author: GILES, District Judge.

text:
    Mary C. HYDE v. PROTECTIVE INSURANCE CO.
    Civ. A. No. 84-2171.
    United States District Court, E.D. Pennsylvania.
    Nov. 20, 1984.
    Gordon Gelfond and Alfred Sarowitz, Philadelphia, Pa., for Mary C. Hyde.
    Joseph G. Manta and Joel Schneider, Philadelphia, Pa., for Protective Ins. Co.
   MEMORANDUM

GILES, District Judge.

Plaintiff has brought this action claiming that she was the victim of sex and age discrimination. Jurisdiction is founded upon Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et. seq. and the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. After a Bench Trial and consideration of the parties’ post-trial submissions, the court finds that plaintiff has not carried her burden of proof as to either claim and, accordingly, shall enter judgment in favor of defendant.

The following constitutes the court's findings of fact and conclusions of law.

Protective Insurance Company is engaged exclusively in the business of fleet truck insurance, offering personal injury and property damage coverage for over-the-road trucking operations. It does not employ claims adjusters. Rather, it contracts with independent claims adjusters to conduct field investigations of accident scenes. They gather relevant information and report either to the defendant’s Branch or Headquarters Office their findings and recommendations. Within the company, there are claims supervisors who, with the adjuster’s information, evaluate claims, negotiate with claimants or their attorneys, and correspond and cooperate with attorneys defending claims for the insurer. The claims supervisors are responsible for interpreting the terms and provisions of policies of Protective and those of other insurance companies whose insureds may be involved in an accident. In the branch offices, the claims supervisors have secretaries to whom they delegate various clerical aspects of the claims work.

Mrs. Hyde held such a clerical post in the Wayne, Pennsylvania office. At the time of her separation from the company she had over 15 years of service. She was paid on an hourly basis. Her immediate supervisor was Robert Zucosky the claims supervisor. He was the only claims supervisor until January, 1983. Mr. Zucosky reported directly to the Vice-President of Claims at the Home Office on all claims decisions. The manager of the entire office, which included marketing and underwriting functions, was Charles Bernier. He was hired in 1981 as Branch Manager. Mr. Bernier was not directly responsible for the day-today operations and decision-making on the claims work, nor was he familiar with the standards used by the company in settling claims.

Mrs. Hyde contends that her troubles started with Mr. Bernier’s arrival. She submits that he gradually and purposefully increased her workload beyond her physical ability and endurance so as to cause her to resign. She could not complete all assignments within any work day, even with overtime hours and weekend work. She contends that Mr. Bernier came to the Wayne office, with instructions from Protective’s president, Gary Miller, to get rid of her because younger women could be hired for less money to perform the clerical work. She does not attribute an illegal motive to her immediate supervisor, Mr. Zucosky, in his assigning of work to her. She contends that many additional duties were assigned directly by Mr. Bernier in total disregard of her continual plea that she was already overburdened and could not reasonably do everything demanded.

This workload steadily increased, according to her, from the latter part of 1982 through July 5, 1983 when she testified that she was fired by Mr. Bernier. Her workload included correspondence and other clerical duties relating to the offices’ accounts receivables. Several weeks prior to her separation, it had come to Mr. Bernier’s and Mr. Zucosky’s attention, through checking by the Home Office, that the Wayne office’s over 90-day accounts receivables were far more numerous for May and June, 1983 than for the preceding months. In April, the receivables were around $42,-000. In May, they advanced to $109,000. In June they rose to $125,000 and in July, they peaked at $165,000. The effective management of the office was questioned by the Home Office because of this lapse in the collection of the accounts receivables. On June 20, 1983, when questioned about this lapse by Mr. Zucosky, Mrs. Hyde explained that she had been unable to perform the 90-day accounts receivable work for two weeks because of other job responsibilities. However, she had not told anyone that this work had gone unattended. Mr. Zucosky told her that because of her failure to do the accounts receivable work and to tell her superiors that she had not processed this work, he would not recommend that she receive an annual increase. At the same meeting he criticized the quality and quantity of her work, telling her, in effect, that she was not working effectively or efficiently. He noted that other important work had also been left undone. She threatened to resign if she did not get a raise.

Mrs. Hyde had in all previous years received an annual increase. She had, in her mind, been a faithful and hard working employee, working even beyond her fullest capacity in an effort to keep up with her workload. Her reaction to the prospect of not getting a raise was, no doubt, a mixture of anger and disbelief. After a few weeks, when she did not get an increase, she went to Mr. Bernier’s office to inquire whether there might have been some oversight. He told her that she was not going to get a raise.

At this point the testimony of Mrs. Hyde and Mr. Bernier differs substantially. Mrs. Hyde testified that after being told that she was not going to get a raise, she explained to Mr. Bernier that she needed the raise badly because she could hardly manage on her current salary. Mr. Bernier responded that she should have realized all along that he was trying to force her out; that the Home Office wanted her fired because she was too old and younger women could be hired for less money to do the same work; and that he was simply following orders in forcing her to resign. Mrs. Hyde wanted to continue working but Mr. Bernier told her to go home and not to return. Before she left he asked her to sign a letter of resignation which she refused to do. He also stated that if she ever repeated that she had been fired because of her age that she would be “blackballed” in the insurance industry by the company and she would never get another job.

Mr. Bernier, on the other hand, testified that Mrs. Hyde came to his office uninvited and inquired about a raise. He told her that she was not going to get a raise because of the recent accounts receivables problem. Mrs. Hyde responded that if she did not get a raise she would quit. When Mr. Bernier would not give in, but repeated that she would not get a raise, Mrs. Hyde said she was quitting and left his office. She did not go home or return to her desk immediately. She went to the ladies’ room. While she was there, he called the Personnel Department of the Home Office which advised him that, in view of her stated resignation, he should attempt to obtain from her a letter of resignation. Such a letter was prepared by Mr. Bernier’s secretary. When it was presented to Mrs. Hyde, she was angry that it had been prepared, and, therefore, seen by. another secretary. He recalled that she stated upon leaving the premises that she would sign it later and send it in.

Mrs. Hyde also testified that after leaving she was so distraught that she needed a doctor-prescribed sedative. She was unable to return to work the next day. She did call that day or the next, spoke to Mr. Bernier and offered to come back to work. She was told that she could not because getting' rid of her was what the Home Office wanted. He demanded her keys to the office. He also told her that she would have to come into the office to get her final check, herself, and that her daughter could not pick it up for her. She called, the office on one occasion before going to get her check and spoke to a visiting officer from the Home Office. She repeated all that she had been told by Mr. Bernier, that is, that she had been fired because of her age at the insistence of the Home Office. This charge went unanswered in the telephone call. She arranged to meet the officer that day at a local restaurant but he did not show up as agreed.

Mrs. McGough, plaintiff’s daughter, testified that when she returned the office keys for her mother, Mr. Bernier also told her that her mother had been fired because the company could hire two “young girls” to take her place for less money. On a subsequent occasion, when she accompanied plaintiff to the Wayne office to pick up her final check, she testified that Mr. Bernier reiterated that there was nothing he could do inasmuch as the Home Office wanted Mrs. Hyde fired because she was too old.

Mr. Bernier denied that he told Mrs. McGough that her mother was fired because of her age or for the purpose of hiring a younger woman or that she had even been fired. He also denied that he threatened that she would be “blackballed.”

With respect to her Title VIL sex discrimination claim, plaintiff contends that in late 1982 she was being trained by her boss, Mr. Zucosky, to become a claims supervisor and to take on some of the claims adjusting work then being performed by him. She contends that her training stopped because the company wanted that kind of work to be performed by males only. She claims that she was qualified for the position by her job experience and that the minimum prerequisites of college education and 3-5 years of prior claims adjusting experience stated at trial by defendants are not job related and were advanced as a pretext for denying her the appointment. Plaintiff contends that she was never told of these minimum qualifications nor given the chance to qualify through on-the-job training. Defendant denies these allegations, contending that she was simply not qualified for the position and that its hiring criteria are job related.

This case presents determinative credibility issues. On balance, I find that the plaintiff’s version of events is not as credible as defendant’s. First, I find that Mr. Bernier is a disinterested witness. Subsequent to plaintiff’s departure from Protective, Mr. Bernier was fired because he had a difference of opinion with Protective’s president, Mr. Miller, over the small fleet policy. Thus, he had nothing to gain by protecting Protective during the trial.

It is undisputed that there was a dramatic increase in workload for all employees at the Wayne branch office directly attributable to the underwriting of small fleet coverage. Prior to this decision to underwrite small fleet coverage, Protective had worked exclusively with large fleet coverage, where one policy covered many vehicles. With small fleet coverage, many policies had to be written. The bulk of the small fleet policies were written in the New York City area. A flood of claims resulted. Consequently, beginning around the end of 1982 and continuing well beyond plaintiffs employment with Protective there was a steadily increasing claims workload. The small fleet policy marketing approach also worked a ■ mountainous workload on the underwriting and marketing aspects of the office. Because the office staff was limited in number, the pressure of the workload was felt by all employees as well as the several managers. Plaintiff was not aware of the workloads of the other employees. I accept the testimony of Mr. Bernier that all employees were busy and that no relief could be given to plaintiffs claims workload by the underwriting employees who were also paid on an hourly basis.

Plaintiff was asked to prepare an estimate of the amount of time she had to devote to her various duties. Mr. Bernier stated that this request was made of her to obtain information necessary to persuade the Home Office, which was very cost-conscious, of the need for more staff assistance in the office. I credit this aspect of Mr. Bernier’s testimony. There were two proposals, which were identified at trial, to meet the press of the generated work. One was to employ, on the underwriting side, certain innovative electronic devices, cathode ray tubes (CRTs), which would increase the work output. The other was to evaluate the clerical claims workload to justify hiring another claims secretary. These proposals resulted in the hiring of another claims secretary around mid-June who was assigned the accounts receivable work.

Despite repeated requests for a time estimation of her various tasks, plaintiff failed to provide one for her manager. I find that it could have been done with reasonably little effort. That it was not done, is attributed to a belief by plaintiff that she should not have to justify the time spent on the work since it was obvious that she was overworked. She testified that she never had time to make the approximation of time that had to be devoted daily to the several aspects of her job. Plaintiffs explanation is not credible. She ignored the obvious importance of the request to her own detriment. It seems that she began to engage in a power struggle with her local management, pitting against their power to dictate assignments her sense of power' over the rate of production of the clerical work. For example, when she stopped processing the accounts receivable work, she told no one that she assigned no priority at all to a task which she had to know was a priority item for the company. If plaintiff elected not to do the accounts receivable work to get management’s attention, she succeeded but used poor judgment in doing so. She was blamed by her superiors, not so much for failing to do the work, but for failing to advise them that she had not been able to perform that specific task.

Mr. Zucosky, and not Mr. Bernier, was responsible for assigning plaintiff the claims work, including accounts receivables. As plaintiff’s witness, he testified that in June when he evaluated plaintiff’s work as deficient, he was sincere in believing that she deserved no raise. He was not motivate’d by sex or age animus. Plaintiff does not attribute her firing to Mr. Zucosky. I accept his testimony in this respect.

On July 5, 1983, plaintiff by-passed Mr. Zucosky in inquiring about a raise. She went directly to Mr. Bernier, who reiterated Mr. Zukosky’s recommendation of no raise and restated the reasons. Mr. Bernier’s testimony as to the events in his office are the more credible. First, plaintiff’s contention at trial that she was fired and did not resign is totally at odds with all of her pretrial statements made under oath. She stated before the Unemployment Compensation Board, the Equal Employment Opportunity Commission and in the complaint filed in this action that there was an act of resignation. To now deny that she resigned renders her testimony suspect. She went into Mr. Bernier’s office unannounced and unsolicited. Mr. Bernier could not have been planning to fire her at that time. Plaintiff’s testimony that Mr. Bernier told her he was carrying out a Home Office desire or directive in firing her makes little sense inasmuch as he had not called the Home Office before plaintiff was allegedly fired. Since she was not getting a raise there was no added economic burden in keeping her. The company was responding to her complaints that she needed help by hiring another clerical assistant. There was no one then employed, including the newly hired claims.secretary, who was trained to assume plaintiff’s duties in a manner that would ensure smooth claims operations, especially considering plaintiff’s extensive knowledge of the company’s files, procedures and claims. From the record, the last thing that Mr. Bernier needed in July, 1983, was another problem in the hectic administration of the small fleet policy program. Plaintiff’s sudden departure could only have added to the administrative headache. Hence, the timing of plaintiff’s leaving was not likely to have been initiated by him.

She was offered an opportunity to sign a letter of resignation. She never did. The letter was not prepared before plaintiff came into Mr. Bernier’s office but rather after she left and he had called the personnel office at the Home Office for guidance. His being told to ask Mrs. Hyde to execute a letter of resignation, if she said that she was resigning, or his being instructed as manager to write down all that had transpired contemporaneous to the event, does not strike me as unusual or the basis for an inference that the Home Office was out to get rid of her. Mr. Bernier’s not pleading with plaintiff not to resign after she threatened to do so if she was not given a raise does not impress me as indicative of sex or age animus. It was a reasonable, predictable response to a situation where plaintiff gave no room for compromise. I credit Mr. Bernier’s testimony that he, in fact, asked Mrs. Hyde not to resign but that he also told her that she would receive no raise.

Under the undisputed facts, I do not find that the defendant’s decision not to give plaintiff a raise was a pretext for illegal employment action. Plaintiff’s failure to process the accounts receivable work was knowing and her failure to inform her superiors, who took for granted that this particular work was being done assiduously, was not a mere oversight. She made a choice between this important work and other work which she believed important. Her error of judgment was in not letting the managers make that choice, if indeed a critical choice between important functions had to be made. Her omission brought considerable criticism upon Mr. Bernier, as Branch Manager, at a time when he was trying to convince the Home Office that the small fleet policy route had been the right road to take. The omission was a justifiable basis for discipline. Plaintiff refused to accept the denial of a raise as just and resigned because she felt strongly that after all the other hard work she had given the company over the years she had been grievously wronged.

Mrs. McGough testified that Mr. Bernier, whom she might have met very briefly and casually only once before, told her when she went to pick up some of her mother’s personal effects from the office, and again when she went with her mother to pick up the final check that her mother had been fired for reasons of sex and age. Mr. Bernier denied any such statements. I credit his testimony.

A critical bow in plaintiff’s quiver of circumstantial evidence of sex and age discrimination is a statement attributed to the president of Protective, Mr. Miller, when he placed Mr. Bernier in the Wayne Branch. Mr. Zucosky testified that Mr. Miller told Mr. Bernier that he should take steps to get rid of Mrs. Hyde. Mr. Bernier then told Mr. Zucosky about Mr. Miller’s instructions. Mr. Bernier admitted that Mr. Miller had had a similar conversation with him. In 1981, the company was still committed to a large fleet sales program and the Branch Office was unprofitable. Mr. Bernier had been hired to make changed to improve the financial picture. In the context of cost-cutting, it was thought necessary to reduce the size of the support staff. Mr. Miller stated that “one of the girls” would have to go, suggesting Mrs. Hyde since he had heard that she was a “troublemaker” from a previous Wayne branch manager. Mr. Bernier investigated the suggestion but found nothing in any file to support it. Upon arriving at the Wayne office he made his own assessment of each employee. He testified that he found no evidence that Mrs. Hyde should be eliminated from the workforce because she was a “trouble-maker.” Moreover, after the small fleet policy program was underway cutting the staff size was no longer a problem or an objective because of the dramatic increase in workload. Any conclusion that Mr. Bernier was dedicated to plaintiffs dismissal from the day he arrived is undermined by the fact that he recommended plaintiff for, and she received, annual salary increases and bonuses at the end of 1981 and 1982.

During this time, Mrs. Hyde was the only employee trained to do the claims clerical work. No attempt was made to displace her from that position. She received a satisfactory performance review on December 29, 1982. Plaintiff has characterized it as a “glowing report.” Her work was complimented from the mechanical, skill, and effort viewpoint. However, the evaluation noted that while “her attitude towards the job has greatly improved ... there are still areas for improvement____” Plaintiff had difficulty in getting along with several of the other women in the office. Some of the friction related to misfilings which affected plaintiff’s area of responsibility. She believed that this was done purposely because it happened too frequently to be mere happenstance.

Shortly after her evaluation, there was an incident in the office involving other female staff members which prompted a meeting on January 10,1988 between plaintiff, her immediate supervisor and Mr. Bernier. At trial, plaintiff attributed her problems to the Branch’s hiring only “young girls” who for some reason resented her. As a result of the January 10 meeting a memorandum was written which plaintiff refused to sign. Plaintiff does not deny that the events related therein occurred or that there was a basis for the meeting. She now sees the writing of the memorandum as an effort to document her shortcomings with an intent to discharge her for illegal reasons. She postulates that the memorandum coincided with a visit to the Wayne office by Mr. Miller, who, she argues, must have instructed his subordinates to take steps to get rid of her. Because I find that there was cause for the meeting with plaintiff, I attribute no probative weight to the memorandum helpful to plaintiff. It is noteworthy that the memorandum does not contradict the December, 1982 evaluation. No criticism was made of her technical job performance. Rather, issue was taken with her on-the-job attitude towards other employees. Plaintiff states that Mr. Bernier once stated that her problem of relating with a particular younger employee may be due to a generation gap. Mr. Bernier admitted that he said this. In her testimony at trial, plaintiff in effect agreed that this may have been true. In any event, I give no probative weight to the comment, especially considering that it was made in a social context.

Plaintiff contends that the company became committed to hiring younger women at less pay than she was receiving at the time of separation from employment. Plaintiff’s only evidence of this contention was her observation that the recently hired CRT operators were all under thirty years of age. She also stated that the second claims secretary was younger than she. Plaintiff offered no evidence that any qualified applicant protected under the ADEA had applied for any of these positions and been rejected. Mr. Bernier explained that the company looked to CRT training institutes for personnel and hired the best applicants. There is nothing improper about that approach. Plaintiff was not the only female over 40 employed at the -Branch Office. There was at least one other, who. remains employed by that office. There was no evidence of the discharge of any other non-managerial employee from the Branch Office or the company. In summary, the plaintiff has failed to prove by a fair preponderance of the credible evidence that the company’s reasons, advanced for denial of a raise and for her separation from employment, are pretextual for sex or age discrimination.

Plaintiff also charges that she was denied a promotion to claims supervisor based upon her sex. Mr. Zucosky testified that in late 1982 he began training her to take over some of his responsibilities in the evaluation and resolution of small claims. He further testified that when Mr. Bernier learned of this training, Mr. Bernier told him, in effect, that the company considered claims adjusting work to be restricted to men. Further, the plaintiff proved that the company has never hired a female into the position of claims supervisor. Mr. Bernier denied that he made any such statement to Mr. Zucosky. He did testify that he understood company policy to be to train claims secretaries to handle some of the small, routine property damage claims which would otherwise occupy the time of the claims supervisor. He denied having any specific knowledge that Mr. Zucosky was training Mrs. Hyde and he denied that he would have discouraged such training.

Again, a credibility determination must be made. Here, I find that the testimony of Mr. Zucosky is not credible. At the Unemployment Compensation Benefits Board hearing he testified that he told Mrs. Hyde in 1982 that she would not qualify for the position of claims supervisor because there were minimum requirements of a college degree and three to five years outside adjuster experience. Yet, at the trial, when asked if he knew of the company’s requirements when he was training Mrs. Hyde for the position, he stated that he did not. Either he was untruthful at the unemployment compensation hearing or at trial. I find that the latter is more probable.

Around the time he was training Mrs. Hyde, there were internal managerial discussions at the Branch Office about staffing, including the need for an additional claims supervisor. Mr. Zucosky, through a friend at Allstate Insurance Company, contacted Bruce Kleeman about interviewing for the job. Mr. Kleeman applied and was interviewed several times and then started with Protective in May, 1983. Mr. Bernier testified that in the course of discussions about another claims supervisor, Mr. Zucosky called the personnel officer at the Home Office and was told the minimum requirements for this position. Mr. Klee-man, before submitting his application, learned of the hiring requirements from Mr. Zucosky. Therefore, it is probable that Mr. Zucosky did indeed tell Mrs. Hyde that she would not qualify for the position of claims supervisor because of education and experience factors.

Moreover, I find that he never undertook to train Mrs. Hyde to be a claims supervisor, but rather to handle small property damage claims. A claims supervisor would be responsible for handling the full range of claims, especially the significant and numerous personal injury claims, which were increasing. By her own admission, Mrs. Hyde was not trained to step immediately into the shoes of an experienced adjuster or claims supervisor in such matters. The company had an obvious need, with its growing claims files, for just such an experienced person. In all her years with the company, Mrs. Hyde had never had primary responsibility for the handling of any personal injury claim, however small, and, at most, had only handled property damage claims valued at $300 or less. Thus, it is not reasonable to expect that Mr. Zucosky or the company would have delegated any significant level of claims settlement authority to Mrs. Hyde. Mr. Zucosky testified that he never told Mr. Bernier or any one at the Home Office that he was training Mrs. Hyde, never determined if there was a position available, and, according to him, never checked to see if there were any minimum requirements for the job. In his testimony on direct examination, he stated that the training of Mrs. Hyde would have led to a promotion. After further questioning, he modified his statement to the effect that plaintiff would have been recommended, presumably by him, for a raise based upon her assumption of more responsible duties, but would not have assumed the position of claims supervisor. Consequently, I conclude that Mr. Zucosky never specifically told Mrs. Hyde that she was in training for the job of claims supervisor.

Plaintiff contends that had she been given on-the-job training she would have been able to assume the full duties of a claims supervisor. I find that given the way in which the company operated, it did not have the ability to train claims supervisors. It used outside or independent adjusters to do the investigative field work, make reports and/or to recommend levels of settlement. For that reason, it was not unreasonable or discriminatory for the company to seek an experienced adjuster to fulfill the. responsibilities of claims supervisor.

Plaintiff also urges that the college degree and three to five years of adjusting experience requirements for the job be found non-job related. Based upon the record evidence, I cannot find that plaintiff has carried her burden in this respect. Considering the job performance requirements of the position, I cannot say that the hiring requirements are arbitrary, unreasonable or a pretext for sex discrimination. For example, there was no evidence that females in the workforce today are disproportionately underrepresented in terms of college degrees or that industry-wide there are no female claims adjusters, although they may be few. That Protective has not received an application from any female claims adjuster for the position of claims supervisor has not been shown to be indicative of discriminatory non-hiring intent. The absence of qualified female applicants to Protective may be the result of scarcity of numbers of female adjusters in the workforce and does not necessarily imply that Protective preferred males for the position of claims supervisor. Protective does have female managers on the underwriting side of the business, which has not been shown to be any less important than the claims side. The Secretary-Treasurer of the company is female and over 40.

Mrs. Hyde points to her inability to get a job in the insurance industry after she left Protective as evidence of her being blackballed. However, she had applied for positions as a claims adjuster, a position for which she was not qualified. Once she applied for secretarial positions, she was hired, albeit not by an insurance company. Consequently, I find that it was plaintiff’s applying for positions for which she was not qualified, and not blackballing, that hindered her progress in obtaining subsequent employment.

In conclusion, plaintiff has failed to show that either sex and age discrimination played a “but for” role in Protective’s employment decisions concerning her.

Accordingly, judgment shall be entered in favor of defendant and against plaintiff.


source: Caselaw Access Project

author: BILLINGS, District Judge.

license: Public Domain

text:
    Eileen BAILEY, Administrator of the Estate of Jeffrey W. Bailey v. GRAND TRUNK LINES NEW ENGLAND, Canadian National Railway, Midland Division, St. Lawrence Region.
    Civ. No. 83-290.
    United States District Court, D. Vermont.
    Dec. 10, 1984.

      John F. Collins, Collins, Collins & DiNar-do, P.C., Buffalo, N.Y., and John T. Sartore, Paul, Frank and Collins, Inc., Burlington, Vt., for plaintiff.
    Robert B. Hemley, Gravel & Shea, Ltd., Burlington, Vt., for defendant.
   MEMORANDUM OF DECISION

BILLINGS, District Judge.

This matter is presently before the Court on Defendant Canadian National Railway’s Motion to Strike Jury Demand. The motion, together with a supporting memorandum of law, was filed on August 2, 1984. The defendant also filed an affidavit in support of its motion attesting to the jurisdictional facts underlying its claim that the jury demand must be striken. That affidavit was filed on August 9, 1984. On October 12, 1984, Plaintiff Eileen Bailey filed a memorandum of law in opposition to Defendant’s motion, together with an answering affidavit. The hearing on Defendant’s motion was held on October 15, 1984, after which the parties each forwarded correspondence to the Court supplementing their arguments and earlier motion papers.

BACKGROUND

Plaintiff Eileen Bailey is the Administratrix of the Estate of Jeffrey W. Bailey. The decedent was employed by Defendant as a maintenance-of-way worker. On or about June 3, 1983, Plaintiff’s decedent was operating a brush cutting machine which malfunctioned and derailed, causing Plaintiff’s decedent injury and, ultimately, death.

Plaintiff brings this cause of action against Defendant under the Federal Employers’ Liability Act (FELA) claiming that her decedent’s injuries were caused by Defendant’s negligence. Specifically, Plaintiff claims the defendant failed to provide Plaintiff’s decedent with safe working conditions.

In her Complaint, Plaintiff named Grand Trunk Lines New England and Canadian National Railway as defendants. However, Canadian National was the only defendant to enter an appearance in the case. Though the record does not explicitly bear it out, the Court assumes that, a wholly owned subsidiary of Canadian National, Grand Trunk Lines falls under the auspices of Canadian National for litigation purposes. See Affidavit in Support of Motion to Strike Jury Demand, Schedule C at p. 8. The case has proceeded on this basis without objection from Plaintiff.

Along with her Complaint, Plaintiff filed a demand for trial by jury.

DISCUSSION

Defendant has moved to strike Plaintiffs jury demand on the ground that, pursuant to the Foreign Sovereign Immunities Act (FSIA) 28 U.S.C. §§ 1330 and 1602 et seq.,' this Court has jurisdiction over the Defendant only to the extent that the claims against it are tried by the Court sitting alone without a jury. Plaintiff, on the other hand, argues that Canadian National and its subsidiary, Grand Trunk Lines New England, are not instrumentalities of the Canadian government and, thus, the FSIA and its limiting jurisdictional rules do not apply in this case. Plaintiff also claims Defendants waived its right to strike the jury demand by filing its motion more than a year after the jury demand was filed. Finally, Plaintiff claims that FELA requires this case to be tried by a jury.

Ordinarily, foreign sovereigns are immune from the jurisdiction of United States courts. Frolova v. Union of Soviet Socialist Republics, 558 F.Supp. 358 (N.D. 111.1983). The FSIA codifies the general rule but sets forth several significant exceptions which, if applicable, render a foreign state amenable to suit. The defendant concedes that, because its activities in the United States are commercial in nature, it falls into one of the exceptions contained in the act. See 28 U.S.C. § 1605(a)(2). Defendant claims, however, that its immunity is barred only to the extent that the case is tried without a jury.

Under the FSIA, district courts have jurisdiction only to the extent permitted by 28 U.S.C. § 1330. That section confers upon the district courts “original jurisdiction without regard to amount in controversy of any nonjury civil action against a foreign state as defined in section 1603(a) of this title....” 28 U.S.C. § 1330(a) (emphasis supplied). Failure to try the case by court is reversible error. Houston v. Murmansk Shipping Co., 667 F.2d 1151, 1154-55 (4th Cir.1982). Accordingly, where the complaint contains a request for a jury trial, and the court determines that FSIA applies, the “sensible practice is simply to strike the jury demand.” Id. at 1154. See also Ruggiero v. Compania Peruana de Vapores, 639 F.2d 872 (2d Cir.1981) (court sanctioned striking jury demand in case against foreign sovereign). Thus, it is clear that, if the FSIA applies, this case must be tried without a jury.

Whether the FSIA applies in this case depends upon whether Canadian National qualifies as a foreign state. Under FSIA, the terms “foreign state” includes “political subdivision[s] of a’ foreign state or an agency or instrumentality of a foreign state____” 28 U.S.C. § 1603(a). An “agency or instrumentality” is an entity which:

(1) is a separate legal, person, corporate or otherwise, and
(2) is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and
(3) is neither a citizen of a state of the United States as defined in section 1332(c) and (d) of this title, nor created under the laws of any third country.

28 U.S.C. § 1603(b) (emphasis supplied).

As to the first two prongs of the test set forth in § 1603(b), there is no real dispute. According to the Defendant’s affidavit, Canadian National is a corporation organized under the laws of Canada and all its corporate stock is owned by Queen Elizabeth, the queen in right of Canada. See Affidavit in Support of Motion to Strike Jury Demand, Schedule C at p. 1. Plaintiff argues, however, that Canadian National is a citizen of a state of the United States and, thus, does not qualify as a instrumentality of a foreign state under the third prong of the § 1603(b) test, quoted above.

Under 28 U.S.C. § 1332(c), a corporation is deemed to be a citizen of any state by which it has been incorporated and of the state where it has its principal place of business. As Defendant’s affidavit bears out, Canadian National is incorporated in Canada. See Defendant’s Affidavit, su pra, Schedule C at p. 2. And, though a corporation’s principal place of business is ordinarily a question of fact, see, e.g., Northeast Nuclear Energy Company v. General Electric Company, 435 F.Supp. 344, 345 (D.Ct.1977), it was conceded at the hearing that Canadian National’s principal place of business is in Canada. Thus, there can be little doubt that Defendant Canadian National is not a citizen of a state of the United States within the meaning of 28 U.S.C. § 1332(c), and thus qualifies as an instrumentality of a foreign state within the meaning of § 1603(b).

Plaintiff claims, however, that Grand Trunk, a subsidiary of Defendant, is a corporation incorporated in, and with its principal place of business in, the United States. While there may be significant operations in the United States on the part of Canadian National’s subsidiaries, a corporation has one and only one principal place of business which, in this case, is conceded to be in Canada. See United States Fidelity & Guaranty Co. v. DiMassa,. 561 F.Supp. 348, 351 n. 8 (E.D.Pa.1983). This is true even where subsidiaries are involved. See Lancer Industries, Inc. v. American Insurance Company, 197 F.Supp. 894 (W.D.La.1961) (court found the principal place of business of a corporation that owned and controlled six subsidiary companies, all engaged in different manufacturing activities, spread among Mississippi, Louisiana and California to be in New York where all executive and management control was centered).

Plaintiff’s claim that Defendant waived its right to have the jury demand striken is without merit. Under the FSIA, this Court does not have jurisdiction to try this case with a jury. Goar v. Compania Peruana de Vapores, 688 F.2d 417, 420 (5th Cir.1982). As such, Defendant’s motion to strike is akin to a claim that this Court lacks subject matter jurisdiction. Such claims may be raised at any point in the litigation or by the Court sua sponte Fed.R.Civ.P. 12(h)(3).

Plaintiff’s final argument is that the Federal Employers’ Liability Act (FELA), the act upon which her claims are premised, requires this ease be tried with a jury. Plaintiff correctly points out that FELA provides for trial by jury and, further, that courts have avidly adhered to FELA’s mandate. Nevertheless, this Court simply does not have jurisdiction to try this case with a jury. The purpose of the FSIA’s nonjury jurisdictional prerequisite is to promote “uniformity in decision, which is desireable since a desparate treatment of cases involving foreign governments may have adverse foreign relations consequences.” H.R.Rep. No. 1487, 96th Cong., 2d Sess. 13, reprinted in 1976 U.S. Code Cong. & Ad.News 6604, 6611. Plaintiff’s argument is at odds with the intent behind the jurisdictional limits contained in the FSIA.

Accordingly, for the above-stated reasons, Plaintiff’s jury demand must be striken.

We note in passing that this result does not interfere with Plaintiff’s seventh amendment right to trial by jury. The scope of the right to trial by jury under the seventh amendment is determined by application of an historical test, which requires jury trial only of issues that, viewed in context, would have been tried by a jury in 1791. The law in 1791 did not allow any actions, with or without a jury, against a sovereign. Based upon this reasoning, at least two circuit courts have held that the FSIA’s proscription against jury trials does not violate the seventh amendment. See Goar, supra, 688 F.2d at 424; Ruggiero, supra, 639 F.2d at 878-81.

ORDER

It is hereby ORDERED that Defendant’s Motion to Strike Jury Demand is GRANTED.


author: KOCORAS, District Judge:

text:
    Edward KOZINA, Plaintiff, v. BALTIMORE AND OHIO CHICAGO TERMINAL RAILROAD COMPANY, Defendant.
    No. 84 C 6835.
    United States District Court, N.D. Illinois, E.D.
    Dec. 27, 1984.
    Gregory A. Adamski, Stephen M. Thacker, Carponelli, Krug, Adamski & Goodstein, Chicago, Ill., for plaintiff.
    James R. Gannon, Paul V. Esposito, Douglas A. Lindsay, Thomas E. Brabec, Lewis, Overbeck & Furman, Chicago, Ill., for defendant.
   MEMORANDUM OPINION

KOCORAS, District Judge:

This matter comes before the court on the defendant Baltimore and Ohio Terminal Railroad’s motion to dismiss plaintiff Kozina’s complaint because this court lacks subject matter jurisdiction over the plaintiff’s action. For the following reasons, the defendant’s motion is granted.

Plaintiff alleges in his complaint that the action arises under the Railway Labor Act, 45 U.S.C. § 151 et seq. Defendant employed plaintiff from 1969 until August 1983. During his employment, plaintiff was a member of the United Transportation Union (UTU). Plaintiff suffers from diabetes which was initially controlled by diet, and later, at the time of his discharge, was controlled by diet and insulin. About August 3, 1983, plaintiff alleges that he was telephoned and told not to report to work that shift or again because of his medical condition. About one week later, .plaintiff alleges he received a letter from a medical officer with the Chessie System Railroads informing him that he was being removed from service as a switchman because of his diabetic condition and accompanying use of insulin. When plaintiff informed the union “grievor,” John Lusneski, of his discharge, plaintiff alleges that Lusneski told him “that there was nothing that the United Transportation Union would be able to do in his behalf.” Plaintiff further alleges that defendant did not offer him another position. He applied for a total and permanent disability annuity which the United States Railroad Retirement Board denied because his diabetic condition did not disqualify him from all types of work.

Therefore, plaintiff alleges he was wrongfully discharged solely on the basis of his diabetic handicap and his rights to due process of law were violated because he was discharged without a hearing in an arbitrary and capricious manner. Plaintiff seeks an injunction, re-instatement to employment, and damages equal to back pay and fringe benefits.

Both parties acknowledge that section 153 of the Railway Labor Act provides that the National Railroad Adjustment Board has jurisdiction over disputes between a railroad and its employees growing out of collective bargaining agreements, rules, or working conditions. § 153(i). The parties also recognize that courts have imposed an exhaustion of remedies requirement on all claims brought under the Railway Labor Act. Furthermore, both agree that the courts have permitted certain exceptions to be made to this requirement.

Plaintiff contends, first, that the exceptions to the exhaustion requirement apply to his circumstances, and second, that his claim for wrongful discharge is not based solely on the collective bargaining agreement but also upon Federal constitutional and state statutory and common law rights which would exempt it from the exhaustion doctrine.

The first exceptions which plaintiff relies upon are rooted in two United States Supreme Court cases: Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967) and Glover v. St. Louis-San Francisco Ry. Co., 393 U.S. 324, 89 S.Ct. 548, 21 L.Ed.2d 519 (1969). In Vaca, the Court found that an employee will be excused from the exhaustion requirement upon a showing that the employer repudiated the administrative procedures for processing grievances, 386 U.S. at 185, 87 S.Ct. at 914, or that the union, acting as bargaining agent, breached its duty of fair representation in handling the employee’s grievance. 386 U.S. at 186, 87 S.Ct. at 914. In Glover, the Court stated that the exhaustion of remedies would not be required where the effort would be totally futile. 393 U.S. at 330, 89 S.Ct. at 551.

Plaintiff argues that his claim falls within these exceptions because plaintiff was told that there was nothing the union “grievor” would do on his behalf, which plaintiff argues is a breach of the union’s duty of fair representation. Because of this breach, plaintiff asserts that any resort to arbitration will be a futile and unnecessary effort. Plaintiff does not allege that the employer repudiated the administrative procedures. Therefore, the exception to be examined here is the alleged breach of duty of fair representation by the union. The Seventh Circuit defines the duty of fair representation as follows: the union has a duty to represent every worker in the bargaining unit fairly, but it breaches that duty only if it deliberately and unjustifiably refuses to represent the worker. Even gross negligence is not enough; there must be intentional misconduct. Graf v. Elgin, Joliet and Eastern Ry. Co., 697 F.2d 771 (7th Cir.1983). In this case, the plaintiffs union “grievor” stated that “there was nothing that the United Transportation Union would be able to do in his behalf in this matter.” The plaintiff does not allege that he asked the “grievor” to file a grievance or that the “grievor” refused to begin that process. It does not constitute intentional misconduct for a union “grievor” to believe that a grievance may have little merit or hope for success. Vaca v. Sipes, 386 U.S. at 192-95, 87 S.Ct. at 917-19. Moreover, a union is not required to prosecute a grievance that it honestly believes lacks merit. Id. Plaintiff presents no allegations that the “grievor” was acting in bad faith. Therefore, in this case, plaintiff had not yet requested the union to file a grievance and none of the facts allege behavior which constitutes intentional misconduct by the union. Plaintiffs case does not fall within this exception.

Nor does it appear that pursuing and exhausting these remedies will, be wholly futile. The grievance procedure is not begun and if plaintiff does not have faith in his union “grievor,” this will not render the process useless. Plaintiff may prosecute his grievance on his own. He is not required to use the union “grievor.” Essary v. Chicago & N. W. Transport. Co., 618 F.2d 13, 17 n. 6 (7th Cir.1980), Therefore, plaintiffs claim does not fall within this exception either.

The plaintiff has also argued that his claim for wrongful discharge is not based solely upon the collective bargaining agreement and therefore should be exempted from the exhaustion of remedies requirement. The plaintiff argues that the wrongful discharge claim includes rights under the Federal constitution and Illinois statutory and common law rights. These claims by the plaintiff do not remove his action from the Railway Labor Act. In Andrews v. Louisville N.R.R., 406 U.S. 320, 92 S.Ct. 1562, 32 L.Ed.2d 95 (1972), the Supreme Court found that a plaintiffs remedy for state actions for breach of contract are precluded by his exclusive remedy under the Railway Labor Act. 406 U.S. at 325, 92 S.Ct. at 1565. The constitutional issues of due process which plaintiff raises do not act to exempt him from the exhaustion of remedies requirement. Plaintiff alleges that the due process violations occurred when the defendant acted to discharge him. He argues he was discharged without a proper hearing and arbitrarily and capriciously. Under Seventh Circuit law, when due process violations occur at the initial stages of a grievance procedure, the dispute is characterized as one between private parties. At this stage, there is no requisite, government involvement and no action for violation of due process. In this dispute between private parties, the Federal courts are not to act as the guarantors of the rights of either management or labor. Edwards v. St. Louis-San Francisco Ry. Co., 361 F.2d 946 (7th Cir.1966); Dorsey v. Chesapeake and Ohio Ry. Co., 476 F.2d 243 (4th Cir.1973). The plaintiffs alleged due process violations arose in a dispute between private parties before the grievance procedure was even begun. Therefore, these claims do not exempt him from the exhaustion of remedies doctrine.

The defendant’s motion to dismiss for lack of subject matter jurisdiction is therefore granted.


author: ZAMPANO, Senior District Judge.

text:
    CLEMCO CORPORATION, INC., Plaintiff, v. FRANTZ MANUFACTURING COMPANY, Defendant.
    Civ. A. No. B-81-546 (RCZ).
    United States District Court, D. Connecticut.
    Jan. 14, 1985.
    Ernest C. LaFollette, Fairfield, Conn., for plaintiff.
    David W. Schneider, Alice A. Bruno, Barry C. Hawkins, Tyler Cooper & Alcorn, New Haven, Conn., for defendant.
   RULING ON MOTION TO DISMISS

ZAMPANO, Senior District Judge.

In this diversity action brought by Clem-co Corporation (“Clemco”), a Connecticut corporation, against Frantz Manufacturing Company (“Frantz”), an Illinois corporation, the plaintiff seeks damages for the defendant’s alleged breach of a regional sales representative agreement.

On September 29, 1983, Magistrate La-timer denied Frantz’s motion to dismiss for lack of personal jurisdiction, but did so “without prejudice” and subject to “a hearing [that] may be held prior to the trial on the merits to determine all issues pertaining to in personam jurisdiction.” This Court affirmed the Magistrate’s ruling, and conducted a hearing concerning the jurisdictional dispute on December 6, 1984.

I

, In April 1970, Mr. Peter R. Clem, Jr., on behalf of Clemco, entered into an oral contract with officials of Frantz in Illinois to be a manufacturer’s representative for Frantz in New England and portions of New York and New Jersey. All customer orders were subject to acceptance by Frantz in Illinois, and the products were shipped directly by Frantz to the customers. For its services, Clemco was entitled to a five percent commission on all sales it arranged. Some of the sales made by Clemco were “on an annual basis,” that is, the customer would place a large order on a particular date, but would request delivery in monthly installments over a one-year period. On these twelve-month sales, Clemco received its five percent commission after each of the installment shipments was sent to the customer. Thus, Clemco did not receive its full commission on “annual sales” at the time the customer entered into the sales agreement; rather, it received its commissions based on the monthly shipments made by Frantz.'

On January 6, 1981, Frantz notified Clemco that the sales representative agreement would be terminated on March 31, 1981. Clemco does not contest Frantz’s right to terminate the contract, but contends in this lawsuit that it is owed commissions for “annual sales” it consummated prior to March 31, 1981, deliveries of which occurred after March 31, 1981 on an installment basis. See Hearing Transcript Excerpt at 5 (Testimony of Clem) (“That is why I’m here, sir.”).

II

Because Frantz is not authorized or registered to do business in Connecticut, and has no agent for service of process in this state, Clemco claims that this Court has personal jurisdiction over Frantz pursuant to various subsections of the Connecticut long-arm statute. Conn.Gen.Stat. § 33-411. The familiar two-step analysis that the Court must follow is (1) whether the facts of this case make Frantz amenable to suit in Connecticut under the statute, and (2) if so, whether the exercise of jurisdiction comports with due process. Arrowsmith v. United Press International, 320 F.2d 219, 223 (2 Cir.1963). Clemco bears the burden of showing by a preponderance of the evidence that this Court has personal jurisdiction over Frantz. Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 54, 459 A.2d 503, 507 (1983).

It seems clear that the gravamen of this lawsuit is the alleged breach of the sales representative contract by the failure of Frantz to pay Clemco the commissions due under that contract. Under Conn.Gen.Stat. § 33-411(c)(l), Frantz would be within the reach of the long-arm statute if Clemco’s cause of action arises out of a contract “to be performed in this state.”

Relying on Glendinning Cos. v. Codesco, Inc., 3 Conn.L.Trib. No. 40, at 16 (Super.Ct.1977), Frantz argues that, although Clemco may have substantially performed its part of the contract in Connecticut, only a defendant’s performance is relevant to a determination of whether the contract is one “to be performed in this state.” Because Frantz’s own performance under the contract was limited to actions in Illinois, it contends § 33-411 is not applicable.

While Glendinning does support the principle that the “performance” under the statute must be by the defendant and not by the plaintiff, this Court with deference rejects the holding in that case. Far more persuasive is the reasoning in such cases as Bowman v. Grolsche Bierbrouwerij B.V., 474 F.Supp. 725 (D.Conn.1979) (Daly, C.J.), and Publications Group, Inc. v. American Soc. of Heating, Refrigerating and Air-Conditioning Engineers, Inc., 566 F.Supp. 316 (D.Conn.1983) (Eginton, J.).

In Bowman, Chief Judge Daly noted “[tjhere is no indication that the Connecticut legislature intended that the language ‘to be performed in the state’ should be given a limited construction to require performance in this state by the party over whom jurisdiction is sought. It would not be appropriate, therefore, for this Court to impose such a limitation upon the statute.” 474 F.Supp. at 731-32. Cf. Chemical Specialties Sales Corp. v. Basic Inc., 296 F.Supp. 1106, 1109 (D.Conn.1968) (section 33-411, “while perhaps not stretching to the outer limits of constitutional permissibility [citations omitted] .... is certainly far-reaching”). In Publications Group, Judge Eginton found the Glendinning ruling overly narrow and “rather drastic,” and quoted Judge Timbers’ “alternative formulation” of the reach of § 33-411(c)(l) set forth in Electric Regulator Corp. v. Sterling Extruder Corp., 280 F.Supp. 550, 556 (D.Conn.1968): “ ‘the section must be read to authorize the assertion of jurisdiction in every instance where a cause of action arises out of a contract to be performed here so long as there are sufficient total contacts to meet constitutional requirements.’ ” 566 F.Supp. at 319-20. See also Lombard Bros., Inc. v. General Asset Management Co., 190 Conn. 245, 256-57, 460 A.2d 481, 487 (1983) (“[arguably, even incidental acts of performance of contracts in this state would come within our statute if the defendant had other significant contacts with this state”, citing Bowman and Electric Regulator).

In addition, there is little question that Clemco’s cause of action for sales commissions “arises out of” Frantz’s alleged breach of the sales representative agreement between the parties, particularly with respect to the dispute over the scope and interpretation of the payment aspects of the agreement. See Hearing Transcript Excerpt at 4-5. Therefore, the requirements of § 33-411(c)(l) having been met, Frantz was properly served under Connecticut’s long-arm statute.

Finally, no extendéd discussion is necessary to support a finding that Frantz has had sufficient contacts with Connecticut to satisfy due process guarantees under principles enunciated in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), and its progeny. Among other factors, Frantz had sales in Connecticut of $280,000 in 1979 through Clemco, in addition to sales to “house accounts” of more than $200,000. Further, Frantz advertised and sponsored events in this state, listed a Connecticut telephone number and address in trade directories, shipped products into this state -with the risk of loss passing in Connecticut, had a salesman actively soliciting business here, sent price lists to customers in Connecticut, and serviced customers directly in this state. There is ample evidence that Frantz, in 1981 when the agreement was allegedly breached, was “purposefully availing] itself of the privilege of conducting activities within the forum State.” Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958). Maintenance of this suit “does not offend ‘traditional notions of fair play and substantial justice,’ ” International Shoe, 326 U.S. at 316, 66 S.Ct. at 158; therefore, the exercise of jurisdiction in this case is consistent with due process.

For the foregoing reasons, Frantz’ motion to dismiss is denied.

      . It cannot be seriously disputed that, pursuant to the express terms of the contract, Clemco was to render substantial performance in Connecticut, and that many of Frantz's largest customers in Connecticut were obtained through Clemco’s efforts.

      . In light of this finding, there is no need to consider the additional jurisdictional claims advanced by plaintiff.


author: FISH, District Judge.

text:
    Sandi D. SMITH, Plaintiff, v. FLAGSHIP INTERNATIONAL, a Delaware Corporation, d/b/a Sky Chefs, Defendant.
    Civ. A. No. CA 3-83-0692-G.
    United States District Court, N.D. Texas, Dallas Division.
    Jan. 22, 1985.

      John W. Walker and Lazar M. Palnick, John W. Walker, P.A., Little Rock, Ark., Samuel Biscoe, Dept. of Agriculture, Austin, Tex., for plaintiff.
    David A. Schwarte, Dallas/Fort Worth Airport, Tex., Thomas L. Case, St. Claire & Case, Dallas, Tex., for defendant.
   MEMORANDUM ORDER

FISH, District Judge.

Sandi Smith brought this action seeking individual relief under the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621 et seq., and individual and class relief under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. (1981). Smith asserts these claims on behalf of herself and all females employed by the defendant since January 1, 1979, who have suffered sex discrimination in the terms and conditions of their employment.

The defendant, referred to herein as “Flagship,” moves for partial summary judgment dismissing all of Smith’s individual and class claims under Title VII on the ground that these claims are time-barred by section 706(f)(1) of Title VII, 42 U.S.C. § 2000e — 5(f)(1). For the reasons stated below, the court is of the opinion that Flagship is entitled to summary judgment on the class claims but not on Smith’s individual claims.

Factual Background

The events relevant to this motion began on October 1, 1982, when Smith’s attorney filed an earlier action in this court. That case, styled Benita T. Jones v. Flagship International, d/b/a Sky Chefs and docketed as Civil Action No. 3-82-1611-G, presented claims on behalf of putative nationwide classes of female and black employees of Flagship. Smith was not named as a class representative.

The next significant event, the timing of which is disputed, was the receipt by Smith of her statutory notice of right to sue under Title VII. Flagship contends that the Equal Employment Opportunity Commission (“EEOC”) issued and mailed the notice on November 3, 1982, and that Smith received it on November 4, 1982. Smith counters that she first received official notice of her right to sue after March 23, 1983.

Smith filed her complaint initiating the present action on April 21, 1983. Under Flagship’s version of the facts, then, Smith brought this suit 167 days after she received her right-to-sue letter from the EEOC. Under Smith’s version, however, she brought suit no more than 29 days after the day she received notice.

Meanwhile, on March 24, 1983, Flagship filed in the Jones action a motion to dismiss the class allegations from the plaintiff’s complaint. The plaintiff therein then, on June 9, 1983, filed a motion for certification of classes of female and black employees of

Flagship. The former class, which is relevant to this motion, was alleged to consist of “female employees who are subjected to a discriminatory work environment which includes pervasive practices of sexual harassment, and females who have been denied promotions, equal working conditions and/or have been discharged due to their sex____”

In a memorandum order in Jones issued on November 8, 1983, this court denied the motion for class certification and granted the motion to dismiss. The court found the “conclusory assertions” of the plaintiff’s affidavits to be insufficient to satisfy the numerosity requirement for class actions found in Federal Rule of Civil Procedure 23(a)(1). Also insufficient was the plaintiff’s showing that her personal grievances would be typical of or common to those of the putative class. See Fed.R. Civ.P. 23(a)(2) and (3). Finally, the court noted that the plaintiff’s counsel had been dilatory in prosecuting the action and that the plaintiff herself must be disqualified from representing the class because of conflicts of interest; therefore, the plaintiff had failed to show that she would adequately represent the class. See Fed.R. Civ.P. 23(a)(4).

I. Plaintiff’s Compliance Vel Non With the 90-Day Filing Limitation

The first question presented by Flagship’s motion for summary judgment is whether a genuine issue exists for trial concerning the timeliness of the filing of Smith’s complaint in this court after receipt of her statutory notice of right to sue.

A. The Law

While compliance with the 90-day filing period is not a prerequisite to a federal court’s subject-matter jurisdiction under Title VII, such compliance is a statutory precondition to the maintenance of any action under Title VII. Sessions v. Rusk State Hospital, 648 F.2d 1066, 1070 (5th Cir.1981); see Coke v. General Adjustment Bureau, Inc., 640 F.2d 584, 592 n. 15 (5th Cir.1981) (en banc) (recent decisions of the Fifth Circuit indicate that the 90-day period is “more in the nature of a statute of limitations subject to equitable modification than a jurisdictional prerequisite”); see also, e.g., Law v. Hercules, Inc., 713 F.2d 691, 692-93 (11th Cir.1983) (claim barred where claimant filed suit 91 days after son signed certified mailing receipt for notice of right to sue, even though notice did not come to claimant’s attention until “one or two days later”). Dismissal of Title VII claims is proper where the plaintiff fails to meet his or her burden of proving that the complaint was timely filed in court. Cf. Crawford v. Western Electric Co., Inc., 614 F.2d 1300, 1306 (5th Cir.1980) (district court correctly dismissed Title VII claims where plaintiffs offered no proof that they had timely filed complaint with EEOC).

B. The Evidence

In support of her contention that she received no notice of right to sue before March 23, 1983, Smith submits a copy of a “Notice of Conciliation Conference” dated September 14, 1982, and mailed to her by the EEOC. The notice states that the conference was to be held on September 28, 1982, and specifies the time and place and indicates that a copy was sent to her lawyer.

Smith also offers a copy of a letter dated March 17, 1983, from her lawyer to the director of the Dallas EEOC office asking for information concerning whether the EEOC had ever sent Smith her statutory notice of right to sue and stating that his office had no record that such notice had been mailed to or received by Smith.

In addition Smith submits a third letter, this one dated March 23, 1983, and mailed to her lawyer from the EEOC. According to the letter, the EEOC’s records reflected that the notice was sent on or about November 3, 1982. The letter also states that the notice “should have been sent by certified mail” but that the EEOC had no certified mail numbers or receipts to prove that the letter had been mailed to Smith. The EEOC had attached to the letter a copy of the right-to-sue notice that the EEOC’s records showed was mailed in November 1982. The notice is addressed to Smith and is dated November 3, 1982.

Smith also calls the court’s attention to the record to take notice that the complaint in this cause was filed on April 21, 1983.

Finally, Smith attaches to her responsive papers an affidavit supplementing her deposition testimony that she does not remember receiving a notice of right to sue in November 1982. Smith further avers in the affidavit that she does not remember if she received any right-to-sue notice other than a copy of the notice sent along with the March 1983 letter to her lawyer.

In its motion for partial summary judgment, Flagship offers various pieces of evidence to show that there is no genuine issue that the EEOC mailed the right-to-sue notice to Smith on November 3, 1982; that Smith received the letter on November 4, 1982; and, therefore, that Smith failed to bring suit within the 90-day period prescribed in Title VII.

First, Flagship points out that the copy of the November 3,1982, right-to-sue letter indicates on its face that a copy was sent to David A. Schwarte, one of the attorneys for Flagship. Schwarte states in his affidavit that he received his copy of the notice of right to sue on November 5, 1982, in an EEOC envelope postmarked November 3, 1982, and bearing a return receipt number of P204-993-278. Schwarte has submitted as attachments to his affidavit copies of the right-to-sue notice and the envelope.

Second, Flagship submits the affidavit of Wanda Pulliam, a letter carrier for the United States Post Office in Keller, Texas, which was Smith’s town of residence in November 1982. Pulliam’s affidavit evinces that she delivered a letter bearing return receipt number P204-993-279 to Smith at her address in Keller on November 4, 1982, and that Smith signed the return receipt in Pulliam's presence. Attached as an exhibit to the affidavit is a copy of the return receipt with a signature purporting to be Smith’s. A copy of the same return receipt is also attached to an affidavit by Jean Cain, Postmaster for the United States Post Office in Keller, Texas. This affidavit shows that the receipt is contained in a public register of all certified mail return receipts going through the Keller post office.

Finally, Flagship shows to the court that the return receipt indicates that the letter’s ZIP code of origin was 75201. The return address on the November 3, 1982, right-to-sue notice reflects that 75201 is also the ZIP code of the EEOC’s Dallas office.

C. Analysis

In considering Flagship’s motion for partial summary judgment, this court is aware of its duties to view the movant’s summary judgment evidence and the inferences therefrom “in the light most favorable to the party opposing the motion,” United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962), and to “indulge every reasonable inference from [the underlying] facts in favor of the party opposing the motion,” American Telephone & Telegraph Co. v. Delta Communications Corporation, 590 F.2d 100, 102 (5th Cir.), cert, denied, 444 U.S. 926, 100 S.Ct. 265, 62 L.Ed.2d 182 (1979) (emphasis in original).

The initial burden is on the movant to prove that there are no material facts in dispute, Adickes v. S.H. Kress and Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970), not on the opponent to show the contrary, Long Island Railroad v. New York Central Railroad, 26 F.R.D. 145, 147 (E.D.N.Y.1960). Once, however, the moving party shows by affidavits or as otherwise provided in Federal Rule of Civil Procedure 56 that it is entitled to summary judgment as a matter of law, the burden then shifts to the opposing party to show by affidavits or otherwise that summary judgment is not appropriate. Nicholas Acoustics & Specialty Company v. H & M Construction Company, 695 F.2d 839, 844 (5th Cir.1983).

Having considered the evidence on record, the court finds that the evidence raises no genuine issue for trial as to whether Smith received official notice of her right to sue on November 4, 1982. Although the return receipt does not indicate on its face the identity of the sender or the nature of the envelope’s contents, the receipt and Wanda Pulliam’s testimony together show that Smith received a certified letter on November 4, 1982, one day before Schwarte received a copy of the right-to-sue letter. The return receipt also indicates that the letter that Smith received originated in the EEOC’s ZIP code area and that it was the very next item in numerical sequence following the copy mailed to Schwarte. Flagship has met its initial burden of proving that there is no genuine dispute that Smith received her statutory notice on November 4,1982, and that therefore her April 21, 1983, complaint was untimely.

Smith’s offerings, on the other hand, fail to show that summary judgment is not appropriate. Nicholas Acoustics, 695 F.2d at 844. None of her documentary evidence contradicts Flagship’s showing that she received her notice on November 4, 1982. Smith’s affidavit and deposition testimony stating that she cannot remember when, if ever, she received a copy of her right-to-sue letter from the EEOC is also insufficient to rebut the conclusive evidence indicating that she received the letter on November 4, 1982. This purported evidence of her failed memory fails as a showing of “specific facts,” FED.R.CIV.P. 56(e), to rebut Flagship’s showing of the absence of a genuine issue of fact. See O’Dowd v. South Central Bell, 729 F.2d 347, 350 & n. 8 (5th Cir.1984) (plaintiffs failed to produce “specific facts” under Rule 56(e) where one plaintiff testified as to inability to recall whether he had talked to any of defendant’s employees about the reason that his telephone service was disconnected and plaintiffs were otherwise unable to identify the factual basis of allegation of defendant’s discrimination against them because they resided in a predominately black and elderly neighborhood); cf. Posey v. Skyline Corporation, 702 F.2d 102, 105-06 (7th Cir.), cert, denied, — U.S.—, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983); Fireman’s Insurance Company of Newark, New Jersey v. DuFresne, 676 F.2d 965, 967-69 (3d Cir. 1982) (opponent’s denial of knowledge of facts relied on by movant insufficient to defeat summary judgment).

II. Applicability Vel Non of the Parker Tolling Rule to Smith’s Class Claims

Smith argues in the alternative that the filing of the Title VII complaint in the Jones case tolled the 90-day limitation period for the filing of both her individual claims and her class claims. She bases her argument on the case of Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983), wherein the Supreme Court held:

We conclude, as did the Court in American Pipe, that “the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.” Once the statute of limitations has been tolled, it remains tolled for all members of the putative class until class certification is denied. At that point, class members may choose to file their own suits or to intervene as plaintiffs in the pending action.

Id. at 2397 (citation omitted).

Smith argues for a broad reading of the Parker holding, i.e., that the filing of a class action tolls the limitation period for all putative class members to bring their own class actions as well as individual actions. Yet the facts, statement of the issue, holding, and analysis of Parker indicate to the contrary.

The plaintiff in Parker had filed only an individual action after the district court had denied certification of a class of which he was a putative member. The court expressly limited the issue presented in that case to whether asserted members of a denied class would be permitted “to file individual actions,” id. at 2393 (emphasis added), within the time remaining on their limitation periods after the denial of class certification. A close reading of the holding also suggests its restriction to individual actions: “ ‘[T]he commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.”’ Id. at 2397, quoting American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974) (emphasis added).

Finally, after concluding that the tolling doctrine of American Pipe should not be read narrowly to include only intervenors, the court noted that “[t]here are many reasons why a class member, after the denial of class certification, might prefer to bring an individual suit rather than intervene.” Id. 103 S.Ct. at 2395 (emphasis added). There is, then, no ambiguity in the scope of the holding in Parker; the tolling rule in American Pipe was extended to allow purported class members to bring their own individual suits as well as to intervene in the original class action.

Furthermore, even if there were conflicting suggestions in Parker that the tolling rule should apply to future class actions, this court would be disinclined to give them much weight. The rule advanced by Smith would allow the attorney for a class to revive the class claims upon denial of certification by simply refiling a new class action using a different putative class member as representative. The attorney would be able to bring a potentially endless succession of class actions, each tolling the 90-day rule for its successor. Such a rule would frustrate “[t]he principal purpose of the class action procedure — promotion of efficiency and economy of litigation____” Id.

III. Applicability Vel Non of the Parker Tolling Rule to Smith’s Individual Claims

Flagship also contends in its motion for summary judgment that, under the facts of this case, the Parker tolling doctrine does not apply even to Smith’s individual Title VII claims. It asserts three grounds for denying Smith the protection of the tolling exception: (1) the Jones class action was filed in bad faith because the plaintiff therein was manifestly unqualified to serve as a class representative; (2) the Jones complaint was filed in bad faith because even though it sought to assert claims on behalf of a nationwide class, the class representative failed to substantiate the claims as to a single locality; and (3) the Parker rule should be limited geographically and temporally: tolling should occur only as to individual claims of putative class members who worked at the same Flagship facility as did the class representative (Smith and the Jones class representative worked at different facilities), and the limitation period should begin to run again as soon as the class representative misses the deadline for moving for class certification.

The court is not persuaded to adopt any of these grounds. Flagship cites no controlling case law to support its argument. With respect to the first and second grounds, the court does not find such indications of bad faith in the filing of the Jones action to compel dismissal of Smith’s individual claims. The third ground clashes with the holding in Parker that the 90-day period is “tolled for all members of the putative class until class certification is denied.” Id. at 2397 (emphasis added).

It is, therefore, the conclusion of the court that, since Smith received her notice of right to sue after the plaintiff in Jones filed a class action in district court, and since Flagship does not deny that Smith is an asserted member of the class of female employees on whose behalf the Jones plaintiff brought suit and for which that plaintiff sought certification, and since Smith filed suit in this court within 90 days after certification was denied in Jones, Smith’s individual claims under Title VII were timely filed.

Conclusion

For the reasons stated above, the court is of the opinion that partial summary judgment should be granted in Flagship’s favor dismissing Smith’s class claims under Title VII and that Smith’s motion for class certification should be denied for her failure to file suit within 90 days of her receipt of statutory notice of right to sue.

It is therefore ORDERED that Flagship’s motion for summary judgment is GRANTED in part and DENIED in part. It is further ORDERED that Smith’s class claims under Title VII are DISMISSED with prejudice.

      . The section provides in pertinent part: If a charge filed with the Commission pursuant to subsection (b) of this section is dismissed by the Commission, ... 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 ... by the person claiming to be aggrieved....

      . The motion for class certification had been filed more than six months beyond the time allowed for such a motion under Rule 10.2(b) of the Local Rules of this district.

      . One conflict was between the interest of the class and the plaintiffs interest in attorney fees for representing the class (the plaintiff had become of counsel to her own attorney before the suit was filed). The other was between the plaintiffs duty to represent the class and her ethical duty to protect the confidentiality of communications made by Flagship to her when she had served as a fair employment compliance officer for Flagship.

      . The plaintiff in Posey alleged that the defendant, his former employer, had failed to post in a conspicuous place notice of its employees’ rights under the Age Discrimination in Employment Act and that, therefore, the 180-day period for filing a charge of discrimination with the EEOC should have been tolled. The defendant submitted two affidavits attesting that it had conspicuously posted the ADEA notice in the employees' lunch room. In response, the plaintiff's affidavit averred that he had glanced at the lunch room bulletin board frequently and did not recall ever seeing such a notice. The court held that the plaintiff's affidavit was insufficient to raise a fact issue:
      The affidavits submitted by Skyline Corporation uncontrovertedly indicate that the com-
      pany did indeed conspicuously post the requisite notice. Posey’s affidavit merely indicates that Posey never saw the ADEA notice, which is not the same as an averment that the notice was not in fact conspicuously posted. This is no doubt a very close distinction, but it is one we must draw, especially in light of the strict requirements of Rule 56____ Although it is true that a court should give to the party opposing a summary judgment motion the benefit of all reasonably drawn inferences ..., the mere possibility that a factual dispute may exist, without more, is an insufficient basis upon which to justify denial of a motion for summary judgment.

        Id. (emphasis added; footnote and citations omitted).

      . The plaintiffs in American Pipe filed a federal antitrust class action 11 days before the expiration of the applicable statute of limitations. Eight days after the district court denied class certification, several putative class members moved to intervene. The Supreme Court stated that the filing of the class action "tolls the running of the statute for all purported members of the class who make timely motions to intervene after the court has found the suit inappropriate for class action status.” Id. at 553, 94 S.Ct. at 766.