author: LEISURE, District Judge:

text:
    Carolee KOSTER, Plaintiff, v. CHASE MANHATTAN BANK, N.A. and Allan Ross, Defendants.
    No. 81 Civ. 5018 (PKL).
    United States District Court, S.D. New York.
    May 28, 1985.

      Lippman & Lippman, New York City (Harvey J. Lippman, John T. Cushing, of counsel), for plaintiff Carolee Koster.
    Proskauer, Rose, Goetz & Mendelsohn, New York City (Morton M. Maneker, Elizabeth A. Alcorn, of counsel), for defendant Chase Manhattan Bank.
    Milgrim, Thomajan, Jacobs & Lee, New York City (Robert L. Fink, Andrew L. Deutsch, of counsel), for defendant Allan Ross.
   MEMORANDUM AND ORDER

LEISURE, District Judge:

This is a suit for gender discrimination in employment. Plaintiff Carolee Koster has asserted numerous claims against her former employer, Chase Manhattan Bank (“Chase”), and Allan Ross, her immediate superior at Chase, under federal and state law, seeking injunctive and declaratory relief as well as damages. On January 7, 1983, Judge Goettel, to whom this case was originally assigned, denied defendants’ motions to dismiss the complaint. Koster v. Chase Manhattan Bank, 554 F.Supp. 285 (S.D.N.Y.1983). He held that plaintiff had properly alleged a sexual harassment claim before both the EEOC and the Court; the Title VII action could proceed against Ross notwithstanding plaintiff’s failure to name him as a respondent in the EEOC complaint; and that Ross was an “employer” within the meaning of the Equal Pay Act (“EPA”), 29 U.S.C. § 206(d). Judge Goettel permitted Koster to remedy defects in her allegations by repleading. In a footnote to his opinion, Judge Goettel refused to dismiss plaintiffs pendent state law claims. Koster, 554 F.Supp. at 290 n. 9.

Discovery is now complete and defendants have moved for summary judgment. Neither defendant attacks the Title VII claims in Count I. Both, however, challenge the EPA claim in Count II. Ross denies that he is an “employer” within the EPA; additionally, he joins Chase in challenging the EPA claim on grounds of legal insufficiency. Count III is a claim under state and city human rights provisions. Defendants challenge it on grounds of procedural deficiency, and Ross adds that he is in any event not an “employer” under the pertinent provisions. Count IV is directed against Ross alone. Ross sees it as a claim for defamation and moves to dismiss it because of untimeliness and lack of specificity. Koster characterizes it as a claim for prima facie tort.

Count V, also directed only against Ross, charges intentional infliction of emotional distress. Ross argues that the conduct alleged by Koster does not suffice to make out such a claim. Counts VI and VII allege, respectively, that Chase and Ross wrongfully discharged Koster and breached an implied condition of good faith in her employment contract. Defendants contend that neither action is cognizable under New York law.

I. COUNT II: EQUAL PAY ACT.

The EPA prohibits employers from compensating employees of one sex at a lower rate than employees of the opposite sex “for equal work on jobs the performance of which requires equal skill, effort, and responsibility and which are performed under similar working conditions,” except in four situations not relevant here. 29 U.S.C. § 206(d)(1). The work in question must be “equal,” not merely comparable; Congress did not intend for courts to compare the value of different jobs. 29 C.F.R. § 800.120 (1984); Hodgson v. Corning Glass Works, 474 F.2d 226, 231 (2d Cir. 1973), affd, 417 U.S. 188, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974); Nulf v. International Paper Co., 656 F.2d 553, 561 (10th Cir. 1981). The jobs need not be identical, though. It is sufficient if the job functions are substantially equal. See id.; Gunther v. County of Washington, 623 F.2d 1303, 1309 (9th Cir.1979), affd, 452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981); Usery v. Columbia Univ., 568 F.2d 953 (2d Cir. 1977). The standard of comparison is actual job content, not job titles or descriptions. Gunther, 623 F.2d at 1309; Marshall v. Building Maint. Corp., 587 F.2d 567, 571 (2d Cir.1978); Rossini v. Ogilvy & Mather, Inc., 597 F.Supp. 1120, 1154 (S.D.N.Y. 1984).

Defendants argue that plaintiff has not demonstrated the existence of a genuine dispute regarding any fact material to her EPA claim that would warrant a trial on the merits. They say that plaintiff has not been able to point to a single male employee of Chase who performed substantially equal work but was paid more than plaintiff. Plaintiff claims that one Neil Owen was paid a higher salary than she for work substantially equal to hers.

Owen submitted an affidavit outlining the nature of the job he performed while he was employed at Chase. According to Owen’s affidavit, 60-80% of his time was spent doing various tasks in connection with updating, refining, and supervising use of Chase’s Human Resources Information System (“HRIS”) and other of Chase’s computer systems. He designed certain system uses and applied statistical analysis. Koster’s job entailed a number of tasks, mainly involving human resources planning and policies, but including as well budgeting, staffing and development, and certain special projects. According to Koster, she performed the work of three persons, and discharged all her duties excellently. She says she used the same computer Owen did, and, like Owen, performed statistical analysis. Moreover, she claims that part of Owen’s work was transferred to her when he was unable to do it satisfactorily. Additionally, she alleges that a number of other male Chase employees performed work substantially equal to or less demanding than hers but were paid more than she was. She does not, however, name these other persons. The only named comparant is Owen.

It is well-settled that on a summary judgment motion I must construe the facts in the light most favorable to the nonmoving party. United, States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam). That does not, however, mean that the nonmoving party is without obligation when confronted with a summary judgment motion.

In order to defeat a motion for summary judgment supported by proof of facts that would entitle the movant to judgment as a matter of law, the nonmoving party is required under Fed.R.Civ.P. 56(e) to set forth specific facts showing that there is a genuine issue of material fact to be tried. If facts essential to support opposition to the summary judgment motion are not available, the non-moving party may seek a continuance under Rule 56(f) to permit affidavits to be obtained or discovery to be had. He may not, however, rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible, or “upon the mere allegations or denials of his pleading,” Fed.R. Civ.P. 56(e).

L & L Started Pullets, Inc. v. Gourdine, 762 F.2d 1 (2d Cir.1985) (emphasis added) (citations omitted). See also Meiri v. Dacon, 759 F.2d 989 (2d Cir.1985) (“To allow a party to defeat a motion for summary judgment by offering purely conclusory allegations of discrimination, absent any concrete particulars, would necessitate a trial in all Title VII cases.”); Quarles v. General Motors Corp., 758 F.2d 839 (2d Cir.1985) (“Once a moving party has made a showing that no material issues of fact are in dispute, mere conjecture or speculation by the party resisting summary judgment does not provide a basis upon which to deny the motion.”); Barnett v. Howaldt, 757 F.2d 23, 26 (2d Cir.1985) (“In the circumstances, plaintiffs were required to come forward with affidavits, deposition testimony, or other sworn documents containing admissible evidence to show that there was a genuine issue ... ”); JSP Agency, Inc. v. American Sugar Refining Co. of New York, 752 F.2d 56, 59 (2d Cir.1985) (“Summary judgment ... will not be denied merely because of conclusory allegations or denials made by the opposing party.”).

Plaintiff’s assertions that her work was substantially equal to Owen’s are unsupported. True, she did point out certain areas of overlap between her tasks and Owen’s, but this is not sufficient to show substantial equality under the EPA. “It is the overall job, not its individual segments, that must form the basis of comparison.” Gunther, 623 F.2d at 1309. On the record before me, I cannot conclude that Koster’s job and Owen’s were substantially equal. At most, certain tasks were common to both jobs. But Koster did not do the extensive computer work Owen did, and Owen did not do the sort of planning and policy work Koster did. Koster argues that every Level 11 Vice President’s job is comparable to hers for EPA purposes. That is not the case. “[T]he fact that jobs performed by male and female employees may have the same total point value under an evaluation system in use by the employer does not in itself mean that the jobs concerned are equal according to the terms of the statute.” 29 C.F.R. § 800.121 (1984).

Discovery in this case has been complete for some time. Presumably, each party has in its possession all the facts it will use at trial. Thus, if at this stage in the litigation, plaintiff can supply no names of higher paid coworkers besides Owen, I must conclude that her claims of higher paid males with equal or lesser duties are no more than speculation. Her failure to produce any specific evidence of males performing work substantially equal to hers at a higher rate of pay, which would raise a genuine issue of material fact, is fatal to her attempt to resist this summary judgment motion. Accordingly, defendants are entitled to summary judgment on Count II of the complaint.

In light of my finding that no genuine issue of material fact exists which would permit the EPA claim to proceed, I need not address Ross’s claim that he is not an EPA “employer.”

II. STATE LAW CLAIMS.

In his January 1983 opinion on defendants’ motion to dismiss portions of the complaint, Judge Goettel wrote the following footnote. Koster, 554 F.Supp. at 290 n. 9. Plaintiffs contend that this footnote is law of the case which prevents defendants from challenging the sufficiency of the state law claims except at trial.

The defendants have also moved to dismiss Counts III through VII, which concern alleged violations of New York State statutory and common law. Whether these claims are legally sufficient, however, need not be determined at this time. As the plaintiff can proceed on her federal causes of action and as the state claims are essentially based on the same facts as the federal ones, the Court thinks it better to await trial before addressing the issues raised by the remainder of the defendants’ motions.

Of course, the law of the case doctrine does not demand unswerving blind adherence to prior rulings in the case. As Judge Learned Hand wrote in Higgins v. California Prune & Apricot Grower, Inc., 3 F.2d 896, 898 (2d Cir.1924), “the ‘law of the ease’ doctrine does not rigidly bind a court to its former decisions, but is only addressed to its good sense.” Thus, I may in proper circumstances correct erroneous earlier rulings.

This case does not, however, appear to be one in which the law of the case doctrine, or the Court’s discretion to override it, is implicated. It is clear to me that Judge Goettel did not intend to foreclose all consideration of the legal sufficiency of Roster’s allegations before trial. In the first place, he did not even rule on defendants’ motions to dismiss the state claims. Rather, he felt that since development of the facts on the federal claims would be going ahead, and since the state claims rested on the same facts, a ruling on the state claims would not significantly affect discovery, so no decision was necessary. I see nothing in his opinion which would prevent the Court, after completion of discovery, from considering on a summary judgment motion whether there is anything in the state claims that merits bringing them to trial. Judge Goettel’s refusal to rule at a far earlier stage of this litigation does not preclude me now from determining issues he did not address.. Thus, the law of the case doctrine has.no effect here; there is no law of the case to apply.

I will now consider the legal sufficiency of each of plaintiffs’ state law claims.

A. Statutory Claims.

1. New York Human Rights Law. N.Y.Exec.L. § 290 et seq. (McKinney 1982) is the New York Human Rights Law. Under § 297, an aggrieved individual has the choice of instituting either judicial or administrative proceedings. He may not, however, resort to both forums; having invoked one procedure, he has elected his remedies. See N.Y.Exec.L. § 297(9) (McKinney 1982); West v. Technical Aid Corp., Ill Misc.2d 23, 24, 443 N.Y.S.2d 318, 320 (1981) (“Stated simply, the [administrative and judicial] remedies are mutually exclusive.”) That does not affect his right to sue to enforce his federal rights by way of federal procedures, though. Title VII provides remedies additional to, not as substitutes for, any remedies otherwise available. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 48, 94 S.Ct. 1011, 1019, 39 L.Ed.2d 147 (1974) (“the legislative history of Title VII manifests a congressional intent to allow an individual to pursue independently his rights under both. Title VII and other applicable state and federal statutes.”) (footnote omitted). Filing an administrative complaint, however, cuts off the complainant’s right to resort to the courts to redress state human rights law violations. There is one exception to this rule. “[W]here the division has dismissed such complaint on the grounds of administrative convenience, such person shall maintain all rights to bring suit as if no complaint had been filed.” Exec.L. § 297(9).

Koster filed a complaint with the City Commission on Human Rights on September 25, 1980. • Months went by without any action by the Commission. Although Koster made repeated inquiries, she received no straight answers as to when an investigation would be instituted or how long it would take. Finally, in mid-1981, she withdrew her administrative claim effective June 30, 1981, and filed this suit in federal court.

Koster now argues that her withdrawal of her administrative complaint should be construed as tantamount to a dismissal for administrative convenience. She argues that “public policy certainly requires that if plaintiff is not afforded the opportunity to obtain relief in an administrative proceeding due solely to the inability of the administrative agency to act, she should then be able to pursue that relief in the courts, a right which plaintiff would otherwise have.” (Pl.Mem. at 14).

I emphatically agree that the Commission’s treatment of complaints from individuals who may have suffered severe indignities and harms for no reason other than their race, sex, religion, or other protected characteristic is at best lamentable. At worst, the ineptitude or sloth of the Commission exacerbates the injuries already inflicted on the complainants by conveying indifference. However, the Executive Law does not provide any recourse for a disaffected complainant. Indeed, it is unclear whether a complainant who is rightly dissatisfied with the administrative non-handling of his case has it open to him to request that the Commission dismiss his complaint for administrative convenience so that he can pursue his remedies in court. See Meschino v. International Tel. & Tel. Corp., 563 F.Supp. 1066, 1074-75 (S.D.N.Y. 1983). Apparently, under state and city law patience with bureaucratic inefficiency is a necessary virtue.

Despite the deplorable administrative situation, however, I cannot sustain plaintiff’s claim under the Human Rights Law. Plaintiff has pointed me to no authority which would authorize overriding the procedural dictates of § 297(9), nor have I been able to find any. Indeed, the New York Court of Appeals has held that withdrawal of an administrative complaint precludes bringing an action in court. Emil v. Dewey, 49 N.Y.2d 968, 428 N.Y.S.2d 887, 406 N.E.2d 744 (1980). On this issue I am bound to follow the dictates of the state’s highest court. Nothing in federal law (specifically Title VII) compels following anything other than state-mandated procedures to vindicate state law rights. Accordingly, plaintiffs claim under the New York Human Rights Law can not stand.

2. New York City Administrative Code. Defendants argue that the City’s human rights law, 2 N.Y.City Admin.Code §§ Bl-1.0 et seq. (1976 & Supp.1984-1985), does not confer a private right of action, so that plaintiff can not base a claim on it. In the circumstances of this case, I agree.

Chapter 1, Title B of the Code sets up the Commission, outlines its jurisdiction and the rights it will protect, and specifies the procedures to be followed. Section Bl-9.0 provides for judicial review of Commission orders. There is no provision for a private action in the absence of a determination by the Commission.

Since plaintiff did not pursue the administrative procedures to a conclusion, the judicial review provisions of § Bl-9.0 do not apply. I see no other basis in Title B for a claim for relief in a judicial proceeding. Thus, Count III cannot be sustained on the basis of the City Administrative Code.

B. Count IV.

In Count IV, plaintiff alleges as follows.
From June, 1979 through October, 1980, defendant Ross intentionally, willfully and maliciously subjected plaintiff to a compaign [sic] of sexual harassment and outrageous conduct and verbal abuse, without excuse or justification and with intent to harm plaintiff or with a wanton and reckless desregard [sic] of the consequences to plaintiff, thereby injuring plaintiff’s business and personal reputation, causing plaintiff great embarrassment and humiliation, causing plaintiff to be discharged by Chase, rendering plaintiff unable to secure other employment and causing plaintiff substantial loss of earnings and other financial damage.

(Second Amended Complaint ¶ 23). Ross argues that because reputational injury is alleged, this claim necessarily is one for defamation, and is invalid because of time bar and lack of specificity. Koster denies this is a defamation claim, characterizing it instead as prima facie tort.

Allegation of injury to reputation among other injuries does not necessarily restrict a claim to one for defamation. Indeed, a defamation claim and a prima facie tort claim may coexist. See, e.g. National Apparel Adjustment Council, Inc. v. Dun & Bradstreet, Inc., 42 A.D.2d 550, 345 N.Y.S.2d 40 (1973) (prima facie tort claim defective not because defamation was also alleged, but because of lack of direct damages). Here, Koster alleges deliberate conduct calculated to harm her, motivated by no reason other than a malicious desire by Ross to cause her injury. That is the gravamen of prima facie tort. See ATI, Inc. v. Ruder & Finn, Inc., 42 N.Y.2d 454, 398 N.Y.S.2d 864, 368 N.E.2d 1230 (1977). However, an action for prima facie tort may not proceed absent allegations of special damages. Wehringer v. Helmsley-Spear, Inc., 91 A.D.2d 585, 457 N.Y.S.2d 78 (1982), affd, 59 N.Y.2d 688, 463 N.Y.S.2d 417, 450 N.E.2d 223 (1983). Here, Koster has neither alleged nor offered to prove any special damages traceable to malicious outrageous conduct by Ross. Her ad damnum clause for this claim requests an even $1 million, which implies an absence of special damages. Thus, her prima facie tort claim can not proceed. Ross must be awarded summary judgment on Count IV.

C. Count V — Emotional Distress.

Koster’s fifth claim is for damages due to Ross’s alleged intentional infliction of emotional distress. Ross argues that the conduct alleged by Koster is as a matter of law insufficient to sustain a claim for intentional infliction of emotional distress.

In Fischer v. Maloney, 43 N.Y.2d 553, 557, 402 N.Y.S.2d 991, 373 N.E.2d 1215 (1978), the Court of Appeals adopted the formulation of the Restatement (Second) of Torts § 46(1): “One who by extreme and outrageous conduct intentionally causes severe emotional distress to another is subject to liability for such emotional distress.” Comment d to § 46 states that to be actionable, the conduct must be so extreme and egregious as to exceed all bounds of decency and civilized behavior. See also Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 303, 461 N.Y. S.2d 232, 236, 448 N.E.2d 86, 90 (1983). Ross argues that Roster’s allegations do not describe conduct sufficiently outrageous and extreme to make out a case of intentional infliction of emotional distress. I disagree.

In her affidavit (¶¶ 53-56 & Ex. 36) Roster describes a continuous course of conduct from July 1979 to August 1980 that amounts to harassment and hounding. Much of the conduct had lurid sexual overtones. Although each individual act alleged by Roster is probably not actionable, when aggregated over time, the continuous nature of the conduct may make it sufficiently outrageous that a jury could reasonably find in Roster’s favor. See Nader v. General Motors Corp., 25 N.Y.2d 560, 569, 307 N.Y.S.2d 647, 654, 255 N.E.2d 765, 770 (1970) (“where severe mental pain and anguish is inflicted through a deliberate and malicious campaign of harassment or intimidation, a remedy is available in the form of an action for intentional infliction of emotional distress”); Mitran v. Williamson, 21 Misc.2d 106, 197 N.Y.S.2d 689 (Sup.Ct. Rings Co. 1960); W.P. Reeton, D.B. Dobbs, R.E. Reeton & D.G. Owen, Keeton & Prosser on the Law of Torts § 12 at 61-62 & n. 62 (5th ed. 1984).

Roster’s claim is, however, barred by the statute of limitations. As an intentional tort, this claim has a one-year limitations period under CPLR § 215. Roster filed this action on August 11, 1981; she was fired on August 13, 1980. All acts occurring before the limitations period are excluded from consideration. See Weisman v. Weisman, 485 N.Y.S.2d 570 (App.Div. 1985). Only a very short amount of time is within the limitations period, and Roster has not alleged any conduct by Ross within that period that in and of itself is sufficiently extreme, outrageous and uncivilized to be actionable. I therefore am constrained to grant summary judgment to Ross on Count V.

D. Counts VI and VII.

In Count VI of the complaint Roster purports to state a tort claim for wrongful or abusive discharge against Ross and Chase. Defendants correctly point out that New York does not recognize a tort of wrongful or abusive discharge where the plaintiff was an at-will employee. Murphy, 58 N.Y.2d at 300-02, 461 N.Y.S.2d 232, 448 N.E.2d 86.

Her final cause of action is for breach of an implied covenant of good faith and fair dealing in her employment contract. Unless a former employee alleges that the employer made representations that the discretion of the employer in choosing to discharge her was less than unfettered, and that the plaintiff relied on those representations to her detriment, Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458, 457 N.Y.S.2d 193, 443 N.E.2d 441 (1982), no such implied covenant exists in at-will employment contracts. Murphy, supra, 58 N.Y.2d at 304-05, 461 N.Y.S.2d 232, 448 N.E.2d 86; Wernham v. The Rt. Rev. Paul Moore, Jr., N.Y.L.J. Apr. 15, 1985 at 7, col. 4, col. 6. Roster has not alleged any such representations.

Defendants must be awarded summary judgment on Counts VI and VII.

III. CONCLUSION.

The motion of defendants Chase and Ross for summary judgment is granted as to Counts II, III, VI and VII. Summary judgment is granted in favor of defendant Ross as to Counts IV and V. Roster’s claims of sexual harassment and disparate treatment will be considered under Title VII.

Since the only remaining claims are in Count I of the complaint, a claim under Title VII, plaintiff’s demand for a jury trial is hereby stricken. Trial will be to the Court.

SO ORDERED.

      . The general standard and each of its components are defined in 29 C.F.R. §§ 800.119 — 800.-132.

      . Owen is no longer an employee of Chase. He is now president of his own company.

      . Koster’s description of Owen’s job undermines her claim of substantial equality.
      Ross didn’t exactly put Owen into a function; instead, it seems more accurate to say that Ross put Owen into "situations of high visability”, [sic] so that Owen would come to know, and be known by, the bank’s executives.
      Koster afft. f 84.

      . This finding does not eliminate all of Roster’s wage-based discrimination claims. It only holds that her claims under the EPA do not survive. She still may assert wage discrimination under Title VII. County of Washington v. Gunther, 452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981). And, of course, my holding on her EPA claim does not affect her ability to pursue Title VII claims for sexual harassment or disparate treatment.

      . With respect to a non-appealable denial of summary judgment, the law of the case is not a limit on the court’s jurisdiction, but a rule of practice which may be departed from in the sound discretion of the district court. The first judge always has the power to change a ruling; further reflections may allow a better informed ruling in accordance with the conscience of the court. A fortiori, if the first judge can change his mind after denying summary judgment, and change his ruling, a second judge should have and does have the power to do so as well. Corporacion De Mercadeo Agricola v. Mellon Bank Int'l 608 F.2d 43, 48 (2d Cir.1979).

      . With certain exceptions not applicable here, "... New York has long held that employment for an indefinite term is terminable at the will of either party at any time, for any reason, or for no reason at all.” Gorrill v. Icelandair/Flugleidir, 761 F.2d 847 (2d Cir. 1985).


source: Caselaw Access Project

author: BARTLETT, District Judge.

license: Public Domain

text:
    Vernon CLICK, Plaintiff, v. BOARD OF POLICE COMMISSIONERS, et al., Defendants.
    No. 82-0459-CV-W-8-9.
    United States District Court, W.D. Missouri, W.D.
    May 28, 1985.

      Gerald H. Rosen, Kansas City, Mo., for plaintiff.
    Neal L. Millert, Kansas City, Mo., for defendants.
   ORDER

BARTLETT, District Judge.

Based on a citizen’s complaint and subsequent investigation, the Chief of Police of the Kansas City, Missouri, Police Department (the KCPD) assessed a three-day disciplinary suspension against plaintiff for the use of unnecessary force in the performance of his duties. Plaintiff asserts a claim under 42 U.S.C. § 1983 for deprivation of procedural due process guaranteed by the Fourteenth Amendment and asks the Court to declare the KCPD disciplinary procedures unconstitutional. Defendants have filed a motion for summary judgment asserting that plaintiff does not have a claim under 42 U.S.C. § 1983 for deprivation of procedural due process under the Fourteenth Amendment because a) plaintiff does not have a constitutionally protected liberty or property interest; and b) even if plaintiff possesses a constitutionally protected liberty or property interest, he was afforded the minimum procedural due process required by the Fourteenth Amendment to the United States Constitution.

In addition, defendants assert that summary judgment should be granted because defendants have qualified, official, sovereign, and good faith immunity and because the Court lacks subject matter jurisdiction. These issues were not briefed by either party and will not be considered in this Order.

Rule 56(c), Federal Rules of Civil Procedure, provides that summary judgment shall be rendered if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” In ruling on a motion for summary judgment, it is the Court’s obligation to view the facts in the light most favorable to the non-moving party and to allow the non-moving party the benefit of all reasonable inferences to be drawn from the evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Inland Oil and Transport Co. v. United States, 600 F.2d 725, 728-28 (8th Cir.1979), cert, denied 444 U.S. 991, 100 S.Ct. 522, 62 L.Ed.2d 420 (1979).

If there is no genuine issue about any material fact, summary judgment is proper because it avoids needless and costly litigation and promotes judicial efficiency. Roberts v. Browning, 610 F.2d 528, 531 (8th Cir.1979); United States v. Porter, 581 F.2d 698, 703 (8th Cir.1978). However, summary judgment is an extreme remedy which should not be granted, unless defendant has established his right to judgment beyond controversy. Ozark Milling Co. v. Allied Mills, Inc., 480 F.2d 1014, 1015 (8th Cir.1975); Oskey Gasoline and Oil Co. v. Continental Oil Co., 534 F.2d 1281, 1285 n. 9 (8th Cir.1976).

FACTS

Rule 56(e), Federal Rules of Civil Procedure, provides that

[W]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in the rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

Defendants’ motion is supported by an affidavit from Norman Caron, Chief of Police, which sets forth certain facts and identifies certain documents. Plaintiff, Vernon Click, has neither filed an affidavit nor referenced specific facts in the record showing that there is a genuine issue of material fact. Therefore, the facts presented properly by defendants will be used in ruling the motion.

Plaintiff was a police officer with the Kansas City, Missouri, Police Department (KCPD) at the time the incident giving rise to this lawsuit occurred. Defendant, the Board of Police Commissioners (Board), is the governing body of the KCPD. Defendant, Norman Caron, the Chief of Police and chief administrative officer of the KCPD, was responsible to the Board for the proper administration of the police department.

The Office of Citizen Complaints (OCC) was established by the Board of Police Commissioners to accept citizens’ complaints, initiate investigations and advise the Chief of Police whether a citizen’s complaint has been substantiated. The Chief of Police, not the OCC, is responsible for determining what disciplinary action, if any, should be imposed.

According to the written procedures, a citizen’s complaint can be lodged at any police facility and is then forwarded to the OCC and to the supervisor or officer in charge of the person against whom the complaint has been made. The OCC Director then notifies the Chief of Police that a citizen’s complaint has been filed. The Chief of Police notifies the appropriate bureau commander who notifies the division commander. Pursuant to General Order 80-4, the division commander is responsible for notifying the police officer involved and his supervisor.

A citizen’s complaint is referred by the OCC to the Internal Affairs Division (IAD) for investigation. IAD may use any recognized investigative method to investigate the allegations contained in the citizen’s complaint. There is no requirement in General Order 80-4 that the officer charged with misconduct be given an opportunity to present his version of the incident. Pursuant to General Order 80-4, IAD may take “signed written statements from members who are the subject of an incident____” IAD sends the results of the investigation to the OCC.

The OCC classifies each complaint as conciliated, substantiated, unsubstantiated, unfounded, or closed and forwards its finding to the Chief of Police. A “substantiated” complaint means the police officer acted in violation of the Code of Ethics, Rules of Conduct, or a written departmental directive. An “unsubstantiated” complaint means the investigation produced insufficient information to clearly prove or disprove the allegations. The remaining classifications are not involved in this lawsuit.

Upon receipt of the OCC determination, the Chief of Police reviews the case, the investigation conducted, and the findings of the OCC Director. The Chief of Police may either concur or not concur with the determination of the OCC Director.

If the Chief of Police concurs with the finding of the OCC that the allegations are substantiated, the Chief notifies the OCC Director. The OCC Director sends written notification of the outcome to the Chief of Police, the bureau commander, IAD, the Personnel Division, and the complainant. A record of the complaint and disposition is entered in the police officer’s permanent personnel file.

The Chief of Police may direct the police officer’s bureau commander and/or division commander to recommend disciplinary action. The Chief of Police determines the appropriate disciplinary action and notifies the OCC Director and the police officer. An officer who is suspended by the Chief of Police for less than fifteen days is not permitted to appeal to the Board of Police Commissioners.

If there is new or previously undisclosed information pertaining to the complaint, the police officer may request reconsideration of the findings of the OCC. Unless the findings of the OCC are changed, the police officer may not request that the Chief of Police reconsider the discipline imposed.

At any time after the citizen’s complaint is filed, the police officer who is the subject of the complaint, his attorney, the complainant, or the complainant’s attorney has the right to inspect the investigation file.

On December 11, 1981, a citizen’s complaint against plaintiff was filed with the OCC alleging the use of excessive force during an arrest. On December 15, 1981, plaintiff’s division commander was notified that a citizen’s complaint alleging that plaintiff had used excessive force had been filed against plaintiff. Pursuant to General Order 80-4, plaintiff should have been promptly notified of the charges against him by his division commander. Whether plaintiff was in fact notified of the charges by his division commander is not established. During the IAD investigation plaintiff gave a statement to Investigator V.L. Davis.

The OCC found the allegation of excessive force substantiated. After the OCC determination, plaintiff’s supervisor prepared an incident report concluding that plaintiff had been verbally discourteous, but had not used unnecessary force. Plaintiff acknowledged receipt of the incident report by signing the report. Plaintiff’s supervisor, shift commander, division commander and bureau commander each recommended discipline. On March 81, 1982, the Chief of Police suspended plaintiff for three days without pay for the use of unnecessary force in the performance of his duties.

DEPRIVATION OF DUE PROCESS'

In order to determine whether plaintiff has been deprived of a constitutionally protected right to procedural due process, a two-step analysis is required: 1) did the discipline imposed deprive plaintiff of a liberty or property interest protected by the Fourteenth Amendment; and 2) if so, did the manner in which the discipline was imposed include constitutionally mandated procedural protections. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569-70, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972).

Suspension deprived plaintiff of a constitutionally protected property interest

Plaintiff asserts that he has been deprived of a property interest in the loss of wages and benefits during the period of suspension. In Roth, 408 U.S. at 577, 92 S.Ct. at 2709, the Supreme Court stated:

To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it____
Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.

“A property interest in employment can, of course, be created by ordinance, or by an implied contract. In either case, however, the sufficiency of the claim of entitlement must be decided by reference to state law.” Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976) [footnote omitted]. A public employee who is entitled under state law to employment unless there is good cause for dismissal has a constitutionally protected property interest in continued employment. Cleveland Board of Education v. Loudermill, — U.S. —,— — —, 105 S.Ct. 1487, 1492-93, 84 L.Ed.2d 494 (1985); Hughes v. Whitmer, 714 F.2d 1407, 1414 (8th Cir.1983). Under state law, Kansas City police officers who have served at least six months probationary service are appointed to the police force and are subject to discharge or removal only for cause. Mo.Rev.Stat. § 84.600. Therefore, a police officer has a property interest in continued employment.

A commissioned police officer’s right to continued employment includes the right to the office and its emoluments such as rank and compensation. Moore v. Damos, 489 S.W.2d 465, 468 (Mo.App.1972); accord Pfefer v. Board of Police Commissioners, 654 S.W.2d 124, 127 (Mo.App. 1983); Heidebur v. Parker, 505 S.W.2d 440, 444 (Mo.App.1974). A police officer who is suspended for three days loses compensation and other emoluments of the office for the period of suspension. Therefore, involuntary temporary suspension deprives a police officer of a constitutionally protected property interest.

As long as a property deprivation is not de minimis, its gravity is irrelevant to a determination of whether due process should be afforded. Goss v. Lopez, 419 U.S. 565, 576, 95 S.Ct. 729, 757, 42 L.Ed.2d 725 (1975). The length and consequent severity of a deprivation should be considered in determining what procedural protections are constitutionally required, not in determining whether the deprivation entitles plaintiff to due process. Id. Plaintiff’s three-day suspension was not de minimus because he was deprived of compensation for the period of the suspension. Vorbeck v. McNeal, 560 S.W.2d 245, 250 (Mo.App. 1977); Moore, 489 S.W.2d at 468. Therefore, plaintiff was deprived of a property interest when he was suspended without pay for three days. Spencer v. Board of Police Commissioners, 564 F.Supp. 1222, 1230 (W.D.Mo.1983).

Plaintiff was deprived of a constitutionally protected liberty interest.

To prevail on his claim that he has been denied a constitutionally protected liberty interest, plaintiff must demonstrate that defamation by a public official has injured his good name, reputation, honor, or integrity and that as a result of the defamation “a right or status previously recognized by state law was distinctly altered or extinguished.” Paul v. Davis, 424 U.S. 693, 711, 96 S.Ct. 1155, 1165, 47 L.Ed.2d 405 (1976). Defamation, when coupled with suspension from a right created by the state, is a denial of a constitutionally protected liberty interest. See Goss, 419 U.S. at 574-76, 95 S.Ct. at 736; Paul v. Davis, 424 U.S. at 710-712, 96 S.Ct. at 1165-66.

The conclusion that plaintiff used excessive force and the consequent disciplinary action were made a part of plaintiffs permanent personnel record. If the charges were false and the disciplinary action was improper, plaintiffs standing with fellow officers could be damaged and it could interfere with his opportunity for promotion. See Goss, 419 U.S. at 574-75, 95 S.Ct. at 736. As previously discussed, a police officer suspended for three days is deprived of state created property rights in compensation and other emoluments of continuous employment. Therefore, plaintiff has been deprived of a constitutionally protected liberty interest.

Procedural Due Process

Having determined that plaintiff was entitled to due process, “the question remains what process is due.” Goss, 419 U.S. at 577, 95 S.Ct. at 738. “We turn to that question, fully realizing as our cases regularly do that the interpretation and application of the Due Process Clause are intensely practical matters and that ‘[t]he very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.’ ” Goss 419 U.S. at 577-78; 95 S.Ct. at 738 [citations omitted].

. In Goss the Supreme Court considered the constitutionality of an Ohio statute that permitted school officials to suspend students for up to ten days without a hearing. After determining that both property and liberty interests were implicated by a suspension of ten days or less, the Court stated that at a minimum the Due Process Clause requires

that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case. The fundamental requisite of due process of law is the opportunity to be heard, a right that has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to ... contest. At the very minimum, therefore, students facing suspension and the consequent interference with a protected property interest must be given some kind of notice and afforded some kind of hearing. Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified. [Citations omitted.]

Goss, 419 U.S. at 579, 95 S.Ct. at 738; see also Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976).

The timing and content of the notice and the nature of the hearing depend on the appropriate accommodation of the competing governmental and private interests involved. Goss, 419 U.S. at 579, 95 S.Ct. at 738-39; Mathews, 424 U.S. at 335, 96 S.Ct. at 903.

Plaintiff’s interest here is to avoid an unfair or mistaken interruption in his employment.

The Due Process Clause will not shield him from suspensions properly imposed, but it disserves both his interest and the interest of the State if his suspension is in fact unwarranted. The concern would be mostly academic if the disciplinary process were a totally accurate, unerring process, never mistaken and never unfair. Unfortunately, that is not the case, and no one suggests that it is. Disciplinarians, although proceeding in utmost good faith, frequently act on the reports and advice of others; and the controlling facts and the nature of the conduct under challenge are often disputed. The risk of error is not at all trivial, and it should be guarded against if that may be done without prohibitive cost or interference with the educational process.

Goss, 419 U.S. at 579-80, 95 S.Ct. at 739.

On the other hand, the KCPD has a substantial interest in immediate, effective discipline “to promote efficiency, foster loyalty arid obedience to superior officers, maintain morale, and instill public confidence in law enforcement.” Hughes v. Whitmer, 714 F.2d 1407, 1419 (8th Cir. 1983) (quoting from Gasparinetti v. Kerr, 568 F.2d 311, 315-16 (3rd Cir.1977), cert, denied, 436 U.S. 903, 98 S.Ct. 2232, 56 L.Ed.2d 401 (1977)). “[A] police department has a substantial interest in developing ‘discipline, espirit de corps, and uniformity’ within its ranks so as to insure the safety of persons and property.” Hughes, 714 F.2d at 1419.

A suspension without pay for three days is an important disciplinary tool for less serious infractions of departmental policies. To require extensive, formal hearings before a suspension of three days could be imposed would needlessly distract the KCPD from its law enforcement function. Shawgo v. Spradlin, 701 F.2d 470, 476 (8th Cir.1983), cert, denied,. 104 S.Ct. 404, 78 L.Ed.2d 345 (1983). On the other hand, like the school district in Goss, the KCPD can operate with acceptable efficiency and discipline and still afford minimum Due Process requirements. “No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case agairist him and opportunity to meet it.” Goss, 419 U.S. 580, 95 S.Ct. at 739.

Therefore, a KCPD police officer may not be constitutionally suspended from employment without pay unless the officer is given 1) oral or written notice of the charge; 2) an explanation of the basis for the charge; and 3) an opportunity to present his/her side of the story. Usually notice of the charges should be given and an opportunity to be heard should be afforded before the suspension is imposed. However, if an officer’s continued presence on the job presents a danger to persons or property or a threat to discipline or the law enforcement mission of the KCPD, the necessary notice and hearing should follow as soon as possible. Goss, 419 U.S. 582-83, 95 S.Ct. at 740.

The instant case presents considerations at least as compelling as those in Goss for not construing the Due Process Clause to require a formal hearing with an opportunity to secure counsel, to confront and cross-examine witnesses supporting the charge or to call witnesses to support the officer’s version of the incident. To impose even truncated trial-type procedures might well divert personnel and resources from the KCPD’s law enforcement mission and reduce the effectiveness of the prompt imposition of discipline without substantially reducing the risk of erroneous disciplinary action.

On the other hand, requiring effective notice and informal hearing permitting the student to give his version of the events will provide a meaningful hedge against erroneous action. At least the disciplinarian will be alerted to the existence of disputes about facts and arguments about cause and effect. He may then determine himself to summon the accuser, permit cross-examination, and allow the student to present his own witnesses. In more difficult cases, he may permit counsel. In any event, his discretion will be more informed and we think the risk of error substantially reduced.

Goss, 419 U.S. at 583-84, 95 S.Ct. at 741.

In Count I of plaintiff’s complaint he asserts that he was deprived of rights guaranteed to him by the Due Process Clause because plaintiff was not given adequate notice of the complaint against him and an opportunity to be heard.

On the record before the Court, whether plaintiff received effective notice of the charge is disputed. The OCC policy and disciplinary procedures require that the police officer complained against be promptly advised that a citizen complaint has been filed. General Order 80-4. Defendant by affidavit establishes that plaintiff’s commanding officer was notified of the citizen’s complaint against plaintiff and that, pursuant to departmental policy, plaintiff “should have been” promptly notified of the citizen’ complaint and the charges against him. The imprecise language of defendant’s affidavit could be interpreted several ways, e.g., plaintiff was given notice; defendants do not know whether plaintiff was given notice; or plaintiff was not given notice. For purposes of ruling defendants’ motion for summary judgment, plaintiff is entitled to the benefit of all reasonable inferences. The most favorable inference for plaintiff is that he was not given notice of the citizen’s complaint. Therefore, a material issue of disputed fact exists as to whether plaintiff received proper notice of the charges against him.

There is no express requirement in General Order 80-4 that the officer complained against be given an opportunity to present his/her version of the incident. The absence of such a provision is a serious deficiency in the written procedures. However, in this case plaintiff was given an opportunity to present his version of the incident when IAD took his statement. Assuming that plaintiff had notice of the charge before the statement was taken and assuming that plaintiff was given a full and fair opportunity to tell his side of the story, the minimum requirements of due process may well have been satisfied. The determination whether these assumptions are justified must await the development of a more complete record.

Because of deficiencies in the factual record, summary judgment on Count I is inappropriate.

In Count II of plaintiff’s complaint he alleges that the Grievance Committee Procedure is unconstitutional because it fails to provide an officer complained against: 1) right to counsel; 2) the right to appeal charges brought by citizens; and 3) the right to appeal the severity of the disciplinary action. For the reasons stated above, the Due Process Clause does not require these procedural protections when an officer is suspended for ten days or less. Therefore, summary judgment against plaintiff and in favor of defendant on Count II of plaintiff’s complaint is appropriate.

For the reasons stated above, it is hereby ORDERED that:

1) defendants’ motion for summary judgment on Count I is denied; and

2) defendants’ motion for summary judgment on Count II is granted against plaintiff and in favor of defendants on plaintiff’s complaint.

      . The following cases have been consolidated for resolution of common legal issues: Webb v. Board of Police Commissioners, Case No. 82-0196-CV-W-9; Callahan v. Board of Police Commissioners, No. 82-0474-CV-W-4-9; Louden v. Board of Police Commissioners, No. 82-0563-CV-W-1-9; Faherty v. Board of Police Commissioners, No. 82-0564-CV-W-1-9; Coughlin v. Board of Police Commissioners, No. 82-0562-CV-W-9; Click v. Board of Police Commissioners, No. 82-0459-CV-W-8-9; LaSalle v. Board of Police Commissioners, No. 82-0817-CV-W-9. Although many of the legal issues are identical, each case has a different factual background. Therefore, a separate decision will be rendered in each case.

      . The official policies for disciplinary action, handling citizen complaints, and grievance procedures are set forth in the following documents:
      1) General Order 80-4 summarizes the Citizen Complaint Procedure;
      2) Policy No. 425 sets forth the policy and procedures of the KCPD pertaining to the Office of Citizen’s Complaints (OCC);
      3) Policy No. 601 summarizes the KCPD policy pertaining to disciplinary action;
      4) General Order 77-24 sets forth the KCPD Grievance Procedure effective as of October 28, 1977;
      5) General Order 79-12 rescinds General Order 77-24 and sets forth the KCPD Grievance Procedure effective as of July 18, 1979;
      6) Policy No. 301 summarizes the policy of the KCPD pertaining to the Grievance Committee; and
      7) Policy No. 405 summarizes the policy of the KCPD pertaining to grievances.

      . The Chief of Police has the power to promote, discipline, and suspend all police officers. Mo. Rev.Stat. § 84.500. Any such action other than suspensions of less than 15 days is reported to the Board. Id. A police officer who is adversely affected by action taken by the Chief of Police, other than suspensions of less than 15 days, is entitled to a public hearing before the Board. Mo.Rev.Stat. § 84.610. There is no statutory procedure for review of suspensions of less than 15 days.
      Before discharge or removal, police officers are entitled to notice of the charges against them, the right to appear before the Board of Police Commissioners at a public hearing to defend against the charges, the right to confrontation of witnesses, and the right to counsel. Id. After such a hearing, the Board has the authority to remove, suspend, reprimand, or impose a fine. Id. The decision of the Board is final. Id.

      . A contrary view was taken by the Missouri Court of Appeals, Kansas City District, when it stated: "The commission of a police officer — revocable for cause at any time [§ 84.600] — does not create a property interest in that status but does give rise to emoluments which are entitled to the protection of the statutes." Sowder v. Board of Police Commissioners, 553 S.W.2d 525, 528-29 (Mo.App.1977). The same court that decided Sowder subsequently adopted the holding in Moore without referring to its decision in Sowder when it stated: “A police officer, when he is commissioned under statutory or code provisions for dismissal only after notice, hearing and a finding of cause, acquires a right or title to the office and its emoluments and such privilege is entitled to protection. Moore v. Damos, 489 S.W.2d 465, 468 (Mo.App.1972)." Pfefer, 654 S.W.2d at 127.


author: CEREZO, District Judge.

text:
    Dr. Ricardo CABARGA-CRUZ, Plaintiff, v. FUNDACION EDUCATIVA ANA G. MENDEZ, INC., Defendant.
    No. Civ. 79-2507CC.
    United States District Court, D. Puerto Rico.
    May 30, 1985.

      Teresa M. Lube-de-Bothwell, Hato Rey, Puerto Rico, for plaintiff.
    A.J. Amadeo-Murga, Hato Rey, Puerto Rico, for defendant.
   OPINION AND ORDER

CEREZO, District Judge.

This is an action that was removed from the Commonwealth Courts by defendant Fundación Educativa Ana G. Méndez, Inc., owner and administrator of a junior college, on October 24, 1979 stating as grounds for removal that the complaint charged a violation of Section 301 of the Labor Management Relations Act, 29 U.S.C. Section 185. The 301 violation charged has to do with the demotion of plaintiff, a college professor, from a permanent employee to a temporary one and the refusal to rehire him in alleged violation of the employment contract between the parties. According to the pleadings, this contract included the “statutes and regulations and/or Faculty Manual” and “Article VII of the Collective Bargaining Agreement existing for the years 1977 to 1978 between the Fundación and the Asociación de Maestros Universitarios.” Plaintiff moved to remand suggesting that he could amend the complaint to delete the reference to the collective bargaining agreement. He claimed that his action was not for violation of a collective bargaining contract, although some incidental references were made, or of a federal substantive law but, rather, one seeking compliance of contractual obligations assumed, not under a collective bargaining contract but pursuant to regulations and statutes of the Puerto Rico Junior College. This was denied on January 23, 1980 on grounds that a party may not amend a complaint to defeat jurisdiction that existed at the time of removal. On October 30, 1980, this ruling was reaffirmed in an Opinion and Order. On that same date the Court denied a pending motion for summary judgment filed by defendant because there were material issues of fact related to plaintiff’s employment classification, whether he exhausted the remedies provided by the labor contract and whether he was entitled to pursue an action in tort against his employer for an alleged illegal retention of part of his salary. A pretrial conference was held on April 26, 1982, several evidentiary objections were raised and the parties were allowed to file memoranda of law on these matters. The case was to be set for trial. On July 12, 1982, however, defendant filed a second motion for summary judgment essentially contending that plaintiff’s grievance had not been exhausted and that he had not alleged unfair representation or any other situation that could justify departing from the exhaustion requirement. On July 26, 1982 plaintiff filed his opposition supported by sworn statements alleging that the employer’s conduct constituted a repudiation of the grievance procedures it was now claiming he had to exhaust and made reference to the duty of fair representation. On March 24, 1983 plaintiff filed a motion for summary judgment urging that it was undisputed that defendant’s termination of his employment and the change in his classification were done in violation of the employment contract which included the collective bargaining agreement but that the exhaustion issue was not material. As to this, plaintiff claims that he had contractual rights under the faculty rules which existed before the collective bargaining agreement was adopted and, thus, the regulations and the rights derived therefrom, which did not provide a grievance procedure, were in force after the labor agreement was repudiated by defendant. He cites an Opinion and Order of the Superior Court of Puerto Rico, San Juan Part, issued on April 29,1982 in Arsenio E. Perez, etc., v. Fundacion Educativa Ana G. Mendez, in which this conclusion was reached. Defendant replied again raising the classification of plaintiff’s employment and the exhaustion requirement but this time admitted that there were issues of fact as to these matters which precluded the request for summary judgment. On December 12, 1983 defendant requested leave to amend its answer to include the defense of statute of limitations since the Supreme Court had decided in June 1983 DelCostello v. International Broth, of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983) which held that the six month limitations period in Section 10(b) of the National Labor Relations Act governs claims against both the employer and the union. Following this reasoning it filed a dismissal motion because the complaint was filed on October 24, 1979, more than six months after plaintiff’s last day of work on December 22, 1978. Plaintiff argued that the limitations defense had been waived, that DelCostello should not be applied retroactively and that an amendment would require additional discovery and delay to explore the issues of fact as to the applicability of the period established in DelCostello to this case. He requested that, if the limitations period were found to apply, the case be remanded to the Commonwealth court. Defendant relied on Graves v. Smith’s Transfer Corporation, 736 F.2d 819 (1st Cir.1984) which establishes that the DelCostello period should apply retroactively. It justified the delay in raising the defense arguing that it could not advance an affirmative defense of time limitation prior to DelCostello.

We do not doubt that defendant’s belated motion for summary judgment was unwarranted given the previous rulings on these matters and the advanced stage of the litigation when it was filed. In the ordinary course of events we would not hesitate to impose sanctions on the party or attorney who delays proceedings through abuse of the rules. However, given the unusual sojourn of this case among the judges of this Court and plaintiff’s own summary judgment motion, factors which undoubtedly have also contributed to the delay, no sanctions will be imposed at this time. The parties and their attorneys are warned that further conduct of this nature will be severely sanctioned.

Although the fact that both parties have revealed the existence of material issues of fact and the absence of any factual development requiring a reexamination of prior rulings would ordinarily suffice to deny without further explanation these motions, given the inordinate amount of time already consumed by this case and the inability of the parties to focus on the significant factual and legal issues plus the additional questions raised by the petition to amend, we shall elaborate on the principal controversies with the hope that they will be defined before the trial.

It should first be noted that defendant’s contention that Cabarga should also have sued his union for unfair representation in order for the claim against the employer to survive the exhaustion requirement, is not supported by the caselaw. The factual context of the outcome of plaintiff’s grievance has not changed since our October 1980 ruling denying defendant’s first motion for summary judgment because there were genuine issues of fact on this matter. Any determination on whether plaintiff exhausted his collective bargaining agreement remedies or whether he had to exhaust them, given defendant’s alleged conduct, is an issue that requires an evidentiary hearing. It is well settled in the federal common law of labor relations that exhaustion of the procedures provided by a private labor relations agreement is not required when the employer’s act amounts to a “repudiation of the contract and the attendant dispute settlement procedure.” Smith v. Pittsburgh Gage and Supply Company, 464 F.2d 870, 875 (3rd Cir.1972). In addition, exhaustion is not required when resort to it would be futile, when the union has arbitrarily refused to file a grievance or when it has handled it perfunctorily. Id.

Some of the exceptions to the exhaustion requirement involve the union and the resulting unfair representation claim and others involve the employer and a breach of contract claim. This case is essentially a breach of contract, Section 301 suit brought directly against the employer. There was no need to make an unfair representation claim against the union. If defendant felt that the union was responsible for plaintiffs employment difficulties it should have brought it to the case. The record reveals, however, that defendant withdrew its defense that the union should be held accountable to plaintiff. This new posture, in any event, is not supported by the applicable caselaw. See: id. and gen. Vaca v. Sipes, 386 U.S. 171, 185, 87 S.Ct. 903, 914, 17 L.Ed.2d 842 (1967); Hayes v. New England Millwork Distributors, Inc., 602 F.2d 15 (1st Cir.1979).

On the principal issues, it is first necessary to clarify the temporary/permanent classification given to plaintiffs employment which appears to be the focus of remaining issues. Plaintiffs employment has been described in a haphazard way. The terminology loosely used by the parties throughout their discussion of the employment classification is misleading. A better approach would require a review of the classifications of employment contained in those documents which allegedly form part of plaintiffs employment contract. These documents establish that the professors that defendant may hire can fall in different categories. One of these is the “temporary lecturer” with no rights under either the CBA or the regulations. CBA, Article IX, Handbook at p. 53. Temporary lecturers are defined by the regulations as professors assigned a part-time program for whom compensation was determined according to the number of hours taught. These “lecturers” are not considered part of the classified teaching personnel and are given special contracts, depending on defendant’s needs. Id. On the other hand, an “instructor” is defined as a professor that carries a full program of classes or its equivalent in duties. Handbook at p. 44. The type of contract to which these “full program instructors” may be entitled to are either: a) a nine-month contract (August 23-May 31), b) a ten-month contract (August-May plus one summer session) or c) a twelve-month contract with a one-month vacation. Id. at 38. These contracts are awarded depending on the instructor’s years of service to defendant’s institution. Id. “Instructors” have also many fringe benefits such as retirement, life and medical insurance, refund of expenses for educational travels and continued education. Id. at 39-41. They also have certain notification, rehiring and termination of employment rights. If defendant does not intend to reappoint a faculty member he shall be so notified no later than thirty (30) days before the end of the term of employment. Statutes, Article V Section 30, Handbook at p. 41. If during the first year of service the instructor performs satisfactorily, the contract will be renewed. Handbook, at p. 44. Members of the faculty (instructors) serve for the first two years on a probation basis and are then evaluated to determine if promotion is warranted. Handbook, at 42; Statutes, Article VIII, Section 3. A favorable evaluation of these first two years is necessary in order to continue the classification steps provided by defendant. Thereafter, the instructor “will receive annual contracts that will be renewed during three consecutive years, as long as the instructor keeps on performing satisfactorily the duties of his position.” Handbook at p. 44. After five years of service the instructor is again evaluated, this time to determine if permanency (tenure) is awarded. Handbook, at 45; Statutes, Article V Section 32. An instructor with permanency is one with at least a master’s degree and five years of satisfactory service. The next step in the teacher classification is that of Associate Professor which requires at least one year as permanent instructor and, finally, professor which requires at least three years as associate professor, ten years of university level teaching and a favorable evaluation. Thus, the crucial determination to be made in this case is whether plaintiff was an “instructor” with certain rights of notice before renewal and evaluations upon completion of annual and bi-annual terms of employment or a “temporary lecturer” with no such rights under the contract of employment. The record reveals that the facts necessary to arrive at this determination are still shrouded by controversy.

A comparison of correspondence between plaintiff and defendant and other documents in the record with the employment regulations just mentioned makes one wonder whether defendant was aware of its own regulations when making the employment contracts. The documents which reveal plaintiff’s employment relationship with defendant’s college institution contain conflicting terminology and conditions which, unless clarified by additional evidence, do not establish either of the parties’ positions. In a letter dated March 30, 1976 defendant’s President, José F. Méndez, informs plaintiff Cabarga that pursuant to Article VII, Sections 1 and 2 of the CBA, he is naming him “instructor” with a monthly salary of $1,000, effective retroactively to November 1,1975. In a document called “Requisición de Nombramiento o Contrato” dated June 14, 1976, plaintiff’s position is defined as “lecturer,” the appointment as “temporary,” and compensation is awarded on a monthly basis and for approximately one month (June 1 to July 1, 1976). On December 2, 1976 another similar letter was sent to plaintiff by defendant’s President informing him that pursuant to the CBA he was extending plaintiff an appointment as instructor with a monthly salary of $1,110.00, effective August 23, 1976. Neither in this letter nor in the one dated March 30, 1976 does defendant indicate a date of termination. A memorandum dated May 19, 1977 sent by the Director of the Spanish Institute to defendant’s Dean of Academic matters states that plaintiff has performed satisfactorily and recommends him favorably for the next academic year 1977-78. In a document entitled “Request for Verification of Employment” dated November 3, 1977 defendant’s Executive Personnel Director says that plaintiff is an instructor and a regular employee. On November 16, 1977 President Mendez, again referring to the CBA, informs plaintiff that he is extending him an appointment as “instructor” but this time adds the word “temporary” and limits the appointment to the period of August 18, 1977 to December 20, 1977 with a monthly salary of $1,100.00. On February 17, 1978 the President informs plaintiff that he is giving him another temporary appointment as instructor for the period of January 23 to May 19, 1978 with a monthly salary of $1,029.00. However, in a memorandum dated May 31, 1978 the Director of defendant’s Junior College Spanish Institute again informs the Dean of Academic matters that plaintiff has performed his duties as Spanish instructor satisfactorily and recommends him favorably for the next academic year 1978-79. In a letter-contract dated July 18, 1978 the President extends an appointment to plaintiff as Lecturer on a partial basis for the institution’s second summer session of 1978. On October 27, 1978 plaintiff writes to defendant’s Personnel Director, Luis Muñoz-Veloso, mentioning the fact that he was assigned only two classes for that year even though he had been a regular professor with twelve-month appointments since the 1976-77 academic year, complaining of a $300.00 reduction in his salary for an alleged excess payment and seeking clarification of these matters. Muñoz-Veloso answered on November 6,1978 saying that Cabarga had a temporary appointment as instructor for August-December 1977 and another such appointment for the period of January 1978 to May 1978 but the payroll division had erroneously included him in the payroll for the months of June and July 1978 and that plaintiff still owed the overpayment for these months. Plaintiffs next step was to file a grievance with the Asociación de Maestros Universitarios which was never ruled upon by the grievance committee and, eventually, the present civil action.

From these documents it appears that plaintiffs first employment contract with defendant was either a temporary appointment for six months (November 1, 1975 to May 1976) or a sui generis “instructor” appointment for six months instead of the nine month minimum established by the regulations. Or perhaps, the retroactive effect was merely a reference to the date when the CBA became effective, November 1, 1975, and not to the duration of the term of employment whereby plaintiffs first contract would have been on a semester basis (January 1976 — May 1976). This seems to be defendant’s view as it appears from the sworn statement of its Personnel Director dated November 7,1979 indicating that plaintiff “was contracted in writing by the institution on an academic semester by academic semester basis from 1976 to 1978, including some summer sessions in between, always classified and designated as temporary lecturer or temporary instructor____” However, this does not reflect with accuracy the correspondence between plaintiff and defendant for the period of August 1976 to November 1977. The December 2, 1976 letter which appoints plaintiff retroactively to August 1976 does not classify his employment as temporary nor does it signal the duration of this appointment. Was this then a nine-month appointment as provided by the regulations entitling plaintiff to certain rights or was this another semester appointment as stated by Mr. Muñoz-Veloso under oath? If it was a semester appointment, why did the Director of defendant's Spanish Institute, presumably plaintiff’s immediate supervisor, rate him favorably on May 1977 at the end of the 1976-77 academic year and recommend him favorably for the next academic year 1977-78? Why was plaintiff again evaluated at the end of the 1977-78 academic year and recommended favorably for the next academic year if he was being hired on a semester by semester basis. We have found no requirement for the evaluation of “temporary lecturers” in the regulations and, if one was developed as a matter of practice, the question lingers as to why it was not limited to a semester. Then again why would Muñoz-Veloso sign a document for the Federal National Mortgage Association in which he classifies plaintiff as a regular employee and then state under oath that he was a temporary employee. Given these contradictions it is obvious that the documents do not speak for themselves and that there is some explaining to do in order to understand their true meaning.

The issue of exhaustion of the grievance procedure is closely tied to defining the type of employee that plaintiff was because his status must be established to see if the collective bargaining agreement and its exhaustion requirements apply to him or not. However, even if the agreement were applicable, we would still have to determine whether the exhaustion was necessary given the conduct of defendant described in plaintiff’s affidavits which seem to depict an abandonment by the employer of the grievance procedure. Clarification of plaintiff’s employment classification is also necessary to determine his contractual rights, even assuming only the Rules and Handbook were applicable, as plaintiff contends. There is also the question of the claim of illegal retention of salary. Although defendant has not contested this and it appears to be prohibited by Puerto Rico labor laws, see: P.R.Laws Ann., Title 29 Section 175, the extent of the damages caused by this illegal retention of salary is still in controversy. Defendant’s crossclaim for overpayment is related not only to the determination of plaintiff’s damages resulting from the illegal retention but also to the clarification of his employee status during the alleged period of overpayment. These factual controversies have to be clarified in an evidentiary hearing.

Likewise, it is important to determine the nature of this employment relationship through the years to establish exactly when, if at any time, defendant actually changed plaintiff’s employee status. For example, it appears from the President’s November 16, 1977 letter that Cabarga’s status was changed to a temporary lecturer, starting August 1977. If this were so, assuming the memorandum recommending plaintiff favorably as a one year (9-10 month) employee is discarded, then we would have to inquire whether plaintiff was given the thirty-day notice required by the handbook because his first nine or ten-month appointment was not going to be renewed and he was to be hired on a semester basis. The question of when this alleged violation to plaintiff’s employment rights occurred brings us to the other matter raised by the Motion to Amend the Answer to the Complaint and to Dismiss filed December 12, 1983: that the complaint should be dismissed because it is time barred regardless of whether the issues of fact now in controversy are solved in plaintiff’s favor.

The timeliness argument is based on DelCostello v. International Brotherhood of Teamsters, et al., 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983) which holds that, in suits against an employer for breach of a collective bargaining agreement and against a union for unfair representation, the applicable statute of limitations is the six month period provided by section 10(b) of the National Labor Relations Act, 29 U.S.C. Section 160(b), for the filing of unfair labor practice charges before the National Labor Relations Board. DelCostello solved a long standing dispute among lower federal courts regarding the applicable statute of limitations for “hybrid” Section 301 cases, brought simultaneously against the employer for breach of contract and against the union for unfair representation. It expressly rejected state limitations for vacating arbitration awards which it had adopted only two years before in United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981). In our case, the introduction of the limitations defense would be a futile endeavor.

DelCostello found unsatisfactory the prior practice of borrowing analogous state statutes of limitations for this particular type of labor case. A hybrid 301 unfair representation claim involves a challenge to a consensual process that federal labor law is chiefly designed to promote — the private settlement of disputes under the collective bargaining agreement and, unlike the claim in Auto Workers v. Hoosier Corp., 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966) which comprised only the violation of the contract by the employer, “it has no close analogy in ordinary state law.” Del-Costello, 462 U.S. at 165, 103 S.Ct. at 2291, 76 L.Ed.2d at 489. The Court concluded that state limitations periods for vacating arbitration awards failed “to provide an aggrieved employee with a satisfactory opportunity to vindicate his rights under Section 301 and the fair representation doctrine.” That opportunity was provided by Section 10(b) of the National Labor Relations Act which establishes a six-month period for filing charges of unfair labor practices to the National Labor Relations Board. However, the warning was clear that the holding “should not be taken as a departure from prior practice in borrowing limitations periods for federal causes of action in labor law or elsewhere.” Id,., 462 U.S. at 171, 103 S.Ct. at 2294, 76 L.Ed.2d at 493. DelCostello does not rule out the adoption of analogous state statutes of limitations for other types of labor cases. DelCostello simply chooses between a state limitations period and a federal statute of limitations, namely Section 10(b) of the National Labor Relations Act. The choice is made according to the type of labor dispute. The applicable state limitations rule in Hoosier is still considered by the Court in DelCostello to have been the right choice in that particular situation because Hoosier was a straight forward breach of contract suit under Section 301, not a hybrid Section 301/unfair representation claim as Mitchell and DelCostello. The practicalities of this particular type of litigation and the fact that it involves the consensual processes protected by federal labor law — the formation of the agreement and the private settlement of disputes under it — made the court turn to federal law and away from state law to borrow the limitations period. This is expressly stated by the Court:

We stress that our holding today should not be taken as a departure from prior practice in borrowing limitations periods for federal causes of action, in labor law or elsewhere. We do not mean to suggest that federal courts should eschew use of state limitations periods anytime state law fails to provide a perfect analogy. See, e.g., Mitchell, 451 US, at 61, n 3, 67 LEd2d 732, 101 SCt 1559. On the contrary, as the courts have often discovered, there is not always an obvious statelaw choice for application to a given federal cause of action; yet resort to state law remains the norm for borrowing of limitations period. Nevertheless, when a rule from elsewhere in federal law clearly provides a closer analogy than available state statutes, and when the federal policies at stake and the practicalities of litigation make that rule a significantly more appropriate vehicle for interstitial lawmaking, we have not hesitated to turn away from state law.

DelCostello, 462 U.S. at 171, 103 S.Ct. at 2294, 76 L.Ed.2d at 493.

Reference was also made in DelCostello to Justice Stewart’s (author of Hoosier) concurring opinion in Mitchell arguing that “the factors that compelled adoption of state law in Hoosier did not apply to suits under Vaca and Hines____” Id. This basic distinction in the application of the period of limitations adopted by DelCostello has been made by several circuit courts. In Derwin v. General Dynamics Corp., 719 F.2d 484 (1st Cir.1983) our Circuit rejected the application of the DelCostello six-month period to a suit brought by a union to confirm an arbitration award. It read DelCostello as applicable only to certain 301 suits and not to the one before it:

Despite the application of a uniform limitations period to employee suits, the Court’s detailed analysis of state limitations period, together with its explicit reliance on Hoosier, show that its decision was not intented to weaken the ordinary presumption of state law primacy in resolving section 301 limitations questions.

Derwin at p. 487. In O’Hare v. General Marine Transport Corp., 740 F.2d 160,167 (2d Cir.1984), the Court declined to apply the DelCostello six-month period considering the case to be more akin to an ordinary breach of contract claim. Id. It agreed with the district court that the “DelCostello holding turns on the particular nature of the duty of fair representation action and cannot reasonably be expanded to all section 301 claims that involve facts which might also have established an unfair labor charge.” Id. at 168. See also: Farr v. H.K. Porter Co., Inc., 727 F.2d 502, 505 (5th Cir.1984); United Broth, of Carpenters & Joiners of America, Local 1020 AFL-CIO v. FMC Corp., 724 F.2d 815, 817 (9th Cir.1984).

The case before us involves an ordinary breach of contract claim rather than the hybrid variety of DelCostello. The complaint contains no claim against a union for unfair representation. The concerns voiced in DelCostello on the need for stability and finality in arbitration and the ensuing disruptive effect that a collateral proceeding against a union for unfair representation might cause are simply not present in this case. The possibly detrimental effect that a long period of limitations may have on these concerns are not as manifest in our type of labor case as it is in the DelCostello, hybrid suit. The lack of an arbitration proceeding or award does not place the employee in the advantageous position pointed out in DelCostello of having had a specialized forum evaluate and sort out the elements of the unfair labor charge. Rather, the position of the employee here is similar to the Hoosier type of unfair labor claim more closely related to an ordinary breach of contract claim and the ensuing longer state period of limitations associated with these claims.

We do not advance which term in Puerto Rico law is the most appropriate for this sort of claim, compare: P.R.Laws Ann., Title 29 Section 246d and Title 31 Section 5297 with L.R.B. v. P.R. Telephone Co., 107 DPR 76 at 79-82 (1978) but simply rule that the six-month term adopted in DelCostello satisfactory to the realities of that type of litigation is not suitable to this one.

Accordingly, defendant’s Motion to Amend the Answer to the Complaint filed on December 12, 1983 is DENIED for the amendment to include the limitations defense would be futile. See: Forman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); Massarsky v. General Motors Corp., 706 F.2d 111 (3rd Cir. 1983) cert, denied, — U.S. —, 104 S.Ct. 348, 78 L.Ed.2d 314; Vargas v. McNamara, 608 F.2d 15 (1st Cir.1979).

Defendant’s Motion for Summary Judgment of July 12, 1982 and Motion to Dismiss of December 12, 1983 are hereby DENIED. Plaintiff’s Motion for Summary Judgment of March 24, 1983 is also DENIED.

SO ORDERED.

      . Defendant contends this was due to an overpayment and has counterclaimed for additional amounts supposedly owed by plaintiff.

        . Defendant argues that it did not include a limitations defense in its answer due to the state of the law at the time. It also forgot to include the defense of laches in its answer, available at that time, and had to introduce it later by way of its first motion for summary judgment. This argument also fails to explain convincingly its silence on this matter during the years before June 1983 when the law was in flux. As the Circuit Court pointed out in Graves:

      We do not agree that DelCostello erupted from the Supreme Court firmament like a bolt out of the blue. Mitchell [referring to United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981)] carried within it three clear portents of a change to come____

        Id. at 821. The foresight on the development of the law required of litigants in the retroactivity analysis is equally applicable to those who would justify a late amendment to pleadings on the need to incorporate a recent legal development or change. They should at least be diligent in detecting the possibility of change in the law so as to minimize the hardship and prejudice on the other parties that a late amendment will cause. Cf. Strauss v. Douglas Aircraft Co., 404 F.2d 1152, 1155 (2d Cir.1968) ("It seems to require little argument that where the party seeking to amend wishes to raise a defense of limitations long after the answer was first filed, a court would be remiss if it did not carefully balance the effects of such action for it is manifest that risk of substantial prejudice increases in proportion to the length of defendant’s delay in seeking the amendment ... the party wishing to raise the defense is obliged to plead the Statute of Limitations at the earliest possible moment. Certainty of success is not an essential element in determining whether to set forth the affirmative defense in a pleading. If the defense lurks in the case, vacillation can cause the other party irreparable injury.’’)

      . This case was transferred from our docket in September 1982 and reassigned on October 1, 1984.

      . We are referring to the collective bargaining agreement between defendant and the Asociación de Maestros Universitarios (CBA), the Statutes of the Puerto Rico Junior College (Statutes) and the Faculty Handbook of the Puerto Rico Junior College (Handbook). It should be noted that none of these documents has been submitted in its entirety and that we are referring in this opinion to photocopies of extracts provided by the parties. There also appear to be two editions of the rules covering different years.

      . The CBA’s Article IX states that defendant has "the right to appoint temporary personnel to cover those necessities of the service that would arise for a short term, not more than an academic semester. The personnel so appointed shall not be covered by the provisions of this agreement.” Article VIII, Section 1 of the CBA indicates that all new teachers should receive a nine-month appointment the first year, and a ten-month appointment the second year, except those appointed for a semester or less as temporary or substitute employees.

      . It should be noted that there is some variance between the copies of the Statutes and Handbook provided by defendant and those copies provided by plaintiff since they refer to different editions.

      . Although it could be argued that the proper course for future proceedings given this determination would be to assign it to a labor arbitrator, we believe the particular circumstances of this case render the usual and recommended arbitration preference as an unwise choice to deal with the litigation at this stage. See: Smith, 464 F.2d at 876.

      . Defendant apparently read into plaintiff’s references to due process some sort of civil rights action and has discussed the issue of state action. However, we believe plaintiff himself has admitted that there are no civil rights claims in his complaint and it is based only on breach of a labor law agreement and illegal retention of salary.