author: MISHLER, District Judge.

text:
    Andrew VALENTI, Plaintiff, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.
    No. CV 83-1823.
    United States District Court, E.D. New York.
    Nov. 19, 1984.

      Binder & Binder, Hauppauge, N.Y., for plaintiff.
    Raymond J. Dearie, U.S. Atty., E.D. New York, Reuben Koolyk, Asst. U.S. Atty., Brooklyn, N.Y., for defendant.
   Memorandum of Decision and Order

MISHLER, District Judge.

Plaintiff brought this action pursuant to section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), seeking review of a final determination of the Secretary of Health and Human Services (the “Secretary”), denying plaintiff Social Security disability insurance benefits. Plaintiff applied for disability benefits on October 27, 1981. This application was denied initially and again on reconsideration. Plaintiff requested a hearing which was held on May 27, 1982.

The Administrative Law Judge (“ALJ”) considered the case de novo and on July 7, 1982 found that the plaintiff was not disabled. The ALJ’s decision became final on March 14, 1983 when the Appeals Council affirmed it. Both parties now move for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c).

FACTS

Plaintiff was born on June 30, 1933 and has a 10th grade education. He has worked primarily as a truck loader and driver. Plaintiff alleges that he has been disabled since May 29,1981 due to a lumbosacral sprain, a possible right wrist fracture, and a sprained left ankle with disabling pain. (Tr. p. 45).

Plaintiff was injured on May 29, 1981 while loading his truck. He tripped on a hole in the floor and fell backwards breaking his fall with his left hand. (Tr. p. 32). The next day he went to the emergency room of John T. Mather Memorial Hospital which diagnosed his condition as a lumbosacral contusion and wrist sprain. (Tr. p. 83-85).

Dr. James W.G. Murray, an orthopedic surgeon and plaintiff’s treating physician, treated plaintiff from June 1, 1981 to April 20, 1982. (Tr. p. 103). On June 1, 1981, Dr. Murray reviewed the X-rays from Mather Memorial Hospital. He then Xrayed plaintiff’s left ankle. On June 1, 1981 he diagnosed plaintiff’s condition as back pain due to a severe lumbosacral sprain, swelling due to a torn left ankle ligament, and a limitation of flexion in the right wrist with pain and tenderness. (Tr. p. 103). He prescribed wrist and back braces. (Tr. p. 103-104). Dr. Murray referred plaintiff to Dr. Lawrence Hurst, a hand surgeon, for a consultation. Dr. Hurst saw plaintiff on March 1, 1982 and again on March 8, 1982. (Tr. p. 104). He took additional X-rays of plaintiffs wrist. Id. The X-rays indicated a severe ligamentous injury with evidence of arthritis. Id. The doctor recommended wrist fusion surgery, but recommended it be deferred due to plaintiffs excessive weight and hypertension. Id. Dr. Murray, plaintiffs treating physician, also referred plaintiff to Dr. Wani, a neurologist, who examined plaintiff on March 26, 1982. (Tr. p. 104). Dr. Wani confirmed Dr. Murray’s diagnosis of claimant’s back problem. Id. Dr. Murray saw plaintiff again on June 11, July 28, September 28 and October 26, 1981. Id. His report was prepared on April 20, 1982. He maintained that plaintiff would not be able to drive or load a truck and that he was “completely disabled at that time.” (Tr. p. 104-105).

Dr. Rodolpho Cane, a Social Security consulting physician, examined plaintiff on November 24, 1981. (Tr. p. 95). This report essentially concurred with Dr. Murray’s diagnosis (i.e., a possible right wrist fracture, a lumbosacral sprain, and a sprained left ankle) except that he expressed no opinion as to whether plaintiff was disabled. (Tr. p. 96).

The plaintiff’s residual functional capacity evaluation was completed by Dr. Prusdorf, a Social Security reviewing physician. (Tr. p. 98). It indicated that plaintiff could walk, sit and stand for 3-6 hours, lift, push and pull 10-20 pounds and use his hands for fine and gross manipulations. Id. At the hearing held on May 27, 1982, plaintiff testified that he could sit for up to 20 minutes after which his back became stiff and sore. (Tr. p. 35). He indicated that although his ankle hurt while he stood, he only experienced slight pain when sitting. (Tr. p. 36). He also testified that his wrist hurt when he moved it and that, as a result, he had a weakened grip. (Tr. p. 37).

The ALJ concluded that plaintiff had sustained his burden of proving his inability to return to his previous work as a truck driver and loader. Nevertheless, the ALJ held that plaintiff was not disabled under the Social Security Act because he was still capable of performing sedentary work. (Tr. p. 15). However, the ALJ did not specify, with any particularity, the jobs which plaintiff could allegedly perform. The ALJ did take administrative notice of the existence of sedentary work in the national economy, but did not indicate the basis for such notice. In addition, the ALJ relied on the medical vocational guidelines (the “Grid”) without the testimony of a vocational expert.

DISCUSSION

The issue in this case is whether the Secretary sustained her burden of proving that other work existed in the national economy which plaintiff could perform.

“A person is ‘disabled’ within the meaning of the [Social Security] Act ... if he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which ... can be expected to last for a continuous period of not less than 12 months ...’ 42 U.S.C. § 423(d)(1)(A).” Carroll v. Secretary of H.H.S., 705 F.2d 638, 641-42 (2d Cir.1983). The burden of proof is initially on plaintiff to show that he is unable to return to his previous work. Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982) (per curiam); Aubeuf v. Schweiker, 649 F.2d 107, 112 (2d Cir.1981); Parker v. Harris, 626 F.2d 225, 231 (2d Cir.1981). Once the plaintiff proves his inability to return to his previous work, the burden then shifts to the Secretary to show that there is other work existing in the national economy which plaintiff could actually perform in light of his age, education and work experience. Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952, 1954, 76 L.Ed.2d 66 (1983); Carroll, supra, at 642; Aubeuf, supra, at 112; Parker, supra, at 234.

On appeal the function of the court is to examine the record as a whole to determine whether the Secretary’s conclusions are supported by substantial evidence and if they are supported by substantial evidence and if they are supported by such evidence, they are conclusive. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Parker, supra. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson, supra, at 401, 91 S.Ct. at 1427.

The court finds that the Secretary’s decision is not supported by substantial evidence.

The Secretary erred when he summarily took administrative notice that sedentary work existed in the national economy. While administrative notice may be appropriate in certain cases, see McLamore v. Weinberger, 538 F.2d 572, 575 (4th Cir.1976), it may be rejected in two situations: first, if the ALJ does not provide a job description which clarifies the nature and requirements of such jobs, Decker v. Harris, 647 F.2d 291 (2d Cir.1981); Bastien v. Califano, 572 F.2d 908, 912-13 (2d Cir.1978), and second, if the ALJ does not show that claimant was actually able to perform such jobs. Parker, supra, at 234. The purposes for rejecting administrative notice in these two situations is to insure “procedural fairness to claimant and [to preserve] an adequate record for review.” Decker, supra, at 298.

In the present case, the ALJ merely took administrative notice that sedentary jobs existed in the national economy. He did not provide plaintiff with either a job description or proof that plaintiff was able to perform such work. The ALJ’s actions, therefore, did not comport with procedural fairness because the plaintiff was not afforded an adequate opportunity to challenge the suitability or availability of the jobs of which the ALJ had taken administrative notice. Decker, supra, at 298. The ALJ also erred by not indicating the basis for the administrative notice as is required by the Social Security regulations. See 20 C.F.R. § 404.1566(b).

Furthermore, a vocational expert should have been called to testify as to plaintiff’s ability to perform such work. Ferguson v. Schweiker, 641 F.2d 243 (5th Cir.1981); Kenny v. Weinberger, 417 F.Supp. 393, 399 (E.D.N.Y.1976). The ALJ’s reliance on the Grid in Appendix 2, 20 C.F.R. Subpart P, Table No. 1, without vocational expert testimony is erroneous. Id. While the guidelines by themselves may be useful and controlling in clear cases, generally a vocational expert is needed. Id.; but see Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983) (the Grid may be relied on without vocational expert testimony in appropriate cases) (emphasis added). A vocational expert’s testimony is unnecessary when a claimant can, for example, perform any type of sedentary work. Ferguson, supra, at 248 (emphasis in original). However, when the claimant can perform only limited types of sedentary work, then a vocational expert must be called to testify. Id. In the present case, plaintiff’s condition, as diagnosed by both the treating and consulting physicians, indicates a limited ability to perform sedentary work. Thus, a vocational expert should have been called to testify at the hearing.

In view of the aforementioned omissions in the record, the court finds that the ALJ’s decision is not supported by the necessary factual findings. Therefore, the decision of the Secretary is vacated and the case is remanded to the Secretary with directions to have the ALJ make the appropriate factual findings.

SO ORDERED.

      . Sedentary work involves "lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools.” It also involves sitting and some walking and standing. 20 C.F.R. § 404.1567(a).


source: Caselaw Access Project

author: SWEET, District Judge.

license: Public Domain

text:
    Guarino GOMEZ, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
    No. 84 Civ. 0253 (RWS).
    United States District Court, S.D. New York.
    Nov. 27, 1984.
    Sher, Herman & Belloñe, P.C., New York City, for plaintiff; Peter S. Tipograph, New York City, of counsel.
    Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City, for defendant; Frederick M. Lawrence, Asst. U.S. Atty., New York City, of counsel.
   MEMORANDUM OPINION

SWEET, District Judge.

Plaintiff Guarino Gomez (“Gomez”) seeks judicial review of a final decision of the Secretary of Health and Human Services (the “Secretary”) terminating Gomez’s federal disability benefits and opposes the Secretary’s motion to remand. The motion is granted.

The Secretary moved for judgment on the pleadings pursuant to Rule 12(c), Fed.R.Civ.P., and thereafter moved for an order remanding the case pursuant to 42 U.S.C. § 405(g) and Dixon v. Heckler, 83 Civ. 7001 (S.D.N.Y. July 25, 1984), a class action brought in behalf of claimants who were denied disability benefits on the ground that their claimed impairment did not meet the “severity” standard of 20 C.F.R. § 404.1520(c). Gomez is a member of the Dixon class. After holding the “severity” regulation invalid in light of the statutory definition of disability, the Honorable Morris E. Lasker ordered the Secretary to consent to remand or move to remand in all cases involving Dixon class members, which motion is now at issue in view of Gomez’s opposition on the ground that a full record has already been developed in proceedings before the Social Security Administration which, Gomez contends, establishes a sufficient basis for a reversal of the prior determination.

Authority exists that permits me to retain this case in federal court, despite the ALJ’s application of an improper standard, if the record below is sufficiently developed for a determination of whether the ALJ’s decision should be reversed. See Glover v. Heckler, 588 F.Supp. 956, 959 (S.D.N.Y.1984); Muniz v. Heckler, 83 Civ. 6590 (S.D.N.Y.1984). However, where the decision of the Secretary is based on the application of an improper legal standard, a remand is the most appropriate remedy. See Chico v. Schweiker, 710 F.2d 947, 955 (2d Cir.1983); Zanella v. Heckler, 83 Civ. 6309 (October 5, 1984). It would be inappropriate for me to make a determination for the Secretary as to whether a plaintiff would have been found disabled if a proper standard had been applied. Since Dixon establishes as a matter of law that an improper legal standard was applied in denying Gomez’s application for disability benefits, the most appropriate relief this court can give is to remand the case for further proceedings pursuant to Dixon v. Heckler. See Higgins v. Heckler, 84 Civ. 1234 (S.D.N.Y.1984). That is, of course, without prejudice to Gomez’s right to seek further judicial review if, although applying the proper legal standards, the Secretary arrives at a result not supported by substantial evidence.

Motion granted. Case remanded, and complaint dismissed without prejudice.

IT IS SO ORDERED.


author: JOSÉ A. CABRANES, District Judge:

text:
    Mark S. BURKE v. INTERLAKE, INC., A.J. Bayer, Co., and Hallmark Cards, Inc.
    Civ. No. H 83-520.
    United States District Court, D. Connecticut.
    Nov. 28, 1984.

      William R. Moller, Robert M. Shields, Jr., Moller, Horton & Fineberg, P.C., Hartford, Conn., for plaintiff.
    John T. Scully, Cooney, Scully & Dowling, Hartford, Conn., for defendant Hallmark Cards, Inc.
   RULING ON MOTION TO DISMISS

JOSÉ A. CABRANES, District Judge:

This action is before the court on a Motion to Dismiss, filed on July 23, 1984, on behalf of defendant Hallmark Cards, Inc. (“Hallmark”, “the defendant”, or “the employer”). Hallmark seeks dismissal of Count Five of the plaintiffs Second Amended Complaint (filed June 13, 1984) (“the Complaint”), pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. In ruling on this motion, the court has considered the memoranda submitted by the parties, as well as the arguments presented by counsel at a hearing held on October 29, 1984.

The plaintiff in this action is a Connecticut resident and a former employee of the defendant, a Missouri corporation. The Complaint states, inter alia, that the plaintiff sustained severe injuries while loading pallets onto a conveyor system at the defendant’s distribution facility in Enfield, Connecticut. The plaintiff alleges in Count Five of the Complaint that his injuries were the proximate result of the wilful, wanton, and intentional acts of the defendant in failing to warn him of possible dangers in operating the conveyor system, failing to instruct him in the proper use of the conveyor system, failing to install adequate safety equipment, and failing to comply with state and federal laws governing the safety of the workplace. See Complaint at 12-15. In support of its motion, the defendant contends that the action against it cannot be maintained because the plaintiff’s exclusive remedy against his former employer is provided by the Connecticut Workers’ Compensation Act (“the Act”), Conn.Gen.Stat. §§ 31-275 to 31-355.

For the purposes of a motion to dismiss for failure to state a claim upon which relief can be granted, the well-pleaded material allegations of the complaint must be taken as admitted. Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172, 174-175, 86 S.Ct. 347, 348-49, 15 L.Ed.2d 247 (1965); George C. Frey Ready-Mixed Concrete, Inc. v. Pine Hill Concrete Mix Corp., 554 F.2d 551, 553 (2d Cir.1977). The court must construe the complaint liberally in the plaintiff’s favor, see Scheuer v. Rhodes, 416 U.S. 232, 236-237, 94 S.Ct. 1683, 1686-87, 40 L.Ed.2d 90 (1974), and may grant a motion to dismiss only if it is beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957); McLain v. Real Estate Board of New Orleans, Inc., 444 U.S. 232, 246, 100 S.Ct. 502, 511, 62 L.Ed.2d 441 (1980).

Since no federal question is presented, and the court’s jurisdiction over the present action is premised solely on the diversity of citizenship of the parties, see Complaint at 1-2; 28 U.S.C. § 1332, the court is bound to apply the substantive law of the forum state. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The parties appear to be in agreement that the law of Connecticut governs the substantive rights of the parties in this action. See Defendant’s Memorandum of Law in Support of the Motion to Dismiss (filed July 23, 1984) (“Defendant’s Memorandum”) at 4; Plaintiff’s Memorandum in Opposition to the Motion to Dismiss of the Defendant Hallmark (filed Sept. 24, 1984) (“Plaintiff’s Memorandum”) at 9-10.

Under Connecticut law, an employer is not liable in tort for damages due to personal injuries sustained by an employee “arising out of and in the course of his employment.” Conn.Gen.Stat. § 31-284 (a). Compensation for such injuries is provided pursuant to provisions of the Act, and the Connecticut Supreme Court repeatedly and consistently has ruled that, “when an employee’s injury is covered by the Workers’ Compensation Act, statutory compensation is the sole remedy and ... recovery in common-law tort against the employer is prohibited.” Sullivan v. State, 189 Conn. 550, 558, 457 A.2d 304 (1983). See Morin v. Lemieux, 179 Conn. 501, 503, 427 A.2d 397 (1980); Jett v. Dunlap, 179 Conn. 215, 217, 425 A.2d 1263 (1979); Horney v. Johnson, 167 Conn. 621, 622-623, 356 A.2d 879 (1975).

In seeking to avoid the consequences of this well established rule, the plaintiff relies on Jett v. Dunlap, supra, in which the Connecticut Supreme Court held that an employee who sustained injuries as the result of an intentional battery committed by his supervisor could not recover damages in tort from his employer. The Court impliedly created a narrow exception to the rule that workers’ compensation provides an exclusive remedy by suggesting in dicta that a common law action against the employer would not have been precluded by the Act if the employer had “intentionally directed or authorized [the supervisor] to strike the plaintiff.” Jett v. Dunlap, supra, 179 Conn, at 218, 425 A.2d 1263.

The exception impliedly carved out by the Connecticut Supreme Court in Jett is far too narrow to support the plaintiff’s common law claim against Hallmark in this case. The tort at issue in Jett was a supervisor’s intentional assault on an employee. Id. at 216, 425 A.2d 1263. The court held that workers’ compensation was a bar to the employee’s suit against his employer because the employee did not allege that the employer authorized the assault or that the supervisor was the alter ego of the employer. Id. at 219, 425 A.2d 1263. At most, the Complaint in this case alleges that the employer intentionally failed to take action that would have prevented the plaintiff’s injuries. Unlike the situation anticipated by the exception carved out in Jett, the plaintiff here does not allege that the employer was motivated by a desire to harm him.

The Connecticut Supreme Court made clear in Jett that it will allow plaintiffs to circumvent the workers’ compensation system only where an employer acts with an intent to injure an employee. The Court stated that “[w]here such willful or serious misconduct is engaged in by an employer, as identified by the standard we set forth today, then a plaintiff may pursue common-law remedies.” Id. at 221, 425 A.2d 1263. To permit the maintenance of a suit where no such intent to injure is alleged would be contrary to the approval in Jett of the “clear trend” of cases in the United States “to limit common-law tort actions for injuries arising out of and in the course of employment and to satisfy as many claims as possible under the compensation act.” Id. at 222, 425 A.2d 1263.

This interpretation of the state of the law in Connecticut following Jett is consistent with the only published opinion construing that case. See Hatcher v. Bullard Co., 39 Conn.Sup. 250, 254-255, 477 A.2d 1035 (1984) (Berdon, J.). In rejecting a claim identical to that raised by the plaintiff in the present case, the Superior Court held in Hatcher that an employer’s intentional, wilful, or wanton violation of safety regulations does not remove the bar created by the Act to common law tort actions. Id. See Carman v. Campbell, No. 264110 (Conn. Superior Court, Hartford County, July 26,1984) (adopting holding of Hatcher v. Bullard, supra). Judge Berdon ruled that the exception suggested by Jett applies only to conduct calculated to harm an employee, id. at 255, 477 A.2d 1035, and that an employer’s intentional failure to comply with safety regulations does not divest a resulting injury of its accidental nature or constitute conduct calculated to cause harm. Id. at 252-254, 477 A.2d 1035.

Both parties have directed the court’s attention to unpublished opinions of the Connecticut Superior Court that hold that an- actual intent to injure is not necessary to remove conduct from the reach of the workers' compensation system. See, e.g., Wisnor v. Radnor Manufacturing, No. 266470 (Conn. Superior Court, Hartford County, Nov. 16, 1982); Stephens v. Emson Research, Inc., et al., No. 207873 (Conn. Superior Court, Fairfield County, July 22, 1983). These decisions rest on a mistaken interpretation of Jett v. Dunlap, supra, and are not persuasive.

In ruling on a question of state law, a federal district court whose jurisdiction rests on diversity of citizenship must attempt to ascertain how the state’s highest court would rule in a similar matter. See King v. Order of United Commercial Travelers of America, 333 U.S. 153, 160-161, 68 S.Ct. 488, 492, 92 L.Ed. 608 (1948). In this case, the court must be guided by the Connecticut Supreme Court’s limited holding in Jett v. Dunlap, supra, and its repeated affirmations of the exclusivity of the remedies provided by the Act. See, e.g., Sullivan v. State, supra, 189 Conn, at 558, 457 A.2d 304; Morin v. Lemieux, supra, 179 Conn. at 503, 427 A.2d 397; Jett v. Dunlap, supra, 179 Conn. at 217, 222, 425 A.2d 1263. This court concludes that if the Connecticut Supreme Court were faced with a case such as this one, it would adopt the reasoning and holding of Hatcher v. Bullard, supra, and it would rule that § 31-284(a) of the Connecticut General Statutes precludes the plaintiff’s common law action against Hallmark.

* * *

The remaining argument raised in the Plaintiff’s Memorandum, to the effect that liability may be imposed on Hallmark under § 31-49 of the Connecticut General Statutes, is totally without merit. There is no authority for the proposition that § 31-49 is a basis for common law liability supplementing remedies provided under the Act.

Conclusion

For the reasons stated above, Hallmark’s Motion to Dismiss (filed July 23, 1984) is granted. Count Five of the Complaint is hereby dismissed.

It is so ordered.

      . Other defendants in this action are Interlake, Inc. and AJ. Bayer, Co., which are alleged to have designed, manufactured, sold and installed the conveyor system. See Complaint at 1-2.

      . Counsel for the plaintiff admitted at oral argument that the plaintiff has already received benefits under the Workers’ Compensation Act due to the injuries that form the basis of this action. Hallmark contends that the plaintiff may not receive a "double recovery” and that this fact alone precludes the plaintiffs action against it. See Defendant’s Memorandum at 10-12. It is unclear whether the Connecticut Supreme Court intended in Jett v. Dunlap, 179 Conn. 215, 425 A.2d 1263 (1979), to create a remedy that is an alternative to, or supplemental to, the statutory remedy provided under the Connecticut Workers’ Compensation Act, Conn.Gen.Stat. §§ 31-275 to 31-355. See Jett v. Dunlap, supra, 179 Conn. at 219; Hatcher v. Bullard Co., 39 Conn. Sup. 250, 257 n. 2, 477 A.2d 1035 (1984) (Berdon, J.). This unsettled question under Connecticut law need not be addressed in this ruling.

      . Section 31-284(a) provides, in relevant part,
      [a]n employer shall not be liable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained .... All rights and claims between employer and employees, or any representatives or dependents of such employees, arising out of personal injury or death sustained in the course of employment as aforesaid are abolished other than rights and claims given by this chapter ....

      . The Court elaborated on this point by noting that "[a]lmost every major error that can be observed in the development of compensation law, whether judicial or legislative, can be traced ... to the importation of tort ideas____”
        Jett v. Dunlap, supra, 179 Conn, at 222 n. 2, 425 A.2d 1263 (quoting Larson, The Nature and Origins of Workmen’s Compensation, 37 Cornell L.Q. 206, 207-208 [1952]).

      . This position is consistent with that urged by Professor Larson in his treatise on workers’ compensation law.
      Since the legal justification for the common-law action is the nonaccidental character of the injury from the defendant employer’s standpoint, the common-law liability of the employer cannot, under the almost unanimous rule [of jurisdictions in the United States], be stretched to include accidental injuries caused by the gross, wanton, wilful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or other misconduct of the employer short of genuine intentional injury____ Even if the alleged conduct ... includes such elements as ... wilfully and unlawfully violating a safety statute, this still falls short of the kind of actual intention to injure that robs the injury of accidental character.
      2A Larson, Workmen’s Compensation Law § 68.13, at 13-8 to 13-26 (1982).

      . It may be argued that the rule adopted in these cases is a better rule, since the prospect of common law liability may encourage employers to provide safe workplaces and to comply with mandatory safety regulations. Notwithstanding the possible merit to this argument as a matter of policy, it is not the function of this court to create exceptions to validly promulgated enactments of the state legislature.

      . Section 31-49, which was last revised in 1949, states in full that
      [i]t shall be the duty of the master to exercise reasonable care to provide for his servant a reasonably safe place in which to work, reasonably safe appliances and instrumentalities for his work and fit and competent persons as his co-laborers and to exercise reasonable care in the appointment or designation of a vice-principal and to appoint as such vice-principal a fit and competent person. The default of a vice-principal in the performance of any duty imposed by law on the master shall be the default of the master.


author: KRENZLER, District Judge.

text:
    Mary Ann DAKE, Plaintiff, v. MUTUAL OF OMAHA INSURANCE COMPANY, United of Omaha Insurance Company, Defendants.
    No. C84-808.
    United States District Court, N.D. Ohio, E.D.
    Nov. 29, 1984.
    Steven F. Mitchell, Cleveland, Ohio, for plaintiff.
    Curtiss Isler, Tom McDonald, Arter & Hadden, Cleveland, Ohio, for defendants.
   ORDER GRANTING PARTIAL SUMMARY JUDGMENT

KRENZLER, District Judge.

In this case, plaintiff Mary Ann Dake claims that she was illegally discriminated against on the basis of age when her contracts to sell insurance for Mutual of Omaha Insurance Company and United of Omaha Insurance Company were terminated. The complaint also contains two state claims based upon breach of contract and fraud.

Defendants have filed a motion for partial summary judgment on the ADEA claim, arguing that the plaintiff was not an employee of the defendant companies, but merely an independent contractor. Consequently, they argue, plaintiff is not covered by the ADEA and has no claim under the provisions of that Act. The plaintiff’s response argues that plaintiff was an employee, or, in the alternative, that plaintiffs status was enough in question that the determination of whether or not she was an employee should be left to the jury. The Court agrees with defendants and grants their motion for partial summary judgment.

In determining whether plaintiff is an employee under the ADEA, the Court looks first to the statute. Unfortunately, the statute, in the definition section, merely states, “The term ‘employee’ means an individual employed by an employer____” 29 U.S.C. § 630(f). Congress has obviously left the ADEA definition of employee up to the courts.

Four of the circuits have reported cases in the last two years regarding the inclusion or exclusion of certain persons from the ranks of employees under the ADEA. In EEOC v. First Catholic Slovak Ladies Association, 694 F.2d 1068 (6th Cir.1982), the court determined that individuals who served on the Association’s Board of Directors could be employees if their “primary role” was that of any employee. In establishing that these Directors were primarily employees, the court stated:

These individuals performed traditional employee duties: maintaining records, preparing financial statements, managing the office. They were responsible for their work to the governing body of the organization and they drew salaries as employees.

694 F.2d 1070. The court also approvingly noted that:

When interpreting the term “employee” in social welfare legislation such as the ADEA, Title VII, the Fair Labor Standards Act and the National Labor Relations Act, courts have used a broad definition so as to effectuate the stated purposes of these Acts.

Id. (citations omitted).

In the other circuits, the courts have been more explicit about trying to lay down a test for general application. In Hickey v. Arkla Industries, Inc., 699 F.2d 748 (5th Cir.1983), the court identified two tests for determining employee status. First was the test traditionally applied in Fair Labor Standards Act cases known as the “economic realities” test. Under this approach, an employee is one who is “economically dependent for his livelihood on the business to which he renders service.” Id. at 751 (citations omitted). Hickey then goes on to define the “hybrid” test which “looks at the economic realities of the situation but focuses on the employer’s right to control the employee as the most important factor in determining employee status.” Id. (citations omitted).

The Hickey court opted not to choose between these tests noting that as a “Manufacturer’s Sales Representative,” the plaintiff would not qualify under the more liberal economic realities test and it was therefore unnecessary to reach the question of which test was more appropriate. Still, the economic realities test applied in Hickey included factors going well beyond the economic dependence of the plaintiff on the defendant’s business and included “degree of control [by the employer]; opportunities for profit or loss; investment in facilities; permanency of relationship; and skill required.” Id. at 752 (citations omitted). Indeed, the test applied in Hickey closely resembles the “hybrid” test further explained and applied in the third and four circuits.

In EEOC v. Zippo Manufacturing Co., 713 F.2d 32 (3rd Cir.1983), after an exhaustive examination of the histories of the respective tests and their application, the court determined that the hybrid test was the appropriate test in ADEA cases. The court reasoned that because the ADEA’s substantive prohibitions were derived directly from those under Title VII, and because the determination of employee status is a question relating to substantive prohibitions, the established Title VII hybrid test was intended to apply to the ADEA, too. Factors to be considered, according to the court in Zippo, are the kind of work and supervision, the skill required, the provision of equipment and work space, the length of employment, the method of payment, the terms for termination, the existence of annual leave, the importance of the work to the employer, the extent of accrued retirement benefits, the method by which taxes are paid, and the intention of the parties. Id. at 37.

After adopting the hybrid test, the Zippo court determined that District Managers were not employees of Zippo. In making that determination, factors considered relevant were that District Managers worked on a commission basis, were not generally reimbursed for their expenses, received no additional salary or fringe benefits, did not have income tax withheld, had their earnings reported to the IRS on Form 1099, set their own working hours and vacation time without consultation with Zippo, and by contract could quit or be terminated for any reason or no reason with 30 days’ written notice.

This result is similar to the result in Hickey, supra, in which it was determined that the plaintiff was not an employee of the defendant corporation. Factors relevant to that determination were that plaintiff was paid on a commission basis, was not eligible for reimbursements or benefits from the employee retirement fund, did not have any taxes withheld, filed his taxes on forms for the self-employed, could sell the products of other companies, had personal control over the manner of marketing, distributing and advertising his product, did not have to report about his daily activities (although he did have to attend sales meetings), and could terminate his agreement to act as a Manufacturer’s Sales Representative on 30 days’ notice. Id. at 750, 751.

The hybrid test was again explicitly adopted for ADEA cases in Garrett v. Phillips Mills, Inc., 721 F.2d 979 (4th Cir. 1983). There again, the plaintiff, a salesman, was found not to be an employee under that test. In Garrett, the court found that the plaintiff was independent of the company’s control, not required to account for his daily activities, not prohibited from selling products of other companies, expected to set his own working hours and methods of selling, not reimbursed for operating expenses, treated as an independent contractor for tax purposes, and covered by a retirement plan eligible only to self-employed people. In addition, the plaintiff’s contract expressly provided that he was not to be considered an employee. Id. at 982.

This Court agrees with the Third, Fourth, and Fifth Circuits in their adoption and application of a hybrid test for determining employee status under the ADEA. While cognizant of the Sixth Circuit’s general preference towards broad interpretation of the term employee in social welfare legislation, the Court notes that the Sixth Circuit has not expressly set down a test for application. The hybrid test set down and applied in the other circuits is consistent with the Sixth Circuit’s treatment of this question in EEOC v. First Catholic Slovak Ladies Association, supra. Accordingly, this Court will apply the hybrid test in considering whether there is a genuine issue of material fact which would support a finding of the instant plaintiff’s status as an employee.

The plaintiff suggests that the Court mechanically apply the eleven factors listed in defendants’ brief, see whether plaintiff has satisfied any of these indicia of employee status, and if so, deny summary judgment. While these factors were considered by the Zippo court, that court identified the eleven factors as “[ojther factors that enter into a court’s determination of employee status under th[e] hybrid standard.” Similarly, the court in Spirides v. Reinhardt, 613 F.2d 826 (D.C.Cir.1979), which originally articulated the eleven factors cited in Zippo, called the factors “additional matters of fact ... among others.” This Court will not limit its determination to the eleven factors cited in Zippo nor will it attempt to set down a definitive list of factors relevant to the determination of questions of employee status. Instead, the Court will consider the facts of the instant case in the face of the two prongs of the hybrid test and make its determination.

The plaintiff’s duties and responsibilities as a salesperson for the defendant corporations were remarkably similar to those of the Sales Representative in Hickey, supra, the District Manager in Zippo, supra, and the salesman in Garrett, supra. Mary Ann Dake was paid on a commission basis (Dake deposition at 34), did not have taxes withheld by the defendants (Dake, pp. 35-36), used a Form 1099 to file her taxes (Dake, pp. 35-36), and admitted that she received no additional compensation or fringe benefit from the defendants (Dake, pp. 56, 60, 61). The plaintiff covered her own business expenses (Dake, pp. 62-64, 68-69), was free to solicit whomever she chose (Affidavits of Robert Kelly and Theodore Starr at 116), and was permitted to and did sell insurance for other insurance companies (Dake, pp. 20-25). She acknowledged that her earnings were based on how hard she worked and her own sales ability rather than upon the productivity or success of the defendants (Dake, pp. 54-55), and was, consequently, responsible for setting her own schedule (Dake, pp. 49-51, 91-92). Finally, plaintiffs contract with United of Omaha explicitly stated that she was not to be considered an employee, but an independent contractor. (Brief in Support of Defendant’s Motion for Summary Judgment, Exhibit E, page 2, under General Provision, Section (1).)

The combined application of the prongs of the hybrid test yield a clear determination that the plaintiff was not an employee of the defendants but was an independent contractor. The defendants exercised virtually no control over the plaintiff in her sales practices, and it could not be fairly concluded' that she was economically dependent upon the defendants given the meaning of that prong of the test by the courts. As noted by Judge Higgenbotham in Zippo, supra:

Although the Age Discrimination in Employment Act has such a laudable title that [it] might induce laymen to infer that the statute was designed to prevent all age discrimination against those who work for a living, its congressional purpose was far less extensive since it prohibits only some types of age discrimination. Although some people who discriminate against the aged might offend an increasingly shared social value which condemns such discrimination, such discrimination would not thereby violate any federal law unless it was specifically prohibited by Congress.

Id. at 35.

The plaintiff in this case does not qualify as an employee under the ADEA and is therefore unable to seek relief in the federal courts under its provisions. Accordingly, the defendants’ motion for partial summary judgment is granted and the plaintiff’s first cause of action is dismissed with prejudice.

This case will proceed to trial on the breach of contract and fraud claims, counts II and III in the plaintiff’s complaint.

IT IS SO ORDERED.


text:
    Royce KELLER, Plaintiff, v. SECRETARY OF the DEPARTMENT OF HEALTH AND HUMAN SERVICES OF the UNITED STATES, Defendant.
    No. CV 83-4341.
    United States District Court, E.D. New York.
    Nov. 30, 1984.

      Binder & Binder, Hauppauge, N.Y., for plaintiff; Charles E. Binder, Hauppauge, N.Y., of counsel.
    Raymond J. Dearie, U.S. Atty., E.D.N.Y., Thomas B. Roberts, Asst. U.S. Atty., Brooklyn, N.Y., for defendant.
   Memorandum of Decision and Order

MISHLER, District Judge.

ACTION

This is an action brought pursuant to § 205(g) of the Social Security Act (the “Act”), as amended, 42 U.S.C. 405(g), to review a final determination of the Secretary of the Department of Health and Human Services (“the Secretary”), which denied plaintiffs application for a period of disability insurance benefits. Both parties move the court for an order granting judgment on the pleadings pursuant to Fed.R. Civ.P. 12(c).

The plaintiff, Royce Keller, argues that the Secretary’s decision denying plaintiff disability benefits is not supported by substantial evidence. Specifically, plaintiff argues that the Administrative Law Judge (“AU”), improperly applied the Medical-Vocational Guidelines (“the GRIDS”), provided in 20 C.F.R., Part 404, Subpart P, Appendix 2, Table No. 2 to plaintiff’s case. FACTS

The plaintiff was 49 years old at the time of the hearing. His application for disability benefits was denied initially and on reconsideration (Tr. 86, 89). A hearing was held on October 21, 1982 before an ALJ. The AU rendered a decision on March 9, 1982, denying plaintiff’s application for benefits (Tr. 12-18). This decision became the final determination of the Secretary when the Appeals Council denied review (Tr. 3-4).

For the last 30 years plaintiff has been a commercial painter. He is unable to read and has no formal schooling. Plaintiff claims he has been disabled since December 1, 1981 because of heart fibrillation, rapid heart beat and fatigue (Tr. 77).

Plaintiff’s treating physician, Dr. Marc R. Kirschner, submitted a report dated April 27, 1982 detailing plaintiff’s medical history (Tr. 116-135). He diagnosed plaintiff as suffering from “sick sinus syndrome refractory to medical therapy” (Tr. 134). The report documents plaintiff’s treatment, limitations and symptoms. It notes the side-effects plaintiff experiences from changes and increases in his medication. These side-effects include excessive diarrhea, heartburn, arthritic type pain and severe pleuritic chest pain. Dr. Kirschner opined that plaintiff has a significant medical disability. He stated that the “attacks of tachycardia made it impossible for him to perform his job adequately.” (Tr. 134). In a letter to plaintiffs attorney, Dr. Kirschner stated that long exposures to paint fumes made the plaintiffs condition worse (Tr. 144).

Plaintiff was seen by the Social Security consulting physician, Dr. Gary Veith, on December 10, 1982 (Tr. 146-151). His examination revealed the presence of atrial ectopics and episodes of atrial fibrillations. Dr. Veith recommended that plaintiff stay away from strong fumes (Tr. 147). He placed no limitations upon plaintiffs ability to stand, sit, walk and bend. He opined that plaintiff could lift up to 40 pounds and carry up to 30 pounds. Moderate physical activities were recommended (Tr. 149). The doctor stated that plaintiff was on an “appropriate medical program” and that an increase in medication might control the atrial fibrillations (Tr. 148-149). A vocational expert, Dr. Bernard Rosenberg, testified at the hearing (Tr. 59-74). He stated that the skills required by plaintiffs former work were transferable to other sedentary skilled or semi-skilled jobs. The vocational expert testified that of such jobs, approximately 2,000 existed in the metropolitan New York area. He gave the following examples of such jobs: “a painter of jewelry parts, hand painter of dolls, watches and small items where someone uses a brush to paint.” He further testified that given the plaintiffs age, experience, education and alleged condition, including the limitations and restrictions, plaintiff could not perform his former work (Tr. 62). Dr. Rosenberg also testified that the plaintiff could not even perform the jobs suggested if he had to avoid exposure to paint fumes (Tr. 74). The vocational expert, however, did not testify as to whether the plaintiff could perform other types of light or sedentary work.

Based upon Dr. Veith’s report and the testimony of the vocational expert, the ALJ found plaintiff incapable of performing his past work. The ALJ also conceded that because of the plaintiffs inability to withstand exposure to strong fumes, he was not able to perform any of the semi-skilled jobs suggested by the vocational expert. The ALJ, nevertheless, concluded that the plaintiff retained the residual functional capacity to perform light work (Tr. 17). The ALJ then applied the GRIDS under Rule 202.18 of the Medical-Vocational Regulations (20 C.F.R., Subpart P, Appendix 2, Table 2) and concluded that the plaintiff was not disabled given his age, education and work experience.

DISCUSSION

The sole issue for the court to decide is whether or not the Secretary’s decision is supported by substantial evidence. A finding by the Secretary shall be conclusive if supported by substantial evidence. 42 U.S.C. § 405(g); Bluvband v. Heckler, 730 F.2d 886, 891 (2d Cir.1984); Dumas v. Schweiker, 712 F.2d 1545, 1550 (2d Cir.1983).

Substantial evidence constitutes “evidence more than a mere scintilla” which “a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)); Bell v. Secretary of Dep’t of Health and Human Services, 732 F.2d 308, 310 (2d Cir.1984). The plaintiff has the initial burden of proving disability and entitlement to disability benefits. 20 C.F.R. § 404.1512(a); Bluvband v. Heckler, supra, at 891; Rivera v. Schweiker, 717 F.2d 719 (2d Cir.1983). A claimant seeking disability benefits is considered disabled for purposes of the Act if he is unable to “engage in any substantial activity by reason of any impairment which can be expected to result in death or has lasted or can be expected to last for a period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); Bluvband v. Heckler, supra, at 890.

The Secretary will find a claimant disabled if the claimant’s

physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education and work experience, engage in any other substantial gainful work which exists in the national economy regardless of whether such work exists in the immediate area in which he lives ...

42 U.S.C. § 423(d)(2)(A); Heckler v. Campbell, 461 U.S. 458, 460, 103 S.Ct. 1952, 1954, 76 L.Ed.2d 66 (1983); Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir.1983).

Once the plaintiff has met his initial burden of proving that he is unable to return to his previous work, the burden shifts to the Secretary to prove “the existence of alternative substantial gainful work which exists in the national economy and which the claimant could perform, considering not only his physical capability, but as well his age, his education, his experience and his training.” Mongeur v. Heckler, supra, at 1037 (quoting Parker v. Harris, 626 F.2d 225, 231 (2d Cir.1980)).

In the instant case the ALJ conceded that the plaintiff could not perform his former work because of the plaintiff’s need to avoid strong fumes. For the same reason, the ALJ found that plaintiff could not perform any of the jobs recommended by the vocational expert. Despite this restriction on plaintiff’s ability to work, the ALJ found the plaintiff retained a residual functional capacity to perform light work and, applying the GRIDS under Rule 202.18 of 20 C.F.R., Subpart P, Appendix 2, concluded that plaintiff was not disabled.

The court finds that the AU erred in his application of the GRIDS to plaintiff’s case. While the use of the GRIDS has been constitutionally upheld as a valid process by which to determine whether jobs exist that a claimant can perform, Heckler v. Campbell, supra, they are only to be applied in “appropriate cases.” Id. Appropriate eases are those where a claimant’s capabilities are described accurately by the rules. See Heckler v. Campbell, 461 U.S. at 462, 103 S.Ct. at 1955 n. 5, 76 L.Ed.2d 66 (1983). In such “appropriate cases” the Secretary may apply the GRIDS without vocational testimony to determine whether jobs exist in the economy for the claimant to perform. Heckler v. Campbell, 461 U.S. at 460-63, 103 S.Ct. at 1954-1955.

This was not an appropriate case for the mechanical application of the GRID regulations. The ALJ found that plaintiff had an environmental restriction. An environmental restriction is a nonexertional type of impairment. Since the Secretary’s regulations “are predicated on an individual’s having an impairment which manifests itself by limitations in meeting the strength requirements of jobs, they may not be fully applicable where the nature of an individual’s impairment does not result in such limitations, e.g., certain mental, sensory, or skin impairments.” 20 C.F.R., Part 404, Subpart P, Appendix 2, § 200.00(e); Heckler v. Campbell, 461 U.S. at 462, 103 S.Ct. at 1955 n. 5; Clark v. Heckler, 733 F.2d 65, 68 (8th Cir.1984); Quinones v. Secretary of Dep’t of Health and Human Services, 567 F.Supp. 188, 192 (E.D.N.Y.1983). In such cases the rules do not direct a conclusive finding of disability. 20 C.F.R., Part 404, Subpart P, Appendix 2, § 200.00(d), (e)(1); Heckler v. Campbell, 461 U.S. at 462, 103 S.Ct. at 1955 n. 5, 1958 n. 11; Quinones v. Secretary of Dep’t of Health and Human Services, supra, at 192.

When, as here, an environmental restriction precludes mechanical reliance on the GRIDS, the ALJ needs expert vocational testimony in order to determine what special jobs plaintiff may be able to perform. Clark v. Heckler, supra, at 69; Dellolio v. Heckler, 705 F.2d 123, 128 (5th Cir.1983). See also Gagnon v. Secretary of Health and Human Services, 666 F.2d 662 (1st Cir.1981). Although in this case a vocational expert did testify at the hearing, the ALJ failed to elicit information from him as to what types of light work the plaintiff could perform considering plaintiffs environmental restriction. This testimony is indispensable to a finding that plaintiff is not disabled under the Act. This case must therefore be remanded to the Secretary with directions to have the ALJ elicit this testimony from the vocational expert.

In light of these findings, the decision of the Secretary is vacated and the case remanded for further proceedings consistent with this opinion.

SO ORDERED.

      . Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little a job is in this category when it requires a good deal of standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. 20 C.F.R. § 404.1567.

      . Environmental restrictions are those restrictions which result in an inability to tolerate some physical feature(s) or work settings that occur in certain industries or types of work, e.g., an inability to tolerate dust or fumes (emphasis added) 20 C.F.R., Part 404, Subpart P, Appendix 2, § 200.00(e).


author: HULL, District Judge.

text:
    Donald MARTIN v. Tom SAMS, Sheriff, et al.
    No. CIV-2-84-33.
    United States District Court, E.D. Tennessee, Northeastern Division.
    Nov. 30, 1984.
    Donald Martin, pro se.
    Joe A. Tilson of Taylor, Tilson, Inman & Reams, Morristown, Tenn., for defendants.
   MEMORANDUM AND ORDER

HULL, District Judge.

This is a pro se civil rights action. The plaintiff Donald Martin claims that his civil rights were violated on two separate occasions by the defendants’ improper transfer of his person across state lines without valid extradition proceedings. Defendants, in their answer to the complaint, deny violating any of Mr. Martin’s civil rights and move the Court to dismiss the complaint for failure to state a cause of action under 42 U.S.C. § 1983. Defendants, however, did not file a legal brief to support the motion.

The action was scheduled to come before the Court for trial on Thursday, November 29, 1984, at 9:00 a.m. On the morning of November 29,1984, at 8:30 a.m. defendants filed a trial brief in support of their motion to dismiss the complaint. Defendants were present when the case was called for trial. Plaintiff, however, despite prior notification of the trial date, failed to appear. The Court then proceeded to consider defendants’ pending motion to dismiss, allowing defendants to submit evidence in support of the motion.

At the hearing on the motion, as well as in their trial brief, defendants asserted two grounds for dismissal of the complaint. Defendants’ first contention was that provisions for extradition are not a protection of the right of the fugitive, but, rather, such provisions are designed for the benefit of the states. Therefore, it was defendants’ contention that noncompliance with state extradition proceedings does not violate any federal right of a fugitive. Defendants’ second contention was that even if noncompliance does give rise to a federal claim, in this instance, plaintiff's claim is barred because of his subsequent waiver of extradition and his subsequent conviction of the crime that he was allegedly unlawfully brought back for in the first place.

The United States Constitution authorizes the extradition of fugitives from justice, and the authorization has been implemented by federal statute. The procedures for extradition, however, are a matter of state law, and courts have disagreed whether noncompliance with such procedures results in a deprivation of a federal right cognizable under 42 U.S.C. § 1983. While some Courts have concluded that the rights of fugitives are implicated in extradition proceedings, other courts have taken the view that the federal constitutional and statutory provisions are not designed to protect fugitives but to facilitate interstate justice administration, and therefore a failure to comply with established procedures does not deprive the fugitive of any protected right. The latter, is the position taken by the Court of Appeals for the Sixth Circuit in the case of Stockwell v. Friberg, 272 F.2d 386 (1959) (per curiam).

The Court in Stockwell stated:

The action of appellant was to recover damages for the alleged loss of his “constitutional rights while in the custody of the Toledo, Ohio, Police, and for the illegal procedures involved which brought about the illegal transportation of his person into the State of Michigan.” He prayed an award of damages in the amount of Five Million Dollars ($5,000,-000.00) and that the amount awarded by the jury be tripled and declared tax free. We find no merit whatever in appellant’s contention that his constitutional civil rights have been violated; and for the reasons stated in the opinion of United States District Judge Kloeb, we affirm his order dismissing the complaint with prejudice.

The opinion of Judge Kloeb, however, was not published. Nonetheless, the Sixth Circuit apparently is aligned with the line of reasoning that improper extradition does not violate any federal rights, giving rise to a cause of action under Section 1983.

Regardless of this position, there is a line of federal cases which conclude that the conviction of a fugitive for the crime for which he was extradited bars any action that he might otherwise have under Section 1983. The Sixth Circuit, in its affirmation of Crawford v. Lydick, 179 F.Supp. 211 (W.D.Mich.1959), aff'd, 280 F.2d 426 (6th Cir.), cert. denied, 364 U.S. 849, 81 S.Ct. 93, 5 L.Ed.2d 72 (1960), seems to adopt this view that if a fugitive is subsequently convicted in a cause of action wherein due process is afforded him, then no cause of action can be sustained for an alleged violation of civil rights under Section 1983.

Thus, under the law of this Circuit, it is apparent that this Court is required to dismiss plaintiff's complaint for failure to state a federal claim under 42 U.S.C. § 1983. Additionally, the undisputed evidence before the Court shows that, in this instance, even though formal extradition procedures were not followed, plaintiff was taken into custody and transferred pursuant to an order prepared by plaintiff’s attorney and signed by the judge for the Criminal Court of Hamblen County, Tennessee. Also undisputed in the record, s the fact that plaintiff subsequently waived extradition and was subsequently convicted for the crime for which he was extradited wherein due process was afforded him. Therefore, even if plaintiff had stated a cognizable cause of action under Section 1983, this action is barred by his subsequent waiver and his subsequent conviction.

Accordingly, it is ORDERED that defendants’ motion to dismiss is hereby GRANTED and that this action is hereby DISMISSED with prejudice.

      . U.S. CONST., art. IV, § 2, cl. 2.

      . 18 U.S.C. § 3182.

      . Crumley v. Snead, 620 F.2d 481 (5th Cir.1980); Brown v. Nutsch, 619 F.2d 758 (8th Cir.1980); McBride v. Soos; 594 F.2d 610 (7th Cir.1979); Wirth v. Surles, 562 F.2d 319 (4th Cir.1977), cert. denied, 435 U.S. 933, 98 S.Ct. 1509, 55 L.Ed.2d 531 (1978).

      . Siegel v. Edwards, 566 F.2d 958 (5th Cir.1978); Stockwell v. Friberg, 272 F.2d 386 (6th Cir.1959) (per curiam).

      . 272 F.2d at 386.

      . See 45 A.L.R.Fed. 871 at 879 and 880 for a list of citations.


author: FULLAM, District Judge.

text:
    Albert BUTTS v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION and LaSalle University.
    Civ. A. No. 84-5763.
    United States District Court, E.D. Pennsylvania.
    Dec. 5, 1984.

      Gregory T. Magarity, Wolf, Block, Schorr & Solis-Cohen, Philadelphia, Pa., for plaintiff.
    Howard D. Scher, Patrick T. Ryan, Montgomery, McCracken, Walker & Rhoads, Philadelphia, Pa., for LaSalle University.
    David Bruton, John Chesney, Drinker, Biddle & Reath, Philadelphia, Pa., for National Collegiate Athletic Ass’n.
   MEMORANDUM AND ORDER

FULLAM, District Judge.

Plaintiff Albert Butts is six-feet-nine-inches tall, weighs 215 pounds, and has been a prominent member of LaSalle University’s basketball team for three years. Now a senior, he would like very much to continue playing basketball for LaSalle this year, and entertains well-founded expectations of ultimate selection in an early round of the NBA draft. Unfortunately, he has been declared ineligible to compete this year, by virtue of NCAA by-law 5-l-(d)-(3), which requires that each year of precollegiate basketball competition after age 20 be counted against collegiate eligibility.

Under NCAA rules, each participant has a maximum of four years collegiate eligibility, over a five-year period. After obtaining his high school diploma from Frederick Military Academy in Virginia, and after reaching age 20, Mr. Butts remained at Frederick for an additional year pursuing post-graduate studies so as to improve his academic skills sufficiently to gain entrance to LaSalle; and he played basketball for Frederick during that post-graduate year.

In this action, plaintiff challenges the validity of by-law 5-l-(d)-(3) on constitutional and statutory grounds, and seeks a preliminary injunction against its enforcement by NCAA and LaSalle. Although named as a defendant, LaSalle University agrees with plaintiff and, by cross-claim, also seeks declaratory and injunctive relief against the NCAA. Because of the need for a very prompt decision (the basketball season is now under way), my conclusions will be set forth in summary form.

Essentially, plaintiff contends that the by-law is invalid because it discriminates on the basis of age, because it discriminates on the basis of race, and because its adoption and promulgation were such that, as to plaintiff, its enforcement would violate due process of law.

Virtually every contention advanced by plaintiff in this action has been considered, and firmly rejected, by the First Circuit Court of Appeals in Spath v. NCAA, 728 F.2d 25 (1984). In the face of this precedent, plaintiff’s burden of showing a likelihood of success on the merits is indeed a heavy one. The First Circuit’s opinion is persuasive, and I have no reason to suppose that the Court of Appeals for the Third Circuit would reach a different conclusion.

There is one issue presented (somewhat belatedly, in the course of the hearings; the issue was not asserted in plaintiff’s Complaint or Motion for Preliminary Injunction) in the present case which was not addressed by the Spath court, namely, racial discrimination in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq. Plaintiff has presented Bureau of Census statistics showing that the number of blacks still in high school at age 20 is some 4 times higher than the number of whites in that category. Thus, it is argued, the by-law undoubtedly has a greater adverse impact upon black athletes than upon whites.

The defendant argues that, before this inference of adverse impact can properly be drawn, some additional refinement of the data is necessary: the statistics do not reveal information about the actual “pool” of would-be college athletes, but merely about the high school population as a whole. There is, however, evidence to the effect that an NCAA by-law relating to academic standards (the 2.0 grade-point average requirement for admission) does have an adverse impact upon black would-be college athletes. And it is reasonable to draw the inference that persons who have trouble meeting the 2.0 academic standard are likely to remain in high school longer than persons of higher academic standard. In short, there is every reason to believe that the actual “pool” of applicants for college athletic programs contains a much higher percentage of blacks over the age of 20 than whites of that age.

For purposes of preliminary injunctive relief, I am satisfied that the plaintiff has shown a strong likelihood of establishing that the by-law in question does have racially disparate impact. That is, for present purposes, I conclude that plaintiff has made out a prima facie case under 42 U.S.C. § 2000d. Under that statute, proof of disparate impact suffices to make out a prima facie case; it is not necessary to prove actual racial animus. Guardians Association v. Civil Service Commission, — U.S. -, 103 S.Ct. 3221, p. 3223 n. 2, 77 L.Ed.2d 866 (1983).

But making out a prima facie case is only the beginning of the battle. The defendant NCAA has advanced facially legitimate, non-discriminatory reasons for the by-law — reasons which the First Circuit found obviously valid in Spath, supra, and which the D.C. Circuit in Howard v. NCAA, 510 F.2d 213, 222 (D.C.Cir.1975) conceded “may be substantial” — and plaintiff therefore bears the burden of proving that the reasons advanced are merely pretextual.

NCAA asserts that the by-law is designed and intended to promote equality of competition among its members at each level so as to prevent college athletics and access to athletic scholarships from being dominated by more mature, older, more experienced players,' and to discourage high school students from delaying their entrance into college in order to develop and mature their athletic skills. These are legitimate, and plainly not insubstantial, justifications for the rule. It is not enough for plaintiff to show that the by-law does not necessarily achieve its objectives in every instance, or in every sport. Plaintiff points out that there is no age limit to participation in college athletics. Plaintiff also challenges the validity of the underlying assumption of the by-law, namely, that participating in pre-college athletic competition beyond age 20 actually does enhance athletic skills. Even if I were to agree with all of plaintiffs arguments, however, the fact remains that I am not empowered to second-guess the wisdom of the rule or the merits of the judgments it represents. The issue before me is whether plaintiff has shown a reasonable likelihood of being able to establish that the rule is a mere pretext for racial discrimination. Much as I sympathize with plaintiffs predicament, I cannot, in all honesty, reach that conclusion.

Nor has plaintiff established a likelihood of success in showing that some other, less intrusive, rule would accomplish the stated objects of the present rule. It simply cannot be stated that there is no rational connection between a combination of age and competitive experience, on the one hand, and enhanced ability to compete, on the other.

I am likewise unable to conclude that plaintiff has established a substantial likelihood of success on his age-discrimination claims. Although that statute expressly requires exhaustion of administrative remedies before resort to a federal court, I shall assume, without deciding, that there may be a jurisdictional basis for a grant of preliminary injunctive relief to preclude irreparable harm which might be incurred before an administrative resolution can be obtained. Whether this would require an extraordinarily strong likelihood of success on the merits is perhaps arguable. Whatever the standard, I do not believe plaintiff has met it in this case. It is not plaintiffs age alone that results in his ineligibility under the by-law, it is the fact that, after age 20, he competed in high school basketball. As I understand the pertinent HEW regulations, it is probable that this does not amount to age-discrimination under the statute. Plainly, the maturity and level of athletic skill of the athlete are relevant considerations in determining eligibility; in this context, age is simply a shorthand approximation of physical maturity.

Accordingly, I have reluctantly concluded that plaintiffs Motion for Preliminary Injunctive Relief must be denied. This conclusion renders moot LaSalle’s application for declaratory and injunctive relief with respect to another NCAA by-law, 10-(b), which purports to enable the NCAA to discipline a college for permitting an ineligible player to participate, even pursuant to a grant of an injunction by a court. I do agree with LaSalle that the validity of this by-law is dubious indeed, at least in any case in which the NCAA itself was a party to the litigation, and subject to the court’s injunctive order. I need not, however, address that issue at this time.

I wish to make very clear that the sole basis for denial of injunctive relief in this case is my conclusion that the plaintiff is unlikely to succeed on the merits. There can be little doubt that plaintiff, LaSalle, and, at least to some extent, Big Five basketball in Philadelphia, will suffer irreparable harm from enforcement of the NCAA by-law. I am likewise convinced that the harm which would flow from granting injunctive relief would be much less than the harm which will result from denying injunctive relief, and that there are no substantial public policy considerations which weigh in the balance. In short, I am not exercising discretion on the basis of the facts, but I am expressing, essentially, a pure conclusion of law.


text:
    GENERAL MOTORS CORPORATION, et al., Plaintiffs, v. CALIFORNIA STATE BOARD OF EQUALIZATION, et al., Defendants.
    No. CV 83-6801-DWW(KX).
    United States District Court, C.D. California.
    Dec. 6, 1984.

      Stephen E. Tallent, Wayne A. Schrader, Gibson, Dunn & Crutcher, Los Angeles, Cal., for plaintiffs; William J. Kilberg, Paul D. Inman, Gibson, Dunn & Crutcher, Washington, D.C., of counsel.
    John K. Van de Kamp, Atty. Gen. of the State of Cal., Edmond B. Mamer, Patti S. Kitching, Deputy Attys. Gen., Los Angeles, Cal., for defendants.
   ORDER

DAVID W. WILLIAMS, Senior District Judge.

Plaintiffs, General Motors Corporation (“GMC”) and the American National Red Cross (“Red Cross”), in their capacities as sponsoring employers and administrators of certain employee disability and health care plans established pursuant to collective bargaining agreements, and current trustees of the Motion Picture Health and Welfare Fund (“MPF”), are suing defendants, The CaliforniaBtate Board of Equalization (“Board”), Board members, and certain state officials, for declaratory, injunctive, and remedial relief.

Both GMC and Red Cross entered into excess risk arrangements with the Metropolitan Life Insurance Company (“Metropolitan”) providing that they would remain responsible for payments of all benefits from their respective plans below a trigger point. This trigger point was to be established annually based on a projected level of aggregate benefit payments. Local GMC units were to maintain claim records and evaluate and pay claims below the trigger amount for sickness and accident coverage. Metropolitan would perform these functions for other forms of coverage. The funds used to pay the pretrigger claims are drawn from GMC accounts. Similarly, the funds used to pay pretrigger claims for Red Cross are drawn by Metropolitan from a Red Cross account, and Metropolitan is authorized to draw on that account only to satisfy pretrigger claims.

Defendants levied taxes upon Metropolitan on benefits paid out of the GMC Disability Trusts, the GMC Plan, and the Red Cross Plan. As Metropolitan was indemnified by GMC and Red Cross for the tax payments, these costs were passed onto them.

The MPF entered into an excess risk arrangement with the Union Labor Life Insurance Company (“Union Labor”) whereby MPF assumed the risk of paying benefits up to a defined trigger point. A year or so later the trustees of the fund resolved to terminate their excess risk policies and become completely self-insured with respect to those components covered by it. MPF now believes defendants will levy a tax on benefits paid out during the year in which the excess risk arrangement was in existence. It too has an existing indemnity agreement, so the MPF assumes it will incur the cost for the tax.

Plaintiffs bring this action because defendants’ interpretation of “gross premiums” was upheld by the California Supreme Court in Metropolitan Life Ins. Co. v. State Board of Equalization, 32 Cal.3d 649, 186 Cal.Rptr. 578, 652 P.2d 426 (1982). In that action, for the years 1967-1969 Metropolitan was assessed an insurance franchise tax based upon the amount of Metropolitan’s gross premiums. The Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001, et seq., was not at issue then, however, because the years involved were prior to ERISA’s passage in 1974. Metropolitan has now raised that issue, and it has filed refund claims for the 1975-1982 years alleging that the franchise tax has been preempted by ERISA. These claims were denied, and Metropolitan has filed suit in San Francisco Superior Court.

The predominant legal issues raised in this action are this court’s jurisdiction, the plaintiffs’ standing to sue, the State of California’s power to tax in the manner at issue here, and ERISA’s possible preemptive effect. The courts have favored a broad interpretation of ERISA’s preemption provision. State taxation is not one of the enumerated exceptions to ERISA’s preemptive reach. A recent ERISA amendment and relevant legislative history also indicate Congress’ intent to preempt any state tax law which relates to employee benefit plans. Defendants’ characterization of “gross premiums” in this context runs afoul of ERISA. Therefore, this court must rule that defendants’ tax practice as described in this action is preempted by ERISA.

JURISDICTION AND STANDING

Jurisdiction is conferred upon this court through ERISA, 29 U.S.C. § 1132(a)(3) and (4). Plaintiffs are fiduciaries of employee welfare benefit plans. As such, they have a direct and explicit statutory basis for standing. Section 1132(a)(3) provides that a fiduciary may bring a civil action to enjoin any act or practice which violates any provisions of a plan’s terms. A participant or beneficiary may bring an action to recover benefits under the terms of his plan in state court, but plan fiduciaries must bring their preemption cases exclusively in federal court. Furthermore, defendants’ interpretation of “gross premiums” and their assessment and collection orders based upon such an interpretation are “state action having effect of law.” So, they are state laws within the meaning of ERISA’s section 1144(c)(1).

Defendants contend that any injury suffered by plaintiffs results solely from plaintiffs’ agreement with an insurance company to reimburse it for its tax payments. They cite EMI Ltd. v. Bennett, 738 F.2d 994 (9th Cir.1984) and Shell Petroleum, N.V. v. Graves, 709 F.2d 593 (9th Cir.1983) for the proposition that a third party who is not being taxed does not have standing to sue the taxing authority because his injury is neither direct, individual, distinct, nor palpable. See also Allen v. Wright, — U.S. -, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). Plaintiffs’ jurisdictional and standing foundation, however, arises under ERI-SA provisions as they bring this action as plan fiduciaries seeking to preempt a practice that relates to their employee benefit plans. ERISA expressly empowers fiduciaries to seek relief in federal court against “any act or practice” which violates ERI-SA’s provisions. 29 U.S.C. § 1132(a)(3) and (f).

Although MPF is also a fiduciary under ERISA, no indication has been given that defendants’ actions have had an adverse effect upon its employee benefit plan. Unlike GMC and Red Cross, there is no tax deficiency to speak of which has been asserted against Union Labor, MPF’s insurer. MPF can assert ERISA in defense of actions affecting its plan, but it cannot be allowed to do so when the alleged effect is speculative, too remote, or too tenuous.

Therefore, this action is dismissed on the independent grounds of lack of subject matter jurisdiction and lack of standing as to plaintiff MPF, but not as to plaintiffs GMC and Red Cross.

THE STATES’ AUTHORITY TO TAX

Defendants contend that the Tax Injunction Act, 28 U.S.C. § 1341, precludes plaintiffs’ request for this court to enjoin the assessment and/or collection of a tax. That provision does hold that the district court shall not interfere with the assessment, levy, or collection of any tax under state law where a plain, speedy, and efficient remedy may be had in state court.

The MeCarran-Ferguson Act, 15 U.S.C. § 1011, et seq., provides that the regulation and taxation of the business of insurance shall be subject to state law, and any state law effecting this purpose shall not be impaired unless a federal act specifically relates to the business of insurance.

Defendants in this action are plan fiduciaries, and the tax has not been levied directly upon them. Therefore, a state court remedy may not be available to them; but, ERISA does allow these defendants to bring an action in federal court. ERISA broadly preempts “any and all” state laws which relate to any employee benefit plan. 29 U.S.C. § 1144(a). Furthermore, in Hewlett-Packard Co. v. Barnes, 571 F.2d 502, 505 (9th Cir.), cert. denied, 439 U.S. 831, 99 S.Ct. 108, 58 L.Ed.2d 125 (1978) the Ninth Circuit determined that where the McCarran-Ferguson Act applies ERISA falls within the clause excepting federal laws that “specifically relate” to the business of insurance. The court recognized the policy of reserving to the states the power to regulate insurance unless an Act such as ERISA specifically relates to it. It then determined that ERISA was such an excepting Act. Therefore, ERISA was removed from the scope of prohibition against construing any federal law so as to impair or invalidate state law regulating insurance.

ERISA’s PREEMPTIVE EFFECT

Two cases which discussed the relationship of state tax provisions to ERISA’s preemption mandate are not Ninth Circuit cases, but they relate important legislative history relevant to the instant action. Northwest Airlines, Inc. v. Roemer, 603 F.Supp. 7, Empl. Benefit Cas. 1307 (BNA) (D.C.Minn.1984) held that ERISA preempts states’ authority to levy a state income tax on ERISA-covered pension plans since the statutory language and legislative history indicated a congressional intent to preempt state tax laws as they relate to employee benefit plans. National Carriers’ Conf. Comm. v. Heffernan, 454 F.Supp. 914 (D.C.Conn.1978) stated that a tax imposed upon an employee welfare benefit plan was void and unenforceable insofar as it applied to such plans covered by ERISA.

The Northwest Airlines defendant argued for a narrow construction of section 1144(a) contending that state law “relates to”, an employee benefit plan only if it regulates the terms and conditions of the plan. The court noted that such a narrow reading was rejected by the Supreme Court in Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 101 S.Ct. 1895, 68 L.Ed.2d 402 (1981). There, the Court held that ERISA makes clear that even indirect state action bearing upon private pensions may encroach upon the area of exclusive federal concern. Similarly, in Shaw v. Delta Airlines, 463 U.S. 85, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983) the Supreme Court carefully reviewed the legislative history of ERISA and concluded that Congress intended the words “relate to” to be construed in a “broad sense.” The Shaw Court then held that ERISA preempts any law that has a connection with or reference to an employee benefit plan unless it falls within one of the exceptions — state laws regulating insurance, banking, or securities, or state criminal laws.

In National Carriers’ the fiduciaries of an employee benefit plan sought injunctive and declaratory relief from the assessment and collection of a Connecticut tax on the plan. The court reasoned that the phrase “any and all” plainly indicated an intention to reach every state statute that fits the description of “relating to” an employee benefit plan. 454 F.Supp. at 915.

As the Northwest Airlines court acknowledged, any contention that ERISA preemption should be narrowly construed is undermined by Congress’ specific identification of state legislation areas which were to be excepted from ERISA’s preemption provision. When ERISA was originally considered, Congress rejected a request by the Secretaries of Labor and Treasury to exempt state taxation from preemption. In 1983, when ERISA’s preemption language was amended to exclude Hawaii’s experimental health benefit statute from ERISA’s preemption provision, Congress specifically endorsed the preemption of state tax laws. That amendment added section 1144(b)(5)(B)(i) which reads in part:

Nothing in subparagraph (A) shall be construed to exempt from subsection (a) [§ 1144(a)] — any State tax law relating to employee benefit plans____

In the Conference Report which discussed this particular amendment, it was stated that

[t]he provision generally exempts the Hawaii Prepaid Health Care Act from preemption by ERISA. Under the provision, however, preemption is continued with respect to ... any State tax law relating to employee benefit plans____
H.R.Rep. No. 97-984, 97th Cong., 2d Sess. 18 (1982), U.S.Code Cong. & Admin. News, pp. 4580, 4603.

In addition, the legislative history of “Tax and ERISA Provisions,” as related in 1982 U.S.Code Congressional and Administrative News at pages 4595-96, gives some indication of Congress’ intent. It states:

Also, the provision [the amendment] does not affect the status, under the preemption provisions of ERISA, of any state tax law relating to employee benefit plans.

These excerpts convey the impression that section 1144(b)(5)(B)(i) was directed to all state tax laws and was not just in response to Hawaii’s plan.

The gravamen of ERISA’s preemption thrust derives from some determination as to how the challenged law relates to the ERISA plan. Defendants characterize the gross premium tax as an assessment against Metropolitan for doing business in California. Yet, in fact, it is the amount which is paid out by the plaintiffs below the trigger point which is being treated as a premium received by Metropolitan and is being taxed. Under ERISA this taxation practice is preempted because it “relates to” or bears some connection or reference to the plans by using the plans’ payments as a means for measuring taxable premiums. The defendants are indirectly taxing benefit payments and they are impeding the discretion of plan sponsors to fund their plan guarantees through a combination of general assets and excess risk insurance.

This court recognizes the important state interests which are involved in this action, and balances that consideration in its ruling. The strong congressional intent, however, to preempt those actions which affect ERISA plans directs this court to find that ERISA prevents the taxation practice which has taken place here.

It is ordered, therefore, that defendants motion for judgment on the pleadings be denied as to plaintiffs GMC and Red Cross, but granted as to plaintiff MPF because it lacks standing. It is further ordered that defendants and their agents refrain from taxing plaintiffs’ and other insurance companies based on their interpretation of “gross premiums,” which includes in the amount subject to tax benefit payments from employee benefit plans to their participants.

SO ORDERED.


text:
    Dorothy BARRETT, Jean Terraciano, and Charles Samuels, Plaintiffs, v. SUFFOLK TRANSPORTATION SERVICES, INC., Defendant and Third-Party Plaintiff, Board of Cooperative Educational Services, Defendant, Commissioner of Education of State of New York, Third-Party Defendant. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. SUFFOLK TRANSPORTATION SERVICES, INC., Board of Cooperative Education Services, and the Commissioner of Education of the State of New York, Defendants.
    Nos. CV 83-4307, CV 84-0471.
    United States District Court, E.D. New York.
    Dec. 7, 1984.

      Gladstein, Reif & Meginniss, Brooklyn, N.Y., for individual plaintiffs; James Reif, New York City, of counsel.
    Equal Employment Opportunity Commission, New York City, for EEOC; Robert Williams, Brunhilda Sanders, New York City, of counsel.
    Ingerman, Smith, Greenberg & Gross, Northport, N.Y., for Suffolk Transp. Services, Inc.
    Gregory Hammill, Mineóla, N.Y., for BOCES.
    Robert Abrams, Atty. Gen. of the State of N.Y., New York City, for Commissioner of Educ. of State of N.Y.
   Memorandum of Decision and Order

MISHLER, District Judge.

Plaintiffs claim that defendants violated the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq. by terminating the employment of the individual plaintiffs (Barrett, Terraciano and Samuels and other similarly situated) as bus drivers when they reached the age of sixty-five. Federal jurisdiction is asserted under 29 U.S.C. § 626(c). Commissioner of Education of the State of New York (“State defendant”) moves to consolidate these two separate actions. Prior to this motion to consolidate, the State defendant had moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) the respective plaintiffs’ complaints in the two separate actions. The motion to dismiss was joined by the other two defendants in the CV 84-0471 action. In the CV 83-4307 action, Suffolk Transportation Services, Inc. (“Suffolk”) joined this motion to dismiss to the degree it sought dismissal of plaintiffs’ complaint and opposed it to the extent it sought dismissal of their third party complaint against Suffolk. Familiarity with the facts enumerated in this court’s previous memorandum of decision and order denying Suffolk’s motion to dismiss, Barrett v. Suffolk Transportation Services, Inc., No. 83-4307 (E.D.N.Y. May 22, 1984) (unpublished decision), is assumed for purpose of this decision.

Motion to Consolidate

By order issued from the bench on December 6, 1984, the motion to consolidate these two separate actions (CV 83-4307, CV 84-0471) is granted and these cases are now consolidated for all purposes.

Motion to Dismiss

It is well settled that a complaint should not be dismissed “unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80. The defendants premise their motion to dismiss on five grounds: (1) EEOC lacks jurisdiction to bring this action and as a result, the individual plaintiffs have failed to exhaust their administrative remedies; (2) EEOC has not fulfilled the conciliation requirement under the ADEA; (3) the Second Circuit’s summary affirmance in Maki v. Commissioner of Education, 568 F.Supp. 252 (N.D.N.Y.1983), aff'd without published opinion, 742 F.2d 1437 (1984), is binding precedent on this court; (4) the State defendant was improperly served; and (5) sovereign immunity of the Eleventh Amendment bars any suit against the State defendant.

1. Jurisdiction

Although EEOC’s jurisdiction was cast in doubt by the landmark decision of the Supreme Court in Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983), and by the Second Circuit’s decision in EEOC v. CBS, Inc., 743 F.2d 969 (1984), the recent federal law enacted on October 19, 1984 removes any questions posed by Chadha and its progeny regarding the EEOC’s jurisdictional authority. Pub.L. No. 98-532. Thus, this issue raised by the defendants is mooted by the new federal law.

2. Conciliation Requirement

Pursuant to 29 U.S.C. § 626(b), the EEOC is required to “attempt to eliminate the discriminatory practice or practices alleged, and to effect voluntary compliance with the requirements of [the ADEA] through informal methods of conciliation, conference and persuasion.” The EEOC must “use exhaustive, affirmative action to attempt to achieve conciliation before legal action is begun.” Brennan v. Ace Hardware Corp., 495 F.2d 368, 374 (8th Cir.1974); see Marshall v. Arlene Knitwear Corp., 454 F.Supp. 715, 721-23 (E.D.N.Y.1978), aff'd in part, rev’d in part on other grounds and remanded without published opinion, 608 F.2d 1369 (2d Cir. 1979). The EEOC sent letters to Suffolk and BOCES notifying them that it was interested in resolving the possible violation of the ADEA and followed these letters up with telephone conversation. The defendants’ responses were that unless New York law changed, it would not change its practice of terminating the employees in question. Based upon the pleadings, the court cannot conclude as a matter of law that EEOC did not comply with the ADEA’s conciliation requirement.

3. The Maki Decision

This court has already ruled in its previous memorandum of decision and order dated May 22, 1984 that “Maki’s summary affirmance [by the Second Circuit] has no precedential value for this court.” Barrett v. Suffolk Transportation, Inc., supra, slip op. at 4. Thus, this argument lends little support to defendants’ motions to dismiss.

4. Defective Service of Process

The State defendant raises a hypertechnical issue of service as to whether it should have been served pursuant to Fed. R.Civ.P. 4(d)(6) instead of pursuant to Fed. R.Civ.P. 4(e)(2)(C) and alternatively, whether service was defective under Rule 4(c) because only one copy of plaintiffs’ complaint was mailed to the defendant, instead of two. Since this issue was also raised regarding the service of Suffolk’s third party complaint upon the state defendant, but was subsequently resolved through personal service of the third party complaint upon the State defendant, we similarly direct that the plaintiffs personally serve their complaints upon State defendants within ten (10) days of this memorandum of decision and order being filed with the Clerk of the Court. Therefore, without deciding whether service was in fact defective, any question regarding the court’s personal jurisdiction will thereby be eliminated.

5. Sovereign Immunity

The State defendant argues that plaintiffs’ claims are barred by the Eleventh Amendment’s doctrine of sovereign immunity. Eleventh Amendment immunity, however, may be abrogated where Congress indicates an “unequivocal expression of congressional intent” to do so and it authorizes such suits pursuant to section five of the Fourteenth Amendment. Pennhurst State School & Hosp. v. Halderman, — U.S. -, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984); Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). Thus, two questions arise in this case: (1) was the ADEA enacted pursuant to section five of the Fourteenth Amendment and (2) if so, did Congress intend that the ADEA abrogate the Eleventh Amendment sovereign immunity?

Although the Supreme Court has recently declined to rule on the first issue, see EEOC v. Wyoming, 460 U.S. 226, 243, 103 S.Ct. 1054, 1064 & n. 18, 75 L.Ed.2d 18 (1983) (because the Court found that ADEA was a “valid exercise of Congress’s powers under the Commerce Clause,” it did not reach the issue whether the ADEA could also have been validly enacted pursuant to section five of the Fourteenth Amendment), the majority of courts which considered this issue prior to the Supreme Court’s decision have ruled that the 1974 amendments to the ADEA (extending its reach to encompass employees of state and local governments) was enacted pursuant to the Fourteenth Amendment. See, e.g., U.S.E.E.O.C. v. County of Calumet, 686 F.2d 1249 (7th Cir.1982); Arritt v. Grisell, 567 F.2d 1267, 1270-71 (4th Cir.1977); EEOC v. County of Los Angeles, 526 F.Supp. 1135, 1137-38 (C.D.Cal.1981), aff'd, 706 F.2d 1039 (9th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 984, 79 L.Ed.2d 220 (1984); but see Farkas v. New York State Dep’t of Health, 554 F.Supp. 24 (N.D.N.Y.1982) (decided prior to the Supreme Court’s decision in EEOC v. Wyoming, supra, the court held that the commerce clause was the exclusive basis upon which the ADEA was enacted). One case which did consider this issue following the Supreme Court’s decision in EEOC v. Wyoming, supra, was Ramirez v. Puerto Rico Fire Service, 715 F.2d 694 (1st Cir.1983). The First Circuit in that decision held that the ADEA was enacted pursuant to section five of the Fourteenth Amendment. Id. at 700. Furthermore, the Ramirez Court found that “Congress evinced sufficient intent to abrogate the immunity conferred by the Eleventh Amendment,” id., and reversed the district court’s ruling dismissing plaintiff’s claims under the ADEA for monetary damages and injunctive relief. Id. We find the First Circuit’s conclusion and underlying reasoning persuasive and therefore reject the State defendant’s argument that plaintiffs’ suits are barred by sovereign immunity.

Conclusion

State defendant’s motion to consolidate CV 83-4307 and CV 84-0471 is granted for all purposes; defendants’ motions to dismiss are denied in all respects; plaintiffs are directed to personally serve the State defendant with copies of their complaint within ten (10) days of the filing of this memorandum of decision and order; State defendant is directed to answer said complaints within ten (10) days of receipt thereof; this matter is set down for trial on April 9, 1985, and it is

SO ORDERED.