author: WARREN, District Judge.

text:
    Harold JONES, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
    No. 83-C-2011.
    United States District Court, E.D. Wisconsin.
    May 28, 1985.

      Mary L. Collins, Legal Action of Wisconsin, Inc., Milwaukee, Wis., for plaintiff.
    Melvin Washington, Asst. U.S. Atty., Milwaukee, Wis., for defendant.
   MEMORANDUM AND ORDER

WARREN, District Judge.

I.

In his Recommendation of April 30, 1985, in this matter, Magistrate Robert L. Bittner considered the decision of the Secretary of Health and Human Services, denying the plaintiff’s applications for disability insurance benefits and supplement security income under the Social Security Act. Based on his review of the record before him, the Magistrate concluded that there is substantial evidence to support the determination of the Administrative Law Judge that the plaintiff does not suffer from a severe impairment and is thus not disabled and entitled to the benefits for which he has applied.

Following his summation of the live testimony and documentary evidence offered in support of the present applications, the Magistrate concluded that the plaintiff had failed to meet his burden of establishing the severity of his impairment by introducing appropriate clinical tests and laboratory findings of some medical condition that could reasonably be expected to produce his symptoms of low back pain, among others. The Magistrate summarized his position as follows:

... This may well be as scanty a medical record as any which has come before this Court for review. It consists only of two consultant medical reports and two x-ray reports. The medical reports fail to demonstrate a condition which prevents the plaintiff from performing physical functions, such as walking, standing, sitting, lifting, pushing, and carrying; nor do either of the reports restrict or caution against such basic work activities. The two x-ray reports fail to disclose a medical condition reasonably expected to produce the symptoms of which the plaintiff complains. In fact, one of the x-ray reports simply states that a condition exists consistent with the plaintiff’s age.

Magistrate’s Recommendation at 8-9 (April 30, 1985). Similarly, the Magistrate determined that the plaintiff’s subjective complaints of pain, absent any confirming objective data to support the existence of a medically determinable impairment, do not entitle him to a finding of disability. To make such a finding, the Court, in the Magistrate’s words, “would have to disregard 20 C.F.R. § 404.1529, which specifically limits consideration by the Secretary to only those symptoms, including pain, founded upon a medical condition reasonably expected to produce them. The mere diagnosis of a disease or a condition does not direct a finding of disability [citations omitted].” Magistrate’s Recommendation at 9 (April 30, 1985).

Finally, the Magistrate rejected the plaintiff’s contention that the so-called “severity requirement,” discussed infra at 6-7, & 10-11, is invalid and in violation of the statutory definition of disability, mandating the consideration of age, education, and relevant work experience. As the Magistrate opined, the principal flaw in the plaintiffs position, premised, as it is, on a broad definition of “severe,” is that the applicant has failed in the first instance to establish the existence of any medically determinable impairment — severe or otherwise. Even if inclined to adopt the plaintiff’s limited description of a typical “nonsevere impairment,” the Magistrate would have found himself hard-pressed to overturn the Secretary’s decision, as follows:

... [Substantial evidence exists in this record from which the AU could conclude that the plaintiff is not severely impaired. A nonsevere impairment is one which is so slight that it is presumptively not disabling because without taking age, education, and vocational background into consideration any claimant who has the impairment retains the ability to do his past work [citation omitted]. As previously discussed, the record is devoid of any objective evidence which supports the plaintiff’s complaints, and moreover, able to perform his past work with the impairments which he now claims disable him. The plaintiff cannot manipulate the severity test ... to escape his initial burden of establishing a medically determinable impairment.

Magistrate’s Recommendation at 11-12 (April 30, 1985). Based on this analysis, the Magistrate recommended that the Court affirm the administrative decision, finding no severity to the plaintiff’s impairments and concluding that he is not entitled to the disability insurance benefits and supplemental security income for which he has applied.

Pursuant to 28 U.S.C. § 636(b)(1)(B) & (C), Rule 72(b) of the Federal Rules of Civil Procedure, and Local Rule 13.03, the parties were afforded ten days after service of the Magistrate’s Recommendation in which to serve and file specific, written objections with this Court. On May 9, 1985, the plaintiff submitted a memorandum articulating such specific objections and requesting that his motion for summary reversal of the administrative decision be granted or, in the alternative, that the matter be remanded for a new hearing before another administrative law judge.

In his memorandum of objections, the plaintiff contends, first, that he has, indeed, established the existence of some medically determinable impairment, as follows:

... Objective medical data has documented that the plaintiff has osteoarthritis of the lumbar spine (TR 147), scattered degenerative changes of the dorsal spine (TR 146), scattered hypertrophic degenerative changes of the lumbar sacral spine (TR 147), possible degenerative joint disease (TR 155-156), degenerative changes in the thoracic spine (TR 155-156), blindness in the left eye (TR 156), and a history of syncope (TR 147).

Plaintiff’s Objections to Magistrate’s Recommendation at 1 (May 9, 1985). As he did in his principal motion for summary reversal, the plaintiff also invokes the language of Hundrieser v. Heckler, 582 F.Supp. 1231, (N.D.Ill.1984), for the proposition that the “severity” requirement is, at best, a minimal one and, under circumstances like the present, presents no considerable impediment to the awarding of benefits.

Furthermore, it is the plaintiff’s position that the record as a whole does not substantially support the Secretary’s finding of nondisability; among other things, the plaintiff notes that he is unable to perform his past work, is blind in his left eye and, accordingly, suffers from a loss of balance, and experiences pain when bending or lifting. In further support of his position, the applicant directs the Court’s attention to those portions of the administrative record indicating that he has difficulty with recollection and requires frequent rest. Finally, he agrees that his inability to perform his past relevant work is supported to a substantial degree by letters authored by his general assistance work supervisors, also incorporated in the record of this case.

Pursuant to Rule 72(b) of the Federal Rules of Civil Procedure and Local Rule 13.03, the Secretary has been afforded ten days from service of the plaintiff’s objections in which to respond. To date, the Secretary has filed no such response. Accordingly, the Court has conducted its de novo review of the plaintiffs claims based on the administrative record, the pleadings of the parties, the opposing motions for summary judgment, and the plaintiffs recently-filed objections to the Magistrate’s Recommendation of April 30, 1985. Based on this review, the Court concludes, for the reasons set forth herein, that the Secretary’s motion for summary affirmance must be granted and the plaintiff’s motion for summary reversal denied.

II.

As both parties to this action acknowledge, the well-established procedure for determining whether a claimant is disabled and thus entitled to benefits has been neatly summarized by the Court of Appeals for the Seventh Circuit as follows:

(1) Is the claimant presently unemployed? (2) Is the claimant’s impairment “severe”? (3) Does the impairment meet or exceed one of a list of specific impairments? (4) Is the claimant unable to perform his or her former occupation? (5) Is the claimant unable to perform any other work within the economy? An affirmative answer leads either to the next step or, on steps 3 and 5, to a finding that the claimant is disabled. A negative answer at any point, other than step 3, stops inquiry and leads to a determination that the claimant is not disabled.

Garfield v. Schweiker, 732 F.2d 605, 607 n. 2 (7th Cir.1984).

If, pursuant to the first touchstone, it is determined that the plaintiff is engaged in substantial gainful employment, the claim is summarily denied, pursuant to 20 C.F.R. § 404.1520(b). If, however, the claimant is not presently employed, the fact-finder must then determine whether the applicant’s impairment is severe; a severe impairment is defined in 20 C.F.R. § 404.-1520(c) as one that “significantly limits” an individual’s “physical or mental ability to do basic work activities.” As before, if the individual’s impairment may not be accurately characterized as severe, the evaluation procedure ends and the application for benefits is denied. Significantly, it is only when the claimant overcomes the hurdle of demonstrating “severity” that he or she is then entitled to further review under the third, fourth, and fifth touchstones, requiring sequential assessments of specific impairment levels, abilities to perform past relevant work, and availability of appropriate employment positions within the relevant national economy. 20 C.F.R. 404.-1520(d), (e), & (f). As indicated above, the Secretary disposed of the present application upon a finding under the second criteria that the plaintiff’s physical and mental impairments do not rise to the level of severity required by 20 C.F.R. § 404.-1520(c).

Having carefully reviewed the administrative record in this matter, including most particularly the medical reports submitted by Drs. Suresh R. Naik, M. Yusuf Ali, Joyce A. Yerex, arid L.H. Huberty, the imports of which are accurately and exhaustively described by the Magistrate in his Recommendation of April 3, 1985, the Court must conclude that this plaintiff’s impairments do not rise to the level of severity justifying an award of benefits. The record is clear, as the Magistrate himself observed, that diagnoses of some medical impairments have been made — including, among others, osteoarthritis of the lumbar spine, postural dizziness with a history of syncope, blindness in the left eye secondary to old trauma, low back syndrome, and possible degenerative joint disease. See Transcript at 147 & 155-156. At the same time, Dr. Naik offered this report with respect to the plaintiff’s musculoskeletal system:

... [Examination of peripheral joints was essentially normal with no evidence of active synovitis or limitation of motion. Examination of lumbar spine revealed inability to flex the lumbar spine completely with moderate paraspinal muscle spasm. No tenderness was noted. Neurological examination failed to reveal any motor or sensory deficit and reflexes were psysiological.

Transcript at 147. Similarly, Dr. Ali made these diagnoses with respect to the plaintiffs condition:

... Back straight. No tenderness to deep palpation on back. Passive movement of joints free but painful. Gross Crepitus over left shoulder joint. No ankle adema. No gross joint deformity. Could not bend to touch toes. Walked with a stiff back.
... Fully conscious and alert. Moves all extremities. Reflexes psysiological.

Transcript at 156.

Furthermore, the radiological report prepared by Dr. Huberty specifically notes that the scattered, marginal, degenerative changes in the plaintiffs dorsal lumbar spine are consistent with his age; Dr. Huberty further reports that the patient’s vertebral body height, alignment, and inters-pacing are within normal limits and that his paraspinal soft tissues, apophyseal, and sacro-iliac joints are unremarkable in appearance. See Transcript at 146. These findings are largely confirmed by the radiological report prepared by Dr. Yerex, who comments, among other things, that the frontal, lateral, and oblique views of the plaintiff’s lumbosacral spine show maintenance of a normal curve and that his disk spaces, pedicles, processes, and posteria arches are unremarkable. See Transcript at 157.

As the Magistrate has accurately characterized these several medical reports, none suggests a condition that prevents the plaintiff from performing basic work activities, as defined in 20 C.F.R. § 404.1521(a) & (b). While there is apparently no dispute that the plaintiff is blind in his left eye, there is likewise no indication in the administrative, record that the applicant is incapable of performing routine physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling. See 20 C.F.R. § 404.-1521(b)(1). In short, it is this Court’s view that the plaintiff has not demonstrated impairments of severity sufficient to justify further consideration of his applications under the sequential analysis set forth in Garfield v. Schweiker, 732 F.2d 605 (7th Cir.1984) (cited supra at 307).

The Court acknowledges the plaintiff’s subjective complaints of considerable lower back pain, loss of balance, difficulty in recollection, chest pains, and easy exhaustion. See Transcript at 38-42 & 46-48. However, none of these symptoms is supported by any clinical findings or laboratory tests suggesting the existence of some medical cause. In Brown v. Secretary, 403 F.Supp. 938 (E.D.Wis.1975), quoted by the Magistrate in his Recommendation of April 30, 1985, this Court underscored the critical importance to any disability finding of objective data supporting the existence of a medically determinable impairment that might reasonably be expected to produce the applicant’s claimed symptoms. This plaintiff’s apparent inability to offer such evidence in support of his present applications necessitates rejection of his claim of disability on the basis of his subjective complaints.

Finally, to the extent that the plaintiff seeks reversal of the administrative decision in this case based on Judge Moran’s decision in Hundrieser v. Heckler, 582 F.Supp. 1231 (N.D.Ill.1984), the Court finds itself in total agreement with the position articulated by the Magistrate in his recent Recommendation. As accurately noted therein, the question of whether the so-called “severity requirement” is improperly construed by the Secretary in this and other cases to preclude thorough consideration of disability claims is not even reached here: Regardless of whether the plaintiff’s impairments are, in fact, severe, there is no threshold showing that those impairments are, as indicated above, medically determinable. In addition, while this Court would be reluctant to adopt without considerable qualification the bald assertion of statutory interpretation advanced by Judge Moran, see Hundrieser v. Heckler, 582 F.Supp. 1231, 1236 (N.D.Ill.1984) (“nothing in [the] basic statutory definition of disability suggests that claimants have to prove that they suffer from a ‘severe’ impairment in order to qualify as disabled”), it need not challenge Judge Moran’s position directly to decide this ease. As discussed above, the administrative record, even under the limited definition of “severity” advanced by the Hundrieser court, provides substantial evidence upon which the Secretary might properly conclude that the plaintiff is not disabled and thus not entitled to the insuranee benefits and supplemental security income for which he has applied.

CONCLUSION

For the reasons set forth herein and in Magistrate Robert L. Bittner’s Recommendation of April 30, 1985; the Court hereby GRANTS the defendant’s motion for summary affirmance of the Secretary’s decision, denying the plaintiff’s applications for disability insurance benefits and supplemental security income under the Social Security Act. The plaintiff’s motion for summary reversal is accordingly DENIED.


source: Caselaw Access Project

license: Public Domain

text:
    Clarence A. CAVINS and Mary G. Cavins, Plaintiffs, v. AETNA LIFE INSURANCE COMPANY, Defendant and Third-Party Plaintiff, v. ALLIS-CHALMERS CORPORATION, Third-Party Defendant.
    No. 83-C-2003.
    United States District Court, E.D. Wisconsin.
    May 28, 1985.
    Marjan R. Kmiec, Milwaukee, Wis., for plaintiffs.
    Robert C. Burrell, Milwaukee, Wis., for Aetna Life Ins. Co.
    Randi C. Hammer, Chicago, Ill., for Allis-Chalmers Corp.
   MEMORANDUM AND ORDER

WARREN, District Judge.

Some six weeks ago, on April 16, 1985, the United States Supreme Court stated unequivocally that when the judicial resolution of a state law claim in a civil action is substantially dependent upon analysis of the terms of an agreement made between parties to a labor contract, such a claim must either be treated as a cause of action under Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185(a), or dismissed as pre-empted by federal labor-contract law. That significant ruling formed the cornerstone of the Court’s decision in Allis-Chalmers Corporation v. Lueck, — U.S. —, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985) — a decision that, in this Court’s view, mandates an award of summary judgment in this action in favor of the non-plaintiff parties. In fact, the factual basis for the Supreme Court’s decision in Lueck is so nearly identical to the circumstances upon which the present lawsuit is premised that Justice Blackmun’s legal analysis of the pre-emptive effect of Section 301 might reasonably be adopted in its entirety as a basis upon which to dispose of the present action.

The petitioner-employer in Allis-Chalmers Corporation v. Lueck, — U.S.—, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985), coincidentally the third-party defendant in this action, along with a labor union of which the respondent-employee was a member, were parties to collective bargaining agreement, incorporating by reference a group health and disability plan that made benefits available for nonoccupational illness and injury to all employees. That agreement also established a four-step grievance procedure, culminating in final and binding arbitration if the union chose to pursue an employee’s contract grievance to that level.

In July of 1981, the respondent in Lueck suffered a nonoccupational back injury while carrying a pig to a friend’s house for a pig roast. Thereafter, he notified the employer of his injury and filed a disability claim with the insurance company responsible for administering the group health and disability plan; again coincidentally, that insurer is the defendant and third-party plaintiff to the present lawsuit. Although the insurance company originally approved the employee’s disability claim and made arrangements for his receipt of benefits, the petitioner-employer allegedly ordered the insurer to terminate his payments on several occasions; after each termination, the employee questioned the action or supplied additional information, and the benefits were restored.

Nonetheless, the respondent in Lueck believed that he was being harassed and, in January of 1982, sued both his employer and the disability plan insurer in Milwaukee County Circuit Court, alleging intentional, contemptuous, and repeated failures to make disability payments under the negotiated plan absent a reasonable basis for such withholdings and breach of the duty to act in good faith and deal fairly with an employee’s disability claims. Significantly, the respondent-employee never pursued the grievance procedures established in the collective bargaining agreement prior to initiating his judicial cause of action.

The trial judge in Lueck granted motions for summary judgment in favor of the petitioner-employer and the insurer, finding that the respondent had stated a claim under Section 301 of the Labor Management Relations Act and, in the alternative, that if his claim were deemed to arise under state law rather than Section 301, it was preempted by federal labor-contract law. Although the Wisconsin Court of Appeals affirmed that ruling, the State Supreme Court reversed, holding that the employee’s cause of action did not, in fact, arise under Section 301 but was, instead, a tort claim for bad faith. The Wisconsin high court distinguished the tort of bad faith from a bad-faith breach of contract claim, noting that although a breach of duty existed by virtue of the contractual relationship between the parties, that duty was independent of the contract itself.

The United States Supreme Court disagreed. In his opinion for a unanimous bench, Justice Blackmun observed that Congress had not stated explicitly whether and to what extent it intended to pre-empt state law by Section 301 of the Labor Management Relations Act, which provides, in pertinent part, as follows:

Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce ... may be brought in any district court of the United States having jurisdiction of the parties ____

29 U.S.C. § 185(a). At the same time, Justice Blackmun concluded that “[i]f the policies that animate Section 301 are to be given their proper range, ... the pre-emptive effect of Section 301 must extend beyond suits alleging contract violations.” Allis-Chalmers Corporation v. Lueck, — U.S. —, —, 105 S.Ct. 1904, 1910, 85 L.Ed.2d 206 (1985). In this context, he specifically observed that the interests in interpretive uniformity and predictability that require that labor-contract disputes be resolved by reference to federal law likewise mandate that the meaning accorded contractual language be subject to uniform federal interpretation:

... Thus, questions relating to what the parties to a labor agreement agreed, and what legal consequences were intended to flow from breaches of that agreement, must be resolved by reference to uniform federal law, whether such questions arise in the context of a suit for breach of contract or in a suit alleging liability in tort. Any other result would elevate form over substance and allow parties to evade the requirements of § 301 by re-labeling their contract claims as claims for tortious breach of contract.
Were state law allowed to determine the meaning intended by the parties in adopting a particular contract phrase or term, all the evils [of disruption and uncertainty in the negotiation and administration of collective bargaining agreements] would recur. The parties would be uncertain as to what they were binding themselves to when they agreed to create a right to collect benefits under certain circumstances. As a result, it would be more difficult to reach agreement, and disputes as to the nature of the agreement would proliferate. Exclusion of such claims “from the ambit of § 301 would stultify the congressional policy of having the administration of collective bargaining contracts accomplished under a uniform body of federal substantive law.” Smith v. Evening News Assn., 371 U.S. 195, 200, 83 S.Ct. 267, 270, 9 L.Ed.2d 246 (1962).

Allis-Chalmers Corporation v. Lueck, — U.S. —, —, 105 S.Ct. 1904, 1910, 85 L.Ed.2d 206 (1985).

With respect to the Wisconsin Supreme Court’s description of the employee’s cause of action as a claim for the tort of bad faith, Justice Blackmun opined that fundamental questions of contract interpretation nonetheless underly any finding of tort liability; since, in his words, the federal legislature has “mandated that federal law govern the meaning given contract terms, ... [the life given by the state tort] to these terms in a different environment ... [necessitates pre-emption].” Allis-Chalmers Corporation v. Lueck, — U.S. —, —, 105 S.Ct. 1904, 1914, 85 L.Ed.2d 206 (1985).

This result is further compelled, according to Justice Blackmun, by the interest in preserving the central role of arbitration in matters relating to industrial self-government, as follows:

... If respondent had brought a contract claim under § 301, he would have had to attempt to take the claim through the arbitration procedure established in the collective-bargaining agreement before bringing suit in court. Perhaps the most harmful aspect of the Wisconsin decision is that it would allow essentially the same suit to be brought directly in state court without first exhausting the grievance procedures established in the bargaining agreement____
Since nearly any alleged willful breach of contract can be restated as a tort claim for breach of a good-faith obligation under a contract, the arbitrator’s role in every case could be bypassed easily if § 301 is not understood to pre-empt such claims. Claims involving vacation or overtime pay, work assignment, unfair discharge — in short, the whole range of disputes traditionally resolved through arbitration — could be brought in the first instance in state court by a complaint in tort rather than in contract. A rule that permitted an individual to sidestep available grievance procedures would cause arbitration to lose most of its effectiveness, Republic Steel Corp. v. Maddox, 379 U.S. 650, 653 [85 S.Ct. 614, 616, 13 L.Ed.2d 580] (1965), as well as eviscerate a central tenet of federal labor-contract law under § 301 that it is the arbitrator, not the court, who has the responsibility to interpret the labor contract in the first instance____
... Unless federal law governs ... the meaning of the health and disability-benefit provisions of the labor agreement would be subject to varying interpretations, and the congressional goal of a unified federal body of labor-contract law would be subverted. The requirements of § 301 ... can not vary with the name appended to a particular cause of action ____
[W]hen resolution of a state-law claim is substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract, that claim must either be treated as a § 301 claim, see Avco Corp. v. Aero Lodge 735, 390 U.S. 557 [88 S.Ct. 1235, 20 L.Ed.2d 126] (1968), or dismissed as pre-empted by federal labor-contract law____

Allis-Chalmers Corporation v. Lueck, — U.S. —, — - —, 105 S.Ct. 1904, 1914-1916, 85 L.Ed.2d 206 (1985). In the end, the Court determined that the respondent’s complaint should have been dismissed for his failure to make use of the grievance procedures prescribed by the collective bargaining agreement or dismissed as preempted under Section 301 of the Labor Management Relations Act.

As indicated above, the critical facts of the present case are so nearly identical to those presented in Lueck that the result announced in that appellate decision effectively dictates the proper resolution of the parties’ instant claims. Here, as in Lueck, the plaintiff’s employer and the labor union of which he was a member are parties to a collective bargaining agreement that incorporates by reference a negotiated group health and disability plan funded by the third-party defendant and administered by the defendant and third-party plaintiff. Among other things, the plan provides both temporary and long term disability benefits for nonoccupational illnesses and injuries suffered by any represented employees and contains a grievance procedure for resolving contractual disputes, including those arising under the disability plan.

In January of 1981, the plaintiff was apparently involved in a non-work-related automobile accident in which he suffered back and knee injuries. Although he was initially awarded and received disability payments pursuant to the terms of the collective bargaining agreement, those temporary benefits were ultimately terminated on April 22, 1981. Shortly thereafter and despite his continuing claims to total disability, the plaintiff was discharged from employment, purportedly as a result of his failure to return from medical leave. That termination decision was eventually overturned by an arbitrator upon the plaintiff’s grievance. Thereafter, the third-party defendant-employer provided him with weekly disability benefits retroactive to the date of their discontinuance in April of 1981. Long term disability payments for the six-month period from January through June of 1982 were ultimately provided as well.

Based on supplemental medical examinations, diagnoses, and reports, the employer eventually determined that the plaintiff was able to perform light duty work with certain restrictions and thus directed him to report for reemployment on January 3, 1983. The plaintiff did not return to work but instead voluntarily reentered the hospital, presumably for additional medical treatments. Following its receipt and review of yet another physician’s statement of disability, the third-party defendant-employer determined that the plaintiff was, indeed, capable of returning to work with certain medical restrictions, ordered him to resume his employment in February of 1983, and discontinued long term disability benefits as of March of 1983.

Although the plaintiff never returned to work, he was placed on capacity layoff shortly after termination of his benefit payments. In May of 1983, the plaintiff sought reconsideration of the decision terminating his long term disability benefits — a request again reviewed by the employer’s medical personnel who, as before, determined that the plaintiff-employee was not disabled. There is apparently no dispute that the plaintiff never initiated grievance proceedings under the terms of the collective bargaining agreement as a means of protesting the termination of his long term benefits payments; instead, in December of 1983, he initiated the present federal action.

By his complaint, the plaintiff sets forth the factual basis for his cause of action and charges that the defendant-insurer improperly investigated and processed his claims for disability benefits. He further alleges that the insurance company intentionally terminated his disability payments under the collectively-bargained benefit plan, as a result of which he incurred certain debts, economic losses, psychological harm, and emotional distress. In this context, the complaint asserts five purely state law claims — namely, breach of contract, intentional and tortious refusal to pay benefits due and owing, intentional infliction of emotional distress, conspiracy to injure reputation and employment, and loss of consortium. By his ad damnum clause, the plaintiff seeks contract, compensatory, and punitive damages, along with such other relief as the Court deems equitable.

In February of 1984, the defendant-insurer filed its answer and affirmative defenses to the plaintiff’s complaint and joined the plaintiff’s employer pursuant to a third-party complaint based, among other things, on the theories of indemnity and contribution. In its answer filed some two months later, the employer raised various defenses to the third-party complaint against it and the principal complaint filed by the plaintiff— notable among them, that the several causes of action advanced by the plaintiff are wholly pre-empted by Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185.

In the Court’s view, the recent decision of the United States Supreme Court in Allis-Chalmers Corporation v. Lueck, — U.S. —, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985), discussed supra at---, mandates disposition of this action in favor of the defendant and third-party plaintiff and the third-party defendant. As demonstrated by the Court’s descriptions of the principal cause of action in Lueck and the plaintiff’s claims for relief in the present lawsuit, these cases are virtually indistinguishable both legally and factually. Among other matters, the Court is convinced that resolution of the present plaintiff’s five state law claims is, in Justice Blackmun’s words, “substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract.”-' Allis-Chalmers Corporation v. Lueck, — U.S. —, —, 105 S.Ct. 1904, 1916, 85 L.Ed.2d 206 (1985). Here, as in Lueck, the entire cause of action is properly dismissed for failure to make use of the established grievance procedures or as wholly preempted by Section 301 of the Labor Management Relations Act.

The defendant-insurer and the third-party defendant-employer’s companion motions for summary judgment now before the Court are supported not only by arguments with respect to the pre-emptive effect of Section 301 but also by discussions of pre-emption under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq.; the nonarbitrary and noneapricious nature of the decision to terminate the plaintiff’s long term disability benefits; the propriety of the investigation and processing of his benefits claims; the plaintiff’s failure to exhaust available administrative and contract remedies; and his wholesale failure to state any claims upon which relief might be granted pursuant to the purely state causes of action articulated in his complaint. The Court has reviewed the movants’ extensive briefs on these issues along with the numerous, supporting exhibits, affidavits, and deposition transcripts. Although it is inclined to believe that any one of the several arguments advanced in support of summary judgment might properly form the basis for a favorable ruling today, the Court will grant the pending motions based solely on the unequivocal import of the United States Supreme Court’s recent decision in Allis-Chalmers Corporation v. Lueck, — U.S. —, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985).

CONCLUSION

For the reasons set forth above, the Court hereby GRANTS the motion of defendant Aetna Life Insurance Company for summary judgment as to the entire cause of action against it, pursuant to Rule 56(b) of the Federal Rules of Civil Procedure.

The Court further GRANTS the motion of third-party defendant Allis-Chalmers Corporation for summary judgment as to the entire cause of action against it, likewise pursuant to Rule 56(b) of the Federal Rules of Civil Procedure.

      . Although both Clarence A. Cavins and his wife, Mary G. Cavins, initiated this action, the Court refers in today’s order to only one plaintiff, solely in the interest of stylistic clarity. The principal cause of action advanced by plaintiff Mary G. Cavins is for loss of consortium; see infra at 313.


author: MOODY, District Judge.

text:
    Brenda Joyce CARRELL, et al, Plaintiffs, v. CITY OF PORTAGE, INDIANA, et al, Defendants.
    Civ. No. H84-74.
    United States District Court, N.D. Indiana. Hammond Division.
    May 29, 1985.

      James J. Nagy, Munster, Ind., for plaintiffs.
    Kenneth Nowak, Merrillville, Ind., for City of Portage, Pat Witka and Marvin Owens.
    Harry J. Jennings, Merrillville, Ind., for Maureen Nulf.
   ORDER

MOODY, District Judge.

This matter is before the Court on a Motion for Summary Judgment filed by defendants City of Portage, Pat Witka, and Marvin Owens on December 7, 1984. Plaintiff Brenda Joyce Carrell, acting as Administrator of the Estate of Charlie Carrell, Jr., deceased, filed a Response to Defendants’ Motion for Summary Judgment on January 8, 1985. Defendant City of Portage filed a Reply on January 14, 1985. The Defendants’ Motion for Summary Judgment is DENIED.

BACKGROUND

This Court exercises diversity jurisdiction over the instant case under 28 U.S.C. § 1332. The plaintiff alleges an action for wrongful death arising out of a vehicle-pedestrian accident.

At approximately 1:00 a.m. on the morning of May 28, 1982, City of Portage firemen Pat Witka and Marvin Owens were returning from a fire in a firetruck when they observed Charlie Carrell stumbling in a drunken state on the side of U.S. Highway 20. The firemen parked their truck a short distance from Mr. Carrell and radioed the police for assistance. Before the police arrived, the firemen watched Mr. Carrell walk onto the highway in front of an oncoming automobile driven by Maureen Nulf. The firemen flashed a spotlight in the direction of the oncoming automobile and Mr. Carrell as a warning to the driver to avoid the pedestrian. Nulf’s automobile struck Mr. Carrell and he later died. Brenda Joyce Carrell, as Administrator of Charlie Carrell’s estate, now brings suit against Maureen Nulf, the two firemen, and the City of Portage, claiming that the negligent actions of all the defendants caused the wrongful death of Charlie Carrell.

Summary Judgment

Defendants City of Portage, Pat Witka, and Marvin Owens present two arguments for summary judgment under Rule 56, Fed. R.Civ.P. First, defendants argue that they are immune from liability under the Indiana Tort Claims Act, I.C. § 34-4-16.5-3(6) (1983), as the firemen acted within their discretionary function. Second, the defendants assert that they owed no duty to Charlie Carrell because no special relationship existed between them and no rescue was undertaken.

1. Standard

In reviewing a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, this court must judge whether the defendants present a claim involving no genuine issues of fact which entitles them to dismissal as a matter of law. Fed.R.Civ.P. 56. In this inquiry, the court draws all inferences of fact against the moving party and in favor of the party opposing the motion. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).

2. Immunity — Scope of Employment

With this standard of review in mind, I address the question of immunity under the Indiana Tort Claims Act (ITCA). The Act provides in pertinent part that:

A governmental entity or an employee acting within the scope of his employment is not liable if a loss results from:
(6) the performance of a discretionary function.

I.C. 34-4-16.5-3 (1983).

This statute codifies two requirements traditionally recognized as necessary in order for governmental immunity to apply to an individual actor: (1) the agent’s action must have been within the scope of the agent’s employment; and (2) the action must have been taken in the performance of a discretionary function. Board of Commissioners v. Briggs, 167 Ind.App. 96, 337 N.E.2d 852, 861 (1975). See Note, “Sovereign Immunity in Indiana — Requiem?”, 6 Ind.L. Rev. 92, 104 (1972). Since the actions taken by firemen Owens and Witka were outside the scope of their employment, they cannot claim immunity from suit under the ITCA.

The duties of the state fire marshal are set out at I.C. § 22-11-5-6. At the time this cause arose in 1982, the duties included enforcement of

all laws of the state and ordinances of the several cities and towns in Indiana, providing for any of the following:

(1) The prevention of fires;
(2) The storage, sale and use of combustibles and explosives;
(3) The installation and maintenance of automatic or other fire alarm systems and fire extinguishing equipment;
(4) The investigation, prosecution and suppression of the crime of arson and other crimes connected with the destruction or attempted destruction of property by fire or explosion, and the crime of swindling or defrauding an underwriter or attempting to do so; and for the investigation of the cause, origin and circumstances of fires. It shall further be the duty of the state fire prevention commission to make, establish, and promulgate rules and regulations not inconsistent with any existing law or laws in the state of Indiana for the prevention of fires and fire losses.

I.C. § 22-11-5-6.

Under the 1982 version of I.C. § 22-11-5-8, all municipal fire marshals and chiefs of fire departments were made assistants to the state fire marshal for execution of these definitive provisions.

The attempted rescue of Charlie Carrell was clearly outside the firemen’s statutory duties, which are exclusively fire-related. The statute does not mention any general duty to maintain public safety; firemen have no responsibility under Indiana law to police highways or rescue individuals from apparent harm. In addition, defendants Owens and Witka acknowledge that their individual contracts with the City of Portage do not contemplate a general safety duty. Each defendant has filed an affidavit with the Court stating

That I, as a fireman, had no statutory duties, or duties prescribed by any departmental rule or regulation concerning the enforcement of laws or control of vehicle or pedestrian traffic along public highways.

Affidavits of Owens and Witka, filed December 7, 1984.

The words of the Indiana Code and the substance of these affidavits are fatal to the defendants’ motion, since “scope of employment” under the ITCA has been construed to reflect the statutory or contractual duties of public employees. For example, in Foster v. Pearcy, 270 Ind. 533, 387 N.E.2d 446 (1979), the Indiana Supreme Court examined the scope of employment of a county prosecuting attorney. Finding that the attorney was immune from liability for public statements regarding pending cases, the court wrote that

While we base our decision primarily on the common law immunity traditionally accorded to prosecuting attorneys, we also note that the duty to inform the public can be characterized as a discretionary function and thus would fall within the absolute immunity granted under the Indiana Tort Claims Act. I.C. § 34-4-16.5-3(6) [Burns Supp.1978]. This decision will insure that the prosecutor will be able to exercise the independent judgment necessary to effectuate his duties to investigate and prosecute criminals and to apprise the public of his activities. It will also allay the apprehensions about harassment of prosecuting attorneys from unfounded litigation which deters public officials from their public duties.

Id. at 449.

The decision includes a caveat: “We express no opinion as to the liability of prosecuting attorneys or their deputies for acts outside the scope of their authority. We hold only that where, as here, the acts are reasonably within the general scope of authority granted to prosecuting attorneys, no liability will attach.” Id.

The Indiana Supreme Court colored a part of this gray area in Seymour National Bank v. Indiana, 428 N.E.2d 203 (1981). See generally Mead, “Torts, Survey of Recent Developments in Indiana Law.” 16 Ind.L.Rev. 1, 411-14 (1983). There, the Indiana Supreme Court found that a high speed chase was within a state trooper’s scope of employment, while noting that

an employee’s acts, although committed while engaged in the performance of his duty, might be so outrageous as to be incompatible with the performance of the duty undertaken. In such a case, it cannot be said that an injury resulting therefrom resulted from the performance of the duty. Such acts, whether intentional or willful and wanton, are simply beyond the scope of employment.

Id. at 204.

The trooper was immune because the chase was within his sphere of duty and did not go beyond zealous execution of that duty. See also Jacobs v. City of Columbus, 454 N.E.2d 1253 (Ind.App.1983); Indiana State Police v. May, 469 N.E.2d 1183, 1184 (Ind. App.1984).

After Seymour, it appears that ITCA immunity requires as a minimum that the agent act within the general scope of his or her statutory duty. Even within the sphere of that duty, the Seymour Court noted, an agent may surpass the bounds of immunity. And so it is here. Owens and Witka had no duty as firemen to police the highways and effect rescues of pedestrians. Even if their close association with law enforcement officers gave rise to a putative duty to radio for help, it does not extend so far as to shield them from liability for an affirmative act, i.e. shining the spotlight, which was wholly unrelated to any fire, arson, or fire safety regulation.

Good faith, responsible rescue attempts are to be encouraged, and the law will hold a private individual responsible for negligent affirmative acts only if a duty to rescue is established. Police may be immune from liability for acts similar to those at bar, in part, to encourage vigorous performance of their statutory safety duties. Firemen have a comparable immunity when they fight fires. See City of Hammond v. Cataldi, 449 N.E.2d 1184 (1988). However, firemen do not have particular expertise in safety matters unrelated to fires. That is not their job. They are trained differently than policemen. And when firemen act outside the scope of their expertise and authority, as Owens and Witka did when they attempted to rescue Charlie Carrell, they stand on the same footing before the law as other good faith rescuers.

3. Duty

As an alternative, defendants City of Portage, Owens and Witka argue that they had no duty of care with respect to Charlie Carrell. This argument fails.

While it is true that no obligation to come to the aid of another who is in peril exists under Indiana law, a duty to act with reasonable care may arise when affirmative conduct is undertaken to rescue. Perry v. NIPSCO, 433 N.E.2d 44, 50 (1982). The Perry court expressly recognized the principle that liability can arise from the negligent performance of a voluntary undertaking, even if it is gratuitous. Id. This concept is a familiar one in Indiana. See Board of Commissioners v. Hatton, 427 N.E.2d 696, 699-700 (1981); Warren v. City of Indianapolis, 375 N.E.2d 1163, 1166-1167 (1978). Where one adds to the peril of another by attempting a rescue in a negligent manner so that the dangers are increased, the rescuer is liable for injuries caused by his negligence. Warren, 375 N.E.2d at 1167 (citing Restatement (Second) of Torts § 322 with approval).

In this case, the facts reviewed in a light most favorable to the plaintiff give rise to a duty and support a cause of action. The firemen might have ignored Mr. Carrell, since absent some definite relationship between the parties there is no liability for nonfeasance. Crouch v. Hall, 406 N.E.2d 303, 304 (1980); Warren v. City of Indianapolis, 375 N.E.2d 1163, 1166 (Ind.App.1978). Or the firemen might have merely radioed the police, since that undertaking in no way increased the danger to Mr. Carrell. Sports, Inc. v. Gilbert, 431 N.E.2d 534, 536-37 (Ind.App.1982). Instead, the defendant firemen flashed their spotlight on Mr. Carrell in an attempt to warn Nulf of the pedestrian on the highway. This affirmative conduct undertaken to rescue Carrell gave rise to a duty to act with reasonable care. In that the spotlight may have foreseeably distracted or blinded the automobile driver, arguably leaving Mr. Carrell in a worse position, a jury might find that the firemen did not conform to the standard of reasonable care in their rescue attempt. Summary judgment is inappropriate on this ground.

Conclusion

Defendants Owen and Witka acted outside their scope of employment and are not shielded by the provisions of the ITCA. Viewing the facts in the light most favorable to the plaintiff, the defendants had a duty to act toward plaintiff Carrell with reasonable care — a duty which may have been breached. It is therefore ORDERED that the Motion for Summary Judgment is DENIED.

      . The Rockwellian image of a fireman rescuing the family’s pet cat from a tree has less to do with the fireman’s rescuing ability than with his access to a long ladder. In Charlie Carrell’s case, even the firemen’s equipment was not especially suited to the rescue undertaken.

      . This decision may encourage the City of Portage to file an independent motion to dismiss. The issue of respondeat superior will be considered if and when it is raised by the parties.

      . Indiana law does not recognize a duty on the part of public officials such as firemen or policemen to act absent some special, particularized relationship. Crouch v. Hall, 406 N.E.2d 303, 304 (1980); Estate of Tanasijevich v. City of Hammond, 178 Ind.App. 669, 383 N.E.2d 1081, 1084-85 (1978).


author: CARMAN, Judge:

text:
    ATOCHEM, Plaintiff, v. UNITED STATES, Defendant.
    No. 84-2-00163.
    United States Court of International Trade.
    April 26, 1985.
    Donohue & Donohue, New York City, John M. Peterson, Kathleen C. Inguaggiato and Margaret R. Polito, New York City, on the application, for plaintiff.
    Richard K. Willard, Acting Asst. Atty. Gen., Washington, D.C., David M. Cohen, Director, Commercial Litigation Branch, Washington, D.C., J. Kevin Horgan, Washington, D.C., on the application, for defendant.
   MEMORANDUM OPINION AND ORDER

CARMAN, Judge:

Before the Court is plaintiff’s application for an award of attorney’s fees pursuant to the provisions of the Equal Access to Justice Act of 1980, 28 U.S.C. § 2412(b) (1982). Defendant opposes the application in all its respects.

The underlying controversy pertains to a decision by the Secretary of the Treasury dated May 14, 1979, pursuant to the Anti-dumping Act of 1921, ch. 14, 42 Stat. 11, 15, repealed by Trade Agreements Act of 1979, Pub.L. No. 96-39, § 106, 93 Stat. 144, 193, determining that perchlorethylene from France was being sold in the United States at less than fair value and ordering the assessment of antidumping duties. See T. D. 79-149, 13 Cust.Bull. 348 (1979). The dumping finding continued in effect, and on August 31, 1982, plaintiffs corporate predecessor, Chloe Chimie, filed a formal revocation application with the International Trade Administration (ITA) of the Department of Commerce. On November 17, 1982, the ITA published the preliminary results from its periodic review under 19 U. S.C. § 1675(a) (1982) (section 751 review). See 47 Fed.Reg. 51,779 (1982). That notice stated that although the firm did not ship perchlorethylene for over 3 years, under the “Department’s minimum requirements,” 4 years of no shipments was necessary. On April 20, 1983, the ITA published the final results of the section 751 review. See 48 Fed.Reg. 16,929 (1983). Revocation was denied because the period of no shipments had not reached 4 years. The notice also stated that it would consider the firm’s revocation request in its next administrative review, which the ITA “expect[ed] to complete ... in an expeditious manner.”

On August 19, 1983, the ITA published the preliminary results from its next 751 review. See 48 Fed.Reg. 37,678 (1983). The notice, in part dubbed “Tentative Determination to Revoke,”, stated that there had been no perchlorethylene shipments for 4 years and that the other requirements of 19 C.F.R. § 353.54(e) had been satisfied. On February 1, 1984, however, the ITA published the final results of its second 751 review and denied the request for revocation. See 49 Fed.Reg. 4,029 (1984). The notice stated it was the ITA’s intention to examine plaintiff’s exports for the period between May 19,1983 and August 19,1983, and to begin immediately the next review.

It is this failure by the ITA to revoke Treasury Decision 79-149 that forms the basis of the present application for attorney’s fees. Plaintiff argues that through telephone assurances, ITA policy declarations, prior practice, as well as the August 19, 1983 “Tentative Determination to Revoke,” it anticipated the • revocation of the dumping finding in the final results of the second 751 review. With this expectation, according to plaintiff, expensive marketing and sales preparations were made, all of which were severally disrupted by the failure to revoke the dumping finding. Plaintiff labels its treatment at the hands of the ITA “unprecedented, discriminatory and unlawful.”

Defendant, explaining the agency’s actions, states that after the publication of the preliminary results and “Tentative Determination to Revoke” on August 19, 1983, both plaintiff and the domestic petitioners lodged ' objections. Plaintiff requested that the finding be revoked only as to Atochem — the only known exporter of French perchlorethylene — but not as to any other French producer. Because of these objections, defendant states, the ITA believed that another administrative review was required under 19 C.F.R. § 353.54(f) (1984). Under that regulation, before the Secretary may revoke a dumping finding, it is necessary to prove no sales at less than fair value right up to the date of publication of the Tentative Determination to Revoke. Thus, the ITA stated it would conduct an additional administrative review covering the period from May 19,1983 until August 19, 1983.

On February 6,1984, plaintiff filed a civil action in the Court of International Trade seeking a declaration of the unlawfulness of the ITA’s actions. On June 18, 1984, plaintiff submitted its brief under Rule 56.1 of the Rules of this Court. On August 7, 1984, after one time extension had been granted, the defendant filed a cross-motion to dismiss this action as moot, citing the imminent revocation of Treasury Decision 79-149. Finally, on August 15, 1984, the ITA published a notice revoking the dumping finding. See 49 Fed.Reg. 32,635 (1984).

Plaintiff opposed the motion to dismiss as moot and the matter was set down for a hearing. Immediately preceding oral argument, however, plaintiff and defendant stipulated that the matter was indeed moot. Plaintiff, nevertheless, persists in its attorney’s fees application.

DISCUSSION

A plaintiff seeking to recover attorney’s fees against the United States has a twofold barrier to overcome: the American Rule and the sovereign immunity doctrine.

In contrast to practice before English courts, parties in United States litigation have traditionally borne their own legal fees. Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717-18, 87 S.Ct. 1404, 1406-07, 18 L.Ed.2d 475 (1967). This restriction on fee shifting, the so-called American Rule, is, however, subject to certain statutory and judicially created exceptions. See, e.g., Civil Rights Act of 1964, 42 U.S.C. § 2000a-3(b) (1982); Sprague v. Ticonic National Bank, 307 U.S. 161, 167, 59 S.Ct. 777, 780, 83 L.Ed. 1184 (1939) (common fund exception).

Plaintiff in the instant matter proceeds under another well-recognized exception to the American Rule: the bad faith exception. This equitable doctrine holds that “attorneys’ fees may be awarded to a successful party when his opponent has acted in bad faith, vexatiously, wantonly, or for oppressive reasons.” F.D. Rich Co. v. United States ex rel. Industrial Lumber Co., 417 U.S. 116, 129, 94 S.Ct. 2157, 2165, 40 L.Ed.2d 703 (1974) (footnote omitted).

Plaintiff maintains the ITA, by its actions with respect to the revocation proceedings, displayed an “unjustified, obstinate, and bad faith refusal to accord plaintiff its rights under the antidumping statute and accompanying regulations.” Plaintiff’s Application for an Award of Attorney’s Fees, at 1.

Regarding the traditional sovereign immunity bar, plaintiff points to the Equal Access to Justice Act of 1980, 28 U.S.C. § 2412(b) (1982). That law subjects the United States to the assessment of legal fees “to the same extent that any other party would be liable under the common law.” Id.

There is no question that an agency’s conduct of an administrative proceeding may form the basis of an application to a court, under the Equal Access to Justice Act. See McQuiston v. Marsh, 707 F.2d 1082, 1086 (9th Cir.1983); Note, Awards of Attorney’s Fees in the Federal Courts, 56 St. John’s L.Rev. 277, 352 & n. 336 (1982). It is also settled that the Act applies to actions in the Court of International Trade. See Bar Bea Truck Leasing Co. v. United States, 4 CIT 137 (1982).

The question squarely presented to the Court is whether the circumstances surrounding the ITA’s refusal to revoke the dumping finding in the final results of the' second 751 review bear the traditional indicators that trigger the bad faith exception. Resolution of that issue rests within the sound discretion of the Court. See United States v. 2116 Boxes of Boned Beef, Weighing Approximately 154, 121 Pounds, 726 F.2d 1481, 1488 (10th Cir.), cert, denied, — U.S. —, 105 S.Ct. 105, 83 L.Ed.2d 49 (1984).

A survey of cases in the area demonstrates that the ITA’s actions were not of the kind that courts have' traditionally deemed vexatious, wanton or oppressive. In International Union of Petroleum & Industrial Workers v. Western Union Maintenance, Inc., 707 F.2d 425 (9th Cir. 1983), the court stated that an “unjustified refusal to abide by an arbitrator’s award may equate to an act taken in bad faith, vexatiously or for oppressive reasons.” Id. at 428. In that case, an arbitrator found in favor of a union and against the employer in a labor dispute involving a layoff. The employer, however, refused to abide by the arbitrator’s decision, and the union was forced to petition the district court for confirmation. The Ninth Circuit, after rejecting the employer’s contention that “justifiable grounds” existed to ignore the decision, stated that the award set forth “clear legal rights” which the employer was not at liberty to ignore. Id. at 429. The same court in another context has characterized the bad faith exception as applicable “ ‘only in exceptional cases and for dominating reasons of justice.’ ” United States v. Standard Oil Co. of California, 603 F.2d 100, 103 (9th Cir.1979) (quoting 6 J. Moore, Moore's Federal Practice ¶ 54. 77[2], at 1709-10 (2d ed. 1972)).

The Second Circuit has indicated that actions taken “entirely without color and ... asserted wantonly for purposes of harassment or delay” constitute bad faith for fee-shifting purposes. Browning Debentures Holders’ Committee v. DASA Corp., 560 F.2d 1078, 1088 (2d Cir.1977); see Weinberger v. Kendrick, 698 F.2d 61, 80. (2d Cir.1982), cert, denied, — U.S. —, 104 S.Ct. 77, 78 L.Ed.2d 89 (1983); Nemeroff v. Abelson, 620 F.2d 339, 348 (2d Cir.1980).

The District of Columbia Circuit, in evaluating a bad faith prosecution of a counterclaim, stated that the “fee-shifting sanction is invocable only for some dominating reason of justice,” and that its standards are “ ‘necessarily stringent.’ ” Lipsig v. National Student Marketing Corp., 663 F.2d 178, 180 (D.C.Cir.1980) (per curiam) (quoting Adams v. Carlson, 521 F.2d 168, 170 (7th Cir.1975)); see also Massachusetts Union of Public Housing Tenants v. Pierce, 577 F.Supp. 1499, 1503-04 (D.D.C.1984); Aero Corp. v. Department of the Navy, 558 F.Supp. 404, 418-19 (D.D.C.1983).

It is thus clear that a court should not lightly infer bad faith on the part of a litigant for purposes of attorney’s fees awards. In this case, the Court finds that the ITA did not abuse clear legal rights nor engage in wanton, vexatious behavior. Indeed, the ITA, far from acting entirely without color of authority, was within the four corners of a regulatory standard.

Section 353.54 of the Commerce Regulations clearly empowers the Secretary to verify whether no sales at less than fair value have occurred up to the date of publication of the notice of tentative revocation. As discussed earlier, the ITA’s second 751 review, covering the period between May 1, 1982 through May 18, 1983, resulted in the publication, on August 19, 1983, of the preliminary results including a tentative determination to revoke.

At that juncture, there was clearly a short “interim period” (the time between the end of the previous 751 review and the publication of the tentative determination to revoke), in this case the time between May 19, 1983 and August 19, 1983, wherein the ITA had not investigated whether sales at less than fair value occurred. Section 353.54(f) clearly provides that the “interim period,” short though it may be, must be evaluated by the Secretary in the decision to revoke. With that regulatory injunctive in mind, the Secretary may conduct an administrative review of the “interim period.”

Plaintiff’s only assault on this practice is that other firms (alleged to be similarly situated) have had dumping findings revoked without a separate administrative review of the interim period. As indicated earlier, this “short-cut” method employed by the ITA is a matter of administrative leniency to be used in the discretion of the agency. Though the abridged procedure may have been used in every other similar case, it was not thereby metamorphosized into an entitlement. This Court does not normally compel an exercise of discretion. See Seaside Realty Corp. v. United States, 607 F.Supp. 1481, 1483 (1985).

Even assuming, arguendo, that plaintiff should have been accorded the same treatment as other firms that benefited from the short-cut method, the ITA contends plaintiff’s procedural posture should be distinguished from that of other firms. Indeed, it appears that the ITA did not waive administrative review of the interim period because plaintiff was not “similarly situated” with other firms that had received the benefit. As mentioned earlier, upon publication of the tentative determination to revoke, plaintiff and the domestic petitioners noted objections to the proposed revocation, maintaining that the dumping finding should be revoked only as to Atochem, the only known French producer of perchlorethylene, rather than as to all such French producers. If the ITA had proceeded to revoke the dumping finding in the face of noted objections, the revocation might have been subject to challenge for failure to comply with 19 C.F.R. 353.54(f). The ITA, therefore, found it inappropriate to revoke the dumping finding absent review of the interim period and strict compliance with the regulation. This is reflected in the affidavit filed by the staff attorney at the ITA who was responsible for conducting the administrative review. Defendant maintains that in the other cases where review of the interim period was waived, no objections were lodged against the tentative determination to revoke.

From the discussion above, the Court concludes that the ITA did not act in bad faith, vexatiously, with wantonness or for other oppressive reasons. This is not an exceptional case where clear legal rights were ignored or actions were taken entirely without color of authority; nor do “dominating reasons of justice” exist warranting an award of attorney’s fees to plaintiff.

Plaintiff’s application for an award of attorney’s fees is accordingly denied.

So ordered.

      . Perchlorethylene is a "clear, water-white liquid at ordinary temperature with a sweet odor and is completely capable of being mixed with most organic liquids.” "It is a chlorinated solvent used mainly for drycleaning of clothing, but is also used in other applications such as vapor degreasing of metals.” 48 Fed.Reg. 37679 (1983).

      . By virtue of Reorganization Plan Number 3 of 1979, 44 Fed.Reg. 68,273 (1979), made effective as of January 2, 1980 by Exec. Order No. 12,188, 45 Fed.Reg. 989 (1980), responsibility for the administration of the antidumping law was transferred from the Treasury Secretary to the Department of Commerce. Under Commerce Department regulations, an extant dumping finding may be revoked when, in the Secretary's estimation, a showing is made that less than fair value sales have ceased and are not likely to resume. See 19 C.F.R. § 353.-54(a), (b), (e) (1984).

      . Shortly after publication of the Tentative Determination to Revoke, the ITA requested that plaintiff confirm that no shipments were made through August 19, 1983 — the date of publication of the preliminary results. Evidently, the ITA was seeking information pertaining to the interim period between the end of the first 751 review and the publication of the Tentative Determination to Revoke.

      . 19 C.F.R. § 353.54(f) provides in part:

        Final determination. As soon as possible after publication of a “Notice of Tentative Determination to Revoke or Terminate” the Secretary will determine whether final revocation or termination is warranted____ [T]he Secretary may determine that a final revocation or termination is warranted only if the firm involved provides information showing no sales at less than fair value with respect to the subject merchandise up to the date of publication of the "Notice of Tentative Determination to Revoke or Terminate.”

      . Defendant has submitted a declaration by the staff attorney assigned to the Commerce Department team responsible for the instant administrative reviews. The staff attorney declares that the Department has, on occasion, used a “shortcut” procedure in revoking dumping findings. But this shortened procedure was employed only where no objections were lodged against the "Tentative Determination to Revoke.” According to the staff attorney, because objections were made in this case Commerce did not use the short-cut method.

      . Section 2412(b) reads in part:
      Unless expressly prohibited by statute, a court may award reasonable fees and expenses of attorneys ... to a prevailing party in any civil action brought by or against the United States or any agency and any official

        of the United States acting in his or her official capacity in any court having jurisdiction of such action. The United States' shall be liable for such fees and expenses to the same extent that any other party would be liable under the common law or under the terms of any statute which specifically provides for such an award.
      In addition, 28 U.S.C. § 2412(d)(1)(A) (1982) (repealed 1984), provides a more liberal stan-
      dard for awards of attorney’s fees against the United States. Under that provision, a prevailing party is entitled to a fee award unless the court finds that the position of the United States was “substantially justified" or that other "special circumstances" exist that would make an award unjust. Id. Atochem, however, does not satisfy the qualifications set forth in section 2412(d)(2)(B) and thus cannot avail itself of the more liberal standard.

      . Plaintiff has noted that the sole basis for its request for attorney’s fees is the behavior of the ITA in conducting the administrative proceedings. The Department of Justice and its attorneys have, in plaintiff’s words, been "completely professional.”

      . As noted earlier, on August 15, 1984, the ITA published a notice revoking the dumping finding at issue in this case. Immediately proceeding oral argument on defendant’s motion to dismiss this civil action as moot, plaintiff and defendant stipulated that the action was indeed moot. The Court approved the stipulation on March 11, 1985.
      Based on this dismissal for mootness, defendant devoted a substantial part of its opposition to the application for attorney’s fees to a discussion of why plaintiff was not a "prevailing party” within the meaning of 28 U.S.C. § 2412(b). Because the Court has found an absence of bad faith on the ITA’s part, this issue is not essential to the disposition of the application. The Court notes, however, that it is fairly settled that a plaintiff may be a prevailing party where the suit has been rendered moot by virtue of the granting of the requested relief. See Foster v. Boorstin, 561 F.2d 340, 342-43 (D.C.Cir.1977) (decided under 1964 Civil Rights Act). A court's inquiry before awarding legal fees, however, should extend into the causal relationship between the chronology of the lawsuit and the granting of the requested relief. This "catalyst” theory, used where it is contended that the filing and prosecution of a lawsuit served as the impetus for the tendering of the requested relief, though not reached in deciding this case, would nevertheless require substantially more evidence than is before the Court at present. A mere chronology of events will not suffice on this issue. See Nadeau v. Helgmoe, 581 F.2d 275, 281-82 (1st Cir.1978).


author: HORTON, District Judge.

text:
    Judy HAMILTON, dependent widow of Bobby Ray Hamilton, deceased; Robert Calvin Hamilton, dependent minor child of Bobby Ray Hamilton, deceased; Jonathan Ray Hamilton, dependent minor child of deceased, Plaintiffs, v. Robert BEAN; John Bynum; William Hatfield; Frank Shriner; and Sammy Pickett, Defendants.
    No. C-81-1123.
    United States District Court, W.D. Tennessee, E.D.
    May 23, 1983.
    Motion to Alter or Amend Denied July 28, 1983.
    Emond & Vines, Birmingham, Ala., for plaintiffs.
    Herbert S. Sanger, Jr., Gen. Counsel for Tennessee Valley Authority, James E. Fox, Associate Gen. Counsel, Robert E. Wash-burn, Richard B. Campbell, Knoxville, Tenn., for defendants.
   ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

HORTON, District Judge.

This is an action by the widow and children of Bobby Ray Hamilton against five supervisory employees of the Tennessee Valley Authority. Plaintiffs allege that Hamilton, while working at TVA’s Pickwick Landing Main Lock Project near Savannah, Tennessee, was fatally injured when a scaffold on which he was standing tilted violently, causing him to fall to his death. This cause is before the Court on a motion for summary judgment filed by the defendants. After careful consideration and a thorough review of the record, the Court grants the motion.

The following facts are not in dispute and are contained in a Pretrial Order entered February 4, 1983:

1. On August 15, 1980, Bobby Ray Hamilton was a carpenter employed by TVA, acting within the course and scope of his employment at TVA’s construction project at Pickwick.
2. Mr. Hamilton was killed on August 15, 1980, in an accident at Pickwick while working for TVA as a carpenter. He was 32 years old at his death, and he had worked for TVA for 15 months.
3. Plaintiffs Judy Hamilton, Robert C. Hamilton and Jonathan R. Hamilton are Bobby Hamilton’s widow and children.
4. Each of the defendants was, at the time of the accident and at the time this action was filed, a TVA employee acting within the scope of his official duties at Pickwick on August 15, 1980.
5. At the time of the accident Mr. Hamilton was working in a crew with two other men — James P. Russell and Joel M. McAnally. The crew, including Hamilton, was removing steel and wood forms for concrete pours, which are also used as scaffolds.
6. Mr. Hamilton died instantly when he fell about 60 feet to the concrete floor of the lock.

The defendants contend that they are entitled to judgment as a matter of law under the circumstances of this case since the complaint is one essentially of negligence in failing to furnish a safe work place, which, according to defendants, is a duty of the employer alone and cannot form the basis of liability against individual employees.

A review of the pertinent portions of the complaint is helpful. Paragraphs 5 and 6 read as follows:

5. The defendants, Robert Bean, John Bynum, William Hatfield, Frank Shriner and Sammy Pickett, were supervisor co-employees of plaintiffs’ decedent or executive officers of plaintiffs’ decedent’s employer and, as such, had been delegated responsibility by their said employer to provide plaintiffs’ decedent with a safe place to work and/or a reasonably safe work environment. The said defendants negligently or wantonly breached this duty by failing to provide the plaintiff with a safe place to work and/or a reasonably safe work environment and said negligent or wanton conduct was a proximate cause of plaintiffs’ decedent’s fatal injuries.
6. The defendants, Robert Bean, John Bynum, William Hatfield, Frank Shriner and Sammy Pickett, were supervisory co-employees of plaintiffs’ decedent or executive officers of plaintiffs’ decedent’s employer and, as such, each said defendant had the right to and did control the conditions, methods and manner in which work was performed at the time and place of the occurrence made the basis of this lawsuit. Said defendants negligently and/or wantonly controlled the conditions, methods and manner in which said work was being performed and said negligent and/or wanton conduct was a proximate cause of plaintiffs’ decedent’s fatal injuries.

Plaintiffs’ response to the summary judgment motion indicates that the particular negligence complained of is that defendants “violated various provisions of the Tennessee Valley Authority Hazard Control Manual as well as other applicable standards.”

The Hazard Control Manual is a document prepared by TVA. Part II of the manual is entitled “TVA Line Control Plan.” Section 5.1 of Part II states that the “Board of Directors is responsible for establishing, implementing and maintaining a hazard control program which is consistent with or exceeds the standards promulgated under Section 6 of the Occupational Safety and Health Act of 1970 (OSHAct) and any other applicable Federal regulations.” The Line Control Plan directs various TVA employees to implement and ensure compliance with these safety standards.

Based on the plan and'defendants’ job descriptions, plaintiffs contend that each of the defendants was directed as part of his job to ensure that all safety standards were implemented. According to plaintiffs’ response to the motion, “[ejach defendant is being sued for their personally negligent acts in not implementing or complying with, in varying fashions, the Hazard Control Standards adopted by the [TVA] Board of Directors as well as other applicable standards____” Thus it is clear to the Court that this suit is strictly based upon an alleged failure to provide a safe work place. It is plaintiff’s position essentially that this duty had been delegated to the defendants, as employees of TVA, who allegedly breached that duty.

The fatal flaw in. the complaint is that under Tennessee law, which is applicable in this ease, the duty to furnish an employee a reasonably safe place to work is the duty of the employer, and that duty is ‘.‘personal, continuous, and non-delegable.” Overstreet v. Norman, 314 S.W.2d 47, 50 (Tenn. App.1957), cert, denied.

The District Court for the Eastern District of Tennessee faced a case much like the one now before this Court in Whittle v. Atlas Powder Company, 34 F.Supp. 563 (E.D.Tenn.1940). In Whittle, the plaintiff sued his employer, Atlas, as well as the company’s manager and a foreman, for failure to furnish a safe working place. The issue before the court was whether the manager and foreman were proper parties to the suit. The court stated:

Under the common law it is the sole duty of the master to furnish a safe working place. It is generally held that this duty is one that cannot be delegated____ If it is the sole duty of the master to furnish a safe working place, then it would not matter by what personnel or means this is done. If there is a failure of the personnel, or means by which this is done, the responsibility is the master’s and not the personnel employed as the means.

Id. at 564.

In the case sub judice, one of the “means” by which TVA has chosen to carry out its duty to provide a safe work place is by establishing certain safety standards and guidelines and requiring its employees to implement and comply with these standards. However, the ultimate responsibility for providing a safe place remains, as a matter of law, with TVA and, in the words of the court in Whittle, “the responsibility is the master’s and not the personnel employed as the means [for carrying out this responsibility].” Id.

Plaintiffs have cited an unreported decision from the District Court in the Eastern District of Tennessee in support of their contention that the defendants breached a personal duty owed to the decedent. In Jackson v. McClung, # 1-80-347 (E.D. Tenn.), the court denied a motion for judgment notwithstanding the verdict when faced with an issue very similar to the one raised in this case.

In Jackson, the court agreed with the proposition that “the law in Tennessee establishes that where the only theory is failure to provide a safe work place, a co-employee may not be held liable.” However, Jackson was distinguishable from Whittle on the facts because there were allegations and proof of personal negligence on the part of the defendants. There was evidence that the defendants knew of the defective condition of the scaffold involved because of a previous accident report, that the defendants had been told to repair the scaffold but had failed to do so and that the defendants ordered the plaintiff’s decedent to work on the scaffold knowing the dangerous condition and having done nothing about it. Jackson, supra at 3. This situation presumably fell within the parameters of the Whittle case which stated that an intermediate supervisory employee can be held personally liable only if it is such employee’s “immediate act or command, which was the efficient cause or coefficient cause of the injury.” Whittle, supra at 564, citing Brown & Sons Lumber Company v. Sessler, 128 Tenn. 665, 163 S.W. 812 (1913).

The present case does not fall within the exception applied in the Jackson case. The complaint essentially does not allege any negligence other than the failure to carry out the employer’s duty of providing a safe work place. While the defendants’ motion was filed as a motion for summary judgment, this really is a situation where the complaint fails to state a claim upon which relief may be granted.

Although there is admittedly a scarcity of cases on point, Whittle still seems to be a correct statement of the law in this state. While the law in some other states would require a different result, this Court must apply the law applicable to the case. That being the obligation of the Court, the motion must be granted and the case dismissed.

IT IS SO ORDERED.

ON MOTION TO ALTER OR AMEND

This Court, by order dated May 19, 1983, granted defendants’ motion for summary judgment and dismissed this lawsuit. The basis for the dismissal was that plaintiffs’ complaint alleged negligence in failing to furnish a safe work place which, under Tennessee law, cannot form the basis for liability against individual employees. Now plaintiffs have filed motions to alter or amend the Court’s judgment and for leave to amend their complaint. The motions are denied.

First, it should be noted that plaintiffs had ample opportunity prior to the Court’s ruling to address the problem that led to dismissal of the complaint. The complaint was filed nearly two years. Even prior to the summary judgment motion, defendants raised, through discovery procedures, questions about the sufficiency of the complaint. After the motion was filed, plaintiffs had more than enough time to place the record in an appropriate posture for consideration by the Court. Although leave to amend is generally given freely, this Court cannot allow its orders of dismissal to serve simply as advisory opinions and then allow plaintiffs to make new allegations in an amended complaint that could, with due diligence, have been made long ago.

More importantly, however, the Court is convinced that the amendment, even if allowed, would be futile, since the proposed amendment does not remedy the deficiencies of the original pleadings. Language has been added to allege personal negligence, but it is quite clear that the nature of the complaint still relates to failure to provide a safe work place. No new factual allegations have been made. Plaintiffs couch the allegations in different terms but do not change the essence of the complaint.

Plaintiffs claim that certain unsafe conditions existed at the job site and that these conditions caused the death of plaintiffs’ decedent. As the Court noted in its previous order, the duty to furnish an employee a reasonably safe place to work is the duty of the employer and that duty is “personal, continuous, and non-delegable.” Overstreet v. Norman, 314 S.W.2d 47, 50 (Tenn.App.1957), cert, denied.

Claiming, as plaintiffs do in the proposed amendment, that the defendants “knew or should have known” that unsafe conditions existed and that they failed to correct the conditions is not sufficient to convert the case into one of personal negligence. A quote cited in the Court’s previous order is appropriate:

If it is the sole duty of the master to furnish a working place, then it would not matter by what personnel or means this is done. If there is a failure of the personnel or means by which this is done, the responsibility is the master’s and not the personnel employed as the .means.

Whittle v. Atlas Powder Company, 34 F.Supp. 563, 564 (E.D.Tenn.1940).

Therefore, the Court must deny the motions.

IT IS SO ORDERED.

      . The defendants also raise issues relating to immunity, contributory negligence and assumption of the risk. Since the Court’s order is dispositive of the case, however, these other issues need not be addressed.

      . For example, Louisiana has adopted the position that the duty to provide a safe work place may be imposed upon an employee "solely because of the employment or agency relationship" and its breach may make him “individually liable for harm thereby sustained" by a co-employee. Vega v. Southern Scrap Material Company, 517 F.2d 254, 258 (5th Cir.1975), quoting Canter v. Koehring Company, 283 So.2d 716, 722 (La.1973).


author: BALDOCK, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Ralph Norman DYER, Michael John Marchiondo, Don P. Garcia and Delnita L. Peterson, Defendants.
    No. CR 83-230.
    United States District Court, D. New Mexico.
    Dec. 28, 1983.
    William L. Lutz, U.S. Atty., and Don J. Svet, First Asst. U.S. Atty., Albuquerque, N.M., for plaintiff.
    Michael Alarid, Jr., and Timothy Padilla, Albuquerque, N.M., for defendant Delnita L. Peterson.
   ORDER

BALDOCK, District Judge.

THIS MATTER having come on for consideration of defendant Delnita L. Peterson's Motion to Suppress Statements and Motion to Suppress, and the court, having reviewed the text of each motion, the relevant law, and otherwise being advised fully in the premises, finds that each Motion is not well taken and should be denied without a hearing.

An evidentiary hearing on a Motion to Suppress is not granted as a matter of course. F.R.Crim.P. 12(c) (Court may set a date for hearing, if required.). Such a hearing is required only when the defendant alleges facts, “sufficiently definite, specific, detailed, and nonconjectural, to enable the court to conclude that a substantial claim is presented.” Cohen v. United States, 378 F.2d 751, 761 (9th Cir.), cert, denied, 389 U.S. 897, 88 S.Ct. 217, 19 L.Ed.2d 215 (1967). Furthermore, the Defendant’s Motion must raise factual allegations which, if established, would warrant relief. Grant v. United States, 282 F.2d 165, 170 (2nd Cir.1960). These allegations must be more than “general and conclusory or based upon suspicion and conjecture.” Cohen, 378 F.2d at 760. There must be some specific factual basis underlying the defendant’s constitutional theory of suppression. At a minimum, this is necessary to alert the court what wrong the defendant complains of.

Whether to hold an evidentiary hearing on a defendant’s allegations is determined by the trial judge on a case by case basis. United States v. Poe, 462 F.2d 195, 197 (5th Cir.1972). In the instant case, the defendant has failed to accompany either motion with a memorandum of points and authorities which integrates the facts of this case with the law. The Memorandum in Support of Defendant’s Motion to Suppress merely cites two constitutional provisions and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). No effort is made to explain and apply the law to this case. The Memorandum in Support of Defendant’s Motion to Suppress Statements, though longer, is more a tribute to word processing and copying equipment than to counsel’s ability to evaluate and analyze the facts of this particular case and apply the law to reach a conclusion. This “canned” memorandum, which in theory might apply to every criminal case, is of no help to the court.

Further, neither motion itself incorporates sufficient factual detail. The defendant merely asserts within each motion conclusory allegations. Such allegations do not require a hearing.

WHEREFORE, IT IS ORDERED that defendant Delnita L. Peterson’s Motion to Suppress Statements and Motion to Suppress be, and the same hereby are, denied.


author: AUBREY E. ROBINSON, Jr., Chief

text:
    Bonita V. SCOTT, Plaintiff, v. Malcolm BALDRIDGE, Secretary of Commerce, Defendant.
    Civ. A. No. 81-2385.
    United States District Court, District of Columbia.
    Jan. 12, 1984.

      Robert E.L. Eaton, Jr., Asst. U.S. Atty., U.S. Dist. Court, Washington, D.C., for defendant.
    Robert L. Bell, Washington, D.C., for plaintiff.
   FINDINGS OF FACT AND CONCLUSIONS OF LAW

AUBREY E. ROBINSON, Jr., Chief

I. FINDINGS OF FACT

1. Plaintiff, Bonita V. Scott, is a Black' female who is currently employed in the Minority Business Development Agency (MBDA), United States Department of Commerce. She is a GS-9 Program Specialist in the Capital Development Division, Office of the Deputy Associate Director for Market Development. She has held that position since 1978. She had previously served in the Capital Development Division in an unestablished position. Between April 1973 and June 1978 Scott worked in the Legal Staff and then in the Office of Chief Counsel. Her promotion to her current GS-9 grade was in 1974.

2. In this action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., the Defendant, Malcolm Baldridge, is sued as the Secretary of the United States Department of Commerce. Plaintiff alleges that she was denied a promotion to grade GS-11 because of race and sex discrimination.

3. Scott worked under the supervision of James Marx, Chief of the Capital Development Division between July 1978 and February 1980. The position of Chief of the Capital Development Division was not filled after Mr. Marx vacated it in February 1980 until Lloyd Arrington assumed the position of Chief of the Capital Development Division in the summer of 1981.

4. As a result of a reorganization within the Minority Business Development Agency, Philibert LaBonte became Deputy Associate Director for Market Development, a GS-15 position. He had four divisions under his supervision; the Industry and Trade Division, the Government Resources Division, the Capital Development Division and the Management Development Division. The position of Chief for each of these Divisions was vacant except for the Management Development Division in which Al Roma served as Chief.

5. Personnel in the Capital Development Division in 1980 included Lonnie Murray, Project Officer, GS-13; Plaintiff Scott; Diane Bush, Clerk-Stenographer, GS-4; and for a few months beginning in October, Edith Pack, Secretary, GS-7. Murray and Bush are Black employees; Pack is white.

6. LaBonte was supervised by the Associate Director, Policy and Management, Martha Mitchell. Mitchell was followed in the position of Associate Director by Clifford O. Young and then by Allen A. Stevenson. All are Black.

7. Under the direction of Martha Mitchell, LaBonte served as Acting Chief for the Capital Development Division, the Industry and Trade Development Division and the Governmental Resources Development Division during vacancies in those positions. Until Arrington assumed the position of Chief of the Capital Development Division in the summer of 1981, LaBonte was the Administrative Supervisor for employees in that Division including Plaintiff Scott.

8. During the period in which LaBonte was Acting Chief of the Capital Development Division, he did not recommend any employee for promotion.

9. The Capital Development Division had a heavy workload of projects in 1980 and was understaffed. Scott and Murray performed all of the professional work in the Division and divided the workload between themselves. They did what was necessary to get a particular project or work assignment done properly. Between themselves they dealt with all aspects of grant administration within the Division. They had a pleasant and harmonious working relationship. This relationship and their joint skills and experience allowed them to produce the quantity and quality of work that satisfied LaBonte. Scott’s abilities were readily accepted by Murray and LaBonte. Murray’s assessment of Scott’s performance is indicated by the performance evaluation he made of her at LaBonte’s instruction. Murray also submitted a recommendation through LaBonte that Scott be promoted to the-GS-1101-11 grade level based on an accretion of her duties and the high-quality of her performance. No action was taken on his recommendation.

10. Murray who had made recommendations concerning Scott’s performance appraisal had never read her position description and was not familiar with the duties and responsibilities that were assigned to her by that position description. Labonte’s familiarity with Scott’s work was derived from the correspondence and written work products concerning the Capital Development Division which went through his office. He reviewed those documents and the authors as indicated in them. This was the basis for his assessment of Scott.

11. LaBonte had little personal contact with his Black employees. He had more personal contact with his white employees with whom he acted more at ease. This was perceived by the Black employees as treating them “differently.” But this difference in treatment did not result in more favorable treatment of whites, nor conversely, less favorable treatment of Blacks. No whites were promoted by him. He reassigned Diane Bush, a Black, from a temporary position to a full time position. He had recommended Carolyn Pleasant, a Black, for a sustained superior performance award. He softened Mitchell’s downgrade of Scott’s performance evaluation.

12. LaBonte’s failure to discuss with his employees the appropriate section of their performance evaluations in 1981 before submitting them to Personnel, although admittedly in violation of regulations does not give rise to an inference that a racial motive was involved. The performance evaluations of all employees were submitted tardily in the same fashion.

13. Scott’s position was not in a career ladder. The only, means for a noncompetitive promotion for a position outside a career ladder is through an accretion of duties. The decision to add duties to a position is discretionary with management. In 1981, at LaBonte’s request, the Office of Personnel Operations conducted an audit of Scott’s position to determine whether it was properly classified. The audit was performed and an analysis of the job audit concluded that the position was properly classified at the GS-9 grade level. LaBonte did not add duties to Scott’s position nor did the Black supervisors who succeeded him. No racial animus was involved in Scott’s failure to be promoted.

14. There is no evidence of sex discrimination in this record.

CONCLUSIONS OF LAW

1. All of the jurisdictional prerequisites for the filing of this action have been satisfied. The Court has jurisdiction pursuant to 42 U.S.C. § 2000e-16 and the proceeding in this Court is de novo. Chandler v. Roudebush, 425 U.S. 840, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976).

2. In cases of alleged unlawful disparate treatment under Title VII, courts employ a three-stage order of proof derived from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The plaintiff has the initial burden of establishing a prima facie case of race or sex discrimination. If plaintiff meets this burden, the burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the negative employment action suffered by plaintiff. If defendant articulates a legitimate, non-discriminatory reason, the burden returns to plaintiff to demonstrate that the reason offered by defendant is not the real reason but is a pretext for discrimination. Plaintiff has the ultimate burden of proving discrimination by a preponderance of the evidence.

3. The elements of a prima facie case of employment discrimination, whether it be race or sex, are not confined to an inflexible formula, but necessarily vary from case-to-case, depending upon the underlying factual situation. McDonnell Douglas, 411 U.S. at 802 n. 13, 93 S.Ct. at 1824 n. 13. In the context of an alleged discriminatory refusal to promote, the United States Court of Appeals for the District of Columbia Circuit has suggested that a Title VII plaintiff may establish a prima facie case by showing that: (1) she belongs to a protected group; (2) she was qualified for and applied for a promotion; (3) she was considered for and denied the promotion; and (4) other employees of similar qualifications who were not members of the protected group were indeed promoted at the time plaintiffs request for promotion was denied. Freeman v. Lewis, 675 F.2d 398, 400 (D.C.Cir.1982).

4. Plaintiff Scott claims that offi- . cials at the Department of Commerce refused to promote her to a GS-11 level on account of her race and sex. Even assuming that Plaintiff made out a prima facie case of unlawful discrimination, the Court concludes that Defendant possessed and articulated sufficiently legitimate non-discriminatory reasons why Plaintiff was not promoted or recommended for promotion in 1980 or 1981. Because Plaintiffs position is not in a career ladder, the only means for a non-competitive promotion is through an accretion of duties. LaBonte, after examining Plaintiffs work performance, determined that additional duties should not be added to her position in order to increase the grade level. He based this determination on an examination of the documents she prepared. Similarly, Plaintiffs Black supervisors who succeeded LaBonte did not add duties to her position to enable her to increase her grade level. Finally, LaBonte’s failure to discuss Plaintiffs performance appraisals with her prior to its. submission to the personnel office did not adversely affect her promotion rights in' that the only specific matter which LaBonte was obligated to discuss with her was the fact that she was rated satisfactory and in that the appraisal was available to Plaintiff and could have been amended, if appropriate, after its submission.

5. At this stage of the analysis, according to the Court in Burdine:

[i]f the defendant carries this burden of production, the presumption raised by the prima facie ease is rebutted, and the factual inquiry proceeds to a new level of specificity ... The plaintiff retains the burden of persuasion. [The plaintiff] now must have the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision. This burden now merges with the ultimate burden of persuading the Court that she has been the victim of intentional discrimination.

Burdine, 450 U.S. at 255-56, 101 S.Ct. at 1094-93. Based on the foregoing findings, the Court concludes that the Plaintiff failed to demonstrate by a preponderance of the evidence that those reasons proffered by the Defendant were not in fact the true reasons for the personnel decisions in question. Accordingly, the Court finds that judgment must, therefore, be entered for the Defendant and this case is dismissed.