author: SIFTON, District Judge.

text:
    Brenda BERKMAN, Plaintiff, v. The CITY OF NEW YORK et alia, Defendants.
    No. CV-79-1813.
    United States District Court, E.D. New York.
    Oct. 8, 1985.
    Women’s Rights Clinic, Washington Square Legal Services, by Laura Sager and Debevoise & Plimpton, by Robert L, .King, Bart Schwartz, New York City, for plaintiff.
    Booth Lipton & Lipton, by Charles J. Hynes, New York City, for plaintiff-intervenor Ahrens.
    Frederick A.O. Schwarz, Corp. Counsel of the City of N.Y. by Norma Kerlin, Elizabeth Dale Kendrick, New York City, for City defendants.
    Colleran O’Hara & Mills, P.C. by John F. Mills, Mineóla, and Lipsig Sullivan & Liapakis, by Michael N. Block, New York City, for defendant-intervenor UFA Local 94.
    Salles & Danzig, by Stuart Sales, New York City, for defendant-intervenor Firefighters Eligibles Ass’n List # 1162, Inc.
   AMENDED MEMORANDUM AND ORDER

SIFTON, District Judge.

This action was commenced in 1979 to remedy alleged- discrimination against women in the selection of New York City Firefighters in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Civil Rights Act of 1871, 42 U.S.C. § 1983; the fourteenth amendment to the United States Constitution; and the New York Human Rights Law.

Plaintiff sued on her own behalf and as representative of a class of women who took and passed the written portion of the qualifying entry-level test for firefighters administered in 1977 (“Exam 3040”) and, thereafter, either took and failed or were deterred from taking the physical portion of that test. On July 10, 1980, this Court determined that the action could be maintained by plaintiff on behalf of a class of women so described.

Trial of the action occurred in 1981, and on March 4, 1982, this Court determined that Exam 3040 violated Title VII. Berk-man v. City of New York, 536 F.Supp. 177 (E.D.N.Y.1982), affd, 705 F.2d 584 (2d Cir. 1983). As a result, the Court directed defendants to hire up to 45 class members found to be qualified pursuant to a special qualifying examination to be agreed upon between the parties or, in the absence of agreement, to be determined by the Court. In addition, the Court directed defendants to commence forthwith preparation of a new qualifying exam that did not discriminate against women. On March 25, 1982, the Court entered a supplemental order directing the parties to cooperate in an effort to reach an accord as to the new selection procedure.

In August of 1982 the Court approved an agreement between the parties with respect to the qualifying test to be used as a basis for selecting the class members to be appointed to the fire department pursuant to the Court’s prior decision. This test was administered to interested class members in September 1982, and from the class members passing the examination, some 38 women became firefighters.

Efforts to reach agreement with regard to the content of a new physical test for all entry-level firefighters were less successful. Accordingly, in October 1982, defendants presented a proposed new test to the Court for approval, and in January and February 1983 evidence was presented with respect to the validity of the new test. At the conclusion of seven days of testimony on the subject, the Court adjourned proceedings without a date to permit the parties to explore further the possibilities of arriving at an agreement as to the contents of the new test. By May 1983, with no agreement reached, defendants, out of concern for the age of the list of persons eligible for appointment created from the previous Exam 3040, proposed to proceed with the administration the new test (Exam 1162), which thereafter occurred over a period of several months.

During this same period of time, in September 1983, plaintiff and another class member, Zaida Gonzalez, were terminated at the conclusion of their probationary period ostensibly because of their poor performance as probationary firefighters. A motion made by plaintiff to compel both class members’ reinstatement was heard by this Court in October 1983, which, on December 8, 1983, found that the two women had been subjected to intentional discrimination on account of their sex and directed their reinstatement. Berkman v. City of New York, 580 F.Supp. 226 (E.D.N.Y.1983).

Following the completion of the administration of the new test, plaintiff moved in June 1984 to enjoin the promulgation of a new eligibility list derived from it pending the completion of hearings with regard to the validity of the exam. On July 6, 1984, this Court entered an order restraining the promulgation of the eligibles list and appointments from it without prior court order, upon a showing of compelling necessity, pending determination of the validity of the exam. After further efforts to resolve the issues presented by the new test were aborted, hearings resumed and continued through the spring of 1985.

Based on the evidence adduced at the hearings with respect to the new exam, I conclude that it comports in general with the requirements of this Court’s decision of March 1982 with the exception of its scoring which purports to distinguish between qualified candidates to a degree of exactness not consistent with the lack of precision inherent in the exam. Accordingly, defendants are authorized to promulgate an eligibles list created from Exam 1162 and to make appointments therefrom in the manner set forth below. What follows sets forth the findings of fact and conclusions of law on which these determinations are based as required by Rule 52(a) of the Federal Rules of Civil Procedure.

1. Standing. The first issue requiring consideration is the standing of plaintiff to seek a determination that Exam 1162 does not comply with this Court’s orders directing the preparation and use of a new physical exam for entry level firefighters which does not discriminate against women. I conclude plaintiff has standing.

The decree which plaintiff seeks to enforce is one she obtained in protracted litigation in which she has consistently taken an active role both to secure her own rights and those of other class members. No suggestion has been made that she lacked standing to obtain the portions of the decree she now seeks to enforce, see Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 3331, 82 L.Ed.2d 556 (1974); Gilmore v. City of Montgomery, 417 U.S. 556, 570 n. 10, 94 S.Ct. 2416, 2424 n. 10, 41 L.Ed.2d 304 (1974). Nor has any argument been advanced that this Court lacks the jurisdiction retained in the original decree “to secure compliance with [the Court’s original] order ... [and] for consideration of such further interim or remedial relief as may be necessary and appropriate.” See, e.g., Green v. County School Board, 391 U.S. 430, 439, 88 S.Ct. 1689, 1695, 20 L.Ed.2d 716 (1968); Guardians Ass’n of New York City Police, Inc. v. Civil Service Commission of New York, 630 F.2d 79, 109 (2d Cir.1980), cert. denied, 452 U.S. 940, 101 S.Ct. 3083, 69 L.Ed.2d 954 (1981); Davis v. Board of Education, 674 F.2d 684, 680 (8th Cir.), cert. denied, 459 U.S. 881, 103 S.Ct. 178, 74 L.Ed.2d 146 (1982).

Both objectively and subjectively, plaintiff has demonstrated a real and concrete interest in assuring that she and her fellow class members have a non-discriminatory work environment in which to carry out their functions as New York City firefighters, an environment which would be substantially undermined if the next class of women applicants for the position of entry-level firefighters are deprived of an opportunity to join the ranks because of their sex.

As already noted, there are now less than 40 women firefighters in New York City out of a total of approximately ten thousand. Because of the nature of the department’s organization, no more than one woman firefighter has been assigned to any firehouse. As also previously noted, plaintiff herself and at least one other female firefighter were, after their appointment, subjected to intentional discrimination based on their sex in the all-male firehouses to which they were assigned. See Berkman v. City of New York, supra, 580 . F.Supp. 226. Thus, plaintiff and the class she represents face the prospect of losing much if not all they gained if, as a result of discrimination in further hiring, they are left as an insular minority of women firefighters who “slipped through the [Department’s] allegedly discriminatory screening practices.” See Gray v. Greyhound Lines East, 545 F.2d 169, 173, 175-76 (D.C.Cir. 1976); Chicano Police Officers’ Ass’n v. Stover, 526 F.2d 431, 437 (10th Cir.1975), vacated on other grounds, 426 U.S. 944, 96 S.Ct. 3161, 49 L.Ed.2d 1181 (1976), standing affd, 522 F.2d 918, 921 (10th Cir.1977).

Contrary to the argument of defendants and intervenors, this is not a case like Allen v. Wright, supra, 104 S.Ct. at 3331, in which a plaintiff asserts no more than the stigmatic injury which she shares with any other woman seeking to work for the New York City fire department. Here, plaintiff has suffered injury not only in being denied appointment by virtue of a prior discriminatory entrance exam, but thereafter by discrimination in the essentially male-only workplace in which she functions, resulting in her termination. By her efforts to ensure that Exam 1162 is non-discriminatory, she seeks to ensure that she will preserve the gains she has won as a result of the earlier trial. The presence of increased numbers of qualified women in the workplace will demonstrate, in a fashion in which no judicial decree can be expected to, that hostility towards women firefighters is misplaced and furnish witnesses ready and willing to speak out against continued discrimination by defendants and their employees.

2. Disparate Impact. This Court’s earlier decree required defendants to prepare a new physical exam for entry-level firefighters which did not discriminate against women. Accordingly, it is appropriate to consider whether the results of the exam present a prima facie case of sex discrimination and, if so, whether that prima facie appearance of discrimination may be explained by the requirements of the job. See Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 854, 28 L.Ed.2d 158 (1971); Albarmarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975); Guardians Ass’n, supra, 630 F.2d at 88.

Here, the undisputed facts concerning the hiring that may be expected to result from the administration of Exam 1162 demonstrate a disparate impact on women directly attributable to the physical portion of the facially neutral test instrument because of the statistically disproportionate results for men and women.

The written portion of Exam 1162 was administered on September 11, 1982, to 31,-421 candidates of whom 28,946 identified themselves as males and 566 identified themselves as females. 30,474 candidates or 98.58 percent passed the test, representing 98.65 percent of the male applicants (28,559) and 97.8 percent of the female applicants (554). In this connection, it bears noting that, despite a determination that the cognitive abilities tested by the written portion of the exam should be weighted equally with the results of the physical exam in determining which applicants were most qualified to be firefighters, the written exam failed lamentably to distinguish between the varying cognitive abilities of the applicants passing the exam. 83.21 percent of the candidates received a score of 90 or higher; 66.68 percent received a score of 94 or higher; the median score was between 96 and 97. 9,788 candidates received a score of 98 or above.

The physical portion of Exam 1162 was administered over several months to those candidates passing the written test with all female applicants being tested on two days, September 12 and 13, 1983. Unfortunately, the testing of the women applicants coincided with extensive publicity concerning discrimination on the job against plaintiff and her fellow class member Gonzalez, which eventually resulted in what this Court found, after hearings, to be retaliatory discharges on September 21, 1983 of the two women.

As occurred with respect to the prior physical exam, 3040, a surprisingly small proportion of the women passing the written exam presented themselves to take the physical exam. Thus, while 22,255 men, or 77.93 percent of those eligible, took the physical exam, only 165 women, or 29.78 percent of the eligible women, did so. Had women candidates eligible to take the exam presented themselves in the same proportion as did their male counterparts, 432 women, rather than 165, would have taken the test.

Out of the total of 21,313 candidates, both men and women, taking the physical exam, 21,236 men and 77 women passed it. The pass rate for men was 95.42 percent; the pass rate for women was 46.67 percent. Thus, the pass rate for women on the physical exam was less than 80 percent, i.e., less than four-fifths of the pass rate for men, and the pass rates for the two groups were separated by at least 27 standard deviations. Accordingly, it is clear that the physical exam had a disparate impact on women. See Castenada v. Partida, 430 U.S. 482, 497 n. 17, 97 S.Ct. 1272, 1281-82 n. 17, 51 L.Ed.2d 498 (1977); EEOC Uniform Guidelines on Employees Selection Procedures (the “Guidelines”), 29 C.F.R. § 1607.4(D).

3. Relation to the Job. As was the case in the trial of the underlying action, the parties have not attempted to prove all that the job of firefighting in New York City consists of so as to compare it with the test to establish whether the test is, in fact, job related. Instead, the parties have concentrated their efforts on the issue of test preparation in order to argue whether the methods of test preparation engaged in by the parties were or were not of the sort from which a job-related test could be reasonably expected to result. The distinction is significant because in the case of Exam 1162, unlike Exam 3040, all parties to a greater or lesser extent participated in the test preparation and did so with substantial amount of job knowledge and sophistication about job testing, acquired as a result of months of involvement in this litigation. Plaintiff’s efforts to measure the validity of Exam 1162 solely by reference to defendants’ compliance with a variety of standards for the preparation of neutral tests, including the EEOC Guidelines, the American Psychological Association’s Standards for Education and Psychological Tests (1974) (the “APA Standards”) and its Principles for the Validation and Use of Personnel Selection Procedures (2d ed. 1980) (the so-called “Division 14 Principles”) ignores the very substantial role she and her experts and attorneys played in the preparation of Exam 1162. And, while plaintiff points to the drawbacks of preparing Exam 1162 in the context of ongoing litigation in terms of the antagonism she and women applicants for employment faced as a result of her role in bringing to light sex discrimination in the fire department, she fails to place proper emphasis on the opportunities she enjoyed as a result of the adversarial process to prevent discriminatory impulses from realizing themselves in any blatant way in the process of test preparation.

As plaintiff concedes the qualifying test pursuant to which she and a sizeable portion of the class interested in becoming firefighters in fact did so “established the framework for Exam 1162.” Given the remarkable degree of success with which the class members performed on the qualifying test and the opportunities afforded plaintiff to improve upon it in developing a new entrance exam, it is difficult to accept plaintiff’s position that so much of Exam 1162 as derives from the qualifying test is not job-related and valid.

The qualifying test proposed by the City to this Court on May 25, 1982, consisted of two parts, a simulation of engine company tasks and a simulation of ladder company tasks, separated .by a 5-minute rest interval. The engine company simulation consisted of two tasks: dragging a length of 3V2 inch hose and lifting a roll of inch hose from the ground and carrying it upstairs. The ladder company simulation consisted of five tasks: raising a portable ladder, climbing a preset portable ladder with a hook, entering a window and climbing stairs to the fifth floor, hitting a 80 pound rolled hose with an 8 pound maul down the length of a 6 foot table, and dragging a 145 pound dummy around a marked course. The City proposed a cutoff time of 4 minutes, 9 seconds to complete the test.

There can be little doubt that the qualifying test was developed ünder the pressures of litigation without great attention to the guidelines, standards and principles available to test preparers proceeding on a more leisurely basis, and, yet, there is little reason to think that the test- proposed did not, in the main, adequately test for the important behavioral requirements of the job.

For one thing, the qualifying test, unlike Exam 3040, did not purport to test for the abstract physical endowments necessary to do firefighting work. Instead, it was founded on tasks in many important respects like those engaged in by firefighters on the job. Whatever the merits of a test of this sort in situations in which only one or none of the parties has previously studied the important work behaviors representative of the job, in a situation such as that presented here in which all involved had been studying that subject exhaustively as a result of ongoing litigation, a job-sample test had the advantages of both facial validity (securing acceptance of test results both from those who take it and those for whose benefit it is taken) and recognized content validity for those who have become job experts in the course of ongoing litigation.

In fact, the City’s proposed qualifying examination was speedily content-validated in this sense shortly after its initial presentation. Plaintiff’s expert, Dr. Raymond Mendel, after a week of revisiting City firehouses and observing job behavior with particular attention to the tasks identified as important in the City’s proposed test, criticized several aspects of the City’s proposal including the forcible-entry simulation, the rolled-hose carry, and the pace at which the test was to be performed. As a result of these criticisms, the parties agreed to modifications of the test by having the candidates lift the 2V2 inch rolled hose from shoulder height, rather than from the ground; reducing the weight of the rolled hose in the forcible-entry simulation from 80 to 60 pounds; and increasing the length of the rest period from 5 to 7V2 minutes.

The qualifying test became Exam 1162 with two additions and two modifications. A wall vault and hose pull were added. In addition, the 7-minute rest interval was converted to a 2-minute rest interval. Finally, instead of being a qualifying test rated on a pass/fail basis, Exam 1162 became a competitive event, rated on the basis of a candidate’s time to complete the series of evolutions.

The wall event originally proposed by the City was the 5 foot wall climb which formed the crucial part of Exam 3040 and had been the subject of extensive criticism in connection with the proceedings leading to the invalidation of that exam. Accordingly, the defendants not surprisingly acceded to plaintiff’s demands that the height of the wall be reduced to 4V2 feet in order to conform more closely to the tasks of firefighters in climbing over obstructions in the course of responding to a fire. At the same time, defendants also acceded to plaintiff’s demands that a somewhat duplicative walk through or over tires, initially proposed as an additional test, be eliminated, in part at least because of plaintiff’s argument that such a test, drawing on the experience of men in the military and in training for competitive athletic contests, would adversely impact women who lacked such a background.

The hose pull was added because it had been part of the set of job performance evaluators used in Philadelphia from which other essential elements of the qualifying test had been drawn, which had been eliminated only because of a misunderstanding on the part of a representative of the City’s Department of Personnel as to the manner in which a hose pull was performed by firefighters in New York City. According to credible testimony of Dr. Phillip Siegel of the Department of Personnel, the hose pull was left out of the qualifying exam because of his understanding that, when the task of pulling an uncharged length of hose to an upper story of a building over a hose roller attached to a window or roof was performed in New York City, it was done by two or more firefighters working together. When this misunderstanding was corrected, the hose pull using a hose roller was restored to the series of evolutions used in Philadelphia to measure job performance. While plaintiff correctly faults defendants for the somewhat ad hoc manner in which the hose roller subtest was added and argues that its adverse impact on women was not adequately studied, she does not offer any persuasive evidence to answer defendants’ proof that the task does, in fact, reflect an important firefighting activity and calls upon physical capacities, namely, upper body strength, required by a number of other firefighting tasks not otherwise tested in the battery of physical tests developed. Moreover, plaintiff’s complaints concerning the inadequacy of the job analysis performed by the City as a basis for adding the hose pull are considerably undercut by her acknowledgement that the subtest had its origin in the same series of job evaluators from which the other subtests reflecting a representative group of important job tasks were selected. Nor is the subtest as actually administered, after a familiarization program, of such complexity or difficulty as to justify fears that it tested learned behavior as opposed to a candidate’s capacities to be trained to be a New York City firefighter.

The principal ground for contention between the parties relates to their differing approaches to an issue which first arose in connection with Exam 3040, namely, the issue as to the role of speed versus pacing in the performance of firefighting or, to put it another way, the need for anaerobic as opposed to aerobic energy in performing important firefighting tasks. On this issue, this Court had previously rejected the City’s position that firefighting is an all-out sprint event performed at maximal heart rate, calling on reserves of aerobic energy in connection with Exam 3040, and plaintiff’s arguments that defendants failed to develop an adequate job analysis with respect to this issue carry considerable force.

In its opinion invalidating Exam 3040, this Court found:

“Few jobs making large physical demands, least of all firefighting, are properly performed at maximum speed or at the limits of one’s strength or endurance. As [plaintiff’s] witnesses testified, what must be identified are not those who are strongest or fastest but, instead, those who, with the benefit of training in pacing or because of their natural capacities of endurance, can perform the punishing tasks of firefighting as they are actually required to be performed. According to these witnesses, firefighting takes its toll, not as a result of failures of maximum strength or speed, even at critical moments, but rather through the physical demands extending over long periods of time which necessitate paced performance at less-than-maximum levels. This explanation makes sense of a number of otherwise puzzling features of firefighting, namely, the ability of firemen to continue to do their work competently over an entire working career and the results of physical testing of incumbent male firemen which show that on a variety of measures of maximum physical capacity firemen rate no better than the average American male. It also makes sense in terms of the recognized dangers of firefighting and their unpredictability which, as numerous witnesses testified, make hazardous in the extreme performance at top speed or at the limits of strength or capacity. Not only does maximal performance compromise the firefighter’s ability to pace performance over the long periods of time during which physical demands are being made on the body, in addition, the very unpredictability of fire and the instability of burning structures call upon qualities of foresight, endurance, and pacing not examined by tests of maximum physical strength.”

Berkman v. City of New York, supra, 536 F.Supp. at 212 (footnotes omitted). Despite these findings and this Court’s stated readiness to hear additional proof on the issue, defendants failed lamentably to establish a basis for the emphasis placed on maximal strength and speed in Exam 1162.

Three separate aspects of the physical portion of Exam 1162 are principally responsible for the test’s emphasis on speed and anaerobic energy as the distinguishing characteristics of applicants meriting selection as a New York City firefighter: first, the notice to applicants that performance would be measured on time to complete the physical tests; second, the brevity of the test; and, third, the relatively narrow banding of the ranks from which appointments will be made. With respect to these three hotly contested aspects of the exam, defendants performed an inadequate job analysis.

The principal basis for the exam’s emphasis on speed was a questionnaire distributed to a small group of job experts on October 18, 1982. Since defendants had already, in June 1982, distributed a job-analysis questionnaire to approximately 2,000 firefighters which could have but did not address the key issue of pacing, and since the distribution of the October questionnaire followed rather than preceded the defendants’ application to this Court in October 1982 for approval of Exam 1162 on a rank ordered time to complete basis, there is considerable substance to plaintiff’s contention that the questionnaire was conceived of as an effort to rationalize a decision to emphasize speed and anaerobic energy, rather than as a neutral inquiry to determine the role of pacing in the performance of actual firefighting tasks.

However, quite apart from the circumstances giving rise to the distribution of the questionnaire, its content hardly permits a conclusion that it constituted a neutral inquiry into the question of the pace at which firefighting is actually performed. Instead, the questions appear designed to lead respondents to answers that are supportive of defendants’ oft-expressed contention that firefighting tasks are performed at top speed and at maximal energy levels. Thus, rather than ask the respondents to describe the pace (or even speed) at which various firefighting tasks are performed, the questionnaire describes the proposed new physical test for entry-level firefighters and then baldly asks whether firefighters performing those tasks should complete them in the “fastest possible time,” assuming only that they are not hindered by smoke or obstructions. Quite apart from the dangers of alerting respondents to the significance of their answers in terms of constructing a rating system for a new physical exam and the ambiguity of the phrase “fastest possible time” in terms of what factors, if any, other than smoke and obstructions should be taken into account in framing an answer, the leading nature of the question quite obviously suggests its answer, and not surprisingly the largest number of respondents answered “yes.” Nevertheless, the obvious qualitative common sense of a number of the comments offered by those able to resist the invitation to respond affirmatively should have indicated to a neutral observer both the ambiguity of the question and the need for further inquiry. Thus, among the responses from incumbent firefighters (on a questionnaire which did not even leave space for comments) were the following:

“What is considered maximum possible speed? On the fire scene most is done walking, not running, for safety reasons”; “Hose stretching at fire operations is never performed at maximum speed (or to point of exhaustion) because the truly arduous task begins at the apartment door”; “If operating at maximum speed one would tend to get emotional and emotions could interfere with clear thought”; “[F]ire operations require speed, tempered with safety and corrections of actions. The terms fastest possible time and maximum possible speed seem to represent an overemphasis on speed.”

Essentially the questionnaire responses which form the basis for the exam’s emphasis on speed and anaerobic activity do no more than reveal the obvious, that all else being equal everyone would like fires to be extinguished and victims extricated in the shortest time possible given the constraints of the job. However, it is precisely the question as to what the constraints of the job are that remained unexplored, with the exception of smoke and obstructions on stairs, together with the effect of those constraints on the speed with which firefighters actually do their work. The defendants’ failure to explore in a neutral and above-board fashion this well-identified issue can only confirm this Court’s earlier conclusion that a test that places undue emphasis on anaerobic energy and speed invidiously discriminates against women.

It is also the case that defendants failed to pay reasonable attention in constructing the test to the degree of emphasis placed on anaerobic energy by the manner in which the test was administered. Essentially, the physical test consisted of two bouts of violent physical exercise which applicants were encouraged to perform at maximum speed (and which, if performed at a pace meriting selection according to the City’s rating scheme, had to be performed in approximately 90 seconds) separated by an enforced 1 minute 40 second recuperation period. As plaintiff points out, the effect of inserting the rest period between two episodes of anaerobic exercise converts the test into the equivalent of “wind sprints” in which persons who exhaust themselves by a maximum expenditure of anaerobic energy on the engine company simulation are given a recovery period permitting them to rely again principally on anaerobic energy to complete the ladder company portion of the physical exam. Defendants appear never to have considered that a test taking the same time to administer, but filled completely with strenuous physical activity, might not only resemble more closely the level of physical activity actually required of firefighters at fires, but also might enforce pacing on the candidates, giving some reading of the candidate’s aerobic energy. In structuring the test, defendants appear to have ignored not only this Court’s prior findings concerning the role of aerobic energy in performing firefighting functions but also the recommendations of the same expert whose Philadelphia evaluators appear to have been the principal source of both the qualifying exam and Exam 1162 that the test last 5 to • 10 minutes without a recovery period.

What has been said concerning the demands of firefighting should not be taken as a finding that firefighting is entirely an aerobic activity, making no demands for the expenditure from time to time of anaerobic energy at maximal oxygen levels, but only that defendants’ exam, including in particular their proposed rating system, places too great an emphasis on the anaerobic capacities of candidates with too little regard for those aspects of firefighting that call upon prudent, paced performance. Ironically, this finding is confirmed by defendants’ criterion study which shows a lower correlation between raw scores achieved on the physical test and the performance of persons taking the test as evaluated by defendants’ criterion measures than when a banding system was used, a subject discussed more at length below.

Finally, defendants appear to have paid singularly little attention to the emphasis placed on anaerobic energy by the narrow thirty-second banding of the scoring system selected and its extraordinarily adverse impact on women. Indeed, the scoring system selected by the City, given the realities of the hiring process, appears to have virtually assured that no women would be appointed from the eligibility list created for Exam 1162, despite the substantial number of women who passed the exam.

Based on past experience with other eligibility lists, defendants predict that they can reasonably expect to hire only some 2,800 firefighters from the total of 21,313 candidates who passed the exam. Again, based on past experience, the City predicts that offers of employment may be expected to be extended to approximately 6,500 applicants on the list in order to find the 2,800 candidates needed to fill the fire department’s needs over the expected life of the eligibility list. To reach these top 6,500 candidates using the rank order proposed by the City, the City would get no farther down the list than to those candidates with a combined score on the written and physical tests of 94.5 or above. There are, however, 7,344 persons on the current list with a score of 94.5 or above, and, of this group, only two are women. Accordingly, the City’s rank ordering decision appears of crucial significance in determining the adverse impact of the physical exam on women.

This Court’s earlier decision directed defendants in their preparation of a new exam to validate the exam in general accord with the Uniform Guidelines including the Guideline’s requirement that alternative measures with equal validity but with less adverse impact on the protected group be explored and used where available. 29 C.F.R. § 1607.14(B)(9). Accordingly, it is of particular significance that the alternative three-band scoring system proposed by plaintiff shows greater validity than the seven-band rating system proposed by the City. Use of the three-band rating system accordingly appears required by defendants’ own criterion measures as well as by the failure of defendants in their job analysis and test preparation to give due consideration to the demands made on aerobic energy in performing firefighting tasks. Finally, the selection of firefighters from among broader rating bands will serve to redress the undue emphasis placed on the physical portion of Exam 1162 as a result of the extraordinarily indiscriminate written portion of the exam.

There remains for consideration what steps, if any, should be taken because of the extraordinary fall off of interest on the part of women candidates who passed the written exam when called on to present themselves for physical testing. Had women passing the written exam presented themselves for the physical exam in the same proportion as their male counterparts who passed the written test, some 432 women would have taken the physical exam as opposed to the 165 who actually did so. Here, even more obviously than was the case with respect to Exam 3040, it may be inferred that continued discrimination within the fire department in the form of highly publicized events leading to the termination of plaintiff and class member Gonzalez served to discourage women applicants from joining the fire department ranks. For this consequence of the fire department’s continued discrimination against women some remedy appears appropriate.

While counsel for defendants has proposed offering the women deterred from taking exam 1162 a new chance to do so, a number of considerations weigh against this course of action. First, a substantial time lapse has occurred between the time the physical portion of Exam 1162 was administered to women and now, so that age and lack of conditioning will undoubtedly continue to deter a substantial number of women once interested in taking the test from taking it at this time. Equally important, nothing defendants have done in the interim since September 1983 has served to allay the fears generated at the time that the fire department has failed to correct the intentional discrimination against women in its ranks which this Court found existed in its decision restoring plaintiff and class member Gonzalez to the ranks. Finally, no women who passed the written exam but did not take the physical have come forward to express an interest in this alternative. Accordingly, it seems more appropriate to consider the interests of plaintiff and the class she represents, namely, the group of approximately 38 who are currently women firefighters, in fashioning a remedy that affords them colleagues who are committed to becoming firefighters and not easily deterred by the department’s failure to eliminate discrimination in the ranks.

With these considerations in mind, it seems appropriate that, in the random selection process within each of the ranks to be established pursuant to this decision with respect to the physical portion of Exam 1162, each women who passed the exam will be afforded a somewhat greater chance of selection than her male counterparts. This will reflect the likelihood that, had 432 women presented themselves to take the exam, the number of women passing the exam would presumably have increased correspondingly from 77 (out of 165) to 201 (out of 432). Assuming that the 124 additional women would have been spread over the ranks in a pattern corresponding to the 77 women who actually took the exam and passed, each woman on the eligibility list should be afforded an increased opportunity over an equally ranked male to be selected in a ratio of 2.62 to 1.

The parties have apparently not explored the impact on women of using a three-band system with respect to the physical portion of Exam 1162 in combination with the results of the extraordinarily indiscriminate written exam. Since the written exam fails to make meaningful distinctions between various candidates’ cognitive ability, it may be that rating the written exam on a pass/fail basis or in bands will result in a test with equal validity but less adverse impact on women. The parties are accordingly directed to address themselves to this issue and to settle an order on ten days notice together with supporting briefs and, if necessary, additional evidence that is consistent with this opinion.

In summary, defendants have constructed and administered a physical examination that tests for the important physical capacities necessary to be a successful firefighter. However, the scoring system used by defendants places undue emphasis on certain physical capacities not required for the job. Accordingly, defendants are directed to develop a new scoring system, using the three-band division of the raw scores on the physical portion of Exam 1162 proposed by plaintiff in combination with the results of the written portion of the exam scored on a basis that has equal or greater validity than the present scoring system and the least adverse impact on women. Selection of women passing Exam 1162 using this scoring system shall compensate for the impact of defendants’ discriminatory conduct in deterring qualified women candidates in the manner outlined above.

SO ORDERED.

      . Pending the creation of a new exam, appointments of male firefighters continued to be made from the eligibility list created from Exam 3040, with corresponding increases in the number of positions open to females who passed the qualifying exam.

      . In fact, the principal source of the City’s proposed test appears to have been a criterion test used by the City of Philadelphia to measure performance by incumbent firefighters. While there are, of course, dangers in using a job performance measure to choose between applicants for entry-level employment, those dangers appear to have been in the main eliminated here because of the simplicity of the test as modified and the familiarization program afforded applicants prior to the test’s administration.

      . For example, it appears undisputed that overhauling and pulling of ceilings form an important part of firefighting in New York City and call upon reserves of upper body strength not otherwise tested in Exam 1162.

      . As previously noted, the facts that the qualifying exam included a 7-minute rest period and was rated on a pass/fail basis militate against any finding that the successful performance of plaintiff and other class members on the qualifying exam demonstrates that all-out speed as opposed to pacing is of the essence in firefighting.

      . Significantly, Chief Homer Bishop testified that firefighters need at least 5 to 10 minutes to get a one-room fire "under control,” not counting additional time needed for overhauling and take-up operations. Other evidence established that the average time spent by firefighters at a "good job” is 40 to 60 minutes with a range from 25 minutes to 2 hours or, in unusual cases, 7 hours.

      . Plaintiff launches a considerable attack on the defendants’ criterion measures, relying principally on her concerns that the "highly polarized" atmosphere prevailing within the department at the time the criterion studies were performed and the small sample of women available within the department to be evaluated render the results of the criterion studies suspect or worse. In ideal circumstances, certainly such concerns are well-founded: a more neutral atmosphere and a larger sample of female firefighters would, of course, be desirable to ensure reliability of the City’s criterion studies. However, test preparation and the application of the Guidelines must go forward in the real world including situations such as that presented here where a charged and contentious atmosphere results from ongoing litigation and the limited number of female incumbents results from the relatively recent interest of women in firefighting work. What the Guidelines enjoin are reasonably competent efforts to prepare a non-discriminatory exam, not perfection. Plaintiffs arguments that the criterion studies were deliberately rigged to validate Exam 1162 are not borne out by the evidence of record.


source: Caselaw Access Project

author: SCOTT O. WRIGHT, Chief Judge.

license: Public Domain

text:
    Linda A. NELSON, et al., Plaintiffs, v. MISSOURI OSTEOPATHIC FOUNDATION, et al., Defendants.
    No. 85-4186-CV-C-5.
    United States District Court, W.D. Missouri, C.D.
    Oct. 15, 1985.

      Sheryl A. Feutz, Carson, Monaco, Coil, Riley & McMillin, Jefferson City, Mo., for plaintiff Nelson.
    Bradley H. Lockenvitz, Jefferson City, Mo., for plaintiffs Philbert and Linda Moore.
    Victor Tell Neff, Bushmann, Neff, Gallaher & Brown, Jefferson City, Mo., for plaintiff Moore.
    P. Pierre Dominique, Jefferson City, Mo., for defendants Mo. Osteopathic Foundation, Cox, Barnes, Jaco, Stoll, and Medley.
    Kelly Mescher, Asst. Atty. Gen., Jefferson City, Mo., for defendants Agniel, Balazic, Moore and Duncan.
   ORDER

SCOTT O. WRIGHT, Chief Judge.

Pending before the Court is a motion for summary judgment submitted by defendants Charles E. Still Hospital, Cox, Barnes, Jaco, Stoll, and Medley, a separate motion for summary judgment submitted by defendant Agniel, and a motion for judgment on the pleadings submitted by defendants Balazic, Moore, and Duncan. For the reasons set forth below, each of these motions will be sustained.

I. Background

This case arises under 42 U.S.C. § 1983. In essence, plaintiffs contend that their constitutional rights were violated when the various defendants failed to prevent one Emmet Nave from kidnapping and sexually assaulting them.

At all relevant times, plaintiffs were employees of defendant Charles E. Still Hospital. Defendants Moore and Duncan were members of the Missouri Department of Probation and Parole. Defendants Balazic and Agniel were parole officers who allegedly were responsible for supervising Em-met Nave while he was on parole. Defendant Charles E. Still Hospital was, at all relevant times, engaged in the business of operating a hospital licensed by the State of Missouri. One of the programs at the hospital was an Alcohol and Drug Treatment Program in which various parolees, including Emmet Nave, were enrolled. Defendant Cox was the Administrator of the hospital. Defendant Barnes was the supervisor of the hospital’s Alcohol and Drug Treatment Program. Defendant Jaco was Director of Nursing at the hospital. Defendant Stoll was Supervisor of Housekeeping at the hospital. Lastly, defendant Medley was, at all relevant times, Supervisor of Security at the hospital.

Although the hospital is a private entity and defendants Cox, Barnes, Jaco, Stoll, and Medley are private individuals, plaintiffs nevertheless have alleged that all of these defendants were acting “under color of state law” with respect to this case. In particular, plaintiffs have alleged that these defendants were acting “in concert” with members of the Missouri Department of Probation and Parole in the administration of the Alcohol and Drug Treatment Program at the hospital and conducted their activities in conformity with and pursuant to the policies, regulations, and decisions of the parole board.

As noted above, the gravamen of plaintiffs’ complaint is that defendants are somehow responsible for the fact that they were kidnapped and sexually assaulted by Emmet Nave while Nave was enrolled in the Alcohol and Drug Treatment Program at the defendant hospital. According to the complaint, Nave was paroled from the Missouri State penitentiary on March 14, 1983, and was to be supervised by defendants Balazic and Agniel. One of the conditions of Nave’s parole was that he refrain from the use of alcohol and illegal drugs. While he was on parole, Nave enrolled in the Alcohol and Drug Treatment Program at the defendant hospital. On November 17, 1983, Nave entered a plea of guilty to a charge of driving while intoxicated, but his parole was not revoked immediately. Two days later, on November 19, 1983, Nave came to the hospital, kidnapped plaintiffs at gunpoint, took them to a mobile home, and sexually assaulted them.

In Counts I, II, III, and VIII of their complaint, plaintiffs claim that defendants Balazic and Agniel are legally responsible for the injuries inflicted by Nave by reason of their failure to initiate parole revocation proceedings with respect to Nave on November 17, 1983. In Counts IV and V of their complaint, plaintiffs claim that defendants Moore and Duncan are liable to them for granting Nave parole and referring him to the Alcohol and Drug Treatment Program of the hospital without warning plaintiffs and other hospital employees of Nave’s dangerous propensities. In Counts VI and VII, plaintiffs claim that defendants Cox, Barnes, and the hospital are legally responsible for plaintiffs’ injuries by permitting Nave to enroll in the Alcohol and Drug Treatment Program without providing adequate security and protection to employees of the hospital. Emmet Nave is not named as a defendant.

II. Parole Officials’ Motion for Judgment on the Pleadings

A motion for judgment on the pleadings has been submitted by defendants Moore, Duncan, and Balazic. This motion will be sustained for two fundamental reasons.

First, each of these defendants is entitled to absolute immunity. In Evans v. Dillahunty, 711 F.2d 828 (8th Cir.1983), the Eighth Circuit held that parole officials are entitled to absolute immunity with respect to their decisions to “grant, deny, or revoke parole.” Id. at 831. Plaintiffs’ claims against the members of the Parole Board are predicated on their decision to grant Emmet Nave parole. The claims against defendant Balazic are based on her failure to initiate parole revocation proceedings. Thus, under Evans, these defendants are not subject to suit for damages.

Second, the claims against these defendants are defective because plaintiffs’ allegations fail to state a cause of action. Under Fed.R.Civ.P. 12(c), the allegations in plaintiffs’ complaint must be taken as true. Nevertheless, even taking plaintiffs’ allegations as true, there is no basis for holding these defendants liable under § 1983. In order to state a claim under § 1983, the plaintiffs must allege two essential elements: (1) that the defendants caused a deprivation of the plaintiffs’ federal rights; and (2) that the defendants acted under color of state law. E.g., Mills v. Iowa State Penitentiary, 774 F.2d 1172 (8th Cir.1985). With respect to defendants Moore, Duncan, and Balazic, there is no doubt but that their parole-related decisions were actions “under color of state law.” However, the allegations in plaintiffs’ complaint are insufficient to warrant a finding that these defendants “caused” any deprivation of plaintiffs’ federal rights.

In Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980), the Supreme Court affirmed the dismissal of a § 1983 lawsuit against parole officials for granting parole to a dangerous inmate who, five months after his release, tortured and killed the plaintiff’s decedent. The complaint in the Martinez case alleged that the parole officials knew of the parolee’s violent propensities and were aware of the likelihood that he would commit another violent crime after being paroled. Id. at 279, 100 S.Ct. at 556. The parole officials’ actions were not merely characterized as negligent, “but also as reckless, willful, wanton and malicious.” Id. at 280, 100 S.Ct. at 556. Nevertheless, the Supreme Court ruled that the plaintiff had not stated a cause of action under § 1983 because the allegations in the complaint did not amount to a “deprivation” of any constitutional right. Id. at 285, 100 S.Ct. at 559. The Court explained that

“[the parolee] was in no sense an agent of the parole board. Further, the parole board was not aware that appellant’s decedent, as distinguished from the public at large, faced any special danger ... Although a § 1983 claim has been described as ‘a species of tort liability’ it is perfectly clear that not every injury in which a state official has played some part is actionable under that statute.”

Id. (citations omitted).

In cases subsequent to Martinez, the federal courts have fashioned a general rule that, while the government has no general duty to protect the public from dangerous madmen, a duty to protect does arise when the government knowingly or recklessly puts a specific individual into a position of danger from private persons. See, e.g., Estate of Bailey v. County of York, 768 F.2d 503, 510-11 (3d Cir.1985) (welfare agency had duty to protect child from mother’s boyfriend where agency returned the child to her mother’s custody after finding that child had been abused by the boyfriend); Jones v. Phyfer, 761 F.2d 642, 647 (11th Cir.1985) (rape victim of inmate on Christmas furlough not entitled to special protection or warning even though she had been victim of earlier crime by inmate, inmate was released to the custody of his grandmother whose residence was in close proximity to victim’s, and inmate had extensive history of criminal activity and psychiatric problems); Davidson v. O’Lone, 752 F.2d 817, 828 (3d Cir.1984), cert. granted sub nom. Davidson v. Cannon, — U.S. -, 105 S.Ct. 2673, 86 L.Ed.2d 692 (1985) (failure to protect prison inmate from other inmates actionable under § 1983 where prison official’s conduct amounts to deliberate or reckless indifference to prisoner’s safety); Jensen v. Conrad, 747 F.2d 185, 191-94 (4th Cir.1984), cert. denied, — U.S.-, 105 S.Ct. 1754, 84 L.Ed.2d 818 (1985) (state and county agencies may have duty to intervene and protect battered children from their guardians); Jackson v. Byrne, 738 F.2d 1443, 1446 (7th Cir.1984), (striking firefighters not liable under § 1983 for fire-related deaths); Fox v. Custis, 712 F.2d 84, 85-88 (4th Cir.1983) (state corrections employees not liable under § 1983 for failing to revoke parole of dangerous prisoner who, within a month after-parole, attacked plaintiffs); Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir.1982) (public and private defendants not liable under § 1983 where parolee attacked plaintiff’s decedent one year after release).

The rule that a duty to protect arises only if there is a “special relationship” between the victim and the government has its genesis in the Martinez case, where the Court reserved the question of whether a parole officer could ever “be deemed to ‘deprive’ someone of life by action taken in connection with the release of a prisoner on parole.” 444 U.S. at 285, 100 S.Ct. at 559. In later cases, the courts expanded on the Martinez dictum by ruling that a constitutional right to protection by the state against third-party attacks “may arise out of special custodial or other relationships created or assumed by the state in respect of particular persons.” Fox v. Custis, 712 F.2d at 88 (emphasis in original). As Judge Posner explained, “[i]f the state puts a man in a position of danger from private persons and then fails to protect him, it will not be heard to say that its role was merely passive; it is as much an active tortfeasor as if it had thrown him into a snake pit.” Bowers, 686 F.2d at 618.

Consequently, in Bailey and Jensen, the courts indicated that there was a duty to intervene and protect specific children who had been physically abused in the past. See also White v. Rochford, 592 F.2d 381 (7th Cir.1979) (where police arrested driver of car, they had duty to protect three passenger children from roadside hazards). Similarly, in Davidson, the court recognized a duty on the part of state officials to protect a prison inmate under a known risk of attack by a fellow inmate. See also Wade v. Haynes, 663 F.2d 778 (8th Cir. 1981); Withers v. Levine, 615 F.2d 158 (4th Cir.1980). In sharp contrast, the cases have uniformly held that state parole officials are not liable to crime victims for injuries inflicted by parolees. Thus, it appears that the “snake pit” analogy allows a § 1983 plaintiff to recover for the nonfeasance of state officials where the plaintiff is in the custody of the state (as in the inmate cases) or is perceived as requiring special protection (as in the helpless child cases), but not where the plaintiff is a victim of a more or less random criminal attack by a paroled prisoner.

Turning to the instant case, this Court holds that plaintiffs’ claims against the members of the parole board are analytically indistinguishable from the claims that were dismissed in Martinez, Phyfer, Fox, and Bowers. Emmet Nave had been released on parole some eight months before his' attack on plaintiffs. Compare Martinez, 444 U.S. at 285, 100 S.Ct. at 559 (five months); Phyfer, 761 F.2d at 643 (less than one month); Fox, 712 F.2d at 85-86 (one month); Bowers, 686 F.2d at 617 (one year). Even accepting as true plaintiffs’ allegation that these defendants “knew or should have known” that Emmet Nave presented “special dangers to plaintiffs and other employees of defendant hospital as opposed to the public at large,” this Court holds that these defendants had no constitutional duty to warn or protect plaintiffs from Nave. Compare Martinez, 444 U.S. at 280, 100 S.Ct. at 556 (complaint alleged that parole officials knew that there was a “clear and present danger” that parolee would engage in future violent attacks); Phyfer, 761 F.2d at 643 (although plaintiff had been a recent crime victim of released inmate and lived in close proximity to inmate’s residence during temporary furlough, corrections officials had no duty to warn plaintiff). The fact that these defendants may have been aware that Nave presented some “special danger” to employees of the hospital, as opposed to the general public, is not enough. Instead, there must be some indication that the parolee had “singled out” the plaintiff as a person toward whom he was hostile. See Holmes v. Wampler, 546 F.Supp. 500, 506 (E.D.Va.1982); see also Humann v. Wilson, 696 F.2d 783 (10th Cir.1983). Otherwise, parole officials would be obligated to issue a warning and afford protection to every individual who might come into contact with a parolee. Nor does plaintiffs’ characterization of defendants’ conduct as a reckless and wanton “failure to revoke” Nave’s parole distinguish the instant case from Martinez. See Martinez, 444 U.S. at 280 n. 2, 100. S.Ct. at 556 n. 2 (plaintiff had alleged that failure to revoke parole caused constitutional deprivation); see also Fox, 712 F.2d at 86 (parole officials had actual knowledge that parolee had broken conditions of parole but failed to commence revocation proceedings).

In short, there is no basis in the complaint for concluding that plaintiffs were “deprived” of any constitutional right by these defendants. Accordingly, the motion for judgment on the pleadings submitted by defendants Moore, Duncan, and Balazic must be sustained.

III. Agniel’s Motion for Summary Judgment

Defendant Agniel is the voluntary parole officer who allegedly violated plaintiffs’ constitutional rights by failing to initiate parole revocation proceedings against Nave. His motion for summary judgment must be sustained for two reasons. First, he is entitled to absolute immunity. See pages 606-07 supra. Second, plaintiffs’ claims against him fail to state a cause of action. As noted above, plaintiffs have failed to allege any deprivation of their constitutional rights. See pages 607-09 supra. Indeed, the plaintiffs’ case against defendant Agniel is even weaker than the case against the other state defendants. In the affidavit accompanying his motion for summary judgment, Agniel states that, although he has worked as a voluntary parole officer from time to time, he was not assigned to work as Emmet Nave’s voluntary parole officer at any time and never supervised Nave in any manner while Nave was on parole. Plaintiffs have not submitted any evidence to contradict Agniel’s affidavit. Accordingly, defendant Agniel’s motion for summary judgment must be sustained. See Fed.R.Civ.P. 56(e).

IV. Private Defendants’ Motion for Summary Judgment

The “private defendants” in this case are the Charles E. Still Hospital, James Cox, Gordon Barnes, Carol Jaco, Betty Stoll, and Gordon Medley. These defendants have filed a joint motion for summary judgment. This motion will be sustained.

A plaintiff must allege two essential elements in order to state a claim under § 1983: (1) that the defendant caused a deprivation of the plaintiff’s federal rights; and (2) that the defendant acted “under color of state law.” Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572 (1980). Neither element exists here. As noted above, the defendants’ failure to warn or protect plaintiffs did not constitute a deprivation of any of their federal rights. In addition, these private defendants did not act “under color of state law.”

In support of their argument that they did not act “under color of state law,” the private defendants have submitted the affidavits of Dick Moore, James Cox, Dr. William H. Voss, and Ralph H. Voss. The affidavit of Moore, the chairman of the parole board, states that the board “exercises no control nor does it operate or act in a supervisory capacity over the hospital’s alcohol and drug treatment program,” and that a parolee “may be referred to the hospital for alcohol or drug abuse care but whether said person is accepted or rejected is governed solely by Charles E. Still Hospital and not by the Board of Probation and Parole.” Similarly, the affidavit of Cox, the hospital administrator, indicates that state employees take no part in the hospital’s alcohol and drug treatment program, that the hospital is not controlled in any manner by the State of Missouri, and that only seven of the 294 people treated in the hospital’s alcohol and drug treatment program were referred to the program by a parole officer. The affidavit of Dr. Voss, a physician associated with the hospital’s alcohol and drug treatment program, also indicates that the program is not controlled in any way by state officials. Finally, the affidavit of Ralph Voss, a state circuit judge, explains that individuals who are directed to obtain alcohol abuse treatment as a condition of probation are given an option of enrolling in the program of their choice and are responsible for paying for the costs of their chosen program.

In response, plaintiffs have submitted the affidavit of plaintiff Linda Nelson, which states that probation and parole officers “played a direct and controlling part in the hospital’s counseling and medical treatment of alcohol and drug abuse patients who were on parole.” In short, affiant Nelson indicated that the hospital cooperated with state probation and parole officers in administering the alcohol and drug abuse treatment program to probationers and parolees.

Assuming that every word in Nelson’s affidavit is true, the Court still believes that the private defendants did not act “under color of state law” in failing to warn or protect plaintiffs. Even under the most expansive definition, an individual acts “under color of state law” where he acts “with the knowledge of and pursuant to” state law. Lugar v. Edmondson Oil Co., 457 U.S. 922, 935 n. 18, 102 S.Ct. 2744, 2752-53 n. 18, 73 L.Ed.2d 482 (1982). Here, thére is no indication that the private defendants were acting “pursuant to” state law in designing or administering the hospital’s security system. Nor is there any indication that the private defendants’ failure to protect plaintiffs from Nave was a “joint activity with the State or its officers.” Id. at 941, 102 S.Ct. at 2756.

The only hint of joint activity lies in the allegation that Nave was referred to the hospital and his treatment was supervised by parole officers. However, plaintiffs are not complaining of the hospital’s acceptance of Nave into the program or its failure to properly treat Nave; the gravamen of their complaint is that security was inadequate to protect them from Nave. That failure simply cannot be characterized as conduct “under color of state law.” See Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981); see also Beck v. Kansas University Psychiatry Foundation, 580 F.Supp. at 536; see generally note 5 supra. Consequently, the private defendants are entitled to summary judgment with respect to plaintiffs’ § 1983 claims.

V. Conclusion

In summary, the Court holds that plaintiffs do not have a federal case against any of the defendants named herein. Whether one characterizes the defect in plaintiffs’ complaint as a lack of proximate cause, the absence of state action, or a failure to allege a deprivation of federal rights, the basic fact remains that none of the defendants can be held liable under § 1983 for Emmet Nave’s attack on these plaintiffs. In the absence of a viable federal claim, plaintiffs’ pendent state law claims must be dismissed as well. In so ruling, the Court expresses no opinion as to whether plaintiffs have a valid state law claim against any of the defendants. The Court deeply regrets the ordeal that plaintiffs were forced to endure at the hands of Nave; nevertheless, the plaintiffs may not assign liability for those injuries to these defendants under § 1983. Accordingly, it is hereby

ORDERED that the motion for judgment on the pleadings submitted by defendants Moore, Duncan, and Balazic is sustained. It is further

ORDERED that the motion for summary judgment submitted by defendant Agniel is sustained. It is further

ORDERED that the motion for summary judgment submitted by defendants Missouri Osteopathic Foundation d/b/a Charles E. Still Hospital, James Cox, Gordon Barnes, Carol Jaco, Betty Stoll, and Donald Medley is sustained. It is further

ORDERED that Counts I-VIII of plaintiffs’ complaint are dismissed with prejudice. It is further

ORDERED that Counts IX-XIV of plaintiffs’ complaint are dismissed, without prejudice, for lack of jurisdiction. It is further

ORDERED that each party shall bear its own costs.

      . According to paragraph 3 of the complaint, Counts IX through XIV are state law claims falling within the pendent jurisdiction of the Court. Defendants Jaco, Stoll, and Medley are named only in these pendent state law counts.

      . Compare Ray v. Pickett, 734 F.2d 370, 373-74 (8th Cir.1984) (where probation officer allegedly falsified a report to parole commission, absolute immunity inapplicable because such conduct is neither quasi-judicial nor quasi-prosecutorial). Here, the decision to grant parole is a quasi-judicial function while the decision not to initiate parole revocation proceedings is a quasi-prosecutorial function.

      . In cases where a dangerous parolee is released from prison, a more appropriate analogy is that it is like letting a viper out of its cage, knowing that it will strike someone but uncertain of its exact target. The Court finds this distinction significant: in the "snake pit” cases, the targeted victim is readily ascertainable, while in the "viper on the loose" cases, the potential victims are far too numerous to be effectively protected.

      . On the face of the complaint, it is apparent that the only reason Nave may have presented a "special danger" to plaintiffs was because he was enrolled in a drug and alcohol treatment program at plaintiffs’ place of employment. This Court acknowledges that, in Beck v. Kansas University of Psychiatry Foundation, 580 F.Supp. 527 (D.Kan.1984), the court overruled a motion to dismiss where the complaint alleged that Kansas parole officials “knew or should have known” that a dangerous parolee "posed a special danger to those individuals who might at any given time be present at the University of Kansas Medical Center.” Id. at 534 (emphasis added). Although the instant case is not factually distinguishable from Beck, this Court disagrees with the reasoning in Beck in two important respects. First, this Court believes that the sort of "special danger" necessary to create a constitutional duty to warn or protect requires more than a threat to all individuals who “might at any given time” be present at a certain location; instead, there must be some reason to believe that the plaintiff has been singled out or targeted by the parolee.
      Second, this Court finds troublesome the reasoning in the Beck opinion which turns a duty to protect under Kansas tort law into a constitutional duty to protect under § 1983. See id. at 534. In Martinez, the Supreme Court expressly stated the determination of whether there was a constitutional duty to protect is a matter to be decided without regard to whether such a duty existed as a matter of state tort law. See Martinez, 444 U.S. at 285, 100 S.Ct. at 559.

      . See pages 607-09, supra. With respect to the private defendants, plaintiffs’ case is especially weak. Besides the fact that none of the defendants had a constitutional duty to protect plaintiffs, it bears emphasis that the breach of any such “duty” by the private defendants did not constitute "state action." Consequently, even if one or more of the private defendants had actual knowledge that Nave had specifically targeted plaintiffs, a failure to act still would not have resulted in a constitutional deprivation. See Blum v. Yaretsky, 457 U.S. 991, 1002-12, 102 S.Ct. 2777, 2785-90, 73 L.Ed.2d 534 (1982) (despite extensive governmental regulation and funding, private nursing homes’ decisions to transfer or discharge Medicaid patients were not "state action”; consequently, constitutional guarantee of procedural due process was not implicated); Rendell-Baker v. Kohn, 457 U.S. 830, 837-43, 102 S.Ct. 2764, 2769-72, 73 L.Ed.2d 418 (1982) (privately-owned but publicly-funded school was not a "state actor”).


author: THOMAS F. HOGAN, District Judge.

text:
    The JOHN CURRY SKATING COMPANY, INC., Plaintiff, v. The JOHN CURRY SKATING COMPANY a/k/a the John Curry Skaters, et al., Defendants.
    Civ. A. No. 85-2624.
    United States District Court, District of Columbia.
    Oct. 19, 1985.

      Nils Victor Montan, Ward, Lazarus, Grow & Cihlor, Washington, D.C., for plaintiff.
    Stuart F. Pierson, Nancy A. Wadka, Verner, Lippfert, Bernhard, McPherson & Hand, Washington, D.C., for defendants.
   MEMORANDUM OPINION

THOMAS F. HOGAN, District Judge.

The plaintiff in this action, The John Curry Skating Company, Inc. (the “JCS Company”), is a not-for-profit corporation, organized under New York law for the purpose of presenting ice skating shows. Defendant John Curry is a renowned ice skater and an Artistic Director of ice skating shows. Defendant Frozen Assets, Inc., a New York corporation, markets John Curry’s services. Defendant John F. Kennedy Center for the Performing Arts, a not-for-profit corporation organized under the laws of the District of Columbia, promoted John Curry’s ice skating show given in August, 1985. The JCS Company filed this complaint for injunctive relief and damages against defendants as a result of John Curry’s performances with The John Curry Skating Company a/k/a The John Curry Skaters in August of this year. Plaintiff alleges unfair competition in violation of § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), from defendants’ use of the name “The John Curry Skating Company” and “The John Curry Skaters.” Plaintiff also sets forth claims under New York state law for common-law trademark and service mark infringement, dilution, unfair competition, breach of contract, intentional injury to business, and conversion. This Court has subject matter jurisdiction based on the Lanham Act claim under 15 U.S.C. 1125(a) and 28 U.S.C. 1338, and exercises pendent jurisdiction over the state law claims.

A temporary restraining order was denied on August 20, 1985 and expedited discovery was ordered by the Court. On September 13, 1985, the Court denied plaintiff’s motion for a preliminary injunction and defendant Kennedy Center’s Motion to Accelerate and Consolidate a Hearing on the Merits. This case is presently before the Court on defendants’ John Curry and Frozen Assets, Inc.’s Motion to Dismiss or in the Alternative for Summary Judgment of the Lanham Act and breach of contract claims, and on defendant Kennedy Center’s Motion to Dismiss or in the Alternative for Summary Judgment on the same grounds.

Factual Background

Defendant John Curry is a well-known ice skating artist, who began his professional skating career after winning the British, European and World titles and the Olympic Gold Medal in Men’s Figure Skating in 1976. Curry Affidavit of 9/2/85, ¶ 14. Curry’s professional performances included shows of “balletic ice skating,” wherein an ensemble of skaters performed pieces to live orchestra music on specially prepared theater stages. Id. at 111115-17. The shows, appearing in England and the United States, were variously named “John Curry’s Theatre of Skating” (December, 1976), “John Curry’s Theatre of Skating II” (1977), and “John Curry’s Ice Dancing” (November 1978-February 1979). Id. A book entitled John Curry was written by Curry and Keith Money, published in England and the United States in 1978. Id. at 1117.

In 1982, John Curry, Elva Clairmont and David Spungen agreed to form an organization that would present and promote the performances of Curry and a balletic ensemble of skaters. Defendant Kennedy Center’s Statement of Material Facts as to Which There is No Genuine Dispute (hereinafter Kennedy Center’s Undisputed Facts) at 111; Clairmont Affidavit of 9/3/85, 118. Ms. Clairmont had produced, directed and promoted ice skating shows since 1975, including Pro-Skate, a competitive professional figure skating show in which John Curry had appeared. Clairmont Affidavit of 9/3/85 at 117; Curry Affidavit of 9/2/85 at II20. David Spun-gen has also had experience producing figure skating events. Clairmont Affidavit of 9/3/85 at 118. In February, 1983, Symphony on Ice, Inc. (hereinafter “Symphony”), plaintiff JCS Company’s predecessor in interest, was incorporated in New York to promote and present performances by Curry and a skating ensemble. Kennedy Center’s Undisputed Facts 112. Symphony executed a contract with Frozen Assets, Inc. on August 19, 1983, for the exclusive rights to Curry’s performances and name for three years. Id. at 113; Complaint Exhibit A.

In order to produce the type of balletic repertory ice shows that Curry, Spungen and Clairmont envisioned, significant rehearsal time was needed. Accordingly, the skaters rehearsed with Curry for fourteen weeks in 1983, receiving salaries, lodging and transportation from funds Symphony raised. Clairmont Affidavit of 9/3/85 ¶ 11. The skaters, billed as “The John Curry Skating Company,” appeared under the auspices of Symphony from January 1984-April 1984. Kennedy Center’s Undisputed Facts, ¶¶ 6-8. The costs of sustaining such a repertory company were high, and to better finance the productions, JCS Company, a not-for-profit corporation was formed and in 1984 took over the promotion and production of the skating ensemble’s performances. There was no written assignment to JCS Company of Symphony’s contract with Curry and Frozen Assets, Inc. The skaters appeared in performances arranged by JCS Company until late 1984. Id. at ¶ 8. Plaintiff JCS Company and its predecessor, Symphony, spent in excess of $600,000 on advertising and promoting The John Curry Skating Company from 1983 until 1985. Clairmont Affidavit 9/3/85 at ¶ 27. The performances were artistically very successful and received great critical acclaim. Id. at ¶¶ 21-30.

In early 1985, disputes arose among the parties about the management and promotion of the skating company. JCS Company’s undisputed debts totaled more than $1.1 million at that time, and the company had been black-listed by the Musician’s Union for non-payment. Kennedy Center’s Undisputed Facts, Till 14, 19. In February, 1985, Ms. Clairmont fired the company’s booking agent, Columbia Artists Management, Inc., for failing to arrange bookings, and sought engagements and prospects independently, with some success. Kennedy Center’s Undisputed Facts ¶ 16; Plaintiff’s Response ¶ 3. After negotiations between Clairmont, Curry and Spungen failed to resolve their disputes, John Curry resigned from the Board of Directors of JCS Company, Inc. and severed all relationship with the corporation. Kennedy Center’s Undisputed Facts ¶ 21.

In July, 1985, Curry signed a contract with the Kennedy Center for a skating engagement from August 8-24, 1985. At least eight of the skaters appearing with Curry at the Kennedy Center had performed with the ensemble for JCS Company, and the format and presentation of the show was substantially the same as the shows performed under the auspices of the JCS Company. The skaters appeared under the name “The John Curry Skating Company” and “The John Curry Skaters.” Although the show was a critical success, it finished with a net loss of approximately $400,000. Kennedy Center’s Undisputed Facts, ÍI24. At the time of the hearing, Curry and his skaters had future performances scheduled.

The plaintiff instituted this action on August 16, 1985, for a determination of rights in the name “The John Curry Skating Company,” and under the contract between Symphony and Frozen Assets.

Discussion

Plaintiff’s claim under § 43(a) of the Lanham Act is based on its asserted rights in the service mark or trade name “The John Curry Skating Company,” which allegedly are infringed by performances of Curry and his skaters under the name “The John Curry Skating Company” or “The John Curry Skaters.” To establish a claim of unfair competition, the plaintiff must show: (1) that the public associates the mark in question with plaintiffs services and (2) that defendants’ actions cause a likelihood of confusion among the relevant class of buyers. E.g., ChiChi’s Inc. v. Chi-Mex, Inc., 568 F.Supp. 731, 734 (W.D.Pa. 1983). The law of unfair competition under § 43(a) encompasses a plethora of claims, which may be based on rights in unregistered marks, trade dress and packaging, and personal names. The proof needed to establish a claim varies with each type of mark. It is therefore important to define the specific mark in which plaintiff’s rights are asserted before proceeding with analysis under the Lanham Act. Plaintiff claims rights to a trade name comprised of a personal name of a living individual. No one presently employed by or otherwise currently a part of plaintiff’s corporation bears this name. Plaintiff and its predecessor first began to use the name “John Curry” in 1983, and only used the name in conjunction with performances featuring John Curry. Additionally, a three-year personal services contract granted plaintiffs predecessor corporation the exclusive right to use the name for the term of the contract. Plaintiff claims rights in the mark based on the contract and on the sums spent advertising and promoting the name.

Because the mark in question contains a personal name, not plaintiff’s own, the plaintiff can only establish the first element of a claim for unfair competition by showing that the mark has acquired “secondary meaning.” See, e.g., Scott Paper Co. v. Scott’s Liquid Gold, Inc., 589 F.2d 1225, 1228 (3rd Cir.1978). Secondary meaning exists when the primary meaning of the tradename as identifying an individual is overshadowed in the mind of the consuming public by the origin or quality of the product or service marketed under the name. E.g., Levitt Corp. v. Levitt, 593 F.2d 463, 468 (2d Cir.1979); Scott Paper Co., 589 F.2d at 1228. Although there is no quantifiable test to determine when secondary meaning is achieved, courts consider as relevant (1) the duration and continuity of use of the mark, (2) the extent of advertising and promotion and amount of money spent thereon and (3) figures showing sales or viewings of plaintiff’s product. E. g., American Association for Advancement of Science v. Hearst Corp., 498 F.Supp. 244, 257 (D.D.C.1980). Plaintiff’s use of the mark can date no earlier than February, 1983, when its predecessor Symphony was formed to begin promoting Curry’s balletic skaters. The plaintiff stopped using the mark after Mr. Curry severed relations with the corporation in March of 1985. Advertising expenses of approximately $600,000.00 were incurred in connection with promotion of the mark, and resulted in successful, critically acclaimed performances.

Two and a half years of use, more than half a million dollars in promotional expenses, and critical praise are stepping stones to the achievement of secondary meaning in a mark. Courts that found secondary meaning in a personal name mark, however, were presented' with evidence of much longer use and more substantial investments in advertising and other promotional expenses than found here. See Taylor Wine Co. v. Bully Hill Vineyards, Inc., 569 F.2d 731 (2d Cir.1978) (mark used for over 90 years, with nearly 10 million dollars of advertising expenditures in ten years); ChiChi’s, Inc., 568 F.Supp. at 736 (twenty-five years of continuous use and advertising of name); Markel v. Scovill, 471 F.Supp. 1244, 1249 (W.D.N. Y.1979) (continuous use of trade name for fifty years and expenditures of “considerable sums” on product promotion and advertising). Cases, such as Duggal v. Krishna, 554 F.Supp. 1043, 1047 (D.D.C.1983), in which secondary meaning in a mark is found after comparatively brief use, are not dispositive, because none have involved personal name marks. This distinction is not lightly noted: the interest an individual has in conducting an enterprise under his own name, using his own skills and knowledge, is protected by the Courts, and his right to use his name will not be lightly wrested from him. E.g., Taylor Wine Co., 569 F.2d at 735. For this reason, a higher showing is required to establish secondary meaning in a personal name mark. The undisputed facts of this case material to the issue of secondary meaning, when viewed in the light most favorable to plaintiff, do not establish that plaintiff has given secondary meaning to the mark “The John Curry Skating Company.”

At oral argument, plaintiff contended that any secondary meaning or “celebrity value” that John Curry had given to his name passed, in to to, to plaintiff through the contract between Frozen Assets and Symphony, and must be added to plaintiff’s use of the name to determine whether secondary meaning exists. Given the nature of the underlying contract, the Court is not persuaded by this argument. Although many of the facts surrounding the assignment of the contract and the parties’ performance thereunder are bitterly contested, it is undisputed that the contract was for the personal services of Mr. Curry, and not for the sale of his “business,” his name, or his goodwill. The right to use John Curry’s name for three years was coterminous with Mr. Curry’s performance of services under the contract. The contract thus resembles a license agreement. Plaintiff’s reliance on cases involving parties’ rights subsequent to outright sales of businesses, and their personal-name marks, is misplaced. The contract at issue did not confer secondary meaning on the mark, and the potential validity of the parties’ claims of breach and wrongdoing does not permit this dispute to be cloaked with the protection of the Lanham Act. See generally, Silverstar Enterprises, Inc. v. Aday, 537 F.Supp. 236, 242 (S.D.N.Y.1982) (dispute between licensee and licensor of trademark dismissed for lack of jurisdiction under Lanham Act).

Under Rule 56 of the Federal Rules of Civil Procedure, a grant of summary judgment is appropriate where there are no disputed issues of material fact and the moving party is entitled to a judgment as a matter of law. See also Barrer v. Women’s National Bank, 761 F.2d 752, 757 (D.C.Cir.1985). The facts material to the necessary first element of plaintiff’s claim of unfair competition are undisputed. Failure to establish secondary meaning in the mark vitiates plaintiff’s claim of protectable rights in the mark. Defendants accordingly are entitled to a grant of summary judgment on the claim under the Lanham Act. As a result, the Court is left with plaintiff’s pendent state law claims for breach of contract, tort, trademark and unfair competition. When the federal claim to which state claims are joined is dismissed before trial, the state law claims should ordinarily be dismissed as well. United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). As plaintiff’s pendent claims implicate exclusively considerations of state law, the Court finds no reason to exercise its discretion to retain the claims. For the foregoing reasons, defendants’ motion for summary judgment must be granted in part, and defendants’ motion to dismiss the remaining claims for lack of federal jurisdiction will also be granted. An order consistent with the terms of this opinion shall be issued.

      . For the purposes of the motion for summary judgment only, the Court assumes that a contractual relationship existed between plaintiff and John Curry during the relevant times. The Court recognizes that many material facts regarding this relationship remain in dispute, and makes no finding as to the validity of the various claims in contract.

      . The plaintiff relies heavily upon Levitt Corp. v. Levitt, 593 F.2d 463 (2d Cir.1979), in crafting its Lanham Act claim. In Levitt, however, the secondary meaning of the mark "Levitt” was not contested. The mark had been registered, which in itself is prima facie evidence of secondary meaning, and was among the assets transferred to the purchaser of Levitt’s firm. Id. at 465. Plaintiff downplays these predicate facts, focusing instead upon the relative post-sale rights of Mr. Levitt and the new Levitt firm to use the mark. On the facts of the instant case, such analysis is premature.


author: KELLEHER, Senior District Judge.

text:
    Pat R. RILEY, Plaintiff, v. TOKOLA OFFSHORE, INC., etc., Defendant. TOKOLA OFFSHORE, INC., etc. Cross Complainant, v. BROWN & ROOT CONSTRUCTORS, INC., etc., Cross Defendant. TOKOLA OFFSHORE, INC., Third Party Plaintiff, v. PILE DRIVERS, BRIDGE, WHARF, AND DOCK CARPENTERS LOCAL NO. 2375, etc., Third Party Defendant.
    No. CV 84-7887.
    United States District Court, C.D. California.
    Nov. 1, 1985.

      Kaplan, Zorigian & Kaplan, Victor E. Kaplan, Wilmington, Cal., for plaintiff.
    McCutchen, Black, Verleger & Shea, Robert E. Coppola, William P. Barry, Nestor Barrero, Los Angeles, Cal., for defendant Tokola Offshore.
    DeCarlo and Connor, Los Angeles, Cal., for third party defendant Pile Drivers, Bridge, Wharf and Dock Carpenters, Local Union No. 2375.
    Reich, Adell & Crost, Glenn Rothner, John Rubin, Los Angeles, Cal., for third party defendant United Broth, of Carpenters and Joiners of America.
    Wise, Wiezorek, Timmons & Wise, Duane H. Timmons, John H. Shean, Los Angeles, Cal., for cross defendant and cross claimant Ugland Overseas Services.
   MEMORANDUM OF DECISION AND ORDER

KELLEHER, Senior District Judge.

The court has before it third party defendant United Brotherhood of Carpenters (“UBC”) and third party defendant Pile Drivers, Bridge, Wharf, and Dock Carpenters Local No. 2375 (“Local 2375”)’s motion for summary judgment. Having considered all of the parties’ arguments and submissions, the court hereby GRANTS defendants’ motion, for the reasons given below.

I. OVERVIEW

Pat Riley, a member of the Pile Drivers, etc. Local Union No. 2375 (“Local 2375”), and of the United Brotherhood of Carpenters V (“UBC”) worked for Tokola Offshore, Inc. in the construction of an offshore oil rig. Riley had a heart attack, allegedly because he was pressed to work too strenuously on his job. Riley filed a traditional seaman’s action, seeking damages under the Jones Act. Tokola filed a third-party complaint against both Local 2375 and UBC, demanding indemnification, contribution, and declaratory relief.

In February and March 1985, UBC and Local 2375 filed dual motions to dismiss Tokola’s third-party complaint. Both motions claimed that Tokola had failed to state a claim upon which relief could be granted and, further, that the National Labor Relations Act and federal labor policy preempted Tokola’s action.

On April 17, 1985, this Court denied the unions’ dual motions to dismiss Tokola’s third-party claims. The Court found, upon a review of the pleadings, that the third-party action was not preempted by the National Labor Relations Act (29 U.S.C. 157, 158) (“NLRA”). Preemption by the Labor Management Relations Act (29 U.S.C. 185(a)) (“LMRA”), however, was neither briefed nor argued by the parties in that motion.

Following the Court’s order, UBC and Local 2375 appeared in the action and filed answers to Tokola’s third-party complaint. In June 1985 Local 2375 again moved for dismissal in a motion for summary judgment, asserting that the United States Supreme Court decision in Allis-Chalmers Corpe. v. Lueck, — U.S.-, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985) (“Allis-Chal mers”) was dispositive. Allis-Chalmers was deeided April 16, 1985, two weeks after this court had heard Local 2375 and UBC’s earlier dual motion for dismissal. Tokola opposed Local 2375’s later motion, arguing that a number of material issues of fact existed none of which were susceptible to summary adjudication, and-further, that its theory of liability against Local 2375 was outside the scope of Allis-Chalmers. On June 3, 1985, this Court denied Local 2375’s motion.

In its opposition to the present motion, Tokola understandably emphasize the two prior rulings in its favor. See Tokola’s present Opposition at 4-5. “Now, UBC and Local 2375 are again before this Court on their joint motion seeking summary judgment on the basis of the same discredited theories that have been rejected in their prior motions.”

II. SUMMARY OF CONCLUSIONS

A. Tort

Tokola, in its Opposition, concentrates on the factual dissimilarities between Allis-Chalmers and this case. Yet the law of federal pre-emption under LMRA 301, as stated in Allis-Chalmers directly governs this case.

Under Allis-Chalmers, the key determinant is whether Local 2375 and UBC (“the unions”) owed an independent duty — that is, a duty not “rooted” in a collective bargaining agreement (“CBA”) — to Tokola. Tokola’s present Opposition, when considered in conjunction with all evidence adduced thus far, when granted the benefit of every ambiguity, and even when combined with all favorable assertions from Tokola’s two previous Oppositions, fails to articulate an independent tort claim.

Therefore, the purported fact issue, “was Local 2375’s conduct reasonable?” is actually immaterial. Assuming arguendo that the unions had referred medically unfit workers to work for Tokola, this court would still have no grounds on which to rule that the unions had thereby breached any independent, pre-existing tort duty.

Since no authority has been cited establishing the existence of an independent legal duty to refer healthy workers, Tokola’s claims against the unions are grounded primarily in contract.

B. Contract

Tokola’s contract claim seems to also be pre-empted. The alleged promises Tokola is suing on (which the unions deny making) took the form of oral assurances that all referred workers would be medically fit. Yet, the precise point of how, when, and by whom hiring-hall workers were to be medically pre-screened was thrashed out in the contractual negotiations leading up to the collective bargaining agreement (“CBA”). This fact, the vigorous collective bargaining over the “medical issue,” is not disputed.

Tokola now alleges the existence of an oral contract, by which the unions gave back a concession they had won from Tokola. After having, by all accounts, resolutely insisted on having no medical pre-screening, the unions suddenly, according to To-kola, orally undertook to vouch for the physical capability of every worker who passed through the hiring hall. The plausibility of this scenario does not concern this Court. Under Allis-Chalmers, the Courtis simply pre-empted from enforcing a contract which modifies, or is dependent on interpretation of, the CBA.

III. ANALYSIS

A. PREEMPTION

Generally

In Allis-Chalmers the Supreme Court restated and updated the preemptive effect of LMRA 301.

If the policies that animate 301 are to be given their proper range, however, the pre-emptive effect of 301 must extend beyond suits alleging contract violations. These policies require that “the relationship created by [a collective bargaining] agreement” be defined by application of “an evolving federal common law grounded in national labor policy.” The interests in interpretive uniformity and predictability that require that labor-contract disputes be resolved by reference to federal law also require that the meaning given to a contract phrase or term also be subject to uniform federal interpretation. Thus questions relating to what the parties to a labor agreement agreed, and what legal consequences were intended to flow from breaches of that agreement, must be resolved by reference to uniform federal law whether such questions arise in the context of a suit for breach of contract or in a suit alleging liability in tort. Any other result would elevate form over substance and allow parties to evade the requirements of § 301 by re-labeling their contract claims as claims for tortious breach of contract. 105 S.Ct. at 1911.

In this case the parties’ expectations in arriving at a CBA may not and need not have taken account of developments in state tort law governing “negligent referral.” Under Allis v. Chalmers they are all shielded from such contingencies.

Tokola’s Contract Claim

Taking as true Tokola’s allegations of oral contract, the company has shown that it successfully executed the following strategy:

1. In negotiations leading up to the CBA Tokola encountered stiff union resistance on the “medical issue,” that is, union resistance to Tokola’s initial insistance on medical prescreening.
2. The unions’ negotiator asked the company the “not to push the medical issue, to let it lie the way it was and not ruffle anyone’s feathers.” (Declaration of W.P. Barry, exh. B at 00041/20-22.) Tokola then completely abandoned its demand for medical pre-screening, and signed a CBA containing no such provision.
3. At a pre-job conference, held pursuant to the final and then-operative CBA, Tokola effectively reopened the issue and, before it allowed the job— which was covered by the CBA — to proceed, Tokola extracted the oral warranty-of-medical-capability on which it now is suing.

Leaving aside the plausibility of such a sequence occuring [the union denies making any such oral commitment], the substance of the alleged oral contract addresses a point already covered by the CBA. Therefore, Local 2375 argues, the alleged oral contract should be considered a “modification” of the CBA. If so, Tokola’s contract claim is pre-empted. Tokola does not challenge this legal consequence, but instead disputes the unions’ characterization of the contract as a “modification” of the CBA.

Whether the oral contract is “independent” or a “modification” depends on a comparison of its terms with those of the CBA. The CBA contains no medical screening provisions. However all parties agree the point was bargained over. If the unions had acceded to Tokola’s medical screening bargaining demands, then the CBA would have contained the resulting provisions. Had those provisions later been orally cancelled, that would indisputably constitute a modification. The actual case merely presents the inverse situation. The absence of medical fitness warranties or screening provisions in the CBA represents a negotiated outcome.

Seen in this light, the alleged oral contract is, for all meaningful purposes, a modification of the CBA. Even if not la-belled a “modification,” it is substantially dependent on interpretation of the CBA. Therefore, Tokola’s state-law contract count is pre-empted.

Tokola’s Tort Claim

The specific holding of Allis-Chalmers reads as follows. “We do hold that when resolution of a state law claim is substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract, that claim must either be treated as a 301 claim or dismissed as pre-empted by federal labor-contract law.” 105 S.Ct. at 1916 (emphasis added, citations omitted). Here, the only source of the unions’ duties to screen workers referred through the hiring hall lies in the parties’ contractual relationship, which is, of course tied to the CBA.

The unions have argued from the outset that the tort of “negligent referral” is substantially, if not entirely, derived from the parties contractual relationship. Tokola rests on its earlier argument that the unions incurred a “self-imposed” duty to screen workers. See Opposition at 24 (referring to prior arguments wherein Tokola insists that the unions’ contractual “undertaking” creates a tort duty.) This is just artful pleading. Tort duties must emanate from the state.

The “substantial State interest” exception to preemption

Alternatively, Tokola quotes Farmer v. United Brotherhood of Carpenters and Joiners, 430 U.S. 290, 97 S.Ct. 9056, 51 L.Ed.2d 338 (1977), for the proposition that the pre-emption “doctrine is to be avoided where the State has a substantial interest in regulation of the conduct at issue.” (emphasis added). The most telling proof that the state of California has no substantial interest in claimed tort of “negligent referral” is the fact the parties could have waived any purported duty. They, in effect, agreed to just that in the CBA.

In Allis-Chalmers the Court attached significance to this waivability of a tort duty. “State-law rights and obligations that do not exist independently of private agreements, and that as a result can be waived or altered by agreement of private parties, are pre-empted by those agreements.” 105 S.Ct. at 1912. In the case before it, the Court determined that under Wisconsin law the parties “are free to bargain about” the assertedly tortious conduct. “That being so, this tort claim is firmly rooted in the expectations of the parties that must be evaluated by federal contract law.” Id.

In the cases cited by Tokola, holding that certain state claims are excepted from the pre-emption doctrine (Opposition at 23-24), none of the duties at issue (intentional infliction of emotional distress, wrongful termination, malpractice) were waivable.

Tokola’s failure to allege cognizable damages

This decision is based solely on grounds of preemption. Still, it is worth noting that, as the pleadings stand, Tokola has apparently failed to allege grounds on which any of its potential damages may be traced to defendants’ negligence. The reasoning which leads to this conclusion is straightforward:

1. Riley is suing Tokola for negligently overworking him. Tokola, in suing the unions for indemnification, seeks to recover that portion of any damages awarded to Riley which will be attributable to their (the unions’) negligent referral.
2. Any judgment awarded to Riley against Tokola will be for injuries caused by Tokola’s behavior; injuries caused by Riley’s own unfitness would not appear to be compensable. Even a judgment for less than 100% of Riley’s injuries (based on comparative fault) would be wholly traceable to Tokola’s negligence. This is because such judgment would be discounted so as to omit compensation for injuries traceable to Riley’s own medical unfitness.
3. The unions are not accountable for Tokola’s negligent overworking of any employee.
4. Thus, Tokola’s action over for indemnity is based on an anticipated judgment for Riley which would, if rendered, be based solely on injuries caused by Tokola (in overworking Riley) not by the unions (in failing to screen for medical unfitness.)

However, since Tokola’s state law claims are preempted, it is not necessary to reach this issue.

IV. CONCLUSION

Resolution of this action will be substantially dependent on the terms, scope, performance, and/or modification of a collective bargaining agreement. Hence, under LMRA 301, federal common law pre-empts state law unless an exception applies.

The state of California does not have such a substantial interest in regulation of the conduct at issue as to support an exception to the pre-emption doctrine.

Therefore it is ordered that the motion for summary judgment is granted.