author: GOETTEL, District Judge:

text:
    MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as Executor Under the Will of Charles F. Fogarty, Deceased, Plaintiff, v. The GARRETT CORPORATION, Colt Electronics Co., Inc., Phoenix Aerospace, Inc., and Lockheed Corp., Defendants. MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as Executor Under the Will of Charles F. Fogarty, Deceased, Plaintiff, v. TEXASGULF AVIATION, INC., Defendant.
    Nos. 82 Civ. 0816(GLG), 82 Civ. 3640(GLG).
    United States District Court, S.D. New York.
    Jan. 6, 1986.

      Kreindler & Kreindler, New York City, for plaintiff; Milton G. Sincoff, Steven R. Pounian, of counsel.
    Townley & Updike, New York City, for Texasgulf Inc. and Texasgulf Aviation, Inc.; Frederick D. Berkon, of counsel.
    Perkins, Coie, Stone, Olsen & Williams, Seattle, Wash., for defendant Garrett Corp.; Sherilyn Peterson, Keith Gerrard, of counsel.
    Haight, Gardner, Poor & Havens, New York City, for defendants Garrett, Colt, and Phoenix; Randal R. Craft, Jr., of counsel.
   OPINION

GOETTEL, District Judge:

The plaintiff moves for reargument or reconsideration of this Court’s May 8, 1985, decision regarding the admissibility of certain evidence. The plaintiff also moves for the application of Connecticut law to the issue of damages. For the reasons stated below, we deny the motion to reargue or reconsider and decline to apply Connecticut law to the issue of damages.

I. BACKGROUND

These two actions, and numerous others, arise from the tragic crash of a private aircraft near the Westchester County Airport in February 1981. All six passengers and two crew members died in the accident. The plaintiff, Morgan Guaranty Trust Company of New York (“Morgan”), is the executor of the estate of Charles F. Fogarty (“Fogarty”), one of the six passengers. Fogarty and his fellow passengers were employees of Texasgulf Inc. (“Texas-gulf”), a Texas corporation with its principal place of business in Connecticut. The two crew members were employed by Texasgulf Aviation, Inc. (“TGA”), a Delaware corporation with its principal place of business in New York. TGA, which owned and operated the aircraft, is a wholly-owned subsidiary of Texasgulf.

Texasgulf and TGA filed the initial action in this district, seeking damages for loss of the aircraft, against the corporations that designed, manufactured, sold, installed, maintained, or inspected the critical components whose failure partially caused the crash. These defendants (hereinafter referred to collectively as the “product defendants”) were (1) Lockheed Corporation (“Lockheed”), which designed and manufactured the airplane that crashed; (2) Phoenix Aerospace, Inc. (“Phoenix”), an Arizona corporation that designed and manufactured certain equipment whose malfunction was partially responsible for the plane crash; (3) Colt Electronics Co. (“Colt”), a Kansas corporation that adapted the Phoenix equipment for use in the aircraft that crashed; and (4) The Garrett Corporation (“Garrett”), a California corporation, whose division, AiReasearch Aviation Company, located in Islip, New York, installed the equipment on the aircraft.

Shortly thereafter, the estates of the six passengers filed wrongful death actions in the Southern District of New York against the product defendants and TGA. The crew members’ estates brought similar actions against Texasgulf and the products defendants. The product defendants impleaded Texasgulf and TGA, asserting claims for contribution, in suits in which one or the other had not been sued directly. All the suits were consolidated for purposes of determining liability but not damages.

Texasgulf and TGA moved for summary judgment on two grounds. First, they contended that, as employers, they were immune from both direct and indirect claims under pertinent workers’ compensation laws. Second, they asserted that six plaintiffs had signed releases, relieving Texas-gulf and TGA of any tort liability or liability for contribution.

In deciding the summary judgment motion on the immunity issue, the Court was initially faced with a choice of law question. New York had an interest in applying its law since, in addition to being the forum state, it was also the site of the crash and much of the conduct precipitating it. The states of Connecticut and North Carolina had an interest in applying their law since two of the decedents were North Carolina domiciliaries and the others, including Fogarty, were Connecticut domiciliaries. After full consideration of New York’s choice of law rules, we applied New York law, concluding as follows:

A New York court, confronted with a tort claim based upon events and conduct occurring primarily in New York and knowing the striking stand taken in Dole [v. Dow Chemical Co., 30 N.Y.2d 143, 282 N.E.2d 288, 331 N.Y.S.2d 382 (1972)] on the issue of third party contribution, a position diametrically opposed to that of the majority of states, would have no hesitation in applying New York law here. Not to do so would be to undermine one of the primary purposes of New York’s rule, that is to deter tortious conduct by attributing liability and damages among joint tortfeasors in proportion to their relative responsibility for injuries and losses, regardless of whether one of the tortfeasors happens to be an employer. This rule after all is one that implements the “tort policy goals of deterrence, equitable loss sharing by all wrongdoers, effective loss distribution over a large segment of society, and rapid compensation of the plaintiff....” Id. at 150, 282 N.E.2d at 295, 331 N.Y.S.2d at 389 (quoting Werner, Contribution and Indemnity, 57 Cal.L.Rev. 490, 516 (1969)). Because Dole itself was a workers’ compensation case and because the rule it announced is in great part designed to deter tortious conduct, the Court does not see how in the instant case it can apply the opposite rule of Connecticut when New York has so many critical contacts with the parties and events in question.

Gregory v. Garrett Corp., 578 F.Supp. 871, 883 (S.D.N.Y.1983).

We denied the motion for summary judgment on both grounds, primarily because material issues of fact required a full evidentiary hearing. Id. at 886. See Gregory v. Garrett Corp., 578 F.Supp. 890, 893 (S.D.N.Y.1983) (denying summary judgment on the release issue). Thereafter, we granted a motion by Texasgulf and TGA for a trifurcated trial with the affirmative defenses of release and workers compensation immunity to be tried first, and the issues of liability and, if necessary, damages to be tried later. The affirmative defenses were tried to a jury for five weeks in spring 1984. In answering special interrogatories, that jury found, inter alia, that Texasgulf and TGA were separate entities, and that TGA, not Texasgulf, was the employer of the flight crew and operator of the aircraft that crashed. Since only TGA employed the crew members, their estates could maintain direct claims against Texasgulf. Since only Texasgulf employed the passengers, their estates could maintain direct claims against TGA. Under New York law, the product defendants could pursue third-party claims for contribution against Texasgulf or TGA when either was not sued directly.

Several months later in 1984, the issue of liability was tried before another jury for a period of about ten weeks. The jury returned a verdict in favor of the plaintiffs, finding certain defendants liable in the following proportions: Texasgulf 70%, Garrett 20%, Colt and Phoenix 5% each, and Lockheed not liable.

The final stage in these proceedings will be separate damage trials for each plaintiff. Prior to the damage trials, the parties have sought rulings on numerous in li mine evidentiary matters. The instant motions seek reargument or reconsideration of one in limine ruling as well as’ application of Connecticut law to the issue of damages.

II. DISCUSSION

A. Motion to Reargue or Reconsider

The in limine motion at issue sought to exclude evidence of three separate payments made to the plaintiffs — a pension benefit, a survivorship benefit, and a bonus plan payment. Our ruling regarding each payment was guided by the “collateral source doctrine,” which provides that a defendant cannot reduce its liability by showing that a plaintiff received benefits from another source. Morgan Guaranty Trust Co. v. Texasgulf Aviation, Inc., No. 82-3649, slip op. at 2 (S.D.N.Y. May 8, 1985). However, the collateral source doctrine does not bar evidence offered to show that the identical payment claimed as lost was in fact paid. This was the issue regarding the pension payment. We held that evidence of the pension plan payment was admissible to rebut a claim of lost support from allegedly lost pension benefits. Id. at 6-7. We found the survivorship benefit to be similar to a death benefit. The right to this payment arose from services rendered by the decedent. It vested on his first day of employment and was paid only because the employee died before retirement. We held that evidence of this payment was inadmissible under New York law since it was a benefit for previously extended consideration. Id. at 4. We reserved for the jury the factual question of whether the bonus payment was gratuitous or obligatory. Under New York law, evidence of a payment made gratuitously would be admissible. Id. at 3-4. See Cunningham v. Rederiet Vindeggen, 333 F.2d 308, 316 (2d Cir.1964).

The plaintiff moves for reargument or reconsideration of our May 8, 1985, decision on two grounds. First, it contends that permitting evidence of some of these payments to go to the jury was incorrect under New York law. Second, it proposes that a recent New York Court of Appeals decision, Schultz v. Boy Scouts of America, Inc., 65 N.Y.2d 189, 480 N.E.2d 679, 491 N.Y.S.2d 90 (1985), compels the application of Connecticut rather than New York law to that in limine evidentiary issue.

Local Rule 3(j) of the Rules of Civil Procedure for the Southern District of New York requires a party seeking reargument to set forth any matters or controlling decisions overlooked by the court. Other than the Schultz case, the plaintiff has cited no authority or controlling decisions overlooked by this Court. A request for reargument is not an occasion to reassert arguments previously raised, but dismissed by the court. See Rosen v. Dick, 83 F.R.D. 540, 544 (S.D.N.Y.1979), modified on other grounds, 639 F.2d 82 (2d Cir.1980). Even assuming, arguendo, that the Court “overlooked” Schultz, that case does not alter our earlier decision. As discussed at length below we find nothing in Schultz requiring the application of Connecticut law to the issue of damages in these cases. In view of this, it would be inappropriate to apply Connecticut law to an in limine evidentiary decision that will affect proof of damages. Accordingly, we deny the plaintiffs motion for reargument or reconsideration in its entirety.

B. Motion for Application of Connecticut Law

In a diversity action, a federal court must apply the substantive law of the state in which it sits. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Since choice of law rules are substantive, we must apply the law that a New York State court would apply. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941). Schultz is the most recent pronouncement of New York’s highest court regarding choice of law issues. The instant motions require us to decide whether Schultz mandates application of Connecticut law to the damage issues in these cases, including those presented by certain in limine motions.

Defendants and third-party plaintiffs Texasgulf and TGA take no position regarding the application of Connecticut law to the issue of damages. However, they argue that, should this Court determine that Connecticut law governs damages, Connecticut law should be applied retroactively to the issue of workers’ compensation immunity. Our holding infra that New York, rather than Connecticut, law is applicable to the issue of damages in these cases effectively moots this argument.

1. The Schultz case.

The plaintiffs in Schultz were New Jersey residents. They brought suit in New York against the Boy Scouts of America, a New Jersey domiciliary, and the Franciscan Brothers of the Poor, an Ohio domiciliary. The plaintiffs were the parents of two young boys who had been sexually abused by the boys’ teacher and scoutmaster, employed by the defendants. The parents also asserted a claim for the wrongful death of one son who subsequently committed suicide.

The plaintiffs had commenced a similar action in New Jersey against the Roman Catholic Archdiocese of Newark. That action was dismissed based upon New Jersey’s Charitable Immunity Statute, N.J. Stat.Ann. § 2A:53A-7 (West Supp. 1985). The defendants in the New York action moved for summary judgment, which was granted on the ground that New Jersey law was applicable. New Jersey’s immunity statute barred suit against the Boy Scouts and the Franciscan Brothers as it had against the Roman Catholic Archdiocese; the plaintiffs were collaterally es-topped from relitigating the New Jersey court’s interpretation of New Jersey law. The plaintiffs appealed the dismissal of the New York action, urging the court to apply New York law, which no longer recognizes charitable immunity. The Appellate Division affirmed the dismissal. Schultz v. Boy Scouts of America, Inc., 102 A.D.2d 100, 476 N.Y.S.2d 309 (1st Dep’t 1984). The plaintiffs then appealed to the New York Court of Appeals, which again considered whether the appropriate choice of law should be that of the parties’ domicile or of the forum and locus of at least some of the tortious conduct.

The New York Court of Appeals actually considered two choice-of-law situations in Schultz — a “common-domicile” and a “split-domicile” situation. The plaintiffs and defendant Boy Scouts were both New Jersey domiciliarles. However, defendant Fransciscan Brothers was an Ohio domiciliary. The allegedly tortious conduct and injuries occurred in New York and New Jersey. With respect to both defendants, the Court of Appeals affirmed the Appellate Division and applied New Jersey law. Schultz, supra, 491 N.Y.S.2d at 92.

The Schultz court reviewed the history of choice of law in New York. Initially, choice of law was governed by the locus of the tort. However, in Babcock v. Jackson, 12 N.Y.2d 473, 191 N.E.2d 279, 240 N.Y.S.2d 743 (1963), the New York Court of Appeals abandoned this inflexible rule in favor of an analysis that balanced the interests of the various jurisdictions. Under Babcock, the law to be applied to resolve a particular issue is “the law of the jurisdiction which, because of its relationship or contact with the occurrence or the parties, has the greatest concern with the specific issue.” Id. at 481, 191 N.E.2d at 282, 240 N.Y.S.2d at 748. In determining which jurisdiction has the greatest interest in a particular issue, the significant factors to consider are those relating to the underlying policy or “purpose of the particular laws in conflict.” Miller v. Miller, 22 N.Y.2d 12, 15-16, 237 N.E.2d 877, 879, 290 N.Y.S.2d 734, 737 (1968). See Tooker v. Lopez, 24 N.Y.2d 569, 574, 249 N.E.2d 394, 397, 301 N.Y.S.2d 519, 523 (1969) (citing Babcock, supra). As noted in Schultz, “[ujnder this formulation, the significant contacts are, almost exclusively, the parties’ domiciles and the locus of the tort.” Schultz, supra, 491 N.Y.S.2d at 95.

Recognizing that the balancing of interests approach was creating ad hoc determinations and uncertainty, the Court of Appeals sought to bring some predictability to the analysis. Chief Judge Fuld proposed several rules for resolving choice-of-law issues, at least in cases involving conflicting automobile guest statutes. Tooker v. Lopez, supra, 24 N.Y.2d at 585, 249 N.E.2d at 404, 301 N.Y.S.2d at 532-33 (Fuld, C.J. concurring). These rules were then adopted by a majority of the New York Court of Appeals in Neumeier v. Kuehner, 31 N.Y.2d 121, 286 N.E.2d 454, 335 N.Y.S.2d 64 (1972). The so-called Neumeier rules are as follows:

1. When the guest-passenger and the host-driver are domiciled in the same state, and the car is there registered, the law of that state should control and determine the standard of care which the host owes to his guest.
2. When the driver’s conduct occurred in the state of his domicile and that state does not cast him in liability for that conduct, he should not be held liable by reason of the fact that liability would be imposed upon him under the tort law of the state of the victim’s domicile. Conversely, when the guest was injured in the state of his own domicile and its law permits recovery, the driver who has come into that state should not — in the absence of special circumstances — be permitted to interpose the law of his state as a defense.
3. In other situations, when the passenger and the driver are domiciled in different states, the rule is rule of decision will be that of the state where the accident occurred but not if it can be shown that displacing that normally applicable rule will advance the relevant substantive law purposes without impairing the smooth working of the multistate system or producing great uncertainty for litigants.

Id. at 128, 286 N.E.2d at 457-58, 335 N.Y.S.2d at 70. Although the Neumeier rules focus on conflicting automobile guest statutes, the Schultz court applies them to other conflicts situations.

The rules in conflict in Schultz concerned New Jersey’s grant of charitable immunity, an immunity abolished under New York law. The court defined charitable immunity rules as “loss allocating” — rules affecting who bears a financial burden — rather than “conduct regulating” — rules affecting standards of conduct. When loss-allocation rules are in conflict and the parties are both domiciliarles of the one state, as were the plaintiffs and defendant Boy Scouts, the Schultz court found persuasive reasons for applying the law of the parties’ common domicile. This conclusion parallels the first Neumeier rule, which was derived from the facts of Babcock. However, since the Schultz facts presented. a “reverseBabcock” situation, the court did not simply apply the first Neumeier rule, but rather engaged in a full Babcock interest analysis. Schultz, supra, 491 N.Y.S.2d at 97. It concluded that applying the law of the parties’ common domicile when only loss-allocation rules were in conflict was appropriate because (1) it reduces forum shopping, since the same law will be applied whether the suit is brought in the state of common domicile or the locus jurisdiction; (2) it rebuts charges that the forum-locus is biased in favor of its own laws permitting recovery; and (3) it brings predictability and consistency to a confusing area of the law. Id. at 97-98.

The Schultz court then analyzed the choice of law relevant to defendant Franciscan Brothers, the so-called split-domicile situation. The Franciscan Brothers, an Ohio domiciliary, did not urge application of Ohio law. This, the Schultz court notes, was probably because Ohio offers only limited charitable immunity, which would have permitted suit on the facts in Schultz. Under these circumstances, the choice was between the law of New York and that of New Jersey. Schultz, supra, 491 N.Y.S.2d at 93. The Court of Appeals concluded that New Jersey law should apply. Id. at 98. In so finding, the Schultz court followed the third Neumeier rule, which provides that the law of the place of the tort will normally apply, unless displacing it “will advance the relevant substantive law purposes without impairing the smooth working of the multi-state system or producing great uncertainty for litigants.” Neumeier, supra, 31 N.Y.2d at 128, 286 N.E.2d at 458, 335 N.Y.S.2d at 70. The Schultz court found that displacing New York law was appropriate for several reasons. First, New Jersey had a substantial interest in encouraging charitable organizations doing business in New Jersey and in enforcing the plaintiffs’ decision to accept the burdens as well as the benefits of New Jersey’s loss-distribution tort rules. Applying New Jersey law would further this interest. On the other hand, New York had little interest in applying its law to the dispute in Schultz. The parties had only isolated and infrequent contacts with New York and, although no substantial law purpose of New York would be advanced by applying New Jersey law, none would be frustrated. Finally, the Schultz court found that applying New Jersey law would reduce the incentive for forum shopping and enhance the smooth working of the multi-state system, producing greater certainty for litigants. Id. 491 N.Y.S.2d at 98.

2. The Instant Choice of Law on Damages.

The plaintiff here contends that Schultz compels us to apply Connecticut law to the issue of damages because the decedent was domiciled in Connecticut and his widow and several of his children continue to reside there. The plaintiff’s argument is misguided. Schultz does not mandate that the domicile of a party is the controlling factor in determining the appropriate choice of law. Rather, when parties share the same domicile, the common domicile will usually have a more significant interest in applying its law than will the forum-locus state, at least when the conflicting law at issue is one of loss allocation rather than conduct regulation.

The “common-domicile" holding in Schultz is, however, inapplicable to the cases at bar because we are not dealing with a common-domicile situation. These cases involve a “split-domicile” situation, analogous to the facts regarding defendant Franciscan Brothers in Schultz. Therefore, only that part of the Schultz holding arguably applies here. As discussed, Schultz reaffirms applying the third Neumeier rule in a “split-domicile” situation. Thus, we must apply the law of the locus of the tort, New York, unless displacing it would advance some substantive law purpose of another jurisdiction. As discussed below, the plaintiff has demonstrated no substantive law purpose of Connecticut that would be advanced by displacing New York’s law. See Thomas v. Hanmer, 109 A.D.2d 80, 86, 489 N.Y.S.2d 802 (4th Dep’t 1985).

The wrongful death damage laws of New York and Connecticut differ in one significant respect. Connecticut permits recovery for two major elements of damages in a wrongful death action: (1) the value of decedent’s lost earning capacity less prospective personal living expenses and (2) the value of decedent’s lost enjoyment of life. See Feldman v. Allegheny Airlines, Inc., 524 F.2d 384, 386 (2d Cir.1975); Perry v. Allegheny Airlines, 489 F.2d 1349, 1351 (2d Cir.1974); Katsetos v. Nolan, 170 Conn. 637, 368 A.2d 172, 183 (1976). New York permits recovery only for the beneficiaries’ loss of financial support and prospective inheritance. See Parilis v. Feinstein, 49 N.Y.2d 984, 406 N.E.2d 1059, 1060, 429 N.Y.S.2d 165, 166 (1980); Odom v. Byrne, 104 A.D.2d 863, 480 N.Y.S.2d 247, 249 (2d Dep’t 1984); Gilliard v. New York City Health and Hospitals Corp., 77 A.D.2d 532, 430 N.Y.S.2d 308, 309 (1st Dep’t 1980). Recovery for a decedent’s lost earnings under Connecticut law, or survivors’ lost income under New York law, are likely to result in similar awards. Connecticut, however, allows an additional claim for the decedent’s “lost enjoyment of life,” a claim not allowed in New York.

New York courts have strictly construed the wrongful death statute, N.Y.Est.Powers & Trusts Law § 5-4.3 (McKinney 1984) (“EPTL”), to allow recovery only for pecuniary loss. See O’Rourke v. Eastern Air Lines, Inc., 730 F.2d 842, 850 (2d Cir.1984); Loetsch v. New York City Omnibus Corp., 291 N.Y. 308, 310, 52 N.E.2d 448 (1943). Accordingly, New York has consistently refused to allow recovery for such claims as mental or emotional suffering in wrongful death actions. See Garland v. Herrin, 724 F.2d 16 (2d Cir.1983); Campbell v. Westmoreland Farms, Inc., 403 F.2d 939 (2d Cir.1968); Slutsky v. Hospital for Joint Diseases, 10 Misc.2d 853, 854, 169 N.Y.S.2d 780, 781 (Sup.Ct.1957). This policy would be frustrated by allowing the speculative claims that might be asserted under Connecticut’s “loss of enjoyment of life” approach. See 9A R. Rohan, N.Y.Civ.Prac. U 5-4.3[3][b] at 5-458 n. 5 (1984). We note, however, that since New York permits recovery for prejudgment interest, see EPTL § 5-4.3, a factor not included in Connecticut wrongful death damages, it is possible that an award under New York law will be as great, or greater, than under Connecticut law.

Connecticut’s interest in these disputes is in promoting the financial welfare of its domiciliaries. Connecticut law calls for an award of “just damages.” Conn.Gen.Stat. Ann. § 52-555 (West 1960 & Supp.1985). Applying New York law will not frustrate this policy. New York’s law calls for “fair and just compensation.” EPTL § 5-4.3. We are not dealing with an archaic or anachronistic law that would drastically limit or eliminate a damage award. See O’Rourke v. Eastern Air Lines, Inc., supra, 730 F.2d at 850; O’Connor v. Lee-Hy Paving Corp., 579 F.2d 194, 205 (2d Cir.1978); Rosenthal v. Warren, 475 F.2d 438, 446 (2d Cir.1973); Walkes v. Walkes, 465 F.Supp. 638, 641-42 (S.D.N.Y.1979); Miller v. Miller, supra, 22 N.Y.2d at 18, 237 N.E.2d at 880, 290 N.Y.S.2d at 739; Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 40, 172 N.E.2d 526, 528, 211 N.Y.S.2d 133, 136 (1961). New York’s law permitting recovery for pecuniary loss will adequately ensure that Connecticut’s interest in compensating its domiciliaries will be satisfied. Walkes v. Walkes, supra, 465 F.Supp. at 642.

Finding no policy of Connecticut that will be advanced by applying Connecticut law, nor any Connecticut interest that will be frustrated by applying New York law, it is apparent that New York law should govern the damage issue in these cases. It is, in fact, New York rather than Connecticut that has substantial interests in applying its law to the issue of damages: (1) to determine the amount of any potential award against defendants either doing business or conducting business in New York, and (2) to discourage forum shopping. See Schultz, supra, 491 N.Y.S.2d at 98.

New York has a substantial interest in applying its law to regulate the conduct of those who do business within its borders. One aspect of this, although perhaps not central, is the amount of damages such a defendant must pay. See O’Rourke v. Eastern Airlines, Inc., supra, 730 F.2d at 850; W. Reese, Choice of Law in Torts and Contracts and Directions for the Future, 16 ColumJ.Trans.L. 1, 14 (1977). TGA, the defendant found primarily liable for the airplane crash, had its headquarters in New York and conducted most of its business, at that time, in New York state. All of the other defendants found liable (Garrett, Phoenix, and Colt), conduct business in New York and were sued with respect to actions taken here. The parties’ contacts with New York were not isolated and infrequent as in Schultz. TGA maintained a fleet of corporate jets for Texas-gulf at Westchester County Airport, New York. Any employees of Texasgulf traveling on corporate planes used that New York facility. Furthermore, with regard to the negligent conduct that caused the crash, the airplane management and operations decisions, along with the installation, testing, and maintenance of the defective equipment all occurred in New York. In sum, the interrelationship of all of the parties was centered in New York. See Gregory v. Garrett Corp., supra, 578 F.Supp. at 881-82 n. 13.

New York has a further interest in discouraging forum shopping. In these actions, the plaintiff brought suit on behalf of a Connecticut decedent in federal district court in New York. It has consistently argued, until now, that New York law applied. See Cousins v. Instrument Flyers, Inc., 44 N.Y.2d 698, 700, 376 N.E.2d 914, 915, 405 N.Y.S.2d 441, 443 (1978). Had the plaintiff brought suit in a district court sitting in Connecticut, that state’s choice of law rules would have compelled application of New York law to all substantive issues. See Halstead v. United States, 535 F.Supp. 782, 786, 788-89 (D.Conn.1982); Patch v. Stanley Works, 448 F.2d 483, 487 n. 7 (2d Cir.1971); Ritcher v. Childers, 2 Conn.App. 315, 478 A.2d 613, 614 n. 5 (1984). To grant the plaintiff’s motion and apply Connecticut law in this New York forum would condone forum shopping and impair “the smooth working of the multi-state system.” Neumeier, supra, 31 N.Y.2d at 128, 286 N.E.2d at 458, 335 N.Y.S.2d at 70. See Ramirez v. Pan American World Airways, Inc., Nos. 11585, 11587, 20797, 255/83, slip op. at 5 (Sup.Ct. Dec. 21, 1984), aff'd, 111 A.D.2d 602, 489 N.Y.S.2d 439 (1st Dep’t 1985).

In sum, since New York is the site of the accident and the tortious conduct causing the accident, the principal place of business of a primary defendant, and the plaintiff’s chosen forum, we believe that New York courts would apply New York’s wrongful death damage law to the facts of these cases.

III. CONCLUSION

. For the reasons discussed above, the plaintiff’s motions are both denied.

SO ORDERED.

      . The facts underlying these and other related cases are set forth in greater detail in this Court’s decisions in Gregory v. Garrett Corp., 578 F.Supp. 871 (S.D.N.Y.1983), and Texasgulf Inc. v. Colt Electronics Co., 615 F.Supp. 648 (S.D.N.Y.1984). See also Gregory v. Garrett Corp., 589 F.Supp. 296 (1984).

      . Although TGA is a wholly owned subsidiary of Texasgulf, the two corporations are separate entities, see infra p. 755, with separate corporate citizenship. The plaintiff suggests that, because Connecticut is the financial center of the parent corporation, Texasgulf, it should also be considered TGA's principal place of business. We reject this argument, having already held that TGA's principal place of business is New York. Transcript of Oral Argument on Motions for Application of Connecticut Law, June 20, 1985, at 7, 14. See Gregory v. Garrett Corp., supra, 578 F.Supp. at 881.

      . Claims were also filed against the United States of America, as responsible for the alleged negligence of the air traffic controllers at the Westchester County Airport. Under the Federal Tort Claims Act, 28 U.S.C. § 2402 (1982), the Court rather than a jury determined the Government’s liability. We found the United States in no way liable for the February 1981 crash. See Texasgulf Inc. v. Colt Electronics Co., supra, 615 F.Supp. at 662.

      . Because of the earlier findings that permitted direct suit against TGA and third-party claims against Texasgulf, these corporations were treated as a single entity for purposes of determining liability.

      . Our holding regarding the bonus plan payments does not preclude evidence offered to prove that a particular bonus payment claimed as lost was in fact paid, gratuitously or otherwise. See Transcript of Oral Argument, June 20, 1985, at 40. According to the defendants, the plaintiff has included within its claim for lost salary in 1981 a lost bonus payment for that year. The defendants contend that this allegedly "lost” bonus for 1981 was based on the company’s performance during 1980, and was in fact paid to Fogarty's estate post-mortem. Evidence of this particular bonus payment will be admissible.

      . The plaintiff notes that the decision in Schultz was published in the New York Law Journal two days prior to our May 8, 1985, decision. The plaintiff did not, however, call the Court’s attention to the New York Court of Appeals decision at that time. Nor did any party previously cite the Appellate Division decision, issued a year earlier, which the Court of Appeals affirmed. See Schultz v. Boy Scouts of America, Inc., 102 A.D.2d 100, 476 N.Y.S.2d. 309 (1st Dep’t 1984).

      . We note, however, that analysis of the workers’ compensation immunity issue in light of Schultz suggests even more compelling reasons for applying New York law to the immunity issue than to the damage issue. As discussed infra, Schultz is primarily concerned with choice of law when the rules in conflict deal with allocating loss. New York’s law on employer contribution is concerned with tort deterrence as well as loss allocation. See Gregory v. Garrett Corp., supra, 578 F.Supp. at 883. Schultz notes that when conflicting laws relate to standards of conduct, the law of the locus jurisdiction should take precedence because of the "admonitory effect that applying its law will have on similar conduct in the future.” Schultz, supra, 491 N.Y.S.2d at 956. New York’s strong policy of deterring tortious conduct by requiring all tortfeasors, including employers, to pay their share of damages gives precedence to applying New York law to the workers’ compensation immunity issue.

      . For extensive discussion of the development of choice of law principles in New York see Korn, The Choice-of-Law Revolution: A Critique, 83 Colum.L.Rev. 772, 820-958 (1983).

      . See Korn, The Choice-of-Law Revolution: A Critique, 83. Colum.L.Rev. 772, 789 (1983). In Babcock, the parties were New York domiciliarles and the tort occurred elsewhere. In the "reverse Babcock" situation of Schultz, the plaintiffs and defendant Boy Scouts were New Jersey domiciliaries and the tort occurred, at least in part, in New York.

      . Even in the "common domicile” situation, the Schultz court found that when the conflicting laws relate to standards of conduct, the law of the locus jurisdiction takes precedence over the common domicile’s law because of the “admonitory effect that applying its law will have on similar conduct in the future.” Schultz, supra, 491 N.Y.S.2d at 95-96.

      . Defendant Garrett proposes that New York is a “common domicile" because a New York plaintiff, Morgan, brought this suit as executor for decedent Fogarty, and because this Court has determined that a key defendant, TGA, has its principal place of business in New York. Therefore, Garrett argues, New York law should apply since it is the domicile of the significant parties as well as the site of the tort. Although this is an interesting and novel theory, we decline to adopt or rely on it. Morgan is essentially a nominal party in these suits. Fogarty was a Connecticut domiciliary and his widow and several of his children continue to reside there. However, Connecticut is not the common domicile because the only Connecticut defendant is Texasgulf, which is not a direct party to these actions.

      . The underlying event giving rise to these actions is the crash of an airplane. The plaintiff notes that many cases have found the site of an airplane crash to be extremely fortuitous and have thus given less weight to this factor in determining choice of law. See, e.g., Cousins v. Instrument Flyers, Inc., 44 N.Y.2d 698, 699, 376 N.E.2d 914, 915, 405 N.Y.S.2d 441, 442 (1978); Thomas v. United Air Lines, 24 N.Y.2d 714, 723, 249 N.E.2d 755, 759, 301 N.Y.S.2d 973, 979, cert. denied, 396 U.S. 991, 90 S.Ct. 484, 24 L.Ed.2d 453 (1969); Long v. Pan American World Airways, 16 N.Y.2d 337, 342, 213 N.E.2d 796, 798, 266 N.Y.S.2d 513, 516 (1965); Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 39, 172 N.E.2d 526, 527, 211 N.Y.S.2d 133, 135 (1961). Prior to trial, this Court commented on the fortuitousness of the instant air crash. See Gregory v. Garrett Corp., supra, 578 F.Supp. at 880 n. 11. However, the evidence adduced at the lengthy liability trial of the many related actions clearly indicates that the site of this accident was not so fortuitous as it might seem. The facts showed that the decision to fly the plane in its impaired condition was made in New York and almost the entire flight between Westchester County Airport and Toronto, Canada, was over New York State. In addition, almost all of the tortious conduct that caused the crash — the installation, maintenance, inspection, and testing of the defective parts — occurred in New York. New York’s interest in applying its law to all issues in this action is, therefore, much greater than that of a state that is merely the "fortuitous" site of a plane crash. See Transcript of Oral Argument, June 20, 1985, at 11-12.

      . The decision on this motion will impact on the damage trials in the related cases filed by other decedents’ estates. Two of those actions involve domiciliaries of North Carolina; the rest involve Connecticut domiciliaries. Were we to decide that Connecticut law applied to the damage issue in the cases involving decedent Fogarty, we would be likely to apply North Carolina damage law to those cases involving decedents from that state. All parties in these and the related Texasgulf cases have proceeded through two lengthy preliminary trials, see supra pp. 755-756, on the assumption and expectation that New York law would apply to the issue of damages. Application of different law in different actions would promote uncertainty, encourage forum shopping, and defeat the parties’ reasonable expectations. See Reese, The Law Governing Airplane Accidents, 39 Wash. & Lee L.Rev. 1303, 1306-07 (1982) (suggesting that the plaintiffs’ domicile should not be a factor at all in choice of law in multi-state aircrash cases).

      . The plaintiff relies on the case of Haydu v. Hospital for Joint Diseases, 557 F.Supp. 577 (S.D.N.Y.1983), in which Judge Lasker concluded that, on the facts of that case, a New York court would apply the law of the plaintiffs domicile rather than New York law, although New York was both the defendant's domicile and the locus of the wrongful death. We respect Judge Lasker’s opinion. However, we agree with the Second Circuit that this is unlikely to have been a New York court’s ruling in such a case. O’Rourke v. Eastern Air Lines, Inc., supra, 730 F.2d at 850 n. 12. The New York Court of Appeals decision in Schultz affirms this analysis.


source: Caselaw Access Project

author: BRIEANT, District Judge.

license: Public Domain

text:
    Paul F. McDONALD, Plaintiff, v. PIEDMONT AVIATION, INC., Defendant.
    No. 84 Civ. 8262 CLB.
    United States District Court, S.D. New York.
    Jan. 6, 1986.

      John G. McDonald, Rhinebeck, N.Y., for plaintiff.
    Charles C. Read, Diane Patrick, O’Melveny & Myers, New York City, for defendant.
   MEMORANDUM AND ORDER

BRIEANT, District Judge.

In this action for damages and injunctive relief brought under 28 U.S.C. §§ 1331 and 1332, plaintiff Paul F. McDonald alleges that the defendant Piedmont Aviation, Inc. violated § 43 of the Airline Deregulation Act of 1978, 49 U.S.C. § 1552, by refusing to give hiring preference to the plaintiff as the statute purportedly would require. Defendant has moved to dismiss or, alternatively, to stay this action pending resolution of an unrelated ease pending in the District Court of the District of Columbia, discussed below.

Section 43, entitled “Employee Protection Plan,” comprises two related but discrete provisions: the first provides for monthly support payments by the Government to eligible airline workers who had been dislocated by airline deregulation, while the second imposes a duty upon the airline industry to give preferential hiring consideration to those dislocated employees in order to obviate the need for the Government assistance. It is under this second provision that plaintiff claims his private right of action arises.

In pertinent part, this subsection reads as follows:

“(d)(1) Each person who is a protected employee of an air carrier which is subject to regulation by the Civil Aeronautics Board who is furloughed or otherwise terminated by such an air carrier (other than for cause) prior to the last day of the 10-year period beginning on October 24, 1978 shall have first right of hire, regardless of age, in his occupational speciality, by any other air carrier hiring additional employees which held a certificate issued under section 1371 of this title prior to October 24, 1978. Each such air carrier hiring additional employees shall have a duty to hire such a person before they hire any other person, except that such air carrier may recall any of its own furloughed employees before hiring such a person.” 49 U.S.C. § 1552(d)(1).

McDonald’s claim arises out of Piedmont’s decision in 1981 to hire airline personnel, specifically pilots, who allegedly did not qualify as “protected employees” to whom preferential hiring treatment was due under § 43. A protected employee, as defined by the statute, is a person other than a corporate director or officer who had been employed by a certified air carrier for at least four years prior to October 24, 1978. 49 U.S.C. § 1552(h)(1).

In November 1981, following the cessation of Air New England where he had been employed as a pilot for at least seven years, McDonald applied to Piedmont for employment as a pilot. He identified himself as a protected employee. One month later, in December 1981, Piedmont hired a class of pilots consisting entirely of persons who, McDonald alleges, were not protected employees. Finally refused employment in May 1982, McDonald brings this action in an effort to enforce a “first right of hire” contained in § 43 that he contends Piedmont is statutorily obligated to honor.

The defendant moves to dismiss this action on two grounds. Piedmont first argues that § 43 does not create a private right in the plaintiff as a rejected applicant to enforce the statute by injunctive or monetary relief, and that consequently his complaint fails to state a claim upon which relief can be granted. Piedmont also argues that whatever rights § 43 conferred had not ripened at the time McDonald filed his complaint in November 1984 because the Department of Labor regulations intended to implement the statute have not yet been put into effect.

It is clear that this statute contains no express authorization of a private right of action by a person injured by a violation of § 43. Nevertheless, there remains for consideration whether a private remedy should be inferred from the language of the statute and Congressional intent.

Our inquiry begins with analysis of the statutory language itself, see Touche Ross & Co. v. Redington, 442 U.S. 560, 568, 99 S.Ct. 2479, 2485, 61 L.Ed.2d 82 (1979), applying the criteria set forth in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). If this language fairly implies a right to specific and limited relief in federal court, no additional investigation into Congressional intent would be required. See Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 18, 100 S.Ct. 242, 246, 62 L.Ed.2d 146 (1979) (construing § 215 of the Investment Advisors Act).

In our analysis of the statutory language to ascertain Congressional intent, we must consider three factors: (1) whether the statute was enacted for the especial benefit of the class seeking private enforcement, see Daily Income Fund, Inc. v. Fox, 464 U.S. 523, 104 S.Ct. 831, 837, 78 L.Ed.2d 645 (1984); Cannon v. University of Chi cago, 441 U.S. 677, 690, 99 S.Ct. 1946, 1954, 60 L.Ed.2d 560 (1979); Cort v. Ash, 422 U.S. at 78, 95 S.Ct. at 2087; (2) whether the language relied upon creates a right or imposes a duty, or instead merely proscribes or directs certain conduct, see Universities Research Association, Inc. v. Coutu, 450 U.S. 754, 771, 101 S.Ct. 1451, 1461, 67 L.Ed.2d 662 (1981); Touche Ross, supra 442 U.S. at 569-71, 99 S.Ct. at 2485-86; and (3) whether the statute sets forth adequate mechanisms for enforcement and relief so as to obviate any need for private enforcement, see Daily Income Fund, supra 104 S.Ct. at 837; Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 13, 101 S.Ct. 2615, 2622, 69 L.Ed.2d 435 (1981).

The first and second factors are usually examined together and are given great weight. As the Supreme Court observed in Cannon when it held that Title IX created a private remedy:

“With the exception of one case, in which the relevant statute reflected a special policy against judicial interference, this Court has never refused to imply a cause of action where the language of the statute explicitly conferred a right directly on a class of persons that included the plaintiff in the case.” Cannon, supra, 441 U.S. at 690, n. 13, 99 S.Ct. at 1954 n. 13 (citations omitted); see Universities Research Association, supra 450 U.S. at 773, n. 23, 101 S.Ct. at 1462 n. 23.

By its terms, § 43 establishes a “first right of hire” and identifies the persons upon whom the right is conferred. See 49 U.S.C. § 1552(d)(1). Without a remedy there is no right. Under Cannon, therefore, a private right of action may fairly be inferred from the statute absent other language that specifies particular, exclusive mechanisms for enforcing those rights. See Daily Income Fund, supra 104 S.Ct. at 837; Middlesex Sewerage Authority, supra 453 U.S. at 13, 101 S.Ct. at 2622.

Scrutiny of the “Employee Protection Plan,” codified at. 49 U.S.C. § 1552, reveals no legislative scheme of enforcement that would either refute the implication of the right-giving language quoted above or obviate the need for it by furnishing an alternative remedy that would serve adequately the legislative purpose. See Daily Income Fund, supra 104 S.Ct. at 837. Although Congress authorized the Department of Labor to “issue, amend, and repeal such rules and regulations as may be necessary for the administration of this section,” 49 U.S.C. § 1552(f)(1), this language cannot be construed to provide the “express statutory remedies” that the Supreme Court would require in order to deny this plaintiff private enforcement of his conferred right. See Daily Income Fund, supra at 837. Where, as here, it is apparent that Congress granted a class of persons certain specific rights and is silent on the question of whether those rights should be enforced by private action, a private remedy may be implied by the courts unless the legislative history shows an explicit purpose to deny such enforcement. See Cannon, 441 U.S. at 694, 99 S.Ct. at 1956, quoting Cort v. Ash, 422 U.S. 66, 67, 82, 95 S.Ct. 2080, 2082, 2089, 45 L.Ed.2d 26 (1975); Neilan v. Value Vacations, Inc., 603 F.Supp. 1227, 1235 (S.D.N.Y.1985). The legislative history underlying § 43 contains nothing that negates implication of a private right of action. It focuses primarily upon the monthly payment assistance program designed to assist dislocated airline workers in their transition to new employment. See S.Rep. No. 631, 95th Cong., 2d Sess. 113-17 (1978). Discussion of the preference hiring requirement was confined to two sentences that reiterated the carrier’s duty to hire. Id. at 116. Although Congress did not discuss the mechanics of enforcement, its purpose in enacting § 43 is clear, and a private remedy would be necessary to effectuate that purpose. To the extent that a private remedy is “at least helpful to the accomplishment of the statutory purpose,” the courts have been decidedly receptive to its implication under the statute. See Cannon, 441 U.S. at 703, 99 S.Ct. at 1961 (citations omitted). Accordingly, this Court concludes that the language of § 43 will support a private right of action, and as a result, the complaint does state a claim upon which relief can be granted.

The Court now turns to Piedmont’s second contention supporting its motion to dismiss. Piedmont argues that the existence of an enforceable right under § 43 depends entirely on the promulgation by the Department of Labor of rules and regulations designed to implement the program, as contemplated by § 1552(f). It argues that the statute, without more, is inadequate to permit the subject air carriers to satisfy their preferential hiring obligations under the Act and that accordingly it may be inferred that Congress intended to make the private enforcement of statutory rights contingent upon the issuance of elaborative regulations. Although this statute goes back to 1978, there are still no regulations. Proposed final regulations implementing § 43 were published in the Federal Register on November 22, 1983, 48 Fed.Reg. 52,854, 52,861 (1983), and again on December 27, 1985, 50 Fed.Reg. 53,094, 53,101 (1985) (to be codified at 29 C.F.R. § 220.01, et seq.), these have not been put into effect, although whenever bureaucrats are given an opportunity to make rules, they usually do so. Piedmont argues that because there are as yet no rules in effect, McDonald’s rights under the statute, if any, have not yet matured.

This argument has no merit. The argument assumes that bureaucrats in the Executive Branch, by their mere inaction in failing to adopt regulations or by involving themselves in an interminable tug-of-war over minutiae to be contained therein, could put off indefinitely (seven years in this case) the effectiveness of a scheme or remedy adopted by Congress that the President did not veto. Such an assumption may not be made lightly. In any event, the adoption of regulations is hardly necessary to the enforcement of § 43 of the Act. As noted earlier, the statute delineates unambiguously the rights and duties of the parties and identifies specifically to whom they should apply. See 49 U.S.C. § 1552(d)(1), (h)(1). The instruction by Congress to the Department of Labor to propose interpretive regulations for the entire Act does not diminish the right-giving force of the statutory language itself; nor could any such regulation dilute or repeal such rights, central as they are to the statutory scheme. Indeed, the rules published in December 1985, but not yet adopted, offer little guidance. See 50 Fed.Reg. at 53,101 to 53,105 (to be codified at 29 C.F.R. §§ 220.01-51). The proposed 1985 regulations are silent as to the mechanism for enforcing the right of hire. They do provide a limited administrative appeal for ascertaining eligibility in the event of a dispute by an employee who “disagrees with the carrier’s final determination under § 280.25 that he or she is not a protected employee” 50 Fed.Reg. 53,103-53,104 (to be codified at 29 C.F.R. § 220.-26). Without the regulations, the language of § 43 is sufficiently clear to alert those air carriers who survived deregulation of their responsibilities, without the necessity of further action pursuant to the rule making power of the Department of Labor. The proposed 1985 regulations themselves support this conclusion, by expressly providing that “nothing in these regulations shall preclude the exercise of statutory rights and duties between October 24, 1978 and the effective date of these regulations.” 50 Fed.Reg. 53,102 [to be codified at 29 C.F.R. § 220.01(g)]. The Department, referring explicitly to this Act, later uses substantially the same language in making the same point. See id. at 53,105 [to be codified at 29 C.F.R. § 220.50(c)].

Piedmont relies on other language in the proposed 1983 regulations to support its position, specifically where the Department, in defining scope, announced that “only those employees who are expressly granted a hiring preference under the Act and these regulations have any rights under the Rehire Program.” Id. at 53,102 [to be codified at 29 C.F.R. § 220.03(a) ]. Even if we assume for the argument that the class of eligible protected employees may be smaller if these regulations or similar ones are adopted than it was before, McDonald will still be within the class, and this Court declines to infer from language in regulations not yet adopted that no rights exist at all until adoption. Indeed, the Department’s reaffirmation of the employees’ statutory rights as recited above forbids such a conclusion.

Accordingly, Piedmont’s motion to dismiss this action on this additional ground is denied.

Having concluded that this action is properly before the court, and that the complaint states a claim, we now consider defendant’s motion to stay this action pending resolution of Alaska Airlines Inc., et al. v. Donovan, 594 F.Supp. 92 (D.C.Dist.Col.1984).

In exercising its discretion to stay an action before it in favor of a case in another court, a court must be motivated by considerations of judicial economy, fundamental fairness and the orderly administration of justice. Ordinarily, a court would not be justified in holding in abeyance a later-filed action such as this one unless the parties and issues of the concurrent actions are substantially identical. See Kistler Instrumente A. G. v. PCB Piezotronics, 419 F.Supp. 120, 123 (W.D.N.Y.1976). Defendant here contends that the New York and District of Columbia cases are substantially identical in all matters except the parties. Further, it avers that the plaintiff will not be prejudiced by deferring to the District of Columbia action because the issues of concern to McDonald will be adjudicated fully and his interests protected in the other case; moreover, the threat of duplicative litigation will be averted.

The identity of these actions is not particularly significant and would not justify staying this action as defendant requests. Plaintiffs in Alaska Airlines allege that the first right of hire provision of § 43 violates due process. While this allegation invites judicial construction of the entire statute, the significant portion of the complaint there is directed against the regulations to be promulgated under the statute. Thus, the Alaska Airlines case differs substantially from this action by McDonald, who grounds his claims firmly and solely on the specific language of the statute itself, independent of any interpretative regulations that may or may not ever be promulgated. Since the Alaska Airlines action is so closely tied to the regulations and their status, and the regulations are not yet in effect, there is really nothing to litigate at this time.

To submit McDonald’s claim to the delays of an action that does not mirror substantially his own is patently unfair.

McDonald’s efforts to define and, he hopes, to vindicate his statutory rights should not be held hostage to the trial tactics and delays attendant to another action over which he has no control. Moreover, interests of judicial economy would not necessarily be served by a stay. A decision and judgment in the District of Columbia action likely would have no claim preclusion or collateral estoppel effect against either party to this action under the rules set forth in Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 329, 91 S.Ct. 1434, 1443, 28 L.Ed.2d 788 (1971) and Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 330, 331, 99 S.Ct. 645, 651, 652, 58 L.Ed.2d 552 (1979); nor would this district court even be required to reach a consistent result on the due process issue since the rule of stare decisis is not implicated. See Newsweek, Inc. v. U.S. Postal Service, 663 F.2d 1186, 1196 (2d Cir.1981), cert. denied sub nom. Council of Public Utility Mailers v. U.S. Postal Service, 457 U.S. 1133, 102 S.Ct. 2959, 73 L.Ed.2d 1350 (1982); City Stores Company v. Lerner Shops of District of Columbia, 410 F.2d 1010, 1014 (D.C.Cir.1969); EEOC v. Pan American World Airways, 576 F.Supp. 1530, 1535 (S.D.N.Y.1984).

This Court upholds plaintiff’s right to chart the course of his own litigation and to prosecute his claims in the manner of his choice. See Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946). The uncertain risks of inconsistent results or duplicative litigation are not persuasive under the facts presently before this Court. Accordingly, defendant’s motion to stay this action pending decision in the District of Columbia action is denied.

Counsel for the parties shall confer with regard to any necessary pre-trial proceedings. A Rule 16 conference will be held February 13, 1986 at 9:00 A.M. in Courtroom 31, United States Courthouse, 101 East Post Road, White Plains, New York 10601.

So Ordered.


author: ANNA DIGGS TAYLOR, District Judge.

text:
    Gilbert H. RIVETTE, Plaintiff, v. UNITED STATES POSTAL SERVICE and William F. Bolger, Postmaster General, Defendants.
    No. 84CV4078.
    United States District Court, E.D. Michigan, S.D.
    Jan. 6, 1986.
    Douglas L. Webster, Southfield, Mich., for plaintiff.
    Patricia G. Blake, Asst. U.S. Atty., Detroit, Mich., for defendants.
   MEMORANDUM OPINION AND ORDER

ANNA DIGGS TAYLOR, District Judge.

Plaintiff Gilbert Rivette is a white male who instituted this action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16, alleging that he was the victim of racial discrimination in the course of his employment with the United States Postal Service. Specifically, he claims that on account of his race he was denied promotion to the position of Director of Mail Processing at the Detroit Management Sectional Center (MSC). Plaintiff requests relief in the form of retroactive promotion, back pay and benefits.

Plaintiff has been employed by the Postal Service since 1942. At the time the complaint was filed, he had thirty-seven years of service, with six years experience in the grade 24 position of Manager-Distribution at the Complex General Mail Facility in Detroit.

In March of 1979, a vacancy announcement was issued for the grade 26 position of Director of Mail Processing. Ten Postal Service employees, including plaintiff, applied for the job. Seven of the applicants were white; three were black. A Promotion Review Board (PRB) consisting of three whites and one black convened to consider the applicants. The PRB concluded that there were no “well qualified” candidates for the position, but submitted three names as “best qualified”, none of whom was plaintiff.

The selecting official, Manager/Postmaster Joseph Loukotka, decided not to hire any of the three candidates identified by the PRB. Instead, the vacancy announcement was reposted in August of 1979 with the additional requirement that the applicant “demonstrate through education and/or experience an understanding of engineering or business administration.” Eleven employees, including plaintiff, applied for the job. Nine of the applicants were black; two were white.

A second Promotion Review Board, consisting of three blacks and one white was convened to evaluate the applicants and recommend candidates for the position. All eleven applicants were interviewed on September 24, 1979. The second PRB recommended three applicants as “best qualified:” Terry Arnold (white); Charles Brazelton (black); and Ruben Fowlkes (black). Again, plaintiff was not recommended as a finalist. Manager/Postmaster Loukotka selected Ruben Fowlkes for the position on October 31, 1979.

The parties’ joint pretrial statement and evidence presented at trial clarified that plaintiff is not alleging that the selection process of the first PRB was tainted by discrimination. In his opening statement at trial, plaintiff’s attorney articulated the theory that the decision of postal officials to fill the Director of Mail Processing position with a black candidate was made in June of 1979, between convening of the first and second PRB’s.

Plaintiff claims that the decision to hire a black for the position at issue was the result of a series of events beginning prior to the posting of the first vacancy announcement. At trial, plaintiff described the Detroit postal facility as operating in an atmosphere of racial unrest. He testified that three major letter-sorting machines had been removed from Detroit and relocated at the Airmail facility in the suburb of Romulus, which necessitated the transfer of a number of employees and resulted in the perception that the Post Office was taking jobs away from black employees in the City of Detroit. In addition, the District Office had been moved from the downtown Detroit post office to the suburb of Southfield and, as a result of alleged discrimination in promotions at the management and supervisory levels, a group of black employees had filed a class action against the Post Office in April, 1979.

Plaintiff claims that pressure placed on the Regional Postmaster General by a number of prominent black Detroiters who voiced their support of the class action resulted in the decision to fill the position with a black candidate in order to ease racial tensions. He alleges that the decision to hire a black was communicated to the members of the PRB, thereby tainting the selection process and resulting in discrimination against him because of his race.

As evidence of racially discriminatory considerations, plaintiff alleges a number of improprieties and irregularities. His first claim is that in contrast to the customary practice at the Detroit facility of using promotional boards consisting of three members, the PRB which evaluated the applicants for the Director of Mail Processing position in September, 1979, had four members. In addition, plaintiff claims that the process by which the PRB was designated was in contravention of Post Office regulations which specify that promotion review board members should be selected by the District Manager. Plaintiff alleges that in this case, the PRB members were designated by the Regional Postmaster General. Plaintiff also contends that the decision of the PRB was contrary to Post Office guidelines which suggest that “[gjreater weight should be placed on what an individual does, or has done than on what he or she may say in a brief interview.” Plaintiff argues that in view of his experience and past performance, which he felt rendered him the most qualified applicant, the PRB unfairly overemphasized his performance at the interview.” Further, he states that the PRB failed to establish or announce any written criteria or rating system upon which the candidates were to be evaluated. He notes too that the PRB submitted the names of only three candidates when Post Office regulations allow for the submission of up to five finalists.

Plaintiff claims that because a change in a job description cannot occur without approval by the Postmaster General, the additional requirement of an engineering or business administration background incorporated into the second vacancy announcement is further evidence of an officially orchestrated plan to award the position to a black candidate. He draws additional support for his allegation of an official scheme from the selection by the PRB of Terry Arnold as a finalist for the position. Mr. Arnold, the only- white candidate recommended, was thirty-four years old at the time of the interview and worked for the Postal Service in Iowa. Plaintiff contends that Mr. Arnold was purposely chosen as a “token” finalist because it would have been impossible for him to fill the position under the existent conditions. He argues that in addition to Mr. Arnold’s inferior credentials, his youth, his race and his “blonde hair,” the fact that he was from outside the Detroit area would have made his appointment to the position unfeasible as it would have engendered even further resentment on the part of disgruntled black employees.

Plaintiff cites his treatment at the interview as additional proof of discrimination. He alleges that despite his having acted in the capacity of Director of Mail Processing during the Director’s vacations and other time off, he was not questioned by the PRB about that experience. Moreover, plaintiff avers that when he attempted to pass out some supplementary written materials detailing his achievements to the Board members, Mr. Bates, the Chairman, became extremely irritated and refused to allow the dissemination. Plaintiff testified that from that point, Mr. Bates and the other Board members were hostile and combative toward him.

Finally, plaintiff notes that Ruben Fowlkes, the candidate who was awarded the position, lied about his academic credentials on his application. Mr. Fowlkes represented that he had a college degree in engineering when in fact, he did not. Plaintiff maintains that the PRB members knew or should have known that Mr. Fowlkes had falsified his application.

There is no question that Title VII prohibits racial discrimination against all groups. McDonald v. Santa Fe Trail Transportation Company, 427 U.S. 273, 276, 279, 96 S.Ct. 2574, 2576, 2578, 49 L.Ed.2d 493 (1976). The Sixth Circuit has recently clarified, however, that cases of “reverse discrimination” must be analyzed within the historical context of the Act. Jasany v. United States Postal Service, 755 F.2d 1244, 1252 (6th Cir.1985); Murray v. Thistledown Racing Club, 770 F.2d 63, 67 (6th Cir.1985). “The primary purpose of Title VII is ‘to assure equality of employment opportunities and to eliminate those discriminating practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens.’ ” Murray, at 67, quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800, 93 S.Ct. 1817, 1823, 36 L.Ed.2d 668 (1973) (emphasis added). Although “[wjhites are also a protected group under Title VII, ... it defies common sense to suggest that the promotion of a black justifies an inference of prejudice against white co-workers in our present society.” Parker v. Baltimore and Ohio Railroad Co., 652 F.2d 1012, 1017 (D.C.Cir.1981); Lanphear v. Prokop, 703 F.2d 1311, 1315 (D.C.Cir.1983).

The general standard for establishing a prima facie case of disparate treatment which was set forth in McDonnell Douglas v. Green, must therefore, be modified to reflect the context of a reverse discrimination claim and the reverse discrimination claimant “bears the burden of demonstrating that he was intentionally discriminated against ‘despite his majority status. Murray, at 67, quoting Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981), and Lanphear, at 1315.

[A] prima facie case of “reverse discrimination” is established upon a showing that “background circumstances support the suspicion that the defendant is that unusual employer who discriminates against the majority,” (citations omitted); and upon a showing that the employer treated differently employees who were similarly situated but not members of the protected group. (Citations omitted).

Murray, at 67, quoting Parker at 1017; Daye v. Harris, 655 F.2d 258 (D.C.Cir.1981); and Bundy v. Jackson, 641 F.2d 934, 951 (D.C.Cir.1981).

Applying the standard adopted by the Sixth Circuit, this court finds that plaintiff has failed to establish a prima facie case. One method employed by the courts to analyze whether background circumstances support the suspicion that the defendant is the unusual employer who discriminates against the majority, has been to inquire into the consistency of the procedures used by the defendant in the disputed case compared to those routinely used. In Daye v. Harris, 655 F.2d 258 (D.C.Cir.1981), the court found such irregularity of procedures persuasive evidence of a prima facie case of reverse discrimination directed at a white nurse by her employer. The claimant in Daye had presented evidence that hospital officials undertook a campaign to simultaneously increase a black candidate’s Qualifications Review Board scores by granting her favorable work experience and awards, while reducing the scores of her closest white competitors by downgrading their performance evaluations. The plaintiff further presented a chart showing that black nurses at the hospital received a disproportionate number of promotions.

Plaintiff in the case now before the court has made no such showing. Although he • alleged a number of improprieties and deviations from customary procedure, the evidence presented at trial disproved the allegations. Plaintiff’s contention that the second PRB was composed of four members, while the first Board had only three, collapsed when, upon being confronted with the defendant’s evidence to the contrary, he admitted that the earlier board in fact, also consisted of four members. He further admitted that he had not complained about the number of members on the first board. His belief that review boards in the Detroit area were customarily comprised of three members was based on his own experience in serving on such boards, but plaintiff confessed that he had never served on a board recommending candidates for a level 26 position and therefore, had no idea what the custom was in that context. Moreover, the Postal Bulletin which sets forth policies and procedures governing the filling of nonbargaining unit positions, states that “[a] review committee of at least three members [be] established to recommend to the selecting official the best qualified candidates for each vacancy.” (emphasis added) Thus, the fact that the PRB consisted of four members was not an irregularity and fell squarely within Postal Service regulations.

Plaintiff’s allegation that the selection of the PRB members was improper is likewise without merit. Plaintiff claims that the board members were selected by the Regional Postmaster General rather than the District Director as required. The evidence, however, indicates otherwise. A letter from the Regional Postmaster General, addressed to the District Director, clearly indicates that the District Director had submitted the names of his board choices to the Postmaster merely for his approval. The selection of the board members was made by the appropriate official, the District Director.

The allegation that the additional requirements of an engineering or business administration background reflected a conspiracy on the part of officials to tailor the position to Mr. Fowlkes is equally baseless. Plaintiff argues that such changes could not be made without approval and involvement of the Postmaster General. The evidence demonstrated, however, that the position description itself was never changed. It had always required a “graduate level understanding of engineering or business administration ... acquired through formal schooling or training.” Further, Mr. Witter, one of the members of the second PRB who has forty years of service with the Postal Service and had served on many review boards in the past, testified that local officials have the authority to add requirements or qualifications from the position description to the vacancy announcement. Therefore, the second vacancy announcement in this case merely reflects a more thorough culling out of the qualifications already established by the position description than had the former announcement.

Nor is it persuasive that the PRB submitted only three names to the selecting official rather than five. Again, the Post Office Bulletin which outlines review board procedures indicates that the PRB's submission of only three names was entirely consistent with regulations which specify that “[t]he committee is required to recommend at least three, but no more than five, best qualified candidates.” Furthermore, each of the three PRB members who testified at trial, independently articulated that the reason three names were submitted was because there was unanimity as to those applicants and no others. Each Board member had rated the three recommended candidates in his list of the top five. Beyond those three, the Board disagreed.

Plaintiff produced no statistical evidence at trial to indicate that either the Postal Service in general or the Detroit MSC administrators discriminate against white employees. His trial brief contained unsubstantiated statistics, (actually offered to support a separate and irrelevant proposition), which were useless in evaluating his claim. Plaintiff listed the number of black and white employees promoted to level 17 and above in all Detroit offices for the years 1978 through 1981. Those figures indicate that in 1979,- an equal number of blacks and whites were promoted to level 17 or above. In 1980 and 1981, considerably more blacks were promoted at the upper levels than whites. Plaintiff has failed, however, to provide any statistics on the racial make-up of the Detroit offices as a whole. Thus, the court has no way of determining whether the increase in promotions of blacks at the upper levels was in any way disproportionate. Demographic changes over the years might well have led to an increased number of black employees at all levels working in the City of Detroit, while white employment figures within the city dwindled as they opted to work in suburban locations. Were this the ease, there would be nothing unusual in an increase in black promotions. In any event, these unsubstantiated and incomplete statistics fall far short of demonstrating that plaintiff was “intentionally discriminated against despite his majority status” and the court will not speculate as to their import.

Similarly, plaintiffs allegations that the class action suit filed by black employees challenging Postal Service promotion policies led to a conspiracy to hire a black for the position is unfounded. While the institution of the class action, as well as other evidence presented at trial, do indicate dissatisfaction on the part of black postal employees in the Detroit area, there is no indication that this circumstance played any role in the PRB’s selection of finalists for the job plaintiff sought.

Of the three PRB members who testified at trial, two were completely unaware of any racial tension. Both Mr. Witter and Mr. Bates were from the Chicago area and both testified that they had no knowledge whatsoever of the existence of the class action or the alleged “unrest” in the Detroit Post Office. Mr. Perkins, the General Manager of the Bulk Mail facility in Allen Park, testified that he was aware of the class action and the general controversy regarding management level promotions at his suburban facility, but felt he needn’t consider it because he was under the impression that it was not a problem at the downtown Detroit MSC. He further testified that he did not discuss the class action with any of the PRB members and that race was never mentioned. All of the PRB members who testified unequivocally stated that race had no bearing on their decision and that they were not pressured by anyone to chose applicants of a particular race.

As additional evidence that improper racial considerations colored the judgment of the PRB, plaintiff attempted to demonstrate that the selection of Terry Arnold as a finalist represented tokenism. The gist of plaintiffs theory is that the PRB knew Mr. Arnold could not be awarded the position, but nevertheless chose him as a finalist in order to disguise their discriminatory intent.

Again, the evidence contradicts plaintiff’s allegation. First, as mentioned above, the PRB members could not have contemplated that the races of the selectees would matter to anyone because they were unaware of any racial problems at the Detroit facility. Contrary to plaintiff’s assertions, the Board members testified that Mr. Arnold’s current status at level 20 did not preclude him from consideration for the level 26 position. Regulations permitted employees within six grade levels to apply for the job. Nor did any of the Board members testify to a knowledge of resentment against outsiders.

In addition, the testimony established that Mr. Arnold was considered a highly qualified candidate by the entire PRB. Although he was viewed as somewhat young by one member, Mr. Arnold apparently possessed exceptional interpersonal skills. As Mr. Perkins testified, the position required the ability to deal with people, and based on the interview, he was convinced that Mr. Arnold could handle the job. Mr. Witter described Mr. Arnold as direct, knowledgeable, informative, imaginative and prepared for the interview. He testified that unlike plaintiff, Mr. Arnold’s responses to questions were aimed at convincing the interviewers that he knew the job. His demean- or was characterized by Mr. Witter as pleasant, confident and businesslike.

Mr. Bates, as well, .testified that Mr. Arnold was highly qualified and had a realistic chance of being selected for the position. He noted that Mr. Arnold had been evaluated as the best sectional director of mail processing in Iowa at the time, had been a management trainee which meant that he had diverse experience, had served as a district director of mail processing and had exposure to large operations. In fact, Mr. Bates testified that if the ultimate selection had been up to him, he would have chosen Mr. Arnold for the position.

In his closing argument, plaintiff’s counsel posited the theory that Mr. Arnold’s eventual promotion to Director of Mail Processing in Iowa was somehow a reward for his silent cooperation in an orchestrated plan to discriminate against plaintiff. The court notes that based on the testimony presented, quite the contrary is more likely true. A far less contorted interpretation of his promotion is that Mr. Arnold was rewarded for his well-documented abilities rather than his sheepish compliance with a purportedly discriminatory plan of which he undoubtedly knew nothing.

Plaintiff’s allegation that Mr. Bates’ refusal to accept his supplementary documentation is evidence of racial animus was also discredited. Mr. Bates testified that his refusal was an attempt to equalize the opportunity provided to each applicant interviewed. He explained that he thought it inappropriate for plaintiff to present such material at the interview and that the proper method of submitting it would have been to include it with his application. He vigorously denied throwing the papers back at plaintiff and testified that he did not notice whether plaintiff was upset. Nor did the other Board members observe any distress on plaintiff’s part regarding the incident. Plaintiff’s testimony that in his own experience as a review board member it was not unusual for an applicant to bring written materials to the interview and that in such situations he had always accepted them is irrelevant. Such an assertion has no bearing on Mr. Bates’ motive in refusing plaintiff’s documents and, as noted above, plaintiff had never served on a board selecting candidates for a level 26 position, so his beliefs as to the custom in this context are mere speculation.

Plaintiffs assertion that there were no written criteria or standards for evaluating the applicants is untrue. The position description itself, which is six pages long, details the responsibilities and requirements of the job. This information, coupled with the experience of the individual board members who were all high level managers, provided the framework for evaluation. Thé PRB members testified that each asked every candidate questions in his own field of expertise and evaluated their answers in light of his own experience. A numerical rating system by category was not required.

Finally, plaintiff argues that the Board knew or should have known that Mr. Fowlkes lied on his application when he stated that he had a degree in engineering. This allegation too is unsupported by the evidence. Each of the Board members testified that he did not look at the personnel files of any of the applicants. Only .the applications of those persons facially qualified for the position were sent to the PRB, for interviews. And, as Mr. Bates testified, even if they had examined the personnel files, it is not certain that the misrepresentation would have been discovered. Although the personnel files would have been available had the Board requested them, they were apparently under no obligation to do so. Regardless of what was discovered later, it is the Board’s state of mind at the time it made its selection that is at issue and there is simply no evidence to suggest that any member was aware of the falsehood.

There being no showing to support the suspicion that the Postal Service is that unusual employer who discriminate against whites, plaintiff has failed to meet the first prong of the test of a prima facie case. Neither has he met the second prong by showing that his employer treated differently employees who were similarly situated but not members of the protected group. The applicant whose length of service and type of experience most closely resembled plaintiff’s was a black candidate, Will Gray. Like plaintiff, Mr. Gray had served many years in the Postal Service and applied for the position the first time the vacancy was posted. Like plaintiff he reapplied in September of 1979. Mr. Gray was among the top five choices of only two of the Board members. Plaintiff was within the top five of only one Board member. Neither plaintiff nor Mr. Gray was chosen as a finalist, thereby indicating that the most similarly situated of plaintiff’s competitors who was not a member of the protected group was treated exactly as plaintiff.

The court finds that plaintiff has failed to establish a prima facie case. Even if he had succeeded with the first phase of proving a case of disparate treatment on the basis of race, he has failed to rebut the defendant’s legitimate, nondiscriminatory reason for the decision to exclude him from the list of finalists. It is noteworthy, here, that plaintiff’s entire case presumes that, if he had been a finalist, he would have been awarded the one vacancy by the appointing authority. That assumption cannot be made.

Overwhelming evidence was presented indicating that plaintiff was dismally deficient in the required areas of human relations and communications skills. Plaintiff contends that contrary to regulations, his performance at the interview was overemphasized. He repeatedly argued at trial that in order to function competently in the position that he currently held, he would necessarily have been proficient in interpersonal skills. This assertion was rebutted by both Mr. Bates and Mr. Witter who noted that simply performing in a job for a long time does not necessarily mean the requisite skills have been acquired for higher management. Mr. Bates testified that based on a 1979 report, the Detroit office had exhibited “woefully poor performance” and concluded that if plaintiff had been a long-time effective administrator, the office would have been in better shape all along, and that a recent upsurge in productivity should not be attributed to plaintiff.

Although the guidelines clearly require a review board to base its decision on more than the interview alone, it is equally apparent that a disastrous interview could easily preclude a candidate from consideration for a high level position necessitating well-developed human relations skills, especially in light of the fact that all of the candidates interviewed met minimum technical qualifications for the job. Each of the Board members testified that plaintiff appeared extremely nervous during the interview. Mr. Witters described plaintiffs answers to technical questions as vague, indirect and evasive. He noted that plaintiff seemed unprepared for the interview and opined that this seemed to be the result of an attitude that he didn’t need to prepare because he was “heir apparent” to the position.

Mr. Bates stated that he was looking for poise, leadership qualities, team-building ability and problem-solving skills in the applicants, but found plaintiff lacking in all. In response to one question posed by Mr. Bates which was aimed at eliciting the quality of an applicant’s skills in these areas, plaintiff responded that he would do whatever he was told. The response understandably indicated to Mr. Bates that plaintiff was passive and lacked initiative. Other responses indicated that plaintiff was unwilling to credit others for their performance. Considering the complexity of the operation that the eventual selectee would supervise, the level of responsibility and the multitude of decisions that would be required of him, it is not surprising that plaintiff was not selected as a finalist. Clearly, despite his length of service and experience, the decision to exclude him was based not on his race, but on his failure to meet the required qualifications for the job.

Therefore, IT IS HEREBY ORDERED that plaintiffs complaint must be dismissed.

IT IS SO ORDERED.