author: BARBOUR, District Judge.

text:
    BAPTIST MEMORIAL HOSPITAL—DESOTO, INC., Plaintiff, v. MISSISSIPPI HEALTH CARE COMMISSION; Desoto General Hospital, Inc.; and Desoto Medical Center Inc., Defendants.
    Civ. A. No. J85-0781(B).
    United States District Court, S.D. Mississippi, Jackson Division.
    Sept. 10, 1985.

      Robert H. Weaver, Neville H. Boschert, Richard G. Cowart, Jackson, Miss., for plaintiff.
    Frank G. Smith, III, H. Stephen Harris, Jr., John K. Train, III, Atlanta, Ga., Sam Wilkins, Robert Sanders, Jackson, Miss., for defendants.
   MEMORANDUM OPINION AND ORDER

BARBOUR, District Judge.

The Court has before it (1) the Motion of Defendants, DeSoto General Hospital, Inc. and DeSoto Medical Center, Inc. (“DeSoto”), to Dismiss the Complaint of Plaintiff, Baptist Memorial Hospital-DeSoto, Inc. (“Baptist”); (2) the Motion of Baptist for a Preliminary Injunction; (3) the Motion of Baptist For Leave to File its Second Amended Complaint; and (4) the Motion of Defendant, Mississippi Health Care Commission (“Commission”) to Dismiss.

FACTS

This dispute involves a three-way struggle for a Certificate of Need (“CON”) to construct the only hospital which the Commission has approved for DeSoto County, Mississippi.

In June 1979, DeSoto Medical Center, Inc. (“DeSoto Medical”), whose stockholders are primarily also the stockholders of DeSoto General Hospital, Inc. (“DeSoto General”), filed an application with the Mississippi Health Planning and Development Agency, the predecessor of the Commission, for a CON for the construction of a 120-bed acute care general hospital in DeSoto County. In December 1979, the application of DeSoto Medical for a CON was denied. In January 1980, DeSoto Medical appealed the denial of its application to the Administrative Appeals Judge who affirmed the denial. In March 1980, DeSoto Medical appealed that decision to the Chancery Court of the First Judicial District of Hinds County, Mississippi. The Chancery Court affirmed the decision and DeSoto Medical appealed to the Mississippi Supreme Court.

Thereafter, DeSoto General was incorporated for the express purpose of filing an application for a CON for the construction of a 120-bed medical-surgical hospital in DeSoto County. After DeSoto General filed its application, DeSoto Medical dismissed its appeal to the Mississippi Supreme Court.

DeSoto General's application for CON was likewise denied and appealed to the Chancery Court of the First Judicial District of Hinds County, Mississippi. The Chancery Court affirmed. DeSoto General then perfected its appeal to the Mississippi Supreme Court where it is presently pending.

In December 1983, DeSoto Medical and DeSoto General (collectively referred to as “DeSoto”), sued the Commission, the Mississippi Health Systems Agency and various hospitals, alleging antitrust violations and seeking damages and injunctive relief for the issuance of a CON, claiming the defendants conspired to prevent DeSoto from obtaining a CON for DeSoto County. That action, being Civil Action No. J830858(B), is presently pending before this Court (“the antitrust action”).

In August 1984, DeSoto Medical and three of its stockholders sued the attorneys for the Commission, the attorney for the Mississippi Attorney General’s staff and various members of the Commission under 42 U.S.C. §§ 1983, 1985 and 1986, seeking damages against the defendants in their official and individual capacities and injunctive relief for the issuance of a CON to DeSoto Medical. That action, being Civil Action No. J84-0588(L), is presently pending in this Court (“the civil rights action”).

In August 1983, Baptist submitted its application to the Commission for a CON to construct a 100-bed acute care general hospital in DeSoto County. In September 1983, DeSoto Methodist Hospital, Inc. (“Methodist”) also applied for a CON to construct a 100-bed acute care general hospital in DeSoto County. The Commission determined that Baptist would receive a Decision of Intent, granting the CON to it under the following conditions:

It is the further Order of this Commission that although a decision of intent has been issued ... to grant a Certificate of Need to [Baptist] ... pursuant to the provisions of Section 41-7-202, Mississippi Code of 1972, Annotated and Amended, a “stay of proceedings” of said decision and the issuance of any Certificate of Need is hereby placed in full force and effect and shall remain in effect until the appeal by DeSoto General Hospital, Inc. from the Commission’s decision ... denying the application of DeSoto General Hospital, Inc. for a Certificate of Need to construct a 120-bed acute care hospital to be located in DeSoto County, Mississippi ... has been exhausted.

The Commission also denied Methodist’s application for CON. Methodist simultaneously appealed both the granting of the Decision of Intent to Baptist and the denial of its own application to the Chancery Court of the First Judicial District of Hinds County, Mississippi. The Chancery Court affirmed the Orders of the Commission and Methodist appealed the decisions to the Mississippi Supreme Court.

In August 1985, DeSoto and the Commission approached this Court, requesting the entry of an Order approving a settlement between those parties in the antitrust action. The gist of the settlement provided that the Commission would issue a CON to DeSoto General for a 120-bed medical-surgical hospital to be constructed in DeSoto County. In exchange, DeSoto agreed that it would dismiss the antitrust suit against the Commission, the civil rights suit and the appeal of DeSoto General pending in the Mississippi Supreme Court.

When Baptist learned of the proposed settlement between the Commission and DeSoto, it filed the present action, seeking to enjoin the settlement, claiming the settlement under which DeSoto General would obtain the CON in DeSoto County, would deprive Baptist of its property rights without due process in violation of the Fifth and Fourteenth Amendments and 42 U.S.C. § 1983. Baptist requests this Court to issue an injunction, prohibiting DeSoto and the Commission from settling the lawsuits by an award by the Commission of the CON to DeSoto General.

LAW

1. DeSoto’s Motion to Dismiss.

DeSoto moved to dismiss this action on the basis that Baptist has no protected property interest in its Decision of Intent from the Commission. DeSoto contends that Baptist has no protected property interest in the Decision of Intent because: 1) the Decision of Intent is a contingent, non-vested Decision of Intent which is revocable at the will of the Commission; 2) the Decision of Intent is void because the Commission is without authority to issue a CON conditioned on some future event such as the unsuccessful appeal of DeSoto General from the Commission’s denial of its CON application; and 3) the Decision of Intent is now invalid by virtue of the Commission’s agreement to settle with DeSoto on the basis that a CON will be granted to DeSoto General. DeSoto also argues that Baptist has no standing to assert its claims on the basis that since non-settling parties to a multi-party action do not have standing to object to a settlement involving other parties, non-parties, such as Baptist here, likewise would have no standing.

At the outset, this Court is faced with “what has become a familiar two-part inquiry”: we must determine whether Baptist has a protected property interest in its Decision of Intent and, if so, what process is due. Logan v. Zimmerman Brush Company, 455 U.S. 422, 428, 102 S.Ct. 1148, 1153, 71 L.Ed.2d 265 (1982). This inquiry begins with a determination of the precise nature of the property interest threatened. Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983).

“Property” denotes a broad range of interests that are secured by existing rules or understandings. Perry v. Sinderman, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972). As stated in Perry v. Sinderman,

[a] person’s interest in a benefit is a “property” interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit____

Id. In other words, a person must possess more than a “unilateral expectation” or an “abstract concern” — he must have a “legitimate claim of entitlement.” Board of Regents v. Roth, 408 U.S. 564, 577, 578, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). According to Logan v. Zimmerman Brush Company, 455 U.S. at 430, 102 S.Ct. at 1154,

[tjhe hallmark of property ... is an individual entitlement grounded in state law, which cannot be removed except “for cause.”

In Memphis Light, Gas and Water Division v. Craft, 436 U.S. 1, 98 S.Ct. 1554, 56 L.Ed.2d 30 (1978), homeowners sued a municipal utility under 42 U.S.C. § 1983 for termination of utility services allegedly without due process, claiming that they had a property interest in continued utility service. The Court determined that since the utility services could only be terminated “for cause,” the homeowners had asserted a “legitimate claim of entitlement” within the protection of the Due Process Clause. In so ruling, the Court reasoned that although the customer’s right to continued service is conditioned upon payment of charges properly due,

The Fourteenth Amendment’s protection of “property” ... has never been interpreted to safeguard only the rights of undisputed ownership.

Id. at 11, 98 S.Ct. at 1561. See also, Debra P. v. Turlington, 644 F.2d 397, 403-04 (5th Cir.1981) (state-created expectation of diploma upon successful completion of high school supports claim to entitlement); Williams v. United States, 541 F.Supp. 1187, 1192 (E.D.N.C.1982) (an entitlement may be created if a benefit continues absent cause for termination; if the continuation of the benefit turns on the will of the provider, then there is no legitimate expectation of property); Local 736 v. City of Williamsport, 470 F.Supp. 344, 347-48 (N.D.Pa. 1979) (if the interest sought to be protected cannot be terminated except based upon certain criteria, a legitimate expectation of property may exist).

There is no doubt that, under Mississippi law, a CON is a valuable property right entitled to protection, Mississippi Telephone Corporation v. Mississippi Public Service Commission, 427 So.2d 963, 964 (Miss.1983); Delta Electric Power Association v. Mississippi Power & Light Company, 250 Miss. 482, 149 So.2d 504, 508 (1963). The precise question here is whether a Decision of Intent from the Commission to grant a CON to Baptist if DeSoto’s appeal is unsuccessful is a protected property interest. The Decision of Intent states that although a Decision of Intent has been issued to grant a CON to Baptist, a “stay of proceedings” of said decision and the issuance of the CON is in effect until the appeal by DeSoto General from the Commission’s denial of its application has been exhausted.

DeSoto relies upon Oliphant v. Carthage Bank, 224 Miss. 386, 80 So.2d 63, 68, 71 (1955) for the proposition that a conditional CON does not confer a vested property interest. Yet, this Court finds Oliphant inapposite. In Oliphant, the court based its holding on the fact that the party granted a conditional bank charter, prematurely appealed the decision of the comptroller. The comptroller had given Carthage Bank 30 days to sell 49% of its stock to the proponents of a new bank in Carthage, Mississippi. If the Carthage Bank refused to sell its stock to the proponents within 30 days, then the proponents of the new bank would be issued a charter. This decision was appealed prior to the expiration of the 30 day period.

The court held that the premature appeal effectively tolled the vesting of the new bank proponents’ conditional charter. The court inferred that had the proponents waited to appeal after the 30-day period had expired, they could have appealed the comptroller’s decision as a final order. The court intimated that the comptroller was without authority to issue a conditional charter.

Since this Court concludes that case law in Mississippi does not resolve the issue of whether the Decision of Intent is a protected property interest, we proceed to the statutory framework, Miss. Code Ann. § 41-7-171, et seq. (Supp.1984), to determine the precise nature of the property interest threatened. Frazier v. Lowndes County, Mississippi Board of Education, 710 F.2d 1097, 1100 (5th Cir.1983).

As previously stated, the Decision of Intent states in pertinent part:

... although a decision of intent has been issued ... to grant a Certificate of Need to [Baptist] ..., a “stay of proceedings” of said decision and the issuance of any Certificate of Need is hereby placed in full force and effect ... until the appeal by DeSoto General Hospital, Inc. ... has been exhausted.

The statutory procedures prescribed for the issuance of a CON, §§ 41-7-171, et seq., refer to a “decision of intent” in only two instances. Section 41-7-197 which sets forth the procedures to be followed in reviewing CON applications, states, at sub-paragraph (1):

The commission shall make its written findings and issue its order after reviewing said record and hearing such oral presentation. The findings and decisions of intent of the commission shall not be deferred to any later date, and any deferral shall result in an automatic order of disapproval. [Emphasis added].

Thereafter, § 41-7-197(3) provides that:

[a]fter the commission renders its written decision concerning the issuance of a [CON], any affected person ... may within thirty (30) days of the date of this finding, request, in writing, that the commission conduct a reconsideration hearing.

Section 41-7-202 (Supp.1984) states:

There shall be a “stay of proceedings” of any written “decision of intent ” of the commission for a period of thirty (30) days from the date of that decision. The stay of proceedings shall remain in effect until all statutory appeals have been exhausted or the time for such appeals has expired. The stay of proceedings as provided for in this section, if any, shall not be charged against the period of time that any proponent is granted when a certificate of need is issued. [Emphasis added].

Nowhere does the statutory framework for review and issuance of CONs define “decision of intent.” “Certificate of Need” is defined in § 41-7-173 (Supp.1984) as

... a written order of the commission setting forth the affirmative finding that a proposal in prescribed form, sufficiently satisfies the plan’s standards and criteria prescribed for service or other project by Sections 41-7-171, et seq., and by rules and regulations promulgated thereunder by the commission.

While the Court realizes that Baptist does not have an unconditional CON, granting it the right to commence construction of a hospital, the Court finds that Baptist does have a “legitimate claim of entitlement” that a CON will be granted it should the appeal by DeSoto General be unsuccessful. As stated in Logan v. Zimmerman Brush Company, 455 U.S. at 430, 102 S.Ct. at 1154,

[t]he hallmark of “property” ... is an individual entitlement grounded in state law, which cannot be removed except “for cause.”

In this instance, the Baptist Decision of Intent can only be revoked “for cause,” i.e., the successful appeal by DeSoto General of the Commission’s denial of its CON. As in Local 736 v. City of Williamsport, 470 F.Supp. 344 (N.D.Pa.1979), the interest Baptist seeks to protect can only be terminated upon certain conditions. Accordingly, Baptist has more than a mere subjective “expectancy,” see, e.g., Spath v. National Collegiate Athletic Association, 728 F.2d 25, 29 (1st Cir.1984), that a CON will be issued if the DeSoto General appeal is unsuccessful. As such, Baptist has a protect-able property interest in its Decision of Intent.

DeSoto next argues, in support of its Motion to Dismiss, that the Decision of Intent is void because the Commission is without authority to issue a CON conditioned upon some future event such as the unsuccessful appeal of the denial of a CON. However, on March 30, 1983, the Office of the Attorney General of the State of Mississippi issued its opinion, allowing the Commission to consider a second application for a CON pending an appeal from a previous denial of a CON application. DeSoto fails to recognize that although Attorney General opinions do not have the force of law, Frazier v. Lowndes County, Mississippi, Board of Education, 710 F.2d at 1100, they are “entitled to careful consideration by the courts, and quite generally regarded as highly persuasive.” Harris County Commissioners Court v. Moore, 420 U.S. 77, 87 n. 10, 95 S.Ct. 870, 877 n. 10, 43 L.Ed.2d 32 (1975). Accordingly, Baptist’s Decision of Intent, conditioned upon the unsuccessful appeal of DeSoto General, is valid.

Finally, DeSoto argues that Baptist lacks standing to object to the settlement between the Commission and DeSoto on the basis that non-settling parties to a multi-party action do not have standing to object to settlement. Yet, In re Beef Industry Anti-Trust Litigation, 607 F.2d 167, 174 (5th Cir.1979), a case relied upon by DeSoto, states that parties to a dispute should be able to settle it themselves without interference from non-prejudiced third parties. There is no doubt that Baptist will be prejudiced by a settlement between DeSoto and the Commission which grants DeSoto a CON because the Baptist Decision of Intent would be rendered moot. Whether that prejudice is sufficient to grant a preliminary injunction, enjoining settlement on the basis of the granting of a CON to DeSoto, will be considered hereinafter. However, Baptist does have standing to object to a settlement between DeSoto and the Commission which will grant DeSoto a CON. Consequently, DeSoto’s Motion to Dismiss is denied.

2. Motion of the Commission to Dismiss and Motion of Baptist to File Second Amended Complaint.

The Commission moved to dismiss on the basis that the Eleventh Amendment bars the injunctive relief sought against it. Thereafter, Baptist, recognizing, but not conceding, that the Eleventh Amendment may preclude injunctive relief against the Commission, moved for leave to file its Second Amended Complaint to name as Defendants the members of the Commission in their official capacities.

The Commission’s assertion of the Eleventh Amendment as a bar to injunctive relief against it is well taken and its Motion is hereby granted. Cory v. White, 457 U.S. 85, 102 S.Ct. 2325, 72 L.Ed.2d 694 (1982); Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978). It is well established that the Eleventh Amendment protects the state from suit against it. Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67, 77-79 (1984). However, the granting of Baptist’s Motion to Amend does not resolve the problem created by the dismissal of the Commission. Even if this Court were to grant Baptist’s Motion to Amend to add the members of the Commission in their official capacities, which amendments are liberally allowed, the members of the Commission have not been served with process and are not formally before this Court, even though the Commission was represented at the hearing held on Baptist’s Motion for Preliminary Injunction and participated therein.

Although Baptist timely filed its Motion to Amend prior to the hearing in this action, it failed to raise its motion before the hearing began even when the Court asked the parties if there were any preliminary matters to be addressed. Had Baptist raised its Motion to Amend at the outset of the hearing, the Court would have granted the Motion and continued the hearing until such time as the members of the Commission were served with process. However, Baptist failed to do this and proceeded with its proof on the merits of its Motion for Preliminary Injunction. As such, the only party defendants presently before this Court are DeSoto General and DeSoto Medical — private parties.

Since constitutional rights are secured from infringements by governments and not by private parties, see, e.g., Jackson v. Metropolitan Edison Company, 419 U.S. 345, 349, 95 S.Ct. 449, 452, 42 L.Ed.2d 477 (1974); Frazier v. Board of Trustees of Northwest Mississippi, 765 F.2d 1278, (5th Cir.1985), this Court would have to find that DeSoto was acting “under color of state law” before an injunction could issue against it for violation of Baptist’s due process rights. Adickes v. S.H. Kress & Company, 398 U.S. 144, 150-51, 90 S.Ct. 1598, 1604-05, 26 L.Ed.2d 142 (1970). However, Baptist has not alleged that DeSoto is a “state actor” such that an injunction could issue against it to enjoin violation of constitutional rights either in its First Amended Complaint which is presently before this Court or in its Second Amended Complaint which it has requested leave to file. Id. See also, Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982); Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982); Lugar v. Edmondson, 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982).

Yet, even if DeSoto were a “state actor,” the Eleventh Amendment would preclude the injunctive relief sought herein. Even though a state is not a named party to an action, the action may nonetheless be properly construed as a suit against the state if the state is the real or substantial party in interest, or the defendant-in-fact, in light of the “essential nature and effect of the proceeding.” Ford Motor Company v. Department of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945); Subaqueous Exploration and Archaeology, Ltd. v. Unidentified, Wrecked and Abandoned Vessel, 577 F.Supp. 597, 606 (D.Md.1983). See also, Pennhurst State School and Hospital v. Halderman, 465 U.S. at-, 104 S.Ct. at 908, 79 L.Ed.2d at 79.

In this instance, the “essential nature and effect of the proceeding” indicates that the Commission, i.e., the State of Mississippi, is the real, substantial party in interest. Without doubt, an injunction against DeSoto only would operate against the Commission because the Commission is the entity that would grant DeSoto the CON if the settlement were consummated. As such, the Commission would be the entity which would actually be restrained from acting. Pennhurst, Id., 465 U.S. at-, n. 11, 104 S.Ct. at 908, n. 11 at 79, n. 11 (citing Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L.Ed.2d 15 (1963)). ' Accordingly, this Court cannot grant Baptist the injunctive relief it requests since the injunctive relief would, in actuality, operate against the Commission in violation of the Eleventh Amendment.

There remains outstanding Baptist’s Motion to Amend. In view of the ruling of this Memorandum Opinion and Order, this court does not know whether Baptist intends to pursue this litigation. If so, Baptist may request this Court to rule upon the Motion to Amend. If the Court has not received such a request within ten (10) days from this date it will dismiss this cause without prejudice on its own motion.

In summary, DeSoto’s Motion to Dismiss is denied; the Commission’s Motion to Dismiss is granted; and Baptist’s Motion for Preliminary Injunction is denied.


source: Caselaw Access Project

author: RAYMOND J. BRODERICK, District Judge.

license: Public Domain

text:
    UNITED STATES of America v. Gregory Clifford CLARK.
    Crim. No. 85-00077.
    United States District Court, E.D. Pennsylvania.
    Sept. 10, 1985.

      Edward S.G. Dennis, Jr., U.S. Atty., Linda Dale Hoffa, Asst. U.S. Atty., Philadelphia, Pa., for plaintiff.
    Jay S. Gottlieb, Philadelphia, Pa., for defendant.
   MEMORANDUM

RAYMOND J. BRODERICK, District Judge.

The indictment in this case charged the defendant, Gregory Clifford Clark, with manufacturing methamphetamine (Count I) and phenyl-2-propanone (P2P) (Count II) on or about July 11, 1985, in violation of 21 U.S.C. § 841(a)(1). After a trial lasting four days, the jury returned a verdict of guilty on both counts. At oral argument on the defendant’s post-trial motions for judgment of acquittal and/or a new trial, the Court denied the motions with respect to all but one of defendant’s allegations of error, which the Court reserved for written disposition. The Court now considers defendant’s motion for a new trial on the ground that the Court erred in failing to suppress evidence seized from defendant’s property. At the outset, the Court notes that a motion for a new trial pursuant to Fed.R.Cr.P. 33 must be granted if there is a substantial probability that trial error could have had a substantial influence on the jury’s decision. See Government of Virgin Islands v. Bedford, 671 F.2d 758, 762 (3d Cir.1982); United States v. Mastro, 570 F.Supp. 1388, 1390 (E.D.Pa.1983). For the reasons discussed below, the defendant’s motion for a new trial will be denied.

Just after midnight in the early morning of July 11, 1985, Chester County firemen responded to a report of smoke observed by the resident of 1427 James Place, Ruth Dixon. The firemen were accompanied by one police officer, in accordance with a routine practice designed for the firemen’s protection. After finding no fire or source of smoke at 1427 James Place, the firemen observed smoke coming from the rear of 1429 James Place, an adjacent rowhome, through an open kitchen window. After having knocked and received no response, the firemen and one policeman entered the premises through the kitchen door.

Upon entering the premises, the firemen and policeman observed incense and punks burning in the kitchen, and noted a sweet odor and a light smoky haze in the air. They also saw mail addressed to the defendant inside two open briefcases on the kitchen counter. The firemen checked the second floor for victims, smoke, and any burning items. They found a light odor and no smoke. Following the smoke, they proceeded back to the first floor to the basement stairway, where they observed a casserole dish containing a bubbling liquid on or near the top step. The men went down into the basement, where the smoke and odor intensified, and where they discovered materials indicating the presence of a clandestine methamphetamine laboratory: a pressure cooker and tubing, hot plates which had been turned on, dry ice, large quantities of various chemicals used in the manufacture of methamphetamine and P2P, several containers filled with chemical solutions, laboratory glassware, and protective gloves. The solutions were later determined to be in various stages of P2P and methamphetamine synthesis, including P2P and pure methamphetamine. The amount of precursor chemicals was later determined to be enough to produce about twelve pounds of methamphetamine.

The policeman and fire captain told the firemen on the scene that this was an apparent drug laboratory. The fire captain extinguished some burning punks and told the men not to touch anything. Neither the firemen nor the police officer accompanying them was trained for dismantling laboratories. It was well known to them that the properties of the chemicals in clandestine methamphetamine and P2P labs, such as acetone and ether create a risk of explosion or fire, ’ and that some of the chemicals are toxic. Therefore, the fire crew’s practice was to call for trained assistance in disassembling such labs. The policeman on the scene at 1429 James Place called a second police officer to the scene. They did not touch the laboratory, but contacted the police dispatcher to request the assistance of narcotics officers. The first narcotics officer arrived at about 1:00 a.m., viewed the lab and noted the chemical odor, and directed the firemen to take the bubbling casserole dish which was found on the stairway landing out of the house. The firemen ventilated the house, and then stayed outside until the lab was disassembled, in case there was an explosion or fire. The narcotics investigator felt that the recently “cooking” lab and large quantities of chemicals presented a highly dangerous situation. Therefore he called William Glanz of the Drug Enforcement Agency (DEA) and Richard Conway, the head of the Chester County Police Department Narcotics Squad, whose expertise was greater than his, to the scene. Narcotics Officer Conway arrived in 15 minutes, and Agent Glanz arrived in 80 minutes. After the two experts arrived, they supervised the disassembly of the lab, which took approximately 4% hours. The lab equipment and chemicals were seized and secured in 2 police vans until the arrival of additional DEA agents. During this time, Officer Conway went to the second floor of the house to see if anyone was in the house and to look for any additional chemicals and incense. Officer Conway saw various items of identification belonging to the defendant as well as certain bills addressed to the defendant at 1429 James Place, on top of the bureau in a bedroom. In addition, Officer Conway observed men’s toiletries, men’s clothing, and no women's clothing or accessories.

The defendant contends that the Court erred in failing to suppress the evidence seized at 1429 James Street in Chester, Pennsylvania on July 11, 1984. The Court found and the defendant acknowledges that the initial entry by the firemen and one policeman was for the purpose of extinguishing a fire, and that this initial warrantless entry was justified by the exigency of the circumstances. See Michigan v. Clifford, 464 U.S. 287, 104 S.Ct. 641, 78 L.Ed.2d 477 (1984); Michigan v. Tyler, 436 U.S. 499, 501, 98 S.Ct. 1942, 1945, 56 L.Ed.2d 486 (1978).

Because the firemen and policeman were lawfully on the premises of 1429 James Street, and because they inadvertently discovered the methamphetamine lab while seeking the source of the smoke, they were justified in seizing the laboratory items which were in plain view. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) and its progeny including Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) and Illinois v. Andreas, 463 U.S. 765, 103 S.Ct. 3319, 77 L.Ed.2d 1003 (1983) hold that “[t]he plain view doctrine authorizes seizure of illegal or evidentiary items visible to a police officer whose access to the object has some prior Fourth Amendment justification and who has probable cause to suspect that the item is connected with some criminal activity.” Andreas, 103 S.Ct. at 3324. This probable cause standard requires only a practical, commonsense probability that incriminating evidence has been found. Brown, 103 S.Ct. at 1542-43. Furthermore, the incriminating nature of the evidence need not be apparent at first glance if it becomes “apparent without other information than that which the officers possessed before the search was over.” United States v. McDonald, 723 F.2d 1288 (7th Cir.1983) (further citations omitted). See also United States v. Callabrass, 607 F.2d 559, 564 n. 3 (2d Cir.1979) (it is sufficient if one officer’s discovery of the articles was inadvertent and their evidentiary nature was apparent; it was not significant that a second officer helped the first to identify and seize the articles).

At oral argument, defense counsel had to concede that the discovery of the laboratory by the firemen and accompanying policeman was inadvertent and that they were entitled to seize the laboratory under the plain view doctrine. However, defense counsel argued that once the fire crew determined not to touch anything and that this was a matter for the police, the arson and narcotics agents who were called in were obligated to obtain a criminal search warrant based on probable cause. Defense counsel also contends that Narcotics Officer Conway was not authorized to be in the kitchen or to go to the second floor of the house, and that therefore the identification evidence which was in plain view in the kitchen and in the upstairs bedroom should have been suppressed.

Defendant relies on the following language from the Supreme Court’s plurality opinion in Michigan v. Clifford, supra:

If the primary object of the search is to gather evidence of criminal activity, a criminal search warrant may be obtained only on a showing of probable cause to believe that relevant evidence will be found in the place to be searched. If evidence of criminal activity is discovered during the course of a valid administrative search, it may be seized under the “plain view” doctrine. Coolidge____ This evidence then may be used to establish probable cause to obtain a criminal search warrant. Fire officials may not, however, rely on this evidence to expand the scope of their administrative search without first making a successful showing of probable cause to an independent judicial officer.
The object of the search is important even if exigent circumstances exist. Circumstances that justify a warrantless search for the cause of a fire may not justify a search to gather evidence of criminal activity once that cause has been determined____ A search to gather evidence of criminal activity not in plain view must be made pursuant to a criminal activity upon a traditional showing of probable cause.

104 S.Ct. at 647. (emphasis added).

To the extent that Clifford is a fire-arson investigation case, it is not apposite to the facts of the present smoke-drug lab dismantling case. Furthermore, this Court is of the opinion that defendant’s argument misses the “exigency” rationale behind the fire exception to the warrant requirement which the Supreme Court recognized in Clifford and Tyler, supra.

In Tyler, the Supreme Court held that a burning building is an exigency justifying a warrantless entry to extinguish the fire:

Our decisions have recognized that a warrantless entry by criminal law enforcement officials may be legal when there is compelling need for official action and no time to secure a warrant. Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (warrantless entry of house by police in hot pursuit of armed robber); Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (warrantless and unannounced entry of dwelling by police to prevent imminent destruction of evidence)____
A burning building clearly presents an exigency of sufficient proportion to render a warrantless entry “reasonable.” Indeed, it would defy reason to suppose that firemen must secure a warrant or consent before entering a burning structure to put out the blaze. And once in a building for this purpose firefighters may seize evidence of arson that is in plain view. Coolidge____

436 U.S. at 509, 98 S.Ct. at 1949-50. The Tyler Court further held that the exigency justifying a warrantless entry to fight a fire does not end with “the dousing of a flame.” 436 U.S. at 510, 98 S.Ct. at 1950. The Court held that fire officials may remain in a building for a reasonable time to investigate the cause of a blaze after it has been extinguished. Id. The search, which began after the fire was out and which was continuous except for a four hour interruption caused by smoke and darkness, was justified in order to prevent recurrence of the fire and to preserve evidence from accidental or intentional destruction.

In Michigan v. Clifford, the Supreme Court held that in the case of a personal residence, an investigation into the cause of a fire which was not a continuation of the initial legitimate warrantless entry to fight the fire was unconstitutional. The search in Clifford was not initiated until six hours after the fire had been extinguished and the firemen had left, and during that interval the owners had taken steps to secure the house. As the Clifford Court expressly noted, the state did not attempt to justify the post-fire search on the basis of exigent circumstances.

Neither Clifford nor Tyler can directly control the present case because in this case there was no actual fire. The exigency caused by the existence of large quantities of potentially explosive chemicals and a recently “cooking” lab inside the rowhouse at 1429 James Place was not “extinguished” by the fire department. The exigency required dismantling of the clandestine lab, and this justified summoning experienced narcotics agents to handle that disassembly. A closer case than Tyler or Clifford is United States v. Callabrass, supra, in which the Second Circuit held that a narcotics agent could be called in after a fire to dismantle a phencyclidine lab:

A prompt investigation was required in Tyler to “preserve evidence from intentional or accidental destruction.” [436 U.S.] at 510, 98 S.Ct. at 1950. Here the need was at least as great since many of the substances found in the apartment were volatile____ Regardless of what [the narcotics agent] Cassidy hoped to accomplish by seizing the evidence, prompt action was required to secure items easily prone to accidental or intentional destruction____ The need for prompt removal of the substances found on the premises is not belied by the lapse of time between their discovery and Cassidy’s arrival____ We cannot imagine that the Fourth Amendment required either that Cassidy obtain a warrant before moving the chemicals or that the officers who first arrived dispose of the chemicals despite their lack of expertise.

607 F.2d 559, 564. Justice Stevens, the concurring Justice in Clifford, stated that the Tyler and Clifford rules applied only to post-fire investigations which could not be supported on an emergency rationale.” 464 U.S. at-n. 4, 104 S.Ct. at 651 n. 4. Justice Stevens noted that a majority of the Court would dispense with the warrant requirement if there were a danger of rekindling. The chemical dangers present in this case and in Callabrass constitute exigent circumstances which were at least the equivalent of a danger of rekindling.

Once Narcotics Officer Conway was legitimately on the scene, he was entitled to seize the laboratory items in plain view. The existence of the methamphetamineP2P lab in the basement made the mail which was in plain view in the kitchen evidentiary. The seizure of the bills on top of the open briefcases was justified by the plain view doctrine. The Court allowed only the evidence which was visible on top of the open briefcases, and suppressed the contents of the briefcases which were not in plain view.

Narcotics Officer Conway was also authorized in going to the second floor in order to search for people and additional chemicals and/or smoke. This search was justified by the need to remove any additional hazardous chemicals which may have been stored there. Furthermore, a P2Pmethamphetamine lab had been found in operation and a bubbling casserole dish was discovered at the top of the stairs to the main floor. This scenario was strongly suggestive of the fact that the responsible chemist had fled the basement, possibly for another part of the house. This indication analogizes the situation to one of “hot pursuit”, and “the possibility that the unapprehended ... [methamphetamine-P2P chemist] remained within the house supplied sufficient exibent circumstances to justify the officers in ... searching for the individual____” United States v. Stubblefield, 621 F.2d 980, 982 (9th Cir.1980) (further citations omitted).

Once Officer Conway was legitimately in the upstairs bedroom, he was entitled to seize the incriminating identification evidence which he inadvertently found in plain view. The Court permitted the use of items found on the top of the dresser only, and suppressed items found within the dresser drawers.

For the reasons discussed above, there was no error in failing to grant defendant’s motion to suppress the evidence seized from 1429 James Place.

The defendant took the stand and testified that 1429 James Place was not his residence at the time in question. Therefore, the Assistant United States Attorney (AUSA) was entitled to cross-examine the defendant about all of the personal papers and identification belonging to the defendant which were found at the premises. If the defendant denied leaving any of the particular items at 1429 James Place, the AUSA was entitled to introduce that paper as impeachment evidence, even if it was among the papers held inadmissible in the government’s case-in-chief. United States v. Havens, 446 U.S. 620, 624-29, 100 S.Ct. 1912, 1915-17, 64 L.Ed.2d 559 (1980); Walder v. United States, 347 U.S. 62, 65, 74 S.Ct. 354, 356, 98 L.Ed. 503 (1954). The Court sustained defense counsel’s objection to the form of one question in which the AUSA identified the birth certificate, a suppressed paper, in putting the question to the defendant. The Court ruled that the AUSA could ask the defendant generally what papers he had left at 1429 James Place, without identifying the particular piece of suppressed evidence to which she was referring. If the defendant did not remember which papers he had left, the Court ruled that the AUSA could show the suppressed paper to the defendant to refresh his recollection. Only if the defendant still could not remember or if he denied leaving the suppressed papers at the premises would the Court allow the AUSA to identify and to introduce the paper into evidence. These rulings were fully consistent with Havens and Walder and fully protective of defendant’s rights. The AUSA complied with the Court’s ruling. There was no prejudice attributable to the fact that in one question the AUSA identified one suppressed paper in the question. There is no basis in the record for a new trial based on improper impeachment by suppressed evidence.


author: RICHARD L. WILLIAMS, District Judge.

text:
    AMERICAN BOOKSELLERS ASSOCIATION, et al., Plaintiffs. v. Charles T. STROBEL, Director of Public Safety, et al., Defendants.
    Civ. A. No. 85-816-A.
    United States District Court, E.D. Virginia, Alexandria Division.
    Sept. 10, 1985.

      Victor Glasberg, Alexandria, Va., for plaintiffs.
    Robert L. Murphy, Asst. City Atty., Alexandria, Va., for Strobel.
    Charles G. Flinn, Ara L. Tramblian, Cynthea L. Perry, Arlington, Va., for Stover.
    Richard B. Smith, Asst. Atty. Gen., Richmond, Va., for defendants.
   MEMORANDUM OPINION

RICHARD L. WILLIAMS, District Judge.

Introduction

This matter comes before the Court on a trial to the bench on September 5, 1985. Plaintiffs challenge the constitutionality of the 1985 Amendment to § 18.2-391 of the Code of Virginia. The relevant statutes are set out below, and the challenged portion (hereafter “the amendment”) is highlighted:

§ 18.2-390. Definitions. — As used in this article:
(1) “Juvenile” means a person less than eighteen years of age.
(2) “Nudity” means a state of undress so as to expose the human male or female genitals, pubic area or buttocks with less than a full opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple, of the depiction of covered or uncovered male genitals in a discernibly turgid state.
(3) “Sexual conduct” means actual or explicitly simulated acts of masturbation, homosexuality, sexual intercourse, or physical contact in an act of apparent sexual stimulation or gratification with a person’s clothed or unclothed genitals, public area, buttocks or, if such be female, breast.
(4) “Sexual excitement” means the condition of human male or female genitals when in a state of sexual stimulation or arousal.
(5) “Sadomasochistic abuse” means actual or explicitly simulated flagellation or torture by or upon a person who is nude or clad in undergarments, a mask or bizarre costume, or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed.
(6) “Harmful to Juveniles” means that quality of any description or representation, in whatever form, or nudity, sexual conduct, sexual excitement, or sadomasochistic abuse, when it (a) predominately appeals to the prurient, shameful or morbid interest of juveniles, (b) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for juveniles, and (c) is, when taken as a whole, lacking in serious literary, artistic, political or scientific value for juveniles.
(7) “Knowingly” means having general knowledge of, or reason to know, or a belief or ground for belief which warrants further inspection or inquiry of both (a) the character and content of any material described herein which is reasonably susceptible of examination by the defendant, and (b) the age of the juvenile, provided however, that an honest mistake shall constitute an excuse from liability hereunder if the defendant made a reasonable bona fide attempt to ascertain the true age of such juvenile.
§ 18.2-391. Unlawful acts. — (a) It shall be unlawful for any person knowingly to sell or loan to a juvenile, or to knowingly display for commercial purpose in a manner whereby juveniles may examine and peruse:
(1) Any picture, photograph, drawing, sculpture, motion picture film, or similar visual representation or image of a person or portion of the human body which depicts sexually explicit nudity, sexual conduct or sadomasochistic abuse and which is harmful to juveniles, or
(2) Any book, pamphlet, magazine, printed matter however reproduced or sound recording which contains any matter enumerated in paragraph (1) of this subsection, or explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexual conduct or sadomasochistic abuse and which taken as a whole, is harmful to juveniles.
(b) It shall be unlawful for any person knowingly to sell to a juvenile an admission ticket or pass, or knowingly to admit a juvenile to premises whereon there is exhibited a motion picture, show or other presentation which, in whole or in part, depicts sexually explicit nudity, sexual conduct or sadomasochistic abuse and which is harmful to juveniles or to exhibit any such motion picture at any such premises which are not designed to prevent viewing from any public way of such motion picture by juveniles not admitted to any such premises.
(c) It shall be unlawful for any juvenile falsely to represent to any person mentioned in subsection (a) or subsection (b) hereof, or to his agent, that such juvenile is eighteen years of age or older, with the intent to procure any material set forth in subsection (a), or with the intent to procure such juvenile’s admission to any motion picture, show or other presentation, as set forth in subsection (b).
(d) It shall be unlawful for any person knowingly to make a false representation to any person mentioned in subsection (a) or subsection (b) hereof or to his agent, that he is the parent or guardian of any juvenile, or that any juvenile is eighteen years of age, with the intent to procure any material set forth in subsection (a), or with the intent to procure such juvenile’s admission to any motion picture, show or other presentation, as set forth in subsection (b).
(e) Violation of any provision hereof shall constitute a Class 1 misdemeanor.

The named defendants are charged by law with the duty of enforcing the challenged portion of the statute. The Attorney General of Virginia has exercised his right to intervene pursuant to 28 U.S.C. § 2403(b).

The plaintiffs here are five bookstore trade associations, two individual bookstores and two individual residents of the City of Alexandria. They contend that the 1985 Amendment is facially invalid in that it unconstitutionally infringes upon rights protected by the first amendment, and in that it constitutes a prior restraint upon free speech. Defendants argue that there is no case or controversy between themselves and the plaintiffs, that plaintiffs do not have standing to challenge the Amendment, that the Court should abstain from considering the constitutionality of the Amendment, and that in any event the Amendment does not violate the first amendment.

Pursuant to Rule 52(a), the Court hereby makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

Helen Ross is the owner of plaintiff Ampersand Books, an Alexandria bookstore belonging to the American Booksellers Association. Ampersand Books carries approximately 12,000-13,000 different titles at any one time, with multiple copies of most titles. The books are arranged in sections according to subject matter, including children’s books, science fiction, mystery, fiction, romance, art, health, photography and best sellers. Children frequently shop at Ampersand Books, often with their parents, and sales of children’s books constitute approximately 10% of Ampersand’s business. In terms of its size, structure and clientele, Ampersand is similar to many other Northern Virginia bookstores that carry a wide variety of titles.

Carol Johnson is the owner of plaintiff Books Unlimited, an Arlington bookstore that belongs to the American Booksellers Association. Books Unlimited is somewhat atypical in that it relies more heavily upon sales of children’s books than other area bookstores. However, approximately 10-15% of its books may not be displayed under the new law. The store’s books are arranged by subject matter in a manner similar to the structure at Ampersand Books.

In all bookstores, the display of a particular book, and the manner in which it is displayed play a critical role in determining how many copies the bookstore will sell. Customers often become familiar with a book, and desire to purchase it only after browsing and looking through the shelves. Customers are generally hesitant about asking for help in locating books, and they are especially reluctant to ask for books that have a strong sexual content. Therefore, at least one copy of every title carried by Ampersand books is on display.

Based upon the testimony of two local bookstore owners, and after carefully reviewing the exhibits introduced from their stores, the Court concludes that the average general bookstore in the Northern Virginia area carries a significant percentage of materials (varying between 5-25%) that are “harmful to juveniles” as defined in the statute. The books that fall within the restrictions come from a wide variety of subject matters, such as romance, fiction, photography, best sellers, science fiction and health. Most of these books come within the statute’s fairly broad ambit on the basis of their content. However, the Court finds that the covers of some books and magazines, as sexually explicit “pictures” and “photographs” under the statute, are also covered by the statute.

In order to comply with the 1985 amendment, bookstores are faced with approximately four choices. First, a bookstore could simply bar all persons under the age of 18 from its store. However, this alternative would certainly have a dramatic impact upon the store’s sales of children’s books. Moreover, such a move would create the impression that the store deals primarily in “adults only” or pornographic material, which would have a devastating impact upon the store’s business.

Second, the store could create an “adults only” section in order to display the proscribed material. However, the books covered by the statute come from a wide variety of literary disciplines, such as fiction, romance, photography, and best sellers; books which are “harmful to minors” are mixed into so many different subject areas that it would be almost impossible for booksellers to sort through the books to create a new section. An “adults only” area would be costly to create, difficult to monitor, and would create a great deal of confusion in the mind of a consumer searching for a particular book. Moreover, many adults would be reluctant and embarrassed to browse in an “adults only” corner of the store, and sales of books placed in this new area would undoubtedly drop.

Third, the bookstore could simply limit its inventory to books not regulated by the new law. However, since the new law would restrict the display of a number of very popular books, including some best sellers, this alternative is not commercially feasible. In addition, this alternative would create practical difficulties in ordering new books because bookstores rarely have the opportunity to review books before ordering them.

Finally, the bookstore could place all of the prescribed material behind a counter where they would not be displayed to the public. However, due to the large number of books involved, this alternative would require bookstores to significantly alter the structure of their stores. Moreover, since the display of books is so crucial to their sale, such a move would substantially hurt sales.

CONCLUSIONS OF LAW

A. Case or controversy and standing requirements

Initially, the Court must determine whether an actual case or controversy exists, and whether the plaintiffs have standing to challenge the constitutionality of the new amendment. The “case or controversy” doctrine does not mean that a plaintiff must be arrested or prosecuted before he or she may challenge the constitutionality of a statute. Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). However, a plaintiff must be able to assert a reasonable fear of enforcement of the statute, and that therefore the allegedly unconstitutional statute interferes with how the plaintiff ordinarily conducts his or her affairs. Entertainment Concepts, Inc., III v. Maciejewski, 631 F.2d 497 (7th Cir.1980), cert. denied, 450 U.S. 919, 101 S.Ct. 1366, 67 L.Ed.2d 346 (1981); International Society for Krishna Consciousness v. Eaves, 601 F.2d 809 (5th Cir. 1979).

Similarly, in order to satisfy the requirement of standing, a litigant must demonstrate that he or she is somehow adversely affected by the challenged statute. This requirement is not satisfied if the party merely asserts the common interest of society as a whole in having a judicial determination on the matter. In short, a litigant must demonstrate a “personal stake” in determining the validity of the law, so that the controversy before the Court is both “real and substantial.” Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241, 57 S.Ct. 461, 464, 81 L.Ed. 617 (1937).

Where first amendment rights are at stake, case or controversy and standing requirements have been relaxed so that litigants may preserve rights of free expression. See Secretary of State v. Munson, — U.S. -, 104 S.Ct. 2839, 81 L.Ed.2d 786, 796 (1984) (“where there is a danger of chilling free speech, the concern that constitutional adjudication be avoided wherever possible may be outweighed by society’s interest in having the statute challenged”); see also Broadrick v. Oklahoma, 413 U.S. 601, 611, 93 S.Ct. 2908, 2847, 37 L.Ed.2d 830 (1973) (challenge to statute restricting political activities of state civil servants permitted since the statute’s existence may discourage persons not before the Court from engaging in protected speech). This relaxed stance reflects the treasured position occupied by the first amendment, and the consequent importance of having first amendment controversies adjudicated promptly.

The evidence in the record clearly establishes that a real controversy exists and that the individual bookstores have standing to challenge the 1985 amendment. The bookstores have adequately demonstrated a reasonable fear that the challenged amendment will be enforced against them, that the amendment raises substantial first amendment concerns, and that the amendment has caused and will continue to cause direct, immediate economic injury to their businesses. Furthermore, the retail associations also have standing in this matter because they are representatives of bookstores who are suffering immediate or threatened injury as a direct result of the challenged statute. See Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977) (trade association has standing to bring suit on behalf of its members if its members would otherwise have standing, if the interests to be protected are germane to the purpose of the organization, and if the suit does not require the participation of the individual members); see also Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).

The individual plaintiffs, Jessica Bush and her minor daughter Amy Bush do not have standing to challenge the amendment. Jessica and Amy Bush claim that they have standing simply as adult and juvenile members of the community. However, neither has alleged that they would be subject to prosecution under the challenged amendment, nor do they allege any economic loss as a result of the new law. The Bushes have failed to assert anything more than an abstract interest in the availability of reading materials in bookstores, an interest which is no different from the interests of all other local citizens who patronize bookstores. See American Booksellers Association v. Rendell, 481 A.2d 919, 932 (Pa.Super.1984).

B. Abstention

Defendant contends that the Court should abstain in this case so that state courts may be given the opportunity to construe the 1985 amendment and determine its constitutionality. However, this case does not fit within any of the three narrowly defined areas where abstention by a federal court may be appropriate. Specifically, state court resolution of this matter would not render unnecessary, nor substantially modify the federal constitutional questions; there are simply no difficult or unclear issues of state law raised here. See Railroad Comm’n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941) (abstention may be appropriate where the case presents unsettled questions of state law); see also Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) (abstention may be appropriate where there is a constitutional challenge to ongoing state criminal proceedings); Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943) (abstention may be appropriate where there is an adequate state regulatory forum for review of the claims, and where that forum is the most appropriate forum due to the presence of basic state policy considerations). Further, the significant first amendment questions raised by the plaintiffs’ claims clearly make abstention inappropriate. See American Booksellers Association v. McAuliffe, 533 F.Supp. 50 (N.D.Ga.1981) (declaring Georgia statute restricting display of certain sexually explicit materials unconstitutional).

Overbreadth

As a general matter, “the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Police Department of Chicago v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212 (1972). The Supreme Court has upheld restrictions based upon content “only in the most extraordinary circumstances.” Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 65, 103 S.Ct. 2875, 2879, 77 L.Ed.2d 469 (1983). Therefore, the challenged amendment, which clearly restricts access to certain materials on the basis of their content, must be carefully examined to ensure that it does not impermissibly infringe upon first amendment values.

The sole justification offered by the defendants for the challenged amendment is the government’s interest in shielding minors from certain adult reading material. The Supreme Court, recognizing that the state may play some role in promoting the moral well-being of its youth, has upheld the constitutionality of laws which prohibit the sale of materials which, though not obscene as to adults, were deemed to be “harmful to minors.” Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). The defendants assert that the 1985 amendment, which prohibits the display of non-obscene material in a manner whereby one under the age of 18 may peruse it, is constitutionally permissible under Ginsberg.

The Court disagrees. In promoting the morals of its youth by restricting their access to certain communications, the state may not create barriers which simultaneously place substantial restrictions upon an adult’s access to those same protected materials. In Butler v. Michigan, 352 U.S. 380, 77 S.Ct. 524, 1 L.Ed.2d 412 (1957), the Supreme Court struck down a Michigan law which made it unlawful for anyone to “make available for the general reading public ... a book ... found to have a potentially deleterious influence on youth.” 352 U.S. at 382-83, 77 S.Ct. at 525. Writing for a unanimous Court, Justice Frankfurter rejected a contention similar to the one offered by the defendants here:

The state insists that, by thus quarantining the general reading public against books not too rugged for grown men and women in order to shield juvenile innocence, it is exercising its power to promote the general welfare. Surely, this is to burn the house to roast the pig.

352 U.S. at 383, 77 S.Ct. at 525. Here, as in Butler, the challenged statute is “not reasonably restricted to the evil with which it is said to deal.” Butler, 352 U.S. at 383, 77 S.Ct. at 526.

Over 25 years after Butler, in Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983), the Supreme Court struck down a federal statute which made it illegal to mail to the public unsolicited materials dealing with contraceptives, venereal disease and family planning. The defendaht in Bolger, like the defendant in Butler, argued that the law should be upheld because it protected minors from materials that their parents might find objectionable. The Supreme Court again unanimously rejected this contention:

We have previously made clear that a restriction of this scope is more extensive than the Constitution permits, for the government may not “reduce the adult population ... to reading only what is fit for children.” Butler v. Michigan, 352 U.S. 380, 383, 77 S.Ct. 524, 526, 1 L.Ed.2d 412 (1957). The level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox.

463 U.S. at 73, 103 S.Ct. at 2884. See also Home Box Office v. Wilkinson, 531 F.Supp. 987 (D.Utah 1982) (statute prohibiting the distribution of sexually explicit materials over cable television declared unconstitutional on grounds of overbreadth).

The level of discourse reaching commercial bookshelves cannot be limited to what might be appropriate for an elementary school library. See American Booksellers Association, Inc. v. McAuliffe, 533 F.Supp. 50 (N.D.Ga.1981); Tattered Cover v. Tooley, 696 P.2d 780 (Col.Sup.Ct.1985); American Booksellers Association, Inc. v. Superior Court, 129 Cal.App.3d 197, 181 Cal.Rptr. 33 (1982). The state’s purpose in passing the challenged amendment, however praiseworthy, cannot be pursued by means which effectively stifle an adult’s access to communciations he or she is entitled to receive. While the intended effect of the amendment is to prevent examination and perusal by minors of certain “harmful” materials, the unavoidable collateral effect of the law is to severely limit the ability of adults to examine these protected materials. This, in turn, severely limits sales to adults, since the evidence establishes that adults generally become acquainted with these materials, and desire to purchase them, only if they are readily visible.

Faced with the restrictions in the display amendment, a bookstore would be forced either to discontinue carrying the restricted materials, ban minors from its store altogether, or restructure their stores and move a significant portion of its inventory. Due to the wide sweep of the statute, a number of classic literary works, romances, and best sellers would have to be placed behind the counter or into monitored “adults only” areas. As noted earlier, these alternatives are commercially impractical. Moreover, they force adults to use other means (beyond simply browsing through the shelves) to find out about protected literature. Finally, they might also require the adult to go into a stigmatized “adults only” area to examine the materials; these extra steps would certainly be embarrassing to many adults, and they may very well inhibit many individuals from exercising their right to examine and purchase the material.

The Attorney General suggests that a bookseller may comply with the amendment by simply placing tags on the prescribed books, or by placing them on special “adult only” racks. This interpretation completely ignores the plain language of the new law, which restricts the display of the proscribed materials, not simply their perusal. If the proscribed material is on a shelf in an area where juveniles are permitted to roam, then the item is “on display” where the juvenile “may” examine it even if the item is tagged. Indeed, since the material may well have pictures or passages “harmful to minors” on its front or back cover, the law is violated if a person under the age of 18 can simply see it. The amendment makes no provision for tags, adults only racks or blinder racks.

The Attorney General also urges the Court to uphold the challenged display provision as a valid time, place and manner restriction on speech. The “crucial question” in examining a regulation under the time, place and manner test is “whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time.” Grayned v. City of Rockford, 408 U.S. 104, 116, 92 S.Ct. 2294, 2303, 33 L.Ed.2d 222 (1972). The manner of expression here— the display of the books or other materials — is unquestionably compatible with the activity of the places affected by the regulation — bookstores, art galleries, convenience stores and department stores. Because the amendment does not regulate expression incompatible with the normal activity of the affected businesses, the amendment here is not a valid time, place and manner restriction.

Moreover, a valid time, place or manner restriction must serve a substantial governmental interest, and it must be drawn with narrow specificity to be no more restrictive of protected communications than necessary. Grayned v. City of Rockford, 408 U.S. 104, 116-17, 92 S.Ct. 2294, 2303-04, 33 L.Ed.2d 222 (1972); Davenport v. City of Alexandria, 710 F.2d 148 (4th Cir.1983). While the purpose of the restriction here is to serve a substantial governmental interest, the restriction is far broader than necessary. Without passing upon the constitutionality of any alternative measures, the Court notes that a law simply forbidding the actual perusal by minors of these harmful materials, or at least requiring the use of “blinder racks,” would be far narrower than the amendment challenged here.

Plaintiffs also challenge the Virginia law on the grounds that it constitutes a prior restraint upon protected speech, and that it unreasonably restricts the access of more mature minors to material which is not obscene as to them. The Court’s rulings on plaintiff’s overbreadth claim makes it unnecessary to reach the merits of these contentions.

In light of the foregoing, the Court concludes as a matter of law that the 1985 amendment to Virginia Code § 18.2-391(a) is facially invalid for overbreadth. Moreover, it cannot be saved by any narrowing construction. Therefore, the defendants are hereby PERMANENTLY ENJOINED from enforcing the amendment.

An order will be entered in accordance with this opinion.

      . The Court notes with some concern that, with respect to most of the above alternatives, bookstores might not be able to continue their practice of hiring minors for part time positions.

      . Obviously, the materials regulated by the Amendment are not “obscene” under Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2614, 37 L.Ed.2d 419 (1973), and are therefore entitled to first amendment protection.

      . The Ginsberg decision, as modified by Miller, has been codified by Virginia in Virginia Code § 18.2-390, 391 (1984).

      . To the extent that the Court in M.S. News Co. v. Casado, 721 F.2d 1281 (10th Cir.1983) held that a somewhat similar Wichita City ordinance was a valid time, place and manner restriction, the Court respectfully disagrees.

      . Although valid time, place and manner restrictions must generally be content neutral, the Supreme Court has carved out an exception to this general rule where, as here, the restriction is targeted toward a juvenile audience. See Young v. American Mini Theatres, 427 U.S. 50, 85-86, 96 S.Ct. 2440, 2459-60, 49 L.Ed.2d 310 (1976) (Justice Stewart, dissenting).

      . In the Casado case, the 10th Circuit upheld the constitutionality of a display ordinance somewhat similar to the regulation before this Court. However, in Casado, the challenged ordinance permitted the display of materials “harmful to minors" so long as the materials were kept behind "blinder racks" that covered the lower two-thirds of the material from view.

      . It may be that laws prohibiting the sale of these materials are already the narrowest permissible restrictions, and that displays of such materials are simply a part of the "multitude of external stimuli" in sensitive areas with which parents must cope. See Bolger, 463 U.S. at 73, 103 S.Ct. at 2886.


author: KRAM, District Judge.

text:
    Nicole A. DeSOIGNIES, Plaintiff, v. CREDIT LYONNAIS, Defendant.
    No. 82 Civ. 428 (SWK).
    United States District Court, S.D. New York.
    Sept. 10, 1985.

      Robert David Goodstein, New Rochelle, N.Y., for plaintiff.
    Cole & Deitz by Anthony J. D’Auria, New York City, for defendant.
   MEMORANDUM DECISION

KRAM, District Judge.

This action was commenced on January 25, 1982, by the filing of a complaint alleging that plaintiff’s employer, defendant Credit Lyonnais, had violated section 4(a)(1) and (a)(2) of the Age Discrimination in Employment Act, 29 U.S.C. § 623(a)(1) and (a)(2) (“ADEA”) by discriminating against her with respect to her age. The case was tried by the Court on November 21 and 22, 1983. At the close of the trial defendant moved for judgment in its favor. (Tr. 284.) The Court granted defendant’s motion, with its opinion to follow. (Id.) The following constitutes the Court’s findings of fact and conclusions of law, pursuant to Fed.R.Civ.P. 52(a).

FACTS

Credit Lyonnais is a commercial banking institution organized under the laws of France, with a branch office in New York.

Plaintiff, a New York resident, was hired by Credit Lyonnais on or about June 11, 1974, to work in its New York office. (Tr. 6; Plaintiff’s Exh. 43.) She was hired initially for the position of executive secretary. (Tr. 7.) At the time she was hired, DeSoignies was forty or forty-two years old. (Tr. 35, 102; Plaintiff’s Exh. 43.)

In early 1975, DeSoignies was promoted to a position in the individual accounts section of the bank. (Tr. 7.) She remained in this position until December, 1977. During her first two years in this department, plaintiff received favorable reviews of her work. (Plaintiff’s Exhs. 3, 4.) In 1977, however, plaintiff received unfavorable evaluations of her work. (Plaintiff’s Exh. 5; Defendant’s Exh. B.) Indeed, DeSoignies received below average ratings in every category on her annual review that year. (Plaintiff’s Exh. 5.) The head of her department noted “[a] quick solution must be found, i.e. a transfer to a department where her capacities could be better used.” (Plaintiff’s Exh. 5.) DeSoignies’s relationship with, or attitude toward, her co-workers and her supervisors was termed “immature.” (Id.) Plaintiff felt that her overall evaluation was “incorrect and illogical.” (Tr. 41.) She addressed a note for her file attempting to refute some of the criticisms levied against her by the department head. (Defendant’s Exh. A.) At the trial, DeSoignies would not even admit that these evaluations had been “critical” (Tr. 40-42); she preferred to use the term “unflattering” (Tr. 41). In any event, as a result of her supervisor’s dissatisfaction with her work, she was transferred to the Technical Assistance Department (“TAD”) and was not awarded an annual raise. (Tr. 52; Plaintiff’s Exh. 43.)

TAD was broken down into two separate sections, the Credit Analysis Section and the Portfolio Administration Section. The Credit Analysis Section analyzed the creditworthiness of customers and potential customers of the bank and did industry studies. The Portfolio Administration Section administered the outstanding loans and loan applications of the bank and performed some credit investigations. (Tr. 178.) The head of the Portfolio Administration Section was Howard Cohen, who in turn reported to John Mazzocchi, the head of TAD. (Tr. 181.) When DeSoignies was transferred to TAD at the beginning of 1978, she was assigned to the Portfolio Administration Section. (Id.)

DeSoignies’s primary responsibility when she was assigned to TAD was coordinating the loan applications with their approvals and authorizations. (Id.) Essentially, this entailed making copies of loan applications, sending the originals to the main office in Paris after receiving branch approval, and seeing that copies of any approvals from the main office were attached to, and filed with, the branch copy of the application. (Tr. 182.)

In May, 1978, DeSoignies’s work in TAD was given an interim evaluation. (Plaintiff’s Exh. 6; Tr. 183-186.) Her initial evaluation in TAD was favorable. Her supervisors indicated that she had “made a satisfactory adjustment to her new assignment” and evaluated her work, generally, as somewhat above average. (Plaintiff’s Exh. 6.) Things had changed, however, by the time of her annual review, some four months later. (Tr. 187; Plaintiff’s Exh. 7.) At that time her work was evaluated as average to slightly below average. (Id.) Two particular areas of difficulty were noted: work with detail and questioning the judgment of her supervisors. It appears that DeSoignies did not have a good relationship with her supervisors. Indeed, her relationship with her immediate supervisor, Howard Cohen, was so bad that she tried to deny the very existence of a supervisory relationship. (Tr. 75-76, 188-89; 211-13.)

Ultimately, plaintiff’s duties as Administrative Assistant in TAD included the following: administration of loan authorizations and control of loan maturities; liaison between Parisian and domestic lawyers; preparation of a weekly approval report; and various discrete small projects. (Tr. 8, 222-23, 227; Plaintiff’s Exhs. 10, 11.)

Two other duties of significance were performed by the Portfolio Administration Section with respect to loans. One of those duties involved making certain that all the necessary legal documentation was perfected to secure the bank’s position on the loan. The other duty involved drafting and sending commitment letters to the client setting forth the terms and conditions of a loan, once approved. Initially, in 1978 and 1979, both of these functions were performed by Jacques Lanoue. (Tr. 178-80.) In July 1979, a separate position was created with the sole responsibility for commitment letters. (Tr. 180.) That position was awarded to Rosemarie Lenz, theretofore DeSoignies’s successor in the individual accounts section of the bank.

In September, 1979, the duties performed by plaintiff were redistributed, and her position eliminated. (Tr. 193, 197, 220-23.) Whereas DeSoignies had performed the administration of loan authorizations manually, now the bulk of the work on loan authorizations was computerized. (Tr. 9, 96, 193-94, 197, 219-20; Plaintiff’s Exh. 53.) What little was left of plaintiff’s duties was redistributed to two individuals: Jacques Lanoue, a fifty-two year old employee already in the department, and John Mazzocchi, the head of the department. (Tr. 220-23.)

Plaintiff was kept on at Credit Lyonnais while a suitable transfer within the branch could be effected. Initially, she was transferred to the Credit Analysis Section of TAD under the immediate supervision of Peter Crawford. (Tr. 154.) It was contemplated that this transfer into the Credit Analysis Section was to be temporary (Tr. 199, 230; Plaintiffs Exh. 52); however, if DeSoignies performed well in this area, she could have remained there (Tr. 229). In this new position, DeSoignies was first assigned to do work on spread sheets, transposing numbers from one document (such as a loan applicant’s financial statements), to another. (Tr. 156.) Her supervisors were not satisfied with her work on spread sheets, noting both her poor attention to detail and her nearly indecipherable handwriting. (Tr. 157, 248-49.) Nonetheless, she was thereafter allowed to do a few credit analyses (an opportunity DeSoignies strongly desired). (Tr. 230.) Credit analysis involves synthesizing and analyzing numbers from the spread sheets to determine the credit-worthiness of a loan applicant in order to determine whether or not to recommend that a loan be made. (Tr. 152.) Once again, her supervisors were not satisfied with the quality of DeSoignies’s work. (Tr. 158, 198.) Her supervisors were particularly dissatisfied with DeSoignies’s attitude and with her unwillingness to accept criticism. (Tr. 171, 188, 198; Plaintiff’s Exh. 7.)

DeSoignies’s annual evaluation at the end of October, 1979, showed that her performance had not improved over the last year. (Plaintiff’s Exh. 8.) Once again, De-Soignies’s work was rated as average. Her supervisors noted that she had difficulty following instructions, that she occasionally displayed a lackadaisical attitude which caused extra work to be distributed to other members of the department, and that she attended to “personal problems” during working hours. (Id.) DeSoignies disagreed with these ratings, and even attempted to erase some of the negative comments contained on the sheet. (Tr. 201-202.) In January, 1980, Credit Lyonnais hired Carol Mason, a thirty year old woman, with one and one-half years experience as a credit analyst to fill a new position as credit analyst in TAD. (Tr. 206-209; Defendant’s Exh. P.) On January 25, 1980, DeSoignies was terminated by Credit Lyonnais. (Tr. 7; Plaintiff’s Exh. 43.)

DISCUSSION

Plaintiff claims that she was terminated, and that she was not placed in at least two other positions for which she was qualified, because of her age. Plaintiff claims that defendants conduct violated her rights under the ADEA. Section 2 of the ADEA provides, in relevant, part, that it “shall be unlawful for an employer ... to discharge any individual ... [or] to limit, segregate, or classify his employees in any which would deprive or tend to deprive any individual of employment opportunities ... because of such individual’s age.” 29 U.S.C. § 623(a)(1) and (2). That section, however, specifically provides that it is not unlawful for an employer to do these things “based on reasonable factors other than age” or “for good cause.” 29 U.S.C. § 623(f)(1) and (3).

The burden of persuasion in this case is on the plaintiff to prove by a preponderance of the evidence that she was the victim of illegal age discrimination. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981); Pena v. Brat tleboro Retreat, 702 F.2d 322, 323 (2d Cir. 1983) (“standards relating to burden and order of proof in Title VII cases apply as well to cases arising under the ADEA”); see also Trans World Airlines, Inc. v. Thurston, — U.S.-, 105 S.Ct. 613, 621, 83 L.Ed.2d 523 (1985); Lorillard v. Pons, 434 U.S. 575, 583-84, 98 S.Ct. 866, 871-72, 55 L.Ed.2d 40 (1978); Nash v. Jacqueline Cochran, Inc., 548 F.Supp. 676, 679 (S.D.N. Y.1982). Although the Court reserved decision on defendant’s motion to dismiss for failure to establish a prima facie case at the close of plaintiff’s case, the question before the Court now (and at the close of trial when it granted defendant’s renewed application for judgment of dismissal) is “the ultimate question of discrimination vel non.” United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 1481, 75 L.Ed.2d 403 (1983). Plaintiff must show by a preponderance of the evidence that age was a “determinative factor” in the decision to discharge her, or to the offer the open positions to someone else. See Hagelthorn v. Kennecott Corp., 710 F.2d 76, 81 (2d Cir.1983); Geller v. Markham, 635 F.2d 1027, 1035 (2d Cir. 1980) (plaintiff not required to show that age was sole factor in employer’s decision), cert. denied, 451 U.S. 945, 101 S.Ct. 2028, 68 L.Ed.2d 332 (1981). The Court finds that plaintiff has not carried her burden.

Defendant articulated a legitimate, nondiseriminatory reason why DeSoignies was discharged, without transfer to either of the two open positions: to wit, her position was eliminated and, because of her background, job performance, and attitude, she was not as qualified for the two other positions as the persons awarded those positions. See Burdine, 450 U.S. at 253, 101 S.Ct. at 1093; McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); see also Hagelthorn, 710 F.2d at 81 (dissatisfaction with employee’s performance and attitude constituted legitimate reasons); Meschino v. International Tel. and Tel. Corp., 563 F.Supp. 1066, 1070 (S.D.N.Y.1983) (elimination of position constituted legitimate reason); Nash, 548 F.Supp. at 679-80 (same).

In light of this, plaintiff can satisfy her burden of proving intentional discrimination “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence,” i.e., that it is a mere pretext for discrimination. Aikens, 103 S.Ct. at 1482 (quoting Burdine, 450 U.S. at 256, 101 S.Ct. at 1095). Plaintiff attempted to do this in three ways: first, by testifying that age was specifically discussed with her on the day of her termination; second, by attempting to show that defendant was conscious of age in the demographics of its workforce; and third, by arguing that she was at least equally qualified for the positions awarded two younger women — Rosemarie Lenz and Carol Mason. These arguments are to no avail.

Plaintiff claims that Jean Claude Goubet, the bank officer who informed her that she was being terminated, discussed with her the impact of termination at her age. Specifically, DeSoignies testified that she asked Goubet “how would you like it if somebody would terminate you if you were 48 years old” and that he replied that it would not happen to him. (Tr. 17.) De-Soignies also testified that she had a conversation with Frances Fisher, the head of the personnel department, on the day she was terminated. During that conversation, Fisher allegedly stated that the bank was “looking for good, young, aggressive people.” (Tr. 18.)

These comments, even if they were indeed made, do not persuade the Court that age was a determinative factor in this case. These are precisely the type of ambiguous comments which allow for two interpretations, only one of which is necessarily discriminatory. See Meschino, 563 F.Supp. 1072. Both comments were apparently made in response to a question posed by DeSoignies (Tr. 17; Defendant’s Exh. O.) Thus, plaintiff instilled age into those conversations. Accordingly, she cannot now argue that an inference of discrimination is appropriately drawn from the fact that age was discussed at the time of her termination. Defendant’s officers, at most, responded to her comments. More significantly, the Court does not find plaintiff’s testimony in this regard to be credible. Her testimony is uncorroborated, despite the fact that other parties to these alleged discussions testified at trial. Mazzocchi, who was allegedly present when Goubet made his comments, testified at trial. Plaintiff did not attempt in any way to have Mazzocchi corroborate her testimony about Goubet’s statements. Moreover, Fisher testified as a witness for plaintiff. She was not even asked about her alleged comments. Given the uncorroborated nature of this testimony, the improbability that it is true, and the general credibility of plaintiff, the Court finds that plaintiff’s testimony that defendant’s officers specifically alluded to age, implying that it was a factor in their decision, is not worthy of credence.

Plaintiff also attempted to establish defendant’s “preoccupation” with age by showing that employees’ dates of birth were listed on many forms, and by showing that defendant included age as a characteristic in its demographic breakdowns of its work force (e.g., Plaintiff’s Exhs. 35-37). Several non-discriminatory inferences can be drawn regarding this awareness of age. Moreover, the plaintiff did not show any instances of use or compilation of this information near to the time of plaintiff’s discharge. It appears that the most recent example of defendant’s “preoccupation” predated plaintiff’s dismissal by some two or three years. (Plaintiff’s Exh. 37.) In any event, the Court does not infer from defendant’s awareness of the age of its employees (generally or specifically) that it used that information in making decisions such as the decision to terminate plaintiff.

Finally, plaintiff attempted to show that she was equally qualified for the positions awarded to Lenz and Mason. Plaintiff failed to establish that she was qualified at all for these positions, let alone that she was as qualified as Lenz and Mason. Furthermore, defendant conclusively established that, in its reasonable estimation, plaintiff was not suitable for either position.

DeSoignies was not suited for the position awarded to Lenz because she lacked such necessary qualifications as good written communication skills (Tr. 237) and attention to detail (Tr. 187, 190-91; Plaintiff’s Exh. 7). Moreover, in this position DeSoignies would have been required to work under the close supervision of Howard Cohen. DeSoignies had refused in the past to work under his supervision and had eschewed even recognizing him as her supervisor.

DeSoignies was given a brief opportunity to prove herself capable of performing the work ultimately assigned to Mason. She failed to do so. To begin with, plaintiff was not adequately trained to be a credit analyst. (Tr. 94.) Her supervisors determined that she would need extensive supervision to overcome that deficient training. (Tr. 161.) Moreover, her work during her brief stint in the Credit Analysis Section was unacceptable to her supervisors. (Tr. 154, 156, 163-64, 177, 181, 206-09, 214.) Finally, plaintiff even admitted that if Mason had prior experience as a credit analyst (which it turns out she did) then her claim that she was equally qualified would be affected. (Tr. 99-100.)

Defendant’s argument that plaintiff’s work was unsatisfactory and that she was not qualified to fill the positions awarded to Lenz and Mason is supported by the evidence. Plaintiff received three consecutive annual reviews (1977-1979) which revealed that her work was satisfactory or worse. (Plaintiff’s Exhs. 5, 7, 8.) Indeed, the department head of TAD testified credibly that DeSoignies ranked “the lowest as far as capabilities and performance were concerned” among all the people he supervised. (Tr. 205.) Accordingly, plaintiff has failed to show that she was qualified for the open positions, or that she was doing satisfactory work. See Kahn v. Pepsi Cola Bottling Group, 547 F.Supp. 736, 739 (E.D.N.Y.1982).

DeSoignies was hired to work for Credit Lyonnais after she was already within the class protected by the ADEA. She was promoted once while she was within that class and was reimbursed for, and encouraged to take, courses designed to improve her skills and prepare her for advancement within the branch. This treatment is hardly the kind expected of an employer who would intentionally discriminate against her based on age. See Stanojev v. Ebasco Servs., Inc., 643 F.2d 914, 921 (2d Cir.1981); EEOC v. Trans World Airlines, Inc., 544 F.Supp. 1187, 1231 (S.D.N.Y.1982).

In short, the Court finds that Credit Lyonnais’s decisions regarding DeSoignies’s employment were not affected at all by considerations of age. Plaintiff did not demonstrate by a preponderance of the evidence that age was a determinative factor in her termination. Accordingly, plaintiff has not satisfied her burden of proving that she was intentionally discriminated against. The Clerk shall enter judgment in favor of the defendant DISMISSING the plaintiffs claim.

SO ORDERED.

      . Plaintiff stated in her application for employment with Credit Lyonnais that she had been born on January 21, 1934. She testified at trial, however, that she had been born in 1932. When asked to explain this inconsistency, plaintiff remarked "maybe I felt I was born in ’34.” (Tr. 103.) She further stated "I felt I was born in 1935 for that matter.” (Id.)

      . Plaintiff stated that some of her functions were distributed to Rosemarie Lenz, a younger woman (35) who had been promoted into the department three months earlier. The credible testimony of Mr. Mazzocchi refutes that contention.

      . Plaintiff had received some training in credit analysis through a course she had taken from Dun & Bradstreet. (Tr. 36.) Indeed, plaintiff had taken several courses to improve her skills for work within the bank — some given within the bank (Tr. 35-36) and some outside the bank for which the bank reimbursed her expenses (Tr. 36-37).

      . Indeed, the Court found plaintiff’s testimony to be generally unworthy of credence. DeSoignies’ testimony to the Court, as well as her representations to her employers (including defendant) on core issues like her age and employment background was marked by tergiversation and mendacity. She refused to justify her false statements regarding her age with any credible explanation (see footnote 1, above); she gave differing pictures of her employment history depending upon who was the listener (see Defendant’s Exhs. D, F, K, L; Plaintiff's Exhs. 45, 47) and how artfully couched was the question (Tr. 61-72); she would not even acknowledge the obvious about her evaluations while at Credit Lyonnais (Tr. 40-42, 44, 46); and she insisted, despite the overwhelming evidence to the contrary, that Howard Cohen was not her supervisor (Tr. 75-76, 185-89, 211-13; Plaintiff’s Exhs. 6-8). These are but examples of the lack of forthrightness that pervaded plaintiff’s testimony. Accordingly, the Court rejects plaintiff's uncorroborated testimony regarding the only arguably direct evidence of discrimination in this case — the statements of defendant’s officers.

      . See generally footnote 4, above.

      . Tr. 75-76, 185-89; 211-13.