author: MENCER, District Judge.

text:
    Roy N. MOSER, Plaintiff, v. BOSTITCH DIVISION OF TEXTRON, INC., Defendant.
    Civ. A. No. 85-0760.
    United States District Court, W.D. Pennsylvania.
    May 30, 1985.

      John A. Caputo, Pittsburgh, Pa., for plaintiff.
    Louis Loughren, Meyer Darragh Buckler Bebenek & Eck, Pittsburgh, Pa., for defendant.
   MEMORANDUM OPINION

MENCER, District Judge.

A. MOTION TO REMAND

The complaint initiating this personal injury action in state court was served on the defendant, Bostitch Division of Textron, Inc. (hereinafter “Bostitch”), on March 7, 1985. A timely petition for removal of the action to federal court was filed on March 28, 1985. The plaintiff has filed a Motion to Remand this case to state court, stating that the petition for removal failed to properly allege diversity jurisdiction relative to the date of the commencement of the state court action. Subsequently, the defendant, after the thirty days permitted by 28 U.S.C. § 1446 for removal of a case, filed a Motion for Leave to File an Amended Petition for Removal, in order to more properly allege the basis for removal jurisdiction. The Court has examined the pleadings and determined that although jurisdiction allegations in the removal petition are defective, we will grant the defendant’s Motion for Leave to Amend.

Removal jurisdiction is to be strictly construed. Shamrock Oil and Gas Corp. v. Sheets, 313 U.S. 100, 61 S.Ct. 868, 85 L.Ed. 1214 (1941). Federal courts are courts of limited jurisdiction. State courts, in contrast, are courts of general jurisdiction. The exercise of removal jurisdiction infringes upon a State’s sovereignty. See Chicago Rock Island & Pacific Railway v. Martin, 178 U.S. 245, 248, 20 S.Ct. 854, 855, 44 L.Ed. 1055 (1900). The right of a defendant to remove a case to federal court is, therefore, limited by the scope of original federal jurisdiction. Grubbs v. General Electric Credit Corp., 405 U.S. 699, 92 S.Ct. 1344, 31 L.Ed.2d 612 (1972).

This Court is of the view that the petition for removal is defective. The defendant in this case based its petition for removal on diversity of citizenship; A petition for removal must allege that diversity of citizenship existed at the time the petition was filed and also that diversity existed at the time suit was commenced in state court. The petition filed by the defendant, however, only alleged diversity of citizenship at the time of the filing of the petition. It is silent as to citizenship at the time the suit was commenced in state court. The petition alleged that the defendant is a corporation existing under the laws of Rhode Island with a principal place of business in Rhode Island and that the plaintiff is an individual residing in Pennsylvania. The allegation that a party “is” a citizen of a certain state is not sufficient to show citizenship at the commencement of the action. Phoenix Insurance Co. v. Pechner, 5 Otto 183, 95 U.S. 183, 24 L.Ed. 427 (1877). It is clear that the record must show diversity at both times. See Jackson v. Allen, 132 U.S. 27, 34, 10 S.Ct. 9, 9, 33 L.Ed. 249 (1889).

The defendant has filed a Motion to Amend its petition for removal pursuant to 28 U.S.C. § 1653 which provides: “[defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts.” During the thirty-day removal period a defendant seeking removal generally has a right to amend his petition. Here, however, the statutory period for filing the removal petition, and thus for establishing jurisdiction, expired prior to the filing of the defendant’s motion.

Although the statutory time frame cannot be extended, some courts have allowed a defendant to amend its removal petition after the thirty-day period has run if the petition is merely defective. One such case was Harper v. National Flood Insurers Association, 494 F.Supp. 234 (M.D.Pa. 1980), in which the court commented on the cases not permitting amendment after the thirty days.

A fair reading of those cases is that a defendant may not, after the 30-day filing period, amend the petition for removal in such a manner as to change or alter the import of the petition, the resultant effect being to create jurisdiction where none existed before. Hence the rule that only technical changes, as well as amendments to cure defective allegations, will be permitted. 494 F.Supp. at 236 (emphasis in original).

In our case, it appears that an amendment would be only for the purpose of setting forth more specifically grounds for removal which were imperfectly stated in the original petition. The plaintiff has not shown that it would be prejudiced if this Court were to allow the defendant to amend its petition for removal. There is also no controversy as to the diverse citizenship of the parties both at the time suit was commenced and at the time of removal. Therefore, we will allow the defendant an opportunity to amend its petition for removal.

B. MOTION TO DISMISS

The Court also has before it a Motion to Dismiss Count IY of the Complaint which seeks punitive damages.

The Complaint alleged that the plaintiff was injured when a piece of wire, holding roofing nails together in a nailer, came out and penetrated his right eye. The injury occurred in Massachusetts where the plaintiff was working on a job for his Pennsylvania employer.

Since the differences between Massachusetts and Pennsylvania law regarding recovery of punitive damages are significant, a conflict in terms of choice of law is presented. In this diversity action, the conflict of laws rules to be applied are those of the forum state. Klaxon Co. v. Stentor Electric Manufacturing Co., Inc., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Therefore, we will look to Pennsylvania law to determine which state’s law, Massachusetts or Pennsylvania, should be applied.

For many years, Pennsylvania’s choice of law rule was to apply the law of the jurisdiction where the injury occurred. The Supreme Court of Pennsylvania in Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964), abandoned this strict lex loci delicti rule in favor of a more flexible rule permitting analysis of the policies and interests underlying the particular issue before the court. In that case, an airplane crashed in Colorado killing the decedent, a Pennsylvania domiciliary. The Court reasoned that Pennsylvania law should apply since the “state in which the injury occurred, as such, has relatively little interest in the measure of damages to be recovered unless it can be said with reasonable certainty that defendant acted in reliance on that state’s rule.” Griffith, at 23, 203 A.2d at 806. In our case, as in Griffith, the site of the accident was purely fortuitous. The nailer and roofing nails were mailed to the plaintiff’s employer in Pennsylvania. It was only as a result of the performance of work in Massachusetts for his Pennsylvania employer that the plaintiff was injured in Massachusetts.

The Third Circuit has interpreted Griffith as adopting a “flexible methodology entailing analysis of the policies and contacts of the various concerned jurisdictions.” Melville v. American Home Assur. Co., 584 F.2d 1306, 1311 (3d Cir.1978). This approach takes into account the contacts establishing significant relationships and the interests and policies that may be asserted by each jurisdiction. An analysis of the contacts existing between the parties and of the interests of Massachusetts and Pennsylvania leads us to conclude that Pennsylvania law should be applied.

It appears to the Court that Pennsylvania interests outweigh Massachusetts interests. Massachusetts has a policy of not permitting punitive damages against manufacturers unless expressly authorized by statute. International Fidelity Insurance Co. v. Wilson, 387 Mass. 841, 443 N.E.2d 1308 (1983). That law appears designed to deter recovery against Massachusetts manufacturers. Here, the defendant is incorporated in Rhode Island with an office in Pennsylvania. A decision in this case will not adversely affect the manufacturing process in Massachusetts. Pennsylvania’s interest in assuring tort victims full compensation will be served by applying Pennsylvania law, since Pennsylvania will permit the recovery of punitive damages in certain situations. Plaintiff in this case is a Pennsylvania resident.

The merchandise was allegedly sold and delivered in Pennsylvania. The nailer and roofing nails were allegedly delivered to the plaintiff’s employer in Duncansville, Pennsylvania. The relationship of the parties was centered in Pennsylvania. There have been no assertions that any activity transpired in Massachusetts other than the fortuitous happening of the injury. The accident could have as easily occurred in Pennsylvania or another state where the employer secured work for his employees. Pennsylvania has the most significant relationship to the parties. Therefore, an analysis of the interests of the states and of the contacts with those states leads us to conclude that Pennsylvania law will be employed in this action.

A plaintiff can recover punitive damages in Pennsylvania for a defendant’s outrageous conduct. Smith v. Brown, 283 Pa.Super. 116, 423 A.2d 743 (1980). The Complaint alleges sufficient grounds on which to base the plaintiff’s claim for punitive damages under the more liberal notice pleading requirements of federal court. Accordingly, we will not strike Count IV of the Complaint.

An appropriate order will issue.


source: Caselaw Access Project

author: CAFFREY, Chief Judge.

license: Public Domain

text:
    Albert BANNISTER, Jr., Plaintiff, v. Joseph PONTE, et al., Defendants.
    Civ. A. No. 83-0753-C.
    United States District Court, D. Massachusetts.
    May 30, 1985.

      Richard Neumeier, Parker, Coulter, Daley & White, Boston, Mass., for plaintiff.
    Vincent L. Di Cianni, Asst. Atty. Gen., Boston, Mass., for defendants.
   MEMORANDUM

CAFFREY, Chief Judge.

Plaintiff Albert Bannister, an inmate at the Massachusetts Correctional Institution at Walpole (“MCI Walpole”), has brought this action against several present and former employees of the Massachusetts Department of Corrections (“DOC”) pursuant to 42 U.S.C. § 1983. The present defendants are Joseph Ponte (“Ponte”), Superintendent of MCI Walpole, Michael Corsini (“Corsini”), Unit Manager at Walpole, and the three members of a DOC disciplinary board. See 103 CMR § 430.13. The matter is now before the Court on the defendants’ motions for summary judgment.

There are three identifiable factual and legal issues before the Court: (1) whether the transfer of a prisoner in violation of state law is a cognizable injury under § 1983; (2) whether there is a genuine issue of material fact regarding acts or omissions by defendants Ponte and Corsini which would give rise to liability under § 1983; and (3) whether there is a genuine issue of material fact as to any acts or omissions by the disciplinary board which would give rise to liability under § 1983.

The plaintiff’s amended complaint alleges certain facts, the substance of which is as follows. On August 24, 1982 the plaintiff was involved in an altercation with another inmate named Larrabee. Corrections Officers intervened, returning Bannister to the Middlesex I cell block, where he had been housed prior to the fight. On August 27, 1982, defendant Corsini informed the plaintiff that he was being moved to the Middlesex II cell block, where Larrabee was housed. The plaintiff objected to this move, telling Corsini that his life would be in substantial danger if he were moved to the block where Larrabee lived. Initially, Bannister was placed on “awaiting action” status in Middlesex II, which involved his being locked in a cell a substantial portion of each day. Allegedly, pertinent state regulations were violated in that no disciplinary report was filed until September 17, 1982, and no hearing was held until September 28, 1982. Meanwhile, the plaintiff repeatedly communicated his fears of retaliation to Corsini, and wrote a letter to Ponte about the situation.

At the disciplinary hearing, Bannister told defendant Ponte and the three members of the disciplinary board that he feared for his safety in Middlesex II because Larrabee had a reputation for assaultive and retaliatory behavior.

On September 29, 1982 Bannister was released from “awaiting action” status but remained in Middlesex II, allegedly in violation of DOC regulations and practice, and despite his protestations. On October 4, 1982, the plaintiff was assaulted in Middle-sex II by an inmate (later identified as Warren Masciemento) and suffered a wound to the head which required 14 stitches to close, left a permanent scar, and has caused very bad headaches, blurred vision, dizziness and damage to his sight.

The complaint purports to state claims for violation of Bannister’s rights under the State Department of Corrections Regulations and violation of his Federal Constitutional rights.

Violation of State Law

On the first issue, the plaintiff concedes that the transfer of a prisoner from one cell block to another, even if in violation of state law, is not an injury cognizable under § .1983. It is well established that § 1983 applies only where federal rights are violated. Baker v. McCollan, 443 U.S. 137, 146-147, 99 S.Ct. 2689, 2695-2696, 61 L.Ed.2d 433 (1979). Accordingly, I rule that the defendants’ motion for summary judgment should be granted as to this portion of the complaint.

Section § 1983 Claims Against Ponte and Corsini

The second issue involves the question of defendants Ponte and Corsini’s liability under § 1983 for Bannister’s injury. Although there is generally no § 1983 remedy available against one who negligently fails to prevent injury at the hands of a third person, there is an exception where, by reason of an involuntary commitment to a prison or mental institution, the state places the plaintiff in peril. See Smith v. Wade, 461 U.S. 30,103 S.Ct. 1625, 75 L.Ed.2d 632 (1983); Youngberg v. Romeo, 457 U.S. 30, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982); Clark v. Taylor, 710 F.2d 4 (1st Cir.1983). A prison official is “liable for a failure to act that reflects a reckless or callous indifference to the ... safety of the prisoners in his charge.” Clark v. Taylor, 710 F.2d at 9; See also Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976).

The focus of the Court’s inquiry on a motion for summary judgment is therefore whether there is a genuine issue of material fact as to whether the defendants acted with reckless disregard or callous indifference to the plaintiff’s safety. In this analysis, I note that the discovery materials are replete with claims by Bannister that he notified both Ponte and Corsini that he was in danger in Middlesex II because he feared retaliation from Larrabee. Depositions from two other prisoners corroborate Bannister’s claim that he notified Ponte and further elaborate on the likelihood of retaliation by Larrabee or his associates.

In contrast, the depositions of defendants Ponte and Corsini indicate a lack of memory as to any such notification, and are silent as to any knowledge of the plaintiff’s peril.

When deciding a motion for summary judgment a Court must draw all inferences from the record favorably to the party opposing the motion. United States v. Die-bold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). The record in this case is such that there is clearly a genuine issue of material fact as to whether the defendants were aware of Bannister’s peril. A jury could find that Ponte and Corsini transferred Bannister into a dangerous situation, kept him there despite his repeated pleas, and were on notice that his safety was at risk. Because the evidence, with all inferences drawn favorably to the plaintiff, would meet the “deliberate indifference” standard of Clark v. Taylor, I rule that summary judgment should not be granted on this issue in favor of Ponte and Corsini.

The defendants also argue that they are entitled to qualified good faith immunity. See Procunier v. Navarette, 434 U.S. 555, 561, 98 S.Ct. 855, 859, 55 L.Ed.2d 24 (1978); Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The objective good faith standard propounded in Harlow would provide a defense for the Corsini and Ponte only if their conduct did not violate clearly established constitutional rights of which a reasonable person would have known. 457 U.S. at 817-818, 102 S.Ct. at 2737-2738. I note that at the time of the events which are the subject of this complaint it was well established law that “prison officials have a duty under the 8th and 14th amendments to protect prisoners from violence at the hands of other prisoners.” Leonardo v. Moran, 611 F.2d 397, 398-9 (1st Cir.1979). Consequently, I rule that the defendants are not entitled to summary judgment on the basis of good faith immunity.

Section 1983 Claims Against Members of the Disciplinary Board

The third issue before the Court involves the question of § 1983 liability on the part of the disciplinary board. This board is organized under, and operates pursuant to, regulations promulgated by the Commissioner of Corrections as authorized by M.G.L. c. 124 § l(q). 130 CMR § 430.-01-26. DOR regulations require that the Commissioner appoint three persons to serve on the disciplinary board, one of whom is to be designated as chairman. 130 CMR § 422.07. The board hears evidence regarding disciplinary infractions, 130 CMR § 422.13, makes findings of fact, 130 CMR § 422.14, renders a decision as to the inmates guilt or innocence, and may impose certain enumerated disciplinary sanctions, 130 CMR § 422.16.

Frank Milette, Joseph Carey, and David Pietrewicz sat on the board before which the plaintiff appeared. Although knowledge of the precise status of these individuais is important to the Court’s analysis, there is a death of relevant information in the record. From the defendants’ answers to interrogatories, it appears that defendant Milette, the board chairman, was also employed by the DOC as “Relief Officer/Sgt.” Joseph Carey’s regular employment was with the DOC as “Principal Clerk in Cost' Office,” at MCI Walpole. David Pietrewicz was, at the time, a “student intern/case social worker” at the institution.

The defendants argue that because the disciplinary board exercises judicial functions, its members are entitled to absolute immunity from civil suit. See Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). At this juncture, however, it is unnecessary for the Court to decide whether prison disciplinary boards enjoy absolute immunity because the actions complained of fall outside the scope of the board’s judicial function. The essence of the plaintiff’s allegations regarding the disciplinary board is that they “did nothing” in response to Bannister’s pleas. I note that according to the governing regulations it was not within the board’s power to take any corrective action regarding Bannister’s situation. The Board has no power to assign an inmate to any particular block, or to effect his transfer from block to block. See 103 CMR § 430.23. Therefore, the plaintiff’s request for the board’s intervention was extraneous to the board’s judicial function and the concept of judicial immunity plays no part in the Court’s analysis. Ward v. Johnson, 690 F.2d 1098, 1109 (4th Cir.1982) (a prison disciplinary board qualifies for absolute immunity only where the action complained of is of a judicial character).

What remains, then, is to determine whether these three defendants were under any § 1983 duty to act on Bannister’s request by attempting to influence those responsible for his plight. As noted previously, even state officers are generally under no duty to prevent injury at the hands of third persons. See discussion and cases cited supra at pp. 3, 4. There is case law, however, that a police officer or prison guard has a duty to intervene, even with a superior officer, to prevent a deprivation of constitutional rights. Clark v. Taylor, 710 F.2d 4, 9 (1st Cir.1983). A negligent failure to intervene will not give rise to liability, but liability will attach where an officer’s failure “reflects a reckless or callous indifference to the rights and safety of the prisoners in his charge.” Id. This duty has its basis in the officer’s “position of responsibility.” Id. For example, a police officer’s duty to intervene is grounded in his responsibility to enforce the laws and preserve the peace. Wilkinson v. Ellis, 484 F.Supp. 1072, 1085 (E.D.Pa.1980).

It seems highly unlikely that the disciplinary board’s narrowly-proscribed judicial function would constitute a “position of responsibility” with respect to matters beyond the scope of that function. Indeed, because the requested act was beyond the board’s official capacity and responsibility, the board’s failure to accede to the request does not constitute an abuse of official power under color of state law, and therefore does not fall within the ambit of § 1983. See Monroe v. Pape, 365 U.S. 167, 184, 81 S.Ct. 473, 482, 5 L.Ed.2d 492 (1961), other aspects overruled, Monell v. City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In other words, these three defendants were under no special duty to act on Bannister’s request due to their status as members of the disciplinary board.

This analysis is, however, complicated by the fact that all three of these defendants held positions within the institution as DOC employees. It is unclear from the record whether these other positions, in and of themselves, carry responsibility for the care, custody and safety of the inmates. These are, of course, material facts which may be dispositive of the case against these three defendants. Because the moving parties have failed to show that there remains no genuine issue as to these material facts, I rule that they are not entitled to summary judgment on this theory. I further rule that defendants Carey, Milette, and Pietrewicz are not entitled to summary judgment by reason of good faith immunity for the reasons articulated in the preceding section of this opinion. Accordingly, the motion for summary judgment should be denied as to the constitutional claims against these three defendants.

Order accordingly.


author: MOYE, District Judge.

text:
    Randall Jerry GRAVITT, Plaintiff, v. B.J. GRAVES, Defendant.
    Civ. A. No. C83-964A.
    United States District Court, N.D. Georgia, Atlanta Division.
    May 30, 1985.
    Ralph Goldberg, Atlanta, Ga., Bensonetta Tipton Lane, College Park, Ga., for plaintiff.
    Claude L. Goza, Kirby A. Glaze, Steven M. Fincher, Glaze & McNally, Jonesboro, Ga., for defendant.
   ORDER OF COURT

MOYE, District Judge.

The above-styled action is before the Court on the defendant’s motion for a judgment notwithstanding the verdict pursuant to Fed.R.Civ.P. 50(b). The defendant’s sole argument supporting his motion is that ordinary negligence is insufficient to support the plaintiff’s claims under 42 U.S.C. § 1983. After a brief review of the facts, this Court will address the defendant’s argument.

FACTUAL BACKGROUND

On January 15, 1983, the plaintiff was a pre-trial detainee at the Clayton County Jail. On that day, the plaintiff was involved in a fight with another inmate and suffered a broken nose. The plaintiff alleged at trial that defendant B.J. Graves, the captain of the Clayton County Jail, had knowledge the plaintiff was in danger and failed to protect him. In its answers to special interrogatories, the jury found that the defendant was negligent in his duty to protect the plaintiff from other inmates and awarded the plaintiff $10,000.00 in damages. The defendant has now filed a motion for a judgment notwithstanding the verdict on the sole ground that negligent conduct is not sufficient to impose liability under 42 U.S.C. § 1983. After a review of the pleadings and the relevant case law, this Court concludes that it must deny the defendant’s motion.

DISCUSSION

The plaintiff’s claim against defendant Graves arises under 42 U.S.C. § 1983 which states the following in pertinent part:

Every person who, under color of any statute, ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law____

In Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1980), the plaintiff brought an action under § 1983 claiming that prison officials negligently deprived him of a hobby kit valued at $23.50. In Parratt, the Supreme Court articulated the proper analysis in cases arising under 42 U.S.C. § 1983. The Court stated the following:

[I]n any § 1983 action, the initial inquiry must focus on whether the two essential elements to a § 1983 action are present: (1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.

Id. at 535, 101 S.Ct. at 1913.

The Court went on to discuss the viability of the plaintiff’s claims and stated that, “[ujnquestionably, [the plaintiff’s] claim satisfies three prerequisites of a valid due process claim: the petitioners acted under color of state law; the hobby kit falls within the definition of property; and the alleged loss, even though negligently caused, amounted to a deprivation.” Id. at 536-537, 101 S.Ct. at 1913-1914 (emphasis added). This language clearly supports the proposition that a negligent deprivation of a constitutional right is actionable under 42 U.S.C. § 1983 if the other requirements of the statute are met. Numerous courts have reached the identical conclusion. See e.g., Howard v. Fortenberry, 723 F.2d 1206, 1209, fn. 6 (5th Cir.1984); Hirst v. Gertzen, 676 F.2d 1252, 1263 (9th Cir.1982); Holmes v. Ward, 566 F.Supp. 863 (E.D.N. Y.1983); Abraham v. County of Washoe, 547 F.Supp. 548 (D.Nev.1982).

The above-mentioned authorities stand for the proposition that unless the constitutional provision at issue adds an additional requirement, a negligent deprivation of rights is actionable under § 1983. For example, it is well settled that a plaintiff must prove “deliberate indifference” on the part of a defendant in order to state a claim for cruel and unusual punishment under the Eighth Amendment. See Aldridge v. Montgomery, 753 F.2d 970 (11th Cir.1985). The issue in the present case is whether the Due Process Clause of the Fourteenth Amendment, in the context of an allegation by a pre-trial detainee that he was not adequately protected by jail personnel, imposes a similar requirement on a plaintiff attempting to state a claim under 42 U.S.C. § 1983.

The Fourteenth Amendment to the United States Constitution states the following in pertinent part:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law____

Unlike the Eighth Amendment which only prohibits “cruel and unusual punishment”, there is no language in the Fourteenth Amendment that would require a plaintiff to prove that he was injured because of behavior more egregious than ordinary negligence. Furthermore, the plaintiff in Parratt was also alleging a violation of the Due Process Clause and, as noted earlier, the Supreme Court found that he alleged sufficient facts to state a claim that he was subjected to a constitutional deprivation. Although the plaintiff in Parratt alleged that he was negligently deprived of property whereas the plaintiff in the instant case alleges a negligent deprivation of liberty, this Court sees no reason to distinguish constitutional deprivations of property and liberty when arriving at the appropriate standard of care. Finally, several courts have faced the identical issue facing this Court and have concluded that a jailer’s negligent deprivation of a pre-trial detainee’s liberty is cognizable under 42 U.S.C. § 1983. See Holmes v. Ward, 566 F.Supp. 863 (E.D.N.Y.1983); Abraham v. County of Washoe, 547 F.Supp. 548 (D.Nev.1982). For all of the above-mentioned reasons, this Court concludes that the plaintiff’s claim of negligence in this action is sufficient to state a cause of action under 42 U.S.C. § 1983.

In sum, this Court finds that the jury’s finding of negligence supports the plaintiff’s 42 U.S.C. § 1983 claim and therefore the defendant’s motion for a judgment notwithstanding the verdict must be DENIED.

      . The plaintiff initially brought numerous constitutional claims against Clayton County, Sheriff Deyton, and Francis Ward, a nurse at the Clayton County Jail. All of these claims were dismissed either on summary judgment or at the directed verdict stage of the trial.

      . The Parratt Court went on to hold that the plaintiff failed to state a claim under § 1983 because the state had adequate post deprivation remedies which the plaintiff could have utilized to redress the alleged deprivation. This Court firmly believes that this part of the Parratt decision would operate to bar the plaintiffs claims in the instant suit were it not for the fact that the plaintiff's state law negligence claims would now be barred by the statute of limitations, see, Curlee v. Mock Enterprises, Inc., et al, 173 Ga. App. 594, 327 S.E.2d 736 (1985), and therefore the plaintiff, in this case, does not have an adequate post deprivation remedy. The Court reaches the conclusion that it would be unfair to punish the plaintiff for not filing a concurrent state court action only because of the uncertainty that has accompanied the applicability of Parratt to deprivations of liberty. This Court feels that the consistent application of the Parrott decision is absolutely necessary to prevent § 1983, from becoming a general Federal tort statute. The Court also notes that the defendant has not raised the issue of post-deprivation remedies in his motion for a JNOV.

      . This Court disagrees with the Holmes’ and Abrahams' courts' decisions that Parratt’s adequate state procedures holding does not apply to negligent deprivations of liberty.


author: BUA, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Lee A. IVERSON, David E. Rapoport, and Katz, Friedman, Schur and Eagle, Chtd., Defendants.
    No. 85 C 1434.
    United States District Court, N.D. Illinois, E.D.
    May 30, 1985.

      Anton R. Valukas, U.S. Atty. by Martin B. Lowery, Asst. U.S. Atty., Chicago, for plaintiff.
    E. Bryan Dunigan, Chicago, for defendants.
   ORDER

BUA, District Judge.

Before the Court are defendants’ motion to dismiss and plaintiff’s motion for summary judgment. For the reasons stated herein, defendants’ motion to dismiss is denied and plaintiff's motion for summary judgment is granted.

I. FACTS

This is an action based on breach of contract and promissory estoppel brought by the plaintiff United States for the Veterans Administration (VA). The action seeks to recover certain medical expenses from the defendants, who acted as attorneys for Howard Jones, a former patient at two VA hospitals. From October 9, 1980 through approximately February 16, 1983, defendants’ client Howard Jones received both inpatient and outpatient treatment for a work related injury in VA facilities at Hines and West Side hospitals in the Chicago area. Defendants filed a workers' compensation proceeding with the Illinois Industrial Commission on Jones’ behalf, naming as respondent Jones’ employer, the Chicago Housing Authority (CHA).

In order to establish their client’s injuries, period and extent of disability and medical expenses, defendants addressed a series of letters to the VA requesting hospital and medical records, medical history, objective and subjective complaints, objective findings, X-rays, prognosis, diagnosis, medical opinion as to the extent and time period of disability, if any, and relevant medical expenses.

The VA responded by informing defendants that, pursuant to 38 C.F.R. § 17.48 and Section 138.8 of Chapter 48, Illinois Revised Statutes, the VA was entitled to reimbursement for medical expenses incurred by a workers’ compensation claimant treated in a VA facility. The VA also requested defendants’ cooperation in asserting the bill for VA medical expenses and, in return, offered to furnish medical records and testimony at no cost. In addition, the VA agreed not to intervene in the defendants’ conduct of the workers’ compensation proceeding upon defendants’ assurance that the VA medical bill would be part of any settlement or award.

In his letter of December 16, 1981, Lee A. Iverson, one of the defendants, stated to the VA that “if the Veterans Administration will supply me with Mr. Jones’ medical records, I will agree to protect the agency’s bills for any work-related medical treatment they may have rendered to Mr. Jones.” (Exhibit 5 to Plaintiff’s Complaint.) By letters dated May 6, 1981, February 12, 1982, and June 16, 1982, plaintiff supplied defendants with Jones’ medical records and the requested billing information.

Plaintiff requested defendants to keep it advised as to the status of the case on several occasions. (Exhibits 3, 6, 9, 10, 11 and 12 to the Complaint.) However, defendants neither informed plaintiff of any settlement offer made by the CHA, nor informed plaintiff of the approved settlement dated February 16, 1983, until October 6, 1983, after all monies had been disbursed. Finally, defendants obtained an indemnity agreement as part of the settlement package by which the CHA agreed to defend or indemnify the defendants and Jones in the event that the VA brought an action against them to collect medical expenses which the VA incurred relative to Jones’ injury. Before the Court is just such a collection action.

II. DISCUSSION

In support of their motion to dismiss, defendants argue that there was no consideration to support a contract. In support of this argument, the defendants point out that Jones was entitled to his VA medical reports and records so that the VA’s promise to furnish them is a promise to do something which it was already legally obligated to do and therefore was not sufficient consideration. In the alternative, defendants contend that, at most, they agreed to present the VA medical bill to Jones’ employer for payment and to the Industrial Commission arbitrator, if the case went that far, which it didn’t. Finally, defendants argue that, even if they agreed to represent the VA’s interest in Jones’ medical bill, the VA was entitled only to reasonable and necessary treatment causally related to the work-related injury. The defendants contend that these expenses were not part of the settlement award because the award specifically stated that the CHA denied liability for any such expenses.

Plaintiff counters that the contract was supported by sufficient consideration, i.e., the forebearance of the VA's right to intervene in the workers’ compensation proceeding. The VA further argues that the defendants are liable for the VA medical bill under the doctrine of promissory estoppel since they made a promise to protect the VA’s interest, the VA reasonably relied on the promise to its detriment, and the defendants failed to fulfill their promise. In addition, the VA contends that the defendants cannot argue that the medical expenses were not caused by Jones’ work-related injury because they requested the medical reports, records and doctors’ opinions for the purpose of making such a causal connection.

A. Defendant’s Motion to Dismiss

A complaint should be dismissed for failure to state a claim only if it appears “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir.1984). A complaint must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory. Sutliff, Inc. v. Donovan Cos., 727 F.2d 648, 654 (7th Cir.1984). In addition, all well-pleaded facts and allegations in plaintiff’s complaint must be taken as true in addressing a motion to dismiss. Id.

In the present case, it is clear that plaintiff’s complaint alleges facts under which it could prove either a breach of contract action or an action under promissory estoppel. The exhibits to the complaint contain letters from defendant Iverson from which one could reasonably infer the existence of an agreement, or at the very least, his promise. Other letters from the VA which are-exhibits to the complaint demonstrate the potential for consideration, i.e., providing medical records and testimony, and forebearance of the right to intervene. The reasonableness, necessity and work-relatedness of the treatment and medical expenses are all well-pled in the complaint. Therefore, the Court finds that the plaintiffs complaint is more than adequate to satisfy the federal pleading requirements and survive defendants’ motion to dismiss for failure to state a claim, which is accordingly denied.

B. Plaintiffs Motion for Summary Judgment

Pursuant to Fed.R.Civ.P. 56, a motion for summary judgment should be granted only if there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Rule 56(e). However, to create a question of fact, an adverse party responding to a properly made and supported summary judgment motion must set forth specific facts showing that there is genuine issue for trial. Rule 56(e); Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.1983). A party may not rest on mere allegations or denials in his pleadings; similarly, a bare contention that an issue of fact exists is insufficient to raise a factual issue. Id. Rule 56 of the Federal Rules of Civil Procedure clearly requires that an adverse party set forth specific facts showing a genuine issue for trial. Id.

In its motion for summary judgment, the plaintiff refers to the exhibits attached to its complaint to support its two contentions: (1) that there was valuable consideration to support a contract or detrimental reliance based on a promise sufficient to support promissory estoppel; and (2) that the VA medical expenses were reasonable, necessary, and incurred in connection with Jones’ work-related injury. Defendants merely argue that the facts do not support an action for breach of contract or one based on promissory estoppel. However, defendants do not and most likely could not deny the existence of Iverson’s statements in the letters submitted by the VA. Therefore, while defendants argue a different result than the plaintiff, they do not deny the plaintiff’s facts or present other facts to counter plaintiff’s inferences.

The only fact which defendants bring to light is the indemnification agreement between Jones, defendants and the CHA. This indemnification does not prevent the VA from commencing a collection action against the defendants.

Taking the plaintiff’s facts as undisputed, the Court must determine whether those facts and their reasonable inferences support a claim for breach of contract or one under promissory estoppel. Since the question of sufficient consideration to support a contract is unclear here, the Court finds that it is more appropriate to analyze plaintiff’s cause of action as one under the doctrine of promissory estoppel. The promissory estoppel analysis is appropriate because that doctrine is usually considered a substitute for consideration. Bank of Marion v. Robert “Chick” Fritz, Inc., 57 Ill.2d 120, 311 N.E.2d 138, 140 (1974).

Promissory estoppel is an equitable doctrine invoked to prevent a person from being injured by a change in position made in reliance on another’s conduct. Kalins v. Maleo, A Microdot Co., Inc., 121 Ill.App.3d 520, 459 N.E.2d 1038, 1045, 76 Ill.Dec. 903, 910 (1st Dist.1984). The doctrine is comprised of the following elements: (1) a promise, (2) which the promisor should reasonably expect to induce action or forebearance of a definite and substantial character on the part of the promisee, (3) which induces such actions or forebearance, and (4) which must be enforced in order to avoid injustice. Id.; Bolden v. General Acc., Fire & Life Assur., 119 Ill.App.3d 263, 456 N.E.2d 306, 308, 74 Ill.Dec. 804, 806 (1st Dist.1983).

First, Iverson’s statement in Exhibit 5 to the Complaint cited earlier constituted a promise to protect the VA’s bill for any work-related medical treatment which the VA rendered to Jones. Defendants’ argument that the VA failed to establish that the medical expenses were work-related is rejected by the Court as inconsistent with Exhibit 7 to the complaint. Exhibit 7, a letter from one of the defendants, specifically requests evidence of work-related medical expenses and closes with the statement: “With this information I will do everything that I can to protect your interest in this litigation.” In addition, Exhibit 14 to the Complaint, the settlement form, sets forth $14,232 in VA medical bills. In light of these exhibits, the Court finds the defendants’ argument that the VA medical bills were not work-related to be disingenuous and without merit, notwithstanding the CHA’s disclaimer of liability in the settlement agreement.

Second, the VA could reasonably rely on the defendants’ promise that they would protect its interest in the litigation with the CHA. In addition, the unanswered letters from the VA to the defendants requesting information updates regarding the progress of Jones’ claim show that the VA actually relied on the promise.

Third, in reliance on the defendants’ promise, the VA promised not to intervene in the workers’ compensation proceeding before the Illinois Industrial Commission. Therefore, the promise induced forebearance of the VA’s right to intervene to protect its interests, notwithstanding the fact that the case settled before being heard by an arbitrator of the Commission.

Fourth, the defendants’ promise to protect the VA’s interest in its medical bills must be enforced in order to avoid the case being settled without the VA receiving its reimbursement. In all likelihood, this collection action will not result in money taken out of the lawyer-defendants’ pockets, but out of the employer CHA’s pocket. The indemnification agreement between Jones, the defendants, and the CHA essentially prevents the CHA from settling with injured employees and their attorneys without paying the employee’s hospital bills. This may have been what was attempted by the CHA in this case.

III. CONCLUSION

Since the plaintiff has- satisfied all four elements for an action based on promissory estoppel from the undisputed facts, the Court grants summary judgment in plaintiff’s favor in the amount of $14,232. The parties will bear their own costs. Accordingly, defendants’ motion to dismiss is denied.

IT IS SO ORDERED.


text:
    David TANNENBAUM, Plaintiff, v. ENVIRODYNE ENGINEERS, INC., a Delaware corporation, and Henry W. Kissinger, Secretary of State of the United States of America, and Unknown Defendants, Defendants.
    No. 84 C 10656.
    United States District Court, N.D. Illinois, E.D.
    May 30, 1985.

      David Tannenbaum, pro se.
    Anton R. Valukas, U.S. Atty. by Thomas P. Walsh, Asst. U.S. Atty., Chicago, Ill., for defendants.
    Terry L. Engel, Michael J. Devine, Loren R. Stone, Deutsch, Levy & Engel, Chtd., Chicago, Ill., for defendant Envirodyne.
   ORDER

BUA, District Judge.

Before the Court is the defendant Envirodyne’s motion to dismiss for lack of jurisdiction under 28 U.S.C. § 1346(b). For the reasons stated herein, defendant’s motion to dismiss is granted.

I. FACTS

The plaintiff is an engineer. In September 1975 he entered into an employment contract with Westenhoff & Novick, Inc. The defendant Envirodyne is successor to Westenhoff & Novick. The plaintiff was hired to serve as Project Manager for the design and construction of a certain project in the Republic of El Salvador for a period of 18 months beginning' in July 1975. Plaintiff alleges that in October 1975, defendant Envirodyne terminated his employment in breach of the terms of that contract.

Plaintiff originally alleged diversity jurisdiction under 28 U.S.C. § 1332. Upon defendant’s motion to dismiss for lack of diversity, plaintiff filed his first amended complaint, additionally naming as defendants Henry W. Kissinger, former Secretary of State of the United States, and other unknown persons. He now claims this Court has jurisdiction pursuant to 28 U.S.C. § 1346(b). Defendant Envirodyne again has filed a motion to dismiss based on lack of jurisdiction under the Federal Tort Claims Act, 28 U.S.C. 1346(b).

II. DISCUSSION

It is well established that federal courts are courts of limited jurisdiction. Regarding claims against the federal government, the court’s jurisdiction is conferred by statute. Under the federal statutes, jurisdiction over contract claims against the government is different from jurisdiction over tort claims. Contract claims are covered by the Tucker Act, 28 U.S.C. § 1346(a)(2), which confers upon the Court of Claims jurisdiction over “any claim against the United States ... founded ... upon any express or implied contract with the United States ... in cases not sounding in tort.” The district courts have concurrent jurisdiction over such cases but only when the claim does not exceed $10,000. 28 U.S.C. § 1346(a)(2). Jurisdiction over tort claims against the government is made exclusive to the district courts by 28 U.S.C. § 1346(b). Woodbury v. United States, 313 F.2d 291 (9th Cir.1963).

As the language of the complaint makes clear, this claim is based in contract and does not fall within the coverage of the Federal Tort Claims Act, 28 U.S.C. § 1346(b). The Tucker Act, 28 U.S.C. § 1346(a)(2), constitutes the sole jurisdictional basis for a suit against the United States sounding in contract, and exclusive jurisdiction is in the Court of Claims if the amount in issue exceeds $10,000. 28 U.S.C. §§ 1346(a)(2) and 1491.

In some instances, a breach of contract can also be treated as a tort. However, in this action plaintiff asserts damages based on breach of contract. It is settled that claims founded upon an alleged failure to perform contractual obligations are not deemed “tort” claims for the purposes of the division between Tort Claims Act and Tucker Act jurisdiction. Blanchard v. St. Paul Fire & Marine Insurance Co., 341 F.2d 351 (5th Cir.1965). Therefore, the Court holds that where, as in this case, the action is essentially for breach of a contractual undertaking and the liability, if any, depends wholly upon the government’s alleged promise, the action must be brought under the Tucker Act and not under the Federal Tort Claims Act.

Under the Tucker Act, federal jurisdiction to hear plaintiff’s action is limited to the Court of Claims because the amount of damages claimed, $30,400, exceeds $10,000. 28 U.S.C. §§ 1346(a)(2) and 1491. This Court is empowered to transfer plaintiff’s case to the Court of Claims under 28 U.S.C. § 1406(c). However, plaintiff’s amended complaint fails to define a claim against the United States or Henry Kissinger, who is named as defendant. The real parties in interest to the employment contract are plaintiff and defendant Envirodyne. In addition, the underlying employment contract does not name the United States nor Henry Kissinger as a party, and therefore it cannot be considered a government contract on which the United States is liable.

If the plaintiff can allege facts sufficient to support the tenuous connection between Kissinger, AID (Agency for International Development), and Envirodyne on which he rests his contract action, he can bring an action in the U.S. Court of Claims. However, in light of this tenuous connection, the Court declines to transfer the case to the Court of Claims and instead dismisses the case without prejudice to file an action in the U.S. Court of Claims. United States v. Welborn, 495 F.Supp. 833, 837 (M.D.N.C. 1980).

III. CONCLUSION

Since this Court does not have jurisdiction to hear this case under either 28 U.S.C. § 1346(b) or § 1346(a)(2), defendant’s motion to dismiss plaintiff’s complaint is granted.

IT IS SO ORDERED.


author: GERALD J. WEBER, District Judge.

text:
    Wayne Edward FRAZIER and Colleen D. Frazier, his wife, Plaintiffs, v. MATERIALS TRANSPORTATION COMPANY; Applied Power, Inc.; Namco Controls, an Acme-Cleveland Company, Defendants.
    Civ. A. No. 84-1082.
    United States District Court, W.D. Pennsylvania.
    June 5, 1985.

      Samuel R. Sciullo, Pittsburgh, Pa., for plaintiffs.
    Wayman Irvin & NcAuley, Pittsburgh, Pa., for Applied Power Inc.
    Rose, Schmidt, Dixon & Hasley, Pittsburgh, Pa., for Namco Controls.
    James E. Kennedy, Pittsburgh, Pa., for Materials Transp.
   MEMORANDUM OPINION

GERALD J. WEBER, District Judge.

In this action for personal injury, plaintiffs have sued the maker of a hydraulic meat dumping machine and the makers of some of its component parts. Wayne Frazier injured his knee after jumping from the hydraulic lift of the meat dumping machine. He was standing on the lift in an attempt to clean the machine. After raising himself by activating the lift, he found he could not reach the stop button. Fearing the prospects of being dumped into meat-grinding augurs, he jumped from a height of about six feet.

Each of the defendants has moved for summary judgment, supported by briefs, to which plaintiffs have responded. In their responses and pretrial narratives, plaintiffs have narrowed their cause of action to a single theory: failure to warn under Section 402A of the Restatement (Second) of Torts (1966). Plaintiffs do not dispute defendants’ recital of facts, which makes this case ripe for summary judgment. We will address Namco’s motion first.

Namco did not design or assemble the meat dumper; it manufactured four switches which were incorporated into the machine. These switches are located at various positions along a vertical channel in the machine. The vat which carries the meat to be dumped rides along this channel. The switches are intended only to indicate the position of the vat in the channel. They are not part of any of the operator’s controls. Namco played no role in the ultimate placement of their switches. See Namco’s Motion for Summary Judgment, Affidavit of Robert Kantner. The switches functioned properly at an inspection conducted June 20, 1984.

There is no question that a manufacturer may be liable for failure to warn even when a product is carefully designed and manufactured. See, e.g. Sherk v. Daisy-Heddon, 498 Pa. 594, 450 A.2d 615 (1982). But in order to succeed in such an action, plaintiffs must establish that the failure to warn was cause-in-fact and proximate cause of their injuries. See, e.g. Conti v. Ford Motor Co., 743 F.2d 195, 196 (3d Gir.1984). “Although the question of causation is normally for the jury ‘if the relevant facts are not in dispute and the remoteness of the causal connection between the defendants’ negligence and the plaintiff’s injury clearly appears, the question becomes one of law.’ ” (citations omitted). Id. at 197-98. In addition, in this case involving suppliers of component parts Section 402A implicitly requires proof that these defendants are responsible for the failure to Warn. Taylor v. Paul O. Abbe, Inc. 516 F.2d 145, 147 (3d Cir.1975) (judgment against component part supplier reversed).

Namco has set forth affirmative evidence in the form of an affidavit that it had no role in the placement of its switches on the meat dumper. See Kantner Affidavit, supra. Plaintiffs have not adequately rebutted this evidence; they simply argue the legal conclusion that Namco “should have foreseen that a human being could conceivably ride this machine,” and that “Namco as a supplier had a duty to inquire of the manufacturer ... as to the placement and purpose of its switches on the machine.” We reject these contentions. Suppliers of component parts, no matter how small or insignificant, should not be held to inquire into their ultimate use and foresee all possible applications in order to satisfy a duty to warn of potential danger associated with the finished product.

The evidence fails to show that Namco is close enough on the chain of causation to be held liable. Namco supplied four small switches to the builder of a complex electric and hydraulically powered machine. The switches simply activated a circuit to show the position of the dumping vat. Furthermore, plaintiff Wayne Frazier has stated that he jumped off the dumper before any switch was engaged. Deposition at 85-86. In light of these facts and the Court of Appeals’ decision in Taylor, supra, we see no basis for subjecting Nam-co to trial on the issue of failure to warn. We learn from Conti, supra, the impropriety of allowing a jury to speculate on these causation-related issues, such as the degree of- control over the final product exercised by a parts supplier. Namco’s role in composing or attaching warnings is far too distant.

Defendant Applied Power occupies a similar position. It supplied two hydraulic pumps and four valves in the hydraulic system. Upon Applied Power’s motion for summary judgment, plaintiffs set forth no evidence to establish that this defendant had any influence over the design or construction of this machine or the placement of warnings. For the same reasons that apply to Namco we find that Applied Power has no actionable responsibility for the alleged duty to warn.

On the other hand, Materials Transportation Company (“MTC”) assembled the dumper and exercised control over the finished product. MTC thus was responsible for the ultimate design and construction of the dumper. Plaintiffs here clear the obstacle which prevents them from reaching the other defendants: MTC has knowledge of the final product to the extent that it is reasonable to charge the company with forseeability. As to the merits of MTC’s motion we cannot agree that there is no genuine issue of material fact. MTC argued that Conti, supra, and Sherk, supra, support its assertions, even while admitting that the instant case is factually different. MTC Brief in Support of Motion for Summary Judgment at 7. But these factual differences are decisive. A warning would have made no difference in Conti because it was determined that the automobile driver’s inattention was a determinative cause of plaintiff’s injuries. Similarly, in Sherk, additional warnings about the dangerous properties of air rifles were deemed immaterial when such danger is obvious. Plaintiff Wayne Frazier has alleged that he was instructed to ride the meat dumper in the normal course of his duties, Plaintiffs’ Response to MTC Motion for Summary Judgment ¶ 16, and that he observed others riding the dumper, Plaintiffs’ Pretrial Narrative at 3. In light of these claims we think plaintiffs are entitled to show whether warnings on the dumper might have made a difference. Conti, 743 F.2d at 199.


author: . ELFVIN, District Judge.

text:
    Judy SMITH, Plaintiff, v. Margaret M. HECKLER, Secretary, Department of Health and Human Services, Defendant.
    No. Civ.-82-379E.
    United States District Court, W.D. New York.
    June 6,1985.
    Thomas W. Rickert, Buffalo, N.Y., for plaintiff.
    C. Donald O’Connor, Asst. U.S. Atty., Buffalo, N.Y., for defendant.

      . Substituted for the original defendant pursuant to Fed.R.Civ.P. rule 25(d).

   MEMORANDUM and ORDER

. ELFVIN, District Judge.

Plaintiff’s action for surviving child disability benefits under the Social Security Act, 42 U.S.C. § 402(d), was remanded to the Secretary of Health and Human Services for further proceedings by this Court’s Order filed March 26, 1984 and the claimant was subsequently awarded benefits. Plaintiffs attorney now moves for an award of attorney’s fees for work performed before this Court on plaintiff’s behalf.

Plaintiff’s attorney initially sought a fee of $3,390 at an hourly rate of $60 for 56V2 hours spent representing plaintiff before this Court. He indicated that he had also petitioned the Secretary for a fee of $4,629 based on 77V4 hours of work at the administrative level charged at $60 per hour. Petitioner has stated that he has no agreement with claimant regarding the size of the attorney’s fee in this matter. The Secretary has indicated that $5,002.40 — representing twenty-five per cent of the award of past-due benefits in this case — have been withheld for attorney’s fees.

Pursuant to 42 U.S.C. § 406(b)(1) this Court may in its discretion award a reasonable fee for plaintiff’s representation in this matter, said fee not to exceed twenty-five per cent of the award of past-due benefits. The Court has serious reservations about the hourly totals submitted by the attorney. However, and after consultation with the Assistant United States Attorney, petitioner has amended his request and now seeks $2,000 for work done before this Court on plaintiff’s behalf.

Accordingly, plaintiff’s attorney’s motion for fees in the amount of $2,000 for work before this Court on the above-captioned case is hereby ORDERED granted.

      . It is assumed that the attorney devoted the time shown for the respective steps in the litigation. Not to do so would necessitate an investigation such as should not lightly be undertaken. What thus appears is that the attorney was "learning on the job” and, while a certain amount of this must be expected throughout a lawyer’s career if he or she is to grow in legal capabilities — and it probably is unavoidable that some quantum of such will be at clients’ expense — , the instant situation shows a gross over-expenditure of time. 11 hours to compose a simple and straightforward complaint, 31 hours to research and structure a memorandum in support of a motion for summary judgment and 5 hours to prepare a reply memorandum, by the attorney who had handled the administrative hearings is too bulky a menu for this Court to ingest. When one must study and learn in order to render services, the fees must be diminished accordingly. Even $2,000 is a very generous award for the work done in court on this case.


author: AUBREY E. ROBINSON, Jr., Chief Judge.

text:
    Otis ELAM, Plaintiff, v. C & P TELEPHONE COMPANY, et al., Defendants.
    Civ. A. No. 82-1027.
    United States District Court, District of Columbia.
    March 2, 1984.

      Frederick D. Abramson, Carol S. Rabenhorst, Washington, D.C., for defendants.
    Edith Barnett, Washington, D.C., for plaintiff.
   MEMORANDUM OPINION

AUBREY E. ROBINSON, Jr., Chief Judge.

This is an action brought by Plaintiff, Otis Elam, against the Chesapeake & Potomac Telephone Company (hereinafter “C & P”) and seven individually named C & P employees who were Plaintiff’s supervisors. Until August 1981, Elam was employed as a telephone repair supervisor and was responsible for supervising an eight member craft crew. Plaintiff’s position was considered a first-level management position within C & P. Plaintiff’s complaint contains various allegations of racial and retaliatory discrimination under 42 U.S.C. §§ 1981, 1985(8) and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-2(a), 2000e-3(a).

Plaintiff’s claims under 42 U.S.C. §§ 1981,1985(3) were tried to a jury, which rendered a verdict in favor of Plaintiff and awarded him $44,927.03 in compensatory damages. Plaintiff’s claims of employment discrimination under Title VII were simultaneously tried to the Court. Currently pending before the Court is Defendants’ Motion for Entry of Judgment in their Favor Notwithstanding the Verdict, or, in the Alternative for a New Trial and the Court’s ruling on the Title VII claims. For the reasons set forth below, Defendants’ Motion for Entry of Judgment in their Favor Notwithstanding the Verdict is granted and Plaintiffs claims under Title VII are dismissed.

DEFENDANTS’ MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT

Background

The complaint in this action contains numerous allegations of violations of 42 U.S.C. §§ 1981, 1985(3). At the conclusion of Plaintiff’s case in chief, Defendants sought dismissal of the action for Plaintiff’s failure to have made out a prima facie case. After all the evidence had been presented, Defendants requested a directed verdict. On each occasion, the Court eliminated some of the issues and contentions Plaintiff had asserted in his complaint.

In response to Defendants’ initial request for dismissal, the Court eliminated the allegation of conspiracy under 42 U.S.C. § 1985(3), as well as Plaintiff’s allegations of harrassment relating to tampering with his company car and obscene and annoying phone calls to Plaintiff’s home, supposedly made at the direction of Defendants. In response to Defendants’ request for a directed verdict at the close of all the evidence, the Court directed a finding of no discrimination or retaliation with respect to the remaining aspects of Plaintiff's claim of harassment, specifically related to Plaintiff’s geographic work assignment, the crew persons assigned to him and his work performance and scheduling difficulties arising out of his participation in the Army Reserves. The Court also rejected Plaintiff’s claims that discrimination and retaliation were behind his failure to be transferred or promoted.

Having removed those many issues from jury consideration, the Court allowed only the two remaining ones — Plaintiffs 1981 performance evaluation and his 1981 discharge — to go to the jury to be considered separately as to discrimination and as to retaliation. The jury was asked to consider four issues in its deliberations: (1) whether Plaintiff’s 1981 performance appraisal rating of “good” was lower then his actual performance warranted and was given to him because of racial discrimination; (2) whether Plaintiff’s 1981 performance appraisal rating of “good” was lower than his actual performance warranted and was given to him because of retaliation for having filed prior discrimination charges; (3) whether Plaintiff’s discharge in August 1981 was motivated by racial discrimination and not, as Defendants asserted, because of Plaintiff’s falsification of records; and (4) whether the discharge was in fact in retaliation for Plaintiff having filed prior discrimination charges. The jury found for Plaintiff on all four issues. Defendants now move for judgment notwithstanding the verdict contending that the verdict cannot reasonably be derived from the evidence presented at trial.

Analytical Framework

It is well-settled that a motion for judgment notwithstanding the verdict, pursuant to Fed.R.Civ.P. 50(b), is only a renewal of the moving party’s motion for a directed verdict made at the close of all the evidence pursuant to Fed.R.Civ.P. 50(a). The standard for granting a motion under Rule 50(b) is precisely identical to that for granting a motion under Rule 50(a), and the motion for judgment notwithstanding the verdict can be granted only if the directed verdict should have been granted. It follows, therefore, that a party cannot assert in its motion for judgment notwithstanding the verdict a ground not asserted in its directed verdict motion. 5A J. Moore, Moore’s Federal Practice, j[ 50.08 (2d. ed. 1981). In this action, there are no procedural impediments to Defendants’ motion for judgment notwithstanding the verdict.

The law concerning the standard to be used by the Court in deciding upon a motion for judgment notwithstanding the verdict is clear and settled in this jurisdiction. The motion should not be granted unless the evidence, together with all inferences that can reasonably be drawn therefrom, is so one-sided that reasonable jurors could not disagree on the verdict. Vander Zee v. Karabatsos, 589 F.2d 723, 726 (D.C. Cir.1978), cert, denied, 441 U.S. 962, 99 S.Ct. 2407, 60 L.Ed.2d 1066 (1979). In the context of an employment discrimination case, the question is whether reasonable persons could have concluded on the basis of the evidence at trial that Defendants discriminated against the Plaintiff. Co-burn v. Pan American World Airways, Inc., 711 F.2d 339, 342 (D.C.Cir.1983).

The allocation and order of proof in discrimination cases under Title VII is well-established. The same analysis is applicable in employment discrimination cases brought under 42 U.S.C. § 1981. See, e.g., Baldwin v. Birmingham Board of Education, 648 F.2d 950, 959 (5th Cir.1981); Tagupa v. Board of Directors, 633 F.2d 1309, 1312 (9th Cir.1980). Plaintiff must prove by a preponderance of the evidence a prima facie case of discrimination. If Plaintiff establishes a prima facie case of discrimination, the burden of production shifts to Defendants to articulate a legitimate, non-discriminatory reason for their action. If Defendants meet that burden, the Plaintiff has the opportunity to prove by a preponderance of the evidence that the reasons offered by Defendants are not the true reasons but pretexts for discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). It is within this analytical framework that the Court must determine whether reasonable persons could have concluded on the basis of the evidence at trial that Defendants discriminated against Plaintiff. Coburn v. Pan American World Airways, Inc., supra.

Plaintiffs 1981 Performance Evaluation

Plaintiff contends that because of race discrimination and retaliation, he received a “G” (good) performance appraisal instead of a “VG” (very good) or “O” (outstanding) performance rating. In support of his contention, Plaintiff offered his own testimony and two charts that compared certain first-level supervisors in terms of selected numerical objectives and results and the performance evaluations of such supervisors with Plaintiffs performance. The Court assumes, without finding, that Plaintiff established a prima facie case of race discrimination and retaliation with respect to his 1981 performance evaluation.

To rebut Elam’s prima facie showing, Defendants presented an abundance of evidence which showed that Plaintiff’s evaluation was based on a legitimate nondiscriminatory reason, that is, the quality of his performance. Defendants presented the testimony of Defendant Braxton Carr, who as Plaintiff’s second-level supervisor prepared the performance evaluation at issue. He testified that his assessment of the Plaintiff’s performance was not affected by a racial or retaliatory motive. While he gave Plaintiff a “G” — which was the only increased rating that Carr gave that year— Carr said that the evaluation was, if anything, overly generous because the Plaintiff was in the low range of “good” performers.

In addition, Mr. Carr characterized himself as a tough supervisor, who was results oriented and a low grader on evaluations. Carr’s self-assessment was confirmed by the testimony of all of the first-level supervisors, with the exception of Plaintiff, under Carr’s authority during 1980 — Grant Berry, Galt Griesbauer, Jeffrey Norris, Jack Schuenenman and Larry Brady. Of these five supervisors, two believed, like Plaintiff, that Mr. Carr had underevaluated their performance. The two were Griesbauer and Schuenenman, both white. In fact, Carr rated Griesbauer “U” (unsatisfactory) — two steps lower than his previous evaluation by another supervisor — and was responsible for Griesbauer’s forced demotion to a craft position. Griesbauer’s evaluation was not only lower then the Plaintiff’s evaluation, but was two steps lower than anyone else. Schuenenman, who received a “VG” (very good) evaluation was dissatisfied with the rating given by Carr because his previous supervisor had rated him “O” (outstanding) the previous year. The only other Black first-level supervisor besides Plaintiff, Jeffrey Norris, and the remaining white supervisors, Berry and Brady, believe that Carr had fairly and accurately evaluated their performances.

During 1981, then, the year Plaintiff believes his increased evaluation was not high enough due solely to his race and retaliation, and the first year Plaintiff and the other supervisors were evaluated by Carr, the following ratings were given in the peer group: one Black supervisor (Norris) was given his first evaluation — a “G” — after being promoted from craft to management; two white supervisors (Berry and Brady) retained their previous ratings of “VG”; one white supervisor (Sehuenenman) was lowered from “0” to “VG”; one white supervisor (Griesbauer) was downgraded from “G” to “U” and demoted to non-management; and one Black supervisor (Plaintiff) was raised one grade to “G”. Only a white supervisor received a “U” and a demotion. Only white supervisors received lower ratings than they had received the previous year under a different supervisor.

Carr’s testimony also rebutted the charts submitted by Plaintiff which compared his performance and evaluation with the performance and evaluation of some of Carr’s other first-level supervisors. He testified that although the underlying statistics of Plaintiff’s chart might show whether or not a supervisor met certain pre-established numerical objectives, only the evaluator can interpret and flesh out the underlying data. For example, in reviewing a supervisor’s performance, the evaluator may determine that the underlying objectives may have been too high or too low. The evaluator also knows and takes into account the external factors beyond the rated supervisor’s control that aid or hinder in reaching the set objectives. These external factors, such as customer demand for fastidiousness, travel time through traffic, variances in crew, equipment and maintenance of C & P cable systems are all known and taken into account by the second-level supervisor in evaluating the first-levels. None of these factors, however, is contained on Plaintiff’s chart.

Similarly, Carr also explained that the experience level of the first-level supervisor is considered, since improvement over the course of time was a factor in the evaluations. He testified that he discerned little improvement in the Plaintiff’s performance during the year 1980, and included that factor in evaluating Plaintiff. Consideration of such a factor is a legitimate criterion under C & P’s Performance Appraisal Plan. This criterion, however, is not taken into account on Plaintiff’s two charts.

Carr also testified that another factor used by him in evaluating his subordinates was their level of commitment and dedication to the job. He testified that during his supervision of Plaintiff he felt that Plaintiff lacked dedication to his job because he often left work early and was rarely available on weekends due to his military obligations. Carr testified that there were clashes between he and the Plaintiff over the Plaintiff’s military obligations because he felt that Plaintiff used his Reserve duty commitment as an excuse for his own inability or lack of desire to give the necessary time and attention to his C & P duties. The other first-level supervisors also testified that they felt that Plaintiff lacked dedication and commitment to his C & P job. They testified that they often saw' Plaintiff leave work early, heard him conduct military business on C & P time, and noted that as a result of his absence during the weekends, they were often called upon to help out the Plaintiff’s inadequately trained and supervised crew.

In sum, Carr stated that Plaintiff’s 1981 performance evaluation was not just based on Plaintiff’s acceptable results in meeting his objectives as shown on Plaintiff’s charts, but also on the subjective factors detailed above, which were known to Carr and weighed in the evaluation process for all the first-level supervisors, not just for Plaintiff. The Court acknowledges that it is easy for subjective factors and criteria to lend themselves to racially discriminatory abuse more readily than objective criteria. As this Circuit’s Court of Appeals has recognized, however, there are situations where employment decisions can, must and should be made on the basis of subjective criteria. In light of the purpose of the civil rights law, it would be anomalous to hold that an employee’s rights prohibit employers from using subjective criteria in evaluating an employee’s performance. See Harris v. Group Health Association, Inc., 662 F.2d 869, 873 (D.C.Cir.1981):

The testimony of Carr and the other first-level supervisors met the Burdine standard imposed on the Defendants to articulate a legitimate reason for the action taken in evaluating Plaintiff. Texas Department of Community Affairs v. Burdine, 450 U.S. at 255, 101 S.Ct. at 1094-1095. In light of this showing Plaintiff was then required to show by a preponderance of the evidence that C & P’s asserted reason was pretextual. Plaintiff, however, failed utterly to meet his required burden of proving that the Defendant’s articulated justification for the 1981 evaluation was pretextual and that the evaluation was in fact motivated by racial discrimination or retaliation.

Plaintiff’s only example of Carr’s supposed racial prejudice — against other Blacks, not against Plaintiff — was Carr’s lowered performance rating of Black craft-person Melvin Reese. Carr fully explained that action, however, and pointed out that it was required under the ratings and that he had done no more than to correct an error that Plaintiff had made. The racial discrimination and retaliation that Carr is supposed to have displayed towards Plaintiff was, according to Plaintiff, manifested in the various forms of “harassment” Carr is alleged to have imposed upon Plaintiff. The Court, however, found no merit to such claims and refused to let the “harassment” contentions go to the jury. Plaintiff offered no other evidence in rebuttal, and failed on cross-examination to undermine the testimony of Carr or Plaintiff’s first-level peers.

Since Plaintiff presented no evidence to rebut Defendants’ clearly articulated non-discriminatory and non-retaliatory explanation for the 1981 evaluation, Plaintiff could not possibly have met his burden of proving the explanation a pretext. Evidence of C & P’s motive in the 1981 evaluation is “one sided” against the jury’s verdict. Vander Zee v. Karabatsos, 589 F.2d at 726. Therefore, the Court concludes that the evidence concerning race discrimination and retaliation and the reasonable inferences to be drawn therefrom simply do not support a finding that an unlawful motive was present in the 1981 evaluation. The jury’s verdict on the two aspects of the 1981 evaluation is unreasonable and therefore, must be overturned.

Plaintiff s.Discharge in August 1981

C & P terminated the employment of Plaintiff in August 1981. Plaintiff contends that he was discharged because of racial discrimination and retaliation for filing prior discrimination charges. Defendants contend that Plaintiff was discharged because he allegedly falsified company records.

In challenging his discharge from C & P as discriminatory and retaliatory, Plaintiff testified that the Defendants’ investigation of the alleged falsified records was not as thorough as it might have been. Plaintiff’s argument seemed to be that he had a right to participate in the Company’s investigation of his falsifications, and if he did not participate that would mean that race and retaliation were the real motives for the investigations and all that flowed therefrom. The Court assumes, without finding, that Plaintiff established a prima facie showing of race discrimination and retaliation with respect to his discharge.

To rebut Plaintiff’s prima facie showing, Defendants contended and offered evidence that Plaintiff was discharged because he allegedly falsified company records, an activity which, under C & P policy, invokes disciplinary action that may include discharge. The alleged falsification occurred in filling out the inspection forms that he turned in to his supervisor, Defendant Robert Gearhart, for the month of July 1981.

The first alleged falsification involved a form known within C & P as a “2801” form. On this form Plaintiff noted that he had visited a customer’s apartment to inspect a repair crew person’s work on a day that Plaintiff did not work. Plaintiff’s explanation for this was “human error.” Defendants characterized it as falsification of a company record and used it as one of the grounds for Plaintiff’s termination.

The apartment in which Plaintiff claimed to have conducted the “during” inspection was that of a Dr. Birriel. Plaintiff contended that Defendants did not even attempt to contact Dr. Birriel to see if the inspection had possibly occurred on another day. Defendant Gearhart claimed that he did try to contact Dr. Birriel during his investigation, but was unsuccessful. . In any event, Dr. Birriel stated in his deposition that no one from the telephone company contacted him after his phone was installed over the July 4th weekend. This testimony was used by Plaintiff to argue that Defendants failed to reach Dr. Birriel; the testimony confirms, however, that Plaintiff did not visit Dr. Birriel on a date subsequent to July 3rd to conduct the “post 2801” inspection that he claimed.

The second form of alleged falsification involved Plaintiff’s report on the “Field-SAM 7” form of a visit to a customer— Mary Carter — that Mrs. Carter said never took place. Plaintiff attacked the Defendants’ investigation as it related to Mrs. Carter because he was not permitted to accompany his supervisors when they questioned Mrs. Carter about Plaintiff’s alleged “post” inspection visit. Not allowing Plaintiff to contact Mrs. Carter, however, has no effect on the reasonableness of Defendants’ conclusion that Plaintiff had not made the inspection as reported. Gearhart and Carr both testified that the investigation of the Mary Carter “Field-SAM 7” included a phone call and a visit to Carter. Both times she stated that no one from C & P had come to check the repair work on her phone.

With regard to Mary Carter, Plaintiff also turned in a “2801” inspection form with the “Field-SAM 7,” which reported that the customer had one phone and that there were no defects found. Mr. Gearhart testified that during his investigatory visit to Carter's apartment he counted two phones and three, possibly, four, defects. He concluded that the defects should have been noted on Plaintiff’s “2801” form had Plaintiff actually made the inspection he claimed.

The third form of alleged falsification involved cards known within C & P as “I & R 3AA” cards. These cards were used to record the results of a supervisor’s safety inspection of his crew members. Plaintiff allegedly turned in “I & R 3AA” cards purporting to show he conducted safety inspections of his crew. Three of the cards showed that there were no defects relating to a piece of equipment known as the “B voltage tester,” when in fact, according to Defendants, there were defects. •

Defendants contended that a supervisor’s inspection of his craftperson’s “B voltage tester” includes watching his craftperson perform the functional test on his “B voltage tester” as well as making sure that the date card found in the pouch of the “B voltage tester” cover is undated. In order to check the “no defects” box on the “I & R 3AA” card, Defendants contended that Plaintiff had to follow the two step procedure set forth above. Plaintiff allegedly falsified records when three “I & R 3AA” cards showed “no defects” with respect to the “B voltage tester” when in fact, the date cards of each had not been updated.

Plaintiff asserted at trial that he was unaware that the safety inspection of the “B voltage tester” required him to inspect the date card as to its currency as well as the equipment itself. Each of the other first-level supervisors testified at trial, however, that whether or not a supervisor watched his craftpersons test their “B voltage tester” is irrelevant if the craftpersons do not complete the test by updating the date card. The Bell System Practice relating to the “B voltage tester” also requires updating of the card. Other evidence showed that in order to score a B voltage tester as non-defective on the “I & R 3AA card,” the supervisor must know that the test has been completely performed within the past thirty days. Plaintiff offered no excuse or explanation for his lack of understanding of this procedure, known to every other first-level supervisor in this unit.

Janet Jones’ testimony that Plaintiff watched her test her “B voltage tester” in July 1981 added nothing to support the Plaintiff’s case. As stated above, the evidence showed that watching the test alone is insufficient. Moreover, Jones testified that her “B voltage tester” date card was not kept in the proper place. She kept it in the cab of her truck, which procedure in itself should have been scored as a defect by Plaintiff on the “I & R 3AA” card according to Defendants. Moreover, the date card Jones produced from the cab of her truck was dated 7/81 for July, with no indication of the date of the test — another defect which, according to Defendants, Plaintiff should have indicated on the “I & R 3AA” card but did not.

Plaintiff contended throughout this proceeding that Defendants’ allegations that he had falsified company records was a slipshod effort to railroad Plaintiff — or to get him on a “trumped up charge” as Plaintiff’s counsel repeatedly characterized it. The Court finds, however, that Defendants presented evidence sufficient to meet its burden of articulating a legitimate non-discriminatory reason for Plaintiff’s discharge.

The evidence showed that the investigation was begun by Defendant Gearhart, known by everyone to be meticulous about paperwork. Supervisor Schuenenman testified that Gearhart had on more than one occasion called him on his beeper to come back to the garage from the field to correct what Schuenenman regarded as a minor error in paperwork. According to Gear-hart, Plaintiff’s July inspection report raised an all but inescapable inference of falsification for a number of reasons. According to him, there were too many “errors” in too short a period of time, made by too experienced a supervisor, who had to do a month’s worth of inspections in half the normal time due to his military reserve obligations. All of this caused Gearhart to be suspicious and with the advice of C & P counsel and his supervisor he began to conduct an investigation to check his suspicions.

Initially, Gearhart had Frank Schrom, another first-level supervisor, and Plaintiff conduct truck inspections to verify that Plaintiff knew that checking to see that the date card was current was part of the “B voltage tester” test. Defendant Jay Jones, who watched these test inspections, verified that both Schrom and Plaintiff knew the correct procedure. Gearhart also attempted to verify that the repair work on the two “2801’s” that Plaintiff claimed.to have inspected on July 3rd, actually was performed on July 3rd. Gearhart testified that with the help of Carr, he tried to call every customer for whom Plaintiff had turned in a “2801” or “Field SAM 7” for July, including Dr. Birriel. When Mrs. Carter was reached and said that no inspection had been made, Gearhart and Carr visited her to verify her recollection. Gear-hart then went up the chain of command to Defendant Donald Heck, the fourth-level supervisor, who concurred in Gearhart’s conclusion and then consulted C & P counsel regarding the appropriate procedures to take under the circumstances. Defendant, Paul Hudson, the fifth-level supervisor was also consulted. Relying on the conclusions of his subordinates, Hudson concurred in the decision that the Company should get rid of a dishonest manager.

Once Defendants met the burden of articulating a legitimate, non-discriminatory reason for Plaintiff’s discharge, which the Court finds they did, the burden shifted to Plaintiff to show that the reason offered by Defendants was not the true reason for his discharge but a mere pretext for discrimination or retaliation. Plaintiff in this case completely failed to do so.

The records involved in this matter related to safety and customer service, which according to the Defendants and witnesses, were two of the most important aspects of C & P’s business. Add to this the Company’s belief that it was dealing with a possibly dishonest management level employee and that falsification of records is an activity which under C & P policy invokes disciplinary action that may include discharge. Plaintiff came up with nothing to rebut this or to show that the reasons offered were pretextual. There was no evidence offered to establish that Plaintiff was accorded disparate treatment.

In light of the evidence presented at trial, the Court finds that the jury’s verdict with respect to the discharge issue is unreasonable and unsupportable as a matter of law. The Court, therefore, overturns the jury verdict on the basis of the applicable. legal standard and the weight of the evidence.

PLAINTIFF’S TITLE VII CLAIMS

This action was brought also under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Plaintiff alleged that he received a low performance evaluation, was denied transfers and wage increases, was denied promotions, was harassed, and subsequently terminated by Defendants as a result of racial discrimination and retaliation in violation of Title VII. These claims were tried simultaneously to the Court with Plaintiff’s other claims discussed above. The ruling of the Court with respect to Plaintiff’s Title VII claims is set forth below.

Transfers and wage increases

Plaintiff contended that Defendants failed to process his transfer request and subsequently denied him a transfer in March 1980 because of his race and in retaliation for filing an EEO complaint. To establish a prima facie case of discriminatory denial of transfer, Plaintiff must establish that (1) he applied for an available position; (2) he was qualified for an available position; and (3) he was rejected under circumstances which give rise to an inference of unlawful discrimination in that his failure to be transferred was more likely than not based on consideration of impermissible factors. Texas Department of Community Affairs v, Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Coe v. Yellow Freight Systems, Inc., 646 F.2d 444, 450 (10th Cir.1981). A prima facie showing of retaliation requires Plaintiff to show (1) statutorily protected participation; (2) adverse employment action; (3) a causal connection between the two; and (4) that he had the minimum qualifications for the transfer at issue. Williams v. Boornstin, 663 F.2d 109, 117 (D.C.Cir. 1980); Womack v. Munson, 619 F.2d 1292 (8th Cir.1980).

Plaintiff pointed to two transfers which occurred during the time period in which Defendants allegedly denied him a transfer opportunity. First, Plaintiff noted the transfer of Galt Griesbauer, a white first-level supervisor. The evidence showed, however; that the “transfer” of Galt Griesbauer was actually a demotion because Defendant Carr felt that Griesbauer was not satisfactorily performing his duty in the management position. Second, Plaintiff pointed to the transfer of Harold Maloney to &■ staff supervisor level position in personnel. Plaintiff, however, failed to establish at trial that he was qualified for the position that Maloney received.

Finally, Plaintiff does not point to any transfers of first or second-level supervisors which occurred within his district during the relevant time period. The evidence shows that Plaintiff cannot point to any such transfer because during the time that Plaintiff was seeking a transfer, the district manager, Blanche Rath, was not allowing any lateral transfers of first or second-level supervisors within or without her district. As district manager, Rath made this decision because the production and service within the district at that time was poor and she wanted to keep experienced supervisors in an attempt to make an improvement.

Assuming, but not finding, that Plaintiff established a prima facie showing of race discrimination and retaliation with respect to the transfer claim, the Court finds that the reason offered by Defendants for not allowing Plaintiff to transfer was sufficient to meet the burden of articulating a legitimate non-diseriminatory reason for their action. Plaintiff offered no evidence to demonstrate that Defendant’s reason for not allowing him to transfer is a pretext and therefore, he cannot prevail on this claim.

Promotion

Plaintiff contends that he was denied promotions because of race discrimination and retaliation. He contends further that had he been fairly evaluated in 1981, he would have been promoted. The elements of a prima facie case of retaliation have been set forth above. In order to establish a prima facie case of discriminatory denial of promotion Plaintiff must show that (1) he belongs to a protected group; (2) he was qualified for and applied for a promotion; (3) he was considered for and denied a promotion; and (4) other employees of similar qualifications who were not members of the protected group were promoted at the time the Plaintiff’s request for promotion was denied. Bundy v. Jackson, 641 F.2d 934, 951 (D.C.Cir.1981).

Initially, the Court concludes that Plaintiff failed to establish á prima facie case of discrimination or retaliation with respect to the promotion claim. Plaintiff, at no time, pointed to any specific promotion which was vacant or for which he applied and was denied. Absent these two elements, Plaintiff has not established any inference of race discrimination or retaliation. Assuming that Plaintiff considered the staff supervisor level position in personnel that was filled by Harold Maloney a promotion, as discussed above, Plaintiff failed to prove that he was qualified for the position or that his qualifications were similar to Maloney’s. Finally, with respect to the claim of retaliation and the denial of the promotion, Plaintiff offered no evidence to show a causal connection between the two, that is, he failed to show that Linda Spear, who chose Maloney for the position, knew or should have known that Plaintiff had filed an EEO complaint.

Harassment

Plaintiff claimed also that he was harassed by Defendants because of his race and in retaliation for filing an EEO charge. According to Plaintiff, this harassment was in the form of assigning him the worst work crew and worst geographic area, making obscene phone calls to his home, tampering with his company car, and scheduling him to work when he was scheduled for Army Reserve duty.

The elements of a prima facie case of employment discrimination are not confined to an inflexible formula, but necessarily vary from case-to-case, depending upon the underlying factual situation. McDonnell Douglas, 411 U.S. at 802 n. 13, 93 S.Ct. at 1824 n. 13. However its precise elements are defined, a prima facie case consists of proof of actions taken by the employer from which one can “infer discriminatory animus because experience has proved that in the absence of any other explanation it is more likely than not that those actions were bottomed on impermissible considerations.” Fumco Construction Co. v. Waters, 438 U.S. 567, 580, 98 S.Ct. 2943, 2951, 57 L.Ed.2d 957 (1978).

Based on the evidence adduced at trial the Court concludes that Plaintiff failed to establish a prima facie case of race discrimination or retaliation with respect to his claims of harassment. There was no evidence adduced at trial to link the claims of obscene phone calls and the tampering with Plaintiff’s company car to Defendants or any individual employed by Defendant C & P. Also, there was no evidence put forth by Plaintiff from which the Court could “infer a discriminatory animus” with respect to the assignment of Plaintiff’s work crew and geographic work area. The evidence established that all of the first-level supervisors had their share of inexperienced and “loaned in” crew members. Similarly, the evidence established that Plaintiff’s geographic work area was no “worse” than any of the areas of the other first-level supervisors. Each supervisor had some complaint about the geographic work area assigned to him for various reasons and Plaintiff produced no evidence which would establish that his work area was assigned to him based on illegal motives. Furthermore, it was established at trial that all geographic areas were assigned to first-level supervisors by the “luck of the draw.”

Finally, with respect to Plaintiffs claim of harassment and scheduling difficulties arising out of his participation in the Army Reserves, Plaintiff failed to produce any evidence of disparate treatment. He produced no evidence to establish that white first-level supervisors with Army Reserves obligations or supervisors who had not filed EEO charges were treated any differently with respect to their work responsibilities and schedules. The evidence adduced at trial established that all work schedules were made up in advance with no consideration given to the fact that a first-level supervisor might have Army Reserves duty or other obligations on a day on which he was scheduled to work. It was the supervisor’s responsibility to find a replacement to work for him if he had such other obligations.

1981 Evaluation and Discharge

The Court has assessed already the evidence as it relates to the claims of discrimination and retaliation with respect to Plaintiff’s 1981 evaluation and discharge in the section of this Memorandum addressing Defendants’ Motion for Judgment Notwithstanding the Verdict. It is well-settled that the allocations and orders of proof in Title VII cases and cases brought under 42 U.S.C. § 1981 are the same. See, e.g., Baldwin v. Birmingham Board of Education, supra; Tagupa v. Board of Directors, supra. Therefore, for the reasons set forth in the Court’s earlier discussion of these claims under 42 U.S.C. § 1981, the Court concludes that the 1981 evaluation and discharge claims under Title VII must also be dismissed.

An appropriate Order accompanies this Memorandum Opinion.

ORDER

In accordance with the Memorandum Opinion entered this date, it is by the Court this 2nd day of March, 1984,

ORDERED, that Defendants’ Motion for Judgment in their Favor Notwithstanding the Verdict be and hereby is GRANTED; and it is

FURTHER ORDERED, that judgment be and hereby is entered in favor of Defendants and against Plaintiff on all claims raised in this action; and it is

FURTHER ORDERED, that the above-captioned action be and hereby is DISMISSED.