author: WINTER, Circuit Judge.

text:
    Elizabeth K. FIORE, Plaintiff, v. TOWN OF HAMDEN, a municipal corporation, Louis Clini, individually and officially as Finance Director of the Town of Hamden, Lucien DiMeo, individually and as Mayor of the Town of Hamden, Defendants.
    Civ. No. N79-186.
    United States District Court, D. Connecticut.
    Nov. 15, 1983.
    Paul S. Sherbacow, Fleischmann, Sherbacow, McWeeny & Cohn, Hartford, Connecticut, for plaintiff Elizabeth K. Fiore.
    Hanon W. Russell, Cantor, Floman, Russell & Johnson, P.C., Orange, Connecticut, for defendant Louis Clini.
    William J. Nulsen, New Haven, Connecticut, for defendant Town of Hamden and defendant Lucien DiMeo.
   MEMORANDUM OF DECISION

WINTER, Circuit Judge.

Elizabeth K. Fiore brought this action against the Town of Hamden, its former mayor Lucien DiMeo, and former Finance Director Louis R. Clini, under 42 U.S.C. § 1983. Ms. Fiore’s complaint alleges that the defendants caused her discharge as the Assistant Director of Finance in the Town of Hamden because she was a “whistle-blower” who exercised her first amendment rights of freedom of speech. She seeks reinstatement and back pay. Trial was to the court.

The essentials of Ms. Fiore’s contentions are as follows. On April 16, 1979, she was informed by Mr. Clini that the proposed budget being submitted to the Hamden Legislative Council would not include funds for her position, and, that if it was approved in that form, she would be out of a job. Plaintiff mobilized her forces with a view to persuading the powers that be in Hamden that the position should not be eliminated. In the course of speaking with several persons in authority and of informing them of the need for a non-partisan civil servant as second in command of the Department of Finance, Ms. Fiore related to members of the Council certain incidents reflecting poorly upon Mr. Clini. Before her position had been reinstated in the budget by the Council, but after she had been assured by council members in a position to know that the position would be reinstated, Ms. Fiore memorialized the incidents in question in an affidavit given to the Council. This was done at the request of council member Phillip Colwell and with the aid of her attorney, The affidavit, which is set out fully in the margin, related several incidents. The

408 first involved a Hamden Town check, number 2439, drawn on a general fund account in the American National Bank. The check was in the amount of $268,976.12 payable to the City of New Haven for 1975-76 sewer charges. Ms. Fiore’s affidavit related that she gave this cheek to Mr. Clini on July 12, 1978, and heard nothing more about it until January 9, 1979. On that day, Mr. Clini gave the check to her and stated that he had forgotten to deliver it to the New Haven City Controller. Ms. Fiore immediately voided the check and made a relevant entry into the general ledger and its index. Subsequently, the affidavit states, the index entry was crossed out by an unknown person and the general ledger entry taken from the looseleaf book. A new entry, dated November 3, 1978, was made in the index to the general ledger. The entry noted that check 2439 had been voided as of January 9, 1979. Ms. Fiore’s affidavit stated that had the amount of the check been invested during the six month period, it would have earned from $10-13,-000 in interest.

The second incident related in her affidavit involved a state grant to the town to develop a computerized personnel profile system. The grant contained funds to hire consultants and Ms. Fiore inquired of Mr. Clini whether she might be paid as such a consultant and have the title of Project Director. Mr. Clini responded in essence that both of them might be paid without doing any actual work through under-the-table kickbacks. Ms. Fiore declined to participate in such a scheme.

The third incident described in the affidavit is alleged to have occurred on April 16, 1979, when Mr. Clini told her that the proposed budget eliminated her position. Ms. Fiore said that Mr. Clini told her, “go quietly and you’ll get a good recommendation.” He further said that troublemakers get a reputation and can’t get good jobs. The Council restored funds for Ms. Fiore’s position, but, upon learning of the affidavit, Mr. Clini discharged her on June 12, 1979. The essentials of the defense case are that almost from the beginning of Mr. Clini’s tenure as Finance Director he was dissatisfied with Ms. Fiore’s job performance, particularly in the area of completing projects in a timely fashion. He testified that he never saw check 2439 until sometime in August when he spotted it on Ms. Fiore’s desk. He stated that she informed him that the check had not been funded, and he instructed her not to fund it until further notice from him. He then took the check and held it as leverage to negotiate downward the amount of the sewer charges and to compel the City of New Haven to pay other money owed the Town of Hamden. Before the sewer charges were actually paid, he gave the check to Ms. Fiore to be destroyed. The defendants also contend that the check had in fact not been funded during the relevant period.

The defense presented additional evidence that Ms. Fiore was quite persistent in seeking extra pay for projects to be done in her spare time, notwithstanding her failure to complete her primary responsibilities, and that there had been no offer of any kickback in connection with the state grant. Mr. Clini also testified that he did not fire Ms. Fiore because of the charges she had leveled against him but because the Council had restored her position.

DISCUSSION

1. The Appropriate Legal Standard

The relevant caselaw holds that the first amendment protection afforded statements by public employees so far as their employment rights are concerned may be limited by the nature of the employee’s job responsibilities. Givhan v. Western Line Consolidated School District, 439 U.S. 410, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979); Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Thus, the expression of views on policy matters made in one’s role as a citizen rather than as a government employee is given substantially greater protection than an attack on fellow employees with whom the speaker is expected to work closely. Janusaitis v. Middlebury Volunteer Fire Department, 607 F.2d 17 (2d Cir.1979). Essentially the cases hold that the degree of legal protection afforded such speech is to be determined only after weighing the nature of the speech’s subject matter, the time, manner and place of the speech, and any operational inefficiencies likely to result from it. Whether a different standard applies to the speech in the other contexts, e.g. a defamation action, see New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), is not at issue.

In the present case Ms. Fiore’s affidavit addressed issues of importance to the Ham-den Legislative Council and the citizens of the town. The disclosure of inefficiency in the handling of public funds and conduct bordering on, if not crossing into, corruption clearly falls within the class of communications near the core of the first amendment. The “go quietly” incident, however, is of considerably less public importance, particularly since Ms. Fiore herself testified that it was intended only as advice against making a fuss rather than as a warning against charging Clini with incompetence or dishonesty. Still, such conduct may demonstrate something about Mr. Clini’s performance as a bureaucrat and might be marginally relevant to the Legislative Council.

Plaintiff argues that the first amendment requires that she be protected in her employment absent a showing that her affidavit was knowingly false. While there is evidence in the record which would justify submitting the issue of knowing falsity to a trier of fact, I do not reach it since it is clear that her speech was not entitled to such broad protection. At best, first amendment protection is available only if the statements in her affidavit were reasonable in light of the objective evidence available to her as Assistant Director of Finance. To the extent that she, given her position, knew or should have known that they were either doubtful or not true, the statements are not protected and her discharge was lawful. Indeed, it may be that the first amendment provides even less protection but I need not determine that in light of my findings of fact infra.

I believe this to be the maximum legal protection to which Ms. Fiore’s affidavit is entitled for two reasons. First, Ms. Fiore was second in command of the Department of Finance, and the efficiency of the Department would obviously be diminished if she was not on workably correct terms with the Director. Such a working relationship cannot be maintained if the Assistant Director may level charges of inefficiency and corruption against his or her superior without a reasonable factual basis, and the Director cannot act to remove the Assistant or otherwise prevent a recurrence. The mutual confidence necessary to operational efficiency cannot exist in such an adversary atmosphere. If anything, the argument that such speech is protected only if actually true rather than just reasonable is more persuasive than plaintiff’s contention. Second, Ms. Fiore’s affidavit was of significance to the Legislative Council and the citizens of Hamden because of her special position. She was not speaking as a member of the general public but as a financial specialist with access to the facts. The Council and public had a right to expect that her charges against Mr. Clini were based on a combination of her skills and a diligent investigation. To the extent the statements were not reasonable in light of the facts available to her, they were not only of no value to the Council or the public but were actually misleading. Such statements are not legally protected speech.

2. Findings and Conclusions

A number of factual issues can be disposed of initially. Mr. Clini became Director of Finance in July, 1978, and his relations with Ms. Fiore thereafter ranged from cool to hostile. Ms. Fiore had sought the position of Finance Director and was recommended for the position by a committee of the Legislative Council of Hamden. Nevertheless, the appointment is made by the Mayor, who named Mr. Clini, even though he, unlike other candidates, had not been interviewed by the Council committee. By August, Mr. Clini had begun a campaign to narrow Ms. Fiore’s responsibility and ultimately to eliminate her from the Department of Finance. Notwithstanding her testimony to the contrary, Ms. Fiore was well aware of Mr. Clini’s coolness toward her. Each of them utilized the memorandum as a method of “papering” the record against an uncertain future. Mr. Clini sent out memoranda indicating his dissatisfaction with the untimely performance of Ms. Fiore’s responsibilities and she responded with memoranda indicating that her lack of authority was causing many of the problems in the office.

Defendants contend that the reason for plaintiff’s discharge was not her conversations with members of the Legislative Council and subsequent affidavit but the fact that the Council restored her position. While I find it to be the case that Mr. Clini had determined as early as August, 1978, to be rid of Ms. Fiore if at all possible and that the proposal to eliminate her position was a thinly disguised maneuver to evade civil service regulations, I find it difficult to credit his testimony that he fired her on June 12, 1979, solely because the Legislative Council had restored her position. While he may sincerely believe that today, the circumstances would have appeared differently in June, 1979. Had the restoration of Ms. Fiore’s position taken place in the absence of her sworn charges against him, I think Mr. Clini would have had second thoughts about summarily dismissing an employee who had just won such a political fight and had civil service remedies available. Rather, the charges leveled by Ms. Fiore as to the check and kickback scheme, but not the “leave quietly” incident, were both the last straw and a golden opportunity for Mr. Clini. These charges made it virtually impossible for him to continue as Finance Director with Ms. Fiore as his immediate subordinate, and inaccuracies in the affidavit provided a cause for discharge which might not otherwise have existed. I find, therefore, that Ms. Fiore’s discharge was the result of her allegations to the Legislative Council concerning check 2439 and the kickback proposal.

I discount the “leave quietly” incident as a cause of discharge because, while not a paradigm of proper bureaucratic conduct, it pales in significance to the other charges and did not contribute to her firing.

I turn now to the issue of the reasonableness of Ms. Fiore’s allegations against Mr. Clini. As to the incident of the check to the City of New Haven, the record thoroughly undermines her version of events. Ms. Fiore’s affidavit states that the check was issued and given to Mr. Clini on July 12, 1978. In fact, it is conceded that Mr. Clini did not become Finance Director until July 17, 1978. This is a major inaccuracy, for it indicates that the authority for issuing and funding the check did not come from Mr. Clini and that Ms. Fiore had the check in her possession for at least some period of time after issuance and before turning it over to Mr. Clini. It also indicates a lack of concern for factual accuracy in preparing the affidavit.

I further find that at the time she signed her affidavit Ms. Fiore knew or should have known that the check was not funded after August 9, 1978. The Department’s cash flow records of the American National account demonstrate that check 2439 was not funded after August 9, 1978 through December 31, 1978. In fact, the account in question showed negative balances and overdrafts on several occasions throughout the period. Whether the check was funded after December 31, 1978 until its voiding nine days later is not clear but is of no significance.

Ms. Fiore testified that she had daily access to these records. Indeed, her handwriting appears on them. The cash flow sheet for August, 1978, has a notation in the left-hand column in Ms. Fiore’s handwriting under August 9 that the check to the City of New Haven for $268,976.12 had not cleared. This notation is in handwriting which differs from most of the notations on the several sheets which make up the exhibit and appears to be somewhat unusual in that it mentions a particular check. No specific check is noted again under January 9,1979, when the amount of the check is deducted next to a note written by Ms. Fiore that she had received it from Clini.

Indeed, the balance in the American National account was much less than the cash flow sheets indicated since, on August 10, the day after Ms. Fiore noted that check 2439 had not cleared, a wire transfer of over $120,000 out of the account was executed but not recorded on the cash flow sheets. I find that Ms. Fiore executed this wire transfer.

The evidence thus supports the defendants’ version of events. Immediately after Ms. Fiore noted on August 9 that check 2439 had not cleared, the American National account never again, except possibly for the brief period in January, had sufficient funds to cover the check. This is squarely consistent with Mr. Clini’s testimony that he first saw the check in August and immediately instructed Ms. Fiore not to fund it. It is inconsistent with her testimony that she was instructed in July to fund the check and that it was in fact funded until January 9, 1979.

Other documents also support thé defendants’ version. Although cash flow statements were kept for the American National account on a timely basis, bank reconciliation analyses were not done by the Department of Finance until long after the fact. Thus, the bank reconciliation statement for October, 1978, was not prepared until April, 1979. That reconciliation statement reflects a positive balance of $74,-264.78 in the American National account. That positive balance was arrived at, however, only because of Ms. Fiore’s handwritten instructions at the bottom of the page, dated April 23, 1979, directing Ralph Mauro, a CETA employee in the Department of Finance, to make certain adjustments. These included crediting the account as of November 1, 1978 with the sum of $268,-976.12 by voiding check 2439 to the City of New Haven. The handwritten entries further instruct Mr. Mauro to make certain debits.

The significance of the October reconciliation statement is twofold. First,-it is indisputable evidence that the changes in the general ledger described in paragraphs 6 through 10 of Ms. Fiore’s affidavit were made pursuant to instructions she herself gave on April 23, 1979. To the extent the affidavit implies that someone changed records after the fact to foreshorten the period in which check 2439 was outstanding, and thereby to reduce the amount of lost interest, Ms. Fiore knew, or should have known, that such an implication was false.

Second, because the October positive balance in the account was arrived at only by her crediting check 2439 to that month, Ms. Fiore knew at the time of her instructions to Mauro that the check was not funded as of October 30, 1978, and that the possible loss of interest was less, perhaps a great deal less, than suggested by her affidavit.

The timing of, and reason for, her instructions to Mauro underscore the fact that she had knowledge of facts at a critical time inconsistent with her affidavit. These instructions, in her handwriting, were written on April 23, 1979. By that date she had been informed that her job might be eliminated, had retained counsel and was busy mobilizing her forces to influence the Legislative Council. Letters to the editor from a friend had appeared in the local paper as had a newspaper story quoting her as charging the Town with sex and age discrimination. The April 23 instructions were written at or near the time, moreover, when she began to relate to members of the Legislative Council the charges she made five weeks later in her affidavit.

Ms. Fiore had good reason at the time to focus upon the lack of funds in the American National account and to alter the records so as to indicate that check 2439 had been voided on November 1, 1978 rather than the actual date of January 9, 1979. Had the check not been credited to that account as of November 1, 1978, rather than January 9, 1979, the reconciliation statement would have shown almost a $200,000 negative balance. One important reason for this large negative balance was the debit resulting from the wire transfer by Ms. Fiore of more than $120,000 out of the account on August 10, 1978. This debit was included in the October, 1978 reconciliation statement, prepared in April, 1979, because the wire transfer had never been recorded in either the ledger or upon the cash flow sheets. Ms. Fiore had reason to fear that such an imbalance, caused in part by her own unrecorded wire transfer; and coming to light at a critical moment in her campaign to save her job, would not help her persuade the Council of the need for her position to protect the public fisc. To eliminate that imbalance, she directed that the records be changed. While there is nothing improper in reconstructing the financial records in this way, her actions at the time clearly establish her knowledge five weeks before she signed the affidavit that check 2439 was not funded as of October 31, 1978. A quick review of the cash flow sheets at this time would have disclosed that it had not been funded since August 9.

Contemporaneous documents to which Ms. Fiore had access, as shown by her testimony and handwritten notations, thus fatally undermine her allegations as to check 2439. I find as a fact that when she signed the affidavit she either knew or should have known that (i) Mr. Clini had instructed her not to fund check 2439 when he first learned of it in early August, 1978, and (ii) the check was not in fact funded after August 9, through December 31, 1978.

No such compelling documentary evidence exists concerning the allegations of a proposed kickback, but it is difficult to credit one part of a story when the remainder has been so thoroughly undermined. Part of her original account of the affair, moreover, borders on the bizarre. Paragraph 16 of the affidavit states that in the middle of May, 1979, at the very time Mr. Clini was openly trying to eliminate her position and she was telling her tale of the kickback offer to members of the Legislative Council, Ms. Fiore went to Clini and again asked whether she could be project director on the grant. No ready explanation for this proposal was given by plaintiff at trial. In any event, I find that Mr. Clini had resolved to rid himself of Ms. Fiore at least as early as August, 1978, and that it is implausible that he would suggest to her somewhat later that she join him in what might be a criminal, and certainly was an improper, scheme. Such conduct is not consistent with the record. Finally, her failure to report this event to the Mayor at the time weighs against her version. Whether Ms. Fiore negligently misunderstood a remark by Mr. Clini, imagined the conversation or fabricated it, I need not and do not reach.

So far as the advice that she should go quietly is concerned, I find as a fact that disclosure of that conversation did not contribute to her discharge and, therefore, I need not find whether it in fact occurred.

Since Ms. Fiore knew or should have known when she signed the affidavit that the allegations which ultimately caused her discharge were untrue, that discharge was not in violation of her first amendment rights.

This opinion shall serve as my findings and conclusions under Rule 52, FED.R. CIV.P. Judgment should be entered for all defendants.

SO ORDERED.

      The Honorable Ralph K. Winter, United States Circuit Judge for the Second Circuit, sitting by designation.

      . AFFIDAVIT
      STATE OF CONNECTICUT
      COUNTY OF NEW HAVEN
      ss at New Haven, May 29, 1979 I, ELIZABETH FIORE, being first duly sworn depose and say:
      1. I am over the age of eighteen (18) years and know and believe in the obligation of an oath.
      2. This affidavit is made in response to request from members of the Hamden Legislative Council that I provide further information about the operations of the Finance Department during the past year.
      3. On July 12, 1978,1 caused a check No. 2439 (American National Bank) to be drawn on a Hamden General Fund Account in the amount of $268,976.12 payable to the City of New Haven for 1975-6 sewer charges. A copy of the check is attached.
      4. I gave check 2439 to Louis Clini on July 12, 1978; Mr. Clini was planning to attend a meeting which New Haven Controller Kennedy Mitchell would also appear: I understood that the check would be personally delivered at the meeting. I did not see or hear about the check again until January 9, 1979.
      5. On January 9, 1979 Mr. Clini told me that he had not transmitted check 2439. He pulled it out of the top left drawer of his desk and gave it to me. I expressed surprise. Mr. Clini said that Mitchell had not been at the meeting and he (Clini) had forgotten about it.
      6. Later on January 9, 1979 I made a Journal entry, No. 79-128, voiding check # 2439. A copy of the relevant page of the Index to the Journal is attached to this Affidavit. After my entry, the Index entry was crossed out. I did not cross it out.
      7. In the January 9, 1979 General Ledger Entry No. 79-128 I stated, "Mr. Clini gave this check to Mrs. Fiore January 9, 1979”. That is an exact quote to the best of my knowledge and belief. I saw the entry after it was typed and believe that I signed it as is generally my practice.
      8. I saw General Ledger Entry No. 79-128 about May 4, 1979 though I am not certain of the date. Mary Brassil, account clerk in charge of revenues, brought it to me on that occasion at my request.
      9. General Ledger Entries are kept in a permanent loose-leaf book. No. 79-128 is no longer in the book. There is no entry 79-128 in the book as of May 25, 1979.
      10. The Index to the General Ledger contains an entry dated November 3, 1978, noting a voiding of check 2439; it states the voiding occurred January 9, 1979. A copy of this Index and another General Ledger Entry are attached to this Affidavit.
      11. I calculate that the money which could have been earned on the $268,976.12 during the almost six months is at least $10,711.88 and probably $12,894.93 if the money had been invested.
      12. In the summer and fall of 1978 I prepared an application for the Town of Hamden to the Office of Policy and Management for a small grant to develop a computerized personnel profile system. This was to be a pilot project. The grant contained an amount to pay consultants.
      13. I inquired of Reginald DeConti of OPM whether I could be a consultant under the grant. He replied that so far as OPM was concerned I could, if the work I did was in addition to my other duties for the town.
      14. On September 22, 1978, I spoke to Louis Clini about working on the project and being paid as a consultant under the grant. Clini said not to be foolish, we should "give it all to a couple of fellows I know up the road. They’ll do all the work. You and I will serve as consultants and they will pay us with checks from another company". This is a direct quote to the best of my knowledge and belief.
      15. I declined this offer and told Mr. Clini that I would only accept payment by the Town of Hamden and for services rendered.
      16. The grant contract has recently been approved. Within the past two weeks I spoke to Mr. Clini again, about it, asking him whether I would be the project director on it. He said "no, I’ve decided to give it all to the fellows who sold us the computer”.
      17. On April 16, 1979 Louis Clini told me he had decided to cut my position from the budget. At that meeting, he said to me: "Go quietly and you’ll get a good recommendation”. He also said that "troublemakers" get a reputation and can’t get good jobs, and that he had gone over the situation very carefully and I couldn’t fight it.
      18. During the same conversation, Mr. Clini told me that Ralph Mauro would take my place. I told him that Ralph couldn’t do my job and therefore his replacing me wouldn’t be good for the town. Mr. Clini’s response was: “I know that but this is the way I want it” (emphasis in his voice).
      /s/__
      ELIZABETH FIORE
      Sworn to and subscribed this-day of May, 1979.
      Notary Public
      Commissioner of the Superior Court


source: Caselaw Access Project

author: NEESE, Senior District Judge,

license: Public Domain

text:
    Kenneth TATE, Petitioner, v. Gary LIVESAY, etc., et al., Respondents.
    United States District Court, M.D. Tennessee, Nashville Division.
    Civ. A. No. 3:84-0376.
    April 17, 1984.
    On Motion for Rehearing May 14, 1984.

      Kenneth Tate, pro se.
    William M. Leech, Jr., Atty. Gen., Nashville, Tenn., for respondents.
   MEMORANDUM OPINION, ORDER AND CERTIFICATES

NEESE, Senior District Judge,

Sitting by Designation and Assignment.

This is a pro se application by a state prisoner, Mr. Kenneth Tate, for the federal writ of habeas corpus. He claims he is in the custody of the respondent-warden pursuant to the judgment of March 9, 1984 of the Circuit Court of Franklin County, Tennessee in violation of the federal Constitution, 28 U.S.C. § 2254(a), because of the “ * * * [djenial of the right to appeal” his conviction.

Upon examination of such application on preliminary consideration, it appears plainly from the face of such petition that the petitioner is entitled to no relief in this Court. Rule 4, 28 U.S.C. fob § 2254. A state-prisoner “ * * * has no federal constitutional right to appeal * * * ” his conviction in a state court. Cleaver v. Bordenkircher, 634 F.2d 1010, 1011[1] (6th Cir.1980), cert. den. sub nom. Sowders v. Cleaver, 451 U.S. 1008, 101 S.Ct. 2345, 68 L.Ed.2d 861 (1981), citing Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 2088[1], 52 L.Ed.2d 651 (1977) (“[I]t is well settled that there is no constitutional right to an appeal. McKane v. Durston, 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 87 (1894).”)

* * * A federal * * * writ of habeas corpus * * * reaches only convictions obtained in violation of some provision of the United States Constitution. * * * ” Smith v. Phillips, 455 U.S. 209, 221, 102 S.Ct. 940, 948[6], 71 L.Ed.2d 78 (1982). The applicant, being entitled to no relief herein, it hereby is

ORDERED:

1. that the petition herein is DISMISSED summarily, Rule 4, supra;

2. the petitioner will be so notified forthwith by the clerk, id.; and

3. the clerk will serve forthwith by certified mail a copy of the petition herein and of this order on the respondent-warden and the attorney general and reporter of the state of Tennessee, each, id.

Should the petitioner give timely notice of an appeal from the judgment to be entered herein, Rule 58(1), F.R.Civ.P., it hereby is CERTIFIED by the undersigned that such appeal could not be taken in good faith 28 U.S.C. § 1915(a), for the reason that this Court lacks clearly jurisdiction of the subject-matter hereof, id.; Rule 24(a), F.R.App.P. Any such notice shall be treated also as an application for a certificate of probable cause, Rule 22(b), F.R.App.P., which shall NOT issue because the petitioner made no substantial showing of a denial of his federal right. See Barefoot v. Estelle, 463 U.S. 880, 891-894, 103 S.Ct. 3383, 3393-3394[10, 11], 77 L.Ed.2d 1090 (1983).

ON MOTION FOR REHEARING

The petitioner moved the Court on May 4, 1984 “to rehear” its order herein of April 17, 1984, dismissing his application for the federal writ of habeas corpus. Such motion hereby is

DENIED, because:

(1) The Constitution does not require that an indigent-defendant be provided a free transcript for use in attacking his conviction collaterally where, as here, such a transcript was available on direct appeal. United States v. MacCollom, 426 U.S. 317, 325-326, 96 S.Ct. 2086, 2092[8], 48 L.Ed.2d 666 (1976) (plurality opinion), cited in Johnson v. Hubbard, 698 F.2d 286, 289, n. 1 (6th Cir.1983), cert. den. — U.S.-, 104 S.Ct. 282, 78 L.Ed.2d 260 (1983), for the proposition that due process does not require a free-transcript on appeal for an indigent-plaintiff in a habeas corpus action.

(2) An indigent-prisoner is not entitled to a free-transcript merely for the purpose of searching it for grounds for a possible application for post-conviction or habeas corpus relief. Bentley v. United States, 431 F.2d 250, 254[3] (6th Cir.1970), cert. den. 401 U.S. 920, 91 S.Ct. 907, 27 L.Ed.2d 823 (1971); Lucas v. United States, 423 F.2d 683, 684-685 [5] (6th Cir.1970); Ellis v. State of Maine, 448 F.2d 1325, 1327[3] (1st Cir.1971).

       The Court deems such motion as arising under Rule 60(b), F.R.Civ.P., since it was not served within the 10-day period established by Rules 52(b), 59(e), F.R.Civ.P. See Browder v. Director, Dept. of Corrections of III., 434 U.S. 257, 261-263, 98 S.Ct. 556, 559-560 n. 5 & n. 7, 54 L.Ed.2d 521 (1978).


author: KEEP, District Judge.

text:
    Del JONES, Plaintiff, v. THE VESSEL NAIR, her engines, appurtenances, apparel, tackle and furniture; and Ignacio Gavaldon Guajardo, individually, and Pesquera Nair, S.A. de C.V., Defendants.
    Civ. No. 83-0830-K(I).
    United States District Court, S.D. California.
    April 27, 1984.

      Peter R. Thompson, Thompson & Thompson, San Diego, Cal., for plaintiff.
    Robert G. Dyer, Dyer, Brewer & Walton, San Diego, Cal., for defendants.

       This opinion, previously published at 586 F.Supp. 507, is republished to reflect corrections made in the appearances of counsel.

   MEMORANDUM DECISION AND ORDER

KEEP, District Judge.

Plaintiff, DEL JONES, alleges to have suffered personal injuries aboard the tuna purse seiner NAIR on April 19, 1982. He has filed a Complaint alleging as grounds for this action the Jones Act, 46 U.S.C. § 688, and the General Maritime Law of the United States.

The defendants, IGNACIO GAVALDON GUAJARDO (“Gavaldon”) and PESQUERA NAIR, S.A. de C.V., (Pesquera) move for an Order dismissing the action for failure to state a claim on which relief may be granted and on grounds that the Southern District of California is an inconvenient forum, as is any Court within the United States, to adjudicate the action. Because there have been a deposition transcript of Gavaldon and affidavits filed herein, the Motion will be treated as one for summary judgment under Federal Rule of Civil Procedure 56.

The submissions- of the parties establish that the vessel NAIR is owned by Pesquera which is a corporation organized and formed under the laws of Mexico in December, 1980. Pesquera has five shareholders, all of whom are citizens of Mexico. All the shareholders are also legal residents of Mexico. The majority shareholder, the defendant, Gavaldon, and his wife reside in Bonita, California, for temporary yet regular intervals. Neither has authorization to reside permanently in the United States.

The corporation’s office is in Ensenada, Mexico, and is run by three Mexican employees. The vessel NAIR is a tuna purse seiner. Pesquera derives no income from the sale of fish to the United States. Although the vessel has called at San Diego at infrequent intervals for repairs, the corporation does not derive income from those visits. The ship flies the Mexican flag and is precluded from offloading its fish in the United States. Furthermore, the vessel is licensed to fish by the Government of Mexico and is authorized to fish only in Mexican or international waters.

The corporation is not qualified to do business in California or the United States. Neither the corporation nor the defendant Gavaldon pay any California or federal income tax in the United States. Both defendants do pay taxes in Mexico. The defendant’s insurance policy excludes injury or illness claims for crew members on the NAIR, since these are covered by the Mexican Social Security system.

Plaintiff claims to have been injured on or about April 19, 1982, while working aboard the vessel NAIR. At that time, 17 of the 20 crew members were citizens of Mexico. The remaining three, including the plaintiff, were citizens of the United States.

Plaintiff began working aboard the vessel in August, 1980, as a helicopter mechanic. He joined the ship in Panama and signed an employment contract, in Spanish, in Panama at the time he began working on the vessel. However, negotiations for the contract were concluded in California prior to that time. The first trip ended in December of 1981 in Mazatlan, Mexico. Plaintiffs next trip began in January of 1982 in La Paz, Mexico. He again signed an employment contract in Mexico. The alleged accident occurred on April 19, 1982, while the vessel was on the high seas off the coast of Mexico.

The alleged injury occurred when the vessel was making a set on tuna. According to standard practice, plaintiff was using a metal tube-like launcher to launch firecrackers into the water to prevent the fish from swimming out of the net before it could be fully closed.

While using the device, plaintiff claims that one of the firecrackers exploded prematurely, lacerating the heel of his left hand. Plaintiff did not leave the vessel until the trip ended in Mazatlan, Mexico. Plaintiff returned to the vessel in August of 1983 when it was ready to take its next trip. He did not lose any time from work, as the vessel was in port for approximately two months. Plaintiff voluntarily quit the boat shortly before the trip of August of 1983 was to begin for reasons unrelated to his injury.

The issue is whether plaintiff has a cause of action under the Jones Act and under the General Maritime Law. Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953), establishes several choice-of-law criteria applicable to Jones Act cases. Those principles have been declared equally applicable to cases arising under the General Maritime Law. Romero v. Internatl. Terminal Operating Co., 358 U.S. 354, 381-82, 79 S.Ct. 468, 485, 3 L.Ed.2d 368, 388 (1959). Hellenic Lines, Ltd. v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970), elaborated on those principles.

The choice-of-law principles established by Lauritzen, Romero and Hellenic are: (1) The place of the wrongful act; (2) the law of the flag; (3) the allegiance of domicile of the injured person, (4) the allegiance of the defendant shipowner; (5) place of contract; (6) inaccessability of a foreign forum; (7) law of the forum and (8) the base of operations of the defendant.

Phillips v. Amoco Trinidad Oil Co., 632 F.2d 82, 85 (9th Cir.1980), interpreting the Lauritzen standards stressed that, in general, the law of the flag is more important than most of the other factors, and at the other end of a sliding scale of importance were inaccessibility of the forum and law of the forum. The test is not a mechanical one, according to Rhoditis, and depending on the facts of the case, some factors have been given a greater degree of consideration than others. Phillips, supra, at 85.

The cases show that the mere fact that there is some sort of American interest that will be furthered if the suit is retained in the United States is not enough to retain the lawsuit. When the links to the United States are weak and the interests of another sovereign are substantial, the Jones Act is not applicable. Phillips, supra, at 86. Chirinos de Alvarez v. Creole Petroleum Corp., 613 F.2d 1240, 1246 (3d Cir.1980).

Rhoditis introduced the base of operations test and reiterated that the list of seven factors in Lauritzen is not intended to be exhaustive. Both sides agree that the eight criteria of Lauritzen and Rhoditis are the applicable standard. Plaintiff and defendants disagree, however, on the result of their application in the case at bar. The Court is cognizant that some of the issues before it were decided by Judge Nielsen in Bilyk v. Pesquera Nair, S.A. de C.V., et al., at 83-800-N. Although the incidents alleged were different, the facts in the Bilyk case with respect to vessel ownership and other Lauritzen criteria were very similar to those herein. Judge Nielsen dismissed the ease on grounds the plaintiff was unable to state a cause of action under the Jones Act or the General Maritime Law. Application of the Lauritzen and Rhoditis factors compels the same result in this case.

PLACE OF THE WRONGFUL ACT

The injury is alleged to have occurred on the high seas. Therefore, the place of the act is not favorable to either party.

LAW OF THE FLAG

The vessel flew the Mexican flag, it is owned entirely and exclusively by a Mexican corporation whose stockholders are Mexican citizens. Plaintiff claims that contrary to Lauritzen this factor should not be given heavy consideration, citing Phillips. The reason that the law of the flag, however, has traditionally carried great weight is that there must be some consistent law on shipboard, because it cannot change at every port or every time a vessel enters into another country’s territorial waters. Hence, according to Lauritzen, experience shows no better rule than that of applying the law of the sovereignty that licenses and regulates the ship.

In Phillips, the Court applied the law of Trinidad though the vessel flew the American flag. The vessel involved, however, was a drilling vessel whose operations were at a fixed location. The Court felt the Lauritzen rationale with respect to the flag did not apply in Phillips because the vessel operated at a fixed location. Therefore, in Phillips, the Court placed greater weight on the place of the wrongful act. Phillips, however, does not stand for a de-emphasis of the law of the flag in the case before this Court. The vessel NAIR did not operate at a fixed location; it was a tuna vessel, it was fishing in international waters, and therefore, the rationale of Lauritzen with respect to the law of the flag applies in this particular case and favors the application of Mexican law.

ALLEGIANCE OF THE INJURED CREW MEMBER

Plaintiff is a United States citizen. Plaintiff claims that this factor should weigh most heavily. However, Rhoditis and Phillips clearly establish that in the Ninth Circuit, citizenship is but one of the factors that should be considered. It received greater emphasis in Phillips because the accident took place in the territorial waters of Trinidad and the seamen were Trinidadian nationals whose employment never took them beyond its territorial boundaries. Those factors are absent herein. Plaintiff’s employment was clearly outside the territorial waters, as well as the boundaries of the United States.

ALLEGIANCE OF THE SHIPOWNER

Both Pesquera and Gavaldon owe their allegiance to Mexico. Pesquera is a Mexican corporation organized and existing under the laws of Mexico, it pays Mexican taxes, having its principal place of business and only office in Mexico; it conducts its operations out of Ensenada, Mexico. It is owned by Mexican citizens and does not derive any income from anything other than its Mexican fishing operations. Defendant, Gavaldon, is a citizen of Mexico, pays Mexican taxes, and is not a permanent resident alien of the United States.

Plaintiff claims that it is not clear that defendant’s allegiance is wholly to Mexico. Plaintiff claims that because defendant continues to reside in the United States, he owes significant allegiance to this country. He further claims that the corporation has made a conscious decision to seek out and rely on American labor, products and technicians.

There is no evidence to support these statements, however. There is no adequate support for these assertions in the defendant’s deposition or the affidavits before the Court. While there are some facts that indicate that defendants rely on American labor to some extent because they have their ship repaired in the United States, the facts do not show that defendants significantly rely on American labor, products and technicians.

THE PLACE OF CONTRACT

Plaintiff negotiated his first contract in California but it was signed in Panama. The contract which covered the trip on which the plaintiff was injured was signed in Mexico. In Lauritzen, the Court stated that the place of such contracts is fortuitous as a ship takes on crew in any port where it may be found. Lauritzen said the practical effect of making the lex loci contractus govern all tort claims during the service would be to subject a ship to a multiple system of law, to put some of the crew in a more advantageous position than others, and not unlikely in the long run, to diminish hirings in ports of countries that take better care of their seamen.

The Court concludes, therefore, that the place of contract is not a substantial influence on the choice-of-law question. This is especially true where the place contracting is somewhat unclear, as it is here, where negotiations for the first employment contract were in California but the two contracts were signed in Panama and Mexico.

Plaintiff claims that Lauritzen should not apply here because the custom, pattern and habit of defendants was to negotiate and enter into contracts with skilled American technicians in the United States. Again, this statement is not substantiated. The fact that there were only three crew members who were United States citizens at the time of the alleged injury weighs against the argument of plaintiff.

INACCESSIBILITY OF FOREIGN FORUM

Plaintiff claims Mexico is an inaccessible forum because plaintiff reads no Spanish and would have to leave this country and assert his claim in a foreign language and under a foreign law. However, plaintiff signed a contract in Mexico with a Mexican employer and worked on a vessel off the coast of Mexico. Mexico provides a compensation system for crew members on Mexican ships that are injured or become ill. Looking at these factors, Mexico does not appear to be inaccessible.

BASE OF OPERATIONS

The base of operations clearly appears to be Mexico. The only office of the corporation is in Ensenada, Mexico. The corporation only has an account in the United States to purchase hardware. It is not an operating account. All of the vessel NAIR’S operations appear to be monitored, supervised, recorded and carried out by its office in Ensenada, Mexico. In addition, fish caught are unloaded exclusively in Mexico.

Plaintiff claims that the Ensenada, Mexico, office is a shell and that the business is run by defendant, Gavaldon, from his Bonita, California, residence. The evidence before the Court, though, does not support that conclusion. There is evidence defendant, Gavaldon, lives there sometimes and that he has a radio so that he can be in contact with his boat. But that does not indicate the Ensenada, Mexico, office is a shell and that the business is truly run by defendant from California..

Defendant admits in his deposition that he has a job title, “administrador único” with the corporation that involves conducting the company, every aspect of it. However, plaintiff errs in stating that defendant’s wife is the accountant. Page four of his deposition states that a Mexican employee, Eva, is the accountant and works in the Ensenada, Mexico, office. Plaintiff also claims that at the time of the deposition, the captain and all the technicians were Americans and that this is proof defendant’s base of operation in the United States. Plaintiff fails to state that these men amounted to only three crew members in a crew of 20.

In Phillips, the Court focused on the base of operations of the relevant business venture rather than on the corporate ownership. The Court weighed the connecting factors between the shipping transaction regulated and the national interests served by the assertion of authority. Under Phil lips, it is apparent that the base of operations in this ease is Mexico. Day-to-day operations were conducted in Mexico. The vessel begins and ends its trips in Mexico. It is authorized only to unload in Mexico, a significant factor when one talks about a tuna vessel whose sole function is to find, capture and unload fish. Obviously, the overall transaction is closely related to Mexico.

In Phillips, the Court referred to a case that involved an American corporate defendant that controlled the finances, hiring, making of contracts, purchase of supplies and replacement parts, and a vessel flying the American flag. The Court found that “matters concerning ownership of the vessel and corporate relationships are intangible to the point of being ephemeral in the face of the tangible operating factors,” showing that the overall transaction was more closely related to Great Britain. Phillips, supra, at 88, quoting from House v. Santa Fe Internatl. Corp., 1978 A.M.C. 1904, 1905 (S.D.Tex.1978).

LAW OF THE FORUM

Because defendants were served while temporarily in port in the United States, does not mean that the law of the United States should be applied and both sides agree to that. The Courts have seemed to use this last factor as a summary of the others. After appropriately weighing each factor, it does not seem that the points of contact in this transaction between the two nations show that the interests of the United States are as strong, much less stronger, than the interests of Mexico. The only factor that appears to weigh in favor of the application of United States law is plaintiff’s American citizenship.

The Lauritzen and Rhoditis criteria appear to be an attempt by the United States Supreme Court to fashion a method of analyzing the foreseeability that the law of a given nation would be applied in a lawsuit. In this case, it was clearly foreseeable to plaintiff and anyone else on the vessel NAIR that Mexican law would be applied.

This was a tuna vessel that operated out of Mexico. It could only unload its cargo in Mexico. It could not unload its cargo in the United States. Its contracts are in Spanish. It had a predominantly Mexican crew. It was owned by a Mexican corporation. For these reasons and those discussed above, it would be foreseeable that if there were an injury such as this, it would be governed by the laws of Mexico, which govern and regulate the actions of the corporate defendant, its vessel the NAIR, and the individual defendant, its subject.

The Court, therefore, grants the defendants’ Motion for Summary Judgment for failure to state a claim upon which relief may be granted and for inconvenient forum.


author: ROBERT H. HALL, District Judge.

text:
    Stephen CAPPS, Plaintiff, v. SOUTHEAST PACKAGING CORPORATION, Defendant.
    Civ. A. No. C83-1168A.
    United States District Court, N.D. Georgia, Atlanta Division.
    June 12, 1984.

      Virginia B. Garrett, Douglasville, Ga., for plaintiff.
    Daniel S. Bowling, III, Smith, Currie & Hancock, Atlanta, Ga., for defendant.

       This opinion, previously published at 600 F.Supp. 11, is republished to reflect corrections made in the appearances of counsel.

   ORDER

ROBERT H. HALL, District Judge.

This action for alleged employment discrimination is presently before the court on defendant’s motion for summary judgment. Plaintiff brought suit under 42 U.S.C. § 1981, thereby invoking this court’s jurisdiction. For the reasons stated herein, the court GRANTS defendant’s motion.

FACTS

Plaintiff, a white male, alleges that he has been the victim of reverse racial discrimination. According to plaintiff, Vilma Bradshaw, a black supervisor employed by defendant cursed at plaintiff for failing to fix a fan. Plaintiff admits that he responded with cursing and that he never fixed the fan. Plaintiff contends that the black supervisor received no discipline but that he was fired. Defendant has now moved for summary judgment contending that plaintiff was discharged solely for his insubordination and that race was not a factor. Further facts will be disclosed as necessary for the discussion of this motion. DISCUSSION

The law establishing the various burdens of proof borne by the parties to a so-called “disparate treatment” action such as the one at bar was set forth by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Although McDonnell Douglas involved a suit under Title VII, the standards enunciated in that case are applicable to actions brought under 42 U.S.C. § 1981. Crawford v. Western Elec. Co. Inc., 614 F.2d 1300 (5th Cir.1980).

In McDonnell Douglas the Supreme Court held that the plaintiff bears the initial burden of establishing a prima facie case of discrimination. Id., 411 U.S. at 802, 93 S.Ct. at 1824. If plaintiff establishes this prima facie case, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for its actions. Id. Once the employer has articulated such a reason, the burden then shifts to plaintiff to demonstrate that the reason proffered is a pretext for discrimination. Id. at 804, 93 S.Ct. at 1825. The ultimate burden of persuasion remains with plaintiff throughout these various shifts in the burden of going forward. These principles have been reiterated by the Court in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Board of Trustees v. Sweeney, 439 U.S. 24, 99 S.Ct. 295, 58 L.Ed.2d 216 (1978); and Furnco Constr. Corp. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978).

Defendant argues that in the instant case plaintiff cannot sustain the necessary burdens as set out in the above-cited cases. In deciding the case this court will consider each step in the three part analysis separately.

A. Plaintiffs Prima Facie Case

In addition to clarifying the allocation of the burden of proof in an employment discrimination ease, McDonnell Douglas set forth a formula for establishing a prima facie case. This formula is not an absolute, however, and has been altered to fit the facts of particular cases. With respect to cases involving discharge for violation of work rules, the plaintiff must establish that he was a member of a protected group and then make a showing of some evidence to demonstrate either that he did not violate the rule or that, if he did, black employees who engaged in similar acts were not punished similarly. Brown v. A. J. Gerrard Mfg. Co., 643 F.2d 273 (5th Cir.1981); Harris v. Plastics Mfg. Co., 617 F.2d 438 (5th Cir.1980).

In the present case plaintiff has simply failed to introduce any evidence which would lead to any inference of racial discrimination. In plaintiffs deposition (introduced by defendant as an attachment to its motion for summary judgment) he admits that he cussed at Ms. Bradshaw (Plaintiffs Depo., p. 22), and that he was informed by the company vice-president, Tom Van Sant, that cursing a supervisor constituted insubordination under the company policies and warranted his termination. (Plaintiffs Depo., p. 19-24). In fact, in his deposition plaintiff alleges that the company discriminates against blacks (Plaintiffs Depo., p. 15-16).

Indeed, plaintiff contends that his termination was prompted by an alleged personality conflict with Mr. Van Sant, who the court notes is a white male:

A: ... Tom wanted to give me the ax and get me out of there____ (Plaintiffs Depo., p. 23).
Q: It (the termination) was really due to an unsatisfactory working relationship with the vice-president, Tom Van Sant?
A: Yes sir. It was obvious he didn’t like me, even at the unemployment hearing. (Plaintiff’s Depo., pp. 37, 38).

Mr. Van Sant, when deposed in this matter, stated unequivocally that race was not a factor in plaintiff’s discharge. (Van Sant Depo., p. 22). This evidence is uncontroverted by plaintiff. According to plaintiff, Mr. Van Sant was “out to get” plaintiff and plaintiff “wondered” in his deposition “if they didn’t set Vilma (Ms. Bradshaw)'up to cuss me to see if I’d cuss her back to get fired.” (Plaintiff’s Depo., p. 36). Whether a white male did in fact set plaintiff up to be fired is not an issue in this case. However unfair that may have been, it does not, and cannot, constitute racial discrimination.

Moreover, plaintiff has failed to introduce any evidence that black employees have received favorable treatment under similar situations. Brown, supra. Nowhere has he offered evidence that in the past management officials have had knowledge that a black hourly employee cursed a supervisor and refused to perform a work assignment, but refused to terminate the employee. In fact, plaintiff admits that blacks have been fired for the same infraction.

Q: Black people, do they get in trouble for cussing supervisors?
A: Yes, sir.
Q: Do you know of any examples where a Black person would have gotten fired for cussing a supervisor?
A: Yes sir. (Plaintiff’s Depo., p. 40). In addition, defendant has introduced the affidavit of Plant Manager Harold Self. He states unequivocally that no black employee has been allowed to commit actions such as those of the plaintiff and avoid termination.

In light of plaintiff’s own testimony and the uncontroverted evidence of defendant’s witnesses, the court holds that plaintiff has failed to make out a prima facie case of racial discrimination. Plaintiff’s grievance seems to be that he was treated unfairly, that he was justified in cursing at his supervisor, that discharge was too harsh a remedy under the circumstances, and that his discharge was prompted more by Mr. Van Sant’s alleged personal dislike for him than by the incident in question. Assuming the truth of all of these allegations there is still no evidence that plaintiff has been the victim of racial discrimination in violation of § 1981.

B. Defendant’s Reason and Pretext

Even if the court could find that plaintiff had established a prima facie case of racial discrimination, defendant’s motion for summary judgment would not necessarily be defeated. Defendant has certainly articulated a legitimate, non-discriminatory reason for the termination. According to defendant the sole reason for the plaintiff’s termination was the fact that plaintiff admittedly cursed his supervisor. At this point plaintiff would have the opportunity to prove that this reason was merely a pretext for racial discrimination. McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825. It is uncontradicted that the plaintiff did commit the actions for which the defendant states it terminated him and that those actions did constitute grounds for his discharge. Plaintiff has simply failed to introduce any evidence to suggest that the proferred reason is pretextual.

CONCLUSION

The plaintiff in this case has failed to allege a prima facie case of racial discrimination. Even if such had been alleged, however, defendant’s motion for summary judgment would be granted because plaintiff failed to introduce any evidence that the reason given by defendant for plaintiff’s termination was a pretext for discrimination. As stated by the Eleventh Circuit:

(T)he plaintiff, when faced with a motion for summary judgment, cannot rely on attenuated possibilities that (the finder of fact) would infer a discriminatory motive, but rather must come forward with sufficient evidence to establish a prima facie case and respond sufficiently to any rebuttal by the defendant to create a genuine issue of material fact.

Pace v. Southern Ry. System, 701 F.2d 1383, 1391 (11th Cir.1983). Plaintiff’s response to defendant’s motion for summary judgment was wholly inadequate, plaintiff presented no facts or arguments in support of its case and, therefore, the court can only conclude that none exist.

Defendant’s motion for summary judgment is GRANTED, thereby terminating this case.

      . In his response to defendant's statement of Material Facts Not in Dispute plaintiff admits that he was a non-supervisory employee and that Ms. Bradshaw was a supervisor.

      . Fifth Circuit cases decided prior to October 1, 1981, have been adopted as binding precedent by the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981).

      . Plaintiff admits that the articulated reason for his discharge was the fact that "it’s company policy to terminate somebody’s employment for cussing a supervisor.” (Plaintiff’s Depo., p. 27).

      . White people are protected from racial discrimination by 42 U.S.C. § 1981. McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976).

      . Pace was an age discrimination case. However, the same standards of proof applicable in cases alleging age discrimination are applicable in § 1981 lawsuits. Williams v. General Motors Corp., 656 F.2d 120 (5th Cir.1981).


author: H. FRANKLIN WATERS, Chief Judge.

text:
    Tony STERMETZ, Plaintiff, v. Judge W.R. HARPER and Sebastian County, Arkansas, Defendants.
    Civ. No. 84-2100.
    United States District Court, W.D. Arkansas, Fort Smith Division.
    June 28, 1984.
    On Reconsideration July 23, 1985.

      Gregory T. Karber, Pryor, Robinson & Barry, Fort Smith, Ark., for plaintiff.
    David P. Saxon, Deputy Pros. Atty., Fort Smith, Ark., for defendants.
   MEMORANDUM OPINION

H. FRANKLIN WATERS, Chief Judge.

Plaintiff, a former employee of Sebastian County, Arkansas, filed this suit pursuant to the provisions of 42 U.S.C. § 1983, alleging that certain of his constitutional rights were violated by the County’s termination of his employment.

Specifically, it is alleged that on April 5, 1983, the plaintiff was informed by County Judge W.R. Harper that his employment with Sebastian County was terminated effective that date. At that time, plaintiff was presented by Judge Harper with a document entitled “Notice of Termination” attached as Exhibit A to the complaint. The notice provides:

Violation of Code of Ethics, Article II, Sections A and B. Violation of Article VII, section C-q. Dishonesty. Conduct under the above sections specifically apply to dishonesty in the fraudulent filing of insurance claim under the County’s group plan in filing of medical bills not related to personal expenditures for medical expenses incurred.

The next day, plaintiff after having conferred with Attorney Douglas W. Parker, presented to Judge Harper an affidavit which was attached as Exhibit B to his complaint. In the affidavit, the plaintiff essentially denied any wrongdoing in relation to the filing of insurance claims. In addition, attached to the complaint is a copy of the Sebastian County Employment Policies & Procedures, and a copy of a letter dated April 6, 1983, written by his attorney requesting that the grievance proeedure set forth in the Policies be employed.

It is alleged that the defendant county did not comply with certain of the “steps” set forth in the grievance procedure, but that the county ultimately provided the plaintiff with a hearing held on February 24,1984. A copy of the order of the Grievance Committee appointed pursuant to the provisions of the Policies & Procedures is attached to the complaint as Exhibit E.

It is claimed that plaintiff was damaged by reason of the county’s failure to comply with steps 1, 2 and 3 of article VIII of the Procedures and that the Grievance Committee’s finding that there was substantial evidence to support the termination was not justified in view of the evidence adduced at the hearing.

It is claimed that plaintiff had a property right in his employment which entitled him to be terminated only upon a showing of just cause, and that his termination resulted in a denial of property rights without due process of law in violation of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution. He asks for a declaratory judgment pursuant to the provisions of 28 U.S.C. § 2201, for damages in the amount of $25,000.00, for back pay, fringe benefits, attorney’s fees, and reinstatement to his former position.

Defendants filed a motion to dismiss, attaching to the motion a six-page document entitled “Grievance Committee Guidelines.” This document very specifically sets forth the procedures used by the Grievance Committee during the hearing which will be discussed in more detail below.

Upon reviewing the file in preparation to rule upon the motion, the court determined that the guidelines attached to the motion to dismiss should be considered, along with the exhibits attached to the complaint, and, for this reason, by letter dated May 11, 1984, advised the parties that the court intended, pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, to treat the motion to dismiss as a Rule 56 motion. The parties were given 14 days from the date of that letter to present any material relevant to the court’s consideration of the issues as required by the rule under the circumstances presented.

Within the time allowed, the plaintiff filed an amendment to response providing the court with the transcript of the proceedings before the Grievance Committee held on February 24, 1984, an affidavit by Mr. Stermetz, and the exhibits received by the Grievance Committee. In the affidavit attached to the amendment, Mr. Stermetz swears that it was his understanding, not only because of the content of the Employment Policies & Procedures, but because of conversations with various officials, that his employment was controlled by the Sebastian County Employment Policies & Procedures.

The court believes that the file as it now exists, having been supplemented by the attorneys for the parties as desired, reflects clearly that there is no genuine issue of any material fact relevant to a determination of the issues raised. There is no contention by either party that the plaintiff was not, in fact, an employee of Sebastian County, Arkansas, and that he was terminated by the County Judge on April 5, 1983. There is no question but that at the time the county had in force employment policies and procedures as set forth on Exhibit D to the complaint, and that on February 24, 1984, a Grievance Committee appointed pursuant to the provisions of such policies, after a request by plaintiff’s attorney, held a hearing which resulted in the order attached as Exhibit E to the complaint.

As indicated above, plaintiff’s attorney, pursuant to the court’s notice that the file should be supplemented if desired, filed the 156-page transcript of the Grievance Committee hearing taken and prepared by an official court reporter. The court has read the entire transcript, and it is obvious that the committee, chaired by Ben Core, a Fort Smith attorney, carefully and meticulously received all evidence which either party had to offer in relation to the controversy. The committee, composed of Mr. Core and four other prominent Sebastian County residents, competently and courteously allowed Mr. Karber, representing the plaintiff, ample opportunity to develop his case. He was allowed to make an opening statement to the committee, present any evidence that he cared to present, and then present closing arguments. In addition, he was allowed, throughout the hearing, to make statements into the record setting his forth his contentions in relation to the facts and applicable law. In short, plaintiff and his attorney were not restrained in any way from presenting their case. Before any evidence was received, the chairman carefully discussed the provisions of the Grievance Committee Guidelines which were attached to the motion to dismiss. It is obvious from a mere reading of these guidelines that they were thoughtfully prepared and were designed to protect the rights of any grievant before the committee. It is obvious from the transcript of the proceedings that the chairman carefully followed the guidelines and made certain before any evidence was taken that the grievant and his attorney were aware of the procedures to be followed.

The transcript indicates that the individual Grievance Committee members conscientiously approached the task at hand and cordially refrained from interrupting the testimony of any witness until the attorneys presenting the testimony had completed their questioning. The committee members then, in many cases, asked pertinent and intelligent questions bearing on the issues.

During the course of the hearing, after certain stipulations were entered into, the defendant testified, with his testimony consisting of some 34 pages of the transcript. He then called in his behalf his wife, Lenora Stermetz, whose testimony encompassed another 34 pages. At the close of the testimony of these two witnesses, the committee recessed for lunch, and after resuming, the committee chairman asked Mr. Karber, “Do you have anything else to present?” Mr. Karber replied, “That concludes our presentation.” The county was then allowed to call witnesses in its behalf, and at the close of the county’s testimony, Mr. Karber was again asked by the chairman if he had anything further to present. He replied that he did not, but that he wished to make closing remarks. The attorneys for plaintiff and the defendants were then allowed to make closing statements. After these were received, the committee chairman carefully advised the parties and their attorneys of the procedures to be followed and then went into executive session to discuss the matter.

Upon reconvening in open session, the chairman again advised those present of the procedure to be followed, and pointed out that article VIII of the Policies provided that the committee’s duty was only to determine whether the penalty assessed (termination) was “unreasonable or discriminatory.”

The committee then separately voted on the following questions: (1) Was there dishonest conduct? (2) Was Mr. Stermetz responsible for the dishonesty? (3) Was the penalty assessed unreasonable? (4) Was the penalty discriminatory? The roll was called on each of these questions, and the committee members individually voted. The vote was unanimously against plaintiff’s position on each question.

Whereupon, according to the transcript, the chairman advised those present that “that is our decision,” and apparently attempted to give Mr. Karber an opportunity to speak in behalf of his client, but, according to the transcript, was interrupted and the hearing was adjourned. The committee then, on March 6, 1984, filed its order which was attached as Exhibit E to the complaint.

Plaintiff apparently does not contend that he was not given the hearing contemplated by the Employment Policies & Procedures, pr even that the hearing was not “a fair one.” Instead, he takes the position that the committee which gave him the hearing provided for in the Policies and the hearing that he requested through his attorney was simply “wrong” and that for that reason he has been deprived of property without due process of law in violation of the Constitution. He apparently asks this court to review and weigh the evidence and, in effect, substitute the court’s judgment for that of the county officials and the Grievance Committee established pursuant to county policy. In so doing, he misapprehends the role of federal courts.

The drafters of our Constitution, very wisely in the court’s view, determined that federal courts would be courts of limited jurisdiction. On the other hand, most state courts, under the system installed by our forefathers, are courts of general jurisdiction. Federal courts are empowered to hear only those cases that (1) are within the judicial power of the United States as defined in the Constitution, and (2) that have been entrusted to them by a jurisdictional grant by the Congress.

As the Supreme Court said in Victory Carriers, Inc. v. Law, 404 U.S. 202, 92 S.Ct. 418, 30 L.Ed.2d 383 (1971): “Due regard for the rightful independence of state governments, which should actuate federal courts, requires that those courts scrupulously confine their own jurisdiction to the precise limits that a federal statute has defined.”

The rule clearly is that the party seeking to invoke the jurisdiction of a federal court must demonstrate that the case is within the competence of that court, and the presumption is that a federal court lacks jurisdiction in a particular case until it has been demonstrated that jurisdiction over the subject matter exists. Lehigh Mining & Mfg. Co. v. Kelly, 160 U.S. 327, 16 S.Ct. 307, 40 L.Ed. 444 (1895); King Iron Bridge & Mfg. Co. v. County of Otoe, 120 U.S. 225, 7 S.Ct. 552, 30 L.Ed. 623 (1887); Yocum v. Parker, 130 F. 770 (8th Cir.1904).

In short, a proper reading of the Constitution and legislation intended to carry into effect its provisions does not allow a federal court to decree all that is right and condemn and bar all that is wrong, or what a particular judge believes is either right or wrong, even if that judge desires to. This court was not intended to be a super county administrator or county board which, in the comfort of its chambers, reviews the actions of county officials to determine if what they have done is “right.”

Instead, this court is confined to determining whether any of plaintiff’s “federally protected rights” have been violated. In this regard, plaintiff contends that he had a property right in his employment which was denied him without due process of law, apparently because the decision of the county officials and Grievance Committee allowed his employment to be terminated without substantial evidence to support the charge of dishonesty made against him. As indicated above, there is apparently no contention made by him that he did not receive a fair hearing—only that the result was wrong.

The court is aware of two lines of eases which arguably, at least, entitle plaintiff to a due process hearing in relation to the termination of his employment. The Supreme Court, in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and Perry v. Sinderman, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), held that where a public employee has either a contractual right to his employment or an otherwise legally enforceable expectancy of continued employment he has a property interest in such employment protected by the due process clause of the Constitution. To cite the progeny of these cases would require a list of several pages.

Another line of cases holds that even where no property interest is involved in public employment, a public employee’s constitutionally protected right to “liberty” may be protected by the due process clause of the Constitution “[wjhere a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him____” Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1966). In Board of Regents v. Roth, supra, the Court stated that where the state “imposed ... a stigma or other disability that foreclosed ... freedom to take advantage of other employment opportunities” the safeguards of notice and hearing are required. In discussing the type of allegation that might be “stigmatizing,” Roth referred to charges of dishonesty and immorality, distinguishing these charges from simple failure to rehire an individual where there is no disclosure of allegations which would adversely affect the individual’s future opportunities for employment.

Defendants argue in this case that plaintiff had no property interest in his employment. The court believes that the county employment policies and procedures did give plaintiff sufficient expectation of continued employment to grant to him a property interest in his employment, but even if that was not true, the court believes that the manner of his termination and the cause for it brings into play the “liberty” interest discussed in Wisconsin v. Constantineau, supra, and Board of Regents v. Roth, supra. Plaintiff alleged only that a property interest was violated, and apparently does not argue that a liberty interest is involved. In any event, the court finds that plaintiff was entitled to a due process hearing in relation to his termination either because of the protection afforded by the Constitution of property interest, or plaintiff’s right not to be terminated for “stigmatizing” reasons without the opportunity to “clear his name.”

The question then arises whether the hearing provided to plaintiff provided him with procedural and substantive due process guaranteed by the Constitution. The United States Supreme Court has held that no particular form of procedure is required, but that certain elements must be present. Mitchell v. W.T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974). These include, at least, (1) adequate notice, Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975); (2) adequate opportunity for a hearing, Armstrong v. Mingo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965); (3) the right to introduce evidence, Baltimore & Ohio R.R. Co. v. United States, 298 U.S. 349, 56 S.Ct. 797, 80 L.Ed. 1209 (1936); and (4) the right to confront and cross-examine witnesses, Wolfe v. McDonell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). The court has already set forth the meticulous and careful manner in which plaintiff’s rights were protected by the Grievance Committee as shown by the hearing transcript which is a part of the record, and it would serve no useful purpose to discuss each of the specific requirements for procedural due process delineated above in relation to what occurred at the hearing. Suffice it to say that the court believes that the transcript of the hearing clearly and convincingly shows that the plaintiff was provided every measure of procedural due process and that he and his attorney had ample opportunity to present their case and to attempt to convince the committee that the action of the County Judge in terminating him was “unreasonable or discriminatory.”

Not only is it abundantly clear from the transcript which is part of the record that the plaintiff was provided with procedural due process, it is equally clear that he was provided substantive due process as well. As the court has already indicated, the transcript shows that the committee members approached their work in a professional and diligent manner and reached their conclusion only after having courteously and cordially given plaintiff every opportunity to present his case. They carefully followed the procedures outlined and made known to the attorneys for the parties before the hearing started, and reached their conclusion based upon the evidence, after having had the advantage of seeing and hearing the witnesses testify and being able, thus, to determine credibility and weigh the evidence. In view of the fact that the record clearly establishes that the plaintiff received a fair hearing in this case, the only way that this court could, decide that this case should continue would be for it to review the transcript and, without the benefit of seeing the witnesses testify, determine that the committee was simply “wrong.” That is not this court’s function. All that this court is allowed to do under the Constitution, statutes, and case law interpreting them is to determine (1) whether plaintiff was entitled to a due process hearing in relation to his termination, and (2) whether, if he was, such hearing was afforded him. After having determined that he was entitled to a hearing and that he got an eminently fair one, the court’s function is complete. The court finds that the transcript indicates without question that the Committee’s determination was supported by substantial evidence, and it cannot and will not substitute its judgment for the judgment of the county officials and duly appointed Grievance Committee. Lewes Dairy, Inc. v. Freeman, 401 F.2d 308 (3rd Cir.1968).

The Rule 12 motion, having been considered as a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, and the parties having been given the opportunity as required by the rules to supplement the record as desired, finds that there is no genuine issue of any material fact and that the defendants are entitled to judgment as a matter of law. The court does this fully recognizing that motions for summary judgment have largely fallen in disfavor in many trial courts because of the general belief that the various courts of appeal will, more than likely, reverse the granting of almost every summary judgment, or at least that the odds are very great that this will occur. This court believes that this feeling results, at least partly, from a misunderstanding of the proper role of Rule 56. As is pointed out in Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2712 at 574: “A motion for summary judgment lies only when there is no genuine issue of material fact; summary judgment is not a substitute for the trial of disputed fact issues.” As that article points out, the trial courts are thus not permitted to try disputed issues of fact in ruling on a Rule 56 motion, but may determine only whether there are such issues of fact to be tried. The court firmly believes that if there was ever a case in which a summary judgment is warranted, this is it. No one contends that the facts in relation to the hearing provided are other than as set forth above. Plaintiff was terminated by the County Judge; he hired an attorney; his attorney asked that the grievance procedures be followed which resulted in a hearing before a duly appointed Grievance Committee; he obviously had adequate notice of such hearing; he was present at the hearing with his retained attorney; the attorney was given an opportunity to make opening statements, to argue during the presentation of his case, to present his witnesses, and to cross-examine the county’s witnesses, and to make closing arguments. In short, plaintiff got what he asked for—a hearing—and the hearing was eminently fair. His complaint is that he lost, and he now wants this court to retry the case and to determine that the county officials and Grievance Committee were wrong. The Constitution guaranteed plaintiff under the circumstances that he would not be terminated without being provided a procedurally and substantively fair hearing—not that the decision-maker would be “right.” The court believes, based on the transcript, that the decision-makers were “right,” but that is beside the point.

The courts have stated the purpose of Rule 56 in a variety of ways: that the rule intended to prevent vexation and delay, Chambers v. U.S., 357 F.2d 224 (8th Cir.1966); that it is intended to improve the machinery of justice, Bland v. Norfolk and So. R.R. Co., 406 F.2d 863 (4th Cir.1969); that it is intended to promote the expeditious disposition of cases, Chambers v. U.S., supra; that its purpose is to avoid unnecessary trials, U.S. v. Porter, 581 F.2d 698 (8th Cir.1978); Anderson v. Viking Pump Division, Houdaille Industries, Inc., 545 F.2d 1127 (8th Cir.1976); Robert Johnson Grain Co. v. Chemical Interchange Co., 541 F.2d 207 (8th Cir.1976); Klinge v. Lutheran Charities Ass’n of St. Louis, 523 F.2d 56 (8th Cir.1975); Chambers v. U.S., supra; and Parmelee v. Chicago I. Shields Co., 157 F.2d 582 (8th Cir.1946). The court firmly believes that all of those reasons for Rule 56 are met in this case. There is not the slightest doubt about the facts in relation to plaintiff’s right to a hearing in relation to his termi-

nation, and it would unnecessarily prolong this case for the court to overrule the motion and allow expensive discovery and other pretrial procedures to fully develop. If all of that was done, and the necessary time and expenses consumed to do so, the facts still would be that plaintiff was terminated, he asked for a hearing, he got one, and the Grievance Committee, after due and proper consideration of the matter, affirmed the county official’s termination of plaintiff, based on obviously substantial evidence.

A judgment will be entered in conformity with this opinion.

ON RECONSIDERATION

The pertinent facts are set forth in this court’s memorandum opinion of June 28, 1984, and will not be reiterated herein except as essential to the instant analysis.

On June 28, 1984, this court granted summary judgment in favor of defendants on plaintiff’s complaint which alleged various due process violations in connection with plaintiff’s termination from his employment with Sebastian County. Plaintiff appealed to the Eighth Circuit Court of Appeals on July 20, 1984. While the appeal was pending, the United States Supreme Court decided Cleveland Board of Education v. Loudermill, 470 U.S. -, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). On June 6, 1985, 763 F.2d 366, the appeal court’s decision in this case was released, vacating this court’s entry of a summary judgment and remanding the cause to this court for reconsideration in light of Loudermill.

By letter dated June 18, 1985, this court advised the parties to supplement the record and brief the issues in light of Loudermill. The requested materials have now been submitted and the matter is ripe for resolution.

Essentially plaintiff alleges that he was informed on April 5, 1983, by defendant Harper that his employment as a laborer with Sebastian County was terminated effective that date. Plaintiff was presented with a document entitled “Notice of Termination.” That notice stated the reasons for the termination, including the fraudulent filing of falsified insurance claims under the county’s group plan. Plaintiff was informed that such conduct constituted violations of Article II, Sections A and B, and Article VII, Section C-q, of the Code of Ethics.

The next day, after plaintiff had conferred with attorney Douglas Parker, plaintiff presented to defendant Harper an affidavit which essentially denied any wrongdoing in relation to the insurance claims. Plaintiff alleged that the defendant county failed to comply with certain provisions of the Sebastian County Employment Policies and Procedures. The county did provide plaintiff with a hearing on February 24, 1984. Plaintiff has contended that he had a “property” interest in his employment which entitled the county to terminate him only upon “just cause.”

Plaintiff now argues that he did not receive notice of any charges prior to his termination, an explanation of the county’s evidence, nor an opportunity to present his explanation. Additionally he asserts that the pretermination meeting was inadequate in light of the subsequent process afforded to plaintiff.

In Loudermill the Court held that the due process clause requires “ ‘some kind of a hearing’ prior to the discharge of an employee who has a constitutionally protected property interest in his employment.” Loudermill, supra, 470 U.S. at -, 105 S.Ct. at 1493, 84 L.Ed.2d at 504. Further, an employee is entitled to some opportunity “to present his side of the case.” Loudermill, supra, 470 U.S. at -, 105 S.Ct. at 1494, 84 L.Ed.2d at 504. The pretermination hearing “though necessary, need not be elaborate.” Loudermill, 470 U.S. at -, 105 S.Ct. at 1495, 84 L.Ed.2d at 506. “ ‘Something less’ than a full evidentiary hearing” is sufficient. Loudermill, 470 U.S. at-, 105 S.Ct. at 1495, 84 L.Ed.2d at 506.

The pretermination hearing should be an “initial check against mistaken decisions— essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action.” Loudermill, at-, 105 S.Ct. at 1495, 84 L.Ed.2d at 506. The hearing need not definitively resolve the propriety of the discharge.

In concise terms, all that the due process clause requires is “oral or written notice of the charges against (the employee), an explanation of the employer’s evidence, and an opportunity to present his (the employee’s) side of the story.” Loudermill, at -, 105 S.Ct. at 1495, 84 L.Ed.2d at 506. A post-termination administrative proceeding must, of course, be held “at a meaningful time.” Loudermill, at-, 105 S.Ct. at 1496, 84 L.Ed.2d at 507. The Supreme Court held that “the existence of post-termination procedures is relevant to the necessary scope of pretermination procedures.” Loudermill, supra, at-, 105 S.Ct. at 1496 n. 12, 84 L.Ed.2d at 507 n. 12.

The Court of Appeals for the Eighth Circuit upheld this court’s decision with regard to plaintiff's substantive due process claim. See Stermetz v. Harper, 763 F.2d 366, 367 (8th Cir.1985). The court further upheld this court's finding that plaintiff was given an opportunity to present his side of the story prior to termination. See Stermetz, supra, at 368.

This case was remanded to this court with directions for this court to evaluate the adequacy of the pretermination hearing in light of the subsequent process provided plaintiff. Stermetz, supra. The exhibits submitted indicate that plaintiff was provided both oral and written notice of the charges prior to his termination. See paragraph 2 of plaintiff’s Complaint; pp. 27-32 and 40-41 of “Grievance Hearing.” He was told of the reasons for his termination and was afforded an opportunity to respond. See pp. 32, 41 of “Grievance Hearing.” Plaintiff failed to offer any kind of substantive explanation. Plaintiff did not explain, as he now does and did during the grievance committee hearing, that it was his wife who falsified the insurance claims. See p. 128 of “Grievance Hearing.”

Plaintiff argues that the eleven-month delay following his termination before the grievance hearing was held renders the pretermination hearing constitutionally “infirm.” “... [T]he previously inadequate pretermination hearing was not made constitutionally adequate by the long-delayed subsequent hearing____” (Plaintiff’s brief on remand, pp. 18-19.)

It is clear that at some point, “a delay in the post-termination hearing would become a constitutional violation.” Loudermill, 470 U.S. at -, 105 S.Ct. at 1496, 84 L.Ed.2d at 507. However, unless the delay itself rises to the level of a deprivation of due process, the post-termination procedures are relevant only insofar as they demonstrate the “necessary scope of pretermination procedures.” Loudermill, supra, at-, 105 S.Ct. at 1496 n. 12, 84 L.Ed.2d at 507 n. 12.

The post-termination hearing was held on February 24, 1984, before a grievance committee chaired by Fort Smith attorney, Ben Core. Plaintiff, represented by Mr. Karber, made an opening statement, presented all of the evidence he desired to introduce, made numerous statements into the record concerning his contentions of fact and arguments of law, and was allowed to make a closing argument. The transcript of the hearing is comprised of 156 pages prepared by a court reporter. The transcript clearly demonstrates that the committee listened to absolutely everything that plaintiff had to offer. The chairman discussed thoroughly the grievance committee guidelines. Those guidelines appear to be more than adequate to protect the rights of any grievants and designed to elicit the truth of any disputed matters. The guidelines were followed and plaintiff and his attorney were made aware of the procedures to be, utilized prior to the hearing. The committee members supplemented the questioning of witnesses by the attorneys, asking additional questions.

The testimony of plaintiff and his wife comprise 68 pages of the transcript. Other than arguments, opening and closing remarks, and stipulations, plaintiff stated clearly that he had nothing else to present. Plaintiff made only closing remarks at the close of the county’s testimony.

The committee voted unanimously (five votes concurring) that plaintiff was responsible for the conduct which was unanimously found to be dishonest in nature. The committee also unanimously found that the penalty was neither unreasonable nor discriminatory. Not only does the court believe that the grievance hearing was more than “fair,” the court is unable to conclude that the unanimous decision reached was “wrong.”

Thus, not only was the hearing “fair,” the decision is clearly supported by the record. The transcript clearly demonstrates to this court’s satisfaction that plaintiff was given notice of the charges prior to his discharge, was apprised of the bases for the charges, and was provided an opportunity to explain “his side of the story.” The grievance hearing was more than sufficient to “cure” any factual doubt remaining after plaintiff was provided the pretermination “initial check against (a) mistaken decision(s).” Loudermill, supra, at-, 105 S.Ct. at 1495, 84 L.Ed.2d at 506.

Therefore, the court concludes that the in-depth post-termination procedures utilized clearly demonstrate that the pretermination procedure provided was sufficient in scope to satisfy the requirements of Loudermill. Unlike Loudermill, however, this is not, or does not appear to be, a case in which an error might have been avoided had the plaintiff been given more of an opportunity to make his case prior to termination. See Loudermill, at-, 105 S.Ct. at 1494 and n. 8, 84 L.Ed.2d at 505 and n. 8.

Although plaintiff, rather unchivalrously, now seeks to “palm-off” all of the responsibility for the criminal misdeeds on his wife, the committee found that plaintiff cannot, with impunity, delegate away all of the responsibility for the fraudulent documents. The Court of Appeals for the Eighth Circuit found the committee’s approach on this point not to be irrational, “pretextual, arbitrary, or capricious.” Stermetz, supra, at 376. Accordingly, plaintiff is not in a position to assert that he had plausible arguments to make that might have prevented his discharge. See Loudermill, supra, at -, 105 S.Ct. at 1494, 84 L.Ed.2d at 505. The committee found plaintiff’s explanation, even if true, insufficient to demonstrate that plaintiff should not have been terminated.

Plaintiff finally argues that the ten and one-half months delay between his termination and the grievance committee hearing violates the requirements of due process. In Loudermill the court rejected a similar argument premised upon a nine-month administrative delay, stating that a

9-month delay is not, of course, unconstitutionally lengthy per se. Yet Louder-mill offers no indication that his wait was unreasonably prolonged other than it took nine months. The chronology of the proceedings set out in the complaint, coupled with the assertion that nine months is too long to wait, does not state a claim of a constitutional deprivation.

Loudermill, supra, at-, 105 S.Ct. at 1496, 84 L.Ed.2d at 507.

Plaintiff also argues that defendants failed to observe the county’s own administrative guidelines and grievance procedures. It is clear, however, under Arkansas law, that a County Judge is not bound by the county grievance procedures. See Arkansas Constitution, amend. 55, § 3. Horton v. Taylor, 767 F.2d 471, 479-480 (8th Cir.1985). In any event, it is clear to the court that the policies were substantially followed, and that none of plaintiff’s “due process” rights were violated.

Although there were veiled references to a possible criminal prosecution during the interim period, plaintiff does not specifically allege any prejudice caused by the delay. Even in a criminal case, a delay has been held not to implicate a violation of the due process clause unless the defense of the case has been prejudiced. United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1976). Even where prejudice is present, however, the reasons for the delay must be considered, and any delay will be held insubstantial unless the prejudice clearly outweighs the legitimate reasons for the delay. Lovesco, supra.

The record indicates that once the county and defendant Harper were made aware that plaintiff was represented by counsel, defendant Harper “recapped” the pertinent facts with plaintiffs then counsel by letter dated June 23,1983. Plaintiffs counsel did not communicate with defendant Harper again until August 30, 1983. Although there was no immediate response, plaintiffs counsel waited until October 20, 1983, to again bring the matter to the defendants’ attention. After two of these communications on behalf of the plaintiff, the matter was referred to the county’s attorney.

All of the reasons for the delay are not apparent. Plaintiff informed defendant Harper in writing on April 6, 1983, that he challenged the allegations (see Exhibit “B” to plaintiffs complaint). Plaintiff did not take any further action until June 16, 1983, two and one-half months later, to which defendant Harper replied with the June 23 “recap” letter. Plaintiff waited more than two months before again writing to the defendant on August 30, 1983. When no formal response was forthcoming, plaintiff again waited almost two additional months before contacting defendant Harper on October 20, 1983. Plaintiff admits that two of the letters prompted a referral to the county’s attorney.

Thus, although the period of delay has not been explained in its entirety, it is clear that some of the delay is attributable to plaintiff’s formally contacting defendant Harper only three times in the six months following the April 6 letter. The only prejudice alleged to flow from the delay is that “all the while Stermetz was not receiving the pay and having to overcome the chilling effect of threats of prosecution.” (Plaintiff’s Post-Trial Brief, p. 20.)

Because plaintiff received a constitutionally sufficient pretermination hearing which was clearly adequate in light of the subsequent process afforded plaintiff, and because the defendants had sufficient reason to discharge the plaintiff, plaintiff’s lack of pay in the interim period is not constitutionally significant.

Further, because imposition of criminal liability arising from plaintiff’s conduct may be warranted, considering both the evidence at defendants’ disposal prior to the termination and the evidence presented during the grievance committee hearing, the “chilling effect” was occasioned not by the delay, but by plaintiff’s responsibility for the fraudulent conduct at the outset. Since nothing which transpired at the grievance committee hearing negated any of this possibly criminal responsibility, it is possible that plaintiff continues to be “chilled.” Such “chill,” however, was brought about by the actions of plaintiff and allegedly his wife, rather than by defendants, the grievance committee, or this court.

Suffice it to say that plaintiff has not demonstrated sufficient prejudice caused by the interim delay, under the circumstances, to constitute a violation of the due process clause, nor has he indicated that the delay was occasioned by the defendants to gain an undue advantage or with an improper motive to harm or injure the plaintiff in the presentation of his grievance or in any other manner.

Thus, the court concludes that neither Loudermill nor Stermetz, supra, are a bar to the entry of summary judgment in favor of the defendants. The court reaffirms all portions of its earlier memorandum opinion of June 28, 1984, not specifically discussed herein.

A separate judgment in accordance with this memorandum opinion will be concurrently entered.