author: WILKINS, District Judge.

text:
    ORA CORPORATION, Plaintiff, v. Gordon R. VINSON; Fortune, Inc.; North Carolina Palco Company, Inc.; Intercel Chemistries, Inc.; Robert F. Schmunk; A.C. Palmer; A.C. Palmer d/b/a Chemical Services Co.; and Harold E. Sullivan, Defendants. and Robert F. SCHMUNK and Intercel Chemistries, Inc., As Third-Party Plaintiffs, v. Robert B. WILSON, a/k/a Robert B. Wilson, Jr., Third-Party Defendant.
    Civ. A. No. 84-444-14.
    United States District Court, D. South Carolina, Greenville Division.
    Nov. 14, 1984.
    R. David Massey, R. Scott Tewes, Brown & Hagins, P.A., Greenville, S.C., John P. Freeman, Columbia, S.C., for plaintiff, Ora Corp.
    James M. Herring, Herring & Meyer, Hilton Head Island, S.C., for defendants, Gordon R. Vinson, Fortune, Inc. and North Carolina Palco Company, Inc.
    Larry D. McDonald, Greenville, S.C., for defendants and third-party plaintiffs, Intercel Chemistries, Inc. and Robert F. Schmunk.
    Albert Q. Taylor, Jr., Leatherwood, Walker, Todd & Mann, Greenville, S.C., for defendant, Harold E. Sullivan.
    R. Scott Tewes, Brown & Hagins, P.A., Greenville, S.C., for third-party defendant, Robert B. Wilson, a/k/a Robert B. Wilson, Jr.
   ORDER

WILKINS, District Judge.

Defendant Harold Sullivan moves to dismiss Plaintiffs claims brought under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C.A. §§ 1961— 1968 (West Supp.1970-1983), for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). He asserts that a civil RICO claim must include allegations of criminal convictions of the alleged racketeering activities and a separate and distinct “racketeering injury” to constitute a cognizable cause of action. His motion was denied by an order issued from the bench on October 23, 1984. The Court now sets forth more fully the basis for its decision.

Plaintiff alleges that Defendants conspired and instigated a scheme to deprive it of waste acid shipments and of payments for disposal of the shipments. Plaintiff further alleges that Defendants conspired and operated an enterprise through a pattern of mail and wire fraud activities in violation of RICO. Defendant Sullivan contends that this alleged conduct constitutes mere fraud and not the type of corrupt business practices which Congress intended RICO to eradicate.

In determining the scope of the RICO provisions, the Court must first look to the language of the statute, United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246 (1981), which Congress has dictated “shall be liberally construed to effectuate its remedial purposes.” RICO, Pub.L. No. 91-452, § 904(a), 84 Stat. 922, 947 (1970). Plaintiff alleges a violation of Section 1964(c) which provides a civil remedy of treble damages and costs for “[a]ny person injured in his business or property by reason of a violation of section 1962.” Defendants are charged with violating the following portions of Section 1962:

(a) It shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity or through collection of an unlawful debt in which such person has participated as a principal within the meaning of section 2, title 18, United States Code, to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce....
(b) It shall be unlawful for any person through a pattern of racketeering activity or through collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.
(c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt.
(d) It shall be unlawful for any person to conspire to violate any of the provisions of subsections (a), (b), or (c) of this section.

The term “racketeering activity” includes “any act which is indictable under any of the following provisions of title 18, United States Code: ... section 1341 (relating to mail fraud), section 1343 (relating to wire fraud)____” Section 1961(1)(B). A ‘ “pattern of racketeering activity” requires at least two acts of racketeering activity, one of which occurred after the effective date of this chapter and the last of which occurred within ten years ... after the commission of a prior act of racketeering activity.’ Section 1961(5). The term “enterprise” includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.’ Section 1961(4).

The Court recognizes the capacious language of RICO provides a federal forum and new remedies for acts which previously would have been cognizable at the state level or pursuant to other federal statutes. However, the language of RICO and its legislative history indicate that Congress “was alerted to the far-reaching implications of [RICO],” Schacht v. Brown, 711 F.2d 1343, 1361 (7th Cir.1983), cert. denied, — U.S.-, 104 S.Ct. 508, 78 L.Ed.2d 698 (1983), and that Congress “was well aware that it was entering a new domain of federal involvement through the enactment of this measure,” United States v. Turkette, 425 U.S. at 586, 101 S.Ct. at 2530. Courts are without authority to restrict the plain meaning of RICO. Id. at 587, 101 S.Ct. at 2530. Accordingly, this Court holds that the clear language of RICO does not require the additional elements suggested in the motion to dismiss. Even if changes to the language of RICO would offer improvement, a court does not have the authority to redraft legislative acts. These additional elements may be added only by legislative action and not judicial edict. Neither should a court use the veil of “interpretation” to engage in legislating.

PRIOR CRIMINAL CONVICTIONS

Defendant Sullivan urges the Court to follow Sedima, S.P.R.L. v. Imrex Co., Inc., 741 F.2d 482, 503 (2d Cir.1984), which required prior criminal convictions of the alleged predicate racketeering activities. The Court declines to follow Sedima for several reasons. A racketeering activity is defined as an act “which is chargeable under State law” or which is “indictable under” any of several listed provisions of federal law. Section 1961(1). This clear language rebuts the contention that Congress intended to require a criminal conviction as a prerequisite to a civil RICO suit. If Congress had intended to require a prior conviction it could have easily said so. The words “chargeable” and “indictable” simply do not mean convicted. Congress did not intend for an injured litigant’s civil recourse to depend on the exercise of prosecutorial discretion or, if the decision to prosecute is made, the outcome of a criminal trial. Also, other courts have refused to limit the scope of RICO by requiring prior criminal convictions of the predicate offenses. Bunker Ramo Corp. v. United Business Forms, Inc., 713 F.2d 1272, 1287 (7th Cir.1983); US ACO Coal Co. v. Carbomin Energy, Inc., 689 F.2d 94, 95 n. 1 (6th Cir.1982).

While the Fourth Circuit has not directly addressed this issue, the court recently reversed the dismissal of a RICO claim for failure to state a meritorious cause of action. Battlefield Builders, Inc. v. Swango, 743 F.2d 1060 (4th Cir.1984). The Court held that the appellant had sufficiently alleged predicate racketeering activities, extortion and attempted extortion, under the applicable state law, and that the cause of action was therefore “immune to a Rule 12 motion to dismiss.” Id. at 1063. The court upheld the sufficiency of the RICO claim apparently without requiring the additional element of prior criminal convictions of the racketeering activities. Accordingly, this Court finds that the plain language of the statute and weight of authority preclude the requirement of prior criminal convictions of predicate offenses as a prerequisite to a civil RICO suit.

RACKETEERING INJURY

Defendant Sullivan also urges the Court to hold that a cognizable civil RICO claim must include an allegation of a “racketeering injury” separate and distinct from the injury caused by the commission of the predicate racketeering activities. RICO requires that a plaintiff allege an injury to his business or property “by reason of a violation of section 1962,” which renders unlawful the operation of an enterprise through a pattern of predicate racketeering activities. Accordingly, a RICO plaintiff must allege injury resulting from the commission of at least two predicate offenses. There simply is no requirement that a plaintiff assert an additional “competitive” or “racketeering” injury resulting from the racketeering enterprise. E.g., Schacht v. Brown, 711 F.2d at 1358; Kitchens v. U.S. Shelter, No. 82-1951-1, at 17; Mauriber v. Shearson/American Express, Inc., 567 F.Supp. 1231, 1240-41 (S.D.N.Y.1983); see Furman v. Cirrito, 741 F.2d 524, 533 (2d Cir.1984). Moreover, the separation of a “racketeering” injury from an injury resulting from the predicate racketeering activities creates an artificial distinction, for any alleged injury from the operation of the enterprise emanates from the commission of the predicate acts. Accordingly, the Court finds that a “competitive” or “racketeering” injury is not a required element of a cognizable civil RICO claim.

The motion to dismiss is therefore denied.

AND IT IS SO ORDERED.

      . The Court notes that a connection with organized crime is often associated with the alleged requirement of prior criminal convictions. However, a nexus to organized crime has been uniformly rejected by a majority of courts addressing this issue. Owl Construction Co., Inc. v. Ronald Adams Contractor, Inc., 727 F.2d 540, 542 (5th Cir.1984) cert. denied,__U.S__, 105 S.Ct. 118, 83 L.Ed.2d 61 (1984); Moss v. Morgan Stanley, Inc., 719 F.2d 5, 21 (2d Cir.1983), cert. denied,_U.S__., 104 S.Ct. 1280, 79 L.Ed.2d 684 (1984); Bunker Ramo Corp. v. United Business Forms, Inc., 713 F.2d at 1287 n. 6; Bennett v. Berg, 685 F.2d 1053, 1063 (8th Cir.1982), aff'd en banc, 710 F.2d 1361 (8th Cir.1983), cert. denied, _ U.S. _, 104 S.Ct. 527, 78 L.Ed.2d 710 (1983); Kitchens v. U.S. Shelter, No. 82-1951-1, at 13 (D.S.C. Oct. 29, 1984) (order denying dismissal). This Court joins the majority in rejecting such a limitation of the scope of RICO.


source: Caselaw Access Project

author: GORDON, Senior District Judge.

license: Public Domain

text:
    Robert Gladstone BELL, Plaintiff, v. HOME LIFE INSURANCE COMPANY, Defendant.
    No. C-82-1003-G.
    United States District Court, M.D. North Carolina, Greensboro Division.
    Nov. 15, 1984.

      G.S. Crihfield, Greensboro, N.C., for plaintiff.
    Guy F. Driver, Jr. and Keith A. Clinard, of Winston-Salem, N.C., for defendant.
   MEMORANDUM OPINION

GORDON, Senior District Judge.

I. INTRODUCTION

This cause was commenced on October 5, 1982, by plaintiff Robert Bell pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (Title VII). Plaintiff, originally from New Zealand, alleges that defendant Home Life Insurance Company (Home Life), through its agent, Mr. Peter Schick, violated Title VII by discriminating against plaintiff because of his national origin. The alleged discriminatory conduct took the form of failure to provide adequate training and support services, remarks about plaintiff’s accent and manner, and finally his termination as a salesman for Home Life.

A trial upon these claims was held on October 15 and 16, 1984, the Court having jurisdiction pursuant to 28 U.S.C. § 1343. Having fully considered the evidence presented at trial, arguments of counsel, trial briefs, and other matters of record, the Court concludes that plaintiff has failed to show illegal discrimination that would entitle him to recover from defendant.

II. FACTS

Plaintiff was an extremely successful insurance salesman in his native New Zealand. His success earned him membership in the Million Dollar Round Table, an international organization honoring the top 2V2 per cent of life insurance salesmen. The plaintiff attended several insurance seminars in the United States. At those seminars he became acquainted with Mr. Thomas Sullivan of Greensboro, North Carolina, who convinced plaintiff to immigrate to America. Sullivan began assisting in plaintiffs immigration, but during the initial steps of the process Sullivan met his untimely death.

Through Sullivan’s widow, Mr. Robert Pope learned of plaintiff’s situation. Pope, then manager of Home Life’s Greensboro office, decided to help Bell fulfill his plans to come to America. Pope corresponded with plaintiff at length and complied with federal regulations so that plaintiff could come to Greensboro to work for Home Life. On November 4, 1980, amid much hoopla, plaintiff stepped off the plane in Greensboro, a Home Life agent.

Although Bell was an experienced and talented salesman, it was obvious that he would face a major problem: he knew only two people in the United States and thus was lacking a “natural market.” Because he had no “natural market,” Pope and he had agreed that the best way to orient him with Home Life would be for Pope to work closely with him, going on joint calls to prospective clients and providing him with orphan policies. As with many of the best laid schemes, however, this plan soon went astray: shortly after Pope began training plaintiff, Pope was notified by Home Life that he was being replaced as manager of the Greensboro agency.

On January 25, 1981, Mr. Peter Schick took over in Pope’s place. Schick had met with great success at Home Life's St. Louis office, and was an expert in training agents and improving productivity. His style was aggressive and by-the-book, and the book was the Multi Million Dollar Method (MMDM). The MMDM is a detailed methodology, co-authored by Schick, for organizing and developing a career in life insurance sales. It involves memorizing complex sales presentations, making a certain number of calls per week to prospective clients, and keeping detailed records of daily activity. For Schick and others it had proven a “pathway to success”; for Bell it would prove a long and frustrating road.

Bell was upset by the change in management. Not only did he feel cast adrift by the loss of Pope, but Schick’s management style did not suit him. Bell felt that Home Life was not living up to its bargain with him, and his dissatisfaction was aggravated by his feeling that Pope had been treated unfairly. Although he had access to the same support and training materials as the other agents, the special attention he had so fleetingly enjoyed was no longer forthcoming. Bell did not follow the procedures set out in the MMDM, trying instead to do things his own way. Bell’s attitude grew worse. When admonished to follow the MMDM, he criticized it as inappropriate for him. He became increasingly frustrated and remained unproductive.

Part of his problem, he claims, was attributable to cultural differences. He contends that he lacked familiarity with certain technical terms and American usages. In retrospect, he agrees that his dress and grooming were somewhat inappropriate to the American sales climate, and his sales technique too aggressive.

At the same time Bell enjoyed certain advantages over the other agents. Pope had provided him with a private office upon arrival, while all the other agents shared office space. Bell was also the only agent who was given a monthly draw against salary and whose moving expenses were compensated by Home Life. In addition, there is evidence that Schick arranged for Pope, after his termination, to continue to work with Bell and receive overrides on Bell’s sales. Although this scheme might have proven mutually beneficial, Bell and Pope never proceeded with it.

In addition, Bell enjoyed a lower sales quota than the other agents. Under the MMDM, specific sales goals are set, and new salespeople are generally expected to sell one million dollars of insurance in their first year, or $83,000.00 per month. Because of Bell’s unusual circumstances, in February 1981 Schick agreed to establish a somewhat lower goal of $50,000.00 per month for his first eight months with Home Life retroactive to his November arrival. Although Bell went on a number of joint sales calls with other, more experienced agents, at the end of those eight months he had generated only $55,000.00 total sales. He was notified by Schick in a letter dated July 15, 1981, that he was being terminated for lack of production.

In September of 1981 Bell was introduced to Mr. Ronald E. Austin by Pope. Austin, who had formerly been with Home Life, was then head of an agency selling Integon insurance. Austin offered Bell a position, but Bell initially refused because of his experience at Home Life. A month later Bell accepted, and Austin began to train him in much the same manner Pope had suggested: Austin went on joint calls with Bell and provided him with orphan policies as leads. Austin also proceeded to “Americanize” Bell by recommending changes in his dress, grooming, and manner. Bell, it appears, was a willing and able pupil, for within a year he sold some 5 million dollars in face value of insurance and became one of only two people ever to qualify for the Million Dollar Round Table in two different countries. At the time of trial, Bell continues to pursue a happy and prosperous career with Integon.

III. DISCUSSION

Title VII states:

It shall be an unlawful employment practice for an employer ... to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s ... national origin, or ... to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his or her status as an employee, because of such individual’s ... national origin.

42 U.S.C.A. § 2000e-2 (1981). The statute fails further to define national origin, but the Supreme Court has stated that “[t]he term ‘national origin’ on its face refers to the country where a person was born, or, more broadly, the country from which his or her ancestors came.” Espinoza v. Farah Manufacturing Co., 414 U.S. 86, 88, 94 S.Ct. 334, 336, 38 L.Ed.2d 287 (1973). The E.E.O.C. guidelines define national origin discrimination as

including, but not limited to, the denial of equal employment opportunity because of an individual’s, or his or her ancestor’s, place of origin; or because an individual has the physical, cultural or linguistic characteristics of a national origin group.

29 C.F.R. § 1606.1 (1984).

In a case claiming disparate treatment under Title VII, plaintiff has the initial burden of establishing by a preponderance of the evidence a prima facie case of discrimination. In this context, a prima facie case is “not the equivalent of a factual finding of discrimination ... [rjather, it is simply proof of actions taken by the employer from which we infer discriminatory animus because experience has proved that in the absence of any other explanation it is more likely than not that those actions were bottomed on impermissible considerations.” Furnco Construction Corporation v. Waters, 438 U.S. 567, 579-80, 98 S.Ct. 2943, 2951, 57 L.Ed.2d 957 (1978). The burden then shifts to defendant to articulate a legitimate nondiscriminatory reason for the alleged discriminatory treatment. If the defendant carries this burden, the plaintiff may then prove that the reasons offered by defendant were a pretext for its discriminatory conduct. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). Of course, the plaintiff bears the ultimate burden of proving discriminatory treatment. 450 U.S. at 253, 101 S.Ct. at 1093. Proof of discriminatory animus is critical, although it can be inferred from the mere fact of differences in treatment. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977).

To prove his case Bell contends that, because he is from New Zealand, he was not provided with the individualized training he was promised, he was not given access to certain training and support materials, he was ridiculed because of his accent, and he was finally discharged. After plaintiff had presented his case, it was concluded that he had met his initial burden of proving a prima facie case, because in the absence of any other explanation it was more likely than not that defendant’s actions were bottomed on impermissible considerations. Furnco, 438 U.S. at 579-80, 98 S.Ct. at 2950-51.

Home Life, in presenting its case, argued that Bell was given training and support equal to or greater than the other agents, that he was an unproductive salesman with a negative and disruptive attitude, that he consistently failed to follow the prescribed procedures, and that his firing was a purely business decision. After the defense had been presented, it became clear that much of the factual basis of plaintiff’s prima facie case had been refuted, and any remaining inference of discrimination was rebutted by proof that Home Life’s actions were legitimate, nondiscriminatory, and not pretextual.

Plaintiff emphasizes the training he was promised by Pope and the supposedly lesser training actually provided by Home Life. Any disparity, however, if there were one, would not be the type of wrong that Title VII was intended to remedy. Rather, any claim would be in the nature of a breach of contract, which has already been asserted by plaintiff and disposed of in a previous lawsuit. Instead, Title VII addresses any disparity between the treatment received by Bell and that given the other agents, and it is upon this that the Court must focus. See Wright v. National Archives and Records Service, 609 F.2d 702 (4th Cir.1979).

Plaintiff claims that he was prevented from attending certain meetings that the other agents were allowed to attend, particularly those involving Physicians’ Planning Service. There is unrefuted evidence, however, that this service was available only to dues paying members, that Bell never paid dues, and that in fact he was given a certain limited access to that service regardless. In addition, plaintiff was given certain other advantages over the other agents: a private office, lower sales quota, payment of moving expenses, and draw against commission. These were all intended to assist plaintiff during his training period.

It also appears that every agent, including Bell, had equal access to training materials and support. It is true that Schick went on joint calls with other agents and none with Bell, but this is because Bell signed up with Schick for only three such calls; when they were cancelled for various reasons, Bell stopped signing up out of “frustration.” The reasons for the cancellations were legitimate, however, so the Court cannot attribute any discriminatory animus to them or, by implication, to the creation of Bell’s frustration.

It is also true that Bell lacked a natural market in Greensboro. He claims that if Schick had reassigned orphan policies to him, he could have succeeded in developing a market; this he substantiates with his success at Integon using orphan policies as a market base. Plaintiff has failed, however, to show any discrimination in this regard. He claims that Schick could have taken the policies away from other agents who were not actively pursuing them. Schick stated, however, that as a policy he would not reassign clients once appointed, and plaintiff did not prove that Schick had ever done so. Thus, it is concluded that plaintiff received training and support equal to the other agents, and was not discriminated against in that regard.

Plaintiff also charges that Schick made disparaging remarks about his accent, leading to a general sense of frustration and inadequacy on Bell’s part. This, he claims, establishes a case of national origin discrimination. This area of the law is extremely uncertain. In Garcia v. Gloor, 618 F.2d 264 (5th Cir.1980), cert. denied, 449 U.S. 1113, 101 S.Ct. 923, 66 L.Ed.2d 842 (1981), the court stated that save for religion, Title VII “focuses its laser of prohibition” on those characteristics that are beyond the victim’s power to alter. 618 F.2d at 269. This rationale, which distinguishes and analyzes in terms of mutable and immutable characteristics, had been applied in sex discrimination cases, Willingham v. Macon Telegraph Publishing Co., 507 F.2d 1084 (5th Cir.1975); Baker v. California Land Title Co., 507 F.2d 895 (9th Cir.1974), cert. denied 422 U.S. 1046, 95 S.Ct. 2664, 45 L.Ed.2d 699 (1975), see Earwood v. Continental Southeastern Lines, Inc., 539 F.2d 1349 (4th Cir.1976), but in Garcia it was applied in the context of national origin discrimination, specifically the speaking of native language on the job. 618 F.2d at 269. See Garcia v. Gloor: Mutable Characteristics Rationale Extended to National Origin Discrimination, 32 Mercer L.Rev. 1275 (1981).

At least one court has applied this rationale to foreign accent, stating that “[tjhis Court cannot give legal cognizance to adverse employment decisions made simply because a person speaks with a foreign accent.” Carino v. University of Okla homa, 25 F.E.P. Cases 1332, 1337 (W.D. Ok. 1981). In addition, in Berke v. Ohio Department of Public Welfare, 628 F.2d 980 (6th Cir.1980) (per curiam), the court upheld a district court determination that discrimination on the basis of a foreign accent was a sufficient basis for finding national origin discrimination. Foreign accent is also a “linguistic character of a national origin group.” 29 C.F.R. § 1606.1 (1984). Although this issue has never arisen in this Circuit, this Court concludes that if plaintiff could prove that he had been discriminated against because of his accent, he would establish a prima facie case of national origin discrimination. Plaintiff has failed to convince the Court, however, that any such discrimination took place.

Plaintiff claims that Schick ridiculed his accent; Schick denies this. It is concluded that if such remarks were made, they were not made with the frequency or severity alleged, and certainly did not arise to any discriminatory harrassment. See Cariddi v. Kansas City Chief Football Club, 568 F.2d 87 (8th Cir.1977). Nor has plaintiff proven that there was any specific discriminatory conduct attached to the remarks. At most they create an inference that there was some animus on Schick’s part.

Plaintiff relies on this implication of animus as proof that he was fired because he was from New Zealand. Assuming arguendo that such an animus existed, defendant Home Life has sufficiently proven that the decision to terminate Bell was motivated by business reasons, thus rebutting any prima facie case.

The evidence shows that Bell failed to comply with his training requirements. For instance, he filed only four weekly reports during his seven month tenure. Although he claims his unfamiliarity with American terminology was the cause, this is refuted by his command of the language and his success on the licensing exam. Bell admits that his attitude became very negative after Pope was fired, and there is evidence that his attitude carried over into his office demeanor. He violated Home Life policy by airing his grievances in the work environment. But the bottom line was the bottom line: Bell did not sell enough insurance. His quota was $50,-000.00 per month; in seven months he sold only $55,000.00. This, it is concluded, is the reason that Bell was terminated, and it is a valid business reason and not a pretext for any discriminatory motive.

The Court is not unsympathetic to Bell’s plight. He is a congenial and talented individual. He was successful in New Zealand and had every reason to expect success with Home Life. His coming to America was a bold move, and he made that move relying on assurances by Pope, who was soon fired by Home Life. Pope’s replacement, Peter Schick, was a young, aggressive, no-nonsense manager who did things his own way. His style did not mesh with Bell’s, and there was a clash of two strong personalities. Bell resisted, failed to produce, was fired, and then was left to his own devices in an unfamiliar country and with a family to support.

The Court sympathizes with Bell. He has failed, however, to prove that Home Life discriminated against him because he is from New Zealand; the scenario would have been the same if plaintiff were from New Jersey. Therefore, it is concluded that plaintiff, Robert Bell, is not entitled to relief from defendant under Title VII, and that his case must be dismissed.

Defendants have requested that the Court award attorney’s fees pursuant to 42 U.S.C.A. § 2000e-5(k) (1981). Plaintiff’s case was in no manner frivolous, unreasonable, nor brought in bad faith, and so defendant’s request is denied. Crawford v. Western Electric Co., 614 F.2d 1300, reh’g denied 620 F.2d 300 (5th Cir.1980).

The Court will enter an Order simultaneously herewith disposing of this action in accordance with this Memorandum Opinion.

      . Bell was met at the airport by representatives of Home Life and driven to the festooned office for a celebration of his arrival.

      . Bell’s problem of no natural market was emphasized in the results of the Merritt Personnafax Report. This aptitude test was taken by Bell before he came to the United States as a condition of his job with Home Life. Bell scored well in all categories except natural market, which was noted as a "Big Problem.”

      . An orphan policy is a policy whose writing-agent has since left the company. These are generally reassigned to a current agent. Pope planned to take orphan policies away from agents who had not actively pursued them and give them to Bell. Although Pope said this was the prerogative of the manager, Schick stated that once a policy had been assigned he would never take it from the agent.

      . The St. Louis agency was the leading sales office in the country. During his tenure in Greensboro, the local agency rose from 33rd to 10th in the company. Schick has trained over 100 agents using his methods.

      . Although Pope had actually given Bell a copy of the MMDM in November 1980, Pope had not stressed its use. He felt it was designed to teach a person new to insurance sales but with a natural market; Bell, he felt, knew sales but lacked the market, and so the MMDM was inappropriate. Schick noted that some 60 pages in the book are devoted to developing a market.

      . See note 5, supra.

      . To meet immigration requirements Pope had certified that Bell would receive $1,000.00 per month salary. When Bell arrived, however, he signed a contract providing strictly commission instead. In early February 1981 Bell went to Schick complaining of his financial straits: he had yet to be paid a cent and his savings were exhausted. Schick informed the New York Office of the situation and Home Life agreed to pay Bell $1,000.00 per month draw against commission retroactive to his arrival. Home Life also agreed to pay Bell approximately $5,000.00 of the over $11,000.00 moving expenses he had requested; although Home Life felt it had no legal obligation to do so, it expressed a sense of moral obligation. In a letter to Pope, however, Home Life expressed its view that Pope was responsible for the problem and would be held accountable for any loss by Home Life.

      . Overrides are the commission received by a salesman's supervisor.

      . Bell v. Home Life Insurance Co., C-81-669-G (M.D.N.C. July 29, 1982) (no breach of employment contract since plaintiff failed to prove definite period of employment). It is arguable that if these initial promises were made with the intent to draw plaintiff, because he is from New Zealand, into a situation where he could be discriminated against, that would be actionable under Title VII. No such allegations were made, however, nor proof presented thereof; in fact, that scenario seems rather absurd.


author: KINNEARY, District Judge.

text:
    J.V. PETERS & COMPANY, INC., Plaintiff, v. HAZARDOUS WASTE FACILITY APPROVAL BOARD, et al., Defendants.
    No. C-2-82-1365.
    United States District Court, S.D. Ohio, E.D.
    Nov. 15, 1984.

      Brent L. English, Cleveland, Ohio, for plaintiff.
    E. Dennis Muchnicki, Rita S. Eppler, Adam J. Wagenbach, Asst. Attys. Gen., Columbus, Ohio, for defendants.
   OPINION AND ORDER

KINNEARY, District Judge.

This matter comes before the Court to consider the cross-motions for summary judgment of the plaintiff and the defendants. Included within the argument in support of its motion for summary judgment, the defendants contend that the Court should abstain from considering the merits of this action at this time. Upon its own motion and apart from the cross-motions for summary judgment which it will not consider herein, the Court concludes that defendants’ contention as to abstention is well-taken. Accordingly, for the reasons that follow, the Court decides to abstain.

Plaintiff, J.V. Peters & Company, Inc., brought this action against the Ohio Hazardous Waste Facility Approval Board (the “Board”), its individual members and the former Attorney General of Ohio. Plaintiff alleges that Ohio Revised Code § 3734.-05(D), which governs the granting of operation permits for existing hazardous waste facilities, is unconstitutionally vague and operates to deny it due process of law. Plaintiff further alleges that the actions of defendant Board in connection with its application for a permit denied it due process and equal protection of the laws. Plaintiff seeks injunctive and declaratory relief as well as monetary damages for injury to its business.

Plaintiff is the successor corporation to a partnership that began business in June, 1980, managing a hazardous waste storage and treatment facility in Geauga County, Ohio. Plaintiff’s facility included two large storage tanks and a mixer used to treat liquid wastes. At the time plaintiff’s facility was established, plaintiff was required by then-existing Ohio Revised Code § 3734.02(E) to obtain a permit prior to installation and operation of its facility. In addition, several other permits were required under Ohio law. Plaintiff operated until May 29, 1981 without any of the required permits. On May 29, 1981, an order was entered against plaintiff in the Court of Common Pleas of Geauga County, temporarily restraining plaintiff from operating his facility without permits. On December 9, 1982, this order was made permanent.

On October 9,1980, the Board was created and vested with authority to regulate operations and sitings of hazardous waste facilities. Plaintiff’s facility was subject to this regulation, and plaintiff was required to obtain a permit from the Board. On March 16, 1981, plaintiff timely applied for a permit under the grandfather provision of Ohio Revised Code § 3734.05(D). In relevant part, this provides:

Upon receipt of a completed application, the board shall issue a hazardous waste facility installation and operation permit ... if the facility for which the permit is requested
(a) Was in operation immediately prior to the effective date of this revision;
(b) was in substantial compliance with applicable statutes and rules in effect immediately prior to the effective date of this division as determined by the director;
(c) demonstrates to the board that its operations after the effective date of this division will comply with applicable performance standards ...; and
(d) submits a completed application for a permit ... within six months after the effective date of this division. The board shall act on the application within twelve months after the effective date of this division.

Oh.Rev.Code § 3734.05(D)(1). Plaintiff’s application was reviewed by the staffs of the Ohio Environmental Protection Agency and the Board. This review included inspections of plaintiffs facilities. On August 25, 1981, the Ohio Environmental Protection Agency recommended denial of the permit due to numerous violations found on the site. On September 14, 1981, the staff of the Board also recommended that the permit be denied. Both recommendations were based upon the conclusion that plaintiff was not in substantial compliance and was involved in litigation with the Ohio Attorney General at the request of the Ohio Environmental Protection Agency.

On September 15,1981, the Board met to consider plaintiffs application for a permit, among other business. Plaintiff was represented by its President and counsel. Counsel was granted permission to address the Board and stated plaintiffs position. The Board voted unanimously, one member abstaining, to accept the staff recommendations and deny plaintiff a permit due to lack of substantial compliance. Plaintiff, through counsel, demanded that an adjudication hearing be held before October 9, 1981. Plaintiff contended before the Board that a hearing prior to October 9, 1981 was necessary to avoid violation of its due process rights.

By a letter dated November 11, 1981, plaintiff was given official notice of the denial of the application for a permit and advised of its right to request an adjudication hearing. The notice detailed the grounds upon which plaintiffs application was denied. By a letter dated December 4, 1981, plaintiff requested a hearing upon certain issues, including whether it was in substantial compliance on October 9, 1980, whether it would be in substantial compliance after October 9,1981, and other procedural matters. A hearing was set for January 28, 1982. The hearing has never been held due to a number of continuances. This lawsuit was filed on December 30, 1981.

I.

Having considered the arguments of the parties, this Court is of the opinion that this is a case in which it has a duty to abstain under the doctrine of Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). In its classical formulation, Burford-type abstention is required when a federal court is presented with a case involving basic matters of state policy, complicated by nonlegal considerations of a local nature and where the state has specially concentrated all review of administrative orders in a single court. See also Alabama Public Service Comm’n v. Southern Ry. Co., 341 U.S. 341, 71 S.Ct. 762, 95 L.Ed. 1002 (1951). Subsequent decisions of the Supreme Court sanction Bur-ford-type abstention in cases where the state has a unified scheme for review of its administrative orders and federal intervention “would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.” Colorado River Water Conservation District v. United States, 424 U.S. 800, 814, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976); see generally Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 4244.

In Forest Hills Utility Co. v. City of Heath, Ohio, 539 F.2d 592 (6th Cir.1976), the Sixth Circuit upheld the decision of this Court to abstain from deciding constitutional claims arising out of a state condemnation proceeding in reliance upon Burford v. Sun Oil Co., supra. The Sixth Circuit, citing Gay v. Board of Registration Commissioners, 466 F.2d 879 (6th Cir. 1974) and Muskegon Theatres v. City of Muskegon, 507 F.2d 199 (6th Cir.1974), discussed the factors that are relevant to a decision to abstain. First, abstention may be proper where a premature constitutional decision might be avoided by a possible narrowing construction of the state law by a state court. But see Colorado River Water Conservation District v. United States, supra, 424 U.S. at 815 n. 21, 96 S.Ct. at 1245 n. 21. Second, abstention is also appropriate where it is necessary to avoid a needless conflict in the federal-state relationship. Third, federal courts should avoid making tentative decisions on issues of state law. And fourth, abstention is justified by the avoidance of unnecessary interference with state functions or regulatory schemes. Id. at 595. The Court also noted that abstention is particularly appropriate in eases involving disputes over land use. Id. at 595; see also Wright, Miller and Cooper, supra, § 4244.

First, it is undeniable that the instant case involves a challenge to a statutory scheme and the authority of a Board specially created to deal with a matter of substantial public importance. In Clermont Environmental Reclamation Co. v. Wiederhold, 2 Ohio St.3d 44, 442 N.E.2d 1278 (1982), the Ohio Supreme Court described the statutory scheme as follows:

In response to a rapidly growing public health problem in Ohio, the General Assembly, in 1980, enacted a comprehensive measure, by way of Am.S.B. No. 269, to more effectively control the disposal of hazardous wastes, such wastes generally being the chemical by-products of the industrial and manufacturing process. With the aim and purpose of reasonably assuring that the facilities in the state where hazardous wastes would be disposed or would be designed, sited, and operated in such a manner so as to protect the public interest, the General Assembly amended R.C. Chapter 3734.
By virtue of the enactment of R.C. 3734.-05(D)(3), there was created a Hazardous Waste Facility Approval Board composed of the Director of Environmental Protection who serves as chairman, the Director of Natural Resources, the chairman of the Ohio Water Development Authority, one chemical engineer and one geologist. The board’s main function is to review, and either approve or disapprove, applications for hazardous waste facility installations and operation permits.
To reasonably assure that the newly formed board would site the hazardous waste facilities in the most feasible fashion based upon an input of wide consideration and criteria, the General Assembly, by way of R.C. 3734.05(C)(4)(c) and (d), provided that adjudicatory hearings must be conducted upon such applications for permits with the county commissioners and the chief executive officer of the municipal corporation in which the facility is proposed to be located, and any petitioning aggrieved or adversely affected persons being made parties to such proceeding.

Id. 2 Ohio St.3d at 45-6, 442 N.E.2d 1278. In addition, the power of the Board to regulate and approve hazardous waste facilities preempts the power of any political subdivision to impose any zoning or other requirement. Ohio Rev.Code § 3734.-05(D)(3).

It is apparent to the Court that the statutory scheme is designed to concentrate decision-making concerning hazardous waste facility siting in one proceeding. It is also apparent that the Board is to have authority to consider the many health and safety ramifications of hazardous waste facilities in determining whether to issue permits for such facilities. The granting or denying of permits is the Board’s central function. The Act also balances the interests of the State against those of local governments: local government officials are to be parties to adjudicatory hearings under the Act, but independent local power is preempted. These substantial local interests caution against federal intervention in a case involving an operating permit.

Second, it is clear to this Court that entertaining the present case on its merits would tend to interfere with the review process created by state law and consequently with the formulation of uniform state policy. As noted above, chapter 3734 creates a special procedure for adjudication hearings in which the applicant, the staff of the Ohio Environmental Protection Agency, local officials and other aggrieved persons are made parties. See Ohio Rev. Code § 3734.05(C)(3). Review of decisions of the Board is confined to one court, the Franklin County Court of Appeals. Ohio Rev.Code § 3734.05(C)(7). The fact that the state has created a special review process weighs heavily in favor of abstention. See Burford v. Sun Oil Co., supra, 319 U.S. at 325-330, 63 S.Ct. at 1103-1105. In the present case, plaintiff has by-passed the review process, in part, by filing the present action.

Third, if this Court were to consider the present case on its merits, it would inevitably be drawn into interpreting new and complex state law. Although plaintiff characterizes his claim as one to redress deprivation of constitutional rights, important questions of state law inevitably will arise. For instance, plaintiff contends that the failure of the Board to hold an adversary hearing prior to October 10, 1981 deprived it of procedural due process. This contention presupposes that plaintiff had a protected property interest in the conduct of its business. But, whether plaintiff has such an interest depends upon state law. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). Thus, to determine whether plaintiff had a protected property interest, this Court would have to determine whether plaintiff was legally in operation prior to the actions of the Board. This Court has no special competence in interpreting state laws regulating the siting of hazardous waste facilities. In addition, due to the newness of the statute, there are few state court decisions to guide such an interpretation.

Fourth, this case involves, in substance, questions regarding land use. Questions of rights in land and land use have been considered especially appropriate for abstention. Muskegon Theatres, Inc. v. City of Muskegon, supra; Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058 (1959); Martin v. Creasy, 360 U.S. 219, 79 S.Ct. 1034, 3 L.Ed.2d 1186 (1959).

For these reasons, the Court concludes that exercise of its jurisdiction would unduly interfere with the formulation of a uniform state policy in an area that is traditionally the concern of the states, and therefore resolves to abstain from considering the merits of this action. Of course, by so doing, the Court expresses no view regarding the merits of this action.

II.

Normally, when Burford-type abstention is appropriate, the action is dismissed by the federal court. Burford v. Sun Oil Co., supra, 319 U.S. at 334, 63 S.Ct. at 1107. However, dismissal is not the invariable result. See e.g., Kaiser Steel Corp. v. W.S. Ranch Co., 391 U.S. 593, 88 S.Ct. 1753, 20 L.Ed.2d 835 (1968). The Sixth Circuit has stated that the “better practice” is for the district court to retain jurisdiction pending the final outcome of the state proceedings, particularly where the latter might not fully dispose of all the claims. Forest Hills Utility Co. v. City of Heath, Ohio, supra, at 596.

In the instant case, simple dismissal does not seem appropriate. Plaintiff has alleged several violations of constitutionally protected rights. Although the Court has not considered the merits of these constitutional claims, conceivably they are meritorious. It appears from the Prehearing Conference Report, filed with the Court as Plaintiffs Exhibit 22, that plaintiff might not be able to present his constitutional claims in an adjudication hearing before the Board. Moreover, Ohio Revised Code § 3734.-05(C)(7) provides that in an appeal from the Board

... the court is confined to the record as certified to it by the board. The Court may grant a request for the admission of additional evidence when satisfied that the additional evidence is newly discovered and could not with reasonable diligence have been ascertained prior to the hearing before the board.

Thus, it is possible that plaintiff’s constitutional claims could not be presented to the state courts. Thus, this Court will retain jurisdiction solely for the purpose of providing a federal forum in the event that plaintiff cannot present his constitutional claims in the state proceedings.

III.

Plaintiff seeks not only injunctive and declaratory relief but also damages from defendants for economic losses and loss of goodwill. Ordinarily, actions for damages are not appropriate cases for abstention, for they tend not to interfere with the formulation of state policy to the extent that actions for equitable relief do. In the present case, however, plaintiff’s claim for damages is intertwined with his claim for equitable relief, and would involve many of the same issues. Unlike the claim for damages in Forest Hills Utility Co. v. City of Heath, Ohio, supra, at 596, plaintiff’s claim for damages cannot be said to be “separate” from his claim for injunctive relief. In consequence, this Court concludes that it would be improper to entertain plaintiff’s damages claims.

WHEREFORE, upon consideration and being duly advised, this Court determines in its equitable discretion that it will ABSTAIN from considering the merits of this case and, therefore, orders that this case be STAYED while plaintiff presents his claims for administrative determination and judicial review in the state courts. The Court will, however, retain jurisdiction over this action pending final outcome of the state proceedings, for the purpose of providing a forum for plaintiff’s constitutional claims in the event that these cannot be adequately presented in the state proceedings.

IT IS SO ORDERED.

      . Ohio Revised Code § 3734.05(D)(2) provides, in part: "A hazardous waste facility that was in operation immediately prior to the effective date of this division may continue to operate after the effective date of this division if it ... obtains the permit under division (C) of this section within twelve months after the effective date of this division.”


author: KANE, District Judge.

text:
    Phyllis GLEASON, Plaintiff, v. The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF WELD; Chuck Carlson, John T. Martin, Norman Carlson, Gene Brantner, and Jacqueline Johnson, in their capacity as members of the Board of County Commissioners; and Dr. Ralph Wooley, Defendants.
    Civ. A. No. 83-K-2438.
    United States District Court, D. Colorado.
    Nov. 20, 1984.

      Henry C. Frey, Greeley, Colo., for plaintiff.
    Thomas O. David, Weld County Atty., Greeley, Colo., for defendants.
   MEMORANDUM OPINION AND ORDER

KANE, District Judge.

This civil rights action was brought pursuant to 42 U.S.C. § 1983 by a nurse at Weld County Health Department alleging that the Board of County Commissioners and Dr. Wooley, the director of the Weld County Health Department, deprived her of due process rights under the Fourteenth Amendment to the United States Constitution by dismissing her in violation of established provisions of the Weld County Personnel Policy Manual. Plaintiff also asserts three state law claims and alleges that this court has jurisdiction over such claims based upon the doctrine of pendent jurisdiction.

The three state law claims are based upon a miscellany of legal theories which have recently arisen in the area of employee discharge cases. These claims are: alleged breach of an express or implied contract arising under the provisions of the Weld County Personnel Policy Manual; alleged breach of implied covenant of good faith and fair dealing arising under the policy manual; and wrongful discharge for termination in tortious violation of the procedures set forth in the policy manual.

Defendants have moved to dismiss both the federal and state claims. They argue that the policy manual does not constitute an expressed or implied contract which gives rise to an enforceable right. Also, defendants assert that the tort of wrongful discharge is limited to specific circumstances which are not present in this case. Finally, they attack the section 1983 claim, contending that plaintiff has no property interest in continued employment as director of the health department. Because I decline to exercise jurisdiction over the pendent state claims, the need to respond to defendants’ arguments is obviated.

PENDENT CLAIM JURISDICTION

As noted in United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), a federal court may exercise pendent jurisdiction of the state claim if the federal claim is “substantial,” if the state claim arises out of the same “nucleus of operative facts” as does the federal claim, and if the nature of the claim is so related that a plaintiff would ordinarily be expected to try all claims in the same proceeding. Plaintiff’s state claims have met the three prongs of the Gibbs threshold test.

Assuming power to adjudicate, the Supreme Court, in Gibbs, identified several factors which must be considered in deciding whether to exercise pendent jurisdiction. The factor which applies to the case at bar is that discretion to dismiss state claims should be exercised when a “surer-footed” reading of the applicable state law can be obtained in the state court. Gibbs, 383 U.S. at 727, 86 S.Ct. at 1139. As a matter of comity, unsettled areas of state law are best left to state courts for resolution and refinement. Id.

In this case, abstention is appropriate because the Colorado law on employee discharge claims founded upon contract or tort theories is unsettled and in an early stage of development. In Salimi v. Farmers Insurance Group, 684 P.2d 264 (Colo.App.1984), the court acknowledged that an employer’s distribution to employees of policy manuals which contain specific procedures may result in the employer becoming contractually bound by these procedures. However, the Colorado courts have not decided whether an employee manual may provide a “good cause” exception to the rule that an indefinite general hiring is terminable at will. See Corbin v. Sinclair Marketing, 684 P.2d 265 (Colo. App.1984) (expressly declining to address this issue because the complaint did not contain sufficient allegations).

In addition to requesting interpretation in an unsettled area of state law, plaintiff asks that I expand employee rights in Colorado by reading into employment contracts an implied duty to terminate in good faith. Further, plaintiff asks that I expand the tort of wrongful discharge ennunciated in Lampe v. Presbyterian Medical Center, 590 P.2d 513 (Colo.App.1978) to include situations where violations of employer manual procedures occur.

Because of the newly-developed modifications on the long-standing employment at will doctrine and because of the split of authority among other courts, I find that the issues raised by the pendent claims should be addressed first by the Colorado state courts. It is not my province to expand the tort law of Colorado. Property interests are not limited by rigid or technical definitional forms but rather are shaped by state law. Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976). Thus, I decline to exercise jurisdiction over plaintiff’s three state claims. The state law claims are dismissed.

Accordingly, IT IS ORDERED that the plaintiff’s claims for breach of implied and express contract, breach of implied covenant of good faith and fair dealing and tort action for wrongful discharge are dismissed. The motion to dismiss the section 1983 claim is denied.

      . The particular provisions which plaintiff relies upon are:
      Section 9.2, which requires that disciplinary actions are to be corrective in nature whenever possible, and
      Section 9.2.2 which states that disciplinary action is to be for “cause.”
      Section 9.2.3 which defines "cause" and sets forth the grounds for disciplinary action.
      Section 9.3 et seq. which provide that warnings shall precede the exercise of disciplinary action and that whenever possible sufficient time for improvement of conduct should precede further discipline.
      Section 9.3.6 which provides that an employee may be placed on probation for a six month period for cause after being notified in writing.
      Section 2.11.1 which provides that a counselling form must be used to document reprimands.

      . See Ritter v. Colorado Interstate Gas Co., 593 F.Supp. 1279 (Colo.1984) for a discussion of the current state of the law in Colorado in employment discharge cases.

      . In Lampe, the court held that under special circumstances or with an express stipulation as to the duration of employment, a cause of action under the tort of wrongful discharge may exist. Id. at 514.


author: CALDWELL, District Judge.

text:
    Robert GALLOWAY, Jr., Plaintiff, v. UNITED PARCEL SERVICE, INC., Defendant.
    Civ. A. No. 84-0147.
    United States District Court, M.D. Pennsylvania.
    Nov. 20, 1984.

      Spero T. Lappas, Harrisburg, Pa., for plaintiff.
    Martin Wald, Frank C. Sabatino, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., for defendant United Parcel Service.
   MEMORANDUM

CALDWELL, District Judge.

I. Introduction

Before the court is defendant’s motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons contained herein, the motion is granted.

II. Background

The uncontroverted facts in this case indicate that Robert Galloway, Jr., the plaintiff, was employed by defendant United Parcel Service (UPS) at its Harrisburg facility from August, 1973, to October, 1980, at which time plaintiff was discharged. Defendant has maintained that plaintiff’s discharge was grounded in his arrest on May 31, 1980, on various charges that ultimately resulted in his plea of guilty on October 29, 1980, to loitering, prowling, and resisting arrest. Plaintiff was suspended from employment between June 4 and June 17, 1980, and after he was sentenced to six to twenty months in prison to commence immediately upon his guilty plea, he was discharged on October 31, 1980.

The current action was filed under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000-5e, et seq., and plaintiff alleges that he was discharged from his employment with UPS on the basis of his race. Galloway contends that defendant UPS treated another employee differently because of race and avers that while that employee was incarcerated, he was on work release and worked at the defendant’s facility.

Depositions have been taken of plaintiff Galloway and three UPS supervisors, Robert C. Allison, Willie James Kelly and Dannie William DeBiase. In addition, UPS has answered written interrogatories and a request for the production of documents.

III. The Summary Judgment Motion

The standard for granting summary judgment is contained in Federal Rule of Civil Procedure 56(c), which provides in pertinent part:

The judgment sought shall be rendered forthwith 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 and that the moving party is entitled to a judgment as a matter of law.

In ruling on a motion for summary judgment, the court’s duty is to view facts contained in the moving party’s materials in the light most favorable to the party opposing the motion. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142, 155 (1970).

In discrimination cases, summary judgment for defendants is seldom granted.

Courts are reluctant to dismiss by summary judgment Title VII discrimination suits where, as in antitrust actions, motive and intent are crucial elements and the proof is in the hands of the alleged wrongdoers.

Reed v. Lockheed Aircraft Corp., 613 F.2d 757, 759 (9th Cir.1980). Nevertheless, “the fact that motive is often the critical issue in employment discrimination cases does not mean that summary judgment is never an appropriate vehicle for resolution.” International Woodworkers of America, AFL-CIO, GLC v. Chesapeake Bay Plywood Corporation, 659 F.2d 1259, 1272 (1981) (emphasis in original).

To maintain a discrimination action under Title VII, the plaintiff must first prove a prima facie case of disparate treatment. If the proof is successful, the burden shifts to the defendant employer “to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207, 215 (1981), quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). Finally, should the defendant carry this burden, the plaintiff must then be given an opportunity to prove that defendant’s legitimate reasons were a pretext for discrimination, and not its true reasons. Id. See also Craig v. Y & Y Snacks, Inc., 721 F.2d 77, 79-80 (3d Cir.1983).

Throughout the action, only the burden of production shifts. The burden of persuasion remains with plaintiff. Behring International, Inc. v. NLRB, 675 F.2d 83, 89 (Fed.Cir.1982). See also Reichman v. Bureau of Affirmative Action, 536 F.Supp. 1149 (M.D.Pa.1982), which adopts the McDonnell Douglas (and thus the Bur-dine) model to a case of employment termination: “The facts necessary to establish a prima facie case of racial discrimination are flexible in Title VII cases and will vary to reflect the differing circumstances of each situation.” 536 F.Supp. at 1171.

Viewing the record before us, we cannot perceive how Galloway could satisfy his burden as set forth in the relevant decisions and make out a prima facie case of disparate treatment. Plaintiff’s sole claim is that a white employee, one Finsterbush, was permitted to continue in his employment while incarcerated, but that Galloway was not. However, the record shows that Finsterbush was incarcerated in 1976 for thirty days and missed only one day of work. In contrast is Galloway’s incarceration for a period of six months. A four-year interval between the incidents, coupled with the difference in sentences compels our conclusion that the two incidents are unrelated and do not show a discriminatory pattern or purpose in defendant’s termination practices. In addition, Galloway’s case can also be distinguished by a customer complaint arising from the adverse publicity generated by Galloway’s arrest.

Moreover, even if plaintiff has somehow made out a prima facie case of disparate treatment, the employer has given legitimate reasons for terminating Galloway’s employment, which the plaintiff has failed to rebut. The first reason is Galloway’s failure to comply with the UPS call-in procedure to report his absence from work on June 2-3, 1980, to his immediate supervisor, a violation that Galloway does not dispute. A second reason advanced by UPS for Galloway’s discharge is the employer’s policy not to allow an incarcerated employee to remain employed while in jail. It is disputed whether UPS knew of Finsterbush's incarceration; however, even if it did not, Finsterbush did not violate the company’s call-in rules, nor did he miss work as a result of his incarceration, as did Galloway.

A number of courts have held that an employee’s termination was for a valid, nondiscriminatory reason in fact situations similar to the present case. See, e.g., Garner v. St. Louis Southwestern Ry. Co., 676 F.2d 1223 (8th Cir.1982) (discharge for damage to company’s reputation and arrest for rape does not violate Title VII of Civil Rights Act) and Boner v. Board of Commissioners of Little Rock Municipal Water Works, 674 F.2d 693 (8th Cir.1982) (disparate treatment of a white and a black employee nondiscriminatory because of their different work records). It is inconceivable to us that an employer engaged in the business of handling private property entrusted to it for shipment may not discharge an employee convicted of Galloway’s crimes, and who additionally violated company policy regarding absence from work.

The case of Fong v. American Airlines, Inc., 626 F.2d 759, 761-62 (9th Cir.1980), discussed the applicability of summary judgment to a situation in which a plaintiff employee failed to make out a prima facie case of discrimination and concluded that, since the plaintiff “failed to produce evidence sufficient to support a finding that caucasions, under similar circumstances, were treated more leniently than plaintiff, warranting an inference of a racially discriminatory motive for the discharge, summary judgment was proper. Id. at 762. See also Aquamina v. Eastern Airlines, Inc., 644 F.2d 506, (5th Cir.1981). We find this reasoning persuasive and directly applicable to the matter before us.

IV. Conclusion

Based on our review of the record, including depositions, documents, and answers to interrogatories, we conclude that no genuine issue of material fact exists and that summary judgment for UPS is therefore appropriate. Galloway has failed to make out a prima facie case of discriminatory discharge and to rebut the employer’s legitimate, nondiscriminatory reasons for plaintiff's termination. An appropriate order will be entered.

      . Finsterbush was placed on some type of work release program. Although there is a dispute whether UPS was aware of this arrangement, it is undisputed that no such program was established for Galloway.