text:
    Ellsworth PENDLETON, Plaintiff, v. NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, Defendant.
    No. 82 Civ. 6426 (SWK).
    United States District Court, S.D. New York.
    Aug. 16, 1985.
    Ellsworth Pendleton, plaintiff pro se; Jimmie Engram, New York City, of counsel.
    Robert Abrams, Atty. Gen., for the State of N.Y., by Judith Kramer, Ellen Bronzo, Brenda S. Spears, New York City, for defendant.
   MEMORANDUM DECISION

KRAM, District Judge.

This action was commenced on or about September 28, 1982, by the filing of a complaint alleging that plaintiffs employer had violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”) by discriminating against him with respect to his race and by retaliating against him for filing a prior race discrimination charge with the United States Equal Employment Opportunity Commission (“EEOC”). The case was tried by the Court on January 9, 1984. At the close of trial, the parties were requested to submit post-trial briefs. Defendant submitted its post-trial brief on April 16, 1984. Despite repeated efforts to reach counsel for the plaintiff, both telephonically and in writing, to ascertain the status of plaintiffs post-trial brief, the Court was unable to obtain any information from plaintiffs counsel. Plaintiff’s counsel did not file a post-trial brief on his client’s behalf. On March 7, 1985, plaintiff submitted a post-trial brief, pro se.

The case is now before the Court for a determination on the merits of this action. The following constitutes the Court’s findings of facts and conclusions of law pursuant to Fed.R.Civ.P. 52(a).

FACTS

Plaintiff is currently employed by the New York State Department of Correctional Services (“DOCS”) as a correction officer (“C.O.”). He was first hired by DOCS in October, 1978, to serve as a C.O. at the Otisville Correctional Facility.

On November 1, 1979, the State of New York imposed “a complete freeze on all hiring” for “all permanent and temporary positions.” (Plaintiff’s Exhibit 6.) The superintendents of the state correctional facilities were advised of this hiring freeze on or about November 14, 1979, by memo from the central office of DOCS, budget unit. (Plaintiff’s Exhibit 7.) In accordance with that memo, the superintendent of “any facility experiencing individual position problems [was] to contact the central office budget unit for assistance.” (Id.)

On December 5, 1979, plaintiff resigned his position as C.O. “effective immediately.” (Defendant’s Exhibit A.) In his letter of resignation, plaintiff asserted that he had been the victim of “constant undue pressure, [h]arrassment and [i]ntimidation” from his immediate superiors. (Id.)

On December 11, 1979, Mr. Pendleton filed a complaint against DOCS with the New York State Division of Human Rights (“NYSDHR”) alleging racial discrimination. (Plaintiff’s Exhibit 1.) In his complaint, Mr. Pendleton alleged that his superiors had continually harassed him and denied him equal terms and conditions of employment based on his race. (Id., ¶¶ 4, 6.) Mr. Pendleton checked the box on the complaint form requesting the NYSDHR to accept the filing of his complaint on behalf of the EEOC as well, claiming the alleged discrimination violated Title VII.

Sometime in January, 1980, DOCS requested special approval to hire more correction officers to fill specific needs at certain of its facilities. (Tr. 40.) On or about February 6, 1980, DOCS obtained such approval to hire eighteen correction officers. (Tr. 29-30, 40.) DOCS then hired eighteen new people to fill those positions who reported to work on or about February 21st. (Tr. 29-30, 34.)

On February 7, 1980, a conciliation conference was held at Otisville Correctional Facility to investigate and attempt to conciliate the complaint that plaintiff had filed with the NYSDHR. The conference was attended by plaintiff, Sheila Ortega (the NYSDHR investigator), A1 Young and Ellen Faucette (representatives of the Affirmative Action Office of DOCS), Philip Coombe (Superintendent of Otisville Correctional Facility), and the correction officers named in Mr. Pendleton’s complaint. (Tr. 6, 15-16.) During that conference, a conciliation agreement was reached. The precise parameters of that agreement are very much in dispute; in essence, however, it was agreed that Mr. Pendleton would withdraw his complaint with the NYSDHR in return for reinstatement by DOCS. (Tr. 6-8, 16-19, 43, 48; Stipulated Fact J, Pretrial Order filed January 4, 1984.) Mr. Pendleton did withdraw his complaint by letter written at the conference (Defendant’s Exhibit B), and requested in writing reinstatement as a C.O. at Otisville (Plaintiff’s Exhibit 5).

At the conference there was some discussion of the date Mr. Pendleton would or could be reinstated. Apparently, Superintendent Coombe said something like “If it were up to me, I’d reinstate you tomorrow; but it’s not up to me, it’s up to the people in Albany.” (Tr. 17-18, 48.) Coombe further indicated that he felt Mr. Pendleton was one of his best C.O.’s, and that he would like to have him back on his staff. (Tr. 16.) Mr. Pendleton indicated that he could be ready to start work again on February 13th. (Tr. 7, 9; Plaintiff’s Exhibit 5.) Mr. Pendleton left the conference believing that DOCS had agreed to reinstate him, and that he would be reinstated, on February 13th. (Tr. 8.) Ms. Ortega also believed that Mr. Pendleton would be reinstated on that day. (Tr. 19.)

On February 13, 1980, the NYSDHR officially ordered Mr. Pendleton's complaint withdrawn pursuant to the letter he had written at the conciliation conference. (Plaintiff’s Exhibit 3.) Also on that day, Mr. Pendleton was not reinstated. When he was not reinstated, Mr. Pendleton called Superintendent Coombe to find out why he had not yet been reinstated.- (Tr. 10.) It was then that he was advised of the hiring freeze. (Id.)

Mr. Pendleton then called Ms. Ortega to complain that he had not yet been reinstated. (Tr. 21.) Ms. Ortega called Superintendent Coombe to find out why Mr. Pendleton had not been reinstated, and was advised by Superintendent Coombe of the statewide job freeze. (Id.) Ms. Ortega then called Dr. Allen Bush, head of the Affirmative Action program for DOCS, who verified that a job freeze had been imposed. (Id.) Thereafter, Ms. Ortega attempted to explain to Mr. Pendleton that he had not been reinstated because of the job freeze. (Tr. 20.) Mr. Pendleton indicated that he felt he had not been reinstated because he had filed the original discrimination charge. (Id.) Accordingly, Ms. Ortega advised him of his right to file a retaliation complaint. (Tr. 20-21.)

On or about February 14, 1980, a memo was sent to the central personnel unit for DOCS by Otisville requesting the reinstatement of Mr. Pendleton and attaching a copy of his letter requesting same. (Defendant’s Exhibit E.)

On or about February 19, 1980, Mr. Pendleton filed a complaint with the NYSDHR claiming that he had been retaliated against. (Plaintiff’s Exhibit 2.) Mr. Pendleton checked the box on this complaint form requesting that the filing be made with the EEOC as well.

On or about April 4, 1980, a memo was sent to all facility superintendents from the central office of DOCS explaining the procedures for filling facility positions during the duration of the job freeze. (Defendant’s Exhibit D.) Pursuant to these procedures, a request to fill facility positions was to be sent to the Chief Budget Analyst in the central office.

On or about April 8, 1980, Superintendent Coombe’s staff followed up its February 14th letter requesting Mr. Pendleton’s reinstatement with a phone call to the central personnel -office of DOCS. Copies of the February 14th letter and of Mr. Pendleton’s letter requesting reinstatement were again forwarded to the central personnel office. (Defendant’s Exhibit H.) On that day, a letter was also sent to Ms. Faucette at the Affirmative Action group of DOCS advising of Mr. Pendleton’s status on the reinstatment list and of the communications with the central personnel office, and enclosing copies of the February 14th letter and Mr. Pendleton’s letter. (Defendant’s Exhibit I.) Those letters were apparently shown to Dr. Bush by Ms. Faucette. (Id.; handwritten notation at top.)

On April 16, 1980, Dr. Bush sent a memo to the Chief Budget Analyst explaining the history of Mr. Pendleton’s complaint and reinstatement request, and requesting approval to fill a specific position at Otisville by reinstating Mr. Pendleton. (Defendant’s Exhibit G.)

On or about May 15, 1980, the hiring freeze was lifted. (Tr. 37.) On May 17, 1980, Mr. Pendleton was reinstated to his former position, albeit at another facility. (Defendant’s Exhibit F.) Approximately ten correction officers who had requested reinstatement before Mr. Pendleton had were also reinstated in May after the hiring freeze was lifted. (Tr. 33.) It appears that, absent a job freeze, it normally takes anywhere from four to ten weeks from request to reinstatement. (Tr. 32.)

The NYSDHR found no probable cause to believe a violation had occurred on Mr. Pendleton’s retaliation charge. (Tr. 14; Stipulated Fact P, Pretrial Order filed January 4, 1984.) The EEOC issued a right to sue letter on July 19, 1982. This action followed.

DISCUSSION

Plaintiff claims that he was discriminated in his employment based on his race, and that he was retaliated against for filing a charge of discrimination. It would appear that plaintiff is arguing that both of his complaints—discrimination and retaliation—are properly before this Court. At the outset, therefore, the Court must determine the scope of the charges properly before it at this time.

On February 7, 1980, at the NYSDHR conciliation conference, plaintiff wrote a letter withdrawing his December 11th discrimination complaint. In that letter, he stated “I would like to withdraw my E.E.O.C complaint.” (Defendant’s Exhibit B.) On July 19,1982, the EEOC issued the right to sue letter upon which this action is based. It is not clear from the face of that letter which charge is covered by the letter. Nonetheless, the parties apparently agree that this letter was issued with regard to plaintiff’s February 19th retaliation complaint. (Stipulated Fact P, Pretrial Order filed January 4, 1984.) Accordingly, the Court finds that the only charge properly before it at this time is plaintiff’s claim that he was retaliated against for filing a discrimination complaint.

Section 704(a) of Title VII, 42 U.S.C. § 2000e-3(a), provides in relevant part:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subehapter.

In order to establish retaliation under this section, the plaintiff must establish three elements: first, that he was engaged in some form of protected activity that the defendant was aware of; second, that the defendant made a disadvantaging employment decision regarding him; and third, that there was a causal connection between the two, i.e., that the defendant intentionally acted to the plaintiff’s disadvantage because of his protected activity. See Grant v. Bethlehem Steel Corp., 622 F.2d 43, 46 (2d Cir.1980); EEOC v. Locals 14 and 15, Int’l Union of Operating Eng’rs, 438 F.Supp. 876, 881 (S.D.N.Y.1977); see also Francoeur v. Corroan & Black Co., 552 F.Supp. 403, 410 (S.D.N.Y.1982) (stating same elements as part of prima facie case).

The burden of persuasion in this case is on the plaintiff to prove those three elements. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981); EEOC v. Locals H and 15, 438 F.Supp at 881 (“burdens of proof in a Title VII retaliation case are no different than in any ordinary employment discrimination action”). The question before the Court now is “the ultimate question of discrimination vel non,” United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 1481, 75 L.Ed.2d 403 (1983), whether plaintiff has satisfied his ultimate burden of persuasion on all three elements and proved that he was retaliated against for engaging in a protected activity. The Court finds that he has not.

Plaintiff has satisfied his burden on the first element. He filed charges with the NYSDHR and the EEOC alleging racial discrimination. Such charges are protected activity under Section 704(a) of Title VII. See Francoeur, 552 F.Supp. at 410; EEOC v. Locals H and 15, 438 F.Supp at 881 (“filing of EEOC charges ... clearly what was intended to be meant by protected participation under section 704(a)”). Likewise, it is beyond peradventure that defendant was aware of this protected activity: several representatives of DOCS participated in the conciliation conference at Otis-ville on February 7, 1980.

Defendant argues with some force that plaintiff has not satisfied his burden of proof as to the second element. Plaintiff argues that he was not reinstated on February 13th, but rather was left unemployed for an additional three months prior to his reinstatement. Thus, plaintiff’s argument goes, defendant failed to timely rehire him. This argument hinges upon plaintiff’s contention that the agreement reached at the February 7th conference included a promise of reinstatement on a specific date—to wit, February 13, 1980. The Court is not persuaded that reinstatement on February 13th was part of the conciliation agreement. Three of the witnesses that testified at trial were present at the conciliation conference. Two of those witnesses, Ms. Ortega and Ms. Faucette, testified that Superintendent Coombe mentioned the need for approval from Albany before Mr. Pendleton could be reinstated. Moreover, Mr. Roulier testified that under normal circumstances, (absent a hiring freeze) reinstatement takes at least four weeks. Accordingly, the Court finds it unlikely that a specific date, just six days away, was given as an agreed upon date for Mr. Pendleton’s return to work. The Court has no doubt that Mr. Pendleton honestly believed that he was to be reinstated by February 13th; however, the Court does not find that he was promised that, or that such prompt reinstatement was part of the conciliation agreement. Accordingly, plaintiff has not carried his burden of proving that his reinstatement was indeed “delayed” and, therefore, has not shown that he suffered a disadvantaging employment decision.

Even if Mr. Pendleton had carried his burden on the second element, he certainly did not satisfy his burden of proof on the third element. Defendant articulated a legitimate, non-discriminatory, non-retaliatory reason why Mr. Pendleton was not reinstated until May 17, 1980: the existence of a freeze on all hiring (including rehiring). See Burdine, 450 U.S. at 253, 101 S.Ct. at 1093; McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). In light of this, plaintiff can satisfy his burden of proving intentional retaliation “either directly by persuading the court that a [retaliatory] reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of evidence,” i.e., that it is a mere pretext for retaliation and discrimination. Aikens, 103 S.Ct. at 1482 (quoting Bur-dine, 450 U.S. at 256, 101 S.Ct. at 1095). Plaintiff attempted to do this in two ways: first, by arguing that he was misled into agreeing to withdraw his complaint and, second, by arguing that he could have been reinstated earlier, since eighteen new C.O.’s were hired during the hiring freeze. These arguments are to no avail.

The Court recognizes that making employment decisions contingent upon a complainant’s withdrawal of a prior EEOC complaint can, in some circumstances, constitute illegal retaliation. See Kirkland v. Buffalo Bd. of Educ., 487 F.Supp. 760, 772-73 (W.D.N.Y.1979) (Brieant, J.), aff’d, 622 F.2d 1066 (2d Cir.1980). The mere fact, however, that Mr. Pendleton’s reinstatement was part of an agreement whereby he was to withdraw his prior discrimination complaint does not prove retaliation. Mr. Pendleton was asked to, and did, withdraw his initial complaint as part of a conciliation of that complaint. To hold that this agreement was retaliatory could hamper the effective non-judicial resolution of disputes such as this.

Mr. Pendleton argues, however, that he was fraudulently induced to enter the conciliation agreement and, therefore, that the real reason for his delayed reinstatement was retaliation rather than the job freeze. Mr. Pendleton points out that no mention was made at the conciliation conference of a hiring freeze, and this is supported by the record. (Tr. 10, 19, 48, 50.) Indeed, the first mention of a hiring freeze to Mr. Pendleton came after he withdrew his complaint and after he believed he would be reinstated. (Tr. 10.) Defendant, in its post-trial brief, argues that Mr. Pendleton knew, or should have known about the hiring freeze. There simply is no evidence in the record to support this assertion. Compare Smith v. Rexall Drug Co., 548 F.2d 762, 764 (8th Cir.1977) (plaintiff, as member of union’s negotiating team, knew or should have known about company’s planned reduction of the work force). Mr. Pendleton asserts that he would not have agreed to withdraw his initial complaint had he known about the hiring freeze. (Tr. 13.) Thus, he claims, defendant's intentionally misled him into withdrawing his complaint.

The Court finds, however, that there is insufficient evidence that Mr. Pendleton was induced to withdraw his complaint for any reason of retaliation. It may have been clear to everyone present at the conference that Mr. Pendleton would not have agreed to withdraw his complaint had he known about the budget constraints on his immediate reinstatement. (See Tr. 23; Ms. Ortega testified that she felt he would not have withdrawn his complaint had he known.) Nonetheless, this does not prove retaliation. It is equally clear that Superintendent Coombe wanted to conciliate the complaint. He stated that he felt Mr. Pendleton was one of his best C.O.’s. (Tr. 16.) Superintendent Coombe further indicated that he would like to have Mr. Pendleton back on his staff promptly. (Tr. 16-18.) Moreover, Ms. Ortega specifically discussed Mr. Pendleton’s right to file a retaliation complaint during that conference. (Tr. 8, 20.) Indeed, Mr. Pendleton even mentioned his right to file a retaliation complaint in his letter requesting the withdrawal of his initial complaint. (Defendant’s Exhibit B.) It defies logic to argue that Superintendent Coombe defrauded Pendleton in order to retaliate against him under these circumstances. The Court finds that if Superintendent Coombe misled Mr. Pendleton at all, he did so to speed his return to the staff and to facilitate a conciliation of the complaint, not to retaliate.

Mr. Pendleton’s further argument that the hiring freeze was a mere pretext for retaliation and discrimination and that he could have been reinstated sooner, notwithstanding the freeze, as evidenced by the hiring of eighteen C.O.’s in early February is equally unavailing. Although the record is not as full as it might be, it is clear from the record that the hiring that took place was a one-time special case. Special budget approval was necessary to hire those eighteen officers (Tr. 30.) That approval was requested and obtained prior to Mr. Pendleton’s request for reinstatement. (Tr. 40.) Apparently no one was hired between the time of Mr. Pendleton’s request for reinstatement and the lifting of the hiring freeze. (Tr. 29, 34.) Approximately ten other officers requested reinstatement before Mr. Pendleton did, but they, too, had to wait until the lifting of the freeze. (Tr. 33.) Such evidence that others similarly situated (except for the protected activity) were treated identically to Mr. Pendleton rebuts his claim of pretext. See McDonnell Douglas Corp., 411 U.S. at 804, 93 S.Ct. at 1825.

Moreover, it is clear that during the pendency of the hiring freeze defendant made a good-faith effort to expedite plaintiffs reinstatement. The staff at Otisville twice sent letters to the central personnel office requesting the reinstatement of Mr. Pendleton. (Defendant’s Exhibits E, H.) The staff at Otisville also pursued Mr. Pendleton’s request with the Affirmative Action section of DOCS. (Defendant’s Exhibit I.) The Affirmative Action people pursued Mr. Pendleton’s request with a memo to the Chief Budget Analyst. (Defendant’s Exhibit G.) Indeed, Dr. Bush's memo complied with the new procedures announced in a memo from the central office of DOCS (Defendant’s Exhibit D), and was written within a few days of his receipt of that memo and of a copy of the Otisville missive. Thus, on this record it appears that the defendant reinstated Mr. Pendleton as soon as possible given the state-wide budget constraints.

The Court is bolstered in its conclusion that Mr. Pendleton was not retaliated against by DOCS by the testimony of Ms. Ortega, the only truly disinterested witness to testify at the trial. Ms. Ortega was present at the conciliation conference and also had discussions with Mr. Pendleton, Superintendent Coombe, and Dr. Bush after the conference. She left the conciliation conference, like Mr. Pendleton, believing that he would be reinstated on February 13th. (Tr. 19.) She also testified candidly that she did not believe Mr. Pendleton would have withdrawn his initial complaint had he known that his reinstatement would be delayed by the budget crisis. (Tr. 23.) Nonetheless, she testified unequivocally that it was her opinion that Mr. Pendleton had not been retaliated against, but rather that the delay in his reinstatement had been a result of the budget crisis. (Tr. 22.) The Court agrees.

In sum, the Court finds that there is insufficient evidence to support a finding that Mr. Pendleton was misled into withdrawing his complaint, or that he was reinstated later than promised, because he had filed a claim of race discrimination. Accordingly, plaintiff has not satisfied his burden of proving that he was intentionally retaliated against for engaging in protected activity. The Clerk shall enter judgment in favor of the defendant DISMISSING plaintiff’s claim.

SO ORDERED.

      . See Ganguly v. New York State Dep’t of Mental Hygiene, 92 F.R.D. 125, 127 (S.D.N.Y.1981) (“intent or motive is an essential ingredient”); see also United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983) (“the ‘factual inquiry’ in a Title VII case is 'whether the defendant intentionally discriminated against the plaintiff ”) {quoting Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1983)) (emphasis added).

      . The Court has descried this argument from a liberal reading of Mr. Pendleton’s post-trial brief.

      . Plaintiff makes no claim that he was retaliated against by DOCS failure to reinstate him on the day the freeze was lifted (two days earlier than his actual reinstatement). Finally, plaintiff does not seriously press his claim that his eventual reinstatement at Green Haven rather than Otisville constituted retaliation. Nor does it appear that he could properly press such a claim given his earlier requests for a transfer from Otisville. (Tr. 14.) In any event, the Court finds that this, too, was not retaliatory.


source: Caselaw Access Project

author: McMILLAN, District Judge.

license: Public Domain

text:
    Fannie H. CROCKETT, Plaintiff, v. ECKERD DRUGS OF NORTH CAROLINA, INC., Defendant.
    No. C-C-84-154-M.
    United States District Court, W.D. North Carolina, Charlotte Division.
    Aug. 16, 1985.

      John T. Nockleby and Geraldine Sumter, Ferguson, Watt, Wallas & Adkins, Charlotte, N.C., for plaintiff.
    James S. Sidman, Clearwater, Fla., for defendant.
   FINDINGS OF FACT AND CONCLUSIONS OF LAW

McMILLAN, District Judge.

This is an action brought pursuant to 42 U.S.C. § 2000e et seq. and 42 U.S.C. § 1981. The complaint was filed on March 26, 1984. Plaintiff seeks injunctive relief to remedy an alleged unlawful termination of her employment because of her race and in retaliation for raising complaints about the differences in treatment afforded black and white employees.

Plaintiff seeks reinstatement, back pay, fringe benefits and interest.

The case was tried before the court without a jury on June 12, 1985.

Based on the evidence and the exhibits presented at trial, and after hearing and weighing the evidence, appraising the demeanor and credibility of the witnesses in light of their interest, and considering the arguments of counsel, the court, pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, makes the following

FINDINGS OF FACT

I.

JURISDICTION

1. This court has jurisdiction pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 2000e-5(f).

2. The plaintiff has complied with the administrative requirements of Title VII (42 U.S.C. § 2000e et seq.)

II.

PARTIES

3. Plaintiff Fannie H. Crockett is an adult black female resident of Charlotte, Mecklenburg County, North Carolina.

4. Defendant Eckerd Drugs of North Carolina, Inc. (“Eckerd”):

(a) is a corporation which transacts business in North Carolina;
(b) is involved in the retail merchandising business, and operates retail stores, a distribution center, and its district offices in Mecklenburg County, North Carolina; and
(c) is a person within the meaning of 42 U.S.C. § 1981, and an employer within the meaning of 42 U.S.C. § 2000e et seq.

III.

FACTS

5. Plaintiff has exhausted all administrative requirements necessary to bring this action.

6. Plaintiff began her employment with Eckerd on March 22, 1979.

7. Plaintiff was employed with defendant until her discharge on June 13, 1983, as a material handler in the preprint warehouse of the Charlotte distribution center.

8. Her work performance was considered satisfactory. Testimony by witnesses for both plaintiff and defendant depict her to be a capable, reliable, and cooperative employee.

9. Defendant’s company implemented a rule in mid-1979 for the entire distribution center complex, including the preprint warehouse, which prohibited smoking in any area except break areas and offices. The discipline for violation of this rule was immediate dismissal.

10. This rule was frequently communicated to and readily known by the work force, as testified to by witnesses for both plaintiff and defendant.

11. On June 9, 1983, Jenelle Carroll, plaintiff’s supervisor, inadvertently noticed what appeared to be a violation by plaintiff of this rule, in the shipping area restroom of the preprint warehouse. She entered the restroom and proceeded into the stall next to the stall occupied by the plaintiff. Carroll smelled cigarette aroma and observed smoke in the air above the stall occupied by Crockett. Crockett identified Jenelle Carroll and spoke to her.

12. Carroll did not confront Crockett but consulted her supervisor, Paul Wise, on the proper procedure should she observe someone smoking in an unauthorized area. Crockett’s name was not mentioned. Wise instructed Carroll to bring to his office any employee caught smoking in the future.

13. On June 10, 1983, Carroll entered the same restroom as before, just before the conclusion of the shift. The restroom was empty. She used the stall nearest the wall. While she was in the stall the plaintiff entered the restroom and took the stall next to Carroll. When Carroll finished, she washed her hands and left the restroom. As she got outside the restroom, she heard the stall door shut, the exhaust fan go on, and the stall door shut again. Carroll became suspicious and returned to the restroom. As she stood out of sight of plaintiff, she watched a billow of smoke rise above the stall occupied by plaintiff and smelled smoke. Carroll waited for plaintiff to finish and confronted her about smoking in violation of company policy.

14. Carroll escorted plaintiff to Wise’s office where Carroll informed Wise of what she observed. Wise asked plaintiff about the matter, and Crockett denied smoking. Wise informed her of the serious nature of the offense. He told her that he would inform her of the consequences of the allegation the following Monday after his review of the matter with personnel and his immediate supervisor, Paul Pittman.

15. On Monday morning, June 13, 1983, Wise, Pittman, and Robert Holcomb, the facility personnel manager, met to review the events of the previous Friday. Carroll participated in the meeting to advise Pittman and Holcomb of what she observed. Wise also discussed what transpired during his meeting with plaintiff on Friday, June 10, and her denial of smoking. Agreement was reached that termination was appropriate. Pittman went to his superior and asked and received his approval to terminate Crockett.

16. That afternoon plaintiff met with Carroll, Wise and Pittman. Wise told plaintiff that she was terminated as of that date for violating a known company work rule, i.e., smoking in the preprint warehouse women’s restroom.

17. Since June 13, 1983, plaintiff has performed no services as an employee of Eckerd and has received no remuneration since her termination on that date.

18. Plaintiff’s witness Debbie Pope testified that she admitted to company management that she smoked in the preprint warehouse restroom before she learned that it was a work rule violation. This admission is not comparable to the present situation and does not show a difference of treatment between plaintiff and Pope. Plaintiff admits that she was fully aware of the rule against smoking at all relevant times.

19. Testimony by witnesses for both plaintiff and defendant reveals that at the time the plaintiff was terminated for smoking, except for the incident with Pope, no other employees had ever been caught smoking nor did any employee approach management and admit that they had observed a particular individual smoking.

20. In addition to the incident on June 10, 1983, for which Fannie Crockett was terminated, evidence was received that she had been observed smoking in the shipping area restroom on at least one other occasion besides June 9 and 10, 1983, but that the employee who witnessed this, Delores Slayton, did not come forth with this information until after plaintiff’s termination.

21. Plaintiff contends that she complained frequently about the disparity of work assignments.

22. Plaintiff’s work appraisal forms describe her as a good and cooperative employee. No indication is found that she was a complainer or problem employee or that defendant took any action against her because of her alleged complaining.

23. Plaintiff’s performance was considered satisfactory and had no bearing on her discharge.

24. Plaintiff was the first distribution center employee caught smoking and terminated without progressive counseling. Thirteen (13) other employees have been terminated at the distribution center for first time offenses during a two-year period prior to the plaintiff’s termination; ten (10) were white and three (3) were black.

25. Plaintiff was replaced in her position by a black female.

26. The percentage of black employees working at the Eckerd distribution center in Charlotte has increased slightly since 1981.

27. Plaintiff has submitted evidence that she contends shows racial animus in Jenelle Carroll’s assignment of work details to white and black employees. Although the evidence seems to show that plaintiff was often given more demanding work assignments than those given to Beulah Holbrooks, a similarly situated white employee, the court does not find this evidence persuasive in showing any racial animus. Other alleged instances of discriminatory conduct likewise fail to show any racial animus towards plaintiff. The court does not reach the question whether plaintiff was actually smoking in the restroom on June 10, 1983. However, the court finds that employees of Eckerd fired plaintiff because they believed that plaintiff had committed this violation of the rules.

29. The parties have stipulated that the matter for the court’s consideration is one of wrongful discharge by reason of alleged racial discrimination. Wrongful discrimination in job assignments has not been charged.

Based on the foregoing findings of fact, the court concludes as follows:

CONCLUSIONS OF LAW

1. The court has jurisdiction of the subject matter. 42 U.S.C. § 2000e-5(f), and 28 U.S.C. § 1343(4). The court has jurisdiction of the person of the defendant.

2. The defendant is an employer engaged in an industry affecting commerce, and had fifteen (15) or more employees for each working day in each of twenty (20) or more calendar weeks in the current or preceding calendar years, within the meaning of 42 U.S.C. § 2000e(b).

3. Defendant is a corporation transacting business at several locations in Mecklenburg County, and is a person within the meaning of 42 U.S.C. § 1981.

4. Plaintiff Crockett has complied with the procedural requirements of 42 U.S.C. §§ 2,000e-5(e) and (f).

5. The basic tenets and evidentiary standards enumerated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and its progeny were set out to guide courts in assessing allegations like those in the present action. In a disparate treatment discrimination suit, the plaintiff must demonstrate “intentional discrimination.” Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

In satisfying her burden of proving intentional discrimination, plaintiff can not rely merely on the fact that an employer based its decision on incorrect or mistaken information or that it was an unfair decision. See, e.g., Jones v. Los Angeles Community College Dist., 702 F.2d 203, 205 (9th Cir.1983).

The issue in this case is whether or not plaintiff was discharged because of her race, not whether or not the company was correct in its assertions that she had smoked in the restroom. It is not sufficient for plaintiff to show that defendant was mistaken in its conclusion that she was smoking in the restroom. Defendant may not be held liable for a mistaken or wrong reason as long as the decision was not based on unlawful discrimination. Defendant need not show that its conclusion was correct. If the trier of fact finds that defendant fired plaintiff because of a good faith belief that she violated the rule against smoking, plaintiff may prevail only by demonstrating that this reason is a mere pretext for discrimination. See Burdine, supra, 450 U.S. at 259, 101 S.Ct. at 1096; Sanchez v. Texas Commission on Alcoholism, 660 F.2d 658, 662 (5th Cir.1981); Jones, supra; Bostic v. Wall, 588 F.Supp. 994, 1002 (W.D.N.C.1984).

6. The court has made no finding as to whether or not plaintiff was actually smoking in the restroom, as charged by defendant. Even assuming this to be true, plaintiff has not shown that defendant’s proffered reason for firing her was a pretext for discrimination. The court has found that defendants believed in good faith that plaintiff was violating the rule against smoking and fired her because of this.

7. Plaintiff has not shown that similarly situated non-minority employees were punished less severely. Several non-minority employees have been fired by defendant after a first offense. The example of Debbie Pope’s not being fired for smoking is not applicable because the company was told that she was not aware of the rule at the time of violating it.

8. Even assuming that plaintiff has made a prima facie case, she has not rebutted the reason given by defendant for terminating her. She has not shown that defendant terminated her for reasons other than its belief that she had violated company rules or that the termination was in any way a retaliation for her alleged complaining of disparate racial treatment in work assignments. Plaintiff has failed to show either that she made such complaints in a way that defendant was cognizant of her as a “complainer” or that the determination to fire her was in any way affected by her alleged complaints.

The court finds that plaintiff has failed to carry her burden of proving racial discrimination and finds no persuasive evidence of disparate treatment in plaintiffs discharge.

Her discharge was “hard nosed” but not racially discriminatory.

Accordingly, defendant is entitled to a dismissal with prejudice of all claims and causes of action stated by plaintiff against the defendant.


author: TURK, Chief Judge.

text:
    Donald F. TAYLOR, Plaintiff, v. Willie NELSON, et al., Defendants.
    Civ. A. No. 80-0295.
    United States District Court, W.D. Virginia.
    Aug. 19, 1985.
    Charles L. Williams, Jr., Gentry, Locke, Rakes & Moore, Roanoke, Va., for plaintiff.
    Robert C. Osterberg, Abeles Clark & Osterberg, New York City, Dudley F. Woody, Woods, Rogers & Hazlegrove, Roanoke, Va., for defendants.
   MEMORANDUM OPINION

TURK, Chief Judge.

This case is before the court on the plaintiffs Motion to Vacate Arbitration Award pursuant to 9 U.S.C. § 10 and on the defendant’s Motion to Confirm Arbitration Award pursuant to 9 U.S.C. § 9. The arbitration award at issue was entered in favor of the defendant, Willie Nelson, on September 11,1984 by the American Federation of Musicians. The parties have submitted numerous briefs and affidavits, the court has heard oral arguments, and the matter is now ripe for a decision.

HISTORY OF CASE

On September 26,1980, the plaintiff commenced this breach of contract action against the defendant Nelson and others. On December 15, 1980, Nelson moved for a stay of that action pending arbitration pursuant to the contract, which provided:

In accordance with the Constitution, ByLaws, Rules and Regulations of the Federation, the parties will submit every claim, dispute, controversy or difference involving the musical services arising out of or connected with this contract and the engagement covered thereby for determination by the International Executive Board of the Federation or a similar board of an appropriate local thereof and such determination shall be conclusive, final and binding upon the parties.

On August 2, 1982, this court denied Nelson’s motion for a stay. That order was appealed to the United States Court of Appeals for the Fourth Circuit on August 13, 1982. On November 15, 1982, the fourth circuit reversed and stayed the trial of the contract action until arbitration could be had.

The arbitration began on March 20, 1984 before the executive board of the AFM, which rendered a decision on September 11, 1984. The decision was in favor of the defendant Nelson.

On September 21, 1984, Nelson petitioned the Supreme Court of the State of New York for a judgment confirming the arbitration award. Taylor opposed the motion and, by way of cross-motion dated November 16, 1984, sought to have the petition dismissed on the grounds that the underlying contract action was pending before this court and that the New York court did not have jurisdiction. Taylor’s cross-motion was granted and Nelson’s petition was dismissed by an order dated January 28, 1985 and filed February 1, 1985. Judgment was entered on that order on March 8, 1985, and was filed on March 11, 1985.

On February 12, 1985, Taylor moved to have the arbitration award vacated.

NELSON’S MOTION TO CONFIRM PURSUANT TO 9 U.S.C. § 9

The Federal Arbitration Act at 9 U.S.C. § 9 provides:

If the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration, and shall specify the court, then at any time within one year after the award is made any party to the arbitration may apply to the court so specified for an order confirming the award, and thereupon the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title.

The defendant asserts that this section expressly mandates the confirmation of the arbitration award in this case in that the parties have agreed to the entry of judgment upon the arbitration award, the application to confirm has occurred within one year of the award, and the order has not yet been vacated, modified or corrected. This, however, fails to recognize that the plaintiff’s motion presently before this court is for the specific purpose of having the arbitration award vacated as prescribed in section 10. Nowhere does the Act require this or any court to summarily confirm an arbitration award which is also before the court on a motion to vacate which alleges bias, prejudice and evident partiality.

TIMELINESS OF MOTION TO VACATE

Section 9 U.S.C. § 12 provides that “[njotice of a motion to vacate, modify, or correct an award must be served upon the adverse party or his attorney within three months after the award is filed or delivered.” As previously stated, Taylor’s motion to vacate was filed in this court on February 12, 1985, more than five months after the award was rendered. However, from late September, 1984, through the first week in February, 1985, Taylor was challenging the intervening state court proceeding which was brought by the defendant in New York. It was this New York proceeding which delayed the filing of the motion to vacate in this court, and it would be inequitable to allow Nelson now to assert the three-month period to bar Taylor’s motion to vacate. Therefore, the three-month period should be tolled beginning November 16, 1984 when Taylor served his Cross-Motion in the New York proceeding. That time being tolled, Taylor’s motion to vacate was filed within the three-month statutory period.

Furthermore, as stated in Florasynth, Inc. v. Pickholz, 750 F.2d 171 (2d Cir.1984), the three month period is designed to encourage parties to an arbitration to move expeditiously through the judicial system. There is no evidence in this case that Taylor has failed to move as expeditiously as possible throughout the litigation. In fact, Taylor has acted with all due diligence with respect to his efforts to vacate the arbitration award. To bar Taylor’s motion to vacate would ignore that Nelson had timely notice of Taylor’s intent to challenge the award. Such a result would be manifestly unfair and unwarranted.

The application of tolling pending the outcome of the New York proceeding and the application of the “due diligence exception,” Holodnak v. Avco Corporation, 381 F.Supp. 191 (D.Conn.1974), reversed in part on other grounds, 514 F.2d 285 (2d Cir.), cert. denied, 423 U.S. 892, 96 S.Ct. 188, 46 L.Ed.2d 123 (1975), precludes a finding by this court that Taylor’s motion to vacate was not timely filed.

LAW OF THE CASE

Nelson also argues that the doctrine of the “law of the case” compels this court to find that Taylor’s motion to vacate should be denied. According to that doctrine, once an issue has been decided, explicitly or by necessary implication, by the appellate court, the lower court may not “vary it or examine it for any other purpose than execution; or give any other or further relief; or review it, even for apparent error. .” In re Sanford Fork & Tool Company, 160 U.S. 247, 16 S.Ct. 291, 40 L.Ed. 414 (1895). See also Stamper v. Baskerville, 724 F.2d 1106 (4th Cir.1984). For the doctrine to apply, therefore, the appellate court must have addressed and decided the issue. Nelson maintains that the fourth circuit in staying proceedings in this court pending arbitration “in accordance with the terms of the arbitration clause in the contract at issue” necessarily ruled on the issues of adhesion and evident partiality. In ordering the stay, however, the fourth circuit restricted itself to a determination that the contract had an arbitration provision in it and that it had not been complied with. This limited review is apparent from the fourth circuit’s opinion in the matter, which states:

this court recently observed that a federal court confronted with a motion to stay its proceedings pending arbitration under such a contract must only be satisfied of ‘(1) the making of the agreement to arbitrate and (2) the breach of the agreement to arbitrate’ to find itself under compulsion of the Act to grant the motion.

The fourth circuit did not address or decide the issues of adhesion or evident partiality. There is no reference or discussion whatsoever of these issues in its opinion. Therefore, the doctrine of the “law of the case” is inapplicable to the motions presently before this court.

ADHESION AND EVIDENT PARTIALITY

Arbitration by agreement of the parties is welcomed and encouraged by Congress and by the courts. As the United States Supreme Court has stated, however, what is encouraged is not merely arbitration, but impartial arbitration. Commonwealth Coatings Corporation v. Continental Casualty Company, 393 U.S. 145, 89 S.Ct. 337, 21 L.Ed.2d 301 (1968). Therefore, the United States Arbitration Act, 9 U.S.C. § 10, provides for vacation of an award “where there was evident partiality or corruption in the arbitrators, or either of them.”

Nelson argues, citing International Produce, Inc. v. A/S Rosshavet, 638 F.2d 548 (2d Cir.1981), that federal law does not read “evident partiality” in section 10 to include “appearance of bias.” The narrow holding in Rosshavet, however, dealt with a situation very different from the one now before this court. Rosshavet, a maritime arbitration case, involved what the second circuit referred to as “speculation without substance.” This court is not persuaded that Rosshavet should be so broadly interpreted or applied as, in effect, to overrule the holding in Commonwealth Coatings. In that case, the United States Supreme Court clearly stated:

... any tribunal permitted by law to try cases and controversies not only must be unbiased but also must avoid even the appearance of bias. We cannot believe that it was the purpose of Congress to authorize litigants to submit their cases and controversies to arbitration boards that might reasonably be thought biased against one litigant and favorable to another.

393 U.S. at 150, 89 S.Ct. at 340.

It is difficult to imagine an arbitration board which could more “reasonably be thought biased against one litigant and favorable to another” than the Executive Board of one party’s union. The argument made here by the defendant, that actual impartiality or bias must be shown, was also made by the dissenters in Commonwealth Coatings and rejected by the majority. It is also rejected by this court.

The AFM contract pursuant to which the arbitration in this case was held was a form contract prepared by the AFM. AFM members such as the defendant may only perform concerts pursuant to an AFM contract. Any promoter desiring to contract for a performance by an AFM member had to enter into the AFM contract. The only AFM contract available to Taylor contained no choice regarding the forum for arbitration; the sole forum permitted was an arbitration conducted by the International Executive Board of the AFM. When it became evident that an arbitration would be required, Taylor requested that the AFM allow that arbitration to be before the American Arbitration Association. This request, along with a request that the hearing take place in Roanoke, Virginia, was refused. Such evidence points clearly to the fact that Taylor “was required by the realities of his business as a concert promoter to sign A.F. of M. form contracts with any concert artist with whom he wished to do business.” Graham v. Scissortail, Inc., 28 Cal.3d 807, 623 P.2d 165, 171 Cal.Rptr. 604 (En Banc, 1981).

When, as here, the contract requiring arbitration is a form contract which smacks of adhesion, the court must scrutinize that contract with particular care in order to ensure that “certain minimum levels of integrity” are maintained. Id., at 824-825, 623 P.2d at 176, 171 Cal.Rptr. at 615. Two separate state courts have reviewed the identical arbitration procedure at issue here and found it to be unconscionable. In each case the award rendered pursuant thereto was held unenforceable. See Chimes v. Oritani Motor Hotel, Inc., 195 N.J.Super. 435, 480 A.2d 218 (N.J.Super.Ct.1984) and Graham, supra.

The Supreme Court of California in Graham, while recognizing that nothing on the record before it indicated that the AFM arbitration procedure denies either party an opportunity to be heard, nevertheless found that:

a contractual provision designating the union of one of the parties to the contract as the arbitrator of all disputes arising thereunder—including those concerning the compensation due under the contract—does not achieve the ‘minimum levels of integrity’ which we must demand of a contractually structured substitute for judicial proceedings. Such a provision, being inimical to the concept of arbitration as we understand it, would be denied enforcement in any circumstances; clearly it cannot stand in a case which, like that before us, requires the careful and searching scrutiny appropriate to a contract with manifestly adhesive characteristics.

Graham, 28 Cal.3d at 828, 623 P.2d at 178, 171 Cal.Rptr. at 617.

A New Jersey appellate court also called upon to review the AFM arbitration provision, held that it was void as being contrary to public policy, stating:

In the circumstances we conclude that the so-called arbitration provision, giving the Board power to decide disputes between its members and defendant, is contrary to public policy. The relationship between the Board and its members is obviously too close to assure the dispassionate and impartial resolution of disputes between AFM members and nonmembers.

Chimes, 480 A.2d at 223.

Although the defendant correctly argues that this court is not bound by the decisions of state courts in New Jersey and California, the contract provision at issue is identical in all three cases, and the reasoning of the state courts applies equally in the case at bar. The partiality which is apparent from the procedure itself is made even more evident by the statistical study prepared by the plaintiff. An analysis of claims initiated by non-members against members reveals that approximately fifty-nine percent (59%) were decided in favor of the AFM member.

CONCLUSION

The evident partiality alleged under 9 U.S.C. § 10 stems from the pervasive control which the AFM union exerted over the entire arbitration procedure, and is supported by the statistics. The contract provided no option except AFM arbitration. Under the contract, the AFM selects the hearing referee, the hearing date and the hearing site. In this case, requests for alternate arbitrators, dates, and sites were refused. The AFM establishes the format, the rules, and the procedure. The AFM Executive Board even makes the final decision and hears any appeal. The integrity of arbitration as a neutral forum for the resolution of disputes was nowhere to be found in the procedure to which Taylor was subject. Therefore, it is the holding of this court that the defendant’s motion to confirm and dismiss should be DENIED and the plaintiff’s motion to vacate the arbitration award should be GRANTED. An order consistent with this opinion shall be entered this date.

      . The defendant also seeks an order dismissing this action pursuant to Rule 12(b)(6) and Rule 56 of the Federal Rules of Civil Procedure, alleging'that, once the arbitration award is confirmed, there no longer exists any claim upon which relief can be granted.

      . The American Federation of Musicians (AFM) the defendant Nelson’s union. The plaintiff is not a member of the AFM.

      . Subsequent AFM form contracts permit such an option.

      . Even more staggering is that of claims by members against non-members, ninety percent (90%) of the total number of claims analyzed, eighty-two percent (82%) were decided in favor of the member.


author: JOSEPH H. YOUNG, District Judge.

text:
    Patricia A. DIXON v. WESTINGHOUSE ELECTRIC CORP.
    Civ. No. Y-83-3034.
    United States District Court, D. Maryland.
    Aug. 19, 1985.

      Mark E. Herman, Baltimore, Md., for plaintiff.
    Leonard E. Cohen and Monte Fried, Baltimore, Md., for defendant.
   MEMORANDUM

JOSEPH H. YOUNG, District Judge.

I. BACKGROUND

The plaintiff instituted this action against her employer, Westinghouse Electric Corporation (“Westinghouse”) seeking a declaratory judgment and injunctive relief as well as money damages. In Count I of her complaint, she seeks recovery for discriminatory employment practices pursuant to 42 U.S.C. § 2000e et seq. of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972 (Title VII). Count II alleges that these practices constitute the intentional infliction of emotional distress under Maryland law. Defendant has filed a motion and supplemental motion for summary judgment as to both Counts I and II of the complaint.

Plaintiff, an employee with more than ten years service in the defendant’s drafting department, alleges that she was discharged on December 18, 1981 because of her sex. She also charges, in essence, that she was required to provide more documentation and verification of the medical nature of her absence than were similarly situated male employees “out on disability.”

Westinghouse contends that the plaintiff was discharged for excessive absenteeism after having missed substantial time from work before and after an automobile accident in June, 1980. Defendant also alleges that the plaintiff did not report regularly to her supervisor to apprise him of her situation and condition during these absences, and did not document and substantiate the reasons for her prolonged absences. Additionally, when reports were received concerning the plaintiff’s condition, the information usually came from third parties (e.g., plaintiff’s roommate, daughter, sister, and son), and often was ambiguous and contradictory. Defendant insists that the plaintiff was discharged pursuant to a provision in the collective bargaining agreement only after repeated requests for medical documentation went unanswered. Plaintiff is alleged to have been counseled, warned, and subjected to progressive discipline before she finally was discharged. Defendant also notes that it voluntarily reinstated the plaintiff to her prior position on January 3, 1983, at a salary she would have received had she been continuously employed between December 18, 1981 and January 3, 1983.

Following her termination in December, 1981, plaintiff challenged defendant’s action in two separate proceedings. Initially she filed a grievance under the collective bargaining agreement in effect between Westinghouse and the Salaried Employees Association (“SEA”). Subsequently, on August 4, 1982, she filed a charge of discrimination with the EEOC, 230 days after her discharge. Plaintiffs grievance presumably was resolved by defendant’s offer of reinstatement on November 2, 1982 following discussions between the union, company, and EEOC representatives. The EEOC made no finding on Dixon’s charge. Instead, the Commission terminated its processing of the charge and issued plaintiff a Right to Sue Notice on June 16, 1983.

II. PLAINTIFF’S TITLE VII CLAIM

Section 706(e) of Title VII, 42 U.S.C. § 2000e-5(e), governs the filing of timely charges of discrimination with the EEOC. Subsection (e) states that:

A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred ... except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a state or local agency with authority to grant or seek relief from such practice ... such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred____ (emphasis added).

“The effective filing of a timely charge with the EEOC is a prerequisite to the invocation of the administrative process within the EEOC, § 706(c), and to the maintenance of an action in the district court.” Citicorp v. Brazell, 658 F.2d 232, 234 (4th Cir.1981) (citing § 706(f)(1), 42 U.S.C. § 2000e-5(f)(l)); Lopez v. Sears, Roebuck, and Co., 493 F.Supp. 801, 804 (D.Md.1980).

Defendant contends that plaintiff’s claim is time barred because it was not filed within the 180 day period provided for such filings in § 706(e). Plaintiff counters that the filing is timely under the subsection’s 300 day filing period rather than the 180 day period, and submits that although she did not file a charge with any state or local agency, (Plaintiff’s Deposition, p. 244), the 300 day filing period provided for discrimination charges “initially instituted” with a state or local agency should nonetheless apply because the EEOC transmitted the charge to the Maryland Commission on Human Relations (“MCHR”). (Plaintiff’s Exhibits # 1 and 1A; Affidavit of Leo Sanchez, HIT 2, 3).

However, assuming that plaintiff’s EEOC charge was transmitted to, and received by the MCHR, the charge is not timely filed with the EEOC because it was filed after the 180 day period had expired and state agency proceedings were never “initially instituted.” Nor could such proceedings involving plaintiff’s charge have been instituted in view of the contractual relationship which existed between the EEOC and the MCHR as illustrated by their Work Sharing Agreement. See Lopez, 493 F.Supp. at 805.

Plaintiff vigorously disputes this proposition and cites numerous cases as well as a provision of the Code of Federal Regulations in support of her contentions. However, plaintiff’s cases address the issue of whether a charge must be filed with a deferral state agency within the limitations period set forth in the applicable state statute in order to take advantage of the 300 day extended filing period under Title VII. See, e.g., Soble v. University of Maryland, 572 F.Supp. 1509, 1512-13 (D.Md.1983); Rasimas v. Michigan Dept. of Mental Health, 714 F.2d 614 (6th Cir.1983); Jones v. Airco Carbide, 691 F.2d 1200 (6th Cir. 1982); these cases are distinguishable and the issue they address is separate and distinct from the question presented here— i.e., whether the mere submission of a transmittal form by the EEOC to the MCHR is sufficient to constitute an initially instituted charge by the plaintiff.

Lopez and the cases upon which it relies are persuasive and directly address this issue. In Lopez, the Court interpreted § 706(e) and determined that the 180 day period for filing a charge with the EEOC rather than the extended 300 day period applied to the case where the EEOC had a Work Sharing Agreement with a county fair employment practices agency which provided that the county would not act on charges initially received by the EEOC until the EEOC had “resolved” the matter. Lopez, 493 F.Supp. at 805. The Court reasoned that because of the Work Sharing Agreement, there was no contemplation on the part of the agencies that the county agency would process the plaintiffs case before the EEOC had an opportunity to resolve the matter, and therefore the EEOC’s transmittal of the charge to the Montgomery County Human Relations Commission was for informational purposes only. Id. Accordingly, the Court found that the plaintiff’s charges were never “initially instituted” with the local deferral agency within the meaning of § 706(e) because there was no filing with the county agency with the intention it would actually process the charge. Id.

The holding in Lopez relies in part on Doski v. Goldseker Co., 539 F.2d 1326 (4th Cir.1976). There, the Fourth Circuit noted that “the meaning of the phrase [initially instituted] is well settled: the state or local agency should be given first opportunity to act on the complaint.” Id. at 1330 (brackets added). Doski itself relied upon the reasoning in Ugiansky v. Flynn and Em-rich Co., 337 F.Supp. 807 (D.Md.1972), where this Court explained the circumstances under which the expanded filing period under § 706(e) is available.

[A]s long as the state commission has been afforded the first opportunity to act on the complaint, there is a period of 210 days [now 300 days] after the date of the alleged unlawful employment practice (or 30 days) after the notice of the termination of the state commission proceedings, whichever period expires earlier, within which the complaint may be filed with the EEOC.

Id. at 809, n. 4.

These cases hold that the expanded filing period in § 706(e) was intended to allow state or local agencies sufficient time to process a discrimination charge before it is processed by the EEOC, and the expanded period is only available where the state or local agency has been afforded the first opportunity to act on the charge. In Lopez, the local agency had previously waived its right to process the charge through its Work Sharing Agreement with the EEOC. Thus the reason for the extended filing period under § 706(e) was not present and the Court refused to afford the plaintiff additional time. Lopez, 493 F.Supp. at 805.

Defendant is correct in its assertion that the reasoning and holding of Lopez compel a similar conclusion here. Although the order of filing is immaterial, id., and the expiration of the state statute of limitations does not preclude the processing of a charge filed with the state agency within the 300 day period provided in § 706(e) where the agency is empowered to act, the expanded filing period in 706(e) is not available in situations where there is no opportunity whatsoever for the state deferral agency to process the charge before the EEOC does. In these situations transmittal of the charge from the EEOC to the deferral agency is purely for informational purposes and does not constitute an “initially instituted” charge within the meaning of the Act. Lopez, 493 F.Supp. at 805. Where the state or local deferral agency is not empowered or authorized to act, either because of statutory or contractual limitations, there is no reason to allow additional time for filing charges under § 706(e). See Mohasco, 447 U.S. at 821, 100 S.Ct. at 2494 (supra n. 4). As it did in Lopez, the court will tie the availability of the expanded period for filing in Maryland to the purpose of the statute which is for the state agency to be afforded the opportunity to act on a charge of discrimination before the EEOC does.' The Court will not arbitrarily permit plaintiffs in states with deferral agencies, not authorized to process certain claims, more time to file such claims merely because the deferral agency exists. Section 706(e) facilitates the exhaustion of state remedies, see Citicorp, 658 F.2d at 234, but it has no effect when the state deferral agency is without authority to process a claim or where it is contractually precluded from doing so. See Lopez, 493 F.Supp. at 805.

Here, the MCHR was not authorized to process the plaintiff’s discrimination charge at the time of filing because the state agency previously had waived its right to be afforded the first opportunity to act on such charges under the terms of its Work Sharing Agreement with the EEOC. The Agreement provides that the EEOC will take primary responsibility for processing all charges originally received by it, (Defendant’s Exhibit 15, Work Sharing Agreement ¶ 4.c), as well as those charges received by the EEOC more than six months, but less than 300 days, after the alleged violation. (Id., at 114.C.6). Both of these waiver provisions in the Work Sharing Agreement provide a basis for the EEOC’s primary and exclusive processing responsibility with regard to the plaintiff’s charge. The plaintiff’s charge originally was received by the EEOC and it was received more than 6 months but less than 300 days from the alleged discriminatory discharge on December 18, 1981; therefore, there was no expectation or intention on the part of the EEOC and the MCHR that the state agency would process or handle the plaintiff’s charge even if the charge was transmitted to the MCHR. Thus, under these circumstances, the transmittal of the plaintiff’s charge by the EEOC to the MCHR was for informational purposes only. See Lopez, 493 F.Supp. at 805. The transmittal was not undertaken in contemplation of any substantive action being taken by the MCHR. The rationale for allowing the extended time filing period under § 706(e)—that the first opportunity to act on a charge of discrimination be afforded to the state deferral agency where appropriate—is lacking here as it was in Lopez.

Plaintiff’s reliance on 29 C.F.R. § 1601.-13 is also unavailing. The Court will construe this regulation in a manner consistent with the statutory framework of Title VII and the rationale underlying the extended time provision in § 706(e). This regulation, like the cases relied upon by the plaintiff, applies the 300 day extended filing period to those charges filed with EEOC after the state period for filing has expired but where the state deferral agency is otherwise empowered to act on the charges. The Court will not read this regulation as applying the extended filing period to charges filed with the EEOC after 180 days where, as either a statutory or contractual matter, the state agency, in essence, is not authorized to process a charge before the EEOC has resolved the claim. To hold otherwise would attribute meaning to the regulation inconsistent with the statutory purpose of § 706(e). y Certainly, the EEOC may not create or' expand the statutory jurisdiction given''to it by Congress. Mohasco v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980). Thus, the 180 day filing period is applicable to plaintiffs discrimination charge and the charge is, therefore, untimely.

The Supreme Court has held that the filing of a timely charge is not jurisdictional and therefore, is subject to waiver. Zipes v. Trans World Airlines, 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982). However, defendant will not be held to have waived its objection to the timeliness of plaintiffs charge because of its failure to litigate the matter before the EEOC. The EEOC’s firm opposition to the Lopez analysis as indicated by its direct participation as amicus curiae, its apparent refusal to consider Lopez in promulgating 29 C.F.R. 1601.13, and its position that an advance waiver is equivalent to a termination of state proceedings, see 46 Fed. Reg. 43037, 43038 (August 26,1981), rather than a waiver of the right to act altogether, indicates that litigating plaintiffs’ claims before the EEOC would have been a wholly futile act and would not have expedited the resolution of the instant controversy. The Court will not deem the defendant to have waived its objections to the plaintiff’s charge because of its failure to avail itself of the opportunity to present its claim in a clearly unavailing forum.

Although the filing of a timely discrimination charge is also subject to equitable tolling and estoppel, Zipes, 455 U.S. at 393; Citicorp, 658 F.2d at 234, this is not an appropriate case in which to apply these principles because “there are no ... equities which would permit the plaintiff to bring herself within the rule[s] application.” Id.

Plaintiff was discharged on December 18, 1981. She admits having received notice of her termination on December 19, 1981, (Plaintiff’s Deposition, p. 47), yet plaintiff inexplicably failed to file her charge with the EEOC until almost eight months later. Plaintiff was represented by counsel throughout and should have been aware of the judicial decision in this district which held that the 180 day limitations rule applies to charges filed with the EEOC which may not be acted upon by the MCHR. Lopez, 493 F.Supp. at 805. Although plaintiff had no control over the procedural requirements for the filing of a timely charge before the EEOC, she did know, or should have known, of the 180 day rule, or of the controversy surrounding the interpretation of the statute of limitations.

Having found that plaintiffs claim of discrimination is time barred, and that neither waiver, tolling, nor estoppel principles are appropriate for application in this case, plaintiffs Title VII claim accordingly will be dismissed.

III. PLAINTIFF’S INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIM

The facts alleged by the plaintiff in support of her claim under Title VII are essentially the same facts which she contends constitute a claim for the intentional infliction of emotional harm under Maryland law. (See Plaintiff’s Complaint, Count II). Although plaintiff makes no mention of the collective bargaining agreement in existence at the time of her termination, plaintiff’s state law claim is nonetheless based on the “outrageous conduct” which forms the basis of a breach of the collective bargaining agreement. See Morris v. Owens-Illinois, 729 F.2d 1453 (4th Cir.1984), The Daily Record, March 31, 1984, at 1, col. 4. Through her state claim the plaintiff is essentially attempting to enforce her right to continued employment in the absence of just cause for discharge pursuant to the terms of the collective bargaining agreement. Thus, federal law governs the resolution of this claim. See Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957).

Federal labor policy requires that an employee covered by a collective bargaining agreement exhaust any contractual remedies, such as grievance and arbitration, before bringing suit for violation of the collective bargaining agreement. See Republic Steel Corp. v. Maddox, 379 U.S. 650, 652, 85 S.Ct. 614, 616, 13 L.Ed.2d 580 (1965). Contract grievance procedures are the preferred method for settling disputes and stabilizing the “common law” of the plant, id. at 653, 85 S.Ct. at 616, and an “aggrieved employee [whose contractual remedies have not been exhausted] cannot sidestep a federally mandated grievance process merely by pleading emotional injury.” Morris, supra, Daily Record at 2, col. 1, (citing Magnuson v. Burlington Northern, 576 F.2d 1367 1369 (9th Cir.), cert. denied, 439 U.S. 930, 99 S.Ct. 318, 58 L.Ed.2d 323 (1978)).

Plaintiff has not exhausted her contractual remedies. The collective bargaining agreement between Westinghouse and the Salaried Employees Association contained an exclusive grievance and arbitration procedure for handling claims of wrongful discharge. (Agreement §§ XV, XV-A). The agreement specifically provides that in the event a grievance is not processed beyond the third step Local Grievance Procedure to the National Appeal Level within thirty days after the company has given its written answer at the third step level, the union “shall not be considered as having fully exhausted the grievance procedure.” (Agreement § VX(2)(D)(2)). Neither the union nor the plaintiff pursued the grievance beyond the third step after the defendant gave its written notice rejecting the grievance. Plaintiff’s grievance was not processed beyond the third step. (See Defendant’s Exhibit D). Thus, it is clear that the plaintiff has failed to exhaust the grievance-arbitration procedures provided in the collective bargaining agreement and she may not maintain her claim alleging the intentional infliction of emotional harm. See Morris, supra, Daily Record at 2, col. 1. Accordingly, defendant’s supplemental motion for summary judgment will be granted and judgment entered for defendant.

      . Plaintiff apparently sustained injuries to her neck, shoulder, jaw, and teeth (Plaintiffs Deposition, pp. 52-53), in a non-work related accident in front of the Westinghouse facility where she was employed in Anne Arundel County, Maryland. Plaintiff also states that she has suffered emotional distress as a result of her accident. (Id., pp. 54-57, 72, 73).
      Uncontroverted evidence supplied by defendant Westinghouse indicates that the plaintiff was absent 36.6% of the available work days in 1978, 21.5% in 1979, 60% in 1980, and 42.9% in 1981. (Defendant’s Exhibit # 4).

      . This provision states that:
      An employee who is absent without permission for a period of five (5) working days, and the employee’s supervisor, or in his absence, the Medical Department, has not received a report during this period giving a satisfactory reason for such absence, shall be considered as having voluntarily quit unless he can show extenuating circumstances making it impossible for him to report. (See Brooks Deposition, pp. 104, 106-07).

      . Defendant actually offered the plaintiff reinstatement on or about November 2, 1982 (Defendant’s Exhibit # 10 Plaintiff's Deposition, p. 293), and plaintiff resumed her position on January 3, 1983. (Defendant’s Exhibit # 10, Plaintiff’s Deposition, pp. 34, 167, 320-21; Brooks Deposition, p. 320).

      . See also, Mohasco Corp. v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980). In Mohasco, the Supreme Court noted that the only reason for giving employees in deferral states (i.e., states with an agency having jurisdiction over discrimination claims) a longer period of time in which to file a charge of discrimination than employees in states without a deferral agency was "... to give state agencies an opportunity to redress the evil at which the legislation was aimed, and to avoid federal intervention unless its need was demonstrated.” Id. at 821.

      . The court in Lopez noted that charges must be timely filed with a state agency in order to be afforded the extended limitations period under § 706(e). However, the Fourth Circuit has subsequently determined that the untimely filing of a charge with the state agency (under state law) does not preclude the application of the 300 day extended filing period in a Title VII case. Citicorp, 658 F.2d at 234 (citing Oscar Meyer v. Evans, 441 U.S. 750, 759, 99 S.Ct. 2066, 2073, 60 L.Ed.2d 609 (1979) (applying the above holding to cases involving the comparable state exhaustion requirement under the Age Discrimination Employment Act)).

      . The Work Sharing Agreement in effect at the time the plaintiff's charge was filed with the EEOC (August 4, 1982) was executed by Dorothy E. Mead, Director of the Baltimore District Office of the EEOC on January 20, 1981, and by David Glen, Executive Director of the MCHR on February 10, 1981. The Work Sharing Agreement states, inter alia, that:
      [the Maryland Human Relations Commission] hereby waives its exclusive right to specific periods of initial processing which have been granted to [it] by Title VII for those charges assigned by this Agreement to EEOC for initial processing.

        (iSee Defendant’s Exhibit 15, Work Sharing Agreement ¶ 4.d). (emphasis added).

      . The plaintiff received a letter from the MCHR indicating that the Commission would take no action concerning her complaint because "it [had] determined that [her] charge [could] best be processed by the Equal Employment Opportunity Commission (EEOC).’’ (Plaintiff’s Exhibit 2, MCHR letter of August 11, 1982 to Patricia Dixon). To suggest that the determination referred to in the above mentioned letter constitutes substantive action (on the part of the MCHR) sufficient to bring plaintiff’s charge within the class of charges to which the extended filing period is applicable, is to elevate form over substance. Moreover, this suggestion ignores the provisions of the Work Sharing Agreement which give exclusive processing responsibility to the EEOC where charges like the plaintiff's are filed. (Defendant’s Exhibit 15, Agreement ¶ 4.c. and 6.) It also ignores the information provided on the EEOC Transmittal Form No. PT882-C295-SX which indicates that the plaintiff's charge was initially received by the EEOC and that the EEOC had responsibility for initially processing the charge. (Plaintiff’s Exhibit 1).

      . 29 C.F.R. 1201.13(a) (1981) reads:
      Charges arising in jurisdictions having a 706 Agency but which under the applicable state or local statute of limitations are filed with the Commission upon receipt. Such charges are timely filed if received by the Commission within 300 days from the date of the alleged violation. Copies of all such charges will be forwarded to the appropriate 706 Agency.

      . The charge of discrimination which plaintiff filed with the EEOC confirms the fact that plaintiff understood that she had been terminated on or about the date which she was terminated. Plaintiff indicates that her lawyer initially told her that the defendant was going to rescind her termination. However, by "sometime” in January, 1982, plaintiff definitely knew that the defendant was not going to rescind her termination. (Plaintiff's Deposition, p. 205). Thus, even if plaintiff did not learn of this refusal to rescind her termination until January 31, 1982, and assuming arguendo that this date is used to determine when defendant’s alleged act of discrimination occurred, plaintiff still did not file a timely charge of discrimination with the EEOC within 180 days.


author: SHADUR, District Judge.

text:
    Clellan CARTLEDGE, Plaintiff, v. Margaret HECKLER, Secretary of Health and Human Services, Defendant.
    No. 84 C 3823.
    United States District Court, N.D. Illinois, E.D.
    Aug. 19, 1985.

      Constantine Dranius, Idarius, Dranias & Associates, Chicago, Ill., for plaintiff.
    Michael O’Connell, U.S. Atty., Chicago, Ill., for defendant.
   MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

On January 31, 1985 this Court granted summary judgment in favor of Clellan Cartledge (“Cartledge”) against Secretary of Health and Human Services Margaret Heckler (“Secretary”). On August 9, 1985 Cartledge’s counsel filed a petition for approval of attorneys’ fees and costs. For the reasons stated in this memorandum opinion and order, the petition is denied.

Counsel’s petition is filed pursuant to Social Security Act § 206(b)(1), 42 U.S.C. § 406(b)(1) (“Section 206(b)(1)”). But such a petition—as to fees, not costs—is really one to alter or amend the January 31 judgment. By its own terms Section 206(b)(1) provides (emphasis added):

Whenever a court renders a judgment favorable to a claimant under this sub-chapter who was represented before the court by an attorney, the court may determine and allow as part of its judgment a reasonable fee for such representation____ In case of any such judgment, no other fee may be payable or certified for payment for such representation except as provided in this paragraph.

Cartledge’s judgment was silent as to fees, and for the fee to be allowed “as part of its judgment” this Court must perforce “alter or amend” that judgment.

By way of confirmation (if any were needed), it is worth a brief and contrasting look at the other possible source for a fee award: the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(“EAJA”). While Section 206(b)(1) looks to an award from the lawyer’s client, EAJA permits one against Secretary, the client’s adversary. Watford v. Heckler, 765 F.2d 1562 (11th Cir.1985). Thus under 28 U.S.C. § 2412(d)(1)(A), as under other fee-shifting statutes, the fee award is really in addition to and not part of the judgment. Watkins v. Harris, 566 F.Supp. 493, 495 (E.D.Pa. 1983).

Because counsel’s Section 206(b)(1) petition consequently seeks to “alter or amend” the January 31 judgment, it is out of time under the 10-day period prescribed by Fed.R.Civ.P. (“Rule”) 59(e). This Court has learned its views in that respect are apparently at odds with the procedure customarily followed among social security practitioners, under which fees are sought after Secretary determines the client’s benefits (well after the court’s judgment). This Court has therefore elected (at least for a limited time) to consider petitions such as Cartledge’s as possibly qualifying under the alternative relief provisions of Rule 60(b), assuming of course an appropriate showing.

In this case, though, the attachment to the August 9 petition shows a May 6 notice from the Department of Health and Human Services to Cartledge, informing him of the calculation of his benefits and urging the immediate filing by his attorney of a petition for approval of fees. One copy of that notice was sent directly to the attorney. Under the circumstances, even assuming an inclination to stretch Rule 60(b) for the reason previously stated, this Court finds no showing here to justify the application of that Rule.

Against the possibility Cartledge’s counsel may seek to renew the petition with a further showing under Rule 60(b), one other question must be addressed here. Cartledge’s current petition seeks an award for services rendered not only in this Court (clearly embraced within Section 206(b)(1)) but also before Secretary. But the great weight of authority properly rejects the latter portion of the claim as outside the statutory authorization:

1. Five Courts of Appeal (most recently Morris v. Social Security Administration, 689 F.2d 495, 496-97 (4th Cir. 1982) (per curiam); accord, MacDonald v. Weinberger, 512 F.2d 144, 146 (9th Cir.1975) and cases there cited), and a large number of District Courts around the country (though the only reported opinion this Court was able to locate in this Circuit was Judge Aspen’s dictum to the same effect in Ruzicka v. Heckler, 562 F.Supp. 499, 500 (N.D.Ill.1983), so hold.
2. Only the Sixth Circuit goes the other way (Webb v. Richardson, 472 F.2d 529, 535-36 (6th Cir.1972)), recently followed in Lewis v. Secretary of Health and Human Services, 707 F.2d 246, 247 (6th Cir.1983)), and only one District Court outside the Sixth Circuit (Kemp v. Schweiker, 587 F.Supp. 778, 780-82 (W.D.Pa.1984)) has taken the same position.

Even more to the point than the mere weighing of authority is the clear mandate of the Section 206(b)(1) language, which permits a court to award fees only for “such representation,” a term whose clear statutory antecedent is to the phrase “represented before the court” (emphasis added).

Finally, Cartledge’s petition for costs, though it poses no Rule 59(e) or Rule 60(b) problems, is in part untimely under the specific 30-day limit imposed by this District Court’s General Rule 45(a). Under that General Rule “costs other than those of the clerk, taxable pursuant to 28 U.S.C. § 1920, shall be deemed waived.” And the extended delay in seeking even the clerk’s costs justifies denial of those as well.

Accordingly, as stated at the outset of this opinion, the petition is denied in its entirety. Such denial is without prejudice only to the extent indicated by this opinion.

      . Rule 6(b) forbids the court's enlargement of the 10-day limit.

      . Since this Court first announced the perceived applicability of Rule 59(e) in an unpublished opinion earlier this year, it has consistently applied the same concept in a series of oral bench rulings. Though a number of lawyers have expressed surprise at the idea and acknowledged their not having thought of the problem in those terms, not one has ever asserted any basis for questioning the analysis. This Court has of course recognized the possible Catch-22 situation that Rule 59(e)’s 10-day limit might create, given the fact that fees are not definitely known at the time of judgment (they cannot be, because of the need for Secretary’s postjudgment determination of the claimant’s benefits and hence of the 25% statutory limit on fees). To avoid that problem this Court has, upon entering summary judgment orders in favor of claimants, included a ruling that fees are being allowed, with the amount to be ascertained later.

      . Rule 54(d) provides “costs shall be awarded as of course to the prevailing party unless the court otherwise directs____” Consequently no special provision need be included in a judgment order—and hence no alteration or amendment is required—to entitle Cartledge to payment of costs.


author: SCOTT O. WRIGHT, District Judge.

text:
    Robert A. REDFORD, Plaintiff, v. R.A.F. CORPORATION, Defendant and Third-Party Plaintiff, v. CARGILL, INC., Third-Party Defendant.
    No. 84-4321-CV-C-5.
    United States District Court, W.D. Missouri, C.D.
    Aug. 19, 1985.

      Richard G. Callahan, Rost & Callahan, Charles A. Fain, Jefferson City, Mo., for plaintiff.
    Roger K. Toppins, Bartlett, Venters, Pletz & Toppins, Jefferson City, Mo., for defendant and third-party plaintiff.
    Kelly Pool, Jefferson City, Mo., for third-party defendant.
   ORDER

SCOTT O. WRIGHT, District Judge.

Before the Court is a motion for summary judgment on behalf of third-party defendant Cargill, Inc. of the third-party complaint filed by defendant and third-party plaintiff R.A.F. Corporation. This litigation involves a products liability claim by the plaintiff against the defendant R.A.F. Corporation in which it is alleged that the defendant manufactured and sold a defective poultry processing machine which caused the plaintiff to sustain personal injuries. The defendant filed a third-party complaint against Cargill, Inc., alleging that Cargill was the employer at the time plaintiff’s injuries were sustained and that Cargill’s negligence in permitting the plaintiff to operate the processing machine caused the plaintiff’s injuries. The defendant’s third-party petition does not seek monetary contribution or indemnification from Cargill, but instead requests that Car-gill’s fault be measured and that the plaintiff’s judgment be reduced under the comparative negligence theory commensurate with the relative fault of Cargill.

Cargill contends that it is immunized by virtue of the Missouri Worker’s Compensation Act, Mo.Rev.Stat. § 287.120, and that the Act is an absolute bar to a third-party complaint such as the one in the instant case. See Missouri Public Service Co. v. Henningson Steel Products Co., 612 F.2d 363 (8th Cir.1980); Martin v. Fulton Ironworks, 640 S.W.2d 491 (Mo.App.1982). In response, the defendant suggests that the Missouri Supreme Court’s adoption of comparative fault and the Uniform Comparative Fault Act in Gustafson v. Benda, 661 S.W.2d 11 (Mo.1983), authorizes the third-party complaint. The third-party plaintiff points out that financial contribution is not being sought against the employer. Rather, the third-party plaintiff requests that the employer’s percentage of fault be calculated and be applied to reduce the plaintiff’s recovery under the comparative fault system.

In Sweet v. Herman Brothers, Inc., 688 S.W.2d 31 (Mo.App.1985) (motion to transfer denied, Mo.App. April 30, 1985), the Missouri Court of Appeals for the Western District held that an employer is immune from a third-party suit for contribution by reason of Workers’ Compensation § 287.-120.1, and that an employer’s negligence is not subject to assessment under the comparative fault provisions of the Uniform Comparative Fault Act or under the principles of Gustafson v. Benda. In Sweet, the plaintiffs brought a products liability action against the manufacturer and owner of a tanker truck. The defendants filed a third-party petition against the plaintiff’s employer, alleging that the plaintiff’s injuries were caused in whole or in part by the employer’s negligence. The trial court subsequently sustained the employer’s motion to dismiss the third-party petition.

On appeal, the third-party plaintiffs argued alternatively that: (1) their liability should be reduced in accordance with the relative degree of fault of the employer in causing the employee’s injury; (2) the third-party plaintiffs should be liable only for their respective percentages of fault, and that the employer be treated as a released party under § 6 of the Uniform Comparative Fault Act; or (3) that financial contribution be allowed against the employer. Id. at 32.

The Court of Appeals in Sweet rejected the third-party plaintiff’s contention and agreed with the employer’s argument that “the issue is settled by State ex rel. Maryland Heights Concrete Contractors, Inc. v. Ferriss, 588 S.W.2d 489 (Mo. banc 1979), which held that the employer’s statutory immunity under Section 287.010.1 shielded the employer from any liability for contribution under the apportionment of fault doctrine of Missouri Pacific Railroad v. Whitehead & Kales Co., 566 S.W.2d 466 (Mo. banc 1978).” Id. The Court noted that “[a]s between the other tortfeasors and the employer, we do not see that Gustafson v. Benda has in any way changed the fundamental apportionment of fault principles announced by Whitehead & Kales, which were in effect at the time of the Maryland Heights decision. All of the appealing arguments which [the third-party plaintiffs] make for one or the other of the three alternative positions urged upon us were just as relevant under Whitehead & Kales before Gustafson v. Benda as after the latter decision.” Id. The Court in Sweet observed that there “is nothing about Gustafson v. Benda or the Uniform Comparative Fault Act which eliminates the principle that liability for contribution depends upon the existence of actionable negligence of the defendant toward the plaintiff. In the absence of actionable negligence toward the plaintiff, an alleged tortfeasor is not liable to other defendants for contribution. That is a fundamental principle of the apportionment of fault doctrine under Whitehead & Kales.” Id. (emphasis original).

It is well-settled that a federal court exercising jurisdiction solely on the basis of diversity of citizenship must apply the substantive law of the forum in which it sits. Wolgin v. Simon, 722 F.2d 389, 391 (8th Cir.1983). The responsibility of federal courts in matters of local law in diversity cases “ ‘is not to formulate the legal mind of the state, but merely to ascertain and apply it.’ ” Countryside Casualty Co. v. Orr, 523 F.2d 870, 874 n. 6 (8th Cir.1975). Under Sweet, the law in Missouri is that employers subject to the immunizing provisions of the Worker’s Compensation Act are not subject to third-party actions for financial contribution or even for assessment of fault. Accordingly, if the third-party defendant is subject to the provisions of Mo.Rev.Stat. § 287.120, that is, if Car-gill, Inc. is an “employer” and this case involves personal injury to the plaintiff as an “employee by accident arising out of and in the course of his employment,” then summary judgment would be appropriate.

In its suggestions in support of its motion for summary judgment, Cargill notes that both plaintiff and defendant have admitted in their pleadings that plaintiff was an employee of Cargill at the time he was injured. Furthermore, Cargill submitted the affidavit of Jack Albertson, the administrative manager at Cargill who confirmed that plaintiff received workers’ compensation as a result of the accident arising out of and in the course of his employment with Cargill. Defendant/third-party plaintiff has failed to respond to the motion for summary judgment. If a movant in a motion for summary judgment submits evidentiary material indicating there is no genuine issue of material fact, it then becomes the responsibility of the opposing party to introduce its own evidentiary material to the contrary. Morris v. Gaspero, 522 F.Supp. 121 (E.D.Pa.1981).

Accordingly, it is hereby

ORDERED that third-party defendant Cargill’s motion for summary judgment on third-party plaintiff R.A.F. Corporation’s third-party complaint is granted. It is further

ORDERED that plaintiff’s motion to compel third-party defendant Cargill to answer interrogatories is denied as moot.