author: SHADUR, District Judge.

text:
    FLEMING SALES COMPANY, INC., Plaintiff, v. Joseph W. BAILEY and Unlimited Sales of America, Inc., Defendants.
    No. 84 C 7028.
    United States District Court, N.D. Illinois, E.D.
    May 24, 1985.

      Eugene Friedman, Chicago, 111., for plaintiff.
    Thomas B. McNeill, Fern C. Bomchill, Lynne M. Raimondo, Locke E. Bowman, Mayer, Brown & Platt, Chicago, 111., for defendants.
   MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Fleming Sales Company, Inc. (“Fleming”) has filed a five-count Verified Complaint (the “Complaint”) against Joseph Bailey (“Bailey”) and Unlimited Sales of America, Inc. (“Unlimited”). Fleming charges Bailey (1) misappropriated Fleming’s trade secrets, (2) interfered with Fleming’s contractual relations, (3) slandered Fleming, (4) breached his fiduciary duty to Fleming and (5) unfairly competed against Fleming. Unlimited is alleged to be the vehicle through which Bailey engaged in some or all of that activity.

Defendants have now moved under Fed. R.Civ.P. (“Rule”) 56 for summary judgment on Complaint Counts I and III, the trade secrets and slander claims. In addition defendants assert those claims are neither “well grounded in fact” nor “warranted by existing law or a good faith argument for the extension, modification or reversal of existing law.” Accordingly they seek to recover their expenses on the Rule 56 motion in the form of sanctions imposed on Fleming under Rule 11. For the reasons stated in this memorandum opinion and order defendants’ motion for a summary judgment as to Counts I and III is granted. Defendants’ Rule 11 motion is granted to a limited extent but denied in principal part.

Facts

Fleming, a family-owned manufacturers’ representative business, has an original equipment manufacturers (“OEM”) division headquartered in Elkhart, Indiana. Through its OEM division, Fleming is engaged by recreational vehicle (“RV”) component manufacturers (“Fleming’s principals”) to market their products to RV manufacturers (“Fleming’s customers”). Bailey was hired as a salesman in the OEM division in March 1977. In July 1980 Bailey was made General Manager of the OEM division, and in August 1983 he was placed on the Fleming Board of Directors. In the meantime he had turned the OEM division into a substantially better business operation for Fleming.

Despite Bailey’s relatively rapid rise at Fleming, he had for some time been dissatisfied over what he perceived as his limited freedom to run the OEM division without oversight by Fleming management (he had been promised a “free hand” in that respect) and his limited future prospects in its family-owned structure. On April 27, 1984 Bailey wrote to Fleming Board Chairman Jack Grady (“Grady”) explaining his dissatisfactions and announcing his decision to resign from Fleming and the Board of Directors effective May 1, 1984 (Bailey Aff.Ex.). In fact Bailey continued as OEM division head until May 18 and continued to receive his salary and benefits until the end of May (Bailey Dep. 84-87). Bailey had entered into no written employment contract with Fleming, nor had he signed a restrictive covenant of any kind in Fleming’s favor.

In late 1983, several months before his resignation from Fleming, Bailey joined with James Clipp (“Clipp”) to form Unlimited for the manufacture of a rigid blind product to be sold as an accessory for RVs. Though formed in January 1984 Unlimited did not begin substantial operations before June 1984. It has yet to begin manufacture of the rigid blind product.

In late June Bailey and Clipp formed a second company, Unified Sales of America, Inc. (“Unified”), to compete with Fleming’s OEM division in the representation of RV component manufacturers. Bailey hired several Fleming salesmen to work with him at Unified and began to develop Unified’s business with Fleming’s principals and customers. Soon thereafter (in August 1984) Fleming initiated this lawsuit.

Trade Secrets Claim

Fleming contends Bailey has misappropriated several kinds of information, learned in the course of his employment and protectible as trade secrets, that he is now using to compete with the OEM division:

(1) the names and addresses of Fleming’s customers;
(2) other information about customers, including the names of contact people and the customers’ prior purchasing and payment histories, projected needs and buying procedures; and
(3) information as to Fleming’s principals and other sources of supply, including the terms of principals’ contracts with Fleming.

Defendants argue none of that information properly qualifies as a trade secret as a matter of law.

Before this opinion turns to the merits of Fleming’s trade secrets claim, it must deal with a threshold question: whether Illinois’ or Indiana’s trade secrets law supplies the applicable substantive rule. Of course under Klaxon Corp. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941) this Court must look to Illinois conflict-of-law rules. Since Ingersoll v. Klein, 46 Ill.2d 42, 48, 262 N.E.2d 593, 596 (1970), Illinois has used the “most significant contacts” approach in torts cases. Applying the Ingersoll rule in the trade secrets context, the Illinois Appellate Court has concluded (Mergenthaler Linotype Co. v. Leonard Storch Enterprises, Inc., 66 Ill.App.3d 789, 803, 23 Ill.Dec. 352, 363, 383 N.E.2d 1379, 1390 (1st Dist.1978), confirming Illinois’ adoption of the position taken in the Restatement (Second) of Conflict of Laws 2d (1971) and quoting this passage from Restatement § 145 comment f):

[T]he principal location of the defendant’s conduct is the contact that will usually be given the greatest weight in determining the state whose local law determines the rights and liabilities that arise from false advertising and the misappropriation of trade values.

Not surprisingly, Fleming and defendants agree Indiana law should supply the substantive rule. Bailey’s operational site since resigning from Fleming has been Elk-hart, Indiana. Both Unlimited and Unified are Indiana operations with their principal bases of operations in Elkhart. And because Bailey has entered into competition with Fleming’s Elkhart-headquartered OEM division, the harm to Fleming of any misappropriation of trade secrets is focused in Indiana. Accordingly this Court will look to Indiana trade secrets law.

In 1982 Indiana adopted the Uniform Trade Secrets Act, Ind.Code §§ 24-2-3-1 to 24-2-3-8 (the “Act”), which authorizes injunctive relief, damages and recovery for unjust enrichment in trade secret misappropriation cases. Where the misappropriation was willful and malicious, the Act also allows an award of exemplary damages. Section 2 defines the Act’s operative terms:

“Improper means” includes theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means.
“Misappropriation” means:
(1) acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or
(2) disclosure or use of a trade secret of another without express or implied consent by a person who:
(A) used improper means to acquire knowledge of the trade secret;
(B) at the time of disclosure or use, knew or had reason to know that his knowledge of the trade secret was: (i) derived from or through a person who had utilized improper means to acquire it;
(ii) acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or
(iii) derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or
(C) before a material change of his position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake.

“Person” means a natural person, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision or agency, or any other legal or commercial entity.

“Trade secret” means information, including a formula, pattern, compilation, program, device, method, technique, or process, that:

(1) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and
(2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

What the parties’ dispute really boils down to is whether or not the items of information defendants allegedly misappropriated qualify as “trade secrets” under the Act. If they do not, Fleming has no action against defendants for their use of the information, for Fleming did not elect to bind Bailey by a restrictive covenant of any kind. See Steenhoven v. College Life Insurance Co. of America, 460 N.E.2d 973, 975 n. 7 (Ind.App.1984).

After extensive discovery defendants assert there is no reasonable predicate for inferring the information (1) derives independent economic value by virtue of its confidentiality or (2) was the subject of efforts reasonably calculated to maintain its secrecy. Defendants contend each item of information was rather (1) general business knowledge bred of experience (and consequently lacking “independent economic value”) or (2) information “readily ascertainable by proper means” or (3) both. In addition defendants say Fleming did not make reasonable efforts to maintain the secrecy of the information. Fleming retorts genuine fact issues exist as to each of those contentions.

This opinion will consider the parties’ arguments as to each item of information in turn, but it is first worth taking a step backward to gain a perspective that might otherwise get lost in the welter of citations to cases, affidavits and depositions the parties have set out against one another. Trade secrets law in general and the Act in particular were never intended “to act as a blanket post facto restraint on trade.” Steenhoven, 460 N.E.2d at 975 n. 7. Thus the identity of a business’ customers is no doubt a legitimate business interest protectible by a restrictive covenant (see American Hardware Mutual Insurance Co. v. Moran, 545 F.Supp. 192, 195-96 (N.D.Ill.1982), aff'd, 705 F.2d 219 (7th Cir.1983)), and the same may perhaps be true of other knowledge a company has amassed simply by virtue of having been in a particular line of business for a long period of time. But that right to impose contractual restraints does not render the same knowledge “trade secrets” in the absence of such restraints. Knowledge derived from experience does not' automatically carry with it the ability to forestall others who have shared that experience (and thus that knowledge).

In other words, a court called on to define boundaries in this area must take care to strike a balance between (1) the underlying purposes of trade secrets law (to maintain standards of commercial ethics and to encourage research and innovation, see M. Jager, 1982 Trade Secrets Law Handbook §§ 1.01-1.02) and (2) the equally strong policy against inhibiting competition in the marketplace. Analysis of Fleming’s claims discloses it has sought to stifle legitimate competition rather than to resist unwarranted encroachment on its property rights.

1. Customer Lists

Fleming says Bailey, through his employment as general manager of its OEM division, had access to a comprehensive list of Fleming’s customers. While there is no allegation — and no evidence— Bailey took a copy of the list with him when he left his employment, Fleming does assert he took with him knowledge of the customers’ names — knowledge he later used to compete (unfairly) against Fleming. Defendants do not deny Bailey came away from Fleming with a knowledge of who its customers were, but defendants argue (1) Fleming did not exert reasonable efforts to maintain the secrecy of that information and (2) the information was readily ascertainable by other means.

Fleming has offered affidavit and deposition evidence indicating a policy of maintaining the confidentiality of the customer list and virtually all other business information. Grady Aff. ¶ 11 says he “has given directions and established the policy that as much information as possible of Fleming is to remain confidential.” Each Fleming employee received a “Rules and Regulations” letter specifying as one basis for termination “[c]ommunication or action detrimental to Fleming Sales Company, including but not limited to, exposing confidential information” (Grady Aff.Ex. A). As for customers’ identity in particular, Fleming has tendered a showing its complete list of customers was available to only a few top Fleming employees, though OEM division salesmen and office personnel had access to lists identifying all of Fleming’s Elkhart customers and some, but not all of, its customers outside Indiana. Fleming claims no other employee had access to the list.

Defendants acknowledge there is at least a fact issue as to how widely the customer lists were distributed within Fleming. Defendants point out, however, (1) account lists were provided to Fleming’s principals from time to time and (2) Fleming has no written policy and no clearly articulated procedures to ensure the confidentiality of the customer lists. For example the lists are not kept under lock and key or marked “confidential,” and salesmen routinely keep' copies in their offices. Moreover customer list information necessarily appeared on shipping documents stored in Fleming’s warehouses.

Of course the absence of specific confidentiality procedures (whether written or unwritten) does not itself negate the existence of “reasonable” efforts to maintain secrecy — all the Act requires. Fleming’s OEM division was, after all, a sales organization. Constant dealings with its customers — whether by phone, letter or in person — was the essence of the business. Naturally Fleming employees whose business it was to maintain that contact needed ready access to customer information. By the same token, distribution of account list information to principals or on occasion to other customers may well have been necessary to the pursuit of Fleming’s business. Fleming was plainly not required to shoot itself in the foot to meet the “reasonable efforts” requirement of the Act. So long as Fleming scrupulously limited distribution of customer list information to employees and outsiders whose access was necessary to Fleming’s successful pursuit of its business, it must be deemed to have satisfied the “reasonable efforts” requirement, particularly if those given access to the information were also advised to preserve its confidentiality, as Fleming indicates they were (Grady Aff. UK 13, 16). Were that the critical issue, the factual dispute as to Fleming’s efforts in that regard (a dispute defendants acknowledge) would compel denial of defendants’ motion.

But there is more to the story. All the efforts in the world to preserve confidentiality of information will not suffice if the information is not secret in the first place— if it is “readily ascertainable” by other proper means. Defendants point to several pieces of evidence demonstrating the customer list information could be procured by such other means:

1. Grady stated that as a rule Fleming’s principals know “the customers purchasing its products, the amount of product purchased, and the prices paid for those products” (Grady Aff. 1121).
2. Many of Fleming’s customers are listed either in telephone directory Yellow Pages or in the trade publication RV Business.
3. Others in the business testified (a) competing sales companies generally know who each other’s customers are (Kenneth Lail Dep. 225) and (b) it is generally easy for a principal’s competitor to find out who that principal’s customers are (Roger Smith Dep. 54).

Fleming counters only by arguing defendants are unlikely to be able to reproduce Fleming’s customer list from those sources. Not all principals will necessarily be willing to identify their existing customers to new sales companies. Similarly RV Business and the Yellow Pages list only a relatively small proportion of the customers on Fleming’s list. So, too, a general knowledge of a competitor’s customers is something significantly less than access to the customer list itself.

Those assertions may perhaps create a factual issue as to defendants’ ability to reproduce the entire customer list precisely from other sources. But what Rule 56 requires is a “material” (that is, outcome-determinative) factual issue. Here it is undisputed that substantial information as to the identity of Fleming’s customers is available from other sources. And Fleming has come forward with no evidence at all showing defendants have sought to pursue customers they would not have discovered even without Bailey’s exposure to the Fleming list. Especially in a market where customers did business with more than one sales company or were open to the possibility of shifting business from one company to another (see Magee Dep. 93, Grady April 2, 1985 Aff. 115), it is simply unreasonable to construe the Act’s “readily ascertainable” standard as requiring exact duplication of the information on the customer list. See Steenhoven, 460 N.E.2d at 974 n. 5.

One other aspect of the problem bears mentioning — an aspect that bears not only on the customer-list issue but on each of the other claimed “trade secrets” categories. Fleming Mem. 5 (emphasis in original) urges “Bailey alone could not have taken Fleming’s principals from it; he had to have the help of Fleming’s salesmen.” But absent some independent tort (such as actionable interference with advantageous relationships) or extraordinary circumstances (such as in the unique factual matrix of Duane Jones v. Burke, 306 N.Y. 172, 117 N.E.2d 237 (1954)), it is perfectly permissible to build an organization by hiring a competitor’s personnel. And if the consequence is that the individual employees’ knowledge of pieces of the competitor’s business is aggregated to provide a more comprehensive view of the total picture, that too can legitimately serve as the source of “readily ascertainable” information in the sense of the Act. Even the proverbial six blind men, if they pooled their information, might well produce a reasonably good description of the elephant.

Thus no genuine issue of material fact exists as to the availability of the substance of Fleming’s customer list from other legitimate sources. Defendants are part way home on their motion.

2. Other Information As to Customers

Fleming also claims trade secret protection for other types of customer information including (Mem. 10-11):

knowledge of the individual persons at these customers to contact in order to effectuate sales; the prior purchasing history of the customers; the product and service requirements; their present and future projected needs; the packages that Fleming must put together in order to sell particular products; their payment histories; and their buying procedures.

Fleming does not assert any of that information was systematically recorded or compiled in any way, though it says much of the information was supplied to Fleming salesmen in the course of their training (Richard Dotson Aff. 11 6). Again Fleming claims to have exerted reasonable efforts to maintain its confidentiality.

Once more that represents only part of the story, and a skewed version at that. Fleming seeks to make the “trade secrets” label carry too much baggage. All the information it tries to wrap in the Act’s mantle is nothing more than the kind of knowledge any successful salesman necessarily acquires through experience. In the Act’s terms, it is information “readily ascertainable by proper means” over the course of time without efforts beyond those ordinarily exerted by salesmen in developing customers.

That is not to say Bailey may not have derived some benefit from his access to the collective experience of Fleming’s OEM division (experience to which Bailey himself doubtless contributed significantly during the course of his employment). It is rather to say such information comprises general skills and knowledge acquired in the course of employment. Those are things an employee is free to take and to use in later pursuits, especially if they do not take the form of written records, compilations or analyses. See MBL (USA) Corp. v. Diekman, 112 Ill.App.3d 229, 236-37, 67 Ill.Dec. 938, 944, 445 N.E.2d 418, 424 (1st Dist.1983).

Any other rule would force a departing employee to perform a prefrontal lobotomy on himself or herself. It would disserve the free market goal of maximizing available resources to foster competition. Or to frame the issue in the way discussed earlier in this opinion, it would not strike a proper balance between the purposes of trade secrets law and the strong policy in favor of fair and vigorous business competition.

All this does not render helpless an employer worried that the skills and knowledge an employee acquires during the course of employment will give him or her an undue competitive advantage. Nothing prevents such an employer from guarding its interests by a restrictive covenant. But it would really be unfair competition to allow the employer without such a covenant to obtain trade secret status for the fruits of ordinary experience in the business, thus compelling former employees to reinvent the wheel as the price for entering the competitive market. Once again defendants must prevail.

3. Information As to Principals

Fleming Mem. 16 concedes the identity of its principals is widely known and therefore not a trade secret, but it says other principal-related information is: the identity of the contact people, the sales volumes for particular products, the existence of “minor” items provided by principals or other suppliers for use with a principal’s products or necessary to permit use of the products, and the terms of Fleming’s contracts with principals. No elaboration is required here: All the earlier analysis as to customer-related information applies with equal force. Once more the information is part and parcel of a salesman’s experience in the RV business. Bailey naturally carried away from his years at Fleming a familiarity with the contracts, products and personnel of the principals he did business with, not to mention an awareness of what products sold best. For reasons already surveyed the Act’s “trade secret” definition simply does not embrace that kind of information.

Fleming tries to bolster its claim by pointing to defendants’ possession of some papers containing information about Fleming’s relationship with its principals and other suppliers. Bailey discovered those documents, all from the 1981-83 period, in his garage well after this litigation began, and he produced them in response to a Fleming document request. Bailey has explained he periodically carried papers home during the course of his employment and at one point, well before his resignation, stored them all in a box in his garage (Bailey March 25, 1985 Aff. ¶¶1 3-4). Fleming has offered nothing to contradict that explanation. What really controls, however, is that the specific documents Fleming points to do not — even with all inferences in Fleming’s favor as Rule 56 requires— create a material fact issue. One of them compiles basic information about a number of Fleming principals, including the commissions each pays to Fleming. But because that information is of the sort Bailey was likely to know anyway, and because there is no evidence to indicate defendants made use of the document, Bailey’s mere possession is insufficient to raise a genuine issue of fact.

Also among the papers in the box Bailey found in his garage were invoices with the names of two suppliers who provide Fleming with products for resale. Fleming argues the identity of those suppliers is secret, yet Bailey approached one of them— Runglin International (“Runglin”) — in an effort to obtain goods for his new sales company. Fleming says that shows Bailey was making use of information gleaned from the documents he had retained. Defendants, however, point to Grady’s own deposition testimony (Grady Dep. 532-35) that he and Bailey traveled to the Orient in 1984 with a Runglin representative to explore foreign supplier sources. Bailey thus knew of Runglin independently of the documents. Again there is nothing to suggest Bailey’s retention of the documents was anything but the oversight he claims it was.

4. Conclusion

There is a telling passage at Fleming Mem. 17:

[T]he RV Business Directory reveals a most important fact concerning Defendants’ actions relative to Fleming. The directory lists several hundred manufacturers of equipment utilized by the RV industry. Bailey could easily have undertaken to represent these other manufacturers. Furthermore, Bailey could have solicited the many thousands of manufacturers of equipment not currently involved with the RV business to bring them into that industry as did Ken Lail (Lail Dep., pgs. 227 to 229). However, Bailey chose not to follow this course of action; rather, he went after those principals whom he had personal contact with because of his position with Fleming, that is, Fleming’s principals (Bailey Dep., pg. 299).

Fleming unconsciously reveals something of itself: Its desire to attach a “trade secrets” label to its own generalized business skills, and to the skills acquired by Bailey while in its employ, simply to prevent competition by its former employee.

But as the Indiana Court of Appeals stated in Steenhoven, 460 N.E.2d at 975 n. 7:

Insofar as College Life attempts to merely restrain Steenhoven’s competition, we believe the Uniform Trade Secrets Act to be an improper vehicle therefor. The fact that Steenhoven possesses certain knowledge acquired within the course of • his employment does not mandate that, upon his departure, Steenhoven must wipe clean the slate of his memory.

So here Fleming may not look to the Act to restrain competition from Bailey, especially given the nature of the information in issue here. Fleming has come forward with nothing to indicate that the allegedly misappropriated information rose to the “trade secrets” level. Business experience and knowhow as reflected in that information, however valuable, are not something the law protects from the rigors of the marketplace. Defendants’ motion is granted as to Count I and its trade secrets claims.

Slander

Fleming’s slander claim against defendants is based on evidence of five statements made by Bailey or those associated with him:

1. In June 1984 John Becker (a Fleming salesman who later joined Unified) told Richard Dotson (who was then or was shortly to become a Fleming employee) Fleming would be out of business before much longer (Dotson Dep. 40-44).
2. Sometime after May 1984 Bailey told Magee he “didn’t feel [Fleming] could exist after that time” (Magee Dep. 17).
3. In July 1984 Scott Bailey (Bailey’s son and a warehouse employee at Unified) told a truck driver for Fleetwood Industries, Inc. Unified would take away all of Fleming’s principal lines and Fleming would be out of business within a year (Duane Conrad Aff. ¶ 6).
4. In September 1984 Scott Bailey made a similar remark to another Fleet-wood truck driver (Jerry Wright Aff. 114).
5. In November 1984 Bailey told Harold Stewart that Sportscoach, a Fleming customer, would be making future purchases from Unified rather than from Fleming.

Fleming argues those statements are per se defamatory, so the evidence of their having been made more than withstands defendants’ Rule 56 motion. Defendants respond in two ways:

1. Viewed both singly and in the aggregate, the statements are not defamatory per se.
2. Fleming has made no effort to make out a claim of slander per quod by showing special damages.

As with Fleming’s trade secrets claim, at the threshold this Court must determine the applicable law. Because this too is a tort claim, IngersolVs “most significant contacts” test again applies (see, e.g., Velle Transcendental Research Association, Inc. v. Esquire, Inc., 41 Ill.App.3d 799, 802, 354 N.E.2d 622, 625 (1st Dist.1976)). For the most part the assertedly defamatory statements were made in Indiana. More important, given the conceptual nature of defamation as an injury to reputation (id.), is the fact Indiana was the site of Fleming’s OEM division (the target of the allegedly slanderous statements). Against that the fact that Fleming itself is an Illinois corporation with its general business headquarters in Chicago would seem to carry little weight. Consequently this Court concludes the defamation claim is substantially Indiana-based and will look to Indiana defamation law.

Indiana, like most jurisdictions, holds statements slanderous per se if they injure another in his profession or business by imputing lack of ability or unfitness to perform. 18 I.L.E. Libel and Slander § 26 (1959 ed. and 1984 pocket part). Martin v. Indiana Bell Telephone Co., 415 N.E.2d 759, 761 (Ind.App.1981) teaches:

Whether a statement possesses a defamatory meaning or implication is initially a question of law to be determined by the trial court.

Where the entity asserting a per se defamation claim is a corporation rather than an individual, Illinois courts have held (Garber-Pierre Food Products, Inc. v. Crooks, 78 Ill.App.3d 356, 360, 33 Ill.Dec. 878, 881, 397 N.E.2d 211, 214 (1st. Dist.1979)):

Since no question of personal reputation is involved where a plaintiff is a corporation, the alleged defamation must assail thé corporation’s financial position or business methods, or accuse it of fraud or mismanagement.

Indiana appears to take a similar view. See Wayne Works v. Hicks Body Co., 115 Ind.App. 10, 55 N.E.2d 382, 386 (1944).

It is true Indiana has not adopted the “reasonable innocent construction” rule, Chapski v. Copley Press, 92 Ill.2d 344, 351-52, 65 Ill.Dec. 884, 887-88, 442 N.E.2d 195, 198-99 (1982), applicable to Illinois defamation cases. But even without giving defendants the benefit of that rule, the complained-of statements cannot be found actionable. Scott Bailey’s remarks reflect a combative spirit toward Fleming but do not assail its business methods, management or financial position. John Becker’s statements to Dotson and Bailey’s remark to Magee are no more than general predictions about Fleming’s future, but again they indicate nothing specific about Fleming’s business. And Bailey’s November 1984 statement says nothing about why the customer is ceasing to do business with Fleming. Grady’s own characterization of the RV business as volatile precludes a defamatory reading of the mere statement a former Fleming customer will now purchase from Bailey. Moreover Fleming has come forward with no evidence to show Bailey’s November 1984 statement was false — a burden it bears in the face of defendants’ Rule 56 motion. As for the other statements, which purport to be no more than predictions, no material fact issue is posed by the present uncertainty whether or not they will come true.

Wayne Works, 55 N.E.2d at 386 describes statements there found defamatory per se as to a corporation:

The letters complained of, imputing as they do that this corporate appellee was in serious financial difficulties, lacked credit, had practically suspended operations, was out of production, had made no commitments for materials for further production and would be unable to fill its orders were, to the extent that they were false, libelous per se, and will support an action for libel without allegation or proof of special damage.

By contrast, the statements ascribed to defendants are altogether lacking in such specific attacks on Fleming’s business position. They just do not fit the categories defining per se defamation of a business enterprise. Defendants’ motion must be granted as to the Count III defamation claims.

Rule 11

Defendants urge no lawyer, after the reasonable inquiry now required by Rule 11, would'have filed a complaint on Fleming’s behalf containing Counts I and III. Defendants conclude those charges of trade secrets violation and of slander were included in the Complaint in hopes (Mem. 1):

of destroying defendant Bailey’s fledgling sales representative business through the imposition of costly attorneys’ fees.

Fleming’s prosecution of this lawsuit certainly does not reflect the highest standards of' lawyering. For example, the Complaint also included the claim that defendants misappropriated a sample product — a dashboard — placed “in the care of Fleming by a company called Georgie Boy [a Fleming customer]” (Complaint 1127). As Fleming well knew, it had no proprietary interest in the dashboard, for it had no hand in developing the product and no contractual arrangement with Georgie Boy. In fact Georgie Boy had shown the sample dashboard to others in the industry before the Complaint was filed. Moreover the Complaint alleged another company, Nu Concepts, which began to manufacture a virtually identical dashboard at about the time the Complaint was filed, had obtained the plans from Bailey. Yet Nu Concepts President Daniel Rothbauer Aff. H 7 says Grady had been informed as early as July 1984 — a month before the Complaint was filed — that Nu Concepts had not received the dashboard model from Bailey. In December 1984 Fleming informed defendants it was withdrawing its allegations concerning the dashboard.

That sequence of events must be viewed as reflecting bad faith on Fleming’s part— conduct that justifies the imposition on Fleming of defendants’ attorneys’ fees (and any other expenses incurred) on that issue. There was no way in which Fleming could have advanced that claim in good conscience, given what it knew when the Complaint was filed. And there is equally no justification for forcing defendants to spend time and money to discover what Fleming knew, thus keeping the claim alive for some four months.

Even on the most charitable view, the same conduct a fortiori supports such imposition on Fleming itself under Rule ll’s new standards. And it also discloses (at a minimum) its counsel’s noncompliance with Rule ll’s mandate:

The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

Accordingly Fleming and its counsel are held jointly and severally liable for defendants’ reasonable expenses (including attorneys’ fees) incurred in dealing with the groundless claim regarding the dashboard. This Court will leave it to the lawyers in the first instance to deal with the amounts involved, in hopes of minimizing any pyramiding of fees on fees via an evidentiary hearing.

Matters are not as clear as to the bulk of Fleming’s Counts I and III, which form the main predicate for defendants’ Rule 11 motion. Litigation lawyers have a broad responsibility under Rule 11 and the Code of Professional Responsibility (now the Model Rules of Professional Conduct): to confer with the client about the facts— and not to accept the client’s version on faith, but to probe the client in that respect (“reasonable inquiry”); to do the lawyers’ homework on the law; and then to counsel the client about just which claims the law reasonable supports in terms of the facts the lawyers’ proper investigation has disclosed. That often involves counseling the client — sometimes against the tide of the client’s displeasure — as to how best to vindicate the client’s interests without abusing another’s. In some instances that may involve advising a client not to pursue a claim or a theory of recovery that in a technical sense (of surviving a Rule 12(b)(6) motion) might perhaps go forward, but by rights should not. When a lawyer fails in that respect — when a lawyer accepts or even encourages the role of a “hired gun” in the worst sense — the costs to the parties and to the courts are often substantial, as they have been here.

But Rule 11 should be applied with some caution, given its potential for chilling legitimate advocacy. Even in its more expansive form as amended in 1983, it was not designed to penalize litigants because they choose to fight uphill battles, as Fleming has opted for here. Rule 11 does not require a litigant to forego recovery on a particular theory merely because its lawyer may believe there is a good chance of losing (that is one reason for the Rule’s reference to “a good faith argument for the extension, modification or reversal of existing law”).

This Court has given serious thought to mulcting Fleming and its counsel with all the expenses (including lawyers’ fees) incurred by defendants on the current questions. Though the issue is a close one, this Court has decided it will not impose overall sanctions under Rule 11.

Just last week our Court of Appeals decided to issue as an opinion the previously unreported (and hence unciteable, see its Circuit Rule 35) order in Lepucki v. Van Wormer, 765 F.2d 86 (7th Cir.1985) (per curiam). Lepucki, at 87 illustrates why Rule 11 applies to part, but does not quite cover the bulk, of Fleming’s Count I and III claims (including the involvement of Fleming’s counsel in those claims):

Our system of jurisprudence is designed to insure that all disputants with colorable claims have access to the courthouse. Relatively low barriers to entry have, however, generated an undesirable result — a deluge of frivolous or vexatious claims filed by the uninformed, the misinformed, and the unscrupulous. These claims clog court dockets and threaten to undermine the ability of the judiciary to efficiently administer the press of eases properly before it. Perhaps the greatest safeguard against this danger is the integrity and good sense of practicing lawyers who, as officers of the court, have both an ethical and a legal duty to screen the claims of their clients for factual veracity and legal sufficiency. Model Rule of Professional Conduct 3.1 (1983); Fed.R.Civ.P. 11. Lawyers have a unique opportunity to counsel restraint or recklessness, to craft imaginative arguments or to press empty challenges to well-settled principles. Because of our reluctance to constrain the discretion of attorneys in the vigorous advocacy of their clients’ interests, we penalize them only where they have failed to maintain a minimum standard of professional responsibility. But we will not overlook such a failure when it occurs, in part because it evidences disdain for the public, whose claims lie dormant because frivolous suits have diverted away scarce judicial resources, disdain for adversaries, who must expend time and money to defend against meritless attacks, and disdain for clients, whose trust is rewarded with legal bills, dismissals, and court-imposed sanctions.

Even had this Court concluded Counts I and III did pose material fact issues, the thinness of Fleming’s case on those claims — plus Fleming’s apparent use of this lawsuit itself as a competitive weapon — would make this case a powerful argument for a greater shift toward the British system of taxing fees as part of costs (if not as a matter of course, then under expanded standards). But we are not there yet, and this Court may not pioneer that extra step.

Conclusion

There is no genuine issue of material fact as to Fleming’s trade secret and defamation claims, and defendants are entitled to a judgment as a matter of law on those claims. Complaint Counts I and III are therefore dismissed with prejudice. Defendants’ Rule 11 motion is granted with respect to Fleming’s claims concerning the Georgie Boy dashboard and denied in all other respects.

APPENDIX

Fleming has adduced considerable testimony indicating people in the RV business maintain some confidentiality as to the kind of information described at its Mem. 10-11. That reflects nothing more than a truism: No business will gratuitously expose information about its internal affairs. But it is equally true customers seeking the best product at the best price have a clear interest in providing competitors with at least basic information. Indeed the process is well depicted by a deposition excerpt (Kenneth Lail Dep. 78-80) advanced by Fleming itself:

Q. Have you ever attempted to obtain pricing information on competitors’ products from customers?
A. Sure.
Q. Have you generally succeeded in obtaining that information?
A. Oh, generally.
Q. Was the information you received correct?
A. I liked to think so. I would say in most cases I feel reasonably certain that it was correct.
Q. Have you generally asked customers what their prices they were paying competitors is (sic)?
A. We do.
Q. Do they generally answer you?
A. In some cases they do. They provide the information. They provide copies of invoices, copies of quotations. In some cases they do not. In other cases you don’t ask, and in some cases, you know, they will distort the facts.
Q. Why do you not ask in some cases?
A. Because, you know, it is a fruitless effort to ask. You know, they are not going to provide you the information.
Q. Why did they not provide you the information?
A. Through company policy they don’t like to; they don’t have the information available; and I’m sure there are other reasons.
Q. Is it prevalent that people or customers will not reveal the prices that they are paying?
A. I would say it is prevalent that you will not get specific pricing terms, conditions and “the” entire competitive profile. I think, however, that you normally get some good, firm information, including all of the above, plus you get ballpark figures that you use to judge the integrity of the other detailed information.
Q. The information that you do not obtain — would that be helpful in order to compete against the competitors’ products?
A. Absolutely.
Q. All right.
A. Any information.
Q. Is there a general understanding in the Industry that this type of information should not be available from the customer?
A. Is there a general understanding? I really cannot — I can answer only my experience and my experience is that I have never gone out for pricing that I didn’t get some sort of — some sort of ballpark competitive feedback. But, again, I never go to those people that I know are not going to cooperate. I naturally go immediately to those that I know will cooperate.

That testimony describes in summary form (and with obvious credibility) how a salesman in the ordinary course of his or her affairs develops information about customers and the market in general. Fleming has offered no evidence indicating its own customer information could not be substantially duplicated by similar means. In terms of the determinative issue on the current motion, such information cannot fairly be subsumed under the “trade secrets” rubric.

      . Rule 56 principles impose on the party moving for summary judgment the burden of establishing the lack of a genuine issue of material fact. Korf v. Ball State University, 726 F.2d 1222, 1226 (7th Cir.1984). For that purpose the court must, in viewing the evidence, draw all reasonable inferences in the light most favorable to the nonmovant. Hermes v. Hein, 742 F.2d 350, 353 (7th Cir.1984). This section states matters in conformity with the principles just outlined. To the extent either party seeks to controvert the facts as so stated, the later text discussion deals with their respective contentions.

      . From the nature of the two Bailey companies’ businesses, it appears Unified and not Unlimited is the competitor Fleming is really complaining about (though Fleming did not know that when it filed suit). This opinion should be read as extending to all the competitive activity by whomever it was conducted.

      . Defendants also suggest the trade secrets laws of Indiana and Illinois are in full agreement, at least as to the questions in issue on the present motion. Defendants urge that renders any distinction between Indiana law and Illinois law at best an "apparent” conflict, so this Court need not choose between them. See In re Air Crash Near Chicago, Illinois on May 25, 1979, 644 F.2d 594, 605 (7th Cir.1981). That argument reflects an imperfect understanding of the distinction between “true” and "false” conflicts introduced by .the late Brainerd Currie as part of his proposed governmental-interest-analysis approach to conflicts problems. See E. Scoles & P. Hays, Conflict of Laws 565-73, 603-04 (1982). And in any event, as the text indicates, Illinois does not employ governmental interest analysis in tort cases. As already shown, its most-significant-contacts analysis (derived from the Restatement) points directly to Indiana law. Defendants do appear to be right, though, about the substantial similarity between Indiana and Illinois trade secrets law. Because Illinois’ law of trade secrets is more extensive than Indiana’s, this opinion will therefore look to Illinois law for guidance in instances where Indiana provides no definitive answer.

      . Fleming Surreply Mem. 6 is simply wrong in contending the distinction between "confidential information" and “trade secrets" is purely "semantic.”

      . In fact Bailey swears (Aff. ¶ 7):
      In connection with my resignation and leaving Fleming I did not take with me any Fleming business records.
      Fleming offers no affirmative evidence to the contrary, with one exception discussed later in this opinion.

      . No matter how scrupulous Fleming may have been in handling the customer lists, they might nevertheless not qualify as trade secrets if the demands of Fleming’s business required so broad a distribution (either inside or outside the company) as to make it impossible as a practical matter to maintain confidentiality. That question need not be resolved in light of the text analysis.

      . Eli Magee, an individual with wide experience in the RV business, testified (Dep. 91) that even customer companies new to the business become generally known in the industry within six months to a year via advertising and exhibitions at trade shows.

      . Fleming Mem. 15-16 says in a pejorative tone: In fact, Defendant Bailey has assigned Fleming’s former salesmen to exactly the same territories they had previously covered for Fleming. In Indiana, this means the exact same customers as they previously have visited as Fleming salesmen (Bailey Dep., pgs. 56 to 57, 90 to 100). In particular, they are now soliciting Fleming’s customers for Fleming's former principal Vernco (Bailey Dep., pg. 473).
      And see Fleming Mem. 22 and 25.

      . See Appendix.

      . Of course the concern about inhibiting fair competition also informs the law of restrictive covenants. In Indiana, as in most jurisdictions, Licocci v. Cardinal Associates, Inc., 445 N.E.2d 556, 561 (Ind.1983):
      All such covenants as this are in restraint of trade and are not favored by the law. They will be enforced only if they are reasonable with respect to the covenantee, the covenantor, and the public interest.
      But if an express covenant were nonenforceable because of overbreadth, the employer could scarcely expect protection from the common law (or the codified common law) of trade secrets.

      . As “evidence” of Bailey’s use of the information on the list, Fleming points to Bailey’s having approached Vernco, a Fleming principal, proposing to enter into a more advantageous arrangement. Fleming claims that proposition indicates Bailey was making use of the document. Yet Vernco official Robert Watson has testified he, not Bailey, identified the commission he was prepared to pay on a new contract (Watson Aff. 38-39). If anything, that tends to negate Bailey’s having used the document as a source of information after his resignation from Fleming. At worst the inference is neutral, for it does not suggest the information on the paper added to Bailey’s stock of knowledge for purposes of entering into competition with Fleming.

      . In this respect the law takes much the same view of anticompetitive legal restraints that John Milton urged in opposing censorship in his great tract on unlicensed printing, Areopagitica:
      Let [Truth] and Falsehood grapple: who ever knew Truth put to the worse in a free and open encounter?

      . In the current Rule 56 posture, Fleming’s burden of showing special damages is one of proof (though with the benefit of reasonable inferences). Here Fleming has not even met the far lesser burden of pleading such damages (see Rule 9(g)).

      . True enough, Velle speaks of the "domicile” of the party allegedly defamed and of the corporate plaintiffs "principal place of business.” In the present context that simply shifts the inquiry to what “business” should be denoted by that reference. In any case Fleming cannot complain about this Court’s resort to Indiana law, for Illinois (with its "reasonable innocent construction” doctrine) would if anything apply a more stringent yardstick to Fleming's defamation claims.

      . West Publishing Company prescribes "I.L.E." as the citation form for Indiana Law Encyclopedia, just as it designates the familiar (to Illinois lawyers) "I.L.P." as the way to cite Illinois Law and Practice.

      . Indeed as a rule expressions of opinion or judgments of a party are not actionable as defamation per se though "harsh, critical or even abusive.” Garber-Pierre Food Products, 78 Ill.App.3d at 360, 33 Ill.Dec. at 881, 397 N.E.2d at 214.


source: Caselaw Access Project

author: WEINSTEIN, Chief Judge:

license: Public Domain

text:
    Clement A. SNELL, et al., Plaintiffs, v. SUFFOLK COUNTY, etc., et al., Defendants.
    No. 82 Civ. 4290 (JBW).
    United States District Court, E.D. New York.
    May 24, 1985.
    Modified June 5, 1985.

      Baden, Kramer, Huffman & Brodsky, P.C., New York City, for plaintiffs; William M. Brodsky and Douglas Kramer, New York City, of counsel.
    James M. Catterson, Jr., Port Jefferson, N.Y., Snitow & Pauley, New York City, for defendants; William H. Pauley, III, Scott M. Yaffe, New York City, of counsel.
   MEMORANDUM and ORDER

WEINSTEIN, Chief Judge:

Plaintiffs, sixteen Black and Hispanic employees of the Suffolk County Department of Sheriff, presently hold the titles of Correction Officer, Sergeant and Lieutenant. They contend they have been discriminated against on the basis of race, color and national origin in job assignments and employment conditions. They are suing the Sheriff and the County of Suffolk under federal laws prohibiting discrimination in employment on the basis of race, color, or national origin. See § 703(a) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2. They also sue on the theory that the same defendants violated their civil rights. 42 U.S.C. §§ 1983, 1981, 1985(3).

Plaintiffs have not proved that they were assigned to duty or denied assignment, pay, or other conditions of employment because of their race, color, or national origin. They have proved that their conditions of employment have been inferior. They have regularly been defamed, harassed and demeaned because of their race, color and national origin by their co-employees; defendants have ignored or failed to take reasonable steps to prevent these abuses.

The Title VII issues were tried by the bench. Simultaneously, a jury tried the 1983 claims and found for three of the sixteen plaintiffs. This memorandum is directed to the Title VII claims.

I. PROCEDURAL BACKGROUND

Within 180 days of the occurrence of defendants’ unlawful employment practices, four of the sixteen plaintiffs filed timely charges with the Equal Employment Opportunity Commission and received right-to-sue letters. See 42 U.S.C. § 2000e-5(f)(1); Delaware State College v. Ricks, 449 U.S. 250, 256-57, 101 S.Ct. 498, 503, 66 L.Ed.2d 431 (1980); Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 458, 95 S.Ct. 1716, 1719, 44 L.Ed.2d 295 (1975). Plaintiffs’ motion for class certification under Federal Rule of Civil Procedure 23(a) was denied because the putative class was not so large that joinder of all plaintiffs would be impracticable. Defendants contend that the claims of plaintiffs who had not filed charges with the EEOC as required by Title VII should be barred.

All plaintiffs need not file administrative charges as a prerequisite to suit so long as the claims of discrimination are sufficiently similar and “right to sue” letters have been issued for reasons applicable to all plaintiffs. See, e.g., Ezell v. Mobile Housing Bd., 709 F.2d 1376, 1381 (11th Cir.1983); DeMedina v. Reinhardt, 686 F.2d 997, 1012 (D.C.Cir.1982); Allen v. United States Steel Corp., 665 F.2d 689, 695 (5th Cir.1982); Allen v. Amalgamated Transit Union Local 788, 554 F.2d 876, 882-83 (8th Cir.), cert. denied, 434 U.S. 891, 98 S.Ct. 266, 54 L.Ed.2d 176 (1977); cf. Kirkland v. Buffalo Board of Education, 622 F.2d 1066, 1068 (2d Cir.1980) (no need for plaintiff to acquire “right to sue” letter for subsequent, related incident of discrimination); but see Schulte v. State of New York, 533 F.Supp. 31, 34 (E.D.N.Y.1981). The filing requirement is not jurisdictional. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 397-98, 102 S.Ct. 1127, 1134, 71 L.Ed.2d 234 (1982).

The cases cited by defendant are unpersuasive. In Inda v. United Air Lines, Inc., 565 F.2d 554 (9th Cir.1977), cert. denied, 435 U.S. 1007, 98 S.Ct. 1877, 56 L.Ed.2d 388 (1978), the Ninth Circuit refused to invoke the single filing rule to benefit plaintiffs who had not filed with the EEOC and who sought to rely on prior filings in separate lawsuits. Hodge v. McLean Trucking Co., 607 F.2d 1118 (5th Cir.1979) (per curiam), involved would-be intervenors who had not filed with the EEOC and who sought to intervene in order to save the case of a plaintiff who failed to establish any discriminatory act within 180 days of filing. Schulte v. State, 533 F.Supp. 31 (E.D.N.Y.1981), while on point, did not discuss the relevant case law. Schulte is especially difficult to understand in light of the uncontroverted evidence that plaintiff had been told by the EEOC that filing separately would be unnecessary. Id. at 34.

Neither the Supreme Court nor the Second Circuit has addressed the issue. There is no point in requiring a wholly fruitless administrative application. The discrimination claims of plaintiffs who filed with the EEOC are sufficiently similar to those of plaintiffs who did not file to allow all plaintiffs to maintain an action under Title VII.

Defendants assert that plaintiffs cannot maintain actions under both Title VII and 42 U.S.C. § 1983. The two statutory claims are not mutually exclusive. See, e.g., Daisernia v. State of New York, 582 F.Supp. 792, 795 (N.D.N.Y.1984); cf. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 463, 95 S.Ct. 1716, 1720-21, 44 L.Ed.2d 295 (1975) (remedies available under Title VII and § 1981 separate, distinct and independent); but see Talley v. City of Desoto, 37 F.E.P. Cases 375 (N.D.Tex.1985).

Defendants are correct, however, that both causes of action could not be submitted to the jury for decision. Plaintiffs’ claims under Title VII are equitable in nature and must be decided by the court. See, e.g., Lincoln v. Bd. of Regents, 697 F.2d 928, 934 (11th Cir.), cert. denied, — U.S. -, 104 S.Ct. 97, 78 L.Ed.2d 102 (1983); Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir.1979); Cox v. Athena Cablevision, 558 F.Supp. 258, 260 (D.C.Tenn.1982); Daniels v. Lord & Taylor, 542 F.Supp. 68, 69 (D.C.Ill.1982); Dadas v. Prescott, Ball & Turben, 529 F.Supp. 203, 204-05 (D.C. Ohio 1981); see also Great American Federal Savings & Loan v. No votny, 442 U.S. 366, 375 & n. 19, 99 S.Ct. 2345, 2350 & n. 19, 60 L.Ed.2d 957 (1979) (citing cases).

Plaintiffs’ 1983 claims for damages to compensate for hurt feelings, stigma and humiliation resulting from violation of their constitutional rights were submitted to the jury after a three-week trial. For the reasons stated orally on the record, the court denied defendants’ motion to dismiss the complaint. Applying a three-year statute of limitations, the jury was instructed to consider only those claims of discrimination based on incidents occurring after December 30, 1979. See, e.g., Wilson v. Garcia, — U.S. -, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985) (applicable statute of limitations under section 1983 is state statute for personal injury suits). The jury found for some of the plaintiffs against defendants and awarded modest damages totaling $11,-000.

The facts would have warranted a punitive damage instruction against the Sheriff, but not against the County. Cf. City of Newport v. Fact Concerns, Inc., 453 U.S. 247, 271, 101 S.Ct. 2748, 2762, 69 L.Ed.2d 616 (1981). Plaintiffs, however, sought no punitive damages against the Sheriff. Nor did plaintiffs claim damages for racial harassment on the job under any state tort theory.

II. RECOVERY UNDER TITLE VII

Section 703(a) of the Civil Rights Act of 1964 forbids discrimination in “conditions ... of employment because of ... race, color ... or national origin.” As codified in Section 2000e-2 of Title 42, United States Code, the statute provides in relevant part:

(a) It shall be an unlawful employment practice for an employer—
(i) ... to discriminate against any individual with respect to his ... terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
(ii) to limit, segregate, or classify his employees ... in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, col- or, religion, sex or national origin.

A. Job Assignments

The claimed violations of Title VII rest on two separate factual patterns: disparate treatment in job assignments and a racially hostile job environment. With respect to the first claim, Gilbert v. City of Little Rock, 722 F.2d 1390, 1395 (8th Cir.1983), cert. denied, — U.S.-, 104 S.Ct. 2347, 80 L.Ed.2d 820 (1984), analyzed a similar problem — alleged disparate treatment of police officers in the imposition of disciplinary measures. As in that case, plaintiffs have not carried their burden of persuasion. The court finds that assignment to jobs are made on the basis of the officers’ capacity and experience and the needs of the correction facility. See United States v. City of Buffalo, 457 F.Supp. 612, 635-36 (W.D.N.Y.1978), modified on other grounds and aff'd, 633 F.2d 643 (2d Cir.1980). There is no claim of discrimination in initial hiring or in promotions to higher rank.

B. Racial Hostility

It is well settled that a “working environment dominated by racial hostility and harassment constitutes a violation of Title VII, regardless of any other tangible job detriment to minority employees.” Gilbert v. City of Little Rock, 722 F.2d 1390, 1394 (8th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 2347, 80 L.Ed.2d 820 (1984); see also Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir.1971), cert. denied, 406 U.S. 957, 92 S.Ct. 2058, 32 L.Ed.2d 343 (1972).

1. Elements of Claim

To make out a violation of Title VII based on racial harassment, two conditions must be met — a pattern and failure of the employer to take reasonable steps to stop the abuse. EEOC v. Murphy Motor Freight Lines, Inc., 488 F.Supp. 381, 384-85 (D.Minn.1980).

a. Pattern of Discriminating Conditions

Plaintiffs must show that more than a few, isolated incidents of racial harassment have taken place. Id. at 384; compare Cariddi v. Kansas City Chiefs Football Club, Inc., 568 F.2d 87, 88 (8th Cir.1977) (per curiam) (casual conversation not enough) with United States v. City of Buffalo, 457 F.Supp. 612, 631 (W.D.N.Y.1978) (Title VII protects against psychological impact of racially charged working environment), modified on other grounds and aff'd, 633 F.2d 643 (2d Cir.1980).

The proof establishes conclusively that plaintiffs have been subject to continuing verbal and other abuse by some fellow officers. Demeaning epithets have been regularly used in their presence and are routinely directed towards them by fellow officers. Scurrilous statements and cartoons are often posted on official bulletin boards and places frequented by plaintiffs.

Plaintiffs’ Exhibits 9, 10, 11, 12, 13, 14, 15A and 38, all of which were posted on official bulletin boards at the jail, are illustrative. While they were attached to the filed memorandum, they have been omitted from the report sent to the publisher because further circulation of these graphic examples of racial slurs would embarrass and dismay future readers. Cf. People v. Jones, 475 N.E.2d 832, 836 (S.Ct.Ill.1985) (refusing to disseminate “scurrilous material” found in jury room because it “con-tainted] denigrating, racist comments which are insulting to black people.”).

Exhibit 9 purports to be a study guide for a special minority police officer civil service examination. The “guide” consists of puzzels and games such as “which one is different?” commonly found in playbooks for five-year-olds, except that one of the puzzles has a distinctively racist cast. (“How many Honkies are in this picture?”) Exhibit 10 is a cartoon depicting a Klu Klux Klan member who after shooting a Black person remarks to a ranger “Whatcha mean, ‘Out of Season’?” Names familiar to jail employees have been attached to the figures. Similarly, the words “AKA Willie (Bone)” have been inscribed under the picture of a Kenyan youth that some jail employees were attempting to sponsor. Exhibit 11 is a highly offensive depiction of a large-breasted Black woman in some form of native garb; in the same vein, Exhibit 12 is a national geographic magazine-type photograph of a naked Black woman with the words “Yo Mama” and a bone added above her head. Exhibit 13 also depicts a naked Black person, this time accompanied by the words “Official Runnin’ Nigger Target” and what appear to be bullet holes. Exhibit 14 is a questionnaire that begins “Photo not necessary since you all look alike” and asks such questions as “[how many] years [spent] in local prisons?” and “[give] approximate estimate of income [from] theft, welfare, ... false insurance claims____” Finally, Exhibit 38 is a photograph from the first page of the Suffolk Federal Credit Union “News n Views” of newly elected credit officers. One is a Black man; the other four have been altered to resemble Klu Klux Klan members. The cumulative intent of these cartoons, “jokes” and pictures is clear.

Plaintiffs have repeatedly been mimicked in derogatory ways. For example, the court finds that in January 1983 White correction officers dressed a Hispanic inmate in a straw hat, sheet, and a sign that read “Spic.” The White officers referred to the inmate as “Ramos’ son.” Officer Ramos complained to his duty Lieutenant about the incident and also wrote an incident report to Sheriff Finnerty, Warden Romano, Deputy Warden Flammia, Chief of Staff Antoncic and Duty Lieutenant Hemindinger. Lieutenant Hemindinger called Officer Ramos into his office and accused Ramos of trying to “make waves.” Officer Pritchard then entered Hemindinger’s office and told Ramos to change the incident report; he told Ramos, “we know how to take care of fellows like you.”

Following his filing of the incident report, Ramos’ car was vandalized, and he received harassing phone calls at his home at all hours of the day and night. Several days after Ramos filed the report, Chief of Staff Antoncic approached Ramos and told him that an investigation had revealed that the incident never occurred. At this point, Ramos produced photos of the Hispanic inmate, along with the hat and sheet and was told to see Internal Affairs.

In May 1983 Ramos was informed that there would be a civil service hearing in June regarding the incident. Once the hearing date was set, Ramos was further harassed by White correction officers. They called him “Spic,” pressed racially derogatory literature on him and made statements such as “You’re lucky to have a job. We’ll get you” and “If we don’t pray together we don’t stay together.” Ramos testified at the hearing, but was never officially notified of what action, if any, would be taken against the accused officers. When he returned to the prison Ramos was greeted by a sign that read “We have the spic. We won.” White officers chanted “we won, we won, we have the spic.” These White officers informed Ramos that the accused officers had been exonerated.

In 1981 Officer Ramos and Officer John Hammond met with Alphonse Anderson, the Suffolk County Affirmative Action Officer. They complained about discrimination in job assignments and racial harassment. Anderson promised that he would visit the prison and investigate their complaints. Some time later, Ramos saw Anderson at the prison. Ramos asked for permission to speak with Anderson, but his Sergeant told Ramos to go to lunch. Several weeks later Ramos was called into Chief of Staff Antoncic’s office. Antoncic asked Ramos “What are you doing to me?” Ramos described the injustices that he felt needed addressing.

In January of 1981 Officer Ramos showed Warden Romano and Deputy Warden Flammia a “Spic and Span” cut-out and a Ku Klux Klan “application” that he had received. Ramos suggested that a memorandum be posted prohibiting such harassment. While Flammia promised to speak to each crew about such conduct, he never did so, nor was any memorandum posted warning against such activities.

As a result of his frequent complaints of racial harassment, Ramos has been shunned by many White correction officers. He often has to eat by himself and does not receive the full cooperation of White officers, making his job more dangerous and stressful. On one occasion, the security squad took so long to respond to Ramos’ call for help that he was assaulted.

Similarly, Officer Snell testified that when he has asked White correction officers stationed in the lobby to open the tier doors so that he could exit and use the officers’ restroom, the White officers have refused, making comments such as “use the toilet (in there), nigger.” Other witnesses related similar experiences. The court credits this and other testimony of ongoing demeaning incidents that increase the stress of Black officers’ employment.

It is apparent that plaintiffs were “subjected to vicious, frequent, and reprehensible instances of racial harassment ... in several guises.” Equal Employment, Etc. v. Murphy Motor Freight Lines, Inc., 488 F.Supp. 381, 384 (D.Minn.1980). See also, e.g., Gilbert v. City of Little Rock, Ark., 722 F.2d 1390, 1394-95 (8th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 2347, 80 L.Ed.2d 820 (1984); United States v. City of Buffalo, 457 F.Supp. 612, 635 (W.D.N.Y.1978), modified on other grounds and aff'd, 633 F.2d 643 (2d Cir.1980). There was a “concerted pattern of harassment” by some of the correction officers. Fekete v. United States Steel Corp., 353 F.Supp. 1177, 1186 (W.D.Pa.1973). Such opprobrium constitutes an unlawful employment practice under Title VII. Cariddi v. Kansas City Chiefs Football Club, Inc., 568 F.2d 87, 88 (8th Cir.1977).

b. Failure of Employer to Protect Workers

To recover,- plaintiffs must establish that the employer did not take reasonable steps to prevent this racial harassment in the working place. EEOC v. Murphy Motor Freight Lines, Inc., 488 F.Supp. 381, 385 (D.Minn.1980). Some courts have refused to find a Title VII violation unless supervisory personnel participated in the harassment. See id. at 385 (citing cases). The appropriate standard is that “[i]f management knows or should know of incidents of racial harassment that are more than sporadic, it has the responsibility to take reasonable affirmative steps to eliminate such incidents.” Id. at 386 (and cases cited).

Plaintiffs have proven that defendants did not take reasonable steps to prevent the racial harassment of plaintiffs by their co-workers. The defendants were aware of these adverse working conditions. The testimony of Carmine Flammia, Chief of Staff of the Sheriffs Office, is confirmed by extensive exhibits and testimony. In response to questions by the court, Mr. Flammia — who had worked for many years in the jail — testified as follows:

THE COURT: ... From your statement I understand that you have heard commonly in use in the jail the so-called jokes based on the ethnic and racial characteristics?
A Yes.
Q And you do not have much doubt, do you, that cartoons were actually posted as testified to?
A I believe that they were.
THE COURT: I take it during the course of your experience and during the course of the time we are concerned with here, under Title 7, you do not have much doubt that there were ... epithets, using the word “Nigger.”
A I believe it is [in] common use in a jail.
THE COURT: And guinea?
THE WITNESS: Oh, yes.
THE COURT: Pollack?
THE WITNESS: Oh, yes.
THE COURT: Kike?
THE WITNESS: Oh, yes.
THE COURT: Mick?
THE WITNESS: Rarely.
THE COURT: But sometimes?
THE WITNESS: Sometimes.
THE COURT: Black bitch?
THE WITNESS: Yes.
THE COURT: Honkey?
THE WITNESS: Oh, yes.
THE COURT: ... Assuming the court were to order somebody at roll calls and before assemblies to tell the Correction] 0[fficers]s that this no longer would be tolerated, who would be the person to make the statement, you or the warden or the sheriff?
THE WITNESS: I really think it should be under the warden’s jurisdiction.
THE COURT: Now, do you hold human relations workshops [about] why you shouldn’t use these [words] even in jest?
THE WITNESS: We have not.
THE COURT: Do you know the City of New York some years ago had the problem in its police force and it became very dangerous and they had these human relations workshops? ...
THE WITNESS: Yes.
THE COURT: Do you think it would be helpful to have the affirmative action officer [and] his role brought to the attention of the COs?
THE WITNESS: I guess it would be, I think what we have done and maybe we were in error in the sheriff’s department, but on the COs’ complaints we have always used internal affairs. They were the ones that investigate^] and took the complaint. I am not suggesting that it replaces the affirmative action officer, but it sort of took that role.
THE COURT: Should it be brought to their attention that the internal affairs officers are useful ... ?
THE WITNESS: Yes.
THE COURT: And perhaps the affirmative action [officer] as well?
THE WITNESS: Yes.
THE COURT: Any other action that you think would be useful?
THE WITNESS: I think — that probably and the most effective thing whether the warden or the present deputy warden would go in and talk to all the personnel, and I think that might help better if it was not a one time thing, but maybe on a constant basis.

Defendants took inadequate measures to protect plaintiffs. The evidence shows that more forceful action could have been but was not taken to ameliorate or eliminate these deleterious working conditions. No effective action was taken to extinguish rampant racial slurs. There was no followup on the few halting steps that were taken notifying correction officers of a Suffolk County policy to eliminate discriminatory working conditions.

As a result, plaintiffs have felt humiliated, fearful and depressed on the job. Cf. Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 691, 98 L.Ed. 873 (1954) (segregation “may affect their hearts and minds in a way unlikely ever to be undone”). Working conditions for Black officers and those with Hispanic backgrounds have been far inferior to those of other correction officers.

The law will not tolerate imposition of inferior working conditions on some employees because of their race or ethnicity. It matters not that it is fellow employees rather than the employer who create these conditions. Employers are responsible for taking all practicable steps to ensure that no employee is discriminated against and humiliated on the job because he or she is a member of a minority group. Kyriazi v. Western Electric Co., 461 F.Supp. 894, 935 (D.N.J.1978).

2. Problems in Banning Racial Epithets and “Jokes”

Defendants have sought to justify these conditions on two grounds: first, that the overt prejudice complained of is sporadic, non-hostile in intent, and no greater than that found in Suffolk County society generally, and, second, that hostile statements and acts in the jail are directed to all minorities, not merely Blacks and Hispanics.

This attempted justification raises the troubling issue of the role that racial and ethnic humor plays in society. “Ethnophaulisms,” “derogatory terms used by members of one ethnic group to describe the members of another,” are an integral part of such humor. P.I. Rose, They and We 102 (1968). Rose calls ethnophaulisms “the core of the ‘language of prejudice’ [that] when openly expressed, become a form of discrimination known as antilocution.” Id.

It is true that the “language of prejudice” and the racial and ethnic hostility it fosters are pervasive in New York, including Suffolk County. See Fed.R.Evid. 201 (court’s power to take judicial notice of facts “generally known within the territorial jurisdiction” of the trial court). Civil rights legislation and judicial decisions in the period following World War II have somewhat ameliorated the situation. Still, the court would have to repair to some soundproof ivory tower not to recognize that racial slurs, ethnic jokes and hostility still manifest themselves in a wide variety of ways in homes, social settings and the workplace — although perhaps less forcefully in the latter arena. “Division Between Races Still Persists In New York City, Poll Indicates,” New York Times, May 14, 1985 at 1, col. 5. The myriad forms such humor takes have been well documented. See, e.g., W.B. Helmreich, The Things They Say Behind Your Back: Stereotypes and the Myths Behind Them (1982); A. Roback, A Dictionary of International Slurs, With a Supplementary Essay on Aspects of Ethnic Prejudice (1979).

Concern about privacy interests suggests that the courts not become involved in policing what citizens say and do in their homes and at social gatherings. Here improvement must stem from educative institutions more powerful than the courts such as churches, synagogues, and schools and from the example of public leaders.

The workplace is different because it is governed by Congress’s mandate that discrimination in employment will no longer be tolerated in this country. Still, it could be argued that Congress did not intend this ban to extend to racial and ethnic joking. The problem, while appearing deceptively simple on its surface, touches some of our most sensitive and deepest conceptions of self and of our relationships with others. See, e.g., McGhee & Duffey, “Children’s Appreciation of Humor Victimizing Different Racial-Ethnic Groups,” 14 J. Cross-Cultural Psychology 29 (1983); Ingrando, “Sex Differences in Response to Absurd, Aggressive, Pro-Feminist, Sexual, Sexist, and Racial Jokes,” 46 Psychological Reports 368 (1980); Wicker, Barron & Willia, “Disparagement Humor: Dispositions and Resolutions,” 39 J. Personality & Soc. Psychology, 701 (1980); LaFave & Mannell, “Does Ethnic Humor Serve Prejudice?,” J. Communications (Summer 1976).

a. Possible Functions Served by Racial and Ethnic Humor

A good deal of the persiflage in rough humor — ethnic or otherwise — observed during the presiding judge’s youth working around the New York City docks is not without some utility. It may provide ventilation for suppressed hostility and fear. Comradeship among soldiers and fellow workers is often based upon insults designed in part to disguise affection.

The point is softly made in The Virginian, Owen Wister’s 1902 colonial romance about Wyoming between 1874 and 1890. O. Wister, The Virginian: A Horseman of the Plains ix (1960 ed.). The narrator describes two friends meeting in this way:

‘I suppose you have me beat,’ said Steve, grinning at him affectionately. ‘You’re such a son-of-a-when you get down to work. Well, so-long! I got to fix my horse’s hoofs.’
I had expected that the man would be struck down. He had used to the Virginian a term of heaviest insult, I thought. I had marvelled to hear it come so unheralded from Steve’s friendly lips. And now I marvelled still more. Evidently he had meant no harm by it, and evidently no offence had been taken. Used thus, this language was plainly complimentary. I had stepped into a world new to me indeed____

Id. at 13. The Virginian reacts differently when addressed by someone with whom he is on less friendly terms:

It was now the Virginian’s turn to bet, or leave the game, and he did not speak at once.
Therefore Trampas spoke. ‘Your bet, you son-of-a-.’
The Virginian’s pistol came out, and his hand lay on the table, holding it unaimed. And with a voice as gentle as ever, the voice that sounded almost like a caress, ... he issues his orders to the man Tram-pas:—
‘When you call me that, smile! And he looked at Trampas across the table.

Id. at 24. The narrator summarizes his impressions this way:

Something had been added to my knowledge also. Once again I had heard applied to the Virginian that epithet which Steve so freely used. The same words, identical to the letter. But this time they had produced a pistol. ‘When you call me that, smile!’ So I perceived a new example of the old truth, that the letter means nothing until the spirit gives it life.

Id. at 26 (emphasis in original).

It is clear from the evidence in this case that those making the vicious and demeaning racial and ethnic remarks and those putting scurrilous material on the bulletin boards were not smiling. This was not idle banter among friends and comrades, but sharp and cutting slurs designed to demean, harass and intimidate.

An extensive literature has developed exploring the meaning of racial and ethnic humor. In The Functions of Prejudice (1975) Jack Levin argues that although prejudice and racial stereotyping have “severely impaired the operating effectiveness of our society,” id. at 33, it persists, in part because of its function in the lives of members of the minority and majority groups. For members of the majority group, prejudice may be used to. displace aggression, protect self-esteem, define self-image, and reduce uncertainty about the perceived world. Id. at 61-62. For members of the minority group, prejudice directed against it “often exerts pressure for group cohesiveness and pride, forces emphasis on its history and achievement, and brings about the development of organizations which further its interests as a group.” Id. at 100.

Commentators have documented other functions that racial and ethnic joking may serve. See, e.g., Zijderveld, “Sociology of Humour and Laughter,” 31 Current Soc. 1, 49 (1983) (ethnic joke told by members of ethnic group strengthens their morale and bolsters their sense of identity); Davies, “Ethnic Jokes, Moral Values and Social Boundaries,” 33 British J. Soc. 383 (1982)(ethnic humor reduces ambiguity and reflects anxieties caused by conflicting norms and values in large post-industrial societies); Gadfield, “Dynamics of Humor in Ethnic Group Relations,” 6 Ethnicity 373 (1979); Ehrlich, “Observations on Ethnic and Intergroup Humor,” 6 Ethnicity 383 (1979) (suggesting distinction between ethnic and intergroup humor); Zennor, “Joking and Ethnic Stereotyping,” 43 Anthropological Quarterly 93, 111 (1970) (ethnic jokes told by minority groups about themselves strengthen the group and act as a safety valve); see generally, J.H. Goldstein & P.E. McGhee,, eds., The Psychology of Humor 105-114 (1972) (reviewing major studies undertaken in this area).

The jokes described in the sociology studies cited above are relatively bland, particularly when compared with the virulent slurs used in the Suffolk County Jail. In any event, the authors are not condoning the prejudice underlying the widespread use of racial and ethnic humor, but instead are seeking to understand its tenacious grasp on our society.

b. Lingering Effects of Past Discrimination

In the not very distant past, racism “was openly acknowledged as official policy of the United States government____” R. Kluger, Simple Justice 84 (1977). Laws designed to assure the inferiority of Black citizens remained on the books until well into this century. Id.; See also, B.D. Adam, The Survival of Domination: Inferiorization and Everyday Life, 21-24 (1978). Fortunately, United States government policy has changed, but its effects linger. Discrimination against Hispanic citizens has been perpetrated more subtly though no less invidiously. See, J.R. Feagin & C.B. Feagin, Discrimination American Style: Institutional Racism and Sexism 43-79 (1978); cf. J. Levin, The Functions of Prejudice 16 (1975) (describing mass media advertisements that portray negative stereotypes of Mexican-Americans). Cartoons and postcards depicting widespread ethnic and racial stereotyping flourished at the turn of the century and subsequently. See, e.g., “Jews in American Graphic Satire and Humor,” Catalogue of the Collection of John and Selma Appel (1985).

Unfortunately, discrimination as a matter of state policy continues to flourish in today’s world. The South African, Iranian and other situations are well known. The Soviet Union, through its state-controlled press, still publishes anti-Semitic cartoons. See, e.g., Institute of Jewish Affairs, Evidence from Books, Press and Radio (1978); Kagedan, “Soviet Anti-Jewish Publications 1979-1984” (Special Report to the American Jewish Committee).

State condoned racism encourages similar attitudes among citizens, which may persist long after state policy changes. On view at the American Jewish Committee is a monopoly-type board game “Jews Out” popular in Nazi Germany. Players sought to land on stores owned by Jews in order to send them to Palestine; sending six Jews out of Germany won the game. Recently, a few Germans have used a more malign version of the “game” in which Jews are sent to death camps by throwing the dice. Jewish Telegraphic Association Daily News Bulletin at 3 (Oct. 1, 1984). See also, PL (Ex. 9 (“draw the dots” sheet posted at the Jail to suggest that minority correction officer candidates are less intelligent than White candidates).

The lingering effects of past discrimination are omnipresent in the United States, particularly in employment. See J.R. Feagin & C.G. Feagin, Discrimination American Style 44 (1978) (citing statistics showing minorities hold proportionately higher number of low income jobs). Racial stereotyping continues to be a potent force in perpetrating subjugation of the past. See, e.g., G.S. Feldstein (ed.), The Poisoned Tongue: A Documentary History of American Racism and Prejudice 272-330 (1972). This abuse may be quite sophisticated as when teachers draw bagels on the files of Jewish students. Washington Post, April 20, 1985, at p. 10. Among male physical workers the forms of abuse are often less subtle.

Sanitizing the workplace may detract from the cathartic value ethnic slurs sometimes do have. The court recognizes that this is particularly true where, as here, the Suffolk County Correction Officers are subject to discipline, danger and inhibitions and come from a variety of disparate groups, each of which is unsure of its economic and social status.

Given, however, the harsh and crude way in which racial animosities have regularly been expressed by correction officers in the Suffolk County Jail, an absolute prohibition on racial “joking” there is mandated by the law. Only a radical shock to the mores can succeed in bringing home to these officers the necessity of eschewing overt hostility so that equal working conditions for all employees can exist as Congress intended.

Whatever prejudice may manifest itself in society at large, Congress has flatly ruled that it will not be allowed in the workplace in the United States. Prejudice, whether blatant or subtle, whether practiced by those wearing blue collars or white collars, whether the expression of those wearing correction officers’ uniforms or grey flannel suits, will not be tolerated when directed against employees in the workplace. Cf. Kyriazi v. Western Electric Co., 461 F.Supp. 894, 934-39 (D.N.J.1978) (under Title VII, female employee not required to tolerate sexist cartoons and jibes as part of the “working man’s world”). Courts must carry out this mandate.

As the court concluded in United States v. City of Buffalo, 457 F.Supp. 612 (W.D.N.Y.1978), modified on other grounds and aff'd, 633 F.2d 643 (2d Cir.1980):

The Department has hidden behind a paper policy of racial tolerance. It has stated that if the complaints brought out at this trial had been brought to the commissioner, action would have been taken. The record speaks otherwise. A strong policy directive should have been issued by the commissioner on racial tolerance, it should have been constantly impressed upon the entire force, particularly precinct and unit leaders, and a formal mechanism should have been established to deal with any related grievances.

Id. at 635. Strong remedial steps are appropriate in the instant case. See also United States v. City of Buffalo, 472 F.Supp. 478 (W.D.N.Y.1979) (implementing remedy).

For reasons beyond the scope of this opinion, the First Amendment does not bar appropriate relief in the instant case of discrimination in the workplace. Such serious constitutional considerations are best addressed in a case raising the issues directly. Cf, e.g., G. Gunther, Constitutional Law 1176 ff. (9th ed. 1975) (“Offensive Language and the Sensitive Audience”). Here no one has raised the issue and it would be inappropriate for the court to address it on its own motion.

III. REMEDY

The Warden of the Suffolk County Correction facility shall take the following steps immediately to remedy these unlawful conditions:

1. He shall promptly appear before all correction officers either in an assembly or as each shift and squad assembles. He shall declare that he and the County will not tolerate any correction officer’s action discriminating against another correction officer because of his or her minority status. He shall forbid the use by correction officers on any County property and on all County business of: (1) epithets such as “nigger,” “polack,” “kike,” “spic,” “guinea,” “honky,” “mick,” “coon,” and “black bitch” (all of which have been used on the job by correction officers in recent years); (2) posting or distribution of derogatory bulletins, cartoons, and other written material; (3) mimicking officers because of what some correction officers may believe to be stereotypical characteristics of minorities; and (4) any racial, ethnic, or religious slurs whether in the form of “jokes,” “jests,” or otherwise. Appropriate followup of these statements shall be made in writing and orally by the warden and his subordinates.

2. He shall state that a violation of this policy will result in prompt and severe discipline.

3. He shall describe the method of making complaints about violations of this policy and describe the duties and role of the County “Affirmative Action Officer” and the Corrections Department Internal Affairs Office in dealing with the issue of discrimination.

4. He shall take such further action as he believes necessary to carry out the policy against discrimination by fellow employees, including instituting human relations workshops.

During the course of the trial, the attorneys took steps to reduce racial hostility resulting from the litigation. They shall direct their respective clients to forego any gloating or recriminations over this litigation to the end that the officers of the Correction Facility can in solidarity, amity and mutual respect resume the job of protecting the public, inmates and each other.

Plaintiffs shall promptly submit a motion for attorneys’ fees. See 42 U.S.C. § 2000e-5(k).

SO ORDERED.