author: WHITMAN KNAPP, District Judge.

text:
    Gratien ARNELL, George Arnold, Charles Borger, Louis Boynton, James Finnen, Arthur Kneale, James Magill, Benjamin Romanowski, Joseph Triolo, Anthony Triolo and Flor Yglesias, as Administratrix of the Estate of Rodrigo R. Yglesias, Plaintiffs, v. PAN AMERICAN WORLD AIRWAYS, INC., Defendant.
    No. 84 Civ. 595 (WK).
    United States District Court, S.D. New York.
    June 25, 1985.
    Ira Raab, Woodmere, N.Y., for plaintiff Yglesias.
    Ormsten & Evangelist by Frank J. Evangelist, New York City, for remaining plaintiffs.
    Townley & Updike by Kenneth McCulloch, New York City, for defendant.
   MEMORANDUM & ORDER

WHITMAN KNAPP, District Judge.

This is a consolidated action by several plaintiffs against their former employer, Pan American World Airways, Inc. (“Pan Am”), for age discrimination, breach of an employment contract, breach of a covenant of good faith and fair dealing, intentional fraud and deceit, and negligent misrepresentations. Only the first cause of action, discrimination on the basis of age in violation of the Age Discrimination In Employment Act of 1967, 29 U.S.C. § 621 et seq. (ADEA), states a federal claim. The remaining four involve questions of New York State law only. The case is before us on defendant’s motions (1) to strike plaintiffs’ prayer for relief with respect to the first cause of action insofar as it asks for compensatory damages based on violation of the ADEA; (2) to decline jurisdiction over the four claims brought under state common law; and (3) in the alternative to dismiss, with prejudice, the four asserted state law claims.

As a preliminary matter we grant defendant’s motion to dismiss plaintiffs’ request for compensatory damages under the ADEA. Every Circuit, including recently our own, has held that recovery for compensatory damages is not permissible under the ADEA. Johnson v. Al Tech Specialities Steel Corp. (2d Cir.1984) 731 F.2d 143, 147.

To address defendant’s motion to decline pendent jurisdiction, we think it helpful first to summarize the entire complaint. Plaintiffs allege, essentially, that each of them was terminated by defendant in connection with a reduction in force, and that these terminations were wrongful on several grounds. With respect to the age discrimination claim, plaintiffs allege that defendant discriminated against them by firing highly competent, but more costly, older workers while retaining less qualified and less costly younger workers. To present a prima facie case on that claim plaintiffs must establish (1) that they were members of the protected group; (2) that they were adversely affected by an employment decision; (3) that they were qualified to do the job; and (4) either that they were replaced by younger persons or, in a reduction-in-force case, some evidence that the employer’s conduct was based on age. See McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668; Stanojev v. Ebasco Services, Inc. (2d Cir.1981) 643 F.2d 914, 920-21; Deutsch v. Carl Zeiss, Inc. (S.D.N.Y.1981) 529 F.Supp. 215, 217-18. Once plaintiff has established a prima facie case, defendant must articulate some non-discriminatory reason for the employment decision. Plaintiff then has the opportunity to discredit the evidence by showing that the reason is pretextual. Thus, the critical evidence which plaintiffs will have to present in the instant action will include either evidence of direct discriminatory conduct, or evidence that defendant’s employment policies were applied differently to older workers than to younger workers.

In contrast, plaintiffs’ state claims raise different issues and require different kinds of proof. Plaintiffs’ second cause of action alleges a breach of an express agreement not to terminate without cause. Although it appears to us that plaintiffs’ employment could be characterized as employment-at-will, plaintiffs, to establish their claim, might present evidence that defendant’s personnel policy manual and other documents, together with any statements made by defendant, created such an express agreement. The kinds of issues created by this particular claim include whether the documents created a contract, whether defendant made oral statements and, if so, whether any such statements, together with the documents, created a contract; and the effect of a “reservation of management rights” clause such as that which defendant had in its manual. With respect to these issues, each of the eleven plaintiffs was hired at a different time and each will have to present evidence to show that under the circumstances of his own hiring, an enforceable contract was created.

Not only does this claim require different proof for each plaintiff, and raise issues different from those of the federal claim, thus requiring different evidence, but is also raises legal issues peculiarly suited for the New York courts. The circumstances under which policy manuals, or policy manuals in conjunction with statements and behavior, can create an enforceable contract is a developing area of New York law. See Murphy v. American Home Products Corp. (1983) 58 N.Y.2d 293, 304-05, 307-15, 461 N.Y.S.2d 232, 237, 239-43, 448 N.E.2d 86, 88-92; Weiner v. McGraw-Hill, Inc. (1982) 57 N.Y.2d 458, 457 N.Y.S.2d 193, 443 N.E.2d 441. In addition, an issue relevant to this claim in the instant action is the res judicata effect of Justice Beatrice Shainswit’s 1981 opinion in Wiegart v. Pan American World Airways, Inc., Index No. 8371/79, Supreme Court, New York County. In that case, in which a plaintiff class was certified, Justice Shainswit held that Pan Am’s personnel policy manual did not create employee rights enforceable by a court. Whether plaintiffs were members of that class and what effect that decision has on the present claims are, we think, questions better suited for a New York court to determine.

Plaintiffs’ third, fourth and fifth claims are basically spin-offs of their second claim and would require, essentially, the same proof necessary to that claim.

Whether we should exercise jurisdiction over plaintiffs’ state law claims is a matter left to our discretion. In United Mine Workers of America v. Gibbs (1966) 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218, the Supreme Court cautioned that

[njeedless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law ... [I]f it appears that the state issues substantially predominate, whether in terms of proof, the scope of the issues raised, or of the comprehensiveness of the remedy sought, the state claims may be dismissed without prejudice and left for resolution to state tribunals.

Id. at 726-27, 86 S.Ct. at 1139.

In this action we think it appropriate to decline pendent jurisdiction. Where the considerations underlying the state claims are so different from those underlying the federal claim, the exercise of pendent jurisdiction would not advance judicial economy. See United Mine Workers of America v. Gibbs, supra, 383 U.S. at 726, 86 S.Ct. at 1139; Kelly v. Western Air Lines, Inc. (D.Utah 1983) 34 EPD (CCH) ¶ 34, 423. Furthermore, plaintiffs’ state claims implicate a developing area of state law, and require a determination of the effect of a prior decision in a New York class action which involved similar claims, both of which considerations lean towards the appropriateness of initial state court consideration. Finally, plaintiffs’ state claims which, at least so far as they seek compensatory and punitive damages, involve questions of plaintiffs’ mental state and defendants’ malice irrelevant to an ADEA claim, could result in jury confusion. Malarkey v. Texaco, Inc. (S.D.N.Y.1982) 559 F.Supp. 117,123, aff'd (2d Cir.1983) 704 F.2d 674; see Haskell v. Kaman (2d Cir.1984) 743 F.2d 113, 120; Deutsch v. Carl Zeiss, supra, 529 F.Supp. at 219. Accordingly, we decline to exercise jurisdiction over plaintiffs’ second, third, fourth and fifth causes of action.

In summary, plaintiffs’ request for compensatory damages under the ADEA is stricken, and plaintiffs’ state law claims (their second, third, fourth and fifth causes of action) are dismissed without prejudice.

SO ORDERED.

      . The consolidated action consists of three nearly identical complaints. For the sake of convenience, we refer to a single complaint.


source: Caselaw Access Project

author: WARREN, District Judge.

license: Public Domain

text:
    Edward ST. CLAIR, Plaintiff, John M. PIPAL, Orlen G. Wood, Ilene M. Sheahan and John Doe, Defendants.
    No. 81-C-9.
    United States District Court, E.D. Wisconsin.
    June 25, 1985.

      Merrick R. Domnitz, Milwaukee, Wis., for plaintiff.
    Rudolph M. Conrad, Asst. City Atty., Milwaukee, Wis., for defendants.
   MEMORANDUM AND ORDER

WARREN, District Judge.

This action was tried to a jury over a three-day period, beginning on December 5, 1983. Throughout the litigation — including trial — of this matter, the plaintiff claimed damages for personal injuries allegedly suffered by him during the course of his arrest by defendant City of Milwaukee Police Officers on June 26, 1980, on the Summerfest grounds in Milwaukee, Wisconsin. Specifically, he maintained that the injuries he sustained were proximately caused by the defendants’ use of excessive force, effectively depriving him of his due process and equal protection rights under the United States Constitution.

The defendants, on the other hand, held throughout these proceedings that the force they used in arresting the plaintiff was not excessive but reasonably necessary under the circumstances. They further contended that at all times they acted in good faith and in accordance with their duties as law enforcement officers.

At the conclusion of the three-day trial, the jury returned a special verdict, finding that none of the named defendants had violated the plaintiff’s constitutional rights under the circumstances of his arrest in 1980. Based on this finding, the Clerk of Court entered judgment that the plaintiff take nothing, that the action be dismissed on its merits, and that the defendants be awarded their costs incurred in defending this lawsuit.

Presently before the Court in this matter is the plaintiff’s motion of January 6, 1984, for judgment notwithstanding the verdict, pursuant to Rule 50(b) of the Federal Rules of Civil Procedure, or, in the alternative, for a new trial, pursuant to Rule 59(a) of the Federal Rules of Civil Procedure. The thrust of the plaintiff’s argument in support of these alternative motions is that, although there is some evidence in the record to support the jury’s finding, the verdict is nonetheless against the substantial weight of the credible evidence. Summarizing the admittedly conflicting testimony with respect to the circumstances that precipitated the altercation between the parties and eventually led to his arrest by Officers John M. Pipal, Orlen G. Wood, and llene M. Sheahan, the plaintiff contends that the testimony of some four, independent witnesses to the incident supports his account and substantially discredits that offered by the defendants:

This Court heard the two days of testimony in this case. The clarity of recollection and precision of detail relating to the blows struck against the plaintiff as he was helpless on the ground were unmistakable. Four witnesses, David Niessen, Joseph Spak, Gregory Dornoff and Donna Schwartz, who did not know each other and had never spoken to one another about this incident, all took the stand and testified that [defendant] Wood struck [plaintiff] St. Clair in the face numerous times with his weighted sap. None of the witnesses testified that St. Clair was continually struggling. None testified that St. Clair even struck a blow once Wood arrived on the scene. Yet each testified to a bloody and brutal “police beating.” ...
Four citizens of this city, only one of whom, Niessen, had ever met the plaintiff and none of whom had ever met the defendants, testified under oath at deposition and at trial that they saw — not that they thought they saw — but that they saw Detective Wood strike St. Clair in the head and face six to twelve times. That night St. Clair took fifty-seven stitches to his head and face. The next day reconstructive dental work was begun on the tooth knocked out clean at the gum line. Blood clots formed in his lips and knots rose in his head.

Plaintiffs Memorandum in Support of Post-Trial Motions at 5 (January 6, 1984). As indicated, the plaintiff characterizes the testimony of the defendants as largely contradicted and impeached by these eyewitness accounts and, in this regard, suggests that the nature and scope of his injuries as recorded in the trial record can be reconciled only with his version of the incident. Concluding that the jury verdict thus stands against the great weight of the credible evidence adduced and, as such, constitutes a miscarriage of justice, the plaintiff seeks an order directing the entry of judgment notwithstanding the verdict or, in the alternative, a new trial on the parties’ opposing claims.

Predictably, the defendants oppose the entry of any order modifying or overturning the jury verdict returned on December 8,1983. In specific response to the petition for judgment notwithstanding the verdict, the defendants argue simply that, because the plaintiff failed to move for a directed verdict, pursuant to Rule 50(a) of the Federal Rules of Civil Procedure, at the close of all the evidence, he is now precluded from petitioning for relief under Rule 50(b). In response to the plaintiff’s companion petition for a new trial, the defendants suggest that the clear weight of the evidence supports their account of the subject altercation and does not substantiate the plaintiff’s version of the relevant facts.

Recounting in some detail the undeniable discrepancies in the testimony adduced at trial, the defendants nonetheless record their strong disagreement with the plaintiff’s descriptions of those incidents precipitating his arrest and of the precise nature and scope of the force used to bring him under control. In this context, the defendants characterize as unequivocal and substantially undisputed the testimony of one Kevin Casey, as follows:

The testimony of Kevin Casey was that he was with Joseph Spak, who testified for the plaintiff, but that he, Casey, saw the beginning of the fight and was the one who drew Spak’s attention to the fight. Mr. Casey is the only witness who saw the entire incident from its beginning to its end and was in the best position to make a judgment concerning whether the force used by the officers was reasonable under the totality of the circumstances. His testimony on this point was unequivocal. He stated without reservation that the force used by the officers was solely to restrain and gain control of St. Clair and was not excessive.

Defendants’ Memorandum in Opposition to Post-Trial Motions at 3 (January 23, 1984). Moreover, they note that the plaintiff’s own witnesses did not view the entire incident and, accordingly, provided testimony at trial inconsistent with that offered by others at the scene. In summary, the defendants characterize the plaintiff’s case as based on “the self-serving testimony of the plaintiff and his good friend, Niessen, and the contradictory, incomplete and inconsistent testimony of the other three ... witnesses”; on this basis, the defendants’ suggest that the Court would be guilty of an abuse of its discretion if it now overturned the special verdict and granted a new trial on the basis that the jury’s findings were against the clear weight of the evidence.

As indicated by the descriptions of the positions articulated by the parties in support of and in opposition to the pending post-trial matters, the Court has carefully considered the merits of the two motions in the context of well-established standards for analysis under Rules 50(b) and 59(a) of the Federal Rules of Civil Procedure. In this undertaking, the Court has reviewed with care its notes taken during the course of the three-day trial in this matter and has re-examined the several exhibits introduced and received throughout those proceedings. Based on this analysis, the Court concludes, for the reasons set forth below, that both post-trial motions must be denied.

Rule 50(b) of the Federal Rules of Civil Procedure provides, in pertinent part, as follows:

Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Not later than 10 days after entry of judgment, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict; or if a verdict was not returned such party, within 10 days after the jury has been discharged, may move for judgment in accordance with his motion for a directed verdict. A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative. If a verdict was returned the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. If no verdict was returned the court may direct the entry of judgment as if the requested verdict had been directed or may order a new trial.

The Seventh Circuit’s most recent codification of the touchstones to be applied by the trial court in ruling on a motion for judgment notwithstanding the verdict is found in Tice v. Lampert Yards, Inc., 761 F.2d 1210, 1213 (7th Cir.1985):

... The standard ... is whether the evidence presented, combined with all reasonable inferences permissibly drawn therefrom, is sufficient to support the verdict when viewed in a light most favorable to the party against whom the motion is directed. See, e.g., Syvock v. Milwaukee Boiler Mfg. Co., Inc., 665 F.2d 149, 153 (7th Cir.1981). Any conflicts in the evidence must be resolved in favor of the resisting party, and every permissible inference from the evidence must be resolved in favor of the party resisting the motion. Wisconsin Liquor Co. v. Park & Tilford Distilers Corp., 267 F.2d 928, 930 n. 1 (7th Cir.1959). However, a mere scintilla of evidence will not support a verdict and an entry of judgment n.o.v. would be proper. Gunning v. Cooley, 281 U.S. 90, 94 [50 S.Ct. 231, 233, 74 L.Ed. 720] (1930); La Montague [v. American Convenience Products Inc. ] 750 F.2d [1405] at 1410. In other words, if there is insufficient evidence upon which a reasonable person could properly base a verdict, entry of judgment n.o.v. is appropriate. See La Montague, 750 F.2d at 1410.

Similarly, in Estate of Clyde Davis v. Marguerite Johnson, 745 F.2d 1066, 1070 (7th Cir.1984), the Court of Appeals observed that the standard is a demanding one: “The motion should be denied where the evidence ... is such that [people] in a fair and impartial exercise of their judgment may reach different conclusions.” Under this exacting approach, “there would perhaps not be many cases in which [the appeals court] could conclude that a jury behaved irrationally.” McKinley v. Trattles, 732 F.2d 1320, 1323-1324 (7th Cir.1984).

It is generally held that a jury’s verdict may be vitiated only if manifest injustice will otherwise result; in this regard, the trial judge may not substitute his or her own judgment for that of the jury merely because he or she may have reached a different conclusion. Southeastern Pennsylvania Transportation Authority v. Transit Casualty Company, 412 F.Supp. 839, 842 (E.D.Pa.1976); cf., Ries v. Sanders, 34 F.R.D. 468, 470 (N.D.Miss.1964) (“... [T]he fact that the court may feel that the testimony is unworthy of credit is not a proper ground for granting judgment notwithstanding the verdict for the question of credibility of witnesses is within the jury’s sole province”). Rather, the Court must find as a matter of law that the record does not contain a sufficient factual foundation upon which the verdict might be justified and that, without weighing the evidence, there can be but one reasonable conclusion as to the proper judgment. Miceli v. Interressantskapet Sea Trans port, 413 F.Supp. 776, 779 (S.D.N.Y.1976); Marder v. Conweb Corporation, 75 F.R.D. 48, 54 (E.D.Pa.1977).

Finally, it is well-established that a necessary prerequisite to any Rule 50(b) petition is a motion for a directed verdict pursuant to Rule 50(a) made at the close of all of the evidence. McNulty v. Borden, Inc., 542 F.Supp. 655, 657 (E.D.Pa.1982); Moran v. Raymond Corporation, 484 F.2d 1008, 1014 (7th Cir.1973), cert. denied, 415 U.S. 932, 94 S.Ct. 1445, 39 L.Ed.2d 490 (1974). In fact, if the plaintiff fails to move for a directed verdict during the course of the trial, that party’s request for judgment notwithstanding the verdict is untimely and of no legal effect. Williams v. Fenix & Scisson, Inc., 608 F.2d 1205, 1207 (9th Cir.1979); cf., Geldermann & Company, Inc. v. R.A. Hartely & Son, Inc., 543 F.Supp. 1062, 1062-1063 (N.D.Ill.1982) (... [A] motion for j.n.o.v. cannot be made unless a motion for directed verdict was made by the moving party at the close of all the evidence”).

As the defendants in this case have accurately noted, the plaintiff failed to move the Court for a directed verdict, pursuant to Rule 50(a) of the Federal Rules of Civil Procedure, at the close of all of the evidence. Although, under other circumstances, the Court would be inclined to reach and address the substantive merits of an important motion like the present, it feels obliged to deny it on the sole basis that the movant has failed to meet the fundamental, procedural prerequisite — namely, moving for a directed verdict pursuant to Rule 50(a). The Court’s disposition of this initial request is not, however, dispositive of the companion motion for a new trial, for which no such procedural prerequisite exists.

Indeed, Rule 59(a) of the Federal Rules of Civil Procedure establishes the broad power of the trial court judge to grant a new trial “to all or any of the parties and on all or part of the issues ... in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States____” It is generally held that a motion for a new trial is addressed to the sound discretion of the Court and is properly granted if it will effect substantial justice; in this regard, the Court has the inherent right, if it believes that a fair trial has not been had, to set aside the jury’s verdict and order a new trial. Cecil Corley Motor Company v. General Motors Corporation, 380 F.Supp. 819, 859 (M.D.Tenn.1974); cf., Kaufman v. Atlantic Greyhound Corporation, 41 F.Supp. 252, 254 (S.D.W.Va.1941) (offensive verdict set aside and new trial granted to prevent a miscarriage of justice).

In deciding whether to reopen an action, the Court, in the exercise of its discretion, must balance the need for prompt and efficient handling of litigation in federal courts against the attainment of a just resolution of the particular dispute at hand. Bell Telephone Laboratories, Inc. v. Hughes Aircraft Company, 73 F.R.D. 16, 22 (D.Del.1976), aff'd, 564 F.2d 654 (3d Cir.1977), cert. denied, 435 U.S. 924, 98 S.Ct. 1489, 55 L.Ed.2d 518 (1978); cf., Browder v. Director, Department of Corrections, 434 U.S. 257, 271, 98 S.Ct. 556, 564, 54 L.Ed.2d 521 (1978) (Rule 59 is “based on interest in speedy disposition and finality”). In this context, a motion brought under Rule 59(a) is not merely intended to secure a forum for the relitigation of old matters or to afford the parties the opportunity to present the case under new theories; instead, the motion is a device properly used to correct manifest errors of law or fact or to present newly discovered evidence. Evans, Inc. v. Tiffany & Company, 416 F.Supp. 224, 244 (N.D.Ill.1976); Illinois Central Gulf Railroad Company v. Tabor Grain Company, 488 F.Supp. 110, 122 (N.D.Ill.1980).

Among other purposes, Rule 59(a) is properly invoked by the trial court to grant a new trial on the grounds that the jury’s verdict is contrary to the clear weight of the evidence adduced at trial. Lincoln Carpet Mills, Inc. v. Singer Com pany, 549 F.2d 80, 82 (8th Cir.1977); cf., Sandlin v. Pearsall, 427 F.Supp. 494, 496 (E.D.Tenn.1976) (where jury has plainly disregarded credible evidence, “the duty arises for the trial judge to check the jury’s power to render a final and binding verdict ... ”). The Court’s decision to grant or deny a motion for a new trial will not be disturbed absent a showing of clear abuse of discretion; three factors typically used to determine whether such an abuse has, in fact, occurred, are (1) deference to the trial judge, who has had an opportunity to observe the witnesses and to consider all the evidence in the context of a living trial rather than upon a cold record; (2) deference to the jury’s determination of the weight of the evidence and the quantum of damages; and (3) the constitutional allocation to juries of questions of fact. United States v. Horton, 622 F.2d 144, 147 (5th Cir.1980); cf., Harris v. Chanclor, 537 F.2d 203, 207 (5th Cir.1976) (holding that “all the factors underlying the review of a ruling on a new trial motion press in the direction of leaving the trial judge’s ruling undisturbed”).

Measured against these rather high and exacting standards, the Court, as indicated above, simply cannot conclude that the plaintiff is entitled to the new trial he now seeks. Although the complete trial record plainly establishes several, material disputes as to the circumstances of the plaintiff’s arrest, the Court would be hard-pressed to conclude that the evidence lies so overwhelmingly in the movant’s favor that the verdict returned by the jury must be rejected. In viewing all of the evidence in the light most favorable to the defendants, the Court is of the unequivocal view that individuals might reasonably and impartially exercise their judgment to reach different conclusions as to the occurrence of any constitutional violations in this matter. In this context, the Court is able to identify in the record substantial grounds upon which the jury verdict might reasonably be justified.

Among other things, the plaintiff testified that he made no derogatory or demeaning remarks to defendant Pipal and further denied that he swung at the officer with his fists. Yet defendant Pipal and the plaintiff's own companion, David Niessen, contradicted the prosecution version with respect to both of these matters. More-, over, none of the plaintiff’s other eyewitnesses saw the initial confrontation between the plaintiff and defendant Pipal, thus enabling any of them to defend or refute the conflicting accounts offered.

Similarly, there were significant conflicts in the evidence adduced with respect to the circumstances of the actual altercation and subsequent arrest; perhaps most notable among them was defendant Wood’s unequivocal denial that he struck the plaintiff in the face or forehead with his sap during the course of the fight, notwithstanding the equally unequivocal assertions to the contrary made by the plaintiff’s principal eyewitnesses. To be sure, defendant Pipal testified that he repeatedly hit the plaintiff in the face with his fist during the altercation; it is the plaintiff’s position, however, that the medical evidence adduced at trial suggests that the blows he received were considerably more severe in nature than this defendant’s testimony suggested. Finally, to further complicate an already ambiguous record, eyewitness Kevin Casey, who apparently viewed the incident from beginning to end, testified that, in his view, the force used by the arresting officers was not unreasonable but was intended merely to secure control over the plaintiff.

The Court’s summary description of the relevant testimony and documentary evidence demonstrates that, precisely because the parties presented opposing descriptions of the factual basis for this lawsuit, it was properly left to the jury to assess the credibility of the several opposing witnesses and to allocate to each such weight as his or her testimony deserved. In so scrutinizing all of the relevant testimony, the jurors acted entirely within their purview by determining, as they apparently did, that the account offered by the defendants and their witnesses was more believable than that presented by the plaintiff and his. Under these circumstances, the Court opines that the important factual determinations within the unique province of the jury should not be upset. Accordingly, because it can identify in the record no manifest error of law or fact or no substantial injustice in the special verdict returned on December 8, 1983, it will deny the plaintiff s motion for a new trial.

CONCLUSION

For the reasons set forth above, the Court hereby DENIES the plaintiff’s motion for judgment notwithstanding the verdict, pursuant to Rule 50(b) of the Federal Rules of Civil Procedure. Furthermore, the Court hereby DENIES the defendant’s companion motions for a new trial, pursuant to Rule 59(a) of the Federal Rules of Civil Procedure.


author: CHARLES R. RICHEY, District Judge.

text:
    Harrison COMBS, William Miller, Joseph P. Brennan, and Paul R. Dean, as Trustees of the United Mine Workers of America 1950 Pension Plan and the United Mine Workers of America 1974 Pension Plan, Plaintiffs, v. WESTERN COAL CORPORATION and Stockton Coal Company, Defendant.
    Civ. A. No. 85-0028.
    United States District Court, District of Columbia.
    June 25, 1985.

      Gary M. Ford and Curtis L. Muncy of Groom and Nordberg, Chartered, Washington, D.C., for plaintiffs; William F. Hanrahan, Gerald E. Cole, Jr., and Israel Goldowitz of the United Mine Workers of America Health and Retirement Funds, Washington, D.C., on brief.
    David O. Williamson, Gardner, Moss & Rocovich, Roanoke, Va., for defendant.
   CHARLES R. RICHEY, District Judge.

INTRODUCTION

Before the Court are plaintiff’s motion for summary judgment and opposition thereto, defendant’s motion for summary judgment and opposition thereto, and supplemental memoranda. For the reasons stated herein, the Court finds that there are no material facts in dispute, and that plaintiffs are entitled to judgment as a matter of law. The Court also finds that this is a matter which occasions no need for a hearing.

BACKGROUND

Plaintiffs are the Trustees of the United Mine Workers of America (“UMWA”) 1950 Pension Plan (the “1950 Plan”) and the UMWA 1974 Pension Plan (the “1974 Plan”). They brought this suit on behalf of the 1950 Plan and the 1974 Plan (hereinafter collectively referred to as “the Plans”) against Western Coal Corporation (“Western”) and Stockton Coal Company (“Stockton”), a division of Western, to collect withdrawal liability under the Employee Retirement Income Security act of 1974 (“ERISA”), as amended by the Multiemployer Pension Plan Amendments Act of 1980 (“MPPAA”), 29 U.S.C. § 1001 et seq. As fiduciaries and sponsors of the Plans, see 29 U.S.C. §§ 1002(21), 1002(16)(b)(iii), and 1301(a)(10)(A), plaintiffs are authorized to bring this action by sections 502(a)(3) and 4301(a)(1) of ERISA, 29 U.S.C. §§ 1132(a)(3) and 1451(a)(1).

The Plans are multiemployer pension plans within the meaning of ERISA § 4001(a)(3), 29 U.S.C. § 1301(a)(3). The Plans were established by the National Bituminous Coal Wage Agreement of 1974, and continued in effect by the 1978 Wage Agreement and the 1981 Wage Agreement.

Defendant Western Coal Corporation (“Western”) is a West Virginia corporation. Defendant Stockton Coal Company was a division of Western for certain of its mining operation. (For ease of reference, the Court will refer to Western and Stockton collectively as “Western/Stockton”). Western/Stockton was a member of the Bituminous Coal Operator’s Association, Inc., (“BCOA”), a multiemployer bargaining group in the coal industry. As a BCOA member, Western/Stockton was signatory to, and bound by, the provisions of the 1974, 1978 and 1981 Wage Agreements.

Article XX of the Wage Agreements obligated Western/Stockton to contribute to the Plans on behalf of certain of its employees. Pursuant to a contract between Western/Stockton and Island Creek Coal Company (“Island Creek”), Island Creek filed monthly reports with the Plans on behalf of Western/Stockton detailing the number of hours worked and the tons of coal mined by Western/Stockton employees. Island Creek also made monthly payments to the Plans on behalf of Western/Stockton based on the tons and hours reported. The parties have stipulated that Western/Stockton is an employer within the meaning of section 3(5) of ERISA, 29 U.S.C. § 1002(5).

In January, 1982, Western/Stockton sold substantially all of its assets to Energy Coal Income Limited Partnership 1981-1 (“ECILP”) in exchange for a small amount of cash and promissory notes. On April 1, 1983, ECILP filed a voluntary petition under Chapter Eleven of the Bankruptcy Code in the Eastern District of Kentucky.

The records maintained by the Plans indicate that Western ceased operations in January, 1982, and that Stockton ceased operations in May, 1982. Thus, Western/Stockton ceased to make contributions and to be a participating employer under the Plans during the Plan year ending June 30, 1982. The Trustees of the Plans determined that Western and Stockton had withdrawn from the plans during that year, and, by letters of June 24, 1983, informed Western and Stockton of this determination. See 29 U.S.C. § 1381. The Trustees demanded payment from Western of withdrawal liability in the amount of $2,291,876.84 for the 1950 Plan, and $637,896.99 for the 1974 Plan. Mistakenly believing Stockton to be an entity distinct from Western, the Trustees demanded payment from Stockton of withdrawal liability in the amount of $192,-895.30 for the 1950 Plan, and $56,659.32 for the 1974 Plan. The Trustees indicated that these amounts would be payable in monthly installments beginning September 2, 1983.

By letters dated September 22, 1983, counsel for Western/Stockton advised the Trustees that Stockton was merely a trade name used by Western for certain mining operations, and thus not an entity separate and distinct from Western. The letters also requested the Plans to reconsider their withdrawal liability determinations. By letter dated April 17,1984, the Plans recognized that Stockton was not distinct from Western, but advised Western/Stockton that the Plans’ initial withdrawal liability determinations had been correct.

By letters dated March 19, 1984, Western/Stockton requested arbitration of the amount of its withdrawal liability. By letters dated April 18 and April 23, 1984, counsel for the Plans repeated the demand for payments. The letters further advised that Western/Stockton had failed to properly institute arbitration pursuant to the rules adopted by the Plans, which rules generally incorporate rules promulgated by the American Arbitration Association. The letter indicated that the Plans would treat the arbitration request as proper if Western/Stockton would comply with the Plans’ arbitration rules within 15 days. Western/Stockton made no further attempt to initiate arbitration.

By letter dated January 4, 1985, the Plans revised the calculations of Western/Stockton’s withdrawal liability to the 1974 Plan based upon a recalculation of unfunded vested benefits as of June 30, 1981. The Plans determined that Western/Stockton’s revised withdrawal liability amounted to $883,851.19. Western/Stockton has not made any withdrawal liability payments, and plaintiffs filed this action to collect the payments, liquidated damages, accrued interest, attorney’s fees, and expenses.

DEFENDANT CANNOT RELY ON THE DOCTRINE OF LACHES

Defendant contends that plaintiffs’ complaint is barred by the doctrine of laches. This contention cannot be supported.

To establish the defense of laches, Western/Stockton must show that plaintiffs were guilty of unreasonable delay in notifying defendant of its withdrawal liability, and that the delay prejudiced defendant. Van Bourg v. Nitze, 388 F.2d 557, 565 (D.C.Cir.1967). Defendant claims that plaintiffs knew that Western/Stockton had withdrawn from the Plans in early 1982, but did not notify defendant of any withdrawal liability until the letters of June 24, 1983. Defendant claims that this delay was unreasonable, and that it caused prejudice to defendant because in the interim, on April 1, 1983, ECILP, defendant’s creditor who had bought substantially all of its assets with promissory notes, had filed a voluntary petition for bankruptcy.

This argument is unavailing to defendant. Congress has specifically established a six year statute of limitations for actions, such as this one, to collect withdrawal liability payments. 29 U.S.C. § 1451(f). Because the instant cause of action arose no earlier than 1982, plaintiffs brought this suit well before the expiration of the limitations period. Thus, there is an applicable statute of limitations which has not yet expired, so defendant cannot rely on laches as a defense. United States v. Repass, 688 F.2d 154, 158 (2d Cir.1982). See also United States v. Mack, 295 U.S. 480, 489, 55 S.Ct. 813, 818, 79 L.Ed. 1559 (1935) (“[ljaches within the term of the statute of limitations is no defense at law”).

Even assuming the doctrine of laches applies, there has been no showing the plaintiffs’ delay was unreasonable. Van Bourg, 388 F.2d at 565. Western/Stockton withdrew from the Plans during the Plan year ending June 30, 1982. The Plans notified Western/Stockton of their determination that defendant had withdrawn on June 24, 1983, less than one year later. The Court cannot find that this delay was unreasonable, and this suit is not barred by the doctrine of laches.

WESTERN/STOCKTON HAS DEFAULTED ON ITS WITHDRAWAL LIABILITY OBLIGATION AND IS LIABLE TO PLAINTIFFS

A. Statutory Scheme for Collection of Withdrawal Liability

The MPPAA provides that an employer who withdraws from a plan is liable to the plan for an amount determined to be its withdrawal liability. 29 U.S.C. § 1381(a). Upon such withdrawal, the plan sponsors have duties to determine the amount of withdrawal liability, to notify the employer of the amount and a payment schedule, and to collect the amount of liability from the employer. Id. §§ 1382, 1399(b)(1).

If the employer disagrees with the sponsor’s determination of withdrawal liability, the employer must identify any inaccuracies and request the sponsors to review their determination within 90 days. Id. § 1399(b)(2)(A). The plan must then review its determination, and notify the employer of the result. Id. § 1399(b)(2)(B). Any remaining disputes must be resolved through arbitration. Id. § 1401(a)(1). Arbitration must be initiated within the statutory time limits. Either party may initiate arbitration within 60 days of either (1) the date the sponsors notify the employer of their decision on review, or (2) 120 days after the date of the employer’s request for review, whichever is earlier. Id. § 1401(a)(1).

If the employer fails to timely initiate arbitration, the amounts demanded by the plan shall be due and owing pursuant to the payment schedule established by the plan sponsors. Id. § 1401(b)(1). If the payments are not forthcoming, the plan sponsors may bring an action for collection. Id. Arbitration proceedings are subject to judicial review, id. § 1401(a)(2), and to judicial enforcement. Id. § 1401(a)(3).

Even if the employer properly initiates arbitration, it must make payments to the plan during the pendency of review or arbitration. Id. § 1399(c)(5). Failure to make such payments on schedule, if not cured within 60 days after receipt of notice of such failure, constitutes a default. 29 U.S.C. § 1399(c)(5)(A). In the event of a default, “a plan sponsor may require immediate payment of the outstanding amount of an employer’s withdrawal liability, plus accrued interest on the total outstanding liability from the due date of the first payment which was not timely made.” Id. § 1399(c)(5).

B. Because Defendant Has Failed to Properly Initiate Arbitration, It Cannot Contest the Existence or Amount of Its Withdrawal Liability.

ERISA section 4221(a)(1) requires any dispute between an employer as a plan sponsor to be resolved through arbitration. 29 U.S.C. § 1401(a)(1): Board of Trustees of the Western Conference of Teamsters Pension Trust Fund v. F. C. Parsons, Inc., 5 E.B.C. 2277, 2278 (W.D.Wash.1984) (hereinafter cited as “Parsons”). If an employer fails to properly initiate arbitration, “the amounts demanded by the plan sponsor ... shall be due and owing on the schedule set forth by the plan sponsor.” 29 U.S.C. § 1401(b)(1) (emphasis supplied); Parsons, 5 E.B.C. at 2278. If an employer fails to properly request arbitration, the employer may not contest in court the fact or amount of its withdrawal liability. Parsons, 5 E.B.C. at 2278; Combs v. Adkins & Adkins Coal Co., Inc., 597 F.Supp. 122, 127 (D.D.C.1984); Board of Trustees of the Western Conference of Teamsters Pension Trust Fund v. Ceazan, 559 F.Supp. 1210, 1218 (N.D.Cal.1983). Western/Stockton now finds itself in exactly the same predicament as were the employers in the above-cited cases: having failed to properly initiate arbitration, it may not now challenge the Plan’s determination of withdrawal liability.

Western/Stockton asserts that it initiated arbitration by requesting it in its letters of March 19, 1984. Counsel for the Plans responded, however, by notifying Western/Stockton that its request did not comply with the Plan’s rules for the initiation of arbitration, and by sending Western/Stockton copies of those rules. Although the Plans gave Western/Stockton another fifteen days to comply with the arbitration rules, Western/Stockton made no further attempt to initiate arbitration. Thus, although defendant requested arbitration, it did not properly initiate arbitration, even when given extra time to do so, and when provided with the applicable rules.

This distinction between requesting arbitration and initiating arbitration is crucial, as was noted in Parsons. The defendant in Parsons, like Western/Stockton, made a demand for arbitration with the plan sponsor. See 5 E.B.C. at 2280. But it did not follow the arbitration rules agreed to by the parties, which required defendant to file a demand with the American Arbitration Association, and to pay filing fees. In persuasive reasoning, the Parsons Court rejected defendant’s argument that it had satisfied the arbitration requirements of the MPPAA. Id. Because defendant did not follow the rules or the initiation of arbitration, it simply did not initiate arbitration within the meaning of 29 U.S.C. § 1401. Id.

Western/Stockton attempts to distinguish Parsons by stating that the Plans unilaterally imposed the arbitration requirements, and that defendant never consented to these rules. This argument is without merit. Western/Stockton agreed to be bound by the Plans’ arbitration rules, because it was signatory to the 1974, 1978, and 1981 Wage Agreements. Article XX, sections (b) and (c), of the Wage Agreements incorporate the 1950 and 1974 Pension Plans. Each of the Pension Plans states that “[t]he Trustees shall have the authority to promulgate rules regarding default and arbitration procedure.” 1950 Plan, Article VI, § B(ll); 1974 Plan, Article VIII, § B(ll). Thus, defendant consented to rules to be promulgated by the Trustees, and did not comply with those rules. Nor can it be said that Western/Stockton substantially complied, because once notified of the rules, it made no further attempt to arbitrate.

The Court also finds that these rules are not unreasonable. They incorporate the rules promulgated by the American Arbitration Association, with certain changes. Defendant objects most strenuously to the Plans’ rule that arbitration will take place in Washington, D.C., if the employer is located less than 750 miles away, such as Western/Stockton. Gilleland Dec. Ex. 3, ¶ 6. The American Arbitration Association Rules, by contrast, provide that the parties shall mutually agree on a locale, or, in the absence of agreement, the Association will designate a locale for arbitration. Defendant Ex. B, ¶ 10. The Court cannot say that this imposes an unreasonable burden on defendant, particularly when defendant failed to raise an objection or to take any steps to comply with the Plans’ rules after being notified that its written request for arbitration did not comply with the applicable procedures.

It is clear, therefore, that defendant failed to properly initiate arbitration. Therefore, defendant has “conceded the existence and amount of withdrawal liability owed to the Fund.” Combs v. Adkins & Adkins Coal Co., 597 F.Supp. at 127. Accordingly, the Court finds that there are no material facts in dispute, and that plaintiffs are entitled to summary judgment. Id.; Parsons, 5 E.B.C. at 2278-80; Ceazan, 559 F.Supp. at 1218.

THE APPLICATION OF THE MPPAA TO DEFENDANT DOES NOT VIOLATE DUE PROCESS

Before calculating defendant’s withdrawal liability, the Court must briefly respond to defendant’s constitutional argument. Citing no authority, Western/Stockton contends that the MPPAA’s requirements that it accept and pay the Trustees’ determination of withdrawal liability, without an opportunity to be heard, deprives it of Due Process of law. This exact claim has been rejected by the Court of Appeals for this Circuit. Washington Star Co. v. International Typographical Union Negotiated Pension Plan, 729 F.2d 1502, 1511 (D.C.Cir.1984). Accord, Republic Industries, Inc. v. Teamsters Joint Council No. 83 of Virginia Pension Fund, 718 F.2d 628, 639-42 (4th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 3553, 82 L.Ed.2d 855 (1984). In light of these holdings, the Court need not give further consideration to defendant’s contention. Western/Stockton has not been deprived of Due Process.

PLAINTIFFS ARE ENTITLED TO THE ASSERTED WITHDRAWAL LIABILITY

Western/Stockton has not paid any of its withdrawal liability, and accordingly is in default under section 4219(c)(5) of ERISA, 29 U.S.C. § 1399(c)(5). The entire amount of its withdrawal liability is now due and owing. Id.; see also id. § 1401(b)(1).

Defendant contends that 29 U.S.C. § 1405 governs the calculation of withdrawal liability for Western/Stockton. This contention is incorrect. The Plans are covered by section. 404(c) of the Internal Revenue Code, 26 U.S.C. § 404(c). Gilleland dec. 113; Combs v. Adkins & Adkins Coal Co., 597 F.Supp. at 128. ERISA provides that 29 U.S.C. § 1405 does not apply to a plan covered under section 404(c) of the Internal Revenue Code. 29 U.S.C. § 1391(d)(2). Accordingly, 29 U.S.C. § 1405 does not apply, and 29 U.S.C. § 1132(g), used by the Plans in their calculations of defendant’s liability, governs Western/Stockton’s liability.

Under ERISA section 502(g)(2), 29 U.S.C. § 1132(g)(2), the Court must award plaintiffs:

(A) the unpaid contributions,
(B) interest on the unpaid contributions, calculated at the plan rate or the rate specified in 26 U.S.C. § 6621,
(C) an amount equal to the greater of—
(i) interest on the unpaid contributions, or
(ii) liquidated damages provided or under the plan in an amount not in excess of 20 percent of the unpaid contributions,
(D) reasonable attorneys’ fees and costs of this action, and
(E) any other appropriate legal or equitable relief.

Plaintiffs have submitted a sworn declaration of Deborah L. Gilleland, Associate Comptroller of the UMWA Health and Retirement Funds, in support of their calculation of Western/Stoekton’s withdrawal liability. The Court will examine the claimed amounts in conjunction with the Gilleland Declaration to determine the amounts payable to plaintiffs.

The Gilleland declaration shows that Western/Stockton owes unpaid contributions of $2,484,772.10 for the 1950 Plan, and $883,851.19 for the 1974 Plan. Gilleland Dec. H 10. As of April 15, 1985, defendant owed interest of $464,943.11 to the 1950 Plan, and $165,383.58 to the 1974 Plan. Id. ¶ 11. After that date, interest accrued at a daily rate of $715.61 to the 1950 Plan, and $254.55 to the 1974 Plan. Id. Liquidated damages (twenty percent of the withdrawal liability) are $496,954.43 for the 1950 Plan, and $176,770.24 for the 1974 Plan. Id. KTI12, 13. Because these figures are supported by a sworn declaration, and because under Fed.R.Civ.P. 56(e) defendant’s evidence is insufficient to rebut these figures, the Court will accept and award these amounts. See Combs v. Adkins & Adkins Coal Co., 597 F.Supp. at 127 (approving the plaintiffs’ calculations, holding that the employer’s allegations and speculations were insufficient to defeat the plaintiffs’ motion for summary judgment). This results in a total award to the 1950 Plan of $3,446,669.64, plus interest at the rate of $715.61 per day since April 15,1985, and an award to the 1974 Plan of $1,226,005.01, plus interest at the rate of $254.55 per day since April 15, 1985. The Court will entertain an appropriate application to amend the awards of interest upon a showing of interest rate changes. See Combs v. Adkins & Adkins Coal Co., 597 F.Supp. at 128. By Order of even date herewith, the Court awards these amounts to plaintiffs.

CONCLUSION

The court today grants plaintiffs’ motion for summary judgment, rejecting all of defendant’s challenges to plaintiffs’ procedures and calculations. The Court recognizes that this may seem to be a harsh result for employers in Western/Stockton’s position, but Congress has made clear its objective to keep pension fund payments current. See Trustees of the Retirement Fund v. Lazar-Wisotzky, Inc., 550 F.Supp. 35, 38 (S.D.N.Y.1982), aff'd mem., 738 F.2d 419 (2d Cir.1984). The Court has today issued an order consistent with this Opinion.

      . ERISA mandates that arbitration proceedings be conducted in accordance with procedures to be promulgated by the Pension Benefit Guaranty Corporation (“PBGC”). See 29 U.S.C. §§ 1401(a)(2), 1301(a)(4). The PBGC has not yet promulgated any arbitration rules, and it has issued an opinion letter stating that the parties "may use any reasonable procedures____” PBGC Opinion Letter No. 82-032 (October 28, 1982).

      . Plaintiffs have demonstrated that they are entitled to summary judgment against Western/Stockton. Western/Stockton's contract with Island Creek did not, of course, modify these obligations to the Plans. 17 Am.Jur.2d, Contracts § 465.


author: McLAUGHLIN, District Judge.

text:
    PACO CORPORATION, Plaintiff, v. Frank VIGLIAROLA, Joseph Vigliarola and Robert Rosselli, Defendants.
    No. 84 CV 0314.
    United States District Court, E.D. New York.
    June 25, 1985.

      Alfred A. Rosenberg, Brooklyn, N.Y., for plaintiff.
    Purcell, Fritz & Ingrao, P.C., Mineóla, N.Y. (Patrick J. Purcell, Mineóla, N.Y., of counsel), for defendants.
   MEMORANDUM AND ORDER

McLAUGHLIN, District Judge.

This is a diversity action to recover on personal guarantees executed by defendants in favor of plaintiff, who moves now for summary judgment against defendants Frank and Joseph Vigliarola. Fed.R.Civ.P. 56. For the reasons developed below, the motion is granted in part. Plaintiff has failed to serve a summons and complaint upon defendant Robert Rosselli within 120 days of commencement of the action; and accordingly the complaint is dismissed as to him. Fed.R.Civ.P. 4(j).

Facts

In December, 1977, plaintiff, a Canadian corporation, sold cement manufacturing equipment to Parkway Block Corporation (“Parkway”) for $306,198.69. Plaintiff took back a purchase money security interest in the equipment; and the individual defendants, principals of Parkway and New York residents, personally guaranteed Parkway’s obligation.

In the ensuing years, Parkway’s business soured. It filed a bankruptcy petition in September, 1981, defaulted on its obligation, and was eventually liquidated. Defendant Rosselli formed a new corporation and purchased some of Parkway’s assets, though not the equipment sold to Parkway by plaintiff.

After the default and liquidation, defendants continued efforts begun earlier to sell the equipment. When that proved unsuccessful, plaintiff, exercising its rights under the security agreement with Parkway, put the equipment up for auction.

Plaintiff sent notice of the auction to the Vigliarolas by certified mail. The letters were mailed on September 1, 1983. Joseph Vigliarola received his letter on September 3, 1983. Frank Vigliarola received his on September 6, 1983, the date of the auction. Also on September 6, plaintiff advertised the auction in the New York Times.

The auction was attended by defendant Rosselli, a representative of the Small Business Administration (which held a secondary interest in the equipment), and plaintiff’s counsel.

Plaintiff purchased the equipment for $1,000, far less than Parkway’s outstanding debt. It then commenced this action to recover the balance of the debt, approximately $104,000.

Discussion

The rights of a secured party such as plaintiff to dispose of collateral after default are governed by U.C.C. § 9-504. “[E]very aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable.” N.Y.U.C.C. § 9-504(3) (McKinney Supp.1984). The secured party must give the debtor reasonable notice of the time and place of a public sale of the collateral, or reasonable notice of the time after which any private sale is to take place. The secured party may buy the collateral at a public sale; it may also buy at a private sale if the collateral is of a type customarily sold in a recognized market or for which standard price quotations are widely available. Id. Defendant contends triable issues of fact exist as to the commercial reasonableness of the sale, whether the auction was a public or private sale, and whether plaintiff was in good faith in purchasing the equipment for only $1,000.

Assuming solely for purposes of this discussion that defendants’ allegations are correct, they do not vitiate defendants’ liability on the guarantees, but serve only to lessen its amount. Defendants have raised no triable issues as to the validity of the guarantees, whether Parkway defaulted, or any other facts that would tend to establish a defense to the action. Any failure by plaintiff to comply with § 9-504 does not deprive plaintiff of its right to summary judgment as to liability. Chrysler Credit Corp. v. Mitchell, 94 A.D.2d 971, 971, 464 N.Y.S.2d 96, 97 (4th Dep’t 1983); S.M. Flickinger Co. v. 18 Genesee Corp., 71 A.D.2d 382, 384, 423 N.Y.S.2d 73, 76 (4th Dep’t 1979).

Defendants have raised triable issues of fact, however, as to the commercial reasonableness of numerous aspects of the sale. To be considered reasonable, notice should reach the obligor “in time to give him several business days in which to arrange alternative financing.” J. White and R. Summers, Uniform Commercial Code § 26-11, at 1114 (2d ed. 1980); see N.Y.U.C.C. § 9-504 comment 5 (McKinney 1964). Joseph Vigliarola received notice Saturday, September 3, 1983. Monday, September 5 was Labor Day; and on Tuesday, September 6, the day of the sale, Frank Vigliarola received his notice. There is a serious question of fact whether this notice was reasonable. See First Bank and Trust Co. v. Mitchell, 123 Misc.2d 386, 392, 473 N.Y.S.2d 697, 701 (Supreme Ct. Tompkins County 1984) (Whether a particular procedure in the public sale of collateral is commercially reasonable is a question of fact).

Additional questions of fact exist with respect to the conduct of the sale itself. The presence at the sale of only defendant Rosselli (who admits he has no use for the equipment) and two secured creditors creates an impression that this was not a public sale. There is thus an issue whether plaintiff was entitled to bid. See N.Y.U.C.C. § 9-504(3) (McKinney Supp.1984). Additionally, the price paid by plaintiff at the auction — $1,000—is grossly disproportionate to the purchase price of six years earlier — $306,000—which resulted in a sizable deficiency. Thus, there exists an issue as to plaintiffs good faith.

If, as plaintiff contends, the collateral was sold in a commercially reasonable manner, defendants are liable for the entire deficiency. Id. § 9-504(2). On the other hand, if plaintiff did not comply with § 9-504, then it must prove the fair market value of the collateral, which amount will be deducted from the debt to establish the deficiency. Chrysler Credit Corp. v. Mitchell, supra, 94 A.D.2d at 781, 464 N.Y.S.2d at 97.

No issue of fact exists as to liability; but triable issues exist with respect to damages. Accordingly, plaintiffs motion for summary judgment is granted in part and denied part.

SO ORDERED.

      . Guarantors are debtors within the meaning of the U.C.C., and are thus entitled to notice of the sale under § 9-504. See Chase Manhattan Bank, N.A. v. Natarelli, 93 Misc.2d 78, 401 N.Y.S.2d 404 (Supreme Ct. Monroe County 1977).


author: WARRINER, District Judge.

text:
    EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. ELECTROLUX CORP.
    Civ. A. No. 84-0335-R.
    United States District Court, E.D. Virginia, Richmond Division.
    June 26, 1985.

      Larry W. Newell, Gerald S. Kiel, Lawrence Humphrey, Baltimore, Md., Robert W. Jaspen, G. Wingate Grant, Asst. U.S. Attys., Richmond, Va., for plaintiff.
    Stephen W. Robinson, Michael F. Marino, Boothe, Prichard & Dudley, Fairfax, Va., Stephen D. Cooper, Electrolux Corp., Stamford, Conn., for defendant.
   OPINION

WARRINER, District Judge.

Rosalee G. Smith through the EEOC brought suit in this action claiming a violation of § 703(a) of Title VII (42 U.S.C. § 2000e, et seq.) claiming that defendant engaged in an unlawful employment policy and practice by discharging her because of her sex. A trial was held in this matter on 4 April 1985. After both sides had presented their evidence this Court suggested that the case was in equipoise. The Court established a briefing schedule on the issue of the burdens of proof properly to be placed on plaintiff and on defendant. I also suggested counsel might attempt to convince me that their witnesses were more credible than those of the other side. The parties have timely submitted their briefs according to the schedule and the matter is ripe for adjudication.

I have carefully considered both plaintiffs and defendant’s arguments concerning the credibility of the witnesses and the state of the evidence at the conclusion of the trial. Neither side has convinced me that my findings of fact of 4 April 1985 are in error. Accordingly, my finding that plaintiff’s case is in a state of equipoise has not changed. It is necessary, then, to determine the law that must be applied in allocating the burdens of proof to be placed on plaintiff and defendant.

I Direct Evidence and Circumstantial Evidence

Plaintiff contends that when a plaintiff presents “direct evidence” of discrimination the court must allocate the burdens of proof as articulated by the Supreme Court in Transworld Airlines v. Thurston, — U.S. -, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985) and as articulated by the Fourth Circuit in Smallwood v. United Airlines, 728 F.2d 614 (4th Cir.1984). When plaintiff’s case is based on “circumstantial evidence,” plaintiff contends, the burdens of proof are allocated according to the test established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

Plaintiff misconstrues the terms “direct evidence” and “circumstantial evidence” as used in the cases plaintiff cites. Under McDonnell Douglas a trial court may infer from proof of certain facts the existence of a prima facie case; that is, a prima facie case may be established upon proof of facts which, while not proof of any act or omission of discrimination, if unexplained give rise to an inference of discrimination, (see Section III infra). In contrast a plaintiff who has evidence of discriminatory acts or omissions may choose to proceed by presenting such evidence, eschewing inferential proof via McDonnell Douglas.

Thus there are two methods by which a plaintiff may prove a case. A McDonnell Douglas inference may permit plaintiff to prevail despite the total absence of evidence of actual discriminatory motive or intent. The alternate method involves evidence of acts or omissions of discriminatory motive or intent. Courts have confusingly described Method 1 variously as the McDonnell Douglas inference, the McDonnell Douglas prima facie case, “circumstantial evidence,” or similar such phraseology, and have attempted to contrast that method with Method 2 by denominating Method 2 as involving proof by “direct evidence.”

In this context the legal mind is driven to think of the contrast between the terms “circumstantial evidence” and “direct evidence” in an evidentiary sense. While those terms might, in any given case, properly characterize some aspects of the evidence presented in that case, one ordinarily proves the facts underlying a McDonnell Douglas inference by means of direct evidence; one may very well prove, and often does prove, Method 2 by circumstantial evidence.

It is not the nature of the evidence offered in proof of the case but the nature of the method of proof offered that is sought to be captured, inartfully and confusingly I believe, by the terms circumstantial evidence and direct evidence in the context of Method 1 and Method 2. Because of the confusing use of the terms circumstantial evidence and direct evidence in this context, I will not use them. Instead, I will refer to Method 1 as the “McDonnell Douglas inference” and to Method II as the “Thurston proof.”

The cases cited by plaintiff that deal with so-called “direct evidence” clearly support my view that it is the method of proof, rather than the nature of evidence, offered that determines the allocations of the burdens of proof.

In Thurston the court dealt with a policy established by defendant Transworld Airlines concerning the status of captains and first officers (collectively referred to as captains). Under the plan, a captain was required:

prior to his 60th birthday, to submit a ‘standing bid’ for the position of flight engineer. When a vacancy oecur[red], it [was] assigned to the most senior captain with a standing bid. If no vacancy occur[red] prior to his 60th birthday, or if he lack[ed] sufficient seniority to bid successfully for those vacancies that ... occurred], the captain [was] retired.
Under the [existing] collective-bargaining agreement, a captain displaced for any reason besides age need not resort to the bidding procedures. For example, a captain unable to maintain the requisite first-class medical certificate, ... [could] displace automatically, or ‘bump,’ a less senior flight engineer. The medically disabled captain’s ability to bump [did] not depend upon the availability of a vacancy. Similarly, a captain whose position [was] eliminated due to reduced manpower needs [could] ‘bump’ a less senior flight engineer. Even if a captain [was] found to be incompetent to serve in that capacity, he [was] not discharged, but [was] allowed to transfer to a position as flight engineer without resort to the bidding procedures.

— U.S.-, 105 S.Ct. 619, 83 L.Ed.2d 530 (footnotes omitted).

Referring to these undisputed facts the Court stated that “[i]n this case there is direct evidence that the method of transfer available to a disqualified captain depends upon his age. Since it allows captains who become disqualified for any reason other than age to “bump” less senior flight engineers, TWA’s transfer policy is discriminatory on its face.” Id., — U.S. at-, 105 S.Ct. at 622, 83 L.Ed.2d at 533.

In Thurston the Supreme court found that discriminatory intent was proven because the policy, on its face, treated captains differently because of their age. The burden then shifted to defendant to show by a preponderance of the evidence that the different treatment was justified under the defenses asserted by defendant, i.e., that the age distinction was a bona fide occupational qualification, or a part of a bona fide seniority system. Ultimately the Court held that defendant failed to carry its burden and found that TWA’s transfer policy violated the ADEA.

In Smallwood v. United Air Lines, Inc., 728 F.2d 614, 615 (4th Cir.1984), also an action under the ADEA, plaintiff was attacking defendant’s rule providing “that an application for employment as a flight officer would not be processed if the applicant were over 35 years of age.” The court noted that there are generally two issues in actions brought under either the ADEA or Title VII.

One has to do with the substantive issue of violation of the applicable statute or constitutional provision; the other (which, it must be emphasized, only becomes relevant if a violation is proved) involves the remedy which generally presents the question of compelled hiring, reinstatement, or promotion accompanied with backpay____ Thus, in this case, the admitted refusal of the defendant to process the plaintiff’s application because of its rule prohibiting the processing of job applications by flight officers over 35 years of age constituted, ... a violation of ADEA____

Smallwood, 728 F.2d 617-18.

The Smallwood court determined that plaintiff had proven discriminatory intent, indeed defendant admitted it, and that the burden then shifted to defendant to establish one of the available defenses by a preponderance of the evidence. Id. at 617.

In Perryman v. Johnson Products Co., 698 F.2d 1138, 1145 (11th Cir.1983), the Eleventh Circuit, in instructing the district court on how to proceed on remand stated:

If the named plaintiffs are able to prove by either direct or circumstantial evidence that any of the various adverse actions taken against them were the product of discriminatory intent, then the district court may properly rely on these showings as evidence of a pattern or practice of discrimination. In any case, if the court wishes to grant individual relief to the named plaintiffs, it must make the additional finding that the defendant failed to show by a preponderance of the evidence that the adverse employment actions would have been taken even in the absence of a discriminatory motive.

In Perryman the court was obviously unconcerned with the nature of the evidence; rather it was concerned with whether the evidence, “either direct or circumstantial,” proved discriminatory intent.

In Bell v. Birmingham Linen Service, 715 F.2d 1552, 1557 (11th Cir.1983), the circuit court accepted the district court’s finding that the employer’s reason for not promoting plaintiff, a female, to a washroom position was because the employer was afraid that if he promoted plaintiff all women would want to work in the washroom. The court then, in discussing the proper legal framework, stated “[I]f the evidence consists of direct testimony that the defendant acted with a discriminatory motive, and the trier of fact accepts this testimony, the ultimate issue of discrimination is proved.” Bell, 715 F.2d at 1557. The court went on to state that the burden then shifts to defendant to prove by a preponderance of the evidence that the same employment decision would have been made even absent the discriminatory motive.

In Bell the court, in using the term “direct testimony” actually was referring to evidence, circumstantial or direct, that proved directly rather than inferentially that defendant had a discriminatory motive.

In sum, the cases cited by plaintiff, when referring to direct evidence, are dealing with evidence, direct or circumstantial, which has proven discriminatory motive or intent without the need to rely on the judicially created McDonnell Douglas inference.

II. Thurston Proof

Plaintiff argues that under the Supreme Court’s ruling in Thurston, and the Fourth Circuit’s ruling in Smallwood, when plaintiff’s “prima facie case of discrimination based on direct evidence has been proven, ... the burden then shifted to defendant to prove by a preponderance of the evidence that it would have made the same decision even absent the discrimination.” Plaintiff’s Reply Brief at 15 (emphasis original). Plaintiff contends that “[o]nce the court denied Defendant’s motion for dismissal (under Rule 41 F.R.C.P.) at the close of the Commission’s case in chief, the prima facie case was established.” Plaintiff’s post-trial reply brief at 15. Plaintiff further asserts that, “[although the Court made no ‘express’ finding that discrimination was proven at the end of the Commission’s case in chief, its denial of Defendant’s motion to dismiss and receipt of Defendant’s evidence signifies as a matter of law that the prima facie case was proved.” Id. at 16 (emphasis original).

Plaintiff’s reliance on the Court’s denial of the Rule 41 motion and its statement that this establishes plaintiff’s prima facie case as a matter of law is erroneous. Rule 41(b), in pertinent part, provides:

After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of facts may then determine them and render judgment against the plaintiff or may decline to render judgment until the close of all the evidence.

“The trial judge may conclude, ... that it is inadvisable to sustain the defendant’s motion midway in the trial and that the trial should be completed. The denial amounts to no more than a refusal to enter judgment at that time, a tentative and inconclusive ruling on the question of the plaintiff’s proof.” Weissinger v. United States, 423 F.2d 795, 797 (5th Cir.1970). See also Armour Research Foundation of Illinois Institute of Technology v. Chicago Rock Island & Pacific R., 311 F.2d 493, 494 (7th Cir.1963) (“[A] denial of defendant’s motion amounts to nothing more than a refusal to enter judgment at that time. At most it constituted a tentative and inconclusive ruling on the quantum of plaintiff’s proof.”)

The granting of a defendant’s motion under Rule 41(b) is within the sound discretion of the judge. See A & N Club v. Great American Insurance Co., 404 F.2d 100, 103 (6th Cir.1968) (“whether the motion is granted though remains within the discretion of the trial judge”); see also Robinson v. Park Central Apartments, 248 F.Supp. 632, 633 (D.D.C.1965). Professors Wright and Miller in § 2371 of their treatise Federal Practice and Procedure explain that the court in considering a Rule 41 motion “is not obliged to determine finally whether the plaintiff’s evidence is sufficient on a motion to dismiss at the close of plaintiff’s case____ [Nor must it] concern itself with whether plaintiff has made out a prima facie case.”

At the conclusion of plaintiff’s evidence I determined in my discretion not to grant defendant’s motion to dismiss. I did not attempt to nor was I required to determine whether plaintiff had made out a prima facie case. The Rule says that I may decline to render any judgment until the close of all evidence. That is what I chose to do. Therefore, it cannot be said as a matter of law that at the conclusion of plaintiffs evidence a prima facie case had been proven.

In the findings of fact from the bench at the conclusion of all the evidence I analyzed the evidence of defendant’s discriminatory motive or intent in firing plaintiff. In considering those items of evidence, along with the rest of plaintiff’s evidence and the evidence presented by defendants, I found plaintiff’s evidence to be unpersuasive in the sense that plaintiff had failed to prove its case by a preponderance of the evidence. I stated that the case was in equipoise.

Even under plaintiff’s interpretation of Transworld Airlines and the other cases cited by plaintiff the burden of proof did not shift to defendant to prove that it would have fired plaintiff even absent its discriminatory conduct until plaintiff has proven discrimination by the Thurston proof method.

Plaintiff, under the whatever criterium, has failed to establish a prima facie case of discrimination; therefore, even under plaintiff’s theory, the burden never shifted to defendant to prove by a preponderance of the evidence that even so plaintiff would have been fired. Accordingly, plaintiff’s argument under the Thurston proof method is unpersuasive.

Ill McDonnell Douglas Inference

Plaintiff next argues that judgment should be entered for plaintiff under the three-step McDonnell Douglas inference allocation of proof.

In an action for discrimination under Title VII plaintiff must prove discriminatory treatment based on race, color, religion, sex, or national origin. “Since this motive or intent is seldom capable of proof by direct evidence, the Supreme Court has established a legal framework which allows a court to infer discriminatory motive on the basis of circumstantial evidence.” Perryman v. Johnson Products Co., Inc., 698 F.2d 1138, 1141 (11th Cir.1983) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

Under McDonnell Douglas the burden is on the plaintiff to prove by a preponderance of the evidence a prima facie case of illegal discrimination. “Ultimately, the establishment of a prima facie case of employment discrimination requires proof by a preponderance of the evidence that the plaintiff was not promoted or dismissed ‘under conditions which, more likely than not, were based upon impermissible racial [or sexual] considerations.’ ” Gairola v. Commonwealth of Virginia Department of General Services, 753 F.2d 1281, 1286 (4th Cir.1985) (quoting Young v. Lehman, 748 F.2d 194, 196 (4th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 2126, 85 L.Ed.2d 489 (1985)). See also Lewis v. Smith, 731 F.2d 1535, 1537 (11th Cir.1984).

(a) Step 1

Under McDonnell Douglas:

[I]f plaintiff proves by a preponderance of the evidence that he or she is a member of a protected class, was qualified for the position held, and was discharged and replaced by a person outside of the protected class or was discharged while a person outside of the class with equal or lesser qualifications was retained, then plaintiff has established a ‘prima facie case’ of discrimination.

Lee v. Russell County Board of Education, 684 F.2d 769, 773 (11th Cir.1982).

“ ‘Prima facie case’ has a specialized meaning in this context that goes beyond simply producing sufficient evidence to create a jury question; rather, this prima facie case creates a rebuttable presumption of discrimination and therefore if not rebutted requires a verdict for plaintiff.” Lee, 684 F.2d at 773 (citing Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254 & n. 7, 101 S.Ct. 1089, 1094 & n. 7, 67 L.Ed.2d 207 (1981)).

(b) Step 2

“If the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendants to articulate some legitimate, non-discriminatory reason for the employee’s rejection.” If no legitimate nondiscriminatory reason is articulated a verdict for plaintiff is mandated. See Lewis, 731 F.2d at 1537; Young, 748 F.2d at 196-97.

“The nature of the rebuttal burden on the defendant, though, is merely one of production not proof.” Lee, 684 F.2d at 773. “It is important to bear in mind ... that defendants’ burden of rebuttal is exceedingly light; ‘the defendant need not persuade the court that it was actually motivated by the proffered reasons ... it is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against plaintiff.’ ” Perryman, 698 F.2d at 1142 (quoting Burdine, 450 U.S. at 254-55, 101 S.Ct. at 1094-95). See also Ross v. Communications Satellite Corp., 759 F.2d 355, 365-366 (4th Cir.1985).

(c) Step 3

“Once defendant meets [its] burden the analysis proceeds to the third stage at which the plaintiff must prove by a preponderance of the evidence either that the asserted legitimate reason is pretextual or more directly that a discriminatory reason motivated the discharge.” Russell County, 684 F.2d at 773. See also Lewis, 731 F.2d at 1537; Gairola, 753 F.2d at 1287.

In the case at bar, assuming arguendo that plaintiff established a prima facie case, the burden then shifted to defendant to articulate a legitimate nondiscriminatory reason for plaintiff’s firing. At trial the reason presented by defendant was that plaintiff was “negative and disruptive.” Plaintiff cannot seriously argue that these reasons are not legitimate and nondiscriminatory. See generally Harris v. Group Health Association, 662 F.2d 869 (D.C.Cir.1981).

As I found from the bench, plaintiff failed to prove by a preponderance of the evidence that defendant’s reasons were pretextual. I stated from the bench on 4 April 1985 that “on the basis of all of the things that I have tried to look at to try to judge credibility, I believe that the most that can be said for the plaintiffs case is that it is in a state of equipoise; that the plaintiff has failed to carry a burden of proof by a preponderance of the evidence.” Findings of Fact at 13. As I noted initially, plaintiffs brief has done nothing to change my mind on this matter.

IV CONCLUSION

The foregoing discussions on the burden of proof was prompted by the vexingly careless use of words by judges in deciding discrimination actions. Ordinarily I would not deal at such length with such well-known evidentiary criteria for deciding cases. However, the EEOC, the pre-eminent authority on illegal discrimination, in oral argument and in brief contended earnestly for its mistaken view. Under the circumstances I thought it appropriate carefully to consider the Commission’s argument. Hence this opinion.

Finding that the EEOC on behalf of Miss Smith has failed to prove by a preponderance of the evidence that her firing was for an illegal discriminatory reason, judgment must be entered for defendant.

An appropriate judgment shall issue.

And it is so ORDERED.

      . The EEOC at trial contended that when plaintiff established its prima facie case using "direct evidence” that the burden then shifted to defendant to prove by a preponderance of the evidence (see note 2) that defendant would have made the same decision even absent discrimination. While I was skeptical that the EEOC’s position on the shifting burdens was correct, considering the expertise of the EEOC in employment discrimination matters I decided that I would withhold my decision on the allocation of the burdens until the parties had an opportunity to brief the issue.

      . Plaintiff variously contends that the burden in the present posture of the case is upon defendant and that defendant must prove its defense by a preponderance of the evidence, by clear and convincing evidence, and by a heavy burden of evidence; however, it is clear from the cases plaintiff cites that the burden of proof, by whomever borne, must be by the preponderance of the evidence.

      . Thurston dealt with a violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq.; however, the considerations concerning the allocations of proof are the same in ADEA and Title VII cases. See Smallwood v. United Air Lines, 728 F.2d 614, 620 (4th Cir.1984).

      . As with Title VII, the ADEA also recognizes a "good cause” defense to justify different treatment. See 29 U.S.C. § 623(f).

      . See, e.g., Bell v. Birmingham Linen Service, 715 F.2d 1552 (11th Cir.1983) "Once an [illegal] motive is proved to have been a significant or substantial factor in an employment decision, defendant can rebut only by proving by a preponderance of the evidence that the same decision would have been reached even absent the presence of the facts.” Id. at 1557 (quoting Lee v. Russell County Board of Education, 684 F.2d 769, 774 (11th Cir.1982)) (citations omitted).

        Perryman v. Johnson Products Co., Inc., 698 F.2d 1138 (11th Cir.1983):
      Some plaintiffs are able to prove the existence of discriminatory intent by direct evidence; in these rare cases, the plaintiff is not required to rely on the inference of discrimination created by the prima facie case of McDonnell Douglas, [citation omitted] If the factfinder believes the direct evidence presented by the plaintiff, a presumption is created that the adverse employment action taken against the plaintiff was a product of that discriminatory intent, [citation omitted]
      At this point, just as with a successful showing by the plaintiff of the discriminatory intent based upon circumstantial evidence, the burden shifts to the defendant to prove by a preponderance of the evidence that the adverse action would have been taken even in the absence of the discriminatory motive. Id. at 1143.

        Lewis v. Smith, 731 F.2d 1535 (11th Cir.1984):
      Once discrimination has been proven whether by circumstantial or direct evidence, a presumption of entitlement to appropriate remedies such as injunctive and/or declaratory relief, as well as hiring and backpay arises, [citations omitted] The burden then shifts to the employer to rebut the presumption by showing that the discriminatee would not have been hired absent the discrimination. Id. at 1538 (citations omitted).

      . "Presumptions shifting the burden of proof are often created to reflect judicial evaluations of probabilities and to conform with parties’ superior access to the proof.” Teamsters v. United States, 431 U.S. 324, 359 n. 45, 97 S.Ct. 1843, 1867 n. 45, 52 L.Ed.2d 396 (1977) (citing McCormick, Law of Evidence, §§ 337, 343 (2d Ed.1972)).
      “The shifting burdens of proof set forth in McDonnell Douglas are designed to assure that the 'plaintiff [has] his day in court despite the unavailability of direct evidence.’ ” Transworld Airlines, Inc. v. Thurston, — U.S. —, —, 105 S.Ct. 613, 622, 83 L.Ed.2d 523, 533 (1985) (quoting Loeb v. Textron, Inc., 600 F.2d 1003, 1004 (1st Cir.1979)).

      . In nn. 5 and 6, and in other places, I have quoted language of opinions using, confusingly I posit, the terms circumstantial and direct evidence. These terms should be transliterated into the sense of the terms explained in Section I. It is only in that sense that I use the quoted words in this opinion.


author: BUA, District Judge.

text:
    Jerome JACKSON, Plaintiff, v. Michael P. LANE, Director, Illinois Department of Corrections, et al., Defendants.
    No. 84 C 4494.
    United States District Court, N.D. Illinois, E.D.
    June 26, 1985.

      Jerome Jackson, pro se.
    Neil F. Hartigan, Atty. Gen. of Illinois by Stephen G. Kehoe, Asst. Atty. Gen., Chicago, for defendants.
   MEMORANDUM AND ORDER

BUA, District Judge.

FACTS

Plaintiff Jerome Jackson is a prisoner of the Illinois Department of Corrections, incarcerated at the Stateville Correctional Center (“Stateville”), Joliet, Illinois. Defendant Tillis is a Correctional Sergeant at Stateville. On August 22, 1983, Jackson was presented with a copy of an Inmate Disciplinary Report, written by Tillis, alleging that Jackson had violated “Administrative Regulation 804, Rule # 102, Assaulting Any Person.” Complaint, Exhibit A. Tillis charged in the report that:

While escorting Unit E yard, said resident [Jackson] ran up and hit me on the head knocking me down. Said resident had on a black mask and a hooded sweat shirt pull [sic] down over his head. I got away from the resident and he followed and hit me again. I recognized resident from the shape of his body. Resident had on slick blue state issued pants.

Complaint, Exhibit A.

On September 2, 1983, after an agreed continuance from August 25, 1983, Jackson appeared before the prison Adjustment Committee, a review board composed of defendants Johnson, Adjustment Committee Chairman, and Correctional Counselors Schomberger, McCabe, Rivera and Forkas. The Adjustment Committee found Jackson guilty of the charges set forth in the Inmate Disciplinary Report and sentenced the plaintiff to 360 days segregation, 360 days loss of good time, and 360 days demotion to C-Grade. The Adjustment Committee based its decision on plaintiffs statement that he was present at the time of the incident; a positive photo identification by Tillis of Jackson in a picture line-up; and the Adjustment Committee’s observation that Jackson did have an identifiable body, including a “very muscular upper torso, slim waist and always wears tight pants.” Complaint, Exhibit B.

In response to the Adjustment Committee’s findings, Jackson filed a complaint with the Administrative Review Board (“Review Board”) on September 20, 1983. The Review Board was composed of defendants Hetman, the chairperson, Henry and Melendez. On October 25, 1983, the Review Board affirmed the decision of the Adjustment Committee. In addition to the facts established by the Adjustment Committee, the Review Board also considered Jackson’s refusal to submit to a polygraph examination and his prior disciplinary record which indicated numerous reports of misconduct, including reports of intimidation or threats, possession of contraband weapons, insolence and threats towards correctional employees. Complaint, Exhibit D.

After exhausting his state administrative remedies, Jackson filed this suit alleging violations of the fifth, eighth, and fourteenth amendments to the U.S. Constitution. Jackson seeks relief pursuant to 42 U.S.C. § 1983. Before the Court is defendants’ motion to dismiss, or in the alternative, for summary judgment. On September 10, 1984, the parties were informed by the Court that defendants’ motion would be treated as a motion for summary judgment. See Fed.R.Civ.P. 12(b). On January 7, 1985, Jackson filed a response to defendants’ motion. Jackson alleges that Tillis’ identification of Jackson as the assailant and the findings of both the Adjustment Committee and the Review Board were determined on the basis of insufficient evidence. Jackson contends that because Tillis’ assailant was hooded and masked, a positive identification was virtually impossible. Jackson also contends that the Adjustment Committee failed to give an adequate statement of the reasons for the disciplinary action taken. Finally, Jackson asserts that because the decisions of both the Adjustment Committee and the Review Board were made pursuant to the disciplinary report, and that the decision of the Review Board was in part based on Jackson’s past institutional record, the findings of these two boards were not based on sound evidence and were thus a violation of Jackson’s constitutional rights.

For the reasons stated below, defendants’ motion for summary judgment is granted.

DISCUSSION

Under Rule 56, summary judgment is appropriate only if “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact.” Fed.R. Civ.P. 56. To the extent that the record is unclear or the facts conflicting, the evidence in the record must be viewed in the light most favorable to the party opposing the motion. U.S. v. One Heckler-Koch Rifle, 629 F.2d 1250, 1251 (7th Cir.1980).

In Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the Supreme Court held that if a state creates a right for a prisoner to earn good-time credits — that is, a firm expectation that if the prisoner complies with specified conditions he will automatically earn the credits and be released earlier — the prisoner has a liberty interest protected under the fourteenth amendment. Wolff, supra, 418 U.S. at 557, 94 S.Ct. at 2975. Further, a state which provides a prisoner with the right to remain free of disciplinary segregation unless the prisoner violates specific conditions creates a liberty interest within the meaning of the due process clause. Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 871, 74 L.Ed.2d 675 (1983). By reason of Illinois law, the plaintiff in the instant case has a protectable liberty interest to remain in the general prison population and to earn good-time credits during his period of incarceration. See Woodall v. Partilla, 581 F.Supp. 1066, 1072 (D.C.Ill.1984). Thus, Jackson’s claims with respect to loss of good time and administrative segregation fall within the parameter of those liberty interests protected under the fourteenth amendment and the state’s disciplinary proceedings are subject to procedural due process protections.

Due Process Standards

It is well settled that in determining what “process is due” in the prison context “one cannot automatically apply procedural rules designed for free citizens in an open society ... to the very different situation presented by a disciplinary proceeding in a state prison.” Hewitt, supra, 103 S.Ct. at 872. The Court in Hewitt examined the interests involved in the prison’s regulation of administrative segregation and determined that the basis for confining a prisoner to administrative segregation, namely to reduce the threat of safety of other inmates and prison officials, was perhaps the most fundamental responsibility of the prison administration. Id. at 872. In balancing this interest against the prisoner’s private interest of remaining in the general prison population, the Court concluded that the due process clause requires only an informal nonadversary review of the evidence from which to decide whether an inmate should be confined to administrative segregation. Id. at 873.

This nonadversary evidentiary review consists of some notice to the prisoner of the pending charges and an opportunity on the part of the prisoner to present his views to the prison official charged with deciding whether to transfer the prisoner to segregation. As long as these requirements are met, and the decision maker has the opportunity to review the charges and then-available evidence against the prisoner, the requirements of the due process clause are satisfied. Id. at 874. The Supreme Court reasoned that this procedure provides for a reasonably accurate assessment of probable cause to determine whether misconduct has occurred. Id.

In Wolff v. McDonnell, 418 U.S. 539 (1974), the Supreme Court outlined the minimum requirements of procedural due process appropriate for determining whether a prisoner’s behavior justifies the loss of good-time credits. These requirements include: (1) 24-hour advance written notice of the claimed violation; (2) a written statement of the factfindings as to the evidence relied upon; and (3) adequate reasons for the disciplinary action taken. The prisoner should also be afforded an opportunity to call witnesses and present documentary evidence in his defense unless permitting the inmate to do so would be unduly hazardous to institutional safety or correctional goals. Wolff, supra, 418 U.S. at 566, 94 S.Ct. at 2979. The function of the notice requirement is to give the charged party an opportunity to gather the facts in his defense. The purpose of the written statement is to protect the inmate against collateral consequences based on a misunderstanding of original proceedings and also helps to insure that administrators will act fairly. Id.

Measured against the standards set forth in Hewitt and Wolff, this Court finds that Jackson was afforded his constitutional protections as guaranteed under the due process clause. Jackson received well over the 24-hour notice requirement mandated by the Court in Wolff. Further, as required by Hewitt and Wolff, Jackson was given an opportunity to present his defense to the proper disciplinary board through his appearance before the Adjustment Committee on September 2, 1983. Although the record does not indicate the degree of his participation at this hearing, Jackson has at no time raised as an issue, or presented any evidence in this Court, that he was denied an opportunity to be adequately heard.

Finally, Jackson was provided with written statements from both the Adjustment Committee hearing of September 2, 1983, and the Administrative Review Board meeting of October 25, 1983. Both statements contain the evidence relied upon and the reasons for the disciplinary action taken. Jackson contends, however, that these statements were lacking because the Adjustment Committee summary failed to give an adequate statement of reasons for the action taken and the Review Board statement contained information regarding plaintiffs prior disciplinary record.

In arguing that the statements were deficient, Jackson relies upon the reasoning of United States ex rel. Johnson v. Chairman, New York Board of Parole, 500 F.2d 925 (2nd Cir.1974). In Johnson, the court held that to satisfy minimum due process with respect to parole release proceedings, a statement of reasons denying the parole should be “sufficient to enable a reviewing body to determine whether parole has been denied for an impermissible reason or for no reason at all.” Johnson, supra, 500 F.2d at 934. The court further held that for this purpose, detailed findings of fact were not required, provided the Board’s decision is based upon consideration of all relevant factors and it furnishes to the inmate both the grounds for the decision and the essential facts upon which the Board’s inferences are based. Id. at 934.

Jackson argues that the evidence set forth in the written statements, namely the identification of Jackson as Defendant Tillis’ assailant decided on the basis of plaintiff’s distinguishable body features along with the introduction and consideration of prior disciplinary problems, was not sufficient to find Jackson guilty pursuant to the minimum due process standard established in Johnson. This Court disagrees. As the Supreme Court noted in Hewitt, a prison’s internal security is peculiarly a matter normally left to the discretion of prison administrators who must necessarily draw on more than the specific facts surrounding a particular incident. Hewitt, 103 S.Ct. at 872-73. Prison administrators must consider the character of the inmates confined in the institution and past relations between prisoners and guards. Id. at 872-873. The Court in Hewitt reasoned that the judgment of prison officials in the volatile atmosphere of a prison may turn largely on purely subjective evaluations and predictions of future behavior based on such factors as past misconduct or even rumor and reputation. Id. at 873.

Furthermore, in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), the Court held that because daily operations of a corrections facility are not susceptible of easy solutions, prison administrators should be accorded wide ranging deference in the adoption and éxecution of policies and practices that in their judgment are needed to ensure the safety of inmates and corrections personnel. Id. at 547, 99 S.Ct. at 1878. Thus, in the case at hand, both the Adjustment Committee and the Review Board were entitled to consider factors which, in their judgment, were essential in order to determine Jackson’s guilt or innocence. Further, it was within the prison administration’s discretion to determine the credibility or noncredibility of the evidence presented. Jackson’s dissatisfaction with these findings and conclusions does not constitute a cause of action when, as this Court has determined, he was duly afforded his minimum due process rights.

Finally, plaintiff’s argument that the evidence was not sufficient to support a finding of guilty is equally without merit. Regarding the sufficiency of evidence, the Supreme Court has recently held that the requirements of due process are met if “there was some evidence from which the conclusion of the administrative tribunal could be deduced.” Walpole v. Hill, — U.S. —, —, 105 S.Ct. 2768, —, 86 L.Ed.2d 356 (1985). Although the evidence presented to the Adjustment Committee could have supported a different result, due process “does not require evidence that logically precludes any conclusion but the one reached by the disciplinary board.” Id. at -, 105 S.Ct. at-. In this case, the photo identification, plaintiffs statements at the hearing and plaintiff's “identifiable body” clearly constitute sufficient evidence under Walpole.

CONCLUSION

Finding that the record of the case fails to show a genuine issue as to any material fact, this Court grants defendant’s motion for summary judgment. Accordingly, plaintiff’s complaint is hereby dismissed.

IT IS SO ORDERED.

      . Plaintiff clearly does not state an eighth amendment claim of cruel and unusual punishment. Punishment has been characterized as cruel and unusual when it is incompatible with “the evolving standards of decency that mark the progress of a maturing society, and when it involves unnecessary and wanton infliction of pain or is grossly disproportionate to the severity of the crime.” Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) (quoting Trop v. Dulles, 356 U.S. 86, 100, 78 S.Ct. 590, 597, 2 L.Ed.2d 630 (1958)). The facts of plaintiffs case do not allege violations of these general standards.