author: LATCHUM, Senior District Judge.

text:
    Calvin L. BERRY, Plaintiff, v. E.I. DUPONT DE NEMOURS AND COMPANY, Defendant.
    Civ. A. No. 83-348-JLL.
    United States District Court, D. Delaware.
    Dec. 31, 1985.

      Arthur Inden and Barry M. Willoughby of Young, Conaway, Stargatt & Taylor, Wilmington, Del., and Richard B. Weiss, Los Angeles, Cal., of counsel, for plaintiff.

      Richard D. Allen of Morris, Nichols, Arsht & Tunnell, Wilmington, Del., and Alan G. Burton of E.I. duPont de Nemours & Co., Inc., Wilmington, Del., of counsel, for defendant.
   OPINION

LATCHUM, Senior District Judge.

The plaintiff in this action, Calvin L. Berry (“Berry”), while a resident of Delaware, filed an action for declaratory, injunctive, and monetary relief pursuant to 28 U.S.C. §§ 2201 and 2202 and Title VII of the Civil Rights Act of 1964, codified as amended at 42 U.S.C. § 2000e et seq. (“Title VII”) and pursuant to 42 U.S.C. § 1981 (“Section 1981”) against the defendant, E.I. duPont de Nemours and Company (“DuPont”), a Delaware corporation. The plaintiff, who is black, alleges that the defendant unlawfully discriminated against him because of his race in violation of these acts by denying the plaintiff a transfer and ultimately discharging him, by failing to assist him in locating outside employment, and by failing to provide certain benefits and services normally accorded to employees prior to termination. (Docket Item [“D.I.”] 1.) The plaintiff seeks fifteen million dollars in punitive and compensatory damages. (Id.) In an order dated October 30, 1984 (D.I. 31), the Court denied the defendant’s motion for summary judgment. (D.I. 23.) The Court heard testimony from the parties and their witnesses in a two-day, non-jury trial on October 15 and 16, 1985. (D.I.’s 41-43.) This opinion constitutes the Court’s findings of fact and conclusions of law in accordance with Fed.R.Civ.P. 52(a).

I. BACKGROUND FACTS

Berry began his employment with DuPont on February 1, 1969, in El Monte, California. (Berry, A-2.) Berry next moved to San Francisco where he was a commercial assistant for two years. The plaintiff received a raise but otherwise this was not a promotion. Berry next moved to Wilmington, Delaware, in a “lateral transfer,” again with a raise, as Customer Service Representative. (Berry A-3.) In this position, Berry handled the orders either by mail or by phone for eleven western states. Customer Service Representatives had to ensure that the proper material was shipped in a timely fashion, in the correct quantity, to the proper location, and to ensure that customers would receive invoices. They were responsible for any adjustment on the invoices. Customer Service Representatives received on-the-job, but no formal, training from DuPont. (Berry, A-4.) Berry was in this position for approximately a year and a half.

Berry was then promoted to Product Coordinator and received an increase in pay. The position of Product Coordinator is in the same division, the Sales Order Center, as Customer Service Representative. As Product Coordinator, Berry handled methanol products and their derivatives. If there were product shortages, Product Coordinators would determine which customers would get the product, their order of preference, the shipping point of the product, and the carrier. Berry’s superiors in this position were Bob Frank, Bob Matthias, and R.N. Selby. He held this position for approximately six months. (Berry, A-5.)

Berry was next promoted to Customer Service Supervisor. In this position, Berry’s duties were supervising and training customer representatives, making trips to resolve problems with salesmen, and attending sales meetings. This promotion also was accompanied by an increase in pay. Berry was in this position for approximately a year and a half.

In 1978, Berry was transferred to the Physical Distribution Group (“PDG”), where the difficulties which are the subject of his complaint occurred. (Berry, A-6.) Berry was told that this was a lateral transfer. As Distribution Coordinator, he was responsible for methanol products and their derivatives and for the transportation of these products. Distribution Coordinators had to ensure that the proper construction materials and size of equipment were being used and to coordinate terminals, plants, and shipping points. (Berry, A-7.) Ron Sheff served as the plaintiffs first supervisor for approximately eight months. Berry had approximately six co-workers when he first came into the division. (Berry, A-8 to A-9.)

Approximately six months after his arrival, Sheff gave the plaintiff a “good” rating in his performance review. DuPont uses five rankings in evaluating employees: outstanding, excellent, good, satisfactory, and unsatisfactory. (Berry, A-10.) During a performance review, the plaintiff would discuss areas of improvement with the supervisor. Concerning this particular review, the plaintiff stated at the trial that areas of improvement included becoming more involved with the terminals and plants and “in the day-to-day operations,” because he was new with the group. There were no scheduled weekly meetings but meetings were called once a week or every two weeks when there were “areas of concern.” (Berry, A-ll.) At this time there were only group meetings, not one-on-one meetings, between the plaintiff and Sheff. (Berry, A-12 to A-13.)

Sheff left the division around April of 1979 and was replaced by J.P. Sipe. Sipe was a Product Coordinator already when he was transferred to this position. (Berry, A-12.) As a co-worker, the plaintiff himself testified that he had gotten along with Sipe and did not have any problems with him. (Berry, A-12 to A-13.)

At the time Sipe was transferred to the position of Distribution Service Supervisor, Berry was being considered for a transfer. Sipe reviewed with Sheff the performance of the people he would be supervising. Sheff informed him that in Berry’s last performance appraisal, Berry had received a “good” rating. (Sipe, A-80.) Berry’s knowledge of the operations of the Sales Order Center in the District Sales Offices was termed very strong. (Sipe, A-80 to A-81.) However, in Sipe’s discussions with Bob Young, his superior, Young had indicated concerns about Berry’s ability to “handle the job,” and stated that Berry had “special skills that could be used in the Export Order Center.” (Sipe, A-82 to A-83.) At the export group, the plaintiff would have been a Customer Service Representative.

When Berry was informed of the transfer, he told Sipe and Young that he thought that that job would have been a demotion and that he did not want to take the job. (Berry, A-14.) Berry discussed this transfer with Young’s superior, Frank Rummel, the manager of the Physical Distribution Group. Rummel sent Berry over to see the export manager, who confirmed that he would be a Customer Service Representative. The plaintiff then went to see Selby, the Marketing Services Director. The plaintiff remained in the position as Distribution Coordinator and did not hear anymore about the transfer. (Berry, A-15 to A-16.)

During the late 1970s, the general management of the department of Physical Distribution became increasingly concerned about the rapidly escalating costs of the department’s activities. (Selby, C-13.) These costs were having an adverse effect on the department’s earnings. The management responsible for PDG was asked to inquire into measures that could bring the costs under control. Parallel Planning Corporation (“PPC”) was retained as outside consultants in the second half of 1978. After investigating the group, PPC found that PDG was very effective in assuring the safe transportation of chemical products and was filling the needs of the customers very well. However, PPC found that PDG was not doing a very good job in cost control. The procedures were lax, and cost control was relegated to a low priority. (Selby, C-13 to C-15.)

In June 1980, Sipe gave Berry his first performance review as Berry’s supervisor. (Sipe, C-23; DX 1.) In this review, Berry’s performance was downrated to “satisfactory” from “good.” Although Berry “effectively handled the day-to-day problems” and “contributed positively to the group by providing guidance to other coordinators,” Sipe stated that Berry had to improve in other areas as coordinator. Specifically, Berry had to improve in development and implementation of assignment programs, because he was very weak in planning ahead, in time management, and in written communications. (DX 1.)

Sipe’s next action concerning Berry was the formulation of an improvement program in July of 1980. The improvement program, which outlined steps to improve Berry’s performance, reiterated Berry’s inability to develop and implement assigned programs in general and his inability to effectively manage his time as principal concerns. These points were discussed with Berry following a performance appraisal update on July 25,1980. Sipe noted the action plans and the dates by which the plans were to be completed for Berry to be rated satisfactory. PDG’s reorientation by PPC meant that the acceptable performance six months ago would not be acceptable now. The report, which summarized the discussion with Berry, also noted that if the action plans were not completed in an acceptable manner, Berry stood a “very good chance of being rated unsatisfactory.” (DX 3.) Berry was also given a written summary of the performance appraisal update, dated July 28, 1980. (DX 4.)

In a meeting with Todd Kuchler, Manager of Physical Distribution, in September of 1980, the plaintiff was asked to prepare a list of methanol distribution items and to develop a program to address these items. In a memo to Berry from Sipe, Sipe noted that he had not yet received either a list or draft of the list. The memo noted that Berry’s performance concerning this list was not acceptable. (DX 6.)

In September 1980 Berry wrote to Kuchler requesting to be transferred. (PX 11; Kuchler, C-53.) That memo recounted certain criticisms Berry had received from Sipe and Young in which Berry was told his position was in jeopardy. After receiving that request, Kuchler met with the manager of Personnel and Industrial Relations to discuss the available options. He then met with Berry (Kuchler, C-53 to C-54.) Kuchler told Berry that it might be possible to transfer him to a Physical Distribution job at a plant site or, alternatively, to the Sales Order Center. (Kuchler, C-54 to C-56.) Berry, however, was not interested in either opportunity. (Kuchler, C-56.) Kuchler concluded that it was unlikely, given Berry’s performance, that another department would accept him for transfer. (Kuchler, C-55.) Thus, Berry remained in the Physical Distribution Group.

Sipe left his position as Berry’s supervisor sometime in October of 1980. Sipe testified at the trial that had he been asked to rate Berry’s performance during the period of June 1980 through the fall of 1980, he would have had to rate him unsatisfactory. (Sipe, C-25.) Sipe also testified that race was not a factor in his evaluation of Berry’s performance. (Sipe, C-25 to C-26.)

In November 1980, Steven Rogers became Berry's supervisor. Rogers testified that during his tenure as Berry’s supervisor, Berry’s performance was unsatisfactory. (Rogers, C-26.) In general, Berry’s performance was unsatisfactory because he did not exercise leadership in his job position, failed to generate appropriate cost reductions, lacked problem-solving skills, and failed to meet commitments on numerous occasions. His writing was also unacceptable. (Rogers, C-26 to C-27.) In addition, in 1980 Berry generated only about $380,000 in savings while the average for the total group of seven Distribution Coordinators was over one million dollars. This was the lowest in the group and significantly below the average. (Rogers, C-29.) Rogers also stated that Berry’s performance was the lowest in his group of Distribution Coordinators. (Rogers, C-33.)

Rogers testified that during his tenure as Berry’s supervisor, Berry’s performance did not improve. (Rogers, C-36.) In December of 1980, Rogers wrote a memo to Berry summarizing two reviews he had had with Berry in November and December of 1980. In the summary, Berry’s current performance was rated “unsatisfactory.” Berry had to improve in order to maintain his current position. Further, although in his November review, Berry had been required to develop two action plans, he had not included any new plans in his weekly summaries since November. The report stated that Berry’s failure to follow through with the assigned work on the action plan, was unacceptable. The report also stated that Berry had made a commitment to issue final reports in November on two programs and that to date he had not fulfilled these commitments. The report stated that in this respect also Berry’s failure to meet commitments was unacceptable. (DX 9.)

Berry’s next performance review with Rogers was in March of 1981. (Rogers, C-36.) Again, Berry’s performance was rated unsatisfactory. The report noted the below-average $380,000 that Berry had achieved in cost savings ideas in 1980. The report noted that Berry had achieved several things including major tankcar fleet sizings, adding the Houston plant as a methanol shipping point to meet the seasonal business needs, and assisting with conversion of common carriers at Belle. The report, however, noted the continuing deficiency of Berry in the areas that had already been mentioned, such as developing cost savings, initiating leadership of distribution activities, and improving quality of action plans. (DX 10.)

In July 1981, Rogers had a meeting with Berry, which was summarized in a memo to Berry from Rogers dated July 2, 1981. (Rogers, C-36.) In the discussion, Berry and Rogers agreed on specific commitments which Berry would meet. These commitments were additional to the routine daily follow-up expected from coordinators. (DX 12.) In November 1981, Rogers wrote a memo to Berry, again summarizing a performance discussion on November 12, 1981. The summary lists the general problems with specific examples in which Berry’s performance was rated unacceptable. Major areas of difficulty included meeting time commitments, problem solving, and writing. Concerning writing, the report states that Berry’s writing required the most rewriting and editing in the group. Rogers stated in the summary that he did not see any improvement or indication that Berry was learning from the editing. (DX 13.)

Since Berry’s performance failed to improve, Rogers had a discussion with Young, his superior, in which he told Young that he had not seen any improvement in Berry during the year and that in his opinion it was in the best interests of DuPont to locate another position for Berry. Rogers stated at the trial that race was not a factor in his evaluations of Berry nor was race a factor in any actions he took with respect to him. (Rogers, C-36 to C-37.)

On January 4, 1981, Carl Antonson, PDG Manager at the time, informed Berry that he was going to be transferred to the Sales Order Center. (Berry, A-46.) Young had requested Antonson to find a suitable replacement and a suitable new job for Berry which they believed that Berry could perform adequately. (Young, C-44.) Toward the end of the summer of 1981, Antonson had developed serious doubts that Berry was capable of performing at a satisfactory level as a Distribution Coordinator. By fall he had decided that it was unlikely that Berry’s performance would ever be satisfactory in this position. Antonson spoke with Bob Buch in the Sales Order Center, which is now the Customer Service Center, about returning Berry to a job that was similar to the one he had held previously. They ultimately discovered a vacancy in the Customer Service Center. They believed that based on Berry’s previous experience he would do a good job in that position. (Antonson, C-75.)

The organization of the Sales Order Center differed at the time that Berry was originally there from the time he was again offered a job there. In 1978 the organization consisted chiefly of Customer Representatives who were “non-exempt” salary employees. (Selby, C — 17.) “Exempt” employees are exempt from the Fair Labor Standards Act of 1937. (Horn, C-60.) These Customer Representatives reported to Service Supervisors, which Berry was at the time of his departure from the Sales Order Center. The Service Supervisors were at Exempt Level 3 in the DuPont salary system. The Service Supervisors reported to Customer Order Supervisors at Level 4 who in turn reported to a manager, who was a couple levels higher. In 1981, when Berry was offered a position as Customer Representative, Customer Representatives had been elevated from non-exempt salary positions to exempt positions at Level 2A. The positions of Service Supervisor and Customer Order Supervisor, which had been at Levels 3 and 4, respectively, had been combined into the single position of Customer Service Supervisor, thus eliminating one layer of supervision in the organization and moving the position of Customer Representative from a non-exempt to an exempt salary position. Thus, the level of Customer Service Supervisor in late 1981 was Level 4. Berry’s level in late 1981 in the PDG was Level 3. (Selby, C-17 to C-18.) Thus, the proposed transfer for Berry from Physical Distribution Coordinator to Customer Representative in 1981 would have been only one-half level down, from Exempt Level 3 to Exempt Level 2A. The transfer would not have involved any cut in salary or in benefits either then or in the future. The effect of the proposed transfer on Berry’s future earnings would have been entirely dependent upon his performance in the new position. (Selby, C-19.)

Antonson spoke with Berry in January 1982 about this position and Berry refused to accept it. (Antonson, C-75 to C-76.) After at least two other discussions and after Berry had talked to Buch about the job, and had decided not to take it, Anton-son urged Berry to go home and think about it for a couple of days. (Antonson, C-76.) Berry returned and said that he still had decided not to take the job, and Antonson told him again that there was no job for him in PDG. (Antonson, C-76 to C-77.) Berry then cleaned out his desk and left. (Antonson, C-77.) It was Anton-son’s decision that Berry would not have a job if he did not accept the position in the Sales Order Center. {Id.)

DuPont has a service called the Outplacement Service. Berry, who had been offered another job at DuPont, was not offered this service because he did not qualify for it. The Out-Placement Service is used only for individuals for whom there is not a job available at DuPont. The job offered to Berry was a “legitimate opening that needed to be filled” and was not a “make-work job.” (Antonson, C-77.) The company believed that Berry could perform that job because he had handled similar positions previously. Antonson testified that Berry’s race was not a factor in his actions toward him. (Antonson, C-77 to C-78.)

Berry testified that after he was released from the company he began seeking other employment “right away.” (Berry, A-55.) He contacted the local Wilmington office of the EEOC on January 6, 1982, the same day that he left DuPont. {Id.) However, in order to file charges properly, Berry had to go to the Philadelphia office of the EEOC. Berry’s filing of the discrimination charge is dated September 22, 1982. (PX 6.) Berry received a Notice of Right To Sue from the EEOC dated February 22, 1983. The Notice stated that there was no reasonable cause to believe that the allegations made in Berry’s charge were true. (PX 7.) The form went on to inform Berry that if he decided to sue DuPont he must file a complaint within ninety days from the receipt of his notice of the right to sue; otherwise his right to sue was lost. {Id.) The envelope containing this form is dated March 28, 1983, with a handwritten note, “received March 29th.” (PX 8.) Berry testified that he received the notice on March 29. (Berry, A-58.)

After his dismissal from DuPont, Berry began searching for work in Wilmington and was turned down by every company. (Berry, A-59.) Only in July of 1983 did Berry begin work, when he worked for a couple of months at a collection agency. Finally, he obtained permanent employment in Los Angeles in April of 1984. {Id.)

II. ANALYSIS

The plaintiff has offered little in this case in the way of substantive evidence of discrimination. In addition, the defendant has raised legitimate questions concerning the statutes of limitations for the two claims under Title VII and Section 1981. The Court will address the procedural issue of the statutes of limitation first since its resolution in favor of the defendant may make unnecessary consideration of the plaintiff’s claims on their merits.

A. Statutes of Limitation Under Title VII and Section 1981

1. Filing Period for Title VII

The defendant argues that the plaintiff did not timely file a charge of discrimination under Title VII with the EEOC and that his claim under that law is therefore barred. (D.I. 45 at 21.)

Generally, a party may prosecute an action under Title VII in district court only if he has first filed a charge of discrimination with the EEOC within 180 days of the alleged unlawful employment practice. 42 U.S.C. § 2000e-5(e). However, in a so-called “deferral” state, which has a local or state agency that has been instituted to hear charges of employment discrimination, the period for filing charges with the EEOC is somewhat different. 42 U.S.C. § 2000e-5(c). A complainant in such a deferral state must file a charge with the EEOC within 240 days of the last alleged act of employment discrimination. The ninety-day deferral period, during which filing with the federal agency must be delayed, is automatically added to the original period of 180 days — whether or not the claimant files a charge of discrimination with the local or state agency.

Delaware is a “deferral” state, and it is in that state where the plaintiff alleges that acts of discrimination occurred. Therefore, at the maximum, the plaintiff had 240 days within which to file charges with the EEOC. The plaintiff would have conceivably had more than 240 days for the filing if he had filed charges with Delaware’s Department of Labor, but he did not do so.

The plaintiff in this case filed a charge of discrimination with the EEOC on September 22,1982. (D.I. 39, ¶ 3(1); PX 6.) The last act of the defendant’s alleged violation occurred on January 6, 1982, when Berry’s status as an employee of DuPont was “discontinued." Thus, the plaintiff did not timely file a charge of discrimination with the EEOC because he filed with the EEOC more than 240 days after the last alleged act of discrimination occurred — 259 days.

In his complaint, the plaintiff alleges that the unlawful employment practices occurred after the termination of the plaintiffs employment with DuPont by DuPont’s failure to assist the plaintiff in locating outside employment through the defendant’s “Out-Placement Service.” (D.I. 1, 1110.) The claim may be timely under the “continuing-violation” doctrine, although the plaintiff has not argued or briefed this issue. Under the continuing-violation doctrine, a plaintiff’s action is timely with respect to any act of the defendant if this act is part of a continuing course of prohibited conduct. In such a case, the plaintiff will be allowed to litigate statutory violations within the limitations period and all preceding violations that are part of that course of conduct. Bronze Shields, Inc. v. New Jersey Dep’t of Civil Serv., 667 F.2d 1074, 1080-82 & nn. 16 & 17 (3d Cir.1981), cert. denied, 458 U.S. 1122, 102 S.Ct. 3510, 73 L.Ed.2d 1384 (1982); Van Heest v. McNeilab, Inc., 624 F.Supp. 891, 896 (D.Del.1985).

The plaintiff offers no substantive evidence to support his conclusory statement that the defendant failed to assist him in locating outside employment through DuPont’s Out-Placement Service because of his race. (D.I. 44 at 1-2.) The undisputed evidence shows that plaintiff was not qualified for the services provided by the Outplacement program. Howard F. Horn, Jr., a consultant in the Personnel Relations Section in DuPont’s Employee Relations Department, was responsible for DuPont’s Out-Placement program. Horn testified at trial that only employees whose performance in their current position was unsatisfactory and to whom DuPont could not offer a suitable job would qualify for the service. (Horn, C-58 to C-59.) A qualifying employee is removed from his job for sixty to ninety days and paid full salary and full benefits. DuPont would pay the necessary costs in finding a new job, such as preparation of a resume, secretarial assistance, and telephone calls. (Id. at C-59.) Berry was not provided these services because DuPont did have a suitable alternative job available for him. (Horn, C-60 to C-61.) There was no other job available for Berry at DuPont apart from the position as Customer Representative in the Sales Order Center. (Horn, C-63.) Horn also testified that to his knowledge no employee in Berry’s circumstances had received Out-Placement services. (Horn, C-61.) The plaintiff has offered no evidence to contradict Horn’s sworn testimony.

There is therefore no evidence of any unlawful employment practices in DuPont’s refusal to provide the plaintiff with the services of the Out-Placement program. DuPont decided not to provide the program to the plaintiff as the result of standard procedure and was not made because of racially discriminatory reasons. Without at this juncture reaching the merits of the plaintiff’s other claims of employment discrimination, the last alleged act of discrimination occurred on January 6, 1982. Thus, even under the continuing-violation doctrine, the plaintiff did not file timely his charges of discrimination under Title VII. His claims under that act are therefore barred.

2. Statute of Limitations For Actions Under Section 1981

The defendant argues that Delaware’s two-year statute of limitations for personal injuries is the appropriate limitations period for actions filed under Section 1981 and therefore the plaintiff’s claims of alleged acts of discrimination prior to June 7, 1981, two years before the complaint was filed, are barred. (D.I. 1; D.I. 45 at 21-22.) If the defendant’s argument stands, then the plaintiff can only pursue its action under Section 1981 for the period June 7, 1981 to January 6, 1982.

The defendant correctly cites recent case authority of the Third Circuit and the Supreme Court. In Wilson v. Garcia, - U.S. -, 105 S.Ct. 1938, 1949, 85 L.Ed.2d 254 (1985), the Supreme Court held that a state’s statute of limitation for personal injuries arising from tortious acts applies to an action of a Section 1983 plaintiff in a district court which is located in that state. The present case involves Section 1981, not Section 1983. However, the Third Circuit, construing Wilson v. Garcia, has held that the same reasons for selecting state statutory limitations periods for personal injuries for Section 1983 actions— the federal interests in uniformity, certainty, and the minimization of unnecessary litigation as well as the nature of a federal civil rights remedy — hold also for actions under Section 1981. Goodman v. Lukens Steel Co., 777 F.2d 113, 119-20 (3d Cir.1985).

Nevertheless, the Court finds that under the continuing-violation doctrine, the plaintiff’s claims against the defendant for actions prior to June 7,1981 are not barred. The plaintiff will be allowed to litigate and receive a remedy if successful on the merits for all claims that are part of the continuing violation because he has filed his charges within the permissible period. The continuing-violations doctrine is applicable to Section 1981 actions as well as to actions pursued under Title VII. The Supreme Court has recognized the applicability of the doctrine in the context of both actions. See Delaware State College v. Ricks, 449 U.S. 250, 256-57, 101 S.Ct. 498, 503-04, 66 L.Ed.2d 431 (1980) (in order to fall within limitations periods of the civil rights laws plaintiff should identify alleged discriminatory acts that continued until or at the time of actual termination). Several circuits have applied the federal continuing-violation rule to Section 1981 claims. Chung v. Pomona Valley Community Hospital, 667 F.2d 788, 791 (9th Cir.1982); Allen v. Amalgamated & Transit Union Local 788, 554 F.2d 876, 880-81 (8th Cir.), cert. denied, 434 U.S. 891, 98 S.Ct. 266, 54 L.Ed.2d 176 (1977); Macklin v. Spector Freight Systems, Inc., 478 F.2d 979, 994 (D.C.Cir.1973). This Court has recognized that the continuing-violation doctrine applies to both Title VII and Section 1981. Guilday v. Department of Justice, 451 F.Supp. 717, 723 (D.Del.1978).

Although the plaintiff has not presented this argument, the Court finds that the acts of discrimination alleged in the complaint are part of a continuing series of acts of the same nature and that all such acts since September 1, 1980 — the beginning of the acts alleged in the complaint (D.I. 1, 1IÍÍ8-9) — should be examined on the merits. The last act of the alleged discrimination on January 6, 1982 falls well within Delaware’s two-year statute of limitations for personal injuries, 10 Del.C. § 8119, which the Court must apply in Section 1981 actions. Goodman, at 118-20 (construing Wilson v. Garcia’s holding on Section 1983 actions to apply to Section 1981 actions).

B. Plaintiffs Allegations of Discrimination Under Section 1981

In order to establish employment discrimination under Section 1981, the plaintiff must show that the employer bore a racially discriminatory animus against the employee and that this animus manifested itself in some challenged action, whether dismissal, failure to promote, or failure to hire. Lewis v. University of Pittsburgh, 725 F.2d 910, 914 (3d Cir.1983), cert. denied, - U.S. -, 105 S.Ct. 266, 83 L.Ed.2d 202 (1984). In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the Supreme Court established the proper allocation of proof in a private action challenging employment discrimination. Id. at 800, 93 S.Ct. at 1823. The complainant must carry the initial burden of establishing a prima facie case of racial discrimination. If the complainant carries this burden, the burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the challenged action. Id. at 802, 93 S.Ct. at 1824. The third step under the McDonnell analysis is to determine whether by a preponderance of the evidence the legitimate reasons offered by the defendant were not its true reasons, but a pretext for discrimination. McDonnell, 411 U.S. at 804, 93 S.Ct. at 1825. The ultimate burden of persuasion that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981).

In the second step of this analysis, where the burden shifts to the defendant to rebut the presumption of discrimination, the defendant need not persuade the court that it was actually motivated by the reasons it offers. “It is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff.” Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 1094. If the defendant carries its burden of production at this second stage, the presumption raised by the plaintiff’s prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity. The factual issue is then framed with sufficient clarity to afford the plaintiff a full and fair opportunity to demonstrate pretext. The plaintiff must show that the proffered reason by the employer was not the true reason for the employment decision. The burden now merges with the ultimate burden of persuasion that the employee was the victim of intentional discrimination. Id. at 255-56, 101 S.Ct. at 1094-95. In essence, the plaintiff’s burden at this level is to show that “but for” the discrimination, the employment decisions attacked by the plaintiff would not have occurred. The plaintiff must show that race was a “but for” cause. McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 282 n. 10, 96 S.Ct. 2574, 2580 n. 10, 49 L.Ed.2d 493 (1976); Lewis, 725 F.2d at 915.

The plaintiff must first present evidence to show a prima facie case of discrimination. The Court has difficulty in finding such evidence either from the testimony given by the plaintiff or by the DuPont witnesses at the trial. The plaintiff has offered several conclusory statements that he was discriminated against. The plaintiff asserts that he was “treated differently by his supervisor” Sipe and by his co-workers in the office because Sipe singled him out. (D.I. 44 at 3.) Plaintiff further testified that he was singled out by his supervisor and treated differently by others because of his race. (Berry, A-31 to A-32; D.I. 44 at 3.) The plaintiff also points out that he was the only black man in his office and for a period of time the only black man in the entire department of PDG. (D.I. 44 at 3.) Prior to plaintiff’s difficulties with Sipe, he received “good” reviews. (Id. at 3-4.) At the trial, the plaintiff also stated that he had several times requested to be transferred out of his department because Sipe “was for some unknown reason trying to discredit” him. (Berry, A-36.) “Regardless of what I did, I did everything they asked me to. do, I filled out all the forms, I attended all the meetings, I took care of all my responsibilities____ All of the complaints came from Mr. Sipe____ I felt that it was him — for some reason he was trying to discredit me.” (Berry, A-35 to A-36.) The only reason Berry could think of for this treatment was his race. (Berry, A-67.)

A plaintiff may establish a prima facie case of discrimination by showing that other similarly-situated employees of a different race were treated differently from the plaintiff. Here, the plaintiff has shown no evidence that he was treated differently from other similarly situated white employees. He offers only his conclusory statement concerning racial prejudice. The plaintiff’s conclusory assertion that he was treated differently by itself is insufficient to raise an inference of discrimination. Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1186-87 (11th Cir.1984); Brownlow v. General Services Employees, 35 FEP Cases 568, 571 (N.D.Ill.1984). The plaintiff also has shown no direct evidence of racial bias by the DuPont employees whose decisions affected him in his employment. Of the three employees who had the most direct contact with the plaintiff, Sipe, Rogers, and Antonson, the plaintiff points only to Rogers, who he claimed to be racially biased only because he came from Boston, which “is known to be racially biased.” (D.I. 20 at 128.) At trial, all the officials and employees from DuPont under oath stated that racial discrimination played no role at all in their dealings with Berry. In addition, in its decision concerning the plaintiff’s merits for an actionable case, the EEOC concluded that there was no reasonable cause to believe that DuPont had discriminated against the plaintiff. (DX 17.)

The Court finds that the plaintiff has failed to make out a prima facie case of discrimination. The plaintiff has not raised an inference of discrimination from the acts which he points to on the record which, if otherwise unexplained, must be more likely than not based on consideration of impermissible factors. Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978).

Even assuming, arguendo, that the plaintiff has presented such a prima facie case of discrimination, the defendant has effectively rebutted this prima facie case with explicit, legitimate reasons for the decision, first to attempt to transfer the plaintiff, and finally, to terminate his employment. The defendant has demonstrated that the underlying reason for Berry’s difficulties with his position as Distribution Coordinator lay in his own performance in this position. The evidence is well documented that Berry did not perform at an acceptable level, and that for business reasons the defendant was compelled to transfer him to another type of job. The apparent difficulty began when DuPont instituted the cost reduction program in the late 1970s. This new policy changed the standards that DuPont used in evaluating the plaintiff’s performance. The level that plaintiff was currently working became unacceptable. The evidence also shows that far from discriminating against the plaintiff, DuPont diligently attempted to place him in a position which would be of benefit to both the company and to the plaintiff.

Berry’s immediate supervisors, Sipe and Rogers, testified in a very detailed fashion about the specific performance problems of the plaintiff. Young, their supervisor, as well as Young’s own superiors, Selby, Kuchler, and Antonson, fully corroborated the testimony of Sipe and Rogers. In addition, Berry’s supervisors met frequently with him to help him to improve his work, especially his problem-solving and writing difficulties. (DX 2, 14.)

In 1978, the plaintiff was transferred to PDG, the position in which the alleged discrimination occurred. Berry received a standard description of this position about a month after he arrived. (Berry, A-8.) Thus, the plaintiff was well aware of the requirements of the Distribution Coordinator and the established procedures used for evaluating such a position. For example, Distribution Coordinators were responsible for innovation and development of programs to reduce inventory costs. A basic goal was to “keep costs as low as possible consistent with maintaining good delivery service.” (PX 22.) There was testimony concerning how DuPont retained PPC to find means of reducing costs in PDG. (Selby, C-13 to C-15.) PPC found that the group was not doing a very good job on cost control. (Id.) Thus, DuPont legitimately focused on the plaintiff’s demonstrated inability to keep costs down in his planning.

The plaintiff himself testified that at the time that Sipe became the Distribution Service Supervisor in April 1979, as a co-worker, the plaintiff had gotten along with Sipe and did not have problems with him at all. (Berry, A-12 to A-13.) It was apparently only after Sipe’s discussions with Berry’s former supervisor, his experience with Berry on the job, and the institution of the new policy of cost-reduction that Sipe began to rate Berry’s performance as less than satisfactory.

In Sipe’s first performance review of Berry in June 1980, Berry's performance was downrated to satisfactory from good. (Sipe, C-23; DX 1.) Berry was found to be very weak in planning ahead, in time management, and in written communications. (DX 1.) Sipe, in his improvement program for Berry, in July of 1980, outlined specific steps for Berry to improve his performance in these areas. (DX 2.) These points were discussed with Berry following a performance appraisal on July 25, 1980. (DX 3.) Berry was given action plans and dates by which to complete these plans in order to remain rated satisfactory. Sipe informed him that after the reorientation by PPC, acceptable performance six months before would not be currently acceptable. Sipe also told Berry that if he did not perform in an acceptable manner in the specified areas he stood a good chance of being rated unsatisfactory. (DX 3.) Subsequently, Berry’s performance was not acceptable with regard to these specified items.

Rogers, who replaced Sipe as Berry’s supervisor in November 1980, stated at the trial that during his tenure as Berry’s supervisor, Berry’s performance was unsatisfactory. (Rogers, C-26.) This rating actually placed Berry in the bottom one percentile of exempt DuPont employees. (Horn, C-62.) Rogers specified several areas in which the plaintiff's performance was unsatisfactory. For the most part, these areas were identical to the problems identified by Sipe, but included additional areas of concern, such as failing to exercise leadership in his job position and reducing costs. For example, in 1980, Berry generated only about $380,000 in savings while the average for his group was one million dollars. (Rogers, C-29.) Like Sipe, Rogers met with Berry on numerous occasions to discuss ways to improve his performance. Action plans were developed to provide Berry with deadlines and specific goals to meet. Berry either failed to attempt to meet these commitments or his attempt to do so was unacceptáble. One of Rogers’ major concerns was the plaintiff’s written communications, which he found required the most rewriting and editing of the entire group. Rogers did not see any improvement or indication that Berry was learning from the editing. (DX 13.)

DuPont made every effort to maintain Berry as a DuPont employee. Because of the plaintiff’s failure to improve his performance, Rogers discussed with Young his opinion that it was in the best interests of DuPont to locate another position for Berry. For his part, Antonson, Young’s superior, had decided by the fall of 1981 that Berry would never improve in his position as Distribution Coordinator. Anton-son, and Buch in the Sales Order Center, discovered a vacancy in the Customer Service Center. Berry refused to accept a position there when he was offered it, despite repeated attempts to persuade him that this was the only available option for both parties.

The defendant has amply demonstrated that it had legitimate, nondiseriminatory reasons for its decision to remove the plaintiff from his position as Distribution Coordinator. In addition, it was the plaintiff’s decision which ultimately resulted in his termination from DuPont. Since the plaintiff has offered no rebuttal evidence whatsoever to counter the defendant’s evidence of legitimate nondiseriminatory reasons for their approach to the plaintiff, the Court finds that even assuming that the burden of production shifted to the defendant, the defendant has successively rebutted the plaintiff’s prima facie case. Because the Court finds that the evidence does not show that the defendant engaged in discriminatory practices against the plaintiff, the Court need not address the issue of damages raised by the defendant in its brief. (D.I. 45 at 23.)

A judgment in favor of the defendant DuPont will be entered in accordance with the findings of fact and conclusions of law.

      . The Court exercises jurisdiction under 28 U.S.C. §§ 1331 and 1343. Venue is based on 42 U.S.C. § 2000e-5(f)(3) and 28 U.S.C. § 1391.

      . References are to the Trial Transcript (DJ.’s 41-43), by witness, volume of the transcript, and page.

      . Richard Selby, Marketing Services Director at this time, testified that of the four Service Supervisors in the Sales Order Center, Berry ranked at the bottom of the group in relative performance. (Selby, C-12.)

      . Berry received a standard description of the position of Distribution Coordinator about a month after he arrived in the Physical Distribution Group. (Berry, A-8.) The description indicates the broad demands and responsibilities of the Distribution Coordinator. In this position, Berry was responsible for coordination of rail, barge, and truck shipments of an assigned group of chemicals and pigments products and special assignments concerning this coordination. (PX 22.) Distribution Coordinators report to the Distribution Supervisor. Distribution Coordinators are also responsible for “innovation and development of programs designed to improve distribution methods aimed at reducing inventories (cost) and increasing the reliability of deliveries to customers." A prime responsibility of the Distribution Coordinator is the sizing and deployment of tankcar fleets because considerable investment and leasing costs are involved. The objective "is to keep costs as low as possible consistent with maintaining good delivery service.” Thus, cost estimates for equipment and procurement are a part of this responsibility. Another responsibility is the maintenance of railcar, truck, and barge fleets in first class condition at reasonable cost to ensure the safe and efficient delivery of products to customers. Another "prime responsibility” is the scheduling and movement of DuPont’s methanol tanker which supplies the East Coast through the Gulf and the movement of methanol and sulfuric acid barges on the Mississippi and Ohio Rivers.
      Other special assignments in this position are carrier coordination of containerized export and import movements of products and raw materials, the development of freight rates to meet competition, implementation of railcar and truck detention programs, writing and maintaining terminal and warehouse operating manuals, and making surveys of receiving and unloading facilities at customer plants. The Distribution Coordinator also must be on call to handle transportation emergencies, which require considerable knowledge of transportation equipment and the hazardous nature of the products and steps needed to resolve problems. Expertise in government regulations concerning the transportation of chemicals is also a requirement.
      The description also informs the beginning Distribution Coordinator how the complexity of duties and responsibilities of the position involves a wide range of contacts within DuPont because of complaints and other customer problems, as well as frequent contact with district office people, salesmen, plant people, and carriers. The last paragraph of the description states: "It is on the above performance that the encumbent will be rated during his appraisal by his supervisor.” (PX 22.)

      . The plaintiff stated at the trial that although he did not hear anything more about the job transfer, one man had been assigned his job as Distribution Coordinator but had had a heart attack. Berry was thus able to stay in his present position. (Berry, A-16 to A-17.)

      . The improvement program listed four areas that were "not acceptable”: (1) the development and implementation of programs to properly size and deploy methanol and other tankcar fleets; (2) identification, development, and implementation of cost production programs; (3) continued development of terminal operations at Port Elizabeth, New Jersey; and (4) coordination of the carrier switch for tank truck shipments at the Belle Plant. The report also specifically spelled out a time frame in which Berry’s improvement should be gauged: "For Cal to maintain his current position within DuPont, he needs to make a concerted effort to improve his program management and time management skills over the next five months, and to close out those specific programs as per the timing noted below.” The report noted that Berry’s communication skills had a negative impact on his program management skills. The report then specified the programs in which Berry was expected to obtain a satisfactory performance. Finally, the report specified the measurement system to gauge these results in four specific areas. For example, Berry would have to meet time commitments as noted in the action plans. Late compliance was not acceptable and would be noted and reviewed with Berry monthly. Supervisory involvement would have to be minimized in implementing the assigned plans; supervision of Berry for periods greater than thirty minutes would be noted and reviewed with Berry monthly. (DX 2.)

      . In this memo, the plaintiff stated, in pertinent part:
      I was told by R.E. Young and J.P. Sipe on 9/22/80 that my performance was in such disarray that my position as a Distribution Coordinator was at stake. It is virtually impossible for my performance to have deteriorated to this level____ I was told that my products were "out of control____” I was told on 9/22/80 that my performance was not acceptable because I did not produce very much in the way of savings; that I was responsible for the BAD water problem at Chambers Works (explanation attached); and that I had not completed the methyl amine fleet sizing program.
      The plaintiff then stated that he was leaving the group “since Mr. Sipe has such strong feelings against me and the fact Mr. Young is in full support of Mr. Sipe.”
      (PX-11.)

      . As examples of Berry’s deficiencies, Rogers gave the following. A district manager had requested some tankcar freight rate information from the West Coast sales office. Berry was assigned to provide the competitive information on freight rates on DuPont's near ship points. Berry had failed to follow through to the deadline such that a Mr. Van Kirk, the district manager on the West Coast, called Young, Rogers’ boss, to inquire where the information was. Subsequently, Young and Rogers had to do the job in about two or three hours because Van Kirk had a meeting with a customer scheduled and needed the information immediately. (Rogers, C-27.) In another instance, Berry had failed to analyze the' pricing structure to compete with the Canadians on the West Coast. Rogers had provided Berry with specific guidelines on some resources he could use in the analysis. Berry responded that he did not think it was important when Rogers asked him why he had failed to provide the analysis. Again, Young and Rogers had to do the work in place of Berry. (Rogers, C-28.)

      . For example, the methanol tankcar fleet, which was Berry’s responsibility, was an "untapped potential.” The tankcar fleet numbered about 400 railcars. The PDG controlled those cars because they were shipped from the terminals they managed and were not located at a plant. Berry did not analyze the fleet properly to determine what was not needed to run it. (Rogers, C-29.) On another occasion, Berry did not use the correct methodology in calculating butane diole because he had omitted a factor which had been in existence for a long time in calculating the number of cars required for this chemical. (Rogers, C-30 to C-31.) The calculations involve the leasing or owning of unnecessary cars. (Rogers, C-32.)

      . The report also stated that Berry's fleet sizing reports on methanol and butane diole were poor in quality. The presentation of the data in the form of handwritten tables was not justified, and Berry’s failure to include any provision for plant hold time in sizing the butane diole fleet was a major error. Berry was also not meeting his obligations to create cost savings opportunities for methanol products. (DX 9.)

      . This report ended with the overall status as follows: "Your performance rating this year is ‘Unsatisfactory.’ It is our opinion you have not made any substantial progress and improvement this year. As we have discussed, we will continue to provide training and guidance to help you improve your performance." (DX 13.)

      . DuPont had an established policy with regard to "non-exempt” employees who became "exempt” such as Berry who performed poorly in their "exempt" position. The individual had the option, as a “last fallback,” to return to the non-exempt job. (Horn, C-63.) Berry, who for some time had been rated "unsatisfactory" as an exempt employee, ranked at the bottom one-half to one percent of such employees in his performance. (Horn, C-62.)

      . 42 U.S.C. §§ 2000e-5(c) and 2000e-5(e) read as follows:
      (c) In the case of an alleged unlawful employment practice occurring in a State, or political subdivision of a State, which has a State or local law prohibiting the unlawful employment practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, no charge may be filed under subsection (b) of this section by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated, provided that such sixty-day period shall be extended to one hundred and twenty days during the first year after the effective date of such State or local law. If any requirement for the commencement of such proceedings is imposed by a State or local authority other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based, the proceeding shall be deemed to have been commenced for the purpose of this subsection at the time such statement is sent by registered mail to the appropriate State or local authority.
      (e) A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred and notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) shall be served upon the person against whom such charge is made within ten days thereafter, except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earlier, and a copy of such charge shall be filed by the Commission with the State or local agency.

      . See 19 Del.C. § 710 et seq.

      . Had the plaintiff initiated local or state proceedings, he conceivably would have had 300 days to file a charge of discrimination with the EEOC. He would have had less than the maximum 300 days, however, if the local or state proceedings had ended and he had received notice of their termination. In that case, he would have had until the expiration of thirty days after this notice, unless the 300-day period ended first. 42 U.S.C. § 2000e-5(e); Mohasco Corp. v. Silver, 447 U.S. 807, 814 n. 16, 100 S.Ct. 2486, 2491 n. 16, 65 L.Ed.2d 532; Ferguson v. E.I. duPont de Nemours and Co., Inc., 560 F.Supp. 1172, 1190 (D.Del.1983). In his post-trial brief, the plaintiff erroneously misreads Mohasco to interpret the provisions on timely filing under Title VII as extending the period for filing in deferral states from 180 days to 300 days, without qualification. (D.I. 44 at 2.) The plaintiff cites PX 8, the right to sue letter which he received on March 29, 1983, and the fact that the complaint was filed "within the requisite 90 day time period after notification by EEOC of plaintiffs right to sue.” {Id.) Although the plaintiff is correct in asserting that he met the deadline for filing a complaint in federal district court according to the terms of EEOC’s right to sue letter (PX 7), the plaintiff has not met the first jurisdictional hurdle of filing a charge with an administrative agency within the requisite 240 days.

      . Horn received his bachelor's and master’s degrees from the Pennsylvania State University. He received a Ph.D. from the Wharton School of the University of Pennsylvania. He retired from DuPont on April 30, 1985. (Horn, C-57 to C-58.)

      . Although McDonnell concerned a cause of action under Title VII, actions under § 1981 require the same elements of proof as actions under Title VII. Lewis, 725 F.2d at 915 n. 5.


source: Caselaw Access Project

author: SHADUR, District Judge.

license: Public Domain

text:
    Donald GUY, Plaintiff, v. DUFF AND PHELPS, INC., et al., Defendants.
    No. 84 C 2813.
    United States District Court, N.D. Illinois, E.D.
    Dec. 31, 1985.
    James J. Moylan, Chicago, 111., for plaintiff.
    Edward C. Fitzpatrick, C. Joseph Yast, Shelley L. Rice, Steven E. Handler, Lord, Bissel & Brook, Chicago, 111., for defendants.
   MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Donald Guy (“Guy”) initially sued Duff and Phelps, Inc. (“Duff & Phelps”) and its Chairman of the Board and Chief Executive Officer Claire Hansen (“Hansen”), charging securities law violations (federal and state), breach of fiduciary duty and common-law fraud — all arising out of Guy’s resale of his Duff & Phelps stock to the company upon termination of his employment. Duff & Phelps responded in part with a counterclaim against Guy, charging (Counterclaim II11) it had been damaged by more than $10,000 by Guy’s:

1. breach of his fiduciary duties; and
2. misappropriation of Duff & Phelps’ facilities for use in Guy’s own business.

On July 12, 1985 this Court granted Duff & Phelps’ motion for summary judgment on each of Guy’s claims. Guy has now moved under Fed.R.Civ.P. (“Rule”) 56 for summary judgment on Duff & Phelps’ counterclaim. For the reasons stated in this memorandum opinion and order, Guy’s motion is denied.

Facts'

Duff & Phelps is an Illinois corporation in the service business: providing investment research, credit ratings, financial consulting and investment management. In 1978 Guy joined Duff & Phelps as a vice president responsible for developing Duff & Phelps’ computer capability and for studying, teaching and implementing new methods of quantitative analysis in investment research and management.

In 1981 (while still employed by Duff & Phelps) Guy applied to the Commodities Futures Trading Commission (“CFTG”) to become a registered commodities trading advisor. He then began a small commodity trading business without informing anyone at Duff & Phelps. He operated the business from his home and then from an office in the basement of a friend’s home (Guy Dep. 6-7, 292-94). He did some of the work at Duff & Phelps’ offices between 7:00 and 7:30 a.m., before Duff & Phelps’ regular business hours {id. at 154). During that time he did however use Duff & Phelps’ telephones and occasionally its computer {id. at 131, 154, 171-72), and he frequently used Duff & Phelps’ telephones during its regular business hours (Hansen Aff. ¶ 3; Guy Dep. 171).

By July 1983 Guy had 50 to 60 customers and managed portfolios with total assets of about $4 million (Guy Dep. 105-06, 108, 124). Earnings from his business exceeded $95,000 in 1982 and $43,000 during the first 8V2 months of 1983 (D. Ex. A).

Duff & Phelps did not learn of Guy’s business until late May or early June 1983, when Hansen questioned Guy about the early morning phone calls he often received at work (Guy Dep. 148-51; Hansen Dep. 33-34). Guy told Hansen about the business and provided him with documents at his request (Guy Dep. 150-51; Hansen Dep. 35-44). About a month later Hansen told Guy he would have to abandon his own business if he wanted to stay with Duff & Phelps (Guy Dep. 163-64), giving Guy another month to think over his choice {id. at 164). On July 29 Guy met with Hansen again and said he would not give up his own business (Hansen Dep. 61). Hansen then fired him effective December 31, 1983. That date was later advanced to September 15,1983 by agreement (at least in the sense Guy was given a choice between a September 1 and 15 departure) (Guy Dep. 188-89, 245).

Subject Matter Jurisdiction

Guy maintains Duff & Phelps’ counterclaim is permissive in Rule 13(b) terms, thus requiring an independent federal jurisdictional basis. Guy then says the counterclaim falls outside this Court’s diversity jurisdiction because Duff & Phelps has not alleged in good faith an amount in controversy exceeding $10,000. That notion is wholly without merit.

Counterclaim ¶¶ 6 and 7 charge Guy violated his fiduciary duties owed to Duff & Phelps as his employer. Guy contends he has not breached any such fiduciary duty. Because Duff & Phelps cannot recover any damages under that theory if Guy is right, he reasons Duff & Phelps lacks the requisite amount exceeding $10,-000 in controversy.

Guy's argument totally misperceives the thrust of the jurisdictional amount requirement. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288-89, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938) (footnotes omitted) remains the leading authority on that subject:

The rule governing dismissal for want of jurisdiction in cases brought in the federal court is that, unless the law gives a different rule, the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal. The inability of plaintiff to recover an amount adequate to give the court jurisdiction does not show his bad faith or oust the jurisdiction. Nor does the fact that the complaint discloses the existence of a valid defense to the claim. But if, from the face of the pleadings, it is apparent, to a legal certainty, that the plaintiff cannot recover the amount claimed, or if, from the proofs, the court is satisfied to a like certainty that the plaintiff never was entitled to recover that amount, and that his claim was therefore colorable for the purpose of conferring jurisdiction, the suit will be dismissed.

Here Duff & Phelps’ breach-of-fiduciary-duty claim seeks to recover: (1) all Guy’s profits (over $100,000) plus (2) damages for the unauthorized use of Duff & Phelps’ equipment. Unquestionably that puts more than the jurisdictional amount into controversy.

Guy claims his proffered evidence establishes Duff & Phelps must lose on the merits. But even if he were right (and the later discussion shows he is not), his bizarre view of subject matter jurisdiction would convert every successful summary judgment motion by a diversity-jurisdiction defendant (and even many a final judgment for such a defendant after trial) into a jurisdictional dismissal. Pursued to its logical end, Guy’s position would foreclose federal courts from ever ruling for defendants on the merits in diversity cases, for the very decision that a plaintiff could not recover on those merits would automatically telescope the case into a zero amount in controversy and thus defeat subject matter jurisdiction.

Breach of Fiduciary Duty

This Court will therefore treat Guy’s summary judgment motion solely as an attack on the merits of Duff & Phelps’ claim. Guy asserts as a matter of law he did not breach any fiduciary duty owed to Duff & Phelps. Duff & Phelps counters by saying genuine issues of material fact preclude summary judgment.

ABC Trans National Transport, Inc. v. Aeronautics Forwarders, Inc., 62 Ill.App.3d 671, 683, 20 Ill.Dec. 160, 169, 379 N.E.2d 1228, 1237 (1st Dist.1978) states one version of the relevant rule:

While acting as an agent or employee of another, one owes the duty of fidelity and loyalty; accordingly, a fiduciary cannot act inconsistently with his agency or trust; i.e., solicit his employer’s customers for himself, entice coworkers away from his employer, or appropriate his employer’s personal property____

Much the same articulation is contained in the decision Guy Mem. 9 quotes, Patient Care Services, S.C. v. Segal, 32 Ill.App.3d 1021, 1029, 337 N.E.2d 471, 478 (1st Dist.1975):

The duties that an officer or director owe to his corporation are so well established as to need no citation of authority to support them. They include the requirement of undivided, unselfish, and unqualified loyalty, of unceasing effort never to profit personally at corporate expense, of unbending disavowal of any opportunity which would permit the fiduciary’s private interests to clash with those of his corporation.

Guy advances three contentions in support of his position he did not breach those standards:

1. His commodity trading activities did not compete with Duff & Phelps’ business.
2. He did not devote time belonging to Duff & Phelps to his own business.
3. He did not use Duff & Phelps’ name in his commodity trading business.

This opinion will deal with each argument in turn.

1. Competition with Duff & Phelps

Guy advances two reasons why his commodity trading business does not compete with any of Duff & Phelps’ activities. Though he might perhaps ultimately prove to be right, he cannot prevail at this Rule 56 stage.

First Guy says his commodity trading business served only individual clients, while Duff & Phelps primarily served corporate and institutional clients. But Hansen Aff. Tí 11 responds:

Duff & Phelps has a division which manages money for clients. This division has approximately 100 individual clients as well as institutional clients.

That assertion alone leaves it to a factfinder’s decision whether Guy’s customers represented a potential corporate opportunity diverted from Duff & Phelps.

Guy next points out neither Duff & Phelps nor any of its principals possesses the necessary license from CFTC to act as a registered commodities trading advisor (Guy’s Statement of Material Facts ¶ 17). Hence Guy states his commodity trading activities could not compete with Duff & Phelps’ business. But Duff & Phelps retorts (Hansen Dep. 99):

Duff & Phelps manage money of individuals, for which we obtained a fee. Don Guy was managing money of individuals for which we didn’t obtain a fee. That’s competition.

That exchange highlights the nature of the parties’ dispute over the competitive effeet of Guy’s activities. In essence they differ over the definition of the “relevant market.” Guy focuses only on investment advisors in the commodities trading field. Because Duff & Phelps lacks the requisite licenses to offer advice in that area, Guy is correct in saying his business does not compete with Duff & Phelps in that limited sense.

But Guy’s contention in that respect rests on the unstated assumption that each of his customers had already opted for commodities trading before Guy dealt with him or her, rather than the classical model in which the investor examines the universe of investment alternatives before actually committing funds to one choice. In the latter model, Guy’s solicitation of a prospective investor, rather than disclosing his or her identity to Duff & Phelps’ new-business personnel, does compete with that corporation’s money management services. With the record no further fleshed out than it is now, there is at least a reasonable inference the “relevant market” is the genus of money management generally, not the species of commodities trading advice.

2. Guy’s Use of Business Time

Cuy Aff. ¶ 17 says:

My CTA activities never interfered with my duties or obligations at D & P. In fact, all the while I acted as a CTA, my D & P personnel reports, evaluations and the like contained high praise for my work and the performance of my duties. Further, any CTA work I did at D & P-was before or after D & P’s normal working hours of 8:45 a.m. — 4:45 p.m.

But Guy earlier admitted he did devote some of his time to his commodity trading business during Duff & Phelps’ business hours (Guy Dep. 154, 171):

Q: Okay. And then from 7:30 on, was there ever a time when you devoted your energies to your CTA business, rather than to the Duff & Phelps’ business?
A: I’m sure there was.
Q: You made phone calls that related strictly to your CTA business between the regular working hours of 8:45 and 4:45 at Duff & Phelps, didn’t you?
A: Sometimes, yes.

Hansen testified (Hansen Dep. 56) Guy admitted spending 15% of his Duff & Phelps workday on his own business. Substantial calls by Guy to brokers during business hours are reflected in Duff & Phelps telephone records (D. Ex. C).

Guy contends the amount of time he actually spent on his own activities is irrelevant because he always finished his job assignments at Duff & Phelps. On that issue, though, Duff & Phelps answers (Hansen Aff. W 8, 9):

8. Guy received above average performance evaluations about a one and one half year period beginning in December of 1980. After that, there were many complaints about his failure to complete projects on time. Guy was continually behind on assignments, and the problem continued for about one year until Duff and Phelps finally had to take measures to correct it. In or about July of 1982, a computer committee consisting of key Duff and Phelps personnel was established to monitor Guy's progress on his assignments. Guy had to report to this computer committee weekly as to whether he had completed assignments on schedule.
9. During the period of Guy’s employment at Duff and Phelps, Duff and Phelps was engaged in a number of activities that required the development of new computer programs. There was not always sufficient programming capability to meet these needs. Analysts frequently had to develop their own programs because they could not get assistance from the computer department.

It is at least a reasonable inference from those statements that Guy’s pursuit of his own business interests cut back on the time he devoted to Duff & Phelps assignments at the very time Duff & Phelps’ need for Guy’s services had increased. Gelfand v. Horizon Corp., 675 F.2d 1108, 1110 (10th Cir.1982) teaches:

An agent occupies a relationship in which trust and confidence is the standard. When the agent places his own interests above those of the principal there is a breach of fiduciary duty to the principal.

In sum, Duff & Phelps has created a factual issue on that issue too.

3. Guy’s Use of Duff & Phelps Property

Guy urges he never used Duff & Phelps’ name to solicit business. All the record discloses in that respect is that Guy did identify his address on customer powers of attorney as “do Duff & Phelps, Inc.” (D. Ex. B). That might perhaps suggest a kind of trading (albeit minimal) on Duff & Phelps’ name and reputation.

More to the point, however, Complaint ¶ 11 really charges Guy with having misappropriated Duff & Phelps' “facilities,” so Guy’s effort to shift scrutiny to his use or nonuse of the corporate name is really a red herring. On the misappropriation-of-property issue, Guy admits he used Duff & Phelps’ computer equipment to analyze his commodity trading data (Guy Aff. U 22). Guy argues that use benefited Duff & Phelps by allowing him to evaluate the efficacy of Duff & Phelps’ statistical computer programs. But Duff & Phelps effectively responds with a “thanks, but no thanks” answer (Donehey Aff. ¶ 7):

The use of commodities data to check the types of statistical programs Duff and Phelps uses is not necessary. These statistical programs are easily verified by comparison to textbook proofs. It is unlikely that using commodities data to check programs could be beneficial to Duff and Phelps.

Any misappropriation of Duff & Phelps’ property — its name or its computer or both — to advance his own interests would breach Guy’s duty of loyalty to Duff & Phelps. ABC Trans National Transport, 62 Ill.App.3d at 683, 20 Ill.Dec. at 169, 379 N.E.2d at 1237. Once again Duff & Phelps has posed a question for the trier of fact.

Conclusion

Duff & Phelps’ evidentiary submissions establish the existence of several genuine issues of material fact. Guy’s motion for summary judgment is denied. Finally, given the nature of the factual disputes, the case does not seem a particularly apt one for a set of Rule 56(d) specifications.

      . Familiar Rule 56 principles impose on the party moving for summary judgment the burden of establishing the lack of a genuine issue of material fact. Korf v. Ball State University, 726 F.2d 1222, 1226 (7th Cir.1984). For that purpose this Court must view the evidence (including any reasonable inferences) in the light most favorable to the nonmovant — here Duff & Phelps. Hermes v. Hein, 742 F.2d 350, 353 (7th Cir.1984).

        . This would of course be so if Duff & Phelps could arguably recover all of Guy’s profits on a constructive trust theory, and it would also be so if Duff & Phelps could recover even 15% of those profits on the basis (discussed later) Guy had devoted to his private venture that percentage of his workday (owed entirely to Duff & Phelps).

      . This ruling as to the emptiness of Guy’s jurisdictional-amount attack, coupled with the fact complete diversity exists, makes it unnecessary to resolve the parties' dispute as to the permissive-v.-compulsory nature of the counterclaim (see Guy Mem. 6-8; Duff & Phelps Mem. 7-9; Guy R. Mem. 5-6).

      . Illinois’ choice-of-law principles (applicable of course to this diversity case) look to Illinois substantive law, for everything about the parties and the counterclaim is Illinois-based.

      . Guy also asserts he and Duff & Phelps never had any clients in common (Guy Aff. If 20). Duff & Phelps has not controverted that statement.

      . Though the parties have not addressed the issue in these terms, it appears likely the promotion of new business was not within the scope of Guy's corporate responsibilities. All the same, it would still be a fact issue (unresolved by the present papers) whether Guy’s duty of undivided loyalty would call for him to bring his knowledge of live prospects to the attention of the Duff & Phelps people in its jndividual-account-solicitation section.


author: CAHILL, District Judge.

text:
    Dennis D. GARNER, Plaintiff, v. SMITH AND DAVIS MANUFACTURING COMPANY, Defendant.
    No. 84-2666C(4).
    United States District Court, E.D. Missouri.
    Dec. 31, 1985.

      Shepherd, Sandberg & Phoenix, P.C., Philip Louis, St. Louis, Mo., for plaintiff.
    McMahon, Berger, Hanna, Linihan, Cody & McCarthy, D. Michael Linihan, James N. Foster, Jr., St. Louis, Mo., for defendant.
   FINDINGS OF FACT, CONCLUSIONS OF LAW, AND JUDGMENT

CAHILL, District Judge.

I. Summary of the Trial.

This action was brought pursuant to 42 U.S.C. § 1981 and 42 U.S.C. § 2000e, et seq. Plaintiff, a white male, alleges racial discrimination in that defendant failed to employ him on a full-time basis and discriminatorily discharged him because he was white.

Plaintiff was hired by defendant as a temporary part-time assembly line employee for less than a month. During that period a job opening in another department developed and plaintiff applied for the job asking for a transfer to that department. The company hired a black male, citing the fact that under the union contract in existence at that time, that despite the fact that he was a temporary employee with less than 30 days tenure, he had no seniority rights under the collective bargaining agreement. When his temporary employment expired plaintiff was released by the defendant company. Plaintiff alleges that the failure to transfer or hire him in the other department and the discharge were racially motivated.

II. Findings of Fact.

Defendant Smith & Davis Manufacturing Company is a medical equipment manufacturing company which employed about 100 employees in St. Louis, Missouri.

Plaintiff Dennis Garner is a white male who was hired as a temporary employee in the assembly department as a general assembler for a period of time not to exceed 60 days to replace an injured employee. He was paid at the same rate as the injured employee, who was expected to return within the short period of plaintiffs temporary employment.

Plaintiff had made numerous telephone calls to defendant Smith & Davis Manufacturing Company seeking employment before he was hired as a temporary employee. When plaintiff was hired, it was made abundantly clear to him that he was being hired only as a temporary employee as a general assembler in the assembly department and would not become a union member or acquire any bidding rights for other jobs because he was only a temporary employee hired to replace a regular employee who was on a leave-of-absence.

Plaintiff expressed appreciation for the opportunity to work in any assignment, including a temporary one, and acknowledged that he was not a union member at the time of his discharge and hence had no bidding rights to other jobs and would have no such rights until employment of 30 days or more.

When several jobs in other departments developed, plaintiff applied for them but was not hired for them. At no time was race mentioned or discussed. Several of the applicants hired were black, others were not.

The defendant employed about 100 persons during the relevant period. About 40% were minority employees but the majority were white.

While employed as a temporary employee, the plaintiffs supervisor graded him as “a fair employee” but that he needed improvement in speed and production.

The Court further finds that the collective bargaining agreement then in existence with the United Steel Workers of America, AFL-CIO, specifically provided only regular full-time employees should be added to the seniority list after 30 days (with a 60-day probation to follow). The Court further finds that even the temporary job for which plaintiff had been hired had to be agreed to previously by the defendant company and the union.

III. Conclusions of Law.

The burden rests with the plaintiff to establish a prima facie case that his failure to retain employment or to obtain new employment was due to racial discrimination. There was absolutely no evidence adduced by the plaintiff to support his allegation that race was a factor in 'either his discharge or failure to be hired for the new position. There was no mention of race by his employer, the personnel officer, or any other employee. While a goodly percentage of the workers were of minority races, still the majority were white as is the plaintiff.

Plaintiff had no contractual right by union contract or employer to have priority over other job seekers because of his temporary employment. As in the administrative hearing before the Equal Employment Opportunity Commission, he has failed to demonstrate that race was a motivating factor in his discharge. It is well settled that the complainant carries the burden of establishing a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 98 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See also Furnco Construction Corp. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978); Miller v. Weber, 577 F.2d 75 (8th Cir.1978); Meyer v. Missouri State Highway Commission, 567 F.2d 804 (8th Cir.1977); Henry v. Ford Motor Co., 553 F.2d 46 (8th Cir.1977); General Motors Corp. v. Fair Employment Practices Division, 574 S.W.2d 394 (Mo.1978) (en banc); Mosby v. Webster College, 563 F.2d 901 (8th Cir.1977).

Accordingly, the Court finds that plaintiff has failed to establish a prima facie case of racial discrimination and DISMISSES his complaint. Each party is to bear its own costs.

SO ORDERED.