author: TERENCE T. EVANS, District Judge.

text:
    Sam PROLER, an individual, Plaintiff, v. MODERN EQUIPMENT COMPANY, a corporation, Defendant.
    Civ. A. No. 77-C-268.
    United States District Court, E.D. Wisconsin.
    Feb. 26, 1985.

      Guy E. Matthews, Houston, Tex., for plaintiff.
    Thomas W. Godfrey, Godfrey, Trump & Hayes, Joseph A. Gemignani, Michael, Best & Friedrich, Milwaukee, Wis., for defendant.
   DECISION and ORDER

TERENCE T. EVANS, District Judge.

Before me are the motions of defendant Modern Equipment Company for judgment notwithstanding the verdict or, alternatively, for a new trial. Though not easy to describe in a phrase or two, this case, which was tried for 18 days starting October 30, 1984, involved claims relating to a patent and a confidentiality agreement. The jury returned a stunning verdict on November 27, 1984, awarding plaintiff Sam Proler $75,000,001.00. Before turning to the specific motions before me, I will briefly recall the winding path the case has followed.

It was filed in 1977 and assigned to Judge Robert W. Warren. It was transferred to me when I joined this court in January of 1980. Trial was first set for September 3, 1980, and then reset for October 14, 1980. Due to conflicts with the criminal calendar and because of at least two requests of the plaintiff, it was rescheduled for March 10, 1981, May 19, 1981, January 18, 1982, and October 31, 1983. It was finally tried in the fall of 1984. The difficulty in finding a trial date was intensified by the estimated length of the trial, which at one time was three months, and by a personal injury sustained by one of the lead attorneys.

As is often the case, the delays did nothing to solidify or focus the issues. If anything, the case became more and more amorphous. A fourth amended complaint, filed in August, 1980, contained 77 numbered paragraphs spread over 29 pages. The prayer was for over $100,000,000.00 in damages. Defendant’s answer and counterclaim was 28 pages long, with 92 numbered paragraphs. At the beginning of the trial, Proler dismissed many of his claims, and certain defendants were dismissed by stipulation. However, the case remained unfocused. After several days of trial, the parties submitted their proposed verdict forms and jury instructions. Plaintiff’s proposed verdict contained 29 questions for the jury, many of them overlapping with one another. The defendant proposed as a jury instruction that I read the pleadings, which, even allowing for the dismissed claims, would have taken longer than the time it takes to watch “60 Minutes.”

The case simply should not have been as big and certainly not as complicated as the parties made it. The verdict form which was ultimately submitted to the jury contained three questions requiring seven answers. Although such drastic simplification of the verdict form might in the usual course of events have provoked vigorous objection, plaintiff had no objection to the court’s jury instructions or the verdict forms. The defendant had only minor objections and a few changes were made to meet them. Accordingly, with one objection to a portion of a jury instruction (it will be discussed below), the parties agreed to the verdict form and the charge.

Although my remarks thus far are critical, perhaps plaintiff cannot be faulted for his lack of focus. It may very well be that a deliberate lack of focus was what made the case look big to the jury. It is clear that something made the jurors conclude that $75,000,000.00 was an appropriate award.

What was undisputed in this case was that for about thirty years prior to 1970 and the events of this lawsuit, Sam Proler was a scrap metal dealer. In late 1969, he began to work on developing a process for using hot molten metal baths to make more metal by inserting a metallic compound or oxide or metal in the bath. Before filing an application for the patent involved in this case he had filed other applications for patents involving the processing of metal, metallic ores and/or compounds.

Prior to 1970, Modern Equipment Company was in the business of manufacturing and selling equipment to foundries. It entered into a relationship with a West German company, AEG Elotherm, and began to market one of AEG’s products, an eldomet, which is a linear induction elevator capable of moving molten metal uphill.

Proler saw an advertisement for the eldomet and wrote to Modern expressing interest in the machine. Henry Eickelberg, then Modern’s Vice-President for Research, wrote to Proler. The relationship between Proler and officials of Modern resulted in several confidentiality and sales agreements: the first on April 6, 1971, another on April 18, 1972, and an exclusive sales agreement effective July 1, 1973.

Several patent applications were also filed by the parties. On September 1,1972, Modern filed a United States patent application for a “method for melting magnetically attractive small metal particles.” Eickelberg was listed as the inventor. The patent application was eventually abandoned. However, during 1973, Modern filed for several foreign patents on the invention. The foreign applications benefited from the September 1972 United States filing date.

On November 14, 1972, Proler filed a United States patent application relating to “a method for enhancing reduction of ores, oxides and melting of metals by magnetic forces.” The Proler patent eventually was issued as U.S. Patent No. 3,881,915. The parties agree that Modern’s application and the Proler patent describe the same invention. Part of Proler’s claim was that there was a “cloud” on his patent because of the existence of Modern’s foreign patents.

Throughout the trial, counsel for Proler described the case rather aptly as a “whodunit.” The questions submitted to the jury centered on “whodunit” and what did they do. The first asked as between Proler and Eickelberg, who invented the process? The second question involved whether the Proler patent was invalid. The third question asked whether Modern broke a confidentiality agreement with Proler by misappropriating his protected idea and if it did, whether compensatory and/or punitive damages should be awarded. The jury found that Proler was the inventor, that his patent was not invalid, that Modern had breached the confidentiality agreement, and that compensatory damages in the amount of $75,000,000.00 and punitive damages in the amount of $1.00 should be awarded to Proler.

Obviously the first thing that strikes one about the verdict is its size. $75,000,000.00 is a mind-boggling figure. At today’s prime rate, it earns interest of $1,027.00 every hour. Just recently it was announced that the Milwaukee Bucks, this city’s NBA franchise, was up for sale. The sale price is generally expected to be somewhere in the neighborhood of $15 to $20 million. With the kind of money the jury awarded in this case, Mr. Proler could not only buy the Bucks, but he could probably also get the Detroit Pistons, Chicago Bulls and Atlanta Hawks, and thus own more than half the teams in the Central Division of the NBA.

The second thing that sticks out in this verdict is the unlikely distribution of the award between compensatory and punitive damages. $75,000,000.00 to $1.00 is quite a ratio. Not unexpectedly, the defendant has filed post-trial motions.

The motion of the defendant, briefly outlined, is as follows: it seeks judgment notwithstanding the verdict because (1) plaintiff’s patent is invalid as a matter of law; (2) no causal connection has been established between any action of the defendant and any damages of the plaintiff; (3) the invention is not entitled to protection under the law of unfair competition because no one, including defendant or plaintiff, has put the invention to any use; (4) under the doctrines of merger, laches, waiver and estoppel, the breach of confidentiality agreement claim should be dismissed; (5) the finding that Proler was the inventor is not supported by the record; and (6) based on Wisconsin law and 35 U.S.C. § 285, it should be granted attorney’s fees and expenses because the lawsuit was frivolous. Alternatively, defendant asks for a new trial because (1) the verdict as a whole, and particularly the damage award, reveals that the jury failed to understand the issues or the evidence; (2) the verdict as to damages is so excessive as to be perverse, grossly excessive and punitive; (3) the verdict as a whole is contrary to law and the weight of the evidence; and (4) the jury was incorrectly instructed respecting the issue of the validity of the patent. The discussion of these issues will be organized as the verdict was.

The first question on the verdict involved the inventorship of the process described in the Proler patent. Defendant claims that no reasonable jury in the light of the evidence could have come to the conclusion that as between Proler and Eickelberg, Proler was the inventor. On that point, the motion is denied. This is most clearly a question of credibility. Substantial evidence exists to support the verdict. Proler testified for several days, in part regarding the mental process involved in his invention. The jury was free to buy his story rather than Eickelberg’s.

Defendant also seeks judgment notwithstanding the verdict on the issue of the invalidity of the patent. Defendant asserts that the final determination of obviousness is a question of law for the court. Alternatively, defendant seeks a new trial on the basis that the jury was improperly instructed.

The Court of Appeals for the Federal Circuit has several times recently articulated the rather intricate relationship between the roles of the judge and the jury on the issue of patent invalidity. Specifically discussing the submission of the obviousness issue to a jury, the Federal Circuit stated in Railroad Dynamics, Inc. v. A. Stucki Co., 727 F.2d 1506, 1515 (1984):

Thus, it is neither error nor dangerous to justice to submit legal issues to juries, the submission being accompanied by appropriate instructions on the law from the trial judge.

One of defendant’s contentions in its motion for a new trial is that this jury was improperly instructed. The instruction was:

... mere failure of the Examiner to cite certain information or documents in the file wrapper, however, does not necessarily mean it was not considered by the Examiner, who may have considered it and decided that it was unworthy of citation.

Defendant’s claim that this instruction was improper is based on language in Medical Laboratory Automation, Inc. v. Labcon, Inc., 670 F.2d 671, 673 (7th Cir.1981), which states:

This court’s decisions are clear that we may not safely assume that the Examiner considered an example of prior art if it is not cited. We can only presume that it was overlooked.

Defendant’s argument may well have carried the day prior to the existence of the Court of Appeals for the Federal Circuit. However, now with patent appeals being heard by the Federal Circuit, presumably their pronouncements must be heeded. In Lear Siegler, Inc. v. Aeroquip Corp., 733 F.2d 881, 885 (Fed.Cir.1984), the court stated:

The failure to cite specific prior art is not conclusive proof that the art was not considered. Solder Removal, 582 F.2d at 633 n. 9....

Note 9 of Solder Removal [Solder Removal Co. v. United States Int’l Trade Comm’n, 582 F.2d 628 (C.C.P.A.1978)] specifically states that:

Mere failure to cite certain prior art does not necessarily mean it was not considered by the Examiner, who may have considered it unworthy of citation.

The jury instruction complained of was not erroneous. It does not constitute grounds for granting a new trial.

In Perkin-Elmer Corp. v. Computer Vision Corp., 732 F.2d 888, 893 (Fed.Cir.1984), the court summarizes the law with regard to motions for judgment notwithstanding the verdict on the issue of patent invalidity:

When a party moves for JNOV, the trial court must consider all the evidence in a light most favorable to the non-mover, must draw reasonable inferences favorable to the non-mover, must not determine credibility of witnesses, and must not substitute its choice for that of the jury between conflicting elements in the evidence, (citations omitted). Following those guidelines, the court determines whether the evidence so viewed constitutes “substantial evidence” in support of the jury’s findings and, if so, whether those findings can support the legal conclusions necessarily drawn by the jury in accord with its instructions en route to its verdict, (citation omitted). “Substantial” evidence is such relevant evidence from the record taken as a whole as might be accepted by a reasonable mind as adequate to support the finding under review, (citations omitted). In sum, only when the court is convinced upon the record before the jury that reasonable persons could not have reached a verdict for the non-mover, should it grant the motion for JNOV. (citation omitted).
In its review, the district court must not lose sight of the presumption of validity. (citation omitted). Where, as here, there is a verdict of validity, the question is not whether the patentee had introduced sufficiently substantial evidence/to support the verdict, but whether the Challenger’s evidence so met the burden imposed by 35 U.S.C. § 282 (“[t]he burden of establishing invalidity of a patent or any claim shall rest on the party asserting such invalidity”) that reasonable jurors could not have concluded that the challenger failed to overcome that burden, (citation omitted).

Applying these principles in considering the motion for judgment notwithstanding the verdict, I start by recognizing that the Proler patent enjoys a presumption of validity. The burden in overcoming the presumption is on the defendant. In attempting to carry that burden here, Modern relied on two items of prior art not cited by the Patent Examiner: Russian Patent No. 304,302 and the textbook “Induction Machines for Special Purposes” by E.R. Laithwaite, published in 1966. These items, defendant asserts, make the patent invalid for obviousness, or alternatively, anticipate the patent.

The issue of whether these references are more relevant than the prior art submitted to the Examiner was debated, in the usual manner, by the expert witnesses at trial. Defendant would have me defer to its experts on this issue: “In any dispute between Elliott, who is a metallurgist/economist and disavowed any expertise in magnetism, and Block, an expert in both magnetism and metallurgy, one looks to Block for guidance.” I do not think it is that simple. Substantial evidence in the record supports the verdict of the jury on the issue. Professor Elliott testified at length, and the jury was free to accept his views.

Defendant also seeks judgment notwithstanding the verdict, dismissing the claims for breach of the confidentiality agreement on the basis of the doctrines of merger, laches, waiver and estoppel. Defendant claims that all agreements between the parties were merged in the July 1973 agreement which, in defendant’s view, divided the rights of the parties: the rights to processing ores and oxides were granted to Proler, and the rights to the melting technology was reserved to Modern.

Plaintiff, on the other hand, contends that he negotiated the 1973 agreement at a disadvantage because defendant had filed a patent application in September 1972 which would, in Proler’s view, preclude him from obtaining protection of his process. He claims that this disadvantage precludes any finding that the previous agreements were merged in the 1973 contract. The record, which contains lengthy testimony regarding the 1973 contract and the negotiations involved, does not support a finding that the previous contracts were merged into the 1973 agreement.

Modern further contends that even if Proler’s rights were not fully extinguished by the 1973 contract, he has failed to diligently pursue them. That argument also cannot be sustained on the record of this case.

As to defendant’s bold claim that this lawsuit was frivolous, I have already written to defendant’s counsel immediately following the submission of the motion and asked:

Considering the fact that the jury saw fit to award $75,000,000.00 to the plaintiff, wouldn’t it be a bit presumptuous on my part to follow your reasoning beginning on page 39 and find that the lawsuit is frivolous?

Counsel wrote back that although they were “admittedly optimistic” they recognize that a determination on this claim would require granting of the motion for judgment notwithstanding the verdict. Whatever the bottom line turns out to be in this case, it would be wrong at this stage to grant Modern’s request that I make a finding that this is a frivolous lawsuit.

My comments thus far can be summarized by saying that evidence in the record exists to support the verdict on liability. That is, the jury could have concluded that Proler was the one who invented the process and that he had revealed — under his belief that he was protected by a confidentiality agreement — technological secrets to Modern. They could have believed that Modern went behind Proler’s back and filed a patent on his invention. Beyond that, the jury must have for some reason believed that Proler discovered Rumpelstiltskin’s secret for spinning straw into gold.

As to damages, the case is no longer a “whodunit,” a mystery; instead, it is a fairy tale. If one closes one’s eyes to reality, perhaps it can be said that there is testimony in the record to support it. However, the testimony given by Dr. Elliott is based for the most part on sheer speculation. His analysis, set forth in Plaintiff’s Exhibit 1080, is based on the possible use of a process which is in Dr. Elliott’s own words not developed to the point where it is commercially usable, and a process which no one has made more than token efforts to develop.

In addition, in order to award damages it is necessary to cross the bridge from a finding of liability. One must believe that Modern caused Proler’s damages. To arrive at the figure it did, the jury had to believe that almost every company in America dealing in the reclamation of scrap would have used the “Proler Process” but for the “cloud” cast on his patent by Modern’s foreign patents — patents which, it must be remembered, Modern offered to assign to Proler.

Common sense is offended by the verdict. Dr. Elliott based his calculation on a royalty fee of ten percent of the cost advantage in using the Proler process. According to the logic of the jury verdict then, the Proler process could save the industry ten times $75,000,000.00. Surely were that based on reality rather than myth, some company would have looked beyond a patent problem and attempted eagerly to help Proler develop the process. In fact, if Proler were convinced that his process was that valuable, it seems more than likely that he would have accepted Modern’s offer of its foreign patents, and thus remove any possible cloud on his United States patent. His statement that to do so would be to join in Modern’s fraud is simply not convincing. The inevitable conclusion is that the process is simply not as valuable, in fact not even close to being as valuable, as Dr. Elliott’s speculation could lead one to believe.

If the jury award in this case had been $1.00 for compensatory and $75,000,-000.00 for punitive damages it would still be excessive as a whole, but at least it would be somewhat more understandable. As it is, however, the award for compensatory damages is clearly excessive. It simply cannot be sustained. Because I find the damages to be excessive, I could grant a limited new trial or offer Mr. Proler a remittitur option, as the award does not appear to have been motivated by any prejudice on the part of the jury against Modern. A remittitur, however, would only be in the $100,000-$200,000 range, and because a sum in that area is so far removed from what the jury awarded, I decline to offer an option.

Accordingly, all objections to the jury verdict, with the exception of its compensating damage award, are overruled. The award for compensatory damages is vacated. A new trial, limited only to the issue of compensatory damages, is ORDERED.


source: Caselaw Access Project

author: ANNE E. THOMPSON, District Judge.

license: Public Domain

text:
    STUDENT PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY, INC., et al., Plaintiffs, v. TENNECO POLYMERS, INC., Defendant.
    Civ. No. 83-2105(AET).
    United States District Court, D. New Jersey.
    Feb. 26, 1985.

      Bruce J. Terris, Carolyn A. Smith, Nathalie V. Black, Terris & Sunderland, Washington, D.C., Michael Gordon, Gordon & Gordon, West Orange, N.J., Kathleen Butler, New York City, for plaintiffs.
    Steven J. Picco, Greenstone & Sokol, Hackensack, N.J., for defendant.
   OPINION

ANNE E. THOMPSON, District Judge.

This matter is before the court on cross motions for summary judgment. The plaintiffs are the Student Public Interest Research Group of New Jersey, Inc. (“NJSPIRG”) and the Friends of the Earth (“FOE”). The defendant is Tenneco Polymers, Inc. The suit stems from the defendant’s alleged violations of the Federal Water Pollution Control Act (“FWPCA”), 33 U.S.C. § 1251 et seq. The plaintiffs first moved for partial summary judgment on the issue of Tenneco Polymer’s liability. The defendant opposed this motion and made a cross-motion for summary judgment, or in the alternative, partial summary judgment. The plaintiffs have also moved to amend their complaint to state a claim against Tenneco Resins, Inc.

I. FACTS

In May 1974, the Administrator of the Environmental Protection Agency (“EPA”), pursuant to § 402(a) of the FWPCA, 33 U.S.C. § 1342(a), issued a National Pollutant Discharge Elimination System (“NPDES”) permit number NJ 0004391 to Tenneco Polymer’s predecessor in interest, Tenneco Chemicals, Inc., a manufacturer of plastics and resins in Burlington, New Jersey. The permit authorized Tenneco Chemicals to discharge limited quantities of pollutants from its facility into Marter’s Ditch, a tributary of the Delaware River. In March 1981, when the regulations implementing the New Jersey Water Pollution Control Act, N.J.S.A. 58:10A-1 et seq., became effective, a New Jersey Pollutant Discharge Elimination System (“NJPDES”) permit was issued to Tenneco Chemicals. This permit authorized Tenneco Chemicals to discharge pollutants in accordance with the existing NPDES permit and with the conditions stated in New Jersey’s regulations. The permit expired in June 1979, but remains in effect by operation of law.

Tenneco Polymers was formed on December 3, 1982. On December 15, 1982, it bought the plastics and resin manufacturing plant and subsequently had the permit transferred. On March 14, 1983, Tenneco Chemicals changed its name to Tenneco Resins.

As a condition of the permit, the holder must make a report of all monitoring results in a Discharge Monitoring Report (“DMR”) at intervals specified by the permit. Tenneco Chemicals and Tenneco Polymers have been required to submit DMR’s on a monthly basis. In addition, the permit requires that the EPA be notified in writing of any failure or inability to comply with any permit condition within five days of the holder’s awareness of the noncompliance. These notices are usually in the form of a letter and are commonly called Noncompliance Reports (“NCR’s”).

The plaintiffs allege that on the basis of the DMR’s and the NCR’s, Tenneco Polymers has admitted a total of 197 violations of its permit, which are in turn violations of section 301(a) of the FWPCA, 33 U.S.C. § 1311(a). The plaintiffs have filed a citizens’ suit under section 505 of the FWPCA, 33 U.S.C. § 1365, seeking a declaratory judgment, injunctive relief, the imposition of civil penalties and the award of costs, including attorneys’ and expert witnesses’ fees.

II. DISCUSSION

A. Defendant’s Cross Motion For Summary Judgment

First, the court will consider the defendant’s cross motion for summary judgment or for partial summary judgment. The defendant has put forth several arguments in support of its motion for summary judgment.

1. FOE As Proper Party To This Suit

Tenneco Polymers asserts that FOE has not satisfied the jurisdictional requirements of the FWPCA. Specifically, it alleges that FOE has failed to give notice of Tenneco Polymers’ violations to the EPA, the State of New Jersey and to the defendant itself, as required by section 505 of the FWPCA, 33 U.S.C. § 1365. Rather, the notice of violations was forwarded by NJSPIRG and by the Atlantic States Legal Foundation. The defendant argues that a plaintiff is required to substantially comply with the notice requirement. Since FOE has not even attempted compliance, it should be dismissed from the suit.

The defendant’s argument is similar to the argument put forth in South Carolina Wildlife Federation v. Alexander, 457 F.Supp. 118 (D.S.C.1978). In that case, the defendants argued that a citizens’ suit for violations of the FWPCA should be dismissed since not all of the plaintiffs complied with the notice requirement. The court found, however, that this “argument is unconvincing because such an omission would in no way fail to put the defendants on notice as to the nature of the suit or the basis on which it was brought. Therefore, defendants have not been prejudiced by this omission ...” Id. at 123-24.

In this case, Tenneco Polymers seeks to dismiss only FOE rather than the entire suit. However, the court does not find this difference significant. The court finds that while FOE alone did not comply with the notice requirements, the plaintiffs together substantially complied. Accordingly, the motion for partial summary judgment on this basis will be denied.

2. The Plaintiffs’ Standing

Tenneco Polymers also asserts that it should be granted summary judgment because the plaintiffs lack standing to sue. As already noted, the plaintiffs bring their suit pursuant to the citizen suit provision of the FWPCA, 33 U.S.C. § 1365. For the purposes of a citizen suit, a citizen is defined by the statute as “a person or persons having an interest which is or may be adversely affected” by violation of an effluent standard or limitation. 33 U.S.C. § 1365(g). According to the Supreme Court, this phrase “was intended by Congress to allow suits by all persons possessing standing under ... Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972).” Middlesex County Sewerage Authority v. National Sea Clammers Ass’n., 453 U.S. 1, 16, 101 S.Ct. 2615, 2624, 69 L.Ed.2d 435 (1981).

In Sierra Club v. Morton, the Sierra Club brought suit under the Administrative Procedures Act to enjoin the development of the Mineral King Valley in California. The Club asserted that it had standing to sue due to its concern and expertise in environmental matters. The Supreme Court acknowledged that harm to one’s esthetic or recreational interests was sufficient to allege an injury in fact needed for standing to sue. However, for the purpose of standing, it was insufficient for the Sierra Club to allege merely an interest in the proposed development. Rather, the Club had to allege “that it or its members would be affected in any of their activities or pastimers by the ... development.” 405 U.S. at 735, 92 S.Ct. at 1366.

In the instant case, Tenneco Polymers acknowledges that in their answers to interrogatories, the plaintiffs have set forth names of individual members and the ways in which they are adversely affected by the condition of the Delaware River near the Tenneco Polymers plant. The plaintiffs’ members complain that the pollution of the Delaware harms the esthetic beauty of the area which they, personally, would otherwise enjoy, and that it inhibits their actual use of the river for recreation.

However, the defendant argues that the injuries set forth by the plaintiffs are insufficient to give them standing to sue. It asserts that while the plaintiffs have set forth that they are injured by the general pollution of the Delaware River, they have not shown that these injuries are caused specifically by the alleged violations of Tenneco Polymers. Thus, the defendant argues that the plaintiffs have not shown that they have been injured in fact from the defendant’s actions.

The court finds this argument to be unpersuasive. Obviously, the pollution of a portion of a major, interstate waterway such as the Delaware River, is caused by the combination of discharges from many different sources. The effect of the defendant’s argument would be to prohibit any citizens’ suits against violators of the FWPCA unless the violation was so great or the waterway so small that the direct impact of the discharges could be pinpointed. This interpretation of the FWPCA would be directly contrary to its intent. It was enacted in 1972 after “[ejnforcement of predecessor statutes, which had relied on water quality standards as the primary method of pollution control, had been largely unsuccessful. It was too difficult to establish the necessary correlation between effluent discharges by particular sources and the quality of the body of water into which the effluent flowed. To solve the dilemma the Act, while retaining water quality standards, predicated pollution control on the application of control technology on the plants themselves rather than on the measurement of water quality. [Footnote omitted].” Hooker Chemicals & Plastics Corp. v. Train, 537 F.2d 620, 623 (2d Cir.1976).

Thus, the court rejects the defendant’s theory of standing as overly burdening the plaintiffs. The court finds that the plaintiffs have adequately documented injuries to its members as required by Sierra Club v. Morton and have accordingly satisfied the requirement for standing to sue. Tenneco Polymers’ motion to dismiss on this basis will be denied.

3. EPA’s Enforcement As A Bar To This Action

The defendant also moves for summary judgment on the basis that “it has actively cooperated with appropriate regulatory agencies in attempting to resolve all apparent causes of potential violations or problems.” The defendant argues that citizen suits are only appropriate after administrative remedies fail. In this case, the EPA issued an Administrative Order on February 15, 1980, asking Tenneco Chemicals to explain the basis for the violations, and the defendant has been working cooperatively with both the EPA and the New Jersey Department of Environmental Protection to correct discharge problems.

The court finds that the EPA administrative action does not affect the plaintiffs’ right to bring this citizen suit. According to section 505(b)(1)(B), 83 U.S.C. § 1365(b)(1)(B), no citizen suit may be commenced “if the Administration or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States or ... a State ...” Under certain circumstances, agency action may be considered the equivalent of court action. Baughman v. Bradford Coal Co., Inc., 592 F.2d 215 (3d Cir.1979). Thus, the Third Circuit found that an agency could be considered a court which would bar a citizen suit under the Clean Water Act when it has the “power to accord relief which is the substantial equivalent to that available to the EPA in federal courts ...” Id. at 219. The court also indicated that the right of citizens to intervene in the action may be a factor in finding that the agency action was not equivalent to a court. Id.

In this case, the court finds that the EPA proceedings lacked the power to accord the substantial equivalent to the relief available in federal court since the EPA has no authority to impose civil penalties. Moreover, citizens had no opportunity to participate in the EPA’s administrative enforcement proceeding. In making this determination that the EPA action was not a court proceeding which would bar the citizen suit, this court is in accord with Student Public Interest Research Group of New Jersey, Inc. v. Fritzsche, Dodge & Olcott, Inc., 579 F.Supp. 1528 (D.N.J.1984) (hereinafter “NJSPIRG v. FDO”); Student Public Interest Research Group of New Jersey v. Monsanto Co., 14 E.L.R. 20228 (D.N.J.1983) (hereinafter “NJSPIRG v. Monsanto”); and Sierra Club v. SCM Corp., 572 F.Supp. 828 (W.D.N.Y.1983), dismissed on other grounds, 580 F.Supp. 862 (W.D.N.Y.1984) .

4. Statute of Limitations

Tenneco Polymers also seeks partial summary judgment on the basis of the statute of limitations. The defendant argues that since the FWPCA does not include a statute of limitations for the initiation of citizen suits, the court should “borrow” the most analogous state statute of limitations. The defendant asserts that since the plaintiffs are seeking civil penalties payable to the government, the most analogous New Jersey statute of limitations is N.J.S.A. 2A:14-10(a), which provides a two-year statute of limitations for all actions “... brought for any forfeiture upon any penal statute ... when the forfeiture is or shall be limited by the statute to the State of New Jersey only ...” The court finds, however, that in the context of the FWPCA, it could not have been the intent of Congress to have the federal courts borrow state statutes of limitation and certainly not statutes as short as two years for the bringing of citizens suits. If courts were to borrow state statutes of limitations then the enforcement of the FWPCA through citizen suits would differ from state to state. Some states could choose to have a very brief statute of limitations and thus be very hospitable to industries that violate the Act. Clearly, the FWPCA was meant to combat this diversity in state enforcement and put forth a national policy for halting the pollution of the nation’s waters. See 33 U.S.C. § 1251 (Congressional declaration of goals and policy); § 1253 (interstate cooperation and uniform laws); American Frozen Food Institute v. Train, 539 F.2d 107, 129 (D.C.Cir.1976).

In addition, the court is not persuaded that Congress envisioned a statute of limitations for citizen suits as short as two years. First, this short limitations period would truncate the right of citizen plaintiffs to seek penalties for past violations. The right to seek civil penalties for past violations has recently been affirmed by federal district courts in Sierra Club v. Aluminum Co. of America, 585 F.Supp. 842, 20 E.R.C. 1916 (N.D.N.Y.1984); Student Public Interest Research Group v. Ragen Precision Industries, Civ. No. 83-1604 (D.N.J. Dec. 19, 1983); and NJSPIRG v. Monsanto, supra. Second, as stressed by the defendant, enforcement of the FWPCA through citizen suits is appropriate only after the EPA and the state have had an opportunity to enforce the Act. Thus, it would defeat the purpose of the Act to impose a shorter statute of limitations on citizen suits than on federal or state agencies.

The defendant argues in the alternative that if the court does not borrow the state statute of limitations, the five-year federal statute of limitations found in 28 U.S.C. § 2462 should be applied. There is no precedent for applying this statute to citizen suits of this type. Moreover, even if this is the statute of limitations that would apply to EPA enforcement, the court would hesitate to apply the same limitations period to citizen plaintiffs, who, as already discussed, cannot bring suit until after the state and federal agencies have had an adequate opportunity to enforce the Act. For all of the above reasons, Tenneco Polymers’ motion for partial summary judgment on the basis of the statute of limitations will be denied.

5. Dismissal Of Complaint In Regard To Violations Before December 15, 1982

Tenneco Polymers also moves for summary judgment on alleged violations which occurred before December 15, 1982, the date when Tenneco Polymers bought the Burlington plant from Tenneco Resins. The plaintiffs argue that Tenneco Polymers can be held responsible for the violations of Tenneco Chemicals since there was a substantial continuity of identity between the two corporations. The plaintiffs assert that the change was, in essence, only a change in name. According to the plaintiffs, both corporations are subsidiaries of Tenneco, Inc., and the change followed an internal reorganization of the corporation. The plaintiffs note that the same plant manager continued after Tenneco Polymers took over and the plant appears to operate in the same way since the change in ownership. The defendant denies that there is continuity of identity between the corporations to the extent that Tenneco Polymers could be held liable for Tenneco Chemicals’ violations. The defendant notes that there was more than merely a cosmetic change in name since Tenneco Chemicals continues to exist under the name Tenneco Resins.

The court finds that there are clearly unresolved questions of law and fact as to whether Tenneco Polymers could be held liable for alleged violations that occurred when the plant was owned by Tenneco Chemicals. Accordingly, the defendant’s motion for summary judgment on this issue will be denied at this time.

B. Plaintiffs’ Motion for Summary Judgment

The court now moves to the plaintiffs’ motion for partial summary judgment on the issue of liability. In this motion the plaintiffs seek only a declaratory judgment that Tenneco Polymers has violated sections 301 and 402 of the FWPCA, 33 U.S.C. §§ 1311 and 1342. If this motion is granted, the plaintiffs will request a hearing to set forth the scope of the injunctive relief, civil penalties and costs that are also being sought.

Enforcement of NPDES permits is based on strict liability. United States v. Earth Sciences, Inc., 599 F.2d 368, 374 (10th Cir.1979). However, the defendant asserts that the plaintiffs’ motion for summary judgment should be denied because there remains a question of fact as to whether Tenneco Polymers violated the permit. Tenneco Polymers argues that 55 of the alleged violations are within the margin of analytic error. Moreover, the defendant states that there is a question of fact whether the information contained in the DMR’s and NCR’s can conclusively show permit violations since the testing procedures, in general, are inaccurate.

This same argument was raised and rejected in NJSPIRG v. FDO, 579 F.Supp. at 1538. In FDO, the court noted that the defendant’s “speculations [that the information contained in the DMR’s and NCR’s is inaccurate] were unaccompanied by any direct evidence of reporting inaccuracies.” Id. Tenneco Polymers argues that its claims of inaccuracies differ from those asserted in FDO since it has submitted affidavits from Fred W. Kanzler, the environmental coordinator from Tenneco Polymers’ Burlington plant, and from John Cirello, Vice President of Princeton Aqua Science. Kanzler states in his affidavit in part that: “Based upon information I have received from EPA regarding their quality assurance program for testing laboratories, and my own experience with analytical testing procedures, it is my understanding that there are inherent margins of error in the results of the laboratory tests in the BOD, COD, TSS Ph and TOC categories.” In his affidavit, Cirello states in part: “... it is my professional opinion that it cannot conclusively be stated (and, in fact, it is highly questionable) that the amount of discharge which is alleged to be represented by the sample test, was in fact the amount actually discharged into the Delaware River by this defendant.”

This court finds, however, that these affidavits are insufficient to raise a question of fact to defeat the plaintiffs’ motion for summary judgment. There is no indication that the EPA would not consider the information contained in Tenneco Polymers’ DMR’s and NCR’s as conclusively showing permit violations. Moreover, the affidavits do not raise a question of fact that there were errors in the actual tests performed which showed permit violations. This court is in agreement with the other courts in this district that “reports or records which are required to be kept by law, such as DMR’s and NCR’s, may be used to establish a defendant’s liability.” FDO, supra, at 1538, relying on NJSPIRG v. Monsanto, 14 E.L.R. at 20230-31. As noted by the court in FDO:

This result is consistent with the legislative history of the Act, which emphasizes the benefits of expedition in enforcing the Act:
[T]he bill ... establishes and makes precise new requirements imposed on persons and subject to enforcement. One purpose of these requirements is to avoid the necessity of lengthy fact finding investigations at the time of enforcement. Enforcement of violations of requirements under this Act should be based on relatively narrow fact situations requiring a minimum of discretionary decision making or delay.
S.Rep. No. 414, 92nd Cong., 1st Sess. 64, reprinted in 1972 U.S.Code Cong. & Ad. News 3668, 3730. [Footnote omitted].

FDO, supra at 1538-39. Consequently, summary judgment will be granted to the plaintiffs on the issue of Tenneco Polymers’ liability. However, since the defendant has raised a question of fact as to whether it can be held liable for violations which occurred when the plant was owned by Tenneco Chemicals, summary judgment will be granted only for violations which occurred after December 15, 1982.

C. Plaintiffs’ Motion To Amend The Complaint

The plaintiffs have also moved to amend their complaint to name Tenneco Resins (formerly Tenneco Chemicals) as a defendant. The court will grant the motion to amend the complaint pursuant to Fed.R. Civ.P. 21. However, the court notes that it has rendered an opinion today concerning the liability of Tenneco Polymers only. After Tenneco Resins has been served in accordance with the Federal Rules of Civil Procedure, the plaintiffs may make any appropriate motions.

D. Defendant’s Motion To Exceed Page Limitation

Finally, the defendant has moved to exceed the page limitation in its reply brief. This motion will be granted.

III. CONCLUSION

In conclusion, for the reasons stated in this opinion, the defendant’s motion for summary judgment or partial summary judgment is denied. The plaintiffs’ motion for summary judgment on the issue of liability is granted for violations which occurred after December 15,1982. The plaintiffs’ motion to amend the complaint and the defendant’s motion to exceed the page limitation in its reply brief are granted.

      . Hereinafter the NPDES and NJDES permits will be referred to collectively as "the permit”.

      . The court notes without deciding that the defendant argues that the statute of limitations for the EPA to bring suit is five years.

      . 28 U.S.C. § 2462 states:
      Except as otherwise provided by Act of Congress, an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued if, within the same period, the offender or the property is found within the United States in order that proper service may be made thereon.

      . It appears that 190 of the 197 alleged violations occurred before December 15, 1982.


author: JOYCE HENS GREEN, District Judge.

text:
    Sidney BISHOPP, et al., Plaintiffs, v. DISTRICT OF COLUMBIA, Defendant.
    Civ. A. No. 83-0417.
    United States District Court, District of Columbia.
    Feb. 26, 1985.

      Eileen M. Stein, Chevy Chase, Md., Douglas B. Huron, Washington, D.C., for plaintiffs.
    Cary D. Poliak, George C. Valentine, Washington, D.C., for defendant.
   MEMORANDUM OPINION

JOYCE HENS GREEN, District Judge.

Plaintiffs Sidney Bishopp, John Breen, William Q. Stickley, Floyd E. Yocum and Joseph E. Zeis, all white males formerly employed by the District of Columbia Fire Department, bring this action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (1981) (“Title VII”), alleging racial discrimination, retaliation and constructive discharge. Plaintiffs’ claims arise from the August, 1974 promotion of Jefferson Lewis, a black male, to Assistant Fire Chief-Operations. Lewis was nominated for promotion by then-Fire Chief Burton Johnson; that nomination was approved by then-Mayor Walter E. Washington. Each plaintiff contends that he was better qualified than Lewis to fill the position in question, and that the Lewis appointment was based on race. Plaintiffs further allege that as a consequence of their opposition to Lewis’ appointment, they were subjected to retaliatory discrimination and that they were constructively discharged from the fire department.

Plaintiffs’ charges of race discrimination were placed before the Equal Employment Opportunity Commission (EEOC) on or about August 30, 1974. After extensive delay, the EEOC issued findings in plaintiffs’ favor on February 25, 1982. A formal notice of right to sue followed on November 18, 1982, and plaintiffs filed this action on February 15, 1983. The Court having denied defendant’s motion for dismissal or summary judgment based on laches and other theories, the case proceeded to trial in October, 1984. Post-trial memoranda have been filed subsequently.

Defendant has consistently maintained that the promotion of Jefferson Lewis was based on merit rather than race. Alternatively, defendant defends the Lewis promotion under the fire department’s fledgling 1974 affirmative action plan. In light of defendant's uniform statements that race played no part in the selection of Jefferson Lewis, admission of the 1974 affirmative action plan was denied at trial, and that defense will not be given further consideration. Defendant also raised a defense of laches based on plaintiffs’ failure to bring their claims to this court when the EEOC proceedings continued beyond 180 days from the date of filing. See footnote 1. The Order of March 16, 1984 stated the applicable legal test:

In the context of a Title VII action, the application of laches is inappropriate unless the defendant proves both that the delay of the plaintiff was unreasonable and that the defendant has been unduly, substantially and materially prejudiced as a result. Rozen v. District of Columbia, 702 F.2d 1202 (D.C.Cir.1983).

March 16, 1984 Order at 5. The laches issue was not ripe for summary judgment at the time of the above Order, but it was indicated that absent evidence that plaintiffs did know or should have known of their opportunity to file suit without an EEOC decision, dismissal on the ground of laches would be inappropriate under Rozen. At trial, each plaintiff testified unequivocally that he did not know of his option under Title VII to institute a lawsuit without awaiting the outcome of EEOC proceedings when those proceedings extended beyond 180 days from filing. In addition, éach plaintiff testified that he was not represented by counsel while the EEOC charges were pending. As the authority to file suit before completion of EEOC proceedings is not evident from the face of the statute, see 42 U.S.C. § 2000e-5(f)(l) (apparently authorizing suit only when plaintiff has received notification of option to sue despite agency delay), see generally Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355, 366, 97 S.Ct. 2447, 2454, 53 L.Ed.2d 402 (1977), the plaintiffs have satisfactorily shown that their delay in filing this action was not unreasonable. Even were plaintiffs’ delay unreasonable, defendant has made no showing that the delay has unduly, substantially and materially hampered defendant in its ability to defend this suit. Specifically, there has been no claim that relevant documents were lost over the course of time, and the District of Columbia officials alleged to have discriminated against plaintiffs (former Chief Johnson and former Chief Lewis) both appeared at trial with memories intact. Accordingly, under Rozen, this action is not barred by laches.

Factual Background

Discussion of the merits of plaintiffs’ claims requires some knowledge of the setting in which those claims arose. The District of Columbia Fire Department is hierarchical in structure. At the top of the hierarchy is the fire chief; directly beneath him are the assistants heading the operations and services sectors of the department. The bulk of the department’s manpower is in the operations sector, which includes five deputy fire chiefs (ranked one level below the assistants) and some thirty battalion fire chiefs who report to the deputies. Three of the five operations deputies are responsible for firefighting operations, one runs the training center and the fifth is the fire marshal with responsibility for fire prevention efforts. Of the battalion fire chiefs in operations, most are involved in firefighting, although one serves under the deputy heading the training academy.

In the services sector, the assistant fire chief is aided by one deputy and a battalion fire chief for planning, both of whom report directly to the assistant chief. Despite the staffing imbalance, positions in the two sectors are considered equivalent for purposes of rank and promotion. Promotions through the lower ranks of private, sergeant, lieutenant and captain, up to and including battalion fire chief, are based on test scores and years in rank or grade. Under D.C.Code § 4-302 (1981) promotions above battalion fire chief are made at the discretion of the Mayor upon the recommendation of the fire chief. Moreover, no fire department policy, rule or regulation mandates rank by rank advancement above the level of battalion fire chief: the only prerequisite to promotion to deputy, assistant or even fire chief is that the officer must have attained the rank of battalion fire chief. See DX-A.

At issue in this case is the promotion of Jefferson Lewis, a black, from battalion fire chief to assistant fire chief for operations (“AFC-Operations”) in August 1974. At the time of the Lewis promotion, four of the five plaintiffs were ranked as deputies, Breen as the fire marshal, Stickley and Bishopp in firefighting, and Zeis at the training academy. The fifth plaintiff, Yo-cum, was a battalion fire chief assigned as Zeis’ assistant in training.

During the summer of 1974, it was apparently well known throughout the fire department that then-AFC-Operations Doyle E. Harpster’s position would become vacant upon his imminent retirement. After reviewing the backgrounds of all battalion and deputy chiefs, then-Fire Chief Johnson prepared a list naming the eight individuals (including plaintiffs and Jefferson Lewis) who were considered the “best candidates” to fill the upcoming vacancy. PX-71, DX-JJ. Formal applications for the job were neither solicited nor received. In late August, 1974, defendant, through Chief Johnson (who is black) and the office of Mayor Walter E. Washington (who is also black) announced that the AFC-Operations vacancy created by Harpster’s retirement would be filled by Jefferson Lewis. The promotion took effect within days.

Race Discrimination Claim

With that background, we turn to the merits of plaintiffs’ claim that they were passed over for promotion (in the case of the deputies) or simply not promoted because they are white. The structure of Title VII discrimination litigation is by now well settled law. Under United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983) and Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), the plaintiffs bear the burden of proving by a preponderance of the evidence a prima facie case of race discrimination. Burdine at 253, 101 S.Ct. at 1093. The burden of establishing a prima facie case is not onerous. Id. at 253, 101 S.Ct. at 1093, see also Ethnic Employees of the Library of Congress v. Boorstin, 751 F.2d 1405, 1416 (D.C.Cir.1985). In the context of a failure to promote, plaintiffs must show (1) that they belong to a protected group, (2) that they were qualified for and applied for a promotion, (3) that they were considered for and denied the promotion, and (4) that a similarly-qualified employee from outside the protected group was promoted at the time that plaintiffs were denied promotion. Bundy v. Jackson, 641 F.2d 934, 957 (D.C.Cir.1981); see also Parker v. Baltimore & O.R.R. Co., 652 F.2d 1012, 1017 (D.C.Cir.1981); Sales v. Dep’t of Justice, 549 F.Supp. 1176, 1184 (D.D.C.1982), aff'd, 717 F.2d 1480 (D.C.Cir.1983); see generally Burdine, 450 U.S. at 253 n. 6, 101 S.Ct. at 1094 n. 6 (model for prima facie case of discrimination in hiring set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), is adaptable to varying factual situations). By establishing a prima facie case, the Title VII plaintiff creates a “rebuttable presumption” of unlawful discrimination by the employer. Aikens, 460 U.S. at 714, 103 S.Ct. at 1481, citing Burdine, 450 U.S. at 254, 101 S.Ct. at 1094; McDonnell Douglas Corp. v. Green, supra. To rebut the presumption, the defendant must produce evidence that the plaintiffs were rejected, or someone else was preferred, for a legitimate,- nondiscriminatory reason. If defendant does so, the presumption “drops from the case”, Burdine, 450 U.S. at 255 n. 10, 101 S.Ct. at 1095 n. 10, and the ultimate factual issue—whether or not the defendant intentionally discriminated against the plaintiffs—is placed before the Court. See Lanphear v. Prokop, 703 F.2d 1311, 1314 (D.C.Cir.1983). Throughout the proceedings

‘The plaintiff retains the .burden of persuasion. [H]e may succeed in 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 256 [101 S.Ct. at 1095].
In short, the district court must decide which party’s explanation of the employer’s motivation it believes.

Aikens, 460 U.S. at 714-16, 103 S.Ct. at 1481-82; see also Cooper v. Federal. Reserve Bank of Richmond, _ U.S. _, _, 104 S.Ct. 2794, 2799, 81 L.Ed.2d 718 (1984); Ethnic Employees of the Library of Congress v. Boorstin, at 1416.

Title VII affords protection to white plaintiffs subjected to race-based discrimination. See McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 280, 96 S.Ct. 2574, 2578, 49 L.Ed.2d 493 (1976); see also Lanphear v. Prokop, 703 F.2d 1311. To establish the first element of the prima facie case (membership in a protected class), the white plaintiff cannot merely state his race; he must show that “background circumstances support the suspicion that the defendant is the unusual employer who discriminates against the majority.” Lanphear v. Prokop, 703 F.2d at 1315, quoting Parker v. Baltimore & O.R.R. Co., 652 F.2d at 1017. If he meets that requirement and also shows that he was qualified for the position in question but was rejected in favor of a member of a racial minority, he has met his burden of showing rejection “under circumstances which [despite the plaintiff’s majority status] give rise to an inference of unlawful discrimination.” Lanphear v. Prokop, 703 F.2d at 1315, quoting Burdine, 450 U.S. at 253, 101 S.Ct. at 1093; see also Turgeon v. Howard University, 571 F.Supp. 679, 686 (D.D.C.1983).

Courts examining “background circumstances” have found that evidence of “irregular acts of favoritism” towards minority employees, racial disproportionality in promotions, and evidence of pressure within an agency to increase the percentage of minority employees will support a suspicion that an employer discriminates against minority employees. See Lanphear v. Prokop, 703 F.2d at 1315; Parker v. Baltimore & O.R.R. Co., 652 F.2d at 1017. Defendant did not challenge this prong of plaintiffs’ prima facie case in the motion for directed verdict at the close of plaintiffs’ case in chief. However, evidence of the necessary background circumstances is not strong—plaintiffs have established this element by only the thinnest of margins. The fact that Chief Johnson and Mayor Washington, the two persons responsible for the Lewis selection, are black is by itself insufficient to raise the suspicion that defendant discriminates against the majority. See Plummer v. Bolger, 559 F.Supp. 324, 329 (D.D.C.), aff'd, 721 F.2d 1424 (D.C.Cir.1983). Furthermore, there is no evidence of irregular acts of favoritism or disproportionate promotion of blacks within the fire department. In August 1974, the upper levels of the fire department were dominated by whites, and until the Lewis promotion the only black to have advanced above battalion chief in the 1970s was Burton Johnson, who became a deputy chief in 1971 and fire chief in 1973. PX-66. The Lewis appointment did not start a noticeable trend — the next two assistant chief vacancies were filled by whites, and not until April 1978 did the next black reach that level in the hierarchy.

Evidence does show, however, that in 1974 the fire department was at least drafting if not adopting an affirmative action program. This evidence suggests at least some pressure to improve the lot of minorities within the department, perhaps to the disadvantage of whites. On that minimal basis, and in light of defendant’s apparent concession that this prong of plaintiffs’ prima facie case was not subject to challenge on a motion for directed verdict, plaintiffs have satisfactorily shown circumstances from which a proclivity to discriminate can be inferred. Although there was no formal application process, plaintiffs have shown that by their rank they were eligible for promotion to AFC-Operations and that they were in fact placed on Chief Johnson’s list of personnel considered for the vacancy. PX-71; DX-JJ. Finally, there is no question that plaintiffs were rejected in favor of Jefferson Lewis, who is black. Thus, plaintiffs have carried their burden of establishing a prima facie case of race discrimination.

The burden of producing evidence now shifts to defendant, which must articulate a legitimate nondiscriminatory reason for rejecting plaintiffs or for preferring Lewis. Burdine, 450 U.S. at 254, 101 S.Ct. at 1094. This has been done. At trial, Chief Johnson denied that the Lewis promotion was based on race and pointed to Lewis’ impressive standing as one of the top three candidates vying for the position of fire chief in 1973 as the factor placing Lewis ahead of his competitors for AFC-Operations. Defendant also identified qualities perceived as weaknesses in four of the five plaintiffs. When making his selection he believed that Stickley and Bishopp lacked essential firmness and decisiveness, and he doubted the abilities of Zeis and Yocum to adequately resolve problems in light of their performance in the face of problems at the training school. Chief Johnson acknowledged the competence of plaintiff Breen, but testified that in 1974 he believed that the interests of the fire department would be best served in Breen continued in his role as fire marshal, where his skills were greatly needed. Each of these reasons for Lewis’ selection and plaintiffs’ rejection, if true, is legitimate and nondiscriminatory, and thus defendant has placed the burden on plaintiffs to “demonstrate by a preponderance of the evidence that the facially legitimate reason offered by the defendant was not its true reason but rather a pretext for discrimination.” Lanphear v. Prokop, 703 F.2d at 1314. As shown below, plaintiffs have not carried that burden.

In their case in chief, each plaintiff testified as to his own history with the fire department, his progression through the ranks, breadth of experience, relevant education and training. Several (most notably plaintiffs Bishopp and Breen) submitted letters of commendation from their personnel files as testament to their performance on duty. All except Yocum had served as acting AFC-Operations while in the rank of deputy and/or battalion chief, and thus had familiarity with the duties of the job.

The evidence demonstrates that in most areas pinpointed by plaintiffs, the records of plaintiffs were superior to that of Lewis at the time of the selection. All of the plaintiffs were senior to Lewis by years of service; four were his senior by rank. Plaintiffs Breen, Bishopp and Zeis had taken courses in such relevant matters as fire engineering and nuclear safety; Lewis did not have comparable credits. By virtue of their service as deputy chiefs, four of the plaintiffs had gained some administrative experience and daily contact with Chief Johnson, whereas Lewis had no administrative duties or opportunity for frequent contact with Chief Johnson.

Without derogating from the overall abilities of the plaintiffs or challenging the credentials recited above, Chief Johnson testified that he saw qualities in Lewis that he believed to be lacking in various plaintiffs. From his vantage point as fire chief, Johnson had concluded that Stickley and Bishopp, despite their high rank, were indecisive and did not display the firmness he saw in Lewis. As to Zeis and Yocum, Johnson testified that the training program which they ran had been plagued with persistent (albeit unofficial) complaints stemming from allegedly high failure rates among blacks at the academy. Exhibits produced at trial do not document the failure rate among blacks; however, even if no racial disparity existed in fact, it nonetheless appears that the unofficial complaints planted doubts about Zeis and Yocum in Johnson’s mind.

Furthermore, the testimony of Chief Johnson demonstrates that Jefferson Lewis was a strong contender in his own right. When the job of fire chief became vacant in 1973, Lewis applied for the position, thereby demonstrating his initiative and ambition. More importantly, he made an impressive showing to the panel filling that vacancy, and in the final rankings by that panel Lewis placed among the top three candidates considered. The biracial panel gave top recommendations to one white and two blacks (Johnson and Lewis) and there is no indication that its recommendations were racially motivated. As a candidate (indeed, the successful candidate) for fire chief in 1973, Johnson was well aware of the rigors of the selection process and felt confident trusting the judgment of the 1973 panel with respect to Lewis’ leadership and potential.

At the close of the evidence, plaintiffs had shown beyond dispute that each of them was, overall, a highly qualified candidate for the position of AFC-Operations. What they failed to show is that defendant discriminated on the basis of race by giving greater weight in the selection process to factors which plaintiffs considered relatively unimportant. Under the criteria applied by plaintiffs (seniority, education, breadth of experience and the like) plaintiffs emerge as superior to Lewis. However, no fire department policy mandated consideration of any of those criteria, and in fact, the eligibility of all battalion and deputy chiefs for higher level administrative positions indicates that years in service or rank count for little in those appointments. The presence of Yocum (another battalion chief) as a plaintiff in this lawsuit underscores the fact that deputies and battalion chiefs are equally eligible to be in the applicant pool.

Chief Johnson testified that he gave greatest weight to the 1973 fire chief panel recommendations, and as a recent candidate before that panel he knew firsthand the qualities it valued. Plaintiffs correctly state that the candidate receiving the second highest marks from the panel (Battalion Chief Webb, a white) was not considered for AFC-Operations, but it does not follow that Chief Johnson’s claimed reliance on the panel’s views is a pretext masking racial discrimination. Chief Johnson testified that his decision not to even consider moving Webb from his duties as the head of the department’s ambulance service was based on the needs of the department. According to Johnson, Webb was invaluable in that position, and his removal from the post would be detrimental to the department as a whole. Webb is not a plaintiff to this action.

In a similar vein, no pretext is found in defendant’s decision not to uproot plaintiff Breen from his job as fire marshal. Breen had served directly under Johnson when Johnson was fire marshal and had succeeded him as fire marshal when Johnson became fire chief. Johnson’s selection to the top position heralded the third consecutive time that the fire marshal had been appointed fire chief. One can, therefore, readily empathize with Breen’s wounded expectations. However, like Webb, Breen was seen by Johnson as indispensable in his position, and all evidence in the record from all parties indicates that Breen performed his job admirably. The wisdom of a decision to effectively restrain the upward mobility of an outstanding employee in the interests of lower-level stability is not at issue here. At most, plaintiff Breen might state a claim of competence-based discrimination, but Title YII does not cover such a cause of action.

Finally, even if the development of affirmative-action policies in the fire department during the 1970s created pressure within the department to hire minorities, there is no convincing evidence that Chief Johnson bowed to such pressure in appointing Lewis. Two subsequent appointments to AFC positions (both in services) during Chief Johnson’s term went to whites (Charles Burger in December 1974 and John Devine in 1976). After Lewis, the next promotion of a black to AFC occurred in 1978, by which time Chief Johnson had retired. (See PX-66.) The only evidence of pressure on Johnson came out through the testimony of plaintiff Breen, who stated that Johnson had admitted to him before the promotion that he faced pressure to choose Lewis because of his race. No witnesses corroborated that testimony, and Johnson flatly denied it. Breen’s allegation was made for the first time at trial, and he gave no convincing explanation for his failure to bring Johnson’s alleged admission to light at an earlier stage of the proceedings. Moreover, Breen’s testimony-conflicts with his earlier statement to the EEOC that he first learned of the Lewis promotion through newspaper accounts after the fact. Under these circumstances, Chief Johnson’s version is the more credible.

Although each plaintiff has proven through testimony and documentation that he was an asset to the District of Columbia Fire Department and most likely would have performed well as AFC-Operations, none has made a case of racial discrimination from the promotion of Jefferson Lewis. As a valid, legitimate, nondiscriminatory reason for the Lewis selection has been proven, the Court cannot second-guess that choice:

[T]he employer has discretion to choose among equally qualified candidates, provided the decision is not based upon unlawful criteria. The fact that a court may think that the employer misjudged the qualifications of the applicants does not in itself expose him to Title VII liability ....

Burdine, 450 U.S. at 259, 101 S.Ct. at 1097, citing Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n. 6 (1st Cir.1979); see also Sales v. Dep’t of Justice, 549 F.Supp. at 1184. Accordingly, judgment will be entered for defendant on plaintiffs’ claim of race discrimination in the 1974 promotion of Jefferson Lewis to AFC-Operations.

Retaliatory Harassment Claim

Apart from their claim of discriminatory nonselection for AFC-Operations, plaintiffs assert that as a result of their opposition to the Lewis promotion, they were subjected to retaliatory harassment by defendant in violation of Title VII. The outcome of the first claim will not determine the success of the second.

The order of proof set forth in Aikens, Burdine and McDonnell Douglas, supra, is applicable to claims of retaliation:

In order to establish a prima facie case of retaliation, plaintiff[s] must show: (1) that [they] engaged in a statutorily protected activity, (2) that the employer took an adverse personnel action, and (3) that a causal connection existed between the two. As in a case of disparate treatment, this initial burden is not great. Plaintiff[s] merely need to establish facts adequate to permit an inference of retaliatory motive. Once this burden has been met, defendant must articulate a legitimate, nondiseriminatory reason for the personnel action. At that point, plaintiff must prove by a preponderance of the evidence that the proffered reason was but a pretext for retaliation.

McKenna v. Weinberger, 729 F.2d 783, 790 (D.C.Cir.1984) and cases cited at nn. 50-52 therein.

Plaintiffs have shown that shortly after the Lewis promotion was announced, they filed charges with the EEOC alleging that the appointment was racially motivated. The institution of those charges was clearly protected activity. See 42 U.S.C. § 2000e-3.

Plaintiffs see a causal link between their opposition to the Lewis appointment and numerous disagreements between them and their supervisors during plaintiffs’ remaining years at the fire department. Plaintiffs’ specific allegations of retaliatory conduct are as follows:

1. In the fall of 1974, Yocum was laterally transferred from the training academy to another battalion fire chief position. Neither he nor his supervisor, Deputy-Chief Zeis, requested the transfer, and neither was consulted before the transfer was ordered.

2. Upon receipt of a letter dated October 24, 1974 from Yocum stating his intention to seek retirement, criticizing the selection process for fire chief and AFC-Operations as “devoid of merit considerations in deference to black racism”, leveling broader charges of black racism affecting the fire department, and accusing Chief Johnson of lying (DX-AA), Chief Johnson endorsed Yocum’s retirement.

3. In late 1974, equal employment opportunity (EEO) duties which had been assigned to Zeis were taken from him and reassigned to another officer.

4. An affirmative action plan for 1974-75 prepared by Zeis and submitted to the office of the fire chief for revisions was never returned to Zeis.

5. None of the plaintiffs was selected to fill vacancies at the assistant chief level arising after they filed EEOC charges.

6. Shortly after becoming AFC-Operations, Lewis made numerous comments to plaintiff Bishopp to the effect that “blacks are in and whites are out” in the fire department.

7. Between August 1974 and August 1976, Lewis said to Stickley, “I think my promotion is getting next to you,” or made similar remarks.

8. As AFC-Operations, Lewis (1) objected to Breen’s participation in promotion decisions affecting officers Breen supervised, and (2) challenged Breen’s presence at a fire site on one occasion.

9. In October 1974, Chief Johnson responded to Breen’s attempt to ease alleged tension over the Lewis promotion by saying, “I want nothing to do with you.”

10. In October 1977, Breen was laterally transferred from the fire marshal post to the training academy. He did not request the transfer.

Whether the actions listed above constitute “adverse personnel actions” or harassment for purposes of establishing a prima facie case of retaliation is debatable. The alleged verbal remarks of Johnson and Lewis never amounted to threats and were not followed with specific personnel actions, and none of the plaintiffs was ever demoted. Even assuming that the incidents cited above adversely affected the plaintiffs and that there is a causal link between those incidents and the plaintiffs’ filing of EEOC charges, defendant has stated a legitimate, nondiscriminatory reason for each of its challenged actions, and plaintiffs have not punctured the credibility of defendant’s explanations.

Rather than acts of punishment, the lateral transfers of Yocum and Breen appear from the evidence to be reactions to departmental needs. Given Johnson’s doubts (whether well-founded or not) as to Yocum’s contribution to the training program even before the Lewis promotion, it is not surprising that a transfer was ordered. The 1977 Breen transfer was made for an equally legitimate reason — to place Breen where his skills were most needed. Despite Breen’s claim that the fire marshal position was a stepping-stone to the department’s top office, the evidence does not show that appointments to top offices followed any pattern, except that vacancies within the services sector were more often than not filled from within that sector.

Plaintiffs have pointed to isolated situations in which they drew criticism from Johnson or Lewis (see item 8 above) or were not given feedback (see item 3), or in which they felt stripped of responsibilities (see items 4 and 8). Defendant has convincingly explained that each incident resulted from a business decision made in the interests of sound management. For example, Lewis challenged Breen’s presence on the promotion board not as an act of retaliation but because the candidates for promotion were Breen’s own men whom he had already recommended — his input at the board level would be redundant. Likewise, Zeis was removed as EEO officer during a major overhaul of the entire human rights program, not because he opposed one promotion. It has not been shown that these and defendant’s other explanations are pretextual. Moreover, the infrequency of such incidents over time suggests that retaliation was not at play. Like most employees, these plaintiffs occasionally did not see eye to eye with their supervisors, but the bulk of their work went without criticism.

As to plaintiffs’ nonpromotion to AFC-level positions after the Lewis appointment, plaintiffs have raised no specific challenge to defendant’s decision to fill the 1974 and 1976 AFC-Services jobs with officers having prior experience in the services sectors. The next AFC-Operations’ opening arose in 1978 (by which time only Breen was still employed at the fire department), but was filled when Assistant Chief Devine laterally transferred from AFC-Services. Breen has introduced no evidence to indicate that he and Devine (both white) were equally qualified for the position and that his non-selection was retaliatory.

Finally, Johnson and Lewis deny making the remarks attributed to them by individual plaintiffs (see items 6, 7, 9). None of these remarks was corroborated by the testimony of a second witness, and none comports with the evidence bearing on defendant’s treatment of plaintiffs after the Lewis promotion. For example, if “whites were out” at the fire department as of 1974, it is not likely that the next two assistant chief openings would have gone to whites, which they did. Had Johnson meant to have “nothing to do with” Breen, he likely would have immediately moved Breen from a position that, by plaintiffs’ own testimony, put the two in frequent contact with each other. Johnson took no such action for two and a half years, and even then he had legitimate independent reasons to effect Breen’s transfer. Under these circumstances, plaintiffs have not proven by a preponderance of the evidence the claimed verbal harassment. Furthermore, as discussed above, they have not proven that any actions of defendant were more likely than not retaliatory or shown defendant’s proffered explanations to be unworthy of credence. Accordingly they have not shouldered their burden of proof. See Burdine, 450 U.S. at 256, 101 S.Ct. at 1095, McKenna, 729 F.2d at 790.

Constructive Discharge Claim

Plaintiffs’ claim of constructive discharge is closely entwined with their claim of retaliatory harassment. Essentially, plaintiffs assert that conditions at the fire department compelled their premature retirement. Plaintiffs Zeis, Bishopp and Yo-cum each retired within the last two months of 1974; Stickley retired in August 1976, and Breen in October 1978. Each was eligible to remain with the department to age 60, absent dispensation to stay up to four years longer. Thus, the latest normal retirement dates for each would be:

Zeis September 2,1974
Bishopp April 27,1977
Yocum April 23,1981
Stickley August 20,1980
Breen December 25,1982

In this Circuit and others, “a finding of constructive discharge depends on whether the employer deliberately made working conditions intolerable and drove the employee into an involuntary quit.” Clark v. Marsh, 665 F.2d 1168, 1173 (D.C.Cir.1981) (citations omitted); see also cases cited therein and Geisler v. Folsom, 735 F.2d 991, 996 (9th Cir.1984). Even proof of discrimination is not a sufficient predicate for a finding of constructive discharge; there must be “aggravating factors” present as well. Geisler v. Folsom, 735 F.2d at 996, quoting Clark v. Marsh, 665 F.2d at 1173-74.

In this case, plaintiffs have proven neither discrimination nor the existence of aggravating factors sufficient to support a finding of constructive discharge. The incidents which, in plaintiffs’ eyes, compelled an “involuntary quit” are the same incidents they viewed as retaliatory. As discussed above, those incidents were neither extreme nor frequent; more importantly, each has been convincingly explained as a legitimate, nonretaliatory action consistent with sound management. Even if plaintiffs believed their circumstances to be intolerable and therefore retired, they have not shown that their belief was a reasonable reaction to particular actions by defendant. In short, they have not shown that as an objective matter, they were “driven” to quit. See Geisler v. Folsom, 735 F.2d at 996 (applying test of reasonableness to employee’s decision to resign).

For the reasons discussed above, plaintiffs have not carried their burden of proving, by a preponderance of the evidence, their claims of racial discrimination, retaliatory harassment or constructive discharge. Accordingly, judgment shall be entered in favor of defendant and against plaintiffs.

      . In light of a material factual dispute as to (1) plaintiffs’ knowledge of the statutory provision construed to authorize a Title VII suit prior to conclusion of protracted EEOC proceedings, and (2) plaintiffs' access to legal advice while EEOC charges were pending, the defendant’s motion for summary judgment based on laches was denied. See March 16, 1984 Order at 5-7. Defendant’s potentially dispositive motions addressing the scope of Title VII, the effect of D.C.Code § 4-302, res judicata and collateral estoppel were denied in the March 16, 1984 Order as a matter of law.

      . Plaintiffs’ Exhibit 66 erroneously indicates that Jon Devine was made both AFC-Services and AFC-Operations in August 1976. The testimony at trial and other documents in the record show that Devine was apppointed AFC-Services in August 1976, but moved to AFC-Operations when Lewis vacated that position in March 1978 to become fire chief. At that time, Calvin Watson, who is black, became AFC-Services as Devine's replacement.