or directly competitive with articles produced by such workers’ firm or an appropriate subdivision thereof contributed importantly to such total or partial separation, or threat thereof, and to such decline in sales or production.

Trade Act of 1974 § 222, 19 U.S.C. § 2272 (1982).

Plaintiff contends that increased imports of copper contributed importantly to the decline of sales and production by petitioner’s employing firm, and to the eventual separation from employment of the Railway workers.

On November 23, 1976, the Railway workers were certified by the Secretary as eligible for trade adjustment assistance benefits. The certification was based upon the Secretary’s finding that a decrease in tonnage hauled by the Railway, attributable to Anaconda Copper’s increased purchases of imported copper ore concentrate, contributed importantly to the Railway workers’ separation from employment. See 41 Fed.Reg. 53,551 (1976). This certification expired on November 23, 1978. A subsequent application for benefits was denied on May 2,1980 because of increases of tonnage hauled during 1979 and the first 2 months of 1980. 45 Fed.Reg. 30,742, 30,-744 (1980).

The OTAA’s investigation disclosed that the Anaconda Copper Company is a vertically integrated mineral producer engaged in the mining, processing, and manufacturing of nonferrous minerals, principally copper and uranium. The company, a division of Anaconda Company, which is a subsidiary of Atlantic Richfield Company, operates copper mines both domestically and abroad. Until September 29,1980, Anaconda maintained a smelter and refinery in Montana, which processed copper from Anaconda’s domestic mines, and copper supplied by outside or “toll” customers. An industry-wide strike by domestic miners of copper ore forced the closing of both facilities on July 1, 1980, and, although the strike was ultimately settled, neither the smelter nor refinery resumed operation.

The Butte, Anaconda & Pacific Railway Company is a wholly owned subsidiary of Anaconda Copper Company. Over 98 percent of the Railway’s freight is hauled for the Anaconda Copper Company. The Railway’s principal business is the transportation of copper precipitates, concentrates, and by-products from domestic mines to the smelter in Anaconda, Montana, and blister copper to the refinery in Great Falls, Montana. The Railway has 26 miles of mainline track and 100 miles of siding track between Butte and Anaconda. The smelting process converts copper ore into “blister” copper of 99 percent purity, which is cast into copper anodes for electrolytic refining. When the smelter was operational, the anodes were transported by the Railway to the refinery and processed into copper cathodes.

The Railway workers did not participate in the strike that caused the closing of Anaconda’s smelter and refinery. Nevertheless, the workers were separated from employment because the miners’ strike effectively halted the Railway’s business. Stating that their continued operation was unprofitable, on September 29, 1980, Anaconda Copper Company announced the permanent closing of both the smelter and refinery. As the primary reason for closing the plants, the Company cited the high costs that would be required to comply with the Clean Air Act, state pollution laws, and OSHA safety regulations. Since ore obtained from the Butte mining operations contained sulfur and higher-than-normal amounts of arsenic, Anaconda determined that an “economic engineering solution to the problem [was] infeasible.” Anaconda stated that it would cost approximately four hundred million dollars to make the plants comply with federal and state environmental and health laws.

After the Company closed the smelter and refinery, it contracted with two Japanese companies for the overseas processing of Anaconda’s copper concentrates. Under the 7-year contract with the Japanese firms, which became effective on January 1, 1981, Anaconda will supply 390,000 metric tons per year, which amounts to approximately 80 percent of Anaconda’s mine production. The OTAA’s investigation anticipated that approximately 50 percent of the copper sent to Japan would be processed on a toll basis for Anaconda and ultimately returned to the United States, and that the remainder would be purchased by the Japanese companies.

The OTAA performed a trade and industry analysis pertaining to the effect of imports on the domestic copper industry. The investigation focused on imports of copper ore, blister copper, and refined copper. In 1978, imported ore amounted to less than 2 percent of domestic production. Imports of copper ore increased 21.4 percent in 1979 and 171.4 percent during the first three quarters of 1980. Imports of blister copper decreased 70.3 percent in 1979 from a 5-year high attained in 1978. The January through September 1980 period saw imports of blister copper increase 62.5 percent. Finally, the investigation disclosed that imports of refined copper, which had steadily increased since 1975, decreased 50.0 percent in 1979. In 1980, however, imports increased 103.8 percent. The import-to-consumption ratio for refined copper was 10.0 percent during the first three quarters of 1979 and 19.8 percent for 1980. The Anaconda Copper Company did not import refined copper at any time from 1978 through 1980.

The OTAA conducted a survey of Anaconda’s customers, including its toll customers, in order to determine whether increased imports of copper contributed importantly to the workers’ separation from employment. The survey disclosed that none of Anaconda’s toll customers who responded to the survey had copper refined abroad during the period from 1978 to October 1980. Of the 58 non-tolling customers who responded, 18 reported purchases of imported copper. The survey revealed, however, that of the “customers who reduced purchases of refined copper from Anaconda and increased purchases of imported refined copper, the majority also reported increased purchases from other domestic sources.” 46 Fed.Reg. 20,323 (1981).

Based on these findings, the Secretary concluded that, since increased imports were not an important factor in the separation of the Railway workers, the workers should be denied eligibility for assistance. Although the Secretary recognized that Anaconda’s toll copper would be imported to the United States in the latter part of 1981, he stated that the “magnitude of these future imports is indeterminable at present since the Japanese might purchase a substantial portion of the concentrates for use in Japan and the Far East.” 46 Fed.Reg. 20,323 (1980).

Thereafter, plaintiff applied for reconsideration of the administrative determination. In support of its application, plaintiff submitted a preliminary report prepared by the Environmental Protection Agency (EPA), which discussed the role of environmental laws in Anaconda Copper Company’s decision to close its smelter and refinery. The plaintiff claimed that the report provided “evidence of foreign competition on the United States copper market.” 46 Fed. Reg. 25,164 (1981). The Secretary determined that “[t]he EPA report, although providing some interesting aspects of the Clean Air Act’s role in ARCO’s decision to close its Anaconda Copper’s Montana smelting and refining operation, does not provide new evidence to support the petitioner’s claim that increased imports contributed importantly to the closure.” Id. at 25,163. Thus, the request for reconsideration was denied. Subsequently, by letter complaint, plaintiff commenced this action seeking judicial review of the Secretary’s final negative determination.

Section 284 of the Trade Act of 1974 empowers the Court to review a decision by the Secretary of Labor which denies certification of eligibility for trade adjustment assistance benefits to assure that the determination is supported by substantial evidence in the administrative record and is in accordance with law. 19 U.S.C. § 2395(c) (1982); 28 U.S.C. § 2640(c) (1982); see Woodrum v. Donovan, 5 CIT 191, 193, 564 F.Supp. 826, 828 (1983), aff'd, 737 F.2d 1575 (Fed.Cir.1984). The findings of fact by the Secretary of Labor shall be conclusive if supported by substantial evidence. Trade Act of 1974 § 284(b), 19 U.S.C. § 2395(b) (1982).

Plaintiff argues that the Secretary’s negative determination of eligibility should be set aside. In essence, plaintiff challenges the nature and extent of the Secretary’s investigation. Specifically, plaintiff alleges that he was denied a meaningful opportunity to be heard at a public hearing, that the Secretary’s investigation was cursory and insufficient, and that the Secretary improperly concluded that increased imports did not contribute importantly to the workers’ separation from employment.

Section 221 of the Trade Act of 1974 requires the Secretary to conduct a public hearing upon request of persons found by the Secretary to have a substantial interest in the proceedings. 19 U.S.C. § 2271 (1982). Pursuant to section 221, the hearing must be requested within 10 days after the date of the Secretary’s publication in the Federal Register of the notice of receipt of the petition. Id. In this case, plaintiff does not dispute that the Secretary complied with the publication requirements of section 221. ' Rather, plaintiff asserts that there is procedural error because the Secretary failed to give actual notice of the opportunity to request a hearing.

It is well established that “[t]he fundamental requisite of due process of law is the opportunity to be heard.” Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363 (1914), quoted in Goldberg v. Kelly, 397 U.S. 254, 259, 267, 90 S.Ct. 1011, 1015, 1020, 25 L.Ed.2d 287 (1970); see Mathews v. Eldridge, 424 U.S. 319, 348, 96 S.Ct. 893, 909, 47 L.Ed.2d 18 (1976). Adequate notice of the opportunity to request a hearing is an element of the fair-hearing requirement of the due process clause. See Atkins v. Parker, — U.S. -, 105 S.Ct. 2520, 2525-27, 86 L.Ed.2d 81 (1985). It must be noted, however, that due process, “unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.” Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 162, 71 S.Ct. 624, 643, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring). “The opportunity to be heard must be tailored to the capacities and circumstances of those who are to be heard.” Goldberg v. Kelly, supra, 397 U.S. at 268-69, 90 S.Ct. at 1020-21. Accordingly, the court may determine whether the administrative procedures provided by the Secretary “provide all the process that is constitutionally due.” Mathews v. Eldridge, supra, 424 U.S. at 333, 96 S.Ct. at 901.

It is well settled that “because of the ex parte nature of the certification process, and the remedial purpose of the trade adjustment assistance program, the Secretary is obliged to conduct his investigation with the utmost regard for the petitioning workers.” Local 167, International Molders and Allied Workers’ Union v. Marshall, 643 F.2d 26, 31 (1st Cir.1981). This is particularly true when workers appear pro se before the Secretary. See Estate of Finkel v. Donovan, 9 CIT -, -, 614 F.Supp. 1245, 1249 (1985). In Estate of Finkel, a petitioner for trade adjustment benefits was not given actual notice of the 10-day period in which to request a hearing. The court held that the Secretary should provide pro se petitioners with actual notice of the opportunity to request a hearing. Id. Moreover, the court noted that “ ‘the cost and administrative burden of conveying the additional information is minimal when compared with the benefits reaped by the parties and the court_’” Id. (quoting Tyler v. Donovan, 3 CIT 62, 66, 535 F.Supp. 691, 694 (1982)).

In this case, the notice published in the Federal Register invited “petitioners or any persons showing a substantial interest in the subject matter of the investigation” to request a public hearing no later than November 24, 1980. 45 Fed.Reg. 75,366, (1980). In a letter to the OTAA that accompanied the initial petition for assistance, plaintiff did not request a public hearing, but asked “that whoever investigates this petition contact me personally so the facts can be laid on the table.” In a letter dated November 4, 1980, the petitioner requested that “the investigator ... contact me and let me explain our position to him,” and in a telephone conversation with the OTAA’s investigator expressed the desire to meet with the investigator in Anaconda. Although plaintiff wanted to present his viewpoint in person, it is clear that no specific request was made for a public hearing. It is also clear that the Secretary did not view plaintiffs letters as a request for a public hearing and, therefore, no public hearing was held. Since “the Secretary is obliged to conduct his investigation with the utmost regard for the petitioning workers,” Local 167, supra, 643 F.2d at 31, it is the opinion of the Court that the OTAA’s failure to notify the petitioner of his right to a public hearing was improper.

The Court concludes, however, that, in this case, the OTAA’s failure to give actual notice does not require reversal because the Court finds that plaintiff has not been prejudiced by the lack of a public hearing. It is well established that “procedural irregularities in administrative proceedings must be prejudicial to a party in order to justify judicial intervention.” John V. Carr & Son, Inc. v. United States, 69 Cust.Ct. 78, 87, C.D. 4377, 347 F.Supp. 1390, 1397 (1972), aff'd, 61 CCPA 52, C.A.D. 1118, 496 F.2d 1225 (1974). The administrative record is replete with materials submitted by the plaintiff and indications of telephone communications between OTAA and the plaintiff, as well as from other Railway workers. Also, the Secretary promptly published the required notices in the Federal Register. E.g., 45 Fed.Reg. 75,366 (1980) (notice of institution of investigation); 46 Fed.Reg. 20,323 (1981) (notice of negative determination of eligibility). In this case, the plaintiff has not demonstrated any additional materials that he would have presented at a public hearing that would have been helpful to his case. Thus, the plaintiff has not demonstrated that the Secretary’s failure personally to notify him prejudiced his right to a fair consideration of his petition by the OTAA.

Plaintiff also alleges that the OTAA’s Anaconda investigation was improper because the OTAA conducted inquiries by mail and telephone. Plaintiff contends that, because there was no field investigation in Anaconda, Montana, he was denied an opportunity fully to explain his position. It is not clear, however, what materials, in addition to those submitted by mail and through telephone conversations, the plaintiff would have produced at a field investigation. The nature and extent of the investigation in each case are “matters which properly rest within the sound discretion of the Secretary.” Woodrum v. Donovan, 4 CIT 46, 51, 544 F.Supp. 202, 205 (1982).

In Abbott v. Donovan, 6 CIT -, 570 F.Supp. 41 (1983), petitioning workers claimed that the OTAA abused its discretion by not conducting a field investigation. The court stated that, since the plaintiffs were unable to “show the appropriateness of and need for a field investigation,” no finding of abuse of discretion could be made. Id. at -, 570 F.Supp. at 47. In this case, plaintiff has failed to show how a field investigation in Anaconda would have aided OTAA’s investigation. Moreover, the investigation undertaken presented a clear and accurate picture of the effect of imports on the workers’ employment. Therefore, it is the determination of the Court that the OTAA did not abuse its discretion by conducting its Anaconda investigation by mail and telephone.

Plaintiff argues also that the Secretary of Labor wrongly concluded that increases of imports did not contribute importantly to the Railway workers’ separation from employment. He contends that the findings and determinations of the Secretary are not supported by substantial evidence contained in the administrative record.

Plaintiff contends that imports of copper increased continuously from 1978 through September 1980, and that this absolute increase in imports was the cause of the Railway workers’ separation from employment. As proof, plaintiff submits the 103.8 percent increase of imports during the first 9 months of 1980. In addition, plaintiff argues that imports negatively affected the domestic price of copper.

The Secretary found that imports increased industry-wide in 1980, but that the closing of the refinery and smelter, and the resulting separations of the Railway workers, were not the result of increased imports. The Anaconda facilities’ production figures increased in quantity and dollar value over the first 6 months of that year over the first 6 months of 1979, and tonnage hauled by the Railway actually increased during the first 6 months of 1980. Also, the evidence clearly supports the Secretary’s conclusion that the decrease in tonnage hauled after July 1980 was caused by the miners’ strike, not by increases of imports. The Railway hauled 813.1 short tons during the first 6 months of 1979, and 952.9 short tons during the same period in 1980, which amounts to a 17.2 percent increase in tonnage hauled. The Railway hauled 26.6 percent more anodes in 1980 than 1979.

The OTAA performed a survey of Anaconda’s customers and found that the results did not show that increased imports were the cause of the separations. Anaconda’s increased sales and production figures for the first half of 1980, as well as the increased amount of tonnage hauled by the Railway over the same period, provide a reasonable basis in the record for the Secretary’s determination. In addition, there is substantial evidence that economic factors related to the cost of compliance with environmental regulations were the primary cause of the closing of the smelter and refinery. “While the court may identify flaws in the methodology used by the Secretary, it is not the court's function to substitute its own method of analysis for that of the Secretary.” Abbott v. Donovan, 6 CIT -, 570 F.Supp. 41, 47 (1983).

The plaintiff contends that the EPA report demonstrates that increased imports contributed importantly to the Railway workers’ separation from employment. The report lists numerous factors which the EPA asserted contributed to Anaconda’s decision to close the plants, including: Environmental Protection Agency, Role of Clean Air Act Requirements in Anaconda Copper Company’s Closure of its Montana Smelter and Refinery 2-3 (1981). Anaconda decided that it could not economically make an investment to modify the plant, which would not solve its long-term needs.

historically low profitability of the company’s copper operations; high operating costs associated primarily with operating energy-intensive technology and processing low grade concentrates; cost of needed process improvements; high mining costs; underutilization of smelter capacity resulting from reduced supply of concentrates; and marketing problems with sulphuric acid.

The Trade Act does not extend benefits to those whose place of employment is closed because of technological obsolescence. See United Glass & Ceramic Workers v. Marshall, 584 F.2d 398, 405 (D.C.Cir.1978). The legislative history of the Trade Act indicates that “total or partial separations that would have occurred regardless of the level of imports, e.g., those resulting from ... technological factors are not intended to be covered by the program.” S.Rep. No. 1298, 93d Cong., 2d Sess. 133 (1974), reprinted in 1974 U.S. Code Cong. & Admin.News 7186, 7275. The legislature contemplated that the Secretary would deny certification when “another cause was so dominant that the separations ... would have been essentially the same irrespective of the [finding] of the import increase.” Id. Thus, if a company closes a plant because technological and economic factors make continued operations impractical, it cannot be said that these factors are related to increases of imports. Subsequent increases of imports would be a result, not a cause, of the company’s termination of production. In Local 167, International Molders Union v. Marshall, 643 F.2d 26 (1st Cir.1981), the United States Court of Appeals for the First Circuit stated: “If unforeseen events later produced a shift to imports, that would have no bearing on what caused the [plant] to close when it did.” Id. at 31.

In United Glass and Ceramic Workers v. Marshall, 584 F.2d 398 (D.C.Cir.1978), the District of Columbia Circuit interpreted the words “contributed importantly” in light of changing technology. The court found that “Congress was concerned that the Trade Act’s worker adjustment assistance provisions not become a general program of unemployment assistance,” and added that “a court must afford the agency substantial deference in dealing with complex and diverse applications under an admittedly vague mandate.” Id. at 407. The court concluded that, since “the OTAA’s investigation yielded a picture of the relative importance of imports that [was] reasonably, though not 100% accurate,” the Secretary should be affirmed.

Hence, after reviewing the pertinent legislation, judicial precedents, and the administrative record, the Court holds that the Secretary did not err in finding that imports of copper did not contribute importantly to the closing of the smelter and refinery and, thus, to the separation from employment of the Railway workers. Moreover, it is clear that economic factors unrelated to increases of imports were the reason for Anaconda’s decision to close the plants. Accordingly, it is the holding of the Court that the Secretary of Labor’s denial of certification is supported by substantial evidence, and is in accordance with the trade adjustment assistance provisions of the Trade Act of 1974. The determination of the Secretary is therefore affirmed, and plaintiff’s action is dismissed.

      . The Office of Trade Adjustment Assistance (OTAA) of the Department of Labor has been delegated the responsibility for investigating worker adjustment assistance programs. 29 C.F.R. § 90.2 (1984).


author: CARMAN, Judge.

text:
    SPECIAL COMMODITY GROUP ON NON-RUBBER FOOTWEAR FROM BRAZIL, AMERICAN ASSOCIATION OF EXPORTERS AND IMPORTERS, Plaintiff, v. UNITED STATES, Defendant, and Footwear Industries of America, Inc., Intervenor.
    Court No. 85-4-00579.
    United States Court of International Trade.
    Oct. 3, 1985.

      Plaia & Schaumberg, Washington, D.C. (Herbert S. Shelley and Joel D. Kaufman, Washington, D.C., on the motion) for plaintiff.
    Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Washington, D.C. (Velta A. Melnbrencis, New York City, on the motion) for defendant.
    Collier, Shannon, Rill & Scott, Washington, D.C. (Michael R. Kershow and Lauren R. Howard, Washington, D.C., on the motion) defendant for intervenor.
   MEMORANDUM OPINION AND ORDER

CARMAN, Judge.

Before the Court is a motion to intervene in an action by Special Commodity Group on Non-Rubber Footwear from Brazil (plaintiff) challenging the Commerce Department’s final determination imposing a countervailing duty on rubber footwear from Brazil. Plaintiff brought the action under section 516A of the Tariff Act of 1930, 19 U.S.C. § 1516a. Proposed inter-venor is Footwear Industries of America, Inc. (FIA), seeking to intervene on the side of defendant. The issue presented is whether a trade association may intervene in a section 516A action when it qualified as an “interested party” during the administrative proceedings but by the time action was commenced its composition had changed so that a majority of its members were not manufacturers, producers, or wholesalers of a like product.

FACTS

FIA is a trade association which, as of June 28, 1985, was comprised of 68 manufacturers of non-rubber footwear and 76 suppliers to the industry. It was formed by the consolidation of American Shoe Center, Inc., and American Footwear Industries, Inc. (AFIA). AFIA was the original petitioner in the proceeding which resulted in the countervailing duty order challenged by plaintiff. After consolidation, FIA continued to participate in the review proceeding. At the time of FIA’s participation in the review proceeding, a majority of its members were manufacturers of non-rubber footwear.

OPINION

The right to intervene in a section 516A action is based on 28 U.S.C. § 2631(j)(l)(B), which provides that

(1) Any person who would be adversely affected or aggrieved by a decision in a civil action pending in the Court of International Trade may, by leave of court, intervene in such action, except that
... (B) in a civil action under section 516A of the Tariff Act of 1930, only an interested party who was a party to the proceeding in connection with which the matter arose may intervene, and such person may intervene as a matter of right.

' The Statute defines “interested party” as including “a trade or business association a majority of whose members manufacture, produce, or wholesale a like product in the U.S.” 19 U.S.C. § 1677(9)(E), incorporated by reference in section 2631(k)(l). Thus, to intervene in a section 516A action as a matter of right, a domestic trade association must have been a party to the administrative proceedings and a majority of its members must manufacture, produce, or wholesale a like product. The statute does not allow permissive intervention.

The parties here do not dispute that FIA was a party to the proceedings. It is also clear that a majority of FIA’s members are now suppliers. Plaintiff therefore contends that FIA is not an interested party within the meaning of section 2631(j)(l)(B) because a trade association must have a majority of its members directly involved with the manufacture, production, or wholesale of a like product at the time the action was commenced. The Court does not read section 2631(j)(l)(B) so narrowly.

In American Grape Growers v. United States, 9 CIT —, 604 F.Supp. 1245 (1985), the court allowed an association to intervene, although only one-half of its members produced a like product, clearly not a “majority.” The court concluded from the legislative history and the purpose of the statute that to construe the statute narrowly in that case would defeat the intention of Congress. The court reasoned that

the standing requirement for associations was primarily designed to keep out broad-spectrum, general organizations who would always have a few members with direct interest in the product under investigation. The “majority” requirement in the Trade Agreement Act of 1979 was explained as follows in the report of the Senate Committee on Finance:
This limitation is believed to fairly delimit those groups with sufficient interest to always be considered interested parties. An association representative of importers generally, or business generally, would not be considered an interested party under this limitation, although a sub-group of such an association may qualify. S.Rep. 96-249, 96th Cong., 1st Sess. 90 (1979).
In the opinion of the Court, the remedial purpose of this provision, intended as it was to set a fair standard for access to judicial review, justifies the conclusion that an organization should have standing in the peculiar situation when interested parties are half of the membership. At the midpoint, the proportion of membership with undeniable interest is sufficient to fall within the intention of the law.

Id. at —, 604 F.Supp. at 1249.

The Court in this case holds that the remedial purpose of the statute justifies the conclusion that a trade organization should have standing when, at the administrative proceeding, a majority of its members manufacture, produce, or wholesale a like product, but, by the time action is commenced, its composition has changed so that only 47% of its members manufacture, produce, or wholesale a like product. Congress was concerned that an organization with only a slight interest should not be allowed to intervene. The peculiar facts of this case clearly demonstrate that FIA has a strong interest in this action and has participated in the administrative proceedings as a party within the meaning of the statute. Under these circumstances, FIA’s composition at the administrative proceeding is sufficient to place it within the intention of the statute.

This conclusion is not contrary to the holding in Matsushita Electric Industrial Co. v. United States, 2 CIT 254, 529 F.Supp. 664 (1981). There the court did not allow individuals to intervene who had been members of an umbrella organization that participated in the administrative proceeding. The court reasoned that “party” must have the same meaning at the administrative proceeding as before the court. If individual members were allowed to intervene in a court action, without having noted their individual appearance at the administrative level, the court was concerned that members of the same organization might try to intervene on opposite sides in a court case because of their differing interests. The court concluded that “Congress intended the statutory provisions for participation in the administrative proceeding and judicial review to benefit unitary parties and not to allow the expedient fragmentation of umbrella organizations.” Id. at 258, 529 F.Supp. at 669.

No similar concern exists here. The umbrella organization that was a party to the proceeding is the same party appearing in court. There is no danger of fragmentation. FIA is also not a broad-spectrum organization. For these reasons, the Court concludes that section 2631(j)(l)(B) encompasses the organization before the Court, and therefore grants the motion to intervene as a matter of right. Because the Court grants the motion, it does not reach FIA’s alternative motion that its individual members be allowed to intervene on their own behalf.

ORDER

Upon reading and filing the Motion to Intervene by Footwear Industries of America (FIA), plaintiff’s response thereto, and upon all other papers and proceedings had herein, it is hereby

ORDERED, ADJUDGED and DECREED that:

Footwear Industries of America, Inc. be permitted to intervene as a defendant.

      . The Court also notes that the manufacturer members of FIA contribute 75% of the organization’s dues.