author: SHADUR, District Judge.

text:
    Maxine SCOTT, Plaintiff, v. SEARS, ROEBUCK AND CO., Defendant.
    No. 82 C 4737.
    United States District Court, N.D. Illinois, E.D.
    March 25, 1985.

      Steven B. Varick, McBride, Baker & Coles, Chicago, Ill., for plaintiff.
    Arthur L. Klein, Reed R. Kathrein, Arnstein, Gluck, Lehr, Barron & Milligan, Carl E. Smith, Chicago, Ill., Spero, Hayes & Hirschtick, for defendant.
   MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Maxine Scott (“Scott”) charges Sears, Roebuck and Co. (“Sears”) with employment discrimination in violation of:

1. Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. §§ 2000e to 2000e-17 (“Title VII”) and

2. the Illinois Human Rights Act (the “Act”), Ill.Rev.Stat. ch. 68, ¶¶ 1-101 to 9-102.

Scott also claims her termination by Sears violated its implied covenant of good faith and fair dealing under the employment contract between them. Sears has now moved under Fed.R.Civ.P. (“Rule”) 56 for summary judgment. For the reasons stated in this memorandum opinion and order, Sears’ motion is granted.

Facts

1. Scott’s Position with Sears

On June 30, 1980 Scott was hired to participate in a job training course Sears was then conducting under contract with the Ghicago Alliance of Business Employment and Training, Inc. Scott’s wages were subsidized in part by federal Comprehensive Employment and Training Act (“CETA”) funds (PI. Proposed Findings of Fact [“Findings”] ¶¶ 3-4). Scott never entered into a written contract with Sears beyond signing her employment application form, which said she would be an at-will employee (Scott Cont. Dep. 50 and Ex. A).

After Scott completed a 12-week course in automotive mechanics, she was assigned to work in the automotive department of Sears’ Orland Park store. At that time the automotive department was managed by Ernest McDowell (“McDowell”), with Joseph Sanders (“Sanders”) as the shop manager (Findings 116).

Scott was assigned to the department’s brake section. Except for an occasional assignment to replace tires and batteries, all her work consisted of repairing and replacing defective brake systems (Gadberry Dep. 29). Sanders assigned brake mechanic Eddie Gadberry (“Gadberry”) to train Scott during her first three months at Orland Park (because Gadberry was on vacation when Scott first arrived, mechanic Dave Fraser trained her during her first few weeks) (Findings 117).

Scott’s training by Fraser and Gadberry consisted of her working directly with them on their brake jobs (Gadberry Dep. 11). They would instruct her as they went along and then have her try her hand at the work (Scott Cont. Dep. 37). After three months of that in-service training, Scott was assigned her own work. When she ran into problems she would ask Gadberry and other mechanics for help (id. at 40). On at least one occasion Sanders asked Gadberry to evaluate Scott’s performance (Gadberry Dep. 46).

Scott testified at her deposition that Gad-berry trained her adequately (Scott Dep. 22). He was basically pleasant to her, and she considered him her “friend” in the same way she considered all the mechanics her friends (Scott Dep. 22). Gadberry testified at his deposition he considered Scott a competent, although somewhat slow, mechanic (Gadberry Dep. 32-33, 88) and that he gave her a favorable evaluation when Sanders asked about her performance (Gadberry Dep. 46, 48).

2. Alleged Sexual Harassment

Scott nevertheless claims Gadberry and other mechanics repeatedly sexually harassed her. Gadberry, the principal alleged harasser, supposedly “propositioned” her repeatedly (Scott Dep. 24, 29, Cont. Dep. 31). She said the other mechanics “flirted” with her (id. at 21-22, 42, 45, 56).

When pressed at her deposition about the details of Gadberry’s alleged harassment, Scott clarified he had never touched her, made a lewd comment to her or explicitly asked her for sex (Scott Dep. 25-29). Scott said when she asked Gadberry for help with a brake problem, he often asked in reply “What will I get for this?” (Scott Dep. 25). Scott interprets that to be an “obvious” request for sex (id.). There is no indication Gadberry ever refused to help Scott for failure to get something in return.

Scott also said Gadberry would often “ask to take me out” (id. at 21, 24, 28). She said he was no more specific than that (id. at 28, 34). He did suggest taking her to the “Green Grasshopper,” a restaurant in the same mall as Sears where the Sears automotive employees often gathered (id. at 29). Again she interprets those requests as requests for sex (id. at 29):

He didn’t come out and tell me he wanted sex. You don’t have to come out and say you want to have sex with somebody, if you want to take them out this is what it’s going to lead to.

Beyond Gadberry’s alleged “propositions,” Scott claimed he was generally “suggestive” or had an “attitude” (id. at 36-36). Again she could not specify any words or actions that were suggestive beyond an occasional wink (id. at 35-38). Finally, Scott testified Gadberry had once offered to “come over and give me a rubdown” (id. at 26), although Scott had not remembered this incident when she testified about sexual harassment at a co-worker’s trial (id. at 26-27).

As for other mechanics, Scott claimed they were always “coming over to talk” to her (id. at 21-22), “trying to take me out on dates or whatever the case may be” (id. at 56) or flirting (id. at 42, 45). Here the only specific details Scott could offer are that mechanic A1 Williams once made a lewd comment to her (id. at 41) and mechanic Winston Taylor once “hit me on my buttock” (id. at 44). As a result of the alleged harassment Scott found the work environment “very uncomfortable” (id. at 52).

Scott never complained to any supervisory personnel about any alleged sexual harassment (Scott Dep. 48-49, 69-70, Cont. Dep. 32-33). She said she just assumed they were aware of it (id.). She offered no evidence of their knowledge, asserting only that the men in the shop were a close-knit group and must have known what was happening (id.).

3. Scott’s Work Performance

Sears imposes productivity requirements on its brake mechanics. They are generally expected to perform three brake jobs per day (Gadberry Dep. 35-37). Although brake mechanics are rotated in and out of tire and battery work, they receive less productivity credit for that type of work (Findings ¶ 15).

Scott claims Sanders and McDowell told her she would not be required to meet the normal quota during her first nine months (Scott Cont. Dep. 6, 10-11, 30). During that time she would not be judged on productivity, but she should try to work up to two or two-and-a-half brake jobs per day (id. at 6). Scott testified that by the end of the nine-month period she had achieved a rate of two brake jobs per day (Scott Dep. 49). She admits she was warned in April 1981 that she would be terminated unless she improved her productivity (Scott Cont. Dep. 46).

One reason Scott offers for failing to achieve a higher productivity rate is a shortage of work in the shop, which led to her frequent assignment to tire and battery duty. When work had to be done in a hurry, such as when customers were waiting, it was assigned to the regular male mechanics rather than to Scott (Scott Cont. Dep. 44-45). Moreover, Scott claims the dispatcher discriminated against her on the basis of her sex by giving preference to the male mechanics when work was short (but she offers neither factual details nor any evidence to support that allegation) (id.). Finally, Scott asserts she relied on Sanders’ and McDowell's promise by failing to compete aggressively for work when it was in short supply.

4. Scott’s Discharge

On June 30, 1981 the CETA subsidy of Scott’s wages was terminated. On July 17, 1981 Scott was discharged along with Arlene Otis (“Otis”), the only other female mechanic and the only other mechanic in the CETA program. Scott claims McDowell said when he fired her (Scott Dep. 59):

that he didn’t want to pay a woman $7 an hour when he could get a man to do three brake jobs for that.

After Scott and Otis were fired no new employee was hired to replace them. Their work was absorbed by the remaining mechanics (Gadberry Dep. 56-57). Gadberry testified that after Scott’s and Otis’ departure the per-mechanic workload was just about right for the attainment of productivity quotas (id.).

Scott’s Claims and Sears’ Defenses

Scott has either stated or suggested a number of alternative—and inconsistent— versions of the facts giving rise to various theories of recovery:

1. Scott was fired in violation of Title VII and the Act for refusing to accede to Gadberry’s propositions.
2. Sexual harassment created an abusive work environment in violation of Title VII and the Act.
3. McDowell’s alleged comment to Scott indicates she was fired because of her sex in violation of Title VII and the Act.
4. Scott was fired for lack of productivity. That violated Sears’ implied covenant of good faith and fair dealing because:
(a) Sanders and McDowell led Scott to believe she would not have to meet the productivity quota. She relied on that by not working as hard or competing for scarce work.
(b) Sears failed to assign Scott enough work to enable her to meet her quota.
(c) Sears failed to provide Scott with enough training to meet the productivity standards unless she acquiesced in the sexual propositions of the other mechanics.

In addition to discussing the merits of the Title VII claim, Sears’ summary judgment motion raises three legal issues:

1. Count II’s “implied covenant” claim does not state a cause of action cognizable under Illinois law.
2. No private right of action is conferred by the Act.
3. Scott’s Title VII claim is barred by her failure first to file a claim with the Illinois Fair Employment Practices Commission (“FEPC”).

Those three issues will be dealt with first, after which Scott’s still-surviving claims will be treated.

Count II’s Implied Covenant Claim

Despite her admitted at-will employee status, Scott claims Illinois law implies a covenant of good faith and fair dealing that limits the circumstances under which Sears could discharge her. But that is not the law in Illinois. In Payne v. AHFI/Netherlands, B.V., 522 F.Supp. 18, 23 (N.D.Ill.1980) this Court quoted Criscione v. Sears, Roebuck & Co., 66 Ill.App.3d 664, 669-70, 23 Ill.Dec. 455, 459, 384 N.E.2d 91, 95 (1st Dist.1978) in rejecting the very theory now advanced by Scott:

[R]equiring an employer in an at will relationship to terminate an employee only for a legitimate business reason absent any other restrictions by contract or statute would place the courts in the untenable position of having to assess an employer’s business judgment. There has been no attempt by the legislature to so alter the State’s employment policy and such a step is not one for the courts to make. The rule in this state is that an employment at will relationship can be terminated for “a good reason, a bad reason, or no reason at all.”

Indeed, the more recent cases cited by Scott only serve to reconfirm Criscione’s vitality. Dykstra v. Crestwood Bank, 117 Ill.App.3d 821, 826, 73 Ill.Dec. 307, 311, 454 N.E.2d 51, 55 (1st Dist.1983); Cuerton v. Abbott Laboratories, Inc., 111 Ill.App.3d 261, 66 Ill.Dec. 906, 909-910, 443 N.E.2d 1069, 1072-74 (2d Dist.1982). Count II thus fails to state a claim under Illinois law.

Illinois Human Rights Act

To be sure, the Act prohibits both sex-based employment discrimination and sexual harassment by employers. Ill.Rev.Stat. ch. 68, H 2-102(A) and (D). But it vests in the Illinois Human Rights Commission (the “Commission”) exclusive jurisdiction over complaints by private parties. Ill.Rev.Stat. ch. 68, ¶¶ 8-103, 8-11. Private litigants may sue in the courts only for review of the Commission’s actions. Armstrong v. Freeman United Coal Mining Co., 112 Ill.App.3d 1020, 1022-23, 68 Ill.Dec. 562, 564, 446 N.E.2d 296, 298 (3d Dist.1983). Accordingly this Court has no jurisdiction over Scott’s claim under the Act.

FEPC Filing

Sears argues Scott’s Title VII claim is barred because she failed, as 42 U.S.C. § 2000e-5(c) mandates, to file a claim with FEPC in addition to EEOC at least 60 days before filing her lawsuit. In accordance with established practice, EEOC forwarded Scott’s claim to FEPC (Scott Mem. Ex. A, date-stamped as received by FEPC September 1, 1981, nearly 11 months before Scott filed her suit). Under the FEPC-EEOC work-sharing agreement, the latter still processed the claim. Of course Sears, with its extensive experience with Title VII, is well aware of that procedure (see its R.Mem. 1-2 n. 1). But its agreeing not to pursue its argument on this score “if plaintiff comes forward with proof” (id.) is disingenuous. This is after all Sears’ motion for summary judgment, with all reasonable inferences from the evidence (here Scott Mem. Ex. A) to be drawn in Scott’s favor.

Thus Scott must be deemed to have satisfied—with EEOC’s help—the procedural prerequisites for a Title VII suit. This opinion turns then to the merits under Title VII.

Summary Judgment Considerations

Surely there can be no mystery as to the operative principles under Rule 56:

1. Rule 56(c) says judgment “shall be rendered” if the pleadings and supporting evidentiary materials:
show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
2. Facts must be viewed in the light most favorable to Scott, the non-movant, with reasonable inferences drawn in her favor. Hermes v. Hein, 742 F.2d 350, 353 (7th Cir.1984).
3. Sears has the burden of showing there is no genuine issue of material fact. Egger v. Phillips, 710 F.2d 292, 296 (7th Cir.1983).

Yet each litigant displays a misunderstanding of those basic concepts.

On the current motion Sears draws its facts exclusively from Scott's deposition testimony and proposed findings of fact. For that reason Sears R.Mem. 3 urges the facts are automatically seen in the light most favorable to Scott, so there can be no issue of fact. That contention is plainly wrong. Scott’s testimony contains ambiguities and conflicts and may therefore be susceptible of more than one interpretation. Sears may not pick and choose among her statements in a manner that distorts them, nor may it draw inferences in its own favor from her ambiguous statements.

On the other side of the coin, Scott may not avoid summary judgment merely because a central issue is partly fact-oriented (Scott Mem. 9). What is required is a genuine issue as to one or more material facts. Rule 56(e) provides:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

Scott must, in response to Sears’ properly supported factual assertions, identify contrary evidence that could reasonably lead to factual findings in her favor.

Merits of Title VII Claim

1. Scott’s Refusal To Accede to Gadberry’s Propositions

Scott speculates her discharge may have been attributable to her refusal to accede to Gadberry’s alleged propositions (Scott Mem. 8, Cont. Dep. 31-33). But she offers no evidence to support that hypothesis or to lead reasonably to such an inference. On the one occasion Sanders consulted Gadberry about Scott’s performance (Gadberry Dep. 46), Gadberry testified he gave Scott a favorable evaluation (id. at 46-49). Scott has neither challenged that testimony nor offered any evidence McDowell’s decision to discharge her was based in any way on Sanders’ conversation with Gadberry.

It must be remembered Scott bears the burden of proof in the underlying action. It is simply not enough for her to raise a speculative possibility of discrimination. Rather Scott must identify facts giving rise to a reasonable inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978). She has plainly not done so with respect to her charge of retaliation by Gadberry.

2. Hostile Work Environment

Scott claims the sexual harassment to which she was subjected created a work environment so hostile as to constitute a Title VII violation independent of her discharge. Section 2000e-2(a)(l) prohibits discrimination on the basis of sex with respect to “compensation, terms, conditions, or privileges of employment.” That language was interpreted in Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir.1971), cert. denied, 406 U.S. 957, 92 S.Ct. 2058, 32 L.Ed.2d 343 (1972) to include the state of psychological well being at the workplace. At least three Courts of Appeal since Rogers have concluded that sexual harassment may so poison a working environment as to alter a “term, condition, or privilege of employment” in violation of Title VII, even if the conduct does not result in a discharge or denial of promotion. Katz v. Dole, 709 F.2d 251, 254 (4th Cir.1983); Henson v. City of Dundee, 682 F.2d 897, 902 (11th Cir.1982); Bundy v. Jackson, 641 F.2d 934, 943-46 (D.C.Cir.1981).

Scott's “hostile environment” claim encounters three major obstacles. Though her failure to surmount the third of those is fatal to her claim, in the interests of completeness all three will be discussed.

(a) Relief

Scott’s Second Amended Complaint seeks only damages for lost wages and benefits resulting from her discharge. But because an “hostile environment” claim is unrelated to discharge, such damages are unavailable here. Bundy, 641 F.2d at 946 n. 12. In addition, damages for mental suffering and emotional distress are nonrecoverable under Title VII. Henson, 682 F.2d at 905. Finally, because Scott is not entitled to reinstatement she cannot seek injunctive relief to prevent future harassment. Id. Thus, even were Scott able to establish an “abusive environment” violation, she would be entitled at most to nominal damages and the possibility of attorneys’ fees. Id.

(b) Sears’ Liability for Gadberry’s Actions

Employers are strictly liable for sexual harassment by supervisory personnel who have the power to hire, fire or promote. Horn v. Duke Homes, 755 F.2d 599, 604-06 (7th Cir.1985); Vinson v. Taylor, 753 F.2d 141, 149-50 (D.C.Cir.1985); Bundy, 641 F.2d at 947; see also 29 C.F.R. § 1604.11(c). Vinson would extend that to any supervisory personnel. On the other hand, an employer is liable for sexual harassment by nonsupervisory employees only when the employer has actual or constructive knowledge of the harassment. Barrett v. Omaha National Bank, 726 F.2d 424, 427 (8th Cir.1984).

Scott cannot attribute to Sears either actual or constructive knowledge of the alleged harassment. She admits she never complained to a superior, and she offers no evidence at all that Sears officials knew of harassment by Gadberry or any other co-worker. Even on the view most favorable to Scott, the harassment can hardly be deemed so pervasive or so severe that constructive knowledge could be imputed to Sears. Scott does not complain of audible vulgarities or behavior that would be apparent to Sanders or McDowell. Nor does she complain of regular harassment by a number of co-workers. Rather, except for an isolated touch and an isolated vulgar comment by Al Williams, she complains of subtle behavior and comments susceptible of innocent interpretations and attributable primarily to a single person, Gadberry.

Because Scott has failed to identify facts that indicate Sears’ management knew of the harassment, Sears can be held liable only if Gadberry can be considered a supervisor with authority to hire, fire or promote Scott. But Gadberry had no such power, nor was he really a “supervisor” (even assuming Vinson were good law in this Circuit). He was merely a brake mechanic assigned to train Scott and work with her. . Sanders’ having once asked Gadberry how Scott was performing does not of itself place Gadberry in a position of power to require Scott to submit to harassment she would not otherwise have tolerated. There is no indication Scott knew of Sanders’ inquiry or believed Gad-berry could influence her status at Sears for better or worse. Gadberry must therefore be considered a mere co-worker.

(c) Severity of Harassment

Even if Sears could be held strictly liable for harassment by nonsupervisory co-workers (as it cannot), Scott’s claim would still fail. All the cases (Katz, Henson and Bundy) cited by Scott to establish that a hostile environment can violate Title VII also teach that not all sexual harassment is severe or pervasive enough to constitute such a violation. Henson, 682 F.2d at 904 stated:

The court in Rogers made it clear, however, that the “mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee” does not affect the terms, conditions, or privileges of employment to a sufficiently significant degree to violate Title VII.

Similarly Katz, 709 F.2d at 256 emphasized:

Title VII is not a clean language act and it does not require employers to extirpate all signs of centuries-old prejudices.

Unquestionably the conduct Scott complains of falls short of the severity and pervasiveness necessary to constitute an actionable hostile environment. It requires only a reading of Katz, Henson and Bundy to see the shocking and pervasive conduct they portray finds no parallel in the climate at Sears. Apart from an isolated incident with co-worker Williams, Scott was not subjected to vulgarity, demeaning comments, improper inquiries about her private behavior or explicit propositions. Even Scott characterized the behavior of the bulk of her co-workers as flirting (Scott Dep. 42-43). And Scott’s characterization of the comments of Gadberry and others as “propositions” depends almost entirely on inference.

It may be that some of Scott’s co-workers behaved improperly and that she felt uncomfortable. Nevertheless,

whether an employee is sexually harassed is generally an objective determination and ... the focus of the question of sexual harassment should be on the defendant’s conduct, not the plaintiff’s perception or reaction to the defendant’s conduct.

Jennings v. D.H.L. Airlines, 34 FEP Cases 1423, 1425 (N.D.Ill.1984). Judged by such a standard, the work environment at the Sears automotive center cannot be deemed so hostile as to have altered a “term, condition or privilege” of Scott’s employment.

3. Gender-Based. Discharge Claim

Scott’s only remaining claim is that she was impermissibly discharged because of her sex. Here the underlying inquiry is always whether the plaintiff’s evidence (either direct or circumstantial) raises a reasonable inference of discrimination. Furnco, 438 U.S. at 576, 98 S.Ct. at 2949. Once more Scott has failed to present specific facts sufficient to create such an inference.

McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973) stated the method for establishing a prima facie case of discrimination through circumstantial evidence. One of the essential elements of a McDonnell-Douglas prima facie case is that the plaintiff is qualified for the position at issue. Parker v. Federal National Mortgage Association, 741 F.2d 975, 978-79 (7th Cir.1984). Scott is plainly unable to make such a showing. By her own admission, she never achieved the level of productivity normally required of Sears brake mechanics (Scott Dep. 49).

Scott fares no better with assertedly direct evidence of discrimination. She claims McDowell’s comment that “he didn’t want to pay a woman $7 an hour when he could get a man to do three brake jobs for that” (Scott Dep. 59) indicates she was discharged on the basis of her sex. True enough, any reference to sex in the employment context raises a red warning flag. But on analysis the McDowell statement does not support Scott’s contention at all.

Without question Scott’s productivity after nine months was still well below that expected by Sears. Although Scott protests she was told she did not have to meet quotas during training, she concedes (1) she knew she would have to work up to three brake jobs per day (Findings II12) and (2) she was warned in April 1981 her job was in jeopardy unless she improved her productivity (Scott Cont.Dep. 46).

It is also undisputed that Sears did not have enough brake work to justify hiring Scott and Otis at full salary after their CETA-subsidized training period had ended. Scott testified there was not enough brake work in the shop to keep the mechanics busy (Scott Cont. Dep. 43-44). No replacements were hired for Scott or Otis, and the remaining mechanics easily absorbed their work (Gadberry Dep. 56-58).

In objective terms Sears laid off Scott— an underproductive junior employee— when the size of its work force exceeded the volume of work. Fairly read, McDowell’s statement reflected an unwillingness to discriminate in favor of a woman— Scott—under those circumstances. Had Sears fired a male employee who was exceeding its expected production standards (and who was senior to Scott) in order to keep Scott on the payroll, it would have been vulnerable to a meritorious charge of sex discrimination against the discharged male. This Court is not obligated thus to distort Title VII into a vehicle to promote discrimination at Scott’s behest.

Conclusion

Scott has failed to identify specific facts that reasonably lead to an inference of discrimination. There is no genuine issue as to any material fact, and Sears is entitled to a judgment as a matter of law. This action is dismissed with prejudice.

      . Scott's Second Amended Complaint also charged Sears had violated an express contract with her. She later withdrew that claim (Scott Mem. 11).

      . Scott's deposition testimony contradicted much of her pro se complaint in this action. Though her complaint had said she was inadequately trained, her testimony conceded the adequacy of her training (Scott Dep. 22). Similarly, her complaint asserted she had "complained about” harassment but was "ignored.” Later she admitted she had never complained to anyone about the harassment. (Id. at 48-49, 69-70, Cont. Dep. 32-33). Again, her complaint said she was told her job would be permanent, but she testified she knew she was only being considered for permanent employment (Scott Dep. 46-47). Finally, her complaint alleged she was "laid off for lack of work,” but later she changed her story and claimed she was discharged because of her sex.

      . Gadberry denies ever making such a statement to Scott (Gadberry Dep. 98-99). On the current motion, however, Scott’s version must be credited.

      . Brake work was assigned by nonsupervisory dispatchers on a predominantly random basis. When a mechanic was finished with one job the dispatcher would give him or her the next job off the top of the work order pile (Scott Cont. Dep. 38).

      . Some of Scott’s claims are interwoven or poorly articulated. This Court has considered every possible claim raised by Scott's submissions, in light of the possibility under Rule 15(b) of her ultimately seeking to amend the complaint to conform to the proof.

      . At least two courts have applied a different rule in "hostile environment" cases, requiring that the employer have actual or constructive notice even when supervisors participated in the harassment. Katz, 709 F.2d at 255; Henson, 682 F.2d at 905.

      . Scott can only argue Sears must have known of the harassment because male employees, including Sanders and McDowell, are a closely knit group (Scott Mem. 6-7).

      . Scott herself stated in her pro se complaint that she believed she was "laid off for lack of work," not because of her sex. That reflects a different reading of McDowell's comment from the one she now advances.

      . Alternatively Scott suggests she was indirectly discharged due to her sex because:
      1. She was fired for lack of productivity.
      2. Her productivity was low because the dispatchers discriminated against her in the assignment of work.
      As for the first factor, it may perhaps be inferred from (a) McDowell's comment and (b) Scott's not having been replaced. But Scott offers no facts to prove the second element— discrimination by dispatchers (some of whom were women). Moreover, it is not clear any discrimination by a dispatcher can be attributed to Sears.

      . Scott appears to have been the least senior brake mechanic.


source: Caselaw Access Project

author: KRAM, District Judge.

license: Public Domain

text:
    UNITED STATES of America, v. Jose RAMOS, Defendant.
    No. 85 Cr. 4 (SWK).
    United States District Court, S.D. New York.
    March 26, 1985.

      Rudolph W. Giuliani, U.S. Atty., S.D. New York by Robert L. Folks, Asst. U.S. Atty., New York City, for United States.
    Caesar ,D. Cirigliano, The Legal Aid Society, Federal Defenders Services Unit by Jack Lipson, New York City, for defendant.
   MEMORANDUM OPINION AND ORDER

KRAM, District Judge.

The defendant, Jose Ramos, has moved pursuant to Rule 41 of the Federal Rules of Criminal Procedure to suppress as evidence post-arrest statements made by him to Assistant United States Attorney Robert L. Folks prior to his presentment before a United States Magistrate. For the reasons stated below, the motion to suppress is DENIED.

BACKGROUND

Mr. Ramos was arrested at approximately 4:00 p.m. on December 13, 1984, in the vicinity of West 111th Street and St. Nicholas Avenue, for allegedly steering an undercover agent to a seller to purchase cocaine. He was taken to the 26th Police precinct, at 530 West 126th Street, for processing. There, he was fingerprinted, photographed, and interviewed by the arresting officers regarding his name, age, address, etc.

At 8:50, some five hours after his arrest, he was interviewed at the 26th Precinct by Assistant United States Attorney Folks for a period of twenty minutes. At this interview, Mr. Ramos was advised by AUSA Folks that he had a right to remain silent and a right not to answer any questions. He was further advised that he had a right to counsel; that, if he could not afford one, an attorney would be appointed for him; and that an attorney could be appointed before the interview and could be present during the interview if desired. After each statement of rights, Mr. Ramos was asked if he understood the statement. Mr. Ramos responded, in most cases with a nod, that he understood all the rights described. Mr. Ramos was then asked questions about his background. Thereafter, Mr. Ramos was asked questions, and made certain statements, relating to the conduct for which he was arrested. Following the interview, Mr. Ramos was taken to the Metropolitan Correctional Center, where he was held overnight.

The next day, Mr. Ramos was processed by the United States Marshal’s Service and interviewed by a Pretrial Services Officer, who prepared a written report. Some time that afternoon, he was taken to the United States Magistrate’s courtroom, where, for the first time, he spoke to the attorney appointed to represent him. He was presented before a Magistrate at 2:30 p.m.

Mr. Ramos was formally charged in a two count indictment, handed up on January 4, 1985, with the alleged conduct which led to his arrest on December 13, 1984. Mr. Ramos was arraigned on January 11, 1985, on the charges contained in that indictment, and pled not guilty. The case was assigned to me. This motion to suppress the statements Mr. Ramos made to AUSA Folks in the interview the night before his presentment ensued.

DISCUSSION

The admissibility of confessions is governed by section 3501, Title 18 United States Code. Section 3501(a) provides that a confession shall be admissible in evidence “if it is voluntarily given.” There is no allegation here that Mr. Ramos gave his statements to Mr. Folks other than voluntarily. Moreover, section 3501(c) provides that a confession may be suppressed if more than six hours have elapsed between the arrest and the making of the confession, unless the delay is found to have been reasonable. United States v. Perez, 733 F.2d 1026 (2d Cir.1984). In Perez, Judge Weinfeld had suppressed statements similar to those at issue here because they were made in an interview with an AUSA some eight hours after arrest, and because the delay in presenting the defendant before a magistrate, almost twenty-four hours after arrest, was unreasonable. Id., aff’g United States v. Toney, 579 F.Supp. 652 (S.D.N.Y.1984). Mr. Ramos’s statements were made approximately five hours after his arrest, so they do not fall within this provision. Under the governing statute, therefore, Mr. Ramos’s statements would not be suppressed. See Toney, 579 F.Supp. at 656 (“A statement obtained within six hours of arrest is not inadmissible solely because of pre-arraignment delay, under 18 U.S.C. § 3501(c).”).

The defendant nevertheless argues that these statements should be suppressed. Mr. Ramos challenges the practice of prepresentment interviews of arrested persons followed by the United States Attorney’s Office in this district on two grounds: first, that it causes unnecessary delay in the presentment of arrested persons before a United States Magistrate, in violation of Rule 5(a) of the Federal Rules of Criminal Procedure; second, that it prevents indigent defendants like himself from intelligently and knowingly exercising or choosing to waive their Fifth and Sixth Amendment rights with the benefit of advice from a neutral judicial officer, and is therefore unconstitutional.

Rule 5(a) of the Federal Rules of Criminal Procedure provides in pertinent part that “any person making an arrest without a warrant shall take the arrested person without unnecessary delay before the nearest available federal magistrate” (emphasis added). Courts, enforcing Rule 5(a) (and its predecessor statutes), had long held that the violation of a defendant’s right to prompt presentment before a magistrate required the suppression of any confessions made by the defendant after arrest. See Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957); McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943). This exclusionary rule, derived from the court’s “supervisory authority over the administration of criminal justice in the federal courts,” id., 318 U.S. at 341, 63 S.Ct. at 613, is known as the McNabb-Mallory rule.

Defendant argues here that the general practice of the United States Attorney’s Office in interviewing defendants prior to presentment perforce unnecessarily delays that presentment in violation of Rule 5(a). Essentially, defendant is urging this Court to apply the McNabb-Mallory rule to all pre-presentment interviews and suppress any confessions derived therefrom. Congress, however, in enacting section 3501(c), has restricted the application of the McNabb-Mallory rule. See Perez, 733 F.2d at 1035. As discussed above, pre-confession delays of less than six hours no longer lead to the suppression of confessions solely based on delay. Thus, Rule 5(a) and section 3501(c) are in pari materia and must be construed together. Rule 5(a) cannot be said to have been violated when the AUSA interview, and the resultant confession, occurs within six hours of arrest, at least not, as here, where that interview in no way affects the speed with which the defendant is presented before a magistrate.

Even if the application of section 3501(c) does not preclude the suppression of Mr. Ramos’s confession under Rule 5(a), the delay in presenting Mr. Ramos before a magistrate was not unnecessary. He was arrested late in the afternoon, and his processing at the police precinct evidently took some time. By the time the standard, appropriate processing at the police precinct was completed, there was no Magistrate or Pretrial Services Officer on duty before whom Mr. Ramos could have been taken. Accordingly, it was necessary to hold him overnight, and defer processing him to the next morning. Lodging a defendant overnight because no magistrate is available does not constitute an unnecessary delay in bringing the defendant before a magistrate. United States v. Marrero, 450 F.2d 373, 378 (2d Cir.1971), cert. denied, 405 U.S. 933, 92 S.Ct. 991, 30 L.Ed.2d 808 (1972). The interview objected to here, conducted at 8:50 p.m., prior to lodging Mr. Ramos for the night, in no way affected the time that Mr. Ramos was presented before a magistrate. Thus, the practice followed here did not violate Rule 5(a).

The constitutional objections to the practice of the United States Attorney’s Office that is being challenged here raise harder issues. As counsel for Mr. Ramos notes in his memorandum of law, the practice of having Assistant United States Attorneys interview arrested persons before their presentment before a magistrate, where at least one purpose of the interview is to obtain confessions, has been criticized repeatedly by the Second Circuit. United States v. Foley, 735 F.2d 45 (2d Cir.1984); Perez, 733 F.2d at 1036; United States v. Mohabir, 624 F.2d 1140, 1150 (2d Cir.1980); United States v. Duvall, 537 F.2d 15, 23 (2d Cir.), cert. denied, 426 U.S. 950, 96 S.Ct. 3173, 49 L.Ed.2d 1188 (1976); see also United States v. Restrepo-Cruz, 547 F.Supp. 1048, 1060-62 (S.D.N.Y.1982); but see United States v. Ortega, 471 F.2d 1350, 1362 (2d Cir.1972) (Medina, J.), cert. denied, 411 U.S. 948, 93 S.Ct. 1924, 36 L.Ed.2d 409 (1973). The Second Circuit in these cases has noted its concern that the practice may unconstitutionally impinge a defendant’s exercise of his Fifth and Sixth Amendment rights. Moreover, since the interviews perforce are only conducted with unrepresented defendants, see Foley, 735 F.2d at 48; see also Disciplinary Rule 7-104(A)(1) of the ABA Code of Professional Responsibility, it is likely that this adverse impact falls mainly on indigent defendants, who must often wait until their presentment for counsel to be assigned to them. This makes the practice still more troubling. See Foley, 735 F.2d at 48; Restrepo-Cruz, 547 F.Supp. at 1061. In each of these cases, however, the court has stopped short of holding such pre-presentment interviews unconstitutional.

I, too, am troubled by this practice, and hesitate to rush in where the Second Circuit has thus far refused to reach. Nonetheless, a resolution of these difficult constitutional issues is necessary for the resolution of this motion. After a careful review of the arguments enunciated by the courts in their criticism of this practice, I find that the practice is not unconstitutional.

The Fifth Amendment protects against compelled self-incrimination. In assuring that law enforcement personnel observe that constitutional safeguard, the Supreme Court has established certain requirements which must be followed before an arrested individual can be questioned. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In short, the Fifth Amendment requires that an arrested individual be advised that he has the right to remain silent, that any statement he does make may be used against him, and that he has the right to have counsel (appointed if necessary) present during any interrogation. Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. The Fifth Amendment right to the presence of counsel, like the rest of the rights protected by the Miranda warnings, may be waived, provided the waiver is made voluntarily, knowingly, and intelligently. See Miranda, 384 U.S. at 444, 86 S.Ct. at 1612; see also Edwards v. Arizona, 451 U.S. 477, 482-83, 101 S.Ct. 1880, 1883-84, 68 L.Ed.2d 378 (1981); North Carolina v. Butler, 441 U.S. 369, 372-76, 99 S.Ct. 1755, 1756-59, 60 L.Ed.2d 286 (1979); cf. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (defendant has absolute right to proceed without a lawyer).

Defendant argues that the practice of pre-presentment interviews precludes an intelligent and knowing exercise, and, accordingly, an intelligent and knowing waiver, of constitutional rights. To hold thus would render meaningless the express holding of Miranda that such rights may be waived. To be sure, these interviews are “peculiarly likely to run afoul of Miranda.” Duvall, 537 F.2d at 24. This, however, does not compel invalidating the process entirely, which would be, I believe, an unprecedented, and unjustified, extension of Miranda. Rather, prosecutors conducting, and courts reviewing, these interviews must be particularly scrupulous in assuring that the cautions and requirements of Miranda are observed. See Duvall, 537 F.2d at 24. The Second Circuit has specifically held that a defendant may validly waive his right to have counsel present at one of these interviews, as long as the Miranda safeguards are observed. United States v. Armedo-Sarmiento, 545 F.2d 785, 792 (2d Cir.1976), cert. denied, 430 U.S. 917, 97 S.Ct. 1330, 51 L.Ed.2d 595 (1977); cf. Ortega, 471 F.2d at 1362 (affirming then District Judge Pierce’s finding that Miranda satisfied); Marrero, 450 F.2d at 379 (Friendly, C.J.) (concurring opinion) (Miranda satisfied). The Court, therefore, declines to hold that the general practice violates a defendant’s Fifth Amendment rights. A case-by-case review is required to assure that, in the specific case, the Miranda safeguards have been strictly observed. See Edwards v. Arizona, 451 U.S. at 482-83, 101 S.Ct. at 1883-84 (validity of waiver “depends in each case ‘upon the particular facts and circumstances surrounding that case’ ”) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)).

In this case, I hold that the defendant was properly advised of his Miranda rights. The form questions recited to Mr. Ramos are sufficient under Miranda. See Mohabir, 624 F.2d at 1147 (Miranda warnings and questions, which did not differ from those employed in this case in any material aspect, 624 F.2d at 1149 n. 7, “satisfied Fifth Amendment standards”). After receiving the proper warnings, Mr. Ramos voluntarily answered the questions. He does not allege that anything was said to him which deviated from the form questions. Compare Armedo-Sarmiento, 545 F.2d at 792 (AUSA warned of possible lengthy sentence); Duvall, 537 F.2d at 24-25 (AUSA warned of possible sentence of a hundred years). Therefore, I hold that the requirements of Miranda were observed in this case and that the pre-presentment interview of Mr. Ramos did not violate his Fifth Amendment rights.

Mr. Ramos also argues that the practice of conducting pre-presentment interviews violates a defendant’s Sixth Amendment right to counsel. I do not agree. A defendant is entitled to counsel, under the Sixth Amendment, at any “critical stage” of the criminal proceedings against him. See Simmons v. United States, 390 U.S. 377, 382, 88 S.Ct. 967, 970, 19 L.Ed.2d 1247 (1968); Hamilton v. Alabama, 368 U.S. 52, 54, 82 S.Ct. 157, 158, 7 L.Ed.2d 114 (1961). However, that right has been held to have attached only after the formal initiation of adversary judicial criminal proceedings. See Kirby v. Illinois, 406 U.S. 682, 688-89, 92 S.Ct. 1877, 1881-82, 32 L.Ed.2d 411 (1972) (“points of time at or after the initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment”); see also, e.g., Brewer v. Williams, 430 U.S. 387, 398-99, 97 S.Ct. 1232, 1239-40, 51 L.Ed.2d 424 (1977) (indictment); Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970) (preliminary hearing to test sufficiency of evidence and fix bail); White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963) (preliminary hearing for entry of plea); Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961) (arraignment). The right has not been held to have attached prior to the formal initiation of such proceedings. See Kirby, 406 U.S. 682, 92 S.Ct. 1877 (plurality opinion) (right does not extend to line-up conducted after arrest, but before arraignment or indictment); Duvall, 537 F.2d at 22 (right not attached after arrest based on complaint filed for purpose of obtaining arrest warrant, but before arraignment); United States v. Ramirez, 482 F.2d 807, 815 (2d Cir.) (Sixth Amendment not extended to pre-presentment statement made to AUSA in absence of indictment or prior appointment of counsel), cert. denied, 414 U.S. 1070, 94 S.Ct. 581, 38 L.Ed.2d 475 (1973). As the Supreme Court stated:

The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse position of government and defendant have solidified.

Kirby v. Illinois, 406 U.S. at 689, 92 S.Ct. at 1882. These cases make clear that the Sixth Amendment right to counsel does not attach prior to the formal commencement of judicial criminal proceedings. The statements at issue herein were obtained from Mr. Ramos at a point prior to the formal commencement of criminal proceedings against him. Accordingly, his Sixth Amendment right to counsel was not yet implicated.

This, however, does not necessarily dispose of defendant’s Sixth Amendment claims. Mr. Ramos apparently argues that the practice chills the full exercise of the right to counsel and allows the government to take unfair advantage of the individual’s

uncounseled status. See Foley, 735 F.2d at 48. I do not agree. There are legitimate reasons why this interview should take place before the formal commencement of criminal proceedings. As Judge Knapp pointed out, “before the prosecution has taken shape—there may be reasons why a suspect might rationally wish to deal with agents without the intervention of counsel. By getting in their good graces and being useful to the government he might be able altogether to avoid indictment or any legal entanglement.” United States v. Satterfield, 417 F.Supp. 293, 296 (S.D.N.Y.), aff’d, 558 F.2d 655 (2d Cir.1976). The practice of pre-presentment interviews, inter alia, enables an arrested individual to avoid criminal prosecution entirely, either by cooperating with the government or by uncovering weaknesses in the government’s case (procedural, such as violations by the arresting officers, or substantive). See Foley, 735 F.2d at 48 (listing “salutary purposes” served by interviews prior to “commitment to prosecute”). Accordingly, I find that the practice of interviewing arrested persons prior to the formal commencement of criminal proceedings, and prior to the appointment of counsel, is not, on its face, unconstitutional under the Sixth Amendment, and that AUSA Folk’s interview did not violate Mr. Ramos’s rights.

In sum, I find that Mr. Ramos’s statements are admissible within the governing statute, 18 U.S.C. § 3501; that there was no unnecessary delay in presenting him before a magistrate in violation of Fed.R. Crim.P. 5(a); that the practice of prepresentment interviews is not unconstitutional; that Mr. Ramos’s constitutional rights were properly safeguarded in this case; and that he made a knowing and voluntary waiver of his Miranda rights. Accordingly, his motion to suppress is DENIED.

SO ORDERED.

APPENDIX A

      . A copy of the advice of constitutional rights portion of the interview form used by AUSA Folks in this case is attached as Appendix A.

      . Apparently, the United States Attorney’s Office for the Southern District of New York is the only prosecutors’s office which employs this practice. See United States v. Foley, 735 F.2d 45, 47-48 (2d Cir.1984).

      . Apparently, it is the practice of the United States Attorney’s Office to forego a pre-presentment interview when that interview may mean the difference between presentment before a magistrate on the same day or the following morning, irrespective of whether the interview itself would be conducted within six hours of the arrest. See Perez, 733 F.2d at 1036. Any other practice could conceivably implicate a defendant’s Rule 5(a) rights notwithstanding section 3501(c), but that question is not before this Court.

      . In a concurring opinion in Foley, Judge Lumbard decried the court's general exhortations against the practice without a ruling that the practice was unconstitutional, a ruling which he indicated he felt was unjustified and ill-advised. 735 F.2d at 50.

      . The Court notes that Mr. Ramos was not without other constitutional safeguards prior to the attachment of his right to counsel under the Sixth Amendment. See Kirby, 406 U.S. at 690-91, 92 S.Ct. at 1882-83 (Due Process Clause of Fifth Amendment); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 199 (1967) (Due Process Clause of Fourteenth Amendment); Miranda, 384 U.S. 436, 86 S.Ct. 1602 (Fifth Amendment Right to counsel). Those rights, however, were not violated here.

      . Defendant has also asked this Court to invoke its inherent supervisory authority over the administration of criminal justice in the federal courts to prohibit this practice, unique to this district. I decline, at this time, to intrude upon the prosecutorial functions of the United States Attorney’s Office or impinge the United States Attorney’s exercise of prosecutorial discretion. In Toney, Judge Weinfeld expressed no opinion on the practice, in the absence of a definitive ruling from the Second Circuit on the subject, except to encourage a determination by a higher authority. 579 F.Supp. at 657 n. 11. I, too, would encourage a ruling from a higher authority. I also note that the Court, as a whole, is currently contemplating a revised plan for implementing the Criminal Justice Act, 18 U.S.C. § 3006A, which, if adopted in its present form (Section VILA, in particular) would essentially preclude the practice. I express no opinion, however, at this time on that proposal.