author: MORTON, Senior District Judge,

text:
    Desa Mae WELLS v. CITY OF HOUSTON, Katherine Whitmire, Individually and in her capacity as Mayor of the City of Houston, City of Houston Civil Service Commission and its Chairman and Commissioners, Both in their Individual capacity and their Successors in Office, Houston Police Department, Chief of Police B.K. Johnson, Assistant Chief of Police R.G. McKeehan, Deputy Chief of Police F.B. Bankston, Captain C.V. Tompkins, and Sergeant B. Owens, all individually and in their capacity as Officers of the Houston Police Department and their Successors in Office.
    Civ. A. No. H-82-2696.
    United States District Court, S.D. Texas, Houston Division.
    March 1, 1985.
    Linda M. Bullard, Houston, Tex., for plaintiff.
    F.J. Coleman, Jr. and John E. Fisher, Houston, Tex., for defendants.
   MEMORANDUM

MORTON, Senior District Judge,

Sitting by Assignment.

The plaintiff, a black female, brought this action pursuant to 42 U.S.C. §§ 1981, 1983, 1985, 1986, 2000e et seq. and the U.S. Const, amend. XIV. She alleges that she was terminated from her job with the Houston Police Department (hereinafter HPD) because of her race and sex. She also alleges that the manner in which she was terminated deprived her of her constitutional rights without due process of law. This memorandum constitutes the Court’s findings of fact and conclusions of law. See Fed.R.Civ.P. 52. For the reasons explained below, judgment shall be entered for the defendants.

The plaintiff entered the City of Houston Police Academy on November 3, 1980. She graduated from the Academy and went on to complete the Field Training Program. Thereafter, she was assigned to perform full police duties as a uniformed patrolman on probationary status. By Texas state law, her probationary period was to end at 12:01 p.m. November 3, 1981. See Tex. Rev.Civ.Stat.Ann. art. 1269m, § 12.

Until the middle of October 1981, the plaintiff’s performance was .rated as satisfactory by Sergeant Humphreys, her superior. At that time, he informed her that some officers had complained that she did not know her district and that she did not accept criticism well. At the same time or shortly thereafter, Sergeant Humphreys told the plaintiff that Sergeant Owens would be investigating her. Sergeant Owens had been the plaintiff’s Field Training Sergeant.

Sergeant Owens asked at least five officers who had worked with the plaintiff whether they had any criticism of her performance. He asked those officers to submit written evaluations of the plaintiff’s performance. The officers who wrote reports testified that they were not told what to write, that they had never seen the plaintiff’s Field Training file, and that the incidents they reported were true. The Court finds the testimony of the officers who wrote letters about the plaintiff completely credible.

After reviewing the letters submitted to him, Sergeant Owens concluded that the plaintiff was regressing in her performance since the complaints the reporting officers made concerned areas the plaintiff had had trouble with during field training. Sergeant Owens recommended that the Plaintiff’s probationary period be extended six months, and that she be closely monitored during that period.

Sergeant Owens’ report was forwarded to Lieutenant Eichholtz. Either Lieutenant Eichholtz or some other official conferred with HPD’s legal counsel to determine whether the department could extend the plaintiff’s probation. Counsel informed HPD that due to an amendment of Tex. Rev.Civ.Stat.Ann. art. 1269m a police officer’s probationary period could not be extended. Captain Tompkins then conferred with Chief Johnson and Deputy Chief Bankston about the plaintiff’s employment. Chief Johnson instructed Captain Tompkins to give the plaintiff the opportunity to resign, and to tell her that if she did not resign she would be terminated effective the close of business November 2, 1981.

The plaintiff was scheduled to work the evening shift November 2, 1981. She called in sick at approximately 2:30 p.m. About thirty minutes later she was called by Lieutenant Eichholtz. He asked her if she would come to the station. She told him she could not. Lieutenant Eichholtz emphasized that he had an important matter to discuss with the plaintiff which he preferred not to talk about over the phone. When the plaintiff persisted in her refusal to come to the station, Captain Tompkins got on the line and told the plaintiff that she could either resign or she would be terminated at 5:00 p.m. that day. He explained to her that that course of action was necessary because her probationary period could not be extended. He also explained the benefits of resignation over termination to her. The plaintiff had no further contact with HPD that day. At 5:00 p.m. Captain Tompkins informed Chief Johnson that the plaintiff had not resigned.

The plaintiff reported for work the next day in uniform. Captain Tompkins asked for her badge and Lieutenant Eichholtz took the rest of her gear. The plaintiff subsequently asked for a hearing before the Houston Civil Service Commission. No action was taken on that request.

The plaintiff alleges that the defendants conspired to deprive her of her right to a hearing before the Civil Service Commission. Once a Houston police officer completes his or her probationary period, he or she can only be terminated for cause after a hearing before the Civil Service Commission. Sfair v. City of San Antonio, 274 S.W.2d 581 (Tex.Civ.App.1955); Tex.Rev.Civ.Stat.Ann. art. 1269m. Probationary police officers are entitled to no such hearing. The crucial issue in this case, then, is whether the plaintiff was terminated before her probationary period ended. If she was, she had no property right or liberty interest in her continued employment with HPD. See Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 3 L.Ed.2d 548 (1972); Burgess v. City of Houston, 718 F.2d 151, 154 (5th Cir.1983).

The Houston Municipal Code provides that after securing the approval of the Civil Service Commission, a department head may remove a probationary employee for cause by serving written notice upon the Commission. Houston Mun.Code § 12-125. That code section, however, does not apply to probationary police officers. Under Texas law, the Chief of Police alone has the authority to remove probationary police officers. Tex.Rev.Civ.Stat.Ann. art. 1269m. There is no requirement that the probationary employee be afforded a hearing or be given written notice before his or her dismissal becomes effective. In short, probationary police officers serve at the discretion of their Chief.

The Court believes Chief Johnson’s testimony that he told Captain Tompkins the plaintiff would be terminated at 5:00 p.m. November 2, 1981 if she did not resign. When the plaintiff did not resign by that hour, she was terminated automatically. Since she had no vested right to her job at 5:00 p.m. November 2, 1981, her termination did not deprive her of any property right.

The plaintiff would have the Court believe that she was not in fact terminated on November 2, 1981. To reach that conclusion would require the Court to make either of two incredible assumptions. The first is that Chief Johnson lied about when he made his decision to terminate the plaintiff. In support of this contention the plaintiff points to numerous documents that state the plaintiff’s termination was subsequent to November 2, 1981, or which state that November 2, 1981 was her termination date but they themselves are dated after November 2, 1981. In the Court’s opinion, these documents do not impeach Chief Johnson’s testimony that he terminated the plaintiff at 5:00 p.m. November 2, 1981. Some of the documents — such as that showing a termination date of November 18, 1981 — are clearly the product of clerical errors. As for those postdated November 2, 1981 but showing a termination date of November 2, 1981, the Court accepts Chief Johnson’s testimony that these were merely written memorials of an action which'had already been taken. The Court observed Chief Johnson’s demeanor on the stand, and it does not believe he was lying. The plaintiff’s continued employment, moreover, could not have been that monumental a matter for Chief Johnson. If the plaintiff was really incompetent, she could have been removed after she was tenured. If she was not incompetent, he would not have had any reason to want to keep her off the force. In short, Chief Johnson had no motive to lie, and gave no indication to the Court that he did so.

The only other way to rule in the plaintiff’s favor on her due process claim would be to assume that Chief Johnson simply allowed November 2, 1981 to pass without deciding to terminate the plaintiff. The Court uses the term “deciding” carefully, for as noted above, no writing, explanation, or timely notice were required before the plaintiff could be terminated. Once again, the Court would have to find that Chief Johnson had lied in order to hold that the plaintiff was not terminated on November 2, 1981. He testified that he had already decided that the plaintiff would be terminated when he told Captain Tompkins to call her. The Court would also have to assume that the defendants conducted a hasty investigation and meeting on the plaintiff’s future, all with the November 2, 1981 deadline in mind, and then simply failed to do anything. Such an assumption is illogical and unbelievable.

The plaintiff also alleges that she was fired because of her race and sex. Her equal protection, § 1981, and Title YII claims are all based upon that alleged discrimination. Each of these three cause of-action require proof of discriminatory intent. See Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 2296, 60 L.Ed.2d 870 (1979); General Building Contractors Association, Inc. v. Pennsylvania, 458 U.S. 375, 102 S.Ct. 3141, 73 L.Ed.2d 835 (1982); United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403, 410 (1983). Since the defendants presented their rebuttal evidence as to why the plaintiff was terminated, the Court need not specifically find whether the plaintiff made out a prima facie case, whether the defendants articulated a nondiscriminatory reason for her discharge, or whether she proved that the defendants’ articulated explanation was pretextual. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Instead, the Court can progress directly to the issue of whether the defendants terminated the plaintiff because of her race and sex. See Aikens, supra.

With the exception of Sergeant Owens, the plaintiff did not present any evidence that the defendants discriminated against her because of her race or sex. There was no proof that HPD had a policy or practice of discriminating against those groups. There was not any proof that HPD’s policies and practices impacted blacks or women adversely. The plaintiff frankly admitted that she did not experience much discrimination during her employment with HPD. The few incidents she did perceive as evidence of discrimination, such as the investigation of her tardiness while a cadet and alleged sexual harrassment by Officer Robinson, were either unsupported perceptions on the plaintiffs part or incidents she never reported to the defendants.

The plaintiff’s proof of discrimination against Sergeant Owens was somewhat stronger. She alleged that during her field training period he told her, “I’m prejudiced. Everybody’s prejudiced.” She also alleged that after she complained to the Black Officers Association about the criticism she received from Sergeant Owens in field training, he issued a memorandum that the chain of grievance should be from trainee to training officer to training sergeant. She also alleged that Sergeant Owens had a reputation for washing out blacks. No foundation was laid to show that the plaintiff was competent to testify as to Sergeant Owens’ reputation. Moreover, her testimony was rebutted by Officer Robinson, a black officer with much longer service with HPD than the plaintiff. This evidence was so inconsequential the Court would not have given it much consideration were it not for the fact that Sergeant Owens made a concerted effort to insure that the plaintiff would not be tenured as scheduled.

Sergeant Owens testified that he began his investigation of the plaintiff after officers made complaints to him about the plaintiff’s performance. The plaintiff alleged that Sergeant Owens began his investigation after a citizen complained about the plaintiff and a male officer having sexual relations while on duty. The plaintiff’s hypothesis was based upon pure hearsay, uncorroborated by any competent evidence. There is nothing in the record to suggest that the plaintiff was reprimanded or otherwise punished for alleged sexual activities while on duty. Whatever Sergeant Owens’ motive for beginning his investigation, the Court finds that he carried through with it and recommended that the plaintiff not be tenured because of his good faith belief that she was not competent.

The objective evidence certainly supported his belief. The same complaints were made repeatedly by the officers who wrote letters critical of the plaintiff. All those officers denied having conferred with each other before writing their letters, and all confirmed that the events recounted in the letters were true. As noted above, the Court believes those officers’ testimony. Moreover the plaintiff herself admitted that Sergeant Owens had been critical of her performance since field training.

The fact that Sergeant Owens made no effort to verify the complaints about the plaintiff was somewhat troubling. Sergeant Owens testified that he made no effort to do so for two reasons. First, his recommendation was to extend the plaintiff’s probationary period, not to terminate her. The documents admitted into evidence verify that assertion. Sergeant Owens thought he would have plenty of time to verify the complaints during the extended probation. Second, Sergeant Owens testified that he had no reason to doubt the complaints made because they were about the same things the plaintiff had shown weakness in during her field training period. This fact affirmed his perception that the plaintiff was regressing in the absence of close supervision; therefore, he had no reason to question the veracity of the complaints made against the plaintiff.

In summary, the Court finds that Sergeant Owens’ recommendation was made on the basis of his good faith belief that the plaintiff was not competent to perform her duties as a police officer. As noted above, the plaintiff failed to prove that any of the other defendants terminated her because of her race or gender. She did not show that whites or males who were terminated while on probation were treated any differently than she was. She simply failed to prove that she was discriminated against in any way because she was black or a woman.

An appropriate order shall be entered.

      . The plaintiff's complaint alleged that she had been deprived of her "constitutional rights.” There was really no proof that the plaintiff’s termination from HPD had impinged upon her liberty interest in future employment other than her bald assertion to that effect. At any rate, the Court holds that termination for incompetence is not the sort of charge of moral turpitude that implicates a liberty interest. See Loehr v. Ventura County Community College District, 743 F.2d 1310, 1317 (9th Cir.1984).


source: Caselaw Access Project

author: CANNELLA, District Judge.

license: Public Domain

text:
    OIL BASINS LIMITED, Plaintiff, v. The BROKEN HILL PROPRIETARY COMPANY LIMITED and BHP Petroleum Pty., Ltd., Defendants.
    No. 84 Civ. 6620 (JMC).
    United States District Court, S.D. New York.
    March 7, 1985.
    On Motion to Reopen July 18, 1985.

      Donovan Leisure Newton & Irvine, New York City (Eric J. Lobenfeld, New York City, of counsel), Vinson & Elkins, Houston, Tex. (Ewing Werlein, Jr., D. Gibson Walton, J. Thomas Scott, Elaine Drodge Koch, Houston, Tex., Charles Alan Wright, Austin, Tex., of counsel), for plaintiff.
    Sullivan & Cromwell, New York City (Roy H. Steyer, James H. Carter, Maria Foscarinis, Samuel W. Seymour, New York City, of counsel), for defendants.
   MEMORANDUM AND ORDER

CANNELLA, District Judge.

Plaintiff’s motion for an order compelling the parties to proceed to arbitration in New York is granted. 9 U.S.C. §§ 4 [“Section 4”], 206 [“Section 206”].

Plaintiff’s and defendants’ motions for a stay pending arbitration are granted. 9 U.S.C. § 3.

Defendants’ motion for an order compelling the parties to proceed to arbitration in Australia is denied. 9 U.S.C. §§ 4, 206.

FACTS

This action arises out of a contract [“Royalty Agreement”] between plaintiff and defendant Broken Hill Proprietary Co. [“BHP”], pursuant to which defendants are required to pay plaintiff royalties on hydrocarbons produced by BHP Petroleum Proprietary Ltd. [“BHP Petroleum”] in the offshore waters of Australia. Plaintiff brought this action in New York State Supreme Court. Plaintiff claims that an Australian excise tax and certain costs of production should not be deducted from the gross value of the hydrocarbons on which the royalty is calculated and requests a declaration as to computation, an accounting and damages of over $350 million. Defendants subsequently removed the action to this Court pursuant to 9 U.S.C. § 205, which permits removal to federal court of cases involving arbitration agreements covered by the Convention on the Recognition and Enforcement of Foreign Arbitrable Awards, 21 U.S.T. 2517, T.I.A.S. No. 6997, and 330 U.N.T.S. 38 [“Convention”], implemented by Chapter 2 of the Federal Arbitration Act, 9 U.S.C. § 201 et seq. [“Chapter 2”]. Jurisdiction is based upon 28 U.S.C. § 1331 and 9 U.S.C. § 203.

Plaintiff is a Bermudian corporation, the sole function of which is to act as trustee for the royalty payments specified in the Royalty Agreement. Defendants are Australian corporations. BHP is a large multinational corporation with an agent in New York City.

The Royalty Agreement expressly provides that all disputes arising as to “the construction meaning or effect of any clause ... or as to the rights obligations or liabilities of the parties under any clause ... shall be determined by arbitration.” Both parties acknowledge that the issue before the Court is governed by this arbitration clause. The only dispute concerns the location in which arbitration should take place. After this action was filed, defendant BHP Petroleum sent plaintiff a letter that purports to commence arbitration proceedings. The next day, BHP Petroleum also commenced an action against plaintiff in the Supreme Court of Victoria at Melbourne to enforce arbitration. That court has not yet taken any action.

DISCUSSION

Defendants contend that arbitration proceedings should be held in Australia because it is the forum most closely connected to the dispute, most convenient to the parties, and the country whose law will effectively govern the dispute. Plaintiff argues that the Court has no authority to compel arbitration in Australia absent an express provision in the Agreement specifying Australia as the situs of arbitration.

Defendants’ arguments that Australia is the most convenient and appropriate forum are not without force. That country seems to be the locus of most witnesses; the principal representatives of all parties to have taken part in preliminary discussions concerning arbitration appear to be located, at least partially, in Australia; and the site of production of hydrocarbons is there. The only apparent contact that the litigation has with New York arises out of the conflicts of law clause in the Royalty Agreement, which specifies that New York law is to govern interpretation of the agreement unless “otherwise required by the law of the place where the said hydrocarbons are produced or as otherwise herein provided.”

Defendants have not moved to dismiss under 28 U.S.C. § 1404 on grounds of forum non conveniens, however. The Court is unwilling to order such a drastic remedy sua sponte, particularly in light of the ongoing dispute concerning the Australian court’s jurisdiction over plaintiff. The question before the Court, then, is whether the Court has authority to compel arbitration in Australia.

The Federal Arbitration Act makes it clear that in domestic cases a federal district court may only compel arbitration in its own district. See 9 U.S.C. § 4; Couleur Int’l Ltd. v. Saint-Tropez West, 547 F.Supp. 176 (S.D.N.Y.1982); Lawn v. Franklin, 328 F.Supp. 791, 793 (S.D.N.Y.1971); see also Netherland Curacao Co., N.V. v. Kenton Corp., 366 F.Supp. 744, 745-46 (S.D.N.Y.1973) (same result, relying upon Section 4, although apparently an international case). But cf. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. DeCaro, 577 F.Supp. 616, 625 (W.D.Mo.1983) (suggesting that under Section 4 the court has discretion to decide site of arbitration, but compelling parties to proceed in court’s own district). Thus, if the contract specifies a locale for arbitration, the Court can merely stay the action, see Texaco, Inc. v. American Trading Transp. Co., 644 F.2d 1152, 1154 (5th Cir.1981), or dismiss it, see Couleur Int’l, Ltd. v. Saint-Tropez West, supra.

In an international dispute covered by Chapter 2 of the Federal Arbitration Act, the rules are broadened by the provisions of Section 206, which permits a court to “direct that arbitration be held in accordance with the agreement at any place therein provided for, whether that place is within or without the United States.” 9 U.S.C. § 206. Thus, in implementing the Convention, Congress expanded the federal court authority to permit it flexibility in addressing international agreements. A letter from the Department of State, transmitting the draft legislation to the Speaker of the House, describes the nature of this new authority: H.R.Rep. No. 1181, 91st Cong., 2d Sess., reprinted, in 1970 U.S.Code Cong. & Ad. News 3601, 3604 (emphasis added). This letter suggests that when there is a locale specified in the agreement, a court may, if appropriate, direct arbitration to take place at that locale. Section 206 does not, however, expressly give or deny authority to direct arbitration to take place in a locale unspecified in the agreement between the parties, other than the district in which the court sits.

Section 106 [sic] permits a court to direct that arbitration be held at the place provided for in the arbitration agreement. Since there may be circumstances in which it would be highly desirable to direct arbitration within the district in which the action is brought and inappropriate to direct arbitration abroad, Section 206 is permissive rather than mandatory.

Because Chapter 1 of the Arbitration Act is incorporated into Chapter 2 “to the extent that [Chapter 1] is not in conflict with [Chapter 2] or the Convention,” 9 U.S.C. § 208, the inquiry must extend to Section 4. Section 4’s requirement that a court direct arbitration in its own district conflicts with, and is therefore superseded by, Section 206 to the extent that the parties specify an arbitration site in the contract. However, neither section gives the Court discretion to select an unspecified site outside its district and Section 4 expressly precludes such discretion. Thus, on the face of the statute, Chapter 2 does not appear to contradict Section 4’s requirement that arbitration be compelled in the court’s district except when the contract specifies a location.

The legislative history, also, gives no indication that Congress intended to expand Section 4 to the extent contemplated by defendants. The case law is equally sparse. In Soundview Shipping Ltd. v. Keys Development & Trading Pty. Ltd., 1984 A.M.C. 1346, 1350 (S.D.N.Y.1983), the court was confronted with an arbitration agreement that specified Australia as the site of arbitration for all disputes about events that took place in Australia. The ease was covered by Chapter 2, and the court ordered arbitration in Australia after determining that the events in dispute had taken place in Australia. Id. Defendants argue that, as in Soundview Shipping, this Court should construe the Arbitration Agreement to determine the arbitration situs intended by the parties. They suggest that an arbitration agreement, like a contract, requires the Court to face difficult issues of interpretation, which can be resolved by looking to the intent of the parties.

Unlike the Soundview Shipping agreement, however, the Royalty Agreement makes no express provision as to locale. Moreover, no “implied” provision appears to have been intended. The evidence compels the conclusion that the parties intended to leave the issue open. The only direct evidence that has been submitted by defendants is an affidavit from Donald J. Nairn, the former Chief Legal Officer of BHP and a participant in the drafting of the Agreement. Mr. Nairn states that “it was not the parties’ intention to suggest that the place of arbitration would be New York. Rather, the place of arbitration was left by the agreement for the parties or the arbitrator or arbitrators to decide or to be determined if necessary by a court applying appropriate legal standards.” Additionally, plaintiff has submitted an affidavit of Paul N. Temple, who apparently had some involvement with the original draft of the Agreement. Mr. Temple agrees that neither New York nor Australia was definitively settled upon as an arbitration site. Thus the direct evidence points to the conclusion that the parties left the site to be determined at the time of arbitration.

Circumstantial evidence suggests the same conclusion. Defendants point to the choice of law provision in the Agreement and argue that because it permits the contract to be governed by either New York or the “law of the place where the said hydrocarbons are produced,” the parties similarly intended the place of arbitration to be either New York or Australia, depending upon where the events at issue took place. Such an inference is far too speculative for the Court to rely upon. What the choice of law clause indicates is that the parties came to an agreement concerning rules for determining choice of law, but did not do so with respect to the place of arbitration.

The Court finds, therefore, that it only has discretion to compel arbitration in its own district or in a place specified in the contract. In this case, no place was specified explicitly or implicitly. As a result, the court can only order the parties to proceed to arbitration in this district.

Defendants next argue that the. Court should merely stay the action pending termination of the arbitration proceedings and litigation in Australia. The Court could stay the action and not compel arbitration, particularly in light of the fact that all parties are now in agreement that the dispute must be sent to arbitration. See Couleur Int’l Ltd. v. Saint-Tropez West, supra, 547 F.Supp. at 178 (because contract designates California as place for arbitration, district court in New York may stay action, but may not compel arbitration). In this case, however, the place of arbitration is not designated in the contract and it is readily apparent that the parties are not in agreement as to the place to proceed. Thus, to stay the action would in all likelihood merely postpone the Court’s resolution of the dispute.

Accordingly, the Court grants plaintiff’s motion to compel arbitration in New York and grants both parties’ motions to stay the action pending the outcome of that arbitration. In light of the fact that Australia appears to be the most logical situs for arbitration, however, the Court will entertain a motion to reconsider its decision to compel arbitration in New York if the arbitrator or arbitrators, once selected, determine that the proceedings would best be conducted in Australia. In the meantime, the complaint is dismissed without prejudice with leave to reopen, if necessary, for reconsideration of the Court’s order compelling arbitration in New York or to enforce arbitration.

CONCLUSION

Plaintiff’s motion for an order compelling arbitration in New York is granted. 9 U.S.C. §§ 4, 206.

Plaintiff’s and defendants’ motions for a stay pending arbitration are granted. 9 U.S.C. § 3.

Defendants’ motion for an order compelling arbitration in Australia is denied. 9 U.S.C. §§ 4, 206.

The Clerk of the Court is directed to prepare and enter Judgment dismissing the complaint.

SO ORDERED.

ON MOTION TO REOPEN

Defendants’ motion to reopen is granted. Ped.R.Civ.P. 60(b). Defendants’ motion to dismiss on grounds of forum non conveniens is granted.

Plaintiff’s motion to amend this Court’s prior order is denied. Fed.R.Civ.P. 59, 60(b).

FACTS

The facts and procedural history of this contract action are discussed in this Court’s prior opinion, familiarity with which is assumed. See Memorandum and Order, 84 Civ. 6620 (JMC) (S.D.N.Y. Mar. 7, 1985) [“March Memorandum and Order”]. The underlying dispute concerns the calculation of royalty payments on hydrocarbons produced by defendant BHP Petroleum Proprietary Limited [“BHP Petroleum”] in the offshore waters of Australia. Plaintiff claims that the royalty payments have been calculated incorrectly to the tune of over $350,000,000.

Both parties previously moved for an order compelling arbitration. Plaintiff requested that the venue of arbitration be in New York; defendants preferred that it be held in Australia. In its March Memorandum and Order the Court ordered that arbitration be held in New York, because under Chapter 2 of the Federal Arbitration Act the Court had no power to order arbitration in Australia. See id.; 9 U.S.C. § 201 et seq. Defendants had not at that time moved for dismissal on forum non conveniens grounds, and the Court declined to “order such a drastic remedy sua sponte, particularly in light of the ongoing dispute concerning the Australian court’s jurisdiction over plaintiff.” March Memorandum and Order at 4. Since the date of the Court’s prior decision, defendants have moved for dismissal on grounds of forum non conveniens and the Australian Supreme Court has affirmed the Australian trial court’s finding that it has personal jurisdiction over plaintiff. See BHP Petroleum Pty. Limited v. Oil Basins Limited, No. 3949 (Austr.S.Ct. June 20, 1985).

Accordingly, the Court finds that the issue is properly before the Court and is ripe for decision. The Court, therefore, grants defendants’ motion to reopen for consideration of this issue. Fed.R.Civ.P. 60(b).

DISCUSSION

The Second Circuit has recently held “squarely that district courts have the power to dismiss a petition to compel arbitration on the ground of forum non conveniens.” Maria Victoria Naviera, S.A. v. Cementos del Valle, 759 F.2d 1027, 1031 (2d Cir.1985). The only restriction on this power is created by a contract expressly designating the forum for arbitration. Id. This Court has already held in its March Memorandum and Order that no such designation was made in the parties’ contract [“Royalty Agreement”]. March Memorandum and Order at 6-8.

Under the doctrine of forum non conveniens, the moving party bears the burden of showing that the alternative forum is clearly more convenient and appropriate. See, e.g., Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255, 102 S.Ct. 252, 265, 70 L.Ed.2d 419 (1981); Factors Etc., Inc. v. Pro Arts, Inc., 575 F.2d 215, 218 (2d Cir.1978), cert. denied, 440 U.S. 908, 99 S.Ct. 1215, 59 L.Ed.2d 455 (1979). In deciding whether to dismiss a case, the court may look to “the convenience of the parties, convenience of material witnesses, place where events occurred, access to sources of proof, and plaintiff’s choice of forum” Lovebright Diamond Co. v. Spragins, 574 F.Supp. 76, 80 (S.D.N.Y.1983). An additional factor is whether the law governing the substantive issues is that of the instant forum or the alternate forum. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 509, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947). Generally, the choice of forum will not be disturbed pursuant to this doctrine unless the interests of justice weigh strongly in favor of defendant. See, e.g., Lovebright Diamond, 574 F.Supp. at 80; Leif Hoegh & Co. v. Alpha Motor Ways, Inc., 534 F.Supp. 624, 626 (S.D.N.Y.1982); Troyer v. Karcagi, 488 F.Supp. 1200, 1207 (S.D.N.Y.1980).

All the factors point to Australia being the proper forum for litigation in this case. The contract at issue was to be performed in Australia. The hydrocarbons are produced there and the royalty payments are calculated and paid to defendant in Australia. Further, the witnesses who will testify as to the manner in which royalties are calculated are all in Australia. Plaintiff has been able to suggest only one witness in America — Paul Temple, who resides in Virginia and was, at best, only tangentially involved in the drafting of the Royalty Agreement. The documentary evidence is also in Australia.

Moreover, neither party is domiciled in New York. Plaintiff is a corporation organized under the laws of Bermuda, with its principal place of business in Bermuda. The sole function of plaintiff corporation is to act as trustee for the royalty payments, and its majority shareholder is Weeks Petroleum Limited, a subsidiary of the Australian Bell Group, which operates out of Melbourne. Thus, the majority of the royalties never leave Australia. Both defendants are Australian corporations and have maintained no office in New York since December 1984. As the Supreme Court emphasized in Piper Aircraft, the presumption in favor of the plaintiff’s choice of forum is less weighty when the plaintiff is a foreign corporation “[b]ecause the central purpose of any forum non conveniens inquiry is to ensure that the trial is convenient.” 454 U.S. at 256, 102 S.Ct. at 266. When neither party is domiciled in this jurisdiction, the presumption is even less compelling.

The only factor that presents any problem results from the choice of law clause in the Royalty Agreement. That clause provides: “Except as otherwise required by the law of the place where the said hydrocarbons are produced or as otherwise herein provided this Agreement shall be interpreted and applied in accordance with the law of the State of New York.” Thus, New York law applies unless Australian law must be applied by virtue of Australia’s own laws. If New York law governs the issues in this case, the Court must weigh that factor in determining the appropriate forum. The wording of the choice of law clause makes it necessary for the Court to determine the central issue in the underlying substantive dispute in order to decide which law will apply. See Overseas Programming Cos. v. Cinematographische Commerzanstalt, 684 F.2d 232, 235 (2d Cir.1982). The litigation results from differing interpretations and applications of the poorly worded clause governing calculation of royalties:

Royalty shall be payable in cash unless the Royaltyholder by written notice elects to receive the same in kind in the form of hydrocarbons and the value for purposes of calculating royalty whether payable in cash or in kind shall be the same as that on which royalty to the State is based or if no royalty be payable to the State the value at the place of production as determined by mutual agreement or failing mutual agreement as determined by arbitration as hereinafter provided PROVIDED that the value shall be the gross value without deduction of any costs amortisation royalty rental or taxes.

Plaintiff claims that the “PROVIDED” clause applies even when there is a royalty paid to the State and, therefore, the royalty payment to plaintiff must be calculated without deduction of any costs, amortization, royalty rental or taxes, whether or not the state royalty is so calculated. Defendants claim that the royalties paid to plaintiff are based upon State royalty calculations,' which are calculated before deduction of taxes. The State royalty calculation is necessarily determined in accordance with Australian law and was worked out after negotiations with the Australian “Designated Authority,” which is the Minister for Minerals and Energy of Victoria.

There appear, therefore, to be two levels to the case: first, whether the “PROVIDED” clause limits the royalty calculation when there is a State royalty payment; and second, whether the State royalty is calculated to exclude the disputed excise tax and other costs. The first issue would seem to be a simple question of contract interpretation, governed by New York law, but primarily presenting questions of fact. It is not clear from the parties’ papers that this issue is even in dispute. The second question necessarily involves the interpretation of Australian law, at least in its application. That is, the arbitrators will have to determine whether Australian law requires calculation of State royalties before excluding taxes, and if so, whether the specific royalties at issue were correctly calculated. Accordingly, the Court finds that Australian law will necessarily play a major part in the resolution of the dispute. To the extent that New York law will govern certain issues, those issues will only require the implementation of general principles of contract interpretation, which should not be difficult to prove in a foreign forum. Plaintiff has pointed to no specific areas of New York law that will be at issue.

Accordingly, the Court finds that the balance of interests weigh overwhelmingly on the side of dismissal in favor of the Australian forum. Because the case is hereby dismissed, plaintiffs motion is denied as moot.

CONCLUSION

Defendants’ motion to reopen is granted. Fed.R.Civ.P. 60(b). Defendants’ motion to dismiss on grounds of forum non conveniens is granted and the March Memorandum and Order is vacated to the extent that it compelled arbitration in New York.

Plaintiff's motion to amend the March Memorandum and Order is denied. Fed.R. Civ.P. 59, 60.

SO ORDERED.

      . Affidavit of Roy H. Steyer, Exh. A, ¶ 11.

      . id. ¶ 12.

      . Affidavit of Donald J. Nairn, ¶ 5.

      . Affidavit of Paul N. Temple, ¶ 3.

      . See Royalty Agreement at 4, ¶ 12, Complaint Exh. A, 84 Civ. 6620 (JMC) (filed Aug. 28, 1984) ["Royalty Agreement”].

      . Plaintiff argues that the Court should adopt the Fifth Circuit’s rule that the other factors in the balancing test may not even be considered if the law of the current forum governs the substantive issues in the case, because that factor is determinative. See Chiazor v. Transworld Drilling Co., 648 F.2d 1015, 1017-18 (5th Cir.1981), cert. denied, 455 U.S. 1019, 102 S.Ct. 1714, 72 L.Ed.2d 136 (1982). The Second Circuit has not adopted such a rigid ruling, but instead considers the choice of law as merely a factor to be balanced against others. See Overseas Programming Cos. v. Cinematographische Commerzanstalt, 684 F.2d 232 (2d Cir.1982); Schertenleib v. Traum, 589 F.2d 1156, 1165 (2d Cir.1978). Accordingly, this Court is not bound by the strict Fifth Circuit rule. In light of the Court’s finding that the major issues must be resolved with reference to Australian law, however, the choice of standard is immaterial.

      . Royalty Agreement at 1, ¶ 3.


author: STEWART, District Judge.

text:
    Bronwen E.M. BUDDLE, Plaintiff, v. HEUBLEIN, INC., et al., Defendants.
    No. 81 Civ. 7671(CES).
    United States District Court, S.D. New York.
    April 10, 1985.

      Paulette M. Owens & Associates, New York City, for plaintiff; Paulette M. Owens, New York City, of counsel.
    Proskauer Rose Goetz & Mendelsohn, New York City, for defendants; Henry Kelston, New York City, of counsel.
   OPINION

STEWART, District Judge.

The amended complaint in this action alleges a Title VII claim against Heublein, Inc. and a tort claim for intentional infliction of emotional distress under New York law against defendants Berger, Holmes and Vogel. Jurisdiction of the latter is based on diversity. Other tort claims were dismissed before trial.

Trial on both causes of action concurrently were held in January. The Title VII claim was tried to the Court; the tort claim was presented to a jury. Hereinafter is set forth our findings of fact and conclusions of law as to the Title VII claim, as well as our rulings on post-trial motions by defendants attacking the verdict in plaintiffs favor.

Plaintiff was employed by defendant Heublein as a sales representative in December 1976. Heublein is engaged in the business of manufacturing, importing and selling wines and liquors in New York and elsewhere. Her duties were to promote the sales of Heublein by working with independent distributors or wholesalers of Heublein products and by calling on and servicing retail accounts, including liquor stores, restaurants and bars. She replaced another female sales representative who had resigned shortly before plaintiff was hired.

Initially, she was assigned to a training program by Harvey Bronstein, then a supervisor in the metropolitan New York area. During the month of December, she was assigned to various orientation projects in the office. In January 1977, Bronstein assigned her to be trained in the field (specifically, in Queens, her prospective territory) by Sidney Berger, an experienced sales representative. Berger is an outgoing, gregarious type who tells off-col- or jokes and describes himself as a “lapel-grabber”. He is married and has several children. Plaintiff, on the other hand, has a much more reserved personality; on the surface, she is quiet and sometimes anxious in manner but at the same time appears to have substantial determination and ambition beneath the surface.

Plaintiff and Berger did not work well together. She resented his mannerisms and Berger became impatient with her apparent failure to appreciate his efforts to teach her appropriate sales techniques. During this portion of her training period, Berger and plaintiff customarily drove in his car to visit various customers and wholesalers, so that plaintiff could observe Berger in action using his own sales approach. Plaintiff testified that on occasion Berger engaged in sexual harassment of her by telling off-color jokes, by touching her knee and shoulder, and by trying on one or two occasions to kiss her. Although Berger denies any such conduct, we think it not unlikely that he did tell sexual jokes and that on occasion he touched her knee and shoulder, all of which plaintiff found objectionable. We do not accept her testimony that he tried to or did kiss her. Berger’s conduct, to which plaintiff objects, was not in our view engaged in to sexually harass her. Rather, it appears that his behavior towards plaintiff was only a reflection of his bumptious personality.

In any event, plaintiff and Berger each complained to Bronstein about the other’s conduct and in mid-February 1977, he summoned them both to his office and terminated the training relationship. Thereafter, plaintiff completed her training with other sales representatives and began to perform her duties as a sales representative. Significantly, plaintiff on cross-examination admitted that she did not contend that she was sexually harassed by Berger or any other Heublein employee after February 1977. She claims, however, that thereafter in retaliation for her complaints about Berger’s conduct she was subjected to various discriminatory acts. These were initiated, she contends, by Berger and also by Bronstein, who allegedly accused her of provoking Berger. Bronstein, however, denies this and he also denies that plaintiff referred to any sexual harassment by Berger in her complaint to him of Berger’s training methods. Nor, in fact, does plaintiff’s letter to the union (see n. 1) refer to any sexual harassment.

The alleged acts of retaliation included the following:

1. Kagel, who was in charge of distributing sales promotion material (such as T-shirts imprinted with brand advertising and the like), failed to provide her with the same amount of such material as that furnished to other sales representatives. This, she claims, adversely affected her relations with customers.

One of plaintiff’s witnesses, Cogen (also a sales representative) testified in general terms that plaintiff did not receive equal treatment on promotion material. However, for a good part of plaintiff’s tenure with Heublein, Cogen served an area different from that of plaintiff and so had limited opportunities to observe her performance or the actual distribution of sales material to sales representatives. Moreover, another sales representative (Daniels) who testified for plaintiff, testified that to his knowledge every sales representative had equal access to point-of-sale material and he was not aware that plaintiff had ever been denied such access. Kagel testified that he had never intentionally distributed sales material in a discriminatory manner to plaintiff; we found his testimony to be credible.

We find that the evidence does not support plaintiff’s general, unparticularized claim of discrimination with respect to the distribution of promotional, point-of-sale material.

2. Plaintiff complains that Kagel borrowed bottles of liquor from one or two retailers served by plaintiff, that he thereafter failed to pay for this liquor and that as a result her relations with these retailers were damaged. Kagel testified that he borrowed wine for business purposes on a few occasions from a liquor store in Flushing and that he always reimbursed the owner of the liquor store. We accept Kagel’s testimony; we fail to see here any evidence of retaliation.

3. Plaintiff complains that she was transferred from one distributor to another more often than other sales representatives and that this affected adversely her ability to develop productive customer relationships. There is, however, little or no support in the record for this complaint or that any transfers were made for discriminatory or other improper reasons. As discussed further below, plaintiff was shifted in November 1980 from the distributor Major (to whom she had been assigned in the summer of 1979) to the distributor Alpine, but this was done at the request of Major. Accordingly, we find no evidence of retaliation or discrimination to support this charge.

4. Plaintiff further complains that she was referred to by other employees, including Berger and Bronstein, in demeaning terms. Berger, she claims, told others she was a “dyke” (which the witness Daniels confirmed) and Bronstein referred to her as a “bitch”. Berger and Bronstein deny that they did so. Plaintiff also complains that at a general sales meeting she was introduced as “Mr. Buddie”. Kagel testified that, although he did not recall having done so, it might have happened. It was his custom in introducing sales representatives at such a meeting to quickly go down a list of names referring to each as “Mr. So-and-So”. He testified that he never intentionally referred to plaintiff as “Mr. Buddie” and we accept his testimony. We find nothing in this evidence, even assuming that plaintiffs contentions are correct, which rises to the level of discrimination or retaliation under Title VII.

Murray Vogel became vice-president in charge of the metropolitan New York area in 1978. Bronstein, who continued as plaintiffs supervisor in 1978 and early 1979, reported to Vogel. Plaintiffs performance was not satisfactory either to Bronstein or Vogel and each of them spent time with her in the office and in the field in an effort to improve her sales record. In September 1978, her performance did improve and on October 9, 1978 Vogel sent her a congratulatory note (Def. Ex. G). However, her performance fell off thereafter and in January 1979 Vogel placed her on informal probation. In a memo (Def. Ex. H) reporting this action, Vogel wrote as follows:

I met with her on January 29th and stated to her that she was not selling product, that she was not booking displays, that she was not helping with distribution or new product placement and that she evidences a genuine dislike for on premise activity. She admitted all of the above as failings and promised to do better. I told her that she was on a probationary period until June when we would reexamine her performance with all the attendant consequences. She agreed to that arrangement.

On April 1, 1979, Lloyd Holmes replaced Bronstein as plaintiffs supervisor. He had had no prior contacts with plaintiff. Holmes had requested and received a commitment from Vogel (to whom he reported) that he would evaluate and deal with the sales representatives assigned to him without regard to their prior history with the company. Holmes reported this to his sales representatives (including plaintiff) and told them that they were each starting from scratch as far as he was concerned. Accordingly, the period of probation placed on plaintiff by Vogel was terminated.

Holmes thereafter spent some time with plaintiff in the field in an effort to improve her performance. He found that she reacted poorly to taking instructions and that she had a hostile attitude to the company’s products. On occasion when he tried to give her advice, she responded with profanity. She expressed to him an unwillingness to visit “on premise” accounts (bars and restaurants) as required of sales representatives generally.

Plaintiff was assigned during 1979 as the sales representative to deal with Major, a division of the distributor Star Industries. It was her responsibility to work with Major’s sales force and assist in their sales programs. Rudy Koenig, the sales manager of Major, testified that she performed poorly. As the sales representative assigned to Major, plaintiff was expected to make sales presentations at Major’s sales meetings each Friday. Her presentations were ineffective; as Koenig put it, “she didn’t come across”. Also, she would not be available after the meetings to answei questions. Koenig offered to help her to improve her presentations but she did not take advantage of his offer. Holmes also tried to help plaintiff improve by working with her in the field, but to little or no avail.

In September 1980, Major held an outing for its staff and Vogel selected Holmes, as supervisor, and Kagel, the Smirnoff brand manager, to attend. Mrs. Kagel, a former professional entertainer who had performed at a prior Major outing, was also invited to attend. Plaintiff then wrote Vogel on September 10, asking him to explain why she had not been designated to attend (Def. Ex. F). On the following day, Vogel sent plaintiff a note asking her to meet with him to discuss the matter (Def. Ex. 1). Plaintiff did not respond until October 27 when she wrote Vogel insisting on a written explanation (Def. Ex. J). Vogel answered this on October 30 (Def. Ex. K). We find nothing discriminatory in this conduct; the fact is that Major had expressed its dissatisfaction with her performance not long before this meeting.

In late October 1980, Koenig called Vogel and asked that plaintiff be removed as the Major sales representative. He told Vogel that she worked only infrequently with the Major salesmen, that she failed to attend regularly the Friday sales meetings, that she had not responded to Koenig’s offer to help her and that she was unsatisfactory. Koenig also told Holmes that he wanted plaintiff removed. Vogel’s first reaction to this was that plaintiff’s employment with Heublein should be terminated; Holmes, however, asked Vogel to give her another chance and Vogel agreed. It was determined to place plaintiff on probation for three months and to reassign her to Alpine, a Peerless distributor, to which plaintiff had in the past been assigned as sales representative. Alan Paul, sales manager of Alpine, had had a good relationship with plaintiff on that prior occasion and he agreed to accept plaintiff.

When advised by Holmes of her new assignment, plaintiff at first refused to accept it. On November 5, 1980, Holmes and Vogel met with plaintiff and gave her a copy of the probation statement (PI. Ex. 16). Plaintiff at first objected to being placed on probation, but she accepted it when Vogel told her that, if she did not accept it, she would be asked to submit her resignation.

Since Holmes was hospitalized for several weeks in January, the period of probation was extended for another month. In early March 1981, Holmes reported to Vogel that her performance had improved and plaintiff was removed from probation (PI. Ex. 18).

In early April 1981, Vogel decided to hold on April 9 an important sales meeting, the largest ever for the Metropolitan Region, at which a formal presentation of the summer promotion program would be made to all its distributors. All of the sales representatives were instructed to be present. Plaintiff did not attend nor did she request permission to be absent. When asked by Holmes the next day why she was not present, she responded that she “had to go to school”. In fact, Paul testified that plaintiff spent part of that afternoon with him, after he had advised her he could not attend the meeting. Paul also testified that plaintiff might have been more helpful to him if she had attended the meeting and then been able to report to him on the promotion program presented at the meeting.

Later the same month, plaintiff asked Holmes for 500 T-shirts to be used in promoting Smirnoff sales. Holmes regarded this as an enormously large amount, and believed that it would be illegal under New York law to use such amounts for promoting the sale of alcoholic beverages. He so advised plaintiff and rejected her request. Nevertheless, she thereafter approached two other Heublein brand managers with the same request, without advising them Holmes believed her proposal was unlawful.

Also in April, two distributor salesmen (Borden of the distributor Charmer and Dorkin of the distributor Star) called Holmes to complain that plaintiff had attempted to persuade some of the retailers with whom they had established relationships to place orders for Heublein products with Alpine (a Peerless wholesaler) rather than with Charmer and Star. This is a practice called “steering” which traditionally is regarded in the industry as serious misconduct. In New York suppliers of alcoholic beverages, such as Heublein, do not sell directly to retailers but deal only with wholesalers who in turn sell to retailers. Wholesalers carry the products of the various competing suppliers and compete with each other in sales to retailers. Heublein’s sales representatives, like plaintiff, are expected to work with the wholesaler to whom they are assigned in promoting the sale of Heublein products. They are also expected to call on retailers in order to promote the purchase of Heublein products by the retailers. An increase in the sales of Heublein products by a wholesaler to whom a sales representative, like plaintiff, is assigned redounds to the benefit of the sales representative by improving his or her performance record. But for obvious reasons a sales representative should not try to persuade a retailer to switch his purchases from one wholesaler to another, and specifically to the wholesaler to whom the sales representative was assigned. If this is done, the wholesaler who loses business is all too likely to develop an unfavorable attitude to Heublein. Consequently, Heublein sales representatives are expected to leave it to the retailer to select the wholesaler with whom to deal and not to engage in steering.

Vogel testified that sales representatives were admonished against steering and we accept his testimony. We find that plaintiff knew that steering was a forbidden practice.

The manager of the Charmer distributor, Borden, testified that in early April plaintiff told two of his retailers that to participate in a Smirnoff promotion they would have to order through the distributor Peerless (of which Alpine, to whom plaintiff was assigned, was a division), not as in the past from Charmer. He became very upset, and called Holmes to complain. He testified that he would have stopped doing business with Heublein if any steering took place.

Dorkin of the distributor Star testified to the same effect with respect to one of his retailers, Di Leo. Dorkin said that this was the first time it had happened to his knowledge. Di Leo also testified. Plaintiff asked him to order from Alpine, but he told her to place the order with Star. However, the order was filled by a shipment from Alpine which Di Leo refused to accept. He thereupon called Dorkin to complain, who in turn called Holmes.

After receiving the complaints from the wholesalers, Holmes confirmed them with the retailers involved. He then confronted plaintiff with these charges, which she denied. Thereafter, he recommended to Vogel that plaintiff be discharged, Vogel concurred and she was terminated on April 28, 1981. In doing so, Vogel forgot that she was entitled to two week’s notice under the union contract. When this was called to his attention, he promptly corrected the error by paying her an additional two weeks’ salary in lieu of notice. Although Vogel referred to her failure to attend the meeting on April 9 and her improper attempt to obtain 500 T-shirts when he told plaintiff she was being terminated, he emphasized that steering was the principal reason for his action. Both Vogel and Holmes testified that steering was the precipitating cause of her discharge; we reject plaintiff’s contention that this was not even mentioned to her.

Based on the foregoing, we conclude that plaintiff has failed to establish by a preponderance of the evidence her claim of discrimination. Pursuant to McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), plaintiff must first establish a prima facie case of sexual discrimination. If a prima facie case is established, the employer must come forward with some evidence to articulate some legitimate, non-discriminatory reason for the action. Plaintiff then has the ultimate burden to show that the “legitimating explanations put forward by the defendant for actions alleged to be discriminatory ... are mere pretexts for forbidden motivation”. Rodriguez v. Bd. of Educ. of Eastchester, 620 F.2d 362, 367 (2d Cir.1980). Here, plaintiff timely filed her discrimination claim with EEOC on May 14, 1981, and this lawsuit was timely commenced in December 1981. Thus, plaintiff may look only to alleged acts of discrimination which occurred during the 300-day period prior to May 14, 1981, that is, the period from July 18, 1980 to May 14, 1981. Prior conduct may be used only as background evidence.

Prior to the assignment of Holmes as her supervisor in April 1980, although she had received assistance from her supervisor Bronstein, her performance had not been impressive. Holmes nonetheless started her on a clean slate and made continuing efforts to aid her in improving her performance. She failed, however, to satisfy Major, the distributor to whom she was assigned and pursuant to Major’s demand was re-assigned to Alpine. With Holmes’ help, she showed some improvement, but in April 1981 her acts of misconduct multiplied, culminating in her attempts (in an effort to improve her record) to steer business from other distributors to her distributor. This, as indicated above, resulted in her discharge.

We have serious doubts as to whether plaintiff has made out a prima facie case, but in any event defendant has demonstrated convincingly legitimate, non-discriminatory reasons for her termination, which plaintiff has .failed to show were pretextual. Accordingly, we dismiss the claim under Title VII.

Defendants have moved for judgment notwithstanding the verdict or, alternatively, for a new trial on the claim for intentional infliction of emotional distress. Under New York law, as set forth in Murphy v. American Home Products Co., 58 N.Y.2d 293, 448 N.E.2d 86, 461 N.Y.S.2d 232 (1983), the standard is as follows:

“One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress” (§ 46, subd. [1]). Comment d to that section notes that: “Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”

Id. at 236, 448 N.E.2d at 90, quoting Restatement (2d) of Torts.

In addition to the evidence reviewed above, plaintiff also offered at trial the testimony of Dr. Stephen Billick, a psychiatrist who had examined plaintiff (in the office of plaintiff’s attorney) in March and May 1982. He found that she had been “devastated by the events at Heublein and especially what she described as unrelenting sexual harassment” (Tr. 772). He also testified that what “was also upsetting to her was what she called a totally unexpected and unwarranted termination from employment” (Tr. 772). He diagnosed her as having a chronic post-traumatic stress disorder, which he attributed to the “sexual harassment” and the termination. He conceded that the only specific sexual harassment which she mentioned was that involving Sidney Berger in the early part of 1977. He based his conclusions on the 1977 episode and the termination in 1981, with the former being the more significant (Tr. 794-95).

Defendant also introduced the testimony of a psychiatrist, Dr. James Hannon, who examined plaintiff in his own office in July 1984. She described to him the Berger episode in 1977; she told him that she complained to her supervisor (Bronstein) about the sexual harassment by Berger and that after about three months it stopped (Tr. 821). She also mentioned the probation in the fall of 1980 and her termination in 1981. The only events which plaintiff related as having caused her stress were the Berger episode and the termination (Tr. 839). In describing to him her work history prior to Heublein, she was “extraordinarily vague” (Tr. 825). His findings were that “she was suffering essentially from a personality disorder, the main component of which was a schizotypal personality disorder with a component of a histrionic or hysterical personality disorder present” (Tr. 831). She could be effective, however, in a structured form of employment that did not involve her in the stresses of day-to-day human relationships (Tr. 833). He also found that her personality disorder had existed at an early age, had worsened as she grew older, and was not the result of anything that happened while she was at Heublein.

Dr. Hannon also disagreed with Dr. Billick’s finding of “post-traumatic stress disorder”, which is defined in the standard reference manual, to which Dr. Billick referred (Tr. 799-800), as resulting from “a psychologically traumatic event that is generally outside the range of usual human experience”. Such events include “floods, earthquakes, car accident with serious physical injury, airplane crashes, large fire or deliberate man-made disasters, for example, bombing, torture, death camps” (Tr. 801). Indeed, he found in the report of Dr. Reiss (Ex. 36), to whom Dr. Billick had referred plaintiff, corroboration for his own conclusions that she did not suffer from any post-traumatic stress disorder. We found much more persuasive Dr. Hannon’s testimony than that of Dr. Billick.

In submitting the tort claim to the jury, we charged them that they might only consider events which occurred from December 8, 1978 to April 27, 1981, the day before she was terminated. We selected the earlier date, which is three years before the complaint was filed, having concluded that the New York three-year statute of limitations under N.Y.Civ.Prac.L.R. § 214(5) applied, rather than the one-year statute in N.Y.Civ.Prac.L.R. § 215 as contended by defendants. As we instructed the jury, the plaintiff could not recover any damages for intentional infliction of emotional distress flowing from her discharge. Since New York does not allow a cause of action in tort for wrongful or abusive discharge, “plaintiff should not be allowed to evade that conclusion or to subvert the traditional at-will contract rule by casting his cause of action in terms of a tort of intentional infliction of emotional distress”. Murphy v. American Home Products Corp., 461 N.Y.S.2d 232, 236, 448 N.E.2d 86, 90 (1983). The evidence establishes that plaintiff was an at-will employee. Consequently, the jury could not consider the Berger episode in early 1977 or the termination itself. We assume that the jury followed our instructions to this effect.

With respect to the verdicts finding Holmes and Vogel liable for the tort claim, we conclude that plaintiff has utterly failed to make out a case and that under the standards set forth in Mattivi v. South African Marine Corp., 618 F.2d 163, 167-68 (2d Cir.1980), the motion for judgment notwithstanding the verdict should be granted.

Holmes, plaintiff’s immediate superior during all but the first three months of the period here in issue, leaned over backwards to help plaintiff. Two of plaintiff’s witnesses, Cogen and Daniels, testified that Holmes was honorable, considerate and trustworthy. Vogel, Holmes’ superior, relied heavily on Holmes in deciding how to deal with the disciplinary problems which plaintiff created. There was no evidence that either of them had the requisite intent or took any action which even approached the level of conduct required by Murphy. Rather, the evidence affirmatively establishes that they took appropriate steps to help plaintiff without success.

Moreover, the testimony of Dr. Billick is irrelevant and the jury should have been so instructed by us, since he relied solely on two episodes outside of the scope of the cause of action.

After 1977, Berger had limited contacts with plaintiff. Her evidence of his allegedly improper conduct in the relevant period is limited to the testimony of Daniels that at a sales meeting in 1980 Berger referred to plaintiff (who was not present) as a “dyke”.

Daniels also related that during conversation “among the boys”, he heard Berger refer to plaintiff as a “whore” and a “bitch” and advise others to “stay away from her because she’ll get you in trouble”. Plaintiff was not present. Moreover, there is no evidence that these statements, if made, were delivered during the relevant period.

Plaintiff did not refer to either of these events in her testimony and there is nothing in the record indicating that she was ever aware these remarks had been made or that they had any impact on her. There is no evidence, therefore, to support the verdict under the Murphy standards. Indeed, in our view these statements, even if made in plaintiffs presence, would not be sufficient as a matter of law to support a verdict for plaintiff. We therefore conclude that the motion for judgment notwithstanding the verdict must be granted as to defendant Berger.

Accordingly, the motions for judgment notwithstanding the verdict are granted as to defendants Berger, Holmes and Vogel. Judgment is also granted for defendant Heublein on the Title VII claim. Defendants may submit judgments.

SO ORDERED.

      . In late February, plaintiff wrote a letter to the union (of which she was a member, although Berger was not), describing Berger’s conduct “for the record". She did not send a copy of the letter to Bronstein or any other company official, but she did send a copy to the shop steward, a co-employee (PI. Ex. 3).

      . Cogen, a sales representative called as a witness by plaintiff testified that he customarily received 25 to 30 T-shirts, and that he never received as many as 100.

      . Sales representatives called by plaintiff as a witnesses, including Cogen and Spiess, considered steering to be "stupid” and "unethical”.

      . Holmes testified that three female sales representatives were hired in his area after plaintiff was terminated.

      . Ms. Spiess, called as a witness by plaintiff, was employed by Heublein as a sales representative from 1974 to February 28, 1978, when she resigned. Her testimony was not relevant to the tort claim, since it related to events prior to the statutory period. Moreover, it did not establish any discriminatory conduct as to plaintiff.

      . In a signed statement dated October 12, 1981 (Def. Ex. G), Daniels stated in part:
      2. The distributors' meeting in April, 1981 was extremely important. That fact was made clear to all of the sales reps and in my opinion, there is no way Ms. Buddie did not know how important it was.
      3. Aside from the incident described in Ms. Buddie’s complaint about another employee touching her, which I heard about several years ago, I know of no other incidents of sex discrimination or sexual harassment involving Ms. Buddie.