author: WARRINER, District Judge.

text:
    Adam KLIMEK v. Donald R. HUNTER, et al. Adam KLIMEK v. William L. DICKENS. Adam KLIMEK v. NORFOLK & WESTERN RAILWAY CO., INC., et al. Adam KLIMEK v. Sidney BARNEY, et al. Adam KLIMEK v. Judge Richard L. WILLIAMS, et al. Adam KLIMEK v. Robert J. WAGNER, et al. Adam KLIMEK v. Derrick S. KEIFER.
    Civ. A. Nos. 85-0375-R, 85-0446-R, 85-0715-R, 85-0804-R, 85-0816-R, 85-0864-R and 85-0875-R.
    United States District Court, E.D. Virginia, Richmond Division.
    Dec. 17, 1985.
    Adam Klimek, pro se.
    James W. Hopper, Gardner, Moss & Hopper, Linwood T. Wells, Jr., Asst. Atty. Gen., Michael W. Smith, David C. Kohler, Christian, Barton, Epps, Brent & Chappell, Richmond, Va., for defendants.
   OPINION AND ORDER

WARRINER, District Judge.

Presently under consideration by this Court is a motion for reconsideration filed by plaintiff in Klimek v. Dickens, Civil Action No. 85-0446-R, and the question of the proper disposition of six other cases filed by the same plaintiff in this Court.

As of this date, plaintiff has filed ten separate actions in this district. Four of these cases have been closed; six of them are presently pending before this Court. A review of plaintiffs litigious path through the federal courts is in order.

The first action filed by Klimek was Klimek v. Bolger, et al., Civil Action 81-0731-R. In that action, Klimek alleged that the Postal Service had unlawfully terminated mail service to his home. That action was scheduled for trial on the merits on 25 February 1982 but plaintiff failed to appear for the trial. Consequently, Judge Clarke granted defendant’s motion for involuntary dismissal for failure to prosecute, failure by plaintiff to follow the Court’s pretrial order, and failure of plaintiff to exhaust administrative remedies. Judge Clarke dismissed the case with prejudice and subsequently awarded counsel fees to defendants. The Fourth Circuit dismissed Mr. Klimek’s appeal for want of prosecution pursuant to Local Rule 10.

On 25 February 1983 plaintiff filed a complaint styled Klimek v. Bolger, et al, Civil Action 83-0139-A-R. The complaint in that case was identical in every respect to the complaint filed in Civil Action 81-0731-R, except that appended to the complaint in Civil Action 83-0139-A-R was- an affidavit in support of a request to proceed in forma pauperis. On 25 February 1983, Judge Merhige denied Klimek’s motion to proceed in forma pauperis. On 8 March 1983 Judge Merhige ordered that the matter be placed among the ended causes because plaintiff failed to pay the appropriate fees. On 22 July 1983 the Clerk of the Fourth Circuit dismissed Mr. Klimek’s appeal for want of prosecution pursuant to Local Rule 10.

On 9 April 1985, plaintiff filed a petition for writ of habeas corpus in Civil Action 85-0376-R, styled Klimek v. Hartman, seeking to overturn his convictions for resisting arrest, destroying personal property, and brandishing a firearm. On 22 July 1985, Judge Merhige denied the petition for writ of habeas corpus because the petition contained conclusory allegations which Klimek had failed to remedy despite being ordered by the Court to do so.

On 29 April 1985, Klimek filed Civil Action 85-0446-R, styled Klimek v. Dickens, et al. That action was virtually identical to several other cases still pending before the Court in which Klimek alleges that his constitutional rights were violated because an off-duty Petersburg police officer assaulted him and because various government officials assertedly did not assist him in vindicating his rights. Judge Williams dismissed the action on 11 October 1985 because Klimek exceeded the 120-day limit for serving process on the defendants, as he was required to do under Rule 4(j) of the Federal Rules of Civil Procedure. Although this case is marked as “Closed” by the Clerk’s office, presently pending is Klimek’s motion for reconsideration, which was filed on 12 November 1985.

In addition to these closed cases, there are six open cases. The first of these is Klimek v. Hunter, et al., Civil Action 85-0375-R. That action is virtually identical to Klimek v. Dickens, Civil Action No. 85-0446-R. The complaint asserts that Donald Hunter, an off-duty Petersburg police officer, assaulted plaintiff, and further alleges numerous violations of plaintiff’s constitutional rights by various State and municipal governmental officers. Presently pending before the Court are five motions to dismiss the action which cover almost all of the nineteen (19) defendants.

On 10 September 1985, Klimek filed a suit against six defendants in the case of Klimek v. Norfolk & Western Railway Co., et al, Civil Action 85-0715-R. Although Klimek’s claim is not entirely clear from the complaint, he appears to allege that the Railway allowed two of the defendants wrongful access across Mr. Klimek’s land and that those two defendants assaulted plaintiff when he attempted to stop them. Mr. Klimek also is suing the Petersburg district court judge who dismissed his State court motion for judgment. Plaintiff in this suit asserts that the basis for federal jurisdiction is 42 U.S.C. § 1983 and various portions of the federal Constitution, inter alia. Process has not yet been served in that action.

On 15 October 1985, Klimek filed an action against the Commonwealth’s Attorney for the City of Petersburg and against the Commonwealth of Virginia under the doctrine of respondeat superior. (Klimek v. Barney, et al., Civil Action 85-0804-R). Mr. Klimek claims in that case that the Commonwealth’s Attorney for the City of Petersburg violated his constitutional rights by writing a letter to United States Senator Trible in which allegedly libelous and false statements were made regarding plaintiff and his family. The asserted basis for jurisdiction again is 42 U.S.C. § 1983 and various sections of the federal Constitution, inter alia. The complaint also has not yet been served in that action.

On 23 October 1985 plaintiff filed suit against various officers of the federal courts, including United States District Judges Williams and Merhige, and against the United States under the doctrine of respondeat superior. (Klimek v. Williams, et al, Civil Action 85-0816-R). The complaint asserts that the judges and other federal court officers violated Mr. Klimek’s constitutional rights by interfering with his access to the courts and, in the case of the judges, by dismissing his various federal lawsuits. Plaintiff again claims that federal jurisdiction in that action lies under 42 U.S.C. § 1983 and various sections of the federal Constitution, inter alia. Service of process has not yet been made in that action.

On 19 November 1985, Klimek filed an action against the Norfolk & Western Co. and twelve other defendants, ten of whom are John Does, in the case of Klimek v. Wagner, et al., Civil Action 85-0864-R. Klimek alleges in that case that two of the defendants vandalized his property and turned a hunting dog loose on Klimek. These two defendants are two of the defendants named in Klimek v. Norfolk & Western Railway Co., Civil Action 85-0715-R, and the action appears to stem out of the same incident that gave rise to Civil Action 85-0715-R. Again, Klimek alleges that the claim is based upon 42 U.S.C. § 1983, 42 U.S.C. § 1985, and various portions of the federal Constitution. No process has been served in that action.

On 21 November 1985, Klimek filed the action of Klimek v. Keifer, et al., Civil Action 85-0875-R. In that action, Klimek has named 42 defendants. Plaintiff alleges that two of the defendants threw some litter at the end of his driveway and that he chased those two defendants. He further alleges that the two defendants refused to pick up the paper despite being confronted by Klimek. Plaintiff asserts that he could not complete the complaint at the time it was filed because he believed that he had to file on 21 November 1985 in order to avoid a bar by the statute of limitations. In any event, Klimek does not indicate in any way how the other 40 defendants are involved in the action. Jurisdiction is alleged, inter alia, under 42 U.S.C. §§ 1983 and 1985 and under various provisions of the federal Constitution. The complaint has not yet been served in that case.

Confronted with this trivial litigation, I must decide upon a rational, and legal, disposition. A federal district court clearly has the power to dismiss actions displaying a pattern of frivolous and vexatious claims. One source of this power lies in the Court’s inherent power and duty to control the judicial process. Professor Moore has described this power as well as any commentator:

All courts, federal and state, have a broad and inherent power “over their own process to prevent abuses, oppression, and injustice” so “as not to produce hardship”; and to do substantial justice.
Utilizing its broad, inherent power, which does not depend on statute, a court will dismiss an action that is: collusive; sham; frivolous; harassing and vexatious; vexatious; vexatious and fraudulent; brought for an improper ulterior purpose; being utilized for “a dishonest and corrupt purpose on the part of the complainant and his solicitor”; brought “in bad faith and as a mere blackmailing scheme.” These principles are in accord with, and flow from, the historical development of the power, that may be invoked at any time during the progress of the action. A motion invoking the power is not limited or impaired by Federal Rule 12(b), which does not govern. And the power may be invoked on motion of a party, including an intervening party; or by the court on its own motion.

1 Moore’s Federal Practice, pp. 634-36 (footnotes omitted). ¶ 0.60[6], at

The reported cases reveal that several federal courts have exercised, or have affirmed the exercise of this power. In Brown v. District Unemployment Compensation Board, 411 F.Supp. 1001 (D.D.C. 1975), the district court cited the above-quoted section of 1 Moore’s Federal Practice (¶ 0.60[6]) to support its refusal to vacate a district court order which had dismissed an action sua sponte. The judge in Brown found that the action was frivolous or brought for an ulterior purpose. Id. at 1001-02. The Court held that good reason existed for immediate dismissal because the complaint had named 23 individual defendants; it had rambled on for 98 pages, “making a myriad of allegations;” the plaintiff had sent out scandalous interrogatories; and because plaintiff had admitted to the court that he had brought nearly identical claims on at least seven previous occasions, each of which had been summarily dismissed. Id. at 1002.

Other courts have used more specific grounds to dismiss frivolous suits. In Ferguson-Bey v. National Organization for Women, 587 F.Supp. 1046 (D.Md.1984), the court dismissed the latest of a series of five actions filed by the plaintiff, all of which had arisen from the same set of operative facts. The prior actions had resulted in a defendant’s verdict, two dismissals, and a settlement, respectively. Id. at 1047. The Court’s rationale in rejecting the suit is evident in the opinion:

The complaint now before the court reflects a shotgun approach to litigation, if ever there was one. The gravamen of the complaint is that the defendants have conspired together to prevent this Court from hearing the merits of the claims the plaintiff has brought against the defendants in other matters. Citations of authority in the complaint range from the ridiculous ... to the unsophisticated.

Id. The court dismissed the complaint under 28 U.S.C. § 1915(d), finding that “beyond doubt and under any arguable construction of the plaintiff’s claim” she was not entitled to relief. Id.

More closely on point with respect to the present case is Ruderer v. Fines, 614 F.2d 1128 (7th Cir.1980). Appellant’s ultimate complaint in that action was that he had been unlawfully dismissed from federal service in 1965. He commenced “a plethora of lawsuits against fellow employees ... and various officials of the federal government, including former President Johnson, the former Chairman of the Civil Service Commission, John Macy, Cyrus Vance, and several federal judges, and the United States and various agencies thereof.” Id. at 1130 (citations omitted).

In the action before the Seventh Circuit in Ruderer v. Fines, the appellant challenged the district court’s summary dismissal of his complaints brought against the U.S. Attorney for the Southern District of Illinois, the U.S. Attorney General, the United States, and an assistant U.S. attorney. That action was the latest in a series of lawsuits estimated to total 68 in all, virtually all of which had been dismissed. Id. As of the Seventh Circuit’s decision in 1980, six federal courts had issued injunctions against the plaintiff and several courts had found that his claims had been brought in bad faith or in furtherance of a “ ‘personal vendetta against the United States.’ ” See Id. at 1130-31.

The Seventh Circuit in Ruderer v. Fines set out at some length the course of the appellant’s various actions in the federal courts. A review of the various reported actions reveals that the federal courts became increasingly impatient with the bad faith and frivolousness displayed by the plaintiff in his repeated filing of similar actions in the federal courts. See, e.g., Ruderer v. United States, 462 F.2d 897, 898 (8th Cir.), cert. denied and appeal dismissed, 409 U.S. 1031, 93 S.Ct. 540, 34 L.Ed.2d 482 (1972); Ruderer v. Department of Justice, 389 F.Supp. 549, 550 (S.D. N.Y.1974); Louis G. Ruderer, 529 F.2d 533, 208 Ct.Cl. 1019, 1020 (1976). In Ruderer v. Fines, the Seventh Circuit followed a similar path in dismissing appellant’s claims. The court held:

We have examined with care the record and appellant’s long and generally incomprehensible briefs. We concur in the appellees’ contention that the plaintiff’s three complaints are frivolous, malicious, filed in bad faith, and totally devoid of any semblance of colorable merit.

614 F.2d at 1132.

I am aware that the situation presented by the cases presently pending before the Court is not precisely the same as those circumstances found in the cases discussed above. Brown v. District Unemployment Compensation Board, Ferguson-Bey v. National Organization for Women, and the various Ruderer cases each involved a plaintiff who continually filed actions that arose from the same operative facts as those in previously filed actions. Such also is the case with several, but not all of the actions filed by Mr. Klimek. Furthermore, the circumstances presented by the case factually most identical to the situation forced upon this Court by Mr. Klimek, Ruderer v. Fines, involved a plaintiff who had filed an estimated 68 lawsuits, see 614 F.2d at 1130, whereas Mr. Klimek has filed a “mere” ten lawsuits as of this date.

Despite these differences, Mr. Klimek’s lawsuits, whether taken individually or together, smack of the same element found in Ruderer, Ferguson-Bey, and Brown, i.e., the irrational abuse of the courts and the judicial process for a purpose other than the exercise of the need for recourse to a court of oyer and terminer. The pattern of plaintiff’s lawsuits makes it evident that it is the process, or at the very least the threat to use the judicial process, that plaintiff desires to pursue, not the resolution of meritorious claims. These suits obviously arise from a fervid mind, one which is so bent that it could conceive of two boys littering plaintiff’s driveway with paper as involving a right protected by the United States Constitution. I don’t believe we have to wait until the ridiculous becomes ludicrous to act.

For the courts (and the taxpayers) to have to suffer such effusion is intolerable. Each of these cases involves, at the least, the expenditure of hundreds of dollars that someone earned and paid to the federal government in taxes. These frivolous actions involve hours of time expended by judges, deputy clerks, law clerks, secretaries, marshals, court reporters, and others employed by the federal government, all of whom are charged with serious duties and responsibilities which must be delayed or neglected to attend to the foolishness typical of these lawsuits.

Even worse is the effect of these frivolous suits upon the defendants against whom these actions have been brought. So far Adam Klimek has sued a total of 89 persons, 18 of whom have been sued more than once by him. In addition to the understandable consternation accompanying one’s being served in a federal suit, many defendants have felt and will feel compelled (quite properly) to seek the advice of legal counsel. If each of the defendants in each one of plaintiff’s suits had consulted lawyers who, magically, exercised restraint in setting a fee and charged each client only $100 to represent him, the aggregate cost immediately is $8,900.00.

For a court to pretend that it is powerless to do anything about this abuse of the judicial process but take the “safe and accustomed” route of dealing with these cases as if they had merit and were entitled to serious consideration would be to trivialize lawsuits. Such a court should not be respected; it should be the subject of scorn.

Whether Adam Klimek is simply a nut, I don’t know. But I do know that he is behaving like one before this Court and I don’t intend to deal with him as a serious person. I intend to take appropriate action to end this abuse of the judicial process. I bear in mind the Supreme Court’s admonition that papers filed by pro se litigants are held to less stringent standards than pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652, reh. denied, 405 U.S. 948, 92 S.Ct. 963, 30 L.Ed.2d 819 (1972). The utter lack of merit in Mr. Klimek’s lawsuits and the frivolous path he has trod through the judicial system, however, prevent his pleadings from rising even to the lower standard to which a pro se plaintiff is held.

All of plaintiff’s lawsuits will be DISMISSED and his motion for reconsideration in Civil Action 85-0446-R is DENIED. He will not be permitted to file any further actions in this Court of any nature unless the allegations of fact be sworn to and unless the suit be supported by a certificate on his oath that he believes he is entitled to relief against each person sued. If it appears that Mr. Klimek has violated either such oath in any material regard, the matter will be referred to the United States Attorney for prosecution, for perjury, or other appropriate action.

Furthermore, any such action tendered, whether a fee is paid or not, will be referred to a judge of this Court to determine whether a bona fide or arguable claim has been made and whether the terms of the injunction have been complied with. Absent such a finding by a judge of this Court, filing will be refused by the Clerk of the Court.

An injunction incorporating these provisions SHALL issue and be served on plaintiff.

If plaintiff intends to appeal this order and the accompanying judgments, he must do so by filing notices of appeal in each such case with the Clerk of this Court within thirty days, as required by Federal Rule of Appellate Procedure 4(a)(1).

And it is so ORDERED.

      . Mr. Klimek also has made a habit of repeatedly engaging deputy clerks in nagging conversations regarding his case, has sought ex parte contact with judges, and has continually badgered law clerks regarding his various claims. In short, Mr. Klimek has made a pest of himself in the courthouse. Although to my knowledge he has never been obstreperous, he is nevertheless frequently at the elbow of courthouse personnel, importuning with respect to his pending • actions.


source: Caselaw Access Project

author: MURRAY M. SCHWARTZ, Chief Judge.

license: Public Domain

text:
    Jeanne VAN HEEST, Plaintiff, v. McNEILAB, INC., trading as First State Chemical Co., Inc., Defendant.
    Civ. A. No. 83-336 MMS.
    United States District Court, D. Delaware.
    Dec. 18, 1985.

      Sheldon N. Sandler, Young, Conaway, Stargatt & Taylor, Wilmington, Del., for plaintiff.
    Robert J. Katzenstein, Lassen, Smith, Katzenstein & Furlow, Wilmington, Del., of counsel: Joseph M. David, Jr., James E. Farrell, Jr., and Francis X. O’Brien, Jr., Curran, Mylotte, David & Fitzpatrick, Philadelphia, Pa., for defendant.
   OPINION

MURRAY M. SCHWARTZ, Chief Judge.

Plaintiff Jeanne M. Van Heest brought this sex-discrimination action against defendant McNeilab, Inc., trading as First State Chemical Co., Inc. (“McNeilab”), to recover back wages and other damages. Plaintiff’s claims are based on the Equal Pay Act of 1963, 29 U.S.C. § 206(d) & § 206 note, and Title VII of the Civil Rights Act of 1964, codified as amended at 42 U.S.C. § 2000e et seq. In essence, plaintiff claims that during the period from August 22, 1980, to October 31, 1982, when she worked for McNeilab, defendant discriminated against her on the basis of sex by paying her lower wages than comparable male employees received. The primary evidence advanced to support this contention is that the two males allegedly hired to replace her were paid a combined total of over three times her salary.

Presently before the Court is defendant’s motion for summary judgment. For the reasons that follow, defendant’s motion will be granted in part and denied in part.

I. Facts

The relevant facts are stated in the light most favorable to plaintiff, the party opposing the summary judgment motion. In 1977, plaintiff began working at First State Chemical Company (“FSCC”), a small, privately owned chemical-manufacturing company. Plaintiff and her husband were the only employees of FSCC. Plaintiff’s duties included purchasing, payroll, bookkeeping, and secretarial tasks. Her purchasing duties included buying office supplies, capital equipment for production, and raw materials. Plaintiff’s Deposition (“Dep.”), Docket Item (“Dkt.”) 17, at 10-11. Plaintiff received no salary during her first year at FSCC, but later received a salary of $18,000 per year. Id. at 12.

In August, 1980, FSCC was acquired by Johnson & Johnson and merged into McNeilab, a Johnson & Johnson subsidiary. At that time, FSCC had twelve employees. On August 11, 1980, plaintiff began working for McNeilab pursuant to a written three-year employment agreement, at a starting salary of $18,000 per year. The agreement provided that plaintiff “shall be entitled to ... periodic salary review ... in accordance with personnel practices established by the Company for employees with comparable experience, responsibilities and salary____” App. To Defendant’s Brief In Support Of Its Motion For Summary Judgment, Dkt. 63A, at 15-16. Plaintiff continued to perform the same duties she had prior to the acquisition, although the effect of the acquisition was to expand those duties. Plaintiff’s Dep., Dkt. 17, at 31-33.

Plaintiff was not given a formal job classification at that time. When plaintiff was later classified, in the latter half of 1981, her classification was based on her salary, instead of the usual Johnson & Johnson practice of classifying employees according to their duties. See Plaintiff’s Dep., Dkt. 72, at 13-14; Dkt. 17, at 30-31; Dkt. 58, at 3-4; Beebe Dep., Dkt. 71, at 14. As a result, plaintiff was classified as an Office Manager at Level 9, a level appropriate for entry-level personnel in accounting or computer science, or an entry-level research assistant or computer programmer. Beebe Dep., Dkt. 71, at 28-29.

From the beginning of her employment at McNeilab plaintiff performed a variety of duties: payroll, accounting, bookkeeping, and general secretarial duties. Dkt. 42, at 1; Hauber Dep., Dkt. 33, at 11-12. In addition, plaintiff performed many of the functions of a purchasing agent, including purchasing capital equipment, raw materials, and office supplies. See Dkt. 42, at 2-4. In 1981, the company removed plaintiff from her accounting and bookkeeping functions because as part of those functions she reported directly to her husband, the plant manager. Stratmeyer Dep., Dkt. 16, at 12-13. The company replaced her with A1 Cox, a transferred accountant from McNeilab, who was classified at a Level 13 and received a much larger salary than plaintiff had. Plaintiff’s Dep., Dkt. 72, at 16-18.

In October, 1981, plaintiff was asked if she would assume the position of a Controlled Substance Officer (“CSO”), a new position that involved monitoring controlled substances. Hauber Dep., Dkt. 33, at 18-19. Company personnel prepared a job description of the position and agreed that the position should be classified at a Level 13. Id. at 15-16. Louise Beebe, a compensation specialist at McNeil Pharmaceuticals who was consulted on this matter, recommended that plaintiff immediately start receiving the minimum annual salary for a Level 13, $24,780. Beebe Dep., Dkt. 71, at 31; Hauber Dep., Dkt. 33, at 21. The Director of Operations at McNeil Pharmaceuticals rejected this recommendation and set plaintiff’s salary at $21,500, in purported reliance on a Johnson & Johnson policy prohibiting salary increases greater than twenty percent over the former salary. Hauber Dep., Dkt. 33, at 17-18; Stratmeyer Dep., Dkt. 16, at 33-34. That policy, however, was not binding on McNeilab management. Beebe Dep., Dkt. 71, at 26.

Plaintiff’s salary remained the same until she was terminated in October, 1982, despite 1) a company policy to increase to the minimum salary level for that position any salaries below that minimum as soon as possible, and 2) an increase of the Level 13 minimum to $27,258 on January 1, 1982. See Hauber Dep., Dkt. 33, at 23, and Ex. 1 thereto; Beebe Dep., Dkt. 71, Plaintiff’s Ex. 2, at 4-5. In addition, plaintiff did not receive the same merit bonuses or stock options that similarly situated males in the company received. Plaintiff’s Dep., Dkt. 72, at 42-47.

Plaintiff worked as a CSO until her termination on October 31, 1982, and continued to perform the purchasing duties she had as an Office Manager. Hauber Dep., Dkt. 33, at 19. Plaintiff developed the CSO position during her tenure at McNeilab. Plaintiff’s Dep., Dkt. 17, at 50. In July, 1982, plaintiff was told by her husband, the plant manager, that she would have to leave the company because of its anti-nepotism policy. Id. at 94. Plaintiff agreed to leave as soon as her replacements were hired. After discussion, the company decided to hire two persons to replace plaintiff: one Purchasing Manager and one CSO. Hauber Dep., Dkt. 33, at 58-60. A top company manager stated at the time that a male should be hired as CSO because the CSO would have to deal with foreign countries whose businessmen would communicate better with males. Id. at 56-57.

The persons who took over plaintiff’s functions were hired in October, 1982, and classified at Level 13. The new Purchasing Manager, Blaine Tilghman, started at a salary of $32,700, which equaled his previous salary. Tilghman Dep., Dkt. 34, at 4; App., Dkt. 63A, at 24. The new CSO, David Connor, started at a salary of $37,-500, which approximately equaled his previous salary. Id. at 54. Plaintiff worked with Connor and Tilghman for about two weeks before she left the company, and she helped train them. Plaintiff’s Dep., Dkt. 17, at 52, 57-58; Connor Dep., Dkt. 35, at 6. Plaintiff left the company on October 31, 1982.

After leaving, plaintiff was paid in two lump sums, at an annual rate of $21,500, for the remainder of her three-year contract term, which expired in September, 1983. Plaintiff’s Dep., Dkt. 17, at 24. Although plaintiff discussed the possibility of executing a release when she was leaving the company, she never agreed to a release and did not execute the release she received from the company in January, 1983, after she had received the balance due her under her three-year contract. Id. at 96-99; Hauber Dep., Dkt. 33, at 45.

On May 20, 1983, plaintiff filed a written charge against FSCC with the Anti-Discrimination Section of the Delaware Department of Labor. Plaintiff brought this action against FSCC on June 1, 1983. Amended Complaint, Dkt. 25, Ex. A. Thereafter the Equal Employment Opportunity Commission sent a right-to-sue letter to plaintiff on January 13, 1984.

II. Defendant’s Motion For Summary Judgment

After the completion of discovery, defendant filed a motion for summary judgment, alleging it was entitled to summary judgment as a matter of law on a variety of legal theories. Specifically, defendant contends: 1) plaintiff is estopped from pursuing her sex-discrimination action because she entered into an employment agreement with defendant which defendant did not breach; 2) plaintiff released defendant from liability for any claim she had against defendant; 3) plaintiff’s Equal Pay Act and Title VII claims are barred by the applicable statutes of limitations; 4) defendant is entitled to summary judgment on the Equal Pay Act claim because plaintiff did not perform work substantially equivalent to her male successors, and because her wages were lower for reasons other than sex; and 5) defendant is entitled to summary judgment on the Title VII claim because there is no evidence that defendant discriminated against plaintiff on the basis of her sex. These contentions will be considered seriatim.

A. Estoppel

Defendant’s first contention is that plaintiff is estopped from asserting her claims because she entered into an employment agreement with defendant, and defendant did not breach that agreement. Defendant cites no cases in support of its argument, nor could it. Plaintiff is not alleging breach of contract; she contends that defendant discriminated against her on the basis of her sex, in violation of her federal statutory rights. A party does not waive her right to be free from sex discrimination merely by entering into an employment contract. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974). If that were true, virtually every plaintiff claiming sex discrimination in employment would be estopped, because every victim of sex discrimination in employment is under some sort of contract.

B. Release

Defendant contends plaintiff is barred from pursuing this action because she allegedly entered into a release of all claims against defendant around the time she stopped working for defendant. Given that defendant has moved for summary judgment, the Court must view the facts in the light most favorable to plaintiff, the party opposing the motion. Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977). Using this standard, it is clear that plaintiff’s action is not barred because she never entered into a release — she did not sign or agree to one before she left McNeilab, and she never signed the release sent to her. Plaintiff’s Dep., Dkt. 17, at 96-99.

Defendant argues a release can be implied from the acts of the parties and the circumstances of the case. Defendant alleges that plaintiff’s acceptance of payments for the balance of her employment contract binds her to the terms of the release defendant sent her after she had received her last contractual payment. Obviously, plaintiff's acceptance of the money cannot constitute ratification of the written release, because she had never seen the written release at the time she accepted the money. Moreover, the circumstances do not demonstrate that the money she received was consideration for the release, given that defendant apparently was contractually bound to pay her for the remainder of the three-year employment agreement. Finally, a release of plaintiff's sex-discrimination claim cannot be construed from the circumstances, because the only discussion of a release was in vague and general terms. In light of the close scrutiny given to settlements and releases of discrimination claims, see Alexander v. Gardner-Denver Co., 415 U.S. 36, 40 n. 15, 94 S.Ct. 1011, 1015 n. 15, 39 L.Ed.2d 147 (1974), it would be inappropriate to construe a vague discussion of a release into a bar of plaintiff’s action. Accordingly, defendant’s motion for summary judgment on the basis of a release will be denied.

C. Equal Pay Act — Statute of Limitations

Defendant’s third argument is that plaintiff’s claim under the Equal Pay Act is barred by the applicable statute of limitations. Defendant contends plaintiff’s cause of action, as alleged in her complaint, accrued on August 22, 1980, the first day defendant allegedly provided plaintiff with unequal pay. Because plaintiff filed her suit on June 1, 1983, more than two years after her cause of action accrued, plaintiffs claim is barred.

Since the Equal Pay Act is an amendment to the Pair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., most Equal Pay Act suits are governed by the two-year statute of limitations applicable to FLSA actions. See 29 U.S.C. § 255(a). However, a three-year statute of limitations applies if the cause of action arises out of a “willful” violation of the FLSA. Id. Plaintiff contends that defendant’s violation was willful, and the longer limitations period applies.

The courts have widely debated the definition of “willful” for statute of limitations purposes, and the divergence of views has been noted but not resolved by the Supreme Court. No consensus on the definition has emerged. See Trans World Airlines, Inc. v. Thurston, — U.S. -, 105 S.Ct. 613, 624-26, 83 L.Ed.2d 523 (1985); Kneisley v. Hercules, Inc., 577 F.Supp. 726, 736-38 (D.Del.1983). I decline to add another voice to that debate, because I find that plaintiff’s suit is timely on another ground.

Plaintiff contends defendant’s conduct of discriminating against her in compensation was a continuing violation that existed from August 22, 1980, until plaintiff left McNeilab on October 31, 1982. Under the continuing-violation doctrine, if defendant engages in a continuing course of prohibited conduct and plaintiff’s action is timely as to any act of that course of conduct, plaintiff will be allowed to litigate statutory violations within the limitations period and all preceding violations that are part of that course of conduct. See Jenkins v. Home Ins. Co., 635 F.2d 310, 311-12 (4th Cir.1980) (per curiam); Mucci v. Moonachie Bd. of Education, 37 Fair Empl.Prac.Cas. (BNA) 65, 65-66 (D.N.J. 1985); cf. Bronze Shields, Inc. v. New Jersey Dep’t of Civil Serv., 667 F.2d 1074, 1080-82 & nn. 16 & 17 (3d Cir.1981) (recognizing continuing-violation doctrine in Title VII cases), cert. denied, 458 U.S. 1122, 102 S.Ct. 3510, 73 L.Ed.2d 1384 (1982). Plaintiff must identify a statutory violation that occurred during the limitation period, however; her action is not timely if the only acts occurring within the limitations period are the “inevitable, but neutral, consequences of the alleged discriminatory practice.” Id. at 1083.

Applying the continuing-violation doctrine to this case, plaintiff’s action is timely under the two-year limitations period if she can identify any violation of the Equal Pay Act which occurred on or after June 1, 1981. Plaintiff has alleged and produced evidence of several violations during this period — defendant’s decision to pay her less than the Level 13 minimum salary, defendant’s failure to give her bonuses and other perquisites of the position, and defendant’s failure to raise her salary as CSO promptly in order to reach the Level 13 minimum. Since alleged Equal Pay Act violations occurred during the limitations period, plaintiff’s action is timely as to those violations and any preceding violations that are part of the continuing violation. See Mucci v. Moonachie Bd. of Ed., supra; Strong v. Dempolis City Bd. of Education, 515 F.Supp. 730, 735 (S.D.Ala. 1981); Lamphere v. Brown Univ., 685 F.2d 743, 747 (1st Cir.1982); cf. Croker v. Boeing Co. (Vertol Div.), 662 F.2d 975, 990 (3d Cir.1981) (Title VII); Brown v. Brown, 528 F.Supp. 686 (D.N.J.1981) (same).

Defendant contends whatever unequal pay plaintiff received is simply the effect of the alleged misclassification in August, 1980. However, the allegations set forth above, if true, were independent violations of the Equal Pay Act and not just the inevitable effects of plaintiff’s initial classification. In sum, plaintiff’s action is timely under the Equal Pay Act’s two-year statute of limitations.

D. Title VII — Statute of Limitations

Defendant also contends that plaintiff’s Title VII cause of action is barred by the applicable statute of limitations. As this Court held in Ferguson v. E.I. duPont de Nemours & Co., 560 F.Supp. 1172 (D.Del.1983), a Title VII plaintiff “must have filed a charge of discrimination with the state agency within 240 days of a discriminatory act in order to have filed timely.” Id. at 1190. Since plaintiff filed her charge with the Delaware Department of Labor on May 20,1983, defendant contends her Title VII claim is untimely as to any act or practice which occurred before September 22, 1982. Because alleged violations occurred before September 22, 1982, defendant claims that plaintiffs action is time-barred or, in the alternative, that her action is timely only as to acts occurring between September 22, 1982, and October 31,1982, plaintiffs last day of employment.

In response, plaintiff contends defendant’s discriminatory compensation practices were a continuing violation of Title VII. Under plaintiff’s theory, defendant’s payment of discriminatory compensation between September 22 and October 31 was a violation within the limitations period and enables plaintiff to litigate preceding conduct that was a part of this continuing violation. The continuing-violation doctrine has been recognized repeatedly in Title VII cases. See, e.g., Bronze Shields, 667 F.2d at 1080-82 & nn. 16 & 17. An allegation of discrimination in compensation has been recognized as one of the most obvious examples of a continuing violation. See Lamphere v. Brown Univ., 685 F.2d 743, 747 (1st Cir.1982); Jenkins v. Home Ins. Co., 635 F.2d 310, 312 (4th Cir.1980) (per curiam); Satz v. ITT Fin. Corp., 619 F.2d 738, 743-44 & n. 10 (8th Cir.1980); Mucci v. Moonachie Bd. of Ed., supra. It follows that plaintiff’s action is timely because within 240 days of defendant’s allegedly discriminatory act of paying her low wages on account of her sex, plaintiff filed with the Delaware Department of Labor a charge of discrimination.

Defendant’s contention that plaintiff is time barred because she felt she was a victim of discrimination in August, 1980, is unimportant. The continuing-violation doctrine recognizes that past discriminatory acts have occurred outside the limitations period, and plaintiff’s awareness of those acts is irrelevant. The crucial requirement is that plaintiff file charges within 240 days of the last — not the first — discriminatory act in a course of conduct. Plaintiff will be allowed to litigate all claims that are part of that continuing violation, because she filed within 240 days of the end of that violation.

E. Merits of Plaintiffs Equal Pay Act Claims

Defendant next contends it is entitled to summary judgment on the merits of plaintiff’s Equal Pay Act claim. The Act provides, in pertinent part:

No employer ... shall discriminate ... between employees on the basis of sex by paying wages to employees ... at a rate less than the rate at which he pays wages to employees of the opposite sex ... for equal work or jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to ... a differential based on any other factor other than sex____

29 U.S.C. § 206(d). To prevail on an Equal Pay Act claim, plaintiff must show she performed a job equal to a job performed by one or more males. See Angelo v. Bacharach Instrument Co., 555 F.2d 1164 (3d Cir.1977). The controlling question is whether the content of the two jobs at issue is substantially equal. See id. at 1171. A “threshold requirement” in this analysis is “that the jobs to be equated be substantially the same.” Id. at 1173. In essence, defendant contends plaintiff did not have a job equal to that of any male employees.

According to plaintiff, her job was substantially equal to that performed by the two males allegedly hired to replace her — Blaine Tilghman, the new Purchasing Manager, and David Connor, the new CSO. The undisputed facts demonstrate that plaintiff did not have a job substantially equivalent to Tilghman’s job as Purchasing Manager. The clearest evidence of this is that Tilghman is a full-time employee, whereas plaintiff performed purchasing duties in addition to her other responsibilities. Moreover, Tilghman was responsible for implementing proper purchasing procedures for a company in its infancy. Tilghman Dep., Dkt. 34, at 6-9. While plaintiff may have performed some similar tasks, such as placing orders and leasing equipment, such rudimentary comparisons of tasks are unpersuasive. See Angelo v. Bacharach Instrument Co., 555 F.2d at 1171-72. The level of responsibility that Tilghman had and the scope of his job are quite different from the job performed by plaintiff. Thus, the two jobs are very different in content, and plaintiff cannot prevail on her attempt to equate her job with Tilghman’s.

The better comparison is between plaintiffs job and that of David Connor, the new CSO. Plaintiff helped to create the CSO position and to establish procedures that were later followed by Connor. CSO was her primary responsibility from October, 1981, to October, 1982, although she continued to perform purchasing functions. Plaintiff, and later Conner, were both responsible for insuring the plant’s compliance with controlled-substances regulations and for conducting business with foreign suppliers. However, Connor was responsible for developing procedures while the company expanded production, and he is accountable for a much greater volume of controlled substances. See Connor Dep., Dkt. 35, at 11. While it may be true, as plaintiff alleges, that her job required greater skill and effort because she had to prepare the plant for initial production and establish procedures, that does not prove job equality but only that their jobs were different. Connor’s job requires much more time and has a greater level of responsibility. In sum, plaintiff has not identified a male employee who performs the same job that she performed, and her Equal Pay Act claim cannot survive without such a comparison. Accordingly, summary judgment will be granted to defendant on Count I of plaintiff’s complaint.

F. Merits of Plaintiffs Title VII Claim

Defendant’s final contention is that plaintiff’s Title VII claim must be dismissed because there is no evidence that defendant discriminated against plaintiff on the basis of her sex. Plaintiff’s Title VII claim is based on two theories: first, that she received unequal pay for equal work; second, that she was treated differently from similarly situated males in regard to compensation, bonuses, and other terms and conditions of employment. Since the first theory is identical to plaintiff’s Equal Pay Act theory, it can be dismissed on the same grounds. However, plaintiff’s second theory of disparate treatment merits full consideration.

The heart of plaintiff’s Title VII claim is that she was discriminated against because of her sex, i.e., that she was treated differently than similarly situated males, and that this treatment was the result of defendant’s intentional discrimination. See Ferguson v. E.I. duPont de Nemours, 560 F.Supp. 1172, 1192 (D.Del.1983). The record and the inferences that can be drawn therefrom demonstrate that plaintiff was treated differently from the males at McNeilab. Unlike the males, she was not initially classified according to her duties, and because of that classification, she did not receive full compensation for her duties. When plaintiff became CSO, she was paid less than the minimum salary for her level, and defendant failed to give her a prompt raise in order to bring her to the Level 13 minimum. Both of these decisions were contrary to defendant’s policies, which were followed for males, and they were also contrary to the recommendations of defendant’s personnel. Moreover, plaintiff never received a merit bonus, although similarly situated males received merit bonuses. Finally, the replacement of plaintiff by two males — Tilghman and Connor — who were paid much more than plaintiff also supports an inference of discrimination, even though her job was not sufficiently similar to either of their jobs to support an Equal Pay Act claim. Cf. International Union of Elec., Radio, & Mach. Workers v. Westinghouse Elec. Corp., 631 F.2d 1094 (3d Cir.1980) (Title VII prohibits intentional discrimination in compensation which is outside Equal Pay Act), cert. denied, 452 U.S. 967, 101 S.Ct. 3121, 69 L.Ed.2d 980 (1981).

All of these facts are sufficient to present a factual issue as to whether defendant discriminated against plaintiff because of her sex. If the facts presented are true and are not rebutted or explained by defendant, the factfinder could find that defendant violated Title VII and discriminated against plaintiff. Accordingly, defendant’s motion for summary judgment on this ground will be denied.

III. Conclusion

It has been held that plaintiff’s claims are not barred by estoppel, release, or the applicable statute of limitations, and that a factual issue exists which precludes summary judgment on plaintiff’s Title VII claim. It has also been held that plaintiff cannot prevail on her Equal Pay Act claim because she did not have a job equal to a job held by a male. An order will be entered granting defendant’s motion for summary judgment on Count I and denying defendant’s motion on the other grounds alleged.


author: BELL, District Judge.

text:
    Julius FERRARI, Administrator, et al., Plaintiffs, v. WOODSIDE RECEIVING HOSPITAL, et al., Defendants.
    No. C84-2739-Y.
    United States District Court, N.D. Ohio, E.D.
    Dec. 18, 1985.

      Daniel L. Rossi, Co., L.P.A., Youngstown, Ohio, Ellen Simon Sacks, John D. Liber and Timothy A. Shimko, Spangenberg, Shibley, Traci & Lancione, Cleveland, Ohio, for plaintiffs.
    David J. Kovach, Asst. Atty. Gen., Cleveland, Ohio, for defendants.
   ORDER

BELL, District Judge.

The plaintiff in this cause of action is Julius Ferrari, Administrator of the estate of his deceased son, John Ferrari. On August 29, 1984, Mr. Ferrari filed complaint here - alleging that his son’s constitutional rights were violated while John was a patient at the Woodside Receiving Hospital. Plaintiff sets forth his claim under the jurisdictional standards of 42 U.S.C. § 1983.

In its original state, the complaint contained the names of the following defendants: Woodside Receiving Hospital, the State of Ohio, Department of Mental Health and Mental Retardation, and Drs. Muhammed Khan and Gust Boulis. Both physician-defendants were employees of the defendant hospital. On November 30, 1984, however, plaintiff amended his complaint, dismissing Woodside and the Department. of Mental Health and Mental Retardation as defendants. John Doe, the administrator of the hospital facility was added as a party defendant. Each of the remaining defendants, Drs. Khan and Boulis, are sued in their individual and not in their official capacities.

Presently pending before the court is a motion filed on behalf of the present defendants, which motion seeks an order dismissing this action pursuant to the provisions of Rule 12(b), Federal Rules of Civil Procedure. The defendants claim that the amended complaint fails to state a claim against them which can be prosecuted in this forum. When considering a motion to dismiss, the amended complaint must be construed in the light most favorable to the plaintiff and its allegations must be accepted as being true. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The action should not be dismissed unless it appears from the allegations in the complaint that even if accepted as true, the plaintiff would not be entitled to relief in this forum. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

According to the allegations of the amended complaint, John Ferrari was admitted to Woodside Receiving Hospital in July, 1983 for the treatment of a mental disorder. While there, the patient developed a blood clot which, in turn, led to his untimely death on September 22, 1983. During the time period encompassed by his stay at the hospital, John was under the care of and was treated by Drs. Khan and Boulis.

Plaintiff contends that the medical care received by decedent was inadequate, so much so that his constitutional rights were violated by the doctors named as defendants. Specifically, plaintiff states that the judgment exercised by the defendants during the process of diagnosis and treatment of John’s physical disorder departed substantially from accepted professional standards. In this way, it is asserted, the conduct of the physicians violated their patient’s constitutional rights and contributed directly to John’s death. See Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982).

In support of the motion to dismiss, defendants argue several alternative legal reasons. First, defendants contend that plaintiff is precluded from bringing this action in this forum by virtue of the provisions of § 2743.02 of the Ohio Revised Code. Second, defendants contend that they are immune from plaintiff’s prosecution of the instant action because all of the allegations contained in plaintiff’s amended complaint arise from and have reference to the defendants’ official acts. As a third and final basis for their motions, defendants argue that consistent with those principles enunciated in Wilson v. Beebe, 770 F.2d 578 (6th Cir.1985), plaintiff has no cause of action for an alleged constitutional violation in the federal forum when an adequate post deprivation remedy is available to plaintiff in the state court system.

The first issue raised — one relating to the question of jurisdiction — is that to which attention is now directed. As a beginning to any discussion of this issue, it is well to note that on February 24, 1984, plaintiff Ferrari filed a complaint in the Court of Claims of Ohio naming The State of Ohio, Department of Mental Retardation, Woodside Receiving Hospital, Dr. Mu-hammed Khan and Dr. Gust Boulis as defendants. As heretofore stated, the action presently before this court was filed on August 19, 1984. Also to be noted is the fact that plaintiff in the instant cause originally sought to sue the same parties in this forum. Such an action is precluded, as it impacts upon Woodside and the State of Ohio, by the State’s Eleventh Amendment immunity from suit. The Eleventh Amendment provides:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

The language of the Eleventh Amendment has been construed by the Supreme Court as an “affirmation that the fundamental principle of sovereign immunity limits the grant of judicial authority in Art. III.” Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 98, 104 S.Ct. 900, 909, 79 L.Ed.2d 67 (1984). This affirmance of sovereign immunity was recognized in Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), to provide that a federal court could not consider an action filed by a citizen against his own state. Since the plaintiff was unable, consistent with the dictates of the Eleventh Amendment, to maintain an action in federal court the plaintiff elected to file a negligence action under state law against the State of Ohio and Woodside Receiving Hospital in the Ohio Court of Claims.

The Eleventh Amendment bar to an action by a citizen against a state has been restricted to such actions where the plaintiff seeks to recover damages payable out of state funds. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.3d 662 (1974); Foulkes v. Ohio Dept. of Rehabilitation & Correction, 713 F.2d 1229 (6th Cir.1983). This bar is not absolute, however, and may be expressly waived by a sovereign entity such as the State of Ohio. Pennhurst State School & Hospital v. Halderman, supra, 465 U.S. at 99, 104 S.Ct. at 909, 79 L.Ed.2d at 77. In the absence of this consent to be sued, the Eleventh Amendment bar will extend to suits against a state, its agencies and the state officers or employees in their official capacity. Id. at 100, 104 S.Ct. at 910„ 79 L.Ed.2d at 78. Also see: Florida Dept. of Health and Rehabilitative Services v. Florida Nursing Home Ass’n, 450 U.S. 147, 101 S.Ct. 1032, 67 L.Ed.2d 132 (1981); Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978); Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). The Eleventh Amendment bar does not, however, preclude suits for money damages against state officers and employees in their individual capacities. Scheuer v. Rhodes, supra 416 U.S. at 237-38, 94 S.Ct. at 1690, 40 L.Ed.2d at 97 (1974); Great Northern Life Insurance Co. v. Read, 322 U.S. 47, 50-51, 64 S.Ct. 873, 877, 88 L.Ed. 1121, 1123-25 (1944).

In Ohio, the state has not totally waived / its sovereign immunity. Instead, the state I has chosen to restrict the forum in which / suits can be brought against it. “The / Court of Claims Act limits Ohio’s waiver of immunity to claims determined in the Court of Claims. There is no waiver with respect to actions pending in federal or other state V"' courts.” Ohio Inns, Inc. v. Nye, 542 F.2d 673, 681 (6th Cir.1976). Also see: Harley v. Carman, 585 F.Supp. 1353 (N.D.Ohio 1984).

The Ohio Court of Claims Act, § 2743.-02(A) of the Ohio Revised Code, sets forth Ohio’s limited waiver of sovereign immunity as follows:

(A)(1) The state hereby waives its immunity from liability and consents to be sued, and have its liability determined, in the court of claims created in this chapter in accordance with the same rules of law applicable to suits between private parties, except that the determination of liability is subject to the limitations set forth in this chapter and except as provided in division (A)(2) of this section. To the extent that the state has previously consented to be sued, this chapter has no applicability.
Except in the case of a civil action filed by the state, filing a civil action in the court of claims results in a complete waiver of any cause of action, based on the same act or omission, which the filing party has against any state officer or employee. The waiver shall be void if the court determines that the act or omission was manifestly outside the scope of the officer’s or employee’s office or employment or that the officer or employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner. (Emphasis added.)

The defendants contend that pursuant to this statute, the plaintiff’s filing of a negligence action against the State of Ohio is “a complete waiver of any cause of action based on the same act or omission, which the filing party has against any state officer or employee.” § 2743.02 of the Ohio Revised Code. Plaintiff, according to defendant’s contention, has voluntarily waived any right to bring his action in the federal forum by reason of his choosing to sue the hospital employees in the state Court of Claims pursuant to § 2743.02(A) of the Ohio Revised Code.

The plaintiff’s action in the Court of Claims concerns the alleged negligent acts and practices of various state employees, including Drs. Khan and Boulis, which actions proximately caused John Ferrari’s death. Hence, if the language in § 2743.-02(A) of the Ohio Revised Code is to be given effect, this court must find that the plaintiff voluntarily waived a federal cause of action in favor of an action against the State of Ohio.

Plaintiff argues that to interpret the language in the state statute as constituting a waiver of a federal cause of action would, in essence, permit a state legislature to define the extent of a federal court’s subject matter jurisdiction over dep- — ^ rivations of constitutional rights. The \ plaintiff asserts, and this court agrees, that no state may properly legislate limits to a federal court’s subject matter jurisdiction over claims arising under federal law. The terms of Article III of the United States Constitution give subject matter jurisdiction. Such jurisdiction is defined by both that constitution and the Congress of the United States. The state statute in question does not limit or infringe upon the court’s subject matter jurisdiction; instead, the statute defines the state’ limited waiver of its immunity under the Eleventh Amend- . ment. Section 2743.02(A) addresses ex- \ pressly the extent to which the state con- \ sents to waive its sovereign immunity under the Eleventh Amendment. Should a state determine, by legislative action, to limit its waiver of immunity to suits brought in a specific forum or to place other rational conditions on the extent of that waiver, the state may do so. Ohio Inns, Inc. v. Dye, supra, 542 F.2d at 681. “A State’s constitutional interest in immunity encompasses not merely whether it may be sued, but where it may be sued.” (Emphasis in original.) Pennhurst State School & Hospital v. Halderman, supra, 465 U.S. at 99, 104 S.Ct. at 909, 79 L.Ed.2d at 78.

The interpretation above is not contrary to decisions of the United States Supreme Court which speak to the right of individual states to limit Eleventh Amendment immunity waivers to the end that claimants against the state be required to bring such claims in the state court system. See: Great Northern Life Insurance Co. v. Read, supra 322 U.S. at 55, 64 S.Ct. at 882, 88 L.Ed. at 1127; Smith v. Reeves, 178 U.S. 436, 20 S.Ct. 919, 44 L.Ed. 1140 (1900).

In this action, the plaintiff voluntarily chose to bring an action in the Ohio Court of Claims against the state. The plaintiff has no legal right to sue a sovereign entity such as Ohio absent the state’s waiver of immunity in section 2743.02(A). This voluntary act on behalf of the plaintiff of choosing to sue the State of Ohio, as a matter of law, demonstrates an acquiescence by the plaintiff to proceed within the provision of section 2743.02(A) and waive any cause of action that may be brought individually in this court against the employees of the state based factually on the same acts or omissions alleged in the Court of Claims suit. For this reason, this court must conclude that the plaintiff voluntarily waived any right to bring an action against the individual physicians for alleged constitutional violations, given the circumstance that plaintiff elected to sue the State of Ohio under the limitations and conditions imposed by the state legislature in its limited waiver of sovereign immunity and consent to be sued in the Court of Claims.

Having determined that the plaintiff has voluntarily waived any right to bring this action against the employees of the State of Ohio, the court need not address the other issues raised in the defendant’s motion to dismiss.

Accordingly, the defendants’ motion to dismiss the amended complaint is hereby granted at plaintiff’s costs. In the event it should be determined, at some later point in the proceedings in the Court of Claims, that the actions of the individual defendants Khan and Boulis were “manifestly outside the scope of the officer’s or employee’s office or employment, or that the officer or employee acted with malicious purpose, or bad faith or in a wanton or reckless manner” the claim now before this court may be reinstituted here. (§ 2743.-02(A)(1) of the Ohio Revised Code.)

IT IS SO ORDERED.


author: HUYETT, District Judge.

text:
    The FARFIELD COMPANY v. C.T. MAIN CONSTRUCTION, INC. and J. Scott Searway.
    Civ. A. No. 85-959.
    United States District Court, E.D. Pennsylvania.
    Dec. 18, 1985.

      Susan Freidman, Lancaster, Pa., for plaintiff.
    Charles F. Waskevich, Jr., Springfield, N.J., and Richard C. Low, Lancaster, Pa., for defendants.
   MEMORANDUM AND ORDER

HUYETT, District Judge.

Defendant J. Scott Searway, the former executive vice-president of defendant C.T. Main Construction Company, Inc., has moved to dismiss the complaint against him for lack of personal jurisdiction or, in the alternative, for insufficiency of service of process. As explained below, I find that Searway’s contacts with Pennsylvania were sufficiently extensive and deliberate to bring him within the ambit of its long-arm statute. In addition, I find that he was properly served, so I deny the motion to dismiss.

Plaintiff Farfield Company has sued defendants for defamation arising out of statements made by Searway acting as Main’s agent. Defendants, both of whom are Maine residents, first had contact with Pennsylvania in 1982 when Main became the construction manager for the Safe Harbor Hydroelectric Facility Project at Conestoga, Pennsylvania. Searway, who was in charge of the expansion project, visited the Pennsylvania site from time to time.

Shortly after Main took charge of the project, Farfield sought to become a subcontractor on the project, but its bid was rejected. In 1983, two reporters from Lancaster, Pennsylvania — one from a newspaper and the other from the local television station — telephoned Searway at his Maine office, asking why Farfield’s bid had been rejected. On each of those two occasions, Searway responded to the reporters’ questions by saying that Farfield had not been selected because it lacked power plant experience. Those comments are the basis for this suit.

This action began in the Court of Common Pleas for Lancaster County and was later removed to federal court. As permitted by Pennsylvania law, the suit was commenced by filing with the prothonotary a praecipe for a writ of summons. Pa.R. Civ.P. 1007(1). The writs both for Searway and Main were then served at the Pennsylvania project site.

I. Personal Jurisdiction

Searway is subject to suit in Pennsylvania if his actions fall within the purview of the state’s long-arm statute and if he has sufficient “minimum contacts” with Pennsylvania to satisfy the requirements of due process. If later shown to be defamatory, Searway’s statements to the reporters would bring him under the reach of that part of the long-arm statute allowing jurisdiction over those “[cjausing harm or tortious injury in this Commonwealth by an act or omission outside this Commonwealth.” 42 Pa.Cons.Stat.Ann. § 5322(a)(4) (1981). Furthermore, the statute provides for the exercise of jurisdiction over non-residents “to the fullest extent allowed under the Constitution of the United States.” Id. § 5322(b). My inquiry, then, need focus only on whether it offends the due process clause for Farfield to summon Searway to court in Pennsylvania in this circumstance.

The fourteenth amendment limits the power of states to render valid personal judgments against non-residents. It requires that there be a “relationship among the defendant, the forum, and the litigation.” Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 2580, 53 L.Ed.2d 683 (1977). It injects considerations of “fair play and substantial justice” into the determination of whether an individual’s “minimum contacts” are enough to give rise to jurisdiction. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). And it mandates that someone not be forced to defend a suit in a distant state unless he has had purposeful contact with that forum “such that he should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980).

The Supreme Court has recently interpreted these traditional strictures in the context of defamation actions, holding that publishers and reporters could be subject to suit in states to which they knowingly sent libelous stories — despite the defendants’ minimal personal contacts. Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984); Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984). These two decisions, Calder in particular, show that jurisdiction may properly be asserted over Searway here.

In Calder, two Florida reporters of the National Enquirer were sued in California for a story they had written and edited about Californian Shirley Jones. Although the publication circulated about 600,000 copies per week in California and was itself surely amenable to suit there, the reporters argued that they were not. The Supreme Court found that, notwithstanding the reporters’ minimal contacts with California, jurisdiction was warranted because “their intentional, and allegedly tortious, actions were expressly aimed at California.” Calder, 104 S.Ct. at 1487. They knew that their article “would have a potentially devastating impact upon [Jones], And they knew that the brunt of that injury would be felt by [her] in the State in which she lives and works.” Id. Under these circumstances, the Court said, the reporters should have reasonably foreseen being called into court “to answer for the truth of the statements made in their article.” Id.

In this case, there is no dispute that Searway knew to whom he was speaking— reporters from Farfield’s hometown. There can, thus, be no dispute that Sear-way realized that his comments would be published in Pennsylvania and would become known to current and potential business associates of Farfield. Searway maintains that he should not be called to Pennsylvania to account for his statements because he did not initiate the contact with the reporters. Although Searway may not have gone out of his way to broadcast his comments in Pennsylvania, he nonetheless was fully aware of his potential audience when he spoke. What the Supreme Court said in Calder applies with equal force here. Assuming for the moment that his statements were defamatory, Searway must have realized that he was injuring Farfield, and that the injury would be felt especially in Pennsylvania. Accordingly, it is neither surprising nor unfair for Farfield to demand that Searway answer its claim in Pennsylvania.

II. Service of Process

Searway complains that service of process was insufficient because' he was not personally served nor did he receive a writ by mail at his home. Farfield contends, on the other hand, that serving Sear-way at the Conestoga project site fulfilled the requirement of Pennsylvania law. I agree with Farfield.

Federal Rule of Civil Procedure 4(c)(2)(C)(i) authorizes service of summons “pursuant to the law of the State in which the district court is held.” I, therefore, need to examine whether serving Searway at Main’s work site is permissible in Pennsylvania. According to Pennsylvania Rule of Civil Procedure 2079(a)(2), non-residents may be served by the sheriff “handing an attested or certified copy of the process ... at any office or usual place of business of the defendant, to the agent, clerk or person for the time being in charge thereof.” If the Conestoga site qualifies as Searway’s “office or usual place of business,” service is thus proper under Pennsylvania law.

The test set down by the Pennsylvania Supreme Court is whether Searway had “more proprietary responsibility and control over the business than that possessed by the average employee.” Pincus v. Mutual Assurance Co., 457 Pa. 94, 99, 321 A.2d 906, 910 (1974). Searway acknowledges that he was the Main official in charge of the Conestoga project and that he was an executive vice-president of Main. As such, he surely possessed authority over the site, so that service is appropriate under Rule 2079.

Furthermore, Searway does not claim that he never received the summons or never had notice of the suit. In fact, he could not so claim because his attorney has filed papers on his behalf, and he has appeared in Pennsylvania for the taking of his deposition. The basis purpose of Rule 2079 — to ensure that defendants actually receive notice of actions filed against them — has thus been met here.


author: RICE, District Judge.

text:
    Gregory Dennis NEELEY, Petitioner, v. Melvin L. CASEY, et al., Defendants.
    No. C3-82-054.
    United States District Court, S.D. Ohio, W.D.
    Dec. 18, 1985.

      Steven M. Cox, Dayton, Ohio, for petitioner.
    Richard David Drake, Asst. Atty. Gen., Columbus, Ohio, for defendant, State of Ohio.
    Kenneth R. Pohlman, Asst. Pros. Atty., Dayton, Ohio, for defendant, Melvin L. Casey.
   DECISION AND ENTRY DISMISSING PETITION FOR WRIT OF HABEAS CORPUS; STAY VACATED; TERMINATION ENTRY

RICE, District Judge.

Petitioner is before the Court on his Petition for Writ of Habeas Corpus (Doc. # 1), arguing that the sentence imposed upon him by the Common Pleas Court of Montgomery County, Ohio, Judge John M. Meagher presiding, violated the Cruel and Unusual Punishment Clause of the Eighth Amendment. See Entry Requesting Respondent to File Supplemental Return of Writ Within 30 Days (Doc. # 7). Petitioner was convicted, upon a plea of no contest, of one count of aggravated trafficking in drugs and one count of trafficking in drugs. He was sentenced to concurrent terms of eighteen months to two years, including eighteen months of “actual incarceration” under Ohio Revised Code §§ 2925.03(C)(4) and 2925.01(D), and six months to five years, including six months of “actual incarceration” under Ohio Revised Code §§ 2925.03(D)(3) and 2925.01(D). Because the Court, for the reasons set forth below, finds that these sentences do not violate the Eighth Amendment’s prohibition of Cruel and Unusual Punishment, or Petitioner’s due process or equal protection rights, the Petition for Writ of Habeas Corpus is hereby dismissed and the Court’s Order Staying Execution of the Sentence (Doc. # 3) is vacated.

In Solem v. Helm, the Supreme Court held that the Cruel and Unusual Punishment Clause of the Eighth Amendment imposes a requirement of proportionality on felony imprisonment sentences:

In sum, we hold as a matter of principle that a criminal sentence must be proportionate to the crime for which the defendant has been convicted. Reviewing courts, of course, should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes, as well as to the discretion that trial courts possess in sentencing convicted criminals. But no penalty is per se constitutional. As the Court noted in Robinson v. California, 370 U.S. [660], at 667, [82 S.Ct. 147, at 1421, 8 L.Ed.2d 758 (1962)] a single day in prison may be unconstitutional in some circumstances.

463 U.S. 277, 290, 103 S.Ct. 3001, 3009-10, 77 L.Ed.2d 637 (1983) (footnote omitted). The Court further held that a court’s analysis of proportionality “should be guided by objective criteria; including (i) the gravity of the crime and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.” Id. at 292, 103 S.Ct. at 3011. However, the district court’s reviewing role in a habeas action, sitting as an “appellate” court, is limited:

Absent specific authority, it is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence; rather, in applying the Eighth Amendment the appellate court decides only whether the sentence under review is within constitutional limits. In view of the substantial deference that must be accorded legislatures and sentencing courts, a reviewing court rarely will be required to engage in extended analysis to determine that a sentence is not constitutionally disappropriate.

Id. at 290, n. 16,103 S.Ct. at 3009-10, n. 16.

The Court’s analysis of the proportionality of Mr. Neeley’s sentence here begins with the third prong of the test articulated in Solem v. Helm: a comparison with sentences imposed for the same .crime in other jurisdictions. For purposes of this analysis, the Court will accept as true Petitioner’s contention that “said sentence was imposed for the offenses of possessing less than 360 grams of methaqualone and less than 360 grams of librium [and] that he has no prior criminal record____” Memorandum in Support of Petition for Writ of Habeas Corpus (Doc. # 6) at 2. However, the Court notes that O.R.C. § 2925.03, under which the Petitioner was convicted, implies from possession of the requisite amount that one is trafficking in that drug.

The Court’s examination of the statutory penalties for possession with intent to distribute methaqualone in other jurisdictions indicates that Ohio’s statutory penalty, as applied to Mr. Neeley, is not disproportionate. Under Federal law, possession with intent to distribute is punishable by imprisonment of no more than fifteen years. See 21 U.S.C. § 841(b)(1)(B) (1982); see also 21 C.F.R. § 1308.12(e) (1985) (classifying methaqualone as a Schedule I drug). In Indiana, the statute imposes a jail sentence of from one to four years, see Ind.Code §§ 35-48-4-7 and 35-50-2-7 (1976), in Kentucky, one to five years, see Ky.Rev.Stat. Ann. § 218A.990(2)(a) (1984); 901 Ky.Admin.Reg. 1:020(1) (1975) (methaqualone a Schedule II substance), in Michigan up to seven years, see Mich.Comp. Laws Ann. §§ 333.7214(d) § .7401(2)(b) (1967), and in California, two to ten years, see Cal. Health & Safety Code § 11378(a) (1979). Each of these statutes provides for sentences in the same range as that Mr. Neeley received. Even the mandatory eighteen month element in Mr. Neeley’s sentence is not unique. See, e.g., Cal. Health and Safety Code § 11378(a) (two years mandatory). Thus, the third prong of the Solem test does not support Mr. Neeley’s Petition.

The second prong of this test, comparison of Mr. Neeley’s sentence with other Ohio offenses receiving the same sentences, also fails to support the Petition. Petitioner was convicted of a felony of the third degree. See O.R.C. § 1925.03(C)(4). Other felonies of the third degree in Ohio include safecraking, O.R.C. § 2911.31; theft of a motor vehicle, O.R.C. § 2913.-02(B); receiving a stolen motor vehicle, O.R.C. § 2913.51(B); bribery, O.R.C. § 2921.02; perjury, O.R.C. § 2921.11; tampering with evidence, O.R.C. § 2921.13; and impersonating an officer with an intent to commit a crime, O.R.C. § 2921.51. Given this range of non-violent crimes classed as felonies of the third degree, the Court cannot find it unreasonable to classify drug trafficking, such as Petitioner was convicted of, as a third degree felony.

Finally, the first prong of the Solem test also supports the Court’s conclusion that Petitioner’s sentence does not violate the Cruel and Unusual Punishment Clause of the Eighth Amendment. This prong requires the Court to consider gravity of the crime as against the harshness of the penalty. Of course, any prison sentence is a harsh penalty. However, in comparison with the life sentence without possibility of parole in Solem v. Helms, 463 U.S. at 282-83, 103 S.Ct. at 3005-06, the present sentence is light. Even the mandatory nature of the sentence does not appear harsh when compared with sentences the Supreme Court has held were not disproportionate. See, e.g., Hutto v. Davis, 454 U.S. 370, 102 S.Ct. 703, 70 L.Ed.2d 556 (1982) (40 year sentence for distribution for a small amount of marijuana). The Court also notes that Judge Meagher allowed Petitioner to serve his sentences concurrently rather than consecutively. See Petition (Doc. # 1) at 1. Further supporting the Court’s conclusion that Petitioner’s sentence is not disproportionately harsh is the serious nature of this offense. As Respondent points out, “Society has an overriding interest in deterring drug trafficking____” Doc. #9 at 3. For these reasons, the Court finds that the Ohio Legislature was not constitutionally prohibited from imposing an eighteen month mandatory sentence for possession of the quantity of controlled substances Petitioner admitted.

Petitioner also claims that the substances he was convicted of possessing, methaqualone and librium (chordiazepoxide), “have been unreasonably and arbitrarily classified for criminal punishment purposes.” Memorandum in Support of Petition for Writ of Habeas Corpus (Doc. # 6) at 3-4. The Court disagrees. “Legislatures have wide discretion in attacking social ills. ‘A State may direct its law against what it deems evil as it actually exists without covering the whole range of possible abuses, and it may do so nonetheless [despite the fact] that the forbidden act does not differ in kind from those that are allowed.’ ” National Organization for Reform of Marijuana Laws v. Bell, 488 F.Supp. 123, 137 (D.D.C.1980) (quoting Hughes v. Superior Court, 339 U.S. 460, 468, 70 S.Ct. 718, 723, 94 L.Ed. 985 (1950)). See also Vance v. Bradley, 440 U.S. 93, 111, 99 S.Ct. 939, 949-50, 59 L.Ed.2d 171 (1979) (“In an equal protection case of this type ..., those challenging the legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker.” (emphasis added)). The Court finds that Petitioner could not possibly meet this burden of proof, and thus rejects his claim that this statute denies him due process or equal protection of the law.

Therefore, the Petition for Writ of Habeas Corpus is dismissed and the stay order by the Court vacated.

The captioned cause is hereby ordered terminated upon the docket records of the United States District Court for the Southern District of Ohio, Western Division, at Dayton.


author: FUSTE, District Judge.

text:
    Salvador QUILES, Plaintiff, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.
    Civ. No. 85-0284 (JAF).
    United States District Court, D. Puerto Rico.
    Dec. 18, 1985.

      Torres & Santiago, Cristina Muñoz-Gandara, San Juan, Puerto Rico, for plaintiff.
    Wanda Rubianes Collazo, Asst. U.S. Atty., Hato Rey, Puerto Rico, for defendant.
   OPINION AND ORDER

FUSTE, District Judge.

This case requires us to decide whether to remand to the Secretary of Health and Human Services (“Secretary”) for reconsideration of a final decision denying a period of disability and disability insurance benefits pursuant to recently-promulgated regulations. See 50 Federal Register 35,065 (1985) (to be codified at 20 C.F.R. § 404 subpt. P app. 1), in light of 42 U.S.C.A. § 421 (West Supp.1985) (note).

The Moratorium on Mental Impairment Reviews, section 5 of the Social Security Disability Benefits Reform Act of 1984 (“Reform Act”), Pub.L. No. 98-460, 98 Stat. 1794, 1801-02, is a remedial provision designed to insure a realistic assessment of the ability of those mentally impaired to engage in substantial gainful activity. Said section prescribes a two-tier approach to be used in any disability determination regarding mental impairments. The first tier, paragraph (b)(1) and clause two of paragraph (c)(1), includes only termination of benefits cases. Thus, it presupposes a prior finding of mental disability. Under paragraph (b)(1), if the case falls under any one of two categories ((A) or (B)), the Secretary cannot review a previous finding of mental disability until August 28, 1985. The two categories are clearly spelled out in subparagraph (A) and (B) of paragraph (b)(1). Paragraph (b)(1) does not apply, however, in cases of fraud or where the individual is engaging in substantial gainful activity. Section 5(b)(2).

Clause two of paragraph (c)(1) comes into play only when paragraph (b)(1) applies and there has been a determination of no disability of an individual previously found to be mentally disabled. If these criteria are established, the Secretary “shall” review the case in light of the revised regulations. The court, therefore, should remand a tier one case.

Tier two, i.e., clause one of paragraph (c)(1), applies only to those persons found throughout the administrative process not mentally disabled (denial of benefits cases). Thus, if an individual has been found initially, on reconsideration, or after hearing, not mentally disabled between October 10, 1984 and prior to August 28, 1985, the Secretary “shall” revise that determination under the new criteria. Section 5(c)(1) cl. 1.

Paragraph (c)(3) is a “catch-all” provision for those who were diligent in reapplying for benefits under Title II or Title XVI. This provision is intended for the mentally impaired who were denied benefits (tier two), or had their benefits terminated (tier one) between March 1, 1981 and October 9, 1985. H.R.Rep. No. 98-618, 98th Cong.2d Sess. 1, 15-16, reprinted in, 1984 U.S.Code Cong. & Ad.News 3038, 3052-53. If these persons have reapplied for benefits on or before October 9, 1985 (one year after the enactment of the Act), that case must be re-opened by the Secretary.

After examining the whole record, this Court finds good cause, 42 U.S.C. § 405(g), to remand for the Secretary to reconsider whether plaintiff is entitled to disability benefits according to the new mental impairment regulations.

This case falls squarely within tier-two. Salvador Quiles was denied disability benefits throughout the administrative process (Tr. 3, 9-15, 41, 44). As to his claim of a mental impairment, the Administrative Law Judge (“ALJ”) concluded on July 27, 1984 that plaintiffs depressive disorder was at worst moderate, and, therefore, non-disabling (Tr. 13). On October 31, 1984, the Appeals Council adopted the ALJ’s decision becoming the Secretary’s final action (Tr. 3). The Secretary’s decision falls between the statutory period of October 10, 1984 and August 28, 1985. Section 5(c)(1) cl. 1. Accordingly, the Secretary must reconsider its decision in light of the new criteria. This ease is hereby VACATED AND REMANDED.

IT IS SO ORDERED.

      . The first tier encompasses a situation where a plaintiff is actually receiving benefits, and those benefits are later terminated. Given the remedial objectives of section 5, we construe the first tier as also including a case where an individual has a claim to benefits as a result of a favorable administrative decision, and that decision is subsequently reversed by the Secretary. In this sense, his benefits have been “terminated”.

      . This is the date of publication of the new regulations.

      . This “determination" can be made at the reconsideration, hearing, Appeals Council or judicial review stages.

      . The Reform Act was enacted on October 9, 1984.