author: LONGOBARDI, District Judge.

text:
    Nancy PIZZUTO, Plaintiff, v. PERDUE INCORPORATED, Defendant.
    Civ. A. No. 84-482 LON.
    United States District Court, D. Delaware.
    Dec. 16, 1985.

      Edward C. Gill of Robert C. Wolhar, Jr. & Associates, Georgetown, Del., for plaintiff.
    J. Robert Hitchens of Georgetown, Del. (Charles P. Roberts III of Haynsworth, Baldwin, Miles, Johnson, Greaves & Edwards, Greenville, S.C., of counsel), for defendant.
   OPINION

LONGOBARDI, District Judge.

The Plaintiff, Nancy Pizzuto, alleges the Defendant, Perdue, Incorporated, fired her from her job as a security guard because she is a woman. What follows are the Court’s findings of facts, conclusions of law and final decision based on the trial of the issues.

Before being employed by Perdue, the Plaintiff was employed as a security guard at Delaware Technical and Community College in Georgetown, Delaware. Her immediate supervisor knew Dennis Johnson, the head of security at the Perdue Georgetown plant, and the two frequently met at the school where they engaged in ping pong games. The Plaintiff requested her supervisor to intervene with Johnson to help her obtain a part-time security guard job at Perdue. He did and, after some period of time, a vacancy occurred and Johnson spoke to Plaintiff about her interest in the job. Satisfied that she would make a suitable guard, Johnson personally delivered her an employment application form and, when she had completed it, personally took it from her. He arranged a meeting with the personnel supervisor at the plant and attended her interview. After she was hired, Johnson asked her what shift she wanted and, to accommodate her, gave her a shift that would not conflict with her job at the school.

On August 5, 1983, the Plaintiff was assigned a post at the gate house at the Perdue plant entrance. With her that evening were Douglas Niblett and Paul Long, two other security guards. Niblett, suffering from an injury, was assigned to the desk and phone and Plaintiff and Long were assigned, among other things, to checking the incoming and outgoing traffic. It was in this function that the Plaintiff provided the basis which Perdue insists was the reason for her discharge. At about 9:45 p.m., a loaded trailer leaving the plant stopped for inspection. It was the duty of the guard or guards on duty to check refrigeration seals and to check shipping manifests against the particular trailer to determine whether the proper trailer was in tow. If, for instance, the manifest, shipping papers for a particular loaded trailer, did not match the trailer that was in fact in tow, a customer as far away as New York or Massachusetts would receive the wrong load. As the Plaintiff was approaching the gate house from a round of inspection elsewhere on the plant grounds, a loaded trailer stopped at the gate. While Long read aloud to Niblett the trailer number, Plaintiff took the shipping manifest papers from the driver and performed the other required tasks. From the manifest, Plaintiff recorded the trailer number as 2002. When Niblett advised her that Paul Long had said the trailer number was 2005, Plaintiff told him that she was right and to put down 2002. Confronted by the discrepancy, Long said “I’m not sure.” At this critical moment, it was apparent that one of the two guards had erred but none of the three guards took the responsibility to prevent an expensive and time-consuming mistake. As the loaded truck left the gate house and proceeded seventy-five yards away to be weighed, the Plaintiff, Niblett and Long had a discussion about who was right and who was wrong. As subsequent events would reveal, Plaintiff had made the mistake and, in her own words, said, “[s]o, it was my fault____” Plaintiff’s Deposition, Docket Item (“D.I.”) 10, p. 51. Plaintiff then proceeded to complete her log of activities from her previous tour of inspection and the wrong load of chickens headed north to New England.

Subsequently, Plaintiff, feeling somewhat uneasy, called the shipping department and confirmed her worst fears. They had allowed the wrong trailer to leave the plant. Plaintiff said she then tried to reach her supervisor, Mr. Johnson, but could not get him. When she finished her shift, she telephoned him at home and, finding him, told him of the incident. It is apparent that Johnson by this time knew of the incident and told her she was terminated. In this regard, the Court accepts the testimony of Johnson that he had learned of the incident when he called into the plant to check the status of things as was his custom when he was off-duty.

The next day, Plaintiff was requested to report for regular duty pending an investigation. At the end of that shift, she was terminated. A reprimand was entered in her personnel records which she signed and accepted. Johnson’s written comments are noteworthy. He cited the Plaintiff for “[flailing to work according to standards set up by your immediate supervisor. No [sic] working as a partner at her assigned work station.” Defendant’s Exhibit 10.

This apparently was a continuation of a developing problem with Plaintiff. Johnson had found that it was becoming increasingly difficult for other security guards to work with the Plaintiff. Johnson ascribed the problem to Plaintiffs personality. Johnson, however, referred to the trailer incident as the immediate objective basis for the reprimand and wrote, “Nancy knew at the time there was a mistake. Done nothing.” Defendant’s Exhibit 10.

This was Plaintiff’s fourth and final reprimand.

The Plaintiff had started work on April 1,1982, and was fired August 6, 1983. The intervening time was not uneventful. Her supervisor, Dennis Johnson, gave her several reprimands which became part of her personnel file. The reprimands were part of a progressive discipline program at Per-due in which an employee could accumulate only four reprimands before being dismissed. Reprimands could be worked off under some circumstances after six months. On February 21, 1983, the Plaintiff received an oral reprimand from supervisor Johnson because she had left her assigned post to travel to Georgetown for dinner. Defendant’s Exhibit 7. Although the Plaintiff denies she ever received this oral reprimand, the Court accepts the testimony of Mr. Johnson that it was in fact given. The exhibit, Defendant’s Exhibit 7, was part of Plaintiff’s personnel file and there was no evidence from which one could question its integrity or authenticity.

On March 25, 1983, Mr. Johnson again reprimanded the Plaintiff. On this occasion, she was accused of leaving her assigned post and taking somebody to the cash sales outlet at the plant. Defendant’s Exhibit 8. The incident was sufficiently severe in Mr. Johnson’s mind that he marked this reprimand as reprimand “number 3” and “final” without suspension from work and advised Plaintiff that any further reprimand would result in her termination from employment. The Court finds that there were some violations of company rules for which reprimands could be jumped and employment terminated without the formality of four formal reprimands. In this case, the security of personnel and the plant itself would have been jeopardized by her absence from her post and jumping the “second reprimand” was not unusual. Without formal comment, the Plaintiff received the reprimand and signed it.

On July 13, 1983, Plaintiff was given another reprimand by Mr. Johnson. Defendant’s Exhibit 9. In this incident, the Plaintiff was charged with using profanity against and arguing publicly with a fellow employee. This reprimand was captioned “third offense” and “final warning” and, without formal comment, Plaintiff signed the reprimand. Significantly, the upper righthand corner of this reprimand lists the other reprimands received by Plaintiff within the same six month period. Therefore, Plaintiff was clearly on notice that another reprimand during the next six months would lead to termination of her employment.

Plaintiff contends that she was fired because she is a woman, not because of the trailer incident. She alleges that her supervisor, Mr. Johnson, had a discriminatory animus against hiring women as security guards and, as a matter of fact, she was only the second woman since 1979 that was hired for guard work. She said she was treated differently from the male guards in the way she was disciplined and terminated.

To support her allegations, Plaintiff called LaVerne Nichols who testified she was employed as a security guard immediately after Plaintiff had been fired. She said Johnson had asked her why she wanted to be a guard and said, “Because it’s a man’s job?” She also testified that Johnson said he would not allow women to work between midnight and 8:00 a.m. She alleges that Johnson made this remark to her before she was hired and while no one else was present.

To demonstrate her inequitable treatment of being given the reprimand of February 21, 1983, the Plaintiff called Joe May who testified that it was customary for the guards on duty to leave their posts to get food from Georgetown. Plaintiff even testified that she met Johnson on her way to Georgetown and, after determining where she was going, that he said “Okay.”

On another occasion, Niblett testified that Johnson, referring to Plaintiff, said to him, “I can’t let her do that, she’s a woman. We should never have hired a woman.” Johnson allegedly said words like this on three occasions.

Plaintiff also testified that in her interview with Mike Kelly, the head of personnel at Perdue, Kelly said to her, “we don’t hire women” as security guards. She claimed that Johnson said, “I really don’t like to hire women,” and at her final interview, both Kelly and Johnson had said that “it was going to be hard on me” if she were hired and that the male guards might not like her.

To further show Perdue’s disparate treatment between her and Long, she proved that Long was not fired for the trailer incident. Although Niblett was fired, Plaintiff sought to foreclose any other reason for his termination except that it was related to his injury on the job. In support of this, she wanted to use the Industrial Accident Board’s transcript which she contends concluded that Niblett had not been terminated for the trailer incident but because of his industrial accident.

Plaintiff sought to prove there was recurring discriminatory treatment during her tenure as a guard by saying that when people had to be ejected from the plant property, the supervisors always asked for male guards. (Plaintiff is approximately five feet tall.)

Finally, according to Plaintiff, Johnson suspected her of having been an informant for Perdue when Johnson was being investigated for theft, an investigation which ultimately resulted in his discharge. Therefore, Plaintiff views Johnson’s testimony against her as biased and, as a result, incredible.

In an employment discrimination case based on disparate treatment, the Plaintiff must prove that the Defendant intentionally discriminated against her. The standard by which that burden is measured is the “but for” test. Smithers v. Bailar, 629 F.2d 892, 898 (3d Cir.1980). It is best described by a footnote in Bellissimo v. Westinghouse Elec. Corp., 764 F.2d 175, 179 n. 1 (3d Cir.1985), in which the Court said:

The “but for” test does not require a plaintiff to prove that the discriminatory reason was the determinative factor, but only that it was a determinative factor. See Smithers v. Bailar, 629 F.2d 892, 898 (3d Cir.1980) (“a plaintiff need not prove that [the discriminatory reason] was the employer’s sole or exclusive consideration but, ... he must prove that [the discriminatory reason] made a difference in deciding the promotion, retention, or discharge”). Interpreting Title VII to require proof of “the determinative factor” is inconsistent with the “but for” causation test, insofar as plaintiff would be required to show that the discriminatory motive was the sole reason for the action taken. More than one “but for” cause can contribute to an employment decision, and if any one of those determinative factors is discriminatory, Title VII has been violated.

The burden of proof in meeting that standard is usually but not necessarily a three step procedure. Initially, the Plaintiff has the burden first of showing by a preponderance of the evidence a prima facie case of discrimination. To establish such a case, the Plaintiff need show only that she was a member of a protected class and that she was fired from a job for which she was qualified while others not in the protected class were treated more favorably.

Once a prima facie case has been established, the Defendant then has the burden to dispel the adverse inference of the prima facie case by articulating a legitimate non-discriminatory reason for the Defendant’s action. If the evidence by the Defendant raises a genuine issue of fact, then the presumption of the prima facie showing is dropped and the Plaintiff must then carry her ultimate burden of persuasion that Defendant’s alleged reasons for the firing were pretextual, that is, “that the defendant intentionally discriminated against the plaintiff____” Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. at 1093 (1981).

In the present case, there is little doubt that the Plaintiff proved a prima facie case. She is a member of a protected class who was discharged from a job for which she was qualified while males in the same work were not discharged. Specifically, Paul Long, the male guard who was with Plaintiff on the night of the trailer incident, was not fired.

The Defendant claims that the Plaintiff was discharged because of the severity of the violation of her duty as a security guard and because she had been forewarned that the next violation or reprimand would be her last. It also contends that the reprimand was in fact her fourth and final reprimand received within a six month period and discharge was appropriate under then existing personnel rules.

The Court concludes that the Defendant met its burden of raising a genuine issue of fact by articulating a legitimate non-discriminatory reason for Plaintiff’s discharge. To determine whether these particular reasons were pretextual, it is essential to evaluate the evidence offered by the Plaintiff which allegedly supports the proposition that Johnson was prejudiced against her because of her sex. As a consequence of that background of prejudice, the Plaintiff contends that her discharge was not warranted but for the discriminatory animus. In support of this, LaVerne Nichols testified that Johnson asked her why she wanted to be a security guard. “Because it’s a man’s job?” he asked. She also said that Johnson had a predisposition about the abilities of a woman to work certain shifts. She said he told her he would not allow women to work between midnight and 8:00 a.m. In a similar vein, Douglas Niblett testified that Johnson had told him that he should never have hired a woman and he should not allow Plaintiff to do certain work because “she was a woman.” (Niblett could not remember the exact words but said Johnson said something like that on at least three occasions.) Pizzuto herself said that Mike Kelly said “we don’t hire women.” And Johnson had told her before her hiring, “I really don’t like to hire women.” Pizzuto also said that Kelly and Johnson both told her that the male guards might not like her and that “it would be hard on [her].”

Kelly and Johnson deny making any of the statements attributed to them. And the Court accepts their version of the events and statements and rejects that of Nichols, Pizzuto and Niblett. The reason is rather elementary. Pizzuto contends, for instance, a discrimination by Kelly and Johnson against hiring women and yet Nichols and Pizzuto were hired. She also contends that women were looked upon as being of a lesser quality in a guard job. For instance, she said Johnson and Kelly would not put women on the midnight to 8:00 a.m. shift but the fact is both Pizzuto and Nichols were assigned those shifts. Furthermore, it would be extremely disingenuous to suggest a predisposition against hiring women or not wanting a woman for the job when one considers Johnson’s actions in the Pizzuto and Nichols hiring. As to Pizzuto, he listened to her plea for a job and actually brought the employment application to her. She gave it to him to turn in to personnel. He participated in the hiring interview and recommended she be hired. And she was. And she was placed on shift work at times she specifically requested.

As to Nichols, the Court finds there was no preexisting discriminatory animus against women prior to her hiring. It would be difficult to find a case which demonstrates such a lack of animus more forcefully than this case. Nichols was hired within seven days after Plaintiff was fired. And what makes the accusation even more incredulous is that Johnson, the very man accused of the bigotry, was the man who hired her and assigned her to the midnight to 8:00 a.m. shift.

In general, all of the accusations of prejudice attributed to Johnson and/or Kelly were fragments of conversations taken from context and seized as evidence to support the proffered conclusion. They have not supported such a conclusion. What remains then is why they were said and the context in which they were said. The Court finds that indeed women were told of the work and work conditions to which they would be subjected. The same things were told to male counterparts. In describing the duties and work conditions, it was obviously necessary to alert a five foot woman that she would be required to open and close trailer doors that a five foot, ten inch, one hundred eighty-five pound male found difficult to do. Additionally, in describing the working conditions, Kelly and Johnson were not. suggesting that women could not perform work that men were doing. They were only advising the women about the mud, the manure, the rain and the stench of the job that both men and women had to face.

With those allegations aside, the specifics of the immediate events which led to the discharge are the crucial issues that remain. Pizzuto claims that she was fired when Long, a man equally to blame in the trailer incident, was not fired. Further, Pizzuto claims she did not receive four reprimands and that the male guards who had received more than four reprimands were not fired.

As indicated earlier, Pizzuto received a reprimand on February 21, 1983, March 25, 1983, July 13, 1983 and finally one on August 9, 1983. With regard to the one on February 21, 1983, Plaintiff contends she was not aware of such reprimand. The Court rejects that testimony and accepts the testimony of Johnson who testified he gave her notice of the reprimand orally. No more was required on the first reprimand. The Court further finds that employees did leave their posts to get dinner when the Perdue cafeteria was closed but the absence was conditioned upon the volume of work and traffic at the time. This was confirmed by Joseph May, a co-worker who testified that the guards could not leave their posts “when the gate was busy.” The Court finds that the reprimand was not disparately given and in fact was warranted in the mind of Johnson. The Court can easily dismiss Johnson’s apparent approval of her leaving her post when he met her en route to Georgetown. In response to his question about her destination, he said, “Okay.” But Johnson was away from the plant and had no way of knowing the conditions of traffic at that moment. Assuming Plaintiff had picked an appropriate time to leave, naturally he would say, “Okay.” It was only after Johnson had returned to the plant and learned of the traffic that he determined Plaintiff had abused the privilege.

The Court finds that the reprimand of July 13, 1983, for using profane language toward another guard was one of two identical reprimands given that day. One was given to Plaintiff and one to her male counterpart in the argument, Oren Yoder. Similarly, Plaintiff failed to prove how the reprimand of March 25, 1983, was different from what male counterparts received under similar circumstances.

With regard to the fourth and final incident before discharge, Long was not discharged with Plaintiff for very good reasons. First, Perdue management felt that Long was not a participant in the trailer mishap and decided not to reprimand him. The Court finds Perdue management’s decision not to reprimand Long for this particular incident to be reasonable. Long’s credible testimony indicates that he did not become aware that a mistake had been made until the truck had already left the scales area. Supervisor Johnson felt that Long had properly performed his task— reading and calling out the trailer number to Niblett. According to Johnson, the responsibility for the incident fell to Niblett and the Plaintiff exclusively. His investigation of the incident led him to conclude that both Niblett and Plaintiff knew of the mistake in time to stop the truck before it left Perdue property. As a result, he recommended that both be terminated. The Court is not concerned with the correctness of Johnson’s decision not to reprimand Long with Niblett and Pizzuto. All that matters for purposes of this Title VII suit is whether Plaintiff was treated differently from other employees because of her sex. The record discloses that, at least so far as employee Long is concerned, Perdue has presented a credible nonpretextual explanation for its failure to discharge or even reprimand him. The Court rejects Plaintiff’s argument that the disparate treatment of her and Long was motivated in part by discriminatory animus. Turner v. Texas Instruments, Inc., 555 F.2d 1251 (5th Cir.1977).

Even if Long had been reprimanded for this mishap, he would not have been discharged since the usual and customary and indiscriminate policy of requiring at least four reprimands had not been met in his case. Long had less than three reprimands in his personnel record prior to August 5, 1983. Personnel File of Paul Long, Plaintiff’s Exhibit 1. Still, Plaintiff insists that Long’s post-August 5, 1983 personnel record shows that Long received more than four disciplinary warnings within a six month period and that he was not terminated. However, these reprimands were for absences and tardiness and related incidents and, as was proven by the Defendant, were not such reprimands as would be considered for discharge.

Plaintiff further contends that Douglas Niblett was fired by Perdue not because of the mistake but because he had sustained an on-the-job injury which the Company felt lessened his value as an employee. Plaintiff believes that since Niblett, a male employee, was not fired for the trailer mishap, she has satisfied her burden of showing disparate treatment. Plaintiff relies heavily on a finding by the Delaware Industrial Accident Board that Niblett was terminated due to his injury to support her conclusion that she is a victim of disparate treatment.

The Court concludes from the record that both Niblett and Plaintiff were discharged as a result of the trailer mishap. Niblett’s personnel record shows that the August 5, 1983, trailer incident was his fourth warning (with the third offense having occurred within the prior six month period) and that termination was appropriate according to the existing Perdue policy. And Niblett’s prior reprimands were not for tardiness or other minor offenses; they were for sleeping on the job and for leaving the security area while he was on duty. The Court is not bound by the conclusions of an unreviewed decision of an administrative body, Kremer v. Chemical Construction Corp., 456 U.S. 461, 470 n. 7, 102 S.Ct. 1883, 1891 n. 7, 72 L.Ed.2d 262 (1982); Bottini v. Sadore Management Corp., 764 F.2d 116 (2d Cir.1985); Elliott v. University of Tennessee, 766 F.2d 982 (6th Cir.1985), and is unpersuaded by the conclusion of the Delaware Industrial Accident Board (“DIAB”) that Niblett was fired because of his accident. First, the hearing before the DIAB was held only for the purpose of determining the extent of Niblett’s disability to ascertain the amount of compensation due him through Perdue’s insurer. Most of the evidence received at the administrative hearing, therefore, dealt with evidence of the injury itself and consisted of testimony from medical doctors. Although Perdue was represented by counsel, there is no basis for the Court to conclude that Perdue fully litigated the issue of Niblett’s dismissal. The company presented only one witness, Douglas E. Morrow, Perdue personnel assistant, who testified that Niblett had been fired due to the trailer mishap. Ms. Pizzuto testified for Niblett.

Plaintiff introduced evidence of other Perdue employees whom she alleges were not terminated under circumstances similar to her own. However, close review of these histories in light of Perdue’s progressive disciplinary system shows that no disparate treatment occurred. For example, Plaintiff presented evidence that Lewis McCrall logged the wrong number on a trailer which left the plant and he was not discharged. The evidence established that the incident of November 7, 1983 differed from Plaintiff’s as it represented a first reprimand. Later, on January 11, 1984, after McCrall had accumulated four reprimands, he was discharged. Plaintiff presented evidence that Joseph Miller did the same thing on or about March 4, 1983 and he was not discharged. The evidence established that he had no previous reprimands and the severity of this offense was not the same as Plaintiff’s. Miller did not know a mistake had been made. (The Court finds that Plaintiff knew of her mistake and did nothing about it when with some effort the mistake could have been corrected or the consequences mitigated and those facts were a determinative difference in the mind of the Defendant.) Plaintiff presented evidence that Joseph Baxter did the same thing and he was not discharged. The evidence established that the incident represented a “first reprimand.” Plaintiff presented evidence that Raymond Sederquest did the same thing on November 15, 1983 and he was not discharged. The evidence established that the incident represented a “first reprimand.” Later, he had additional reprimands but considering the “six month rule”, he did not reach a fourth reprimand.

The Court concludes that the Defendant has met its burden of production by presenting evidence to support a legitimate non-discriminatory reason for Plaintiff’s discharge. The Plaintiff has failed to carry her ultimate burden of persuasion that the given reason was pretextual, that is, she failed to carry her burden of proof on intentional discrimination.

      . Processing Employee Handbook, Defendant’s Exhibit 28, p. 21.

      . The burden is one of production not one of persuasion. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 255, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981).

      . Whether Niblett was fired for the incident or whether Perdue is foreclosed from contesting the conclusion of the Industrial Accident Board that he was discharged because of his disability will be discussed later in this opinion.

      . Douglas E. Morrow, Perdue Plant Manager, testified that the company’s Progressive Disciplinary System distinguished between infractions which impacted on safety or involved job conduct and those involving employee absences or tardiness (which were considered less serious).

      . In fact, this was a second reprimand but it was proven that Perdue had a policy that allowed the discharge of a reprimand after six months. There was a question about how the policy read and how it was construed and applied but the Court accepts the testimony of Mr. Morrow of how it was applied.


source: Caselaw Access Project

author: WARRINER, District Judge.

license: Public Domain

text:
    Linwood L. WILLIAMS v. FARMERS HOME ADMINISTRATION.
    Civ. A. No. 85-0904-R.
    United States District Court, E.D. Virginia, Richmond Division.
    Dec. 17, 1985.

      Linwood L. Williams, pro se.
    G. Wingate Grant, Asst. U.S. Atty., Richmond, Va., for defendant.
   OPINION AND ORDER

WARRINER, District Judge.

Presently under consideration by the Court is defendant’s petition for removal to this Court from the General District Court for Lunenburg County, Virginia.

On 23 October 1985 a warrant in debt was served upon defendant Farmers Home Administration alleging $579.00 in damage resulting from the destruction of personal property. On 4 December 1985 defendant, by the U.S. Attorney for the Eastern District of Virginia, petitioned this Court for removal of this action to the U.S. District Court for the Eastern District of Virginia. In its petition for removal defendant alleges that the action filed by plaintiff “appears to a tort action against the United States of America, and, as such, is a civil action of which the district courts of the United States have original jurisdiction.”

28 U.S.C. § 1446(b) reads in pertinent part:

The petition for removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

In Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3732, 28 U.S.C. § 1446(b) is interpreted as follows:

The time limitations in Section 1446 are mandatory and must be strictly construed in accordance with the computation principles in Federal Rule of Civil Procedure 6. They will not be extended by continuances, demurrers, motions to set aside service of process, pleas and abatement, stipulations, or court orders, although a delay following the motion often will be tolerated.

Wright, Miller & Cooper at pp. 527-30 (footnotes omitted).

The federal courts that have considered the question of whether the time provisions of 28 U.S.C. § 1446(b) must be strictly construed have unanimously decided that they are mandatory. See, e.g., London v. United States Fire Insurance Co., 531 F.2d 257, 259-60 (5th Cir.1976); United States ex rel. Walker v. Gunn, 511 F.2d 1024, 1027 (9th Cir.), cert. denied, 423 U.S. 849, 96 S.Ct. 91, 46 L.Ed.2d 72 (1975); Antares Oil Corp. v. Jones, 558 F.Supp. 62, 62-63 (D.Col.1983); DiMeglio v. Italia Crociere Internazionale, 502 F.Supp. 316, 318 (S.D.N.Y.1980); although several courts have stated that the time limitations, while mandatory, are not jurisdictional and therefore may be waived by the plaintiff. See, e.g., Leininger v. Leininger, 705 F.2d 727, 729 (5th Cir.1983); Antares Oil Corporation v. Jones, 558 F.Supp. at 62.

In this case, the State warrant in debt was received by the federal agency on 23 October 1985. The petition for removal was not filed, however, until 4 December 1985, twelve (12) days after the expiration of the 30-day period specified in 28 U.S.C. § 1446(b). Furthermore, plaintiff has not waived the 30-day time limitation. The removal petition therefore is untimely and improperly brought. I can find no case law in which a court waived the 30-day period simply because the United States or a federal agency was a defendant.

Furthermore, it cannot successfully be argued that the thirty-day removal period did not begin to run because plaintiff did not comply with Rule 4(d)(4) of the Federal Rules of Civil Procedure in serving process upon the Farmers Home Administration. Nothing in the United States Code, or more particularly in the Federal Tort Claims Act, required plaintiff to comply with the Federal Rules of Civil Procedure regarding service of process in filing his suit in State court. As the Sixth Circuit has noted:

The traditional principle of federalism is that as long as states rules or practice do not “impose unnecessary burdens upon rights of recovery authorized by federal laws,” neither Congress nor the federal courts has the power to change them.

Wilson v. U.S. Department of Agriculture, Food and Nutrition Service, 584 F.2d 137, 141 (6th Cir.1978) (quoting Brown v. Western Railway of Alabama, 338 U.S. 294, 298, 70 S.Ct. 105, 107, 94 L.Ed. 100 (1949)). I can find nothing in Congress’ delegation of rule-making authority to the Secretary of Agriculture or to the Attorney General that authorizes either to require that plaintiff make service in State court in compliance with the Federal Rules of Civil Procedure. Cf. Wilson v. U.S. Department of Agriculture, 584 F.2d at 141 (Secretary of Agriculture not authorized to dictate what rules of procedure must be followed by State court in trying a lawsuit under the Food Stamp Act).

Defendant having failed to seek removal within the thirty-day limit set by 28 U.S.C. § 1446(b), it is ORDERED that this action be remanded to the General District Court of Lunenburg County, Virginia, at defendant’s costs.

And it is so ORDERED.


author: DUHE, District Judge.

text:
    Ronald BOLFA, v. POOL OFFSHORE COMPANY, et al.
    Civ A No 84-1900 “L”.
    United States District Court, W.D. Louisiana, Lafayette-Opelousas Division.
    Dec. 18, 1985.

      Gary R. Steckler, Lafayette, La., for plaintiff.
    Ralph E. Kraft, Lafayette, La., Scott F. Stains, New Orleans, La., for defendants.
   MEMORANDUM RULING

DUHE, District Judge.

This matter arises as a result of injuries sustained by plaintiff Ronald Bolfa while he was employed by Louisiana Offshore Caterers, Inc. (“LOC”), as a galley hand working aboard Pool Offshore Company’s (“Pool”) submersible drill barge No. 924. Bolfa brought suit against LOC and Pool. The plaintiff now moves for summary judgment on the issue of seaman status, and Pool moves for summary judgment on its cross-claim against LOC for contractual indemnity.

I. Plaintiff Ronald Bolfa’s motion for Summary Judgment

The test for determining seaman status established in Offshore Oil Co. v. Robison, 266 F.2d 769 (5th Cir.1959), remains in force in the Fifth Circuit with slight modification. A maritime worker claiming seaman status must satisfy the following criteria:

(1) He must have a more or less permanent connection with
(2) a vessel in navigation and
(3) the capacity in which he is employed or the duties which he performs must contribute to the function of the vessel, the accomplishment of its mission or its operation or welfare in terms of its maintenance during its movement or during anchorage for its future trips.

Bernard v. Binnings Const., 741 F.2d 824, 827 (5th Cir.1984). Pleadings and admissions have established that the plaintiff was employed by the defendant Louisiana Offshore Caterers, Inc., (“LOC”) as a galley hand working aboard Pool Offshore Company’s (“Pool”) submersible drill barge No. 924 at the time of the accident. The parties admit that the drill barge is a “vessel” under the test, that the vessel was located in navigable waters, and that the plaintiff was within the course and scope of his employment performing his duties aboard the vessel at the time of the accident.

The plaintiff testified at his deposition that LOC’s personnel manager assigned him to Pool No. 924 to work as a galley hand. Following instructions from the cook, the plaintiff was disposing of grocery boxes when the accident occurred. Sidney J. Savoie, Pool toolpusher, testified at his deposition that the crews aboard the drill barge included the company man, the tool-pusher, the drill crews, and LOC’s catering crew. All crew personnel ate and slept in the living quarters of the vessel, and the duties of the galley hand were to cook and clean the kitchen and the living quarters.

Mr. Joseph R. Fontenot, the personnel manager of LOC, stated in his deposition that he hired the plaintiff for a tour of duty to last 28 days. Following the plaintiff’s 7 days off, he could have returned to Pool No. 924 for another tour of duty and could follow it to any new locations. LOC serviced Pool No. 924 on at least twelve different locations after the plaintiff’s accident. LOC regularly sent catering crews for tours of duty to last 28 days, and they ate, slept, and performed all of tfreir duties aboard Pool No. 924. The catering crews usually returned to the same vessel and followed it to a new location. LOC had been servicing Pool No. 924 for about five years.

Mr. Roland Berque, the Vice President of LOC, testified by deposition that LOC contracted with Pool to provide groceries, manpower, and a crew of 17 persons to clean the vessel. Pool set the terms and regulations for the catering crew to follow. LOC encouraged crew members to return to the same vessel in order to save gasoline expense money.

The plaintiff argues that the deposition testimony establishes that he had a “more or less permanent connection” with the vessel. A movable drilling rig is a “vessel”. Robison, 266 F.2d at 780. The defendants have admitted that the rig was located in navigable waters at the time of the accident, November 11, 1983. Finally, the plaintiff, working as a galley hand, was “aboard the vessel primarily in an aid of navigation.” See Mahramas v. American Export Isbrandtsen Lines, 475 F.2d 165, 170 (2nd Cir.1973) (hairdresser aboard crew ship held to be seaman for purposes of enforcement of seaman’s remedies against vessel and operator); Hebert v. California Oil Company, 280 F.Supp. 754 (W.D.La. 1967) (catering company employee held to be doing work that contributed to mission of drill barge on which he was employed); Sims v. Marine Catering Service, Inc., 217 F.Supp. 511 (E.D.La.1963) (plaintiff employee of catering company serving aboard motor vessel used as quarter boat for drilling company employees engaged in offshore oil development activities held to be permanently attached to vessel and duties as messman contributed to function of vessel or to accomplishment of its mission); Arnold J. O’Dell v. North River Insurance Company, 614 F.Supp. 1556 (W.D.La.1985) (galley hand employee of catering contractor injured aboard jackup rig held to be seaman).

The plaintiff maintains that although he was on the vessel for only three days before the accident, he was assigned for a 28 day shift and would have returned for a subsequent tour of duty but for his injury. Regarding the permanent assignment test, the Fifth Circuit has recognized that the word “permanent” has never been assigned a literal interpretation under the Jones Act and should be used as “an analytical starting point instead of a self-executing formula.” Davis v. Hill Engineering, Inc., 549 F.2d 314, 327 (5th Cir.1977).

In opposition LOC asserts that seaman status is ordinarily a question for the trier of fact. Longmire v. Sea Drilling Corp., 610 F.2d 1342 (5th Cir.1980). Summary judgment is proper on the question of seaman status only where the underlying facts are undisputed and the record reveals no evidence from which reasonable persons might draw conflicting inferences on any of the elements of the seaman test. Bernard, 741 F.2d at 838. LOC argues that a genuine issue of material fact exists concerning the “permanent attachment” element of the test. The plaintiff was aboard the vessel only three days when the accident occurred. Although he was assigned to work aboard the vessel for a 28 day work shift, it cannot be said with substantial certainty that the plaintiff would have returned to this same drill barge at the expiration of his first work shift. In addition, the plaintiff did not sign any type of work contract that would restrict his job duties to Pool No. 924.

The facts, however, clearly establish that the plaintiff did have a “more or less permanent connection” with the vessel and that he is a seaman. Accordingly, the plaintiff’s motion for summary judgment on the issue of seaman’s status is granted.

II. Pool Offshore Company’s Motion for Summary Judgment

Pool moves for summary judgment on its cross-claim against Louisiana Offshore Caterers for contractual indemnity. Pool premises its motion on the following assumptions: (1) that Pool has acquired the assets and liabilities of Livingston Oilwell Service, Inc., including Livingston Drill Barge No. 24 and the contract pertaining to the catering services aboard that drilling barge; (2) that the indemnity clause within the contract between Livingston Oilwell Service, Inc. and Louisiana Offshore Caterers, Inc. provides them with contractual indemnity for any sums for which they may be held liable, arising out of the injury and subsequent lawsuit filed by Ronald Bolfa; and (3) that the contract between Louisiana Offshore Caterers, Inc. and Livingston Oilwell Service, Inc. and the indemnity provisions within that contract are governed by maritime law. This court has already found that the plaintiff is a seaman.

LOC provided catering service to Pool pursuant to a contract between LOC and Pool’s predecessor in interest, Livingston Oilwell Service,. Inc. (“Livingston”), dated June 26, 1979. Pool maintains that on September 30, 1982, Livingston assigned all of its assets to Pool, and Pool assumed all of Livingston’s liabilities. Pool asserts that it acquired as an asset the contract with LOC and Livingston Drilling Barge No. 24. Pool submits a Certificate of Documentation showing that Pool now owns Livingston Drill Barge No. 24, which has been renamed Pool Drilling Barge No. 924.

LOC asserts that this Certificate of Documentation, which proves Pool owns Livingston Drill Barge No. 24, fails to indicate precisely how Pool obtained the barge. In addition the document does not reveal who owned the barge during the interim between the date of the assignment, September 30, 1982, and the date the vessel was documented, January 21, 1983.

Under the contract, LOC agreed to provide food, supplies and manpower, to prepare and serve meals, and to maintain the kitchen, dining and living quarters in a neat and clean condition. Pool asserts that furnishing meals and cleaning the kitchen and living quarters contributes to the mission of the vessel. The contract further provides members of the crew of the vessel, the cook, and the galley hand. Since the contract provides for members of the crew and for services necessary for the goal of the vessel, the contract is a maritime contract. See Reina Victoria, 298 F. 765 (S.D.N.Y.1925) (supplier of food and water to vessel entitled to maritime lien for services); Kossick v. United Fruit Company, 365 U.S. 731, 81 S.Ct. 886, 6 L.Ed.2d 56 (1961) (“without a doubt a contract for hire either of a ship or of the sailors and officers to man her is within the admiralty jurisdiction”). LOC argues that the contract is a “mixed contract” since it requires the Contractor to purchase supplies and employ personnel. As a mixed contract, maritime law would govern only the maritime subject matter. The contract, however, is clearly a maritime contract rather than a mixed contract.

The indemnity portion of the contract provides, as follows:

Contractor [LOC] further agrees to protect, indemnify and hold harmless, Company, [Pool] its agents, directors, officers, and employees, and servants or companies for whom Company is performing operations from and against any and all claims, demands, suits, and causes of action of every kind and character which may be brought against them (directly or indirectly) by any employee of the contractor or the legal representative of heirs of such employee, including any person judicially determined to be an employee of the Contractor, on account of personal injury, illness, disease, death, or loss of services or loss of or damage to property and any wise arising out of or incident to the work to be performed under this contract and even though occasioned brought about or caused in whole or in part by the negligence of Company, its agents, directors, officers, employees, servants, companies for whom Company is performing operations or by the unseaworthiness of any vessel.

Pool argues that maritime law governs the indemnity clause in this maritime contract. See Corbitt, 654 F.2d at 332 (maritime law allows indemnity contracts); Roberts v. Williams-McWilliams, 648 F.2d 255, 264 (5th Cir.1981) (general maritime law governs indemnity clause in maritime contract).

In O’Dell v. North River Insurance Co., 614 F.Supp. 1556 (W.D.La.1985), Judge Hunter found that a caterer’s employee who was working as a galley hand on a jackup drilling rig was a seaman. The court decided additionally that the indemnity contract between the shipowner and the catering company was maritime in nature, that maritime law governed the indemnity provision, that the Louisiana Anti-Indemnity Statute was inapplicable, and that the contract language gave rise to indemnity. Nearly identical to the indemnity provision between Pool and LOC, the indemnity contract in O’Dell provided for the sole or concurrent negligence of the shipowner or for the unseaworthiness of any of the shipowner’s vessels.

Judge Hunter acknowledged the existence of two conflicting lines of Fifth Circuit authority on the issue of whether maritime law governs an indemnity clause in a maritime contract and followed the earlier line of cases: Lirette v. Popich Brothers Water Transport, 699 F.2d 725, 728 n. 11 (5th Cir.1983); Corbitt v. Diamond M Drilling Co., 654 F.2d 329, 332 (5th Cir.1981); Transcontinental Gas Pipeline Corp. v. Mobile Drilling Barge, 424 F.2d 684, 691 (5th Cir.1980). Lirette, Corbitt, and Transcontinental Gas Pipeline all hold that maritime law governs an indemnity clause in a maritime contract. LOC argues that since the Fifth Circuit has not clarified the issue, conflicting inferences could be drawn such that a motion for summary judgment is improper.

No party disputes that the plaintiff was employed as a galley hand aboard the Pool rig. The facts show that the alleged injury occurred while the plaintiff was carrying out the garbage. Thus, it is clear that he was employed for the purpose of, and was in fact engaged in providing the maritime service contemplated by the contract. Accordingly, the indemnity provision in the maritime contract is governed by maritime law.

Pool next asserts that LOC’s duty to indemnify it includes costs and attorney’s fees. The specific contract provision states, as follows:

Contractors, shall defend all suits brought upon any claim, demand, or cause of action covered by this provision and pay all costs and expenses incidental thereto, but the Company shall have the right, at its option, to participate at its own expense in the defense of any such suit without relieving the Contractor of any obligation hereunder.

A contract to hold harmless and to indemnify, if applicable, includes payment of costs and attorney’s fees incurred by the indemnitee. Olsen v. Shell Oil Co., 595 F.2d 1099, 1103 (5th Cir.1979). LOC cites Weathersby v. Conoco Oil Co., 752 F.2d 953, 959, (5th Cir.1984), for the proposition that Pool cannot recover attorney’s fees and costs. Weathersby says that under a “general indemnity agreement,” the indemnitee has no right to recover legal fees. Pool and LOC, however, had a specific indemnity agreement, and Pool is therefore entitled to recover costs and attorney’s fees. Accordingly, Pool’s motion for summary judgment on its cross-claim against LOC for contractual indemnity is granted.


author: NORTHROP, Senior District Judge.

text:
    Herman W. CARTY v. Paul N. CARLIN, et al.
    Civ. A. No. N-84-4565.
    United States District Court, D. Maryland.
    Dec. 18, 1985.

      Stuart J. Snyder, Baltimore, Md., for plaintiff.
    Peter Ward, Asst. U.S. Atty., D.Md., Baltimore, Md., and Charles F. Kappler, Asst. Regional Labor Counsel, U.S.. Postal Service, for defendant.
   MEMORANDUM

NORTHROP, Senior District Judge.

On December 19, 1984, the plaintiff Herman W. Carty filed the instant action against William F. Bolger (then Postmaster General of the United States) pursuant to the Rehabilitation Act, 29 U.S.C. § 791, alleging that he was discharged from his position at the Baltimore, Maryland, United States Postal Service because of a physical and mental handicap. On November 5, 1985, the defendant Postmaster General (now Paul N. Carlin) moved to dismiss the complaint, or in the alternative, for summary judgment. Fed.R.Civ.P. 12(b)(6) and 56. The plaintiff filed a motion to oppose dismissal or summary judgment on December 2, 1985. On December 11, 1985, the defendant replied to the plaintiff’s opposition to dismiss or in the alternative for summary judgment.

After reviewing the memoranda and records in this case, the Court concludes that no hearing is necessary for decision in this matter. Local Rule 6. For the reasons set forth, the defendant’s motion is GRANTED.

FACTS

The plaintiff first became employed by the Postal Service in 1966, as a part-time mail collector. In that same year he was stricken with a heart attack, was hospitalized, and as a result of his heart condition, was transferred to the special delivery unit of the Baltimore office of the Postal Service where he served as a messenger. Then, in April, 1979, Mr. Carty requested and was granted a transfer to the position of laborer custodian. In December, 1979, the plaintiff was hospitalized because he was suffering from severe depression.

On January 21,1980, the plaintiffs treating physicians recommended to the Postal Service, that the plaintiff not return to his custodial duties because the work had a demoralizing influence upon him. They recommended that he should be assigned clerical work.

On January 30, 1980, Dr. Weckesser, another treating physician of the plaintiffs, issued a statement indicating that the plaintiff was suffering from chest pain of musculo-skeletal origin, esophageal hiatus hernia, and anxiety. On February 7, 1980, Dr. Georgina Y. Goodwin, medical officer of the United States Postal Service’s Baltimore, Maryland, office, issued a medical statement addressed to the Director of Employee and Labor Relations stating that after reviewing the plaintiff’s medical file and medical report, she concluded that the plaintiff was not able to perform his full duties as a laborer/custodian or any other position for which he may have been qualified. The plaintiff was then discharged from the Postal Service in February, 1980.

On March 20, 1980, the plaintiff filed a complaint with the Postal Service alleging, inter alia, discrimination because of his physical and/or mental handicap in that he had not been reassigned as required since his condition was caused by a job related injury, and that he had been discharged as a result of his physical and/or mental inability to perform the duties of a laborer/custodian, when he could in fact perform another job in the U.S. Postal Service in light of his physical and/or mental handicap. A formal investigation took place and a report was issued on October 22, 1980. The United States Postal Service then ruled on February 2, 1981, that no discrimination had occurred. A hearing was then conducted on May 7, 1981, at the plaintiff’s request before an EEOC attorney-examiner. The hearing examiner issued his findings in August, 1981, concluding that the plaintiff was physically and/or mentally handicapped on February 7, 1980 due to a previous heart attack, nervous breakdown, and hernia; he further found that the United States Postal Service had not afforded the plaintiff a reasonable accommodation in violation of 29 C.F.R. § 1613.701. The hearing examiner recommended that the plaintiff be reinstated to the position of distribution clerk or any other position which he was able to perform in light of his physical and mental handicap. The hearing examiner further recommended that the plaintiff be given back wages from February 7, 1980 to the date of reinstatement.

After receiving the recommendation from the hearing examiner, the agency chose not to adopt the recommended findings of the hearing examiner, and issued its final decision, concluding that there had been no discrimination. The agency refused to reinstate the plaintiff and award the recommended back wages.

The plaintiff then filed an appeal to the Equal Employment Opportunity Commission, Office of Review and Appeals. On October 31, 1984, the Office of Review and Appeals issued a decision rejecting the recommended decision of its own hearing examiner and affirming the Postal Service’s final decision, which found no discrimination based on a physical or mental handicap or age.

After properly exhausting his administrative procedures under 5 U.S.C. § 7153, the plaintiff then filed this action pursuant to 29 U.S.C. § 791.

ANALYSIS

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment shall issue only when the pleadings before the Court establish “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” A government employee's right to a trial de novo in a discrimination suit does not necessarily preclude the granting of summary judgment. Jones v. U.S. Postal Service, 78 F.R.D. 196 (E.D.Mich.1978). The movant bears the burden “to demonstrate clearly that there is no genuine issue of fact, and any doubt as to the existence of such an issue is resolved against him.” Phoenix Savings and Loan, Inc. v. Aetna Casualty & Surety Co., 381 F.2d 245 (4th Cir.1967); accord, Cole v. Cole, 633 F.2d 1083 (4th Cir.1980); 10A C. Wright and A. Miller & Kane Federal Practice and Procedure § 2727 (1983).

With these principles in mind, the Court turns to the merits of the pending motion. The essence of the defendant’s argument is three fold. First, that the undisputed facts clearly indicate that, as a matter of law, the plaintiff is not a handicapped person under the terms of the Rehabilitation Act. Secondly, the defendant argues that the Postal Service had no duty to accommodate the plaintiff because he could no longer perform his duties as a laborer/custodian under any circumstances. Third, the Postal Service contends that the Rehabilitation Act does not require the Postal Service to reassign a handicapped worker as a reasonable accommodation. For purposes of clarity, each of the foregoing arguments will be addressed individually.

I. Is the plaintiff a handicapped person who is entitled to protection under the Rehabilitation Act?

Not all persons with disabilities are entitled to protection under the Rehabilitation Act. In order to assert a claim that one has been discriminated against because of a physical or mental handicap, he must satisfy the threshhold requirement that he is a handicapped person as defined by the statute. Jasany v. United States Postal Service, 755 F.2d 1244, 1248 (6th Cir.1985). The statute defines a handicapped person as one who “has a physical and/or mental impairment which substantially limits one or more of such person’s major life activities.” 29 U.S.C. § 706(7)(B)(i). Major life activities is defined in 29 C.F.R. § 1613.-702(c) as “functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” There are thus two key elements to consider when determining whether one is handicapped according to the provisions of the Rehabilitation Act.

1. The person must have a physical and/or mental impairment; and
2. That impairment must substantially limit one or more of such person’s major life activities.

It is undisputed by both parties, that Mr. Carty has a physical and mental impairment. The medical record indicates that he has a long line of medical and psychiatric treatment. There is evidence by the plaintiff’s doctor that he cannot withstand prolonged heavy lifting without aggravating his existing hiatal hernia. The plaintiff’s doctors have further indicated that the plaintiff suffers from manic depression, myocardial infraction with probable coronary artery disease.

The defendant argues that while the plaintiff has alleged that he suffers from physical and mental impairments, he has not presented a case alleging that the impairments substantially limited one or more of the plaintiff’s major life activities. The defendants contend that since the plaintiff has alleged that his impairment does not preclude him from performing other jobs within the postal service, and that since he has not alleged that his impairments have restricted him ability to find work elsewhere, he has failed to allege that he was substantially limited by his impairment. The defendant relies on the case of Jasany v. U.S. Postal Service, supra, as its basis.

In Jasany, the plaintiff suffered from an eye condition (strabismus), commonly known as crossed eyes. Despite his condition, he was hired by the Postal Service as a distribution clerk machine trainee. His primary task in this position was to operate a mail sorting machine. After operating the mail sorting machine for three months, he began to develop eye strain, headaches, and excessive tearing. Doctors’ reports indicated that his symptoms were due to the detailed visual work required to operate the machine coupled with his problems of strabismus. The Court of Appeals for the 6th Circuit held that he was not a “qualified handicapped person” within the meaning of the statute.

In the instant case, the parties stipulated that Jasany’s condition had never had any effect whatsoever on any of his activities, including his past work listing and ability to carry out other duties at the post office apart from operation of the [mail sorting machine]. Based upon this stipulation and in light of our analysis of the statutory definition, we find that ... the appellant failed to establish a prima facie case of handicap discrimination. (at 1250).

In conclusion, the court in Jasany found that exclusion coupled with physical impairment from one particular job is not sufficient for a plaintiff to establish that the impairment substantially limits one or more of a person’s major life activities.

While the Court agrees with the ruling in Jasany, the facts of the present case are somewhat distinguishable. In the present case, the plaintiff has shown that he suffers from a variety of impairments ranging from heart condition to severe depression. Although the plaintiff has stated that he can no longer perform the duties of a laborer/ custodian, he has not suggested that his impairments only limit his ability to perform this one job.

In attempting to determine whether an impairment is so severe as to be considered substantially limiting employment potential, a number of factors need to be considered—the number and type of jobs from which the impaired individual is disqualified, the geographical area to which the individual has reasonable access, and the individual’s job expectations and training. E.E. Black. Ltd. v. Marshall, 497 F.Supp. 1088, 1100-01 (D.Hawaii 1980).

The plaintiff’s complaint indicates that because of his state of severe depression, he could no longer perform as a laborer/ custodian because the work had a demoralizing influence on him. He has also indicated that his physical impairments prevent him from doing tasks which entail prolonged heavy lifting. Although it is true that the plaintiff has stated that his impairments do not prohibit him from performing the job of a distribution clerk, he has not indicated that his then present position of a laborer/custodian is the only one he is incapable of performing.

This fact is to be distinguished from Jasany. In that case, the parties stipulated that Jasany’s condition had never had any affect whatsoever on any of his activities, including his past work history and ability to carry out other duties apart from operation of the mail sorting machine. Id. at 1250.

The record in this case, however, does not disclose any such stipulation nor does the record clearly indicate that the parties are in agreement about the nature and severity of the plaintiff’s condition.

Therefore, the Court cannot state, after examining the record in this case in a light most favorable to the plaintiff, that he does not meet the definition of a handicapped person under the law.

II. Is the plaintiff a “qualified handicapped person” as defined by the Act?

The defendant next suggests that even if the plaintiff were deemed to be handicapped, the Code of Federal Regulations reveals that under the facts of this case, the Rehabilitation Act offers him no remedy-

In analyzing claims brought by handicapped federal employees under the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., the courts have identified four distinct types of discriminatory barriers confronting handicapped persons seeking employment: (1) intentional discrimination for reasons of social bias against handicapped individuals; (2) neutral standards with disparate impact; (3) surmountable impairment barriers; and (4) insurmountable impairment barriers. Prewitt v. U.S. Postal Service, 662 F.2d 292, 305 n. 19 (5th Cir.1981); Bey Bolger, 540 F.Supp. 910, 925 (E.D.Pa.1982).

The duty of the employer to accommodate the handicapped worker attaches only when the employee asserts or claims that he was discharged or rejected for a position despite the fact that he would have performed the essentials of the job if afforded reasonable accommodation. Prewitt v. U.S. Postal Service, 662 F.2d at 305.

Section 1613.702(f) of the Equal Employment Opportunity Commission regulations defines a qualified handicapped person as follows:

A qualified handicapped person means with respect to employment, a handicapped person who, with or without reasonable accommodation, can perform the essential functions of the position in question without endangering the health of the individual or others. (Emphasis added).

The defendant claims that he had no duty to accommodate the plaintiff because the duty to accommodate only occurs when the plaintiff would be able to perform his duties given such accommodation.

The extent of an employer’s duty as an employing federal agency to handicapped persons is set forth in the Code of Federal Regulations, 29 C.F.R. § 1613.701 et seq. In pertinent part, those regulations state:

Agencies shall give full consideration to the hiring, placement, and advancement of qualified mentally and physically handicapped persons. The Federal Government shall become a model employer of handicapped individuals. An agency shall not discriminate against a qualified physically or mentally handicapped person. (Emphasis added).

Given the facts of this case, it becomes clear that before the plaintiff can assert a charge of discrimination against the agency, he must first allege that he was otherwise qualified to perform the job for which he was discharged.

In Pushkin v. Regents and University of Colorado, 658 F.2d 1372 (10th Cir.1981), the court citing the Supreme Court’s reasoning in Southeastern Community College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980, stated that:

Under Davis the first test applied is whether the individual in question is qualified for the position in spite of his handicap. If the plaintiff’s handicap would preclude him from doing the job in question, the plaintiff could not be found to be otherwise qualified.

Pushkin at 1387.

Once a person is deemed a qualified handicapped person, then the agency must attempt to reasonably accommodate that person according to the methods outlined in 29 C.F.R. § 1613.704:

(a) An agency shall make reasonable accommodation to the known physical or mental limitations of a qualified handicapped applicant or employee unless the agency can demonstrate that the accommodation would impose an undue hardship on the operation of its program.
(b) Reasonable accommodation may include, but shall not be limited to: (1) making facilities readily accessible to and usable by handicapped persons; and (2) job restructuring, part-time or modified work schedules acquisition or modification of equipment or devices, appropriate adjustment or modification of examinations, the provision of readers and interpreters, and other similar actions.
(c) In determining pursuant to paragraph (a) of this section whether an accommodation would impose an undue hardship on the operation of the agency in question, factors to be considered include: (1) the overall size of the budget; (2) the type of agency operation, including the composition and structure of the agency’s work force; and (3) the nature and the cost of the accommodation.

In the instant case, the plaintiff has simply stated in his complaint that the defendant has “refused to assign him to light duty or to a job whose duties plaintiff could perform in light of his disabilities____” The complaint, on its surface, therefore, is unclear as to whether the plaintiff is alleging that the defendant had refused to attempt to modify his then present job in such way as to avoid heavy labor and a demoralizing effect, or whether the plaintiff was demanding transfer to a new job as his sole remedy.

The paramount issue then to be decided is whether the plaintiff could have successfully continued in his position as a laborer/custodian, given accommodations. After reviewing the entire record in this case, the Court concludes that the plaintiff, because of his impairment could no longer perform duties as a laborer/custodian under any circumstances.

Federal Rule of Civil Procedure 56(c) states in pertinent part: “[Summary judgment] shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions of fact, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”

In determining whether there is a genuine issue as to any material fact, the Court may consider a variety of materials.

The formal issues framed by the pleadings are not controlling on a motion for summary judgment; the Court must consider the issues presented by other material offered by the parties on the motion to determine whether the Rule 56 request should be granted. Thus, the Court will examine the pleadings to ascertain what issues they present and then consider the affidavits, depositions, admissions, answers to interrogatories and similar material to determine whether any of the post-pleading material suggests the existence of any other triable genuiness issues of material fact____ Given this process the Court is obliged to take account of the entire setting of the ease as a Rule 56 motion. In addition to the pleadings, it will consider all papers of record, as well as any material prepared for the motion that merits the standard prescribed in Rule 56(e). 10A Wright, Miller & Kane, Federal Practice and Procedure, Civil 2d § 2721 (1983).

After considering the entire record in this case, including the pleadings, memoranda, and pretrial statement in this case, the Court concludes that the basis of the plaintiffs complaint is that his physical and mental disabilities rendered him incapable of performing his duties as a laborer/custodian and that he should have been reassigned to another position as an accommodation. The reasons for the Court’s conclusion are set forth in the plaintiff’s complaint, plaintiff’s memorandum in opposition to summary judgment and plaintiff’s proposed pretrial order:

1. Dr. Katze, plaintiff’s psychiatrist, recommended to the defendant that plaintiff not return to custodial duties as this work had a demoralizing influence upon him.
2. Dr. Katze, plaintiff’s doctor, recommended that the plaintiff resume clerical duties.
3. Dr. Koller, plaintiff’s doctor, recommended that the plaintiff not return to his laborer/custodial duties, but rather be given clerical work.
4. Dr. Weckesser, plaintiff’s doctor, saw no obstacle in plaintiff performing the duties of distribution clerk.
5. Dr. Goodwin, defendant’s doctor, originally recommended that plaintiff be transferred from the custodial craft to a manual clerk position.
6. Plaintiff will show that he did and could perform the duties of a distribution clerk if the United States Postal Service would provide him with reasonable accommodation by permitting rest at periodic intervals.
7. Plaintiff will show that the defendant never attempted to ascertain ... plaintiffs ability to perform other clerical jobs at the defendant’s facility.
8. There were no attempts on the part of the defendant to reasonably accommodate [his] handicap even though there have been cases in the past where the defendant has accommodated employees by reclassifying their position or by reassigning them to positions that they could perform in light of their physical and/or mental handicap.
9. Plaintiff will prove that he was physically handicapped due to his hernia, was mentally handicapped due to his manic depressive state and as a result of his physical handicap could not perform the duties of laborer/custodian. Notwithstanding these conditions, plaintiff could have safely and adequately performed clerical duties with certain reasonable accommodations. (Emphasis added).

The only statement made by the plaintiff in the entire record indicating that with accommodations, he could have remained in his position as a laborer/custodian, is found in his memorandum in opposition to summary judgment. He states therein:

1. Plaintiff will prove at the trial that defendant had the duty ... to provide him light duty work and/or to restrict his duties that plaintiff was performing as laborer/custodian.
2. Defendant cannot now argue that plaintiff was unable to perform the essential duties of his position if he was never accorded reasonable accommodation by defendant.

The Court therefore concludes, after reviewing the entire record in this case, that the plaintiff does not genuinely dispute the fact that the severity and nature of his impairments rendered him incapable of working as a laborer/custodian. Since any accommodation attempting to permit the plaintiff to continue in that position would have been futile and unacceptable to the plaintiff, the only remaining issue is whether the defendant owed to the plaintiff the obligation to reassign him to another job as a reasonable accommodation.

III. Does the Rehabilitation Act require an employer to reassign a handicapped individual as a reasonable accommodation?

The plaintiff has asserted in his complaint that even if he was unable to perform the job of laborer/custodian under any circumstances due to his mental and physical handicap, he could have performed the duties of a distribution clerk and therefore was entitled to reassignment as a reasonable accommodation.

As noted earlier, 29 C.F.R. § 1613.02(f) requires that a handicapped employee be able to perform the essential functions of “the position in question” in order to be classified as a “qualified handicapped person.” Thus, the issue to be addressed is whether the phrase “position in question” is to be limited to the then present position occupied by the plaintiff or whether it may refer to another position within the agency.

Further, as noted earlier, 29 C.F.R. § 1613.704(b) mentions making facilities readily accessible, job restructuring, modifying equipment, and providing interpreters as some types of reasonable accommodations.

The above regulation does not enumerate reassignment as a required accommodation. However, the regulation clearly states that the methods of accommodation indicated are not exhaustive. While there is authority indicating that reassignment is not precluded from possible forms of accommodation, Jones v. Federal Communication [sic] Commission, EEOC Decision No. 03820023 (October 21, 1982), there are no cases which hold that reassignment is required. See Ignacio v. U.S. Postal Service, 85 Federal Merit Systems Reporter # 7062. Examination of the regulation lends to the ultimate conclusion that the duty to reasonably accommodate only contemplates accommodation of a qualified handicapped employee’s present position. It does not include a requirement to reassign or transfer an employee to another position. Preferential reassignment for handicapped employees was not intended by the Rehabilitation Act. The Rehabilitation Act and its accompanying regulations indicate that the law requires reasonable workplace modification or accommodation in order to allow the handicapped person to remain in that position. There is nothing in the law or accompanying regulations to suggest that reasonable accommodation requires an agency to reassign an employee to another position. The Supreme Court has cautioned against infringing the rights of innocent employees when fashioning Title YII remedies. Ford Motor Co. v. Equal Employment Opportunity Commission, 458 U.S. 219, 102 S.Ct. 3057, 73 L.Ed.2d 721 (1982); Cf. Yott v. North American Rockwell Corp., 602 F.2d 904, 908 (9th Cir.1979), cert. denied, 445 U.S. 928, 100 S.Ct. 1316, 63 L.Ed.2d 761 (1980). If the plaintiff were automatically reassigned to another department, this could eliminate his need to compete with other qualified employees. Such a reassignment might also violate other employees’ rights secured by the collective bargaining agreement between the Postal Service and the unions.

In conclusion, the Court grants summary judgment to the defendant because the plaintiff was no longer able to continue his work as a laborer/custodian, therefore, he was no longer a “qualified handicapped person” under the law. The duty of an employer to accommodate attaches only when the employee is qualified. Finally, an employer under the Rehabilitation Act is not required to reassign a handicapped person as a reasonable accommodation.

      . Statements made by a party in a pretrial order are required to be considered in a motion for summary judgment. Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 494 F.Supp. 1161, 1168 (D.Pa.1980).


author: HULL, District Judge.

text:
    Floyd F. ROYSDON, et al. v. R.J. REYNOLDS TOBACCO COMPANY.
    Civ. No. 3-84-606.
    United States District Court, E.D. Tennessee, N.D.
    Dec. 18, 1985.

      J.D. Lee, Knoxville, Tenn., Janette Lay, Wilson & Lay, Oneida, Tenn., for plaintiff.
    Robert R. Campbell, Hodges, Doughty & Carson, Knoxville, Tenn., Ray H. Moseley, and K. Stephen Powers, Chattanooga, Tenn., for defendant.
   OPINION AND ORDER

HULL, District Judge.

This products liability action came to trial by jury on December 9, 1985. Plaintiffs, Mr. and Mrs. Floyd R. Roysdon, claimed that Mr. Roysdon suffers severe peripheral vascular disease as a proximate result of many years of smoking cigarettes manufactured by the defendant R.J. Reynolds Tobacco Company [R.J. Reynolds]. The Roysdons made two claims: that the defendant’s cigarettes are defective and unreasonably dangerous to the health of users and that the warnings on cigarette packages and in their advertising are inadequate to fully apprise users of the medical risks involved in smoking.

Before trial, the Court dismissed that portion of the plaintiff’s claim which rested on inadequate warnings. At the close of the plaintiff’s proof, the Court directed a verdict for the defendant on the remaining issue, finding that the plaintiffs had failed to prove that the products at issue were “unreasonably dangerous”.

This opinion will address the Court’s reasoning on both issues.

I. The adequacy of the warnings.

In this lawsuit, it was undisputed that R.J. Reynolds had at all times pertinent fully complied with the relevant federal Cigarette Labeling and Advertising Act [the Act]. 15 U.S.C. §§ 1331-1340. The issue to be resolved was whether, in light of this compliance, plaintiff still could claim that labels were inadequate or whether the labels must be ruled adequate as a matter of law.

R.J. Reynolds took the position that Congress had preempted any claim based on the adequacy of the warning labels. It relied on very specific preemption language contained in 15 U.S.C. § 1334, which reads as follows:

(a) No statement relating to smoking and health, other than the statement required by section 1331 of this title, shall be required on any cigarette package.
(b) No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter.

It is obvious that this statute prohibits the Tennessee legislature from requiring R. J. Reynolds to use any statement relating to smoking and health other than the one congressionally mandated. The statute does not explicitly prohibit state common law tort actions based on labeling. However, congressional intent need not be expressly stated but may be implied from the structure and purpose of the particular statute. Fidelity Federal Savings & Loan Assoc, v. delaCuesta, 458 U.S. 141, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982), and state law must yield when incompatible with federal legislation. Sperry v. Florida, 373 U.S. 379, 83 S.Ct. 1322, 10 L.Ed.2d 428 (1963).

In order to determine whether common law tort actions based on labeling have been preempted, the Court must determine whether permitting an award of damages on the basis of an inadequate warning label would be incompatible with the intent of the legislation in question. Section 1331 is a declaration of the legislative intent. It reads,

It is the policy of the Congress, and the purpose of this chapter, to establish a comprehensive Federal program to deal with cigarette labeling and advertising with respect to any relationship between smoking and health, whereby—(1) the public may be adequately informed that cigarette smoking may be hazardous to health by inclusion of a warning to that effect on each package of cigarettes; and
(2) commerce and the national economy may be (A) protected to the maximum extent consistent with this declared policy and (B) not impeded by diverse, nonuniform, and confusing cigarette labeling and advertising regulations with respect to any relationship between smoking and health.

It is evident from this language that the congressional purpose was twofold—to inform the public of the health hazards related to smoking and to insure uniformity of labeling. While the imposition of tort damages would not be contrary to the first objective, exposing a manufacturer to potential damages in regards to its labeling would be inconsistent with the second. It would permit a state to achieve indirectly, through exposure to tort liability, what it could not achieve directly through legislation. Certainly exposing a manufacturer to potential damages on the basis of its warning label is a way of requiring a more stringent label. See San Diego Building Trades Council v. Garmon, 359 U.S. 236, 247, 79 S.Ct. 773, 780, 3 L.Ed.2d 775 (1959). And, if the courts were to impose any duty to go beyond the eongressionally mandated labeling, this would thwart the stated intent of Congress to have uniformity in the warnings. For this reason, the Court found any such exposure incompatible with the intent of the legislation and dismissed any claim based on the adequacy of the warning label. The only issue remaining for trial was whether or not the defendant’s products were defective and unreasonably dangerous.

II. The condition of the products.

This products liability action was brought pursuant to this Court’s diversity jurisdiction. 28 U.S.C. § 1332(a)(1) and (c), and, accordingly, was governed by Tennessee s Products Liability Act of 1978, Tenn. Code Ann. §§ 29-28-101 et seq.

Through the introduction of the Surgeon General’s reports and medical expert testimony, the plaintiffs made a prima facie case that the defendant’s cigarettes are dangerous to health, and that they have been harmful to Mr. Roysdon. Of course, many dangerous products, from axes to alcohol, are in the stream of commerce and occasionally injure their users. For R.J. Reynolds, or any manufacturer, to be held liable for the harm caused by its products, the products must be found “unreasonably dangerous.”

Under Tennessee law, the test of whether or not a product is unreasonably dangerous is defined as follows:

“Unreasonably dangerous” means that a product is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics, or that the product because of its dangerous condition would not be put on the market by a reasonably prudent manufacturer or seller assuming that he knew of its dangerous condition.

Tenn.Code Ann. § 29-28-102(8)

The Tennessee Supreme Court has stated that this is determinable from the “knowledge of the ordinary consumers of the product.” Pemberton v. American Distilled Spirits, 664 S.W.2d 690, 692 (Tenn. 1984). Tennessee tort law has also been held to incorporate comment i to the Restatement (Second) of Torts. Miller v. Utica Mill Specialty, 731 F.2d 305, 308 (6th Cir.1984); Orfield v. International Harvester Co., 535 F.2d 959, 963 (6th Cir.1976). Comment i used “good tobacco” (such as that at issue in this lawsuit) as an illustration of what kind of product would not be considered unreasonably dangerous due to the widespread common knowledge as to its characteristics.

In the Pemberton ease, supra, which involved “good alcohol” rather than “good tobacco”, the court took judicial notice of the widespread public understanding of the dangers inherent in alcohol. It said, “[ajlcohol has been present and used in society during all recorded history and its characteristics and qualities have been fully explored and developed and are a part of the body of common knowledge.” Id. at 693.

In the instant action, this Court takes a similar approach. It finds that tobacco has been used for over 400 years and that its characteristics also have been fully explored. Knowledge that cigarette smoking is harmful to health is widespread and can be considered part of the common knowledge of the community. For this reason, as well as because of the language in comment i to section 402A of Restatement (Second) of Torts, this Court finds that the plaintiffs did not make a prima facie case that the defendant’s products are “unreasonably dangerous”.

Accordingly, judgment will enter on behalf of the defendant R.J. Reynolds and the plaintiffs will take nothing on their claim.

      . While Tennessee’s products liability act permits the imposition of liability if a product is found to be either defective or unreasonably dangerous, Tenn.Code Ann. § 29-28-105(a), it was conceded by the parties that, because Tennessee courts have adopted section 402A of the Restatement (Second) of Torts, see Ford Motor Co. v. Lonon, 217 Tenn. 400, 398 S.W.2d 240 (1966), plaintiffs had the burden of proving that the products were both defective and unreasonably dangerous in order to prevail.

      . To be unreasonably dangerous, ",.. [t]he article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics. Good whiskey is not unreasonably dangerous merely because it will make some people drunk, and is especially dangerous to alcoholics; ____ Good tobacco is not unreasonably dangerous merely because the effects of smoking may be harmful____" Restatement (Second) of Torts § 402A, comment i.


author: BELL, District Judge.

text:
    Michael J. NAPOLITAN, Plaintiff, v. CONSOLIDATED RAIL CORPORATION and Joseph Foster, Defendant.
    No. C85-1891Y.
    United States District Court, N.D. Ohio, E.D.
    Dec. 18, 1985.

      Thomas L. Sartini, Ashtabula, Ohio, for plaintiff.
    Cary Alan Metz, Philadelphia, Pa., Ronald J. James, Squire, Sanders & Dempsey, Cleveland, Ohio, for defendant.
   ORDER

BELL, District Judge.

On June 6, 1985, the plaintiff Michael J. Napolitan filed the above-entitled action in the Court of Common Pleas, Ashtabula County, Ohio against his former employer, the Consolidated Rail Corporation (hereinafter Conrail). Thereafter, on July 8, 1985, Conrail properly removed this action to this United States District Court. In the complaint, Mr. Napolitan asserts that Conrail wrongfully discharged him and that he had no further remedies available under his collective bargaining agreement with the company.

Presently before the court is Conrail’s motion for summary judgment based upon a lack of subject matter jurisdiction in this court. Conrail contends that Mr. Napolitan’s cause of action is within the exclusive jurisdiction of the arbitration tribunal created under the Railway Labor Act, 45 U.S.C. § 151 et seq. The plaintiff has not responded to this motion although he requested and was granted leave to respond by November 27, 1985.

Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, the party moving for summary judgment has the burden of showing that no genuine issue of material fact exists and that as a matter of law, it is entitled to summary judgment. In reviewing a motion for summary judgment, a court must consider the pleadings, related documents and evidence and all reasonable inferences in a manner most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Smith v. Hudson, 600 F.2d 60 (6th Cir.1979); cert. dismissed, 444 U.S. 986, 100 S.Ct. 495, 62 L.Ed.2d 415 (1979); Board of Ed. Cincinnati v. Department of H.E.W., 532 F.2d 1070 (6th Cir.1976). However, once a motion is made with supportive affidavits, the non-moving party may not rely upon his pleadings but must set forth facts showing there is a genuine issue for trial.

Mr. Napolitan began to work for Penn Central on November 6, 1973 as a track-man. On April 1,1976, due to the Regional Rail Reorganization Act of 1973, 45 U.S.C. § 701 et seq, Conrail was created by Congress to acquire the assets of several bankrupt railroad companies, including Penn Central. As an employee of Penn Central, Mr. Napolitan thereafter became employed by Conrail.

Mr. Napolitan was a member of the Brotherhood of Maintenance of Way Employees, a labor organization as defined within the meaning of the Railway Labor Act. This union has a collective bargaining agreement with the defendant which covers Mr. Napolitan.

On June 7, 1984, the plaintiff was suspended pending an investigation of a report that Mr. Napolitan had been observed stealing gasoline from the defendant’s pump. Thereafter, on June 25, 1984, a hearing was held pursuant to the provisions of the collective bargaining agreement. At this hearing, the plaintiff was represented by his union representative and was able to speak on his own behalf. Ultimately, the company determined that Mr. Napolitan had committed the offense and his employment was terminated.

This termination has been appealed by the plaintiff and his union to, first, the company, and thereafter to the arbitration tribunal, which is Public Law Board No. 3542. At the present time, the arbitration tribunal has not yet rendered a decision on the appropriateness of Mr. Napolitan’s termination.

The Railway Labor Act provides the mechanism for the resolution of disputes between an employer and a railroad when those disputes arise out of the meaning or application of a collective bargaining agreement. . If the employee and the railroad are unable to resolve the dispute, then pursuant to 45 U.S.C. § 153(first)(i) the dispute must be submitted to arbitration. This statute provides as follows:

(i) The disputes between an employee or group of employees and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions, including cases pending and unadjusted on June 21, 1934, shall be handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such disputes;' but, failing to reach an adjustment in this manner, the disputes may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board with a full statement of the facts and all supporting data bearing upon the disputes.

This decision of the arbitration tribunal created by Railway Labor Act is a final and binding decision on the parties to the dispute pursuant to 45 U.S.C. § 153(first)(m) which follows:

(m) The awards of the several divisions of the Adjustment Board shall be stated in writing. A copy of the awards shall be furnished to the respective parties to the controversy, and the awards shall be final and binding upon both parties to the dispute. In case a dispute arises involving an interpretation of the award, the division of the Board upon request of either party shall interpret the award in the light of the dispute.

These statutes have been construed by the courts to require all minor disputes between the railroads and its employees to be resolved by compulsory and binding arbitration. Union Pacific R. Co. v. Sheehan, 439 U.S. 89, 99 S.Ct. 399, 58 L.Ed.2d 354 (1978); Andrews v. Louisville & Nashville R. Co., 406 U.S. 320, 92 S.Ct. 1562, 32 L.Ed.2d 95 (1972); Brotherhood of Ry. Carmen of U.S. & Canada v. Norfolk & Western Ry., 745 F.2d 370 (6th Cir.1984). However, a major dispute between the railroad and its employees is not subject to compulsory and binding arbitration. The test to be applied to determining whether a dispute is a major or a minor dispute has been defined by this circuit to be the following:

The test for determining if a dispute involves only the interpretation of an existing agreement, and is therefore minor, or involves a unilateral change in working conditions, and is therefore major, inquires whether the disputed action can “arguably be justified by the existing agreement” or, in other words, whether the construction of the agreement which would sanction the action is “not obviously insubstantial.”

Brotherhood of Ry. Carmen of U.S. & Canada v. Norfolk & Western Ry., supra 745 F.2d at 375, quoting Local 1477 United Transportation Union v. Baker, 482 F.2d 228, 230 (6th Cir.1973).

In this action the dispute between the employees and the railroad must be considered a minor dispute. Although the termination of the plaintiff’s employment has to be considered a grave and serious action by both parties, the dispute itself does not impact upon the collective bargaining agreement. Instead, the dispute centers upon the factual dispute of whether Mr. Napolitan actually stole the railroad’s gasoline. The discharge of an employee for a cause specifically provided for under the collective bargaining agreement does not constitute a major dispute. Thus, the dispute must be subject to compulsory and binding arbitration between the parties.

Accordingly, the defendant’s motion for summary judgment is granted since the arbitration tribunal created under 45 U.S.C. § 153(first)(i) has exclusive subject matter jurisdiction over this matter.

IT IS SO ORDERED.