text:
    Spencer RANDOLPH, Petitioner, v. STATE OF TENNESSEE, et al., Respondents.
    Civ. A. No. 3:84-1199.
    United States District Court, M.D. Tennessee, Nashville Division.
    Nov. 16, 1984.
    Supplemental Opinion Dec. 7, 1984.

      Spencer Randolph, pro se.
    Gordon W. Smith, Asst. Atty. Gen., Nashville, Tenn., for respondents.
   MEMORANDUM OPINION, ORDER TO SHOW CAUSE, AND ORDER

NEESE, Senior District Judge, Sitting by Designation and Assignment.

The petitioner Mr. Spencer Randolph applied pro se to this Court for the federal writ of habeas corpus. He claims he is in the custody of some unspecified agent of the state of Tennessee at the Nashville Community Service Center, Nashville, Tennessee, pursuant to his conviction while accused of murder in the first degree on his plea of guilty to the offense of murder in the second degree and the judgment thereof of July 10, 1976 (sic: 1978) of the Circuit Court of Giles County, Tennessee, in violation of the Constitution, Fourteenth Amendment, § 1, Due Process Clause, and of the Sixth Amendment, Right to the Assistance of Counsel Clause, 28 U.S.C. § 2254(a). Both such claims relate to the applicant’s contention that he was thus convicted while he was legally incompetent. Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 838, 15 L.Ed.2d 815 (1966) (“The * * * conviction of an accused person while he [or she] is legally incompetent violates due process * * *.”) The right to counsel is the right to the effective assistance of competent counsel, McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449 [10], 25 L.Ed.2d 763 (1970), and “* * * inadequate counsel does not satisfy the Sixth Amendment right to counsel made applicable to the States through the Fourteenth Amendment. * * * ” Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 1716 [8], 64 L.Ed.2d 333 (1980).

The applicant concedes he has not exhausted completely by every available procedure his state-remedies, 28 U.S.C. §§ 2254(b), (c), but claims the existence of circumstances rendering the corrective processes of the state of Tennessee ineffective to protect his rights as a prisoner, 28 U.S.C. § 2254(b), supra:

Mr. Randolph asserts that he applied to the aforenamed Court for relief in Spencer Randolph, defendant-appellant, v. State of Tennessee, plaintiff-appellee, no. 1356 under the Post-Conviction Procedure Act of Tennessee, T.C.A. §§ 40-30-105, et seq., in which he raised the question of his sanity both at the times of the alleged offense and during the conviction-proceedings as well as his mental competency at the latter time. After he was denied relief therein, Mr. Randolph claims he filed an appeal from such denial to the Court of Criminal Appeals of Tennessee on September 9, 1984.

It is the contention of Mr. Randolph that his agent was advised in a telephone conversation with a deputy clerk of the Court of Criminal Appeals of Tennessee before October 19, 1984 that his appeal “had been received” in that office, and that on the date thereafter he was advised “that his appeal had been remanded to Giles County Circuit Court for action,” although he re-, ceived in the mail the same day from the same source a copy of a motion filed in his behalf for the appointment of counsel in such appellate Court and an accompanying letter “denying any knowledge of the appeal, and stating that it had never been received.”

Ordinarily, an application for the writ of habeas corpus by one detained under a state-court judgment will be entertained only after all state-remedies which are available have been exhausted, including all appellate remedies in the state-courts, Ex parte Hawk, 321 U.S. 114, 116-17, 64 S.Ct. 448, 450 [5], 88 L.Ed. 572 (1944), but an exception to the exhaustion-requirement is made “ * * * if the corrective process is so clearly deficient as to render futile any effort to obtain relief. * * * ” Duckworth v. Serrano, 454 U.S. 1, 3, 102 S.Ct. 18, 19 [3], 70 L.Ed.2d 1 (1981, per curiam).

Within 10 days herefrom, the respondent will show any cause he may have why the petitioner shall not be excused from the exhaustion-requirements of 28 U.S.C. §§ 2254(b), (c), supra, herein. Within that time also, the petitioner shall amend his petition so as to allege the name of his custodian.

SUPPLEMENTAL OPINION

On application of the petitioner of November 27, 1984, the title hereof hereby is AMENDED so as to reflect that the respondent is Charles B. Bass, Warden, Etc., and the petition herein hereby is SUPPLEMENTED so as to allege that the applicant is in the custody of such warden.

The petitioner applied for the federal writ of habeas corpus claiming inter alia the existence of circumstances rendering the corrective process of Tennessee ineffective to protect his rights as a prisoner, in that there had been no processing of his appeal in 1984 from the order or judgment denying his application to the Circuit Court of Giles County, Tennessee for post-conviction relief under Tennessee law. The respondents showed cause why the applicant should not be deemed to have exhausted his available state-remedies thereunder by filing:

1. documents from the clerk of the Court of Criminal Appeals of Tennessee reflecting that no such appeal had been filed in 1984; and,
2. a document from the clerk of the Circuit Court Clerk of Giles County, Tennessee reflecting that the only application to the Circuit Court of that County for post-conviction relief filed by the applicant herein was an application in 1978 (which was dismissed voluntarily in open court by him on August 5, 1980).

Thus, it hereby is FOUND that the petitioner has failed to show any circumstances which might be deemed arguably to render the corrective process of the state of Tennessee ineffective to protect his rights as a prisoner. He makes no claim of having exhausted his available state-remedies; therefore, this Court may not entertain now his application. Duckworth v. Serrano, 454 U.S. 1, 3, 102 S.Ct. 18, 19 [3], 70 L.Ed.2d 1 (1981).

The petitioner’s application showing plainly on preliminary consideration that he is not entitled to relief in this Court at this time, Rule 4, 28 U.S.C. fol. § 2254, it hereby is

ORDERED:

1. that such petition hereby is DISMISSED summarily, id..;

2. that the clerk so notify the petitioner forthwith, id.; and,

3. that the clerk serve forthwith upon the respondent-warden and the attorney-general and reporter of Tennessee by certified-mail a copy of the petition herein and of this order, id.

Should the petitioner give timely notice of an appeal from this order and the judgment to be entered by the clerk thereon, Rule 58(1), F.R.Civ.P., he is authorized to proceed thereon in forma pauperis. Rule 24(a), F.R.App.P. Any such notice will be treated also as an application for a certificate of probable cause, Rule 22(b), F.R. App.P., which will NOT issue because the petitioner makes no viable claim of the exhaustion of his available state-remedies and has not shown to be extant circumstances which render the corrective process of the law of Tennessee ineffective to protect his rights as a prisoner, id.; 28 U.S.C. § 2254(b).

      . The "state officer having custody of the applicant shall be named as respondent,” Rule 2, 28 U.S.C. fol. § 2254, and the petitioner must do this forthwith by amendment of his petition herein. See Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 494-95, 83 S.Ct. 1123, 1129 [4], 35 L.Ed.2d 443 (1973).

      . Such notice reflects it was sworn-to and subscribed by the applicant on October 31, 1984, according to an exhibited copy thereof.

      The petitioner presently has available to him a means of presenting his constitutional claims herein to the courts of Tennessee under that state’s Post-Conviction Procedure Act, T.C.A. §§ 40-30-101, et seq. Parker v. Rose, 728 F.2d 392, 394-395 (6th Cir.1984).


source: Caselaw Access Project

author: ELFVIN, District Judge.

license: Public Domain

text:
    Elizabeth A. TRUE, Plaintiff, v. NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES; Albion Correctional Facility; State of New York; Janice Cummings, Individually and as Superintendent of Albion Correctional Facility; James Berbary, Individually and as Deputy Superintendent of Administration of Albion Correctional Facility; Farrell McKendrick, Individually and as Food Service Administrator of Albion Correctional Facility, Defendants.
    No. CIV-83-745E.
    United States District Court, W.D. New York.
    Dec. 31, 1984.

      Emmelyn Logan-Baldwin, Rochester, N.Y., for plaintiff.
    Peter B. Sullivan, Asst. Atty. Gen., Buffalo, N.Y., for defendants.
   MEMORANDUM and ORDER

ELFVIN, District Judge.

In this action by a female employee of the New York State Department of Correctional Services (“the NYSDCS”) alleging, inter alia, violations of 42 U.S.C. § 2000e et seq. (“Title VII”), 29 U.S.C. §§ 206(d), 215 and 216 (“the Equal Pay Act”) and 42 U.S.C. §§ 1983 and 1985, defendants have moved to dismiss portions of the Amended Complaint or for summary judgment regarding many of plaintiffs federal and pendent state causes of action.

Initially defendants had asserted that plaintiffs Title VII claim should be dismissed pursuant to Fed.R.Civ.P. rule 12(b)(1) for lack of subject matter jurisdiction inasmuch as the Equal Employment Opportunity Commission (“EEOC”) had neither dismissed nor determined plaintiffs June 13, 1983 charges against defendants of employment discrimination. On September 23, 1983 pursuant to plaintiffs attorney’s request, the EEOC issued an “early” Right-to-Sue Notiee due to its determination that it would not be able to “investigate and conciliate” the filed charges within the 180-day period of jurisdiction set forth in 42 U.S.C. § 2000e-5(f)(l). See Logan-Baldwin Affidavit, Exhibit A. Although the commencement of this action prior to the issuance of the Right-to-Sue Notice does not in of itself present a jurisdictional defect, see Pinkard v. Pullman-Standard, A Div. of Pullman, Inc., 678 F.2d 1211, 1219 (5th Cir.1982), cert. denied, 459 U.S. 1105, 103 S.Ct. 729, 74 L.Ed.2d 954 (1983) (subsequent Right-to-Sue letter effectively ratifies earlier-filed action), the issuance of the notice prior to the passage of 180 days from the filing of the discrimination charges with the EEOC does present a jurisdictional deficiency requiring suspension and a remand of plaintiff’s Title VII claim to the EEOC.

The September 23, 1983 Right-to-Sue letter was issued pursuant to an EEOC regulation, 29 C.F.R. § 1601.28(a)(2), which authorizes an early Right-to-Sue Notice where it is determined that it is probable that the agency will be unable to complete administrative processing of the charges prior to the expiration of 180 days from the filing of such charges. However a number of courts have held that this regulation is invalid as it is inconsistent with Congress’s intentions as expressed in 42 U.S.C. § 2000e-5(f)(l) that either dismissal by the EEOC of charges or the lapse of the 180-day period is a prerequisite to the issuance of a Notice of Right to Sue. See Mills v. Jefferson Bank East, 559 F.Supp. 34, 36 (D.Colo.1983); Spencer v. Banco Real, S.A., 87 F.R.D. 739, 742-45 (S.D.N.Y.1980); Loney v. Carr-Lowrey Glass Co., 458 F.Supp. 1080, 1081 (D.Md.1978).

These decisions are supported by dicta in numerous United States Supreme Court opinions recognizing that a private party must file charges with the EEOC and then wait 180 days before instituting a federal lawsuit. Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 97 S.Ct. 2447, 53 L.Ed.2d 402 (1977), held that the 180-day waiting period imposed no statute of limitations upon the EEOC’s power to file action, but further explained that a “private right of action does not arise until 180 days after a charge has been filed.” Id. at 361, 97 S.Ct. at 2452.

“[A] natural reading of § 706(f)(1) [42 U.S.C. § 2000-5(f)(l) ] can lead only to the conclusion that it simply provides that a complainant whose charge is not dismissed or promptly settled or litigated by the EEOC may himself bring a lawsuit, but that he must wait 180 days before doing so.” Ibid.

See also, Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 104 fn. 12, 99 S.Ct. 1601, 1610 fn. 12, 60 L.Ed.2d 66 (1979) (a complainant must allow the EEOC a full 180 days to negotiate a settlement); Johnson v. Railway Express Agency, 421 U.S. 454, 458, 95 S.Ct. 1716, 1719, 44 L.Ed.2d 295 (1975) (after the passage of 180 days the claimant may demand a Right-to-Sue letter and may institute the Title VII action himself).

Although other courts have held that section 2000e-5(f)(l) does not prohibit the EEOC from issuing a notice prior to the end of the 180-day period — see, e.g., Saulsbury v. Wismer and Becker, Inc., 644 F.2d 1251, 1257 (9th Cir.1980) (recognizing the futility of forcing alleged victims of discrimination to “mark time” when it appears that the EEOC will be unable to deal with the charges within the 180-day period) — , I find that the language of section 2000e-5(f)(1) is clear in requiring either the dismissal of the charges or the passage of the stated time period as a condition precedent to the filing of a Title VII cause of action in a federal district court. As recognized by the court in Spencer v. Banco Real, S.A., supra, Congress was aware of the enormous backlog of cases before the EEOC when the section was amended in 1972 (see Occidental Life Ins. Co. v. EEOC, supra, 432 U.S., at 369-70, 97 S.Ct. at 2456-57) and any problem presented by the 180-day waiting period must properly be addressed by the legislature and not the judiciary. See Spencer v. Banco Real, S.A., supra, at 744-745.

Therefore plaintiff’s Title VII claim shall be held in abeyance and will be remanded to the EEOC with the direction that the agency retain jurisdiction and investigate and attempt to reach conciliation regarding such claim for a maximum period of 152 days (180 days minus the 28-day period from the filing of the EEOC charges to the institution of this lawsuit).

Defendants have also moved to dismiss or, alternatively, for summary judgment regarding plaintiff’s Equal Pay Act cause of action. The Amended Complaint alleges:

“53. The Equal Pay Act guarantees employees equal pay for equal work and further provides that there shall be no retaliation against the employee who complains of denial of equal pay and/or who assists in any claim of denial of equal pay.
“54. Because of defendants’ actions, plaintiff and other persons similarly situated, have been and are being subjected to denial of equal pay for equal work and are being retaliated against for having complained of employment discrimination and/or having assisted with an employment discrimination complaint.”

Defendants have submitted three affidavits stating that plaintiff received the same rate of pay as any other employee in her employment position with similar experience, that she has earned more overtime wages than other cooks who worked during the period of her employment with the NYSDCS and that she has never filed a complaint or grievance regarding a claim of unequal pay. See Berbary Affidavit, Bower Affidavit, McKendrick Affidavit. Defendants therefore assert that they are entitled to summary judgment regarding the Equal Pay Act cause of action as a matter of law. Plaintiff’s opposing affidavit asserts that her equal pay claim consists of defendants having denied her overtime assignments due to her gender, as well as their general practice of giving male cooks the first opportunity to accept overtime work.

I find that defendants are entitled to summary judgment regarding plaintiffs Equal Pay Act cause of action because, even were plaintiffs allegations to be proven completely accurate, they would fail to establish a prima facie case of a violation of 29 U.S.C. § 206(d). Although plaintiffs allegations of discriminatory assignment of overtime might present a Title VII claim— see, e.g., Schaeffer v. San Diego Yellow Cabs, Inc., 462 F.2d 1002 (9th Cir.1972) — , she has neither contended nor alleged that she was actually paid at a lower rate than male employees. Therefore she cannot possibly establish a claim under the Equal Pay Act. See also Odomes v. Nucare, Inc., 653 F.2d 246, 250 (6th Cir.1981) (setting forth the elements of a plaintiffs prima facie case under the Equal Pay Act). Furthermore, the complaint filed by the plaintiff with the EEOC alleged, inter alia, sex discrimination regarding overtime assignments rather than unequal wage rates — see Logan-Baldwin Affidavit, ¶ 7— and therefore cannot serve as the basis for a cause of action under 29 U.S.C. § 215(a)(3) which prohibits employer discrimination or retaliation against an employee who has filed an Equal Pay Act complaint or grievance. Accordingly, defendants are entitled to summary judgment regarding plaintiffs Equal Pay Act cause of action.

Defendants next assert that plaintiffs claim under New York’s Human Rights Law (section 296 of this state’s Executive Law) should be dismissed pursuant to Fed.R.Civ.P. rule 12(b)(6) for failure to state a claim upon which relief can be granted inasmuch as the Amended Complaint does not allege any improper retaliatory conduct by defendants after the filing of the EEOC/Human Rights Complaint. Defendants’ contentions must be dismissed as meritless due to the Amended Complaint’s allegations of discriminatory acts and retaliatory actions by defendants — see Amended Complaint ¶¶ 56-57— as well as the allegation in Paragraph 44a that “[sjince the filing of the administrative complaints and this lawsuit, the defendants have engaged in a pattern of harassment, intimidation and/or retaliation against the plaintiff.” In view of the well established principle that the plaintiff’s allegations must be taken as true for the purposes of defendants’ rule 12(b)(6) motion — see Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974) — , this portion of defendants’ motion will be denied.

Defendants State of New York, the NYSDCS and Albion Correctional Facility have moved to dismiss plaintiff’s claims against them based upon 42 U.S.C. §§ 1983 and 1985 due to the immunity of states and state agencies to such claims under the Eleventh Amendment to the Constitution. See Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979); Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978). Defendants’ posi-. tion is correct and plaintiff’s section 1983 and section 1985 causes of action against these three defendants will be dismissed. See Provet v. State of N.Y., 546 F.Supp. 492 (S.D.N.Y.1982) (section 1983 action against New York State and the NYSDCS); An-Ti Chai v. Michigan Technological University, 493 F.Supp. 1137 (W.D.Mich.1980) (section 1983 and section 1985 claims against a state agency); Thompson v. State of N.Y., 487 F.Supp. 212 (N.D.N.Y.1979) (section 1983 and section 1985 claims); Allah v. Com’r of Dept. of Correctional Services, 448 F.Supp. 1123 (N.D.N.Y.1978) (section 1983 and section 1985 claims against the NYSDCS and a prison committee). Plaintiff’s contention that prospective injunctive relief can properly be obtained against these defendants under these two statutes is erroneous. See Allah v. Com’r of Dept. of Correctional Services, supra, at 1125. Cf. Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978); City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973). Although the landmark decision in Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), held that the Eleventh Amendment did not prohibit a suit for prospective injunctive relief against a state official, plaintiff cannot seek such relief directly from the state or one of its agencies without naming a government official as a defendant.

The other three defendants, Cummings, Berbary and McKendrick, also seek dismissal of plaintiffs 42 U.S.C. § 1985(3) conspiracy claim against them pursuant to Fed.R.Civ.P. rule 12(b)(6) for its failure to state a cause upon which relief can be granted. These defendants contend that plaintiff is attempting improperly to utilize section 1985(3) to enforce rights established by Title VII. See Great American Fed. S. & L. Assn. v. Novotny, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979) (‘‘Novotny”) (a right created by Title VII cannot be the basis for a cause of action under section 1985(3)). Plaintiff asserts that she is not merely seeking to enforce her rights under Title VII but also her constitutional rights to due process of law, to equal protection and to continued employment. The Amended Complaint alleges:

“Defendants have conspired with certain known and unknown persons and/or committed acts in furtherance of a conspiracy with certain known and unknown persons to deprive plaintiff of rights protected by the Constitution and by federal statute, including for example, without intending to limit, plaintiffs rights to equal protection of the laws and to due process of law.
“By reason of defendants’ actions, plaintiff has been damaged and injured.” Amended Complaint, at ¶¶ 64-65.

I find that plaintiff has failed to state a claim under section 1985(3) and that her conspiracy cause of action must be dismissed. In Novotny it was explained that section 1985(3) “provides no substantive rights itself”, that “it merely provides a remedy for violation of the rights it designates” and that it “is a purely remedial statute, providing a civil cause of action when some otherwise defined federal right — to equal protection of the laws or equal privileges and immunities under the laws — is breached by a conspiracy in the manner defined in the section.” 442 U.S. at 372, 376, 99 S.Ct. at 2349, 2351. Plaintiff has failed to allege an injury to or a deprivation of a constitutionally protected interest. It appears from the parties’ pleadings that plaintiff remains employed by the NYSDCS and that the other alleged incidents of libel, sex discrimination in employment and harassment, are perhaps remediable under either Title VII or state law but do not rise to the level of a constitutional deprivation of equal protection or of equal privileges and immunities under federal law. Section 1985(3) was not intended to create a general federal tort law — see Kimble v. D.J. McDuffy, Inc., 648 F.2d 340, 347 (5th Cir.), cert. denied, 454 U.S. 1110, 102 S.Ct. 687, 70 L.Ed.2d 651 (1981) — and plaintiff has failed to plead a conspiracy regarding a federally protectable interest other than the discrimination in employment allegations which must be enforced under Title VII and not under section 1985(3). In addition, the United States Court of Appeals for the Second Circuit has “repeatedly held that complaints containing only ‘conclusory,’ ‘vague,’ or ‘general allegations' of a conspiracy to deprive a person of constitutionally rights will be dismissed.” Ostrer v. Aronwald, 567 F.2d 551, 553 (2d Cir.1977). See also 423 South Salina St. v. City of Syracuse, 566 F.Supp. 484, 493 (N.D.N.Y.), aff'd, 724 F.2d 26 (2d Cir.1983).

Defendants’ further argument that plaintiff’s section 1983 claim should similarly be dismissed is without merit inasmuch as neither Title VII nor section 1983 provides the exclusive remedy for sex discrimination in employment, there is no requirement that plaintiff exhaust her state administrative remedies prior to commencing a section 1983 action {see Patsy v. Florida Board of Regents, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982)) and it is not necessary to institute a Title VII proceeding prior to bringing a section 1983 suit. See A. Larson, Employment Discrimination, § 52.23 (1983). Therefore this aspect of defendants’ motion will be denied.

Defendants also seek to dismiss plaintiff’s sixth cause of action for breach of her employment contract due to lack of subject matter jurisdiction and/or failure to state a claim inasmuch as they contend that plaintiff’s employment with the NYSDCS is governed by a collective bargaining agreement, the provisions of which must be utilized to redress any contractual violation. Defendants have submitted the affidavit of James Berbary wherein it is averred that the terms of plaintiff’s employment are covered by a collective bargaining agreement. However, plaintiff’s attorney’s affidavit asserts that this agreement is inapplicable to the instant lawsuit’s endeavor to enforce plaintiff’s contractual rights. It is evident from the foregoing that this issue cannot be resolved without consideration of non-pleading matters and in accordance with Fed.R.Civ.P. rule 12(b)(6) defendants’ motion must be converted into a motion for summary judgment under Fed.R.Civ.P. rule 56 in order to consider the affidavit and documentary evidence. The parties must also be given at least ten days’ notice of such conversion in order that they may present additional relevant materials. See Fed.R.Civ.P. rule 56(c); Beacon Enterprises v. Menzies, 715 F.2d 757 (2d Cir.1983). Therefore this portion of defendants’ motion will be converted into a motion for partial summary judgment and the parties shall have thirty (30) days from the entry of this Memorandum and Order to submit additional materials, if any, concerning this issue.

Finally, defendants seek to dismiss, as not stating a claim under New York law, plaintiff’s ninth cause of action for defendants’ alleged actions against her “taken without basis or justification” as well as the tenth cause of action for defendants’ alleged “harassment of the plaintiff.” Although plaintiff’s attorney has failed to set forth any New York decisions in support of her contention that such claims are recognized under this state’s law, the ninth cause of action would appear to represent a claim for prima facie tort— namely, the intentional infliction of economic harm — which does exist under such law. See Bd. of Ed. v. Farmingdale Classroom Tchrs., 38 N.Y.2d 397, 405, 343 N.E.2d 278, 380 N.Y.S.2d 635 (1975). Inasmuch as plaintiff’s allegations must be taken as true for the purposes of defendants’ motion to dismiss — see Patsy v. Florida Board of Regents, supra, 457 U.S., at 498 fn. 1, 102 S.Ct., at 2558 fn. 1 — , defendants’ motion to dismiss the ninth cause of action will be denied. Similarly plaintiff’s harassment claim, derived from section 240.25 of New York’s Penal Law, states a valid cause of action under New York law — see Galella v. Onassis, 487 F.2d 986, 994 fn. 11 (2d Cir.1973); cf. Long v. Beneficial Finance Co. of New York, 39 A.D.2d 11, 330 N.Y.S.2d 664 (4th Dep’t 1972) — and defendants’ motion to dismiss must fail.

In accordance with the foregoing, it is hereby ORDERED (1) that plaintiff’s Title VII claim is remanded to the EEOC for further proceedings consistent with this opinion, (2) that defendants’ motion for summary judgment dismissing plaintiff’s claims under the Equal Pay Act and under 42 U.S.C. § 1985 is granted, (3) that the motion of defendants State of New York, NYSDCS and Albion Correctional Facility to dismiss plaintiff's section 1983 claim against them is granted, (4) that the motion of defendants Cummings, Berbary and McKendrick to dismiss plaintiffs section 1983 claim against them is denied, (5) that defendants’ motions to dismiss plaintiff’s claims under the Human Rights Law and for harassment and prima facie tort are denied and (6) that defendants’ motion to dismiss plaintiff’s breach of contract claim is converted into a summary judgment motion as explained in the penultimate paragraph.

      . 42 U.S.C. § 2000e-5(f)(l), section 706(f)(1) of Title VII, provides in pertinent part:
      "If a charge filed with the Commission * * * is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge or the expiration of any period of reference * * * [to a state agency], whichever is later, the Commission has not filed a civil action under this section * * * or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission * * * shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge * *

      . Although defendants’ counsel has not raised this issue regarding plaintiff’s Title VII claim, the subject matter jurisdictional nature of the defect presented by the Title VII claim requires the Court to address this infirmity sua sponte.

      . 29 C.F.R. § 1601.28(a)(2) provides:
      “When a person claiming to be aggrieved requests, in writing, that a notice of right to sue be issued, and the charge to which the request relates is filed against a respondent other than a government, governmental agency or political subdivision, the Commission may issue such notice as described in § 1601.-28(e) with copies to all parties, at any time prior to the expiration of 180 days from the date of filing the charge with the Commission; provided, that the District Director * * * has determined that it is probable that the Commission will be unable to complete its administrative processing of the charge within 180 days from the filing of the charge and has attached a written certificate to that effect.”

      . 29 U.S.C. § 206(d)(1) provides in pertinent part:
      "No employer * * * shall discriminate * * * between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work * * *.”

      . 42 U.S.C. § 1985(3) provides in pertinent part: "If two or more persons in any State or Territory conspire * * * for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws; * * * [and] if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation * *


author: CARL O. BUE, Jr., District Judge.

text:
    Johnny Lee SCOTT, et al. v. CITY OF HOUSTON, et al.
    Civ. A. No. H-81-20.
    United States District Court, S.D. Texas, Houston Division.
    Jan. 2, 1985.
    Constance K. Acosta, Williams, Birnberg & Andersen, Houston, Tex., for plaintiffs.
    John E. Fisher, Asst. City Atty., Houston, Tex., for defendants.
   ORDER

CARL O. BUE, Jr., District Judge.

Pending before the Court is defendants’ motion for judgment in which defendants contend that they are entitled to entry of judgment in their favor as to plaintiffs’ claims under Title 42 U.S.C. § 1981, § 1983, and §§ 2000e et seq. In response, plaintiffs request the Court virtually to ignore the jury’s answers to the special interrogatories in which no racial discrimination on the part of defendants was found, and enter judgment for plaintiffs, Johnny Lee Scott and Frederick Van Moore, as to their Title 42 U.S.C. §§ 2000e et seq. claims based on disparate treatment and disparate impact theories of liability. After carefully reviewing the entire record in this case, the evidence adduced at trial, memoranda of the parties, and relevant law, the Court is of the opinion that judgment should be entered in favor of defendants on all claims for the reasons discussed below.

Discriminatory Treatment

Plaintiffs, Johnny Lee Scott, Frederick Van Moore, and John Thornton, brought this action pursuant to inter alia Title 42 U.S.C. § 1981, § 1983, and §§ 2000e et seq., alleging that defendant, City of Houston, failed to promote each of them to Senior Arson Investigator in June of 1980 as a result of racial discrimination. The case was tried to a jury beginning August 14, 1984, with all parties resting on August 24, 1984. On August 24, 1984, the jury rendered to the Court its answers to the Special Interrogatories submitted to them on plaintiffs’ claims under 42 U.S.C. § 1981, and 42 U.S.C. § 1983. In its answers, the jury failed to find in favor of plaintiffs on either of these claims.

Plaintiffs, Scott and Moore, contend now that the Court should enter findings of fact and conclusions of law, pursuant to their 42 U.S.C. § 2000e claim, contrary to the findings of the jury. Defendants, however, argue that since the jury failed to find in favor of plaintiffs as to their § 1981 and § 1983 claims, plaintiffs are collaterally es-topped from obtaining relief under their § 2000e claim, based upon the same facts as alleged in their § 1981 and § 1983 claims, under a discriminatory treatment theory of recovery.

All parties agree that in a case involving allegations of disparate treatment because of race, the elements of proof are the same under Title VII and § 1981, as well as § 1983 when a denial of equal protection is alleged. General Bldg. Contractors Ass’n. Inc. v. Pennsylvania, 458 U.S. 375, 102 S.Ct. 3141, 73 L.Ed.2d 835 (1982); Whiting v. Jackson State Univ., 616 F.2d 116 (5th Cir.), reh’g en banc denied, 622 F.2d 1043 (5th Cir.1980). These elements were set forth in the Court’s charge to the jury on the law, and the jury failed to find that defendant, City of Houston, intentionally discriminated against plaintiffs because of their race. The Court fully concurs with the conclusion of the jury in this regard and finds that the decision of defendants not to promote plaintiffs in June of 1980 was not based upon intentional racial discrimination.

Assuming, arguendo, that the Court did not concur fully with the jury in this regard, it would be bound, nonetheless, by the jury’s determination. As noted recently by the Eleventh Circuit Court of Appeals:

An action for reinstatement and backpay under Title VII is by nature equitable and entails no rights under the seventh amendment... An action for damages under § 1981, however, is by nature legal and must be tried by a jury on demand... When legal and equitable actions are tried together, the right to a jury in the legal action encompasses the issues common to both. See Curtis v. Loether, 1974, 415 U.S. 189, 196 n. 11 [94 S.Ct. 1005, 1009 n. 11, 39 L.Ed.2d 260],.. When a party has the right to a jury trial on an issue involved in a legal claim, the judge is of course bound by the jury’s determination of that issue as it affects his disposition of an accompanying equitable claim.

Lincoln v. Board of Regents, 697 F.2d 928, 934 (11th Cir.1983), reh’g and reh’g en banc denied; see also Beacon Theatres v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959). Accordingly, it is this Court’s considered opinion that plaintiffs’ § 2000e claim arising out of a disparate treatment theory must fail since the prior jury determinations have encompassed and resolved the issue.

Disparate Impact

Plaintiffs contend next that they are entitled to recovery pursuant to 42 U.S.C. §§ 2000e et seq. under a disparate impact theory. Specifically, plaintiffs assert that:

Defendants ... violated 42 U.S.C. § 2000(e)-2 by maintaining ... a practice of manipulating eligibility lists established pursuant to a facially neutral promotional scheme promulgated under Article 1269(m), Tex.Rev.Civ.Stat. which favor white firefighters and disparately impacts ... Blacks by excluding Blacks from promotions into mid management level ranks in the Houston Fire Department. Such practice of manipulating eligibility lists limits Plaintiffs’ promotions to Senior Arson Investigator, deprived Plaintiffs of employment opportunities, and adversely affected their status as employees of the Houston Fire Department on account of their race.

Plaintiffs’ Supplemental Trial Arguments and Supporting Memorandum of Law on the Title VII 42 U.S.C. §§ 2000e et seq. Claims at page 1 (September 5, 1984). The Court, however, is of the view that plaintiffs failed to give proper notice of this particular theory of liability to either the defendants or the Court.

For example, in their memorandum of law, filed on August 10, 1984, plaintiffs contended the following with regard to their § 2000e claim:

Plaintiffs may establish a prima facie ease by showing (1) that they belonged to a protected class; (2) that they were qualified for a particular position; (3) that despite their qualifications they were not promoted; and (4) a non-minority was promoted...
The ‘factual inquiry’ in a Title VII case is whether the Defendant intentionally discriminated against the Plaintiff...
The burdens under a Title VII cause of action are specifically set forth above in the case authority...

Plaintiffs’ Memorandum of Law at pages 7, 9 and 11. Nowhere in their pretrial order, pretrial or trial memoranda do plaintiffs set forth the elements necessary to recover under a disparate impact theory or state specifically that they intend to seek redress under that theory. Further, in their motion in limine, filed August 14, 1984, defendants revealed their lack of knowledge of plaintiffs’ pursuit of recovery under the disparate impact model when they asserted: “Plaintiffs’ burden is to show intentional discrimination, not adverse impact by statistical evidence.” (Defendants’ Motion in Limine at page 1). Finally, the Court is of the opinion, contrary to that of plaintiffs, that their vague, general allegations as to the “policies and practices” of defendants afford insufficient notice to defendants or the Court as to plaintiffs’ theory of recovery under the disparate impact model. See Plaintiffs’ Post Trial Memorandum on the Availability and Applicability of the Disparate Impact Theory of Recovery Pursuant to 42 U.S.C. §§ 2000e et seq. (October 16, 1984).

However, assuming arguendo that plaintiffs provided proper notice of their intentions to seek relief under such a model of recovery, this Court is of the view that the disparate impact theory is inapplicable to plaintiffs’ claim. In order to establish a claim of racial discrimination under a disparate impact theory, a plaintiff need only show that a facially neutral employment practice produces a significant adverse impact on one race. Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 2726, 53 L.Ed.2d 786 (1977). A prima facie case is shown by identification of a neutral employment practice coupled with proof of its discriminatory impact on the employer’s work force. Johnson v. Uncle Ben’s, Inc., 657 F.2d 750, 753 (5th Cir.), reh’g and reh’g en banc denied, 667 F.2d 92 (5th Cir. 1981), cert. denied, 459 U.S. 967, 103 S.Ct. 293, 74 L.Ed.2d 277 (1982). The Fifth Circuit has stated:

[t]he discriminatory impact model of proof in an employment discrimination case is not, however, the appropriate vehicle from which to launch a wide ranging attack on the cumulative effect of a company’s employment practices. Nor may just any employment practice be challenged under this model simply because an uneven racial balance exists in an employer’s work force.

Pouncy v. Prudential Ins. Co. of America, 668 F.2d 795, 800 (5th Cir.1982). Thus, “[t]he disparate impact model applies only when an employer has instituted a specific procedure, usually a selection criterion for employment, that can be shown to have a causal connection to a class based imbalance in the work force.” Id. Accordingly, the Fifth Circuit in Pouncy was of the view that the disparate impact model was not applicable to any of the three “employment practices” singled out by the plaintiffs in that case — the failure to post job opening, the use of a level system, and evaluating employees with subjective criteria. Id. at 801. That court reasoned that “proof that a specific practice results in a discriminatory impact on a class in an employer’s work force” is required “in order to allocate fairly the parties’ respective burdens of proof at trial.” Id. at 800. Thus, the plaintiff must prove a disparate impact due to the selection procedure; then the employer must prove that the selection procedure is justified by a legitimate business reason. Johnson, 657 F.2d at 753.

As originally conceived in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), the disparate impact theory applies to an “overt, clearly identified nondiscretionary selection criteri[on] that [was] applied at a single point in a selection process.” Pouncy, 668 F.2d at 800, quoting D. Baldus & J. Cole, Statistical Proof of Discrimination § 1.23 at 12 (1981 Supp.) See Griggs, 401 U.S. at 424, 91 S.Ct. at 849- (disparate impact analysis properly used to challenge aptitude and intelligence tests and educational requirements); see Dothard, 433 U.S. at 321, 97 S.Ct. at 2720 (disparate impact analysis applied to challenge height and weight requirements); see New York City Transit Authority v. Beazer, 440 U.S. 568, 99 S.Ct. 1355, 59 L.Ed.2d 587 (1979) (disparate impact model applied to challenge an employer’s refusal to employ persons who use methodone); compare Carpenter v. Stephen F. Austin State Univ., 706 F.2d 608, 620 (5th Cir.), reh’g and reh’g en banc denied, 712 F.2d 1416 (5th Cir.1983) (requires discriminatory treatment model, requiring proof of discriminatory intent, be applied in determining whether the obviously disparate effects of two channeling practices — the systematic assignment of lower compensated employment to Blacks and women in the Classified Pay Plan, and the use of subjectivity in implementation of job qualifications for initial job assignment and promotion and the placement of employees on the compensation scale reflect race and gender discrimination); compare Carroll v. Sears, Roebuck & Co., 708 F.2d 183 (5th Cir.1983) (use of subjective criteria to evaluate employees in hiring and job placement decisions is not within the category of facially neutral procedures to which the disparate impact model is applied). Clearly, the alleged practice by defendants of manipulating promotions from known, existing eligibility lists is not within the category of facially neutral procedures to which the disparate impact model can be applied.

Moreover, the statistics presented at trial by plaintiffs do not establish a causative link between this purported manipulative practice and the composition of the work force. Plaintiffs did not show that, independent of other factors, the employment practices they challenged have caused the racial imbalance in the work force. “Absent proof that the impact is caused by one or more of the challenged employment practices”, an employer is not required “to justify the legitimacy of any (or all) employment practices.” Pouncy, 668 F.2d at 801, 802. Accordingly, plaintiffs’ theory of recovery in this regard must fail.

Conclusion

In summary, the Court, concurring with the jury, concludes that the proof adduced at trial fails to support a finding of race discrimination under the discriminatory treatment theory of Title VII. Further, the Court concludes that the nature of the evidence presented by plaintiffs does not establish a case of employment discrimination based on the disparate impact model. Accordingly, defendants’ motion for judgment is granted as to all of plaintiffs’ claims asserted in this litigation. Costs of court to be taxed against the plaintiffs herein. Counsel will prepare an appropriate final judgment for entry within fifteen (15) days.

      . Title 42 U.S.C. § 1981 (1976) provides, in relevant part that:
      All persons within the jurisdiction of the United States shall have the same right in every State ... to the full and equal benefit of all laws and proceedings ... as is enjoyed by white citizens ...

      . Title 42 U.S.C. § 1983 (1979) provides, in relevant part that:
      Every person who, under color of any statute ... of any State ... subjects ... any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution ... shall be liable to the party injured ...

      . Title VII of Civil Rights Act of 1964 (42 U.S.C. §§ 2000e et seq.) provides, in relevant part that:
      It shall be an unlawful employment practice for an employer—
      to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin;
      § 2000e-2(a)(l)


author: JOHN H. PRATT, District Judge.

text:
    Shamsideen ADAMOH-FANIYAN, Plaintiff, v. Lynne A. McCONNELL, Defendant.
    Civ. A. No. 84-498.
    United States District Court, District of Columbia.
    Jan. 4, 1985.
    Douglas R. Stevens, Washington, D.C., for plaintiff.
    Elizabeth J. Haegelin, Washington, D.C., for defendant.
   ORDER

JOHN H. PRATT, District Judge.

Upon consideration of defendant’s motion to dismiss or for summary judgment, plaintiff’s opposition thereto and the entire record herein, and it appearing that the plaintiff at the time of the accident on January 16, 1984 was driving his taxicab and that taxi cabs, with certain exceptions not here relevant, are exempt from the provisions of the D.C. Compulsory-No-Fault Motor Vehicle Insurance Act of 1982, D.C.Code § 35-2111(e), it is by the court this 3rd day of January, 1985.

ORDERED that defendant’s motion to dismiss be and the same hereby is denied.

       On December 7, 1984 Judge Gasch of this court held invalid the $5,000 threshold as a prerequisite for filing suit. Dimond, et al. v. District of Columbia, et al., Civil Action No. 83-1938 (D.D.C.1984).


author: CRABB, Chief Judge.

text:
    John MEYETT, Plaintiff, v. Jacqueline COLEMAN and the State of Wisconsin Department of Industry Labor & Human Relations, Defendants.
    No. 83-C-957.
    United States District Court, W.D. Wisconsin.
    Jan. 23, 1985.
    Jeff Scott Olson, Madison, Wis., for plaintiff.
    David C. Rice, Asst. Atty. Gen., Madison, Wis., for defendants.
   ORDER

CRABB, Chief Judge.

Defendants have moved for dismissal of plaintiff’s cause of action based on 42 U.S.C. § 1983 and for the striking of plaintiff’s jury demand. Defendants ground both motions upon their contention that Title VII provides an exclusive remedy for sex discrimination in employment and does not permit the bringing of a separate action for the same sex discrimination premised on a violation of the Fourteenth Amendment guarantee of equal protection of the laws.

The question whether Title VII excludes other remedies is one the United States Supreme Court has not answered. The Court has held that 42 U.S.C. § 1985(3) cannot be used as a remedy for a violation of Title VII, Great America Savings & Loan v. Novotny, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979), and that a federal employee cannot use 42 U.S.C. § 1981 as a remedy for a violation of either Title VII or of the United States Constitution. Brown v. General Services Administration, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976).

Defendants contend that the holding in these cases presages a holding that Title VII provides the exclusive remedy for discrimination in employment precluding the use of § 1983. They argue that Congress would not have intended to allow state and local government employees to evade the comprehensive remedial scheme set forth in Title VII by pleading under 42 U.S.C. § 1983 and they point to the apparent unfairness in allowing governmental employees but not private employees the right to a jury trial and the opportunity to seek punitive damages.

Although defendants’ position is not without merit, I am persuaded against it by the analysis of the Court of Appeals for the Sixth Circuit in Day v. Wayne County Board of Auditors, 749 F.2d 1199 (6th Cir.1984). There the court concluded that Title VII provides an exclusive remedy when the only ground for the § 1983 cause of action is a violation of Title VII, but does not preclude an action brought to enforce rights guaranteed by the Constitution. In Day, the plaintiff was a white male who was found to have been demoted by a governmental agency in retaliation for having filed charges with the Equal Employment Opportunities Commission. The court held that he had no remedy other than Title VII because his claim had no basis in any pre-existing statute or provision of the Constitution.

In reaching its conclusion, the court of appeals began with the proposition that § 1983 is a remedial statute, which creates no substantive rights, but provides a remedy for actions under color of state law that contravene federally protected rights derived from the Constitution or from federal statutes. Congress has the authority to repeal § 1983 by providing an exclusive remedy elsewhere, but the fact that a statute contains a comprehensive remedial scheme does not mean that it was Congress’ intent to rule out additional remedies under § 1983. “The crucial consideration is what Congress intended.” Smith v. Robinson, — U.S. ---, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984).

The legislative history of Title VII reveals a Congressional intention to make Title VII the exclusive remedy for violation of its terms, without affecting an employee’s right to bring a suit under § 1983 for violations of pre-existing rights. In establishing the applicability of Title VII to state and local employees, the Committee wishes to emphasize that the individual’s right to file a civil action in his own behalf, pursuant to the civil Rights Acts of 1870 and 1871, 42 U.S.C. §§ 1981 and 1983, is in no way affected ____ Title VII was envisioned as an independent statutory authority meant to provide an aggrieved individual with an additional remedy to redress employment discrimination____ [T]he bill, therefore, by extending jurisdiction to state and local government employees does not affect the existing rights that such individuals have already been granted by previous legislation.

Legislation to implement this aspect of the Fourteenth Amendment is long overdue, and the Committee believes that an appropriate remedy has been fashioned in the bill. Inclusion of state and local employees among those enjoying the protection of Title VII provides an alternate administrative remedy to the existing prohibition against discrimination perpetuated “under color of state law” as embodied in the Civil Rights Act of 1871, W U.S.C. § 1983.

H.R.Rep. No. 92-238, 92d Cong., 2d Sess. U.S.Code Cong. & Adm.News 1972, 2137, 2154.

In the instant case, plaintiff is seeking to enforce rights guaranteed him under both Title VII and the Fourteenth Amendment of the United States Constitution. Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979) (holding that due process clause of Fifth Amendment prohibits employment discrimination on basis of sex); (Fifth Amendment provisions are applicable to states under Fourteenth Amendment.) Following the reasoning in Day v. Wayne County Board of Auditors, 749 F.2d 1199 (6th Cir.1984), I conclude that plaintiff should be free to pursue his remedies under both Title VII and § 1983. As to his cause of action under § 1983, plaintiff is entitled to try his claim to a jury. Therefore, defendants’ motion to dismiss the § 1983 cause of action and to strike plaintiff’s jury demand are DENIED.

      . In Brown v. General Services Administration, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976), the court emphasized the absence of any indication of congressional intent to make § 717 of the Civil Rights Act a supplement to existing remedies.
      [T]he holding in Johnson [v. Railway Express Agency, 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975) ] rested upon the explicit legislative history of the 1964 Act which “‘manifests a congressional intent to allow an individual to pursue independently his rights under both Title VII and other applicable state and federal statutes.' ” 421 U.S., at 459 [95 S.Ct., at 1719], quoting Alexander v. Gardner-Denver Co., 415 U.S. 36, 48 [94 S.Ct. 1011, 1019-20, 39 L.Ed.2d 147] (1974). Congress made clear " 'that the remedies available to the individual under Title VII are co-extensive with the in-div[i]dual’s right to sue under the provisions of the Civil Rights Act of 1866, 42 U.S.C. § 1981, and that the two procedures augment each other and are not mutually exclusive.’” 421 U.S., at 459 [95 S.Ct., at 1719], quoting H.R.Rep. No. 92-238, p. 19 (1971).

        Id. at 833-834, 96 S.Ct. at 1968.


author: BELL, District Judge.

text:
    Jeffrey M. ROBBINS, et al., Plaintiff, v. TRIDENT MARINE CORP., et al., Defendant.
    No. C83-747.
    United States District Court, N.D. Ohio, E.D.
    Feb. 5, 1985.
    Paul Kaufman, Cleveland, Ohio, for plaintiff.
    Jeffrey Fincun, Cleveland, Ohio, for defendant Douglas Tonia.
    Ronald Isroff, Cleveland, Ohio, for defendants Sunup Corp. and Harold Richie.
    Edward Cass and James Speros, Cleveland, Ohio, for Trident Marine Corp.
   ORDER

BELL, District Judge.

STATEMENT OF THE CASE

This action was filed on February 18, 1983 by plaintiffs Jeffery and Barbara Robbins against Trident Marine Corp., Sunup, Inc., Harold Richey and Douglas Tonia. Thereafter, Wayne Bratton was added as a party defendant. Jurisdiction of this court was properly invoked pursuant to 28 U.S.C. § 1333, under the general admiralty and maritime jurisdiction.

In brief, the plaintiffs allege that while a passenger on a pleasure boat owned by one of the defendants, Jeffery Robbins was injured as a result of an accident involving the boats owned and operated by the defendants. It is further alleged that as a proximate result of the defendants’ actions, Jeffery Robbins has suffered various damages for his personal injury. The claims of Barbara Robbins involve her alleged loss of consortium.

Prior to trial the defendant, Douglas Tonia, settled with the plaintiffs and the remaining defendants. The remaining defendants have denied liability for the injuries to Jeffery Robbins.

On October 2, 1984, trial was commenced on these contentions and continued for three days. Thereafter, the parties conducted and submitted the deposition of expert witnesses to supplement the record. On November 15, 1984, the parties argued this matter to the court. Based upon the testimony and exhibits adduced by the parties and the applicable law, the court now enters its Findings of Fact and Conclusions of Law pursuant to Rule 52 of the Federal Rules of Civil Procedure.

FINDINGS OF FACT

The plaintiff, Jeffery Robbins is a licensed podiatrist who practices and teaches podiatry in the Greater Cleveland, Ohio area. In August of 1982, Robbins was working in his private practice eighteen to twenty-five hours a week. In addition to his private practice, Robbins was employed as a teacher at the Ohio College of Podiatric Medicine.

On the evening of August 7, 1982, Robbins and his wife Barbara were passengers on the charter ship, the WAN-EL. At that time the WAN-EL was being operated by the defendant Sun-Up, Inc. The plaintiffs had chartered the boat for the evening and were hosting a party for approximately twenty-five members of a social club.

After the club members and the plaintiffs boarded the WAN-EL, the boat proceeded to move up the Cuyahoga River until it reached the end of navigable waters on the river. At this point, the WAN-EL turned around and proceeded down the river and towards Lake Erie. On the trip down the river the WAN-EL had to stop and wait between twenty to thirty minutes for a draw bridge to be raised at the Conrail No. 1 bridge.

The captain of the WAN-EL on August 7, 1982 was Captain Harold Richey. While waiting for the Conrail bridge to be raised, Richey noticed the presence of the charter vessel HOLIDAY, directly ahead of the WAN-EL and also waiting to proceed down the Cuyahoga River. In addition to the two charter boats the river was quite crowded with smaller pleasure boats.

At approximately 11:00 P.M., the Conrail bridge was raised and the boats started to move up the river. At this time the HOLIDAY, piloted by its captain, Wayne Brat-ton, was in front of the WAN-EL and would pass the bridge first. The HOLIDAY had also been chartered for the evening by a private party and had approximately sixty people aboard.

When the HOLIDAY proceeded up river it gave the appropriate signals to the other boats on the river. At this time the HOLIDAY was moving at 3 miles/hour. The WAN-EL was less than 100 feet behind and was proceeding at the same speed.

While the two charter boats were moving up river, a small pleasure craft operated by Douglas Tonia had moved through the Conrail bridge and was moving up river. At this point, the Tonia vessel, without warning, changed directions and started to cross the bow of the HOLIDAY at a high rate of speed and appeared to be on a collision course with that boat. Immediately, Captain Bratton stopped his boat and give a danger signal of at least five short blasts of the ship’s whistle in order to warn the Tonia boat and other boats on the river.. This signal was heard by Captain Richey on the WAN-EL, and he took his boat out of forward gear and left it in neutral. Captain Richey knew that the danger signal had come from the HOLIDAY, but he was not aware of what the specific danger actually was.

The Tonia boat did not heed the warning signals given by the HOLIDAY and continued to proceed on a collision course with the HOLIDAY. Captain Bratton then placed his boat into reverse in order to avoid a possible serious collision with the Tonia boat. Because of Bratton’s actions a collision was narrowly avoided. The Tonia boat proceeded in its course towards the shore and docked at a tavern.

Immediately after the Tonia boat completely crossed the bow of the HOLIDAY, Captain Bratton started to place the HOLIDAY in forward gear. At this time Brat-ton was informed by a member of his crew and a passenger that the boat was about to collide with the WAN-EL. Bratton placed the HOLIDAY in forward gear but was unable to avoid a slight collision in the rear of his boat with the WAN-EL.

Captain Richey on the WAN-EL had kept his boat in neutral since he had first heard the danger signal. While the HOLIDAY was acting in a manner necessary to avoid the Tonia boat, Captain Richey was attempting to discover what the danger actually was. At this time the WAN-EL was surrounded by smaller boats, and Captain Richey was attempting to see if the danger was being caused by one of these smaller boats.

The HOLIDAY and the WAN-EL collided because of the slight forward motion of the WAN-EL caused by its drifting and the current of the Cuyahoga River. In addition, the HOLIDAY had stopped moving down river and for a short period of time was in reverse and actually moving up river. In essence both boats were moving towards each other.

When the two boats collided, Jeffery Robbins had been sitting on a stool in the rear of the WAN-EL playing his guitar. At the point of impact, Robbins fell backwards off the stool and hit his neck on a pole. Thereafter, for the balance of the trip, Robbins only experienced some soreness in his neck. However, for several days thereafter the pain increased and he began to experience some difficulty with his arms and neck. Eventually, Robbins was required to undergo surgery at the Cleveland Clinic to alleviate the pain and discomfort caused by the injury. Since the injury, Robbins has experienced pain and suffering and his prognosis is that he shall continue to experience some pain and discomfort in the future. His condition will require that some career objectives be changed and that Robbins direct his professional goals in different direction.

CONCLUSIONS OF LAW

The court’s admiralty jurisdiction is properly invoked since the substance of the plaintiff’s injuries took place on navigable waters in connection with navigation of a vessel. Fisher v. Danos, 671 F.2d 904 (5th Cir.1982).

At the time of this incident the applicable rules and standards for navigation on the Great Lakes and their connecting and tributary waters, including the Cuyahoga River,. were the Great Lakes Rules of the Road, 33 U.S.C. § 241 et seq. These Rules of the Road are the codification of the procedures that vessels on the Cuyahoga River are to use to maintain safe navigation on the river.

The primary issues before the court are whether the manner in which the HOLIDAY and the WAN-EL were operated on the evening of August 7, 1982 was negligent and if such negligence proximately caused the injuries sustained by Mr. Robbins. The law is clear that if either or both boats were responsible for the collision, then the responsible vessel(s) would be liable for the injuries sustained by a passenger. The Herbert L. Pontin, 50 F.2d 177 (2d Cir.1931).

The facts in this action demonstrate that the Tonia boat was being operated in a reckless and negligent manner. This boat was being driven at an unsafe speed considering the numerous boats congregated on the Cuyahoga River and the congestion around the Conrail bridge.

This action by the Tonia boat was a direct violation of Rule 17 of the Great Lakes Rules of the Road which states as follows:

When two steam vessels are meeting end on, or nearly end on, so as to involve risk of collision each shall alter her course to starboard so that each shall pass on the port side of the other.

33 U.S.C. § 282. In addition, when the Tonia boat cut in front of the HOLIDAY an extremely dangerous condition developed and required emergency reactions on the part of the other vessels on the Cuyahoga River. Rule 18 of the Great Lakes Rules of the Road also prohibits such actions by the Tonia boat and provides as follows:

When two steam vessels are crossing so as to involve the risk of collision the vessel which has the other on her own starboard side shall keep out of the way of the other.

33 U.S.C. § 283. Thus, the record clearly demonstrates that Tonia had breached his duty to navigate the Cuyahoga River in a safe and reasonable manner and in accordance with the Great Lakes Rules of the Road.

The evidence is undisputed that the actions taken by Captain Bratton prevented a serious collision with the Tonia boat. Captain Bratton not only avoided the on-coming vessel, but also warned the other vessels on the Cuyahoga River of the existence of a dangerous condition. The responsibilities of the HOLIDAY in this situation was to take whatever action it could to safely avoid the collision with the Tonia vessel. The Mary C. Elphicke, 115 Fed. 375 (D.C.Ohio, 1902) The failure of Bratton to act in the manner he did would have caused a certain collision between the Tonia boat and the HOLIDAY and could well have resulted in the sinking of the Tonia boat and possible loss of life. Thus, the court finds that Bratton reacted in a reasonably prudent manner under this emergency situation by taking the necessary actions to avoid the smaller boat.

The plaintiff has argued that Captain Bratton and the HOLIDAY were negligent for placing the b.oat into reverse to avoid the collision with the Tonia boat. However, the court finds factually that this action was required to avoid the collision with the smaller boat. Therefore, the slight movement up river was not a negligent act to avoid a very dangerous collision with the Tonia boat.

The captain of the WAN-EL was also presented with an emergency situation. When Captain Richey heard the danger signal given by the HOLIDAY, he acted in a reasonable and prudent manner in that he took his boat out of forward gear and placed it in neutral. However, unlike the captain of the HOLIDAY, Captain Richey did not know what the danger actually was. Therefore, Richey had to attempt to discover the dangerous condition in order to safeguard his passengers and his vessel.

When examining the conduct and actions of Captain Richey, the court is unable to find that he acted in any manner that was negligent or unreasonable. Although the WAN-EL continued to move up the river because of the drifting of the boat and the current of the river, Captain Richey had no way of discovering that the HOLIDAY, directly in front of him, had come to a complete stop and would begin to move down the river a slight distance. In this short time period, Captain Richey was looking around the river and to his rear to ascertain the respective status and positions of the numerous smaller boats around him.

In making their respective decisions, Captains Bratton and Richey were placed in emergency situations. The incidents described occurred at night and both boats were surrounded by smaller pleasure craft in the narrow channel of the Cuyahoga River. Under these conditions and in the short time from which these events occurred both men acted in a prudent and reasonable manner. The absence of their actions may have resulted in one or more serious collisions in which lives and vessels may have been lost.

It is clear to the court that the negligent party totally responsible for the slight collision between the HOLIDAY and the-WAN-EL was the operator of the Tonia boat, Douglas Tonia. His reckless operation of his vessel was the proximate cause of the injuries to Jeffery Robbins and to the other vessels.

Accordingly, the court enters judgment in favor of each of the remaining defendants to this action and this case is hereby dismissed.

IT IS SO ORDERED.


author: WEXLER, District Judge.

text:
    Henry PIECHUCKI, Plaintiff, v. Margaret M. HECKLER, Secretary of the United States Department of Health & Human Services, Defendant.
    No. CV 84-2968.
    United States District Court, E.D. New York.
    March 28, 1985.

      William J. Eppig, West Islip, N.Y., for plaintiff.
    Raymond J. Dearie, U.S. Atty. by Deborah Zwany, Asst. U.S. Atty., Brooklyn, N.Y., for defendant.
   MEMORANDUM AND ORDER

WEXLER, District Judge.

Plaintiff brings this action pursuant to § 205(g) of the Social Security Act (“Act”), as amended, 42 U.S.C. § 405(g), to review a final determination by the Secretary of Health and Human Services (“Secretary”) denying plaintiff a period of disability and disability benefits.

Plaintiff applied for disability insurance benefits on June 7, 1983. This application was denied initially and on reconsideration. Plaintiff requested an administrative hearing, which was held on January 27, 1984. Considering the ease de novo, the Administrative Law Judge (“AU”) found that plaintiff was not under a disability. This became the final determination of the Secretary when it was approved by the Appeals Council on May 16, 1984.

I.

Mr. Piechucki, born May 27, 1929, is now sixty-three years old and has only a tenth grade education. Plaintiff served in the infantry in World War II and was wounded in combat by shrapnel in 1945. His left leg was amputated below the knee as a result. He apparently spent several years in a VA hospital immediately after the war. Thereafter, Mr. Piechucki worked for thirty-five years as a dispatcher for a trucking company until May 27, 1983, the alleged onset of his disability. Plaintiff asserts his inability to work is caused by severe lower back pain, stiffness in his hip, and inflamation and severe pain underneath the prosthesis on his lower left leg. The AU found plaintiff's past relevant work to be light, semiskilled work, in which plaintiff was required to keep files and records in order, walk repeatedly to and from the truck parking lot and climb in and out of trucks throughout the day.

The medical reports on the record indicate plaintiff is suffering from degenerative arthritis in his lower back and a left leg amputation below the knee. Plaintiff’s complaints of pain in his stump are substantiated by medical findings of artherosclerotic plaques causing narrowing of several arteries in the stump. Lumbosacral spine x-rays reveal a narrowing of the L5-S1 interspace and facet joint degenerative arthritis. In a report dated February 15, 1984 the treating physician stated that based on his most recent examination, plaintiff's spine also showed a limited range of motion in all planes. Vocational expert Dr. Bernard Rosenberg testified that while Mr. Piechucki’s vocational skills are transferrable they are “not highly marketable,” and if plaintiff were to seek a sedentary job suitable to his vocational skills, he would have to undergo a change from both his former work setting and industry.

The AU determined that plaintiff suffers from a severe disability caused by chronic lower back pain and lower left leg amputation, and that plaintiff’s combination of impairments do not meet or equal a listed impairment. The AU concluded that plaintiff could return to his previous work. (Tr. 14).

II.

The factual determinations of the Secretary are conclusive where supported by substantial evidence on the record as a whole. Bastien v. Califano, 572 F.2d 908, 912 (2d Cir.1978). Nevertheless, on appeal the Court is not limited to scrutiny of the AU’s factual determinations, but must also review the AU’s analysis and use of the law and regulations. Townley v. Heckler, 748 F.2d 109, 112 (2d Cir.1984).

The Court cannot but note apparent discrepencies and inadequacies in the reasoning and conclusions of the AU’s decision. While he devotes several paragraphs to discussion of plaintiffs ability to do sedentary dispatching (Tr. 13), in his concluding section of “Findings” he declares that plaintiff can perform his past relevant work, hence is not under a disability (Tr. 14). Clearly, the conclusion contradicts the reasoning of the AU’s decision. More importantly, it does not fulfill the AU’s duty to follow the analytical procedure outlined in the regulations and provide adequate and supportive reasoning.

In his discussion and reasoning the AU explicitly recognizes that the plaintiff cannot return to his past work as a dispatcher at a light work level of exertion. Moreover, if it were the AU’s determination that plaintiff could return to light work dispatching, it is not supported by substantial evidence on the record. There is nothing on the record to support a finding that plaintiff can meet the walking and carrying requirements of light work. Mr. Piechucki is obviously experiencing pain in his stump from his prosthesis. At least one doctor saw a need for surgical revision of the stump as a result (Exhibit 21). And in July 1983 a Social Security Administration inverviewer noted plaintiff’s limp and difficulty in moving, and concluded that plaintiff “is obviously unable to lift the 25 lbs. stated in his denial Itr [sic]” (Tr. 96). Remand to the Secretary to resolve the conflict between the AU’s discussion and findings is unnecessary. It is clear that Mr. Piechucki is prevented by his impairments from returning to his former job insofar as it requires a capacity to do light work. The AU was obviously aware of plaintiff’s limited exertional abilities when he stated that plaintiff could transfer his skills to dispatcher work in a “sedentary mode” (Tr. 13).

The analytical problems do not end here, however. First, the AU dismisses plaintiff's complaint of disabling pain with the conclusory statements, “The pain is evaluated as not debilitating,” (Tr. 13) and, “Claimant’s allegations of experiencing intense pain which precludes the performance of all work-related activity is not credible” (Tr. 14). This is all the AU says on the matter. Clearly, this is inadequate. The AU is the finder of fact and judge of credibility. Carroll v. Secretary of Health and Human Services, 705 F.2d 638, 642 (2d Cir.1983). He must, however, articulate his reasoning in support of his determination at adequate length, weighing and evaluating the evidence. Moreover, where, as here, plaintiff’s claim of disabling pain is supported by such objective clinical findings as narrowing of the L5-S1 spaces, arthritis, and impaired circulation in the stump, it is entitled to great weight. Rivera v. Schweiker, 717 F.2d 719, 725 (2d Cir.1983). Thus the AU must make some effort to outline evidence rebutting plaintiff’s claim, an effort completely absent in this case.

Second, the AU, though deeming plaintiff able to do sedentary work, does not evaluate or detail his residual functional capacity. Again, this is inadequate. Ferraris v. Heckler, 728 F.2d 582, 585 (2d Cir.1984). Nevertheless, it is not crucial. For even if the AU had made the requisite findings and were supported by the record in his conclusion that plaintiff could do sedentary work using his dispatcher skills, his determination of not disabled is erroneous.

In this case plaintiff is of advanced age, has a limited education, and according to the vocational expert has transferrable skills. But the vocational expert also testified that if plaintiff were to seek other employment it would require substantial change in industry and work setting. Under § 201.00(f) of the Regulations, 20 CFR Part 4, Appendix II (1984), “In order to find transferrability of skills to sedentary work for individuals who are of advanced age (55 and over) there must be very little, if any, vocational adjustment required in terms of tools, work processes, work setting or the industry”, (emphasis added). In applying the Grid regulations the AU failed to utilize this stricter regulation defining transferrability for applicants of advanced age. Under this regulation plaintiffs skills are not considered transferrable and therefore a conclusion of “disabled” is dictated by the Grid.

In view of the inadequacy of the ALJ’s evaluation, his contradictory determinations, and his failure to apply the appropriate regulations, it might be proper to remand to the Secretary. The Court concludes, however, that this would serve no useful purpose. There is no new evidence to be considered. The overwhelming evidence on the record shows, and the ALJ’s opinion recognizes, that the plaintiff cannot return to his past relevant work, but must transfer his skills to sedentary work of the same type. The uncontroverted testimony of the vocational expert is that this requires substantial changes in work setting and industry. As Mr. Piechucki is of advanced age the Secretary must apply 20 C.F.R. § 201.00, which yields a conclusion of disabled in this instance. Therefore, once it is determined that Mr. Piechucki cannot return to his old work and he must change industries and work settings, the finding of disability is inevitable. Remand would add nothing to the record nor alter the outcome, and would only cause delay. Parker v. Harris, 626 F.2d 225 (2d Cir.1980).

III.

The Court concludes that the ALJ erred in his evaluation of the evidence and application of the Regulations. Correctly applied, the Regulations deem Mr. Piechucki disabled. Accordingly, the plaintiff’s motion for judgment on the pleadings is granted. Rule 12(c), Fed.R.Civ.P. The decision of the Secretary denying disability benefits is reversed.

The Clerk of the Court is hereby directed to enter judgment in favor of the plaintiff, awarding disability benefits commencing May 27, 1983.

SO ORDERED.


author: JOYCE HENS GREEN, District Judge.

text:
    SECURITIES AND EXCHANGE COMMISSION, Petitioner, v. David P. WHITMAN and Lowell R. Allen, Respondents.
    Misc. No. 85-0083.
    United States District Court, District of Columbia.
    April 15, 1985.
    Alexia Morrison, Joseph Goldstein, William Donnelly, ■ Thomas Karol, S.E.C., Washington, D.C., for petitioner.

      Philip A. Lacovara, Geoffrey P. Aronow, William L. Webber, Hughes, Hubbard & Reed, Washington, D.C., John S. Martin, Jr., Catherine Samuels, Schulte, Roth & Zabel, New York City, for respondents.
   ORDER

JOYCE HENS GREEN, District Judge.

Before the Court is the application of the Securities and Exchange Commission (“SEC” or “the Commission”) for an Order Requiring Obedience to Subpoenae Duces Tecum, and respondents’ opposition thereto. The underlying subpoenae were directed to respondents David P. Whitman and Lowell R. Allen of the certified public accounting firm of Coopers & Lybrand (“C & L”) in connection with an SEC Enforcement Division private investigation into the trading of the securities of Anacorp, Inc., a client of C & L. Respondents Whitman and Allen are, respectively, the audit manager and audit partner responsible for an audit of Anacorp, Inc. by C & L. Both are willing to testify under oath before the Commission in the presence of their counsel and a nonlawyer accountant from C & L’s General Counsel’s Office, who would provide technical assistance to respondents’ counsel on accounting and auditing issues. The sole issue presented herein is whether the Commission may refuse to permit a nonlawyer technical adviser to accompany a witness and his counsel during the actual taking of investigative testimony.

Congress has expressly recognized that a witness subpoenaed to testify before an agency has a right to representation under the Administrative Procedure Act (“APA”):

[a] person compelled to appear in person before an agency or representative thereof is entitled to be accompanied, represented and advised by counsel, or, if permitted by the agency, by other qualified representative. 5 U.S.C. § 555(b).

This subsection or the APA “does not grant or deny [a nonlawyer] the right to appear for or represent others” in an agency proceeding, id., but the witness’ right to counsel is absolute. See SEC v. Csapo, 533 F.2d 7 (D.C.Cir.1976); see generally United States v. Weiner, 578 F.2d 757, 773 (9th Cir.1978), cert. denied, 439 U.S. 981, 99 S.Ct. 568, 58 L.Ed.2d 651 (1978). The issue presented here is not whether an agency must permit a nonlawyer to represent a subpoenaed witness, but whether counsel representing a witness may, in order to fully (and thereby adequately) serve his client, utilize the expertise of a technical adviser by his side at the agency proceedings.

The Commission excludes nonlawyers from attending its investigative proceedings in any capacity under its own Rules of Practice. As pertinent, those rules provide that

[a]ny person compelled to appear, or who appears by request or permission of the Commission, in person at [a] formal investigative proceeding may be accompanied, represented and advised by counsel, as defined in Rule 2(b) of the Commission’s Rules of Practice. 17 C.F.R. § 203.7(b) (“Rule 7(b)”).

Rule 2(b) of the Commissioner’s Rules of Practice, 17 C.F.R. § 201.2(b), defines counsel as

an attorney at law admitted to practice before the Supreme Court of the United States, or the Court of Appeals or the District Court of the United States for the District of Columbia.

To the extent that Rule 7(b) and Rule 2(b) of the Commission’s Rules of Practice impinge upon counsel’s ability to adequately represent his client who has been called upon to testify, they cannot be upheld. Given the extraordinary complexity of matters raised in agency investigations in this modern day, counsel trained only in the law, no matter how skillful, may on occasion be less than fully equipped to serve the client in agency proceedings. Unless the lawyer can receive substantive guidance from an expert technician — in this case, an accountant — when he determines in his professional judgment that such assistance is essential, his client’s absolute right to counsel during the proceedings would become substantially qualified.

The Securities and Exchange Commission’s Rules of Practice here at issue were promulgated under section 555(b) of the APA, see Commission’s Memorandum at 12, yet as applied in this case they effectively dilute the basic right afforded by Congress. Congress determined that a witness testifying before an agency cannot be denied the accompaniment,' representation and advice of counsel, regardless of the nonadjudicatory nature of the proceeding. That determination reflects the lawmakers’ understanding of potential perils to the witness which accompany the act of testifying, and calls for the full potency of the right to counsel.

The Commission itself is well aware of the limits on a lawyer’s expertise: indeed, in the investigative proceedings here at issue, the agency’s own counsel rely heavily on the SEC accounting staff not only to provide advice and assistance but also to pose the questions to the respondents. The Commission correctly states that nothing in the APA guarantees the respondent a parity of advantage, but a witness’ established right to his counsel’s representation and advice (not merely presence) at agency proceedings, see 5 U.S.C. § 555(b), calls for some means of narrowing the gap between his counsel’s and the questioner’s technical expertise. Granting permission to the witness’ attorney to bring an expert of his own choosing to the agency proceedings as an extension of himself (as an assistant) is a simple and expedient way to give veritable meaning to the witness’ right to counsel. Certainly, it is less disruptive and more reasonable than the Commission’s current practice of allowing counsel to interrupt proceedings to consult with experts posted (with the agency’s permission) just outside the door.

Today’s decision does not unduly erode the agency’s power and authority to conduct its own proceedings with little intrusion. On those limited occasions when a technical adviser is deemed by the witness’ attorney to be essential, the expert will serve as an adjunct to counsel. The attorney bears ultimate responsibility for the accountant’s conduct, and the risk that the proceedings will be obstructed or somehow tainted is minimal. In addition, the attorney is charged with avoiding even a potential conflict of interest on the part of the accountant, who in this case is employed by the respondents’ employer. With these provisos, it would be arbitrary and capricious to systematically deny a witness’ counsel the assistance of a technical expert by his side in agency proceedings while his client testifies as to a subject matter beyond the able counsel’s expertise.

For the reasons stated above, it is by the Court this 15th day of April, 1985

ORDERED that the application of the SEC for an Order Requiring Obedience to Subpoenas Duces Tecum is denied insofar as the Commission would refuse to allow counsel for respondents to be accompanied and assisted at SEC investigative proceedings by a nonlawyer technical adviser with special expertise in accounting.

      . In this case, the Commision openly acknowledges that a witness’ testimony may later be used against him in a variety of ways. See Exhs. A, B to Affidavit of John S. Martin, Jr.