author: GENE CARTER, District Judge.

text:
    The MAINE ASSOCIATION OF HANDICAPPED PERSONS OF PORTLAND, MAINE, David Cann of Portland, Maine, Gloria Davis of Westbrook, Maine, and Rita Takasch of Portland, Maine, individually and on behalf of a class of persons similarly situated, Plaintiffs, v. Elizabeth DOLE in her capacity as Secretary of the United States Department of Transportation, Defendant.
    Civ. No. 85-0083P.
    United States District Court, D. Maine.
    Dec. 3, 1985.
    Harold L. Lichten, Tureen & Margolin, Portland, Me., for plaintiffs.
    Raymond J. Larizza, Judith F. Ledbetter, Dept, of Justice, Washington, D.C., for defendant.
   MEMORANDUM OF DECISION AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

GENE CARTER, District Judge.

I. Procedural Background

This matter is pending before the Court on motions for summary judgment filed by both the Plaintiffs and the Defendant. Plaintiffs seek, on entry of summary judgment in their favor, relief prayed for in the Complaint. That relief is as follows:

1. That this Court enter appropriate injunctive and/or declaratory relief ordering defendant Dole, and the United States Department of Transportation to forthwith issue final regulations, as required by 49 U.S.C. § 1612(d), and 29 U.S.C. § 794, governing the provision of appropriate and adequate accessible transportation services to elderly and handicapped persons who are in need of accessible transportation, or in the alternative to order Defendant Dole to forthwith make final the proposed regulations originally published in the Federal Register, volume 48, number 175, on September 8, 1983, and to order defendant Dole to enforce such regulations; and
2. That this Court award plaintiffs’ counsel reasonable attorneys’ fees for the prosecution of this action pursuant to 29 U.S.C. § 794(a), and the Equal Access to Justice Act.

Complaint, at 6-7. Defendant seeks as relief, on entry of summary judgment in her favor, that “the Court ... in the exercise of its sound discretion, stay its hand and permit completion of the rulemaking process without the constraint of an arbitrary deadline.” Defendant’s Memorandum of Points and Authorities in Support of Defendant’s Motion for Summary Judgment, at 3.

The action was commenced by the filing, on April 3, 1985, of a Complaint seeking injunctive and declaratory relief. In summary, the operative allegations of the Complaint set forth the jurisdiction of the Court pursuant to 28 U.S.C. §§ 1331, 1337, 1343, 1361 and 5 U.S.C. § 702. The substantive allegations are as follows. The Plaintiffs are disabled or handicapped or elderly persons or associations composed of such persons who are residents of Cumberland County, Maine. Because of their disabilities they cannot gain access to the inaccessible fixed-route buses utilized by the Greater Portland Transit District. The Defendant, Dole, is the Secretary of the United States Department of Transportation and is responsible for overseeing and administering the Urban Mass Transit Act, ,49 U.S.C. §§ 1601, et seq., the Federal-Aid Highway Act of 1973, 23 U.S.C. §§ 101, et seq., and the Surface Transportation Assistance Act of 1982, 49 U.S.C. § 1612(d). The Plaintiffs are potential users of accessible public transportation in and around the City of Portland, Maine, which transportation is provided by the Greater Portland Transit District (METRO). METRO operates a fixed-route bus system which is totally inaccessible to the plaintiff class and provides no alternative transportation services to the Plaintiffs. METRO receives a significant level of federal transportation subsidies on an annual basis to support the operation of its bus system.

In 1982 Congress enacted the Surface Transportation Assistance Act of 1982, which required the Defendant, as Secretary of the United States Department of Transportation, in carrying out the Federal-Aid Highway Act of 1973, the Federal Rehabilitation Act of 1975, 29 U.S.C. § 794, and the Urban Mass Transportation Act, 49 U.S.C. §§ 1601, et seq., to promulgate, no later than January 6, 1983, proposed regulations, and not later than July 6, 1983, to promulgate final regulations establishing the minimum criteria for the provision of transportation services to handicapped and elderly individuals by recipients of federal assistance. See 49 U.S.C. § 1612(d). The Defendant has “pursuant to the mandate of 49 U.S.C. § 1612(d),” Complaint ¶ 12, issued proposed regulations governing the provision of accessible public transportation to mobility impaired persons and wheelchair users. See 48 Fed.Reg. No. 175, September 8, 1983. To date, the Defendant has failed or refused to finalize said regulations and, as a result, the Secretary has expressly disobeyed the mandate of Congress to promulgate regulations as required by 49 U.S.C. § 1612(d).

Plaintiffs are directly and adversely affected by the Secretary of Transportation’s failure and refusal to promulgate the final regulations as required by the statute. Proposed regulations published by the Defendant “would mandate a level of accessible transportation services to mobility impaired persons and wheelchair users far greater than that presently provided” to Plaintiffs’ class. Id. 1115. The Plaintiffs are particularly aggrieved by the failure of the Defendant to enact the regulations as required by the statute “in that they are the intended beneficiaries of the regulations so mandated.” Id. ¶ 16. The Defendant has expressly violated 49 U.S.C. § 1612(d) and 29 U.S.C. § 794 in that she has failed and refused to publish or implement final federal regulations governing the provision of public transportation services for the handicapped as required by that section.

Defendant filed an Answer on June 11, 1985, asserting as a defense that the Complaint fails to state a claim upon which relief can be granted and responding to the-allegations of the Complaint. The Answer appears to dispute the jurisdiction of the Court in that it states:

The jurisdiction section of the complaint contains conclusions of law and not averments of fact to which an answer is required but, insofar as an answer may be deemed to be required, it is denied.

Answer at 1. The Answer asserts that the Defendant is without knowledge or information sufficient to form a belief as to the truth of those allegations setting forth the status of the Plaintiffs, and it admits the official position of the Defendant and her responsibility for the discharge of the-duties and responsibilities of that office. It is admitted that METRO is a recipient of federal funds under programs administered by the Urban Mass Transportation Administration, and that publication of proposed regulations governing the provision of accessible public transportation to mobility impaired and wheelchair users has occurred.

The Answer denies that the Defendant has failed or refused to date to finalize regulations as required by 49 U.S.C. § 1612(d) “except to admit that final regulations implementing 49 U.S.C. § 1612(d) have not yet been promulgated.” Id., 1113. It is denied that the Plaintiffs and the class of plaintiffs are directly and adversely affected by the alleged failure or refusal of the Defendant to promulgate the final regulations, and it is admitted that wheelchair users and other mobility impaired persons are among the intended beneficiaries of the regulations required to be promulgated under 49 U.S.C. § 1612(d). It is denied that the Defendant has expressly violated the provisions of either 49 U.S.C. § 1612(d) or of 29 U.S.C. § 794 by failing or refusing to publish or implement the allegedly required regulations.

Filed with the Defendant’s Answer was the Defendant’s Motion for Summary Judgment based upon the Defendant’s statement of material facts, the Declaration of Robert C. Ashby, and the Memorandum of Points and Authorities filed in support of said motion. Plaintiffs filed on June 19, 1985 a Motion for Summary Judgment or in the Alternative for a Preliminary Injunction. That motion asserts that irreparable harm will result to Plaintiffs if a decision in this matter is delayed, that there is a reasonable likelihood that the Plaintiffs will prevail on the merits in this matter, that there will be little harm to the Defendant resulting from issuance of an order requiring immediate publication of final regulations, and that public policy favors the issuance of such injunctive relief to prevent the Secretary from disobeying a mandate of Congress. In support of the motion Plaintiffs filed a statement of material facts and a memorandum of law.

II. Factual Background

An examination of the Statement of Genuine Issues filed by the Defendant and of the Plaintiffs’ Statement of Material Facts as to Which There is No Issue show the following facts to be undisputed. In July of 1981 the Department of Transportation published final interim regulations. pursuant to 49 U.S.C. § 1612. Those regulations are final, have the full force and effect of law, and currently govern the provision of accessible transportation for elderly and handicapped persons. At the time of the publication of the 1981 regulations, the Department of Transportation continued its ongoing consideration of those regulatory-requirements which should be imposed in the mass transit area to carry out the nondiscrimination requirements of federal law. The 1981 regulations were intended to remain in effect until replaced by a “new permanent regulation governing the provision of mass transit services that handicapped persons can use.” 46 Fed.Reg. 37490.

As of December 1982 the Department of Transportation had not published new permanent regulations replacing the 1981 regulations. In late December of 1982 the Senate and House passed section 317(c) of the Surface Transportation Assistance Act of 1982, requiring the Secretary of Transportation to promulgate, final regulations governing the provision of transportation services for handicapped and elderly persons by July 6, 1983. As of the present date, the Secretary has failed to publish or promulgate final regulations governing the provision of transportation services to elderly and handicapped persons.

Plaintiffs assert and Defendant disputes that “[i]t is neither impossible nor infeasible for the Secretary to promulgate such regulations forthwith.” Plaintiffs’ Statement of Material Facts, ¶ 5. Defendant asserts that the Declaration of Robert C. Ashby, submitted in support of the Defendant’s motion, demonstrates that

it is both impossible and infeasible [sic] for the Secretary to promulgate final regulations “forthwith.” Additional time is required for informed and reasoned decision-making within the Department of Transportation and for review, prior to publication, of the final regulations by the Office of Management and Budget and the Department of Justice as required by Executive Order 12291 and Executive Order 12250.

Defendant’s Statement of Genuine Issues, II 5.

III. Statutory Background

Congress enacted in 1970 49 U.S.C. § . 1612(a) as section 16(a) of the Urban Mass Transportation Act. The provision declares the national policy to be that elderly and handicapped persons have the same right to the use of mass transportation facilities and services as other persons and requires that special efforts shall be made in the planning and design of mass transportation services to assure the availability of mass transportation to elderly and handicapped persons. Congress further provided that all federal programs offering assistance in the field of mass transportation “should contain provisions implementing this policy.” Id.

In 1973 Congress enacted section 504 of the Rehabilitation Act, 29 U.S.C. § 794, which applies to all federally funded programs. Under that section:

No otherwise qualified handicapped individuals ... shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.

Thereafter, in 1976, a single set of regulations designed to implement both section 504 and section 16(a) was issued by the Urban Mass Transportation Administration (UMTA). These regulations left to local choice resolution of the issué as to the best type of service to provide in mass transportation systems for wheelchair users. Thus, local transportation systems were to decide whether wheelchair users were best served as a matter of public policy by provision of full accessibility for such persons to regular route bus service or whether specialized service or some combination of the two methods was to be preferred. Basically, a transit authority could, if it chose to do so, select the approach of equipping its regular fixed route buses with wheelchair lifts, or it could elect to provide special, separate “door-to-door” transportation for such users by minibuses equipped with wheelchair lifts.

The Department of Health, Education and Welfare was required to coordinate the implementation of section 504 by all federal agencies that offered financial assistance to any program or activity under Executive Order 11914. HEW adopted in 1978 guidelines embracing the concept of mainstreaming, making those guidelines applicable to all government agencies. With respect to public transportation, those guidelines contemplated that all federally funded systems would eventually be made fully accessible to the handicapped. The guidelines required that all new buses be accessible to wheelchair users.

Thus, a conflict developed between these regulations and the Department of Transportation’s 197.6 regulations. In an effort to resolve that conflict, the Department of Transportation promulgated new regulations in 1979 that implemented the mainstreaming concepts of the HEW regulations. 44 Fed.Reg. 31442. The 1979 regulations were invalidated by judicial action in American Public Transit Association v. Lewis, 655 F.2d 1272 (D.C.Cir.1981), in which the Court held that the Department of Transportation had exceeded its statutory authority by requiring extensive modifications to existing programs and by imposing extremely heavy financial burdens on local transit authorities. Id., at 1278. The Court found that the Department of Transportation had simply adopted the HEW guidelines without the performance of any independent policy-making process and expressed no opinion as to whether or not such higher profile requirements for the benefit of handicapped persons could be implemented by an appropriate decision-making process under 49 U.S.C. § 1612(a). The case was remanded for resolution of that issue and was ultimately dismissed by agreement of both parties. The Department of Transportation in issuing its regulations in 1981 returned to the 1976 regulations and the guidelines and regulatory scheme crafted therein. The validity of this regulatory pattern has never been questioned.

In 1983 section 16(d) was added to the Urban Mass Transportation Act by 49 U.S.C. § 1612(d). The new provision requires the development of more specific instructions than are contained in the present guidelines for meeting the nondiscrimination requirements of section 504 and the special efforts requirement of section 16(a). The new section directs the Secretary to promulgate regulations establishing “minimum criteria for the provision of transportation service to handicapped and elderly individuals by recipients of federal financial assistance” and of “procedures for the Secretary to monitor recipients’ compliance with such criteria.” These regulations must also include “provisions for insuring that organizations and groups representing such individuals are given adequate notice of and opportunity to comment on the proposed- activities of recipients for the purpose of achieving compliance with such regulations.” The section requires that proposed regulations be published within ninety days of the date of enactment of the section and that final regulations be adopted and published within one hundred eighty days of that date, or no later than July 6, 1983.

IV. Facts

The procedures followed by the Defendant following the enactment of 49 U.S.C. § 1612(d) are set out in the Declaration under oath of Robert C. Ashby, filed by the Defendant in support of her Motion for Summary Judgment. The recital of events set forth therein does not appear to be disputed on the record in this case. Mr. Ashby states the following:

2. When the STAA was enacted on January 6, 1983, the Department promptly began working on a notice of proposed rule-making (NPRM) to implement section 317(c) of that Act. The Department was aware that section 317(c) called for the publication of an NPRM within 90 days of enactment (i.e., April 6, 1983) and a final rule within 180 days of enactment (i.e., July 5, 1983).
3. The Department completed its work oil the NPRM (i.e., it was drafted and concurred in by the Secretary of Transportation) by mid-April, 1983.
4. Under Executive order 12250 (45 Fed.Reg. 72995 (1980)), the Department is required to submit such an NPRM to the Department of Justice (DOJ) for review and approval. Under Executive Order 12291 (46 Fed.Reg. 13193 (1981)), the Department is required to submit such an NPRM to the Office of Management and Budget (OMB) for review and approval. DOJ and OMB have agreed that that [sic] when both must review a rule, DOJ will review it first, and then OMB will review it. In the case of this NPRM, this dual review took over four months, OMB approval being received in late Au - gust, 1983.
5. DOT published the NPRM for com ment on September 8, 1983 (48 Fed.Reg 40684). For a rule on a subject as complex and controversial as mass transit services for disabled persons, a reasonably long comment period is necessary in order to ensure that interested parties have the opportunity to submit views and information. Therefore, the NPRM had a 60-day comment period. At the request of a number of commenters (most of whom were disabled individuals or organizations representing them), the Department extended this comment period for 30 days (48 Fed.Reg. 50125; Oct. 31, 1983). Consequently, the comment period closed on December 8, 1983.
6. The Department received 650 comments in response to the NPRM, many of which were lengthy and detailed. Many of the comments also expressed diametrically opposing views. The Department’s staff completed reading and analyzing the comments by mid-March, 1984.
7. In order to make reasonable policy decisions on the issues involved in this rulemaking, it is necessary for the Department to consider the costs, benefits, and cost-effectiveness of different regulatory approaches. In addition to being important for reasoned decisionmaking, such consideration is necessary in order to write the Regulatory Impact Analysis required by Executive Order 12291 for major rules.
8. In addition to reviewing information provided in the comments, the Department went about gathering information concerning the costs, benefits, and cost effectiveness of alternative requirements in two ways. First, members of the Department’s staff made case studies of the systems of transportation for handicapped persons in several urban areas. Second, the Department hired a consultant to use a computer model to predict nationwide costs and benefits of different approaches. Both studies were quire detailed, and were not effectively completed until November, 1984.
9. Concurrently, the Department’s staff began preparing an options paper, explaining the major policy issues before the Department and alternatives for resolving them. The final options paper incorporated data from the two studies, and requested the views of the Department’s concerned policymaking officals [sic] on the issues and alternatives. These officials have made their recommendations in response to the options paper.
10. A decision paper incorporating these recommendations has been transmitted to the Secretary for her action. Following the Secretary’s decisions on the issues raised in this paper, Department staff will be in a position to complete drafting the portions of the regulation covered by the decision paper. (First drafts of other parts of the final rule, primarily involving administrative matters, have already been written.)
11. When a complete final rule has been drafted, it will be circulated within the Department. Circulation of the Regulatory Impact Analysis occurs at the same time. This circulation and concurrence procedure is required for significant Department of Transportation rules by the Department’s Regulatory Policies and Procedures (44 Fed.Reg. 11034 (1979)).
12. Following the Secretary’s concurrence, the final rule must be transmitted to DOJ and OMB for review and approval under Executive Orders 12250 and 12291, respectively. (The Regulatory Impact Analysis must also be submitted to OMB.) Executive Order 12250 does not specify any time limit for DOJ consideration. Executive Order 12291 specifies a 30-day time period for OMB consideration of a major final rule, but OMB may, at its discretion, extend review indefinitely.
13. Following DOJ and OMB clearance of the final rule, the Department will publish the final rule in the Federal register. Absent good cause for making the rule effective immediately upon publication, the rule would become effective 30 days later.

Declaration of Robert C. Ashby, 1-5.

V. Discussion

The Defendant has put forth a lengthy and persuasive argument that the full administrative procedure for drafting and reviewing the final regulations be permitted to go forward unchecked. This Court is aware of the need to implement clear and effective regulations capable of withstanding the scrutiny of challenges following enactment, and it has no intention of unnecessarily undercutting an effective evaluation process in the preparation of such regulations.

Nevertheless, the Court also is aware that over two years have passed since the firm deadline of July 6, 1983 for publishing of final regulations in this area, as set by the Congress in the Surface Transportation Assistance Act of 1982. 49 U.S.C. § 1612(d). That deadline was imposed to insure that parties such as Plaintiffs, namely disabled, handicapped or elderly persons or associations, gain access to fixed-route bus systems such as METRO which receive federal funds for their operation. The Secretary continues to violate the express language of the 1982 Act, and this Court is not prepared to sit by and condone the Secretary’s unimaginably leisurely pace in performing her functions while the Plaintiffs’ class awaits implementation of the will of Congress.

This Court will, therefore, order the Secretary of Transportation to complete, within ten (10) days of the Order herein, the drafting of the Final Regulations and to submit them forthwith for review to the Office of Management and Budget (“OMB”) and the Department of Justice (“Justice”) with her request for urgent consideration of them by those agencies. The Court will also order that the Secretary make continuing efforts to obtain prompt action from the Department of Justice and the OMB. Finally, the Court will order the Defendant -to make a report to this Court every fifteen (15) days regarding her knowledge of the progress of the OMB and Justice reviews of the regulations and a detailed description of the efforts of the Secretary in each fifteen-day period to accelerate that review process and a statement of the results thereof.

The Court recognizes the need for an informed evaluation and review of the new regulations. It also acknowledges the import of Executive Orders 12291 and 12250, mandating review by OMB and Justice, respectively, of new and final regulations. In addition, the Court has no intention of requiring the Secretary to perform a reviewing task which is impossible to meet, however unfortunate that may be. NRDC v. Train, 510 F.2d 692, 712 (D.C.Cir.1975); State v. Gorsuch, 554 F.Supp. 1060 (S.D.N.Y.1983).

Nevertheless, the Secretary bears a heavy burden of proving impossibility as a defense to noncompliance with the deadlines imposed by Congress. Alabama Power Co. v. Costle, 636 F.2d 323, 359 (D.C.Cir.1979), cited with approval in State v. Gorsuch, 554 F.Supp. at 1064. While it is apparent that much of the review process at the Department of Transportation itself has already taken place, such as the comment period and the review of all comments, the preparation of a final options paper utilizing data from the case studies and the computer model of costs and benefits, and a decision paper with recommendations for review by the Secretary, the delay in meeting the statutory promulgation deadline is not wholly justified. The Court’s Order will not undercut additional analysis of the regulations: first, the OMB and Justice reviews still will take place, with an appropriate stimulus for promptitude by the Secretary and under the scrutiny of this Court; second, the Secretary is permitted to expeditiously complete her own review, provided she forthwith transmits copies of the drafts to OMB and Justice.

VI. Order

For the foregoing reasons, it is hereby ORDERED:

(1) That the Defendant, Elizabeth Dole, Secretary of the United States Department of Transportation, complete within ten (10) days of the date of this Order the drafting of final regulations under the Surface Transportation Assistance Act of 1982, 49 U.S.C. § 1601, et seq.;
(2) That the Defendant transmit such regulations by appropriate means within (10) days of the date of this Order to the Office of Management and Budget and the United States Department of Justice for their review and urge those agencies to consider and respond to the proposed final regulations on an urgent basis;
and
(3) That the Defendant make reports to this Court every fifteen (15) days as to the progress of the review by the Office of Management and Budget and the Department of Justice, and as to efforts by Defendant to accelerate that review process.

      . Title 29 U.S.C. § 794 provides as follows:
      No otherwise qualified handicapped individual in the United States, as defined in section 706(7) of this title, shall, solely by reason of his handicap, be excluded from the participation in; be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service. The head of each such agency shall promulgate such regulations as may be necessary to carry out the amendments to this section made by the Rehabilitation, Comprehensive Services, and Developmental Disabilities Act of 1978. Copies of any proposed regulation shall be submitted to appropriate authorizing committees of the Congress, and such regulation may take effect no earlier than the thirtieth day after the date on which such regulation is so submitted to such committees.

      . 41 Fed.Reg. 17871 (1976).

       43 Fed.Reg. at 2139.


source: Caselaw Access Project

author: SHADUR, District Judge.

license: Public Domain

text:
    Robert ZICK, Plaintiff, v. VERSON ALLSTEEL PRESS CO., Defendant.
    No. 85 C 6598.
    United States District Court, N.D. Illinois, E.D.
    Dec. 3, 1985.

      Richard J. Puchalski, Doss, Puchalski, Keenan & Bargiel, Chicago, 111., for plaintiff.
    Robert Zielinski, Mayer, Brown & Platt, Chicago, 111., for defendant.
   MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Robert Zick (“Zick”) sues Verson Allsteel Press Co. (“Verson”), alleging Verson terminated his employment in violation of. the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-34 (Count I) and—as a pendent claim—in breach of an implied contractual covenant of good faith and fair dealing under Illinois law (Count II). Verson now moves under Fed.R.Civ.P. (“Rule”) 12(b)(6) to dismiss Count II and under Rule 11 for sanctions. For the reasons stated in this memorandum opinion and order, Verson’s motion is granted in both respects.

Facts

For purposes of this opinion, the relevant facts are few. Zick was hired by Verson in 1956. After twenty-eight years as a Verson employee, Zick (then fifty-six years old) was fired July 27, 1984. Zick makes no allegation he had an express employment contract, nor does he allege Verson ever specifically undertook not to fire him except for cause.

“Good, Faith and Fair Dealing”

Verson principally contends Zick was an “at will” employee whom it could fire at any time “for any reason, or none at all.” Martin v. Federal Life Insurance Co., 109 Ill.App.3d 596, 600, 65 Ill.Dec. 143, 147, 440 N.E.2d 998, 1002 (1st Dist.1982). Zick does not dispute his at-will status, but he argues an at-will employment contract, like all contracts in Illinois, incorporates an implied covenant of good faith and fair dealing (the “Implied Covenant”). That Implied Covenant, in Zick’s view, imposes “a substantive limitation on the employer’s right to discharge” (Zick Mem. 4).

Before this opinion addresses the argument as Zick presents it, the Rule 11 issue makes it worthwhile to note arguments he expressly does not present:

1. Zick’s claim is purely contractual. He does not assert the tort of retaliatory discharge.
2. He does not allege any express promise of job security or permanent employment, nor does he allege he and Verson bargained over such promises. See Martin, 109 Ill.App.3d at 600-03, 65 Ill. Dec. at 147-49, 440 N.E.2d at 1002-04 (discussing requirement of specific bargaining to rebut presumption employment contract is at will).
3. He does not claim the Implied Covenant is to be implied-in-fact from his course of dealing with Verson.
4. He makes no quasi contractual or quantum meruit claim.

In short, Zick argues the Implied Covenant is a part of his at-will employment contract “as a matter of law” (Zick Mem. 5), essentially as a compulsory term. See Restatement (Second) of Contracts 2d (“Restatement”) § 205 (1979):

Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.

As a general principle of contract construction, the Restatement position is of course unexceptionable. See Martindell v. Lake Shore National Bank, 15 Ill.2d 272, 286, 154 N.E.2d 683, 690 (1958); Bonner v. Westbound Records, Inc., 76 Ill.App.3d 736, 744-45, 31 Ill.Dec. 926, 932-33, 394 N.E.2d 1303, 1309-10 (1st Dist.1979). But Zick’s interpretation of the scope of the good-faith-and-fair-dealing doctrine is totally awry. That requirement is not an enforceable legal duty to bp nice or to behave decently in a general way. Instead the phrase “good faith” is more a term of art, having a number of meanings as used in contract law (Restatement § 205 comment a):

1. Good faith is an obligation to refrain from acts or omissions tending to defeat the justified and reasonable expectations of the parties to a contract. Id.; Corbin on Contracts § 654 D, at 804 (Kaufman supp. 1984 pt. 1).

2. Good faith is a tool for interpreting contractual provisions. It “comes into play in defining and modifying duties which grow out of specific contract terms and obligations. It is a derivative principle.” Gordon v. Matthew Bender & Co., 562 F.Supp. 1286, 1289 (N.D.Ill.1983). As Martindell, 15 Ill.2d at 286, 154 N.E.2d at 690 observed:

[Wjhere an instrument is susceptible of two conflicting constructions, one which imputes bad faith to one of the parties and the other does not, the latter construction should be adopted.

3. Finally, good faith has been construed as an obligation to refrain from certain types of conduct “because they violate community standards of decency, fairness or reasonableness.” Restatement § 205 comment a. But this is a limited and discretely-bounded public-policy exception, prohibiting acts not expressly breaches of the terms of a contract yet offensive to the community. See, e.g., Palmateer v. International Harvester Co., 85 Ill.2d 124, 132-33, 52 Ill.Dec. 13, 16-17, 421 N.E.2d 876, 879-80 (1981) (against public policy to discharge at-will employee for reporting potentially criminal activity of fellow-employee to law-enforcement authorities); Kelsay v. Motorola, Inc., 74 Ill.2d 172, 181-82, 23 Ill.Dec. 559, 563-64, 384 N.E.2d 353, 357-58 (1978) (same where at-will employee is fired for applying for statutory workers’ compensation).

None of those concepts of “good faith” applies to the Implied Covenant as Zick asserts it. As to the last-described meaning of the term, Zick does not articulate a public-policy rationale comparable to that expressed in Palmateer and Kelsay. As to the second, there are no express contractual terms in need of interpretation or clarification. And as to the first (and perhaps most important) of the meanings of “good faith,” discharge whenever and for whatever reason an employer chooses is a basic component of an at-will contract. Thus that sort of discharge cannot logically be said to contradict or frustrate the reasonable and justifiable expectations of the employee. As Judge Hart of this District Court observed in a case much like Zick’s (Gordon, 562 F.Supp. at 1290):

Since Gordon was an at will employee, the duty to deal in good faith was appended to nothing which had independent life. Therefore no cause of action predicated only on the good faith principle may stand____

True enough, courts in some other jurisdictions have adopted a broader role for the concept of good faith in at-will employment contracts. See, e.g., the landmark case of Monge v. Beebe Rubber Co., 114 N.H. 130, 316 A.2d 549, 551 (1974) (employer may not terminate an at-will employee if motivated by bad faith or malice). What those courts have really done is essentially to abolish the at-will contract as it has been known at common law.

Zick in essence asks this Court to follow the path cleared by Monge, a move this Court has already declined to take because it cannot do so. See Scott v. Sears, Roebuck & Co., 605 F.Supp. 1047, 1052-53 (N.D.Ill.1985):

Despite her admitted at-will employee status, Scott claims Illinois law implies a covenant of good faith and fair dealing that limits the circumstances under which Sears could discharge her. But that is not the law in Illinois.

That last sentence is really the crucial stumbling block Zick cannot overcome. According to well-established principles of federal jurisprudence, this Court must apply state law to a pendent state-law claim. Just as in diversity cases, federal courts do not participate in the evolution of state law. In diversity and pendent jurisdiction cases, federal jurisprudence is rubber-stamp jurisprudence.

Zick’s case is not even a close call. As the cases already cited demonstrate, Illinois courts have shown no inclination whatever to back away from the traditional at-will rule. Nothing could be clearer than the statement made in Criscione, 66 Ill.App.3d at 669-70, 23 Ill.Dec. at 459, 384 N.E.2d at 95 (quoting Loucks v. Star City Glass Co., 551 F.2d 745, 747 (7th Cir.1977)):

Furthermore, requiring an employer in an at will relationship to terminate an employee only for a legitimate business reason absent any other restrictions by contract or statute would place the courts in the untenable position of having to assess an employer’s business judgment. There has been no attempt by the legislature to so alter the State’s employment policy and such a step is not one for the courts to make. The rule in this state is that an employment at will relationship can be terminated for “a good reason, a bad reason, or no reason at all.”

Only last May the Illinois Supreme Court forcefully reaffirmed that Illinois rule in Barr v. Kelso-Burnett Co., 106 Ill.2d 520, 525, 88 Ill.Dec. 628, 633, 478 N.E.2d 1354, 1356 (1985):

Contrary to plaintiffs’ assertion, however, this court has not, by its Palmateer and Kelsay decisions, “rejected a narrow interpretation of the retaliatory discharge tort” and does not “strongly support” the expansion of the tort. The common law doctrine that an employer may discharge an employee-at-will for any reason or for no reason is still the law in Illinois, except for when the discharge violates a clearly mandated public policy.

Zick tries to invoke a dictum in Dayan v. McDonald’s Corp., 125 Ill.App.3d 972, 991, 81 Ill.Dec. 156, 170, 466 N.E.2d 958, 972 (1st Dist.1984) (citations omitted):

In describing the nature of that limitation [imposed by the doctrine of good faith performance] the courts of this state have held that a party vested with contractual discretion must exercise that discretion reasonably and with proper motive, and may not do so arbitrarily, capriciously, or in a manner inconsistent with the reasonable expectations of the parties____ Where a party acts with improper motive, be it a desire to extricate himself from a contractual obligation by refusing to bring about a condition precedent or a desire to deprive an employee of reasonably anticipated benefits through termination, that party is exercising contractual discretion in a manner inconsistent with the reasonable expectations of the parties and therefore is acting in bad faith.

But the key to that Dayan statement is the phrase “the reasonable expectations of the parties” (an echo of the Restatement and Corbin). If an employee has an at-will contract, the only reasonable expectation created by that contract is that he or she can be terminated for “a good reason, a bad reason, or no reason at all.” Absent a showing of some separate express or implied undertaking by the employer, the fact the at-will employee has put in many years’ service with the employer does not give rise to any presumption of tenure. Barr, Palmateer, Kelsay, Wheeler and Price overwhelmingly illustrate the Illinois principle that “bad faith” in the at-will context must amount to a clear breach of articulated public policy, not merely the deprivation of non-vested accrued pension or retirement rights. See Stevenson v. ITT Harper, Inc., 51 Ill.App.3d 568, 572, 9 Ill. Dec. 304, 309, 366 N.E.2d 561, 566 (1st Dist.1977) (where pension agreement provides for no vesting until age 65, no promise to alter employee’s at-will status is presumed).

In summary, Zick’s argument is addressed to the wrong forum. This Court cannot take Illinois law into uncharted waters, and the purported map Zick tenders is a hoax, leading to no buried treasure. Count II must be and is dismissed.

Sanctions

Verson has also moved for an award of sanctions under Rule 11:

The signature of an attorney [on a motion] constitutes a certificate by him that he has read the motion[,] ... that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation____ If a ... motion ... is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party ... the amount of the reasonable expenses incurred because of the filing of the ... motion[,] ... including a reasonable attorney’s fee.

Rule ll’s standard is not subjective. Its test is not what the signing attorney believed was warranted, but what “a competent attorney” would reasonably believe “after reasonable inquiry.” Indianapolis Colts v. Mayor and City Council of Baltimore, 775 F.2d 177, 181 (7th Cir.1985) (quoting Eastway Construction Corp. v. City of New York, 762 F.2d 243, 254 (2d Cir.1985)).

Eastway, id., in observing Rule 11 does not contemplate sanctions based on an attorney’s subjective bad faith, stated sanctions must be awarded where a competent attorney after reasonable inquiry must say a claim “was destined to fail.” See also In re TCI Ltd., 769 F.2d 441, 445 (7th Cir.1985) (even Rule ll’s “good faith” standard for proposed change in existing law is objective). In Zick’s case that test is not difficult to apply. Zick’s attempt to milk current precedents for support is wholly unavailing: After Barr (which Zick does not attempt to distinguish) any argument based on “existing law” was “destined to fail” in this Court. Indeed, nothing has intervened since this Court’s ruling in Scott to hint that decision was incorrect when rendered or is now.

Further, though in an Illinois state court Zick might perhaps have had a “good faith argument for the extension, modification, or reversal of existing law,” any argument of that type was also doomed to failure in this Court. As this opinion has already pointed out, the firmly-entrenched canon is that this federal court is bound to follow— not lead—state-court jurisprudence. Arguments that might have persuaded an Illinois court (though given the posture and recency of the Illinois cases, even that possibility is highly remote at best) simply cannot be accepted here. Zick has unsuccessfully argued the dicta in the Illinois cases to or beyond their absolute limit, and his bootless effort has only proved that by any objective standard, Count II was “destined to fail.” Compare Textor v. Board of Regents of Northern Illinois University, 87 F.R.D. 751, 754 (N.D.Ill.1980) (discussing, in the context of the earlier and less strict version of Rule 11, the appropriate assertion of a claim the law ought to be changed).

Conclusion

Verson’s motion to strike Count II of the Complaint and for sanctions under Rule 11 is granted (the sanctions are imposed on Zick’s counsel with no right to reimbursement from Zick, absent a showing that would justify sanctioning the client for the choice of legal arguments advanced on his behalf). To minimize (or even avoid) the need for an evidentiary hearing (with its potential for “fees on fees”), this Court urges counsel to seek agreement in as many areas as possible on the relevant factors (such as time spent, hourly rates and so on). Thereupon Verson should submit a modified fees petition, together with a statement of the issues upon which the parties are agreed and those on which they have disagreed. This Court will establish the procedures appropriate to carry on from that point.

      . Familiar Rule 12(b)(6) principles require this Court to accept as true the Complaint's well-pleaded factual allegations, drawing all reasonable inferences in Zick’s favor. Wolfolk v. Rivera, 729 F.2d 1114, 1116 (7th Cir.1984). In any event the current motion raises no factual disputes.

      . Neither Verson’s business nor Zick's job description appears in the record.

      . Both Palmateer and Kelsay characterized the employees’ actions as sounding in the tort of "retaliatory discharge.” Zick expressly states his action is on the contract and not in tort, and he does not rely on those cases. Thus he urges a general obligation, present in all employment-at-will contracts, not to fire an employee without just cause. Clearly that is at war with the universal rule, and it finds no support in the limited exception articulated in Palmateer and Kelsay.

      . Indeed, he could not do so. Zick Mem. 4 argues he was fired so Verson could avoid its obligation to pay increased pension benefits. But the public-policy rationale has been extended only to policies established by statute (Kelsay) or constitutional principles (Palmateer). Where discharge was for the purpose of avoiding a benefit the employer was not obligated by law to provide, the Kelsay-Palmateer approach is inapplicable. Contrast Wheeler v. Caterpillar Tractor Co., 108 Ill.2d 502, 510, 92 Ill.Dec. 561, 566, 485 N.E.2d 372, 377 (1985) (finding retaliatory discharge actionable where at-will employee refused to operate equipment not meeting federally mandated safety codes relating to radioactive materials) with Price v. Carmack Datsun, Inc., 109 Ill.2d 65, 68, 92 Ill.Dec. 548, 550, 485 N.E.2d 359, 361 (1985) (finding non-actionable a retaliatory discharge of at-will employee for filing a claim under employer’s group health insurance plan). See also Powers v. Delnor Hospital, 135 Ill.App.3d 317, 322-23, 90 Ill. Dec. 168, 172, 481 N.E.2d 968, 972 (2d Dist.1985):
      [T]he employer’s lying to an employee and in its internal records is not against any clearly mandated public policy. It may be that as a matter of private morality and out of respect for its employees as people an employer should be truthful when it gives reasons for terminating an employee. However, these are personal matters and not the subject of public policies.

      . Of course, the employee in an at-will contract has the option to walk off the job at any time. Thus at-will contracts are said—even though social or economic reality may be otherwise—to embody "mutuality of obligation.” Criscione v. Sears, Roebuck & Co., 66 Ill.App.3d 664, 669, 23 Ill.Dec. 455, 459, 384 N.E.2d 91, 95 (1st Dist.1978).

      . That Erie v. Tompkins notion is now approaching the half-century mark—almost exactly half as old as the Swift v. Tyson doctrine when Erie supplanted Swift. In constitutional terms, Swift and not Erie is really responsive to the Supremacy Clause, see 2 W.W. Crosskey, Politics and the Constitution in the History of the United States, ch. xxiii-xxvi (1953) and the cases cited in n. 11 of this opinion. However, responsible jurisprudence precludes this Court from being more than a voice crying in the wilderness on that subject.

      . There are mixed views among federal judges as to the degree of latitude they possess in the absence of an authoritative recent statement by the state supreme court; see the exchange of views culminating (and cited) in this Court’s opinion in Abbott Laboratories v. Granite State Insurance Co., 573 F.Supp. 193, 196-200 (N.D.Ill.1983). None of those views, however, would help Zick here.

      . Zick appears to rely on Stevenson, 51 Ill. App.3d at 573, 9 Ill.Dec. at 310, 366 N.E.2d at 567 (citations omitted):
      It is correct, as plaintiff urges, that every contract necessarily includes as a matter of law covenants that contractual duties of the parties will be performed in good faith____ This principle does not aid plaintiff because the record does not suggest that plaintiff's termination was a bad faith effort by ITT Harper to avoid its conditional duty to pay pension benefits. On the contrary, the decision to discharge plaintiff appears to have been based on sound business reasons.
      Though that language might perhaps be read to imply a discharge solely to avoid vesting of pension benefits is in bad faith, Stevenson nowhere supplies authority for that implication. Most significantly, any such implication runs contrary to the more recent and definitive pronouncements by the Illinois Supreme Court, culminating in Barr and Price.

        . Verson has also argued even if Zick’s theory of the Implied Covenant were correct, all state-law causes of action relating to employment discrimination are preempted by the Illinois Human Rights Act, Ill.Rev.Stat. ch. 68, ¶¶ 1-101 to 9-102. In light of the just-completed discussion in this entire section, it is unnecessary to reach that question.

      . On that score Zick’s appeal to Badillo v. Central Steel & Wire Co., 717 F.2d 1160, 1164-65 (7th Cir.1983), affirming this Court’s July 21, 1982 decision, No. 79 C 2122, is unavailing. Badillo canvassed standards of attorneys’ fees awards to a prevailing employment discrimination defendant under 42 U.S.C. §§ 2000e-5(k) and 1988. It held the complaint of a pro-se litigant who relied on the EEOC’s determination of reasonable cause was not "frivolous" under the test of Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978). It would be hard to imagine a less parallel set of facts. And to the extent Badillo, id. at 1165 discussed the imposition of sanctions "under the general equitable powers of the court to impose sanctions for ‘bad faith’ conduct,” it applied a test of subjective bad faith that does not apply to Rule 11 as amended in 1983. Indianapolis Colts simply reflected our Court of Appeals’ adherence to principles previously announced by many other courts (including this one) under the more stringent 1983 amendment to Rule 11. All the cases agree Rule 11 does not require an actual bad motive to trigger sanctions—that is, subjective bad faith is a sufficient, but not a necessary, condition for Rule 11 sanctions.

      . Though this Court has (as earlier in this opinion) frequently expressed its disagreement as a jurisprudential matter with the Erie doctrine, in the course of expressing that disagreement it has necessarily frequently observed that doctrine must be followed by the lower federal courts. Zick would have done well to have read this Court’s observation in Meridian Homes Corp. v. Nicholas W. Prassas & Co., 504 F.Supp. 636, 642 (N.D.Ill.1980) (footnote omitted):
      One of the many flaws in the Erie v. Tompkins doctrine is that it places the federal courts not on a parity with the state courts in diversity cases (as its proponents claim), but rather makes them subordinate. If a lower state court regards a decision of its higher court as outmoded or too broad, it may reach a different decision and leave review to a higher court. That luxury is not permitted to the federal court, which must slavishly follow the state precedent.
      See also National Can Corp. v. Whittaker Corp., 505 F.Supp. 147, 148-49 n. 2 (N.D.Ill.1981) (discussing and agreeing with Professor Crosskey's views on Erie); Abbott Laboratories, 573 F.Supp. at 200 (federal judiciary "imprisoned by what we might view as the state law’s inadequacies or injustices”).

      . Zick responds in part that Rule 8(e)(2) allows for pleading in the alternative. That response is of course wholly irrelevant. Rule 8(e)(2) states (emphasis added):
      When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. ■ A party may also state as many separate claims ... as he has regardless of consistency____ All statements shall be made subject to the obligations set forth in Rule 11.

      That last sentence shows Zick's Rule 8(e)(2) defense to Verson's motion for sanctions is perhaps even more certainly destined to fail than his Count II claim. Certainly a party may plead alternative—even contradictory—legal theories. But each theory pleaded must individually withstand Rule 11 scrutiny, and Zick’s state law claim does not. This Court ^need not now decide whether to subscribe to the recent dictum in Martinez, Inc. v. H. Landau & Co., 107 F.R.D. 775 (N.D.Ind.1985), for the situation there was critically different from this one. There the court declined to invoke Rule 11 sanctions on the theory that two of four arguments advanced in support of a motion to dismiss were without basis in law (though the court ultimately held the arguments were tenable anyway). Under the assumed circumstances the court held it must look to the merits of the motion as a whole and not pick off particular arguments within it as a basis for Rule 11 sanctions. That concept appears at odds with both the language of, and the rationale for, the 1983 amendment to Rule 11. But in light of the express wording of Rule 8(e)(2)—and in light of the fact Zick's Count II is a discrete claim advancing a legal theory wholly separate from the Count I ADEA claim—the Martinez dictum (if sustainable in any case) is inapplicable here in any event.


author: LATCHUM, Senior District Judge.

text:
    In re TIDAL EQUIPMENT COMPANY, INC., a Delaware corporation, United States of America, Plaintiff-Intervenor.
    Civ. A. No. 81-75-JLL.
    United States District Court, D. Delaware.
    Dec. 3, 1985.

      Glenn E. Hitchens, of Morris, James, Hitchens & Williams, Dover, Del., for petitioner Marjorie M. Hanhauser.
    Robert K. Beste, of Biggs & Battaglia, Wilmington, Del., for Harry J. Michaelson.
    N. Maxson Terry, Jr., of Terry, Jackson & Wright, Dover, Del., Receiver for Tidal Equipment Co., Inc.
    Sue L. Robinson, Asst. U.S. Atty., Wilmington, Del., and John S. Miles, Trial Atty., Tax Div., U.S. Dept, of Justice, Washington, D.C., for plaintiff-intervenor, U.S. of America.
   FINDINGS OF FACT AND CONCLUSIONS OF LAW

LATCHUM, Senior District Judge.

This Court sitting in equity held an evidentiary hearing on October 25, 1985, after due notice to all parties in interest, in order to determine who owned the shares of stock of Tidal Equipment Company, Inc., a Delaware corporation in dissolution. After carefully considering the sufficiency and weight of the testimony adduced at the hearing, the demeanor and credibility of the witnesses who testified, the documents admitted into evidence, the file in this case, and the post-trial submissions of the interested parties, the Court enters the following findings of fact and conclusions of law required by Rule 52(a), Fed.R.Civ.P.

FINDINGS OF FACT

1. This is a proceeding for the dissolution of Tidal Equipment Company, Inc. (“Tidal”), a Delaware corporation, pursuant to 8 Del.C. § 273. The proceeding was originally filed in the Court of Chancery of the State of Delaware in and for Kent County on December 19, 1979. (Docket Item [“D.I.”] 9, Ex. 1.) The Court of Chancery on January 28, 1981, permitted the United States of America to intervene in the proceeding pursuant to 26 U.S.C. § 7424 (D.I. 9, Ex. 23) in order to assert Federal tax liens against the property owned by George J. Hanhauser. (Id., Ex. 22.) On February 23, 1981, this proceeding was removed from the Court of Chancery to this Court in accordance with 28 U.S.C. §§ 1444, 2410, 1345 and 1441(b). (D.I. 1.) As previously noted, the present dispute concerns the ownership of Tidal’s stock.

2. The dissolution proceeding was instituted by the filing of a verified Petition by George J. Hanhauser and Marjorie M. Hanhauser, his wife. (D.I. 9, Ex. 1.) The petition avers that:

(a) Mr. & Mrs. Hanhauser and Harry J. Michaelson (“Michaelson”) in the summer of 1975 agreed to engage in the metal container business (i.e., purchasing, refurbishing and resale of metal shipping containers). (Id., Ex. 1, 114.)

(b) In order to carry out this agreement, on October 24, 1975, the Hanhausers and Michaelson formed Tidal under the name “Tidal Equipment Corporation, Inc.,” but later on January 29, 1976, through an amendment of the Certificate of Incorporation the corporate name was changed to “Tidal Equipment Company, Inc.” which name has remained to date. (Id. II3.)

(c) The Hanhausers “agreed to equally share in the profits and losses of the business venture” with Michaelson (id. II7); it was agreed that a stock certificate evidencing ownership of one-half of the outstanding shares of Tidal would be issued to the Hanhausers “in the name of Marjorie M. Hanhauser” (id. II8); a stock certificate (which cannot be found) “was prepared evidencing the ownership of 100 shares of [Tidal] stock by George and Marjorie M. Hanhauser.” (Id.)

(d) The Hanhausers and Michaelson, as shareholders, had been “unable to agree upon the desirability of discontinuing the joint venture and disposing of the assets of Tidal” (including a wholly-owned subsidiary, Coastal Leasing, Inc. (“Coastal”). (Id. ¶ 13.)

(e) The petition for dissolution was filed by the Hanhausers because Tidal had not been run effectively since mid-1979 when Mr. Hanhauser became ill and Michaelson’s proposal (for the transfer of all Tidal stock to him in return for all Coastal stock to the Hanhausers) was still being negotiated but Tidal was unable to conduct its business effectively. (Id. ¶¶ 9, 10, 11 & 12.)

(f) The Hanhausers thus prayed that the Chancellor enter an order dissolving Tidal and, after the payment of all debts, distributing the remaining funds to Michaelson and the Hanhausers. (Id. Ex. A.)

3. Michaelson in his response on April 16, 1980, to the petition for dissolution generally admitted the averments of the petition but emphatically denied that he had ever entered into an agreement with Marjorie M. Hanhauser (D.I. 9, Ex. 7, ¶ 4) and denied that there was an agreement that any stock certificate would be issued to Mrs. Hanhauser alone. (Id. 11 8.) Michael-son did dispute that Tidal was insolvent and proposed a somewhat different plan of dissolution and distribution of Tidal’s assets. (D.I. 9, Ex. 7.)

4. By a Stipulation and Order entered in the Delaware Court of Chancery on January 28, 1981, Tidal was dissolved and N. Maxson Terry, Jr., was appointed Receiver of Tidal under 8 Del.C. § 279 and has since then served in that capacity. (D.I. 9, Ex. 32.) Over the course of the past several years the affairs of Tidal have been substantially wound up.

5. When the Court of Chancery entered an order permitting the United States to intervene in the proceedings (D.I. 9, Ex. 23), the United States filed a complaint in intervention (id., Ex. 21.) That complaint in substance alleged that Mr. Hanhauser owed the United States a substantial amount of income taxes for the years 1966, 1967, 1968 and 1969 together with penalty and interest thereon and prayed that the Court adjudge that Mr. Hanhauser was indebted to the United States, that it did have valid and subsisting tax liens which encumbered Mr. Hanhauser’s 50% stock interest in Tidal, that the tax liens be foreclosed against his 50% stock interest in Tidal, and that if Tidal is dissolved the proceeds in dissolution due to Mr. Hanhauser be distributed to the United States towards satisfaction of his outstanding tax liabilities. (Id.)

6. On March 30, 1981, when Mr. Hanhauser did not answer or otherwise plead to the United States’ complaint in intervention, the Clerk of this Court upon the Government’s motion entered a default against Mr. Hanhauser pursuant to Rule 55(a), Fed.R.Civ.P. (D.I. 4.)

7. On June 3, 1981, this Court upon the United States’ motion entered a default judgment against Mr. Hanhauser in favor of the United States for delinquent income taxes, penalties and interest in the amount of $186,441.29, plus statutory additions. The Court also ruled that the tax liens of the United States were foreclosed against the proceeds from the dissolution and liquidation of Tidal which were due to Mr. Hanhauser, and that the Receiver distribute such proceeds to the United States up to the amount necessary to satisfy the judgment of June 3, 1981. (D.I. 11 & 12.)

8. Mr. Hanhauser predeceased his wife Marjorie on December 29, 1984 (Tr. 4).

9. At the evidentiary hearing and in her post-trial brief, Mrs. Hanhauser contends that she, and not her husband, was and is a 50% owner of Tidal’s stock, or alternatively, that 50% of Tidal’s stock was issued in the joint names of George and Marjorie Hanhauser as tenants by the entirety, and by virtue of Mr. Hanhauser’s death, she became the 50% stockholder of Tidal as the surviving spouse. (Tr. 3; D.I. 87, pp. 4-5.) On the other hand, the United States contends that 50% interest in Tidal was always owned by Mr. Hanhauser and not Marjorie Hanhauser. (Tr. 3; D.I. 88, p. 4.)

10. It is undisputed by any party that Mr. Michaelson owns 50% of Tidal. (D.I. 89, p.. 1; D.I. 88, p. 4.)

11. Tidal Equipment Corporation, Inc., was incorporated on October 24, 1975, pursuant to an agreement reached in mid-1975 between George J. Hanhauser, Jr. and Harry J. Michaelson. (GX 3, 4, 5; Tr. 80-82, 89-91, 93, 96-97.)

12. The original stock records of Tidal Equipment Corporation, Inc. were produced at trial by the Receiver of Tidal. (Tr. 48-52.) Copies of the relevant documents were introduced into evidence as GX 1 and 2. (Tr. 50-52.) GX 1 is comprised of two pages of the stock certificate book of Tidal Equipment Corporation, Inc., showing the issuance of stock certificates 1 and 2 on November 24, 1975. Certificate No. 1 for 50 shares was issued to Harry J. Michael-son as an original issue, and Certificate No. 2 for 50 shares was issued to George J. Hanhauser also as an original issue. (GX 1; Tr. 50.) GX 2 is a page from a stockholder register confirming the issuance of stock certificates nos. 1 and 2; it lists the stockholders in alphabetical order, indicating that certificates 1 and 2 were issued, respectively, to Mr. Michaelson and Mr. Hanhauser for 50 shares each on November 24, 1975, and that the amount paid by each certificate holder was $2,000. (GX 2; Tr. 51-52.)

13. The Certificate of Tidal Equipment Corporation, Inc., stated that George Hanhauser and Harry J. Michaelson were to act as the original directors to serve until the first annual meeting of shareholders. (GX 3, 11 Sixth.)

14. The preparation and filing of the Certificate of Incorporation was performed by Glenn E. Hitchens, Esquire (“Mr. Hitch-ens”), who dealt only with Messrs. Hanhauser and Michaelson. (GX 3, 4 & 5.)

15. Mr. Hitchens wrote Mr. Michaelson, with a copy to Mr. Hanhauser, on November 5, 1975, requesting information concerning a proposed 1975 Annual Franchise Tax Report of Tidal Equipment Corporation, Inc., and in that letter Mr. Hitchens suggested “that the stockholders of the corporation informally agree upon directors and officers to be elected for the coming year.” (GX 6.)

16. On December 2, 1975, Mr. Hitchens again wrote to Mr. Michaelson, with a copy to Mr. Hanhauser, transmitting for signature a proposed Certificate of Amendment to the Certificate of Incorporation, in order to change the corporate name from Tidal Equipment .Corporation, Inc. to Tidal Equipment Company, Inc. (GX 7.) Again on December 31, 1975, Mr. Hitchens wrote to Mr. Michaelson with a copy to Mr. Hanhauser inquiring about the Certificate of Amendment to the Certificate of Incorporation and about the payment for his services in forming the corporation. (Id.)

17. The Certificate of Amendment changing the corporate name was executed on January 22, 1976. The certificate recites that the amendment was approved at a special meeting of stockholders (GX 8) and was filed on January 29, 1976. (D.I. 9, Ex. 1, TI 3.b.)

18. Mr. Hitchens wrote Mr. Michaelson on April 28, 1976, with a copy to Mr. Hanhauser, stating that he, at Mr. Hanhauser’s request, had ordered and received a corporate kit composed of a corporate seal, stock certificate, minute book and set of model bylaws for Tidal Equipment Company, Inc. (GX 11.)

19. Sometime between April 28, 1975 (when Tidal’s corporate kit was received) and December 19, 1979 (when the Hanhausers’ petition was filed), new certificates for stock in the amended name of the corporation were issued. The stock record indicates that Certificate No. 1 for 50 shares was issued to “Harry J. Michaelson and/or Margaret Michaelson” and that Certificate No. 2 for 50 shares was issued to “Marjorie M. Hanhauser and/or George J. Hanhauser” and backdated to 11/24/75. (GX 9.) Certificate No. 1 for 50 shares indicated that “Harry J. Michaelson and/or Margaret Michaelson” were the owners of those shares. (GX 10.) It must be noted, however, that Mr. Michaelson’s name appears on the stock record (GX 9) in different handwriting than that of Mr. Michael-son’s name; in addition, the name of Mrs. Michaelson was inserted on Stock Certificate No. 1 by a different typewriter from that used for the typing of Mr. Michael-son’s name. (GX 10.) Mr. Michaelson testified that about two years after the corporation was set up, Mr. Hanhauser discussed the matter of Mrs. Hanhauser becoming a stockholder (Tr. 89) and that when Mr. Hanhauser discussed putting his wife’s name on the stock certificate, he said it was all right to add Mrs. Michaelson’s name. (Tr. 91.) Thus, Mrs. Michaelson’s name was added to the stock record in the handwriting of Mr. Michaelson, and Mr. Michaelson’s secretary typed Mrs. Michael-son’s name on certificate no. 1 previously issued to Mr. Michaelson. (Id.)

20. Tidal’s stock record does not indicate that any additional consideration was paid for those newly issued shares. (GX 9.) Indeed, Mrs. Hanhauser testified that no additional capital was paid to Tidal for stock (Tr. 17) and Mr. Michaelson also testified that $4,000 was the only amount paid in 1975 upon the formation of the company for stock. (Tr. 93, 99.) The only reasonable inference is that these shares of stock were issued as replacement certificates for the shares originally issued.

21. Mrs. Hanhauser testified that when Tidal was originally formed in 1975, she was to be 50 percent owner alone of its stock, Mr. Michaelson was to be the other 50 percent owner and that she made out her stock certificate in her own name. (Tr. 12-13.) Mr. Michaelson contradicts this testimony and testified that Mr. Hanhauser was the other 50 percent stockholder. (Tr. 83, 87, 89.) Mr. Michaelson also testified that it was not until at least two years later that Mr. Hanhauser proposed Mrs. Hanhauser as a stockholder. (Id.) The Court finds that Mr. Michaelson’s testimony, supported by only written documentary evidence (GX 1), is more likely so than not and that Mr. Hanhauser was the record owner of 50 percent of the stock when the company was first formed in 1975.

22. The Court also finds that sometime after the corporate name was changed in January 1976, replacement certificates were issued and backdated to replace the original certificates. At this point a discussion developed over who would be named in the replacement certificate as the 50 percent shareholders. Mr. Michaelson testified that Mr. Hanhauser then suggested putting Mrs. Hanhauser on the certificate as a 50 percent owner but that Mr. Michael-son resisted because he believed only he and Mr. Hanhauser should be stockholders according to their original agreement. (Tr. 85-86.)' Finally, Mr. Hanhauser suggested adding Mrs. Hanhauser to Mr. Hanhauser’s certificate and that Mrs. Michaelson’s name be added to Mr. Michaelson’s certificate. (Tr. 91.) It was then that this was accomplished with the understanding that Mrs. Hanhauser would have nothing to do with “running” the company. (Tr. 26, 91-92.) The exact date when Mrs. Hanhauser’s name was added to Mr. Hanhauser’s replacement certificate and when Mrs. Michaelson’s name was added to Mr. Michael-son’s replacement certificate cannot be fixed with any certainty. Mr. Michaelson testified, however, that it was a couple of years after the corporation was formed in 1975. (Tr. 89.)

23. The Court finds that the $2,000 which Mr. Hanhauser paid for his 50 percent of the stock of Tidal at the time the company was formed came from a joint checking account of Mr. and Mrs. Hanhauser to which both contributed with their salary checks. (Tr. 9, 10.) Mr. Michaelson recalls that Mr. Hanhauser showed him the check for $2,000 which Mr. Hanhauser had signed. (Tr. 82.) This testimony, however, is not inconsistent with Mrs. Hanhauser’s testimony that the check was drawn on the Hanhauser’s joint account.

24. Mrs. Hanhauser never took any part in the active running or the operation of the corporate business although she did discuss the business with her husband (Tr. 20, 88); moreover, Mrs. Hanhauser was never an officer or director of the company. (Tr. 28.)

25. The Hanhausers in the early 1970’s became aware that Mr. Hanhauser had tax problems with the Internal Revenue Service (“IRS”) as a result of Mr. Hanhauser’s business in operating another corporation known as Fab-Weld. Furthermore, Mr. Hanhauser’s tax attorney, Frank War-mouth, at some indefinite date, advised that Mr. Hanhauser should not go into business again and that Mrs. Hanhauser if she had anything in her name should keep it that way and not add Mr. Hanhauser’s name to it. (Tr. 18, 27-28.)

26. On April 4, 1979, assessments and notice of demand were given by the delegate of the Secretary of Treasury to George Hanhauser, pursuant to 26 U.S.C. § 6321, for past due taxes, interest and penalties then in the amount of $108,-897.37. (D.I. 11.) Additional assessments and notices of demand were given to Mr. Hanhauser on June 7, 1979, November 28, 1979, August 26, 1980, November 7, 1980, January 16, 1981 and February 4, 1981. (Id.)

CONCLUSIONS OF LAW

1. This action was properly removed to this Court from the Delaware Court of Chancery where it was commenced. The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1340 and 1345 and 26 U.S.C. §§ 7401 and 7403.

2. The original stock of Tidal was issued on November 24, 1975; Certificate No. 1 for 50 shares was issued to Harry J. Michaelson alone and Certificate No. 2 for 50 shares was issued to George J. Hanhauser alone.

3. Mr. Hanhauser paid $2,000 for his 50 shares of the original issue with a check drawn on a joint account with his wife Marjorie M. Hanhauser to which account each had deposited their income and salaries.

4. After the minor change of Tidal’s name in January 1976, replacement shares were prepared by the Hanhausers and submitted by Mr. Hanhauser to Mr. Michael-son. Replacement Certificate No. 1 for 50 shares was again issued in Mr. Michael-son’s name alone. However, Certificate No. 2 was prepared in the name of Marjorie M. Hanhauser alone. Mr. Michaelson objected to Mrs. Hanhauser as the other 50 percent owner of the outstanding shares. Apparently about two years later (in 1977), Mr. Hanhauser and Mr. Michaelson resolved the matter by changing the way the original shares were registered by adding Mrs. Michaelson’s name to Mr. Michael-son’s replacement Certificate No. 1 and by adding Mr. Hanhauser’s name along with Mrs. Hanhauser’s name to replacement Certificate No. 2.

5. The effect of this change of names on the Hanhauser shares was to turn the stock from the individual ownership by Mr. Hanhauser into shares held in joint tenancy similar to tenancy by the entirety because Mr. & Mrs. Hanhauser were husband and wife. This is particularly true since the shares were initially paid for by funds from their joint checking account to which each had contributed. Moser v. Moser, 287 A.2d 398, 400 (Del.Supr.1972); Reinhart v. Reinhart, 22 Del.Ch. 431, 180 A. 913 (1935); Ciconte v. Barba, 19 Del.Ch. 6, 161 A. 925 (1932).

6. The only testimony as to this change in ownership indicates that it occurred about two years after the corporation was formed—some time in 1977.

7. The replacement certificate for the 50 shares of Tidal to Marjorie M. Hanhauser and/or George Hanhauser created an estate by the entireties, that is, Mr. & Mrs. Hanhauser from 1977, but neither of them alone, were stockholders of Tidal. Upon the death of one tenant, the survivor continues to own the same estate in the shares, held by both of them prior to the death of one. In re Giant Portland Cement Co., 26 Del.Ch. 32, 21 A.2d 697, 703 (1941).

8. The tax lien of the United States against Mr. Hanhauser did not become effective against his personal property until April 4, 1979.

9. The Government’s lien therefore did not attach against the shares held jointly by Mr. & Mrs. Hanhauser as tenants by the entirety when created in 1977.

10. Upon Mr. Hanhauser’s death on December 29, 1984, the 50 shares of Tidal in the names of “Marjorie Hanhauser and George J. Hanhauser” devolved upon her alone by operation of law.

11. The United States further contends that if the replacement certificate was transferred from Mr. Hanhauser to him and his wife as tenants by the entirety, such a transfer would be void as fraudulent because Mr. Hanhauser was insolvent at the time. The Court, however, is unable to conclude from the evidence in the case that Mr. Hanhauser was insolvent in 1977 —the time when the replacement certificate was issued jointly to Mr. & Mrs. Hanhauser—and therefore is unable to hold that the transfer was fraudulent. At that time the substantial tax liens of the United States against Mr. Hanhauser did not become effective until some two years later. True, there was evidence that Mr. Hanhauser left no estate at the time of his death on December 29, 1984 (D.I. 83, p. 58) but that was some several years after the stock was issued jointly.

12. The Court therefore concludes based on the credible evidence that Marjorie M. Hanhauser is now the sole owner of 50 shares (one-half) of the outstanding shares of Tidal which she holds free and clear of any United States tax lien against George Hanhauser. Thus, she is entitled to 50 percent of the distributable proceeds due the stockholders in this dissolution proceeding free and clear of any claim for taxes due from Mr. Hanhauser.

An order will be entered in accordance with these findings of fact and conclusions of law.

      . The trial transcript is D.I. 86 and will be referred to herein as Tr. followed by the page number of the transcript.

      . "GX" refers to Government Exhibits admitted into evidence.


text:
    W. Mae BRUTON, Plaintiff, v. The DIAMOND STATE TELEPHONE COMPANY, a corporation of the State of Delaware, Defendant.
    Civ. A. No. 85-15-JLL.
    United States District Court, D. Delaware.
    Dec. 4, 1985.

      Christopher B. Wolfe of Priestley & Joseph, Wilmington, Del, for plaintiff.
    Douglas B. Catts of Schmittinger & Rodriguez, Dover, Del., and Robert J. Costagliola of The Diamond State Telephone Co., Philadelphia, Pa., for defendant.
   OPINION

LATCHUM, Senior District Judge.

This is a civil rights action brought by plaintiff, W. Mae Bruton (“Bruton”), against defendant, The Diamond State Telephone Company (“Diamond State”), under Title YII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq. The Act prohibits an employer from discriminating in the hiring, payment, or treatment of employees on the basis of their religion. Bruton alleges that Diamond State has breached the Settlement Agreement (“Agreement”) which settled a previous charge of discrimination filed by her against Diamond State. The Agreement was executed in early 1980 by Bruton, Diamond State, and the Equal Employment Opportunity Commission (“EEOC”). This Court has jurisdiction pursuant to 28 U.S.C. § 1343(a) and 42 U.S.C. § 2000e-5(f)(3).

The parties have completed discovery and Diamond State has moved for summary judgment pursuant to Fed.R.Civ.P. 56. After considering the parties’ submissions on this motion and oral argument, this Court has determined that there is no genuine issue as to any material fact and that Diamond State is entitled to judgment as a matter of law. Accordingly, Diamond State’s motion for summary judgment will be granted.

1. FACTS

The material facts in this case are undisputed. Bruton was hired by Diamond State as an operator on May 19, 1969, and has held that position in Diamond State’s Wilmington, Delaware office since the date of her hire. In March, 1977, Bruton became a member of the Seventh Day Adventist Church, which requires its members to refrain from working during the church’s Sabbath. Church members observe their Sabbath from sundown on Friday to sundown on Saturday. Bruton subsequently advised her manager that she could no longer work between sundown on Friday and sundown on Saturday. When Bruton continued to be scheduled for work on her Sabbath, she filed a religious discrimination charge with the EEOC, resulting in the Agreement upon which this action is predicated.

Since the Agreement constitutes the focal point of this litigation, it is set forth below in its entirety, along with the contemporaneous release executed by the parties to this action.

SETTLEMENT AGREEMENT

1. In exchange for the promises made by The Diamond State Telephone Company contained in paragraph (2) of this Agreement, W. Mae Bruton agrees not to institute a lawsuit under Title VII of the Civil Rights Act of 1964 based on Charge Number 031790408 filed with the Equal Employment Opportunity Commission, and the Equal Employment Opportunity Commission agrees not to process the charge further.

2. In exchange for the promise of W. Mae Bruton and the Equal Employment Opportunity Commission contained in paragraph (1) of this agreement, The Diamond State Telephone Company agrees:

a. To permit voluntary tour trades and if Charging Party is unsuccessful in attaining trades on her own, Respondent will lend all reasonable assistance in making a trade of hours or of days off.
b. Charging Party will be permitted to post notice on the bulletin board to obtain trades.
c. During Daylight Saving Time when Charging Party’s normal rotation would require Saturday work, Respondent agrees to schedule during that week four (4) full and two (2) part tours. One of the part tours will be scheduled on Saturday after sundown.

3. This agreement constitutes the complete understanding between the Respondent, Charging Party and the Equal Employment Opportunity Commission. No other promises or agreements shall be binding unless signed by these parties.

4. It is understood that this agreement does not constitute an admission by the Respondent of any violation of Title VII of the Civil Rights Act of 1964, as amended or any other applicable Federal, State or Local law or regulation propounded thereunder.

5. These parties agree that this agreement may be used as evidence in a subsequent proceeding in which any of the parties allege a breach of this agreement.

RELEASE .

In exchange for the promise(s) made by the Diamond State Telephone Company, contained in paragraph 2 of Exhibit A, attached hereto and made a part hereof,

W. Mae Bruton agrees not to institute any action, arising out of those facts related to the instant matter, in law or equity or file any further charge or charges under or pursuant to any federal, state or local law or regulation propounded thereunder which is or might be the subject of the relief referred to in Exhibit A.

It is specifically understood that the actions taken herein by the Diamond State Telephone Company do not constitute an admission of any violation of any applicable federal, state or local law or regulation propounded under.

The requirement that Diamond State’s employees work on Saturdays, and the procedures for scheduling all operators, are undisputed. Operators are required to work weekends as well as weekdays. The usual week’s schedule consists of five days of work and two days off. Weekend work is rotated among Diamond State’s employees, generally resulting in the employees working two weekends a month. All work shifts (“tours”) are scheduled on a seniority, tour preference basis.

Under Diamond State’s scheduling procedures, employees specify their preferences for scheduled tours they wish to work on any day of the week, including weekends. This is done by employees listing their preferred tours for each day of the week; tours are then assigned on a seniority basis according to the employee’s stated preferences. Hence, employees with greater seniority have a greater probability that their choices will be reflected in their actual work schedules. Diamond State has consistently scheduled its employees on a seniority preference basis since at least 1941.

In her complaint, Bruton alleges that, for approximately two years following execution of the Agreement with Diamond State, she was scheduled for full .tours after sundown on Saturdays during Eastern Standard Time (“EST”). Bruton, however, concedes that Diamond State’s scheduling during Daylight Savings Time (“DST”), which is governed by ¶ 2(c) of the Agreement, is not at issue in this case because she has been scheduled during DST in accordance with this provision of the Agreement. The gravamen of Bruton’s complaint is that after the Agreement was entered into, she was consistently scheduled for a full tour after sundown on Saturdays during EST, thus obviating the need for her to work on her day off. Bruton does, nonetheless, have to work on her day off during DST because the sun does not set during DST until after the full Saturday evening tour has begun. Thus, Bruton has to work two part tours and four full tours {e.g. work on six days as opposed to five) during the weeks she is scheduled for weekend work during DST.

Although Bruton was scheduled for full tours after sundown on Saturdays during EST for two years after she entered into the Agreement with Diamond State, she began to be scheduled for part tours on Saturdays during EST in 1982 when her manager was replaced. Sometime in 1982, Bruton’s new manager received a complaint from another employee in Bruton’s office. The employee complained about Bruton receiving a full evening tour on Saturdays when the other employee, because of her greater seniority, was entitled to receive the tour before it was assigned to Bruton.

After investigating Bruton’s coworker’s complaint, Bruton’s manager advised Bruton that she would only be assigned a full Saturday evening tour during EST after the preferences of more senior operators for that tour had been honored. Nonetheless, if Bruton’s manager could not hon- or the preferences of operators senior to her for the full evening Saturday tour, Bruton was informed that she would be scheduled for part tours, one of which would start after sundown on Saturdays during EST. Bruton concedes that she was scheduled under the established office scheduling procedure. Thus, Bruton was assigned a full evening tour on Saturdays beginning after sunset during EST according to her seniority vis-a-vis other operators.

Bruton has satisfied all administrative prerequisites to the filing of this action. She filed the charge of religious discrimination with the EEOC on April 16, 1984, complaining about being scheduled for part tours on Saturdays during EST. After investigating Bruton’s charge, the EEOC, on October 9,1984, determined that reasonable cause did not exist to support her allegations. Bruton subsequently exercised her right to sue by filing a timely complaint on January 8, 1985.

II. SUMMARY JUDGMENT

The legal principles applicable to summary judgment motions are well settled. To prevail on a motion for summary judgment under Fed.R.Civ.P. 56(c), the moving party must demonstrate that there is no issue regarding any material fact in the case and that the moving party is entitled to judgment as a matter of law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); EEOC v. Westinghouse Electric Corp., 725 F.2d 211, 218 (3d Cir.1983), cert. denied,—U.S.-, 105 S.Ct. 92, 83 L.Ed.2d 38 (1984). In deciding whether to grant summary judgment, the Court must draw all inferences from the evidentiary sources in the record in a light most favorable to the non-moving party. Adickes, 398 U.S. at 157, 90 S.Ct. at 1608; United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); 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); 6 Moore’s Federal Practice ¶ 56.15[3] (2d ed. 1985).

Although Diamond State bears the initial burden on its summary judgment motion, Bruton bears the burden of producing material evidence in support of her allegations and “may not rest upon the mere allegations or denials” of her pleading, but must establish specific facts showing the existence of a “genuine issue for trial.” Fed.R. Civ.P. 56(e). “[A] genuine issue means that the evidence must create a fair doubt, and wholly speculative assertions will not suffice.” Jersey Central Power & Light Co. v. Township of Lacey, 772 F.2d 1103, 1109 (3d Cir.1985). Moreover, “[djenials in the form of legal conclusions, unsupported by documentation of specific facts, are insufficient to create issues of material fact that would preclude summary judgment.” Id.; SEC v. Bonastia, 614 F.2d 908, 914 (3d Cir.1980).

The material facts set forth in the pleadings, depositions, answers to interrogatories, and admissions in the record are undisputed.

III. INTERPRETATION OF THE AGREEMENT

Since there are no disputed material facts, the Court turns to questions of law. In Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), the Supreme Court established requirements for the validity of settlement agreements in Title VII lawsuits. In determining the validity of a settlement agreement, a court must find that an employee knowingly and voluntarily consented to the settlement agreement when the employee waives his or her right to pursue a Title VII action. Id. at 52 n. 15, 94 S.Ct. at 1021 n. 15. See also Lyles v. Commercial Lovelace Motor Freight Inc., 684 F.2d 501 (7th Cir.1982); Fulgence v. J. Ray McDermott & Co., 662 F.2d 1207, 1209 (5th Cir.1981). In Lyles, the court held that an employee entered into a settlement agreement knowingly and voluntarily when there is no evidence of coercion or overreaching on the part of the employer. . Id. at 504. Similarly, there is absolutely no evidence of coercion or overreaching by Diamond State in this case, nor does Bruton raise any such allegation.

In Tucker v. Harley Davidson Motor Co., 454 F.Supp. 738 (E.D.Wis.1978), the court denied an employer’s motion for summary judgment in an employment discrimination action because the employee asserted that he “had no knowledge of what he was signing” when he signed the settlement agreement. The court concluded that the employee’s alleged lack of knowledge, as well as the employee’s assertion that the employer did not fulfill the terms of the agreement, created a dispute as to the material facts in the case. Id. at 742.

This case presents a factual situation markedly different from Tucker. Bruton does not aver that she had no knowledge of the terms of the Agreement she signed in 1980. Additionally, Bruton does not assert that Diamond State has failed to fulfill the written terms of the Agreement. Rather, Bruton essentially argues that Diamond State’s actions in accommodating her by scheduling her for full Saturday evening tours during EST for two years after execution of the Agreement obligates Diamond State to continue this scheduling accommodation indefinitely. Bruton advanees this argument despite the absence of supporting language in the Agreement.

Bruton attempts to transform a scheduling procedure favorable to her, which was implemented by Diamond State as an accommodation to her outside of the 1980 Agreement, into a permanent obligation that contravenes Diamond State’s well established seniority preference scheduling. This attempted transformation is contrary to the unambiguous, express terms of the Agreement and is therefore unsupported by contract law principles. Such an argument, when premised on undisputed facts which are contrary to the written Agreement, cannot defeat Diamond State’s motion for summary judgment. “It is horn-book law that interpretation of a writing is for the court.” Baltimore Bank for Coops. v. Farmers Cheese Coop., 612 F.2d 151, 153 (3d Cir.1979). Moreover, “[w]here clear and unambiguous language is at issue, it is reversible error to leave such questions for the jury.” Id.

In her brief, Bruton concedes that material facts in this case are undisputed. Nonetheless, Bruton asserts that the Agreement’s silence with respect to Diamond State’s obligations regarding scheduling during EST constitutes a material factual dispute which should bar summary judgment in favor of Diamond State.

However, the record directly contradicts Bruton’s argument. Although her allegations are contractually based, Bruton admits that the Agreement does not obligate Diamond State to schedule her for a full Saturday tour beginning after sunset during EST. Bruton also admits that Diamond State’s only obligation to her regarding scheduling during EST is governed by paragraph 2(a) of the Agreement. Paragraph 2(a) only obligates Diamond State to permit voluntary tour trades and to lend all reasonable assistance to Bruton if she is unsuccessful in obtaining tour trades. The Agreement does not impose any affirmative scheduling obligations on Diamond State during EST.

Not only does Bruton admit that material facts are undisputed, but she also admits that Diamond State only has limited scheduling obligations during EST. Additionally, paragraph 2(c) recites that the Agreement encompasses the “complete understanding” between the parties. “When parties to an agreement reduce their understanding to a writing that uses clear and unambiguous terms, the court should look no further than the writing itself when asked to give effect to that understanding.” Brokers Title Co., Inc. v. St. Paul Fire & Marine Ins. Co., 610 F.2d 1174, 1178 (3d Cir.1979); Thermice Corp. v. Vistron Corp., 528 F.Supp. 1275 (E.D. Pa.1981), aff'd, 688 F.2d 825 (3d Cir.1982). Diamond State’s understanding of the Agreement becomes axiomatic when Bruton fails to advance any “specific facts” showing the existence of a “genuine issue” for trial.

This is not a complex Agreement; its terms cover less than one printed page and are easily understood by a lay person. Moreover, this is not an adhesion Agreement; there is no indication or argument by Bruton that bargaining did not take place at arm’s length. “Fundamental principles of contract law are squarely at issue here; choosing, interpreting and applying the appropriate principle cannot be avoided by resort to fact finding.” Brokers Title, 610 F.2d at 1177.

This Court cannot shirk its duty and permit this case to go to trial. The only issues presented to the Court for resolution are legal ones. The Agreement between Bruton and Diamond State simply cannot be read to obligate Diamond State to schedule Bruton for full Saturday evening tóurs during EST. Moreover, Diamond State’s practice of scheduling Bruton for full Saturday evening tours during EST after the Agreement was entered into cannot vary the terms of the Agreement. Diamond State should not be penalized for making extensive efforts to accommodate Bruton by insuring her two full days off while still accommodating her religious beliefs and practices. It was only after a more senior employee complained that Diamond State reverted to its well-established seniority preference tour assignment procedure.

Diamond State’s actions went beyond what it was obligated to do pursuant to the terms of the Agreement; therefore, Bruton cannot attempt to vary this Agreement at a later date because Diamond State previously scheduled Bruton in a way more favorable to her. Had Diamond State attempted to schedule Bruton on her Sabbath during EST, a different case would be presented to the Court. But when an employer goes beyond the terms of a settlement agreement to accommodate an employee, the employee cannot successfully seek to penalize the employer for undertaking action that was beneficial to the employee. The Agreement is unambiguous and Bruton’s allegations cannot thwart the written obligations set forth in the Agreement.

On the substantial record before the Court, there is no basis for substituting Bruton’s unfounded “interpretation” of the Agreement for the plain import of the written terms constituting the Agreement between Bruton and Diamond State.

Accordingly, summary judgment will be entered in favor of Diamond State.

      . 42 U.S.C. § 2000e-2(a) provides in pertinent part: "It shall be unlawful employment practice for an employer—(1) ... to discriminate against any individual with respect to ... compensation, terms, conditions, or privileges of employment, because of such individual’s ... religion.
      In 1972, Title VIÍ was amended to add a definition of religion which expounds on employers' duties with respect to employees’ religious beliefs. 42 U.S.C. § 2000e(j) (1982) states that ”[t]he term ‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to [sic] an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.

      . Docket Item (“D.I.”) 24 at 1 and D.I. 25 at 1.

      . D.I. 23.

      . D.I. 15 at 9.

      . D.I. 1 at ¶ 7.

      . Id. at ¶ 8.

      . D.I.’s 1 and 5 at ¶11.

      . D.I. 5, Ex. A.

      . D.I. 21 at 4.

      . D.I. 17 at 14-15.

      . The collective bargaining agreement between Diamond State and the United Telephone Workers of Delaware, Bruton’s union, defines a normal work week for full time operators as "consist[ing] of five full tours or four full and two half-tours which may be scheduled on any of the seven days of the calendar week.” D.I. 23, Ex. A, attachment 1 at 177.
      Employees with twenty-five or more years of service with Diamond State can elect not to work weekends provided that no other employee is required to work more than twenty-six weekends in a calendar year. D.I. 21 at 4. Since Bruton has approximately sixteen years of service, she is not eligible for the twenty-five year seniority preference.
      The collective bargaining agreement also provides for full day and evening tours, as well as part-day and evening tours, and contains rather labyrinthine provisions regarding tour duration and scheduling. D.I. 23, Ex. A, attachment 1 at 175-177.

      . D.I. 22 at 3.

      . D.I. 15 at 16-17.

      . D.I. 18 at 18, 32.

      . D.I. 1 at ¶ 14. During EST, a period roughly corresponding to the winter months, Bruton is able to work a full tour on Saturday evenings because the full tour begins after sundown. This occurs because the sun sets earlier during EST than it does during Daylight Savings Time.

      . D.I. 1 at fl 14.

      . D.I. 1 at ¶¶ 15-16.

      . D.I. 17 at 16-18. Apparently, the Saturday full evening tour is a popular tour among Diamond State’s operators. D.I. 18 at 23. Further, this incident in 1982 appears to be the first occasion when one of Bruton’s coworkers complained about Bruton’s preferential tour scheduling. D.I. 18 at 10-11; D.I. 17 at 18.

      . D.I. 17 at 17-20.

      . D.I. 21 at 4.

      . D.I. 12, Ex. C.

      . D.I. 12, Ex. D.

      . Trivial factual disputes cannot defeat a motion for summary judgment. "A summary judgment order is not defeated ... merely because an issue of fact exists; the factual issue in dispute must be material to the resolution of the dispute." Westinghouse Electric, 725 F.2d at 218.

      . Federal law governs the interpretation of settlement agreements under Title VII because the rights of the litigants and the operative legal policies derive from a federal source. Lyles, 684 F.2d at 504; Fulgence, 662 F.2d at 1209.

      . D.I. 25 at 3-4.

      . D.I. 21 at 2. Plaintiff's Response to Defendant’s Request for Admission No. 7 states:
      7. It is admitted that in the Settlement Agreement referred to in paragraph one (1) above, Defendant did not agree to schedule Plaintiff for a full tour beginning after sunset on Saturdays during Eastern Standard Time.

      . D.I. 21 at 3. Plaintiff’s Response to Defendant’s Request For Admission No. 8 states:
      8. It is admitted that in the Settlement Agreement referred to in paragraph one (1) above, with regard to scheduling Plaintiff for tours during Eastern Standard Time, Defendant agreed only to permit voluntary tour trades, to aid Plaintiff in obtaining such trades if she is unsuccessful in doing so, and to permit Plaintiff to post notice on the bulletin board to obtain trades. (Emphasis added.)

      . Paragraph 2(c) also requires any other promises or agreements to be in writing to bind the parties.

      . See Fed.R.Civ.P. 56(e).