text:
    UNITED STATES of America, Plaintiff, v. Ronald G. CHEESEMAN, a/k/a Big Cheese, Patrick Lawless, Robert Morgan, a/k/a Bear, Kim D. Diluzio, a/k/a Mr. Fun, Richard D. Cirzeveto, a/k/a Piggy, a/k/a R.C., Jeffrey Adamek, William A. Grosso, Janet Beam, a/k/a Puffy, Maureen Pompey, a/k/a Mo, James A. Harwood, a/k/a Gorilla, Martin Pulver, a/k/a Tiny, Orville Deitz, a/k/a Orvie, Robert Milhomme, a/k/a Indian, John Lofranco, a/k/a John The Baptist, a/k/a JTB, James Lee Farrigan, a/k/a The Mayor, Sandra Grieco, a/k/a Sandra Harris, Patti Milhomme, a/k/a Patti Root, Donna White, and Thomas Mulholland.
    No. 85-CR-66.
    United States District Court, N.D. New York.
    Oct. 31, 1985.
    U.S. Dept, of Justice, Syracuse, N.Y., for U.S.; Gary L. Sharpe, Asst. U.S. Atty., Gregory A. West, Sp. Atty., of counsel.
    Vincent P. Accardi, Binghamton, N.Y., for defendant Ronald G. Cheeseman.
    Remo A. Allio, Endicott, N.Y., for defendant Richard D. Cirzeveto.
    Richard C. Kram, Syracuse, N.Y., for defendant Orville Deitz.
    Edward Z. Menkin, Syracuse, N.Y., for defendant James Lee Farrigan.
    Mark B. Harris, Troy, N.Y., for defendant John LoFranco.
    John Brunetti, Syracuse,. N.Y., for defendant Martin Pulver.
   MEMORANDUM-DECISION AND ORDER

MUNSON, Chief Judge.

On October 25 this Court ordered that conditions be set for the pretrial release of defendants Cheeseman, Cirzeveto, Deitz, and LoFranco, and on October 30 the Court issued a similar order with regard to defendant Farrigan. The basis for the orders was that detention of the defendants without bail pursuant to 18 U.S.C. § 3142(e) violated their right to due process of law. See United States v. LoFranco, 620 F.Supp. 1324 (N.D.N.Y.1985). On October 30 the government moved to stay the orders pending its appeal of them.

The government bases its motion on Rule 8 of the Federal Rules of Appellate Procedure, which gives district courts authority to stay enforcement of an order pending appeal. The defendants argue that there is no such authority when the government appeals an order to release a defendant on bail. They rely on 18 U.S.C. § 3731, which provides: “Pending ... appeal [of an order granting the release of a person charged with an offense], the defendant shall be released in accordance with chapter 207 of this title.”

The phrases “shall be released” and “according to section 207” are contradictory. The first phrase standing alone would leave the court no discretion. Chapter 207, on the other hand, gives the court discretion to order a defendant detained or released, depending on the danger in releasing him. See 18 U.S.C. § 3142. The contradiction in § 3731 was noted in United States v. Herman, 544 F.2d 791, 794-95 n. 5 (5th Cir.1977).

In 1984, Congress attempted to address the contradiction in § 3731 by enacting 18 U.S.C. § 3143(c), which provides: “The judicial officer shall treat a defendant in a case in which an appeal has been taken by the United States pursuant to the provisions of section 3731 of this title, in accordance with the provisions of section 3142....” The enactment of § 3143(c) did not resolve the contradiction in § 3731, because Congress left the phrase “shall be released” in § 3731. As a result, it is still unclear from a mere examination of the statutes whether Congress intended to authorize district courts to stay an order to set bail for a defendant pending appeal of the order. But it is clear from the legislative history of § 3143(c) that Congress intended to remove the ambiguity in § 3731 and to give district courts discretion to release or detain a defendant pending an appeal under § 3731. See S.Rep. No. 225, 98th Cong., 2d Sess. 27, reprinted in 1984 U.S.Code Cong. & Ad.News 3182, 3210. In the present case, therefore, the Court has statutory authority to grant the government’s motion.

In ordering that conditions be set for the defendants’ release, this Court held: “because of the length of [defendants’] detention without bail or trial, [they are] being held without due process of law.” Lo-Franco, supra, at 1325 (emphasis added). Similarly, the Court emphasized that “the ruling of unconstitutionality is based on the [defendants’] detention ... until now.” Id. at 1326. Because the defendants’ detention without bail was unconstitutional when the orders were issued on October 25 and 30, the process that was due the defendants immediately upon issuance of the orders was to begin proceedings to set conditions for release.

The government’s motion to stay the proceedings pending appeal of this Court’s orders is a request to give the defendants less than the process they are due. More simply stated, because the Court has held that defendants’ detention without bail and without a trial is unconstitutional now, it would be unconstitutional to prolong their detention while they wait for a decision by the Court of Appeals. If the correctness of the orders to release the defendants is in doubt, the defendants should not pay the price for the doubt.

Although this Court has statutory authority to stay the orders to set conditions for the defendants’ release, it would be unconstitutional to exercise the authority in this case. Therefore, the government’s motion is denied.

IT IS SO ORDERED.


source: Caselaw Access Project

author: ROBERT W. PORTER, District Judge.

license: Public Domain

text:
    Tiffany and Daryl SHEAN By and Through their parents and next friend, Terry and Marlene SHEAN, and Terry and Marlene Shean, Plaintiffs, v. Mark WHITE, Governor of the State of Texas, and Marlin Johnston, Commissioner of the Texas Department of Human Resources, State of Texas, and Jim Mattox, Attorney General of the State of Texas, and Mamie Ewing, Regional Administrator for the Texas Department of Human Resources, and Sara Ham, Supervisor for the Texas Department of Human Resources, and Mary Naylor, Caseworker for the Texas Department of Human Resources, and Carol Gardner, Supervisor for the Texas Department of Human Resources, and Denise Lave, Caseworker for the Texas Department of Human Resources, and Donna Gorosky, Supervisor for the Texas Department of Human Resources, and Janet Erickson, Supervisor for the Texas Department of Human Resources, State of Texas, and Connie Weedman, Caseworker for the Texas Department of Human Resources, State of Texas, and Craig Penfold, District Judge of Dallas County, State of Texas, and John McCraw, District Judge of Collin County, State of Texas.
    No. CA-3-85-1375-F.
    United States District Court, N.D. Texas, Dallas Division.
    Oct. 25, 1985.

      Jim Mattox, Atty. Gen. of Texas, David R. Richards, Executive Asst. Atty. Gen., J. Patrick Wiseman, Chief, State & County Div., Edwin N. Horne, Jerry L. Benedict, Asst. Attys. Gen., Austin, Tex., for petitioner.
    Terry & Marlene Shean pro se.
   MEMORANDUM ORDER

ROBERT W. PORTER, District Judge.

Pending before the Court is Defendants’ motion to dismiss, which asserts the following bases for dismissal of Plaintiffs’ complaint: lack of subject matter jurisdiction, applicability of various defenses of immunity, failure to state a claim upon which relief may be granted, lack of appellate jurisdiction over state court decisions and application of the doctrine of abstention. Plaintiffs’ complaint alleges “gross violations” of constitutional rights in the context of state intervention in Plaintiffs’ home, and subsequent placing of the Plaintiff children in custody of foster parents. Plaintiffs make numerous allegations of wrongful conduct on the part of the Defendants, some of which rise to the level of justiciable controversy under this Court’s federal question jurisdiction and some of which do not. Because the Court is of the opinion that the prudent course in this case is to exercise its discretion in favor of abstention, distinction between those claims which are valid and those which are not is unnecessary.

I. Judicial Immunity

As a preliminary matter, Defendants’ argument as to absolute judicial immunity is well-taken. The doctrine of judicial immunity extends to all acts performed by judges in their judicial capacity and is a valid defense to a civil rights action under 42 U.S.C. § 1983. Briscoe v. LaHue, 663 F.2d 713 (4th Cir.), aff'd 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1981). Judicial immunity is a valid shield from liability even when the judge is accused of malicious and corrupt exercise of his or her judicial powers. Turner v. American Bar Association, 407 F.Supp. 451, aff'd 542 F.2d 56 (8th Cir.1975). Because Plaintiffs’ allegations as to the judicial defendants do not allege any wrongdoing which is beyond their authority as judicial officers, and the acts complained of are judicial acts, Plaintiffs’ charges against Defendants Penford and MeCraw are hereby dismissed.

II. Abstention

Defendants point out in support of their contention that the Court should abstain from exercising jurisdiction in this case that issues of domestic relations have traditionally been within the province of state courts. The truth of this premise is borne out by the well-established exception to the federal Courts’ diversity jurisdiction. As noted by the Fifth Circuit, the reasons for this exception are obvious: “the strong state interest in domestic relations manners, the competence of state courts in settling family disputes, the possibility of incompatible federal and state court decrees in cases of continuing judicial supervision by the state, and the problem of congested dockets in federal court.” Crouch v. Crouch, 566 F.2d 486, 487 (5th Cir.1978); Jagiella v. Jagiella, 647 F.2d 561, 564 (5th Cir.1981). See also Ex Parte Burrus, 136 U.S. 586, 593-94, 10 S.Ct. 850, 852-53, 34 L.Ed. 1500 (1890). The fact that family law matters are implicated by Plaintiffs’ civil rights claim does not necessarily compel the conclusion that this Court should refrain from exercising jurisdiction in this case. Defendants have not cited nor has the Court’s research disclosed any case which addresses the specific situation presented by the instant case. However, when a suit is in substance a domestic relations suit, brought in the guise of a civil rights or federal question action, federal courts will decline to exercise jurisdiction. Firestone v. Cleveland Trust Co., 654 F.2d 1212, 1215 (6th Cir.1981) (citing Denman v. Leedy, 479 F.2d 1097,1098 (6th Cir.1973)). “Because state courts historically have decided these matters, they have developed a proficiency and expertise in these cases and a strong interest in disposing of them.” Firestone, 654 F.2d at 1215 (citing Solomon v. Solomon, 516 F.2d 1018, 1025 (3rd Cir.1975); Cherry v. Cherry, 438 F.Supp. 88, 90 (D.Md.1977)). Thus, in Sutter v. Pitts, the court held that a former wife’s civil rights claims against her former husband and his new wife for violation of state court visitation and custody orders were in substance a challenge to the state court’s award of custody, and abstention was required. 639 F.2d 842, 843 (1st Cir.1981). Also implicated in this type of abstention are considerations of comity and policy. Fern v. Turman, 736 F.2d 1367, 1370 (9th Cir.1984).

In addition to the domestic relations exception to the federal diversity jurisdiction, abstention is appropriate in three other situations, see Heritage Farms, Inc. v. Solebury Township, 671 F.2d 743, 746, cert. denied 456 U.S. 990, 102 S.Ct. 2270, 73 L.Ed.2d 1285 (1982). This type of abstention derives from Burford v. Sun Oil Company, 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). Burford abstention is “appropriate in situations where a difficult question of state law is presented which involves important state policies or administrative concerns” in order to avoid disrupting state efforts to “establish a coherent policy with respect to a matter of public concern.” Heritage Farms, 671 F.2d at 746 (citing Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976)). See also Thomas v. Barry, 729 F.2d 1469, 1471 (D.C.Cir.1984) (“Federal courts may abstain from exercising jurisdiction where important issues of state and local policy are at stake.”)

Also, if there are parallel state proceedings pending, additional factors may militate in favor of abstention. The Fifth Circuit has cautioned, however, that the “ ‘unflagging obligation’ of the federal courts to exercise the jurisdiction given them is particularly weighty when those seeking a hearing in federal court are asserting ... their right to relief under 42 U.S.C. § 1983.” Signad, Inc. v. City of Sugar Land, 753 F.2d 1338 (5th Cir.1985) (citing Tovar v. Billmeyer, 609 F.2d 1291, 1293 (9th Cir.1980)). In determining whether to abstain in view of parallel state proceedings, the Fifth Circuit went on to the three factors to be considered: “a) the inconvenience of the Federal forms; b) the desirability of avoiding piecemeal litigation; and c) the order in which jurisdiction was obtained by the concurrent forums.” Signad, Inc., 753 F.2d at 1340. As to the first, the Court has no knowledge of whether the federal forum is inconvenient, and neither party has so asserted. As to the second factor, it appears from the complaint and the motion to dismiss that the state action is currently pending and that the wrongs complained of can be addressed in state court. Litigation of those same claims here in federal court would result in duplication of effort and the possibility of inconsistent results. As to the third factor, the state court action appears to have been filed prior to this one, and those proceedings, by all accounts, are further advanced than those in this case. Thus, there appears to be at least some basis for abstention on this ground.

Still, it is far from clear that abstention is warranted under any of the doctrines discussed above, and the Court is mindful of the “unflagging obligation” with which it is charged in § 1983 cases. Consideration of all the doctrines collectively, however, weighs in favor of exercising abstention here. First, failure to exercise jurisdiction now will enable the state proceeding to conclude and will not foreclose Plaintiffs from obtaining a full and fair hearing on their civil rights claims in federal court when a final result is achieved at the state level.

More importantly, the long-standing domestic relations exception to diversity jurisdiction coupled with the Burford requirement of difficult questions of state law involving “important state policies or administrative concerns” together suggest that this type of case is one where abstention is the wiser course. For this Court to act on Plaintiffs’ claims at this time would pose “an obvious danger of undue interference with ongoing state court litigation.” Kelser v. Anne Arundel County Department of Social Services, 679 F.2d 1092, 1094 (4th Cir.1982). In Reiser, the 4th Circuit ruled that abstention by the district court was appropriate where Plaintiffs’ § 1983 claims pertained to the ongoing state proceedings. 679 F.2d at 1093. The Fourth Circuit held, however, that dismissal was not appropriate; rather, the district court should have entered a stay and maintained the case on its docket. Because dismissal without prejudice will not adversely affect Plaintiffs’ right to full adjudication of their claims at the close of the state proceedings, and because of the energy required to manage this Court’s active docket of approximately 500 cases, it is this Court’s opinion that dismissal without prejudice is not inappropriate in this case. Further, as previously noted, Plaintiffs have not responded to the Defendants’ motion to dismiss, or made any showing or argument that dismissal without prejudice will result in a significant disadvantage to them.

Again, it is a close question whether abstention is mandatory in this case. However, consideration of all the factors involved leads to the conclusion that this result is proper, and consistent with decisions of other courts in similar cases which “recognize the ‘local’ nature of domestic relations problems, the strong interest of the state in addressing such questions without interference, and the expertise of local agencies and courts in monitoring and resolving domestic relations matters.” Anh v. Levi, 586 F.2d 625, 632 (6th Cir.1978). See also Hisquierdo v. Hisquierdo, 439 U.S. 572, 581, 99 S.Ct. 802, 808, 59 L.Ed.2d 1 (1971).

It is therefore ORDERED that the judicial defendants in this case are hereby dismissed on grounds of absolute judicial immunity. It is further ORDERED that the remainder of Plaintiffs’ complaint is dismissed without prejudice. This case is hereby closed, subject to reopening pursuant to F.R.Civ.P. 60(b)(6) upon the motion and filing of amended complaint by Plaintiffs within a reasonable time after the close of the state court proceedings in this matter.


author: GEORGE HOWARD, Jr., District Judge.

text:
    William W. LEMMER, Plaintiff, v. ARKANSAS GAZETTE COMPANY and Nancy A. Miller, Defendants.
    No. LR-C-83-777.
    United States District Court, E.D. Arkansas, W.D.
    Oct. 25, 1985.

      Mark Lesher and Kathryn E. Laws, Tex-arkana, Tex., for plaintiff.
    Phillip Carroll, Little Rock, Ark., for Arkansas Gazette.
    Matthew T. Horan, Fayetteville, Ark., for Nancy A. Miller.
   MEMORANDUM OPINION AND ORDER

GEORGE HOWARD, Jr., District Judge.

Currently pending before the Court are motions of defendants, Arkansas Gazette Company and Nancy A. Miller, for summary judgment contending that there is no genuine issue as to any material fact in this proceeding and that defendants are entitled to judgment as a matter of law.

RELEVANT BACKGROUND INFORMATION

This is a libel case brought by plaintiff, William W. Lemmer, against defendants alleging that he was defamed in an article published by the Arkansas Gazette Company on April 27, 1983. The article, entitled “F.B.I. Can Spy On Us Again ”, was authored by Nancy Miller. The article protested alleged spying on dissident organizations by the F.B.I. and stated that Lemmer had played a major role in crushing the Vietnam Veterans Against the War in the early 1970’s by the FBI.

Lemmer alleges in his complaint that the article contained “libelous, false, malicious and defamatory matters concerning the plaintiff ... [that] the authorship and publication of the article ... were reckless, willful, malicious and in complete disregard of the rights of plaintiff without any proper and sufficient investigation.”

The relevant portions of the article which are purportedly libelous and false have been identified by Lemmer as:

A. Paragraph 2:

The FBI is authorized to spy on groups that pose no “immediate threat of harm” and those for which “there is not yet a reasonable indication of criminal activities.” In short, the FBI may again spy on any of us.

B. Paragraph 3:

In the words of a “source” the FBI used here in Fayetteville in the early 1970s, instead of being “investigated” dissidents were being “monitored” and even “influenced”.

C. Paragraph 5:

... VVAW was crushed in 1973 by FBI interference and false accusations. Lemmer, a former member of WAW, played a major role in both.

D. Paragraph 6:

... Although the VYAW’s record was one of peaceful — and peacekeeping— activities, Lemmer portrayed the veterans as dangerous men, an image he helped create.

E. Paragraph 7:

SKILLED IN MANIPULATION
He was skilled in getting people talking about actions they would never consider by themselves. The first time I met him, he had me ready to defy Springdale police and almost wishing we were armed. ... Later I recorded Lemmer coaxing his interviewers to talk about killing police and offering to carry illegal weapons.

F. Paragraph 8:

I know for a fact that Lemmer lied to O’Connell. It is clear in one report that O’Connell at least suspected it. But O’Connell continued to use Lem-mer ....

G. Paragraph 10:

With Lemmer, apparently, both money and jail inspired him to tell O’Connell anything he wanted to hear. Consequently, Lemmer became the “star witness” against seven VYAW leaders and a conscientious objector.... The case was so flimsy that ... the jury quickly returned a blanket acquittal.

H. Paragraph 12:

Other informers were similarly misguided and misused by their FBI controllers. Gary Thomas Rowe murdered a civil rights worker to indict the Ku Klux Klan.

The Arkansas Gazette Company argues, in support of its request for summary judgment, that Lemmer was a public figure for purposes relevant to this proceeding and cannot recover because the article was not published maliciously — that defendant acted with knowing or reckless disregard of the truth.

I.

PUBLIC FIGURE

Defendants argue that Lemmer was “a public figure in connection with the activities which are described in the Nancy Miller article.” In essence, defendants assert that if Lemmer is not a public figure for all purposes, he is, indeed, a limited public figure with respect to the Vietnam Veterans Against the War. If this is so, Lemmer can recover for the alleged defamation only by demonstrating that the article was published with actual malice. Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).

In Gertz, the Supreme Court recognized two classes of persons in the term “public figure.” First, those individuals who “occupy positions of such pervasive power that they are deemed public figures for all purposes.” To meet this standard, it must be demonstrated that such individuals possess “general fame or notoriety in the community and pervasive involvement in the affairs of society.”

Second, those individuals who have “thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.” These individuals are characterized as limited public figures.

In an effort to show that Lemmer was a public figure either for all purposes or a limited one, defendants have cited, among other things, the following:

1. Newspaper articles referring to Lemmer as an activist in the Fayetteville, Arkansas, area in the anti-war effort of Vietnam Veterans Against the War in 1972 and 1973.
2. An article published in Harper’s magazine in December, 1972, disclosing that Lemmer had served as an informer for the FBI.
3. That Lemmer testified as a Government witness in the “Gainesville 8” conspiracy trial in August, 1973, involving eight VVAW members accused of conspiring to riot at the 1972 Republican National Convention.

After carefully considering the contents of the record in this proceeding, including the news articles and clippings, the Court is persuaded that Lemmer was, if not a public figure for all purposes, indeed, as a matter of law, a public figure with reference to the limited issue of the Vietnam Veterans Against the War, and the activities described in the Nancy Miller article. The Court also holds that there was a public controversy with reference to the Vietnam Veterans Against the War and the activities described in the Nancy Miller article; and that the degree and extent of Lemmer’s involvement in this public controversy overwhelmingly demonstrates that Lemmer voluntarily injected himself in this controversy. Accordingly, the Court holds that Lemmer must show actual malice on the part of defendants in the authorship and the publication of the April 27, 1983, article in order to recover from defendants.

II.

ACTUAL MALICE

The Court of Appeals for the Eighth Circuit in Cervantes v. Time, Inc., 464 F.2d 986 (8th Cir.1972), has stated in no uncertain terms that a litigant, such- as Lem-mer in this proceeding, has an obligation “to demonstrate with convincing clarity that the materials he alleges to be defamatory were published with knowledge of their falsity or with reckless disregard for their truth” in order to prevail in this action. (Emphasis added)

Moreover, the Supreme Court has also made it clear that the First and Fourteenth Amendments’ security of speech and the press limit the interest of the state in compensating private individuals for injury to reputation or in the enforcement of state libel laws. Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). This limitation precludes recovery where liability is not predicated on knowledge of falsity or reckless disregard for the truth, where as here, the plaintiff is a public figure.

In Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968), the Supreme Court made the following observa- ■ tion relative to what is required to demonstrate “reckless disregard

[R]eckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.

Upon close scrutiny of the record, the Court holds that Lemmer has failed to show with “convincing clarity” that Miller and Arkansas Gazette Company acted with knowing or reckless disregard of the truth. Lemmer has failed to present any credible evidence to support a finding that either defendant entertained any doubts about the truth of any part of the April 27, 1983, article; that the investigation conducted by defendants was inadequate or disclosed a reckless disregard for the truth, or from which this Court could reasonably discern the inherent improbability of the matters published.

On the other hand, defendants, in support of their motions for summary judgment, have submitted affidavits, numerous news clippings and articles regarding Lem-mer's involvement with Vietnam Veterans Against the War, a synopsis of the subject matter covered during cross-examination of Lemmer during the “Gainesville 8” trial and depositions of Lemmer and Richard O’Connell, special agent with the FBI, to demonstrate that the research performed by defendants persuaded them that statements contained in the article were true. The inescapable conclusion is that the April 27, 1983, article was authored and published in good faith, without actual malice and on the basis of á very careful confirmation effort. Accordingly, the Court holds that defendants are entitled to a judgment as a matter of law and plaintiff’s complaint is dismissed with prejudice.

      . Both Miller and Arkansas Gazette Company raised affirmatively in their answers the defense of truth and constitutional privilege. These defenses were reasserted in defendants’ "... short and concise statement of the material facts as to which [they] contend there is no genuine issue to be tried" as required under Local Rule 30 of this Court in connection with their request for summary judgment.

      . It appears beyond dispute that the April 27, 1983, article is defamatory in nature.
      Section 41-3459, Ark.Stat.Ann. (1977 Repl.) provides:
      It shall be deemed slander to falsely use, utter or publish words which, in their common acceptation, shall amount to charge any person with having been guilty of any other crime or misdemeanor ... or to charge any person with having been guilty of any dishonest business or official conduct or transaction, the effect of which charge would be to injure the credit or business standing, or to bring into disrepute the good name or character of such person so slandered, and such words so spoken shall be actionable, and he, she, or they so falsely publishing, speaking or uttering the same shall be deemed guilty of slander, ....
      Art. 2 § 6 of the Arkansas Constitution provides:
      The liberty of the press shall forever remain inviolate. The free communication of thoughts and opinions is one of the invaluable rights of man; and all persons may freely write and publish their sentiments on all subjects, being responsible for the abuse of such right. In all criminal prosecutions for libel the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party charged shall be acquitted.
      In this diversity action, defendants assert vi-goriously, as an affirmative defense, the federal constitutional privilege articulated by the Supreme Court in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) and discussed hereafter in Section II of this opinion. This federal rule appears to be more demanding than the standard of “truth” and "published with good motives and for justifiable ends" enunciated in Art. 2 § 6 of the Arkansas Constitution and, in addition, the federal rule fosters free speech and a press by requiring public officials and public figures to prove actual malice before recovering damages for defamatory criticism. See, Gertz v. Robert Welch, Inc., 418 U.S. at 334, 94 S.Ct. at 3004.


author: SHADUR, District Judge.

text:
    Frank OGLESBY, Plaintiff, v. COCA-COLA BOTTLING COMPANY OF CHICAGO/WISCONSIN, Defendant.
    No. 83 C 9372.
    United States District Court, N.D. Illinois, E.D.
    Oct. 28, 1985.

      Joseph N. Armstrong, Chicago, Ill., for plaintiff.

      Douglas A. Darch, Seyfarth, Shaw, Fair-weather & Geraldson, Chicago, Ill., for defendant.
   MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Frank Oglesby (“Oglesby”) sues his former employer, Coca-Cola Bottling Company of Chicago/Wisconsin (“Coca-Cola”), under 42 U.S.C. § 1981 (“Section 1981”), Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (“Title VII”) and the Age Discrimination in Employment Act, 29 U.S.C. §§ 629-634 (“ADEA”). Oglesby asserts Coca-Cola discriminated against him on the basis of his race (black) and his age (45) by harassing him on the job and ultimately forcing him to resign.

Coca-Cola has now moved for summary judgment under Fed.R.Civ.P. (“Rule”) 56. For the reasons stated in this memorandum opinion and order, its motion is granted.

Facts

In November 1975 Coca-Cola hired Oglesby (then 38) as an account manager at its Alsip, Illinois division (“Alsip”). Oglesby held an associate’s degree in business administration from Kennedy-King College (1970) and had done further course work in business, marketing and accounting at Governor’s State University without taking a degree (Oglesby Dep. [hereafter simply “Dep.”] 3-4). In early 1979 Ogles-by was promoted to the position of route manager.

Alsip served as a sales and distribution center for Coca-Cola soft drinks (Coca-Cola, Tab, Sprite, Fresca and Mello Yello, Dep. 42) in the southern part of Chicago and the south suburbs. Actual sales of the products were effected by the drivers who left Alsip in the morning with loaded trucks to serve their regular assigned routes. Each route manager (such as Oglesby) supervised four or five routes and reported in turn to a region manager, each of whom supervised up to five route managers. At the top of the pyramid was the vice president of sales.

During most of Oglesby’s tenure as a route manager, Duane Hallstrom (“Hallst-rom”) was vice president of sales and Ed Jancauskas (“Jancauskas”), a white male four years Oglesby’s junior, was Oglesby’s region manager (P.Int. 8(c) supp. response). In mid-October 1982 Jancauskas was transferred to another Coca-Cola division and Octavus Morgan (“Morgan”), a black male 15 years Oglesby’s junior, was brought in to replace him (Morgan Dep. 81; Hallstrom Dep. 174; P.Int. 8(e) supp. response). Morgan had been a region manager at Coca-Cola’s Niles, Illinois division immediately before the transfer (Morgan Dep. 5). Hallstrom chose him over a white candidate because (Hallstrom Dep. 177):

He was the better choice. He was familiar with the territory. He was black and I served [sic — should be “surveyed”?] the territory and I thought Morgan would be better for the area I had served [sic].

Morgan had direct supervision over four people: Oglesby; Ramsey Fouda (“Fou-da”), a male one year Oglesby’s junior; Vic Pernice (“Pernice”), a white male four years Oglesby’s senior; and Rod Roberson (“Roberson”), a black male 21 years Ogles-by’s junior with a four-year college business degree (Dep. 157). Oglesby, Fouda and Pernice were route managers, while Roberson was a marketing development manager (Morgan Dep. 10-11).

Oglesby had a substantial history of unsatisfactory performance before Morgan arrived on the scene at Alsip. Less than four months after that arrival and after “numerous conversations” with Oglesby (Morgan Dep. 81), Morgan determined Oglesby was not a satisfactory employee and decided to terminate him. Morgan spoke to Hallstrom at about 8 a.m. January 25, 1983 to “bring[ ] him on board as far as my feeling about Frank’s performance” (Morgan Dep. 83). Hallstrom backed up Morgan’s decision “as far as the termination” (Morgan Dep. 84).

Hallstrom had his secretary type up a letter of resignation for Oglesby to sign (Hallstrom Dep. 180). He also prepared a “statement from Frank Oglesby and his acceptance of the severance program, his acceptance of the several packages in turn for his resignation” (Hallstrom Dep. 181). That statement, dictated to Hallstrom by Coca-Cola’s personnel director (Hallstrom Dep. 181-82), called for:

1. Salary continuous [sic] through February 15, 1983.
2. Payment of three weeks’ vacation pay which represents my 1983 vacation.
3. Employees benefit coverage through March 31, 1983.

In addition the statement recited (the “Release”):

In exchange for the above, I hereby release Coca-Cola Bottling Company of Chicago and all owners, officers and employees of the Company, referred to herein from any claim now and in the future with respect to employee benefits, insurance, salary or any other claim related to employment.

Events came to a head late that afternoon. Morgan called Oglesby into Hallst-rom’s office at about 4 p.m. and told him his deficiencies as an employee had led Morgan “to the conclusion at that point that he cease his employment with the company as a route manager” (Morgan Dep. 89). According to Morgan and Hallstrom— who joined the meeting — Oglesby was offered the option to “sign [the resignation and Release] or resist” (Morgan Dep. 108). He was told if he did not sign “he would be terminated and he had the option to determine which route he wanted to take” (Morgan Dep. 108).

It is undisputed that there was virtually no discussion. According to Hallstrom, Oglesby simply said, “Okay, I will resign” (Hallstrom Dep. 179). Oglesby claims he was so enraged by the proceedings that he was “at a complete blank” (Dep. 139). He did not read the papers (Dep. 141):

I was in such a rage that they asked me to resign, I just signed a bunch of papers. I just wanted to get out of there since they asked me. I was so mad so I don’t realize what I did.

Roberson ultimately took over Oglesby’s position.

Oglesby charges he was a victim of race and age discrimination manifesting itself through harassment (beginning in mid-1982) and ultimately his termination. Oglesby’s testimony identified 10 separate forms of alleged harassment:

1. He was required to return to the office from the field earlier in the day than other route managers (Dep. 62).
2. He received complaints from his supervisor (Jancauskas) that his reports were overdue (Dep. 64).
3. He was assigned a “raggedy van” to drive, while other route managers got new vans (Dep. 65).
4. He was required at least once to drive a delivery truck when one of his route drivers was absent, a job “the other people didn’t have to do” (Dep. 66).
5. He was told not to drink alcohol while on the job, though his bosses occasionally drank alcohol during working hours (Dep. 71). He stopped drinking during work hours when asked to do so, but he felt harassed by “the way it was put to me” (Dep. 72).
6. He was “written up” for failing to have his key account book up to date, though stores on his routes were being boycotted and thus would not stock Coca-Cola products (Dep. 75-76).
7. He was “picked on” for failing to collect a past-due account, even though the account had not originally been on one of his routes and had only recently been shifted into his district (Dep. 84-85).
8. He was occasionally required by Jancauskas to wear a driver’s uniform while in the field, though other route managers were not similarly required to do so (Dep. 85-86).
9. He received a written complaint from Jancauskas for allowing three drivers on the due bill to take their trucks out for deliveries, though he thought he had an oral agreement with Jancauskas that the drivers would be permitted to drive (Dep. 88).
10. He received complaints that he had “no control over [his] men” and that his men were not doing their jobs properly out on the street (Dep. 97), although the boycott had made it difficult to get the stores to stock any Coca-Cola products — much less the full product line.

In each instance Oglesby claims he was the only route manager who was so treated.

Early in October 1982 — before he came under Morgan’s supervision — Oglesby took his grievance of harassment to the Equal Employment Opportunity Commission (“EEOC”) Chicago office. He had an interview with a Ms. Jackson, who filled out a charge form containing Oglesby’s allegations of harassment (Dep. 58). Under the heading “CAUSE OF DISCRIMINATION BASED ON MY (check appropriate box(es))” the box for “RACE” was checked, and in the body of the complaint Oglesby stated (Dep.Ex. 10):

I believe I have been discriminated against because of my race, Black in that....

Oglesby’s charge was not filed in October 1982. Instead it was signed by Ogles-by and dated March 29, 1983, and it is date-stamped as received by EEOC April 5. Along with the charge, Oglesby sent a handwritten two-page letter (the “Letter”) to “update” Ms. Jackson as to events since the charge was written up, including his termination. Oglesby received an EEOC Notice of Right To Sue September 30, 1983 and filed this suit 82 days later.

Preliminary Issues

At the outset Coca-Cola raises two questions potentially dispositive of this action in whole or in part:

1. It urges the Release executed by Oglesby at the time of his resignation bars this action in its entirety as a matter of law.
2. It asserts the jurisdictional requirements for an ADEA action have not been met, requiring dismissal of the age discrimination claim.

It is wrong on both counts.

I. Release

There appears to be no general public-policy bar to negotiated releases of employment-discrimination claims. “[Pjresumably an employee may waive his cause of action under Title VII as part of a voluntary settlement....” Alexander v. Gardner-Denver Co., 415 U.S. 36, 52, 94 S.Ct. 1011, 1021, 39 L.Ed.2d 147 (1974); see United States v. Allegheny-Ludlum Industries, Inc., 517 F.2d 826, 860-62 (5th Cir.1975). Oglesby therefore does not argue the Release is per se invalid. Rather he says the waiver is ineffective because neither knowing nor voluntary. Alexander, 415 U.S. at 52 n. 15, 94 S.Ct. at 1021 n. 15.

Oglesby’s first line of attack is that the Release is ambiguous, so he cannot be said to have known precisely what rights he was surrendering when he signed. Coca-Cola in turn seeks to sever the last clause (“any other claim related to employment”) from the Release and construe it as an unambiguous “general release” (R.Mem. 2-3). But when placed in the context of the preceding clause, the claimed generality of the Release is not so clear: “any claim ... with respect to employee benefits, insurance, salary or any other claim related to employment” may well be read as a release of claims limited to the types of emoluments of employment to which an employee is normally entitled — “employee benefits, insurance, salary” being examples of such emoluments — but not of claims related to allegedly illegal activity by the employer. That would be a classic illustration of the ejusdem generis principle. United States v. LaBrecque, 419 F.Supp. 430, 434 (D.N.J.1976) (“The maxim, ejusdem gener-is, limits general terms ... which follow specific terms ... to matters similar to those so specified”).

Contrary to Coca-Cola’s assertion, nowhere on its face is the Release characterized as a “general release,” nor is it phrased as such releases normally read. Its language may fairly be contrasted with the typical general-release terminology in one of the cases relied upon by Coca-Cola: “any and all manner of actions, cause or causes of actions ... [or] claims ... whatsoever at law or in equity....” Green v. Valve Corp. of America, 428 F.2d 342, 345 (7th Cir.1970) (emphasis, and a substantial amount of other sweeping verbiage, omitted); see also Pilon v. University of Minnesota, 710 F.2d 466, 467 (8th Cir.1983) (upholding against a Title VII claim a release of “any and all manner of actions, suits, claims, damages, judgments, levies, and executions, whether known or unknown, ... which Elaine Pilón ever had ... against these parties from any act or thing occurring prior to the date of the execution of this document ... ”). Clearly the language of Coca-Cola’s release does not begin to approach the breadth of those in Green and Pilón (each of which involved a classic example of the true “general” release).

Yet any holding that Oglesby had no adequate knowledge of what he was releasing must not rest on the words of the Release alone. As this Court put it in Oberweis Dairy, Inc. v. Associated Milk Producers, Inc., 568 F.Supp. 1096, 1101 (N.D.Ill.1983):

It is well established a general release is valid as to all claims of which a signing party has actual knowledge or that he could have discovered upon reasonable inquiry.

Whether or not the “general release” label is the right one to attach to the Release, the real question is what the document was intended to embrace. On that score it would be disingenuous for Oglesby to assert he had no knowledge of his potential employment discrimination claims when he was asked to sign the Release. Indeed the fact he had gone to EEOC in October 1982 reflects his concern for his statutory rights well before the date of his termination (see Dep. 60-61), though his not having actually filed a complaint by then might indicate he was not sure of the validity or strength of his claim.

Knowledge of a potential claim, however, is not the issue. What does control is what the Release was intended to cover (intent being determined in the manner-familiar to all contract disputes) in the light of such knowledge, and what it could validly cover (validity too being determined in contract terms). After all it must not be forgotten the Release is a contract, even though executed in the context of a statutory employment discrimination claim, and its interpretation must be according to principles of contract law. See Oberweis, 568 F.Supp. at 1098 n. 5 (release of antitrust liability claim, in the context of a federal antitrust action, is nevertheless a contract governed by state law).

In that context Oglesby’s first line of attack (the lack of any intent to release the claims now in issue, confirmed by the failure of the Release language unequivocally to cover such claims) meshes with his second line of attack (the lack of any such intent because vitiated by duress). In the latter respect Oglesby urges the Release must be voided under contractual principles of duress because it was presented to him on a take-it-or-leave-it basis, with no prior negotiation or opportunity to discuss the terms with an attorney. According to both Morgan and Hallstrom, the Release was prepared in advance for Oglesby’s signature and the papers were presented to him in terms of “sign or resist.” He was given the choice to sign or be fired, and although Morgan and Hallstrom said they explained the Release entitled him to certain benefits (Morgan Dep. 108; Hallstrom Dep. 179), there was apparently no discussion of what Oglesby would be giving up or any opportunity offered to adjust the terms of the deal.

That factual matrix is a far cry from the situation in LaBeach v. Beatrice Foods Co., 461 F.Supp. 152, 158 (S.D.N.Y.1978), relied upon by Coca-Cola, where the court observed the employee “did not execute the release until after he had deliberately and carefully prepared for the ... settlement meeting” resulting in his release of claims for a substantial payment in cash. Nor is Oglesby's situation comparable to that in Pilon, 710 F.2d at 468, where the employee who released her Title VII claims negotiated the precise terms of the release while represented by her attorney (in LaBeach the employee had similarly consulted with his lawyer in preparing for the settlement meeting, though the lawyer was not at the meeting itself).

Of course negotiation of terms through counsel is not the sine qua non of a valid contract. But in this case that factor might have mitigated the evident potential for duress. Illinois recognizes the rule that “threatened acts of a party may constitute duress where their undoubted effort was to undermine the ability of another to refuse to execute an agreement.” Laemmar v. J. Walter Thompson Co., 435 F.2d 680, 682 (7th Cir.1970). Oglesby’s “option” to “sign or resist,” while not itself an illegal threat, might have been sufficient to “put[ ] the victim in such fear as to act against his will.” Kaplan v. Kaplan, 25 Ill.2d 181, 185, 182 N.E.2d 706, 709 (1962). In particular “the threat of discharge from one’s employment may constitute duress which would make voidable a contract executed while a party was under such a threat.” Laemmar, 435 F.2d at 682. Certainly a factfinder might rationally find the threat of being fired traumatic, especially for a managerial employee of middle age. And as Laemmar teaches, a threat may amount to duress even though the employer is legally entitled to fire the employee. Id.

Most critically for current purposes, the existence vel non of duress under such circumstances must be a matter for the trier of fact. Id. That conclusion is buttressed by Oglesby’s assertion he was in a state of “rage” during the entire interview, causing him to be “at a complete blank” (Dep. 139). And even apart from that factual issue, to return to Oglesby’s first point, the ambiguities inherent in the language and factual context of the Release preclude any ruling as a matter of law as to the Release’s intended coverage. Under the circumstances the question of contractual intent must likewise be for the trier of fact. Fitzsimmons v. Best, 528 F.2d 692, 694 (7th Cir.1976) (per curiam). For either or both of Oglesby’s asserted reasons, then, the Release does not necessarily bar his claims.

2. Prerequisites to ADEA Action

Section 626(d) provides:

No civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission....

Stearns v. Consolidated Management, Inc., 747 F.2d 1105, 1111 (7th Cir.1984) holds the Section 626(d) filing requirement is not jurisdictional (so as to permit sua sponte dismissal of an ADEA suit for lack of compliance), but it is a condition precedent to an ADEA suit that may be waived or equitably tolled. There has been no waiver by Coca-Cola, nor does Oglesby claim equitable tolling. Thus the question is simply whether Oglesby has “filed” an age discrimination claim.

It is conceded Oglesby did not check a box labeled “age discrimination” on his EEOC charge sheet, for no such specific box exists. Nor did Oglesby’s statement of particulars in the EEOC charge (Dep.Ex. 10) mention age discrimination or any facts that would imply it (even Oglesby’s own age was not specified), so as to satisfy Jenkins v. Blue Cross Mutual Hospital Insurance, Inc., 538 F.2d 164, 168 (7th Cir.1976) (en banc). Instead Oglesby points to the handwritten Letter, which he apparently included with his charge when he finally signed and sent it in. Oglesby wrote in the Letter (reprinted verbatim here, except that the original was printed entirely in capitals):

They have brought in new mgrs black Hispanic and white, this is still a cover up. It took most acct mgr five years to become district mgr. Yet they’re bringing in young men and giving them these position in two week, cuting cost by dismissing mgr with more time due to coming salary increase.

Oglesby contends that is sufficient notice to EEOC of a claim based in part on age discrimination. So long as EEOC has actual notice of a complainant’s age discrimination claim (even though the charge as written up makes no specific charge of such discrimination), he or she may bring suit under ADEA, Holly v. City of Naperville, 571 F.Supp. 668, 671-72 (N.D.Ill.1983). EEOC filings are mandated not to satisfy any technical pleading requirement reminiscent of the old forms of action, but simply to give EEOC the opportunity to investigate the basis for the claim and to “encourag[e] informal conciliation and foster [ ] voluntary compliance” by the employer. Brown v. Puget Sound Electrical Apprenticeship & Training Trust, 732 F.2d 726, 730 (9th Cir.1984). Obviously EEOC cannot investigate or attempt to conciliate a charge of which it is not aware. But if it has actual notice, technical compliance with the format of its charge sheet—not a litigation complaint to be served on the employer, but just a source of information for EEOC to use in its investigation—may be convenient but is scarcely necessary. That is not a fair reading of “a charge ... filed with” EEOC for Section 626(d) purposes.

Coca-Cola’s further argument—that the ADEA charge must be stricken because EEOC never in fact investigated the claim—is equally without merit. Coca-Cola is simply wrong in claiming Clark v. Chrysler Corp., 673 F.2d 921, 931 (7th Cir.1982) requires actual EEOC investigation as a condition precedent to an ADEA suit. Clark treated lack of such investigation as an evidentiary indication that no claim of sex discrimination had in fact been brought to EEOC based on information supplied by the claimant. Here Oglesby relies on the Letter, not on EEOC’s investigation, to show he made an age-discrimination claim. What controls is not what EEOC did but what it was given the opportunity to do. Oscar Mayer & Co. v. Evans, 441 U.S. 750, 99 S.Ct. 2066, 60 L.Ed.2d 609 (1979) teaches an age-discrimination complainant need do no more than file an EEOC charge and wait 60 days before bringing suit. See Martinez v. United Automobile, Aerospace & Agricultural Implement Workers of America, Local 1373, 772 F.2d 348, 351 (7th Cir.1985); see also Babrocky v. Jewel Food Cos., 773 F.2d 857, 862, 866 (7th Cir.1985) (discussing the “utmost liberality” with which EEOC charges are to be construed).

Coca-Cola makes two further threshold contentions to bar the ADEA claim. Neither succeeds.

First Coca-Cola takes the unpersuasive tack that Oglesby’s statements in the Letter cannot be construed to refer to age discrimination, addressing instead only relative seniority among employees. But the Letter refers to the “young men” being brought in to replace managers “with more time due....” While Oglesby does not explicitly say the young men are replacing older men, he clearly complains an influx of young men has caused him trouble. No exercise of EEOC imagination would be required to read that and recognize a potential age discrimination problem.

Second, Coca-Cola asserts (1) the Letter is unauthenticated and therefore inadmissible under Fed.R.Evid. 901, so (2) it fails the Rule 56 test permitting consideration of “any material that would be admissible or usable at trial.” 10A Wright, Miller & Kane, Federal Practice and Procedure: Civil § 2721, at 40 (1983). At the outset it should be noted Oglesby does not offer the Letter as hearsay to prove the truth of what it asserts: Coca-Cola’s having engaged in age discrimination. Rather he seeks only to show EEOC received notice of his age discrimination claim.

Where documentary exhibits are presented by a Rule 56 movant to establish the absence of any disputed issue of fact, our Court of Appeals has required they bear the earmarks of “reliability and trustworthiness.” Bracey v. Herringa, 466 F.2d 702, 704-05 (7th Cir.1972). If this Court were faced with a hearsay problem and the Letter contained matter outside any recognized hearsay exception, that matter could not be considered on a Rule 56 motion even on behalf of the nonmovant. Pfeil v. Rogers, 757 F.2d 850, 860-61 (7th Cir.1985).

Here the Letter bears EEOC’s date stamp, identical in form, date and time to the date stamp on the charge sheet itself (see n. 15). That gives “at least ... a prima facie aura of reliability” justifying this Court’s reliance, absent “specific objections” from Coca-Cola. Olympic Insurance Co. v. H.D. Harrison, Inc., 418 F.2d 669, 670 (5th Cir.1969) (IBM printouts made in regular course of business may be considered on Rule 56 motion absent specific objections to their reliability). Coca-Cola argues not that the Letter cannot be authenticated for the purpose of showing EEOC receipt, but only that it has not yet been authenticated. Nothing about the stamp or the Letter gives pause in that respect.

Moreover Coca-Cola itself relies on the authenticity of the date stamp on the charge sheet in support of its argument as to what was filed with EEOC. It cannot have it both ways. This Court would commit an injustice by granting Coca-Cola summary judgment in Oglesby’s ADEA claim due to such an easily-remedied flaw, and it declines to do so.

Oglesby’s Claims of Discrimination

This opinion turns at last to the substantive merits. Both sides have engaged in extensive — and at times contentious — discovery. Neither side has been wholly candid in his or its exposition of the facts in the briefs, and Oglesby has failed to comply with this District Court’s General Rule 12(f) (requiring him to controvert Coca-Cola’s Statement of Uncontested Material Facts). All that has made this Court’s (and before that its law clerk’s) task more difficult but (as the following discussion reflects) still manageable.

Section 623(a)(1) provides:

It shall be unlawful for an employer—

(1) to ... discharge any individual or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age....

That “because of ... age” requirement is a proximate cause concept — what Golomb v. Prudential Insurance Co. of America, 688 F.2d 547, 552 n. 2 (7th Cir.1982) (emphasis in original) defines as age being “a determining factor” in the employee’s discharge or other adverse employment action. As Parker v. Federal National Mortgage Association, 741 F.2d 975, 978 (7th Cir.1984) said:

[A]n employer does not violate the ADEA merely by discharging an employee whose age falls within the protected category.

Like most other courts, our Court of Appeals has adopted for ADEA purposes (see Golomb, 688 F.2d at 551) the Title YII three-step approach articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981):

1. Plaintiff must prove a prima facie ease of discrimination by a preponderance of the evidence.
2. Defendant must then articulate a legitimate, nondiscriminatory reason for the adverse action.
3. If defendant carries that burden, plaintiff must then show by a preponderance of the evidence that the proffered reason or reasons amounted to a pretext for discrimination.

Those shifting burdens relate to production only, with the burden of persuasion always remaining on the employee (Burdine, 450 U.S. at 253, 101 S.Ct. at 1093). Of course the Rule 56 context requires the employee only to demonstrate the existence of a material fact issue, not to carry the day entirety-

There is no hard-and-fast rule as to how a prima facie ADEA case must be made. Direct evidence, such as an employer’s statement about wanting to get rid of older employees and to replace them with younger ones, will of course suffice. Stumph v. Thomas & Skinner, Inc., 770 F.2d 93, 97 (7th Cir.1985). Absent such direct evidence, a prima facie case may be established when a plaintiff shows (id. at 96):

(1) he was a member of the protected class (persons aged 40 to 70); (2) he was qualified for his position; (3) he was terminated; and (4) he was replaced in his position by a younger person.

Title VII’s Section 2000e-2 prohibits discrimination “because of ... race, color, religion, sex, or national origin” on the same terms as ADEA. Finally Section 1981 provides:

All persons within the jurisdiction of the United States shall have the same right ... to make and enforce contracts ... and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens....

It requires purposeful discrimination on the basis of race. General Building Contractors Association v. Pennsylvania, 458 U.S. 375, 389, 102 S.Ct. 3141, 3149, 73 L.Ed.2d 835 (1982). As with Title YII and ADEA, under Section 1981 “the basic inquiry is the same: Was [plaintiff] suspended for an impermissible reason of racial animus?” Gill v. Westinghouse Electric Corp., 594 F.Supp. 48, 51 (N.D.Ill.1984).

Given the identity of the burden of proof involved, there is no need to go into Oglesby’s claims of race and age discrimination separately. Oglesby has not made out a prima facie case as to either.

Because Oglesby was a 45-year-old Black man, he was within the protected classes of race and age, and he admittedly suffered an adverse employment action. See Stumph, 770 F.2d at 96. But Coca-Cola says Oglesby was not qualified for his position because the undisputed facts show he was not performing up to Coca-Cola’s expectations: His communications with his salesmen were poor (Morgan Dep. 22); he did not call on all of his “key accounts” even once a month, though twice a month was the requirement (Morgan Dep. 33, 41); he did not ride his routes at least twice a week as required (Morgan Dep. 53-54); he did not see that “corporate standards” were maintained in the stores on his routes (Morgan Dep. 56); he did not keep his supervisor fully informed of competitors’ activities in the marketplace as required (Morgan Dep. 105); and he allowed deliveries to be made on a charge basis to a store not approved for credit purchases (Morgan Dep. 102). In addition he produced the lowest gross profit of any route manager at Alsip in 1982 (P.Int. 4(a)).

Oglesby first urges those complaints about his performance are not relevant to his prima facie case. As he points out, Coca-Cola responded to P.Int. 3(c) (“State why the Plaintiff in January of 1983 did not have the necessary qualifications, and state what qualifications he lacked”) by stating, “Plaintiff did not lack the necessary qualifications.” Oglesby thus would have it he also met the second Stumph factor: “He was qualified for his position.”

That is no more than a semantic quibble. Coca-Cola does concede Oglesby was “qualified” for his job in the limited sense he had the prerequisite qualifications to be hired into that job. In view of his having been a route manager for about four years at the time of his termination, it could hardly be said he was not “qualified” in that sense. But to be “qualified” for purposes of establishing a prima facie case, an employee such as Oglesby must show he “was performing his job at a level that met his employer’s legitimate expectations.” Huhn v. Koehring Co., 718 F.2d 239, 243 (7th Cir.1983) (quoting Loeb v. Textron, Inc., 600 F.2d 1003, 1014 (1st Cir.1979)). See also Mason v. Pierce, 774 F.2d 825, 827-29 (7th Cir.1985) (upholding summary judgment against Title YII claimant whose affidavit did not show she met her employer’s legitimate job performance expectations; she did not show she was “qualified” for her job and thus did not make out a prima facie case of race discrimination).

Thus Oglesby’s prima facie case must in part show he was “doing what his employer wanted him to do.” Kephart v. Institute of Gas Technology, 630 F.2d 1217, 1223 (7th Cir.1980) (per curiam). Of course the employer may not make unreasonable demands upon an employee in order to allege dissatisfaction. Id. But Oglesby’s strenuous efforts to make out a case for the unreasonableness of Coca-Cola’s requirements have not “set forth specific facts showing that there is a genuine issue for trial.” Egger v. Phillips, 710 F.2d 292, 296 (7th Cir.1983).

For the most part Oglesby has attempted to show sales volume was the most important component of a route manager’s job, and at least during certain months his sales volume was quite good (Morgan Dep. 59-64). Morgan said sales ranked highest in importance among route managers’ responsibilities (Morgan Dep. 17), and Hallstrom rated sales as 85-90% of a route manager’s goals (Hallstrom Dep. 45). But even if it were conceded that Oglesby was a top salesman (notwithstanding his bottom rank for the whole of 1982), he cannot claim he met his employer’s legitimate expectations by simply keeping up his sales. Coca-Cola unquestionably required other things as well, such as monitoring of delinquent accounts, reports on market activity, riding routes with drivers and filing timely written reports. As Kephart, 630 F.2d at 1223 teaches:

The question before the court is not whether the company’s methods were sound, or whether its dismissal of [plaintiff] was an error of business judgment. The question is whether he was discriminated against because of his age.

Oglesby cannot then (and in fairness, he does not) claim he met the business expectations of Coca-Cola. See Mason, at 829 (plaintiff’s affidavit admitted errors and warnings but blamed others; that did not detract from entry of summary judgment against her). Instead he advances the position that other route managers were not called on to do what was required of him. If true, that would have double relevance:

1. If no other route managers were required to ride routes, monitor delinquent accounts and so on, that would tend to show the requirements applied to Oglesby were not “legitimate” or a genuine aspect of a route manager’s job.
2. If no white or younger route managers were required to perform these tasks, that would tend to show Coca-Cola’s rationale for dismissing him was pretextual.

Those arguments might well carry the day for Oglesby if only he could back them up. But after hundreds of pages of deposition testimony and extensive documentary discovery, Oglesby has really produced no evidence other route managers were treated any differently than he. Though he claimed he was made to return to the office earlier in the afternoon than the other route managers, he could not “name names” of anyone given more latitude than he: “I don’t know who’s in, who’s out” (Dep. 64). Though he complained he was being harassed by Jancauskas about late reports, he did not know if anyone else was allowed more time; in fact Jancauskas would tell everyone about due dates “at a mass meeting” (Dep. 65). Though he said he was made to drive a route truck when a driver was unavailable, he admitted other route managers also drove trucks if need be (Dep. 67-68). Though he claimed other employees drank on the job, he could not point to anyone else at route manager level or below who drank on the job unless at a sales meeting with a supervisor (Dep. 71-74).

In sum, Oglesby’s “bare conclusory allegations” of disparate treatment are just the sort that fail to establish a genuine issue of material fact as to discrimination. Parker v. Federal National Mortgage Association, 567 F.Supp. 265, 270 (N.D.Ill.1983), aff'd, 741 F.2d 975 (7th Cir.1984). Nothing in his evidence suggests the duties thrust on him were illegitimate or there was selective enforcement of standards.

On the contrary, Morgan testified Ogles-by was the only one of his route managers who failed to visit key accounts as required and to ride routes regularly (Morgan Dep. 33, 41). Oglesby attempts to undercut that evidence by pointing to the statement of Donald Nash (“Nash”), who supervised Oglesby briefly at Alsip in 1981. Nash expressed the views that route riding was not terribly important and failure to ride routes was not a basis for disciplining route managers (Nash Dep. 40). From the evidence, however, region managers such as Nash and Morgan have a great deal of latitude as to what they require of route managers under their supervision. Morgan could rationally have perceived route riding as a significant part of his management program, while Nash did not. And once again failure regularly to ride the routes was only one of Oglesby’s flaws in Morgan’s eyes.

In short, Oglesby’s evidence, viewed most favorably to him, might at worst establish he was a victim of bad business judgment on his supervisor’s part — or even of individualized persecution (though the latter would represent a real stretching of the facts). What is dispositive here is that none of the evidence reasonably creates the inference that the business judgment (or the less tenable “persecution”) was based on Oglesby’s race or his age.

Oglesby raises another series of challenges to Coca-Cola’s evaluation of his performance. He claims the PUSH boycott of Coca-Cola products during five months of 1982 affected his statistics disproportionally, because most of his accounts were in Black neighborhoods. Some doubt exists whether Oglesby’s sales quota was adjusted to reflect the boycott: Hallstrom said it was (Hallstrom Dep. 206) while Nash said it wasn’t (Nash Dep. 48).

That entire issue is a red herring. Ogles-by was fired by Morgan — who became his supervisor three months after the boycott ended — not so much because of Oglesby’s sales performance, but for his failure to take care of other administrative duties required of him by Morgan. And even as to Oglesby’s sales performance, he has offered no evidence of the extent to which any problems he had were a result of the boycott or (as Coca-Cola would have it) of his poor follow-through.

Aside from his bare observation as to the existence of the boycott and the suggestion his poor performance should be laid at its door, Oglesby has tendered no facts in any way implying Morgan’s decision to terminate him was related to impermissible considerations of race or age. As already said, the boycott was past history when Morgan came aboard. Oglesby has directed this Court to no overt statements of a discriminatory nature (cf. Stumph, 770 F.2d at 94), nor does he show facts from which this Court might infer a general atmosphere of disparate treatment of whites and blacks or of younger and older employees.

All of Oglesby’s assertions that bear examination (and some that do not) have now been reviewed. It is plain he has not established a prima facie case in McDonnell Douglas-Burdine terms, for he has not shown he was “qualified” under the Huhn-Kephart standard. And as pointed out earlier, even were this Court to allow Oglesby’s foot into the door, the same arguments Coca-Cola advances to show he was not “qualified” would serve as an articulation of legitimate nondiscriminatory reasons for his termination. In those terms, Oglesby has wholly failed to show facts that would enable this Court even to infer a pretext. Gill, 594 F.Supp. at 53.

Whether under Title VII, ADEA or Section 1981, the analysis of Oglesby’s complaint is the same: He has failed to show any facts indicating either race or age was a factor in Coca-Cola’s actions. That entitles Coca-Cola to prevail on its Rule 56 motion.

Conclusion

There is no genuine issue of material fact and Coca-Cola is entitled to a judgment as a matter of law. This action is dismissed with prejudice.

Coca-Cola’s request for attorneys’ fees, however, is denied. Although Ogles-by failed to make out a case, his claim was not objectively frivolous, and his positions were correct on Coca-Cola’s strenuously urged issues as to the Release and the ADEA filing. Under the principles announced in Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978), Coca-Cola thus is not entitled to attorneys’ fees.

      . All citations to Title VII and ADEA will simply take the form "Section — ,” with numerical references to Title 42 (as to Title VII) or Title 29 (as to ADEA), rather than to either statute’s internal numbering. Because the statutes’ numbers are so different, no confusion should be occasioned by that usage.

      . Rule 56 imposes 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 the court must, in viewing the evidence, draw all reasonable infer-enees in the light most favorable to the nonmov-ant — here, Oglesby. Hermes v. Hein, 742 F.2d 350, 353 (7th Cir.1984). Throughout this opinion the recitals of facts adhere to those principles.

      . Aside from his 1955-59 tour of duty in the Marine Corps (Dep. 6), the record is silent as to Oglesby’s prior job experience.

      . Coca-Cola listed Fouda as ”0" (Oriental) on its list of employees by race (P.Int. 6(a) supp. response). Morgan described him as an Egyptian (Morgan Dep. 42).

      . At his deposition Morgan estimated he had talked to Oglesby about his performance approximately twice a week for four months (Morgan Dep. 80), although Oglesby actually worked under him for just over three months (mid-October 1982 to January 25, 1983).

      . Morgan said the decision to terminate an employee did not require Hallstrom’s approval, but in any event Hallstrom had never disagreed with Morgan’s decision to terminate anyone (Morgan Dep. 16).

      .It will be recalled Roberson was a marketing development manager already reporting to Morgan. Hallstrom labeled Roberson as Oglesby’s "replacement” (Hallstrom Dep. 124), but Coca-Cola’s P.Int. 8(c) supp. response shows Roberson was not placed as a route manager until April 15, 1983 (some seven weeks after Oglesby left Alsip). Nothing in the record indicates who, if anyone, acted as manager of Oglesby’s former routes in the interim.

      . According to Oglesby, a route manager’s key account book was supposed to show, for the important retail outlets (Dep. 78):
      [w]hat was on the shelf, what was the distribution, how many racks were in place, how many coolers were in the store and things of that nature, anything that pertained to Coca-Cola.

      . During the first part of 1982 Operation PUSH, a Chicago-based political, economic and educational action organization, sponsored a "withdrawal campaign within the black community” against Coca-Cola (Jancauskas Dep.Ex. 25). Just when the boycott began is not shown in the record, but it was apparently well under way by mid-April 1982 (Jancauskas Dep.Ex. 24) and it ended July 26, 1982 (Jancauskas Dep.Ex. 25).

      . That term describes a driver whose cash receipts are less than the amount of product removed from his truck (Dep. 23). Company policy as to the eligibility of drivers on the due bill to continue working before making good on the cash deficit is something of a bone of contention between the parties. Oglesby acknowledged the company policy that a driver could not work until he had paid off his arrears (Dep. 27), but Oglesby said he had a degree of discretion as to whether to allow a driver under his supervision to work, even without the approval of his own supervisor (Dep. 28). Jancauskas said a route manager was not permitted to make that decision unilaterally and must come to him for approval — which might be oral (Jan-causkas Dep. 43). This Court need not resolve the is'sue for purposes of the present motion, for the incident described in the text does not concern general company policy but rather a dispute over whether Jancauskas had in fact — as Oglesby claims — agreed to extend the drivers’ time to pay their arrears.

      . It seems plain the charge was filled out early in October 1982, as the last item referred to in the charge was a September 16, 1982 write-up from Jancauskas, and there was no mention of Morgan (who became Oglesby’s supervisor in mid-October 1982) or of Oglesby’s January 1983 termination. Oglesby testified he received a letter from EEOC telling him he must sign the charge and send it back in, although he was unclear as to the date of that letter (Dep. 104-OS).

      . Oglesby attached a photocopy of the Letter, dated 3-29-83 and date-stamped by EEOC April 5, 1983, to his Memorandum of Law in Opposition to Defendant’s Motion for Summary Judgment. As Coca-Cola R.Mem. 5-6 points out, the Letter has not been authenticated. This opinion later discusses the significance of that nonau-thentication and of the Letter’s mention of an age factor (as to which the original charge form had been silent).

      .Under the heading "CAUSE OF DISCRIMINATION BASED ON MY (Check appropriate box(es))” there are boxes for "RACE,” "COLOR," "SEX," "RELIGION," "NATIONAL ORIGIN" AND "OTHER (Specify)” (Dep.Ex. 10). Of course "age” would fall into the "other” category, but EEOC did not expressly specify to the unrepresented complainant that an age discrimination charge could be filed on the form. Neither party has addressed whether EEOC uses another form for ADEA charges.

      . Jenkins was a Title VII case, but there is no reason to believe its principles would not extend to filing under ADEA.

      . Each document bears the date stamp:
      April 5 1:55 PM '83
      EQUAL EMPLOYMENT OPPORTUNITY COMMISSION CHICAGO DISTRICT OFFICE

      . Oglesby’s identification of the charge at his deposition was not authentication of the receipt stamp. Authentication of a document for one purpose — its genuineness as a product of Ogles-by’s statements — is not necessarily authentication for another — its receipt by EEOC.

      . Coca-Cola does not argue Oglesby's leaving his employment, while technically a resignation, was not a "termination” within the meaning of the ADEA. Indeed Coca Cola’s "Statement of Uncontested Material Facts” (D.Mem. 3) twice describes Oglesby's departure as a "termination.” Oglesby may have been given some choice as to the form of his termination, but there can be no doubt of Coca-Cola’s intent to cut off his employment as of January 25, 1983 regardless of Oglesby’s response to its offers.

      . Another way to show the purely semantic nature of Oglesby’s contention is to assume ar-guendo Coca-Cola admitted Oglesby was “qualified" in a broader sense. Even so and if Coca-Cola then had to address the second-step burden, the existence of its job requirements and Oglesby's failures to meet them would be a legitimate nondiscriminatory reason to terminate Oglesby. And Oglesby would have the comparable problem of proving those reasons pretextual.

      . Jancauskas Dep. Ill described Oglesby as “an excellent salesman ... a quality salesman. ... [H]e did have it but he did not take advantage of it.”

      . Oglesby's other assertions of mistreatment similarly fail to show any hint of racial or age-based animus. Thus he claims he was assigned a “raggedy van" while others drove new ones, but he does not show he was thus singled out among similarly situated route managers on the basis of race or age, nor does he even offer evidence of when such assignment of vans took place to permit tracing of the races and ages of comparable personnel from the record. In the same way he states but does not support his assertion as to dress requirements.

      . Nash however did not supervise Oglesby during the time of the boycott. He left Alsip in January 1981 for another division (Nash Dep. 5).

      . Two other route managers, DeCuir and Yock-ley, also served a primarily black clientele (Hallstrom Dep. 207), each of them serving under Nash in the Central division. Both of them did better by far than Oglesby in the 1982 profit standings: Yockley ranked 6th, DeCuir 11th and Oglesby 28th of 29 (Hallstrom Dep.Ex. 29). Yockley’s age and race do not appear in the record: DeCuir was a black, 10 years older than Oglesby.

      . Although the depositions and interrogatories have laid bare a vast amount of raw data as to the race, age and sales performance of Coca-Cola’s employees, Oglesby has not shown how it can be interpreted in his favor. Nothing suggests anyone who did not meet the job requirements imposed on Oglesby was retained: Route manager Ken Kwasny, a white male 21 years Oglesby’s junior, was also discharged for poor performance early in 1983 (Hallstrom Dep. 186-87; P.Int. supp. response 6(a)). Similarly, nothing flows from the absence of disciplinary notices issued to white route managers for misconduct like Oglesby’s (P.Mem. 14). Oglesby has not shown the prerequisite: the existence of such similar misconduct on the part of white managers, without their receiving such notices or other discipline. Cf. Gill, 594 F.Supp. at 51 (in disparate treatment case, qualitative differences in employee misconduct and work records shows they are not similarly situated for purposes of comparing disciplinary sanctions).