author: SELYA, District Judge.

text:
    Joseph J. AUDET, Plaintiff, v. BOARD OF REGENTS FOR ELEMENTARY AND SECONDARY EDUCATION and J. Troy Earhart, in his capacity as Commissioner of Education for Elementary and Secondary Education, Defendants.
    Civ. A. No. 84-0354 S.
    United States District Court, D. Rhode Island.
    April 5, 1985.

      James J. Mullen, Barrington, R.I., for plaintiff.
    Forest L. Avila, Legal Counsel, R.I. Dept, of Educ., Providence, R.I., for defendants.
   OPINION AND ORDER

SELYA, District Judge.

Invoking this court’s federal question jurisdiction, 28 U.S.C. §§ 1331, 1343(3), the plaintiff, Joseph J. Audet, a teacher in the Cumberland, Rhode Island school system and a frondeur of sorts, seeks declaratory and injunctive relief and ancillary redress against the state Board of Regents for Elementary and Secondary Education (Board) and J. Troy Earhart, in his capacity as the state’s commissioner of elementary and secondary education (Commissioner).

In his amended complaint, Audet challenges on due process, U.S. Const.Amend. XIV, and involuntary servitude, U.S. Const. Amend, XIII, grounds the defendants’ administration of a state statutory and regulatory scheme involving teacher certification. The Board, a creature of the state legislature, see R.I.Gen.Laws § 16-60-1 (1981), is a public corporation which has been given sweeping powers to manage the course of elementary and secondary education within the state. E.g., R.I.Gen.Laws § 16-60-4 (1981). These powers specifically include the authority “(t)o adopt standards and qualifications for the certification of teachers and to provide for the issuance of certificates____” Id. at 16-60-4(9)(b). The Commissioner is appointed by, and serves as the “chief executive officer” of, the Board. R.I.Gen.Laws § 16-60-6 (1981). He doubles in brass as the ranking administrator of the state’s department of elementary and secondary education.

Subsequent to the commencement of this action in July of 1984, a series of conferences was held between counsel for the parties and the court. On December 11, 1984, a consent order was entered establishing a briefing schedule and providing for the submission of the controversy to the court, jury-waived, as a case stated. An agreed statement of facts and an assortment of documentary evidence was filed pursuant to the stipulation; briefs followed; and oral argument was heard on February 11, 1985.. This rescript constitutes the court’s findings of facts and conclusions of law in pursuance of Fed.R. Civ.P. 52(a).

I. THE CERTIFICATION PROCESS.

Although the precise form of the legislative command has varied over time, Rhode Island has attempted since at least the nineteenth century, e.g., P.L. 1898, ch. 544, § 9, to safeguard the education of the young by insuring the calibre of those employed to teach. The current version of this initiative provides in material part that

No person shall be employed to teach, ... in any school supported wholly or in part by public money unless such person shall have a certificate of qualification issued by or under the authority of the [Board].

RJ.Gen.Laws § 16-11-1 (1981 reenactment).

Such certificates are customarily issued upon compliance with sundry educational and experiential requirements, followed by satisfactory completion of an examination process. RJ.Gen.Laws § 16-11-2. But, certificates may be awarded, in certain circumstances, under a less rigorous procedure. Id. at § 16-11-3. The implementation of this protocol has been delegated to the Commissioner, subject to the Board’s overall approval of generic standards and qualifications. Id. at § 16-60-6(9)(b). The Commissioner, in turn, has promulgated detailed regulations (Regulations) anent certification procedures. The Regulations are of record here. They have remained constant, by and large, over time.

The Regulations provide for the issuance of several types of teaching certificates: provisional, temporary provisional, special provisional, substitute, student teacher, emergency, and the like. Regulations at Art. II. The most prestigious of these is the “professional certificate.” Such commendations are issued “in all areas of certification and are valid for life.” Id. Certificates are granted only upon application of the interested individual. E.g., id. at Art. IV.

The printed Regulations make no formal provision for the annulment, surrender, or cancellation of professional certificates, once issued (although the governing statute, RJ.Gen.Laws § 16-11-4, does contemplate the existence of such rules in the case of annulment “for cause”). There is no kindred legislative command as to the promulgation of guidelines for the voluntary relinquishment of professional certificates. II. FACTS.

As indicated above, the facts are not in serious dispute. And, they are susceptible to succinct summarization.

Audet has served as a docent since 1960, and has taught in the Cumberland public school system since 1964. From 1960 to 1964, he conducted classes in science, biology, and junior business for the Lincoln public schools. He then shifted to the Cumberland system and taught courses in both mathematics and electronics from 1964 to 1969. Audet then became a guidance counsellor in the Cumberland schools. He toiled exclusively in that vineyard until August of 1982. During that period, Audet sought — and received — his master’s degree in guidance counselling.

In March of 1973, the Board issued professional certificates to the plaintiff, valid for his lifetime, in the specialties of mathematics, general science, and vocational electronics. He subsequently received a similar professional certificate in guidance on August 1, 1975.

On August 27, 1982, Audet learned from the Cumberland School Department (Department) that he was being involuntarily transferred from his by-then-familiar position in guidance counselling to a teaching assignment in general science. This move was triggered by the automatic application of a state statute which, together with the provisions of a collective bargaining pact, see text post, governed reductions in force anent public school teachers. Under § 16-13-6 of the Rhode Island General Laws:

A school board may, by reason of a substantial decrease of pupil population, within its school system, suspend teachers in such numbers as are necessitated by the decrease in pupil population; provided, however, that such suspension of teachers shall be in the inverse order of their employment unless it is necessary to retain certain teachers of technical subjects whose places cannot be filled by teachers of earlier appointment; and, provided, further, that such teachers as are suspended, shall be reinstated in the inverse order of their suspension. No new appointments shall be made while there are available teachers so suspended.

The then-current collective bargaining agreement, entered into between the school committee and the union which represented Cumberland’s teaching personnel (including Audet), Article XXVII, § C.2, explicitly defined the system of “forced bumping” which the state statute plainly envisioned:

“Forced bumping” shall mean that teachers will be suspended based solely on seniority and that the Cumberland School Committee shall cause remaining teachers to be reassigned according to seniority and certification in order to cover all teaching positions. Such reassignments shall be involuntary on the part of such teachers who are affected. Those reassignments necessitated by application of the foregoing shall be considered statutorily required and, therefore, not subject to the provisions of Article XIV of this Agreement (“Involuntary Reassignments and Transfers”). A more senior teacher may be suspended when it is necessary to do so to comply with state certification requirements provided such reassignments otherwise comply with the above. Where alternate complaint reassignments are possible, the School Committee may choose the reassignment which, in its judgment, is in the best interest of the students and the school system.

In practice, the game of musical teachers works somewhat along these lines. A recall list of educators suspended due to declining enrollment or the like is established, with the most recently suspended teacher heading the roster. If a vacancy occurs in, say, a biology classroom, and the first name on the recall list is that of a teacher certified to teach the subject, the matter is straightforward; the topmost teacher is simply moved from the recall list into the available slot. If, however, the person in line for recall is certified to instruct only in history and art, he or she must still be hired. But, state law forbids that the candidate be entrusted with the rigors of teaching biology, inasmuch as he/she lacks the requisite “qualification”. See R.I.Gen. Laws § 16-11-1. So, the Department attempts to search out, from among those presently teaching history or art, one who is also certified in biology. If such a versatile person can be located, then he or she is swiftly moved into the existing science vacancy, thereby creating an empty nest in either the history or art classrooms to which the teacher theretofore perched on the top rung of the recall ladder can lawfully fly. Yet, if none of the history or art teachers are certified in biology, but one is qualified to teach mathematics, and a presently employed math instructor is certified to teach biology, the shifting of personnel may involve three, rather than two, assignment transfers. As school administrators scurry to maintain compliance with both aspects of state law — mandated seniority under R.I.Gen.Laws § 16-16-6 and the use of duly qualified persons as required by R.I.Gen.Laws § 16-11-1 — the intricacy of the dance can become complicated logarithmically. And, a domino effect results: it may be necessary for a host of teachers to bump one another so that the Department can rehire the most senior person on the lay-off list.

In this case, the August, 1982 notice to Audet was occasioned because the first-ranked teacher on the reinstatement roster was certified in elementary education; her reemployment forced the bumping of a grade-school teacher who bore multiple certification, including guidance counselling. Thus nudged, the latter transferred from the preempted elementary school post to the guidance job which had theretofore been the plaintiff’s preserve. As a result, Audet was switched to an assignment in general science (a subject in which he was certified, but which he had not taught for some 18 years). The teacher who was transferred to the guidance position had less seniority, both within the school system and in the area of guidance counsel-ling, than did the plaintiff. Moreover, the shift arguably caused some economic damage: as a guidance counsellor, Audet had received additional funds above his stipulated salary. There is nothing in the record to indicate that the elementary teacher who acquired Audet’s job was certified in general science. There is, likewise, no factual predicate sufficient to postulate — or even to hint at — the existence of any irregular scheme aimed at persecuting Audet.

After learning that he had been relegated to the wilds of general science on the basis of his myriad certification, the plaintiff attempted to resign his life certificates in mathematics, general science, and vocational electronics so that, for statutory and contractual purposes, he would be debarred from teaching in other areas, thus rendering it impossible to transfer him from the guidance sinecure. His requests were denied by the Commissioner on the ground that all of the certificates had been properly issued and therefore could not be rescinded. This reasoning was amplified by David Roy, a consultant in teacher certification for the state Department of Education. In a letter dated June 1, 1983, addressed to Robert McGinnis, Cumberland’s superintendent of schools, Roy avouched in pertinent part:

The Department of Education will not honor the request of a teacher to delete any area of certification (provisional or professional) provided the certificate was properly issued. A certificate may be deleted if it can be determined that the individual did not qualify for the certificate or if the individual did not request the issuance of the certificate.

Unable to resign his certificates, Audet taught general science (and thereafter mathematics), albeit under protest. But, he did not take his comeuppance lightly, and this litigation ensued.

III. CONTENTIONS OF THE PARTIES.

On July 11, 1984, the plaintiff filed suit in this court, charging a violation of his constitutional rights under 42 U.S.C. § 1983, and requesting a declaratory judgment concerning his self-proclaimed right to relinquish the professional certificates which had been issued to him by the Board. Audet argues that the refusal to permit him to disclaim these credentials constituted an impermissible governmental interference with the due process rights guaranteed to him by the fourteenth amendment, most specifically, the right to pursue his chosen vocation. He also claims that, by refusing to allow educators to jettison professional certificates previously granted, the Board is promoting involuntary servitude, in violation of the thirteenth amendment, particularly where, as here, an instructor is bumped into an area in which he is certified but loathe to teach.

The defendants, though conceding the correctness of Audet’s version of the relevant facts, deny that their conduct in any way breached the penumbras of his constitutional guarantees. They assert, to the contrary, that they have acted in a regular manner, consistent with state law and with the integrated realities of school administration and of labor relations. And, they deny that Audet is entitled to judicial balm for his perceived wounds.

Rather than stopping with a bare recitation of what the parties contend, the court deems it advisable to emphasize at the outset what this case is not about. Audet has not challenged either the validity or the construction of the state statute, R.I.Gen. Laws § 16-13-6, which controls the suspension and recall of public school teachers; nor does he quarrel with Article XXVII of the collective bargaining contract between the Department and the plaintiff’s union (the Cumberland Teachers’ Association) which purports to implement § 16-13-6. Indeed, he concedes that these imperatives have been followed to the letter in his case.

The sole target of this action is the defendants’ refusal to permit Audet to resign certain of his lifetime professional certificates. It is this refusal, the plaintiff contends, which has coerced him into teaching a discipline which he does not favor, cost him the additional stipend and other emoluments which inured to his benefit as a guidance counsellor, and resulted in the forfeiture (at least for the time being) of a warm, cozy, and familiar position.

IV. THE MERITS.

A. Overview

Conceptually, the plaintiff’s argument is problematic at best. To be sure, Audet’s possession of several certificates made him a prime candidate for bumping when a vacancy arose in the Department’s ranks. But, the harm was caused — actually, inexorably, and indubitably — by the suasion of the bumping statute, R.I.Gen.Laws § 16-13-6, as it had been interpreted in, and applied through, the collective bargaining agreement. If the practice of bumping was not sanctioned or did not exist, Audet would have no reason to complain of his inability to resign a chosen assortment of his professional certificates. While a successful challenge to the Board’s “no resignation” policy would, in this instance, enable the plaintiff to do an end run on both the intendment of § 16-13-6 and on the Court’s recent decision in Pennhurst, see note 2 ante, it would not in a broader sense serve the interests of the public, or of the public schools, or of teachers generally. Moreover, Audet’s calculated decision to avoid a direct assault on R.I.Gen.Laws § 16-13-6 does highlight the obvious questions about the actual source of the harm. Pennhurst is, in this court’s view, not so easily to be skirted. But, because Audet’s jeremiad is in any event totally lacking in merit, the court need not grapple with the somewhat abstract and metaphysical haze of inter-sovereign, inter-court comity which hovers over this litigation.

B. The State’s Policy

There is no state statute which expressly forbids academicians from resigning professional certificates. Conversely, there is none which cedes such a privilege to teachers as a matter of right. The Commissioner has the power both to standardize practices anent the certification of teachers, R.I.Gen.Law § 16 — 60—6(9)(b), and to interpret “school law.” Id. at § 16-60-6(9)(h). He has consistently interpreted the state statute appertaining to the annulment of professional certificates, R.I.Gen.Laws § 16-11-4, quoted in full in note 1 ante, to read that validity issued certificates must stand. He has never regarded a mere unilateral desire on the holder’s part to abandon his or her certificate as “cause” for annulment within the meaning of § 16-11-4. Nor is there any reason for the Commissioner to do so: certification is, in effect, a “Good Housekeeping Seal of Approval,” a signal to the institutional world that, in the collective opinion of the Board and the Commissioner, the holder is qualified to instruct in the specialty and at the level in question. If the Commissioner were to allow individual academicians to determine sua sponte whether they were or were not so equipped, the result would be chaos. Certification would lose all meaning, the system of public education (already hard-pressed in many quarters) would be hamstrung, and the public would be sorely disserved.

The Commissioner’s administrative determination is entitled to due deference from this court. See Federal Election Commission v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 37, 102 S.Ct. 38, 44, 70 L.Ed.2d 23 (1981); Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 566, 100 S.Ct. 790, 797, 63 L.Ed.2d 22 (1980); Grand Islander Health Care Center, Inc. v. Heckler, 573 F.Supp. 405, 410 (D.R.I.1983). Here, in a context where the subject matter is intricately related to a multifaceted regulatory scheme directly within the special competence and expertise of the defendants, the measure of deference is great. Cf. Constance v. Secretary of Health and Human Services, 672 F.2d 990, 995-96 (1st Cir.1982). Inasmuch as the persuasive power of the Commissioner’s stance is made manifest by the totality of the attendant circumstances and the exigencies of the certification process, and because his determination is a commonsense one which abridges no statutory command, it is not susceptible to attack in this proceeding on non-constitutional grounds.

C. The Plaintiffs Claim of a Liberty Interest

Audet argues that the defendants’ refusal to permit him to escape from the perceived bondage of his lifetime professional certificates has deprived him of the liberty to pursue his chosen occupation, thereby doing violence to his fourteenth amendment rights. He bases his argument principally on the language of Justice McReynolds in Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923):

Without doubt, [the liberty guaranteed by the due process clause] denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally, to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.

In Meyer, however, the teacher was statutorily forbidden to teach German to children younger than the eighth grade, anywhere in the state of Nebraska. That is not the case at bar. Rather than involving an outright and irrational ban, this suit concerns the plight of a teacher who, because of the uniform application of a rationally devised state policy, has lost a particular job in a particular school system. The state has not, directly or indirectly, debarred the plaintiff from employing his skills as a guidance counsellor; it has not revoked or suspended his certification in that specialty; it has not placed him under any stigmatizing cloud. If Audet really prefers to work in the guidance field, there is nothing to prevent him from shifting to another school system or from seeking work in private or parochial institutions. And, again unlike Meyer, there has been no argument whatsoever that the children in the Cumberland schools have been deprived of counselling services as a result of Audet’s transfer.

The injury complained of pertains solely to Audet, and consists of his being required to teach science rather than guidance, with a concomitant loss of remuneration. Yet, however telling this injury may appear to him, the Court (speaking more recently than in Meyer) has emphatically “rejected[ed] ... the notion that any grievous loss visited upon a person by the State is sufficient to invoke the procedural protections of the Due Process Clause.” Jago v. Van Curen, 454 U.S. 14, 17, 102 S.Ct. 31, 34, 70 L.Ed.2d 13 (1981) (per curiam) (emphasis original). See also Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976). The question is not merely the weight of the individual’s interest, but whether the nature of the interest is one within the contemplation of the liberty or property language of the fourteenth amendment. See, e.g., Jago, 454 U.S. at 17, 102 S.Ct. at 34; Roth, 408 U.S. at 570-71, 92 S.Ct. at 2705-06; Morrisey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972).

As the Supreme Court has indicated, the analysis of the existence of a liberty interest parallels, but is not exactly the same as, that which pertains to property interests. Jago, 454 U.S. at 17-23, 102 5. Ct. at 34-37; see also Bara v. Aurora Civil Service Commission of the City of Aurora, 580 F.Supp. 212, 214 (N.D.Ill.1983). It is clear, however, that a complainant must show that a claimed liberty interest is rooted in state law, a well-established understanding between the parties, or a course of conduct which creates substantial limits on the discretion of state officials. Bara, 580 F.Supp. at 214. None of these roots thrive in the barren soil of Audet’s amended complaint.

The plaintiff depends upon no shared understanding between the parties. There is nothing to show that, at the time he so avidly sought his seriatim certificates, he had any reason to believe that he could jump the certification ship at will, or that the rules of the certification game have been unilaterally altered to his material detriment. Nor does state law offer any solace: not only are the Commissioner’s policies in harmony with, and rationally related to, the scheme of teacher qualification contemplated by the Rhode Island statutes, but those policies are also necessary in order to import flexibility into the management of local school systems and to breathe vitality into the purport of R.I.Gen. Laws § 16-13-6.

Plaintiff’s “course of conduct” asseveration is equally unavailing. The right to engage in an occupation must be considered one of the core values of liberty, such that no person can be arbitrarily deprived of it by the government. But, that right is not limitless. Surely, one untrained in the healing arts has no absolute right to set up shop as a physician; even one trained as an attorney cannot practice law in this very court without first meeting the court’s requirements. See D.R.I.L.R. 4(a) and (b) (establishing admissions procedures and criteria for eligible attorneys). Moreover, the facts in this case — even surveyed from different angles — simply do not fit in the liberty interest mold.

Audet is not really asserting a right to engage in a given occupation, but rather a right to a particular job in the Cumberland school system. And, the right to engage in a vocation is not a guarantee of job security. See, e.g., Hughes v. Whitmer, 714 F.2d 1407, 1414 (8th Cir.1983) cert. denied, — U.S.-, 104 S.Ct. 1275, 79 L.Ed.2d 680 (1984); Bryan v. Werner, 516 F.2d 233, 240 (3rd Cir.1975). While one clearly has the right to aspire to teach guidance, one does not necessarily have the right to a job teaching guidance. To the extent that a person has a vested interest in a specific post, that interest has been clearly defined as a property interest. See, e.g., Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976); Arnett v. Kennedy, 416 U.S. 134, 151-52, 94 S.Ct. 1633, 1642-1643, 40 L.Ed.2d 15 (1974); Perry v. Sindermann, 408 U.S. 593, 599-602, 92 S.Ct. 2694, 2698-2700, 33 L.Ed.2d 570 (1972); Roth, 408 U.S. at 577-78, 92 S.Ct. at 2709-10. This plaintiff, however, has never claimed that either state law or the provisions of the Cumberland teachers’ contract gave him tenure/security in the guidance counsellor’s position; to the contrary, he has expressly disclaimed any intention of arguing that his property interests have been transgressed. See note 5, ante.

Equally, it is difficult to grasp how the Board’s refusal to permit Audet to resign his lifetime certificates arbitrarily deprived him of the right to pursue the calling of his choice. The effect of the demurrer was simply to indicate the Commissioner’s abiding (previously documented) belief that Audet remained qualified to instruct in several subjects apart from his preferred specialty. A licensed plumber who had earlier been admitted to the bar is certainly not “prevented” from fixing toilets by the fact that the state continues to acknowledge his qualifications to practice law. So here: Audet was hardly inhibited from being a guidance counselor merely because he retained teaching certificates in science, mathematics, and vocational electronics. The resulting impairment of his particular job prospects is, for purposes of this case, relevant only in the context of the bumping statute; and the plaintiff has specifically eschewed any challenge to the sweep of R.I.Gen.Laws § 16-13-6. See text ante at Part III. At bottom, neither the continued possession of multiple certificates, under protest, nor the rigors of § 16-13-6, has deprived Audet of his freedom to be a guidance counselor. The plaintiff has been, and remains, unreservedly at liberty to seek out and to find a counselling position. And, he miscasts the federal district court in the role of his personal employment agency in this regard.

Audet's answer to these overwhelmingly self-apparent truths are both paralogical and beside the point. He laments that he has invested over twenty years of service in the Cumberland school system with all the seniority, pension, and status benefits that such longevity implies. That is true— but wholly irrelevant. He (and his fellow teachers) are as much bound by the collective bargaining agreement as is the Department. He has enjoyed the fruits both of his hybrid certification and of the union pact. He cannot now disown the pits.

The bumping statute and the Commissioner’s no resignation policy, together, have indeed presented Audet with an Hob-son’s choice between a less satisfying job assignment with the Department or counselling work for an untried employer. It may not be easy for the plaintiff to find another guidance position; and if he does find one, it may entail a lesser salary, a move to another area, and all the discomfiture associated with any new job. Yet, however irksome this choice may seem, it is a familiar one to many Americans. Executives are shunted to less desirable locales so that the corporate conglomerate may prosper; military men are relegated to supply depots so that younger officers may lead; lawyers are taken off high profile cases and moved into dry-as-dust regulatory practice. While such workplace decisionmaking may be frustrating, and even shortsighted on the employer's part, it is simply not the stuff of unconstitutionality. The Constitution protects the basic liberties of the citizenry: it safeguards the rights of both the employer and the employee. It cannot be construed as a wellspring of tenure for every employee, in every circumstance, or as a guarantee that a worker may keep his job, irrespective of his employer’s needs or wishes, merely because he prefers to do so.

At the end of the blind alley into which Audet’s quest has led him, it is worth noting anew both the accepted underpinnings of a constitutionally-protected liberty interest and their total absence in terms of this case. None of these factors — state law, the understanding of the parties, or a course of conduct limiting the discretion of state officials — buttress the plaintiff’s claim of a liberty interest in the guidance position; to the contrary, all of them actually militate in favor of the Department’s ability to reassign teachers as was done in this case. Audet’s hold on his job was conditioned on both the bumping statute and the collective bargaining agreement which interpreted it. Thus, whatever rights he had were at all times subject to the eventuality that he would be bumped. And, in the occurrence of precisely that eventuality, no constitutional violation can lurk. Cf Arnett, 416 U.S. at 151-52, 94 S.Ct. at 1642-43.

D. The Plaintiffs Claim of Involuntary Servitude

Audet alternatively contends that because he has been unable to discard his unwanted professional certificates, he has been coerced into teaching subjects he does not wish to teach. Such oppression is, in his view, tantamount to being condemned to involuntary servitude. It must be noted, of course, that the same problem of cause and effect which plagued the plaintiff’s liberty argument permeates this claim as well. To the extent (if at all) that Audet has been forced to teach science and mathematics against his will, that fact must be attributed to the operation of R.I. Gen.Laws § 16-13-6 and its implementation by the collective bargaining agreement. These precipitating factors combined with Audet’s multiple certification to place him in less attractive climes. It is conceptually very difficult — indeed, well nigh impossible — to see how the defendants’ declination of Audet’s invitation to repossess his certificates operated to shackle him in a constitutional sense. (There is no record support for an argument that the Commissioner arbitrarily turned thumbs down on Audet’s relinquishment request in order to force the exact result which transpired here.)

And, as to the involuntariness question, though the plaintiff may not now wish to teach science and mathematics, he did once seek those certificates. There is nothing to suggest that his volition was inhibited at the time. It was in his self-interest to be qualified in several specialties and he therefore sought out the safe harbor of multiple qualification. He chose, and pursued, the areas wherein he desired the Commissioner to endorse his credentials. He applied for the Commissioner’s imprimatur because he deemed it expedient to do so. He knew the rules. He was given no assurance at the time that he could cut loose the certificates at his pleasure. This history makes it difficult to swallow the notion that mathematics and science are subjects entirely repugnant to the plaintiff. It seems entirely fair that the same magnetic field to which Audet was attracted in an effort to solidify his teaching career should now dictate his position within the Department.

It comes as no surprise, therefore, that the facts which Audet has marshalled do not support the presence of involuntary servitude as the courts have consentiently construed the reach of the thirteenth amendment. The prophylaxis of that clause, as the plaintiff points out, has not been limited to the classic form of slavery. United States v. Mussry, 726 F.2d 1448, 1451 (9th Cir.) cert. denied, — U.S.-, 105 S.Ct. 180, 83 L.Ed.2d 114 (1984). The purpose of the amendment was “not merely to end slavery but to maintain a system of completely free and voluntary labor throughout the United States.” Pollock v. Williams, 322 U.S. 4, 17, 64 S.Ct. 792, 799, 88 L.Ed. 1095 (1944). The unwelcome embrace of involuntary servitude, however, “occurs when an individual coerces another into his service by improper or wrongful conduct that is intended to cause, and does cause, the other person to believe that he or she has no alternative but to perform the labor.” Mussry, 726 F.2d at 1453; see also United States v. Harris, 701 F.2d 1095, 1098 (4th Cir.), cert. denied, — U.S. -, 103 S.Ct. 3554, 77 L.Ed.2d 1400 (1983).

In this instance, the Department, faced with a vacancy and a statutory scheme for filling it, acted properly. There have been no allegations that the reinstatement pa-vane was orchestrated with the specific (malign) intent to waltz Audet out of his wonted guidance cloister and into the less hospitable environs of the science and mathematics classrooms. There is no evidence whatsoever that Audet was bereft of alternatives. More importantly, the defendants in this case (the Board and the Commissioner) did not dictate his reassignment nor force him to teach the subjects which he now finds so distasteful. They had nothing to do with the Department’s allocation of its personnel or the negotiation of the collective bargaining agreement. Their refusal to permit the plaintiff to invalidate certain of his professional certificates to serve his own ends was merely a mechanical exercise of a well-settled Board policy of general statewide application. Fairly interpreted, the defendants’ actions were designed not to enserf Audet but to preserve the integrity of the certification system.

In considering whether coercion has occurred, the court may consider the background and experience of the plaintiff. See Mussry, 726 F.2d at 1453. Audet is an educated professional, qualified to teach several subjects anywhere in the state of Rhode Island. He is a skilled electrician. He is also a member of a union, which has secured many benefits for him from his employer and which safeguards him from being fired without cause. He is not alien, not illiterate, not unprotected, and not without the ability to free himself. He is, as this case demonstrates, not unable to afford counsel. As the Supreme Court noted over forty years ago:

[I]n general, the defense against oppressive hours, pay, working conditions, or treatment is the right to change employers. When the master can compel and the laborer cannot escape the obligation to go on, there is no power below to redress and no incentive above to relieve a harsh overlordship or unwholesome conditions of work.

Pollock, 322 U.S. at 18, 64 S.Ct. at 799.

Audet’s right to change employers has not been affected. As long as he is free to leave, his servitude cannot be involuntary. If held prisoner, he is a captive only of his own myopic view of the Constitution. As the Ninth Circuit has stated:

We recognize that economic necessity may force persons to accept jobs that they would prefer not to perform or to work for wages they would prefer not to work for. Such persons may feel coerced into laboring at those jobs. That coercion, however, results from societal conditions and not from the employer’s conduct. Only improper or wrongful conduct on the part of an employer subjects him to prosecution.

Mussry, 726 F.2d at 1453.

V. CONCLUSION.

Inasmuch as Audet’s grievance is clearly one against the happenstances of fate— namely, a dwindling school age population, the need for lay-offs within the school district, a statutory recall scheme, the exigencies of collective bargaining, the fluke effects of this particular reinstatement, and the fact that his earlier (successful) effort to collect multiple professional certificates has now backfired — this court cannot sustain his complaint against the defendants. Their general policy at most inadvertently contributed to the plaintiff’s present dilemma. What is more, the policy itself is a constitutionally permissible one, rationally related to the state’s legitimate educational goals. And, it was applied to Audet in a straightforward, accustomed, and evenhanded manner.

A notable scholar once admonished:

Goe not for every griefe to the Physician, nor for every quarrell to the Lawyer, nor for every thirst to the pot.

The Works of George Herbert (Oxford: Clarendon Press, 1945) at 331.

To those sagacious words it may be added, as Audet’s lament so plainly teaches:

Goe not for every bump in the road of life to the Constitution.

Audet’s case, having hit several potholes, has irretrievably stalled. The amended complaint misfires on several cylinders, and must be dismissed. Judgment shall enter for the defendants for costs.

It is so ordered.

      . The full text of RJ.Gen.Laws § 16-11-4 is as follows:
      The commissioner of education shall promulgate rules and regulations under which a certificate may be annulled for cause. The holder shall be entitled to notice and a hearing before the commissioner of education prior to the annulment of the certificate. The holder shall have an opportunity to appeal the decision of the commissioner to the board of regents, if desired.

      . The court considers this decision wisely made. The parties have not cited any cases in which the state courts have interpreted the meaning of R.I.Gen.Laws § 16-13-6. In the absence of an authoritative state court construction, and under the Supreme Court’s recent decision in Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 911, 79 L.Ed.2d 67 (1984), this court is not empowered to instruct state officials on how to conform their conduct to state law. This court has no prerogative to jettison principles of federalism and comity in order to decide issues which are properly within the sphere of the state’s judiciary.

      . Public school teachers have the right to bargain on a collective basis with school committees. See R.I.Gen.Laws § 28-9.3-1. The Cumberland Teachers’ Association is “the sole and exclusive negotiating or bargaining agent for all of the ... public school teachers [employed by the Department].” Id. at § 28-9.3-3. The collective bargaining pact accepts the principle of forced bumping, and agrees that the resultant reassignments "shall be considered statutorily required." Agreement, Article XXVII, § C. 2. And Audet is, as he apparently recognizes, bound by the majority will as expressed in the collective bargaining accord. Belanger v. Matteson, 115 R.I. 332, 340, 346 A.2d 124, 130 (1975).

      . In fact, if Audet had had less seniority overall, he might well have been delighted that he could not divest himself of his professional baggage. Multiple certification is clearly a protective hedge designed in part to safeguard both teachers and school systems against a shrinking school age population. Under the Rhode Island paradigm, an educator who has armed himself or herself with a googol of certificates has, in the long run, enhanced job security: he or she is less likely to be laid off in the first place, and more likely to be reinstated more expeditiously in the second place.

      . While it is unclear whether the plaintiff originally intended to assert that his forced reassignment deprived him of his property interest in the counselling position, he explicitly disavowed any such argument at the February 11, 1985 hearing. And, no constitutionally-protected property interest is readily apparent in these precincts. See Board of Regents v. Roth, 408 U.S. 564, 576-78, 92 S.Ct. 2701, 2708-2710, 33 L.Ed.2d 548 (1972). At best, Audet had a mere expectancy of retaining the guidance post. Thus, this case proceeds solely on the plaintiffs claims of a violated liberty interest and of involuntary servitude.

      . In Roth, 408 U.S. at 572-573, 92 S.Ct. at 2706-2707, the Court did discuss the plaintiffs claim of constitutional protection in his job in terms of a liberty interest. That liberty interest, however, was defined by implication as the loss of a job accompanied by damage to one’s reputation. See Owen v. City of Independence, 445 U.S. 622, 633 n. 13, 100 S.Ct. 1398, 1406 n. 13, 63 L.Ed.2d 673 (1980); Paul v. Davis, 424 U.S. 693, 709-710, 96 S.Ct. 1155, 1164-1165, 47 L.Ed.2d 405 (1976); Limerick v. Greenwald, 666 F.2d 733, 735 (1st Cir.1982); Beitzell v. Jeffrey, 643 F.2d 870, 878 (1st Cir.1981). This plaintiff has made no such compound allegation. And, the agreed facts contain no hint of stigmata.

      . Congress has enacted several statutes to implement the thirteenth amendment, including 18 U.S.C. § 1581 (holding in peonage) 18 U.S.C. § 1583 (enticement into involuntary servitude), and 18 U.S.C. § 1584 (holding in involuntary servitude). This plaintiff, however, has not alleged anything beyond a naked constitutional violation.

      . If the court may be permitted an eschatocol of sorts:
      The best of batters strike a slump:
      The minor leagues await 'em;
      The best of teachers take a bump When the contract’s read verbatim.
      But that’s what makes the world go round,
      In an ever-changing spree:
      No qualms re bumping have been found
      Until bumper becomes bumpee!


source: Caselaw Access Project

author: TOM S. LEE, District Judge.

license: Public Domain

text:
    CITY OF JACKSON, Plaintiff, v. Dean MORLEY and Margaret Laurence, Defendants.
    Civ. A. No. J84-0108(L).
    United States District Court, S.D. Mississippi, Jackson Division.
    April 5, 1985.

      John Hedglin, Jackson, Miss., for plaintiff.
    Crane D. Kipp, Shell, Buford, Bufkin, Callicutt & Perry, Jackson, Miss., for defendants.
   MEMORANDUM OPINION AND ORDER

TOM S. LEE, District Judge.

The building commonly known as the King Edward Hotel (King Edward) is a twelve story building that was built approximately 60 years ago in what is now the western section of downtown Jackson, Mississippi. The block in which the King Edward is located is occupied primarily by office buildings. The railroad station, several stores and a hotel are situated across the street. The King Edward had been vacant for approximately thirteen years when the defendants, Dean Morley and Margaret Laurence, acquired it in February 1981. The plaintiff, the City of Jackson (City), brought suit in the Chancery Court of the First Judicial District of Hinds County, Mississippi, alleging that the King Edward was “being maintained in such a manner so as to constitute a public nuisance.” The complaint specifically referred to the building’s inoperable standpipe system, accumulation of combustible waste, loose and falling window screens, and inadequate securing of the building. The defendants removed the action to this court with jurisdiction premised on diversity of citizenship. See 28 U.S.C. § 1332.

Maurice Joy, Fire Marshall of the City of Jackson Fire Department, testified from his records that his department has conducted inspections and found several problems since the King Edward has been vacant. Upon finding the building to be unsecured on February 2, 1982, the fire department discovered that the building had been sold to the defendants. The building was also inspected on June 23, 1983, and the report of that inspection, a copy of which was mailed to the defendants’ attorney, noted that the standpipe was inoperable, that an elevator was missing and that combustible waste was found on the fourth floor. By letter dated July 26, 1983, Captain Danny P. Stegall of the Jackson Fire Department thanked defendants’ attorney for allowing members of the department to tour the building and also noted the missing elevator door and accumulation of combustible waste.

On January 10, 1984, Joy and Stegall entered the building through a broken window and found, among other things, debris in the kitchen and a still inoperable standpipe system. Stegall again wrote defendants’ attorney on February 9, 1984 and stated that the inoperable standpipe was in violation of the City Fire Code. Stegall also stated that the department would approve use of a dry system rather than a wet standpipe system since the building was vacant.

The building was again inspected March 20, 1985, a few days before the trial of this case, by Fire Marshall Joy, Captain Stegall and Warnie Kennington, Director of Building and Permit Department for the City of Jackson. Upon entering the building, the inspectors found two scavengers and promptly called the police. The inspection revealed that elevator doors were still open and the standpipe remained inoperable.

In Green v. State, 212 Miss. 846, 56 So.2d 12,15 (1952), the Mississippi Supreme Court stated:

No doubt a nuisance is public if it affects the entire community or neighborhood, or any considerable number of persons. Furthermore, it undoubtedly is true that a nuisance is a public one if it occurs in a public place or where the public frequently congregate, or where numbers of the public are likely to come within the range of its influence; and it seems to be sufficient to constitute acts or conditions of a public nuisance if injury and annoyance are occasioned to such part of the public as come in contact therewith.

Id., quoting State v. Turner, 198 S.C. 487, 18 S.E.2d 372, 375. See also Dow v. Town of D’Lo, 169 Miss. 240, 152 So. 474, 476 (1934) (on suggestion of error).

The City has alleged first that the existence of an inoperable standpipe constitutes a public nuisance. The standpipe, as defined by the Fire Code of the City of Jackson, “is an arrangement of piping, valves, hose outlets and allied equipment installed in a building or structure with outlets located in such a manner that water can be discharged through hose and nozzles for the purpose of extinguishing fire.” Without an operable standpipe system in a building, firefighters must attach their hoses to an outside hydrant and carry them up the stairwell to the location of the fire. Firefighters could also carry hoses up a ladder and inside the building through a window if there were no operable standpipes; however, Jackson’s ladders reach only six to seven floors and a fire could not be fought effectively on the upper floors of the King Edward. Such an operation obviously wastes valuable time and increases the risk to the firefighters. In addition, the ability of the firefighters to fight the fire effectively is minimized, thereby placing in jeopardy the safety of the surrounding buildings, their occupants and the general public. Accordingly, the court finds the absence of an inoperable standpipe system to be a public nuisance.

The City also contends that the King Edward is a nuisance because of the accumulation of combustible waste in the building. The evidence shows that the defendants have removed the combustible waste when its presence was reported to them. While combustible waste increases the risk of fire in a vacant building, the court cannot conclude that it constitutes a public nuisance when the defendants take prompt action to remove it. Likewise, the plaintiff’s contention that loose and falling screens constitute a nuisance must also fail because the defendants have apparently taken prompt action to repair the screens.

The plaintiff finally argues that the building is inadequately secured and attracts vagrants who increase the risk of fire, which threatens the safety of legitimate occupants of the neighborhood. The evidence does not support the plaintiff’s contention that the building is inadequately secured. Sam Bell, President of County Security Patrol, testified that his employees have patrolled the area three times every night since January 1983. If an opening is found, the building is checked for intruders and then resecured. Captain Stegall testified that he met two men in the building during the March 20, 1985 inspection and had also seen evidence indicating that people had been unlawfully in the building. In sum, the evidence demonstrates that the defendants make a reasonable effort to secure the premises and fails to show that any deficiencies in security have caused an increased threat of fire sufficient to constitute a public nuisance.

Although not mentioned in the complaint, the plaintiff has also raised the issue of whether the substantial accumulation of pigeon waste in the upper floors constitutes a nuisance. In his deposition, which was admitted into evidence, Dr. Donald Williamson stated that the presence of pigeon waste has not been conclusively established to be a health hazard. He further opined that any danger was only to people staying in the building for an extended time and that he would enter the building for a short period without worry. Accordingly, the court cannot conclude that the accumulation of pigeon waste constitutes a public nuisance.

Having determined that only the absence of an operable standpipe system is a public nuisance, the court now considers the remedy available. In Paramount-Richards Theaters, Inc. v. City of Hattiesburg, 210 Miss. 271, 49 So.2d 574 (1950), the City filed suit to enjoin the operation of movie theaters on Sunday. A new city administration had recently given notice that the Sunday laws would be enforced. The theater owners did not comply and the City made 185 arrests during five Sundays. The defendants questioned the court’s jurisdiction to enjoin their actions but the court stated:

Under many circumstances, injunctions will lie to prevent repeated and continuous violations of a penal statute ... The court found from all the facts that the operation of the picture shows in defiance of the law was a nuisance, and that the situation would grow worse unless enjoined. As a matter of fact, the defense to this suit showed that the city was powerless to stop the violations of the law, or secure the peace, or abate the nuisance except by injunction.

Id. 49 So.2d at 579. Such is the situation here. Dean Morley, one of the defendants, testified that he and Margaret Laurence decided not to repair the standpipe pending resolution of this suit. In other words, the defendants intend to remain in violation of the law until ordered to do otherwise by this court. The plaintiff, therefore, clearly had no adequate remedy at law.

The plaintiff has also established that the inoperable condition of the standpipe seriously jeopardizes the public safety. The actual injury contemplated is, of course, dependent on the event of a fire in the King Edward. The defendants argue that the standpipe is, therefore, if a nuisance at all, merely an anticipatory nuisance and cannot be enjoined. The court agrees that since the King Edward is not currently ablaze, the dangers are not actually present at this time. However, the court finds that, at times, despite reasonable efforts by the defendants, the King Edward presents a substantial risk of fire. The evidence indicates that the building is used for shelter by certain people who have apparently started fires in the building. That those fires have not spread in the past is no reason to ignore their potential danger. The evidence also shows that combustible waste is periodically found in the building and that on several occasions elevator shafts and pipe chases have been found open, thereby increasing the intensity of a fire should one start. While the court has found that these conditions do not constitute a public nuisance in and of themselves, they do substantially increase the risk of an intense fire that would endanger the public. This increased risk of fire is the danger that justifies the issuance of an injunction to require the defendants to repair the standpipe.

The plaintiff seeks to require the defendants to expend a considerable amount of money to install an operable standpipe system. The injunction is mandatory in nature and such

should never issue unless the right to it is so clearly and certainly shown that there can be no reasonable doubt of its propriety, no probability that the defendant can make any valid objection to it, and no possibility that its justice can be contraverted. Unless its grounds be inexpugnable, both sides must be heard before its issuance, and even then it should be refused unless irreparable and immeasurable would result.

Thomas v. Mississippi Power and Light Company, 170 Miss. 811, 152 So. 269 (1984).

The defendants have raised, as a defense, objections to their being ordered to comply with the law. They argue that vandalism, caused by the failure of the Jackson Police Department to sufficiently patrol the area, prevents maintenance of an operable standpipe system. The evidence simply does not support the defendants’ contention that police protection is inadequate. Furthermore, the defendants have cited no authority for the proposition that the alleged lack of adequate police protection justifies maintaining a public nuisance and failure to comply with the law. The court concludes that the plaintiff has met the heightened burden of proof necessary for issuance of a mandatory injunction.

It is the opinion of this court that the injunction sought with reference to the standpipe should issue and that the other relief sought should be denied.

It is, therefore, ordered that the parties shall, within ten days of the date of this memorandum opinion and order, submit to the court an agreed schedule for installation of an operable standpipe system in the King Edward. Should the parties be unable to reach such an agreement, each party shall submit separate proposed schedules for review by the court.

A judgment shall be submitted in accordance with the local rules.

      . Warnie Kennington explained the significance of the missing elevator door as well as the absence of chase panels. Both are hazards to fire fighters who may fall down the shafts in a fire. Additionally, the shafts provide vertical ventilation that would substantially increase the intensity of a fire.

      . The defendants have issued a standing offer for members of the fire department to tour the building. The purpose of the tours is to enable fire department personnel to acquaint themselves with the design of the building.

      . The defendants contend that the broken window found on January 10, 1984 was the window broken by the fire department when responding to a false alarm in December 1983.

      . This suit was filed January 12, 1984. Defendants argue that they had no notice of the inoperable standpipe until after the suit was filed. However, the report of the June 23, 1983 inspection noted the inoperable system and a copy of that report was mailed to the defendants' attorney.

      . The Fire Code of the City of Jackson provides in part:
      18.209 Wet Standpipes, Required. ******
      b. Buildings shall be equipped with standpipes as follows:
      1. buildings two (2) stories or more in height. The fire code is applicable "to new and existing conditions.” Section 1.03, Fire Code of the City of Jackson.

      . Defendants object to the use of a wet standpipe system since the building is unheated and the pipes would, therefore, possibly freeze and burst.

      . The inspectors also found new debris and combustible waste. The defendants represented at trial that this debris had been removed.

      . By memorandum opinion dated November 15, 1984, the court granted the plaintiffs motion for partial summary judgment on the issue of the inoperable standpipe. Prior to the trial, the court informed the parties that it would consider evidence on the question of whether the standpipe constituted a public nuisance and whether issuance of a mandatory injunction in abatement thereof was appropriate.

      . The court does not imply that a finding of a public nuisance can always be avoided by merely responding to official requests without any affirmative action.

      . The city also contends that the building is not adequately maintained. In August 1984, defendants were notified of the presence of a potentially explosive gas which appeared to be emanating from the King Edward. The defendants discovered that the problem resulted from the failure of a pump in the basement of the building. They repaired the pump and have taken steps to prevent a recurrence. The court finds this to be an isolated incident which was promptly remedied by the defendants and not indicative of a pattern of inadequate maintenance.

      . Bell recounted two instances in which he had discovered intruders in the building. He found a man who was apparently drunk and, on another occasion, several architectural students.

      . Defendants introduced into evidence a computer printout of crimes reported and/or investigated in the vicinity of the King Edward and an analysis thereof. The evidence was admitted after the court noted that the plaintiff had not raised the issue of the character of the neighborhood in its case in chief. The defendants’ exhibit indicates that the King Edward is located in a relatively high crime area but this is insufficient proof of a nuisance.

      . The parties have stipulated that there is a substantial accumulation of pigeon waste in the top floors of the King Edward.

      . The evidence does not establish that any present danger would be substantially increased in the event of a fire. Morley testified that certain precautions against spread of the pigeon waste would be required in the event of renovation or demolition of the building.

      . The defendants have corrected other deficiencies pointed out by the fire department and the complaint.

      . The defendants argue that only firemen engaged in the fighting of a fire in the King Edward are in danger and that this group of people does not constitute the public for purposes of a public nuisance. While the court finds that firemen are in particular danger, the court also concludes that the general public would be endangered by a fire in the King Edward which could not be controlled because of the lack of an operable standpipe.

      . Captain Stegall testified that during the March 20, 1985 inspection, he found evidence of fires in certain rooms of the building.

      . See supra note 1.

      . The defendants argue that if a dry system were installed and the valves stolen by vandals, inspectors would not be able to determine if the system is working without testing it. Firefighters would be in much more danger if they could only discover the system was inoperable when tried during a fire. This argument obviously does not justify a refusal to maintain an operable system.


author: WARREN, District Judge.

text:
    Vernon CULLIN, Plaintiff, v. WILLIAMS STEEL AND SUPPLY COMPANY, INC., Defendant.
    No. 83-C-663.
    United States District Court, E.D. Wisconsin.
    April 8, 1985.

      Vernon Cullin, pro se.
    Paul E. Prentiss, Herz, Levin, Teper, Sumner & Croysdale, S.C., Milwaukee, Wis., for defendant.
   DECISION AND ORDER

WARREN, District Judge.

Presently before the Court in this matter is the motion of the defendant, Williams Steel and Supply Company, Inc., for summary judgment on the entire cause of action articulated by the plaintiff, Vernon Cullin, in his pro se complaint. The Court has reviewed the record compiled in this matter to date and concludes, for the reasons set forth below, that the motion must be granted, pursuant to Rule 56(b) of the Federal Rules of Civil Procedure.

BACKGROUND

This action was initiated on May 20, 1983, when the plaintiff filed his pro se complaint, alleging that he was unlawfully terminated from his employment on the basis of race, age, and handicap, presumably in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq., the Age Discrimination in Employment Act, 29 U.S.C. §§ 623 et seq., and the Wisconsin Fair Employment Act, Wis.Stat. §§ 111.31 et seq. Contending that his position as a crane operator did not require him to perform any heavy lifting or other, strenuous, physical activity, the plaintiff asserts in his statement of claim that a work reassignment necessitated that he undertake just such heavy, exertional tasks — something his treating physician had recommended against. The plaintiff justifies his charge of handicap discrimination as follows:

... During one of my routine visits to my family physician, Dr. H. Goldberg, Dr. Goldberg learned of my recent lifting requirement. As the result of obtaining this knowledge, Dr. Goldberg sent a letter to Williams Steel outlining my physical conditions and suggesting a certain limitation on my work assignments. I do not believe that these limitations would in any way effect [sic] the work that I was previously doing at Williams Steel & Supply Co., and that I could continue as I have in the past with my job duties. I consider my physical condition as outlined in Dr. Goldberg’s letter to be a handicap under the term of the state discrimination laws, though I do not believe this handicap in any way affects by ability to perform my duties as a crane operator____

Plaintiff’s Complaint at 3 (May 20, 1983).

As indicated above, the plaintiff further charges that he is the victim of both age and race discrimination and describes the second of these this way:

... Concerning possible racial discrimination, when Williams Steel moved to its current facilities its employees were predominantly black. Through the years the black employees have either left or have terminated [sic] by Williams Steel so that I was the sole black employee there for six years. I have witnessed black individuals entering Williams Steel & Supply Company personnel department to request employment, and have personal knowledge that black individuals have been denied employment by Williams Steel. With my termination on Feb. 16, 1979, Williams Steel no longer has any black employees----

Plaintiff’s Complaint at 3-4 (May 20, 1983). Based on these allegations, the plaintiff apparently seeks reinstatement, damages in the form of back pay, and the reasonable costs of prosecuting his action.

Accompanying the plaintiff’s pro se complaint was his petition for leave to proceed in forma pauperis, pursuant to 28 U.S.C. § 1915(a). By his Order of May 25, 1983, Judge Myron L. Gordon reviewed the plaintiff’s affidavit of financial status; concluded that he was, in fact, able to pay those fees and costs attendant on initiating this lawsuit; and, accordingly, denied the request for leave to proceed in forma pauperis. Two days later, on May 27, 1983, the case was formally opened upon the plaintiff’s payment of the requisite filing fees.

By its Answer of June 24, 1983, the defendant denied all material allegations set forth in the plaintiff’s complaint and raised three affirmative defenses — namely, that the Court lacks subject matter jurisdiction over the state cause of action for handicap discrimination; that the complaint as a whole fails to state a claim upon which relief can be granted; and, significantly, that “[t]he identical claims contained in the Complaint were filed with and investigated by both the Wisconsin Equal Rights Division and the Equal Employment Opportunity Commission, and both agencies found that plaintiff’s complaints were without merit.” Defendant’s Answer at 3 (June 24, 1983).

The Court conducted the first of two status conferences in this matter on October 20, 1983, at which the plaintiff appeared pro se. At the conclusion of that hearing, the Court imposed upon the plaintiff the obligation to report, within thirty days, on his intention to retain counsel, to petition for a court-appointed attorney, or to advise that he would continue to represent himself.

Some six weeks later, on December 5, 1983, the Court conducted a second status conference at which the plaintiff did not appear. By its summary letter of the same day, the Court advised this party of his continuing obligation to participate in all proceedings and notified him that his failure to do so in the future would prompt the Court’s entertainment of a motion to dismiss for lack of prosecution. Based on defense counsel’s statement of position, the Court also established a schedule for the filing and briefing of a motion for summary judgment — a schedule likewise incorporated in the summary letter of December 5, 1983, to both parties.

Consistent with the Court’s instructions, the defendant filed the present Rule 56(b) petition on January 6, 1984. Significantly, pursuant to Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir.1982), defense counsel incorporated in his client’s motion papers “a short and plain statement that any factual assertion in the movant’s affidavits will be accepted by the district judge as being true unless the plaintiff submits his own affidavits or other documentary evidence contradicting the assertion.” Counsel also appended to his motion the complete text of Rule 56 of the Federal Rules of Civil Procedure.

In support of its present motion, the defendant first recounts the factual basis for this action, noting, as suggested above, that the plaintiff’s discharge on March 29, 1979, was prompted by a letter of February 19, 1979, from Dr. Henry M. Goldberg, imposing specific weight and other physical limitations upon the plaintiff in the course of his employment. By that letter, the substance of which was confirmed by the independent inquiry of the defendant’s president, Lester G. Peterson, Dr. Goldberg recommended that the plaintiff not be required to lift over twenty-five' pounds or to engage in any heavy pushing or pulling. Exhibit 11 to Affidavit of Lester G. Peterson at 2-3 (January 5, 1984).

The defendant further states, principally through the affidavit of its president, Lester G. Peterson, that company officials responsible for plant operations determined, based on the physical work limitations imposed by Dr. Goldberg, that the plaintiff was no longer capable of performing efficiently those duties required of him as a crane operator in any of the company’s facilities. In short, it is the defendant’s position that the plaintiff “was terminated because he could not perform his job duties without endangering his own safety, the safety of co-workers and the safety of company equipment.” Affidavit of Lester G. Peterson at 4 (January 5, 1984).

In further factual support of its present motion, the defendant describes the procedural history of the plaintiff’s discrimination claims through both state and federal administrative proceedings. The considerable record provided by the defendant in this context shows that the plaintiff first raised his allegations of race, age, and handicap discrimination on July 9, 1979, with the Equal Rights Division of the State of Wisconsin Department of Industry, Labor and Human Relations. On February 17, 1981, following its investigation of the plaintiff's contentions, the Equal Rights Division issued a determination of probable cause with respect to the charge of handicap discrimination but found no probable cause to support the claims of discrimination based on race and age. Exhibit 12A to Affidavit of Lester G. Peterson (January 5, 1984). Because the plaintiff apparently failed to seek review of the Equal Rights Division’s unfavorable determinations with respect to his race and age claims, his complaint with respect to these allegations was deemed waived. Exhibits 12A & 13 to Affidavit of Lester G. Peterson (January 5, 1984).

However, following an unsuccessful attempt at conciliation on the probable cause finding with respect to handicap discrimination, a full evidentiary hearing was conducted on this discrete claim on November 9, 1982. Based on the evidence adduced at that hearing, the state examiner, on February 4, 1983, issued an order dismissing the complaint, premised on findings of fact and conclusions of law that the employer had undertaken no discriminatory action in violation of the Wisconsin Fair Employment Act, Wis.Stat. §§ 111.31 et seq. Exhibit 13 to Affidavit of Lester G. Peterson (January 5, 1984).

With the plaintiff’s apparent failure to seek review of the dismissal of his handicap claim, all state administrative proceedings were concluded; accordingly, the Equal Employment Opportunity Commission undertook its own investigation of the discrimination charges. However, by its Determination of April 23, 1983, that commission failed to find reasonable cause to believe that the plaintiff’s allegations are true. On that same day, the plaintiff was issued a standard “Notice of Right to Sue,” upon which the present federal action is based. Exhibits 14 & 15 to Affidavit of Lester G. Peterson (January 5, 1984). As indicated above, the plaintiff has incorporated in his present suit all of the allegations of race, age, and handicap discrimination considered but rejected at the state administrative level.

It is the defendant’s principal legal position that the allegations of age and race discrimination are wholly without merit. Directing the Court’s attention to the particular findings articulated by the Equal Rights Division of the State of Wisconsin Department of Industry, Labor and Human Relations in support of its finding of no probable cause on the race and age discrimination charges, the defendant argues that it is entitled to judgment as a matter of law. In further support of this conclusion, the movant observes that the findings of the state hearing examiner with respect to the charge of handicap discrimination are wholly consistent with the position adopted by the defendant’s president, Lester G. Peterson — namely, that none of the defendant’s employees, regardless of race or age, would be retained as a crane operator with the physical limitations of the present plaintiff. Noting that a state judicial determination, had the plaintiff pursued his right to review under the Wisconsin Fair Employment Act, Wis.Stat. §§ 111.31 et seq., would have been res judicata with respect to all present claims, the defendant nonetheless maintains on the merits that it is entitled to summary judgment, as follows:

The hard truth, which plaintiff is most reluctant to accept, is that he lost his job solely and exclusively because he was physically unable to do it. Although this action is not barred under Kremer [v. Chemical Construction Corporation, 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982), rehearing denied, 458 U.S. 1133, 103 S.Ct. 20, 73 L.Ed.2d 1405 (1982)] because plaintiff did not seek a court review of the administrative proceedings, it is manifest from the moving papers that the identical claims which he brings to this court have been thoroughly investigated by both the state and federal agencies charged with enforcing employment discrimination laws, and that those claims have been resoundingly rejected.

Defendant’s Brief in Support of Motion for Summary Judgment at 8-9 (January 6, 1984).

Observing, parenthetically, that Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. incorporates no equivalent of the state law prohibition against handicap discrimination in employment, the defendant maintains that this plaintiff’s “exclusively state claim has been litigated fully and has been resolved adverse to [him].” Defendant’s Brief in Support of Motion for Summary Judgment at 5-6 (January 6, 1984). Accordingly, the movant requests that this portion of the plaintiff’s cause of action likewise be dismissed for lack of subject matter jurisdiction.

As indicated above, the plaintiff was provided with explicit notice of his opportunity — even obligation — to file and serve a brief in response to the defendant’s present Rule 56(b) motion; in both the Court’s summary letter of December 5, 1983, and the defendant’s own motion papers of January 6, 1984, this party was specifically advised of the filing requirement imposed upon him by Local Rule 6.01 and Rule 56(e) of the Federal Rules of Civil Procedure. To date, the plaintiff has filed no memorandum of law in response to the defendant’s summary judgment petition. Accordingly, the Court today resolves that motion based solely on the record compiled to date, including the defendant’s motion papers and supporting documents, and its own understanding and interpretation of the relevant law.

RULE 56 AND THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

The Court of Appeals for the Seventh Circuit has recently articulated again those well-established standards to be applied by the trial court in resolving a motion for summary judgment like the present, as follows:

It is well accepted that the purpose of summary judgment is to prevent an unnecessary trial where, on the basis of the pleadings and supporting documents, there remains no material issue of fact to be tried. Kirk v. Home Indemnity Company, 431 F.2d 554, 559 (7th Cir. 1970). Summary judgment is appropriate only if it appears that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fitzsimmons v. Best, 528 F.2d 692, 694 (7th Cir.1976); Fed.R.Civ.P. 56(c). The burden is upon the moving party to show that there is no issue of material fact in dispute, Rose v. Bridgeport Brass Company, 487 F.2d 804, 808 (7th Cir.1973), and all doubts as to the existence of an issue of material fact must be resolved against movant. Moutoux v. Gulling Auto Electric, Inc., 295 F.2d 573, 577 (7th Cir.1961).

Moore v. The Marketplace Restaurant, Inc., 754 F.2d 1336, 1339 (7th Cir.1985) (citing Dreher v. Sielaff, 636 F.2d 1141, 1143 n. 4 (7th Cir.1980); see also Brown University v. Kirsch, 757 F.2d 124, 129 (7th Cir.1985) (noting that “summary judgment is to be cautiously invoked to the end that parties may always be afforded a trial where there is a bona fide dispute of facts between them”).

Under the present circumstances, where the factual averments in the defendant’s president’s affidavit remain wholly uncontroverted and the propriety of the movant’s legal conclusions go wholly unchallenged, the Court finds applicable the observations made by the United States District Court for the Southern District of New York in Mignone v. Vincent, 411 F.Supp. 1386, 1388 (S.D.N.Y.1976), as follows:

The plaintiff has made no response to the defendants’ motion and the factual data submitted thereon, despite the special effort made by the defendants’ counsel, at the Court’s direction, to notify the plaintiff that he had the opportunity to respond. Thus, although the pleadings of a pro se complainant are entitled to a liberal construction, see Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Frankos v. LaVallee, 535 F.2d 1346 (2d Cir.1976), the absence of any response by the plaintiff at all to the factual showing adverse to the plaintiff’s pleading, renders summary judgment appropriate on these claims. Cf. Williams v. Halperin, 360 F.Supp. 554, 556 (S.D.N.Y.1973) (liberality afforded pro se complaint “is not without limits”).

See also In re Wright, 19 B.R. 271, 274 (Bkrtcy.D.Mass.1982) (“... Rule 56(e) makes clear ... that a party cannot rest on the allegations in his complaint ... in opposition to a properly supported summary judgment motion made against him”).

To be sure, the mere failure of the plaintiff to interpose any response does not entitle the movant to judgment as a matter of law. However, it is uncontroverted that the decision to terminate the plaintiff was precipitated by Dr. Goldberg’s letter of February 19, 1979, recommending against any heavy lifting or strong exertional activity. Affidavit of Lester G. Peterson at 2-3 (January 5, 1984). Indeed, the plaintiff himself acknowledges in his pro se complaint that his physician’s recommendation lies at the very heart of this litigation. Mr. Peterson further sets forth in his affidavit the numerous work situations in which an individual like the plaintiff, employed as a crane operator, would be required to engage in lifting, pushing, and pulling — all exceeding those restrictions imposed by Dr. Goldberg. Affidavit of Lester G. Peterson at 3 (January 5, 1984). In short, there is nothing in the record to support the contention that the defendant’s decision to discharge the plaintiff was based on anything other than the conclusion of company officials that this employee’s physical limitations would prevent him from efficiently and reasonably performing those duties assigned to him as a crane operator.

The propriety of the Court’s companion conclusions that there are no material issues of fact for trial and that the defendant is, indeed, entitled to judgment as a matter of law are further underscored by the considerable burden of proof placed upon a plaintiff, like the present, attempting to establish his status as a victim of employment discrimination. In Coates v. Johnson & Johnson, 756 F.2d 524, 531 (7th Cir.1985), the Court of Appeals for the Seventh Circuit described the heavy burden of Title VII plaintiffs this way:

In McDonnell Douglas Corp. v. Green, 411 U.S. 792 [93 S.Ct. 1817, 36 L.Ed.2d 668] (1973), the Supreme Court provided an analytical framework “intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination” in private, nonclass Title VII cases. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 255 n. 8 [101 S.Ct. 1089, 1094 n. 8, 67 L.Ed.2d 207] (1981). Under this McDonnell Douglas-Burdine framework, the plaintiff is required to establish a prima facie case by producing facts that “eliminate[ ] the most common nondiscriminatory reasons” for the defendant’s alleged action, for example, by showing that he or she is a member of a protected group and is otherwise basically similarly situated to members of the unprotected group. Burdine, 450 U.S. at 254 [101 S.Ct. at 1094]. It then becomes a reasonable assumption that any differential treatment by the employer was due to discrimination. The facts the plaintiff must show to be entitled to the inference of discrimination will vary according to the type of employment practice involved. McDonnell Douglas, 411 U.S. at 802 n. 13 [93 S.Ct. at 1824 n. 13]; Burdine, 450 U.S. at 253 n. 6 [101 S.Ct. at 1093 n. 6]. A plaintiffs prima facie case creates a rebuttable presumption that the defendant unlawfully discriminated against the plaintiff and compels the trier of fact to award judgment for the plaintiff unless the defendant offers evidence that “raises a genuine issue of fact as to whether [the defendant] discriminated against the plaintiff.” Burdine, 450 U.S. at 254-55 [101 S.Ct. at 1094].
The defendant’s burden may be met by “articulatpng] some legitimate, nondiscriminatory reason” for the defendant’s employment action. McDonnell Douglas, 411 U.S. at 802 [93 S.Ct. at 1824]; see Burdine, 450 U.S. at 254 [101 S.Ct. at 1094]. The purpose of this evidence is to “allow the trier of fact rationally to conclude that the employment decision [was not] motivated by discriminatory animus.” Burdine, 450 U.S. at 257 [101 S.Ct. at 1096]. If the explanation provided by the defendant is “legally sufficient to justify a judgment for the defendant,” then “the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity.” Id. at 255 [101 S.Ct. at 1094] (footnote omitted). This new level allows the plaintiff to try to persuade the court that the defendant’s explanation is “unworthy of credence” or that “a discriminatory reason more likely motivated” the defendant. Id. at 256 [101 S.Ct. at 1095]. The plaintiff retains the ultimate burden of persuasion. Id.

Similarly, in what is perhaps its most recent review of claims brought under the Federal Age Discrimination in Employment Act, 29 U.S.C. § 623 et seq., the Seventh Circuit restated those well-established burdens of proof imposed upon prosecuting and defending parties as follows:

The seminal case of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 804 [93 S.Ct. 1817, 1824, 1825, 36 L.Ed.2d 668] (1973), laid down the guidelines regarding the proof of an age discrimination case. First, plaintiff must establish a prima facie case; defendant then may “articulate” a defense of legitimate business justification; and plaintiff may then show that the alleged justification is a mere pretext.
The requirements for making out a prima facie case are that plaintiff establish: (1) that he falls within the protected age group; (2) that he was discharged; (3) that there was an available job open; (4) that plaintiff applied for the job; (5) that plaintiff was qualified to perform the job; but that (6) the employer filled the job by selecting a younger person outside the protected age group. The crucial issue in the case at bar is whether there was a genuine question of fact ... sufficient to preclude summary judgment , for the defendant.

Trembath v. St. Regis Paper Company, 753 F.2d 603, 604 (7th Cir.1985).

Not only has the plaintiff, by his failure to oppose the present motion, failed to establish those facts that might support a prima facie case of race or age discrimination, he has also been unsuccessful in demonstrating any present ability to discredit the defendant’s claim to legitimate, nondiscriminatory reasons for his discharge. In fact, all indications in the record support the conclusion that the plaintiff’s charges of employment discrimination are wholly unfounded. In its probable cause memorandum of February 17, 1981, the Equal Rights Division discredited both the age and race discrimination charges, as follows:

The Complainant was the Respondent’s sole black employee for the six (6) or seven (7) years prior to his termination. The Respondent has no other employees who have medical limitations on their ability to work, and there is no record of any other employee discharged for reasons similar to those for which the Complainant was discharged. In view of the fact that no Caucasian employee with a similar medical condition or restriction has been retained by the Respondent, it cannot be shown that the Complainant received differential treatment and was discharged because of his race.
The Complainant’s age cannot be shown to be a factor in the Respondent’s decision to terminate him. In September of 1980, fifteen (15) of the Respondent’s fifty-eight (58) employees were in the protected age group (40 to 65 years of age). A review of the ages of twenty-four (24) employees discharged between 1977 and 1979 does not show a pattern of discharging individuals in the protected age group at a greater rate than younger employees. In addition, the Respondent replaced the Complainant by reassigning present crane operators. Mr. Peterson indicates either R. Schmidt, or A. Garcia probably filled the Complainant’s position. Mr. Garcia is over forty (40) years of age.

Exhibit 12A at 7 to Affidavit of Lester G. Peterson (January 5, 1984). As indicated above, the findings of the state hearing examiner likewise suggest that the plaintiff’s complaints of handicap discrimination are something less than meritorious. See Exhibit 13 to Affidavit of Lester G. Peterson (January 5, 1984). By these additional observations, the Court does not mean to impose upon the plaintiff any present obligation to argue his entire case, including the establishment of prima facie and rebuttal evidence, within the framework of a request for summary judgment. At the same time, the Court does note that the principal disparate treatment claims articulated in the complaint are wholly refuted by the record offered by the defendant in support of its present motion.

Finally, with respect to the discrete allegation that the plaintiff was unlawfully discharged on the basis of his handicap, the Court concurs in the defendant's position that it now lacks subject matter jurisdiction to hear a cause of action brought under the Wisconsin Fair Employment Act, Wis.Stat. § 111.31 et seq. Regardless of the manner and extent to which this claim was fully disposed of by the state proceedings, the Court must decline to exercise pendent jurisdiction over it since the previously attendant federal charges are no longer a part of this case. Parenthetically, the Court notes that even if it were inclined to exercise jurisdiction over the handicap claim, it would feel obliged to dismiss that cause of action on its merits since, as indicated above, the plaintiff has failed to adduce any facts and argue any law controverting the unequivocal position adopted and argued by the defendant in its present motion. Under these circumstances, the Court finds that the plaintiff’s charge of employment discrimination based on handicap must likewise be dismissed.

CONCLUSION

For the reasons set forth above, the Court hereby GRANTS the defendant’s motion for summary judgment as to the entire cause of action in the plaintiff’s complaint, pursuant to Rule 56(b) of the Federal Rules of Civil Procedure.