author: WARREN, District Judge.

text:
    Earl S. STUART, Jr., Petitioner, v. John R. GAGNON, Respondent.
    No. 84-C-42.
    United States District Court, E.D. Wisconsin.
    July 17, 1985.

      Steven P. Weiss, Asst. State Public Defender, Madison, Wis., for petitioner.
    Jerome S. Schmidt, Asst. Atty. Gen., Madison, Wis., for respondent.
   DECISION AND ORDER

WARREN, District Judge.

This matter is before the Court on the petition of Earl S. Stuart, Jr., for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Stuart contends that he was denied due process of law during his trial for armed robbery in 1980. Since the Court does not agree with the petitioner’s claim that the actions of the district attorney and trial court deprived him of his right to a fair trial, the Court will deny his petition.

I. Background

On the evening of October 14, 1979, three disguised, armed men robbed Lee’s Drug Store in Glenwood City, Wisconsin. The owner of the pharmacy, Charles Rasmussen, did not recognize any of the robbers. Rasmussen’s daughter identified one of the robbers, who had held a shotgun to her back during the episode, as being Robert Weed. LaDonna Christianson, a store employee, identified Richard Verduzco as the robber who carried the shotgun. Verduzco and Fred Weed, Robert Weed’s younger brother, were identified by Roger Kelm, a customer who entered the store during the robbery. Like Christianson, Kelm believed that Verduzco was the man who wielded the shotgun during the robbery. Two other persons present during the robbery, Dr. Phil Limberg and Patricia Voeltz, were unable to identify any of the robbers. The robbers fled the scene after taking both money and drugs from the store.

On October 27, 1979, the petitioner was seen placing an object in the garbage dumpster behind a Burger King restaurant in Minneapolis, Minnesota. The police were called and retrieved the discarded object — a gun. Stuart admitted placing the gun in the dumpster but stated that he did so as a favor to Fred Weed.

Soon after the investigation into the drug store robbery had begun, Fred Weed agreed to cooperate with law enforcement officials in exchange for not being prosecuted for the robbery. Due to the information provided by Fred Weed, Robert Weed and the petitioner were charged with the robbery.

Thereafter, Robert Weed entered into a plea agreement with the District Attorney of St. Croix (Wisconsin) County, Eric J. Lundell, in exchange for a specific sentence recommendation. Their agreement subsequently was rejected by the Circuit Court of St. Croix County, and Robert Weed’s confession was suppressed. The district attorney then requested and obtained immunity for Robert Weed in order to use his statements as evidence against Stuart.

Richard Verduzco was never arrested nor questioned about the drug store robbery. Although he initially was charged with the crime, the charges were dropped when the district attorney determined that Robert Weed had been the man holding the shotgun during the robbery, not Verduzco.

Due to the immunity given to Fred and Robert Weed, the petitioner was the only person tried for the drug store robbery. The primary evidence introduced against him was the testimony of the Weed brothers that Stuart was the third robber in addition to themselves. The State also introduced the testimony of Esther Drink-man, who stated that she had seen Stuart leaving a farm on the night of the robbery. According to the Weed brothers, the robbers had abandoned their car at that farm after the crime. Drinkman’s testimony differed significantly, however, from that she had given at the preliminary hearing, particularly with respect to the number of cars she had seen leaving the farm.

In his defense, the petitioner sought to introduce two matters into evidence to demonstrate that he did not participate in the robbery and that either Verduzco or Donald Bell, a former partner of the Weeds in other criminal ventures, had. First, Stuart sought to admit the results of a polygraph test he had taken which indicated that he was being truthful when he denied robbing the drug store. Second, Stuart sought to obtain immunity for Bell, who had claimed the privilege against self-incrimination when questioned about this crime.

The trial court refused to admit the polygraph evidence because the district attorney had not signed a stipulation to admit the results of the test. The trial court also refused to grant immunity to Bell, but allowed him to appear as a defense witness and plead the Fifth Amendment privilege against self-incrimination when asked about the crime.

The trial concluded on June 26, 1980, following which the petitioner was convicted of armed robbery and sentenced to thirteen (13) years imprisonment. On May 20, 1981, the petitioner filed a post-conviction motion raising certain issues concerning his conviction and sentence. An evidentiary hearing was held on June 26, 1981, and, on November 10, 1981, the court entered a written order denying the post-conviction motion. The court’s decision was affirmed by the Wisconsin Court of Appeals, and review of that decision was denied by the Wisconsin Supreme Court.

II. Evidentiary Hearing

At the June 26, 1981 hearing on petitioner’s post-conviction motion, District Attorney Lundell and defense counsel testified concerning the latter’s proposals for a stipulation for the admission of the polygraph results and for a grant of immunity for defense witness Bell. With respect to the polygraph, the district attorney testified that the polygraph examination was originally his idea. Both Lundell and defense counsel testified, however, that neither party wished to enter into a stipulation prior to the examination because they had agreed that the purpose of the test was to facilitate evaluation of the case against Stuart and to provide leverage for a possible plea bargain. The first request for a stipulation to admit the test results came after the test was completed.

The district attorney gave the following reasons for refusing to stipulate to the admission of the test results: (1) the stipulation was requested only after the test had been taken; (2) the State had not participated in selecting the examiner or drafting the questions used; (3) he believed that Stuart was “polygraph-proof,” i.e., that Stuart knew certain tricks that would prevent detection of any lies he told; (4) Stuart was a convicted felon, and therefore not entitled to much credibility; and (5) he was convinced that Stuart had committed the crime, and any test indicating otherwise would be specious. Although defense counsel suggested the possibility of a second examination, hoping to resolve some of the objections to the first test, the district attorney did not follow up on the proposal.

With respect to the Bell immunity matter, the district attorney stated that he refused to request immunity for Bell because the district attorney had obtained from Bell a signed statement denying his involvement in the crime. The district attorney also testified that there was no evidence linking Bell to the crime, and that Bell did not fit the physical description of any of the robbers described by the witnesses.

Finally, as an explanation of why he did seek immunity for the Weed brothers in order to secure his case against Stuart, the district attorney testified as follows:

A. There are several reasons, some of which I have already enumerated at length; the tactical reasons that I have just gone through. I found myself in June of 1980 as having the best case against Earl Stuart. I had already committed myself on Fred Weed way back six months before to break the case open in the first place, and the way things happened, the case against Robert Weed was not in my estimation sufficient to take to trial without his statement, which had been suppressed. So I made the decision based upon those reasons and others.
Q. What others?
A. Well, Earl Stuart is a resident or a former resident of Glenwood City, Boyceville area, and that would be Eastern St. Croix County/Western Dunn County. He is well known through quite a few individuals in that area. Also, he has a certain reputation amongst law enforcement officers and prosecutors as being sort of a master burglar.
At any rate, there was a sort of a community reason for pursuing the matter vigorously against Hap Stuart.

(Tr. Yol. 41, pp. 43, 44).

The petitioner claims that the district attorney’s decisions to seek immunity for the Weed brothers, not to request immunity for Bell, and to refuse to stipulate to the admissibility of the polygraph results were tactical determinations which denied Stuart his right to a fair trial. The petitioner further claims that, given the improper nature of the district attorney’s decisions, the trial court had a duty to ensure a fair trial by doing any or all of the following: (1) admitting the polygraph results; (2) granting immunity sua sponte to Bell; (3) denying the district attorney’s motion for immunity for the Weed brothers; and (4) intervening in the district attorney’s decision not to charge Verduzco.

Conversely, the respondent contends that the explanations advanced by the district attorney demonstrate that he acted well within the parameters of his discretionary authority. The respondent also claims that the trial court was neither obligated nor empowered to override those decisions. For the following reasons, the Court must reject the petitioner’s arguments and deny his petition for a writ of habeas corpus.

III. The District Attorney’s Actions Did Not Deprive the Petitioner of a Fair Trial

A defendant in a criminal trial has a fundamental right to a fair opportunity to defend against the charges brought against him. This “fair opportunity to defend” is the essence of the concept of due process of law, some elements of which are the right to call witnesses in one’s behalf, the right to examine adverse witnesses, and the right to assistance of counsel. Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297 (1973).

The petitioner contends that the actions of the district attorney denied him a fair opportunity to defend against the State’s charges. As his first argument, the petitioner claims that the district attorney’s refusal to stipulate to the admissibility of the polygraph results denied the petitioner an opportunity to present exculpatory evidence in his defense.

A. Polygraph Results

In State v. Stanislawski, 62 Wis.2d 730, 216 N.W.2d 8 (1974), the Wisconsin Supreme Court held for the first time that the results of polygraph examinations and expert testimony related thereto may be admitted into evidence. The court established specific requirements which must be met for the admission of such evidence, however:

“(1) That the district attorney, defendant and his counsel all sign a written stipulation providing for defendant’s submission to the test and for the subsequent admission at trial of the graphs, and the examiner’s opinion thereon on behalf of either defendant or the state.
(2) That notwithstanding the stipulation the admissibility of the test results is subject to the discretion of the trial court, i.e., if the trial judge is not convinced that the examiner is qualified or that the test was conducted under proper conditions he may refuse to accept such evidence.
(3) That if the graphs and examiner’s opinion are offered in evidence the opposing party shall have the right to cross-examine the examiner respecting:
(a) the examiner’s qualifications and training;
(b) the conditions under which the test was administered;
(c) the limitations of and possibilities for error in the technique of polygraphic interrogation; and
(d) at the discretion of the trial court, any other matters deemed pertinent to the inquiry.
(4) That if such evidence is admitted the trial judge should instruct the jury that the examiner’s testimony does not tend to prove or disprove any element of the crime with which a defendant is charged but at most tends only to indicate whether at the time of the examination defendant was telling the truth. Further, the jury members should be instructed that it is for them to determine what corroborative weight and effect such testimony should be given.”

62 Wis.2d at 743-744, 216 N.W.2d 8. Thus, the first hurdle to overcome by one seeking the admission of polygraph results into evidence is to obtain the approval of the opposing party; without such approval in the form of a written stipulation, polygraph results are inadmissible.

In support of his argument that the district attorney was obligated to stipulate to the admission of the polygraph results in this case, the petitioner cites McMorris v. Israel, 643 F.2d 458 (7th Cir.1981). In McMorris, the defendant had been tried and convicted of strong-armed robbery in Wisconsin state court. Since the State’s case was based solely upon the testimony of the victim, who did not get a good look at the assailant, the credibility of the defendant was a major issue in the case. For the purpose of establishing his client’s credibility, defense counsel wished to have his client take a polygraph examination, the results of which he hoped would be admitted into evidence. 643 F.2d at 459.

In order to comply with the first Stanislawski requirement, defense counsel contacted the district attorney seeking a stipulation for the admissibility of the polygraph results. After some initial indecision, the district attorney twice refused to enter into a stipulation, both times without any explanation. Following the defendant’s trial and conviction, he took a polygraph examination which indicated that he had not committed the robbery. 643 F.2d at 460.

Upon review of the denial of the defendant’s petition for a writ of habeas corpus, the Seventh Circuit Court of Appeals considered the constitutionality of both the Stanislawski stipulation requirement and the prosecutor’s refusal to enter into a stipulation. While the court found that the stipulation requirement was at least defensible in view of the State’s interest in admitting only reliable evidence, 643 F.2d at 643, the court held that the prosecutor’s veto of the test under the circumstances present in that case was constitutionally impermissible. 643 F.2d at 466. In particular, the court was bothered by the prosecutor’s failure to offer any explanation for his decision. Stating that a prosecutor may only refuse to enter into a Stanislawski stipulation “for justifiable reasons,” 643 F.2d at 464, the court went on to speculate that the prosecutor in that case had, from all appearances, acted “solely for tactical reasons.” 643 F.2d at 466. Had the prosecutor refused the stipulation and stated his reasons, however, it would then have become a question for the court to determine whether the reasons proffered were “purely tactical considerations” or not. Id.

While McMorris may be instructive, it is not determinative of the outcome in this case for the obvious reason that District Attorney Lundell stated several non-tactical reasons for rejecting the stipulation. The test that was conducted was done without any prior approval of the examiner or the questions used, two factors that any competent prosecutor would wish to have some control over. The district attorney also stated that he believed Stuart to be “polygraph-proof,” a non-tactical reason against stipulating to a second examination.

Although the petitioner argues that the district attorney had no basis for his belief that Stuart was “polygraph-proof,” the petitioner admits that he had previously testified as a witness for the district attorney, thereby giving him ample opportunity to observe Stuart’s characteristics and nature. The Court opines that a prosecutor who believes a test subject to be “polygraph-proof” is able to proffer one of the few purely non-tactical reasons for refusing a Stanislawski stipulation. The only other purely non-tactical reasons imaginable for rejecting a stipulation would be based on either the conditions under which the test was conducted or a complete lack of faith in the reliability of such examinations.

The desire to have both parties agree upon the reliability of any polygraph evidence submitted was the primary justification for instituting the stipulation requirement, as discussed by the Wisconsin Supreme Court in State v. Dean, 103 Wis.2d 228, 246-47, 307 N.W.2d 628 (1981):

Whether or not the parties discuss and agree on the details of the testing to be administered to the defendant, the primary effect of the stipulation is that it operates as a waiver of objection or challenge to the validity of the basic theory of polygraph testing and eliminates the necessity of or the opportunity for the parties to establish a foundation in each case to satisfy the trial court of the basic theory and validity of polygraphs. If either party is not convinced of the reliability of polygraph testing, the party can refuse to stipulate to the test. State v. Mendoza, 80 Wis.2d 122, 186, 258 N.W.2d 260 (1977) (Robert Hansen, J. dissenting). As the court further explained in Robinson v. State, 100 Wis.2d 152, 162, 301 N.W.2d 429 (1981), “[t]he stipulation requirement set up by this court in Stanislawski permits each of the parties to make an independent evaluation of the reliability of polygraph evidence and their willingness to rely on it.”

Since one’s belief in the reliability of the test is dependent in part upon one’s faith that the subject examined is not “polygraph-proof,” it is conceivable that a prosecutor’s decision whether or not to stipulate might vary, for non-tactical reasons, on a case-by-case or witness-by-witness basis.

The court in Dean also discussed the McMorris decision, and stated that McMorris was “based on a mistaken interpretation of Stanislawski.” 103 Wis.2d at 257, 307 N.W.2d 628. According to the court in Dean, the Seventh Circuit regarded the Stanislawski stipulation requirement as one that ensures the admission of only competent evidence, as opposed to one that seeks only the consent of the parties. This analysis was incorrect, the Wisconsin Supreme Court stated, because the Stanislawski stipulation requirement was indeed “based substantially on principles of consent and waiver rather than the principles of scientific reliability.” 103 Wis.2d at 257, 307 N.W.2d 628. The consent and waiver of the parties was sought in order to ensure that there would be no objections at trial to the admissibility of the evidence because of its dubious reliability. 103 Wis.2d at 246, 307 N.W.2d 628.

In view of the discussion in Dean of the rationale behind the Stanislawski stipulation requirement, the Court finds that the district attorney stated valid, non-tactical reasons for refusing to stipulate to the admissibility of the results of the polygraph examination that had been taken. The Court also finds that the district attorney expressed legitimate, non-tactical reasons for rejecting any proposed stipulation to admit the results of a second test. Therefore, the petitioner’s first argument that he was denied a fair trial because of the district attorney’s refusal to enter into a Stanislawski stipulation is denied.

B. Immunity for Defense Witness

The petitioner’s second contention is that he was denied a fair trial because the district attorney refused to request immunity for Donald Bell, who was called to testify on behalf of Stuart. The petitioner claims that immunity for Bell was required in light of the immunity granted to the Weed brothers, upon whose testimony the State’s case was based.

Under state law, specifically Wis. Stat. § 972.08, a court may grant immunity to a witness only upon the motion of the district attorney. The defendant does not have the reciprocal power to request immunity for a witness. State v. Roller, 87 Wis.2d 253, 277, 274 N.W.2d 651 (1979); Peters v. State, 70 Wis.2d 22, 38, 233 N.W.2d 420 (1975). It is well established, however, that the one-sided power of a district attorney to request immunity for a witness does not violate a defendant’s due process rights. Sanders v. State, 69 Wis.2d 242, 261-62, 230 N.W.2d 845 (1975); Hebel v. State, 60 Wis.2d 325, 331, 210 N.W.2d 695 (1973).

It is also well-settled that courts will ordinarily refuse to review a prosecutor’s immunization decisions. United States v. Frans, 697 F.2d 188, 191 (7th Cir.1983); In re Perlin, 589 F.2d 260, 269 (7th Cir.1978). Courts will only review a prosecutor’s immunization decisions when there has been “a clear abuse of discretion violating the due process clause.” Frans, 697 F.2d at 191. In order to demonstrate such an abuse of discretion, the defendant must make “a substantial evidentiary showing that the government intended to distort the judicial fact-finding process.” Id.; see also United States v. Taylor, 728 F.2d 930, 935 (7th Cir.1984).

The petitioner has not made the requisite showing that the district attorney intended to distort the fact-finding process by moving for immunity for the Weed brothers but refusing to do so for Bell. There was no evidence whatsoever linking Bell to the robbery; he did not match the physical description of any of the robbers, and the district attorney had no reason to believe that Bell had any knowledge concerning the crime. Certainly, the district attorney did not have reason to believe that, given immunity, Bell could give truthful testimony implicating himself and exonerating Stuart.

On the other hand, the Weed brothers had confessed to the robbery and clearly were in a position to identify the third robber and elaborate upon the circumstances surrounding the crime. It was a rational decision, well within the bounds of his discretionary authority, for the district attorney to seek immunity for those whose testimony would be relevant and credible as opposed to a witness whose testimony apparently would be suspect and/or impertinent. The petitioner’s second argument is therefore denied.

C. Failure to Charge Verduzco

The petitioner’s third argument is that he was denied a fair trial because the district attorney failed to charge Verduzco, who was identified by two witnesses as one of the three robbers. Since Verduzco was not charged, the petitioner claims his conviction was guaranteed.

As courts are loathe to review a prosecutor’s immunity decisions, they are equally reluctant to intrude upon a prosecutor’s broad discretion in determining whom to charge. State v. Hooper, 101 Wis.2d 517, 532, 305 N.W.2d 110 (1981); State v. Karpinski, 92 Wis.2d 599, 607, 285 N.W.2d 729 (1979); State v. Kenyon, 85 Wis.2d 36, 42, 270 N.W.2d 160 (1978). “[S]o long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring ... generally rests entirely in his discretion.” Wayte v. United States, — U.S. -, -, 105 S.Ct. 1524, 1531, 84 L.Ed.2d 547 (1985), quoting Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 668, 54 L.Ed.2d 604 (1978). A prosecutor’s authority to determine whom to charge is only qualified by the limits imposed by the legislature, Kenyon, 85 Wis.2d at 42, 270 N.W.2d 160, and the constitutional proscription against basing charging decisions on some unjustifiable standard such as “race, religion, or other arbitrary classification.” Bordenkircher, 434 U.S. at 364, 98 S.Ct. at 668. Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446 (1962); Sears v. State, 94 Wis.2d 128, 134, 287 N.W.2d 785 (1979).

The petitioner has not alleged that the decision to charge him and not to charge Verduzco was based on race, religion, or some other arbitrary classification. The petitioner has also not claimed that the district attorney exceeded the bounds of his authority granted by the state legislature. The Court believes that the charges originally brought against Verduzco were dropped because of the mistaken identification of Verduzco as the man who held the shotgun, when in fact it was Robert Weed who had done so. The petitioner has not met his burden of demonstrating that the district attorney in any way exceeded his authority in dropping the charges against Verduzco. Accordingly, petitioner’s third argument is rejected.

IV. Trial Court’s Actions Did Not Deny the Petitioner a Fair Trial

In addition to his contentions that the various actions of the district attorney deprived him of his due process right to a fair trial, the petitioner claims that the trial court should have intervened in order to ensure a fair trial. In particular, petitioner states that the trial court should have: admitted the polygraph results into evidence; granted immunity to Donald Bell; denied the district attorney’s motion for immunity for the Weed brothers; and required the district attorney to charge Verduzco.

For the reasons just discussed above, the Court does not believe that it would have been prudent or permissible for the trial court to intervene in the district attorney’s charging decisions. It is the province and duty of the district attorney to determine whom to charge, and courts will only review such determinations under the circumstances discussed above. Those circumstances not existing in this ease, the trial court appropriately refrained from intervening.

With respect to the immunity question, Wis.Stat. § 972.08(1) prescribes the procedure for granting immunity: it may only be done upon the motion of the district attorney. Trial courts may not, sua sponte, grant immunity to any witness. Shelley v. State, 89 Wis.2d 263, 277, 278 N.W.2d 251 (1979).

The Court also believes, for the reasons discussed above, that there were ample, non-tactical reasons for the district attorney to seek immunity for the Weed brothers, and not to request it for Bell. The district attorney had attempted to obtain approval of a plea bargain made with Robert Weed, but the Circuit Court of St. Croix County rejected it. Believing that he needed Robert Weed’s testimony to convict Stuart, the only option available to the district attorney was to seek immunity for Robert Weed. The Court opines that it would have been manifestly unjust for the trial court to deprive the State of what it considered to be the essential testimony of its witness by rejecting the plea agreement and refusing immunity.

Finally, with respect to the polygraph issue, the Wisconsin Supreme Court in Stanislawski made it clear that a stipulation between the parties was an absolute prerequisite to the admission of polygraph evidence. The court’s position was restated even more forcefully in Dean. 103 Wis.2d at 279, 307 N.W.2d 628. The trial court was not entitled to invoke its discretionary authority to decide whether to admit the polygraph evidence until the stipulation requirement was fulfilled. Furthermore, it would have frustrated the purpose of the stipulation requirement, that being to ensure the parties’ assent to the reliability of the test results, had the court directed the district attorney to sign a stipulation.

For the foregoing reasons, the Court finds that the petitioner was not denied a fair trial and hereby DENIES his petition for a writ of habeas corpus.

      . It should be noted that, as a result of the Wisconsin Supreme Court’s holding in Dean, polygraph evidence is no longer admissible for any purpose in criminal proceedings in Wisconsin State Courts. The court did allow such evidence to continue to be admitted if a Stanislawski stipulation was entered into before September 1, 1981, however. 103 Wis.2d at 279, 307 N.W.2d 628.


source: Caselaw Access Project

author: JACKSON, District Judge.

license: Public Domain

text:
    Richard REIMAN, etc., Plaintiff, v. FIRST UNION REAL ESTATE EQUITY AND MORTGAGE INVESTMENTS, etc., Defendant.
    Civ. A. No. 84-2574.
    United States District Court, District of Columbia.
    July 17, 1985.
    David S. Greene, Rockville, Md., for plaintiff.
    Stephen D. Walters, Cleveland, Ohio, for defendant.
   MEMORANDUM AND ORDER

JACKSON, District Judge.

This matter is before the Court on defendant’s motion to quash service of process and to dismiss the complaint against it in this diversity case for breach of contract on the ground that the Court lacks personal jurisdiction over it. In the alternative, defendant moves that the case be dismissed under the doctrine of forum non conveniens, because its home state of Ohio is a more appropriate forum for the case to be heard. Both sides having presented affidavits and other materials outside the pleadings, the Court must treat the motion as one for summary judgment of dismissal pursuant to Fed.R.Civ.P. 12(b). For the reasons set forth below, the motion will be denied.

Plaintiff is a District of Columbia real estate broker who sues defendant First Union Real Estate Equity and Mortgage Investments (“First Union”), an Ohio business trust, for a commission to which he claims he is entitled. The suit arises out of an alleged contract between plaintiff and defendant by which, according to plaintiff, he would receive a two percent cash commission at closing if he were able to secure a buyer for certain Tennessee real property owned by defendant (the “Two Rivers” property). Plaintiff asserts that he did, in fact, secure two ready, willing and able buyers for the property, but that defendant refused to consummate a sale with either.

Defendant contends that this Court is without personal jurisdiction over it because First Union did not “transact business” in the District of Columbia within the meaning of the applicable portion of the D.C. long-arm statute, D.C.Code § 13-423(a)(1), and that service of process upon it in Ohio must, therefore, be quashed. D.C.Code § 13-424. First Union represents that it is an Ohio business trust with its only place of business in Ohio, and that it has never owned property in D.C., nor derived any revenue from the District. Defendant further maintains that it did not initiate contact with plaintiff with respect to the Two Rivers property, nor did any of its employees or agents ever visit the District in connection with that transaction or any other.

Ordinarily an inquiry into the basis for a court’s exercise of personal jurisdiction over a non-resident defendant begins with consideration of whether service of process is authorized by statute; if so, it proceeds to whether the defendant has the requisite “minimum contacts” with the forum to satisfy the Due Process Clause. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). The District of Columbia Court of Appeals having held that the D.C. long-arm statute permits the exercise of personal jurisdiction by a District of Columbia court to the fullest extent permitted to it under the Due Process Clause, the first question has been eliminated. Environmental Research International, Inc. v. Lockwood Greene Engineers, Inc., 355 A.2d 808, 810-11 (D.C.1976) (en banc); Mouzavires v. Baxter, 434 A.2d 988, 990-92 (D.C.1981) (en banc) (per curiam), cert. denied, 455 U.S. 1006, 102 S.Ct. 1643, 71 L.Ed.2d 875 (1982); Textile Museum v. F. Eberstadt & Co., Inc., 440 F.Supp. 30, 31 (D.D.C.1977). The sole issue before the Court, therefore, is whether defendant had sufficient nexus with the District in connection with the Two Rivers transaction such that this Court’s exercise of in personam jurisdiction over it will not offend “traditional notions of fair play and substantial justice.” International Shoe, 326 U.S. at 316, 66 S.Ct. at 158 (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 342, 85 L.Ed. 278 (1940)).

A nonresident defendant may be considered to have transacted business within the meaning of § 13-423(a)(l) without ever having been physically present in the District, fend, under certain circumstances, even a single act may be sufficient to bring a defendant within the purview of the statute. See, e.g., Dorothy K. Winston & Co. v. Town Heights Development, Inc., 376 F.Supp. 1214, 1216 (D.D.C.1974); Bueno v. La Compania Peruana de Radio-Difusion, S.A., 375 A.2d 6, 9 (D.C.1977). A plaintiff may not, however, depend upon his own activity to establish the existence of minimum contacts; the defendant must in some way have voluntarily and purposefully availed himself of the protection of the forum state’s laws. Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283 (1958). More specifically:

The mere fact that a nonresident has retained the professional services of a District of Columbia firm, thereby setting into motion the resident party’s own activities within this jurisdiction, does not constitute an invocation by the nonresident of the benefits and protections of the District’s laws.

Environmental Research International, 355 A.2d at 812.

In Environmental Research, appellant, a D.C. consulting firm, contacted appellee Lockwood Greene, a Massachusetts corporation, to offer its services in connection with the preparation of a construction grant application to be submitted to the Environmental Protection Agency. An agreement was reached, and Environmental Research performed various services in partial fulfillment of its obligations. Thereafter it sued Lockwood and another company, incorporated in Pennsylvania, in a District of Columbia court for compensation for its services. The trial court dismissed the case for lack of personal jurisdiction, and the Court of Appeals affirmed, stating:

It is undisputed that appellant initiated the relationship between it and appellees ... by visiting Lockwood Greene in South Carolina. No negotiations were conducted in the District of Columbia. Penn Dye’s [the Pennsylvania corporation’s] contacts with appellant were limited to a few letters and telephone calls, as well as some discussions with appellant concerning the progress of the waste treatment project. Except for two visits to the District ... to meet with EPA officials, no personnel of the appellees were physically present within the jurisdiction.

Id.

A few years later, however, in Mouzavires v. Baxter, supra, a divided court in a similar case found a basis to exercise personal jurisdiction over a nonresident defendant who initiated the formation of a contractual relationship with a resident plaintiff. Mouzavires, a District of Columbia attorney, was contacted by a Florida attorney who sought Mouzavires’ assistance in connection with a suit pending in federal court in Florida. An agreement was made, and Mouzavires accordingly performed various services in the District and in Virginia. Following a dispute over compensation, Mouzavires filed suit in D.C. Superior Court for fees owed, but the trial court granted a motion to quash service of process on the ground that it could not exercise personal jurisdiction over the Florida firm and its partners. Relying in part upon McGee v. International Life Insurance Co. and Hanson v. Denckla, supra, the D.C. Court of Appeals reversed. In McGee, said the court, “a unanimous Court ruled that it was ‘sufficient for purposes of due process that the suit was based on a contract which had substantial connection with [the forum state].’ ” Mouzavires, 434 A.2d at 993 (quoting McGee, 355 U.S. at 223, 78 S.Ct. at 201). The Court continued:

Both Hanson and McGee reaffirmed the ... principle that notions of fundamental fairness require that the defendant’s contacts with the forum be evaluated qualitatively rather than quantitatively____ These considerations assume greater significance when the defendant’s contacts with the forum arise out of a contractual arrangement with a forum plaintiff. Modern systems of communication have revolutionized commercial transactions to such an extent that parties may negotiate by telephone certain contractual arrangements which only a generation ago would have necessitated the physical presence of both parties in the same forum____ Clearly, the most critical inquiry is not whether the nonresident defendant is physically present in the forum but whether the defendant’s contacts with the forum are of such a quality and nature that they manifest a deliberate and voluntary association with the forum.

Id. at 995. Thus, where a non-resident had solicited the business relationship, and the contract called for the performance of work within the District of Columbia, the court found that the transaction had such a substantial connection with the District that the exercise of personal jurisdiction was permissible.

Most recently, in Burger King Corp. v. Rudzewicz, — U.S.-, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), the Supreme Court considered whether a federal court in Florida could exercise personal jurisdiction over a Michigan resident alleged to have breached a franchise agreement with Burger King, a Florida corporation. Noting that the Due Process Clause mandates only that individuals have “fair warning” that they may be subject to the jurisdiction of a foreign court — a requirement which may be satisfied by a defendant’s having “purposefully directed” his or her activities toward residents of the forum state — the court said with respect to interstate contractual arrangements that “parties who ‘reach out beyond one state and create continuing relationships and obligations with citizens of another state’ are subject to regulation and sanctions in the other state for the consequences of their activities.” Id. at 2182 (quoting Travelers Health Assn v. Virginia, 339 U.S. 643, 647, 70 S.Ct. 927, 929, 94 L.Ed. 1154 (1950)). The court further observed that while a defendant’s contract with a forum resident alone may not automatically establish minimum contacts sufficient for the exercise of personal jurisdiction, such factors as “prior negotiations and contemplated future consequences, along with the terms of the contract and the parties’ actual course of dealing” will ordinarily be relevant to such a determination. Id. 105 S.Ct. at 2185-86.

What the foregoing case law makes clear for purposes of the instant case, therefore, is that there are a number of unresolved factual issues relevant to defendant’s motion, including: (1) whether defendant in some way “purposefully directed” its activities at a District resident, or, more specifically, whether it solicited the relationship with plaintiff; and (2) whether there was a contract between them concerning the sale of the Two Rivers property, and, if so, what were its terms and the parties’ actual course of dealings.

As to these key points there are clearly genuine issues of material fact which preclude judgment. Plaintiff has submitted an affidavit in which he avers that he entered into an oral agreement with Mark R. Munsell, defendant’s representative, to act as a broker on defendant’s behalf, with an expected commission of two percent cash at closing. Defendant contends that no such agreement was ever made. At this juncture the facts must be viewed in the light most favorable to plaintiff. United States v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam); Norris v. District of Columbia, 737 F.2d 1148, 1150 (D.C.Cir.1984).

Plaintiff and defendant are also in substantial disagreement as to who solicited whom, and as to which portion of their business dealings may be relevant for the purpose of resolving the issue. Defendant contends that plaintiff’s initial contact with First Union was entirely unsolicited and that its later communications with plaintiff occurred solely at plaintiff’s behest. Plaintiff, on the other hand, concedes that his first contact with First Union with respect to an earlier transaction involving San Francisco property was unsolicited, but argues that the Court should concern itself only with the Tennessee transaction, and, as to the latter, he avers, the letter he received, dated April 25, 1983, concerning defendant’s desire to sell the Two Rivers property was entirely unsolicited by him.

With respect to defendant’s alternative argument that the complaint should be dismissed on forum non conveniens grounds, the Court has considered both the interests of the parties and of the public, and has concluded that this is an appropriate forum for the resolution of plaintiff’s claims. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947); Carr v. Bio-Medical Applications of Washington, Inc., 366 A.2d 1089 (D.C.1976). Plaintiff is a resident of the District of Columbia whose choice of forum for whatever reason should not ordinarily be disturbed, Gulf Oil, 330 U.S. at 508, 67 S.Ct. at 843, and it appears that there are potential witnesses and relevant documents located in the D.C. metropolitan area. Although there may be some inconvenience involved if defendant is required to defend a suit in the District, it is not of such magnitude as to justify dismissal of this action on forum non conveniens grounds for its convenience alone, nor does it appear that the suit is so unconnected with the District as to warrant its dismissal in the public interest.

ORDERED, that defendant’s' motion to dismiss is denied.

      . The relevant portion of the statute reads as follows:
      (a) A District of Columbia court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a claim for relief arising from the person's—
      (1) transacting any business in the District of Columbia.
      There is no dispute that this is the only section of the long-arm statute which could possibly confer personal jurisdiction over defendant. It should be noted, however, that it applies only as to claims arising out of the business transacted in the District. D.C.Code § 13 — 423(b).

      . See also McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957), in which the Supreme Court upheld a California state court’s exercise of personal jurisdiction over a Texas insurance company whose only contacts with California were a reinsurance certificate mailed to plaintiff in California and the acceptance of premiums mailed by plaintiff from that state. The court held that it was "sufficient for purposes of due process that the suit was based on a contract which had substantial connection" with the forum state. Id. at 223, 78 S.Ct. at 201.

      . The Court of Appeals agreed with the trial court that Environmental Research was an independent contractor, not an agent, so that appellees could not properly be said to have transacted business in the District "by an agent” within the meaning of § 13-423(a)(l). Id. at 812, n. 7. Compare Rose v. Silver, 394 A.2d 1368 (D.C.1978). Nor could visits by appellees’ employees to the city for purposes of consulting with EPA officials be considered, because the "government contacts” doctrine precludes using entry into the District for the purpose of contacting federal agencies as a basis for the assertion of personal jurisdiction. Id. at 813-14. See Mueller Brass Co. v. Alexander Milburn Co., 152 F.2d 142 (D.C.Cir.1945).

      . See also Morton v. Environmental Land Systems Ltd., 55 Ill.App.3d 369, 13 Ill.Dec. 79, 370 N.E.2d 1106 (1977) (solicitation of a contract constitutes the transaction of business within the meaning of the statute); compare Bueno v. LaCompania Peruana, supra (no transaction of business occurred where defendant did not initiate or pursue contract negotiations, nor were services to be performed in the District of Columbia).

      . There is also a contested issue of fact as to whether plaintiff was acting as an independent contractor or as defendant’s agent within the meaning of D.C.Code § 13-423(a). Plaintiff contends that he was the latter, but even construing the facts most favorably to him, the burden of proving an agency relationship is his, H.G. Smithy Co. v. Washington Medical Center, 374 A.2d 891, 893 (D.C.1977), and the Court cannot find on the record presently before it that one existed. See Rose v. Silver, supra.

      . Specifically, defendant asserts that plaintiff first contacted Mr. Munsell by phone in February, 1983, with respect to the possible purchase of property owned by First Union in San Francisco. Munsell avers in an affidavit attached to defendant’s motion that although no agreement was ever reached as to the San Francisco property, plaintiff asked to be advised of any other property which defendant sought to sell. Soon thereafter, Munsell informed plaintiff of First Union’s desire to sell the Two Rivers property, and there followed a number of telephone and mail contacts between the two with respect to it, as well as a meeting at First Union’s Cleveland office in July, 1983.

      . Plaintiff offers no explanation, however, for the fact that the letter states that it was sent at plaintiff’s request.


author: ASPEN, District Judge:

text:
    Joseph M. CEBULA, Plaintiff, v. GENERAL ELECTRIC COMPANY, Defendant.
    No. 84 C 1198.
    United States District Court, N.D. Illinois, E.D.
    July 17, 1985.

      Michael T. Hannafan, Adrianne S. Harvitt, Hannafan & Handler, Ltd., Chicago, Ill., for plaintiff.
    Arthur B. Smith, Jr., Thomas G. Abram, Vedder, Price, Kaufman & Kammholz, Chicago, Ill., for defendant.
   MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

The General Electric Company (“GE”) fired Joseph Cebula (“Cebula”) on August 29, 1983. Cebula, who was 45 years old at the time, had worked for GE for about five years. He alleges that GE dismissed him because of his age, violating the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq. Cebula also alleges that when his supervisor taped his conversation during the termination meeting, GE violated the Illinois Eavesdropping Act, Ill.Rev.Stat. ch. 38, §§ 14-1 to 14-9 (1983). GE has moved for summary judgment, while Cebula has moved for partial summary judgment on the eavesdropping claim. For the following reasons, GE’s motion is granted as to both claims and Cebula’s motion is denied.

Facts

The following material facts are undisputed. Cebula began working for GE in 1978 as a Customer Service Representative. His responsibilities included installing and servicing x-ray and other medical diagnostic imaging equipment at medical institutions. GE provided Cebula with service and equipment training.

GE reviewed Cebula’s performance regularly. Cebula’s immediate supervisor Walter Taken (“Taken”) and his manager James Fetterman (“Fetterman”) reviewed his performance for the first time on March 28, 1979. Cebula’s overall performance was rated “acceptable,” while his overall appraisal was rated “satisfactory.” The possible ratings included, in ascending order, unacceptable, acceptable, satisfactory, fully satisfactory, excellent and outstanding. Taken also noted that Cebula needed to continue to develop his technical base and become familiar with GE’s basic products.

At the conclusion of Cebula’s first year of employment with GE, Taken and Fetter-man rated his performance “satisfactory.” However, they warned him to “rapidly” expand his technical knowledge about GE products. Further, they suggested that he take more tape courses in order to stay current on GE products.

On November 28, 1980, Taken and Fetterman reviewed Cebula’s performance for the third time. Although his work rated “fully satisfactory,” Taken and Fetterman listed areas that needed improvement. They noted that Cebula still needed further training to improve his technical knowledge especially in newer equipment and image systems.

On March 31,1982, Taken and Fetterman reported that Cebula’s performance had declined. They lowered his rating to “acceptable,” and they stated that “for time in position, fundamental knowledge of simple systems is below our expectations.” Moreover, they indicated that Cebula needed to broaden his electrical skills to fit the criteria of his position. They also noted that some customers had complained that he was unable to fix problems in a timely manner.

Cebula’s fifth performance review was completed by Taken and a new district manager, Ravi Sharma (“Sharma”). The evaluation dated February 11, 1983, indicated that while his performance was acceptable, his performance was still declining. Specifically, Taken and Sharma indicated that Cebula frequently failed to arrive at a logical problem solution due to his troubleshooting difficulty. Moreover, he had not mastered skills that were usual for time and position. They suggested that Cebula attend night classes at DeVry Institute in order to fill in his electronic gaps. Cebula did not enroll for classes at DeVry Institute or elsewhere. He asserts that this is because Sharma and Taken did not answer his questions about which courses to take.

Sharma further investigated Cebula’s work performance. He consulted a field engineer and another customer service representative who confirmed Cebula’s work deficiencies. The field engineer had observed Cebula working and described him as “technically incompetent.” Similarly, the customer service representative reported that Cebula frequently required him to provide back up technical assistance by telephone. He opined that Cebula’s problem was toubleshooting.

On February 18, 1983, Sharma placed Cebula on a 60-day work improvement program. After the 60-day period, GE would decide whether or not to fire him. Before the program could be formally implemented, Cebula took disability leave from March 4, 1983, until June 13, 1983, because of a hernia operation. Upon his return from leave, Taken gave him a memorandum summarizing the February 1983 performanee appraisal and informing him that his performance would be reviewed over the next 60 days. Cebula disagreed with the assessment of the February meeting and refused Sharma’s request to initial his summary of that meeting. Sharma gave Cebu-la the opportunity to be evaluated by another supervisor, but he declined. Cebula has admitted that he does not believe that Taken or Sharma are personally prejudiced against him because of age.

While Cebula was on the work improvement program, Cebula was cited in four “incident reports” prepared by Taken for failure to perform adequately on customer service calls. Taken also received during that time three letters from GE customers complaining about Cebula’s work. Taken had never received such letters before about Cebula. Two of the customers instructed GE not to send Cebula to their hospitals in the future.

On August 23, 1983, Cebula’s final performance review indicated that his work was unacceptable. Taken and Sharma met with him six days later when he was told he was fired. GE’s reasons for firing Cebula were set out in a memorandum given to him:

1) Your technical performance is unacceptable;
2) You have not made any effort to improve technically, despite repeated requests; and
3) Your attitude towards customers is to a point where it is becoming a liability.

Cebula later discovered that Taken had tape recorded this meeting. GE had destroyed the tape after Taken, Sharma and Daniel L. Peters, Field Employee Relations Manager, had listened to it.

Cebula appealed his termination. GE upheld the dismissal despite ten letters written by its customers (at time of appeal) praising Cebula’s performance. Cebula filed timely charges against GE with the Illinois Department of Human Rights and the Equal Employment Opportunity Commission before instituting this suit.

Proving an ADEA Violation

Cebula alleges that GE violated his rights under the ADEA. We have twice recently ruled on summary judgment motions in ADEA cases and will summarize the well-established standards set forth in those cases. See Oxman v. WLS-TV, 609 F.Supp. 1384 (N.D.Ill.1985); Selsor v. Callaghan, 609 F.Supp. 1003 (N.D.Ill.1985). Section 623 of the ADEA makes it illegal for an employer “to discharge any individual ... because of such individual’s age.” 29 U.S.C. § 623(a). Cebula must prove that “but for” his age, GE would not have fired him. See LaMontagne v. American Convenience Products, Inc., 750 F.2d 1405, 1409 (7th Cir.1984). Cebula may try to meet his burden in two ways, direct and indirect. He may do so directly by presenting evidence that age was a determining factor in GE’s decision to fire him. Id. He may also do so indirectly by using the “indirect” proof method created in McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See LaMontagne, 750 F.2d at 1409.

Cebula appears to rely on the McDonnell-Douglas method of proof, which has been modified for the context of ADEA termination cases like this one. See, e.g., LaMontagne, 750 F.2d at 1409 n. 1; Selsor v. Callaghan, 609 F.Supp. at 1006. To establish a prima facie case of age discrimination, Cebula must show:

(1) He was in the protected age group, that is, age 40 to 70;
(2) He was performing his job at a level that met his employer’s legitimate expectations;
(3) He was fired; and
(4) His employer sought a replacement for him.

LaMontagne, 750 F.2d at 1409; Selsor at 1006. Once Cebula meets this burden, the presumption is that he was dismissed because of his age.

GE may rebut a presumption of age discrimination by articulating a lawful reason for the discharge. This burden is merely one of production. The burden of proof always rests on the plaintiff. See, e.g., Selsor, at 1006. If GE articulates a legitimate reason for firing Cebula, Cebula must prove that the articulated reasons are pretextual. A pretext is demonstrated by evidence showing that GE was more likely motivated by a discriminatory reason or that its justification is not credible. See, e.g., LaMontagne, 750 F.2d at 1409, citing Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

Having established the substance of our analysis, we turn to the procedural forces which shape that substance. Courts are reluctant to grant summary judgment in employment discrimination cases because so much turns on an employer’s credibility and hidden or subconscious motives. Thus, where a genuine issue of employer motive or credibility lay at the heart of an ADEA case, we denied summary judgment. See Oxman, at 1393-95. But we have granted summary judgment to an employer where no credible evidence called an employer’s motive and intent into question. See Selsor, 609 F.Supp. at 1007; also Kephart v. Institute of Gas Technology, 630 F.2d 1217, 1218 (7th Cir.1980), cert. denied 450 U.S. 959, 101 S.Ct. 1418, 67 L.Ed.2d 383 (1981). As usual, summary judgment will be granted only if GE, the moving party, shows that no genuine issue of material fact exists. Fed.R.Civ.P. 56(c); Korf v. Ball State University, 726 F.2d 1222, 1226 (7th Cir.1984). We must view the evidence, as well as the reasonable inferences it creates, in the light most favorable to Cebula. See Big O Tire Dealers, Inc. v. Big O Warehouse, 741 F.2d 160, 163 (7th Cir.1984). If GE fails to carry its “strict burden,” it loses the motion. Id. But if GE succeeds in doing so, Cebula must carry the resulting burden of creating a genuine issue. He cannot rest on the pleadings or bald assertions in meeting this burden. Fed.R.Civ.P. 56(e); Big O, 741 F.2d at 163.

Cebula’s McDonnell-Douglas Case

The parties agree that Cebula meets three of the requirements of the McDonnell-Douglas prima facie case. At 45 years old, Cebula comes under the statute’s protective umbrella. Secondly, he was fired. Third, GE replaced him with a 26 year old man. The parties disagree on whether Cebula satisfied GE’s legitimate expectations.

The Seventh Circuit has emphasized that the employer’s legitimate perceptions are what count in this analysis. For example, Kephart v. Institute of Gas Technology, 630 F.2d 1217 (7th Cir.1980), cert. denied, 450 U.S. 959, 101 S.Ct. 1418, 67 L.Ed.2d 383 (1981), adopted the decision of the district court to grant summary judgment to the employer. The lower court had framed the issue as follows:

The Age Discrimination in Employment Act, however, was not intended as a vehicle for judicial review of business decisions. See Havelick v. Julius Wile Sons & Co., 445 F.Supp. 919, 926 (S.D.N.Y.1978). The question before the court is not whether the company’s methods were sound, or whether its dismissal of Kephart was an error of business judgment. The question is whether he was discriminated against because of his age. Although an employer may not make unreasonable expectations, and must make the employee aware of just what his expectations are, beyond that the court will not inquire into the defendant’s method of conducting its business. If Kephart was not doing what his employer wanted him to do, he was not doing his job.

630 F.2d at 1223. In Huhn v. Koehring Co., 718 F.2d 239 (7th Cir.1983), the court relied on Kephart in again emphasizing that the plaintiff’s burden is to show that he was satisfying his employer’s legitimate expectations. 718 F.2d at 244-45.

We do not think there is a genuine issue that Cebula was not satisfying GE’s legitimate expectations. Although until 1983 Cebula’s reviews had indicated that his work had been generally satisfactory, these reviews consistently criticized aspects of his work, especially his technical knowledge and fell below GE’s “par” of “fully satisfactory.” His performance had declined even before Sharma became his new district manager. The record supports the final performance review which concluded that GE found his work unacceptable. Cebula was consistently criticized for inferior technical expertise. In Cebula’s closing days, three of GE’s customers complained about his service, two of them asking for different servicemen for the future. And Taken wrote up four “incident reports” about Cebula, which criticized him for inadequate performance on service calls.

Cebula has not controverted the above evidence that he did not live up to GE’s expectations. He submitted ten letters which he had solicited from GE customers who liked his work, apparently to disprove GE’s claim that he was unsatisfactory. However, these letters were written after Taken and Sharma decided in August 1983 to fire him. Moreover, Cebula’s submission of these letters misses the point made in Kephart that we do not sit to judge whether GE made the right business decision in firing Cebula. We sit only to judge whether Cebula’s age determined that decision. Cebula, like Kephart, cannot prevail on the McDonnell-Douglas prima facie case because he

does not contradict the affidavits and depositions of other [GE] employees stating that they thought his work was unsatisfactory. In response, he offers only the judgments of some who thought his work was good. These contrary assessments of his performance do not impeach the legitimacy of his employer’s expectations. Plaintiff does not raise a material issue of fact on the question of the quality of his work merely by challenging the judgment of his superiors.

Kephart, 630 F.2d at 1223.

Cebula does, however, make some arguments that the above evaluations are a ruse, and that GE’s scheme was to get rid of him and other older employees. Essentially, Cebula is arguing that GE’s “legitimate expectations” argument is pretextual, papering over its hidden, unlawful motives. The problem with this pretext argument is that we have held that Cebula cannot pass the threshold hurdle of raising a genuine issue of fact for his prima facie case. In a strict doctrinal sense, we should not even reach the “pretext” issue, because that presupposes that Cebula had met his McDonnell-Douglas prima facie case. Because of his failure to do so, we must now discard the McDonnell-Douglas approach and instead analyze Cebula’s arguments under the alternate “direct” method of proof, which considers the total circumstances to see whether age was a determining, or “but for,” factor in GE’s decision to fire Cebula. See LaMontagne, 750 F.2d at 1409. In the final analysis, this approach does not differ much from the pretext approach under McDonnell-Douglas. In both approaches, we are searching the record for bits of evidence which could show that age motivated GE or that its supposed expectations and evaluations are not credible. 750 F.2d at 1409.

Gebula’s Direct Evidence of Discrimination

Cebula has culled the following bits of evidence to piece together his picture of why he was fired:

(1) According to Cebula’s affidavit, Sharma told him, in July 1983 “we [GE] don’t want you. Don’t you see why we don’t want you? Look who we are hiring— Harry Lemke, Scott Ridgeway, and Peter Craig [all of whom are in their twenties]. Don’t you see what I am doing to you?” Sharma denies making this statement.
(2) Several co-workers told Cebula that GE was out to get him because of his age, and that GE had a general plan of replacing older employees with younger ones, in order to cut wages and benefits.
(3) Cebula claims that Sharma also told him that if he would quit, Sharma would help him find another job, give him good references, and get him GE benefits. Cebula refused, and Sharma allegedly told him to “quit or get fired.”
(4) As of February 7, 1984, GE employed 56 people between ages 20 and 39 in Cebula’s area. Only 11 employees were between 40 and 60. Thus, the ratio of “young” to “old” employees was about five to one. One employee over 40 named Robert Wentdorf resigned when Cebula was fired; another, Joseph Ives, was placed on a work improvement program; and GE has hired no one over forty in Cebula’s division since 1979.

Only the first of these shreds of evidence helps Cebula’s case. We will consider this evidence in reverse order.

The so-called “statistical evidence” of paragraph (4) is “sound and fury, signifying nothing.” W. Shakespeare, Macbeth, Act V, sc. v. The “data” in paragraph (4) is inconclusive, and any inference that it suggests age discrimination would be speculative and unreasonable. The fact that GE has hired no one over 40 in Cebula’s division is meaningless absent other evidence concerning the number of applicants over forty, the qualifications of these applicants, and the number of positions available. Similarly, the five-to-one ratio of “young” to “old” employees is statistically meaningless without other evidence concerning the relative percentages of people that applied for these positions, as well as the relative percentages in the work force as a whole. Moreover, because Cebula’s position was entry-level, it could just as well be that older employees moved up or into different companies. This inference, too, is speculative. The point is that the evidence by itself points to no one reasonable conclusion. Likewise, the resignation of Robert Wentdorf proves nothing. All we know is that Wentdorf resigned. No evidence describes the circumstances of his resignation. Cebula does not even offer an affidavit of Mr. Wentdorf. And the asser- . tion that Joseph Ives was placed on a work improvement program is again not probative. There is no evidence that GE lacked good cause to do so, that it treated comparable younger employees better, or even that Ives was fired. In sum, the evidence in paragraph (4) adds nothing to Cebula’s case.

Sharma’s ultimatum in paragraph (3) to “quit or get fired,” coupled with some inducements to quit, also does not suggest that Cebula’s age entered into the situation. Sharma could just as well have given the ultimatum because of Cebula’s poor performance. Such ultimatums are not uncommon and happen for a variety of business reasons, good and bad. But this ultimatum surely does not imply by itself that age was one of those reasons.

The comments of Cebula’s co-workers in paragraph (2) are inadmissible hearsay. Fed.R.Civ.P. 56(e) requires affidavits to “be made on personal knowledge ... set[ting] forth such facts as would be admissible in evidence.” Cebula has submitted no affidavits of these co-workers. Rather, his own affidavit repeats comments they made to him that GE was out to get older employees. These assertions are inadmissible hearsay under Fed.R.Evid. 801(c), as they are offered to prove the truth of the matters asserted, that is, that GE was out to get Cebula and other older employees. Cebula is incorrect that these statements are non-hearsay party admissions under Rule 801(d)(2). The “party opponent” here is GE. The statements were made by lower-level GE employees. No evidence suggests that any of these coworkers was involved in the decision to fire Cebula or was speaking as an “agent or servant [of GE] concerning a matter within the scope of his agency or employment....” Fed.R.Evid. 801(d)(2)(D). Thus, these statements cannot be attributed to GE as an admission and cannot escape the hearsay rule. See Hill v. Spiegel, Inc., 708 F.2d 233, 237 (6th Cir.1983).

The above evidence, considered together or separately, is thus either irrelevant or inadmissible. The final piece of evidence we turn to is Cebula’s strongest. That is Cebula’s assertion that Sharma told him that “we don’t want you,” and that he should see who GE was hiring, indicating three younger employees. We note first that Sharma denies making this statement. We observe also that the statement, if made, is facially ambiguous. While Sharma might have pointed to those three as younger employees, Sharma might have meant that the other employees were technically more proficient than Cebula or were better trained. If a jury were to rule for Cebula it would have to find (1) that Sharma really did make the statement; (2) that Sharma meant what Cebula says he meant; and (3) that Cebula’s age made a difference in the outcome, despite the powerful evidence that he was not doing his job well enough to satisfy Sharma and others. We think it extremely unlikely that the jury would reach all three conclusions. And we think it impossible that a jury could do so reasonably. First, we do not think a jury would believe that Sharma made the statement. However, in ruling on this summary judgment motion, we must resolve the conflicting stories and credibility issues in Cebula’s favor. Nevertheless, even assuming a jury could reasonably find in Cebula’s favor on points (1) and (2), we do not think it could do so on point (3).

The central issue here on summary judgment “is whether the submissions of the parties give rise to a reasonable inference of discriminatory motive.” Parker v. Fed’l Nat’l Mtg. Ass’n., 741 F.2d 975, 976 (7th Cir.1984) (emphasis added). Considering the whole record, the jury could not do so reasonably. The evidence is overwhelming that Cebula did not perform up to GE’s legitimate expectations. We have already held that there is no genuine factual issue about GE’s dissatisfaction. We now hold that there is no genuine issue that GE’s dissatisfaction with Cebula’s performance was a “but for” or “determining factor” in his discharge. No jury could reasonably find otherwise on the basis of this record.

We recognize that if Sharma made the alleged statement, as we must assume for purposes of deciding the motions before us that he did, it becomes possible that age too was a factor in the decision. But we do not think a jury could reasonably find, as it must for Cebula to win, that age was a determining factor. In general, two or more factors, or causes, can possibly be “determining ones.” Both age and poor performance could factor into the discharge decision, such that “but for” either cause the employee would not have been fired. This is the so-called “mixed-motive” situation. See, e.g., LaMontagne, 750 F.2d at 1414 (age need only be a determining factor among others); Spagnuolo v. Whirlpool Corp., 641 F.2d 1109, 1111-12 & n. 1 (4th Cir.1981), cert. denied, 454 U.S. 860, 102 S.Ct. 316, 70 L.Ed.2d 158 (1981); Loeb v. Textron, Inc., 600 F.2d 1003, 1019 (1st Cir.1979). But even if GE’s motives were mixed, the above cases make clear that to prevail a plaintiff must show that age made a difference in the outcome. If Cebula would have been fired anyway because of his poor performance, he has not shown that “but for” his age he would not have been fired, and he loses.

We think no genuine issue exists that Cebula would have been fired regardless of his age. Age did not determine the outcome. For five years he performed below expectations. Not only Sharma, but other supervisors felt he was inadequate. Finally, near the end, customers wrote complaints to GE about Cebula. GE would not have continued to risk losing business on Cebula’s account. In sum, Cebula cannot overcome the evidence of his poor performance and persuade a reasonable jury that age also determined GE’s decision to fire him. Accordingly, Cebula cannot succeed on the direct method of proof, as well as the McDonnell-Douglas method. We therefore grant GE’s motion for summary judgment on the ADEA claim.

The Illinois Eavesdropping Act

Both parties have moved for summary judgment on Count II, which states a claim under the Illinois Eavesdropping Act, Ill.Rev.Stat. ch. 38, ¶ 14-1 through 14-9 (1983). The Act creates a civil remedy for “eavesdropping ... practiced contrary to” the Act by an eavesdropper or his “principal.” II14-6. A “principal” is defined as “any person who”

(1) Knowingly employs another who illegally uses an eavesdropping device in the course of such employment; or
(2) Knowingly derives any benefit or information from the illegal use of an eavesdropping device by another; or
(3) Directs another to use an eavesdropping device illegally on his behalf.

¶ 14-l(c). It is undisputed that Taken taped the conversation in which he fired Cebula. Assuming that Taken violated the Act, and did so in the course of his employment, we nevertheless believe that Cebula cannot hold GE liable as Taken’s principal.

The Act is clear that one must “knowingly employ[ ] another” who violates the Act. The record of this case is clear that no GE supervisor knew of or directed Taken’s decision to tape the meeting. As such, we hold that GE cannot be held liable as Taken’s principal since it did not knowingly employ him to use the tape. Nor can it be said that GE has “knowingly derived any benefit or information from [Taken’s] illegal use” of the tape. When Sharma found out about the tape he reprimanded Taken, and GE destroyed the tape. Cebula has made no showing that its contents would have helped him or that they somehow benefitted GE. Thus, GE is likewise not a principal under ¶ 14(1)(C)(2).

In sum, no genuine factual issue exists as to whether GE is a principal under the Eavesdropping Act. It might be that Taken violated the Act, and that Cebula could have sued him, but he can no longer maintain his suit against GE for Taken’s wrongdoing. As such, we need not consider the parties’ remaining arguments concerning Count II.

Conclusion

We grant GE’s summary judgment motion on Counts I and II and deny Cebula’s motion for summary judgment on Count II. It is so ordered.

      . "Fully satisfactory” is the minimum par that GE expects of its employees over the long run. According to deposition testimony of Daniel Peters, a GE Manager, "fully satisfactory means that an employee is performing to the expectations of the Company in his particular job category.” Peters Deposition at 72-73. The practice in Peter’s division was to put employees receiving lower evaluations on a work improvement program. Cebula was eventually placed on such a program.

      . We reject as irrelevant GE’s argument that the Court lacks jurisdiction over any claims which arose before March 18, 1983, which was 180 days before Cebula filed his EEOC charge. Cebula is not raising any claims which arose before March 18, 1983. He challenges his termination of August 1983, and GE does not dispute that Cebula’s EEOC charge was timely as to that claim. Evidence of acts which happened before March 18, 1983, may be considered to prove Cebula’s claim that arose in August 1983.

      . Cebula’s task would be even harder given his admission that neither Sharma nor Taken were personally prejudiced against him because of his age. This admission, though harmful to his story, is not fatal by itself. A manager could obey orders from above to view age unfavorably, but not personally believe age is relevant. In this regard, LaMontagne, 750 F.2d at 14Í2, is not controlling. There no evidence showed that the person who made the discharge decision, the company President, had considered age. Although others in the company arguably considered age relevant, they made no decision concerning plaintiff and exerted no influence over the decisionmaker. Id. at 1412-13. Here Sharma’s statement indicates that he, the person who made the discharge decision, did consider age, and that consideration might have come from above.

      . Cebula’s argument assumes that the Act's words “knowingly employ” merely mean that GE must have known that it employed Taken. We disagree with this reading of the Act. Such a reading renders the word, "knowingly," superfluous, since the statute could make the same point without the word. We think it clear from the context of the statute that the employer must know that the employee is eavesdropping within the scope of his employment. This reading gives meaning to the word "knowingly."