author: McMILLAN, District Judge.

text:
    Rebecca THOMAS, Plaintiff, v. COOPER INDUSTRIES, INC., and Plumb—the Cooper Group, Defendants.
    No. C-C-84—460-M.
    United States District Court, W.D. North Carolina, Charlotte Division.
    Jan. 31, 1986.

      George Daly, Charlotte, N.C., for plaintiff.
    Frank B. Aycock, III, Charlotte, N.C., and Curtis L. Mack, Atlanta, Ga., for defendants.
   REVISED MEMORANDUM OF DECISION (REPLACING THE MEMORANDUM OF DECISION FILED 12/31/85)

McMILLAN, District Judge.

PRELIMINARY STATEMENT

This case was tried by the court without a jury in Charlotte from September 11 to September 16,1985. The parties submitted proposed findings and conclusions. Based upon the testimony at the trial and upon a thorough later review of the proposals of the parties, the court’s notes and the trial exhibits, the court makes the following findings of fact and conclusions of law.

I.

FINDINGS OF FACT

A. Denial of Promotion.

1. On August 16, 1984, the plaintiff, Rebecca Thomas, filed this suit against the defendants, Cooper Industries and Plumb— The Cooper Group, alleging that defendants denied her a promotion and constructively discharged her on account of her sex, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (She had filed timely charges with the United States Equal Employment Opportunity Commission (EEOC) (plaintiff exhibits 28, 29), and had received a “right to sue” letter at the end of July, 1984 (plaintiff exhibit 30).)

2. Plaintiff is a forty-three-year-old married woman and has one child. In October, 1981, she was hired by defendants to be personnel assistant at the Plumb Plant in Monroe, North Carolina (Plumb). She was the third employee hired. Alexander Young, the plant manager, was the first, and Charlie Sturgis, the employee relations manager, was the second.

In February of 1982, plaintiff was promoted to personnel supervisor. Charlie Sturgis was fired as employee relations manager in March, 1983, and plaintiff then became the acting employee relations manager. She applied at that time for the employee relations manager position. In July, 1983, Ed. Sherbert became the employee relations manager, and plaintiff reverted to personnel supervisor. On October 14, 1983, plaintiff resigned. Since then, she has been the personnel manager for the Kendall Company in Lumberton, North Carolina, where she is responsible for over 1,000 employees.

Plaintiffs family home is in Peachland, North Carolina, which is near the Plumb plant. Since she took the job with Kendall, however, she has lived during the working days of the week at Lumberton, 100 miles or more from her home in Peachland.

3. Defendant Cooper Industries (Cooper) is a Texas corporation which has manufacturing facilities and other operations throughout the United States. Cooper and its various divisions employ approximately 50,000 persons and affect commerce. Defendant Plumb — The Cooper Group is the division of Cooper Industries that runs the Plumb plant in Monroe, North Carolina. The Plumb plant manufactures “striking tools” such as hammers and axes under the “Plumb” name (plaintiff exhibit 4, p. 4). At the time of the events in issue (and still today), it employed over 200 persons (see plaintiff exhibit 16) and affected commerce. For each of the four quarters prior to 1983, it employed more than 15 people.

4. A central tenet in the defendants’ business philosophy is avoiding unionization of their plants. Indeed, the decision to move the Plumb plant to Monroe in 1981 was based largely on the fact that unions were not popular or powerful in the area.

One of the primary things that defendants do to avoid unionization of their plants is attempt to foster a positive relationship between employees and management. The employee relations manager is a crucial person in this effort and in the effort to avoid unionization in general (plaintiff exhibit 6).

5. The “Experience and Training” required to perform the employee relations manager job (plaintiff exhibit 6, p. 2) were:

“1. Must be a college graduate with a Bachelor’s Degree in Business Administration, Personnel, or equivalent in working experience.
“2. Requires 5 to 8 years experience in personnel work with 3 years in supervision.
“3. Course study in areas of Industrial Management, Personnel Relations, and Psychology desirable.
“4. Must have attended Human Relations skills seminars or workshops.”

6. Carl Plesnicher, Cooper Industries’ vice president for employee relations, and Larry Polsky, vice president for personnel, testified that an unstated requirement for employee relations manager was experience in a manufacturing facility other than Plumb.

The court finds no hint of this requirement in the employee relations manager job description (plaintiff exhibit 6). Nor was it shown that this requirement was ever applied to any applicant other than plaintiff.

The court does not credit Plesnicher’s and Polsky’s testimony, and finds that experience in a manufacturing environment other than Plumb was not a requirement for the position of employee relations manager.

7. Plaintiff met the requirements for employee relations manager. She had a bachelor of science degree in business. She had worked in personnel since 1967, and nine years of that time (from 1967 to 1976) had been in a supervisory capacity. She had had course study in the appropriate areas and had attended the requisite workshops (plaintiff exhibits 10 and 12).

8. A closer look at plaintiff’s background (her resumés are plaintiff exhibits 10 and 12) show that in fact she was exceptionally well qualified.

While she was at Wingate College in Wingate, North Carolina, where she received her B.S. degree, plaintiff was on the Dean’s List and received the Poplin Scholarship as the outstanding business student. She graduated cum laude.

Plaintiff also has a special studies certificate from Queen’s College in Charlotte, North Carolina. Her emphasis at Queen’s was pension, profit-sharing, employee benefits, investment, and estate planning.

Plaintiff’s work experience before joining Plumb was also outstanding.

From 1967 to 1976, plaintiff was office manager and personnel supervisor for the Life Insurance Company of Virginia office in Charlotte, North Carolina. She directly supervised three clerical and 25 to 35 sales people. Her responsibilities included recruitment of sales and clerical employees for the regional office; administration of company benefits, policies and procedures; salary administration; and insuring compliance with EEOC, OSHA, and affirmative action regulations. Further, she coordinated the orientation and training of the sales force and assisted in reorganization and combination of two Life Insurance Company of Virginia offices.

In 1970, while still with Life Insurance Company of Virginia, plaintiff helped Norman Cotter, the head of the Life Insurance Company of Virginia office, set up Cotter & Associates. This company essentially operated as the personnel department for employers too small (fewer than fifty employees) to have their own personnel departments. Plaintiff was a managing director and partner in Cotter & Associates for three years. Her responsibilities included establishing a client personnel service that would recommend and administer fringe benefit programs. The personnel service also conducted employee attitude and opinion surveys; helped improve employee-management communication; trained employers in methods for maintaining non-union status; and insured compliance with EEOC, ERISA, and OSHA regulations as well as regulations of the Securities and Exchange Commission. While with Cotter, plaintiff recruited, trained, and supervised a work force that grew from two to fifteen full time and part time employees.

Plaintiff left Cotter in 1975 and Life Insurance Company of Virginia in 1976 and became a full time student at Wingate College. While a student, plaintiff worked for Wansona Manufacturing Company in Wadesboro, North Carolina. She worked three days a week during the school term and full time the rest of the year. During her four years at Wansona, plaintiff had many roles and responsibilities. As administrator of the pension and profit-sharing plans, she was responsible for ERISA approval, trustee record keeping, orientation of new participants, and counseling of prospective retirees on retirement planning. As management leader on the safety committee, she coordinated hourly workers and management in identifying and eliminating hazards. As assistant to the marketing vice president, she was liason between plant technicians and customer service and a member of the in-house newspaper staff. As executive secretary to the controller, she administered compensation for over 400 employees, took wage surveys, and completed stockholder, operations, and corporate tax reports.

9. Plaintiff had further qualifications for the job. She was a long time resident of the area and knew it and the local people well. This was a highly useful characteristic for an employee relations manager in general but was especially useful for the employee relations manager of a start-up plant such as Plumb. Plaintiff also was direct, honest and fair, and was a very hard worker. She related well to people and was an outstanding interviewer. And she, as her testimony and demeanor at the trial showed, could be tough as nails when she had to be.

Alex Young, the plant manager at Plumb, thought plaintiff was the “top candidate” for Charlie Sturgis’s job (plaintiff exhibit 10) and was “qualified without question.” Sturgis himself had said she was “ideally suited” for employee relations (plaintiff exhibit 7).

10. Plaintiff had still another outstanding qualification for the job; she had been doing it, or most of it, already.

Plaintiff had begun to assume most of the duties of employee relations manager in 1982, long before Charlie Sturgis was fired. This was because Sturgis spent more than three-fourths of his job time either on public relations or on personal affairs. Among other things, he spent considerable time walking through the plant each day speaking with employees. He left the “nuts and bolts” of his job to plaintiff. That is why he was fired.

11. Some of the employee relations manager’s duties that plaintiff assumed were the following:

(a) She prepared the Plumb Employee Handbook which was given to new employees (plaintiff exhibit 4). The handbook contained information, including the crucial information about the plant’s nonunion status, that employees needed.
(b) She wrote the job descriptions for the non-exempt positions.
(c) She rated the jobs in the plant according to the Hay System (see plaintiff exhibit 25, p. 3) for purposes of compensation.
(d) She set up the procedures for hiring new employees. As part of this, she prepared a standard form application for Plumb (plaintiff exhibit 5), and she worked with the North Carolina Employment Security Office. That office tested and screened applicants for the plant. Also as part of this, plaintiff set up training classes for the screened applicants. She did some of the presentations at the training sessions.
(e) She set up and coordinated programs to encourage communication in the plant. These included open forum meetings and a newsletter. These programs were regarded as very important in the plant’s effort to remain non-union.
(f) She set up employee fringe benefit programs such as life insurance and pension plans.
(g) She wrote the monthly employment activity report which went to the Raleigh and Houston offices of the defendants (see, e.g., plaintiff exhibit 16).
(h) She set up procedures to be followed whenever accidents occurred.
(i) She set up in-house training seminars.

12. Plaintiff not only did both her job and much of her boss’s job; she did them well. Sturgis, with the concurrence of Alex Young, the plant manager, rated her “commendable” in November, 1982 (plaintiff exhibit 7). The company definition of that rating was

“performance pursuant to expectations is substantially above average. Level of accomplishment reflects a high degree of proficiency, and measurably surpasses that required for acceptable completion of established goals and objectives”

(plaintiff exhibit 7). Only about ten to fifteen percent of defendants’ exempt employees were rated commendable.

On the appraisal form, Sturgis wrote: “Becky has been instrumental in maintaining a high level in quality in our new employees and has handled our personnel programs (or assisted) in a very professional manner — she works well with the various members of management and employees as well. She maintains a very positive attitude and is ideally suited for Employee Relations — She also has helped organize the Employee Relations Department to what I feel is one of the best in the group”

(id. (emphasis added)).

Sturgis also wrote under “other jobs for which this individual may qualify ... within the next 12 month period” that “with continuing training and exposure, [plaintiff] could assume additional management responsibilities” (id.). That was almost four months before his position came open and eight months before Ed. Sherbert was hired to fill it.

13. In February 1983, Sturgis lowered plaintiff’s rating to “good,” which meant “performance pursuant to expectations sat-isfactory_ requires no more than normal supervision or assistance” (id.). This rating did not reflect a decline in plaintiff’s performance or ability. It reflected the fact that Sturgis was angry that Alex Young had rated him only a “fair.” Stur-gis told Young, who thought plaintiff should be rated “commendable,” “If I’m only ‘fair,’ she is only ‘good.’ ”

14. Alex Young said that plaintiff was ready to replace Sturgis as of January, 1983, if not earlier. Indeed, on the January evaluation of Sturgis, Young had listed plaintiff as a replacement possibility who was “Ready Now” (plaintiff exhibit 9).

15. When Young fired Sturgis in March, 1983, he wanted to make plaintiff the employee relations manager. Dick Campbell, the vice president of operations for Cooper Group and Young’s immediate superior, told Young he thought that was a good idea. Campbell even told plaintiff on a visit to Plumb in March, 1983, that he was behind Young’s plan and that everybody in Raleigh, Cooper Group’s headquarters, and Houston, Cooper Industries’ headquarters, knew she was outstanding.

Young did not, however, make plaintiff the employee relations manager in March, 1983. Larry Polsky, the vice president of personnel for Cooper Industries, directed Young to make her the acting employee relations manager. Polsky requested additional information on plaintiff.

16. On March 29, 1983, Young sent Pol-sky a package that contained (1) the re-sumé plaintiff had used in 1981 when applying to Plumb; (2) the January, 1983, evaluation of plaintiff; and (3) statements from plaintiff’s references (plaintiff exhibit 10). The evaluation showed that plaintiff had gone well beyond her performance objectives for 1982. Instead of simply assisting in the preparation of the employee handbook and assisting with training and orientation of new employees, plaintiff had prepared the handbook and managed the orientation and training (id. at 4). The resumé showed briefly the experience that plaintiff had prior to coming to Plumb. The reference statements showed that she was “an excellent employee”; that her work was “highly satisfactory” (id. at 11); and that she was “efficient,” “conscientious” and had “no weakness of any type” (id. at 12).

17. In the cover letter Young wrote:
“Along with the above, I would like to add my two cents. Becky joined us in October of 1981 as our first local (other than Charlie) employee. Since that time, she has directed the employee relations department, interviewed, hired, terminated, updated and written local employee relations policies, prepared employee handbook, applications, and job descriptions, published newspaper, completed wage surveys, and various employee activities, been sole administrator of the salary program, organized the pre-em-ployment training classes and gained the respect, cooperation and support of the people at the Plumb plant both salaried and hourly alike. Is completely fair and deals with personnel situations with firm resolution.
She is the top candidate for the position as Manager of Employee Relations, and I solicit your support to this end.”

(Id. at 1.)

18. About the time Young sent this package to Houston, plaintiff prepared an updated and expanded resumé (plaintiff exhibit 12). This resume included her experience as acting employee relations manager and as personnel supervisor at Plumb, and went into greater detail about her pre-Plumb experience than the old resumé had. Young sent this resumé to Houston also.

19. Carl Plesnicher, vice president for employee relations, did not want Young to hire plaintiff. He told Young over the telephone that there was “no way” a woman could stand up to a union.

20. Plesnicher denied telling Young that a woman could not stand up to a union. He testified that he reviewed the materials in Young’s letter to Polsky and found plaintiff “not even close” to qualified for employee relations manager. That is why, he said, plaintiff was never even interviewed for the job.

Plesnicher said plaintiff was not qualified because her experience was predominantly clerical. He was not certain that he had reviewed the updated resumé before or after he reached this conclusion. He told the court, however, that the updated re-sumé changed nothing.

When plaintiff’s extensive experience in personnel (supervisory and otherwise) was pointed out to Plesnicher, he said she had to have experience in a manufacturing context. When he was reminded of her experience at Plumb, he said the experience had to be outside of Plumb!

The court finds that Plesnicher was evasive and not believeable on the witness stand. The court finds that Plesnicher did not seriously review the information on plaintiff. Had he reviewed it even cursorily, he would have found that plaintiff was fully qualified to be employee relations manager at Plumb. Plesnicher’s reasons for not considering, interviewing, and hiring plaintiff are pretextual.

21. Larry Polsky also testified that he found plaintiff unqualified after reviewing the material sent by Young. The court does not believe that Polsky seriously reviewed the materials and considered plaintiff.

22. Plesnicher, never having seriously considered plaintiff for the job, urged Young to interview Ed. Sherbert (defendant exhibit 33).

23. Young interviewed Sherbert in late May. He found Sherbert “a cut above” regular people and did not think he would relate well with employees. Young did not offer Sherbert the job.

24. Plesnicher and Dick Campbell (vice president of operations for Cooper Group and Young’s immediate supervisor) were disappointed that Young had not hired Sherbert. Campbell called Young from Raleigh and “strongly suggested” that Young interview Sherbert again and offer him the job. Campbell told Young that if he did not, Campbell would get someone who would.

25. Young interviewed Sherbert again in early June. However, he did not offer him the job. In his opinion, Sherbert had no more to offer than plaintiff and in fact was weak in salary administration and budgeting {see defendant exhibit 10, p. 6), two areas that are very important for a new plant and in which plaintiff excelled. Young saw no reason to bring in an outsider who was unfamiliar with the plant and the area and to pay relocation expenses (these amounted to $27,000) when a perfectly qualified person, plaintiff, was already there. Furthermore, he saw no need to add anyone to the employee relations department (“Why pay two salaries when one will do it?”).

26. On June 13, 1983, Campbell fired Young for refusing to “back off” on having plaintiff as employee relations manager. That same day, Bert Hackett took over as plant manager of Plumb.

27. In late May, before Young was fired, several officials of Cooper Industries visited the Plumb plant. Among these officials were Alan Riedel, a senior vice president, and Polsky.

Young had twice requested that two people in Houston interview plaintiff for the employee relations manager position, but they did not do so on this trip or at any other time. Just before they were to leave, however, Young took them by for a five- or ten-minute visit with plaintiff. During this short meeting, Riedel asked plaintiff what she would do if a union tried to organize the plant. Plaintiff answered that she would refuse to speak to the- organizers and would call Raleigh and Houston. Rie-del then asked if plaintiff could say. “no” to one of those big forgers out there. Plaintiff said, in effect, that if it was a question of size, “you’d better call in the Dallas Cowboys.” In his deposition, Riedel said the question he had asked was standard. He could not, however, remember whether he asked it of Ed. Sherbert.

28. After the brief visit with plaintiff, Riedel told Young that he thought plaintiff was attractive and seemed to have the situation well in hand but “We haven’t had much success with female personnel managers in the South” {see plaintiff exhibit 28).

29. The evidence shows that the Cooper Group had not had a female personnel manager anywhere from at least as early as January 1, 1980, through at least as late as July 1, 1985 (plaintiff exhibit 25). Larry Polsky, who was in a position to know, could not name a single female who had held the position of assistant employee relations manager. Assistant employee relations manager is a feeder position for employee relations manager; Polsky thought Diane Amick was one such, but she was not (see plaintiff exhibit 48, p. 1). Nor, on the other side of the coin, could Polsky name a single male who had held the job of personnel supervisor, plaintiff’s position.

30. After Riedel returned to Houston, he wrote to Dick Campbell concerning Young’s authority to fire the future employee relations manager. The letter stated in part, “I think we should agree that Alex Young does not have unilateral freedom to terminate the man who is put in_” (plaintiff exhibit 41 (emphasis added)).

31. Soon after Bert Hackett replaced Young, plaintiff approached Hackett about interviewing for employee relations manager. Hackett told her he was too busy. He never interviewed her for the job.

32. In early July, 1983, Hackett told plaintiff that he needed “a fellow for the job with a strong second person” (emphasis added).

33. Hackett offered Sherbert the job in early July. Sherbert began work on July 11, 1983.

34. The court finds that Ed. Sherbert was not as qualified as plaintiff for the employee relations manager job at the Plumb plant.

Sherbert had a slight educational advantage. He had an M.B.A. degree in industrial relations from the University of West Florida. His work experience, however, was substantially less than plaintiff’s. He had eight years supervisory experience in personnel (December 1973 to July 1983) (defendant exhibit 22), while plaintiff had at least nine years (from 1967 to 1976) (plaintiff exhibit 12). Most significantly though, he had no non-supervisory experience in personnel. Plaintiff of course had had five years of non-supervisory experience in personnel (1976 through 1981). Sherbert was not strong in salary administration and budgeting (defendant exhibit 10, p. 6); he had not lived in the area; and he did not already have the job.

35. Plesnicher and Polsky testified that they had to make Sherbert the employee relations manager at Plumb or the company would lose him. The court finds this is not correct. From December 31, 1982, until March, 1984, the group employee relations director position at defendant Cooper Group’s headquarters in Raleigh, North Carolina, was open (compare plaintiff exhibit 43 to plaintiff exhibit 42, p. 3). Further, as of May 18, 1983, Plesnicher and Polsky knew that Roy Hoxworth, the employee relations manager at the Sumter, South Carolina, plant, would soon be promoted to a position in another plant, and therefore that his position would be open shortly (see plaintiff exhibit 40). These positions were rated equal to the position at Monroe (plaintiff exhibit 25), and Sherbert was qualified for both. He could have been given either position.

36. The reason defendants did not promote plaintiff to employee relations manager was that she is a woman. The reasons offered by the defendants for not making plaintiff the employee relations manager (and for not even interviewing her for the job) are pretextual and are not the real reasons.

37. The court further finds that had plaintiff not been female, defendants would have made her the employee relations manager at Plumb by April 1, 1983.

B. Constructive Discharge.

38. Dick Campbell (vice president of operations for the Cooper Group) told plaintiff in late June or early July that Ed. Sherbert was going to be hired but that plaintiff would be made the assistant employee relations manager.

39. Instead of being made assistant employee relations manager when Sherbert came on board, plaintiff reverted to personnel supervisor. In October, Hackett told plaintiff that the plant was too small for an assistant employee relations manager and that the employee relations department had too many people in it already.

40. Hackett was very unfriendly toward plaintiff while she was at Plumb. He would actively avoid her in the halls and once actually shut the door of his office in her face. This made plaintiff very uncomfortable.

41. On June 24, 1983, while plaintiff was still the acting employee relations manager, Hackett verbally abused her within sight and sound of a class of applicants. This happened when plaintiff sent Hackett the monthly employee activity report that she intended to send to Raleigh and Houston. Hackett became very angry over the first paragraph of the report. He came across the street to the training building and called plaintiff out of a seminar she was giving for a class of applicants. He was visibly upset and, with the door to the seminar open, loudly said to her “Lady if you send that report, you’ll get Houston on my back, and if you do, you’re through.” The applicants in the seminar almost certainly could see and hear Hackett. Plaintiff felt “belittled and embarrassed.”

The part of the report that Hackett objected to read:

“The labor relations at Plumb are strained due primarily to the replacement of the Plant Manager. This, added to previous top level changes in Controller, Employee Relations Manager, and Materials Manager, hinders the credibility of our ‘family’ image we have promoted among our entire workforce; however, this appears to be improving with time and reassurance.”

(Plaintiff exhibit 16, p. 1.)

After this incident, plaintiff revised the paragraph to read:

“The labor relations at Plumb were strained somewhat due to the replacement of the Plant Manager; however, this appears to be improving throughout the workforce with time and reassurance.”

(Id., p. 2.) Hackett said nothing about the revision.

42. Also, while plaintiff was still the acting employee relations manager, a controversy arose over an applicant named Daniel Holland. Holland’s application showed that he was a paraplegic. Plaintiff, however, invited Holland to the plant for interviews. Plaintiff, the shop foreman, and the tool and die superintendent interviewed Holland. They concluded that he could do the work safely despite his handicap. They intended to hire him. Hackett torpedoed the idea. He said, “We don’t need that problem.” Plaintiff felt that Hackett could be illegally discriminating against Holland, but after discussing the situation with a company official in Raleigh, she sent Holland a rejection letter. Plaintiff felt that she was being forced to do something that was against the láw. This incident made her still more uncomfortable with Hackett and her position.

43. Plaintiff told Patti Broome, the personnel assistant, and Ed. Sherbert that she was having difficulty working with Hack-ett.

44. Hackett denied shunning plaintiff in any way. With regard to the report incident, he admitted “discussing” the report with the plaintiff outside the training building. He said he felt the first paragraph was not as “factual” as it should be. He claimed not to know whether the door of the class was open or not. He denied that he was visibly upset or that he was loud. He denied that he intended to embarrass plaintiff. With regard to the Daniel Holland incident, Hackett said he felt that Holland would not be safe. Based on his demeanor and evasiveness on the witness stand, the court does not believe Hackett on these points.

45. After Ed. Sherbert was hired, he too asked plaintiff to do something that she felt was illegal. Sherbert had a list drawn up of all the employees at Plumb with union backgrounds {see plaintiff exhibit 17). He then asked plaintiff why she had hired the people on the list. She said because they had been the most qualified. He told her that he had been sent there to “straighten this out” and that from this time forward she was to hire no one from a unionized state or plant or who was affiliated with a union. Plaintiff said that she could not do that because she thought it was illegal. Sherbert then took hiring responsibilities away from her.

46. Patti Broome testified that plaintiff, before Sherbert was hired, ordered her to screen out applicants who were affiliated with unions.

Broome’s testimony is not credible. She could not explain how, if she properly followed plaintiff’s alleged directions, the employees on the list were hired. In addition, her fiancé, with whom she lives, is an employee of Plumb, and Plumb is a client of her present employer.

47. Before Ed. Sherbert was hired, plaintiff organized and attended the open forum meetings for employees. After Sherbert came, she was not invited to these meetings. She mentioned this to Sherbert, and he told her to go to one at 7 A.M. (she normally did not report to work that early). She went to that meeting but was not invited to any others.

48. Sherbert made plaintiff’s job unnecessarily difficult in two ways. First, at the end of each month he would delegate to her the task of writing the monthly employee activity report. He would do this after having promised the prior month not to require her do it the next month. Since the report took from four to eight hours and since Sherbert waited until the last minute to tell her to do it, plaintiff was pressed to get the reports in on time. Plaintiff got the reports in on time, but it was a great strain on her.

Second, shortly after he came, Sherbert changed the interviewing procedures so that plaintiff could no longer interview applicants at the plant. Plaintiff had to interview them at the Employment Security building several miles away. Plaintiff had no office at that building and simply had to carry around her papers. When applicants were late or did not show up, she could not use the time for something else. This change in procedure made plaintiff’s job much more difficult and caused her to work considerable overtime. Sherbert refused to change the system.

49. Sherbert told plaintiff that she had no future at Plumb. He said he would help her find work elsewhere. Because she was unhappy with the way Hackett was treating her, she gave Sherbert her resumé. Sherbert learned from a recruiter that a company in South Carolina was offering $33,000 a year for a female personnel manager. Plaintiff told Sherbert that she was not interested. Without her permission, Sherbert sent her resumé with a letter of recommendation to the recruiter.

50. As to the above events, Sherbert testified that he had seen union activity around the plant in the summer of 1983 (plaintiff said there was no such activity), and that he wanted the list of union people to monitor the situation; that he did not tell plaintiff not to hire persons from union states or plants or anyone with union affiliations and did not strip her of hiring authority. Sherbert also testified that he did not ask plaintiff to prepare the monthly reports; that when he did ask her for assistance, he gave her several days notice; and that he never told her that he would not ask her to work on the report in the future. Sherbert denied ever telling plaintiff to go to a 7 A.M. forum meeting. He said that plaintiff asked him to help her find a job, and that he urged her to stay with Plumb.

Based on his demeanor at trial, the court does not believe Sherbert as to these events.

51. The court finds that Sherbert took the above actions with intent to force plaintiff leave her job at Plumb. He wanted her to leave Plumb because the employee relations department was overstaffed and because, if she stayed, eventually she would have to be made an employee relations manager.

52. Despite his other actions, Sherbert, unlike Hackett, apparently had no malice toward plaintiff and had a high opinion of her ability. He rated her “commendable” in August, 1983.

53. Because plaintiff was rated “commendable” and her prior raise had been on November 1, 1982, she understood that she should receive a merit pay increase on September 1 or October 1, 1983 (see plaintiff exhibit 8). She therefore prepared the •proper forms and sent them to Sherbert who approved them and sent them on to Hackett. Plaintiff did this in mid-August because Hackett had recently instituted a new policy that pay increase requests had to be on his desk by the middle of the month before the effective date of the increase so that he could approve them by the effective date (see, e.g., plaintiff exhibit 37, pp. 4-14, 16-18; plaintiff exhibit 47, p. 1; defendant exhibit 35).

54. The defendants attempted to show at trial that plaintiff was not eligible for the pay increase until October 1 or November 1, 1983. The time when plaintiff was due a raise depends on whether the company rounded off her salary mid-point calculation. Plaintiffs salary at the time was 79.9 percent of mid-point (see defendant exhibit 59). If the company rounded that off to eighty percent, plaintiff should not have gotten the raise until October 1 or November 1, 1983. If the company did not round off the mid-point calculation, she should have gotten the raise on September 1 or October 1, 1983 (see plaintiff exhibit 8).

Plaintiff, who was apparently the most knowledgeable on the subject, thought she was eligible September 1, 1983. Sherbert admitted on cross-examination that he probably would not have sent the forms to Hackett in August if plaintiff had not been eligible for a raise until October.

The court finds that the company’s policy was not to round mid-point calculations off, and that plaintiff was eligible for the raise on September 1 or October 1, 1983.

55. Bert Hackett followed company guidelines in approving pay raises! At trial, he could name only one person, Dave Sedivi, to whom he had not given a raise during the proper period (see defendant exhibit 35).

56. Hackett in fact often approved of pay raises to take effect at the earliest possible date. Examples of this are Melvin Bull (plaintiff exhibit 47, p. 2), Ray Hellmer (plaintiff exhibit 47, p. 5), Joe LeQuick (plaintiff exhibit 36, p. 6), Scott Lobb (plaintiff exhibit 37, p. 6), Robert Sargent (plaintiff exhibit 37, p. 11), and Marc Pincus (plaintiff exhibit 20). Scott was rated “good plus.” Bull, LeQuick, Lobb, and Helmer were rated “good.” Pincus was rated “good minus!” None was rated “commendable.” All were men.

57. Between mid-August, when plaintiff gave the forms to Sherbert, and mid-October, when she left Plumb, plaintiff spoke to Sherbert several times about the pay raise. Sherbert told her that Hackett would not consider it. He said he could not understand Hackett.

58. On October 14, 1983, plaintiff requested a meeting with Hackett and Sherbert. At the meeting she asked Hackett why he would not give her the raise that she was due. Hackett refused to discuss the issue or look at her papers. He said to discuss it would be to give her a review and that he was not going to give her a review.

Hackett also told plaintiff that the plant was too small for an assistant employee relations manager. Plaintiff then resigned.

59. Haekett’s purported reason for not approving the raise in October, 1983, and at trial was that he objected to plaintiff's being rated “commendable.” He claimed that Sherbert had not worked with plaintiff long enough to give her a “commendable” rating. He told the court that Sherbert would have had to have worked with her a year legitimately to give her a “commendable” rating.

60. The court finds that Hackett’s reason is pure pretext. First, Hackett himself had rated Joe LeQuick “commendable” after Hackett had been at Plumb only three months (plaintiff exhibit 44). Second, plaintiff would have been eligible for the raise at the same time even if her rating had only been “good” (see plaintiff exhibit 8). And since Hackett did not have to approve of the rating in order to approve of the pay raise, there was no reason for Hackett to hold up plaintiffs raise just because he disagreed with the rating.

61. The court finds that Hackett shunned and humiliated plaintiff, ordered her to do potentially illegal things, and refused to consider her pay raise, in order to force her to resign. He wanted her to resign so that the employee relations department would no longer be overstaffed. (Sherbert testified that after plaintiff left, she was not replaced; her duties were simply divided up between him and Broome.) He also wanted her to resign because he knew that she wanted to be employee relations manager and thus that she would be a continuing problem with regard to that position.

62. The court finds as fact that the actions of Hackett and Sherbert created intolerable working conditions for plaintiff at Plumb.

Plaintiff was not unduly sensitive but instead was extraordinarily tough. Any other reasonable person would have found the working conditions imposed on plaintiff intolerable and would, like plaintiff, have felt compelled eventually to resign.

63. Because of the above described actions, plaintiff left Plumb and accepted a job with Kendall in Lumberton, North Carolina, on October 28, 1983. She moved with her child to Lumberton. She has lived and continues to live in Lumberton from Monday through Friday, returning to her home in Peachland on the weekends. When she started work in Lumberton, she lived in a motel room. She now has an apartment.

C. Damages

64. Plaintiff suffered monetary loss as a result of defendants’ refusal to promote her and their constructive discharge of her.

From April 1, 1983, by which time she should have become employee relations manager, through October 1983, she earned $1,800 a month for a total of $12,-600.00 (plaintiff exhibit 22).

From October 28, 1983, when she left Plumb, until September 1, 1985, plaintiff earned $69,300.00 at the Kendall Company (id.). In order to earn that sum and mitigate her damages, however, plaintiff was forced to establish a satellite household at Lumberton, N.C., in which to live during the week, and to commute from Peachland to the Kendall plant at Lumberton (120 miles) twice a week. Those extra expenses, October 28, 1983, through September 1,1985, totaled $27,068.23 (plaintiff exhibits 24, 25). Plaintiff’s net earnings, 10/28/83 to 9/1/85, were therefore only $42,231.77.

Ed. Sherbert is the proper person to compare with plaintiff in determining how much plaintiff would have earned had defendants not discriminated against her. Sherbert earned $94,395.00 from April 1, 1983, through September 1, 1985 (plaintiff exhibit 22). Since plaintiff’s net earnings were only $42,231.77, she has therefore suffered monetary damages from April 1, 1983, through September 1, 1985, as a result of defendants’ discrimination, of $52,-163.23.

65.Defendants contended at trial that company policy would have prevented plaintiff from receiving a pay raise of more than twenty percent in a year (see plaintiff exhibit 37, p. 3), and therefore that she would not have made as much as Sherbert even if she had gotten the job.

The court finds that this “policy,” like the previous one limiting raises to twenty-five percent in a year, was not uniformly applied. For instance, Jack Summers was promoted from assistant employee relations manager to employee relations manager at defendants’ Sumter, South Carolina, plant and received a raise of fifteen percent; that brought his raises for the year to 22V2 percent (plaintiff exhibit 34). Greg Meyers, the industrial relations representative in Houston, and Joe LeQuick, the controller at Plumb, both received raises totaling more than 20% in one year (see plaintiff exhibit 35, pp. 1, 5; plaintiff exhibit 36).

Thus, plaintiff could have made the same salary that Ed. Sherbert made, and his salary is the appropriate salary to compare for back and front pay considerations.

II

CONCLUSIONS OF LAW

1. This court has jurisdiction over this action pursuant to 42 U.S.C. § 2000e-5(f)(3).

2. Defendants are “employers” within the meaning of 42 U.S.C. § 2000e(b). Plaintiff is an “employee” within the meaning of 42 U.S.C. § 2000e(f).

3. All jurisdictional prerequisites have been met.

4. Plaintiffs claim must be examined in light of the guidelines set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). See also United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983). Pursuant to those guidelines, plaintiff has the burden of showing by a preponderance of the evidence a prima facie case of discrimination. In order to establish a prima facie case, plaintiff must prove that she applied for a position for which she was qualified and was rejected, or that she was discharged (or constructively discharged) from a position in which her level of performance was acceptable, and that the rejection or discharge occurred under circumstances that give rise to an inference of unlawful discrimination. Burdine, supra, at 253, 101 S.Ct. at 1093. If plaintiff meets this burden, she establishes a rebuttable presumption that she was discriminated against. The burden then shifts to defendants to articulate some legitimate, non-discriminatory reason for rejecting or discharging her. 411 U.S. at 802, 93 S.Ct. at 1824.

If defendants carry their burden of producing evidence sufficient to raise a genuine issue of fact as to whether plaintiff was intentionally discriminated against, the inquiry rises to a new level of specificity. Burdine, supra, at 254-55, 101 S.Ct. at 1094-95. At this stage, plaintiff, who bears the burden of persuasion throughout the case, must be given the opportunity to demonstrate that the reason proffered by defendants for their employment decision was not the true reason for their actions. As the Supreme Court stated in Burdine, plaintiff may do this “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” 450 U.S. at 265, 101 S.Ct. at 1100. In other words, where both parties have met their respective initial burdens, the court must, while requiring plaintiff to meet the burden of persuasion, “decide which party’s explanation of the employer’s motivation it believes.” Aikens, supra, at 715, 103 S.Ct. at 1482.

5. Plaintiff has made a prima facie case that she was denied a promotion to the employee relations manager position on account of her sex. Her evidence shows that she applied for the employee relations manager position at Plumb; that she was qualified; but that she “was rejected under circumstances that give rise to an inference of unlawful discrimination.” Burdine, supra.

6. Plaintiff also has made a prima facie case that she was constructively discharged (forced to resign) on account of her sex.

7. Defendants “articulated” non-discriminatory reasons for failing to promote plaintiff. They said that she was not qualified, and that they had to make Ed. Sherbert the employee relations manager at Plumb or he would leave the company.

8. Defendants’ proffered reasons for not promoting plaintiff to employee relations manager are pretextual and are not the real reasons. Plaintiff was more qualified than Edward Sherbert. Further, the employee relations manager position was open at other plants owned by the defendants, and they could have placed Sherbert in one of those positions. Plaintiff was denied the promotion because she was a woman.

9. Defendants also “articulated” nondiscriminatory reasons why they did the things which forced plaintiff to resign. For example, Hackett said he did not think Sherbert could legitimately rate plaintiff “commendable” after only three months.

10. The court concludes for the reasons set forth in the findings of facts that defendants’ proffered reasons for the actions that forced plaintiff to resign are pretextual.

11. Plaintiff has shown that defendants forced her to leave by deliberately making her working conditions unbearable and intolerable. Bristow v. The Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir.1985). Plaintiff has shown that the conditions imposed on her were intolerable from the objective standpoint of a “reasonable person” in her position. Id.

12. Defendants violated 42 U.S.C. § 2000e-2(a) by discriminating against plaintiff on account of her sex when they refused to promote her to employee relations manager at the Plumb plant in Monroe, North Carolina, effective April 1, 1983, and when they constructively discharged her on October 14, 1983. Plaintiff is entitled to be made whole. Albemarle Paper Company v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975); White v. Carolina Paperboard Corp., 564 F.2d 1073 (4th Cir.1977).

14. In assessing the monetary damages that plaintiff is entitled to, the court must calculate “the economic consequences of hypothetical employment” as employee relations manager at Plumb and “compare it with the economic consequences of actual employment.” United Transportation Union Local No. 974, AFL-CIO v. Norfolk and Western Railway Company, 532 F.2d 336, 341 (4th Cir.1975), cert. denied 425 U.S. 934, 96 S.Ct. 1664, 48 L.Ed.2d 175 (1976).

The best indication of what the economic consequences of hypothetical employment would have been as employee relations manager at Plumb since April 1, 1983, is the earnings of Ed. Sherbert over that period. Those earnings are $94,-395.00. The actual economic consequences of plaintiff’s employment since April 1, 1983, would normally have been her salary at Plumb through October ($12,600) plus her salary at Kendall since then ($69,300). However, in this case there were extraordinary expenses attributable to plaintiff’s accepting the employment at Kendall, which she did in order to mitigate her damages. These extraordinary expenses are the costs of commuting and of setting up and maintaining a second household at Lumberton, North Carolina, where she has been forced to live during the week. These costs are not in the nature of consequential damages such as personal injuries or damage to a credit rating. They are “economic consequences.” Therefore, in assessing the actual economic consequences of plaintiff’s employment at Kendall, these expenses ($27,068.23) must be deducted from her salary there.

Through August 31, 1985, Plaintiff has suffered monetary damages totalling $52,-163.23.

Plaintiff is entitled also to her monetary damages since August 31, 1985, and to job reinstatement, counsel fees, costs, moving expenses to return to Peachland, and prejudgment interest on all items. 42 U.S.C. § 2000e-5(g), (k).

Plaintiff will tender an appropriate judgment.

The original memorandum of decision filed December 31, 1985, contained several minor inaccuracies and stylistic aberrations which in no way affect the substance of the decision but which need to be corrected.

IT IS THEREFORE ORDERED that the original memorandum of decision is replaced by the attached corrected memorandum of decision, and that the original memorandum be prominently marked: “SUPERSEDED BY REVISED MEMORANDUM OF DECISION FILED JANUARY 29, 1986.”


source: Caselaw Access Project

author: ROBERT D. POTTER, Chief Judge.

license: Public Domain

text:
    James Lee WILLIAMS, Petitioner, v. M.H. GUPTON, Superintendent of Piedmont Correctional Center, and State of North Carolina, Respondents.
    No. C-C-85-0003-P.
    United States District Court, W.D. North Carolina, Charlotte Division.
    Jan. 31, 1986.

      Michael S. Scofield, Wardlow, Knox, Knox, Freeman & Scofield, Charlotte, N.C., for petitioner.
    James Lee Williams, pro se.
    Barry McNeil, Asst. Atty. Gen., State of N.C., Dept, of Justice, Raleigh, N.C., for respondents.
   ORDER

ROBERT D. POTTER, Chief Judge.

I.INTRODUCTION

Petitioner was convicted of second degree murder in Mecklenburg County Superior Court on December 9, 1982. After having unsuccessfully sought relief in the state courts, Petitioner filed his Application for Writ of Habeas Corpus on January 2, 1985. On March 6, 1985, Respondent filed its Answer and Motion to Dismiss.

Petitioner argues that he is being held unlawfully and in violation of the United States Constitution based upon three grounds. First, it is argued that the trial court violated Petitioner’s fifth amendment right by placing the burden of proof of the defense of automatism upon him rather than requiring the prosecution to disprove automatism beyond a reasonable doubt. Second, Petitioner states that he was unconstitutionally denied effective assistance of counsel during his trial due to trial counsel’s (a) failure to request a jury charge on voluntary manslaughter and failure to object to the trial court’s charge which omitted voluntary manslaughter; and (b) failure to object to the burden of proof in the charge on “automatism” being placed on Petitioner. Third, it is argued that the trial court violated Petitioner’s fourth amendment rights by denying his motion to suppress evidence illegally seized from his automobile.

II.STATEMENT OF FACTS

The case involves Petitioner’s conviction of second-degree murder of Eveline Griggs Rice in violation of N.C.Gen.Stat. § 14-17 (1981). Rice’s body was found burning on the morning of Sunday, July 11, 1982. (Tr. 16-19.) Her death was caused by blunt-force trauma to the chest and abdomen. (Tr. 319.) Rice was last seen alive sitting on Petitioner’s bed beside him, both nude, on the morning of Saturday, July 10, 1982, at around 5:30. Rice, Petitioner, and others had been drinking heavily at Petitioner’s apartment since the very early hours of July 10, 1982. (Tr. p. 60-65.) Petitioner testified that he lost consciousness about dawn on that date and remembered only that he was drinking Jack Daniels Whiskey at the time. (Petitioner also testified that he had been taking medication.) When he awoke that afternoon at about 3:00, Rice was lying at the foot of the bed with blood around her mouth and chest. Having no recollection of committing any acts against Rice which could have caused her death, Petitioner wrapped the body in bed sheets, picked up around the apartment, and then went to work. Petitioner did not mention the incident to anyone at work, but returned home afterwards and loaded the body into the trunk of his car, and then drove around looking for a place to put it. Petitioner finally unloaded the body at a service station, doused it with gasoline, ignited it, then left. (Tr. pp. 405-415.)

The trial judge instructed the jury on possible verdicts of second-degree murder, involuntary manslaughter and not guilty. (Tr. pp. 451, 459-65.) The court also instructed the jury on the defense of automatism or unconsciousness. (Tr.pp.465-66.) The jury found Petitioner guilty of second-degree murder (Tr. p. 479) and he was sentenced to 13 years imprisonment.

III.DISCUSSION

A. THE AUTOMATISM INSTRUCTION

The Court considers first the issue of whether Petitioner is entitled to habeas corpus relief on the ground that the trial judge gave an improper instruction on the defense of automatism.

Although there appears to be no case on point dealing with the issue of the constitutionality of requiring the defendant to carry the burden of proof on the defense of automatism, the United States Supreme Court held in Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977) that it is not unconstitutional to require the defendant to prove affirmative defenses, such as emotional disturbance. Further, the state may make insanity an affirmative defense to be proven by a defendant. Cooper v. North Carolina, 702 F.2d 481 (4th Cir.1983). These principles hold true although they may appear inconsistent with the rule that a person, under the due process clause, is presumed innocent until the state proves guilt beyond a reasonable doubt, In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970), and that the prosecution’s burden extends to every fact necessary to constitute the crime, Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).

At the trial of the instant case, the judge instructed the jury that “[i]f the defendant was unable to act voluntary, he would not be guilty of any offense. The burden rests upon the defendant to establish this defense [automatism], unless it arises out of the state’s own evidence, to the satisfaction of the jury.” (Tr. p. 465-66.) Petitioner argues that this instruction was wholly contradictory with the judge’s instruction that the state must prove voluntariness beyond a reasonable doubt, thus rising to the level of constitutional invalidity under the recent case of Thomas v. Leeke, 725 F.2d 246 (4th Cir.1984). In that case the Fourth Circuit Court of Appeals held an instruction placing the burden on the defendant to prove self-defense was improper because it resulted in confusing the jury where the court had also instructed the jury that the state must prove every element of the crime beyond a reasonable doubt. Id. at 250-51. Petitioner contends that if the jury followed a charge that the state prove beyond a reasonable doubt the Petitioner’s voluntary act, then it must ignore the instruction that Petitioner establish the defense of automatism by a preponderance of the evidence. This contradiction, asserts Petitioner, is precisely what the court in Thomas forbade.

This argument, however, is insufficient for purposes of this action because the automatism instruction was not objected to at the trial of the case and was not raised on appeal, although defense counsel had ample opportunity. (Tr. pp. 469, 477-78.) The rule is that where a petitioner forfeits state review of a claim by failing to comply with state procedural requirements, then he is barred by procedural default unless he makes a sufficient showing of cause and prejudice. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977; see also, Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976)). Petitioner has forfeited his rights to state post-conviction review of this claim by his failure to comply with N.C.Gen.Stat. § 15A-1419(a) (1983) and N.C.E.App.P. 10(b)(2) (1984).

Petitioner argues that the novelty of the automatism issue at the time of the trial and defense counsel’s failure to preserve the issue for appeal in state court constitutes sufficient cause and prejudice to bypass a procedural barrier to § 2254 relief. The case cited in support of this argument is Reed v. Ross, 468 U.S. 1, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984), in which the Court held that sufficient cause may exist where a claim is so novel that counsel could not reasonably be expected to raise it. In that case, the Court held that because the burden-shifting issue was novel in 1969, before its decision a year later in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), there was sufficient cause to excuse Ross’ failure to raise the issue on direct appeal in the state courts and thus avoid a holding of procedural default. Petitioner argues here that in 1982 at the trial of the case, defense counsel had no reasonable basis upon which to object to the automatism charge. The recent case of Thomas v. Leeke, now supplies that basis, according to Petitioner, and its effect on the law constitutes sufficient cause to excuse Petitioner’s failure to object to the instruction or otherwise preserve the issue for appeal. With respect to the prejudice requirement to avoid procedural default under Wainwright, Petitioner asserts that the trial court’s instruction on automatism by itself is an indication that automatism was at issue; thus, Petitioner was prejudiced by an unconstitutional automatism instruction.

The Court is not persuaded by Petitioner’s contentions and is of the opinion that sufficient showing of cause and prejudice is lacking and, therefore, this claim should be dismissed by procedural default. While it is true that under Reed v. Ross, the novelty of a claim may excuse counsel from raising it, it is also true that there exists no cause for default where raising an objection would be futile or where counsel fails to anticipate a change in the law despite an available basis of a constitutional claim. Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); see also, United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); and Ho-neycutt v. Mahoney, 698 F.2d 213 (4th Cir.1983).

The case sub judice is not analogous to Reed because when the trial court instructed the jury in 1982, the issue of burden-shifting in criminal defenses had already been decided. See Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); and In re Winship, supra. The Fourth Circuit Court of Appeals had ruled eight months prior to Petitioner’s trial, in Adkins v. Bordenkircher, 674 F.2d 279 (4th Cir.1982), that the defense of alibi was not an affirmative defense since it negates every fact that the State is required to prove; thus, no burden of persuasion could be placed upon the defendant to prove alibi. The Adkins decision provided Petitioner with a reasonable basis to raise the burden-shifting issue. Consequently, Petitioner has not shown the requisite cause to avoid procedural default.

Furthermore, Petitioner has not met the second requirement of avoiding procedural default, a showing of actual prejudice. In the first place, Petitioner was not even entitled to an instruction on automatism under North Carolina law. The North Carolina Supreme Court in State v. Boone, 307 N.C. 198, 297 S.E.2d 585 (1982), ruled that an instruction on automatism need not be given where the defense is predicated upon the defendant’s own voluntary consumption of alcohol or drugs. The testimony at trial shows clearly that Petitioner voluntarily consumed a substantial amount of beer and whiskey before losing consciousness.

B. PETITIONER’S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL

The next issue before the Court is whether the Petitioner was deprived his right to effective assistance of counsel by defense counsel’s failure (1) to request an instruction on voluntary manslaughter and to object to instructions which omitted voluntary manslaughter, and (2) to object to the burden of proof in the automatism instruction being placed on the Petitioner.

Generally, the right to counsel means that a defendant is entitled to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Court in Strickland adopted a two-pronged test for determining the adequacy of counsel. First, the Petitioner must show that defense counsel’s performance fell below the standard of reasonableness, that is whether counsel’s performance “was within the range of competence demanded of attorneys in criminal cases.” McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Strickland, supra, 466 U.S. at 684-89, 104 S.Ct. at 2063-65. Second, Petitioner must show that but for the unprofessional error, there is a reasonable probability that the result of the proceeding would have been different. Id. at -, 104 S.Ct. at 2067. The trial error must be prejudicial to necessitate relief. Goodson v. United States, 564 F.2d 1071 (4th Cir.1977).

In his ineffective assistance claim Petitioner states that at the close of all the evidence, defense counsel requested a charge on voluntary manslaughter which the trial judge denied. However, the judge did allow the defense to put on more evidence which tended to show that the victim was taunting the Petitioner of his failure to sustain an erection and that as a result, Petitioner became upset. In considering this evidence, according to Petitioner, the jury could find that the killing was done in the heat of passion. However, defense counsel did not renew his request for an instruction on voluntary manslaughter and did not object to its omission. Therefore, contends Petitioner, but for defense counsel’s unprofessional error, it is reasonably probable that the result of the trial would have been different.

Petitioner further asserts that if the Court determines that Petitioner waived the automatism claim by failing to preserve the issue for appeal in the state courts, then such failure on the part of defense counsel amounted to ineffective assistance.

The Court is of the opinion that Petitioner’s contentions are insufficient for the relief he seeks to obtain. Petitioner has not shown that defense counsel’s performance fell below constitutional standards of reasonableness and that he was actually prejudiced thereby.

At trial, the record indicates that the additional testimony given after discussion and denial of the request for the voluntary manslaughter instruction did not refer to Petitioner being “taunted,” but that the victim was playing or teasing Petitioner and that he was not embarrassed, angry or frustrated. (Tr. pp. 445-46.) The trial court is required to instruct the jury on a lessor included offense only when the evidence tends to show the commission of such lessor include offense. State v. Rinck, 303 N.C. 551, 565, 280 S.E.2d 912 (1981). See also, Hooper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982) (instruction only when evidence warrants such an instruction). Petitioner offered no evidence that he killed Rice in response to her teasing about his impotence. The additional evidence was not sufficient to support the contention that Petitioner killed Rice because of provocation. Therefore, defense counsel did not render ineffective assistance by failing to request an unwarranted charge, or by objecting to a charge which omitted voluntary manslaughter.

Moreover, in ruling on Petitioner’s motion for appropriate relief, Judge Frank W. Snepp addressed this issue despite the fact that it was not preserved for appeal and held that “[u]pon all the evidence it would have been a useless gesture to have lodged an objection of such [a] charge.” Thus, this claim fails both the reasonable standards and prejudice prongs of Strickland.

With respect to Petitioner’s assertion that defense counsel’s failure to object to the burden of proof being placed upon Petitioner in the automatism charge resulted in ineffective assistance, the Court is of the opinion that the claim is lacking. At the trial of this case and now, North Carolina law places the burden of proving this defense upon the defendant. State v. Caddell, supra note 1. As mentioned before, an instruction on automatism need not be given where the defense is predicated upon the defendant’s own voluntary consumption of alcohol or drugs. Thus, defense counsel’s failure to object to the automatism instruction shifting the burden of proof onto Petitioner was not ineffective assistance, but was within the range of competency demanded of attorneys in criminal cases.

C. CLAIM OF FOURTH AMENDMENT VIOLATION

The Court finally considers the issue of whether the trial court violated Petitioner’s rights under the fourth amendment by denying Petitioner’s motion to suppress certain evidence. The Petitioner contended that certain evidence should be excluded from trial because it was illegally obtained in that the police exceeded the scope of Petitioner’s signed consent to a search of his car.

In Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), the Court held that a habeas corpus petitioner could not collaterally attack his state conviction on grounds that illegal evidence was admitted at trial where he had been provided with an opportunity for full and fair litigation of the fourth amendment claim. Id. at 494, 96 S.Ct. at 3052. This Court’s inquiry is, first, limited to whether state procedures afforded the Petitioner opportunity to raise the claim, and, this Court need not inquire further unless Petitioner alleges something impaired his opportunity. See, Doleman v. Muncy, 579 F.2d 1258 (4th Cir.1978).

Petitioner brought this same claim before the North Carolina Court of Appeals where it was addressed on the merits and rejected. State v. William, 67 N.C.App. 519, at 521-22, 313 S.E.2d 236 (1984). Further, Petitioner has not alleged any impairment of his opportunity to present the claim. Therefore, Petitioner’s fourth amendment claim is not cognizable here.

CONCLUSION

Petitioner is barred by procedural default from claiming the trial court’s instruction on the defense of automatism was unconstitutional. Petitioner was not unconstitutionally denied effective assistance of counsel under the two-pronged test of Strickland. Finally, Petitioner’s fourth amendment claim is not cognizable for ha-beas review because state procedures afforded the opportunity for full and fair litigation of that claim.

IT IS, THEREFORE, ORDERED that this Petition be DISMISSED.

      . The defense of automatism, or unconsciousness, refers to the situation where one engages in conduct which would otherwise be criminal, but is not guilty of a crime if he acted in a state of unconsciousness or semi-consciousness. State v. Mercer, 275 N.C. 108, 165 S.E.2d 328 (1969). Automatism should be distinguished from insanity, "for unconsciousness at the time of the alleged criminal act need not be the result of a disease or defect of the mind ...” and a "defendant found not guilty by reason of unconsciousness, as distinct from insanity, is not subject to commitment to a hospital for the mentally ill.” State v. Caddell, 287 N.C. 266, 285, 215 S.E.2d 348 (1975).

      . The court in Adkins also set forth the standard of review for a habeas corpus claim of an unconstitutional state court jury charge to be that the court can grant relief only if the Petitioner demonstrates the offending instruction is so oppressive as to render a trial fundamentally unfair. "The ailing instruction by itself [must] so [infect] the entire trial that the resulting conviction violates due process.” Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973).
      While Petitioner's argument under Thomas that the automatism instruction so contradicted the instruction on the State's burden of proof supports the contention that the jury could have been confused, this Court finds that possibility slight. More importantly, however, Petitioner has not made a showing that the alleged improper instruction rendered the trial fundamentally unfair. Thus, it cannot be said that the instruction infected the entire trial.

      . The United States Supreme Court held in Patterson, supra, 432 U.S. at p. 206-07, 97 S.Ct. at p. 2324-25, that a New York law which required the defendant in a prosecution for second-degree murder to prove by a preponderance of the evidence the affirmative defense of extreme emotional disturbance did not violate due process guarantee of the fourteenth amendment.
      The automatism defense, like other defenses of incapacity, rests on the premise that even if the defendant did the act, he did not do it in a state of consciousness, thus it was not voluntary. Voluntariness is an element of a criminal act. State v. Jerrett, 309 N.C. 239, 307 S.E.2d 339 (1983). The defense of insanity is very similar in that it is based on the same premise, “the defendant did the acts, but should not be convicted because the requisite mental element was not present.” State v. Caddell, supra, 287 N.C. at 289, 215 S.E.2d 348. The same burden which is placed upon the defendant claiming insanity is placed upon the defendant claiming automatism, that is, to prove to the satisfaction of the jury his defense, and thus negative the requisite mens rea. In light of these cases, and the given similarity between insanity and automatism, the Court is of the opinion that the holding of State v. Caddell is still good law and unlikely to be reversed.


author: JOE J. FISHER, District Judge.

text:
    Hugh O’LOUGHLIN, Sr. v. PROCON, INCORPORATED.
    Civ. A. No. B-83-762-CA.
    United States District Court, E.D. Texas, Beaumont Division.
    Jan. 31, 1986.

      Kent W. Johns and Gaylyn Cooper, Beaumont, Tex., for plaintiff.
    Ross Harrison, Baker & Botts, Houston, Tex., for defendant.
   MEMORANDUM OPINION

JOE J. FISHER, District Judge.

The Plaintiff, Hugh O’Loughlin, brought this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et. seq. (Law.Co-Op.1978 & Supp.1985), and 42 U.S.C.S. § 1981 (Law.Co-Op.1978), alleging a discriminatory discharge of employment based upon race (black) and national origin (Cuban). Plaintiff is also alleging a common law cause of action for wrongful discharge. Plaintiff is seeking reinstatement, compensation and injunctive relief.

Plaintiff, a black male citizen of Cuba, entered into a Contract of Employment with Defendant Procon, Inc., as a material control supervisor. Procon, a construction company, is an employer within the meaning of 42 U.S.C.S. § 2000e(b) (Law.Co-Op. 1978), and at all times relevant to this suit was engaged in construction projects for Gulf Oil Corporation.

A material control supervisor is primarily responsible for issuing purchase orders to local suppliers for materials and equipment requisitioned by the construction field personnel. It is undisputed that a delay in processing the purchase orders could idle construction crews, increase labor costs and postpone completion of construction projects. Plaintiff was well educated, understood his position and was capable of performing his tasks. However, it seems these attributes did not always redound to the benefit of Procon or O’Loughlin.

An antagonistic relationship had developed between Plaintiff and some of his associates and superiors. Plaintiff alleges that these co-workers had condoned racially defamatory statements directed at him and had subverted the rules and regulations in the procurement of material and equipment by acquiring the latter without going through Plaintiff. Defendant maintains that it was necessary to circumvent Plaintiff because Plaintiff was delinquent in executing purchase orders. In retaliation for the acts of circumvention, Plaintiff would insist upon strict implementation of standard operating procedure, admitting that on one occasion he refused to write a purchase order for an item his superior, Mr. Smith, had authorized a field worker to obtain. The delays in the issuance of purchase orders continued and the vicious circle repeated itself.

Plaintiff complained to Mr. de la Campa, the manager of construction for Procon and himself a Cuban, about the racial epithets. Mr. de la Campa investigated one alleged incident of racial bigotry and satisfied himself that no disciplinary action was warranted. Mr. de la Campa testified that Plaintiff was not discriminated against because of his race or national origin while employed by Procon and that no other blacks had complained of racial discord.

Sometime thereafter Mr. Smith terminated Plaintiff, allegedly because of a reduction in the work force. Mr. Smith later testified that a work force reduction was not the real reason. Rather, Plaintiff was terminated because of his refusal to properly discharge his duties. The false explanation was allegedly given so that Plaintiff would be eligible for severance pay and unemployment benefits. Plaintiff’s responsibilities were assumed by Ms. Woods, a white female, who had some experience as a material control supervisor, but whose qualifications for that position were less than Plaintiff’s.

Plaintiff timely filed his section 1981 claim, under which he must prove purposeful or intentional racial discrimination. Whiting v. Jackson State University, 616 F.2d 116, 121 (5th Cir.1980). A question exists whether Plaintiff may properly maintain his Title VII claim, under which Plaintiff must prove that his employer engaged in a pattern or practice of intentional discrimination based upon, inter alia, race and national origin, and/or that Plaintiff was the victim of a particular decision motivated by discriminatory intent. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-56, 101 S.Ct. 1089, 1093-95, 67 L.Ed.2d 207 (1981); International Bhd. of Teamsters v. United States, 431 U.S. 324, 335-36, 97 S.Ct. 1843, 1854-55, 52 L.Ed.2d 396 (1977).

Plaintiff was three (3) days late in filing the statutorily required discrimination complaint with the Equal Employment Opportunity Commission (EEOC). Defendants contend that a late filing with the EEOC is an unqualified bar to a Title VII suit in Federal court. However, in Zipes et al v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1981), the Supreme Court held that a seasonable filing of a discrimination charge with the EEOC is not a jurisdictional absolute for the maintenance of a Title VII claim. Therefore, Plaintiff’s three-day delay does not bar us from hearing his Title VII cause of action.

When, as here, section 1981 is used as a companion remedy to section 2000e, the elements of each cause of action may be construed as identical, and the requisite intent under section 1981 may be inferred as it is under section 2000e. Whiting, 616 F.2d at 121.

In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973), the Supreme Court held that in a Title VII cause of action for employment discrimination, the Plaintiff has the initial burden of establishing a prima facie case. In McDonnell Douglas the Court propounded a four-pronged test which, though schematized for application in discriminatory hiring cases, has been extended by this Circuit to discriminatory termination cases. Burdine v. Texas Department of Community Affairs, 608 F.2d 563 (5th Cir.1979). The Plaintiff must prove that (1) he belongs to a group protected by Title VII; (2) he was qualified for the position he held; (3) he was terminated; (4) after his termination, the employer hired a person not in Plaintiff’s protected class, or retained those having comparable or lesser qualifications, not in Plaintiff’s protected class. Id. at 566, 568. If the Plaintiff can make a prima facie showing of discriminatory discharge, the burden shifts to the employer to prove some legitimate, nondiscriminatory reason for the termination. Green, 411 U.S. at 802, 93 S.Ct. at 1824. If the employer succeeds on that score, the Plaintiff must demonstrate that the Defendant’s asserted justification for the discharge is merely a pretext for a racially discriminatory decision. Id. at 804, 93 S.Ct. at 1825.

Plaintiff at bar has properly set out a prima facie case of employment discrimination. Plaintiff has met elements (1) and (3)of the Green test: he has shown that he belongs to a class protected by Title VII and that he was terminated. Plaintiff has also satisfied Green elements (2) and (4). Regarding element (2), Plaintiff has demonstrated that he was qualified for the material control supervisor’s position. That he understood and could meticulously apply standard operating procedure is but one factor denoting Plaintiff’s qualifications. The fact that Plaintiff would sometimes use a rigorous devotion to rules and regulations as a sword by which to antagonize co-workers speaks to Plaintiff’s personality rather than to his ability to perform his job. Plaintiff satisfied Green element (4) when Defendant replaced Plaintiff with Ms. Woods, a person not in Plaintiff’s protected class and one whose qualifications for the relevant position were indisputably inferior to Plaintiff’s.

Nevertheless, Defendant has successfully rebutted Plaintiff’s prima facie case by articulating a legitimate, nondiscriminatory justification for its termination of Plaintiff; a justification that Plaintiff has not demonstrated was a ruse for a racially discriminatory decision.

Defendant fired Plaintiff because Plaintiff was unwilling to cooperate with his co-workers or perform his duties in a workmanlike manner. Plaintiff would have this court mistakenly conclude that because Defendant proffered an erroneous justification for the discharge ipso facto the justification is pretextual. A contextual analysis of the pretext language that appears in the Supreme Court cases we have cited discloses that a justification is pretextual only if it camouflages a discriminatory decision. Defendant’s decision to discharge Plaintiff, though purposely mischaracterized, was animated by business necessity and had nothing to do with Plaintiff’s skin color or national origin. Plaintiff has introduced no competent evidence that Defendant’s real and presumptively valid reason for the termination was a smoke-screen for a racially discriminatory decision. See Green, 411 U.S. at 804, 805, 93 S.Ct. at 1825.

A fortiori, we find no nexus between Plaintiff’s discharge and the alleged racial epithets. Those possible instances of racial vituperation were at most isolated acts of individual bigotry. Taken singularly or in combination, they do not constitute a movement in an orchestration underscored by racial animosity. Mr. de la Campa’s testimony that Mr. O’Loughlin was never discriminated against because he was Cuban or black and that no other black employees had complained of racial slurs confirms the cogency of our conclusions.

Plaintiff’s cause of action for wrongful discharge is similarly without merit. As the court explained in Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733, 734 (Tex.1985), Texas subscribes to the traditional employment at-will doctrine that allows for the unilateral termination of an employment relationship without cause. As Sabine Pilot also explained, there is only one narrow exception to that rule: an employer may not discharge an at-will employee for the sole reason that the employee refuses to perform an illegal act. Id. at 735.

Consequently, there being no allegation of a contractual provision preventing the application of the at-will doctrine to this case, nor an allegation that Plaintiff was discharged because of his refusal to carry out an illegal act, Plaintiff's wrongful discharge cause of action is meritless.

Accordingly, Plaintiff has not stated claims for which relief can be granted under Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq., 42 U.S. C.S. § 1981, or for wrongful discharge under Texas state law.

Judgment to be entered for Defendant.

      . Section 1981 may not be used as a basis for court action seeking relief from employment discrimination based upon national origin. E.g., Marshall v. Plumbers and Steamfitters Local Union 60, et al, 343 F.Supp. 70, 72 (E.D.La.1972).

      . The Supreme Court has stated that although Title VII and section 1981 are independent remedies, "the two procedures augment each other and are not mutually exclusive.” Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 459, 95 S.Ct. 1716, 1719, 44 L.Ed.2d 295 (1975).


author: McLAUGHLIN, District Judge.

text:
    GENERAL MOTORS CORP., Plaintiff, v. GIBSON CHEMICAL & OIL CORP., and Lee J. Roth, Defendants.
    No. 85CV1020.
    United States District Court, E.D. New York.
    Jan. 31, 1986.

      See also, 2d Cir., 786 F.2d 105.
    Parker, Auspitz, Neeseman & Delehanty, P.C., New York City, Mark S. Ladner, Hollis L. Hyams, of counsel, for plaintiff.
    Robert G. Del Gadio, Garden City, N.Y., Warren S. Beckerman, of counsel, for defendants.
   McLAUGHLIN, District Judge.

Defendants seek an order permitting them to repackage and distribute certain goods alleged by plaintiff to infringe its trademark, or in the alternative an order directing plaintiff to remove all such goods from defendants’ premises. Plaintiff opposes, and cross-moves for an order holding defendants in contempt of an order of this Court.

Facts

On March 18, 1985 plaintiff General Motors Corp. (“GM”) obtained an order of seizure and impoundment and a temporary restraining order. The TRO barred defendants from infringing GM’s “Dexron” trademark for automatic transmission fluid pending a hearing on its application for a preliminary injunction. A United States Marshal and a representative of GM went to defendants’ warehouse to execute the order. Large quantities of allegedly counterfeit Dexron fluid and packaging were seized. Possibly at defendant Roth's suggestion, and at least with his consent, the goods were impounded in a section of defendants’ warehouse.

A preliminary injunction hearing was held on March 28 and 29, 1985, whereupon this Court ordered that the restraining order be extended pending the submission of an injunction order. On May 1, 1985 the Court entered an order enjoining defendants from

manufacturing, distributing, secreting, warehousing, selling, advertising, transporting, imitating, counterfeiting or, in any manner, commercially exploiting materials or merchandises in violation of the valid registered trademark “Dexron” owned and protected by General Motors, including any and all automatic transmission fluid, or other fluid, cans, wrappers, labels, boxes, cartons, papers, containers, packaging, signs, advertising, promotional materials, stamps, presses, plates, molds, matrices, or other means, mechanisms, or devices for making, printing, copying reproducing or display which counterfeit or infringe the registered and common law trademark “Dexron” ...

Defendants now wish to repackage and sell the impounded goods, or at least to have GM remove the goods from defendants’ warehouse. This is necessary, they say, because keeping the fluid in its warehouse presents health and safety hazards, and continued storage would be a danger to the environment and a burden on the defendants. They point to a June 1985 spill in the warehouse as indicative of the potential hazards.

GM argues that resale of the impounded goods might deprive them of a proper remedy in this case. It also cross-moves for a contempt order, based on defendants’ actions at a trade show in Chicago on August 28, 1985. There defendants apparently distributed a brochure advertising Dexron, in violation of this Court’s order of May 1, 1985.

Discussion

Repackaging

Defendants wish to repackage and sell the allegedly infringing goods. To permit the defendants to dispose of the goods in the ordinary course of their business, however, would be to assume, in effect, that the goods do not infringe any protected interest of the plaintiff. GM has made a sufficient showing of infringement to entitle it to preliminary relief, and has posted security to reimburse defendants should that relief turn out to have been granted improvidently. I see no reason to disturb that state of affairs at this time, especially in light of the fact that to do so might deprive GM of a remedy to which it may become entitled. Plaintiff may eventually be entitled to have the goods destroyed, and the goods may serve as security for any money judgment GM obtains. Obviously neither of these objects can be accomplished if defendants are permitted to dispose of the goods at this time. Accordingly, the motion to repackage and sell the goods is denied.

Removal

Defendants argue that the presence of the goods in their warehouse presents a potential environmental hazard. They contend that GM should take responsibility for the seized goods by removing them from the warehouse and impounding them at some other location.

Such action appears to be unnecessary at this time. It has not been explained why an environmental hazard is presented by the presence of transmission fluid in the warehouse of a company whose business is to blend and package automotive fluids, nor is it clear why defendants agreed to store the goods in the first place if such was the case. To the extent the danger arises from the inadequacy of defendants’ packaging of the allegedly infringing goods, removal is not necessary. GM has already offered to advance any expenses incurred in transferring the fluid into vats or barrels in which it may be stored securely, with those expenses treated as a cost and assessed by the Court against the losing party at the conclusion of the trial.

This proposal strikes the Court as the most reasonable and efficient resolution of the problem. Defendants are reminded that they are protected by the undertaking that GM has posted “for the payment of any damages any party may be held by this Court to be entitled to recover as a result of any wrongful seizure ...” (Preliminary Injunction Order at 5).

Contempt

GM asserts that defendants’ distribution of the brochure displaying Dexron transmission fluid violates that portion of this Court’s preliminary injunction order that enjoins defendants from advertising Dex-ron or using the mark in any promotional materials. They thus seek an order finding defendants in civil contempt of the May 1, 1985 order.

“A court has the inherent power to hold a party in civil contempt in order ‘to enforce compliance with an order of the court or to compensate for losses or damages.’ ” Powell v. Ward, 643 F.2d 924, 931 (2d Cir.) (quoting McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 69 S.Ct. 497, 499, 93 L.Ed. 599 (1949)), cert. denied, 454 U.S. 832, 102 S.Ct. 131, 70 L.Ed.2d 111 (1981). That power is properly exercised if the order is clear and unambiguous, the person had knowledge of the order, and proof of noncompliance with the order is clear and convincing. Perfect Fit Indus. Inc. v. Acme Quilting Co., Inc., 646 F.2d 800, 808 (2d Cir.1981).

Although defendants attempt to argue otherwise, there can be no question that the terms of the order enjoining defendants from “advertising ... or, in any manner, commercially exploiting” the Dexron trademark, including the use of “advertising [or] promotional materials,” is unequivocal and unambiguous. It is equally clear that defendants have not complied with those terms: defendants admit that they distributed the offending brochure. Their arguments against a finding of contempt are directed to the knowledge requirement.

Lee J. Roth, an individual defendant and president of defendant Gibson Chemical & Oil Corp. (“Gibson”), has submitted an affidavit (“Roth Aff.”) detailing the circumstances surrounding the distribution of the brochure at the convention in Chicago. He states that the display materials used by defendants at trade shows and conventions are packed in “show kits.” Before the show kit for the Chicago meeting left Gibson, Roth, in an effort to comply with the injunction, had the two sample cans which bore the Dexron name removed from the kit. Roth claims to have been unaware that the brochure contained in the kit, which depicted forty-nine products, displayed two products bearing the Dexron mark. He also claims to have been unaware that use of the mark in display materials would violate the injunction, stating that he had not read the injunction order and that he was informed by his attorney only that he was prohibited from moving any of the seized materials and from manufacturing or distributing any fluid with the name Dexron. Defendants thus argue that they lack the knowledge to be in contempt.

It is clear, however, that the knowledge required of a party in contempt is knowledge of the existence of the order, see Perfect Fit Indus. Inc. v. Acme Quilting Co., Inc., supra, 646 F.2d at 808; Fidelity Mortgage Investors v. Camelia Builders, Inc., 550 F.2d 47, 51 (2d Cir.1976), cert. denied, 429 U.S. 1093, 97 S.Ct. 1107, 51 L.Ed.2d 540 (1977), not knowledge of the particulars of that order. Here defendants’

transgression stemmed from [their] remarkable failure to inform [themselves] of the precise terms of the order in the first place ... [A] party to an action is not permitted to maintain a studied ignorance of the terms of a decree in order to postpone compliance and preclude a finding of contempt.

Perfect Fit Indus. Inc. v. Acme Quilting Co., Inc., supra, 646 F.2d at 808.

Thus defendants’ ignorance of the precise terms of an order — the existence of which they admit they were aware — does not insulate them from a finding of contempt. It does appear that the violation was inadvertent, but “a violation need not be wilful for a party to be found in civil contempt.” N.L.R.B. v. Local 282, Int’l Bhd. of Teamsters, 428 F.2d 994, 1001 (2d Cir.1970).

Defendants’ conduct in distributing the brochure thus does technically constitute contempt. More troubling, however, is the issue of the proper sanction. Sanctions for civil contempt “serve two functions: to coerce future compliance and to remedy past noncompliance.” Vuitton et Fils S. A. v. Carousel Handbags, 592 F.2d 126, 130 (2d Cir.1979) (citing United States v. United Mine Workers, 330 U.S. 258, 302-04, 67 S.Ct. 677, 700-02, 91 L.Ed. 884 (1947)).

Coercion of future compliance appears to be unnecessary in this case. Defendants have represented that all the offending brochures will be destroyed (Roth Aff. 11 6), and that they have now fully familiarized themselves with the terms of the May 1 order (Defendant’s Reply Memorandum of Law at 9). I trust that the warning that any future violations will be regarded by this Court with the utmost displeasure will suffice to ensure defendants’ compliance with the order.

Any fine imposed must therefore reflect “actual losses sustained [by GM] as a result of the contumacy.” Perfect Fit Indus. Inc. v. Acme Quilting Co., Inc., 646 F.2d at 810. Plaintiff is entitled to compensatory damages once it has proved that it has suffered harm as a result of a violation of the terms of an injunction. Vuitton et Fils S. A. v. Carousel Handbags, supra, 592 F.2d at 130.

GM has not demonstrated any actual damages it suffered as a result of defendants’ distribution of the brochure. Defendant avers that it has not manufactured, sold or distributed any fluid using the Dexron mark since the preliminary injunction issued on May 1, 1985. Because the record now before me contains no evidence of actual damage to GM, no award will be entered at this time. Plaintiff will have an opportunity at the trial on the merits to adduce proof of damage from defendant’s violation of the order. Andre Matenciot, Inc. v. David & Dash, Inc., 422 F.Supp. 1199, 1211 (S.D.N.Y.1976). To that end, defendants are ordered to provide GM with an accounting of all orders for automatic transmission fluid received by defendants at the convention.

SO ORDERED.

      . Defendants contend that they lack sufficient labor to accomplish such a transfer. The GM offer, however, would cover the cost of whatever additional labor is necessary.