author: SHADUR, District Judge.

text:
    Zinaida BRUDNE, Plaintiff, v. AMALGAMATED TRUST & SAVINGS BANK, Defendant.
    No. 84 C 4077.
    United States District Court, N.D. Illinois, E.D.
    Jan. 21, 1986.

      Lawrence Cohen, Martin K. Denis, Robert S. Letchinger, Fox and Grove, Chicago, Ill., for plaintiff.
    Thomas J. McCracken, Jr., McCracken & Walsh, Andrew J. Maxwell, Chicago, Ill., for defendant.
   MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Zinaida Brudne (“Brudne”) has filed an eight-count First Amended Complaint (the “Complaint”) against Amalgamated Trust & Savings Bank (“Bank”), charging in the six currently-asserted counts:

1. employment discrimination motivated by Brudne’s religion and national origin, in violation of Title YII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e to 2000e-17 (Count I);
2. race-motivated employment discrimination in violation of 42 U.S.C. § 1981 (“Section 1981”) (Count II);
3. age discrimination in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621-634 (Count III);
4. discharge in retaliation for filing a claim under the Illinois Workers’ Compensation Act (the “Compensation Act”), Ill.Rev.Stat ch. 48, ¶¶ 138.1-138.30 (Count IV);
5. defamation (Count VI); and
6. refusal to pay wages in violation of the Illinois Wage Payment and Collection Act, Ill.Rev.Stat. ch. 48, ¶¶ 39m-l to 39m-16 (Count VIII).

Bank has moved under Fed.R.Civ.P. (“Rule”) 56 for summary judgment against Brudne. For the reasons stated in this memorandum opinion and order, that motion is granted in part and denied in part.

Facts

For purposes of the motion as to Counts I, III, IV and VI, the relevant facts are few. In July 1976 Brudne, a 62-year-old Russian-Jewish woman, began working for Bank as a file clerk in its bookkeeping department. On August 23, 1982 Bank fired Brudne. On July 11, 1983 Brudne filed a discrimination charge (D.Ex. A) with the Equal Employment Opportunity Commission (“EEOC”). EEOC issued a right-to-sue letter February 14, 1984. On May 11, 1984 Brudne filed this suit pro se against Amalgamated.

To avoid repetition, the facts separately relevant to Count IV alone will be dealt with in the discussion of that count. As for Count VI, the only added fact that bears on the defamation claim is that on July 9, 1984 court-appointed counsel filed the Complaint on Brudne’s behalf, asserting such a claim for the first time.

ADEA’s 300-day Filing Period

ADEA § 626(d) requires a complainant to file an age discrimination charge with EEOC:

1. within 180 days, or
2. in deferral states — states that have established their own agencies to remedy discrimination claims — within 300 days,

after the allegedly discriminatory act. Absent special circumstances, a timely administrative filing constitutes a prerequisite to maintaining an ADEA suit in federal court. Kennedy v. Whitehurst, 690 F.2d 951, 961 (D.C.Cir.1982).

Brudne delayed her EEOC filing until July 11, 1983 — 322 days after she was discharged. That filing fell outside ADEA § 626(d)’s 300-day limitation period. Hence Bank argues Brudne cannot include an age discrimination claim in this lawsuit.

Title VIPs 180-day Filing Period

Title VII § 2000e-5(e) sets up a dual timetable for the filing of charges similar to that contained in ADEA § 626(d). Though that section first speaks of a 180-day limitation, it goes on to establish an extended filing period in deferral states such as Illinois:

[I]n a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred....

Again absent special circumstances, no plaintiff who has failed to file a timely EEOC charge can maintain a Title VII suit. Martinez v. United Automobile, Aerospace & Agricultural Implement Workers of America, Local 1373, 772 F.2d 348, 350 (7th Cir.1985).

This Court recently concluded in Proffit v. Keycom Electronic Publishing, 625 F.Supp. 400, 404-407 (N.D.Ill.1985) that Title VII — unlike ADEA — requires a complainant to initiate timely state proceedings in order to obtain the extended 300-day federal filing period. But the Proffit holding is not necessary to this case, because the 322-day gap between Bank’s allegedly discriminatory firing and Brudne’s EEOC filing exceeds both the basic 180-day filing period and the extended 300-day limitation period established by Title VII § 2000e-5(e). Bank therefore contends Brudne cannot assert a Title VII claim in this lawsuit either.

Brudne’s ADEA and Title VII Contentions

Brudne counters Bank’s ADEA and Title VII limitations claims with three arguments:

1. Bank engaged in a continuous course of discrimination against Brudne. That continuity postponed the commencement of the limitations time clock.
2. Bank’s misrepresentations to Brudne as to the reasons for her discharge should toll the limitations period.
3. Bank’s failure to post a notice informing its employees of their rights under ADEA and Title VII equitably tolled the limitations period.

Those contentions will be dealt with in turn.

1. “Continuing Violation” Theory

Brudne claims Bank engaged in a continuous course of misconduct against her. Hence she says the events — both before and including her August 23, 1982 discharge — that underlie her ADEA and Title VII claims are not time-barred under a “continuing violation” theory.

In that respect, Brudne first charges Bank maintained pervasive discriminatory policies directed against Russian-Jewish persons and against employees over 40 years old. Brudne asserts the systematic nature of those discriminatory policies renders Bank’s actions towards Brudne a “continuing violation.”

Stewart v. CPC International, Inc., 679 F.2d 117, 121 (7th Cir.1982) (emphasis in original, citations omitted) points out the fundamental flaw in that position:

In the third situation, the plaintiff charges that the employer has, for a period of time, followed a practice of discrimination, but has done so covertly, rather than by way of an open notorious policy.... In such cases the challenged practice is evidenced only by a series of discrete, allegedly discriminatory, acts.... The present case falls into this category. Stewart’s contention is that CPC covertly discriminated against him on the basis of his race, and that the discrimination is evidenced by a series of discrete acts — the successive rejections of his applications for the training program.
Although [United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977)] does not speak directly to this brand of continuing-violation theory, the Supreme Court’s emphasis upon the need to show a present violation of Title VII indicates that an employer may be held liable for a continuing practice of discrimination if the plaintiff can demonstrate that the practice has actually continued into the “present” — that is, into the time period relevant to the date the charge of discrimination was filed. At least one discriminatory act must have occurred within the charge-filing period. Discriminatory acts that occurred prior to this period constitute relevant evidence of a continuing practice, and may help to demonstrate the employer’s discriminatory intent; and they will of course be used to determine the extent of the remedy that is in order_ But the prior discriminatory acts do not come into play at all unless the plaintiff can show in the first place that the discrimination is “presently” continuing.

Even assuming arguendo that Bank maintained (or maintains) discriminatory policies adversely affecting Russian-Jewish and over-forty employees, by definition those policies ceased to affect Brudne when Bank fired her in August 1982. Bank’s allegedly discriminatory act against Brudne —her firing — occurred too long before the EEOC charge. Brudne’s allegations of systematic policies of discrimination against a group of which she was a member cannot circumvent the requirement of pointing to at least one discriminatory act affecting her within the limitations period.

Brudne next claims a series of discriminatory acts did occur within the limitations period:

1. Dr. Haskell — Brudne’s treating physician — sent letters to Bank on August 24, 1982 (P.Mem.Ex. I) and September 16, 1982 (P.Mem.Ex. W). Brudne says those letters constituted applications for reemployment, and Bank’s failure to respond to those letters amounted to a discriminatory refusal to rehire.
2. Brudne Second Aff. 1112-15 says she called Bank and asked to be rehired on November 15 or 16, 1982. Again Brudne claims Bank’s nonresponse was a discriminatory refusal to rehire.
3. Brudne Supp. Answers 168-73 state Bank gave a discriminatory job reference to NAEL Services, Inc. in March 1983.

Although the August 1982 letter falls outside the 300-day limitations period, each of the remaining incidents — the September 1982 letter, the November 1982 phone call and the March 1983 job reference — would be within it. Only the March job refer-enee, however, meets Title VII’s 180-day filing deadline under Proffit, at 404-407.

Brudne’s “continuing violation” notion based on those events must fail as well. Each event is itself insufficient, and three times zero is still zero.

First, there is no rational predicate for labeling Dr. Haskell’s September 1982 letter to Bank (P.Mem.Ex. W) an employment application by Brudne. Dr. Haskell wrote in response to Bank’s request for information verifying his treatment of Brudne (Haskell Aff. ¶7). Although Dr. Haskell stated Brudne was “capable of returning to work,” the context of that statement was simply as a part of Dr. Haskell’s diagnosis. There is no hint that Brudne was applying (or wanted to apply) for a new job with Bank. Indeed the letter does not even indicate Dr. Haskell knew of Brudne’s discharge.

Second, even accepting as factual Brudne’s November phone request for a job, and treating Bank’s alleged inaction as a discriminatory refusal to rehire Brudne, that would represent a new and discrete act of discrimination. Caldwell v. National Association of Home Builders, 771 F.2d 1051, 1055-56 (7th Cir.1985) (footnote and citations omitted) teaches a refusal to rehire does not resurrect a prior discriminatory discharge:

Admittedly Caldwell cannot claim that his termination in the fall is a part of a continuing violation. This doctrine requires a present violation, not just the effects of a past violation.... The hiring decisions in the spring, although necessary because of the reorganization and discharges announced the previous fall, are independent of the NAHB’s decision to terminate Caldwell. An employer’s terminating an employee, unlike the employer’s failure to hire or to promote, is a completed act; that its consequences linger does not indicate that the discrimination itself is continuing.... Caldwell should have filed two EEOC charges, one in the fall of 1981 and one after the NAHB failed to rehire him.

Third, the Caldwell rationale applies with equal force to Bank’s allegedly discriminatory job referral in March 1983. That incident, like the alleged refusal to rehire, is an independent act separately triggering a new limitation period. Neither transforms Bank’s earlier discriminatory act into a “continuing” violation. As Garcia v. Rush Presbyterian-St. Luke’s Medical Center, 80 F.R.D. 254, 262 (N.D.Ill.1978) properly held:

Thus, while acts which were not the basis of the EEOC charges may be relevant as background [for] the timely claims, they may not themselves constitute the basis for imposition of liability.

Any other result would virtually emasculate the limitations period, for a potential plaintiff could always circumvent the limitations period and dredge up outlawed claims by reapplying for work. Brudne’s attempt to establish a continuing violation by relying on discrete post-discharge events must be rejected.

2. Equitable Tolling of the Limitations Period

Zipes v. TWA, 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982) (footnote omitted) corrected the lower courts’ earlier treatment of untimely filing with EEOC as a jurisdictional flaw:

[F]iling a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.

Brudne invokes the equitable tolling concept in two ways.

(a) Bank’s Alleged Misrepresentations

Brudne first claims Bank lied to her about the true reasons for her discharge. She says that misrepresentation justifies tolling the limitations period. She is wrong on the facts and the law.

Brudne Second Aff. 11 23 states:
23. Amalgamated gave one set of reasons to me in its August 23, 1982 letter to justify my termination, but in June 1983 I learned for the first time that Amalgamated fired me for other discriminatory and false reasons, i.e., that I was discharged because I was an unreliable employee, was absent for unexcused and invalid medical reasons, and that my absence reasons were fabricated and not bona fide.

And Brudne Second Aff. IMF 24-25 similarly asserts Bank’s original justification was false at the outset.

But Bank’s August 23, 1982 letter (P.Mem.Ex. J) in fact identified reasons for Brudne’s discharge of the same stripe as those she describes in her Second Aff. U 23:

In view of the warning given to you in Mr. Monahan’s letter of January 28, 1982; your failure to cooperate with the Bank during your leave (refusal to be X-rayed, failure to call me after our August 11 conversation, and failure to provide the requested letter from Dr. Has-kell); the fact that the insurance company doctor released you to work while you continue to claim Dr. Haskell will not release you to work; and our information that you have not seen Dr. Haskell since the date of your alleged injury, you are terminated, effective immediately.

Brudne cannot claim she did not suspect discrimination until she learned Bank’s second set of reasons, where the first justifications were of the same type and—according to Brudne —equally false. Nothing in Bank’s August 1982 letter “painted a picture so distorted of the ground for [Brudne’s] dismissal that the merits of the potential claim remained obscure for a considerable length of time.” Meyer v. Riegel Products Corp., 720 F.2d 303, 309 (3d Cir.1983). Accordingly Brudne cannot argue Bank’s actions deceived her into overlooking her rights.

Brudne also says Bank’s failure to acknowledge her attempts to reapply for work “deceived me as to the finality of my discharge” (Brudne Second Aff. 1122). But Bank’s August 1982 letter clearly stated:

[Y]ou are terminated, effective immediately.

Brudne’s hope that Bank might rehire her at some later date does not present a legally sufficient reason to toll the period for filing with EEOC. Caldwell, 771 F.2d at 1056 n. 1.

(b) Failure To Post Informational Notices

Brudne characterizes her Second Aff. 1127 as a showing that Bank failed to post the informational notices required by both ADEA § 627 and Title VII § 2000e-10. Such a failure would toll the limitations period. Kephart v. Institute of Gas Technology, 581 F.2d 1287, 1289 (7th Cir.1978).

Bank retorts that it always posted those notices (Gannon Aff. lili 7-11). That detailed factual assertion, complying as it does with Rule 56(e), necessarily prevails over Brudne’s mere statement that she never saw the posted notices. Her statement neither equates with nor really supports, in evidentiary terms, her conclusory statement that Bank did not in fact conspicuously post the notices.

For Rule 56 purposes Bank’s showing that it did post the notices thus stands uncontradicted. Brudne’s contrary claim cannot and does not toll the limitations period.

Retaliatory Discharge

As already stated, Complaint Count IV alleges Bank fired Brudne in retaliation for her having exercised rights under the Compensation Act. Bank says that claim cannot stand because:

1. Brudne did not even file a workers’ compensation claim until almost a year after she was fired, and that sequence conclusively negates retaliation as a motive for the firing.
2. In any event, Bank says it discharged Brudne because of her chronic absenteeism — not because she claimed workers’ compensation.

True enough, Brudne did not file a claim with the Illinois Industrial Commission (the “Commission”) until June 29, 1983 — long after her August 1982 discharge (Bank R.Mem.Ex. 10). But the Commission Claim date is really not controlling. Immediately after her June 8, 1982 injury Brudne had attempted to collect compensation benefits from Bank’s compensation insurance carrier (Bank Mem.Ex. U-V).

Compensation Act § 138.4(a) authorizes an employer to insure against its liability to pay workers’ compensation, while Compensation Act § 138.4(h) prohibits any interference by the employer with an employee’s exercise of any rights under the statute. That clearly embraces retaliatory conduct, and the prohibition must apply with as much force to an employee’s attempt to collect a claim from the employer’s insurance carrier as to an application for benefits filed with the Commission. Bank’s first argument is wholly without merit.

As to the reason for Brudne’s firing, she retorts:

1. Other employees have also exhibited excessive absenteeism but have not been fired (Brudne Mem.Ex. O-Q).
2. Retaliation may be inferred from the timing of Brudne’s discharge — two months after her claim to the insurer for benefits.

Those matters raise a factual issue as to whether Bank’s claimed reason for firing Brudne is pretextual. Such a factual dispute blocks summary judgment on Count IV.

Defamation

Complaint Count VI sets out a cause of action for defamation. Bank correctly urges that claim, like the ADEA and Title VII claims, is barred by limitations.

Ill.Rev.Stat. ch. 110, ¶ 13-201 establishes a one-year limitations period for defamation actions. That period begins to run on the date of publication of the defamatory material. Tom Olesker’s Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc., 61 Ill.2d 129, 131-32, 334 N.E.2d 160, 161 (1975).

Brudne grounds her defamation claim on Bank’s statement Brudne was “malingering and lying” (Partee Dep. 123). Par-tee — a Bank employee — made such a statement during conversations she had with an insurance agent, two union agents and Bank’s attorney on August 16, 1982 (Par-tee Dep. 123, 125-26) — well over a year before the July 9, 1984 filing of the Corn-plaint. Brudne has offered no admissible evidence to establish a publication date later than August 1982. Complaint Count VI consequently falls outside Illinois’ one-year limitations period and must be dismissed.

Other Counts

Bank is obviously angry and frustrated at having to devote time and expense to what it views as a wholly frivolous complaint. For one thing, it urges the Russian-Jewish derivation of its principal owners and management (who are also persons who fall within the age range protected by ADEA) renders it ludicrous that they would discriminate on those grounds against a person (one among several) to whom they feel they have reached out to provide employment opportunities. For another, Bank obviously believes the decision to terminate Brudne was entirely just on the merits — in its view the real defense to the now-dismissed defamation claim is that the charges of Brudne’s “malingering and lying” are not only true but an understatement.

But on a summary judgment motion courts deal not with probabilities of success, but rather with mere possibilities. Counsels’ paper blizzard makes plain there are factual issues on Brudne’s charges, and that is enough to defeat a Rule 56 motion. This Court should not, however, be misunderstood as expressing any value judgment on Brudne’s likelihood of success. If at trial her claims prove as empty as Bank asserts, the potential of liability on her part under 42 U.S.C. § 1988 and Rule 11 remains open.

Conclusion

There is no genuine issue of material fact, and Bank is entitled to a judgment as a matter of law, as to Counts I, III, V, VI and VII. Those claims are dismissed. As to Brudne’s remaining claims, disputed factual issues preclude summary judgment. Bank’s motion is denied to that extent.

      . Brudne Mem. 2 n. 2 indicates Brudne does not oppose Bank’s summary judgment motion on Counts V and VII.

      . Bank moved for summary judgment on all of Brudne's claims. From the parties' voluminous submissions it seemed plain that the merits (or lack of merit) of various of Brudne’s claims were heavily fact-bound, though limitations might have barred some of those claims. This Court therefore called on both parties to file supplemental briefs to address the issue of whether timely EEOC charges supported Brudne’s Title VII claim (Count I) and ADEA claim (Count III).

      . No dispute exists as to the facts stated in this section of this opinion. As for the other contested counts, however, Rule 56 principles impose on the party moving for summary judgment the burden of establishing the lack of a genuine issue of material fact. Korf v. Ball State University, 726 F.2d 1222, 1226 (7th Cir. 1984). For that purpose this Court must view the evidence in the light most favorable to the nonmovant—here Brudne. Hermes v. Hein, 742 F.2d 350, 353 (7th Cir.1984). As the brief discussion at the end of this opinion reflects, such a viewing forecloses summary judgment on those other counts.

      . Some confusion exists as to exactly when Brudne filed her EEOC charge. Burtner Aff. ¶¶ 3-3 states Brudne filed her charge June 29, 1983. But Complaint ¶ 5 and the charge itself (D.Ex. A) indicate a July 28, 1983 filing date. Nonetheless both Brudne Supp.Mem. 4 and Bank Supp.Mem. 2 seem to adopt July 11, 1983 as the effective filing date, and this opinion will therefore accept that version. Nothing turns on that, however, because the timeliness problems discussed in the text would remain whichever of the three dates referred to in this note is correct.

      . Illinois is a deferral state; see 29 C.F.R. § 1626.9(b).

      . Bank R.Mem. 3 originally asserted ADEA §§ 626(d) and 633(b) required Brudne to file her discrimination charge with the Illinois Department of Human Rights ("IDHR”) within Illinois’ 180-day limitation period (see Ill.Rev.Stat. ch. 68, ¶ 7-102(A)(l)). Bank argued Brudne’s failure to initiate timely state proceedings precluded application of ADEA’s extended 300-day filing period. But Anderson v. Illinois Tool Works, Inc., 753 F.2d 622, 626 (7th Cir.1985) recently concluded otherwise:
      [T]he timeliness of [an ADEA] plaintiffs state charge is irrelevant to whether he gets the extended 300-day federal charge-filing period. ...
      Bank Supp.Mem 2 acknowledges that rule.

      . That text statement would be inaccurate if (for example) post-firing events continued to injure Brudne. But that possibility too is negated by the text discussion that follows.

      . Because the September 16, 1982 letter was written on the 299th day before Brudne’s July 11, 1983 EEOC charge, Bank’s inaction in response to it necessarily fell within the 300-day period. If Brudne actually placed the alleged November 15 or 16, 1982 phone call, that would have been 238 or 239 days before the EEOC filing. Bank’s March 1983 job reference occurred no later than 132 days before the EEOC filing.

      . Bank denies those events ever occurred.

      . Although Caldwell arose under ADEA, the doctrinal treatment would be identical under Title VII. See Mamos v. School Committee of Town of Wakefield, 553 F.Supp. 989, 993 (D.Mass.1983); cf. Terry v. Bridgeport Brass Co., 519 F.2d 806, 808 (7th Cir.1975) (discharge from employment not a continuing violation).

      .Neither side has addressed still another problem with Brudne’s reliance on post-discharge acts: Brudne never filed an EEOC charge based on those acts. See Herman v. NBC, 744 F.2d 604, 606 (7th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 1393, 84 L.Ed.2d 782 (1985).

      . Brudne Aff. ¶ 18 asserts Bank deceived her as to her chances of future employment at Bank. But Brudne Second Aff. ¶ 15 simply states:
      I relied on Amalgamated’s representation on November 15 or 16, 1982 that Amalgamated had not made a decision to hire and/or rehire me....
      Bank's alleged representation it would consider Brudne for a future position does not toll the limitations period. Lawson v. Burlington Industries, Inc., 683 F.2d 862, 864 (4th Cir.), cert. denied, 459 U.S. 944, 103 S.Ct. 257, 74 L.Ed.2d 201 (1982).

      . That renders irrelevant Bank’s alternative contention that Brudne acquired actual knowledge of her rights more than 300 days before she filed her EEOC charge. As to that matter, Brudne Second Aff. ¶ 26 states:
      26. Until I talked to the EEOC’s intake clerk in June 1983, I lacked actual and/or constructive knowledge of Title VII and the ADEA and the filing procedures under those statutes.
      Even though that too is conclusory in nature, there is really no other way to prove a negative. Hence Brudne’s statement would create a factual issue on the extent of her actual knowledge, were that the controlling issue. But as the text reflects, Bank’s posting of notices created the constructive notice that moots the actual-notice question.

      . Brudne had not asserted a comparable claim in her original pro se complaint, filed May 11, 1984.

      . Brudne's Response to Bank's Interrogatory No. 5 (Bank R.Mem.Ex. 12) identifies the date of Bank’s statements as:
      In approximately August 1982 and at various times thereafter.
      But once again Brudne seeks to counter facts with an unsupported conclusion. Rule 56(e) renders her "at various times thereafter” statement a nullity in evidentiary terms.

      . Bank Mem. 14 says:
      The Plaintiffs Complaint is groundless and frivolous, but more than that, it is an insult to a Bank that has gone out of its way to provide aid and employment to a whole plethora of minorities including Russian Jews.

      .Bank Mem. 14 also says:
      In language that the Plaintiff clearly understands, it takes pure "chutzapah” [sic — should be "chutzpah”] for an individual with a personnel record as dismal as hers to claim that she was terminated for any reason other than chronic absenteeism.
      In Bank’s perspective Brudne is much like the apocryphal applicant for a radio announcer’s job who, after disclosing an unfortunate but pronounced stutter throughout his audition reading of a test script, shouts at the station manager who has declined to hire him:
      Ant-t-t-ti-s-s-sem-m-m-mite!


source: Caselaw Access Project

author: DEVINE, Chief Judge.

license: Public Domain

text:
    Andrew J. MOYNIHAN; Theresa Church v. J. Michael HICKEY; Joseph W. Hogan; H. Irene Peters; Samuel Reddy, Jr.; Leon Harold Rice; Barbara E. Arnold; Lionel R. Boucher; James D. Casey; Claire D. Clarke; Richard M. Flynn; David T. Rines; Stella D. Scamman.
    No. C. 85-674-D.
    United States District Court, D. New Hampshire.
    Jan. 21, 1986.

      Charles G. Douglas, III, Concord, N.H., for plaintiffs.
    James A. Sweeney, Asst. Atty. Gen., Concord, N.H., for defendants.
   MEMORANDUM OPINION

DEVINE, Chief Judge.

Prior to October 21, 1985, the plaintiffs, Andrew J. Moynihan and Theresa Church, were employed by the federally-funded state agency known as the New Hampshire Council on Vocational Technical Education (“Council”). As of said date, Moynihan had been so employed for sixteen (16) years and held the position of Executive Director. In turn, Church had been so employed for fourteen and one-half (I4V2) years and held the position of Executive Secretary. In the course of a Council meeting held on October 21, 1985, the plaintiffs were orally advised that Council had been reorganized, that their respective positions had been eliminated, and that they were to turn in their keys and to cease all further duties of employment for Council. Their inquiries as to benefits they perceived to be due and owing them were met with replies to the effect that such would be taken up in the future by the Executive Committee of Council. Plaintiffs’ Exhibit 17.

In this litigation, the issues currently before the Court for resolution, after hearing, concern the plaintiffs’ claims of right to injunctive relief requiring their reinstatement. Specifically, plaintiffs contend that the evidence demonstrates violations of their constitutional rights of free expression pursuant to the First and due process pursuant to the Fourteenth Amendments to the United States Constitution. 1. The Facts

Commencing with passage of the Morrill Act in 1862 (12 Stat. 503), the federal government has recognized responsibility for assistance to vocational education. In 1963, Congress sought to modernize its approach by redirection and expansion of funding assistance for the purpose of making available to all citizens high quality vocational education. The 1963 legislation contained a provision for designation of an advisory council in each state, membership of which was to include persons familiar with the vocational needs of management and labor as well as representatives of educational institutions which provided programs of technical and vocational training.

Significant amendments to the Vocational Education Act were made in 1976, at which time the statute was codified at 20 U.S.C. §§ 2301-2461. Therein as a condition of participation in the program the governor of each state was required to appoint a state advisory council, one or more individual members of which were to come from one or more of twenty specified categories of the citizenry. 20 U.S.C. § 2305(a). Following gubernatorial selection, each council was to select its chairman, 20 U.S.C. § 2305(c), and each council was authorized to employ “such professional, technical, and clerical personnel as may be necessary to enable it to carry out its functions under this chapter....” 20 U.S.C. § 2305(e). Additionally, the assurance of fiscal autonomy as to each council was set forth in a statutory provision which stated:

The expenditure of these funds is to be determined solely by the State advisory council for carrying out its functions under this chapter, and may not be diverted or reprogramed for any other purpose by any State board, agency or individual. Each counsel shall designate an appro priate State agency or other public agency, eligible to receive funds under this chapter, to act as its fiscal agent for purposes of disbursement, accounting and auditing.

20 U.S.C. § 2305(f)(2) (emphasis added).

Employed as staff by Council, the plaintiffs were originally in the state employee system, and the New Hampshire Department of Education was the originally designated fiscal agent for Council. In 1981, however, the then membership of Council voted to change fiscal agents to the Concord, New Hampshire, School District, and plaintiffs accordingly withdrew from the state employment system. For some period of time prior to 1982, plaintiffs operated as employees-at-will of Council, but in that year, Council caused job descriptions to be drawn up for each of them and set up a schedule of benefits by means of Amendments or Additions to its Administrative Guide. In addition to detailing such items as wage and personnel policies, mileage and meal reimbursements, holidays, annual and sick leave, and annual staff evaluations, these additions specified a dismissal procedure for staff of Council as follows:

3.6 Dismissal Procedure
Dismissal procedure shall be by due process as follows:
(1) Notification to employee in writing, 30 days prior to dismissal date, setting forth the grounds for dismissal.
(2) If the employee desires a hearing, the employee shall make request within 10 days after receipt of dismissal notice in writing to the chairman of the Council.
(3) The employee shall have the right to a hearing before the Executive Committee within 15 days and may present witnesses and written evidence.
(4) The Executive Committee shall affirm, modify, or reverse the nonrenewal or dismissal in writing within five days.

Plaintiffs’ Exhibit 7.

Commencing January 24, 1983, a series of term letter contracts were issued by Council to plaintiff Moynihan, who in turn issued identical letter contracts to plaintiff Church. Each of said letter contracts incorporated by reference the provisions of the Additions set forth in Plaintiffs’ Exhibit 7.

In October 1984 Congress made extensive repealing amendments to the vocational education act by medium of passage of the Carl D. Perkins Vocational Act, so-called, P.L. 98-524, 98 Stat. 2435. Now codified at 20 U.S.C. §§ 2301-2471, the Perkins Act required a reduction in the number of members of Council to thirteen, each of which was to be representative of a defined segment of the population. 20 U.S.C. § 2322(a). The Perkins Act also mandated that

[e]ach State council shall meet as soon as practical after certification has been accepted by the Secretary and shall select from among its membership a chairperson who shall be representative of the private sector.

20 U.S.C. § 2322(c) (emphasis added).

The Perkins Act made no changes in the provisions of the prior act concerning the staffing or the description of fiscal agents.

On December 13, 1984, LeRoy A. Cornel-son, Director of the Division of Vocational Education of the United States Department of Education, sent a memo to all appointing authorities, including the Office of the Governor of New Hampshire. Therein he set forth the Perkins Act requirement of membership on the Council and the time limitations for certification of the membership of the Council, and requested expedition of such appointments. A copy of relevant portions of the Perkins Act was appended to this memorandum. Plaintiffs’ Exhibit 30.

Commencing in January 1985, plaintiff Moynihan sought to ascertain from the Office of the Governor the membership of the new Council who were to be appointed pursuant to the Perkins Act. Plaintiffs’ Exhibit 31. On August 16, the Governor’s Office certified that the Council had been appointed as required by the Perkins Act. Plaintiffs’ Exhibit 30. On September 5, 1985, the Governor forwarded a letter to J. Michael Hickey, then employed by the State of New Hampshire as Director of Economic Development, Department of Resources and Economic Development (“DRED”), wherein the Governor purported to appoint Hickey as the new Chairman of Council. Plaintiffs’ Exhibit 11.

On September 24, 1985, Hickey, as Acting Chairman, held a meeting of the newly-appointed Council and appointed a number of committees, including a nominating committee. In the course of such meeting, immediate past Chairman Rice questioned the eligibility of Hickey, a State employee, to serve as Chairman, as he was not a representative of the private sector, but Hickey indicated that he had conferred with the Attorney General of New Hampshire and that his service as Council Chairman would be approved. Plaintiffs’ Exhibit 13.

A subsequent Council meeting was held on October 2, 1985, at which time the nominating committee reported the name of Hickey for Chairman. At this meeting, Joseph Hogan, a Council member, questioned the eligibility of Hickey to serve as a representative of the private sector and refused to vote for him for the position of Chairman. Moynihan raised similar questions in the course of said meeting. Plaintiffs’ Exhibit 14.

On October 3, 1985, Moynihan sent Cor-nelson a detailed letter in which he questioned the eligibility of Hickey to serve as Chairman in light of the fact that Moyni-han did not believe that Hickey, as a State employee, could represent the private sector. Plaintiffs’ Exhibit 12. At about the same time as Moynihan dispatched his letter to Cornelson, Church raised similar inquiries in a telephone call to a member of the staff of the Department of Education in Washington.

At the meeting of October 21, 1985, Council went into executive session, from which both plaintiffs were excused. On their return therefrom, Council advised plaintiffs as to the elimination of their jobs and further told them that the question of any benefits due and owing them would be taken up in the future by the executive committee of Council.

Plaintiffs here contend that the cause of their discharge was their complaints at Council meetings and to federal authorities with respect to what they perceived to be the improper composition of the membership of Council. Plaintiffs also claim that the due process rights provided in the Additions to Administrative Guide, Plaintiffs’ Exhibit 7, were not complied with as regards the termination of their employment. The Court discusses these items seriatim.

2. The Free Expression Claims

Clearly, the continuation of public employment may not be conditioned “on a basis that infringes the employee’s constitutionally protected interest in freedom of expression.” Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 1687, 75 L.Ed.2d 708 (1983). Proof of their claim that their employment was terminated for such an impermissible reason imposes initially a dual burden on these plaintiffs.

First, the plaintiffs must show that their complaints as to the composition of counsel membership, including selection of its chairperson, were protected by the First Amendment pursuant to the standards detailed in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Brasslett v. Cota, 761 F.2d 827, 839 (1st Cir.1985); Rosaly v. Ignacio, 593 F.2d 145, 149 (1st Cir.1979). Second, plaintiffs must show that such protected speech was a “substantial” or “motivating” factor in the decision to discharge them. Id.

If plaintiffs successfully carry this dual burden, it then becomes incumbent on the defendant to demonstrate, by a preponderance of the evidence, that defendants would have taken the identical personnel action in the absence of the protected conduct. Brasslett v. Cota, supra, 761 F.2d at 839, citing Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); Rosaly v. Ignacio, supra, 593 F.2d at 149, citing Givhan v. Western Line Consolidated School District, 439 U.S. 410, 416-17, 99 S.Ct. 693, 697, 58 L.Ed.2d 619 (1970).

The Pickering standards require the Court to balance the interests of the plaintiffs, as citizens, in commenting on matters of public concern against the defendants’ interests, as employers, in promoting the efficiency of the public services it performs through its employees. Pickering v. Board of Education, supra, 391 U.S. at 568, 88 S.Ct. at 1734; Brasslett v. Cota, supra, 761 F.2d at 839. Relevant to this balancing procedure are both the character and effect of the plaintiffs’ speech, for as employers the defendants have greater interest in curtailing erroneous statements than correct ones, and a still greater interest in curtailing deliberate falsehoods. Brasslett v. Cota, supra, at 839. Defendants also have a more legitimate concern for expression which actually impairs their functions than for that which does not. Id. Correspondingly, the plaintiffs’ interest as employees in making public statements is heightened according to their veracity and innocuity. Id.

Application of these factors to the evidence before the Court in the instant case requires a ruling that plaintiffs’ complaints with respect to the composition of membership of Council fall clearly within the protection of the Pickering standards. Not only does the applicable statute mandate that the membership of Council (and not the Governor) select its chairperson, but it also requires that such chairperson be serving on Council as a representative of the private sector. The attempt here to select by appointment a full-time State employee to serve as chairperson flies in the face of this congressional mandate. It would be difficult to find a clearer example of a matter of public concern upon which the plaintiffs are entitled to express their respective opinions.

However, the preponderance of the evidence does not support the claim of the plaintiffs that their complaints to Council and federal officials about the composition of the membership of Council and the selection of its chairperson were a “substantial” or “motivating” factor in their discharge. Indeed, the evidence before the Court shows that as early as July 1984 the Office of the Governor of New Hampshire had in mind the replacement of a majority of Council membership. Plaintiffs’ Exhibit 30. As of the same date, the Office of the Governor was made aware of the displeasure of the State Department of Education with the change in fiscal agents. Id.

Additionally, as of March 26, 1985, the Office of the Governor of New Hampshire had reached a decision that Council staff would be replaced with part-time employees and that it would be recommended that the fiscal agent be changed back from the Concord School District to some State agency. Plaintiffs’ Exhibit 30. And David Riñes, Chairman of the Personnel Committee who recommended the termination of plaintiffs’ employment, testified that his major reason for change was the fact that the staff salaries and benefits took up too great a portion of the Council budget. Furthermore, while this litigation was in progress, the Governor of New Hampshire publicly stated that plaintiffs were being removed from their employment because they had caused the change in fiscal agents from the New Hampshire Department of Education to the Concord School District.

Moreover, the first notification to the Office of the Governor from the United States Department of Education which questioned the selection of a chairperson for Council came by letter of November 5, 1985, from Dr. Wu. Plaintiffs’ Exhibit 21. This letter was answered on November 12, 1985, Defendants’ Exhibit L2, and in turn such response was acknowledged by a letter from Dr. Wu under date of December 16, 1985. Plaintiffs’ Exhibit 30. All such communications, of course, were well after the date, October 21, 1985, of the termination of the employment of these plaintiffs. Hickey himself had been to Washington prior to the October 2, 1985, meeting of Council, and while there had discussed future plans of Council with federal officials associated with the program. Defendants’ Exhibit B.

In short, whether budgetary considerations, a belief that plaintiffs somehow had the power to cause the change of fiscal agents, or a desire to find a position of employment for a loyal political supporter, were causal of the discharge of plaintiffs, the Court is satisfied that they were not discharged for their exercise of their rights to complain about the composition of the membership of Council and the selection of its new chairperson. This being so, the Court does not have to consider whether the defendants have marshalled sufficient evidence to sustain their burden pursuant to the requirements of Mt. Healthy City School District v. Doyle, supra.

3. The “Due Process” Claims

As previously outlined, the terms and conditions of plaintiffs’ employment were set forth in certain letter contracts. Defendants’ Exhibits D and G. As of October 21, 1985, the calendar expiration date of these contracts, June 30, 1985, had passed. Id. Defendants argue that, as the calendar period of the contract had thus expired, the due process provisions incorporated therein by reference, p. 6, supra, were a nullity with reference to the steps taken to discharge plaintiffs. This argument is without legal merit.

The due process clause of the Fourteenth Amendment protects against deprivations of property without constitutionally adequate procedures. The category of protected property includes government benefits such as public employment. Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976); Perry v. Sindermann, 408 U.S. 593, 599-603, 92 S.Ct. 2694, 2698-2700, 33 L.Ed.2d 570 (1972); Board of Regents v. Roth, 408 U.S. 564, 576-78, 92 S.Ct. 2701, 2708-09, 33 L.Ed.2d 548 (1972).

To claim such a property interest, however, a person clearly “must have more than a unilateral expectation of it. He must ... have a legitimate claim of entitlement to it.” Castro v. United States, 775 F.2d 399, 405 (1st Cir.1985), quoting Board of Regents v. Roth, supra, 408 U.S. at 577, 92 S.Ct. at 2709. Additionally, protected property interests are not created by the Constitution, but rather by “existing rules or understandings that stem from an independent source such as state law....” Cleveland Board of Education v. Loudermill, — U.S.-,-, 105 S.Ct. 1487, 1491, 84 L.Ed.2d 494 (1985), quoting Roth, supra, 408 U.S. at 577, 92 S.Ct. at 2709. See also Brown v. Bedford School Board, 122 N.H. 627, 630, 448 A.2d 1375, 1376 (1982); Daley v. Town of New Durham, 733 F.2d 4, 7 (1st Cir.1984). (The law of New Hampshire is similar in that it recognizes no protected property interest in a person’s abstract need or desire for a benefit.)

A property right in a government benefit can arise out of an informal or implicit rule of understanding. Bishop v. Wood, supra, 426 U.S. at 344, 96 S.Ct. at 2077; Perry v. Sindermann, 408 U.S. at 601-02, 92 S.Ct. at 2699-2700. But there can be no property right unless the government entity in question has adopted the asserted rule or entered into the asserted understanding. Sabet v. Eastern Virginia Medical Authority, 775 F.2d 1266, 1269 (4th Cir.1985).

The precise issue presented, therefore, is whether, having accepted the labors of plaintiffs for the period between June 30,1985, and October 21, 1985, at the same rate of pay provided in their expired contracts, the defendants can now be heard to say that the due process conditions set forth in said contracts were not applicable to these plaintiffs.

It is black-letter law, 53 Am Jur.2d, Master and Servant § 23, pp. 99-100, that where, as here, an employee’s services are continued after expiration of a contract, it is presumed that the employee’s continued service is under a new contract which contains the same terms and conditions as did the original. Vogel v. Washington Metropolitan Area Transit Authority, 533 F.2d 13, 15 (D.C.Cir.1976); Smith v. Shallcross, 165 Pa.Super. 472, 69 A.2d 156 (1949); Art Wire & Stamping Co. v. Johnson, 141 N.J.Eq. 101, 56 A.2d 11 (1947), aff'd 142 N.J.Eq. 723, 61 A.2d 240 (1948). This rule has long been followed in New Hampshire. Park Square Automobile Station v. American Locomotive Co., 79 N.H. 497, 499, 111 A. 689 (1920); Rindge v. Lamb, 58 N.H. 278, 279 (1878); New Hampshire Iron Factory Co. v. Richardson, 5 N.H. 294, 295 (1830).

Accordingly, having furnished their services from the time of expiration of their former contracts until October 21, 1985, at the same pay rates provided in said expired contracts, the plaintiffs were entitled to presume that any changes in the terms and conditions of their employment would be in accordance with the due process provisions set forth in said contracts. Otherwise stated, they were possessed of “substantive rights created by legitimate, objective expectations derived from state law [which expectations] are entitled to the procedural protections of the due process clause of the Fourteenth Amendment.” Rogers v. Okin, 738 F.2d 1, 6 (1st Cir.1984).

4- Conclusion

Relief by way of preliminary injunction requires the establishment of criteria holding that (1) plaintiffs will suffer irreparable injury if the injunction is not granted; (2) such injury outweighs any harm which granting injunctive relief would inflict on defendants; (3) plaintiffs have exhibited a likelihood of success on the merits; and (4) the public interest will not be adversely affected by the granting of the injunction. Castro v. United States, supra, 775 F.2d at 407, citing Planned Parenthood League of Massachusetts v. Bellotti, 641 F.2d 1006, 1009 (1st Cir.1981).

The deprivation of the plaintiffs’ constitutional right of due process requires no further demonstration of irreparable injury. 11 Wright & Miller, Federal Practice and Procedure § 2948, p. 440. See also Keefe v. Geanakos, 418 F.2d 359, 363 (1st Cir.1969) (wrongfully discharged teacher suffers irreparable injury, even though he may later recover money damages when deprivation of his constitutional right to academic freedom is the focus of the litigation). Moreover, plaintiffs were ostensibly discharged as part of a “reorganization” of Council when the evidence before the Court demonstrates that as of the date of their discharge the only “reorganization” which had taken place was the striking from the administrative rules any due process requirements with reference to their discharge. Such haste to undo the work performed for many years by loyal employees who were fully competent in the field of vocational education is, I find and rule, demonstrative that injury sustained by the plaintiffs outweighs any harm which granting the injunction would inflict on these defendants. There is clearly here a likelihood of success on the merits, and certainly the public interest will not be adversely affected by the granting of injunctive relief. At the very least, the citizens of New Hampshire are entitled to have Council’s affairs, including the composition of its membership, conducted in accordance with the mandate of the federal officials whom those citizens saw fit to elect to the United States Congress.

In sum, the Court finds and rules that the plaintiffs herein are entitled to relief by way of preliminary injunction reinstating them to the positions which they held as of October 21,1985, and that they are further entitled to full payment of all benefits accruing to them under the terms and conditions of the contracts which governed their services for the period between June 30, 1984, and July 1, 1985. Additionally, if these defendants desire to discharge the plaintiffs from further employment with Council, they are enjoined to follow the due process provisions of paragraph 3.6 of the Additions to Administrative Guide, Plaintiffs’ Exhibit 7, which terms and conditions were expressly incorporated by reference into said employment contracts.

A separate Order of Preliminary Injunction is issued herewith this date, conditioned on the filing by these plaintiffs of a bond in the total amount of $10,000 for the payment of any damages which might be sustained by the defendants herein. Rule 65(c), Fed.R.Civ.P.

The foregoing shall comprise the findings and rulings of the Court pursuant to the requirements of Rule 52(a), Fed.R. Civ.P. Any requests for findings of fact and rulings of law which are not inferentially herein granted are herewith denied.

SO ORDERED.

ORDER OF PRELIMINARY INJUNCTION

This action having come on for hearing for preliminary injunction before the Court, and the issues having been duly heard in accordance with the Memorandum Opinion herewith filed as of this date, it is ORDERED and ADJUDGED:

A. The defendants, 3. Michael Hickey, Joseph W. Hogan, H. Irene Peters, Samuel Reddy, Jr., Leon Harold Rice, Barbara E. Arnold, Lionel R. Boucher, James D. Casey, Claire D. Clarke, Richard M. Flynn, David T. Riñes, and Stella D. Scamman, and their successors in interest, and any officers, agents, employees, servants, or attorneys employed by the New Hampshire Council on Vocational Technical Education (“Council”) are hereby preliminarily enjoined from:
1. Further continuing in force and effect the purported discharge of the plaintiffs Andrew J. Moynihan and Theresa Church which took place on October 21, 1985, and ordered and required immediately to reinstate said plaintiffs to said positions of employment as were held by them prior to the said purported discharge;
2. Withholding from the said plaintiffs Andrew J. Moynihan and Theresa Church any payments of salary or benefits due and owing them under the terms and conditions of the latest contract of employment accorded them by Council for the period of June 30,1984, to July 1, 1985;
3. Seeking to discharge the said plaintiffs Andrew J. Moynihan and Theresa Church from their positions of employment with Council without first invoking the due process provisions set forth in paragraph 3.6 of the Additions to Administrative Guide, which is Plaintiffs’ Exhibit 7 in this litigation.

This Order of Injunction extends to all persons associated with or previously associated with Council who have any input into the terms and conditions of the plaintiffs’ employment and the benefits accuring therefrom;

B. This Order of Injunction shall become effective upon the giving of security by the plaintiffs in the total amount of ten thousand dollars ($10,000) for the payment of such costs and damages as may be incurred or suffered by the defendants, said security to be furnished pursuant to the applicable provisions of Rule 65(c), Fed.R.Civ.P.

SO ORDERED.

      . Plaintiffs’ Exhibit 17 is by agreement a transcript of the relevant portions of the tape recording of the Council meeting of October 21, 1985.

      . The multi-count complaint also seeks future jury resolution of certain damage claims, and these counts (as are the current issues) are the subject of a motion to dismiss filed on behalf of defendants. The Court defers to the future any ruling on the additional counts of the complaint.

      . As to these federal constitutional claims, jurisdiction is' invoked pursuant to 28 U.S.C. § 1343(3), the claim being advanced that the actions of the defendants are violative of the plaintiffs’ civil rights under 42 U.S.C. § 1983, a statute which provides:
      Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

      . The legislative background of the 1963 legislation is to be found in the legislative history set ■ forth in 1963 U.S.Code Cong. & Ad.News 1293, et seq.

      . 20 U.S.C. § 2305(e) also empowered the state council to contract for services necessary to carry out its evaluation functions. However, as to both staffing and independent contractors, the statute made clear that their work for the council was to be "independent of programmatic and administrative control by other state boards, agencies, and individuals”. Id.

      . The change in fiscal agents apparently came about as the result of a Management Evaluation Review of Council performed by the United States Department of Education. As a result thereof, the United States Department of Education questioned the fiscal autonomy of Council, and in the summer of 1981 Council accordingly voted to change fiscal agents from the New Hampshire Board of Education to the Concord, New Hampshire, School District, effective October 1, 1981.
      Plaintiffs’ Exhibit 2 is a collection of correspondence detailing the apparent reason for such changes. Plaintiffs’ Exhibit 3 is the agreement between Council and the Concord School District. Defendants’ Exhibit K comprises the payroll manifests showing the withdrawal of plaintiffs from the state employment system in October 1981.

      . The original Administrative Guide, effective September 12, 1981, is Plaintiffs’ Exhibit 4. Plaintiffs’ Exhibit 5 is the October 21, 1981, job description for the Executive Secretary, while Plaintiffs' Exhibit 6 is the similar job description for the Executive Director of Council. Plaintiffs’ Exhibit 7 details the Additions to Administrative Guide which were approved by Council under date of November 9, 1982.

      . The first such contract issued to plaintiff Moy-nihan was dated January 24, 1983, and covered the period January 1 through June 30, 1983. Defendants’ Exhibit F. Subsequently, Council issued a contract dated July 26, 1983, to cover the period July 1, 1983, to June 30, 1984, Defendants’ Exhibit E, which was followed in turn by a contract dated October 29, 1984, to cover the period July 1, 1984, through June 30, 1985. Defendants’ Exhibit D. Moynihan in turn issued letter contracts to Church under dates of January 24, 1983, Defendants’ Exhibit I; July 26, 1983, Defendants’ Exhibit H; and October 29, 1984, Defendants’ Exhibit G.

      . In each of said letter contracts, the wording was identical, and it provided—
      Other terms of your appointment are as set forth in the Addition to the Administrative Guide approved by the Council at their meeting on November 9, 1982.

      . The counterpart of the Perkins Act with relation to Council staffing, which was originally to be found at 20 U.S.C. § 2305(e), is now to be found at 20 U.S.C. § 2322(e). The designation of fiscal agents found in the earlier statute at 20 U.S.C. § 2305(f)(2) is now to be found at 20 U.S.C. § 2322(f)(2).

      . Plaintiffs' Exhibit 30 includes excerpts from the file of the Governor of New Hampshire produced on discovery motion of the plaintiffs. Included therein are the Cornelson references referred to in the text of the Opinion.

      . Plaintiffs’ Exhibit 31 is a chronology of the attempts made by Moynihan between January 14 and September 10, 1985, to ascertain the composition of the membership of Council.

      . Plaintiffs’ Exhibit 13 is a copy of the minutes of the Council meeting of September 24, 1985.

      . Plaintiffs’ Exhibit 14 is a copy of the minutes of the meeting of October 2, 1985.

      . Plaintiffs’ Exhibit 12 is the letter of October 3, 1985, and therein Moynihan raises other questions that he has with respect to the composition of other members of Council and what he perceives to be its lack of proper representation of those elements of the citizenry interested in vocational education.

      . The references to the incidents occurring on July 19, 1984, are taken from a memo of Nancy Baybutt to Ed Lecius (the Governor’s Assistant) of the same date. Said memo is a part of the documents contained in Plaintiffs’ Exhibit 30.

      . See Memo of March 26, 1985, from Ed Lecius to Bert Wakeley (another member of the gubernatorial staff), which is another document contained in Plaintiffs’ Exhibit 30.

      . Riñes, who is the Deputy Director of Personnel for the State of New Hampshire, also testified that he felt the salaries paid to plaintiffs were high when compared with similar positions in State employment. However, he made no attempt to compare the salaries of plaintiffs with the salaries of staff employed by advisory councils in other states, nor did he at any time consider making an offer to plaintiffs to continue in their employment at a lower range of State salaried positions.

      .At a hearing on a motion to quash a subpoena issued to the Governor of New Hampshire, the Attorney General of New Hampshire stipulated that the statements of said Governor as set forth in Plaintiffs' Exhibit 19 (a clipping from the Manchester Union Leader of November 22, 1985) was a correct statement of what the Governor had said to the reporter who interviewed him with regard to plaintiffs’ litigation. Totally apart from the fact that it was the then membership of Council, rather than plaintiffs, who possessed the power to select the fiscal agent, it is worthy of note that the statute expressly provides such option to the membership of Council.

      . The evidence is that one Ralph Brickett was selected to serve as the per diem consultant to Council after the discharge of plaintiffs. His agreement to so serve is outlined in the March 26, 1985, memo from Lecius to Wakeley, which is part of Plaintiffs’ Exhibit 30.

      . Under Mt. Healthy, the legal test "is not whether a sufficient reason existed [for discharge of plaintiffs] but whether, in fact, it was the reason truly espoused.” Arnaldo Jimenez-Fuentes, et al v. Gaztambide, et al., 779 F.2d 765, 768, (1st Cir.1985).

      . The Court concurs with the argument of defendants that only property interests, and not liberty interests, are here implicated. See Castro v. United States, supra, 775 F.2d at 407.

      . The transcript of the meeting at which plaintiffs were discharged contains encomiums by members of Council with respect to plaintiffs' past work for Council. Additionally, during the approximately three years that plaintiffs had been evaluated annually by their employers, no negative evaluation had been rendered.

      . In arriving at the resolution of the issues here presented, the Court has granted the motion of plaintiffs, filed on December 19, 1985, which seeks to amend the complaint to designate the defendants in their official capacities for the purposes of injunctive relief. The Court finds that such amendment is necessary to cause the pleadings to conform with the evidence and is here granted freely to subserve the presentation of the merits of this action, the Court being satisfied that the amendment in no way prejudices the defendants in the presentation of the merits of their claims herein. Rule 15(b), Fed.R.Civ.P.


author: MILLS, District Judge:

text:
    Kathy VAN HOUDNOS, Plaintiff, v. Robert EVANS, et al., Defendants.
    No. 81-3304.
    United States District Court, C.D. Illinois, Springfield Division.
    Jan. 21, 1986.

      Mary Lee Leahy, Springfield, Ill., for plaintiff.
    Martin Haxel, Asst. Atty. Gen., John Keith and John Mehlick, Springfield, Ill., for defendants.
   OPINION AND ORDER

MILLS, District Judge:

Sex discrimination employment case.

Judgment directed for the Defendant— notwithstanding the jury’s verdict for the Plaintiff.

Plaintiff brought this cause of action alleging that six employees of the Illinois State Museum acted and conspired to deny her employment because of her sex in contravention of 42 U.S.C. §§ 1983 and 1985. Prior to trial, the Court denied Defendants’ joint motion for summary judgment on the ground that Plaintiff’s allegations, if supported by the evidence, might establish liability under the civil rights statutes. The Court, however, expressed to counsel its concern with the element of causation necessary in Plaintiff’s proof.

At the close of the Plaintiff’s case, the Court directed a verdict for five of the six Defendants on the ground that Plaintiff had manifestly failed to carry her burden of proof with respect to these Defendants on the crucial elements of intent and causation. These same elements were not yet established as to the remaining Defendant but the Court determined that a more fully developed record — including Plaintiff’s rebuttal of the Defendant’s case — might elicit needed evidence.

The necessary evidence was not, however, forthcoming. At the close of all the evidence, the Court reserved a decision on the remaining Defendant’s motion for a directed verdict. Fed.R.Civ.P. 50. Upon receipt of the jury’s decision for the Plaintiff, the Court directed a judgment for the Defendant, the jury’s verdict notwithstanding.

STANDARD

The standard for entering a directed verdict and a judgment notwithstanding the jury’s verdict is the same. See Sparrow v. Yellow Cab Co., 273 F.2d 1 (7th Cir.1960); Shaw v. Edward Hines Lumber Co., 249 F.2d 434 (7th Cir.1957). In considering such motions, the Court must determine “whether the evidence presented, combined with all reasonable inferences permissably drawn therefrom, is sufficient to support the verdict when viewed in a light most favorable to the party against whom the motion is directed.” Tice v. Lampert Yards, Inc., 761 F.2d 1210, 1213 (7th Cir.1985).

The Court should not make credibility determinations. Brady v. Southern Railroad, 320 U.S. 476, 64 S.Ct. 232, 88 L.Ed. 239 (1943); Sonnentheil v. Christian Moerlain Brewing Co., 172 U.S. 401, 408, 19 S.Ct. 233, 235, 43 L.Ed. 492 (1899). Only the non-moving party’s evidence and the moving party’s uncontradicted and unim-peached evidence should be considered. Panter v. Marshall Field & Co., 646 F.2d 271 (7th Cir.), cert. denied, 454 U.S. 1092, 102 S.Ct. 658, 70 L.Ed.2d 631 (1981), citing Brunner v. Minneapolis, St. Paul & Sault Ste. Marie Railroad, 240 F.2d 608 (7th Cir.1957); see also C.A. Wright and A.R. Miller, Federal Practice and Procedure: Civil § 2524, p. 573 (1971).

FACTS

In accordance with these guiding principles, the Court accepts as established the following relevant evidence offered or unchallenged by Plaintiff:

Plaintiff Van Houdnos is a woman. She applied for the position of Art Gallery and Collections Assistant at the Illinois State Museum. Prior to her application, she had performed the duties required of a collections assistant while employed as a Curatorial Assistant “intern.” Ultimately, a male, Mr. Lawrence Rhoads, received the Collections Assistant position.

The position the Plaintiff sought was under the direct supervision of Defendant, Robert Evans, the museum’s Curator of Art. Evans stated to the Plaintiff that he preferred to have a man fill the Collections Assistant position. Evans was the official who had earlier approved the hiring of Plaintiff as a Curatorial Assistant “intern” under a CETA grant and had approved of her work in the intern position.

In the spring of 1979, Evans held a meeting of the museum’s department staff. During the course of the meeting, Evans publicly stated his preference that a man be named Curatorial Assistant. It is reasonable to infer that those Defendants who attended this meeting knew of Evans’ preference. Evans’ uncontradicted testimony establishes that all the members of the art department had input into the content of the job questionnaire, but that he probably prepared it. The application forms, however, contained nothing discriminatory. The only reasonable inference that may be drawn from this fact is that Evans’ preference for a man to fill the position did not influence the drafting of the application forms.

In light of Mr. Evans’ expressed preference for a man as Collections Assistant, Plaintiff sought and received assurances from the museum’s director, Defendant Bruce McMillan, that she would receive fair consideration for the open position.

Subsequent to and — it may be inferred— at least partially in response to Plaintiff’s concern that she would not receive fair consideration for the assistantship, the museum administration convened an ad hoc screening committee composed of three experienced female museum employees: Defendants Maureen McKenna, Judi Johnson, and Susan Pickel-Hedrick. Each member of the screening committee was charged with reviewing individually each of the 26 applications eventually received and with ranking the applicants. Evans served as chairman of the screening committee but did not review or rank any of the candidates. Defendant Hedrick, the museum’s assistant director and Evans’ immediate supervisor, served as an ex-officio member of the committee; he monitored the applications and the committee’s review but took no part in the initial individual rankings.

Each committee member’s individual reviews and recommendations were based on specific criteria articulated at trial: age, experience, education, and background. The committee members’ individual rankings listed women among the top contenders. The only reasonable inference to be drawn from this inclusion of women among the top candidates is that the members of the screening committee did not exclude women from consideration because of their sex.

After each member of the screening committee had ranked all of the applications, Evans tabulated the rankings and compiled a list of the six top candidates for final consideration. The first three candidates on the final list were male; the second three candidates were female. Plaintiff was not one of the finalists. Mr. Lawrence Rhoads, the person hired, received the highest ranking. The qualifications of the six finalists clearly exceeded Plaintiff’s.

Evans forwarded his compilation of rankings to his superior, Assistant Director Basil Hedrick. Hedrick compared Evans’ compilation of the screening committee’s rankings to the committee members’ evaluations, and to his own evaluation of the twenty-six applications, and concurred in the compiled rankings.

The top three candidates were then scheduled for interviews; the second three candidates were held in reserve for additional interviews should the first three candidates prove unacceptable. The interviews were conducted by various members of the screening committee who were available at the time of each interview. After the first set of three interviews, the screening committee recommended Mr. Rhoads’ selection.

Evans reported the recommendation to Mr. Hedrick who approved the recommendation and in turn forwarded it to Director McMillan. Director McMillan approved the recommendation and submitted it to the museum’s Board of Directors who ultimately confirmed the appointment. (Assistant Director Hedrick, Director McMillan, and the Board all had independent authority to reject the consensus candidate.)

These facts do not establish that the Plaintiff suffered from discrimination based on her sex.

LAW

ia U.S.C. § 1983

In order to establish liability for sex discrimination in violation of 42 U.S.C. § 1983, a plaintiff must allege with clarity and prove by a preponderance of the evidence (1) that “the conduct complained of was committed by a person acting under color of state law, and (2) [that] this conduct deprived a person of rights, privilege, or immunities secured by the Constitution or laws of the United States.” Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981); see, e.g. Coleman v. Frantz, 754 F.2d 719, 722 (7th Cir.1985).

The parties do not dispute that all of the Defendants are state employees who conduct themselves under color of state law. See generally, Drollinger v. Milligan, 552 F.2d 1220 (7th Cir.1977). To establish liability, however, the Plaintiff must also show that each Defendant “committed” the conduct of which she complains. The doctrine of respondant superior does not apply; absent direct involvement in the alleged constitutional deprivation, no liability will attach. Crowder v. Lash, 687 F.2d 996 (7th Cir.1982).

The second branch of the proof of a claim under § 1983 implicates the concepts of causation and mental state grafted from the common law.

A defendant may not be found to have violated § 1983 unless his alleged conduct can be said to have caused the alleged injury. See Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980); Lossman v. Perkarske, 707 F.2d 288, 290-91 (7th Cir.1983); cf. Taliferro v. Augle, 757 F.2d 157, 161-62 (7th Cir.1985) (dealing primarily with damages). The plaintiff may prevail in a suit under 42 U.S.C. § 1983 only if he can establish that the deprivation of rights he complains of would not have occurred “but for” the Defendant’s conduct. Givhan v. Western Line Consolidated School District, 439 U.S. 410, 417, 99 S.Ct. 693, 697, 58 L.Ed.2d 619; Lossman, 707 F.2d at 291.

The mental state required for establishing a violation of § 1983 depends on the particular constitutional provision at issue. E.g., Crawford v. Edmonson, 764 F.2d 479, 486 (7th Cir. (1985). Thus, before determining the mental state that a plaintiff must prove, the court must first determine with precision the constitutional right upon which Defendants allegedly infringed.

Throughout the course of this litigation, the Plaintiff has never made precisely clear what federal right Defendants allegedly denied her. Her amended complaint merely states that “Plaintiff was entitled to protection by the Fourteenth Amendment to the United States Constitution from discrimination by Defendants on the basis of sex in the matters of employment.” (Amended Complaint, Item # 33, par. 22.) The Fourteenth Amendment provides in relevant part:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

U.S. Const, amend. XIV, § 1. The Plaintiff does not assert any right peculiar to citizenship nor does she challenge any state law. An employment application does not implicate any life or property interest. Nor does the denial of reemployment infringe on constitutionally protected liberty — unless the manner of the denial attaches some permanent stigma to the applicant which precludes future employment. Munson v. Friske, 754 F.2d 683, 693-94 (7th Cir.1985). The Plaintiff has neither alleged nor proved any permanent stigma resulting from her failure to obtain reemployment. Thus, Plaintiff may not assert any denial of substantive or procedural due process.

The Plaintiffs claim must, therefore, rest on the most obvious theory that she was denied the equal protection of the laws. An employee of the state, imbued with state authority, “subjected” the Plaintiff’s job application to special consideration because of her classification as a woman — a deprivation of the Plaintiff’s constitutional right to be free from such a classification by the state unless the classification appears justified after careful scrutiny. 42 U.S.C. § 1983. Defendant asserts no justification for the alleged classification. Thus, sex discrimination, if it occurred, would be unconstitutional.

To maintain a claim under 42 U.S.C. § 1983 based on the equal protection clause of the Fourteenth Amendment, a plaintiff must demonstrate that a defendant discriminated intentionally. See Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 278-80, 99 S.Ct. 2282, 2295-96, 60 L.Ed.2d 870 (1979); Parker v. Board of School Commissioners of the City of Indianapolis, 729 F.2d 524, 528 (7th Cir.1984); cf. Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) (cause of action under 42 U.S.C. § 1981).

ANALYSIS

Applying the legal concepts of causation and intent to the facts of this case, no reasonable jury could find any of the defendants liable under 42 U.S.C. § 1983.

I. Director McMillan had no direct involvement in the selection process to which Plaintiff objects. The Plaintiff cannot attach liability to him simply by having sought and obtained a meeting with the director. The director’s expressions of assurance that Plaintiff’s job application would receive fair consideration negates rather than establishes any inference of discriminatory intent. The procedure for screening applications established to follow through on the director’s assurances further demonstrates a sincere desire to ensure fairness and precludes any conclusion that the Plaintiff would have obtained the open position “but for” the director.

It is true that after Plaintiff’s interview with the director, Evans was made chairman of the screening committee, but he only played the limited role of compiling the rankings made by three female employees who reviewed the applications independently, made all of the initial evaluations and made the only evaluations of Plaintiff’s application. To add an additional check on the process, Assistant Director Hedrick read through the applications, reviewed the screening committee members’ recommendations, and ascertained that Evans’ compilation of the rankings accurately reflected the screening committee’s evaluations.

Director McMillan’s only participation in the entire selection process was to assure the establishment of a structured review process and to approve the final recommendation previously approved by Assistant Director Hedrick and the screening committee. Almost every operating procedure in an organization can be said to have been initiated by the chief executive, and almost every decision eventually receives his or her approval, but such events cannot form the basis of liability under 42 U.S.C. § 1983. Some greater involvement is required. Moreover, the procedure established here appears unobjectionable. Its checks and reviews aim at achieving fairness in the selection procedure without wholly excluding from the process those employees most qualified to make the selection.

II. As with Director McMillan, Assistant Director Hedrick’s participation in the candidate screening process was minimal albeit more direct. The evidence adduced at trial does not offer a shred of support for Plaintiffs necessary contention that the assistant director harbored discriminatory intent. Hedrick knew that Evans preferred that a man fill the Collections Assistantship. But the application form did not in any manner favor men. The Plaintiff insists that Hedrick discouraged her from seeking the assistantship but she offers no evidence to support a reasonable inference that Hedrick discouraged her from applying because she was a woman. Moreover, even if Hedrick shared Evans’ discriminatory animous, the record reveals no fact or inference to support the necessary proposition that “but for” Hed-rick’s sexism, Plaintiff would not have been discriminated against. Hedrick did not evaluate the Plaintiff’s application; his function was to ensure that Evans’ compilations accurately reflected the three female screening committee members’ evaluations.

III. The Plaintiff’s “proofs” against Defendants McKenna, Johnson, and Pickel-Hedrick — the female employees who screened the twenty-six applications— also failed to demonstrate any sexist animus. Two of the three screening committee members had input into the drafting of the application which contained no sex biased material. They all knew of Evans’ preference that a man fill the position, yet they all ranked women among the most qualified applicants. The rankings — at least with respect to Plaintiff and the six male and female finalists — correctly evaluated the finalists as the superior candidates based on the legitimate criteria of age, experience, education, and background. Finally, they each made their evaluations independently; no single set of evaluations controlled the selection process. Thus, in the absence of any proof that they acted in concert to deny Plaintiff equal consideration, Plaintiff cannot reasonably maintain that she would have received the position “but for” any single member’s discriminatory intent.

IV. With respect to Evans, the Plaintiff may have established facts sufficient to support an inference that he intended to deny her the collections assistant-ship because of her sex. He did publicly state that he preferred a man for the open position, although he proceeded to draft an application form that is without sex bias. The selection process used, however, prevented Mr. Evans from interfering with the Plaintiff's application unless and until she received favorable evaluations from three of her fellow workers. While Mr. Evans made his preference known to the members of the ad hoc screening committee, the evidence indicates that despite his preferences the committee members recommended women as top contenders for the available position. Evans simply was not in a position to cause the Plaintiff to be denied her equal rights under the law. The evidence against Evans falls woefully short of the “but for” mark.

Causation is a more difficult concept to comprehend than intent; it requires the application of a legal concept in addition to common intuition. A jury sensing the presence of an impermissable animus might very well overlook the necessity of determining what consequence resulted, as a matter of law, from a clearly prohibited state of mind. The Court recognizes that the elements of a sex discrimination claim require the application of intuition. As a general principle, the law wisely consigns the determination of such issues to the jury. However, the Court cannot, consistent with its duty, sanction a misunderstanding of the facts and a misapplication of the law. Cf., Box v. A & P Tea Co., 772 F.2d 1372, 1378 (7th Cir.1985).

Plaintiffs theory of liability in this case is most troubling. In essence, her argument appears to be that “one rotten apple spoils the barrel.” But she has not established that any of the Defendants were rotten. Moreover, the law of apple barrels does not govern the law of sex discrimination. Plaintiff argues that if one employee has manifested an unconstitutional intent to discriminate in the hiring process the entire process is therefore tainted. The procedure of independent checks and reviews established here do not satisfy her.

Apparently, only an independent review by persons wholly unaware of the existence of any sex based animus will satisfy Plaintiff. Such an impracticable standard would effectively preclude employers from fulfilling their responsibility to serve as the first bulwark against discrimination. Employers must be allowed to fashion employment procedures which will involve those employees most qualified to make efficient, informed employment decisions and yet prevent any single employee, who is essential to the decision making process, from exercising his personal preferences or impermissable prejudices.

The courts’ “task ... is not to assess the ‘wisdom’ of employment decisions but rather to determine whether an employer’s selection procedures comport with the law.” Parker, 729 F.2d at 529. The procedures employed here do comport with the law. They prevented any one person’s preference or prejudice from controlling the selection process and more particularly they insured that each applicant obtained individual consideration by informed decision makers whose evaluations were based on legitimate criteria.

W U.S.C. § 1985(3)

The portion of 42 U.S.C. § 1985(3) relevant to this cause of action reads:

If two or more persons ... conspire ... for the purpose of depriving, either directly or indirectly, any person ... of the equal protection of the laws ... the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.

42 U.S.C. § 1985(3) (emphasis added).

For the purpose of this opinion, the Court accepts that women constitute one of the classes “that have been previously recognized as possibly supporting a Section 1985(3) claim.” D’Amato v. Wisconsin Gas Co., 760 F.2d 1474, 1486 (7th Cir.1985) (emphasis added). See also Life Insurance Company of North America v. Reichardt, 591 F.2d 499 (9th Cir.1979) (finding “women” a class within the protective ambit of 42 U.S.C. § 1985(3)). But see Great American Federal Savings & Loan Association v. Novotny, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979) (42 U.S.C. § 1985(3) does not cover claims such as sex discrimination for which other statutory remedies exist). Nevertheless, as discussed supra, no jury could reasonably find the necessary invidious class based animus motivating more than a single defendant. Griffin v. Breckenridge, 403 U.S. 88, 103 n. 10, 91 S.Ct. 1790, 1798 n. 10, 29 L.Ed.2d 338 (1971). More specifically, the Plaintiff has adduced no evidence indicating an agreement to discriminate which is a necessary pre-requisite to any finding of conspiracy. The existence of a conspiracy by the very nature of conspiracy is a difficult proposition to prove. Quinones v. Szorc, 771 F.2d 289, 291 (7th Cir.1985). But this difficulty does not remove the Plaintiff’s burden to prove the existence of a conspiracy by a preponderance of the evidence. Where, as here, the available evidence as to the alleged overt acts in furtherance of the conspiracy indicates that all of the named Defendants disagreed with, ignored, and/or acted in contravention of Evans’ articulated preference for a male, the existence of a conspiracy simply cannot be established.

In addition to the inadequacy of the proof, the single, intra-entity conspiracy which Plaintiff attempts to prove does not establish a legal claim. Dombrowski v. Dowling, 459 F.2d 190 (7th Cir.1972); cf. Craft v. Board of Trustees, 516 F.Supp. 1317, 1324 (N.D.Ill.1981) (Flaum, J., found § 1985(3) applicable where the employees of a business entity engaged in a continuing “series of discriminatory acts” not “a single act of discrimination” as alleged here).

At trial, a plaintiff must adduce evidence sufficient to support all of the elements the law requires for the jury to find liability. Allegations, insinuations, and argument will not suffice. The evidence here did not satisfy the burden, and the jury verdict cannot stand.

Judgment n.o.v. for Defendant Robert Evans.

      . For a comprehensive overview of the law pertaining to employment discrimination, see Schiff, Reverse Discrimination Re-Defined as Equal Protection: The Orwellian Nightmare in the Enforcement of Civil Rights Laws, 8 Harv. J.L. & Pub.Pol. 627 (1985).