author: FORRESTER, District Judge.

text:
    Stanley M. BERTKE, Plaintiff, v. C. Aubrey CARTLEDGE and A-1 Electric Company, Defendants.
    Civ. A. No. C84-388A.
    United States District Court, N.D. Georgia, Atlanta Division.
    Sept. 21, 1984.

      Robert J. Cropp, Atlanta, Ga., for plaintiff.
    A. Paul Cadenhead, Henry Fellows, Atlanta, Ga., for defendants.
   ORDER

FORRESTER, District Judge.

This action is before the court on defendant’s motion to set aside judgment, plaintiff’s motion to compel, and defendant’s motion for a protective order. Because the court concludes that defendants’ motion to set aside judgment should be granted and that this action should, therefore, be dismissed, the latter two motions are moot.

I. FACTS.

On March 1, 1984, plaintiff registered in this court, pursuant to 28 U.S.C. § 1963, a default judgment obtained against defendant in the United States District Court for the Eastern District of Kentucky. Defendant, who did not appear or otherwise defend himself in the Kentucky action, now seeks pursuant to Rule 60(b)(4) of the Federal Rules of Civil Procedure, to set aside the judgment of the district court in Kentucky on the grounds that the judgment is void for lack of personal jurisdiction over defendant. Since plaintiff has not responded to defendant’s motion it is deemed unopposed. Local Rule 91.2.

Where a defendant has made no appearance and a default judgment has been entered, the defendant may defeat subsequent enforcement in another forum by demonstrating that the judgment issued from a court lacking personal jurisdiction. Hazen Research, Inc. vs. Omega Minerals, Inc., 497 F.2d 151 (5th Cir.1974); Pardo vs. Wilson Line of Washington, Inc., 414 F.2d 1145 (D.C.Cir.1969). The burden of proving the voidness of the judgment rests heavily upon the party attacking it. Williams vs. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577 (1945). “If (the judgment) ... appears on its face to be a record of a court of general jurisdiction, such jurisdiction over the cause and the parties is to be presumed unless disproved by extrinsic evidence, or by the record itself.” Adam vs. Saenger, 303 U.S. 59, 58 S.Ct. 454, 82 L.Ed. 649 (1938).

In determining whether defendant has met this burden of showing the voidness of the judgment, the court looks first to the complaint filed in the Eastern District of Kentucky. . Plaintiff filed the complaint on October 17, 1983 against C. Aubrey Cart-ledge and Peter Stahlman. The complaint states that both defendants are residents of Georgia. The complaint alleges that plaintiff needed local assistance in performing his obligations under a contract for services at the Northlake Mall in Atlanta. The complaint then states that plaintiff attempted to find local help by picking names of electrical contractors from the Atlanta telephone directory. After contacting a couple of other contractors and finding their terms disagreeable, plaintiff saw defendant Cartledge’s advertisement. Plaintiff called defendant Cartledge on or about September 7, 1983 and asked for price quotations on certain materials. Plaintiff claims that the parties reached an agreement for certain materials and labor and that defendant breached this agreement by overcharging plaintiff. Plaintiff allegedly learned of the overcharges when plaintiff’s Atlanta representative went to Stahlman’s place of business to pick up some material and saw an invoice for plaintiff’s materials which allegedly carried a twenty percent mark-up. Plaintiff complained, but the parties were unable to resolve the controversy, and plaintiff then filed his lawsuit in Kentucky.

Plaintiff’s complaint shows on its face that defendant is a Georgia resident and that plaintiff initiated the contact with defendant by culling his name from an Atlanta telephone directory. The complaint shows that the parties reached their alleged contract over the telephone and that the entire subject matter of the contract was to be performed in Georgia. In support of his motion to set aside, defendant Cartledge has submitted an affidavit in which he has asserted the following facts: that his office is located in Atlanta, Georgia, and that all of his work is in the State of Georgia; that all of his suppliers and most of his customers are located in the Atlanta, Georgia metropolitan area; that he has never been to Kentucky, has never done any business in Kentucky, and- has never initiated any contacts by telephone or mail with any person or firm in Kentucky. These factual assertions are unrebutted by plaintiff.

Plaintiff’s complaint does not state a statutory basis for jurisdiction over defendant. Presumably, plaintiff relied upon Kentucky’s Long Arm statute, Ky.Rev. Stat. § 454.210. This statute provides, in relevant part:

(2)(a) A court may exercise personal jurisdiction over a person who acts directly or by an agent, as to a claim arising from the person’s:
1. transacting any business in this commonwealth;
2. contracting to supply services or goods in this commonwealth;
3. causing tortious injury by an act or omission in this commonwealth;
4. causing tortious injury in this commonwealth by an act or omission outside this commonwealth if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services, rendered in this commonwealth, provided that the tortious injury occurring in this commonwealth arises out of the doing or soliciting of business or a persistent course of conduct or derivation of substantial revenue within the commonwealth;
5. causing injury in this commonwealth to any person by breach of warranty expressly or impliedly made in the sale of goods outside this commonwealth when the seller knew such person would use, consume, or be affected by, the goods in this commonwealth, if he also regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this commonwealth____

It is apparent that subsections 4 and 5 cannot be applicable in this case since defendant does not regularly do or solicit business or engage in any other persistent course of conduct or derive substantial revenue from goods used or consumed or services rendered in Kentucky. Subsection 3 is inapplicable because plaintiff did not allege a tortious injury by an act or omission in Kentucky. Subsection 2 is similarly inapplicable since plaintiffs complaint on its face shows that the parties contracted to supply goods outside of Kentucky. Therefore, the only possible subsection relevant to this case would be subsection 1. Although this court doubts that the course of conduct alleged in plaintiff’s complaint would satisfy this subsection, it is unnecessary to reach that issue. Kentucky’s Long Arm statute, like Georgia’s, has been construed to be coextensive with the outer limits of due process. Volvo of America Corporation vs. Wells, 551 S.W.2d 826 (Ky.App.1977); see Davis vs. Wilson, 619 S.W.2d 709, 710 (Ky.App.1980). The court assumes for the moment that defendant’s conduct would satisfy subsection 1 and turns straight to the question of whether the exercise of jurisdiction by the Kentucky court was violative of due process. In International Shoe Co. vs. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), the Supreme Court held that a state could not exercise personal jurisdiction over a non-resident defendant unless there existed sufficient minimum contacts between the defendant, the forum state, and the litigation such that maintenance of the suit does not offend traditional notions of fair play and substantial justice. Id. 326 U.S. at 316, 66 S.Ct. at 158. Due process requires “that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its law.” Hanson vs. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958); Burger King Corp. vs. MacShara, 724 F.2d 1505 (11th Cir.1984). In MacShara the Eleventh Circuit stated:

Due process restrictions “are more than a guarantee of immunity from inconvenient or distant litigation. They are a consequence of territorial limitations on the power of the respective states.” Hanson vs. Denckla, 357 U.S. at 251, 78 S.Ct. at 1238. Hence, the minimum contacts measure is not a question of “a little more or a little less. Whether due process is satisfied must depend rather upon the quality and nature of the activity in relation to” the laws of the forum state. International Shoe, 326 U.S. at 319, 66 S.Ct. at 160. A state cannot justifiably assert jurisdiction over an individual with whom it has no constitutionally cognizable contacts or ties. Worldwide Volkswagen Corp. v. Woodson, 444 U.S. [286] at 294, 100 S.Ct. [559] at 565-66 [62 L.Ed.2d 490].
The Hanson requirement of purposeful activity within the forum state reflects two contrasting considerations. Particularly in the commercial context, fairness dictates that a defendant who derives profits from deliberate contacts within the forum state should be responsible for the costs such activities incur. On the other hand, due process abhors the unfair surprise that results when a party is haled into court in a state with which he lacks deliberate connections. Burger King Corp. vs. MacShara, 724 F.2d at 1509.

Based on the record before it this court finds insufficient minimum contacts between defendant, the State of Kentucky, and this litigation to satisfy the due process clause of the Constitution. None of the acts defendant is alleged to have done exhibited a purposeful intrusion into the affairs of Kentucky. Defendant is a local businessman here in Georgia whose business is confined primarily to the metropolitan Atlanta area. Defendant has never been to Kentucky and has never done any business in Kentucky. Nor has defendant sought to obtain any benefits from the laws of the State of Kentucky. Plaintiff, rather than defendant, initiated the contact in this case. Plaintiff did so, not by responding to any advertisement defendant published in Kentucky, but rather by culling defendant’s name from an Atlanta telephone directory. The alleged contract was to be performed entirely in the State of Georgia. To require defendant, on these facts, to go to Kentucky to defend himself would be offensive to “traditional notions of fair play and substantial justice.” The court finds, therefore, that the United States District Court for the Eastern. District of Kentucky lacked personal jurisdiction over defendant and that its default judgment against defendant is void.

Since the judgment which plaintiff has registered in this court is void, and since the only purpose of the present action is to enforce that judgment, nothing remains for this court’s adjudication. Plaintiff’s motion to compel and defendant’s motion for a protective order are moot. This action is hereby DISMISSED pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted.

      . Although the caption lists two defendants, it appears from the pleadings that C. Aubrey Cart-ledge is doing business as A-1 Electric Company. The parties have discussed the issues as though there were an identity of interests between the two, and the court will do the same.

      . 28 U.S.C. § 1963 provides:
      A judgment in an action for the recovery of money or property now or hereafter entered in any district court which has become final by appeal or expiration of time for appeal may be registered in any other district by filing therein a certified copy of such judgment. A judgment so registered shall have the same effect as a judgment of the district court of the district where registered and may be enforced in like manner.

      . Rule 60(b) provides that:
      On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: ... (4) the judgment is void____

      . Stahlman appeared and objected to the court’s jurisdiction. Plaintiff voluntarily dismissed the suit against Stahlman after obtaining the default judgment against Cartledge.


source: Caselaw Access Project

author: ELLEN B. BURNS, District Judge.

license: Public Domain

text:
    Armand L. ZIMMERMAN v. The BOARD OF EDUCATION OF the TOWN OF BRANFORD, et al.
    Civ. No. N83-262.
    United States District Court, D. Connecticut.
    Sept. 25, 1984.

      Jeremy G. Zimmermann, Peter J. Lefeber, William H. Prout, Jr., Wiggin & Dana, New Haven, Conn., for plaintiff.
    William C. Lynch, William C. Bruce, Lynch, Traub, Keefe & Snow, New Haven, Conn., for defendants.
   RULING ON DEFENDANTS’ MOTION TO DISMISS

ELLEN B. BURNS, District Judge.

Procedural History

The plaintiff has asked for declaratory, monetary and injunctive relief for injury alleged to have arisen out of the defendants’ denial of plaintiff’s application to renew his teaching contract for the academic year 1983-84. The action was brought pursuant to 28 U.S.C. §§ 2201 and 2202 and 42 U.S.C. § 1983. Plaintiff has alleged the court’s jurisdiction under 28 U.S.C. §§ 1331, 1343(a)(3) and 1343(a)(4) and the doctrine of pendent jurisdiction.

The plaintiff claims that he has been deprived of a constitutionally protected property right by the actions of the defendant Branford Board of Education in refusing to renew his teacher’s contract without following the procedural requirements outlined in the collective bargaining agreement governing the employment of Bran-ford teachers and in Conn.Gen.Stat. § 10-151. He has further alleged that Conn. Gen.Stat. § 10-183w of the Teacher Retirement Act violates the Federal and State Constitutions for failure to provide standards to limit the discretion of either the local board of education or the Teacher Retirement Board.

The defendants moved to dismiss under F.R.C.P. 12(b)(6) for failure to state a claim upon which relief can be granted, maintaining that plaintiff has raised no viable federal constitutional claim and asserting, therefore, that pendent jurisdiction should be denied. Defendants have also moved to dismiss under Rule 12(b)(7), claiming that the plaintiff failed to join the Connecticut State Teachers’ Retirement Board as an indispensable party defendant required by F.R.C.P. 19.

On June 27, 1983, oral argument was heard on defendants’ Motion to Dismiss and an evidentiary hearing was held on plaintiff’s Motion for Preliminary Injunction. On July 11, 1983, the plaintiff accepted a teaching position with The Country School in Madison, Connecticut, and withdrew his Motion for Preliminary Injunction. Thus, the only issue before the court at this time is the defendants’ Motion to Dismiss. The motion is granted in part. The court abstains as to the remaining portions of plaintiff’s complaint.

Statement of Facts

Plaintiff is a certified teacher who has been continuously employed by the Bran-ford, Connecticut, school system (the “School Board”) since 1958. He acquired tenure as a teacher pursuant to section 10-151(b) of the Connecticut General Statutes. For the purposes of this Motion to Dismiss it is admitted that the plaintiff is a qualified teacher who has competently performed his duties throughout his period of employment by the School Board.

On June 28,1981, the plaintiff became 70 years old. Aware of the mandatory retirement age imposed on teachers under Connecticut law, Conn.Gen.Stat. § 10-183W, the plaintiff wrote to the School Board in or about January, 1981, to request renewal of his teaching contract for the 1981-1982 school year. Pursuant to § 10-183w the School Board sought and received authorization from the State Teachers’ Retirement Board (Retirement Board) to continue the plaintiff’s employment. In or about January, 1982, plaintiff requested renewal of his contract for the 1982-1983 school year. Again, the school board sought and received the necessary authorization and renewed plaintiff’s contract.

In or about December, 1982, plaintiff sought a third renewal of his contract beyond the mandatory retirement age. This time the School Board decided not to request authorization from the Retirement Board to renew plaintiffs contract. The School Board announced that decision at a public meeting on March 24, 1983, without giving any reason therefor. The plaintiff has repeatedly sought an explanation of the School Board’s decision but no explanation, other than his age, has been forthcoming.

Plaintiff’s employment with the School Board, both before June, 1981, and thereafter, has been covered by a collective bargaining agreement negotiated between the School Board and the Branford Education Association. That agreement provides for a grievance process and contains a clause prohibiting discrimination based upon age and a requirement that the procedures of the Teacher Tenure Statute, Conn.Gen.Stat. § 10-151, shall apply to all terminations of employment or non-renewals of contracts.

Discussion

I. Invalidity of Section 10-183w Under Fourteenth Amendment

Plaintiff claims that the mandatory retirement provision applicable to teachers is facially invalid because it does not afford a hearing prior to the termination of a teacher’s employment, it does not provide guidelines to the Retirement Board for deciding whether to authorize the continued employment of a teacher over 70 years old, and treats older teachers differently from younger teachers in not providing a hearing, thus depriving older teachers of equal protection of the laws.

Plaintiff’s claims that section 10-183w is unconstitutional because it does not provide a hearing and treats older teachers differently from younger teachers are without merit. In Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976), the Supreme Court clearly established that mandatory retirement laws that do not provide for a hearing do not violate an individual’s rights to due process or equal protection. Although Murgia involved a mandatory retirement law for policemen, the Second Circuit has found that the rationale of Murgia extends to validate mandatory retirement laws for school teachers. Palmer v. Ticcione, 576 F.2d 459 (2d Cir.1978). The Palmer court noted that a mandatory retirement statute must be upheld if there is any rational basis to support the statute. Id., at 461. The court identified several possible rational bases to support a compulsory retirement statute: predictability in administering pension plans; opening opportunities for young teachers; bringing in young teachers with fresh ideas and techniques. Furthermore, the court noted that it could see no purpose in requiring a hearing for an individual subject to a mandatory retirement statute. Id. at 464.

Plaintiff asserts that Palmer is not controlling because that case involved a mandatory retirement statute, whereas the Connecticut statute in question is discretionary in that it permits the Retirement Board to authorize the continued employment of a teacher beyond age 70. In Johnson v. Lefkowitz, 566 F.2d 866 (2d Cir.1977), the court dealt with a retirement statute which permitted, but did not require, the state Civil Service Commission to extend an individual’s employment if certain conditions were met. The plaintiff in Johnson claimed that he was entitled to a hearing and that his denial of a hearing violated his due process rights. Assuming arguendo that Johnson had a property or liberty interest warranting due process protection, the court found that the burden on the state of providing every retiree with a hearing outweighed any hardship to the individual. Id. at 869. Under Johnson, even a discretionary retirement statute does not necessarily give rise to a due process right to a hearing.

Plaintiff’s claim that the granting of unbridled discretion to the Retirement Board deprived him of due process is also without merit. As was noted by the Supreme Court, Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), “[t]he requirements of procedural due process apply only to the deprivation, of interests encompassed by the Fourteenth Amendment’s protection of liberty and property.” Id. at 569. Such a property interest may arise “if there are such rules or mutually explicit understandings that support [an individual’s] claim of entitlement to the benefit and that he may invoke a hearing.” Perry v. Sinderman, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972).

Plaintiff appears to claim that such a property interest is created by section 10-183w by its holding out of the possibility of continued employment. He asserts that this possibility creates a sufficient property interest in continued employment to give rise to a due process right to a hearing and to a decision based upon clearly defined standards and guidelines. However, a closer examination of section 10-183w discloses that no such property interest is created. First, that section clearly states that a teacher “attaining the age of seventy shall be retired from service in the public schools____” (emphasis added). Plaintiff claims that the following clause, which permits a local board of education to seek authorization to continue a teacher’s employment from the Retirement Board, creates the necessary interest. Rather than create an interest in a teacher, the clause in question gives an opportunity to the school board to continue a teacher’s employment beyond age seventy. Nothing in section 10-183w implies that a teacher may apply to the Retirement Board, or suggests that a teacher might have any right to continued employment beyond age seventy.

There are a number of rationales that might have prompted the legislature to give a school board an opportunity to extend a teacher's employment. A general teacher shortage or a dearth of teachers qualified for a particular subject area may require an extension of a teacher’s employment. A school board may also recognize that a particular teacher has such experience and training as to make him or her irreplaceable. But whatever reason a school board may have to request authorization to continue employment of a teacher, nothing in section 10-183w implies any limitation on a school board’s exercise of its discretion in deciding whether or not to seek such authorization. Furthermore, the clear mandate that a teacher shall be retired, in the absence of a grant of authority by the Retirement Board to the local school board, prevents a teacher from having more than simply “a unilateral expectation” of continued employment. Board of Regents v. Roth, supra, 408 U.S. at 577, 92 S.Ct. at 2709. Because plaintiff has no protectable property interest under section 10-183w, the lack of a hearing or any legislatively defined standards does not infringe upon any right guaranteed by the Fourteenth Amendment.

II. Due Process Claim Under the Teacher Tenure Statute

In addition to claiming .section 10-183w created a protectable property interest, the plaintiff asserts that the Teacher Tenure Statute, Conn.Gen.Stat. § 10-151, also creates a property interest subject to the due process clause of the Fourteenth Amendment. If such a property interest exists in the plaintiff, the termination of his employment without observance of the statutory procedures required by section 10-151 would constitute a violation of due process. See Perry v. Sinderman, 408 U.S. 593, 92 S.Ct. 2694 (1972).

As the Supreme Court has frequently noted, the Constitution does not create property interests; rather such interests are created by an independent source such as state law. Paul v. Davis, 424 U.S. 693, 710-11, 96 S.Ct. 1155, 1164-65, 47 L.Ed.2d 405 (1976); Board of Regents v. Roth, supra, 408 U.S. at 577, 92 S.Ct. at 2709. It is clear that section 10-151 does create such a protectable property interest Petrovich v. New Canaan Bd. of Educ., 189 Conn. 585, 589, 457 A.2d 315 (1983); Lee v. Board of Education, 181 Conn. 69, 72, 434 A.2d 333 (1980). However, section 10-151 does not stand alone in the Connecticut Statutes. Any expectation of indefinite continued employment created by section 10-151 is clearly circumscribed by the mandatory retirement provision of section 10-183w. A teacher may reasonably expect that section 10-151 will guarantee continued employment once tenure is achieved unless there exists one of the reasons for termination enumerated in that section. Nonetheless, once that teacher reaches 70 years of age, the expectation of continued employment ends, and is replaced by an expectation of mandatory retirement. The teacher can no longer assert “a legitimate claim of entitlement to job tenure” that brings the due process clause into play. Perry v. Sinderman, supra, 408 U.S. at 602, 92 S.Ct. at 2700.

Plaintiff argues that sections 10-151 and 10-183(w) should not be construed together in such a way that the procedural requirements of the Teacher Tenure Statute are superceded by the summary termination of employment in the mandatory retirement provision. Rather, he acknowledges that the mandatory retirement provision may require that an older teacher be treated as “non-tenured”, but .asserts that such a teacher is still entitled to the notice and hearing requirements applicable to non-tenured teachers. Nothing in the statutes hints at such a change in status. The Connecticut Supreme Court has adopted the position that the teacher tenure system and retirement system should be viewed together as “an integral part of a coordinated plan adopted by the state for its public school systems.” Herzig v. Board of Education, 152 Conn. 144, 151, 204 A.2d 827 (1964). The teacher tenure statute is designed to create an expectation of continued employment, not just for tenured teachers, but, to a lesser degree, for nontenured teachers as well. Petrovich v. New Canaan Board of Educ., supra. However, the mandatory retirement statute serves to dispel any right to, or expectation of, continued employment once a teacher reaches the age of seventy. These two statutes must be construed as a “coordinated plan” which terminates any right to continued employment once the teacher turns seventy. Plaintiffs contention that rights under section 10-151 survive the effect of section 10-183w is therefore without merit.

III. Due Process Claims Under Employment Contract

Plaintiffs final due process claim rests upon a right claimed under his employment contract. These rights are said to stem from the collective bargaining agreement as well as from the course of dealing between the parties. It is true that “a mutually explicit understanding” may create a “claim of entitlement” protectable under the Fourteenth Amendment. Perry v. Sinderman, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699. It is also true, however, that such a mutually explicit understanding cannot create a protectable property interest when the understanding is contrary to the express provisions of regulations and statutes. Chu v. Schweiker, 690 F.2d 330, 334 (2d Cir.1982) (citing Baden v. Koch, 638 F.2d 486, 492 (2d Cir.1980)). The statutory provision of mandatory retirement is explicit. A contractual provision or mutual understanding contrary to the statutory provision may give rise to a cause of action for breach of contract, but will not give rise to a protectable property interest.

IV. Constitutionality of Section 10-183w Under the State Constitution

Plaintiff argues that, in enacting section 10-183w, the legislature delegated legislative authority to the Retirement Board without providing standards and guidelines for the exercise of that authority. Such a blanket delegation is said to be a violation of Article Third, § 1 of the Connecticut constitution. Because a finding that section 10-183w was invalid would reinstate plaintiffs federal due process rights under section 10-151, the plaintiff asserts that this court may exercise federal question jurisdiction to declare section 10-183w invalid under the state constitution. Plaintiff correctly alleges that if section 10-183w violates Connecticut’s constitution his complaint raises a claim under the Federal Constitution. Without doubt, section 10-151 standing alone would create in plaintiff a protectable property interest and give him a right to due process. If plaintiff is correct in his assertion that section 10-183w is invalid under Connecticut’s constitution, his complaint states a claim under 42 U.S.C. § 1983.

Plaintiff cites a number of state court cases to support his contention that section 10-183w is an invalid delegation of legislative power. These cases, however, dealt with completely discretionary statutes giving the administrative agency authority to determine whether or not to force an individual to retire in the first place. The statute in question presumes retirement at age 70, but allows the agency to continue employment beyond that age. Also as already noted, the discretion exercisable by the Retirement Board involves a right of the school board to reemploy a teacher. Unlike the statutes declared unconstitutional in prior casés, section 10-183w does not give the Board any discretion involving a right of the teacher in continued employment. Furthermore, even if the granting of unfettered discretion is found to be a violation of the State constitution, it is not at all clear that the mandatory retirement provision cannot be severed from the unconstitutional delegation of authority. If severance is appropriate, the mandatory retirement provision would remain and defeat plaintiffs claim to a protectable property right.

Because it is by no means clear that section 10-183w violates Connecticut’s constitution, this court is reluctant to resolve this important issue of state law. As the Supreme Court has noted, “where the challenged statute is part of an integrated scheme of related constitutional provisions, statutes, and regulations, and where the scheme as a whole calls for clarifying interpretation by the state courts, we have regularly required the district courts to abstain.” Harris County Comm’rs Court v. Moore, 420 U.S. 77, 84-5 n. 8, 95 S.Ct. 870, 875-6 n. 8, 43 L.Ed.2d 32 (1974). Therefore this court will abstain from deciding the plaintiff’s claim that section 10-183w violates Connecticut’s constitution.

V. Pendent State Claims

Counts Four, Five and Six of plaintiff’s complaint present claims based upon state law under the doctrine of pendent jurisdiction. Pendent jurisdiction is exercised as a matter of discretion. United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). The justification for pendent jurisdiction “lies in considerations of judicial economy, convenience and fairness to litigants.” Id. at 726, 86 S.Ct. at 1139. In-light of the court’s decision to abstain from deciding plaintiff’s claim' until a state court determines the validity and effect of section 10-183w, considerations of judicial economy suggest that the same state court resolve plaintiff’s state law claims. Accordingly, plaintiff’s state law claims are dismissed.

Accordingly, plaintiff’s first count, seeking a declaration that Conn.Gen.Stat. § 10-183w violates plaintiff’s rights under the United States Constitution is dismissed. Plaintiff’s fourth, fifth and sixth counts which present causes of action under state law, are also dismissed. Finally, the court abstains- from deciding plaintiff’s second and third counts which claim a violation of plaintiff’s due process rights and seek a declaration that Conn.Gen.Stat. § 10-183w violates Connecticut’s constitution.

SO ORDERED.

      . Section 10-183w provides:
      A member on attaining age seventy shall be retired from service in the public schools, but upon written request of such member’s employer, the board may authorize the employment of such member beyond such age. A member employed beyond such age who continues to make mandatory contributions while so employed, shall on retirement receive the retirement benefit computed pursuant to the provisions of sections 10-183f and 10-183g.

      . There are also numerous rational reasons why a state might avoid a mandatory retirement law: taking advantage of the proven teaching abilities of an experienced teacher; giving young teachers the opportunity of learning from an older and wiser colleague; capitalizing on the dedication and commitment demonstrated by one who chooses to continue teaching over the possibility of retirement.

      . Plaintiff also claims a property right by virtue of the Teacher Tenure Statute, Conn.Gen.Stat. § 10-151. This claim will be discussed in Part II, infra.

      . See Part I, supra.

      . In Palmer v. Ticcione, 576 F.2d 459 (2d Cir.1978) the court dealt with an identical contention that the New York tenure and mandatory retirement statutes should be read to require a hearing. The court noted that the New York courts that have addressed the issue have found that mandatory retirement statutes are "not inconsistent with or modified by” tenure-type statutes. Id. at 464, n. 4. There appears to be no reason why Connecticut would construe its similar statutory provisions in a different manner.

      . See Conn.Gen.Stat. § 1-3 which establishes a presumption of severability. State v. Menillo, 171 Conn. 141, 368 A.2d 136 (1976).

      . Count Three, which seeks a declaration that section 10-183w violates the Connecticut constitution also presents a state claim, but as discussed in Part IV, this count invokes federal question jurisdiction.


text:
    Joseph C. SUNN, Plaintiff, v. William T. DEAN, et al., Defendants.
    Civ. A. No. C84-1090A.
    United States District Court, N.D. Georgia, Atlanta Division.
    Sept. 27, 1984.
    Joseph C. Sunn, pro se.
    John-Little, pro se.
    Michael J. Bowers, Atty. Gen., Kathryn Allen, Asst. Atty. Gen., Atlanta, Ga., James C. Morton, Bondurant, Miller, Hishon & Stephenson, Atlanta, Ga., Jeffrey M. Starnes, Conyers, Ga., for defendants.
   ORDER

FORRESTER, District Judge.

This action is before the court on several pending motions: a motion to dismiss, a motion for attorney’s fees, and a motion for a protective order filed by the juror defendants; plaintiff’s motion for leave to amend the complaint and plaintiff’s motion for leave to file a second amendment to the complaint; and defendant Dean’s motion for a protective order.

I. FACTS.

Plaintiff in this case was a pro se plaintiff in an action tried before a jury in the Superior Court of Rockdale County. The jury in that case returned a verdict for the defendant and awarded attorney’s fees against plaintiff. Plaintiff did not make any motion for a new trial or a judgment notwithstanding the verdict or challenge the jury’s award of attorney’s fees. Plaintiff did not appeal the trial court’s judgment to the Georgia appellate courts. Instead, plaintiff filed this action against the attorneys who represented defendant in the Rockdale County suit, the judge who presided at the trial, and the jury which rendered the verdict. Plaintiff alleges that all of the defendants conspired to deprive him of his civil rights and his right of access to the courts based upon his race, his interracial marriage, and the fact that he was not a resident of Rockdale County. Plaintiff claims that the jury was prejudiced against him from the start and disobeyed their oaths as jurors to decide the case fairly based upon the evidence. Plaintiff claims that the verdict entered by the jury was contrary to the evidence. Plaintiff further claims that Judge Dean made disparaging and prejudicial remarks during the trial and made various rulings against plaintiff which were contrary to law. As damages plaintiff seeks $10,000 from each defendant for the alleged deprivations of his civil rights.

II. SUBJECT MATTER JURISDICTION.

This court has no subject matter jurisdiction to review a judgment by a state court. District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 1311, 75 L.Ed.2d 206 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16, 44 S.Ct. 149, 150, 68 L.Ed. 362 (1923); Reynolds v. Georgia, 640 F.2d 702 (5th Cir. Unit B), cert. denied, 454 U.S. 865, 102 S.Ct. 326, 70 L.Ed.2d 165 (1981); Warriner v. Fink, 307 F.2d 933 (5th Cir.1962), cert. denied, 372 U.S. 943, 83 S.Ct. 937, 9 L.Ed.2d 969 (1963); Collins v. Collins, 597 F.Supp. 33 (N.D.Ga.1984); National Car Loading Corporation v. Shulman, 570 F.Supp. 3 (N.D.Ga.1983). This is true notwithstanding the fact that plaintiff’s complaint might be brought under 42 U.S.C. § 1983. Reynolds v. Georgia, supra. This court further has no authority to decide constitutional issues which were raised, or reasonably could have been raised in the state court proceeding. District of Columbia Court of Appeals v. Feldman, 103 S.Ct. at 1315 n. 16; Wood v. Orange County, 715 F.2d 1543, 1546-47 (11th Cir.1983). All of plaintiff’s allegations concerning the prejudice of the jury, the correctness of their verdict, the disparaging remarks by the trial judge, and the correctness of his rulings, could have been raised, and should have been raised, on direct appeal to the Georgia appellate courts. This court, therefore, has no jurisdiction or authority to consider any issues concerning the correctness of the judgment against plaintiff. Insofar as plaintiff’s claims would require this court to reverse, vacate, or otherwise modify the judgment of the state court this court is without jurisdiction to hear them. Collins v. Collins, supra. This court further lacks jurisdiction to review the proceedings in the state court for error, since such issues could have been raised on appeal.

Plaintiff, however, has hot asked this court to interfere with the judgment of the state court. Instead, plaintiff simply seeks damages from the named defendants for conspiring to deprive plaintiff of his civil rights. While it may be impossible for plaintiff to prove his claims without forcing this court into an appellate-type review of the proceedings in the state court, an inquiry for which this court lacks jurisdiction, the court will assume for purposes of the present motions that plaintiff may be able to prove some set of facts in support of his claim without requiring the court to make such an inquiry. The court proceeds, therefore, to the pending motions.

III. THE JUROR DEFENDANTS’ MOTION TO DISMISS.

The juror defendants have moved to dismiss plaintiff’s claim against them pursuant to Rule 12(b)(6) on the grounds that plaintiff’s complaint fails to state a claim upon which relief can be granted. Plaintiff’s complaint generally asserts that the jurors conspired to deprive him of his civil rights by rendering a verdict against him because of his race. This court’s research has disclosed only two cases dealing with whether jurors are subject to liability for damages under the civil rights laws. In Roberts v. Barbosa, 227 F.Supp. 20 (S.D.Cal.1964) a state prisoner brought an action for damages under the Civil Rights Acts against 44 different defendants, including “the judge of the superior court who heard his case, all of the judges of the district court of appeals which affirmed his conviction, the attorney general of the State of California and certain of his deputies, the County Clerk of San Bernardino County, and several deputies, his own attorney, witnesses who testified at his trial, and ... all of the members of the Jury which convicted him of the crime” for which he was imprisoned. Id. at 21-22. In discussing the potential liability of the jurors, the court stated:

I have found no case which touches on the question of immunity of a jury. Perhaps this is the first case where anyone has had the gall to attempt to secure damages from a jury for convicting him, in alleging violation of his civil rights. If anyone should have immunity, it is the jurors. As Justice Frankfurter said in Tenney, et al. v. Brandhove (1951), 341 U.S. 367, at 377, 71 S.Ct. 783, at 788, 95 L.Ed. 1019: “The privilege [of immunity] would be of little value if they could be subjected to the costs and inconvenience and distractions of a trial upon a conclusion of a pleader, or to the hazards of a judgment against them based upon a jury’s speculation as to motives.” There, the court was speaking of immunity of legislators. If ever immunity should be granted, it should be granted to jurors. To permit this case to proceed, and the jurors to be served with summons and complaint, and compel them to hire lawyers, would be the ultimate, not only in absurdity, but also in the subversion of justice. 227 F.Supp. at 26.

The ruling in Roberts v. Barbosa was later applied in a suit brought by plaintiff against jurors who had rendered a verdict against him in a civil case. In McIntosh v. Garofalo, 367 F.Supp. 501 (W.D.Pa.1973), the court, after discussing Roberts v. Barbosa and two other cases which had reached similar conclusions, White v. Hegerhorst, 418 F.2d 894 (9th Cir.1969) (affirming dismissal of a criminal defendant’s civil rights action against a juror) and Martone v. McKeithen, 413 F.2d 1373 (5th Cir.1969) (members of grand jury immune from liability for damages under the Civil Rights Act), the McIntosh court stated:

Research fails to disclose a case in which it . has been held- that jurors in a civil action are immune from suit under the Civil Rights Act. Perhaps this is because, as noted in the Roberts opinion, no one in the past has brought such an action. Be that as it may, the reasoning employed in Roberts, White, and Martone v. McKeithen, 413 F.2d 1373 (5th Cir.1969)] compels the conclusion that one empaneled as a juror in a civil action is immune from a later suit for damages under section 1983.
In the first instance, it must be considered that this case could not be pursued further without the necessity arising for piercing the time-honored veil of secrecy which surrounds the jury’s deliberations. The threat to the jury system, one of the keystones of the democratic process, is obvious. But more importantly, perhaps, the integrity of the judicial process demands that jurors, as well as judges (Bauers v. Heisel, 361 F.2d 581 (3d Cir.1966) and prosecutors (United States ex rel. Rauch v. Deutsch, 456 F.2d 1301 (3d Cir.1972)), be free to dis: charge their duties without fear of subsequent harassment. To hold that a jur- or in a civil case is not immune from-liability under section 1983 would be to subject each citizen/juror, men and women who serve their community in a spirit of well-meaning, if sometimes grudging, civil altruism, to the possibility of lengthy, expensive and burdensome combat against the vendettas of dissatisfied litigants. Such a state of affairs cannot be fostered. A juror in a civil action is immune from subsequent suit for damages under 42 USC § 1983. McIntosh v. Garofalo, 367 F.Supp. at 504.

This court is completely in accord with the sentiments expressed by the courts in Roberts v. Barbosa and McIntosh v. Garofalo and completely agrees with their holding that jurors are entitled to absolute immunity from subsequent actions for. damages under the Civil Rights Acts. Since the juror defendants enjoy absolute immunity to an action for damages, plaintiffs complaint against them fails to state a claim upon which relief can be granted. The motion by the juror defendants to dismiss plaintiffs complaint against them is, therefore, GRANTED.

Although Judge Dean has not yet filed a motion to dismiss, this court sees no reason that he should be put to the additional expense of filing such a motion. The doctrine of judicial immunity from liability for damages under section 1983 is far more firmly established than the immunity of jurors. See Bauers v. Heisel, 361 F.2d 581, 586 and n. 7 (3 Cir.1966). In Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), the Supreme Court expressly considered the question of “whether a local judge is liable for damages under § 1983 for an unconstitutional conviction. ...” Id. at 551, 87 S.Ct. at 1216. In that case the local judge had convicted the petitioners, various “Freedom Riders,” for their part in attempting to desegregate a bus terminal in Jackson, Mississippi. The Fifth Circuit Court of Appeals had held that the judge was entitled to an absolute immunity from an action for damages for acts within their jurisdiction. Pierson v. Ray, 352 F.2d 213, 217 (1965). The Supreme Court affirmed, stating:

We find no difficulty in agreeing with the Court of Appeals that Judge Spencer is immune from liability for damages for his role in these convictions. ... New doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction, as this Court recognized when it adopted the doctrine, in Bradley v. Fisher, 13 Wall. 335 [20 L.Ed. 335] (1872). This immunity applies even when the judge is accused of acting maliciously and corruptly, and it “is. not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is. that the judges should be at liberty to exercise their functions with independence and without fear or consequences.” Scott v. Stansfield, L.R. 3 Ex. 220, 223 (1868) (quoted in Bradley v. Fisher, supra, 349, note, at 350 [20 L.Ed. 335]). It is a judge’s duty to decide all cases within his jurisdiction, that are brought before him, including controversial cases that arouse the most intense feelings in the litigants. His errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decision-making but to intimidation.
We do not believe that this settled principle of law was abolished by section 1983, which makes liable “every person” who under color of law deprives another person of his civil rights. The legislative record gives no clear indication that Congress meant to abolish wholesale all common-law immunities. Accordingly, this Court held in Tenney v. Brandhove, 341 U.S. 367 [71 S.Ct. 783, 95 L.Ed. 1019] (1951), that the immunity of legislators for acts within the legislative role was not abolished. The immunity for judges for acts within the judicial role is equally well established, and we presume that Congress would have specifically so provided had it wished to abolish the doctrine. Pierson v. Ray, 386 U.S. at 553-555, 87 S.Ct. at 1217-1218.

Plaintiff has cited Pulliam v. Allen, — U.S.-, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984), apparently for the proposition that he can recover damages, or at least attorney’s fees, from Judge Dean. In Pulliam, the Supreme Court faced the question of “[w]hether Judicial Immunity Bars the Award of Attorney’s Fees Pursuant to 42 U.S.C. § 1988 Against a Member of the Judiciary Acting in his Judicial Capacity.” The district court had granted prospective injunctive relief against the state judge and awarded attorney’s fees pursuant to section 1988. The Supreme Court stated that the propriety of the award of attorney’s fees

depends in part on whether judicial immunity bars an award of injunctive relief under section 1983. The legislative history of section 1988 clearly indicates that Congress intended to provide for attorney’s fees in cases where relief properly is granted against officials who are immune from damages awards. ... There is no indication, however, that Congress intended to provide for a fee award if the official was immune from the underlying relief. on which the award was premised. See Supreme Court of Virginia v. Consumers Union of the United States, Inc., 446 U.S. 719, 738-39, 100 S.Ct. 1967, 1977-78, 64 L.Ed.2d 641 (1980) (emphasis added).

The Court in Pulliam concluded that “judicial immunity is not a bar to prospective injunctive relief against a judicial officer acting in her judicial capacity.” The Court then went on to hold that an award of attorney’s fees under section 1988 was proper, notwithstanding that the doctrine of judicial immunity would have barred an award of damages.-

Plaintiff’s complaint does not seek any kind of prospective relief against Judge Dean; it seeks only damages. Judge Dean enjoys absolute immunity from such a suit as Pulliam v. Allen did not overrule the settled principle that judges are immune from liability for damages for acts committed within their judicial capacity. Therefore, plaintiff has failed to state a claim for which relief can be granted against Judge Dean. Because of this, plaintiff cannot be a prevailing party as against Judge Dean, and, therefore, he cannot be entitled to an award of attorney’s fees under 42 U.S.C. § 1988.

As Judge Dean enjoys an absolute immunity from an action for damages for acts committed within the scope of his judicial capacity, plaintiff’s case is defeated at the outset. Imbler v. Pachtman, 424 U.S. 409, 419 n. 13, 96 S.Ct. 984, 989 n. 13, 47 L.Ed.2d 128 (1976). The court sees no reason why Judge Dean should be put to the expense of filing a motion to dismiss. Plaintiff’s complaint against him is so patently frivolous that this court believes it is warranted in dismissing it sua sponte. Therefore, plaintiff's claim against Judge Dean is hereby DISMISSED on the grounds that it is patently frivolous. 1 J. Moss, Moore’s Federal Practice, ¶ 0.60[6] (2d Ed.1982).

IV. THE JUROR DEFENDANTS’ MOTION FOR ATTORNEY’S FEES.

The juror defendants have moved for an award of attorney’s fees on the grounds that the action against them is unreasonable, frivolous and meritless. 42 U.S.C. § 1988 provides that this court may award attorney’s fees to a prevailing party in a civil rights action. While the standards for awarding such fees to a prevailing defendant are somewhat different than those for awarding fees to a prevailing plaintiff, see Strong v. Ponder, 572 F.Supp. 129 (N.D.Ga.1983), this court feels that an award of fees is appropriate in this case. Plaintiff’s complaint against the juror defendants is patently frivolous. The notion that jurors should be haled into court to answer in a civil action for damages for the verdict they render is so outrageous that, an award of attorney’s fees is proper not only under 42 U.S.C. § 1988, but also under Rule 11 of the Federal Rules of Civil Procedure. Therefore, the motion by the juror defendants for an award of attorney’s fees is GRANTED. See Roberts v. Barbosa, 227 F.Supp. 20 (1964). The juror defendants are DIRECTED to file an itemization of their attorney’s fees within twenty (20) days of the date of this order.

V. PLAINTIFF’S MOTIONS FOR LEAVE TO AMEND COMPLAINT.

By these motions plaintiff seeks to amend his complaint to correct certain deficiencies such as the failure to allege that defendants acted under color of state law and the failure to allege subject matter jurisdiction. Since the court has not entirely dismissed this case, and since leave to amend the complaint should be freely given pursuant to Rule 15(a), both of plaintiff’s motions for leave to amend the complaint are GRANTED.

VI. CONCLUSION.

In sum, the juror defendants’ motion to dismiss is GRANTED. The juror defendants’ motion for attorney’s fees is also GRANTED. Plaintiff’s June 22 motion for leave to amend the complaint and plaintiff’s July 3 motion for leave to file a second amendment to the complaint are GRANTED. The court on its own motion dismisses plaintiff’s Complaint against defendant Dean on the grounds that it fails to state a claim upon which relief can be granted. Defendant Dean’s motion for a protective order and the juror defendants’ motion for a protective order are MOOT because those defendants are hereby DISMISSED from this action.

      . Defendants Nation and Little have not yet filed a motion to dismiss. The court is not entirely certain what these defendants are alleged to have done other than to "conspire with defendant Dean to deprive plaintiff of his civil rights.” These defendants do not appear to enjoy an absolute immunity such as that enjoyed by the judge and jurors. Since plaintiff is proceeding pro se, this court is hesitant to dismiss the action against these defendants on its own motion based on the record before it, as it did with Judge Dean.


author: GILES, District Judge.

text:
    Theodore M. LIEVERMAN, v. UNITED STATES DEPARTMENT OF JUSTICE.
    Civ A. No. 82-2419.
    United States District Court, E.D. Pennsylvania.
    Sept. 27, 1984.

      David Kairys, Kairys, Rudovsky & Maguigan, Philadelphia, Pa., for plaintiff.
    Michael L. Martinez, Asst. U.S. Atty., Philadelphia, Pa., for defendant.
   MEMORANDUM

GILES, District Judge.

In this Freedom of Information Act (FOIA), 5 U.S.C. § 552, case, Theodore M. Lieverman seeks to compel disclosure of certain documents, and portions thereof, which have been withheld by the Federal Bureau of Investigation (FBI). The parties have filed cross motions for summary judgment. Lieverman requested either the release of the withheld documents or an in camera inspection by this court to determine whether the documents have been properly withheld. The government asserted that the records have been properly withheld in accordance with certain FOIA exemptions. After hearing oral argument, this court decided to conduct an in camera inspection because some of the documents seemingly could not contain material protected by the exemptions. In addition, the withheld documents were relatively few in number so that an in camera inspection was not overly burdensome. The in camera inspection revealed that the documents have been properly withheld. Therefore, this court shall now grant the government’s motion for summary judgment.

On June 24, 1981, Lieverman filed a request under the FOIA for all records pertaining to him in the FBI’s possession. The FBI released some of the requested documents but withheld others and portions of others, citing Exemptions (b)(1), 5 U.S.C. § 552(b)(1), (b)(2), 5 U.S.C. § 552(b)(2) and (b)(7), 5 U.S.C. § 552(b)(7). The records withheld pursuant to Exemption (b)(1) were considered classified, in whole or in part, under Executive Order 12,065, the applicable Executive Order then in effect.

Lieverman appealed the FBI’s decision. On appeal, additional documents were released to him. With the exception of the release of these additional records, the initial administrative decision was upheld.

Lieverman subsequently filed this civil action seeking judicial review of the administrative decisions. The parties stipulated to the government’s filing a Vaughn index in which the FBI would give specific reasons explaining why certain records were withheld from Lieverman. Two special agents prepared affidavits in which they explained and justified each withholding. These affidavits and sanitized copies of the records in dispute were submitted as the Vaughn index. Special Agent Gary Haegele prepared his affidavit after he independently reviewed the records withheld pursuant to Exemption (b)(1). This exemption protects from disclosure all records which are:

(A) specifically authorized under criteria established by an Executive order to be kept secret in the interests of national' defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order.

He conducted his review pursuant to the criteria of Executive Order 12, 356, 47 Fed.Reg. 14874 (1982), which went into effect on August 1, 1982. He concluded that the withheld records contained information regarding intelligence activities, sources and methods entitling these documents to classification under § 1.3(a)(4) of Executive Order 12,356. Under § 1.3(c) of. Executive Order 12,356 “[ujnauthorized disclosure of ... the identity of a confidential foreign source, or intelligence sources or methods is presumed to cause damage to the national security.” Consequently, he classified the relevant material as “confidential” in accordance with § 1.1(a)(3). In his affidavit, Special Agent Michael Beyer explained the steps taken by the FBI in responding to Lieverman’s request, the files that were searched, the reasons for a file on Lieverman and the rationale for withholding certain records pursuant to Exemptions (b)(2), (b)(7)(C) and (b)(7)(D).

Exemption (b)(2), 5 U.S.C. § 552(b)(2), exempts from disclosure matters that are “related solely to the internal personnel rules and practices of an agency.” This exemption applies to “routine matters” of “merely internal significance” in which the public lacks any substantial or. legitimate interest. Dept. of the Air Force v. Rose, 425 U.S. 352, 369-70, 96 S.Ct. 1592, 1603, 48 L.Ed.2d 11 (1976). The FBI withheld “source symbol numbers” which it uses to refer to agents or informants in FBI records under this exemption.

Exemption (b)(7)(C) and (D), 5 U.S.C. § (b)(7)(C) and (D) exempts from disclosure:

[IJnvestigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would ... (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source and, in the case of a record compiled ... by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source...

The FBI invoked Exemption (b)(7)(C) to protect the identities of FBI personnel, third parties mentioned in FBI records, third parties who provided information to the FBI during the course of their employment and state and local law enforcement officers. Exemption (b)(7)(D) was invoked to protect source symbol numbers and file numbers, the names of individuals who were confidential sources, the identities of commercial institutions providing information and information from a state or local law enforcement agency.

Lieverman has made numerous objections to the invocation of these exemptions which can be summarized as follows:

Exemption (b)(1):
1. The government failed to show how one of the withheld documents relates to national security information (citing § 1.6(a) of Executive Order 12,356) and it failed to explain why a particular person or organization was under investigation.
2. Certain documents were not classified until three months after this action was filed and more than ten years after the documents were actually produced.
Exemption (b)(7)(C):
3. The government failed to show that the withheld documents were compiled for law enforcement purposes.
Exemption (b)(7)(D):
4. The government offered no facts to support the claims of assurances of express or implied confidentiality in exchange for the withheld information.
5. The government failed to show that the investigation of Lieverman was conducted for legitimate national security purposes rather than for harrassment purposes.
6. The government was overzealous in classifying documents because its standard was whether the information contained therein could be pieced together with other information to identify sources.
7. With regard to information provided by a financial institution, there was no showing that the investigation was proper, there was no showing that the information was provided under an assurance of confidentiality and there is no recognized exemption for information provided by financial institutions. In addition, a financial institution breaches a fiduciary duty when it releases confidential information to the government about its patrons.
8. With respect to documents in which long paragraphs were deleted, Lieverman doubts that only the names of persons mentioned in FBI files are in these files.

Lieverman has not objected to the documents withheld pursuant to Exemption (b)(2).

Contrary to Lieverman’s assertions, failure to show a legitimate national security reason for conducting an investigation into an individual’s activities does not invalidate the government’s invocation of Exemption (b)(1). The focus in Exemption (b)(1) cases is the withheld information itself, not the reason for the underlying investigation. See Lesar v. United States Dept. of Justice, 636 F.2d 472, 483 (D.C.Cir.1980) (FBI surveillance beyond the bounds of initial lawful security aim does not preclude exemption of documents so procured if they may contain information which could compromise legitimate security needs); LaRouche v. Kelley, 522 F.Supp. 425, 435 (S.D.N.Y.1981) (rejecting plaintiff’s argument that government had burden of showing its investigation had “a tangible connection to ‘national defense or foreign policy.’ ”).

Lieverman’s objections on grounds that certain documents were not classified until after this action was filed also prove to be without legal merit. In Lesar, supra, 636 F.2d at, 483-84, the government had failed to comply with the relevant Executive Order which required that each document be marked at the time of origination with its assigned security classifications. The belated classification of the documents did not preclude invocation of Exemption (b)(1). Rather, the court determined that “[t]o release these materials because of a mere mishap in the time of classification, when the documents are sworn to contain sensitive information, would only be perverse.” Lesar, 636 F.2d at 484. Moreover, here an in camera inspection has revealed that the delay in classification was undoubtedly due to oversight and not to an attempt to prevent unprotected materials from being disclosed.

Lieverman’s contention that the government must show that the withheld documents were compiled for law enforcement purposes as a prerequisite to invoking Exemption (b)(7) appears to be correct. See FBI v. Abramson, 456 U.S. 615, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982) (indicating that a two part inquiry is necessary to determine whether Exemption (b)(7) has been properly invoked — (1) whether the document was compiled for law enforcement purposes and (2) whether one of the six harms listed in Exemption (b)(7) has been demonstrated); Demetracopoulos v. FBI, 510 F.Supp. 529, 531 (D.D.C.1981), Malizia v. United States Dept. of Justice, 519 F.Supp. 338, 347-48 (S.D.N.Y.1981). Invocation of the exemption will be sustained here. The in camera inspection has revealed that the documents were compiled for a legitimate law enforcement purpose. See Lamont v. Dept. of Justice, 475 F.Supp. 761, 773 (S.D.N.Y.1979) (appropriate test is whether agency gathered information with good faith belief that, subject may violate or has violated federal law). Moreover, the government has demonstrated that releasing the withheld documents would result in one of two harms — either the unwarranted invasion of personal privacy or the disclosure of confidential sources.

The government invoked Exemption (b)(7)(C) .to protect the identities of FBI personnel, third parties mentioned in FBI records, third parties who provided information to the FBI during the course of their employment and of any state or local law enforcement officers. In Lesar, supra, the court held that while there is no “blanket exemption for the names of all FBI personnel in all documents,” they do have a privacy interest which can be protected by the invocation of Exemption (b)(7)(C) after the court has balanced this privacy interest against the public interest in disclosure of their names. 636 F.2d at 487. The government’s representations that disclosure of FBI personnel involved in the Lieverman investigation could hamper the integrity of future FBI investigations outweigh any interest Lieverman may have in obtaining this information. See Malizia, 519 F.Supp. at 348-49 (although the privacy of FBI agents is minimal, the public interest in identifying them is even less). Application of this balancing results in a finding that Exemption (b)(7)(C) has been properly invoked with respect to various third parties and law enforcement officers as well. See Lesar, 636 F.2d at 488, quoting Lesar v. United States Dept. of Justice, 455 F.Supp. 921, 925 (D.D.C.1978) (“Those cooperating with law enforcement should not now pay the price of full disclosure of personal detail.”); Keuhnert v. FBI, 620 F.2d 662, 667 (8th Cir.1980) (FBI properly withheld the names of third parties asserted to be of “investigative interest” to the FBI under Exemption (b)(7)(C); LaRouche, 522 F.Supp. at 438 (footnote omitted) (“It repeatedly has been held that the balance in a case such as this one should be struck in favor of protection of individual privacy interests.”).

Lieverman has made several objections to the invocation of Exemption (b)(7)(D). He contends that the government has offered no facts supporting its claims of express or implied confidentiality. Special Agent Beyer did aver in his affidavit that confidentiality was either express or implied. In addition, the showing demanded by Lieverman is not required since “[s]uch a promise of confidentiality is presumed in the context of a law enforcement investigation, especially one conducted by the FBI.” LaRouche, 522 F.Supp. at 439 (footnote omitted). See Malizia, 519 F.Supp. at 350; Lamont, 475 F.Supp. at 779.

Lieverman also contends that there is no recognized exemption for financial institutions as confidential sources. This contention is simply incorrect. It has been determined that [cjonfidential sources are not only paid informants. Any provider of information is considered a source, whether that provider is a natural person, a corporate entity, or another governmental body.” LaRouche, 522 F.Supp. at 439 (footnote omitted). See also Lesar, 636 F.2d at 490-91 (interpreting legislative history to extend protection to whatever source of information the law enforcement agency employs during the investigation).

In conclusion, after reviewing the Vaughn index and the withheld documents, with each of Lieverman’s objections in mind, this court is satisfied “that all of the statutory exemptions utilized by the Government to withhold or excise material ... were properly claimed.” Docal v. Bennsinger, 543 F.Supp. 38, 49 (M.D.Pa.1981). The Vaughn index is as detailed as it can be without actually divulging the protected information. The in camera inspection revealed that the exemptions were claimed in good faith and that they were not used to disguise illegal activity by the FBI. Consequently, the government will not be ordered to release these documents to Lieverman.

      . For example, the FBI withheld a phone list of an organization of which Lieverman had once been a member. Given that Lieverman possessed a similar list, the government’s withholding of this document seemed questionable. Review of the document during in camera inspection, however, has satisfied this court that it was properly withheld.

      . The FBI had a total of sixty-five pages of documents pertaining to Lieverman, forty of which were released to him in edited form. Twenty-five documents were withheld in their entirety.

      . See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974).

      . Executive Order 12,065 was repealed and replaced by Executive Order 12,356 while this action was pending. The new Executive Order dispensed with a section advising the government to balance the need to protect classifiable information against the public interest in disclosure of the information. Although Executive Order 12,065 was in effect when plaintiff made his document requests, the government properly applied Executive Order 12,356 when classifying certain documents. See Afshar v. Dept. of State, 702 F.2d 1125, 1135-37 (D.C.Cir.1983). Executive Order 12,356 includes all of the substantive classification criteria of Executive Order 12,065. Therefore, documents that were classifiable under Executive Order 12,065 are now classifiable under Executive Order 12,356. See id. at 1137-38 n.18. See also LaRouche v. Kelley, 522 F.Supp. 425, 432 (S.D.N.Y.1981), quoting Lesar v. United States Dept. of Justice, 636 F.2d 472, 480 (D.C.Cir.1980).


author: SHAPIRO, District Judge.

text:
    Cecil M. HAGANS v. The BUDD COMPANY.
    Civ. A. No. 81-3977.
    United States District Court, E.D. Pennsylvania.
    Sept. 29, 1984.

      Judith B. Chomsky, Philadelphia, Pa., for plaintiff.
    Carter R. Buller, Carol A. Mager, Montgomery, McCracken, Walker & Rhoads, Philadelphia, Pa., for The Budd Co.
    Paula R. Markowitz, Philadelphia, Pa., for Local Union No. 813.
   FINDINGS OF FACT AND CONCLUSIONS OF LAW

SHAPIRO, District Judge.

FINDINGS OF FACT

1. Plaintiff, Cecil M. Hagans (“Plaintiff”) is a black male citizen of the United States and is a resident of Philadelphia County, Pennsylvania.

2. Defendant, The Budd Company (“Budd”) is a corporation doing business in Pennsylvania.

3. Plaintiff was employed at Budd’s Hunting Park facility from November 30, 1964, until his discharge on March 23,1981.

4. Plaintiff was a member of the bargaining unit represented by defendant, United Automobile, Aerospace and Agricultural Implement Workers of America, Local No. 813 (“Union”) at all times material hereto.

5. On March 23, 1981, as a result of plaintiff’s bid for the position, he began working as a General Rigger under the direction of Supervisor Gary Mulqueeney (“Mulqueeney”).

6. Although plaintiff had worked as a rigger on previous occasions, he was unfamiliar with the rigger’s job in the R-Building to which he was assigned.

7. After bidding for the General Rigger position, Hagans successfully passed the required test involving the use of a twenty ton lift truck.

8. After plaintiff successfully completed the test, Mulqueeney told plaintiff to meet him in the office.

9. In the office, Mulqueeney gave plaintiff documents and instructed him to look at the runs on the board, and told plaintiff that he was going to the bathroom and would be right back.

10. Plaintiff attempted to look at the runs in Mulqueeney’s absence, but was unable to understand how to perform the job because he never had done so before.

11. Plaintiff left the office during Mulqueeney’s absence to look at the coded numbers on the board.

12. Mulqueeney returned from the bathroom, found plaintiff out of the office, and asked him what he was doing. Plaintiff stated that he was not familiar with his assignment, and was not able to perform it.

13. Plaintiff and Mulqueeney then began shouting at each other. At some point, plaintiff was told to “shut up” by Mulqueeney.

14. Plaintiff then struck Mulqueeney in the face at least twice. Mulqueeney grabbed plaintiff between the waist and legs to avoid getting punched in the face. Mulqueeney grabbed plaintiff’s shirt but never struck plaintiff.

15. Plaintiff stopped striking Mulqueeney when he heard someone say, “He’s got enough.” Mulqueeney then slid to the floor.

16. As a result of the blows inflicted by plaintiff, Mulqueeney was injured. He was bleeding from both nostrils, there was tenderness of the nose, abrasions, contusions and hematoma of the periorbital regions of both eyes. Mulqueeney also suffered a fracture of the orbit flow with herniation of the tissues into the orbit. There was also a tenderness of the forehead and both orbits. Mulqueeney received medical attention from Budd’s physician, a local hospital, and an ophthalmic surgeon.

17. Portions of the altercation were witnessed by an employee, James Werts (“Werts”) who was operating machinery at the time. Werts continued performing his job during the altercation involving plaintiff and Mulqueeney.

18. Plaintiff was recommended for discharge by Supervisor Mulqueeney for violating Budd Company Rules 5 and 14.

19. Rule 5 provides that an employee who fights or commits any acts of violence on company property is subject to immediate discharge.

20. Rule 14 provides that an employee who threatens, intimidates or interferes with fellow employees or supervisors is subject to progressive discipline, up to and including discharge.

21. Representatives of the Union promptly investigated the incident between plaintiff and his supervisor.

22. On the night of the altercation, a departmental mini-hearing was conducted pursuant to standard practices at Budd’s Hunting Park facility. Plaintiff was represented by shop steward Crowley. Plaintiff did not raise the issue of race - discrimination at the mini-hearing.

23. On March 17, 1981, a Disciplinary Control Board (“DCB”) hearing was held to consider the recommended discharge. Hagans was present and was represented by union officials; Supervisor Mulqueeney was also present. Both plaintiff and Mulqueeney testified concerning the incident.

24. At the DCB hearing, Mulqueeney admitted shouting at plaintiff and telling him to shut up.

25. At the DCB hearing, the Union stated that it had witnesses but did not call Werts to testify.

26. Budd does not permit the Union to call witnesses to testify at DCB hearings held at the Hunting Park facility.

27. Plaintiff did not state at the DCB hearing that he believed he was being discharged because he was black. Rather, he stated that he was being discharged because his supervisor was seriously injured and he was not. (Defendant’s Exhibit 23, p. 12)

28. Plaintiff did not state at the DCB hearing that Mulqueeney struck the first blow. Rather, he stated that after Mulqueeney told him to shut up, he did not remember what happened next.

29. As a result of the DCB hearing held on March 27, 1981, the recommended discharge of plaintiff was upheld.

30. The Union filed a grievance contesting plaintiff’s discharge.

31. Various Union officials met with plaintiff on a number of occasions, both at the Union Hall and at plaintiff’s home, to investigate the grievance and prepare for arbitration.

32. During the meeting at the Union Hall, plaintiff was asked to tell his story. Plaintiff did not state that race was a factor in his discharge.

33. In preparation for his arbitration, plaintiff met with the Grievance Committee Chairman, Andy Palumbo, and International Representative Reed. Plaintiff presented Reed and Palumbo with a written statement of his views in which plaintiff mentioned that the incident was “between people not of the same color.” (Defendant’s Exhibit 16).

34. Pursuant to the Collective Bargaining Agreement between Budd and the Union, the matter proceeded to binding arbitration before the impartial permanent Arbitrator, Louis A. Crane. The Union and Budd had agreed upon a permanent arbitrator because such an arbitrator is familiar with the workplace and the practices of Budd and the Union.

35. Plaintiff was represented at the arbitration by Anthony Reed (“Reed”), International Representative of the United Auto Workers. Reed interviewed plaintiff prior to the day of the arbitration proceeding. Plaintiff did not inform Reed that he believed that race was a factor in his discharge or that he wanted the Union to so claim.

36. At the arbitration, plaintiff and Mulqueeney both testified and were subject to cross examination. Plaintiff mentioned nothing in his testimony about Mulqueeney striking him. Neither plaintiff nor the Union stated that race played a factor in plaintiffs discharge. Plaintiff did not testify that he was struck by Mulqueeney. Werts also testified.

37. On July 1, 1981, Arbitrator Crane issued an Opinion and Award upholding the discharge of plaintiff.

38. Arbitrator Crane found that “Hagans was the only one who struck any blows.” (Opinion p. 4) He further determined that “it is apparent that Mulqueeney suffered a beating at Hagans’ hands.” (Id.)

39. Arbitrator Crane determined that the beating which plaintiff inflicted upon Mulqueeney justified plaintiff’s discharge because it could impair supervisors’ ability to direct the work force:

Hagans probably was provoked at Mulqueeney, but that did not justify in any way, shape or form the beating he administered. He did more than strike a blow in the heat of anger. He continued to hit Mulqueeney in the face and on top of the head, until a bystander had told him that Mulqueeney had had enough. This is misconduct so serious that it goes beyond the bounds of corrective discipline. Neither Hagans’ length of service nor his prior record can mitigate against the seriousness of his offense. One such offense, which could impair the ability of supervision to direct the working force, is enough.
For the reasons stated, discharge is not too severe a penalty and Hagans’ discharge should therefore stand.

40. On .November 23, 1981, plaintiff signed an affidavit stating that he did not remember whether or not Mulqueeney hit him. (Defendant’s Exhibit 6, ¶ 6)

41. Plaintiff filed a timely charge against defendants with the EEOC.

42. There is no evidence that white Union employees at Budd’s Hunting Park facility similarly situated to plaintiff were not discharged for similar conduct.

43. The only other altercation between a supervisor and an employee where blows were exchanged was that of Senigo and Delowery, both of whom are white. The fight between employee Senigo and supervisor Delowery was not of a comparable seriousness. The supervisor was the aggressor and beat the employee; the supervisor was not injured. Budd imposed a six week suspension on the supervisor who struck the employee. The employee was suspended for two weeks for fighting with a supervisor. (Defendant’s Exhibit 31, p. 24) But the employee denied striking the supervisor and the matter proceeded to arbitration before permanent Arbitrator Crane. Arbitrator Crane reinstated the employee with back pay, on the ground that Budd failed to prove the employee had violated the rule against fighting. In this case, plaintiff was the aggressor and the only one who struck blows.

44.. In light of the seriousness of plaintiff’s conduct and the language of the Opinion and Award, there is no evidence that Arbitrator Crane would have reinstated plaintiff even if the Union had contended that race was a factor in the severity of the discipline imposed by Budd.

45. Budd treats fighting with supervisors more harshly than fights with fellow employees especially when the employee is the aggressor and the supervisor is more severely injured. The Union has educated its members of this.

46. Plaintiff has failed to prove that any white employee engaged in comparable conduct without discharge.

47. Plaintiff has introduced no evidence of comparable altercations between a supervisor and an employee and has introduced no direct evidence of discrimination by Budd against plaintiff.

48. Budd did not, in any way, discriminate against plaintiff on account of his race.

49. On this record, Budd did not engage in a pattern or practice of determining discipline on the basis of race.

50. Budd did not discharge plaintiff on the basis of either his race or Mulqueeney’s race.

51. The Union’s representation of plaintiff was not arbitrary, discriminatory or in bad faith and was within the range of acceptable performance.

52. The Union’s decision not to claim that race was a factor in plaintiff’s discharge at either the mini-hearing, the DCB hearing or the arbitration proceeding did not affect the outcome of the decisions made by Budd because of the seriousness of plaintiff’s offense.

53. Plaintiff’s case was heard and determined in accordance with the procedures of the Collective Bargaining Agreement.

DISCUSSION

This action was brought pursuant to 42 U.S.C. § 1981 and 42 U.S.C. § 2000e for alleged racial discrimination. Plaintiff also claims that his Union, UAW Local 813, breached its duty of fair representation under Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. Defendant claims that plaintiff was discharged for fighting with a supervisor, a legitimate non-discriminatory reason.

Plaintiff had the initial burden of proving a prima facie case of discrimination by a preponderance of the evidence. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Once a prima facie case has been shown, the burden shifts to defendant to articulate some non-discriminatory reason for the challenged action. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). Lewis v. University of Pittsburgh, 725 F.2d 910, 914 (3d Cir.1983). If such a facility legitimate reason is proffered, plaintiff then bears the burden of demonstrating that the reason given by defendant is merely a pretext. “The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Texas Dept. of Community Affairs, 450 U.S. at 253, 101 S.Ct. at 1093.

In order to establish a prima facie case of discriminatory discharge, plaintiff must establish (1) that he is a member of a protected class; (2) that he was the object of adverse action; and (3) that such adverse action occurred because of his race. Rivers v. Westinghouse Electric Corp., 451 F.Supp. 44, 47-48 (E.D.Pa.1978).

Plaintiff sought to establish a prima facie case by showing that he belonged to a racial minority, that he was provoked into a fight by his supervisor and that when he was discharged as a consequence, he was treated more harshly than other white employees charged with engaging in violence with a supervisor.

Plaintiff would have to show a white employee engaged in a fight of “comparable seriousness” with his own to establish a similar situation. McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825; Worthy v. U.S. Steel Corp., 616 F.2d 698, 702 (3d Cir.1980). Plaintiff bears the burden of proving the similarity between his conduct and that of white employees disciplined less severely. Tate v. Weyerhaeuser Co., 723 F.2d 598, 603 (8th Cir.1983). In the present case, plaintiff failed to prove that he was treated differently from white employees charged with beating supervisors. Plaintiff introduced no evidence that any white employee engaged in conduct comparable to plaintiff’s and was not discharged. Several incidents referred to by plaintiff involved white employees who fought with other employees rather than with supervisors. Fighting with an employee is not comparable to fighting with a supervisor because the latter conduct significantly undermines management’s ability to direct the activities of the workforce effectively.

Whenever a white employee was involved in an altercation with a supervisor, the incident was of a much less serious nature than this. No incident involved the kind of physical violence inflicted upon a supervisor that is involved here. In the incident between Senigo and Delowery, the only other altercation between an employee and a supervisor where blows were exchanged, the supervisor was the aggressor, and was not injured.

In addition to the specific incidents introduced at trial, plaintiff has argued that there is a significant statistical disparity between the discipline imposed on black and white employees. This argument is rejected for a number of reasons. First, statistical evidence was never offered at trial; hence, defendant was deprived of the right to cross-examine plaintiff regarding plaintiff’s methodology, conclusions, or the propriety of the use of the binomial model that plaintiff has used. Moreover, there is no evidence that the cases of termination used in the analysis are sufficiently comparable to the present case to justify statistical comparison for purposes of proving disparate treatment. Finally, plaintiff has failed to use a sample size large enough to be statistically significant. Because plaintiff has failed to introduce any evidence that black employees were disciplined more harshly than white employees who fought with supervisors, plaintiff has failed to establish a prima facie case.

Even if plaintiff makes out a prima facie case, defendant’s burden is not one of proof but rather of coming forward with evidence that the action was taken for a legitimate non-discriminatory reason. The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. U.S. Postal Service Board of Governors v. Aikens, 453 U.S. 902, 101 S.Ct. 3135, 69 L.Ed.2d 989 (1983).

Viewing the record as a whole, it is clear that plaintiff has not met his burden. Budd was able to articulate a legitimate non-discriminatory reason for plaintiff's discharge, that of maintaining management’s ability to direct the workforce effectively. It seems to have been the company’s policy to discipline employees who beat and injured their supervisors more harshly than employees who fought with supervisors and lost. Supervisor Mulqueeney’s testimony that he remained patient with plaintiff at all. times and was not provocative is not as credible as plaintiff’s testimony that he was unhelpful and abrupt. But the fact that Mulqueeney may have provoked plaintiff when he was confused and uncertain about his new assignment cannot excuse plaintiff’s behavior. Even if the incident occurred exactly as plaintiff described it, the company had the right to' discharge the plaintiff. Although Supervisor Mulqueeney’s treatment of one newly assigned to his group cannot be characterized as exemplary, and Budd might do well to consider instructing its supervisors in techniques of leadership and orientation of employees in new positions, the Budd Company nevertheless has a legitimate interest in protecting management from acts of violence.

Perhaps plaintiff would not have been discharged if he had not injured Mulqueeney or Mulqueeney had injured him. But Hagans gained the advantage in the fight and stopped hitting Mulqueeney only when urged by others to desist; he must suffer the consequences. One may question the wisdom of a policy that treated employees who fought with supervisors and injured them more harshly than those who were injured by the supervisors, but there was no evidence to show that such a policy was motivated by racial discrimination. Therefore, plaintiff cannot prevail on his claim under Title VII.

The elements of a cause of action under 42 U.S.C. § 1981 are substantially identical to those of Title VII. See Goodman v. Lukens Steel Co., 580 F.Supp. 1114 at 1121 (E.D.Pa.1984); Pouncy v. Prudential Insurance Co. of America, 668 F.2d 795, 797 n. 3 (5th Cir.1982); Becton v. Detroit Terminal, 687 F.2d 140, 141 (6th Cir.1982). Plaintiff’s claim under 42 U.S.C. § 1981 also fails for lack of proof of racial discrimination in the discipline imposed on the plaintiff.

Plaintiff also alleges that his union, UAW Local 813, breached its duty of fair representation under Section 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185. Generally, an employee may not bring an action under § 301 of the Labor Management Relations Act where the Collective Bargaining Agreement contains a provision requiring grievance and arbitration of disputes arising under the agreement. However, an employee may bring an action against his union and/or employer if the employee can prove the union breached its duty of fair representation in handling the employee’s grievance. Vaca v. Sipes, 386 U.S. 171, 186, 87 S.Ct. 903, 914, 17 L.Ed.2d 842 (1967).

“[A] breach of the statutory duty of fair representation occurs only when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith .... a union may not arbitrarily ignore a meritorious grievance or process it in a perfunctory manner.” Vaca, 386 U.S. at 190-191, 87 S.Ct. at 916-917. While it is not always clear when a union has acted in breach of its duty of fair representation, “[m]ere ineptitude or negligence in the presentation of a grievance by a union has almost uniformly been rejected as the type of conduct intended to be included within the term ‘perfunctory.’ ” Findley v. Jones Motor Freight, Etc., 639 F.2d 953, 960 n. 2 (3d Cir.1981). “What is required is a showing of actual bad faith or arbitrary conduct.” Riley v. Letter Carriers Local No. 380, 668 F.2d 224, 228 (3d Cir.1981). The union breach must have “seriously undermined the integrity of the arbitral process.” Hines v. Anchor Motor Freight, 424 U.S. 554, 567, 96 S.Ct. 1048, 1058, 47 L.Ed.2d 231 (1967). Not only must the Union’s representation not have been within the range of acceptable performance, but the deficient performance must have affected the arbitrator’s decision in some manner. Findley, 639 F.2d at 958.

Plaintiff asserts that the union breached its duty of fair representation in three respects: (1) it failed to call James Werts as a witness at the DCB hearing; (2) it did not present evidence of Supervisor Mulqueeney’s reputation for having an unpleasant disposition; and (3) it failed to allege that plaintiff’s discharge was racially discriminatory. Plaintiff has not demonstrated that these inactions constituted inadequate representation or that they affected the outcome of the arbitration in any material manner.

Failure to offer a witness might establish inadequate representation in some circumstances. Here, the failure to call James Werts at the company’s DCB hearing did not damage plaintiff’s presentation. Even if the Union had attempted to call Werts as a witness, it is unlikely that he would have been permitted to testify, because Budd has not allowed the Union to call third party witnesses to testify at DCB hearings held at the Hunting Park facility. Even if Werts had witnessed the entire incident and his testimony that Mulqueeney had grabbed plaintiff’s shirt had been credited, it is unlikely the outcome of the DCB hearing would have been different. Plaintiff would have been discharged whether or not the fight had been provoked by Mulqueeney because of the severity of the injuries he inflicted upon Mulqueeney. Werts did testify at the arbitration hearing and the arbitrator still found for the company. Similarly, the Union’s failure to present evidence of Mulqueeney’s nasty disposition did not affect the outcome of the DCB hearing or the arbitration..

Plaintiff is complaining now that the Union did not allege racial discrimination as a basis for the discharge; however, plaintiff barely referred to race in discussing his defense with union officials. Plaintiff did not claim his discharge was on racial grounds until after the arbitration proceeding had been concluded by an adverse decision. Even if plaintiff had raised such a claim, it was within the union’s range of discretion to reject the claim if it determined that it was groundless. Tate v. Weyerhaeuser, 723 F.2d 598 (8th Cir.1983). The union was justified in determining that a claim of racial discrimination was not warranted. Plaintiff has not sustained his burden of proving that the union’s failure to raise the issue of discrimination affected the outcome of the arbitration.

Finally, plaintiff has failed to produce evidence that the union displayed animosity towards him. Palumbo and the union did an effective job of handling plaintiff’s grievance under the circumstances. The union did not breach its duty of fair representation.

In reaching these conclusions, the arbitrator’s decision was admitted into evidence and accorded some weight, but the arbitrator’s findings have not been deemed conclusive. The Supreme Court has stated, “the federal policy favoring arbitration of labor disputes and the federal policy against discriminatory employment practices can best be accommodated by permitting an employee to pursue fully both his remedy under the grievance arbitration clause of a Collective Bargaining Agreement and his cause of action under Title VII .... The arbitral decision may be admitted as evidence and accorded such weight as the court deems appropriate.” Alexander v. Gardner-Denver Company, 415 U.S. 36, 59-60, 94 S.Ct. 1011, 1025, 39 L.Ed.2d 147 (1974). It is within the court’s discretion to determine the weight to be accorded an arbitral decision. “Where an arbitral determination gives full consideration to an employee’s Title VII rights, a court may properly accord it great weight.” Id. at 60 n. 21, 94 S.Ct. at 1025 n. 21.

Here, the issue of racial discrimination was never raised at the arbitration so the decision of the arbitrator could not be given any weight on that issue. The court has independently reviewed the facts and conclusions reached by the arbitrator and considered plaintiff’s claims de novo. Because plaintiff has been unable to prove racial discrimination by the company or a breach of the duty of fair representation by the union, defendants are entitled to judgment in their favor.

CONCLUSIONS OF LAW

1. This court has jurisdiction over the parties and subject matter.

2. Budd is an employer within the meaning of 42 U.S.C. § 2000e(b) and 29 U.S.C. § 185(b).

3. The Union is a labor organization within the meaning of 42 U.S.C. § 2000e(d) and 29 U.S.C. § 185(b).

4. Plaintiff has failed to prove a violation of Title VII.

5. Budd has not violated 42 U.S.C. § 1981.

6. The conduct of the Union in the instant case was adequate and within the realm of acceptable performance at the mini-hearing, the DCB hearing and the arbitration. Findley v. Jones Motor Freight, 639 F.2d 953 (3d Cir.1981).

7. The Union processed plaintiff’s grievance fully and fairly without offering evidence of race discrimination or other conduct of his supervisor. Plaintiff was discharged for beating his supervisor which is a valid, non-discriminatory reason. See Coleman v. General Motors Corp., 667 F.2d 704 (8th Cir.1981).

8. Even if certain actions of the Union were arguably deficient, there is no reason to believe that these actions tainted the decision or affected the outcome of the arbitration. Bazarte v. United Transportation Union, 429 F.2d 868 (3d Cir.1970).

9. The Union undertook and pursued plaintiffs grievance in good faith and the Union did not breach its duty of fair representation.

10. Plaintiff has failed to establish either that Budd breached the Collective Bargaining Agreement or the Union breached its duty of fair representation and has therefore not proven a § 301 violation.

11. Judgment shall be entered in favor of Budd and the Union.