author: JAMES C. FOX, District Judge.

text:
    Ferma L. WARD and Kathy M. Ward, Plaintiffs, v. FEDERAL CROP INSURANCE CORPORATION, C.A. Perry & Sons, Incorporated Fertilizer Company, Gregory Berryman and E.L. Ross Agency, Inc., Defendants.
    No. 84-46-CIV-2.
    United States District Court, E.D. North Carolina, Elizabeth City Division.
    Feb. 14, 1986.
    Everette Thompson, Trimpi, Thompson & Nash, Elizabeth City, N.C., for plaintiffs.
    Gerald F. White, Herbert T. Mullen, Jr., White, Hall, Mullen, Brumsey & Small, Elizabeth City, N.C., for defendants.

      James S. Perry, Asst. U.S. Atty., Raleigh, N.C., for Federal Crop Ins. Corp.
   ORDER

JAMES C. FOX, District Judge.

STATEMENT OF THE CASE

This action was brought by plaintiffs, Ferma L. Ward and Kathy M. Ward (hereinafter “the Wards”), against the Federal Crop Insurance Corporation (hereinafter “FCIC”), C.A. Perry & Sons, Inc., Fertilizer Company, Gregory Berryman, and E.L. Ross Agency, Inc., pursuant to 28 U.S.C. § 1331 and 7 U.S.C. § 1508. The Wards, in their complaint, allege that:

1. FCIC breached its insurance contracts with the Wards by refusing to compensate them for their 1983 crop losses of $23,000 due to weather damage.

2. Gregory Berryman and FCIC employees wrongfully impaired the Wards’ attempt to file a claim with FCIC causing the Wards to incur attorneys’ fees and great mental distress; and

3. FCIC employees maliciously, fraudulently and negligently failed to discharge a duty to the Wards to assist them in filing acreage reports or to inform them appropriately about their insurance policies.

This matter is before the court on FCIC’s motion for summary judgment. On January 3, 1986, the court heard oral argument of counsel on said motion. At that time, the Wards conceded that their cause of action against FCIC was solely predicated on breach of contract, i.e., the first allegation listed above. Accordingly, the court granted partial summary judgment in favor of FCIC, and dismissed all claims against FCIC except the Wards’ claim for breach of contract wherein they claim the right to $23,000 by reason of their crop damage. FCIC’s motion for summary judgment on the latter claim is now ripe for disposition.

STATEMENT OF FACTS

The uncontraverted facts appear to be as follows:

On March 22, 1982, the Wards applied to FCIC for federal crop insurance to cover their corn, soybean and peanut crops. The application listed the crops covered, the price level at which the Wards desired insurance coverage, and the number of acres of each crop the Wards planted. Under the terms of the application, FCIC accepted the application unless FCIC notified the applicant of rejection within thirty days of the date exhibited on the application. The application was not rejected, and accordingly, the Wards became eligible to effect annual crop insurance under valid FCIC contracts for peanuts, corn and soybeans for 1982 and succeeding crop years, each contract being identified by contract no. 37-041-35047. Such contracts were never can-celled or terminated pursuant to the provisions thereof.

In 1982, the Wards failed to file with the FCIC service office any acreage reports indicating that they planted any of the aforementioned crops, and therefore no insurance coverage was effected and no 1982 premium therefor became due to FCIC from the Wards. During the fall of 1982, the Wards received a premium notice confirming that there was a zero amount due and that no acres were insured under the subject insurance contracts. On December 6,1982,1983 crop insurance policies for corn, soybeans and peanuts indicating the Wards’ eligibility for 1983 insurance thereunder, were mailed by FCIC from Kansas City to the Wards. Such crop insurance policies were received by the Wards during the winter of 1983, and in the spring of 1983, the Wards received a confirmation from FCIC that they had federal crop insurance available to them for that year. The confirmation was dated March 31, 1983, the date upon which FCIC could have cancelled the contracts pursuant to paragraph 15 thereof for the Wards’ failure to pay any past indebtedness due thereunder. At the time of such receipt by the Wards, no indebtedness was due by them to FCIC as no insurance had in fact been effective for crop acreage the prior year, 1982.

The Wards’ FCIC contracts required the Wards to report the acreage to be insured for corn, soybeans and peanuts for the year 1988, such report to be filed by July 15th, of that year. The Wards did not file a timely acreage report under their FCIC contracts for any of the aforementioned crops for said year. The Wards did submit acreage reports to the Agricultural Stabilization and Conservation Service (ASCS) office on June 9, 1983, however, six days prior to the deadline of filing with FCIC. The ASCS is not an agent of or component part of FCIC.

During the summer of 1983, the Wards suffered a complete loss of their corn, soybean and peanut crops. In December,

1983, the Wards received a 1983 premium notice confirming that there was a zero amount due and that no acreage was insured under the 1983 contracts. In June of

1984, almost one year later, the Wards filed acreage reports for the acreage planted with said crops in 1983, and at that time filed a claim for the loss which they incurred in the latter year by reason of the destruction of their crops. On August 22, 1984, FCIC rejected the plaintiffs’ claims under the contracts for the 1983 crop losses.

As previously indicated, the FCIC contracts were continuous contracts (in the nature of insurance binders) anticipated to continue from year to year even though the insured could choose not to participate in the insurance program in any given year. Under the contracts, an insured, at his election, could effect insurance coverage, or, conversely, he could decide not to have any acres covered by insurance and by reason of the absence of such coverage concomitantly not be liable to FCIC for any insurance premiums. The contracts provide that if no premium is earned by FCIC for five consecutive years, the contracts automatically terminate.

The premium due FCIC for any year depends upon and is correlated to the amount of crop acreage to be insured. In this regard, item 3 of the terms and conditions of the corn and soybean contracts provides as follows:

3. REPORT OF ACREAGE, SHARE, AND WHERE APPLICABLE, PRACTICE:
You shall report on our form:
a. All the acreage of corn [soybeans] in the county in which you have a share.
b. the practice; and
c. your share at the time of planting. You shall designate separately any acreage that is not insurable. You shall report if you do not have a share in any corn [soybeans] planted in the county. This report shall be submitted annually before the reporting date. If you do not submit this report by the reporting date, we may elect to determine by unit the insured acreage, share and practice or we may deny liability on any unit. Any report submitted by you may be revised only upon our approval.

Item 3 of the terms and conditions of the peanut policy contains slightly different language:

3. RESPONSIBILITY TO REPORT ACREAGE, SHARE, POUNDAGE QUOTA, AND, WHERE APPLICABLE, PRACTICE.
You shall submit to us on our prescribed form, a report showing (a) all acreage of peanuts planted in the county (including a designation of any acreage to which insurance does not attach) in which you have a share, (b) your share therein at the time of planting, (c) the effective poundage marketing quota, if any, applicable to the unit for the current crop year as provided under ASCS Peanut Marketing Quota Regulations and such quota shall not be subject to change by you and (d) where applicable, the practice. Such report shall be submitted each year not later than the acreage reporting date on file in your service office.

The peanut policy contains additional pertinent language in Section 2(b) of the appendix thereto (additional terms and conditions) which reads as follows:

(b) If you do not submit an acreage report on or before the acreage reporting date on file in your service office, we may elect to determine by units the insured acreage and share or declare the insured acreage on any unit(s) to be “zero.” If you do not have a share in any insured acreage in the county for any year, you shall submit a report so indicating. Any acreage report submitted by you may be revised only upon approval by us.

The crux of the issue before the court is whether or not the timely submission of acreage reports to FCIC is a condition precedent to FCIC insurance coverage, as FCIC contends, or whether the obligation to report acreage to be insured is a promise or covenant on the part of the insured, as opposed to a condition precedent to insurance coverage.

DISCUSSION

The Wards contend, as indicated, that failure to file acreage reports is a promise or covenant, and that the breach thereof only gives FCIC a defense by way of an offset to costs incurred by it in determining the amount of acreage planted by the Wards during the year in which the loss occurred. In arguing against acreage reporting as a condition precedent, the Wards note that such term, per se, does not appear in conjunction with the acreage reporting requirements, and point out that in paragraph 8 of the peanut policy the term “condition precedent” is used, although not in relation to acreage reporting requirements. The Wards assert that such use of the term “condition precedent” is indicative of the fact that FCIC was aware of its meaning and hence would have used the same term had it meant to effectuate a condition precedent in some other portion of the contract. The court finds this argument to be without merit, a rose being a rose whether or not it bears that label or has that nomenclature applied to it.

Furthermore, as to the acreage reporting requirement being a covenant or a promise, the Wards in effect argue that an insured, under a five-year continuing FCIC contract could (1) plant a crop in each of the first four years, (2) each year breach his “promise” to report his planted acreage, (3) ás a result of his failure to report planted acreage, pay no insurance premium in any of said years, and (4) continue his failure to report until the fifth year, but thereafter, upon suffering a crop loss in such year, report the acreage and the loss, pay the premium, and recover under the insurance contract. The Wards concede, in such event, that the insured would owe the insurer the insurance premiums due in each of the first four years for the acreage planted therein. One can only speculate as to how the insurer would know of the insured’s liability for and the amount of premiums due in each of the first four years. Additionally, even if such premiums were paid, their belated payment would be a bargain as compared to the insured’s recovery for the crop loss occurring in the fifth year. Assuming no loss in the fifth year, the insured would never pay any insurance premium and yet he would always be in the position to effectuate crop insurance after a loss had occurred. The Wards’ argument to such effect does not comport with the economic theory or reality of the insurance business and FCIC practices. The Wards would impose upon an insurance company (FCIC) the duty to compensate for a loss when it has received neither a record of the property covered nor any premium payments -to compensate for the risk of insuring that property.

The court agrees with the defendant, and perceives the acreage crop reporting requirement a condition precedent for the effectuation of insurance coverage. Restatement (Second) of Contracts § 1225, states:

Performance of a duty subject to a condition cannot become due unless the condition occurs or its non-occurrence is excused. Unless it has been excused, the non-occurrence of a condition discharges the duty when the condition can no longer occur.

The Restatement defines “condition” as “an event, not certain to occur, which must occur, unless its non-occurrence is excused, before performance under a contract becomes due.” Id. at § 1224. The positions enunciated in the Restatement reflect well established contract principles which have long been adopted in American law. See Taylor v. Mason, 9 (Wheat) U.S. 325, 6 L.Ed. 101 (1824). The conditions precedent to payment of a claim pursuant to an insurance policy with FCIC parallel those required under any property insurance policy. The foundation requirement is that the policyholder must report all the acreage (property) he wishes covered. In the absence of a valid description of the property, neither the value thereof, the amount of insurance, nor the concomitant premium for the insurance can be calculated. In short, the insurance risk cannot be evaluated and the insurer cannot arrive at compensation due it to compensate it for the assumption of such risk.

Neither ignorance of nor hardship to the Wards, nor their misplaced reliance upon the acts of an agent of FCIC, can vitiate the requirements that the Wards comply with a condition precedent to the effectuation of insurance coverage in this case.

In Federal Crop Insurance Corporation v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10 (1947), the Supreme Court addressed the issue of what effect a policyholder’s noncompliance with his contractual obligations should have on his claim for indemnity. The Court declared that the policyholder is bound by the regulations promulgated under the Federal Crop Insurance Act. Id. at 385, 68 S.Ct. at 3. The court further declared that the regulations are binding irrespective of the farmer’s knowledge, or the field agent’s representation to the contrary. Id. at 383, 68 S.Ct. at 2.

In Merrill, the policyholders reseeded the acreage on which they had suffered a loss. By the regulations promulgated under the Federal Crop Insurance Act, the FCIC is not liable for a loss on reseeded acreage. The policyholders had no actual knowledge of these regulations; moreover, they had been misled by a local representative to believe they were in compliance with FCIC requirements. The court held that although their ignorance was innocent, they were nevertheless responsible to read and adhere to the provisions of the contract. The court declared:

The case no doubt presents phases of hardship. We take for granted that, on the basis of what they were told by the Corporation’s local agent, the respondents reasonably believed that their entire crop was covered by petitioner’s insurance. And so we assume that recovery could be had against a private insurance company. It is too late in the day to urge that the Government is just another private litigant, for purposes of charging it with liability, whenever it takes over a business theretofore conducted by private enterprise or engages in competition with private ventures.

Id. at 383, 68 S.Ct. at 2.

The Supreme Court’s holding in Merrill has been consistently cited by the Fourth Circuit in cases concerning the FCIC. In Mann v. Federal Crop Insurance Corporation, 710 F.2d 144 (4th Cir.1983), cert. denied, 465 U.S. 1005, 104 S.Ct. 997, 79 L.Ed.2d 230 (1984), the Court of Appeals for the Fourth Circuit considered the case where agents of the FCIC misled the plaintiffs to believe they could submit a claim for indemnity without deducting from that claim the amount gained by storing their harvested product for a period of time. Not deducting the proceeds gained from this storage contravenes certain regulations promulgated under the Federal Crop Insurance Act. The court held the plaintiffs were bound by their contractual restrictions, notwithstanding the misrepresentation by the local agent.

In Mann, the plaintiffs attempted to argue from equity, reasoning that the FCIC should be estopped from demanding a deduction because the local representative indicated such a deduction was unnecessary. The court rejected the plaintiffs’ argument by concluding:

An Agent of the FCIC could not extend crop insurance where there was none because the doctrine of estoppel cannot extend the coverage beyond that authorized by Congress and the rules promulgated by the FCIC. FCIC v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10 (1947)... The farmer is charged with knowledge of the regulation and the policy; the doctrine of estoppel cannot be used to expand the coverage. 332 U.S. at 384-385, 68 S.Ct. at 3-4.

Id. at 147.

Another Fourth Circuit case concerning the effect of noncompliance with contractual duties stipulated by the FCIC is Felder v. Federal Crop Insurance Corporation, 146 F.2d 638 (4th Cir.1944). In Felder, the plaintiff failed to file his proof of acreage loss within the 30 days required by the contract. Although he missed the deadline by only a month, the court found that strict compliance with this regulation was a condition precedent to recovery on any FCIC policy. As in the instant case, where the plaintiffs failure to file an acreage report was in no way a result of an act or omission by the FCIC, the court in Felder found that no act of any FCIC official prevented the timely filing of proofs of loss. The court concluded that, in spite of the hardship occasioned by making the plaintiff abide by contractual regulations, the FCIC was not bound to indemnify the plaintiff because of his failure to fulfill a condition precedent. Id. at 640. In its conclusion, the court in Felder cited the famous passage by Mr. Justice Holmes in Rock Island, Arkansas Louisiana R. Co. v. United States, 254 U.S. 141, 143, 41 S.Ct. 55, 56, 65 L.Ed. 188 (1920):

Men must turn square corners when they deal with the Government. If it attaches even purely formal conditions to its consent to be sued those conditions must be complied with.... At all events the words are there in the statute and the regulations and the Court is of opinion that they mark the conditions of the claimant’s right.

Id. at 641. The Supreme Court relied on this same passage in their conclusion in Merrill. Commenting on Mr. Justice Holmes’ remark the court stated that it “does not reflect a callous outlook. It merely expresses the duty of all courts to observe the conditions defined by Congress for charging the public treasury.” Merrill, 332 U.S. at 385, 68 S.Ct. at 3.

A recent district court decision, in South Carolina, also relied on the rule reiterated in Merrill and Felder. In Brown v. Federal Crop Insurance Corporation, No. 82-3161-2 (D.S.C. Sept. 2, 1983), aff'd, 738 F.2d 428 (4th Cir.1984) the district court considered a case factually similar to the instant case. In Brown, FCIC agents accepted an application for federal crop insurance from the plaintiff. The plaintiff failed to sign the application as required to bind the corporation to a contract. In spite of the representations by FCIC agents that the plaintiff had coverage, the court concluded that the plaintiff’s failure to abide by his contractual duties severed his ability to demand remuneration for his loss. The court relied heavily on Merrill, and it cited with favor the language of a similar Fifth Circuit case:

Plaintiff cannot make for himself a crop insurance contract by relying on Wilson, who was in charge of the Agricultural Committee office. It was his duty, not . that of Wilson, to know whether or not he had such crop insurance. However much one would like to see plaintiff receive remuneration for the loss of his crop, the Government has set certain standards by which individuals shall conduct themselves in procuring the benefits of the crop insurance program. They are in all respects just and fair. We cannot abandon them in favor of the plaintiff, who has shown a lack of diligence.

Id. at 10 (quoting Frier v. Federal Crop Insurance Corporation, 152 F.2d 149, 150 (5th Cir.1945), cert. denied, 328 U.S. 856, 66 S.Ct. 1343, 90 L.Ed. 1628 (1946).

For the reasons heretofore expressed, to-wit: the Wards’ failure to comply with the condition precedent to the effectuation of insurance coverage for their 1983 crops, FCIC’s motion for summary judgment for the Wards’ breach of contract claim against it is ALLOWED. Accordingly, this action as to the defendant FCIC is herewith DISMISSED.

SO ORDERED.

      . FCIC apparently bills its insureds at the end of the crop year to accommodate their financial needs.

      . Paragraph 8 in this regard reads:
      8. CLAIM FOR INDEMNITY, (a) It shall be a condition precedent to the payment of any indemnity that you (1) establish the total production of peanuts on the unit and that any loss of production was directly caused by one or more of the insured causes during the insurance period for the crop year for which the indemnity is claimed and (2) furnish any other information regarding the manner and extent of loss as may be required by us.

      . The Wards’ reliance upon Howard v. Federal Crop Insurance Corporation, 540 F.2d 695 (4th Cir.1976), in support of this contention is misplaced. The issue in Howard was whether plaintiffs disking or plowing of fields after a crop loss vitiated FCIC’s obligation to pay for the loss pursuant to insurance coverage in force, as opposed to the instant issue, i.e., whether insurance coverage was effected.

      . It is true, as Wards point out, that neither Merrill, Mann nor Brown involved the waiver or estoppel of the application of a condition precedent in any FCIC contract. Such cases do stand for the proposition, however, that an agent of FCIC cannot, through estoppel, extend insurance coverage beyond that authorized by Congress and the rules promulgated by FCIC.


source: Caselaw Access Project

author: MARQUEZ, District Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff, v. Otis Lamont GRIFFIN, Defendant.
    No. CR 81-0130 TUC ACM.
    United States District Court, D. Arizona, Tucson Division.
    Feb. 18, 1986.
    Negatu Molla, Asst. U.S. Atty., Tucson, Ariz., for plaintiff.
    Fredric F. Kay, Federal Public Defender, Tucson, Ariz., for defendant.
   ORDER

MARQUEZ, District Judge.

The Defendant, OTIS LAMONT GRIFFIN, has filed a timely motion for reduction of sentence pursuant to Rule 35 of the Federal Rules of Criminal Procedure.

The court has reviewed the pre-sentence report, the matters considered by the court at the time of sentencing, the motion and the attachments. In addition, the court has also examined the court file in this matter.

Defendant Griffin was convicted following a jury trial for various narcotic violations. On September 18, 1981 this court sentenced the Defendant to three concurrent three year terms in prison and a five year special parole term. Defendant was permitted to remain free on bond pending appeal. Following the affirmance of the conviction by the Ninth Circuit Court of Appeals, the Defendant filed a motion under Rule 35 of the Federal Rules of Criminal Procedure to reduce his sentence. On April 22, 1983 this court granted that motion and sentenced the Defendant to three concurrent three year terms but suspended that sentence conditionally upon the Defendant’s serving of 179 days incarceration followed by a three year period of probation. This is commonly called a split sentence.

The Defendant served his term of imprisonment and began the probationary period. On February 1,1985 this court revoked Mr. Griffin’s probation and reimposed the three concurrent three year terms of incarceration. At that time, however, the court again suspended the execution of the sentence and placed the Defendant on five years probation.

Another petition to revoke Mr. Griffin’s probation was filed on September 11, 1985. Following a hearing on that matter, this court found that revocation was appropriate. The court’s order stated in part:

IT IS FURTHER ORDERED that the defendant is committed to the custody of the Attorney General or his authorized representative for a period of fifteen (15) months. The defendant will be remanded to the custody of the United States Marshal.
IT IS FURTHER ORDERED that the defendant will receive credit for any time served on the original sentence.

Order Revoking Probation, filed October 11, 1985, page 2.

The Court worded the Order in this manner to avoid any possible misunderstanding of the Court’s intention. The Court felt that if the prior 179 day term of incarceration was not mentioned, someone could reasonably wonder if the Court intended that he spend an additional 15 months of incarceration. If the Court had sentenced the defendant to 9 months without mentioning the prior 179 days, someone could wonder if the defendant was to receive credit for the prior term, thus resulting in a 3 month term. Unfortunately, but not surprising to the Court, it appears that the Bureau of Prisons has decided either that the Court’s intention is not clear, or that the Bureau’s guidelines take precedence and will be applied regardless of what the Court intended. The latter is more probable since it is inconceivable that the Court’s Order is ambiguous.

In their infinite wisdom, the Bureau’s staff has determined that Mr. Griffin must serve 15 months in addition to the prior 179 day term.

They have calculated Mr. Griffin’s sentence according to Bureau of Prisons policies and have determined that the sentences imposed totalled twenty one months, the fifteen months imposed on October 11, 1985 and the 179 days imposed on April 22, 1983. Once the maximum sentence is calculated to be twenty one months, the Bureau of Prisons policy allows the credit of time already served to be deducted, resulting in their calculation that Mr. Griffin must serve fifteen months on this sentence. This determination is the basis of the present motion to reduce the sentence.

Since it was counsel for Mr. Griffin who had the audacity to challenge the Bureau of Prisons calculation in this case, this Court directed him to obtain a written explanation from Mr. Paul Girvan, Records Office, Federal Correctional Institution, Big Spring, Texas, where the defendant is confined. Despite several requests, an explanation was not received. A probation officer was able to obtain a copy of the policy under which the Defendant’s sentence was computed. That policy and the accompanying memorandum are made a part of the record in this case. The Bureau of Prisons policy in issue is # 7617.1.

Although this court is hesitant to engage in long quotations of government policies, particularly those of the Bureau of Prisons, most of the regulation involved herein warrants quotation in full because of its literary and grammatical clarity:

Computation of Split Sentences
Section 3651 of Title 18, U.S.Code, is often referred to throughout the Bureau and institutions as the “Split Sentence” or “741” sentence procedure. The “741” phrase comes from Public Law 85-741 which was the Act of Congress that caused this part of Section 3651 to become law on August 28, 1958. It allows a “Split Sentence” to be imposed, i.e., a period of confinement followed by a period of probation. The court, “Upon entering a judgment of conviction of any offense not punishable by death or life imprisonment, if the maximum punishment provided for such offense is more than six months.may impose a sentence in excess of six months and provide that the defendant be confined in a jail-type institution or a treatment institution for a period not exceeding six months and that the execution of the remainder of the sentence be suspended and the defendant placed on probation for such period ... as the court deems best.
Jail time is applicable to all “Split Sentences.”
The initial confinement terms of “Split Sentences” cannot be aggregated with each other or with other sentences.
If an individual is recommitted as a probation violator, three different and distinct terms (original overall term, initial confinement term, and probation violator term imposed at the time of revocation) must be considered in determining the term in effect. In all cases, the sentence on revocation will be computed as beginning on the date initially committed to the “Split Sentence,” becoming inoperative on the date of release, and resuming on the date recommitted as a probation violator. The term in effect will be determined by adding the term of the initial confinement portion, as imposed, to the term imposed at the time of probation revocation, with the following restriction: UNDER NO CIRCUMSTANCE WILL THE TERM IN EFFECT EXCEED THE TERM OF THE ORIGINAL OVERALL SENTENCE.
In the three most common situations:
1) If a sentence of 5 years is imposed with the proviso that the defendant be confined in a jail-type institution for a period of six months with the balance suspended and placed on probation for 5 years, and he is returned as a probation violator to serve 5 years, the term in effect will be computed as five years.
2) If a sentence of 5 years is imposed with the proviso that the defendant be confined in a jail-type institution for a period of six months with the balance suspended and placed on probation for 5 years, and he is returned as a probation violator to serve 4Va years, the term in effect will be computed as five years.
3)If a sentence of 5 years is imposed with the proviso that the defendant be confined in a jail-type institution for a period of six months with the balance suspended and placed on probation for 5 years, and he is returned as a probation violator to serve 3 years, the term in effect will be computed as three years and six months.
All extra good time (including accrued seniority) and jail time credited to the “Split Sentence” shall also be credited to the term to be served as a result of the probation violation.

Bureau of Prisons policy 7617.1, January 29, 1974 (emphasis added).

The foregoing examples are apparently the way a sentence will be imposed by the Bureau of Prisons regardless of the Court’s intentions. This court has carefully examined and considered the policy. The court has also reviewed the statutory authority cited in that policy, 18 U.S.C. § 3651. The court notes the clear internal conflict in this policy. The policy states: “The initial confinement terms of “Split Sentences” cannot be aggregated with each other or with other sentences.” Yet, shortly thereafter, the policy directs prison officials to add the six month period on top of the sentence imposed by the court. If this is not aggregation of the initial confinement term with the second sentence, then this court does not understand the Bureau of Prisons use of the word “aggregate.” The court also fails to understand the distinction between example one and example two above. If the sentencing court determines that the probation violator should serve four and a half years, he will receive five. If the court decides to impose the five year sentence initially imposed, then the Defendant would serve only five years. The court cannot conceive of the reason for the distinction.

Bureau of Prisons policy 7617.1 eliminates the ability of the court to determine the maximum length of sentence to be imposed in a split sentence probation revocation case contrary to the statutory authority granted to the courts under 18 U.S.C. § 3653. It must be difficult for a Defendant to comprehend that when this court imposes a sentence, the Bureau of Prisons is going to increase that term by the six months that he has already served. Six months may not seem a substantial amount of time to the Bureau of Prisons but the court feels that even one day of incarceration is significant. A person's liberty must not be curtailed by the ambiguous policy #7617.1.

This court is not certain as to how to correct this sentence. It appears that the appropriate thing to do would be to determine the maximum period of time that this court believes that the Defendant should serve. The court should ignore the period of initial confinement of 179 days. This will allow the Bureau of Prisons to tack on the 179 day sentence and then immediately to give the Defendant credit for that same period of time, plus allowing this court to determine the maximum actual period that he will serve. This court is somewhat leery of this method however. The Bureau of Prisons could decide that this policy is invalid and no longer follow it. In that case, the Defendant would be released 179 days prior to what the court intends.

This court wonders if the order that the Defendant receive credit for the time already served has any impact on this case. Had the court not ordered the credit, would the Defendant now be facing a full term of twenty one more months of incarceration? In all likelihood not. However, after reading this policy the Court is not certain.

The Court’s dilemma in this matter is based not on this isolated incident. This is a recurring problem with the Bureau of Prisons. There have been several instances in the past twelve months where this court has been requested to reduce its sentences because the imposition of Bureau of Prison policies would result in the Defendant serving a longer sentence than the Court intended. In one case, this court was required to resentence a Defendant not less than three times and is still not certain that the court’s intended sentence is being carried out. The need for the repeated sentencings in the other case was prompted by this court’s reliance on Bureau of Prison personnel for assistance in wording the order to accomplish the court’s intended purpose. Twice the sentence was changed because it turned out that the Bureau’s staff had misinterpreted the guidelines and each time it resulted in an improper sentence being imposed. The Court is not blaming the employees of the Bureau, but, on the contrary, sympathizes with their confusion. If the personnel of the Bureau cannot understand the Bureau’s policies, the courts do not have a chance. This confusion has done nothing but add a tremendous amount of work for the court, the attorneys, and the probation officers. That extra work would be totally unnecessary if the Bureau of Prison personnel were permitted to use normal intelligent thought processes in determining the length of a sentence to carry out the court’s intent. Instead, the Bureau restricts them to legally unsupported, unintelligible and inconsistent policies.

Because the Bureau of Prisons policy 7617.1 as applied here has resulted in the Bureau deliberately ignoring this court’s sentencing instructions, the motion to reduce the sentence will be granted. So there can be no confusion, it is the intention of the court that the maximum period of incarceration for thisi Defendant following the revocation of his probation, is nine (9) months, not counting the prior 179 days.

IT.IS ORDERED that the motion to reduce sentence’ is granted. The judgment and sentence imposed on October 11, 1985 is amended as follows at page 2, lines 10 through 14.

IT IS FURTHER ORDERED that the Defendant is committed to the custody of the Attorney General or his authorized representative for a period of nine (9) months. The Defendant will be remanded to the custody of the United States Marshal.

      . Webster defines the word "aggregate” to mean (1) to collect or gather into a mass or whole; (2) to amount in the aggregate, to total. Webster’s New Collegiate Dictionary, 1979. Perhaps the Bureau of Prison’s definition is that used to describe an “aggregate” flower: clustered in a dense mass or head. Id.

      . Replacing these employees with computers would have the desirable effect of reducing budgetary requirements and the computers could undoubtedly impose the Bureau's guidelines re- • gardless of the sentencing Judge’s intentions.

      . The Court i¿ tempted to add: "The Defendant shall not receive credit for the prior period of incarceration," but this might confuse the Bureau.


author: MORAN, District Judge.

text:
    Dennis GROHS, Plaintiff, v. GOLD BOND BUILDING PRODUCTS, a DIVISION OF NATIONAL GYPSUM COMPANY, Defendant.
    No. 84 C 7999.
    United States District Court, N.D. Illinois, E.D.
    Feb. 18, 1986.
    Kathleen Bahúnas, Chicago, Ill., for plaintiff.
    Richard E. Lieberman and William M. O’Reilly, Ross & Hardies, Chicago, Ill., for defendant.
   MEMORANDUM AND ORDER

MORAN, District Judge.

Both sides in this age discrimination case have moved for summary judgment. Each supports his motion with exhibits, depositions and affidavits, most of which tend to shed more heat than light on the question of whether age was a determining factor in defendant’s decision to fire plaintiff. Because only a trier of fact can sort out what happened, both motions are denied.

I. Facts

Plaintiff’s complaint asks for a finding that he was discharged illegally because of his age and also that the discrimination was “willful.” Defendant denies the allegations and says that plaintiff was terminated because his abrasive personality would not fit into the new management style which it was introducing. A remarkable amount of the material submitted, extending even to portions of the deposition transcripts, is argumentative, directed at the opposing attorney. What follows are the most significant facts to the extent this court has been able to extract them.

Defendant Gold Bond, a division of National Gypsum Company, manufactures wallboard. Plaintiff Dennis Grohs began his employment at defendant’s plant in Waukegan, Illinois, in 1961. He became a foreman in 1968, mill superintendent in 1973, and board plant superintendent in 1979. His superiors consistently rated him competent at each annual review from 1969 on, and consistently gave him significant raises in pay. On the other hand, he seems to have been distinctly unpopular with other employees, both his fellow supervisors and those he supervised. According to Gold Bond’s evidence, for example, at a June 1981 supervisors’ dinner Grohs attempted to molest one female employee and propositioned another (Grohs denies both incidents). His subordinates apparently accused him of racist attitudes as well as insensitivity in general. The annual reviews, however, show only suggestions that he improve his supervisory style by, for example, taking courses in human relations. He survived the layoff of several supervisors in October 1981 and was given a raise for 1982. When Gold Bond decided to shut down its Waukegan facility in February 1982 because of a softening market for wallboard and spotty profitability, as well as labor difficulties, Grohs was one of only four employees retained from the work force to watch over the inactive plant. He also was used to train workers at another plant for short periods.

Grohs’ real difficulties apparently began when Gold Bond decided to reopen the plant in Spring 1983, and brought in Michael Ward from its Phoenix plant to oversee the startup. Ward’s intent, according to his testimony, was to promote a “family and team” relationship between supervisors and hourly employees, in place of what he understood to be the former hostile relationship. Ward’s supervisors gave him only 90 days in which to show success at Waukegan or the plant would be closed again. Ward had heard from persons formerly at Waukegan of Grohs’ alleged incidents of sexual harassment and other difficulties, he says, and determined that he could not afford to gamble that Grohs would fit into the new management style. Ward also felt that some equipment in the plant had been inadequately maintained during the closure, even though Grohs had personally assured him that it was ready for production. Ward discharged Grohs in late April 1983, after three weeks in Wauk-egan, explaining that Grohs had had “people problems.” Gold Bond’s labor relations lawyer sat in on the firing. The plant resumed production shortly thereafter, made it through its 90-day trial and apparently is still producing wallboard, though Ward has since been transferred to another plant.

Ward’s account, however, is not the only evidence on the circumstances of Grohs’ firing. Gold Bond maintains that when he was terminated Grohs was still board plant superintendent and he was not replaced. His duties were instead divided among several supervisory employees. However, there also is evidence that Grohs' actual position at the time of firing, and the position he would have occupied during the startup, was night security guard. During startup the plant only operated a day shift. Plaintiff thus fails to see the relevance of Grohs’ alleged abrasiveness to his actual duties. Other evidence tends to show that Ward’s management style included its own fair share of “people problems.” There are also some indications of problems in production during the startup which may have been traceable to an inexperienced staff. Further, Robert Sarvis, the former managing director of Gold Bond, has testified in two affidavits that during the spring of 1983 Robert Spitz, vice-president of operations, had developed a plan to discharge a number of employees over the age of 45 and bring younger persons into the company. Grohs was 51 in the spring of 1983; Spitz was the supervisor of both Ward and Sarvis. According to Sarvis, Spitz considered Grohs to be one of those older persons who ought to be discharged and told Ward so in April 1983.

II. Discussion

The Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., makes it “unlawful for an employer ... to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age.” 29 U.S.C. § 623(a)(1); see Western Air Lines, Inc. v. Criswell, 472 U.S.-, 105 S.Ct. 2743, 86 L.Ed.2d 321 (1985). The statute provides for double damages if the violation is “willful.” 29 U.S.C. § 626(b). The Supreme Court has defined a “willful” violation as one in which the employer either knew his conduct was prohibited by the ADEA or acted in reckless disregard of whether or not it was prohibited. A good faith effort to comply with the ADEA cannot produce a “willful” violation. Trans World Airlines, Inc. v. Thurston, 469 U.S. -, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985).

In spite of its broad coverage, the ADEA “was not intended as a vehicle for judicial review of business decisions.” Kephart v. Institute of Gas Technology, 630 F.2d 1217, 1223 (7th Cir.1980). An employer may discharge an older employee for any number of legitimate business reasons, including an abrasive personality which affects his relations with other workers. Parker v. Federal National Mortgage Ass’n, 741 F.2d 975 (7th Cir.1984). To succeed, a plaintiff in an age discrimination suit must show discrimination, i.e., that his age was, if not the sole factor, at least “a determining factor” in his employer’s decision. Id. at 980.

The method a plaintiff may use to prove discrimination depends in part on the circumstances surrounding the violation he alleges and in part on the type of evidence he has. Thurston, 469 U.S. at-, 105 S.Ct. at 622; McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 n. 13, 93 S.Ct. 1817, 1824 n. 13, 36 L.Ed.2d 668 (1973). The Act applies to many types of employment decisions, for example not only ordinary hiring and firing, but also reductions in force and failure to rehire. The proof required of a plaintiff will vary somewhat, depending on the type of decision. See, e.g., Tice v. Lampert Yards, Inc., 761 F.2d 1210 (7th Cir.1985) (reduction in force); Caldwell v. National Ass’n of Home Builders, 771 F.2d 1051 (7th Cir.1985) (failure to rehire). Further, a plaintiff may try to meet his burden of proof directly, by presenting direct or circumstantial evidence that age was a determining factor in his discharge, or he may use the indirect method of proof first developed for cases under Title VII of the Civil Rights Act, in which he initially seeks to raise a presumption of discrimination with a “prima facie case,” the employer rebuts with a legitimate nondiscriminatory reason for his action, and then plaintiff attempts to show that the reason was in fact a pretext. Thurston, 469 U.S. at -, 105 S.Ct. at 622; La Montagne v. American Convenience Products, Inc., 750 F.2d 1405, 1409 (7th Cir.1984).

The case at bar requires consideration of all these differences. Grohs was discharged when his employer was seeking to put together a new management team for a troubled plant, but also at a time when the plant was going back into production after a long shutdown. His situation thus presents aspects of both a reduction in force and a failure to rehire. Cf. Herman v. National Broadcasting Co., 744 F.2d 604 (7th Cir.1984) (film editors discharged and not rehired in shift to videotape). Grohs also offers direct evidence of discrimination with Sarvis’ testimony and, alternatively, evidence which would be employed in the indirect method of proof. Cf. La Montagne, 750 F.2d at 1410 (plaintiff using both methods).

On a motion for summary judgment the facts and inferences must be considered favorably to the party opposing the motion. Since here both parties have moved for summary judgment, that means this court must look at the facts in a light most favorable to each party. This court determines that plaintiff has sufficient direct evidence of discrimination to maintain his action against defendants’ motion for summary judgment. If a plaintiff carries his burden of proof with direct evidence of discrimination, the strength of his case on the indirect method of proof is irrelevant. Thurston, 469 U.S. at -, 105 S.Ct. at 622. Plaintiff’s only “burden” on defendant’s motion for summary judgment is to present evidence sufficient to prevent defendant from demonstrating that no genuine issue of material fact exists. By offering Sarvis’ affidavits, he has accomplished that. However, Gold Bond’s evidence creates enough disputed issues of fact that plaintiff cannot be granted summary judgment on either his direct or his indirect proof.

A. Direct Method of Proof

The elements of an ADEA action are vastly simplified when a plaintiff relies on direct evidence of discrimination. One is not concerned with whether the plaintiff has made out a prima facie case, or whether the employer’s legitimate nondiscriminatory reason meets his burden of persuasion, or whether the reason is a pretext, or with any of the other trappings of the indirect method of proof since that method does not apply. Thurston, 469 U.S. at -, 105 S.Ct. at 622. Instead, the plaintiff simply presents his evidence. The employer then may attempt to undermine the weight or value of that evidence as in any other legal proceeding. La Montagne, 750 F.2d at 1411-1412. Alternatively, he may try to prove one of the affirmative defenses under the statute itself, for example that “the differentiation is based on reasonable factors other than age” or that he discharged the plaintiff “for good cause.” 29 U.S.C. § 623(f); see Thurston, 469 U.S. at-, 105 S.Ct. at 623, and Criswell, 472 U.S.-, 105 S.Ct. 2743 (construing statutory defense of age as a bona fide occupational qualification).

Grohs’ direct evidence of discrimination is of course Sarvis’ testimony that Spitz had a plan to replace older workers with younger and that Spitz told Ward to implement it starting with Grohs. Defendant mounts two attacks on this evidence: one on Sarvis' credibility and the other on the relevance of Spitz’s desires since Grohs was fired by Ward.

The credibility argument is easily disposed of at this stage of the litigation. Sarvis’ first affidavit tells of Spitz’s plan, but only the second connects that plan to Ward and Grohs. Gold Bond asks this court to strike both affidavits since the second “contradicts” the first. The implication is that the second was produced solely to meet defendant’s relevance argument. One of Gold Bond’s briefs also mentions in passing that Sarvis left the company under a sizeable cloud, accused of serious misconduct. The appropriate response, however, is that all such questions of credibility are issues for the trier of fact and cannot be resolved at summary judgment. The affidavits do not squarely contradict each other and even a series of supplementary affidavits is not contradictory as a matter of law. See Prudential Insurance Co. of America v. Curt Bullock Builders, Inc., 626 F.Supp. 159, 168 (N.D.Ill.1985).

Gold Bond also points out that Ward, not Spitz, discharged Grohs, and so it is Ward’s motives that matter in this ADEA action. In La Montagne, 750 F.2d at 1412-1413, the plaintiff offered statements from a senior vice-president and a division manager apparently favoring younger over older men. The court nevertheless upheld a judgment notwithstanding the verdict, holding that the jury could not reasonably infer that these statements were relevant to the motivation of the officer who actually discharged the plaintiff. But La Mon-tagne is distinguishable since the officer who fired that plaintiff was the company president. There was no evidence to show, and no reason to infer, that his subordinates’ attitudes had influenced his decision. Here, however, Spitz distinctly outranked Ward. A trier of fact might reasonably infer that Spitz’s plan influenced Ward’s decision even without the second Sarvis affidavit that directly connects the two. Cf. Stumph v. Thomas & Skinner, Inc., 770 F.2d 93, 97 (7th Cir.1985) (impact of company president’s attitude). Evidence about Spitz’s attitude is therefore relevant.

Sarvis’ testimony alone, then, is enough to enable plaintiff to survive defendant’s motion for summary judgment. The allegation of willfulness also survives. Direct evidence of discrimination usually is a major factor in a finding of willfulness. Syvock v. Milwaukee Boiler Mfg. Co., 665 F.2d 149, 157 (7th Cir.1981). The presence of the company’s labor lawyer at Grohs’ termination also restricts any argument that the action was taken in ignorance of the law. See Herman, 744 F.2d at 607. Ward also admits to being aware of Grohs’ approximate age. See Syvock, 665 F.2d at 147; Herman, 744 F.2d at 609. It does not follow, however, that the evidence entitles plaintiff to summary judgment. Looking at the facts from the point of view most favorable to defendant, Gold Bond and Ward deny the truth of Sarvis’ testimony. In light of defendant’s other offerings, it is entitled to argue against Sarvis’ credibility before a trier of fact. Gold Bond also offers evidence of Grohs’ “people problems,” which will be more fully discussed below. These problems, particularly in the context of the Waukegan plant’s crucial 90-day trial, could be found a reasonable factor other than age, or a good cause for discharge. Following the standards for summary judgment, neither party prevails using the direct method of proof.

B. Indirect Method of Proof

The indirect method of proving employment discrimination first set out in McDonnell Douglas, 411 U.S. 792, 93 S.Ct. 1817, is more complex. The plaintiff first seeks to prove a prima facie case of discrimination, which varies somewhat depending on the facts of the case, but in a discharge case usually means (1) he was in the protected class of persons age 40 to 70, (2) he was doing his job well enough to meet his employer’s legitimate expectations, and (3) in spite of his performance he was discharged. Except in a reduction-in-force situation, he must also show that (4) he was replaced by a younger person (or, in a failure-to-rehire case, that a younger person was hired for a position for which he was qualified). La Montagne, 750 F.2d at 1409; Stumph, 770 F.2d at 96. A prima facie case gives rise to a presumption of discrimination, which defendant then seeks to rebut by articulating a legitimate nondiscriminatory reason for the discharge. If defendant produces such a reason, then the plaintiff must prove that the reason given was merely a pretext to cover discrimination, for example by showing that the reason is not believable or that discrimination was the likelier motive. La Montagne, 750 F.2d at 1409; Golomb v. Prudential Insurance Co. of America, 688 F.2d 547 (7th Cir.1982).

This court has already determined above that Gold Bond’s motion for summary judgment cannot be granted. However, plaintiff also could not receive judgment as a matter of law on that evidence alone. We now examine the facts as they would appear using the indirect method of proof, to see if plaintiff could yet prevail at this stage. Because there are disputed issues of fact, he cannot.

Of all the elements of the indirect method of proof, only two are undisputed: that Grohs was in the protected class, and that he was discharged. Gold Bond maintains that plaintiff has no prima facie case in part because he was not replaced by a younger person. That argument, however, is not decisive. In fact, defendant says that Grohs was not replaced at all. Instead, in the new management philosophy, the duties of board plant superintendent were parceled out among several persons. If true, then the factual situation is sufficiently close to a reduction in force so that Grohs would not be required to prove the fourth part of a prima facie case. If a person’s job is eliminated, he obviously cannot show that he was replaced by anyone, younger or older. He nevertheless may be a victim of discrimination if age was a determining factor in deciding who would stay and who would go. In such cases, then, a plaintiff need not show replacement. Stumph, 770 F.2d at 96-97.

On the other hand, if Gold Bond was streamlining its operations, that could impact on the third part of the prima facie case. Grohs points to his annual reviews, and his consistent raises, as evidence that he was performing up to his employer’s legitimate expectations. For purposes of winning a summary judgment, that may not be enough. Cf. La Montagne, 750 F.2d at 1414. A change in the nature of operations at a plant which is unprofitable is a perfectly legitimate business decision. Once the decision to trim is made, then the employer’s expectations may legitimately rise to some extent. The Seventh Circuit in Tice, 761 F.2d at 1217, made it clear that what matters are the circumstances at the time of termination. The plaintiff there, a mill shop foreman, argued to no avail that the retention of a younger employee to drive the company truck when the mill shop was shut down, rather than himself, was an ADEA violation. The court noted that an employer may legitimately retain only those persons best qualified for, or already occupying, the limited number of positions it still has. The ADEA imposes no affirmative duty to create a job or bump another employee for the benefit of an older worker, even if that worker has performed competently. See also Herman, 744 F.2d at 609. Gold Bond offers evidence that Grohs had consistently been weak in employee relations, normally an important skill for a supervisor, and that he had recently failed in some .maintenance tasks while the plant was shut down. An inference that Grohs was not qualified to take a place on the new management team would not be far-fetched.

In any case, the shift to a new management style in which ability to relate to fellow employees would be highly valued, plus Grohs’ apparent track record of abrasiveness, constitutes a legitimate nondiscriminatory reason for the discharge. In the indirect method of proof, an employer faced with a prima facie case has merely a burden of production. Virtually any reasonable articulation of a nondiscriminatory justification for the discharge places the burden back on the plaintiff to show pre: text. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The Seventh Circuit has already considered facts quite similar to those in the instant case more than enough to meet that burden. In Parker, the plaintiff, a senior loan representative, had consistently been rated “Excellent” or “Superior,” though the records also noted difficulty in interaction with subordinates. He survived one reorganization of management but not the next. The employer thought others were more qualified. The plaintiffs personality flaws alone were a legitimate nondiscriminatory reason for the decision. 741 F.2d at 977, 979. See also La Montagne, 750 F.2d at 1414.

Grohs would then have the burden of showing that the reasons Gold Bond offers are pretexts. He need not demonstrate that the reasons have no basis in fact. Golomb, 688 F.2d at 551. Rather, he can show that they did not really motivate the discharge, or that even if they were factors, age must have been a determining factor, because standing alone they were not enough to motivate a discharge. Evidence which shows that the events the employer cites were so far removed in time that they could not have been the whole cause of the discharge, or that the reason given applied with equal force to another employee who was not fired, tends to show pretext. La Montagne, 750 F.2d at 1414-1415. Since this case has aspects similar to a failure to rehire, Grohs can also attack the reasons with evidence that those who were actually given positions were less qualified and younger than he was. Herman, 744 F.2d at 609-610.

Unquestionably Grohs has some evidence which tends to show pretext. The incidents of alleged sexual harassment of female employees, for example, came in June 1981, while Grohs was not discharged until April 1983. And, while general evidence of job competence used to establish the prima facie case cannot merely be repeated in an effort to show pretext, La Montagne, 750 F.2d at 1414, nevertheless it is striking that Grohs not only was not formally reprimanded after the alleged incidents, but also survived one layoff and was given another competent rating and raise. Indeed, Grohs became one of the few persons to keep a job after the plant was closed. Plaintiff also supplies evidence tending to indicate that the flaw of “people problems” applied with equal force toward Ward himself. Apparently all the persons who did receive supervisory positions in the revitalized Waukegan plant had fewer years of experience than Grohs. Also, Sarvis’ testimony about Spitz’s negative attitude toward older workers is of course relevant to a showing of pretext. See Stumph, 770 F.2d at 96; Herman, 744 F.2d at 609.

The question, however, is whether plaintiff has eliminated all disputed issues of material fact so that this court could grant him judgment as a matter of law. For that purpose this court must draw all reasonable inferences in favor of Gold Bond. See United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). From that point of view, as noted above, one cannot even be sure that Grohs has established a prima facie case. A trier of fact could reasonably infer that Gold Bond had decided to shift its management style from one of relative insensitivity toward workers’ needs and toward their complaints of sexual or racial harassment, to one which showed more concern. That would be a legitimate business decision, and, indeed, the public policy against discrimination would encourage greater employer sensitivity to sexual or racial slurs by supervisors. Grohs’ history of abrasiveness — no significant handicap under the old style — could have strongly tended to disqualify him for supervisory work under the new. The “people problems” would not have been a major issue while the plant was shut down, but they could have loomed large as it moved toward resumption of production, especially if the plant had only 90 days in which to prove itself. It hardly seems appropriate at summary judgment to penalize an employer under the ADEA for what might have been an effort to comply with the spirit of Title VII of the Civil Rights Act.

Much the same can be said of plaintiff’s efforts to show pretext. He has, for example, supported with his own and other’s affidavits the stance that his actual position at the time of firing was security guard. Gold Bond denies it. In any case, that evidence cuts two ways. On one hand, if Grohs was a nighttime security guard, then it is more difficult to believe that “people problems” were sufficient reason to fire him. On the other, it shows that management was being revamped. If Grohs was qualified, he was qualified for board plant superintendent. Gold Bond had no duty to make him a security guard. Cf. Tice, 761 F.2d at 1217. Plaintiff also does not deny the existence of maintenance problems when Ward began to reopen the plant, but, rather, seeks to place them outside Grohs’ responsibility by pointing to the time Grohs spent away from Waukegan on company business. However, an employer’s general fairness in employment decisions is not the question in an ADEA action. Ward testified that he asked Grohs if some machinery was ready to make wallboard; Grohs said it was, and it was not. Ward could have decided that Grohs could not be trusted to inform himself before speaking. Fair judgment or not, given the pressures of the startup, a trier of fact could find that incident alone a sufficient reason for Grohs’ discharge.

These problems apply with special force to plaintiff’s allegations of willfulness. Even if plaintiff could successfully show that Gold Bond’s proffered reasons were pretextual, that showing would not require a finding that the violation was willful. At this stage he would need to eliminate all conceivable explanations for the discharge other than discrimination. Syvock, 665 F.2d at 157; cf. Thurston, 469 U.S. at-, 105 S.Ct. at 626. As the above discussion shows, he has not.

As the Supreme Court has noted, determining intent and motive in a discrimination case “is both sensitive and difficult.” United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983). When a material issue of fact in a discrimination case involves any weighing of conflicting indications of motive and intent, summary judgment cannot be granted. Stumph, 770 F.2d at 97; Kephart, 630 F.2d at 1218. Plaintiff says he was fired because of his age and offers Sarvis’ testimony in support. Defendant denies it and offers instead its desire to reopen the Waukegan plant with a new management team, using a new management style. Either motive could explain Grohs’ discharge. They conflict, and this court cannot weigh them. In fact, the true reason for Grohs’ firing is far from clear. Cf. Herman, 744 F.2d at 610. Such a case must go to a trier of fact; summary judgment cannot resolve it.

III. Conclusion

Plaintiff’s motion for summary judgment and defendants’ motion for summary judgment are both denied.


author: TELESCA, District Judge.

text:
    Vincent MORELLO, Plaintiff, v. Charles JAMES, Superintendent of the Collins Correctional Facility, Corrections Officer J. Nowakawski, and Thomas Coughlin, III, Commissioner of the New York State Department of Correctional Services, Defendants. Vincent MORELLO, Plaintiff, v. Harold J. SMITH, Superintendent of the Attica Correctional Facility, Commissioner Thomas Coughlin, III, and Unknown Correctional Officers, Defendants.
    Nos. CIV-85-1430T, CIV-85-1454T.
    United States District Court, W.D. New York.
    Feb. 19, 1986.
    Vincent Morello, pro se.
    Robert Abrams, Atty. Gen. of State of N.Y., Albany, N.Y. (Charles D. Steinman, Asst. Atty. Gen., Rochester, N.Y., of counsel), for defendants.
   DECISION AND ORDER

TELESCA, District Judge.

These two civil rights actions present a question of recurring concern for federal district courts: Does the doctrine of Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), bar a federal civil rights action for the theft or destruction of a prisoner’s legal materials by correctional officers when the State provides an adequate post-deprivation remedy?

BACKGROUND

In these two pro se civil rights actions, which are consolidated for the purposes of this decision, Vincent Morello alleges the following facts. In the early morning of November 6, 1983, while Morello was incarcerated at'the Collins Correctional Facility, he completed work on a brief for an appeal he had pending before the Appellate Division of the New York Supreme Court, Fourth Department. Later that day, before his appellate brief could be notarized, Morello was segregated from the general population and placed in confinement. All of his property was “packed up,” and placed in another room by Corrections Officer Nowakawski.

The following day, Morello was transferred to the Attica Correctional Facility. He did not receive any of his personal belongings until six days later, on November 13, 1983. When Morello’s property was finally turned over to him, two of his eleven legal folders were missing. At some point during his transfer from Collins to Attica, Morello alleges that as yet unidentified correctional officers searched his bags, and arbitrarily stole various items of his personal property, including his appellate briefs and records of a phone call made by his attorney to the Niagara Falls police. Also taken were all of his notes, research materials, and rough draft worksheets. Morello alleges that the loss caused him irreparable harm in perfecting his appeal, since he had received legal assistance in the preparation of his appellate brief that could not be replaced.

Morello’s complaint, brought pursuant to 42 U.S.C. § 1983, seeks punitive and compensatory damages, as well as other appropriate relief, for the “theft and removal” of his appellate pro se brief and research.

Presently pending before me is a motion by the defendant prison officials to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. Defendants cite Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) and Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) for the proposition that the intentional or negligent deprivation of a prisoner’s property does not violate the prisoner’s constitutional rights where adequate post-deprivation remedies exist under State law.

DISCUSSION

It is by now familiar ground that pro se complaints must be liberally construed, and should not be held to as rigorous a standard as formal pleadings prepared by an attorney. Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 175, 66 L.Ed.2d 163 (1980); Salahuddin v. Coughlin, 781 F.2d 24, 28 (2d Cir.1986). When subjected to such a liberal construction, Morello’s complaint may be fairly read as asserting two distinct constitutional claims. First, as the defendants’ argument implicitly acknowledges, Morello’s statement of facts may be interpreted as asserting a claim that he was deprived of property without due process of law, in violation of the Fourteenth Amendment to the United States Constitution. In addition, Morello’s pro se complaint can also be reasonably read to allege that State prison officials intentionally violated his constitutional right of reasonable access to the courts. See Washington v. James, 782 F.2d 1134, 1138-39 (2d Cir.1986). Nevertheless, defendants argue that dismissal of the entire complaint is compelled under the authority of Parratt v. Taylor and its progeny, since the State of New York provides adequate post-deprivation remedies for the destruction of Mor-ello’s legal materials. For the reasons that follow, I am compelled to accept the defendants’ position, despite serious misgivings, by controlling Second Circuit authority.

After careful consideration, this Court is constrained to grant defendants’ motion on the authority of Love v. Coughlin, 714 F.2d 207 (2d Cir.1983) (per curiam), a case which is virtually indistinguishable from the factual and legal issues presented by Morel-lo’s complaint. The plaintiff in that case, John Love, Jr., filed a pro se civil rights complaint concerning the loss of two of his three duffel bags during a transfer within the New York State prison system. The bags allegedly contained various items of personal belongings, including legal documents and communications pertaining to four civil and two criminal lawsuits. Love sought compensatory and punitive damages from State correctional officers for failing to safeguard his property from theft or loss. The plaintiff in that case specifically alleged a claim of “interference with his access to the courts,” and emphasized that the theft or loss of prisoners’ property was a “recurring” problem. Id. at 208.

Despite Love’s allegations of ongoing interference with his access to the courts, the Second Circuit Court of Appeals held that dismissal of the entire complaint was required by Parratt, which it cited for the general proposition that “no civil rights action lies” for the deprivation of a prison inmate’s “personal belongings” by correctional officers, if the State provides an adequate compensatory remedy. Id. at 208-209. By clear implication, the court rejected without discussion the plaintiff’s argument that Parratt should not apply to the theft or loss of his legal materials, and the concomitant obstruction of his access to the courts. Indeed, the Court of Appeals held that the inmate’s pleadings, liberally construed, were so “clearly foreclose[d]” by Parratt that the District Court properly dismissed the complaint sua sponte without service of process upon the named defendants. Id.

The factual background and legal issues which were presented in the Love case simply cannot be distinguished in any meaningful way from the case now before me. On the authority of that controlling Second Circuit precedent, therefore, this Court is bound by the doctrine of stare decisis to accept defendants’ position that Morello’s complaint, liberally construed, is foreclosed by the Parratt doctrine, since New York State provides adequate post-deprivation remedies in the Court of Claims. Accordingly, like the Court of Appeals in Love, I need not decide whether this prisoner complaint has alleged facts which would otherwise be adequate to establish an actionable violation of his constitutional right of reasonable access to the courts.

Although Love still retains its vitality as controlling authority within this Circuit, its reasoning is in need of re-examination, since it rests on the questionable assumption that Parratt is generally applicable to the deprivation of any of a prisoner’s “personal belongings,” including papers pertaining to judicial proceedings.

From a constitutional perspective, all property is not created equal. The Parratt case, for example, involved the loss of a prisoner’s mail order hobby kit. Since no substantive constitutional rights are implicated by the deprivation of a prisoner’s hobby materials per se, the only constitutional issue before the court in Parratt was whether the inmate had been deprived of property “without due process of law,” in violation of the Fourteenth Amendment. Id., 451 U.S. at 536-37, 101 S.Ct. at 1913-14. There are certain other types of “personal belongings,” however, which a prisoner is entitled to possess by virtue of specific substantive constitutional guarantees. For example, the Free Exercise Clause of the First Amendment protects a prisoner’s possession of personal property relating to religious observance, such as a Bible or a crucifix. Hudson, supra, 104 S.Ct. at 3211 n. 13 (Stevens, J., concurring in part and dissenting in part). Since the mere possession of this type of personal property is constitutionally protected, its intentional destruction or deprivation by State officials (if unaccompanied by a compelling justification) is itself a violation of a substantive constitutional right, regardless of what “procedural” protections are provided before or after the deprivation.

It is clearly settled that a prisoner’s legal material and papers are among the types of personal property entitled to substantive due process protection. As a corollary of the First Amendment right “to petition the Government for a redress of grievances,” U.S. Constitution Amendment 1, prisoners have a constitutional right of reasonable access to the courts, a right prison officials cannot unreasonably obstruct and that states have affirmative obligations to protect. Hudson v. Palmer, supra, 104 S.Ct. at 3198; Bounds v. Smith, 430 U.S. 817, 821-23, 97 S.Ct. 1491, 1494-95, 52 L.Ed.2d 72 (1977); Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969); Washington v. James, 782 F.2d 1134, 1138-39 (2d Cir.1986); Chandler v. Coughlin, 763 F.2d 110, 114 (2d Cir.1985). In order to state a cause of action under 42 U.S.C. § 1983, a plaintiff need only allege, as Mor-ello apparently has here, that prison officials acting under color of State law denied or obstructed his right to present his claims to the courts. Johnson, supra, 393 U.S. at 485, 89 S.Ct. at 748; Washington, supra, at 1138. Even before the Second Circuit’s decision in Love, it was settled that prison authorities may not interfere with this constitutional right by confiscating a prisoner’s legal books. Bayron v. Trudeau, 702 F.2d 43, 45-6 n. 3 (2d Cir.1983) (citing Corby v. Conboy, 457 F.2d 251 (2d Cir.1972)).

Since the prisoner in Parratt alleged only that he had been deprived of property without due process of law, and could claim no other constitutional right to hobby kit materials, the Parratt opinion only specifies those conditions under which post-deprivation State remedies will “satisfy the requirements of procedural due process.” Id., 451 U.S. at 537, 539, 101 S.Ct. at 1914 (emphasis added). By its own terms, therefore, the logic of the Parratt doctrine is simply inapplicable to alleged violations of substantive constitutional protections of the Bill of Rights, made applicable to the States by the Due Process Clause of the Fourteenth Amendment. Although the Supreme Court has not yet made that point explicit, every Circuit Court of Appeals but the D.C. Circuit has decided, at least by way of dictum, that Parratt is irrelevant to an alleged violation of some substantive constitutional proscription. Riley v. Jeffes, 777 F.2d 143 (3d Cir.1985); Gilmere v. City of Atlanta, 774 F.2d 1495, 1499 (11th Cir.1985) (en banc), Robins v. Harum, 773 F.2d 1004, 1009 (9th Cir.1985); O’Quinn v. Manuel, 773 F.2d 605, 608 (5th Cir.1985); Gumz v. Morrissette, 772 F.2d 1395, 1400 n. 3 (7th Cir.1985); Pruitt v. City of Montgomery, 771 F.2d 1475, 1484-85 n. 19 (11th Cir.1985) (en banc); Wilson v. Beebe, 770 F.2d 578, 585 (6th Cir.1985) (en banc); L & H Sanitation v. Lake City Sanitation, 769 F.2d 517, 523-24 (8th Cir.1985); Lavicky v. Burnett, 758 F.2d 468, 472 n. 1 (10th Cir.1985); Davidson v. O’Lone, 752 F.2d 817, 825 (3d Cir.1984) (en banc), aff'd sub. nom. on other grounds, Davidson v. Cannon, — U.S.-, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986); Augustine v. Doe, 740 F.2d 322, 325-27 (5th Cir.1984); Daniels v. Williams, 720 F.2d 792, 796 n. 3 (4th Cir.1983), aff'd on rehearing, 748 F.2d 229 (4th Cir.1984) (en banc), aff'd on other grounds, — U.S. -, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); Creative Environments, Inc. v. Estabrook, 680 F.2d 822, 832 n. 9 (1st Cir.1982), cert. denied, 459 U.S. 989, 103 S.Ct. 345, 74 L.Ed.2d 385 (1982).

The foregoing principles were recently applied to the destruction of prisoner property in Hall v. Sutton, 755 F.2d 786 (11th Cir.1985). The Eleventh Circuit held in that case that Parratt barred a prisoner’s claim that his undershorts were confiscated without due process of law, since Alabama provided adequate remedies for the alleged property deprivation. The Court also held, however, that the District Court had improperly relied on Parratt to dismiss the inmate’s claim that the same prison officials confiscated his tennis shoes in retaliation for past litigation. Since the retaliation assertion implicated the inmate’s substantive constitutional right to meaningful access to the courts, the Court of Appeals held that the deprivation of the tennis shoes was “no longer a mere due process claim,” and thus was not barred by Par-ratt and the availability of state remedies. Id., at 787-88.

On the basis of the reasoning set forth above in this decision, I am in complete agreement with the Eleventh Circuit’s hold- . ing in Hall that Parratt is entirely inapplicable to a prisoner’s claim that the destruction of his personal belongings has in some way obstructed his right to present his grievances to the courts. Nevertheless, I am obligated to follow the contrary holding of the Court of Appeals from this Circuit in Love. “The doctrine of stare decisis compels district courts to adhere to a decision of the Court of Appeals of their Circuit until such time as the Court of Appeals or the Supreme Court of the United States sees fit to overrule the decision.” Burroughs v. Holiday Inn, 621 F.Supp. 351, 354 (W.D.N.Y.1985), (quoting Owens-Illinois, Inc. v. Aetna Casualty and Surety Company, 597 F.Supp. 1515, 1520 (D.C.D.C.1984)). Accord, Ithaca College v. N.L.R.B., 623 F.2d 224, 228 (2d Cir.1980), cert. denied, 449 U.S. 975, 101 S.Ct. 386, 66 L.Ed.2d 237 (1980); 1B Moore’s Federal Practice, ¶ 0.402[1] at 12-14. Although the holding of Love v. Coughlin appears to be worthy of careful reconsideration and possible modification, that privilege is one which rests with the Court of Appeals.

CONCLUSION

Morello’s complaint, to the extent that it alleges a claim that he was deprived of his property without due process of law, is clearly foreclosed by Parratt v. Taylor and Hudson v. Palmer, since the State of New York provides a meaningful post-deprivation remedy in the Court of Claims. Although the complaint may also reasonably be read to allege a claim of interference with his access to the courts, that claim is also barred by the Second Circuit’s extension of the Parratt doctrine in Love v. Coughlin. Accordingly, the defendants’ motion to dismiss the complaint filed in these two actions is granted, pursuant to Fed.R.Civ.P. 12(b)(6).

ALL OF THE ABOVE IS SO ORDERED.

      . The two complaints filed by Morello in these actions are nearly identical. The statement of claim, the requested relief, and the attached exhibits in each are verbatim replicas of one another. The only difference between the two complaints is that CIV-85-1430T was brought against officials responsible for the Collins Correctional Facility, and CIV-85-1454T was brought against officials responsible' for the Attica Correctional Facility.

      . The following statement of facts is compiled from Morello’s "Statement of Claim” and the exhibits attached to his complaint, including copies of letters written by him to State officials. In light of Morello’s pro se status, this Court is obligated to read his complaint as adopting the factual allegations in those exhibits. LeGrand v. Evan, 702 F.2d 415, 416 n. 3 (2d Cir.1983).

      . In the alternative, defendants also move for summary judgment pursuant to Fed.R.Civ.P. 56. I decline to treat the motion as one for summary judgment, however, since it is not supported by any affidavits or evidence beyond the pleadings, and is clearly directed only to the sufficiency of plaintiff’s allegations on their face. See Fed.R.Civ.P. 12(c).

      . Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) explicated the requirements of procedural due process in a case involving the negligent destruction of a prisoner’s personal property. The Parratt holding was later extended to cover intentional destruction of property in Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), and subsequently confined to deprivations involving something more than mere negligence in Daniels v. Williams, — U.S.-, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). (There is no question that Morello’s complaint is not barred by the Supreme Court’s recent decision in Daniels, since defendants concede in their memorandum of law that this complaint may be interpreted as alleging that his property was intentionally destroyed.)
      Throughout this decision, I mean by “the Par-ratt doctrine” to refer to the foregoing trilogy of cases.

      . The plaintiff in Love sued virtually the same cast of characters named as defendants by Mor-ello: Commissioner Thomas Coughlin, the Superintendent of the correctional facility where he was transferred, and assorted known and unknown correctional officers involved with the transfer.

      . The reasoning of the Love decision therefore applies with even greater force to the instant Rule 12(b)(6) dismissal motion, since the defendants in this case have been served, and this Court has the benefit of their answering papers. See Massop v. Coughlin, 770 F.2d 299, 301 (2d Cir.1985); Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir.1983); Bayron v. Trudeau, 702 F.2d 43, 46 (2d Cir.1983).

      .Indeed, in at least two significant respects, the inmate’s allegations presented an even stronger case than this one. The prisoner in Love, unlike Morello, explicitly alleged that he had been deprived of legal materials pertaining to six different lawsuits, and that he faced a continuing threat of theft or loss. For those reasons as well, the Love holding applies with even greater force here. See also, n. 6, infra.

      The only other difference between the two cases is the fact that the prisoner in Love apparently alleged only that his legal materials were lost through "negligent conduct," while Morello alleges that his property was intentionally searched and stolen. That distinction is entirely immaterial to the applicability of the Parratt doctrine since the Supreme Court’s later holding in Hudson, supra.

      . This point was made explicitly by Justice Stevens, joined by three other justices and without contradiction by the majority opinion, in Hudson v. Palmer. While dissenting on other grounds, four members of the court noted that the alleged deprivation in that case of a prisoner’s personal belongings — including "legal materials" — implicated his substantive constitutional right to "reasonable access to legal materials as a corollary of the constitutional right of access to the courts.” Id., 104 S.Ct. at 3208 n. 3, 3211 (dissenting opinion).
      Although the inmate in Hudson had originally alleged a claim of infringement of his right of access to the courts by the destruction of his legal materials, that claim was dismissed on the merits by the Court of Appeals below. Palmer v. Hudson, 697 F.2d 1220, 1221 n. 1 (4th Cir.1983). That dismissal of the inmate's "access to the courts" claim was not raised in his cross petition for a writ of certiorari, and so the Supreme Court decided only whether the alleged propérty deprivation constituted "a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment." Id., 104 S.Ct. at 3204.

      . In Washington and Chandler, the Second Circuit Court of Appeals has recently reaffirmed its disfavor for the hasty dismissal of pro se civil rights complaints which can reasonably be read to allege an interference with a prisoner's right of access to the courts. Nevertheless, neither of those opinions can be responsibly interpreted as overruling the Love decision. Both of those recent cases only involved the threshold pleading requirements to state a claim for violation of the right of access to the courts; neither case discussed the possible applicability of the Par-ratt doctrine to such claims.

      . Similarly, for the reasons described infra, n. 8, the Supreme Court’s later decision in Hudson only addressed the implications of post-deprivation remedies for “the procedural requirements of the Due Process Clause of the Fourteenth Amendment.” Id., 104 S.Ct. at 3204 (emphasis added).

      . While dissenting on other grounds, four Supreme Court justices stated in dictum, without contradiction from the Court majority, that Par-ratt does not “apply to conduct that violates a substantive constitutional right.” Hudson, supra, 104 S.Ct. at 3208 n. 4 (Stevens, J. concurring in part and dissenting in part, joined by Justices Brennan, Marshall and Blackmun).

      .By clear implication, the Second Circuit Court of Appeals recently made the same point for the first time, albeit in dictum, in Signet Construction Corp. v. Borg, 775 F.2d 486 (2d Cir.1985). The Court noted that adequate state post-deprivation remedies may satisfy a person’s “procedural due process rights” under the Par-ratt doctrine, but added that ”[t]he relevance of state remedies for this limited purpose does not impinge upon the rule that exhaustion of state remedies is not a prerequisite to a § 1983 suit." Id., at 489, 490 (emphasis added) (dictum).

      . Morello may invite the Court of Appeals to do so himself, by filing a Notice of Appeal with the Clerk of this Court, United States Courthouse, Rochester, New York 14614, without payment of filing fees, within thirty (30) days after the entry of judgment in this action.