author: GETZENDANNER, District Judge:

text:
    Robert W. MURRE, Plaintiff, v. A.B. DICK COMPANY, Defendant.
    No. 84 C 4473.
    United States District Court, N.D. Illinois, E.D.
    Oct. 23, 1985.

      Ernest T. Rossiello & Associates, Chicago, 111., for plaintiff.
    John P. Lynch, Mark Stegemoeller, Latham & Watkins, Chicago, 111., for defendant.
   MEMORANDUM OPINION AND ORDER

GETZENDANNER, District Judge:

This action under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621-634, is currently before the court on the motion of defendant A.B. Dick Company for summary judgment. For the reasons set forth herein, the court concludes that plaintiff has produced no evidence from which a jury could reasonably infer that defendant discriminated against the plaintiff on account of his age. Summary judgment is therefore proper, and the defendant’s motion is granted.

Facts

' The undisputed facts, interpreted in the light most favorable to plaintiff, are as follows. Plaintiff Robert W. Murre was hired by defendant A.B. Dick Company on October 14, 1974, at age 39, as a senior engineer in the company’s Niles, Illinois facility (Murre Dep. at 10). On September 19, 1976, he was promoted to project engineer, and on March 18, 1979, he was promoted to Section Manager of Electrical Design (Murre Aff. 1114(F); Murre Dep. at 12-14). On October 24, 1982, Murre was demoted from section manager to “principal engineer.” On August 17, 1983, Murre was discharged (Harling Aff. II2). A younger less senior engineer with the same job title, Michael Danielson, was retained. Danielson had been working for defendant about 7 years and was 30 years old at the time of the plaintiff’s discharge (Harling Aff. Ex. C).

The decision to terminate plaintiff occurred during a reduction of the company’s overall work force due to deteriorating financial conditions (Levin Aff. 112). From January 1982 through February 1984, the defendant’s overall work force fell by 1116 persons, or 22% of its total, and the engineering staff in Niles was reduced from 142 to 74 persons (Harling Aff. ¶ 8). The work force reduction did not disproportionately harm older employees: the percentage of engineers working at the Niles fácility who were 40 years old or above increased from 64% to 78%, and the average age of those engineers increased from 45.3 to 49.2 years old (Id.). At the time of his discharge, plaintiff was 48 years old.

In August of 1983, Gregory Pacton, Manager of Research and Engineering at Niles, learned that further work force reductions would have to be made from his group (Pacton Dep. at 31-32, 42-44; Pacton Aff. ¶¶12-4). Pacton testified that he decided to terminate Murre rather than someone else based on two chief considerations. First, Pacton discussed relative performance appraisals with Reginald Valentino, Product Development Manager of defendant’s Imaging Systems Group. Valentino was responsible at that time for supervising Murre and other electrical and mechanical engineers (Pacton Dep. at 98-99; Valentino Dep. at 38-42). The two men also discussed expected contributions to the company based on anticipated project needs (Pacton Dep. at 99; Pacton Aff. at ¶¶ 2-4). Through a process of elimination, the two men went through all the employees under Valentino’s supervision, and narrowed the choice down to plaintiff (Pacton Dep. at 47, 98-99).

During the above discussions, Pacton did not review Murre’s personnel file but did review Murre’s most recent performance appraisal, namely one prepared by Valentino in June of 1983. In that review, Valentino had criticized plaintiff’s performance on several grounds, including his “coordination efforts to implement ... design concepts,” his inability to execute long term assignments, his abrasive interaction with employees outside of his department, his failure to adjust his capabilities to the existing design environment, and his need to develop further software expertise (Valentino Dep. Def. Ex. 1). On the other hand, Valentino found plaintiff’s performance competent in several areas: coordinate engineering usage of computer availability in certain programs, voice synthesis incorporation for defendant’s products, communications with people within plaintiff’s immediate work group, analytical skills, organization, scheduling capabilities, and adherence to detail. Despite the above areas of strength, however, Murre’s rating as to any one objective was never above “competent” and his overall rating was “low competent.”

Valentino’s evaluation of Murre’s performance, interest level, and initiative was also noted by two earlier supervisors. In January 1982, Howard Wolfman, then Manager of Research and Engineering, submitted a performance review in which he concluded that “Murre’s examples of standards of performance and motivation are not positive in nature — they tend to achieve the bare minimum level” (Murre Dep. Def. Ex. 1). Wolfman gave Murre an overall rating of “low competent” and noted that Murre was a “clock watcher” with no consistent ability to seek out problems and aggressively solve them. In October 1982, Wolfman’s replacement and Pacton’s immediate predecessor, Richard Fehlberg, demoted Murre from “senior” to “principal” engineer based on his “assessment of the future organizational needs and [Murre’s] technical qualifications and current performance level which I would rate as Low Competent.” (Fehlberg Dep. Def. Ex. 1). Fehlberg, however, also testified that plaintiff was “doing a competent job in his area of technical responsibility” and performed quite well as principal engineer in the early months after his demotion (Fehlberg Dep. at 31).

At the time of the August 1983 reduction in work force, Murre was the oldest of the six electrical engineers under Valentino’s supervision (Harling Aff. 113). He also had the lowest performance rating of these six engineers (Id.). Michael Danielson, the only other “principal” electrical engineer, had an overall rating of “commendable.” Valentino and Pacton both testified that Danielson was retained over Murre because of his superior performance appraisals, his initiative, ability to work long hours, ability to communicate with others, and his microprocessor background (Valentino Dep. Def. Ex. 1; Valentino Dep. at 75; Pacton Dep. at 99).

Valentino and Pacton purportedly considered the entire engineering staff, not just the electrical engineers, in deciding whom to discharge as part of the reduction in work force (Pacton Dep. at 97-99). While plaintiff was the oldest of the six electrical engineers, the other engineers under Valentino’s supervision ranged in age from 35 to 59 years of age (Harling Aff. 11 3). With one exception, these engineers received performance appraisals of “competent” or better. The one engineering staff person who received a lower rating than plaintiff but who nonetheless was retained was 59 years old {Id,.).

Plaintiff was informed that he was terminated due to a reduction in work force (Murre Aff. 112). Around this same time, he was informed by Randolph Harrison, defendant’s Vice-President of personnel, that he would be notified of any future job openings for which he could apply (Murre Aff. 11116, 14(D)). In the fall of 1983, both an “engineer” and a “senior engineer” position became available at the Niles facility due to the departures of others (Valentino Dep. at 120; Pacton Aff. ¶ 5). By definition, these positions were junior to that occupied by plaintiff at the time he was discharged. In November, Valentino and Pacton prepared job requisitions for both positions which listed a Bachelor of Science in Electrical Engineering and experience in 6809 microprocessors or Intel 8085-8086 Microprocessors as job requirements (Valentino Dep. Def. Ex. 2). Valentino and Pacton testified that these requirements reflected their goal of upgrading the micro-programming skills of the electrical engineering staff (Pacton Dep. at 104; Valentino Dep. at 87-88).

Despite Harrison’s promise to inform plaintiff of future job openings, defendant never formally notified plaintiff of the two openings (Murre Aff. 117). Murre nonetheless learned of the job openings from employees of defendant with whom he maintained contact and applied for both positions (Murre Dep. at 47). Murre was interviewed by Pacton on January 4, 1984 (Pacton Dep. at 54). The two men discussed Murre’s microprocessor software capability in depth (Murre Aff. ¶ 14(a)(2)). Murre told Pacton that he had done some microprogramming at home on a Radio Shack computer (Pacton Dep. at 54), and would therefore need a little time to become proficient on the microprocessors proposed for use by defendant (Murre Aff. 1111).

Pacton considered Murre’s home computer experience to be irrelevant to defendant’s microprogramming needs and to render him unqualified for either of the two engineer openings, despite Murre’s previous employment in higher level positions (Pacton Dep. at 64, 100; Pacton Aff. II11). While Murre challenges this assessment of his qualifications, he admitted at his deposition that he had not done any actual micro-programming (Murre Dep. at 23), that he was not fluent in the assembly language used in microprogramming (Murre Dep. at 26), and that he had only “limited experience” in microprogramming development (Murre Dep. at 27). When asked about his experience in microprogramming Murre claimed no college training nor any actual work experience in the field, only “activities that [he] had done on [his] own” (Murre Dep. at 59).

In addition to feeling that Murre was unqualified because of his computer background, Pacton also felt that Murre would not respond well to working in positions junior to his previous job as principal engineer (Pacton Dep. at 54-57; Pacton Aff. at If 12). Murre, however, had told personnel vice-president Randolph Harrison that he was willing to accept such positions in order to achieve the required vesting rights for his pension (Murre Aff. 1114(G)), and Fehlberg testified that Murre had adapted well immediately following his earlier demotion (Fehlberg Dep. at 31). There is no evidence, however, that Pacton was aware of either of these factors at the time he made the decision not to rehire plaintiff.

Murre was told after his interview to call back in a few days (Murre Dep. at 43). Murre did so, and was told that defendant had not yet talked with all the internal candidates (Id.). After waiting some further unspecified time, Murre phoned Pacten to confirm that he really had been given consideration for the jobs (Murre Dep. at 45). Pacten, told Murre that he had been considered, but that his lack of experience in microprocessor software programming rendered him unqualified for the job (Id.). After learning that other interviewees had been given immediate offers, Murre asked Harrison why he hadn’t been given a similar offer on those positions (Murre Dep. at 45-46). Despite a promise to notify Murre in writing of his findings, Harrison never got back to Murre (Id.). Around this same time, plaintiff filed his charges of discrimination with the EEOC.

In February 1984, Valentino and Pacten interviewed Husam Rabi, age 25, for the entry level engineer position which had been denied plaintiff (Valentino Aff. ¶ 9; Pacten Aff. ¶ 8). Rabi, then an A.B. Dick employee, was recommended by his supervisor for the job. His resume reflected the job requisition requirements of a bachelor’s degree in electrical engineering and hands-on training in the use of the Intel 8085 microprogrammer (Id.). Rabi was hired on March 12, 1984, as an electrical engineer (Harling Aff. ¶ 4). Rabi proved to be ignorant of basic semi-conductor theory (an area within Murre’s expertise), and resigned on or about May 4, 1984 (Kopala Dep. at 26). During the time he worked for Valentino, he did no microprocessor software development (Valentino Dep. at 104; Kopala Dep. at 26).

Shortly after Rabi left, defendant hired one Peter Tamulewicz, age 29, for his replacement (Murre Aff. ¶ 12). Tamulewicz was hired out of a “job fair” held in Chicago in May of 1984. At the job fair, Tamulewicz talked with defendant about his direct Intel 8080 assembly language micro-programming experience (Reynolds Aff. ¶ 2; Tamulewicz Dep. at 13-15). His resume reflects this experience, at least one college course in microcomputers, and a bachelor’s degree in electronic engineering technology from the DeVry Institute of Technology (Reynolds Aff. Ex. A). Tamulewicz interviewed with Pacten and Valentino shortly after the job fair; both men asked him about his microprocessing background (Tamulewicz Dep. at 15-16, 24). Like Rabi, however, Tamulewicz was never given any assignments requiring microprocessor software skills, or any work involving defendant’s microprocessor (Id. at 17; Kopala Dep. at 40).

At a job fair held later that summer, defendant interviewed Miriam Chou, a graduate student in electrical engineering at the University of Illinois-Chicago, for an entry-level position in Valentino’s group (Chou Dep. at 25-26). Chou was interviewed about her microprocessor background both at the fair and on a call-back interview (Chou Dep. at 16-18, 20). Chou’s resume (Chou Dep. Def. Ex. 1) indicates a laboratory course in the Intel 8085 microprocessor but no prior employment experience in microprocessing. Defendant hired Chou in September of 1984. Chou testified that she did a large amount of microprocessor software development work during her first four months with defendant (Chou Dep. at 22-23), but apparently is spending only about ten percent of her current time in microprocessor development (Stumpf Dep. at 32, 37). Stanley Kopala, an electrical engineer with defendant, testified that Chou had done no work on microprocessor software development (Kopala Dep. at 40). This latter testimony is inconsistent with Chou’s log books, which indicate such work. Chou also testified that she received further instruction in microprocessing after being hired (Chou Dep. at 34-37).

In November of 1984, defendant hired Olgerts Cakars, age 60, in the “senior engineer” position for which Murre had interviewed the previous January. Cakars was told by Stumpf and Valentino at a job fair that A.B. Dick was looking for somebody with microprocessor hardware and software experience (Cakars Dep. at 39-40), and Cakars was hired in part on the basis of his microprocessor qualifications (Cakars Dep. at 30-33, 39-40; Valentino Aff. 1110): Cakars also has a bachelor of science degree in electrical engineering (Valentino Dep. Def. Ex.). Immediately after being hired, Cakars began full-time work on developing a 2500-line program for defendant’s Motorola 6809 microprocessor (Cakars Dep. at 16-17; Valentino Aff. 1110). As of August 1, 1985, 33 of 41, or 83%, of Valentino’s salaried engineering staff, were over age 40. (Harling Aff. H 5).

Legal Discussion

To establish a prima facie case of age discrimination, a discharged employee must produce evidence from which a court or jury can reasonably infer that, more likely than not, but for the plaintiff’s age he would not have been discharged. Matthews v. Allis-Chalmers, 769 F.2d 1215, 1217 (7th Cir.1985). In several cases, the Seventh Circuit has held that the burden of proof formula set forth for Title VII cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), applies in cases under the ADEA. Matthews, 769 F.2d at 1217; La Montagne v. American Convenience Products, Inc., 750 F.2d 1405, 1409 (7th Cir.1984); Kephart v. Institute of Gas Technology, 630 F.2d 1217, 1222 (7th Cir.1980), cert. denied, 450 U.S. 959, 101 S.Ct. 1418, 67 L.Ed.2d 383 (1981) . Under that formula, an ADEA plaintiff may establish a prima facie case of firing discrimination by showing that: 1) he belongs to the protected age group; 2) he was performing his job satisfactorily; 3) he nevertheless was fired; and 4) his employer sought someone to perform the same work after he left. Matthews, 769 F.2d at 1217; Kephart, 630 F.2d at 1222-23.

Because this last element — rehiring of another — rarely occurs when an ADEA plaintiff is fired during a reduction in work force, the Seventh Circuit in Matthews fashioned specific prima facie requirements to be applied in a job reduction situation. Citing the Fifth Circuit decision in Williams v. General Motors Corp., 656 F.2d 120, 128-29 (5th Cir.1981), cert. denied, 455 U.S. 943, 102 S.Ct. 1439, 71 L.Ed.2d 655 (1982), the Seventh Circuit held that a plaintiff in the protected age group adversely affected by a reduction in work force can meet his prima facie burden by 1) showing that he was qualified to assume another position at the time of the discharge or demotion; and 2) producing direct or circumstantial evidence from which a factfinder might reasonably conclude that the employer intended to discriminate on the basis of age. Matthews, 769 F.2d at 1217. See also Stumph v. Thomas & Skinner, Inc., 770 F.2d 93, 96-97 (7th Cir. 1985) (older employee fired in work force reduction needn’t prove replacement by younger employee to state prima facie case).

Once a plaintiff establishes a prima facie case of age discrimination, the burden shifts to the employer “to articulate some legitimate, non-discriminatory reason” for the employment decision. McDonnell Douglas, 411 U.S. at 803, 93 S.Ct. at 1824. Should the defendant state a valid justification for the firing, the employee must proffer evidence to show that the employer’s stated reason was a mere pretext for discrimination. 411 U.S. at 804, 93 S.Ct. at 1825. The ultimate burden of proving unlawful discrimination remains with the plaintiff at all times. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981); Parker v. Federal National Mortgage Association, 741 F.2d 975, 978-79 (7th Cir.1984).

Where a plaintiff has relied solely on the McDonnell Douglas framework as evidence of discrimination, the Seventh Circuit has repeatedly held that failure to proffer evidence which would establish the pretextuál nature of an employer’s articulated motive justifies a grant of summary judgment in the employer’s favor. Klein v. Trustees of Indiana University, 766 F.2d 275, 282 (7th Cir.1985); Parker, 741 F.2d at 979-980; Mason v. Continental Illinois National Bank, 704 F.2d 361, 366 (7th Cir.1983). In making this determination, a district court should avoid weighing conflicting indications of motive and intent: “a plaintiff should be required to do no more than offer proof which casts doubt upon the veracity of the employer’s stated reason for its action.” Stumph v. Thomas & Skinner, Inc., 770 F.2d 93, 98 (7th Cir. 1985). Mere quarrels over the business judgment of the employer, however, are insufficient to meet this burden. Kephart, 630 F.2d at 1223.

In the present case, plaintiff has alleged that defendant discriminated against him both by discharging him during the August 1983 reduction in work force, and by refusing to rehire him in January of 1984 for either of the electrical engineer positions which had subsequently become available. Plaintiff has offered no direct evidence of discriminatory intent on the part of either Valentino or Pacton, who were chiefly responsible for these decisions, nor has he presented any direct evidence that others at A.B. Dick were biased against older employees. Plaintiffs case therefore falls squarely within those cases which rely on the McDonnell Douglas framework as circumstantial evidence of discrimination.

1. Discriminatory Discharge

Implicit in the majority per curiam opinion of Matthews is the holding that the discharge of an older employee pursuant to a valid reduction in work force does not in itself give any rise to an inference of unlawful discrimination, regardless of the employee’s age or competence. 769 F.2d at 1221-1222 (Flaum, J., concurring). Because work force reduction cases by definition involve a legitimate motive for discharge on the employer’s part, an ADEA plaintiff is therefore relegated to his ultimate burden of showing evidence, direct or circumstantial, from which a jury could reasonably conclude that but for the employee’s age, he would not have been discharged.

In the present case, plaintiff offers no statistical evidence to show that the work force reduction itself was pretextual, or that the reduction had a differential impact on younger and older employees to the latter group’s disadvantage. Indeed, such an effort would be futile, since the undisputed statistical evidence shows that the reduction benefited older workers on the whole. Plaintiff instead relies on the more favorable treatment given Danielson during the reduction in force as circumstantial evidence of discrimination.

The parties have debated with some vigor whether defendant’s differential treatment of Danielson and plaintiff suffices to establish a prima facie case. The per curiam decision in Matthews suggests not, at least absent further evidence that the reason for prefering Danielson was unlawful age discrimination. As stressed by Judge Flaum in his concurrence, however, the retention of a younger employee in the same job as that held by the discharged plaintiff “gives rise to an inference of discrimination that is no weaker than the well-recognized inference created when an employer discharges an employee who is performing adequately and then seeks and/or obtains a replacement.” 769 F.2d at 1223. Because the employer is in the best position to articulate the reason for the different treatment, Judge Flaum argues that the burden of production should shift to the employer at this point.

The debate between the majority and concurring views in Matthews is largely academic, since it is well established that the burden of showing pretext merges with the plaintiff’s ultimate burden of showing intentional discrimination. Burdine, 450 U.S. at 257, 101 S.Ct. at 1095; La Montagne, 750 F.2d at 1414. In United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983), the Supreme Court stressed that the McDonnell Douglas order of proof is only a framework for allocating the burdens of production in an employment discrimination case, and should not mechanistically be applied to avoid the ultimate question of discrimination. 460 U.S. at 714, 103 S.Ct. at 1481. This court reads Matthews not as automatically incorporating the burden of showing pretext into a plaintiff’s initial burden of production, but as recognizing that such a burden is necessary to defeat an employer’s articulated motive for discharge on a motion for summary judgment. Proof that younger employees were retained in a position for which the plaintiff was qualified may, under certain circumstances, satisfy this circumstantial burden. Under either the majority or concurring view in Matthews, the ultimate inquiry remains whether there is direct or circumstantial evidence sufficient to create a triable issue as to age discrimination.

In accordance with this understanding, the court assumes that plaintiff has made out a prima facie case of age discrimination based on defendant’s decision to terminate him instead of Danielson. Plaintiff was, after all, rated as a “competent” principal engineer, although barely so, and was therefore “qualified” to be retained, despite the evidence of serious dissatisfaction with his performance. Were the defendant’s decision to retain a younger man in plaintiff’s job position left unexplained, the evidence might suffice to raise a triable issue as to discriminatory intent. Defendant has proffered a legitimate explanation for the difference in treatment, however, and it is therefore up to plaintiff to proffer some evidence from which a jury could infer that those reasons are pretextual.

In the present case, plaintiff has offered testimony from co-workers and from his former supervisor Richard Fehlberg to suggest that his work as a principal engineer was more than competent, but has offered no evidence to show that defendant’s superior estimate of Danielson was tainted by discrimination. The ADEA was not intended as a vehicle for judicial review of business decisions, Kephart, 630 F.2d at 1223, and an ADEA plaintiff can therefore not raise a triable issue of age discrimination simply by arguing about the fairness of the defendant’s evaluation of his work performance, even with testimony from coworkers or other employees of defendant. Id. While exceptional cases may exist where the unfairness is so blatant as to render the articulated motive unworthy of belief, this is not such a case. The sole evidence plaintiff offers to suggest that Valentino was biased against him is that plaintiff earned more money than Valentino, even though the latter was plaintiff’s supervisor. This allegation, even if true, has nothing to do with age discrimination.

The undisputed evidence in this case shows that every person involved in making the decision to terminate plaintiff viewed Danielson as a superior performer, especially in areas of initiative and willingness to upgrade skills. The facts further suggest that defendant considered Daniel-son’s greater expertise in microprocessing to suit the company’s future needs beyond what plaintiff could offer. Even were the court to allow plaintiff to impeach Valentino and Pacton by showing that others at A.B. Dick considered him competent, plaintiff has offered no testimony from anyone that he was unquestionably superior to Danielson, nor has he proffered any evidence that the managerial staff at A.B. Dick disagreed with Valentino’s negative assessments. What evidence there is in the personnel record only supports Valentino’s assessment of plaintiff’s job performance.

Comparing plaintiff with the engineering staff generally, the court similarly finds no evidence of discrimination. Plaintiff was the lowest ranked electrical engineer at the time of his discharge and was therefore a likely candidate to be terminated during the reduction in work force. That defendant fired him and not a mechanical engineer does not suffice to show age discrimination since many of the mechanical engineers retained by defendant were older than plaintiff, and since the only engineer with a lower rating than plaintiff’s but who was retained was substantially older than plaintiff. The Seventh Circuit has made clear that employment discrimination cases should not be allowed to go to trial on the unsubstantiated assertion that a defendant’s decision to discharge an employee “might” have been discriminatory. Because plaintiff has presented no evidence to support the inference that age played a role in defendant’s decision to discharge him, summary judgment for the defendant is proper on plaintiff’s claim of unlawful discharge.

2. Refusal to Rehire

To establish a prima facie refusal-to-hire case under the McDonnell Douglas formula, a Title VII or ADEA plaintiff must show, among other things, “that he applied and was qualified for a job for which the employer was seeking applicants” and “that, despite his qualifications, he was rejected.” 411 U.S. at 802, 93 S.Ct. at 1824. In the present case, the court concludes that plaintiff has failed to raise an issue of material fact regarding his qualifications for either of the two engineer positions which arose after his termination, and, therefore, has failed to establish a prima facie case of age discrimination based on the defendant’s January 1984 refusal to hire him.

The undisputed evidence shows that in November 1983, Pacton and Valentino, for whatever reasons, determined to require a bachelor of science in engineering and some direct experience in microprocessing as requirements for both of the positions which plaintiff sought. As Pacton described it, the company was moving from “traditional mechanical products” toward “much more sophisticated microprocessor controls” and therefore needed engineers capable of adapting these microprocessors “to our existing equipment as well as inclusion in new products” (Pacton Dep. at 99-100). While engineers on staff were to be trained in microprogramming (Pacton Dep. at 71-72), newly hired engineers were required to have some such training in their backgrounds (Pacton Aff. If 5).

Murre has challenged the legitimacy of Valentino's and Pacton’s purported need for microprogramming, and has also challenged Pacton’s assessment of Murre’s microprocessing abilities. Both efforts are fundamentally misguided. The ADEA was not intended to allow judicial review over the reasonableness of an employer’s business judgments, Kephart, 630 F.2d at 1223, unless those business judgments are used to mask unlawful discrimination. The evidence shows that every single new entrant into the electrical engineering at Niles was interviewed about his or her microprocessing background and that only candidates who fitted the job requisition requirements as set forth in the November 1983 description were offered the job. Moreover, as is further suggested by defendant’s hiring of Olgerts Cakars, a 60-year old, for the “senior engineer” position, these criteria were applied in an age-neutral fashion. It is not this court’s province to review the business judgment of defendant in requiring micro-processing experience on the above machines. Absent evidence that defendant waived the requirements for younger employees, of which there is none, plaintiff cannot create a triable issue of age discrimination by complaining that defendant strictly applied its job requirements.

Plaintiff’s challenge to the veracity of the B.S.E.E. requirement is only marginally more successful. Plaintiff points out that the B.S.E.E. degree was never discussed during his interview, that defendant in the past has hired non-degreed engineers, and that Tamulewicz only held a bachelor of electronical engineering technology degree from a technical school and therefore did not begin to meet the requirements of a B.S.E.E. degree (Murre Aff. 1114(A)). That defendant only began to require educational credentials in 1983 does not, however, strike the court as sufficient grounds for creating a triable issue on pretext. Changes in managerial policy are legitimate bases on which to make employment decisions.

Regarding Tamulewicz’s allegedly defective credentials, plaintiff offers no testimony other than his own to discredit Tamulewicz’s education. Defendant is legally entitled to consider a bachelor’s degree in electrical engineering technology to be equivalent to a B.S.E.E. degree and plaintiff has offered no evidence that older applicants with technical degrees were turned away. Under these circumstances, defendant’s decision to hire Tamulewicz does not in any way raise the inference that its B.S.E.E. requirements were false. In any event, the chief reason for the decision not to hire plaintiff appears to have been his lack of microprogramming experience, and the evidence is undisputed that all applicants who were hired met that requirement.

In a somewhat similar vein, Murre attempts to challenge Pacton’s assessment of him as being unwilling to assume a lower level position, when he had in fact informed Harrison of his willingness to assume such a job. There is absolutely no evidence, however, that Pacton was aware of this conversation, and the court will not allow a case to go to trial simply on the unsupported allegation that Harrison may have mentioned this fact to Pacton and that Pacton therefore knew his own, contrary, assessment was incorrect.

Murre’s challenge to Pacton’s assessment of his own microprocessor abilities is equally misguided. While Murre had done feasibility studies for microprocessors (Murre Dep. at 21), and while some of his co-workers have testified that they considered Murre “qualified” for the entry level and senior engineer positions, Murre confirmed at the time of his deposition that he had little, if any, microprogramming experience (Murre Dep. at 22-23, 26-27, 59). Murre further confirmed that he had had no college training or courses in micro-programming. The defendant’s failure to consider Murre’s home training as evidence of being qualified for both positions by itself raises no inference of discrimination. The job requisitions explicitly require experience in use of 6809 or Intel 8085-8086 microprocessors which Murre did not have. Whatever the utility of Murre’s home training, it is not what defendant required. Neither plaintiff’s own opinion about his microprocessor qualifications, nor that of his co-workers, creates a triable issue on the veracity of defendant’s articulated motive for not hiring plaintiff in 1984. See Kephart, 630 F.2d at 1223 (plaintiff does not make out a case of age discrimination by offering contrary assessments of his qualifications from co-workers).

Plaintiff does, however, attempt to argue that the requirement of microprocessor skills was a mere pretext for age discrimination through his evidence that neither Rabi nor Tamulewicz actually performed such work, that Chou was hired with only prior lab experience in microprocessing work, and that in any event Chou was given the opportunity for further on-the-job training which had been denied him through the imposition of the microprocessing requirement in the first instance. The court agrees that evidence of whether asserted job requirements were actually required later on would be relevant to determining whether the job qualifications were false. On the present facts, however, no such inference of spuriousness reasonably can be made.

While it is true that Rabi and Tamulewicz were given no microprocessing tasks to do, microprocessing hiring requirements were applied to all candidates in the interview and hiring process. Plaintiff’s argument would require a jury to believe that Pacton and Valentino engineered phony job criteria prior to plaintiff’s application, then maintained those phony criteria for all subsequent engineer openings even after plaintiff had been rejected, and then finally hired a 60-year old on the basis of those requirements, simply to provide some objective basis for masking unlawful discrimination. As the Seventh Circuit has stressed, it is not the court’s job on a motion for summary judgment to make every conceivable inference in favor of the party opposing the motion: only reasonable inferences need be drawn. Matthews, 769 F.2d at 1218; Parker, 741 F.2d at 980. That defendant may have incorrectly assessed its need for microprocessing skills on the part of its engineers does not impeach the veracity of its decision to make such skills a prerequisite for the job where the record shows consistent and age-neutral application of those criteria to new applicants. Defendants could lawfully insist on microprogramming skills for their engineering staff whether or not they had specific, immediate projects in mind. See Matthews v. Allis-Chalmers, 35 F.E.P. 1404, 1406 (N.D.Ill.1984), aff'd, 769 F.2d 1215 (7th Cir.1985) (court should not “substitute its judgment for the company’s as to what business skills particular jobs require”).

Analogously, that defendant hired Chou on the basis of laboratory microprocessing experience alone does not create a triable issue on discriminatory bias since plaintiff did not apply for the position into which Chou was hired, and since there is no evidence that older employees with experience analogous to Chou’s were turned away. Even assuming that the November 1983 job requisitions would govern, those requisitions do not require actual employment experience with Intel 8085 microprocessors, only “experience,” which could easily encompass Chou's laboratory training. Certainly, plaintiff is not unreasonable in arguing that his overall familiarity in the electrical engineering field should have rendered him a more qualified candidate than Chou for many of defendant’s purposes. Nonetheless, plaintiff never competed with Chou for a job opening, and the fact remains that Chou had specific experience, admittedly within a narrow area, which plaintiff lacked. That defendants concentrated on this narrow area in making hiring decisions is not evidence of discrimination.

Plaintiff has made other arguments which merit brief discussion. First, plaintiff points out that Cakars was not hired for the senior engineer until after plaintiff’s lawsuit was filed, and that a jury could reasonably infer the purpose of Cakars’ hiring was to cover up the past discrimination directed against plaintiff. Plaintiff does not dispute, however, that Cakars’ interview was dominated by discussion of microprocessing, nor that Cakars was immediately assigned a major software development project utilizing those skills. As defendant correctly argues, it would be irrational for a company to risk a new product development simply to present the appearance that age was not a factor in its hiring decisions. This hypothesis is especially unlikely given the procedural history of this case: defendant hired Rabi, Tamulewicz, and Chou throughout this same period despite their younger ages, and at the time Cakars was hired plaintiff had not alleged rehiring discrimination in this lawsuit.

Plaintiff also argues that a triable issue of discrimination inheres in the fact that he was given a “runaround,” both by Harrison, who never informed plaintiff of the new job openings nor wrote Murre about the reasons for the refusal to rehire, and by Pacton, who apparently put off telling plaintiff that he wouldn’t be rehired. Again, however, these facts are without probative significance. There is simply no evidence whatsoever that Harrison had any input into Pacton’s decision not to hire plaintiff; Harrison’s motives are therefore irrelevant. See La Montagne, 750 F.2d at 1412. More fundamentally, plaintiff has offered no evidence that the above personnel policies were unusual for defendant or that they were applied in a discriminatory fashion. While successful applicants were contacted immediately, plaintiff has offered no evidence that younger unsuccessful applicants were given better treatment than he was. This court cannot infer an intent to discriminate on the basis of age simply because the defendant has bad personnel practices.

Plaintiff finally argues that there is a genuine dispute about qualification since he had previously held both of the positions for which he applied and since both were below the highest position which he held during his nine year employment with defendant (Murre Aff. ¶ 9). It is understandably frustrating for the plaintiff to witness a change in hiring practices which excludes him from positions for which he would once have been eminently qualified. Both Pacton and Valentino have consistently testified, however, that the change in hiring criteria was based on present and anticipated changes in technology. Pacton further testified that he perceived plaintiff to be uninterested in developing new expertise. There is no evidence that the change in hiring practices was engineered as a pretext for harming older employees, or for preventing plaintiff from being rehired with the company. Summary judgment is therefore proper on plaintiffs rehiring claim as well as his discharge claim.

Conclusion

Where, as here, a plaintiff attempts to prove discriminatory intent solely by circumstantial evidence, the question of sufficiency to defeat a motion for summary judgment goes to the reasonableness of drawing the necessary inference of discrimination from the indirect evidence. The court has reviewed all of the evidence, both singly and in combination, and simply finds no evidence from which a jury could rationally find age to be a determining factor in the plaintiffs discharge or the defendant’s failure to rehire him in January of 1984. Accordingly, the defendant’s motion for summary judgment is granted.

It is so ordered.


source: Caselaw Access Project

author: ASPEN, District Judge:

license: Public Domain

text:
    UNITED STATES of America ex rel. Jean DeSAVIEU, Plaintiff, v. Michael LANE, et al., Defendants.
    No. 84 C 10314.
    United States District Court, N.D. Illinois, E.D.
    Oct. 29, 1985.

      Jean DeSavieu, pro se.
    Mark Rotert, Salle L. Dilgart, Asst. Atty. Gen., Chicago, 111., for defendants.
   MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

Following a jury trial in state court, Jean DeSavieu (“DeSavieu”) was convicted of murder and sentenced to jail for forty years. He lost an appeal and unsuccessfully petitioned the Supreme Court of Illinois for review. He now petitions this Court pro se under 28 U.S.C. § 2254 for a writ of habeas corpus, asserting the same ten errors that he asserted in his appeal to the State Appellate Court. For the reasons stated below, his petition is denied.

The relevant facts are set forth in the appellate opinion, see People v. DeSavieu, 120 Ill.App.3d 420, 76 Ill.Dec. 104, 458 N.E.2d 504 (1st Dist.1983), and will not be repeated here, except where germane to the legal issues discussed below. To summarize, DeSavieu was found guilty of murdering Raymond Johnson (“Johnson”), a firefighter, on an “L” platform. While the two were fighting, DeSavieu fell onto the train tracks. From there DeSavieu pulled a gun and shot Johnson in the abdomen. DeSavieu climbed back onto the platform and struggled again with Johnson. More shots were fired, including one which hit Johnson in the neck. Either of the two wounds could have killed Johnson. DeSavieu claimed self-defense at trial and refused a jury instruction on voluntary manslaughter.

DeSavieu raises ten issues in his petition, to which the State responds both procedurally and substantively. First, it claims that most of these claims were waived for purposes of collateral federal review because (1) they had not been properly objected to and therefore preserved at trial, and/or (2) they had not been properly presented in a post-trial motion in state court. Second, the State argues that DeSavieu’s claims either raise no federal constitutional issue or are simply meritless. Of the ten claims DeSavieu raises in his petition, only three are considered in his brief. Accordingly, we will focus on those claims first. However, since DeSavieu is proceeding pro se, we have also reviewed and briefly discuss in this opinion the claims raised in his petition, but not briefed.

A. The Voluntary Manslaughter Issues

DeSavieu raises two arguments concerning his conviction for murder, rather than voluntary manslaughter. First, he claims that the trial court failed to determine whether he had knowingly and intelligently waived his right to a jury instruction on the lesser included offense of manslaughter. Second, he claims alternatively that the evidence failed to support a murder conviction but at most supported a conviction for manslaughter.

At the outset we reject the State’s argument that the above and other of De-Savieu’s claims were waived when he allegedly failed to include those claims in his written post-trial motion for a new trial. A state appellant must include claims in such a post-trial motion in order to preserve them for appeal. See Ill.Rev.Stat. ch. 38, ¶ 116-1; People v. Nelson, 41 Ill.2d 364, 36, 243 N.E.2d 225, 226 (1968); People v. Beasley, 109 Ill.App.3d 446, 449, 65 Ill.Dec. 106, 108, 440 N.E.2d 961, 963 (1st Dist.1982). Moreover, such a procedural waiver also amounts to a waiver of the claims for federal habeas corpus purposes, absent “cause and prejudice” for the waiver. See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); U.S. ex rel. Spurlark v. Wolff, 699 F.2d 354 (7th Cir.1983) (en banc). Nevertheless, we do not agree that the arguments were waived on this basis. The State raised this particular waiver issue in its brief on appeal, and DeSavieu (then represented by counsel) opposed the argument. The appellate court never discussed this waiver issue and indeed reached the merits of several of the issues allegedly waived on this basis. Because of the foregoing, we conclude that the appellate court decided implicitly that the issues appealed were not waived because of a defective post-trial motion. We of course will not disturb such a state law ruling, even an implicit one, on collateral review. Cf. United States ex rel. Crist v. Lane, 745 F.2d 476, 482 (7th Cir.1984) (if state court ignores a procedural default and reaches merits, federal court may reach merits as well), cert. denied, — U.S. -, 105 S.Ct. 2146, 85 L.Ed.2d 503 (1985).

The State makes a separate waiver argument, however, which does have merit concerning the trial court’s failure to give a voluntary manslaughter instruction to the jury. It appears that DeSavieu’s trial counsel had prepared such a “lesser included offense” instruction, but that DeSavieu disagreed with counsel’s advice, directed him not to tender the instruction and signed a waiver to that effect. Following Sykes and Isaac, we hold that this waiver of the instruction constitutes a waiver of the issue for habeas corpus purposes as well, absent “cause and prejudice” for the waiver. DeSavieu contends that he did not knowingly and intelligently waive his right to the instruction. Presumably, he is arguing that his involuntary waiver amounts to both cause for the waiver and prejudice requiring a new trial. Even if we were to assume that a knowing and intelligent waiver on his part is constitutionally required, and that an involuntary waiver would constitute “cause” under Sykes, the State Appellate Court in reviewing the record found that the waiver was knowing and intelligent. See 120 Ill.App.3d at 426, 76 Ill.Dec. at 108, 458 N.E.2d at 508. De-Savieu has not persuaded us that this finding was incorrect.

Even if this claim were not waived, habeas relief would be foreclosed since no federal constitutional claim has been raised. While in Illinois, as well as federal court, a defendant has the right, if he requests, to an instruction on a lesser included offense (such as manslaughter) if it has a minimal foundation in evidence, see, e.g., United States v. Creamer, 555 F.2d 612, 616 (7th Cir.1977) (reh’g denied), cert. de nied, 434 U.S. 833, 98 S.Ct. 118, 54 L.Ed.2d 93 (1977); People v. Frank, 98 Ill.App.3d 388, 396, 54 Ill.Dec. 49, 55, 424 N.E.2d 799, 805 (2d Dist.1981), cert. denied, 456 U.S. 927, 102 S.Ct. 1973, 72 L.Ed.2d 442 (1982), the failure of a state court to give such an instruction generally does not “present a federal constitutional question and will not be considered in a federal habeas corpus proceeding.” United States ex rel. Peery v. Sielaff, 615 F.2d 402, 404 (7th Cir.1979), cert. denied, 446 U.S. 940, 100 S.Ct. 2163, 64 L.Ed.2d 794 (1980), quoting James v. Reese, 546 F.2d 325, 327 (9th Cir.1976). The omission of the instruction would warrant habeas relief only if it amounted to a “fundamental defect which inherently results in a complete miscarriage of justice [or] an omission inconsistent with the rudimentary demands of fair procedure.” Id., quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962). DeSavieu carries an “especially heavy” burden of proving that an omitted instruction so fundamentally sabotaged his right to a fair trial. Id. He has not met this burden. He claims that the trial court had a duty to give the instruction, sua sponte, over his objection. While Illinois courts apparently give a trial court discretion to issue the instruction sua sponte, they do not compel it to do so. See People v. Taylor, 36 Ill.2d 483, 489, 224 N.E.2d 266, 270 (1967). The appellate court here found no abuse of discretion. 120 Ill.App.3d at 425, 76 Ill.Dec. at 108, 458 N.E.2d at 108. If, as Peery holds, a failure to give a requested voluntary manslaughter instruction violates the federal constitution only in exceptional circumstances, failure to give, sua sponte, an apparently unwanted voluntary manslaughter instruction raises a constitutional problem only in extremely rare cases. This is not such a rare case. The failure to give this instruction sua sponte did not inherently result in a complete miscarriage of justice.

We also reject DeSavieu’s alternative argument that the evidence at most shows that he committed manslaughter, not murder, and that the conviction must be accordingly reduced. In this regard, DeSavieu does raise a colorable constitutional issue. In Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, reh’g. denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979), the Supreme Court held that habeas corpus relief may be granted if, after construing all inferences and conflicts in the evidence in the light most favorable to the government, no rational trier of fact could have concluded beyond a reasonable doubt that the defendant committed the crime charged. 443 U.S. at 319, 99 S.Ct. at 2789; United States ex rel. Fuller v. Att’y Gen’l of Illinois, 589 F.Supp. 206, 211 (N.D.Ill.1984) (Aspen, J.), aff'd w/o opinion, 762 F.2d 1016 (7th Cir. 1985). However, after reviewing the conflicts in the evidence, we agree with the Illinois Appellate Court that a reasonable jury could have found DeSavieu guilty of murder beyond a reasonable doubt. 120 Ill.App.3d at 426, 76 Ill.Dec. at 108, 458 N.E.2d at 504. DeSavieu essentially asks ■ us to believe his version of the story, not that of other witnesses. A reasonable jury could have chosen to disbelieve him and believe them. We cannot reverse their finding, even if we believed that DeSavieu’s story were the more credible one.

B. Alleged Prosecutorial Misconduct

DeSavieu challenges several of the prosecutor’s tactics, which he argues were’ intended to, and did in fact, inflame the passions of the jury and deprive him of a fair trial. Specifically, he complains of the prosecutor’s repeated references to Johnson as a firefighter, of the introduction in evidence of a photograph of Johnson and his family, of references to Johnson’s family and of repeated characterizations (over sustained defense objections) of Johnson as “the victim.” DeSavieu admitted in his appellate brief, at 57, that he failed to object at trial to all but the “victim” remarks. The Appellate Court held that these failures to object waived the alleged errors for appeal. 120 Ill.App.3d at 432, 76 Ill.Dec. at 113, 458 N.E.2d at 513. Once again following Sykes and Isaac, we must hold that DeSavieu cannot resuscitate those claims for habeas corpus review.

With respect to the characterization of Johnson as a victim, the Appellate Court held that such remarks, even if improper, did not deprive DeSavieu of a fair trial considering all of the evidence in the case. Id. We agree.

In habeas corpus review, a district court may approach alleged prosecutorial misconduct in one or both of two ways. It may report the prosecutor to the appropriate disciplinary board, and/or it may grant the writ, if the comments did in fact deny the defendant due process. See United States ex rel. Crist v. Lane, 745 F.2d 476, 482 (7th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 2146, 85 L.Ed.2d 503 (1985). To decide whether due process was denied, we consider not the culpability of the prosecutor, but how his or her conduct affected the fairness of the trial when viewed in its entirety. Id.

The focus of federal due process review is to ensure that alleged improper prosecutorial argument does not warp the factfinding function of the jury by deflecting its attention from the evidence presented at trial____ The Constitution guarantees a fair trial, not a perfect one. Jentges v. Milwaukee County Circuit Court, 733 F.2d 1238, 1244 (7th Cir.1984). A trial is fundamentally fair if it results in a verdict reached through consideration of evidence properly admitted and which is untainted by improper influences. Thus, it is the totality of the effect of the alleged errors, not their mere presence or their number, which gives rise to, or defeats, a due process claim. Id. at 1242. Rose v. Duckworth, 769 F.2d 402, 405 (7th Cir.1985).

Id.; see also United States ex rel. Dampier v. O’Leary, 595 F.Supp. 747, 751 (N.D. Ill.1984) (Aspen, J.), aff'd on opinion below, 774 F.2d 1168 (7th Cir.1985). The prosecutor’s characterization of Johnson as “the victim” so tainted the trial that the jury did not base its decision on the evidence before it. Considering the record before us, the conduct was not so inflammatory or prejudicial that the trial was unfair.

C. Other Issues

DeSavieu raises a host of other issues by referring us to his state court appellate brief. First, with respect to his argument that the trial court did not allow him to probe one witness about current drug usage and a past conviction for such use, the Appellate Court held that he had failed to preserve the issue for appeal. 120 Ill.App.3d at 428-30, 458 N.E.2d at 110-11. Although the court also reached the merits on these issues, its rulings on waiver constituted an independent and adequate state law ground for the decisions, which foreclose federal habeas corpus review, absent “cause and prejudice.” See Farmer v. Prast, 721 F.2d 602, 606 (7th Cir.1983). No such “cause” has been shown. Second, DeSavieu’s challenge to the length of his sentence presents no cognizable federal constitutional issue. Third, we perceive no constitutional error concerning the conduct of voir dire. Finally, we have examined DeSavieu’s remaining claims and find them similarly lacking in merit.

D. Conclusion

For the foregoing reasons, DeSavieu’s petition for a writ of habeas corpus is denied, and judgment is entered for the State. It is so ordered.

      . Illinois defines the crime of voluntary manslaughter as follows:
      (a) A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:
      (1) The individual killed,
      ******
      (b) A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code [defining, e.g., self-defense], but his belief is unreasonable.
      DeSavieu believes that a voluntary manslaughter conviction was possible under either of the two definitions above. First, he claims that his fight with Johnson constituted a “mutual struggle" which reasonably excited his intense and sudden passion. Second, he argues that he acted in self-defense, but even if not, his unreasonable belief that he was acting in self-defense warranted, at most, a manslaughter conviction.

      . Nor are we inclined to report the prosecutor to the disciplinary board, although the prosecutor should stand warned that his conduct was ill-advised and could get him into trouble in the future.


author: JOSEPH H. YOUNG, District Judge.

text:
    Michael RECTOR v. LOCAL UNION NO. 10, INTERNATIONAL UNION OF ELEVATOR CONSTRUCTORS.
    Civ. No. Y-85-1142.
    United States District Court, D. Maryland.
    Oct. 31, 1985.
    Oliver Denier Long, Bethesda, Md., for plaintiff.
    James R. O’Connell, Rockville, Md., for defendant.
   MEMORANDUM

JOSEPH H. YOUNG, District Judge.

Defendants have filed a motion to dismiss. For purposes of that motion, this Court must accept the allegations in plaintiff’s complaint as true. Plaintiff Michael Rector claims that he was hurt on the job in September, 1983. He telephoned his union, defendant Local No. 10, International Union of Elevators Constructors, and an officer of the defendant told Rector that he did not have to pay his union dues while he was receiving workmen’s compensation. On April 1,1984, defendant expelled Rector for nonpayment of dues. Rector alleges that he received no notice of expulsion proceedings against him, that he did not know of the expulsion until July 15, and that the union has refused to let him appeal his case before the executive board of the local. Rector filed suit in this Court March 18, 1985, claiming that the union’s action violated Title 29 U.S.C. § 411(a)(5), and basing federal jurisdiction on 29 U.S.C. § 412 (Labor-Management Reporting and Disclosure Act).

Defendant argues that Rector’s claims are time-barred. Congress has not explicitly provided a statute of limitations for suits under the LMRDA, 29 U.S.C. § 412, and defendant suggests that this Court apply the six-month limitations period for filing charges with the National Labor Relations Board alleging unfair labor practices. Title 29 U.S.C. § 160(b). Defendant cites the Supreme Court’s decision in DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), where the Court applied § 160(b)’s six-month limitation period to a “hybrid” suit brought against both a union and employer under 29 U.S.C. § 185, and a host of cases extending DelCostello and applying the six-month period to claims under 29 U.S.C. § 412. Vallone v. Teamster Local 705, 755 F.2d 520, 118 LRRM 2546 (7th Cir.1984) (per curiam); Local Union 1397 v. United Steelworkers, 748 F.2d 180 (3rd Cir.1984); Linder v. Berge, 739 F.2d 686 (1st Cir.1984); Turco v. Local Lodge 5, International Brotherhood of Boilermakers, 592 F.Supp. 1293 (E.D.N.Y.1984); and Yanik v. Nielsen Freight Lines, Inc., 115 LRRM 3295 (N.D.Cal.1983).

DelCostello involved two consolidated cases with similar facts. In each case, employees brought grievances against their employers to their unions, which represented the employees through a contractually agreed-upon grievance procedure. Failing to get satisfaction from the collective-bargaining agreement grievance procedures, the employees brought suits against both the employers and the unions alleging that the employers violated the collective-bargaining agreements, and that the unions breached their implied duty of fair representation.

The Court’s opinion began by noting that in cases where Congress did not provide an explicit limitation period for a federal cause of action, or did not indicate its intent in the legislative history, “We have generally concluded that Congress intended that the courts apply the most closely analogous statute of limitations under state law.” DelCostello, supra, 462 U.S. at 158, 103 S.Ct. at 2287 (footnote omitted). The Court stated the exception to that general rule, from which the entire DelCostello opinion proceeded, at 462 U.S. 161, 103 S.Ct. 2289:

In some circumstances, however, state statutes of limitations can be unsatisfactory vehicles for the enforcement of federal law. In those instances, it may be inappropriate to conclude that Congress would choose to adopt state rules at odds with the purpose or operation of federal substantive law.

The Court then defined the crucial policy considerations behind the DelCostello ruling as it distinguished its holding in Auto Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966). In Hoosier, a union sued an employer for breach of a collective-bargaining agreement under 29 U.S.C. § 185. The collective-bargaining agreement did not involve any agreement to submit disputes to arbitration. Resisting the suggestion to establish a uniform federal period of limitations for such lawsuits, the Court applied Indiana’s six-year period for actions on unwritten contracts. Explaining the Hoosier decision, the DelCostello Court said:

we reasoned that national uniformity is of less importance when the case does not involve “those consensual processes that federal labor law is chiefly designed to promote — the formation of the collective bargaining agreement and the private settlement of disputes under it,” [Hoosier, supra,] 383 U.S. at 702 [86 S.Ct. at 1111]. We also relied heavily on the obvious and close analogy between this variety of § 301 suit and an ordinary breach-of-contract case.

DelCostello, supra, 462 U.S. at 162-163, 103 S.Ct. at 2289.

Applying those two factors to the facts in DelCostello, the Court noted that the plaintiffs there sought to challenge the private settlement of a dispute under procedures created by a collective-bargaining agreement. Quoting its decision in United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, at 63-64, 101 S.Ct. 1559, at 1564-1565, 67 L.Ed.2d 732 (1981), the Court said “ ‘the grievance machinery under a collective-bargaining agreement is at the very heart of the system of industrial self-government,’ ” 462 U.S. at 168, 103 S.Ct. at 2292.

[T]he grievance and arbitration procedure often processes disputes involving interpretation of critical terms in the collective-bargaining agreement affecting the entire relationship between company and union____ This system, with its heavy emphasis on grievance, arbitration, and the “law of the shop,” could easily become unworkable if a decision which has given “meaning and content” to the terms of an agreement, and even affected subsequent modifications of the agreement, could suddenly be called into question as much as [three] years later.

DelCostello, supra, 462 U.S. at 169, 103 S.Ct. at 2293.

The Court held that analogies to state actions for the vacation of arbitration awards or legal malpractice were poor analogies to 29 U.S.C. § 185 “hybrid” suits because of the interrelationship of the claims against the employer and the union, and for several other reasons not relevant here. But the Court found a workable analogy between “hybrid” suits and complaints of unfair labor practices brought under 29 U.S.C. § 160(b), especially between the “hybrid” claim against the union for breach of the duty of fair representation and a claim against a union for unfair labor practices: “duty of fair representation claims are allegations of unfair, arbitrary, or discriminatory treatment of workers by unions — as are virtually all unfair labor practice charges made by workers against unions. Similarly, it may be the case that alleged violations of an employer of a collective-bargaining agreement will also amount to unfair labor practices.” 462 U.S. at 170, 103 S.Ct. at 2293-2294.

The Court noted that the policy considerations underlying Congress’ choice of a six-month limitations period for § 160(b) complaints also applied to hybrid suits under § 185. Because of the emphasis this section of the DelCostello opinion has received in subsequent decisions, it is appropriate to quote the Court’s analysis at length:

“In § 10(b) of the NLRA, Congress established a limitations period attuned to what it viewed as the proper balance between the national interests in stable bargaining relationships and finality of private settlements, and an employee’s interest in setting aside what he views as an unjust settlement under the collective-bargaining system. That is precisely the balance at issue in this case. The employee’s interest in setting aside the ‘final and binding’ determination of a grievance through the method established by the collective-bargaining agreement unquestionably implicates ‘those consensual processes that federal labor law is chiefly designed to promote — the formation of the ... agreement and the private settlement of disputes under it.’ Hoosier, 383 U.S. at 702 [86 S.Ct. at 1111]. Accordingly, ‘[t]he need for uniformity’ among procedures followed for similar claims, ibid., as well as the clear congressional indication of the proper balance between the interests at stake, counsels the adoption of § 10(b) of the NLRA as the appropriate limitations period for lawsuits such as this.”

DelCostello, supra, 462 U.S. at 171, 103 S.Ct. at 2294, quoting Mitchell, supra, 451 U.S. at 70-71, 101 S.Ct. at 1567-1568 (Stewart, J., concurring in judgment).

As defendants have pointed out, three Circuit Courts of Appeals have applied § 160(b)’s six-month limitations period to suits under the LMRDA in the wake of DelCostello. The First Circuit did so in a suit that combined a breach of duty of fair representation claims with a § 412 claim under the LMRDA. Linder v. Berge, 739 F.2d 686 (1st Cir.1984). Plaintiffs in that case were railway workers, and brought their fair representation claim under the Railway Labor Act, 45 U.S.C. § 151 et seq. The Linder opinion spent most of its time finding that the reasoning of DelCostello on fair representation claims under § 185 applied with equal force to the Railway Labor Act.

The Court dealt with plaintiffs’ rather trivial LMRDA claims at the end of the opinion. Plaintiffs claimed that the union had violated § 414 of the LMRDA by failing to give them copies of the collective-bargaining agreement. Section 414 provides for enforcement through § 440, which authorized the Secretary of Labor to bring a civil suit to enforce the rights of union members. Adding to the difficulties of interpretation, plaintiffs were former members of the union suing for damages. Avoiding the thorny problem of whether § 440 precluded a § 412 suit by former union members, the First Circuit wrote: “We have no need to decide whether such an action is appropriate, for we believe that, in the circumstances of this case, any such action should be governed by the same statute of limitations as governs the unfair representation claim.” Id. at 690. The First Circuit never explained its reasoning; this Court can only guess as to which circumstances of the case it was referring to.

In a Per Curiam opinion by a panel that included former Chief Judge Clement F. Haynsworth, Jr. of the Fourth Circuit, the Seventh Circuit reached the same result with a fuller explanation. Vallone v. Teamster Local 705, 755 F.2d 520, 118 LRRM 2546 (7th Cir.1984). In Vallone, plaintiffs brought a duty of fair representation claim against their union locals under 29 U.S.C. § 185, and also alleged that the locals deprived them of their rights to free speech, assembly, due process, and an equal vote in union affairs in violation of the LMRDA. The Seventh Circuit held that the reasoning of DelCostello applied with equal force to LMRDA claims, and ruled that the six-month limitations period applied to the LMRDA claims.

The Seventh Circuit identified three factors that explained the result in DelCostello:

because of the strong federal policy favoring uniformity of labor laws and the “rapid final resolution of labor disputes,” and because in Section 10(b) “Congress established a limitations period attuned to what it viewed as the proper balance between the national interest in stable bargaining relationships and finality of private settlements, and an employee’s in setting aside what he views as an unjust settlement under the collective-bargaining system.”

Vallone, supra, 755 F.2d 520, 118 LRRM at 2547.

The context of DelCostello was important to all three of the factors mentioned by the Seventh Circuit, however, and LMRDA claims differ from DelCostello “hybrid” suits in one crucial respect— LMRDA claims enforce only a union member’s rights against her union. They do not involve a challenge to the outcome of a dispute between the employer and the union (acting as the representative of an employee) that has already been resolved by procedures established in a collective-bargaining agreement.

So, for example, the Court in DelCostello wrote “national uniformity is of less importance when the case does not involve ‘those consensual processes that federal labor law is chiefly designed to promote — the formation of the collective agreement and the private settlement of disputes under it.’” DelCostello, supra, 462 U.S. at 162-163, 103 S.Ct. at 2289-2290, quoting Hoosier, supra, 383 U.S. at 702, 86 S.Ct. at 1111. And the quote about federal policy favoring the speedy resolution of labor disputes was also referring to disputes already processed by grievance and arbitration procedures. See DelCostello, 462 U.S. at 168-169, 103 S.Ct. at 2292-2293.

Finally, the Seventh Circuit quoted only the first sentence of Justice Stewart’s concurring opinion in Mitchell about the balanee of policy considerations that Congress had drawn when it established a six-month limitations period for § 160(b) suits. The DelCostello Court quoted Justice Stewart’s next three sentences as well (see page 5 above), and those sentences make it clear that Justice Stewart and the DelCostello Court were contemplating the balance of policy considerations in a lawsuit challenging the outcome of a grievance already processed according to a collective-bargaining agreement. DelCostello, supra, 462 U.S. at 171, 103 S.Ct. at 2294.

The policy considerations to weigh in establishing a limitations period for an LMRDA suit are somewhat different. The LMRDA is a union member’s “Bill of Rights” protecting her from arbitrary action by a union bureaucracy. The importance of those rights in our legal system should lead us to give union members every opportunity to vindicate those rights, instead of searching out a short period of limitations that has the effect of time-barring meritorious claims.

The Third Circuit disagreed with any such distinction between LMRDA claims and § 160(b) unfair labor practice claims, writing that they bear a “family resemblance:”

Both section 8(b)(1) of the NLRD and section 102 [of the LMRDA] are addressed to the same basic concern: the protection of individual members from arbitrary action by unions, which have been appointed the exclusive representatives of such individuals in the workplace____ In our scheme of labor relations, a union has but one function: the representation of individual workers in collective bargaining with their employer. Whether an individual’s dispute with his union concerns an “internal” matter, such as the freedom to speak against union leadership, or an “external” matter, such as the processing of grievances, every dispute implicates the responsibility that a union has for the economic welfare of its members____ [R]apid resolution of internal union disputes is necessary to maintain the federal goal of stable bargaining relationships, for dissension within a union naturally affects that union’s activities and effectiveness in the collective bargaining arena.

Local Union 1397 v. United Steelworkers, 748 F.2d 180, 183-184 (3rd Cir.1984). The Third Circuit also applied a six-month period of limitations to LMRDA claims.

This Court simply cannot accept the Third Circuit’s depressing and one-dimensional view of the function of unions in our society. Besides advancing the economic interests of their members, unions offer employees an opportunity to participate in decisions that affect the quality of their working lives. Participation has an independent value of its own; the LMRDA protects rights of participation.

Federal labor law should not be procedurally determined to resolve LMRDA claims quickly in a vain attempt to protect unions from diversity. Congress had precisely the opposite intent in mind when it wrote the LMRDA. It is true that LMRDA claims divert the resources of a union, thereby subtracting from its “effectiveness in the collective bargaining arena.” But LMRDA claims rarely affect the viability of a union as a bargaining unit. Section 412 suits cannot overturn the results of union certification elections, nor overturn the elections of union officials.

Defendants emphasize the “family resemblance” argument advanced by the Third Circuit, suggesting that plaintiff’s claims in this case “arguably” involve violations of 29 U.S.C. § 158(b)(1)(A) or (b)(2), sections of the code defining unfair labor practices. The two district court opinions applying a six-month limitations period after DelCostello also emphasized the “family resemblance” argument. McConnell v. Chauffeurs, Teamsters, and Helpers Local 445, 606 F.Supp. 460, 463-464 (S.D.N.Y.1985); Turco v. Local Lodge 5 Int. Brotherhood of Boilermakers, 592 F.Supp. 1293, 1294, n. 1 (E.D.N.Y.1984). The argument proceeds from one paragraph of the Del-Costello opinion: “Even if not all breaches of the duty of fair representation are unfair labor practices, however, the family resemblance is undeniable, and indeed there is a substantial overlap____ [D]uty of fair representation claims are allegations of unfair, arbitrary, or discriminatory treatment of workers by unions — as are virtually all unfair labor practice charges made by workers against unions.” 462 U.S. at 170, 103 S.Ct. at 2293.

That section of the opinion was merely one prong of the second factor stressed by the DelCostello Court in reaching its result. The most important factor in the DelCostello opinion, given the general rule of borrowing state limitations periods unless the state periods would interfere with federal policy, was the Court’s determination that the policy considerations underlying the Congressional choice of a six-month period for § 160(b) claims also applied to § 185 hybrid suits. The second factor was the analogy between unfair labor practice claims and § 185 hybrid suits challenging the outcome of grievance procedures established under a collective-bargaining agreement.

There were two prongs to this second factor. First, the Court found that analogies between state actions for legal malpractice or to vacate arbitration awards were inapposite. Second, the Court found a “family resemblance” between unfair labor practice complaints and hybrid § 185 suits. See discussion above at pp. 175-176. Thus, the “family resemblance” argument unduly emphasizes one part of the DelCostello opinion, ignoring its relationship to the other factors behind the Court’s decision and its relationship to the facts of the case.

This Court has already expressed its belief that the policy considerations underlying a choice of a limitations period for § 185 hybrid suits and § 160(b) unfair labor practice complaints are different than the considerations applying to LMRDA claims. And in this case, there is an excellent analogy to a state law cause of action. Plaintiff claims that he relied to his' detriment upon a representation made by a representative of the defendant, a representation that defendant’s representative knew he would rely on and intended him to rely on. Plaintiff has advanced a simple claim of promissory estoppel. Maryland’s three year statute of limitations for contract actions, Md.Cts. & Jud.Proc.Code Ann. § 5-101, thus provides an excellent analogy to the facts of this case. There is thus an “obvious state-law choice for application to a given federal cause of action____” Del-Costello, supra, 462 U.S. at 171, 103 S.Ct. at 2294.

It is true that plaintiff’s claims might also be characterized as an “unfair labor practice.” But here defendant’s “family resemblance” argument proves too much; virtually all LMRDA claims and § 185 claims against unions could be characterized the same way. Applying defendant’s argument to its logical extreme, defendant is arguing that the “family resemblance” language in DelCostello supports a uniform six-month limitations period for all lawsuits against unions by their members.

DelCostello simply does not support such a proposition. In fact, at the conclusion of the DelCostello opinion, the Supreme Court expressly rejected any such uniform application of its reasoning, and counseled federal courts to continue using a flexible approach:

We stress that our holding today should not be taken as a departure from prior practice in borrowing limitations periods for federal causes of action, in labor law or elsewhere. We do not mean to suggest that federal courts should eschew use of state limitations periods anytime state law fails to provide a perfect analogy. On the contrary, as the courts have often discovered, there is not always an obvious state-law choice for application to a given federal cause of action; yet resort to state law remains the norm for borrowing of limitations periods.

462 U.S. at 171, 103 S.Ct. at 2294.

This Court holds that Maryland’s three-year statute of limitations for contract actions applies to this case, and that plaintiff’s suit was timely filed.

Defendant also argues that the doctrine of preemption gives the National Labor Relations Board exclusive jurisdiction over this suit, citing Garner, Central Storage & Transfer Co. v. Teamsters Local 776, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228 (1953). The Supreme Court has held that preemption does not apply when the suit does not involve issues within the special competence of the NLRB. This is such a case. The resolution of this dispute in no way implicates national labor policy. And it does not raise questions beyond “the conventional experience of judges.” Boilermakers v. Hardeman, 401 U.S. 233, 238-239, 91 S.Ct. 609, 613-614, 28 L.Ed.2d 10 (1971).

Defendant tries to distinguish Hardeman by arguing that plaintiff has not advanced a cognizable claim under the LMRDA, and that therefore plaintiffs claim falls under the exclusive jurisdiction of the NLRB or it doesn’t exist. Plaintiff filed suit alleging a violation of 29 U.S.C. § 411(a)(5), which reads:

No member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization or by any officer thereof unless such member has been (A) served with written specific charges; (B) given a reasonable time to prepare his defense; (C) afforded a full and fair hearing. (Emphasis added).

Defendant argues that plaintiff was expelled for nonpayment of dues. Because the Court holds that live issues of fact remain as to whether federal jurisdiction exists, see Howard v. United Association for Journeymen and Apprentices, 560 F.2d 17 (1st Cir.1977), and as to whether defendant is equitably estopped from challenging jurisdiction on the nonpayment of dues exception, the Court holds that defendant’s preemption argument fails as well.

Accordingly, defendant’s motion to dismiss is DENIED.

ON MOTION FOR RECONSIDERATION

The defendant has moved for reconsideration of an Opinion issued October 31, 1985. After the parties briefed the relevant issue, two circuit courts of appeals applied Section 10(b)’s six-month limitation period to LMRDA claims. Davis v. Automobile Workers, 765 F.2d 1510 (11th Cir. 1985); Adkins v. Electrical Workers, 769 F.2d 330 (6th Cir.1985).

The Sixth Circuit case involved a hybrid claim similar to DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). Unlike DelCostello, however, the claims against the unions in Adkins did not involve the resolution of individual employee grievances pursuant to procedures established by a collective bargaining agreement. In Adkins, a class of employees filed suit against a series of union bargaining units, alleging that the unions had breached their duty of fair representation by discriminating against the plaintiff class during the negotiations of labor contracts. Plaintiffs argued that DelCostello applied only to employee grievance claims and the Court held that DelCostello’s choice of the six-month limitations period applied to all unfair representation claims. 769 F.2d at 335.

Clearly the unfair representation claims in Adkins implicated the finality of collective bargaining agreements already in place. Thus, the policy underpinning of DelCostello — a desire to rapidly resolve labor disputes which threaten the finality of collective bargaining agreements — applied with full force. The October Opinion explained that this case is different from those hybrid suits because it does not implicate the federal policy concerns articulated in DelCostello, and because there is a closely analogous state period of limitations available.

The Eleventh Circuit case, Davis v. Automobile Workers, supra, is directly on point. There the Court applied a six-month limitations period to bar an individual union member’s suit alleging that his statutorily created free speech rights within the union had been violated. The Court noted:

an action alleging a violation of 29 U.S.C. § 411 is brought only against the union; the employer is not involved. Therefore, the national interests in stable labor-management bargaining relationships and the speedy, final resolution of disputes under a collective bargaining agreement are not implicated. Accordingly, the need for national uniformity in the application of limitation periods to such an action is not as great. Furthermore, a union member’s interest in protection against the infringement of his rights of free speech rises to a national interest, as embodied in Section 101(a)(2) of the LMRDA, 29 U.S.C. § 411(a)(2), and thus seems of greater importance than an employee’s interest in setting aside an individual settlement under a collective bargaining agreement.

765 F.2d at 1514 (citations and footnote omitted).

In a footnote the Court rejected the Third Circuit’s argument that “dissension within a union naturally affects the union’s activities and effectiveness in the collective bargaining arena.” Local Union 1397, supra, 748 F.2d at 184. The Eleventh Circuit wrote that the Third Circuit’s argument “appears rather tenuous in the situation of a single dispute between an individual union member and the union.” Davis v. Automobile Workers, supra, 765 F.2d at 1514, n. 11.

Although recognizing the strong policy arguments against applying a six-month limitations period to LMRDA union “bill of rights” cases, the Eleventh Circuit was “constrained by the rationale of DelCostello and the holdings of our sister circuits,” and applied the six-month period anyway. This Court has explained the reasons the DelCostello opinion does not support the broad reading and sweeping application given it by other federal courts.

The sheer number of cases applying Section 10(b)’s six-month limitation period to LMRDA suits indicates that such a brief time has the practical effect of barring many potentially meritorious claims. Until the Supreme Court or the Fourth Circuit provide clear instructions to depart from the general rule of applying analogous state limitations periods to LMRDA claims, this Court will hold to its reading of Del-Costello. Defendant’s motion to reconsider is denied.

In the alternative, defendant has moved for certification pursuant to 28 U.S.C. § 1292(b). That statutory provision allows an appeal from an interlocutory order if the District Court is of the opinion that

such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation____

Defendant has correctly outlined the virtually unanimous trend applying a six-month limitations period to LMRDA claims. There is thus substantial ground for difference of opinion with the Court’s order. The resolution of the limitations question is a potentially dispositive issue. An immediate appeal could advance the ultimate termination of the litigation. Defendant’s motion for certification will be granted.


author: BALLANTINE, District Judge.

text:
    Joseph Leon FOWLER, Jr., Plaintiff, v. CITY OF LOUISVILLE, et al., Defendants.
    No. C 83-0890-L(B).
    United States District Court, W.D. Kentucky, Louisville Division.
    Oct. 31, 1985.

      Philip C. Kimball, Louisville, Ky., for plaintiff.
    James H. Highfield, Paul Guagliardo, Louisville, Ky., for defendants.
   MEMORANDUM

BALLANTINE, District Judge.

This civil rights action, Title 42 U.S.C. Section 1983, is before the Court on cross motions for summary judgment.

Plaintiff, a lieutenant in the Louisville Division of Police, was discharged by the defendants Higgins, then Chief of Police, and Scholtz, then Director of Safety, from his position after he admittedly purchased a stolen examination which was shortly to be given to candidates for captain. Plaintiff intended to take the examination. His discharge was upheld by the defendant Louisville Civil Service Board.

Stripped of its hyperbole, plaintiff’s recitation of the background of this action discloses that plaintiff paid an officer named Graham $3,000.00 for the captain’s examination. Apparently Graham obtained the examination from two Louisville police officers who eked out their incomes by free lance burglary, including burglary of the Civil Service office.

When Higgins learned of plaintiff’s action he resolved to fire him, relying on Louisville Division of Police Rule 126, Section 12. That rule reads: “Any member or employee may be dismissed or suffer such other punishment as may be directed for violation of any of the rules, regulations, or orders or when found guilty of any of the following offenses: * * * * 12. Any other act or omission contrary to good order and discipline.” After his discharge, plaintiff appealed to the Civil Service Board which upheld his discharge. He appealed this decision to the Jefferson Circuit Court which affirmed the action of the Civil Service Board. The decision of the Jefferson Circuit Court was affirmed in an unpublished opinion by the Court of Appeals of Kentucky.

The Court perceives at least two significant impediments to plaintiffs action.

I. LIMITATIONS

The decision of the Civil Service Board was rendered November 29, 1978, and this action was filed September 6,1983.

In Wilson v. Garcia, — U.S. -, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), the Supreme Court, recognizing the conflict in lower court rulings and the applicable statute of limitations in Section 1983 actions, adopted a bright line rule that the most appropriate statute of limitations is the state statute relating to personal injury claims. The applicable statute in Kentucky is KRS 413.140(l)(a) which establishes a one-year statute of limitations for personal injury actions.

The question then is whether Wilson v. Garcia is to be applied retrospectively or prospectively only.

The Court’s research has disclosed a conflict in the circuits as to the retrospective application vel non of Wilson.

In Jackson v. City of Bloomfield, 731 F.2d 652 (10th Cir.1984), the Court gave prospective application to Wilson. It should be noted, however, that that case was decided before the Supreme Court decision in Wilson. The Wilson case upon which the Court of Appeals relied was its own decision and the same case which was eventually decided by the Supreme Court. Thus, this Court questions the continued vitality of City of Bloomfield.

In Smith v. City of Pittsburgh, 764 F.2d 188 (3rd Cir.1985), the court discussed at length the applicability of Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), to Wilson v. Garcia. The Court pointed to its decisions which held

“that where application of the law had been erratic and inconsistent, without clear precedent on which plaintiff could reasonably rely in waiting to file suit, a subsequent Supreme Court decision on the applicable limitations period cannot be said to have overruled clear past precedent on which the litigants may have relied.” 764 F.2d at 194.

Expanding further on Chevron, the City of Pittsburgh court weighed the merits and demerits in light of the desirability of furthering federal interest in uniformity, certainty, and minimization of unnecessary litigation. The Court concluded: “Although we cannot say that the policies referred to in Wilson v. Garcia militate clearly in favor of retrospective application, neither do they militate against such application.”

Finally, the Court considered the equities of retrospective application and determined that it would not be inequitable or harsh to apply Wilson retrospectively.

This Court determines that Wilson v. Garcia is to be applied retrospectively. In Smith v. General Motors Corp., 747 F.2d 372 (6th Cir.1984), the court held that the Supreme Court’s silence on the question of retroactivity in Del Costello v. Int’l Bro. of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), created an inference that the Supreme Court intended that decision to apply retroactively since it could have either reserved the issue or, as in Chevron, given it prospective application only.

The Court finds further support for retrospective application in Jones v. Preuit & Mauldin, 763 F.2d 1250 (11th Cir.1985). In that case the court in footnote 2 found that, “the facts cut[] in favor of retroactive application of Wilson____”

In sum, this Court concludes that Wilson v. Garcia is to be applied retrospectively. Since this circuit has not squarely faced this question, however, the Court will address what we perceive to be the second and equally compelling reason for granting defendant’s motion.

II. RES JUDICATA OR COLLATERAL ESTOPPEL

In Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980), respondent had been convicted in a state criminal prosecution. Prior to trial he had sought to suppress certain evidence claiming a Fourth Amendment violation. After his motion to suppress was denied, he was convicted. He was denied federal habeas relief since the state court had given him a full and fair opportunity to litigate his search and seizure claim. Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). Respondent then commenced a Section 1983 action against the police who had seized the evidence.

The Supreme Court recognized the traditional adherence of federal courts to the related doctrines of res judicata and collateral estoppel. Under res judicata a final judgment precludes relitigation of issues that were or could have been raised in the prior action. Under collateral estoppel, once a court has decided to issue a fact or law necessary to its judgment, that decision may preclude relitigation of that issue in another and later action involving a party in the first case.

The Allen Court rejected the Court of Appeals’s holding that every person asserting a federal right is entitled to one unencumbered opportunity to litigate that right in a federal district court.

In the case sub judice plaintiff brought an action in the Jefferson Circuit Court challenging the decision of the Civil Service Board. He alleged a constitutional deprivation of his right to equal protection. That argument was rejected by the court and on appeal the Court of Appeals of Kentucky affirmed the decision of the circuit court.

Only when a party against whom the earlier decision is asserted did not have a full and fair opportunity to litigate an issue will the court refuse to apply the concept of collateral estoppel.

Title 28 U.S.C. Section 1738, which implements Article IV, Section 1 of the Constitution, requires this Court to give the same full faith and credit to judicial proceedings as they would have in the state court. Section 1983 is not an exception to that concept.

In Migra v. Warren City School District, Etc., 465 U.S. 75, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984), the Court laid to rest the notion that even if state court action was issue preclusive, there was no claim preclusion bar to an action in federal court:

“Petitioner suggests that to give state-court judgments full issue preclusive effect but not claim preclusive effect would enable litigants to bring their state claims in state court and their federal claims in federal court, thereby taking advantage of the relative expertise of both forums. Although such a division may seem attractive from a plaintiff’s perspective, it is not the system established by [Section] 1738. That statute embodies the view that it is more important to give full faith and credit to state-court judgments than to ensure separate forums for federal and state claims. This reflects a variety of concerns, including notions of comity, the need to prevent vexatious litigation, and a desire to conserve judicial resources.
In the present litigation, petitioner does not claim that the state court would not have adjudicated her federal claims had she presented them in her original suit in state court. Alternatively, petitioner could have obtained a federal forum for her federal claim by litigating it first in a federal court. Section 1983, however, does not override state preclusion law and guarantee petitioner a right to proceed to judgment in state court on her state claims and then turn to federal court for adjudication of her federal claims. We hold, therefore, that petitioner’s state-court judgment in this litigation has the same claim preclusive effect in federal court that the judgment would have in the Ohio state courts.” 465 U.S. at 84-85, 104 S.Ct. at 898.

It is crystal clear to this Court that plaintiff has had a full and fair opportunity to litigate his claims in the state courts. He has done so and principles of comity and federalism dictate that he should be barred from relitigating them here.

CONCLUSION

The Court concludes that on either the limitations issue or the res judicata-collateral estoppel issue, plaintiffs complaint must be dismissed. The Court will therefore not address at length the argument that the regulation is unconstitutionally vague. It should be noted that plaintiffs argument that to withstand a challenge to vagueness the misconduct must have been so hard core that any reasonable person would know that the misconduct would be cause for discipline or discharge hoists him by his own petard. That plaintiff had any notion that purchasing an examination which he knew to be stolen would be condoned strains credulity to the sticking point. We agree with Judge Oldham who found plaintiffs proffered reason for his conduct — that he purchased the examination to keep others from cheating — incredible.

Defendant’s motion for summary judgment will be granted. Plaintiff’s motion for summary judgment will be denied, and an appropriate order has been entered this 31st day of October, 1985.