author: TEITELBAUM, Chief Judge.

text:
    UNITED STATES of America v. Elmer JONNET.
    Crim. No. 84-19.
    United States District Court, W.D. Pennsylvania.
    Oct. 24, 1984.

      James Y. Garrett, Asst. U.S. Atty., Pittsburgh, Pa., for plaintiff.
    Leonard I. Sharon, Pittsburgh, Pa., for defendant.
   Memorandum opinion

TEITELBAUM, Chief Judge.

I. Subsequent to his conviction on three counts of making false declarations in a proceeding ancillary to a court of the United States in Violation of 18 U.S.C. § 1623, defendant filed a host of motions and served a number of subpoenas duces tecum. The Court ruled on these matters prior to sentencing of defendant on October 12, 1984. The purpose of this memorandum opinion is to provide the grounds on which the Court relied in making those rulings.

II. Motion for an Evidentiary Hearing

Defendant presented two grounds in support of this motion:

First, defendant alleged that during trial Assistant United States Attorney James Y. Garrett, who represented the United States at trial, sought the admission into evidence of all three volumes of deposition testimony of the defendant in Jonnet Development Corp. v. Caliguiri, et al., 558 F.Supp. 962 (1983). The Court deferred ruling on whether the jurors should have the complete deposition until the close of trial. Immediately after the jurors left the courtroom to begin deliberating, but before any exhibits had been delivered to them, the Court ruled that only certain excerpts from the deposition would be made available to the jurors.

According to the defendant, the exhibits shortly thereafter were delivered to the jurors by Richard Grainer, Administrative Aide. The three complete volumes of deposition testimony were not included among those items. Approximately one and one-half hours later, however, Mr. Grainer allegedly delivered all three volumes to the jurors without any request by the jury or notice to counsel.

Defendant claimed that the three volumes contained highly prejudicial material. One of the passages (which was not among these excerpted portions given to the jurors) contained an allegedly crucial typographical error. It incorrectly stated that the defendant had typed out the agreement of July 1, 1980 between Jonnet Development Corp. and Conrail. According to defendant, this particular passage was a “major factor” in the jurors convicting him.

Defendant further maintained that the Government made no attempt to correct the typographical error even though it knew of the error through an interview conducted by an F.B.I. agent of Deborah Ascheom, the reporter who recorded the three volumes of deposition testimony in question.

As a second ground in support of his motion for an evidentiary hearing, defendant alleged that Bonita Lundquist, a juror, was incompetent to serve as a juror because of a hearing impairment.

Defendant’s motion for an evidentiary hearing was granted. Two jurors testified as to the delivery by Richard Grainer to the jury room of the three complete volumes of deposition testimony. They further testified that they had not, however, read the three volumes of the deposition and knew of no other juror who did so. An alternate juror, Angeline Chieffo, testified that Bonita Lundquist had difficulty hearing normal conversation outside the courtroom. Finally, Richard Grainer testified that he had no recollection of delivering all three volumes of the deposition and indicated that it was not his customary practice to deliver additional exhibits at a later time.

The two jurors who testified as to the delivery of all three volumes of the deposition were not permitted, however, to testify as to whether the contents of those volumes in any way affected their verdict. Although jurors may testify as to the presence of so-called “extraneous” material in the jury room they may not testify as to its effect on their deliberations. Fed.R.Evid. 606(b); also Government of Virgin Islands v. Gereau, 523 F.2d 140, 148-149 (3d Cir.1975).

III. Motion for a New Trial.

Defendant alleged that he was entitled to a new trial for a variety of reasons.

First, defendant argued that he was deprived of a fair trial because the jury was “swayed” by “highly prejudicial” material contained in the three complete volumes of deposition testimony.

This ground for a new trial was rejected for the following reasons.

When exhibits not in evidence reach the jury, a new trial should not be ordered unless the evidence was so prejudicial as to deny the defendant a fair trial. U.S. v. Friedland, 660 F.2d 919, 928 (3d Cir.1981).

To begin with, the passage in question was not prejudicial. Defendant argues that this typographical error was construed by the jury as an “admission” that he had typed the agreement. The claim that this would be a source of prejudice, however, is contrary to reality because the deposition testimony concerned only the events of July 1, 1980. The Government presented a wealth of testimony at trial concerning those events, and presented evidence that the agreement prepared on that date was handwritten by John Hindman. At no point was it any part of the Government’s case that the defendant performed any physical role whatsoever in the act of drafting the agreement on that date, beyond affixing his signature. It defies logic to suggest that a statement so directly contradictory of the Government’s case could be prejudicial to the defendant.

Even more important, regardless of who drafted the agreement on July 1, or how it was done, the crux of the case concerned what happened thereafter to account for the subsequently discovered difference between the Conrail and Jonnet versions of the agreement. Whether or not Jonnet “admitted” to typing an agreement on July 1 would have absolutely no bearing on what happened thereafter and could not help the Government prove that Jonnet had made alterations in his copy after the agreement was signed on July 1. In fact, not only would the statement cause no harm to Jonnet, it is far more likely that it would actually have helped him show his innocence. Evidence from any source that a typewriter was used to prepare the agreement on July 1 could only tend to show that the defendant’s version of his agreement with Conrail was authentic rather than the Conrail version, which was handwritten rather than typewritten.

Since the Government had to disprove the authenticity of Jonnet’s version in order to convict, it is clear that the deposition is entirely exculpatory with or without the typographical error. Defendant’s claim of prejudice pays absolutely no regard to the evidence, the contentions of the parties, or the issues in the case. It is totally fallacious.

More importantly, even if the material were prejudicial, defendant was not deprived of a fair trial. There was overwhelming evidence to support the conviction, such as the testimony of others present at the drafting of the agreement of July 1, 1980 and of expert witnesses called by the Government.

Defendant also argued in support of a new trial that he was deprived of a fair trial because the Government knowingly presented false evidence to the jury and because the Government violated the Jencks Act, 18 U.S.C. § 3500, by failing to give to the defendant, after Ms. Aschcomb finished testifying, a copy of her statement to the F.B.I.

These grounds for a new trial also were rejected for the following reasons.

First of all, there was no evidence whatever that the Government knowingly presented false evidence to the jury.

Also, no violation of the Jencks Act occurred. Defendant failed at the close of direct examination of Ms. Aschcomb to ask the Court to order the Government to produce any statement by her in the Government’s possession relating to the subject matter of her testimony. 18 U.S.C. § 3500(b). Consequently, the Government was not ordered to do so. In addition, the F.B.I. report did not constitute a “statement” as defined at 18 U.S.C. § 3500(e). Finally, since there was no order to produce which the Government failed to obey, the provision authorizing sanctions against the Government does not apply here. 18 U.S.C. § 3500(d).

The defendant also argued in support of a new trial that the incompetency of. Bonita Lundquist to serve as a juror due to a hearing impairment violated his right to a fair trial and the requirement of 28 U.S.C. § 1865 that a juror may not be so infirm as to render unsatisfactory jury service.

No showing was made that Bonita Lundquist was unable to hear testimony offered in Court or to participate .meaningfully in jury deliberations. Angeline Chieffo, who was not present during jury deliberations, testified only as to Ms. Lundquist’s difficulty in hearing outside the courtroom.

Moreover, there is persuasive evidence that Bonita Lundquist’s hearing problems presented no difficulty. To begin with, jury records indicate that she is employed as a bank teller. It is unlikely that she could be so employed if she had the sort of hearing impairment defendant alleges. Also, like all potential jurors, she was subjected to individual voir dire prior to trial. She answered all questions asked of her without apparent difficulty and was seated during trial immediately beneath a loudspeaker. Also, the jury was instructed in the preliminary charge that any juror having difficulty hearing testimony should notify the Court. Bonita Lundquist never indicated that she was having any difficulty.

IV. Motion to Dismiss with Prejudice for Prosecutorial Misconduct.

Defendant argued that the Government “knowingly, intentionally, willfully, and maliciously” attempted to have the three complete volumes of deposition testimony delivered to the jury room, even though the Government knew them to be erroneous, misleading, and extremely prejudicial. Such conduct, defendant claims, deprived him of a fair trial and should be punished by dismissal with prejudice.

The motion was denied because no showing had been made that delivery of the three volumes was the result of any conduct by the Government, knowing, intentional, willful, malicious, or otherwise. Also, as was pointed out previously, the presence of the three complete volumes was not so prejudicial to the defendant as to deny him a fair trial because there was overwhelming, evidence to support a conviction.

V. Subpoena Duces Tecum Served Upon Assistant United States Attorney James Y. Garrett

The subpoena duces tecum served upon Mr. Garrett, who represented the Government at trial, requested him to bring “the entire, case file” in this case.

The subpoena was quashed because it was overly broad. The request for the “entire case file” extends far beyond anything contemplated by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the Jencks Act, Fed.R.Crim.P. 16 or Fed.R.Crim.P. 26.2. It was quashed also because it possibly would have required Mr. Garrett to disclose matters that were presented to the grand jury and, hence, would have violated the prohibition in Fed.R.Crim.P. 6(e)(2) against such disclosure.

VI. Motion for this Court to Recuse and Service of Subpoena Duces Tecum upon the Honorable Hubert I. Teitelbaum.

Defendant contended that recusal was required by 28 U.S.C. § 455 in light of the fact that the Court would be required to rule on the testimony of its Administrative Aide and because, if Mr. Grainer indicated that the three volumes of the deposition were delivered at the direction of the Court, then the Court might have to testify as to the matter. A subpoena then was served upon the Honorable Hubert I. Teitelbaum, who presided over this action.

28 U.S.C. § 455 provides in relevant part that:

(a) Any ... judge ... of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He also shall disqualify himself in the following circumstances:
(1) Where he has ... personal knowledge of disputed evidentiary facts concerning the proceedings.

Recusal is not required by § 455(a). The fact that Mr. Grainer might testify and the Court might have to rule on his testimony was not grounds for recusal. The mere fact that a Court might have to rule on the testimony of its Administrative Aide is not a reasonable ground for questioning the Court’s impartiality.

Neither is recusal required by § 455(b)(1). The phrase “personal knowledge” means in this context “extrajudicial knowledge.” U.S. v. Coven, 662 F.2d 162, 168 (2d Cir.1981). This Court has no knowledge whatever, extrajudicial or otherwise, concerning delivery of the three complete volumes of deposition testimony.

The subpoena served upon the Honorable Hubert I. Teitelbaum consequently was quashed because a judge presiding at a trial may not testify as a witness in that trial. Fed.R.Evid. 605.

VII. Motion to Recuse the United States Attorney for the Western District of Pennsylvania.

Defendant contended that the United States Attorney for the Western District of Pennsylvania should be recused from participating in any evidentiary hearing because it would be necessary at that hearing for certain members of the United States Attorney’s office for the Western District of Pennsylvania to explain the conduct engaged in by that office.

Although the defendant does not identify him by name, it is clear that the member of the United States Attorney’s office referred to is Mr. James Y. Garrett. Since the subpoena duces tecum served upon Mr. Garrett was quashed, any problem that might arise from having the United States Attorney for the Western District of Pennsylvania participate in a hearing was avoided. The motion for recusal of the United States Attorney for the Western District of Pennsylvania therefore was denied.

VIII. Motion to Order the United States Marshal To Seize Files Relating to this Case.

Finally, defendant sought an order that the United States Marshal seize the files relating to this case that are in the possession of the United States Attorney and the F.B.I. Defendant alleged that the conduct of the Government raised a doubt as to whether the Government wished them to surface and contended that seizure by the United States Marshal was necessary to preserve the integrity of these documents. It .is clear from the context of the motion that “these documents” referred to the F.B.I. report concerning Ms. Aschcom.

The motion was denied because the allegations underlying it were completely groundless. There was no evidence whatever that the Government did not wish this document to surface or that seizure by the United States Marshal was necessary to preserve its integrity. To the contrary, the Government made the report in question available by attaching it as an exhibit to its answer to these, motions and the Court examined it.

      . Also Llewellyn v. Stynchcombe, 609 F.2d 194, 195 (5th Cir.1980); U.S. v. Duzac, 622 F.2d 911, 914-915 (5th Cir.1980); U.S. v. Rohrer, 708 F.2d 429, 434 (9th Cir.1983).

      . These remarks concerning the Jencks Act also apply to any argument defendant may be making that dismissal with prejudice is an appropriate sanction for violations of the Jencks Act.

      . It should be noted that defendant never called Bonita Lundquist to testify at the hearing. If defendant truly believed that she had a serious hearing impairment, he reasonably could be expected to have subpoenaed her. This, as much as anything else, persuaded the Court that defendant’s motions were frivolous and were designed by him as a pretext for delaying his sentencing.


source: Caselaw Access Project

author: GENE CARTER, District judge.

license: Public Domain

text:
    Kathleen POLIQUIN, Plaintiff, v. Margaret M. HECKLER, Secretary of Health & Human Services, Defendant.
    Civ. No. 84-0242-P.
    United States District Court, D. Maine.
    Oct. 25, 1984.

      Michael A. Bell, Bell & Geores, Lewiston, Me., for plaintiff.
    Paula D. Silsby, Asst. U.S. Atty., Portland, Me., for defendant.
   MEMORANDUM OF DECISION AND ORDER

GENE CARTER, District judge.

This is an appeal of a final decision of the Secretary of Health & Human Services pursuant to 42 U.S.C. § 405(g), terminating Plaintiff’s disability benefits. The case is before the Court on Defendant’s Motion to Remand and Plaintiff’s Motion for Judgment on the Pleadings or, in the Alternative, for an Order of Interim Benefits.

Plaintiff’s complaint was filed on August 3, 1984. The complaint was served upon the Secretary on August 8, 1984. Under Fed.R.Civ.P. 12(a), the Secretary’s answer was due 60 days after service of the complaint, or on October 8, 1984. Additionally, “[a]s part of his answer the Secretary shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based.” 42 U.S.C. § 405(g). See Montrose v. Heckler, 579 F.Supp. 240 (D.Me.1984).

The Secretary did not file an answer and transcript by October 8, 1984, as required by Fed.R.Civ.P. 12(a) and the Social Security Act. On October 9, 1984, the Secretary filed a Motion to Remand the case pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) “for the purpose of locating the tape [from which the record of the administrative hearing would be transcribed] or to hold a de novo hearing in the event the tape cannot be found.” On October 17, 1984, Plaintiff filed her Motion for Judgment on the Pleadings or, in the Alternative, for an Order of Interim Benefits.

It is clear that the Secretary failed to timely file an answer as required by Rule 12(a). Nor did she file a motion for an extension of time within the time period she was required to file an answer. Although the Secretary is, therefore, in default within the meaning of Fed.R.Civ.P. 55(a), Rule 55(e) forbids entry of judgment by default against the United States “unless the claimant establishes his claim or right to relief by evidence satisfactory to the Court.” See Alameda v. Secretary of Health, Education and Welfare, 622 F.2d 1044 (1st Cir.1980). Accordingly, this Court has refused to enter judgment of default against the Secretary under similar circumstances. Montrose v. Heckler, 579 F.Supp. 240 (D.Me.1984).

Instead of judgment by default, Plaintiff seeks judgment on the pleadings pursuant to Rule 12(c). Rule 12(c) provides that a motion for judgment on the pleadings may be filed “[a]fter the pleadings are closed.” Since the pleadings are not closed until after the defendant has filed an answer, the proper course for a plaintiff in a case in which the defendant has failed to file a timely answer is a motion for default under Rule 55. General Motors Corporation v. Blevins, 144 F.Supp. 381 (D.Colo.1956); Stands Over Bull v. Bureau of Indian Affairs, 442 F.Supp. 360, 367 (D.Mont.1977); 5 C. Wright & A. Miller, Federal Practice and Procedure, § 1367, at 687 (1969). Moreover, to decide a motion for judgment on the pleadings where the only pleading filed is plaintiff’s uncontroverted complaint would be to disregard the command of Rule 55(e), which prohibits judgment by default against the United States “unless the claimant established his claim or right to relief by evidence satisfactory to the court.” Plaintiff cannot evade this rule by resort to an alternative procedural device which is clearly not applicable to this case in its present posture.

Although judgment by default or judgment on the pleadings is not proper in this case, “the Court is not without resources of a compulsory nature to force the Secretary to comply with its statutory and procedural duties with respect to progress of this litigation.” Montrose, 579 F.Supp. at 242; Alameda, 622 F.2d at 1047. In Montrose, the Secretary failed to answer and sought remand because a portion of the hearing tape was alleged to be inaudible. The Court ordered the Secretary to file such portion of the complete administrative record as was available within ten days. Montrose, 579 F.Supp. at 243. In two other cases in which the Secretary sought remand because the tape of the hearing was inaudible, the Court granted the motion to remand, but ordered the Secretary to reinstate plaintiff’s benefits until such time as the Secretary, after remand of the cases, rendered a final judgment. LePage v. Heckler, Civil No. 84-0123-P (D.Me. June 29, 1984) (unpublished order); Longley v. Heckler, Civil No. 84-0088-P (D.Me. June 29, 1984) (unpublished order).

In this case, the Secretary asserts that additional time is. needed “to locate the hearing tape so that the hearing may be transcribed in preparation for the answer to be filed in this case.” The Secretary argues that there is good cause for remand within the meaning of 42 U.S.C. § 405(g) and § 1383(c)(3). Section 405(g) provides in pertinent part:

The Court may, on motion of the Secretary made for good cause shown before he files his answer, remand the case to the Secretary for further action by the Secretary ____

The Secretary cites the legislative history of the above section in support of the proposition that loss or inaudibility of a hearing tape constitutes “good cause” for remand. See H.R.Rep. No. 96-944, 96th Cong.2d Sess. 59 (1980). This legislative history must be read in the context of the language of the statute, which requires “good cause shown.” A bare, unsupported assertion that a hearing tape has been lost does not constitute a showing of good cause. The Court reads the statute to require some fact-specific showing with respect to the circumstances leading to the unavailability or inaudibility of the hearing tape. Cf. Ouellette v. Heckler, 102 F.R.D. 940 (D.Me.1984) (fact-specific showing of grounds for relief under Fed.R.Civ.P. 60(b)(1) required); Montrose, 579 F.Supp. at 242. An unsupported assertion that the hearing tape has been lost is clearly not sufficient “good cause shown” to remand this case on motion of the Secretary.

As a practical matter, however, proper judicial review of this case is not possible without a transcript of the hearing. Therefore, in order to protect Plaintiff’s right of judicial review, it will be necessary to remand the case in order that the Secretary may locate the hearing tape or conduct a de novo hearing if the tape cannot be located. Because the Secretary has not made a showing of good cause in support of the motion for remand and because the delay occasioned by the Secretary’s unexplained loss of the hearing tape severely prejudices Plaintiff, the Court shall exercise its power to redress the prejudice that accrues to Plaintiff as a result of the Secretary’s conduct. See Alameda, supra; Montrose, supra. Accordingly, the Secretary shall reinstate the Plaintiff’s benefits retroactively to the date of the initial termination and continue payment of them until such time as the Secretary renders a final judgment.

It is ORDERED:

(1) that the Secretary’s Motion to Remand be, and is hereby, GRANTED;
(2) that Plaintiff’s Motion for Judgment on the Pleadings be, and is hereby, DENIED; and
(3) that Plaintiff’s Motion for Order of Interim Benefits be, and is hereby, GRANTED; and the Secretary is ORDERED to reinstate and continue payment of said benefits (including all benefits unpaid to the date of such commencement) with all due expedition.

So ORDERED.

      . The Secretary also has moved for remand pursuant to the Social Security Disability Benefits Reform Act of 1984, which provides that the Court shall remand "all actions relating to medical improvement" pending before the Court on September 19, 1984. Pub.L. 98-460, § 2(d)(2). The Secretary contends that "it is clear from the papers filed in this case that 'medical improvement’ is an issue" in this case. The Court has determined, on the contrary, that it is not possible to determine the nature of this case at this point, largely because the Secretary has neglected her duty to timely file an answer and a transcript of the administrative record. Therefore, remand is granted only on the grounds stated in the text of this opinion.


author: GIERBOLINI, District Judge.

text:
    EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. CARIBE HILTON INTERNATIONAL and Union De Tronquistas De Puerto Rico, Local 901, Defendants.
    Civ. No. 84-1639 GG.
    United States District Court, D. Puerto Rico.
    Oct. 25, 1984.

      David Ingram-, E.E.O.C., New York City, Francisco Besosa, Asst. U.S. Atty., San Juan, P.R., for plaintiff.
    Francisco M. Ramirez Rivera, Manuel A. Quilichini, Lespier, Muñoz, Noya & Ramirez, San Juan, P.R., for Caribe Hilton Intern.
    Pedro J. Varela, Hato Rey, P.R., for Union De Tronquistas De Puerto Rico, Local 901.
   OPINION AND ORDER

GIERBOLINI, District Judge.

This is an action brought by plaintiff, Equal Employment Opportunity Commission (EEOC), under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., against defendants, Caribe Hilton International (Hilton) and Unión de Tronquistas de Puerto Rico, Local 901 (Local 901), charging them with unlawful religious discrimination against Félix Vélez Cruz (Vélez).

I — FACTUAL BACKGROUND

On June 22,1984, plaintiff filed a verified complaint and a motion requesting this court to issue a temporary restraining order. Upon these documents and exhibits attached thereto, and upon a chambers conference held on June 25, 1984, attended by plaintiff and co-defendant Hilton, the court ordered Hilton to reinstate Vélez to his employment forthwith. A hearing to consider the motion for preliminary injunction was set for July 3, 1984 at 9:30 a.m. Upon a joint motion filed by the parties, plaintiff’s requests for preliminary and permanent injunctions were consolidated and the hearing set for July 3 was continued until the date of trial, August 8, 1984.

From the evidence presented and testimony heard during the trial, it appears that Vélez is a practicing Seventh-Day Adventist. As such, he is required to observe the Sabbath (i.e. he cannot work from sunset Friday until sunset Saturday). Vélez was first employed by Hilton in 1972 as a security supervisor. He informed his immediate supervisor of his religious beliefs. Consequently, he was given Fridays off. Thereafter, in 1974, Vélez was transferred to the casino department as a doorman. He was assigned to a permanent night shift with Thursdays and Fridays off. This situation remained unchanged until 1982 when a new collective bargaining agreement came into effect.

Pursuant to the provisions of the new agreement, a work year is divided into two stages. The first stage commences on December 16 and concludes on April 15. During this period, a work week consists of five consecutive working days and two days off. The second stage which runs from April 16 until December 15 creates a week of four consecutive working days and two days off. Due to the rotational nature of the four-day week, Vélez would inevitably be scheduled to work on Fridays.

The adoption of the four-day week was the central issue of the bargaining negotiations and, as such, was widely publicized. The new collective bargaining agreement was finally approved on February 15, 1982. Hilton consented to the inclusion of the four-day-week clause in order to avoid an impending strike.

In view of the establishment of the four-day week, Vélez and the other doormen Jorge Tapia (Tapia) and Rubén Velazquez (Velázquez) arranged to alternate shifts whenever Vélez was scheduled to work on Friday night. The Hilton management was notified of this arrangement for its approval. This arrangement, however, became an inconvenience to Tapia and Velázquez, particularly the latter since he had to work two consecutive shifts. As a result, Vélez could not obtain a replacement for Friday, July 1, 1983. He did not report to work on that day and was consequently suspended for fifteen days. Vélez then filed his complaint of employment discrimination with the. United States Department of Labor which in turn transferred it to the EEOC.

Shortly thereafter, the EEOC and Hilton commenced the conciliation process. During this time, although Vélez remained scheduled to work on Fridays, no disciplinary measures were taken against him for not reporting to work because all parties expected to reach a.permanent agreement. In fact, a tentative agreement was reached whereby the three doormen would be excluded from the provisions of the collective bargaining contract establishing the four-day week. However, after consultation with the other doormen, Local 901 later rejected said proposal. All expectations of reaching a joint resolution were terminated. During the conciliation process Hilton covered Velez’ shift by assigning either a security guard or Velázquez to work several hours of overtime.

As a result of the unsuccessful conciliating efforts, on April 26, 1984, Pedro Diaz (Diaz), Hilton’s Personnel Manager, informed Vélez that all efforts to accommodate him had failed and that any further absences would result in disciplinary measures. Diaz also invited Vélez to meet with him and seek a resolution to the conflict. However, Vélez responded by refusing to work on Friday, May 11, 1984 or any other Friday. He was admonished by letter dated May 18 because of his absence on May 11 and was further warned that any subsequent absences would result in his dismissal.

Despite the warnings, Vélez failed to report to work on Friday, May 25, 1984 as scheduled. He was thus suspended and instructed to report back to work on June 16, 1984. He was cautioned that should he be absent once again he would be permanently dismissed. On Friday, June 22, 1984, Vélez did not report to work and was, as a result, terminated on that same date.-

As a result of the dismissal, Local 901 filed a grievance on behalf of Vélez following the procedures outlined in the collective bargaining agreement. The EEOC in turn commenced this action. Vélez was reinstated to his position pursuant to the order of the court dated June 25, 1984.

At the court’s request, the parties filed motions describing their good faith efforts to .accommodate Vélez’ religious beliefs. Both defendants referred to Hilton’s offer to employ Vélez as an unarmed- security officer at his present salary. Hilton also set forth as an alternative resolution to the scheduling conflict, the exclusion of the three doormen from the four-day-week clause of the collective bargaining agreement. The EEOC proposed in turn that the doormen continue to voluntarily alternate shifts not only among themselves but also among the security guards- licensed ' to work as doormen.

II — REQUEST FOR RELIEF

A. The employer’s duty of reasonable accommodation.

Since the parties agreed to extend the effect of the temporary restraining order until the date of the trial, and since the petition for the preliminary injunction was consolidated with the request for permanent injunctive relief, we need not consider whether the requirements for the issuance of a preliminary injunction are met.

Instead, we turn to Hilton’s duty of reasonable accommodation. Section 2000e-2(a)(1) of Title 42, United States Code, makes it unlawful for an employer to discriminate against an employee on the basis of his religion. Section 2000e(j) defines the term “religion” as:

... all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.

To establish a prima facie case of religious discrimination under Section 2000e-2(a)(1) a plaintiff must demonstrate (1) that he has a bona fide religious belief that conflicts with an employment requirement; (2) that he has informed his employer of this belief; and (3) that he was discharged for failure to comply with the conflicting employment requirement. Turpen v. Missouri-Kansas-Texas R. Co., 736 F.2d 1022, 1026 (5th Cir.1984); Brener v. Diagnostic Center Hospital, 671 F.2d 141, 144 (5th Cir.1982); Brown v. General Motors Corp., 601 F.2d 956, 959 (8th Cir.1979); Anderson v. General Dynamics Convair Aerospace Div., 589 F.2d 397, 401 (9th Cir.1978), cert. denied sub nom International Association of Machinists, etc. v. Anderson, 442 U.S. 921, 99 S.Ct. 2848, 61 L.Ed.2d 290 (1979). Once a plaintiff has established his prima facie case, the burden then shifts to the defendant to show that it cannot reasonably accommodate the employee’s needs without undue hardship. 42 U.S.C. § 2000e(j); Turpen v. Missouri-Kansas-Texas R. Co., 736 F.2d at 1026; Brener v. Diagnostic Center Hospital, 671 F.2d at 144.

It cannot be gainsaid that Vélez has established a prima facie case of religious discrimination. He is a Seventh-Day Adventist, he so informed Hilton when he was first hired, and he was fired because he failed to comply with the requirement that he work on Fridays. Thus, the court is solely confronted with whether defendants could have reasonably accommodated Vélez’ religious beliefs without incurring undue hardship.

There are no exact parameters defining what constitutes reasonable accommodations. Nonetheless, the duty to accommodate requires that the employer take certain affirmative measures to satisfy the employee’s religious practices, but without (1) hindering the rights of other employees or (2) having to bear more than a de minimis cost in so doing. Trans World Airlines v. Hardison, 432 U.S. 63, 67, 97 S.Ct. 2264, 2268, 53 L.Ed.2d 113 (1977). In Hardison, the leading ease in this area, the Supreme Court ruled that the following actions by the employer were reasonable efforts to accommodate the employee’s religious beliefs:

(1) The employer had met on several occasions with the employee in order to resolve the problem.
(2) The employer had previously accommodated the employee’s observance of his beliefs.
(3) The employer had authorized alternative shifts with other employees in order to accommodate the plaintiff.
(4) The employer attempted to find the plaintiff another job.

We find these factors dispositive of this case.

First, as evidenced earlier in our summation of the facts of this case, Hilton met with Vélez and with his representatives from the EEOC on several occasions to find a solution to the conflict. Due in part to.the position adopted by the.doormen and the union’s decision not to exclude the doormen from the four-day-week clause, and in part to Mr. Vélez’ intransigent stance and unwillingness to provide alternatives of his own, these meetings proved to be fruitless.

Second, Hilton had accommodated Vélez’ religious beliefs in the past. From 1972 until 1982 Hilton arranged Vélez’ shifts so that he could observe the Sabbath. It was not until the implementation of the new collective bargaining agreement and of the four-day work week that the situation changed. Third, Hilton at all times authorized the exchanging of shifts among the three doormen. Fourth, Hilton offered Vélez a position as a security guard and as a security supervisor comparable in pay and benefits to his position as casino doorman. We therefore conclude that the efforts made to accommodate Vélez’ religious needs were reasonable.

Furthermore, Hilton sought to accommodate Vélez within the existing framework of the collective bargaining agreement without denying the benefits of the four-day week to other employees or incurring a greater than de minimis cost. By allowing Vélez to miss Fridays on a permanent basis, Hilton would force the other doormen, Tapia and Velazquez, to work overtime on consecutive shifts and thus interrupt their consecutive rest days against their wishes. , Conversely, Hilton would be forced to relocate security guards or casino supervisors, displacing them from their regular chores. These measures would not only leave one other position vacant, but would also necessarily entail the added risk that the replácement will not perform the doorman’s duties. Thus, the security of the casino would be affected. In the event that the casino supervisor were called to cover for Vélez, game tables would be left unsupervised, affecting the integrity of the game and giving rise to the possibility that the casino would lose its license to operate for failure to comply with the Rules and Regulations of the Puerto Rico Tourism Corporation. Clearly, all these alternatives would involve more than a de minim-is cost to Hilton either in the form of lost efficiency or higher wages. To require Hilton to bear them, we find, is an undue hardship under Hardison.

At this point we emphasize that Title VIPs use of the term “reasonable” suggests not solely a duty of the employer to find alternatives, but also a correlative duty of the employee “to make a good faith attempt to satisfy his needs through means offered by the employer. A reasonable accommodation need not be on the employee’s terms only.” Brener v. Diagnostic Center Hospital, 671 F.2d at 146. In fact, “bilateral cooperation is appropriate in the search for an acceptable reconciliation of the needs of the employee’s religion and the exigencies of the employer’s business.” Id. at 145-46.

Here, we find that Vélez never attempted to explore the possibilities for accommodation within the existing collective bargaining agreement. From the time the conflict first arose until trial, Vélez assumed a non-cooperative position, expecting Hilton to resolve the problem without any compromise on his part. Of course, he is entitled to refuse any offer of new employment or other accommodation if he so desires, but he simply, then, cannot claim that the hotel has failed to satisfy his needs.

The EEOC alleges in its post-trial memorandum that Vélez is willing to continue to alternate shifts with the other doormen and with the security guards and to give up his pay for Fridays. In order to support the feasibility of such proposal the EEOC points to the conciliation period during which such arrangements were made. Nonetheless, this alternative fails to conclusively solve the conflict. Such a solution is necessarily based on voluntary arrangements between the doormen and, as such, there are times when these arrangements cannot be executed. Doorman Velazquez, for instance, testified that he is not willing to trade shifts on a permanent basis because his days of rest would be interrupted. Tapia also testified that he would not be willing to trade with Vélez if it were inconvenient for him to do so. Furthermore, the fact that temporary arrangements were made to alternate shifts between the doormen during this conciliatory period does not suggest that it would be feasible to make such an arrangement permanent.

Vélez’ willingness to give up pay for the time he does not work is irrelevant since Title VII does not require the employer to pay an employee for time not worked because of religious reasons. Vélez’ present assertion implies that, throughout the entire conflict and negotiations, he expected Hilton to pay for every Friday he refused to work because of his religious beliefs. The fact that temporary arrangements were made to alternate shifts between the doormen during the conciliatory period does not suggest that it would be feasible to make such an arrangement permanent.

Moreover, the issue here is whether Hilton has met its duty to make reasonable accommodations for Vélez’ religious beliefs and not whether the alternatives tendered are entirely satisfactory to him. The federal court is not the appropriate forum in which to review the multitude of personnel decisions that are made daily by employers, see Bishop v. Wood, 426 U.S. 341, 349, 96 S.Ct. 2074, 2079, 48 L.Ed.2d 684 (1976), except those of course which contravene the law. Here, however, as it has been established, no violation of Title VII did in fact occur.

B. The union’s duty of fair representation and of reasonable accommodation

The EEOC claims that co-defendant Local 901 “has actively participated and acquiesced in [Hilton]’s discriminatory conduct and has failed to properly represent Vélez in this dispute.” Furthermore, the complaint charges that the union failed to accommodate Vélez' beliefs.

As to Local 901’s duty of fair representation to its members, suffice it to say that the union met its duty of fair representation by initiating the grievance procedure of the collective bargaining agreement upon Vélez’ dismissal.

Turning to the union’s duty to accommodate, we find that while Section 2000e(j) refers to the employer’s duty to reasonably accommodate the employee’s religious beliefs, courts have applied this provision to the union. Lutcher v. Musicians Union, Local 47, 633 F.2d 880, 884 (9th Cir.1980).

Notwithstanding the existence of this duty, however, it appears that the union could .not have undertaken reasonable accommodations short of excluding the doormen from the collective bargaining provision of the four-day week against their wishes. Such a measure would have deprived the two other doormen of the benefits of the collective bargaining contract. Moreover, Title VII does not impose “upon the unions the duty to ignore their contract under the circumstances of this particular case.” Hardison v. Trans World Airlines, 375 F.Supp. 877, 882 (W.D.Miss.1974). We thus find and conclude that to require the union to ignore the provisions of the four-day week in every case in which an employee cannot meet his scheduled work shift because of his religious beliefs when it is detrimental to other employees who benefit by said provisions, would work an undue hardship on the union and its members.

In sum, Section 2000e(j) mandates that an employer and the union make good faith efforts to accommodate an employee’s religious beliefs. It does not require that in so doing they override an established collective bargaining agreement. The record here shows that the employer did more than attempt to reasonably accommodate Vélez. It shows that Hilton bent over backwards to accommodate him.

In view of the above, plaintiff’s requests for preliminary and permanent injunctive relief are hereby denied. It is ordered that the complaint herein be and is hereby dismissed. The clerk shall enter judgment accordingly.

SO ORDERED..

        . After his suspension, Vélez was scheduled to. report to work on Friday, July 29, 1983, but he failed to do so and was again suspended. It must be noted that the evidence regarding this suspension is unclear. While Vélez testified that Julio Cora, the Casino Manager orally suspended him, the hotel’s records did not reflect said suspension. Furthermore, we take this opportunity to note that Vélez’ testimony was impregnated with inconsistencies, contradictions, selective and convenient lapses of memory, eva: sive answers and outright lies. Accordingly, we give little credence to it.

      . The use of firearms is against Vélez' religion.

      . Section 2000e-2(a)(1) provides:
      It shall be an unlawful employment practice for an employer—
      to fail or refuse to hire or 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 race, color, religion, sex, or national origin;

      . The evidence adduced’at trial showed that the position of security supervisor received $35 more than Vélez’ actual job as a doorman. The EEOC’s attempt to show that a doorman has additional income from tips fails to convince the court that a significant distinction exits between both positions. Similarly, Vélez’ stance requiring Hilton to transfer him with his twelve year seniority is without merit. See Hardison supra. Moreover, there have been no lay-offs in the hotel’s security department in the six years that Diaz has been Personnel Manager. In the event, however, that Vélez were to be dismissed from the new position in the future, and if such dismissal were unlawful, or in retaliation for having commenced these proceedings, he would have proper redress in court.

      . The EEOC alleges that the court can only rely on the facts surrounding Vélez’ July 2, 1983 suspension because it was that suspension that triggered the charge. We disagree. The relief sought by EEOC is Vélez’ permanent reinstatement, and it redresses Vélez’ dismissal, not the July 2 suspension. We are thus empowered to consider all efforts made by Hilton throughout the entire conflict with Vélez to determine whether it tried to make reasonable efforts to accommodate Vélez’ religious beliefs.

      . See Title 15 L.P.R.A. §§ 76a and 78.

      . The evidence presented reveals that while a solution was being sought, Vélez repeatedly informed Hilton that finding an alternative was the employer’s problem and not his.

      . During the trial, the EEOC introduced a written statement of Velázquez whereby he indicated that he was willing to alternate with Vélez. However, during voir dire Velázquez explained that he had signed the statement without assistance of counsel. He further established that when he signed the document he did not intend to give up his rights under the collective bargaining agreement to two consecutive days of rest. Accordingly, the written statement is not entitled to much weight.

      . We reach this conclusion notwithstanding Vélez’ testimony at trial that several union officials refused to intervene on his behalf. See note 1, in fine. Furthermore, during the conciliation process the union participated in several meetings to find a joint resolution to the scheduling conflict.