author: KANE, District Judge.

text:
    Robert S. TAFOYA, Plaintiff, v. James ADAMS and the City and County of Denver, Defendants.
    Civ. A. No. 84-K-1535.
    United States District Court, D. Colorado.
    July 8, 1985.

      Paul A. Baca, Denver, Colo., for plaintiff.
    Geoffrey S. Wasson, Denver, Colo., for defendants.
   MEMORANDUM OPINION AND ORDER

KANE, District Judge.

Plaintiff is a Mexican-American citizen of the United States. In 1980, while employed by the Parks and Recreation Department of the City and County of Denver, he filed a charge of discrimination with the Equal Employment Opportunity Commission. After this claim was settled, his supervisor, James Adams, allegedly told plaintiff he was going to “get rid” of him for having filed a charge of discrimination. Plaintiff claims that Adams then engaged in a course of conduct in retaliation for plaintiff’s previous charge of discrimination which led to plaintiff’s termination on January 20, 1984.

After being terminated, plaintiff filed yet another charge of discrimination with the EEOC. Upon receiving a “Right to Sue” letter, he brought the present action seeking recovery pursuant to the provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Civil Rights Acts of 1870 and 1871, 42 U.S.C. §§ 1981 and 1983.

The case is before me on defendants’ motion for partial summary judgment. Defendants seek a dismissal of the §§ 1981 and 1983 claims against defendant City and County of Denver and a dismissal of the § 1983 claim against defendant Adams. The first question raised by defendants’ motion is one of first impression in the Tenth Circuit: whether Title VII provides the exclusive cause of action which may be pursued in federal courts to remedy alleged violations of rights set forth in Title VII, by state and local governments, thereby precluding relief under §§ 1981 and 1983.

I.

Congress enacted Title VII of the Civil Rights Act of 1964 to prohibit discriminatory employment practices on the basis of race, color, religion, sex, or national origin. Title VII provides for a detailed and explicit regulatory scheme. In an attempt to resolve disputes through voluntary compliance, Congress empowered the EEOC to investigate charges of discrimination, promote voluntary conciliation with the requirements of Title VII, and institute civil actions against private entities engaging in employment discrimination.

An aggrieved employee must first file a claim with a state or local employment commission or the EEOC. The statute precludes immediate filing of judicial proceedings in order to encourage conciliation through administrative mechanisms. The EEOC, however, possesses no direct enforcement capacity and must request federal courts to issue injunctive orders and order affirmative relief.

A Title VII suit may be filed by either the EEOC or aggrieved individuals themselves. The time limitations for administrative and judicial filings are limited to insure expedited treatment of a plaintiff’s case. Once in court, Title VII provides for injunctive relief, including back pay for a two year period. General and punitive damages are not recoverable. The Act specifically provides for the prevailing party to recover attorney fees. Finally, because of the expedited nature of Title VII judicial proceedings, as well as the limitation to equitable relief, and legislative emphasis on conciliation as distinguished from litigation, there is no right to trial by jury. 42 U.S.C. § 2000e-5; Great Am. Sav. & Loan Ass’n v. Novotny, 442 U.S. 366, 372-75, 99 S.Ct. 2345, 2349-2350, 60 L.Ed.2d 957 (1979) ; Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974).

Section 1981 prohibits discrimination based upon race. It provides remedies as well as substantive rights. See Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975). Section 1983, on the other hand, does not create substantive rights. Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 616-18, 99 S.Ct. 1905, 1915-1916, 60 L.Ed.2d 508 (1979). It provides a remedy for the violation of rights created elsewhere. As the Supreme Court made clear in Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980) , § 1983 provides a remedy for actions under color of law which contravene federally protected rights, whether those rights derive from the Constitution or from a federal statute. Thus, independent of Title VII remedies, §§ 1981 and 1983 both provide remedies for racial discrimination by state officials in violation of the Fourteenth Amendment. See, e.g., Hazelwood School District v. United States, 433 U.S. 299, 310 n. 15, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977); Manzanares v. Safeway Stores, Inc., 593 F.2d 968, 971 (10th Cir.1979).

The procedural requirements of §§ 1981 and 1983 are quite different from those of Title VII. To assert a claim under §§ 1981 or 1983, a plaintiff need not exhaust available administrative remedies. Patsy v. Board of Regents of State of Florida, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982). In Colorado, §§ 1981 and 1983 are subject to a three year statute of limitations, rather than the Title VII requirements that claims be filed with the EEOC within 180 days “after the alleged unlawful employment practice occurred” and with a federal district court within 90 days of the issuance of the “Right to Sue” letter. 42 U.S.C. §§ 2000e-5(e) and 2000e-(5)(f)(l); McKay v. Hammock, 730 F.2d 1367, 1370 (10th Cir.1984); E.E.O.C. v. Gaddis, 733 F.2d 1373, 1377 (1984); see also Wilson v. Garcia, 471 U.S.-, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). Additionally, remedies under §§ 1981 and 1983 are more expansive than under Title VII. Under §§ 1981 and 1983, a plaintiff may obtain both equitable and legal relief, including compensatory and punitive damages. See Johnson, 421 U.S. 454, 459-60, 95 S.Ct. 1716, 1719-1720, 44 L.Ed.2d 295; Carey v. Piphus, 435 U.S. 247, 256-57 n. 11, 98 S.Ct. 1042, 1048-1049 n. 11, 55 L.Ed.2d 252 (1978).

II.

Discrimination in employment is actionable under the terms of §§ 1981 and 1983 as well as Title VII, and plaintiffs often allege violations of each based upon the same incident. The disparity in the remedies and procedural requirements between these statutes has caused considerable confusion and difficulty. Specifically, if violations of Title VII could be asserted through other, less restrictive statutes, such as §§ 1981 and 1983, the administrative process under Title VII could be completely bypassed. Also, the complainant could obtain remedies and procedural benefits not provided for by Title VII such as punitive damages and a jury trial.

In Brown v. General Services Admin., 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976), the United States Supreme Court expressed this concern as follows:

The balance, completeness, and structural integrity of § 717 [of Title VII] are inconsistent with the petitioner’s contention that the judicial remedy afforded by § 717(c) was designed merely to supplement other putative judicial relief ... Under the petitioner’s theory, by perverse operation of a type of Gresham’s law, § 717, with its rigorous administrative exhaustion requirements and time limitations, would be driven out of currency were immediate access to the courts under other, less demanding statutes permissible. The crucial administrative role that each agency together with the Civil Service Commission was given by Congress in the eradication of employment discrimination would be eliminated “by the simple expedient of putting a different label on [the] pleadings.” Preiser v. Rodriguez, 411 U.S. 475, 489-90, 36 L.Ed.2d 439, 93 S.Ct. 1827 [1836-37] (1973). It would require the suspension of disbelief to ascribe to Congress the design to allow its careful and thorough remedial scheme to be circumvented by artful pleading.

Brown, 425 U.S. 820, 832-33, 96 S.Ct. 1961, 1967-1968. The Court concluded that, in the 1972 amendment to § 717 of Title VII, which deals only with federal employees, Congress intended “to create an exclusive, pre-emptive administrative and judicial scheme for the redress of federal employment discrimination.” 425 U.S. 820, 829. Accordingly, the court held that a federal employee claiming job discrimination may proceed only under Title VII, and may not secure additional remedies by proceeding also under § 1981. 425 U.S. 820, 835, 96 S.Ct. 1961, 1969.

Similarly, in Novotny, the Court held that “deprivation of a right created by Title VII cannot be the basis for a cause of action under [42 U.S.C.] § 1985(c).” 442 U.S. 366, 378, 99 S.Ct. 2345. The Court reasoned that such a § 1985(c) action would avoid the comprehensive procedural and remedial purposes of Title VII:

If a violation of Title VII could be asserted through § 1985(c), a complainant could avoid most if not all of these detailed and specific provisions of the law. Section 1985(c) expressly authorizes compensatory damages; punitive damages might well follow. The plaintiff or defendant might demand a jury trial. The short and precise time limitations of Title VII would be grossly altered. Perhaps most importantly, the complainant could completely bypass the administrative process, which plays a crucial role in the scheme established by Congress in Title VII.

Novotny, 442 U.S. 366, 375-76, 99 S.Ct. 2345, 2350-51.

Additionally, in other contexts, the Court has held that § 1983 claims are precluded where another comprehensive statute is violated and provides a remedy. For example, in Middlesex County Sewerage Authority v. National Sea Clammers Ass’n, 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981), the Court held that the existence of the express remedies in the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq., and the Marine Protection, Research, and Sanctuaries Act of 1972, 33 U.S.C. § 1401 et seq., demonstrates that Congress intended to supplant any remedy that otherwise might be available under § 1983. 453 U.S. 1, 19-20, 101 S.Ct. 2615, 2626-2627. The Court reasoned that

[w]hen the remedial devices provided in a particular Act are sufficiently comprehensive, they may suffice to demonstrate congressional intent to preclude the remedy of suits under § 1983. As Justice Stewart, who later joined the majority in Maine v. Thiboutot, stated in Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 673 n. 2, 60 L.Ed.2d 508, 99 S.Ct. 1905 [1909 n. 2] (1979) (dissenting opinion), when “a state official is alleged to have violated a federal statute which provides its own comprehensive enforcement scheme, the requirements of that enforcement procedure may not be bypassed by bringing suit directly under § 1983.”

Sea Clammers, 453 U.S. 1, 20, 101 S.Ct. 2615, 2626.

Also, in Smith v. Robinson, — U.S. -, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984), the Court determined that Congress intended the Education of the Handicapped Act (EHA), 20 U.S.C. § 1400 et seq., “to be the exclusive avenue through which a plaintiff may assert an equal protection claim to a publicly financed special education.” 82 L.Ed.2d 746, 763. As in Sea Clammers, the Court found that

The EHA is a comprehensive scheme set up by Congress to aid the States in complying with their constitutional obligations____ Both the provisions of the statute and its legislative history indicate that Congress intended handicapped children with constitutional claims ... to pursue those claims through the carefully tailored administrative and judicial mechanism set out in the statute.

Smith, — U.S.-,-, 104 S.Ct. 3457, 3468, 82 L.Ed.2d 746, 763.

While these decisions do not directly address the issue in the present case, their import and reasoning are clear. Title VII is a comprehensive and detailed statutory scheme which provides specific remedies for rights created therein. To allow assertion of rights created by Title VII in a claim brought under another statute would be to subvert this comprehensive statutory scheme. Certainly, Congress did not intend this result. The legislative history, however, regarding the inclusion of state and local employees within the protection of Title VII indicates that Congress did not intend to preclude them from bringing §§ 1981 and 1983 claims completely.

Federal and state employees were brought under Title VII by the Equal Employment Opportunity Act of 1972, P.L. 92-261, 86 Stat. 103. The House bill was passed in lieu of the Senate bill, so I turn to the House Committee Report for guidance as to congressional intent. I quote from the committee report at length, because the context of the committee’s concern with pre-empting § 1983 is important to understanding the scope of Title VII.

While an individual has a right of action in the appropriate court if he has been discriminated against, the adequacy of protection against employment discrimination by state and local governments has been severely impeded by the failure of the Congress to provide Federal administrative machinery to assist the aggrieved employee.
[Sjtate and local governments constitute the only large group of employees in the nation who are almost entirely exempt from Federal nondiscrimination protections. Although the aggrieved individual may enforce his rights directly in the Federal district courts, this remedy ... is frequently an empty promise due to the expense and time involved in pursuing a Federal court suit.
The Committee feels that it is an injustice to provide employees in the private sector with an administrative forum in which to redress their grievances while at the same time, denying similar protection to the increasing number of state and local employees. Accordingly, H.R. 1746 provides the administrative remedies available to employees in the private sector should also be extended to state and local employees.
In establishing the applicability of Title VII to State and local employees, the Committee wishes to emphasize that the individual’s right to file a civil action in his own behalf, pursuant to the Civil Rights Act of 1870 and 1871, 42 U.S.C. §§ 1981 and 1983, is in no way affected ... Title VII was envisioned as an independent statutory authority meant to provide an aggrieved individual with an additional remedy to redress employment discrimination ... [T]he remedies available to the individual under Title VII are coextensive with the individual’s right to sue under the provisions of the Civil Rights Act of 1866, 42 U.S.C. § 1981, and that the two procedures augment each other and are not mutually exclusive. The bill, therefore, by extending jurisdiction to State and local government employees does not affect the existing rights that such individuals have already been granted by previous legislation.

H.R.Rep. No. 238, 92nd Cong., 2d Sess., reprinted in U.S.Code Cong. & Ad.News 2137, 2153-54 (1972) (emphasis added). The Committee then noted that Title VII was designed as a means to remedy discrimination prohibited by the Thirteenth and Fourteenth Amendments. The Committee continued:

Legislation to implement this aspect of the Fourteenth Amendment is long overdue, and the Committee believes that an appropriate remedy has been fashioned in the bill. Inclusion of state and local employees among those enjoying the protection of Title VII provides an alternate administrative remedy to the existing prohibition against discrimination perpetuated “under color of state law” as embodied in the Civil Rights Act of 1871, 42 U.S.C. § 1983.

H.R.Rep. No. 238, 92nd Cong., 2d Sess., reprinted in U.S.Code Cong. & Ad.News 2137, 2154 (1972) (emphasis added).

As indicated by the legislative history, Congress’ primary concern in bringing state and local employees under Title VII was to provide these individuals with access to the federal administrative scheme designed to combat employment discrimination. Clearly, Congress intended to permit individuals to pursue concurrently administrative options under Title VII and judicial remedies under §§ 1981 and 1983.

The legislative history, however, does not indicate whether Congress intended to permit the concurrent assertion of Title VII claims with §§ 1981 and 1983 claims in a single judicial proceeding. As noted above, when §§ 1981 and 1983 claims are brought in the same action as the Title VII claim, asserting violations of rights created by Title VII, the limited procedures and remedies of Title VII are subverted. It is inconsistent with the general statutory scheme of Title VII to permit the consideration of Title VII claims and §§ 1981 and 1983 claims based upon Title VII in the same lawsuit in federal court.

Plaintiffs, however, may assert violations of other statutes, such as §§ 1981 and 1983, along with a Title VII claim in the same judicial proceeding as long as the other claims are independent and are not based on violations of rights set forth in Title VII. This critical distinction has been maintained by a majority of the courts which have addressed the question presented in this case. See Rivera v. City of Wichita Falls, 665 F.2d 531, 534 n. 4 (5th Cir.1982); Day v. Wayne County Board of Auditors, 749 F.2d 1199 (6th Cir.1984); Talley v. City of De Soto, 37 Fair Empl. Prac.Cases 375 (N.D.Tex.1985); Green v. Illinois Dept. of Transportation, 609 F.Supp. 1021 (E.D.Ill.1985); Ratliff v. City of Milwaukee, 608 F.Supp. 1109 (E.D.Wis.1985); Torres v. Wisconsin Dept. of Health & Social Svcs., 592 F.Supp. 922 (E.D.Wisc.1984); Zewde v. Elgin Comm. College, 601 F.Supp. 1237 (W.D.Wisc.1982); cf. Heubschen v. Department of Health & Social Svcs., 547 F.Supp. 1168 (W.D.Wisc.1982), rev’d on other grounds, 716 F.2d 1167 (7th Cir.1983).

In Day, for example, the Sixth Circuit held that “Title VII provides the exclusive remedy when the only § 1983 cause of action is based on a violation of Title VII.” 749 F.2d 1199, 1204. The court, after considering the legislative history set forth above, stated that “we do not read this language as expressing an intent that where employer conduct violates only Title VII, which created new rights and remedies for public employees, an aggrieved employee may sue under both Title VII and § 1983.” Day, 749 F.2d 1199, 1204-1205. In other words, where an employee does not establish an independent basis and the §§ 1981 and 1983 claims are inherently bound up with the Title VII claim, Title VII constitutes the exclusive remedy. See Torres, 592 F.Supp. 922, 930 (plaintiffs so-called constitutional allegations aré so tied up with their cause of action under Title VII as to be nearly unidentifiable as discrete claims); see also Ratliff, 608 F.Supp. 1109; Green, 609 F.Supp. 1021.

III.

This gives rise to the second question upon the defendant’s motion for partial summary judgment: whether plaintiff’s claims under §§ 1981 and 1983 are premised upon his claim under Title VII.

Defendants have moved for partial summary judgment on this issue. Summary judgment is a drastic remedy. The Tenth Circuit has cautioned that any relief pursuant to Fed.R.Civ.P. 56 should be applied with care. Jones v. Nelson, 484 F.2d 1165, 1168 (10th Cir.1973). The burden is on the moving party to show the absence of a genuine issue of material fact. Pleadings and factual issues of material fact must be viewed in the light most favorable to the party opposing summary judgment. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-59, 90 S.Ct. 1598, 1608-1609, 26 L.Ed.2d 142 (1970); Rea v. Wichita Mortg. Corp., 747 F.2d 567, 573 (10th Cir.1984). Unless the moving party can demonstrate his entitlement beyond a reasonable doubt, summary judgment must be denied. Norton v. Liddell, 620 F.2d 1375, 1381 (10th Cir.1980). However, a party opposing summary judgment may not rest on allegations contained in pleadings to rebut the movant’s factual proof in support of the motion for summary judgment. The party opposing the motion must respond with specific facts demonstrating genuine issues requiring resolution at trial.

Defendants contend that there is no distinction between plaintiff’s Title VII claim and his claims under §§ 1981 and 1983, and therefore, the §§ 1981 and 1983 claims should be dismissed. Plaintiff fails to address this contention. Plaintiff’s complaint merely alleges violations of each of these statutes. The facts set forth in the complaint, construed most favorably to the plaintiff, indicate that plaintiff may have been terminated in retaliation for filing a previous discrimination charge and there might also have been some discrimination involved with this termination. These factual allegations, if proved, would come under the specific terms of Title VII. See 42 U.S.C. § 2000e-3(a). For the reasons stated above, Title VII would therefore provide the exclusive remedy unless plaintiff alleges an independent basis for his §§ 1981 and 1983 claims. Yet, nowhere does plaintiff assert an independent basis for these claims. In fact, these claims are indistinguishable from plaintiffs Title VII claim. Accordingly, Title VII constitutes the exclusive remedy in this case. Defendants’ motion for partial summary judgment, to dismiss plaintiff’s §§ 1981 and 1983 claims, is granted as to defendant City and County of Denver.

IV.

Defendants’ final contention is that plaintiff’s § 1983 claim against defendant John Adams, plaintiff’s supervisor, should be dismissed. Defendants argue that plaintiff’s § 1983 claim is based entirely upon a violation of Title VII, and that, since defendant Adams is not amenable to an action under Title VII, plaintiff cannot thereby bring a claim against him under § 1983. In support of this contention, defendants cite the Seventh Circuit’s opinion in Heubschen, 716 F.2d 1167.

In Heubschen, the plaintiff brought an action against his employer and supervisor, under Title VII and § 1983, for sexual harassment. The trial court held that the plaintiff could maintain an action against his supervisor under § 1983 based upon Title VII. 547 F.Supp. 1168, 1174. The Seventh Circuit, however, reversed, stating that “a plaintiff cannot bring an action under section 1983 based upon Title VII against a person who could not be sued directly under Title VII.” 716 F.2d 1167, 1170. Here, the court determined that the plaintiff could not have maintained an action against his supervisor under Title VII because she was not an “employer” within the meaning of § 703(a)(1) of Title VII. The court went on to state that

[t]he effect of allowing a plaintiff to bring an action under section 1983 based upon Title VII against a defendant who could not be sued directly under Title VII would be to enlarge the relief available to one bringing an action for a violation of Title VII. Plaintiffs proceeding under section 1983 for violations of Title VII would obtain a substantive enlargement of the latter if they were able to sue a class of persons immune from actions brought directly under Title VII.

Heubschen, 716 F.2d 1167, 1170.

In the present case, it must first be determined whether defendant Adams is immune from a Title VII action. Defendants maintain that Adams is not an “employer” and is therefore not subject to Title VII. Under Title VII, “employer” is defined as “a person engaged in an industry affecting commerce who has fifteen or more employees ..., and any agent of such a person ____42 U.S.C. § 2000e(b) (emphasis added). While defendant Adams is not “a person ... who has fifteen or more employees”, he is admittedly an “agent of such a person.” Officials and supervisors having responsibility and power to employ personnel and to control their conditions of employment have been held subject to Title VII. See, e.g., Owens v. Rush, 636 F.2d 283 (10th Cir.1980); Gay v. Board of Trustees, 608 F.2d 127 (5th Cir.1979); Goodman v. Board of Trustees, 511 F.Supp. 602 (N.D.Ill.1981); Kelly v. Richland School Dist. 2, 463 F.Supp. 216 (D.S.C.1978); Manley v. Mobile County, Ala., 441 F.Supp. 1351 (S.D.Ala.1977); Padilla v. Stringer, 395 F.Supp. 495 (D.N.M.1974); Byron v. University of Florida, 403 F.Supp. 49 (N.D.Fla.1975); Schaefer v. Tannian, 394 F.Supp. 1128 (E.D.Mich.1974); Compton v. Borden, Inc., 424 F.Supp. 157 (D.Ohio 1976); Curran v. Portland Superintending School Committee, 435 F.Supp. 1063 (S.D.Maine 1977); Jeter v. Boswell, 554 F.Supp. 946 (D.W.Va.1983).

In Owens, for example, the Tenth Circuit held that the “county sheriff is an agent of the [employer] county for all matters properly committed to his discretion—including the hiring and firing of employees.” 636 F.2d 283, 287. Accordingly, the court found that the sheriff was subject to liability under Title VII. In Padilla, the district court found that the director of the Albuquerque zoo was an agent of the city within the meaning of § 2000e(b). The court stated that “an individual employee of an employer can be sued for participating in the managerial decisions that constituted alleged discriminatory conduct.” 395 F.Supp. 495, 497.

In the present action, defendant Adams is a Recreation Supervisor for the Department of Parks and Recreation for the City and County of Denver. Plaintiff alleges, in his complaint, that Adams “engaged in a campaign to accomplish his termination.” Plaintiff also asserts that the City and County of Denver, through its Manager of Parks and Recreation, followed Adams’ recommendation that plaintiff be terminated. While Adams may not have direct power to hire and fire personnel, he participated in such managerial decisions. Adams also had control over plaintiff’s employment conditions.

Given Adams’ position and responsibility in the Parks and Recreation Department, he is an “agent” of the city for purposes of § 2000e(b). Accordingly, defendant Adams is an “employer” subject to the terms of Title VII.

Since Adams is subject to Title VII, plaintiff’s §§ 1981 and 1983 claims against him cannot be dismissed for the reason stated in Heubschen. However, as with the §§ 1981 and 1983 claims against the city, the §§ 1981 and 1983 claims against Adams do not have an independent basis. Therefore, these claims must be dismissed as against defendant Adams.

IT IS THEREFORE ORDERED that:

Defendants’ motion for partial summary judgment is GRANTED. Plaintiff’s §§ 1981 and 1983 claims against both defendants are dismissed.

      . In order to expedite employment discrimination claims in federal courts, 42 U.S.C. § 2000e-5(f) makes special provision for appointment of a master to hear Title VII cases. If a Title VII case is joined with a claim under §§ 1981 or 1983, which could be tried to a jury, assignment to a master is less practicable if not prohibited. See Fed.R.Civ.P. 53.

      . 42 U.S.C. § 1981 provides:
      All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property that is enjoyed by white persons, and shall be subject to like punishment, pains, penalties, taxes, licenses, and extraction of every kind, and to no other.

      . 42 U.S.C. § 1983 provides:
      Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

      . Plaintiff argues that the language in Johnson, 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 controls and that Title VII is not the exclusive remedy. In Johnson, the Court stated that "[d]espite Title VII’s range and its design as a comprehensive solution for the problem of invidious discrimination in employment, the aggrieved individual clearly is not deprived of other remedies he possessed and is not limited to Title VII in his search for relief.” 421 U.S. 454, 459. The Court’s statement does not negate the requirement that the plaintiff establish an independent basis for his additional claims.
      Plaintiff also argues that my decision in Firefighters Inc. for Racial Equality v. Bach, 522 F.Supp. 1120 (D.Colo.1981), rev’d, 731 F.2d 664 (10th Cir.1984), and Judge Carrigan’s opinion in Whatley v. Skaggs Companies, Inc., 502 F.Supp. 370 (D.Colo.1981), aff’d in part and remanded in part, 707 F.2d 1129 (10th Cir.1982), cert. denied, — U.S. -, 104 S.Ct. 349, 78 L.Ed.2d 314 (1983), provide that a state employee could pursue concurrent judicial claims for employment discrimination under Title VII and §§ 1981 and 1983. These cases are not applicable. In Firefighters, I did not consider the issue before me now. Similarly, in Whatley, Judge Carrigan dealt with a different issue.

      . This situation is unlike that presented in Owens v. Rush, 654 F.2d 1370 (10th Cir.1981), where the plaintiff alleged violations of independent substantive rights in addition to his Title VII claims.


source: Caselaw Access Project

author: BARRINGTON D. PARKER, District Judge.

license: Public Domain

text:
    IRVIN INDUSTRIES, INC., Plaintiff, v. UNITED STATES of America, et al., Defendants.
    Civ. A. No. 85-0206.
    United States District Court, District of Columbia.
    July 8, 1985.
   BARRINGTON D. PARKER, District Judge.

ORDER

UPON CONSIDERATION of the Stipulation of Dismissal executed by the parties and approved by the Court on May 9, 1985, and the entire record herein, and the Court being fully advised of the premises, it is by the Court, this 8 day of July, 1985,

ORDERED that the Court’s April 3, 1985 Memorandum Order, 608 F.Supp. 907 (D.C. D.C.), denying defendants’ motion to dismiss be, and the same hereby is vacated.


author: WILLIAM C. LEE, District Judge.

text:
    Mary S. ROSEMOND, Plaintiff, v. COOPER INDUSTRIAL PRODUCTS, A DIVISION OF COOPER TIRE AND RUBBER COMPANY, Defendant.
    Civ. No. F 84-393.
    United States District Court, N.D. Indiana, Fort Wayne Division.
    July 9, 1985.

      Christopher C. Myers, Wilks & Kimbrough, Fort Wayne, Ind., for plaintiff.
    J. Michael O’Hara and Thomas A. Herr, Barrett, Barrett & McNagny, Fort Wayne, Ind., for defendant.
   MEMORANDUM OPINION AND ORDER

WILLIAM C. LEE, District Judge.

This matter is before the court for a decision on the merits following a bench trial held June 17, 1985 through June 18, 1985. The court, having examined the entire record and having determined the credibility of the witnesses after viewing their demeanor and considering their interests, hereby renders and enters the following Findings of Fact and Conclusions of Law pursuant to Rulé 52(a) of the Federal Rules of Civil Procedure.

Findings of Fact

Plaintiff Mary S. Rosemond (Rosemond) is a black, American female, residing in Fort Wayne, Indiana. The defendant Cooper Industrial Products (Cooper) is a division of Cooper Tire and Rubber Company, employing more than fifteen people and operating a plant in Auburn, Indiana. Alice Aldrich (Aldrich) is an employee of Cooper and was at all material times Supervisor of Data Processing. Aldrich was the person at Cooper who decided to hire Rosemond and decided, in part, to terminate the plaintiff’s employment with Cooper.

Cooper employed Rosemond at the Auburn, Indiana plant from December 27, 1982, through August 26, 1983. Cooper hired Rosemond as a computer operator. Although a written job description existed at the time of Rosemond’s interviewing and hiring, Cooper did not provide Rosemond with a copy of the job description. According to the job description, the job of computer operator at Cooper involves the performance of on-line and off-line duties. Rosemond worked in the Data Processing Department of Cooper. During Rosemond’s period of employment with Cooper, Rosemond performed only off-line duties.

In October of 1982, Aldrich sent a personnel requisition to the Cooper personnel office, requesting the hiring of a computer operator to replace Margaret McCorkle, who was retiring on December 27, 1982. Aldrich stated that the minimum qualification required for the job of computer operator at Cooper was one year’s experience on a multi-processing computer. The job opening at Cooper was advertised in the Fort Wayne newspapers. Rosemond saw the ad and applied for employment at Cooper as a computer operator in October of 1982. Seven people applied for the open position. Rosemond was the only black applicant. Aldrich hired Rosemond for the open position because Rosemond was the best qualified for the job of the seven applicants who applied.

Rosemond possessed substantial credentials in the area of computer operation and key punch both in terms of education and work experience. Rosemond possessed a college degree and a business diploma from International Business College, Fort Wayne, Indiana. Rosemond’s courses at International Business College included data processing, typing, stenography and key punch. Rosemond received a diploma from International Business College, graduating in the top third of her class, in 1964. In 1978 and 1979, Rosemond completed, at Indiana/Purdue University, Fort Wayne, Indiana, sixteen hours of computer concentration courses in the areas of commercial systems, computer systems analysis and systems programming. During those sixteen hours of courses, Rosemond received training in the operation of the following computer systems: IBM 360, IBM 370, IBM 158, Honey-well, CDC 6500, and NOVA 800. Rosemond performed well enough in her courses to receive tuition reimbursement from her employer International Harvester. In the years 1964-1982, Rosemond worked fourteen years as either a key punch and data entry operator or as a computer operator.

Rosemond worked at International Harvester from 1964-1967 and from 1973-1982. Rosemond’s work record at International Harvester was exemplary. Rosemond advanced through the International Harvester system from a key punch operator to a computer operator by virtue of applying for higher positions, taking tests and qualifying for the higher positions. During Rosembnd’s three years at International Harvester as a computer operator, Rosemond was not reprimanded for any mistakes, either orally or in writing.

Rosemond possessed all the necessary basic skills to perform the job of computer operator at Cooper. Rosemond made it clear at the time of her hiring that she had not worked on computer equipment or computer related equipment for four to five years because of the elimination of computer operations at the Fort Wayne, Indiana International Harvester plant. Aldrich was aware that Rosemond had been away from the computer area when Aldrich hired Rosemond. Even with the fact that Rosemond had been away from the computer area for four to five years, Rosemond was by far the best qualified applicant for the job of computer operator at Cooper. Rosemond was the first black person hired by Aldrich; Aldrich had never worked with or supervised a black person. Rosemond was the only black office worker at Cooper; other minorities did work in the factory division at Cooper.

When Aldrich hired Rosemond as a computer operator at Cooper, Aldrich explained that Rosemond would work off-line duties for the first few months. Following those first few months of performing only offline duties, Rosemond could expect to perform on-line duties and to be placed in rotation with the other computer operators as all the computer operators at Cooper perform both on-line and off-line duties. The job description of a computer operator at Cooper describes both on and off-line duties. At the time of Rosemond’s application for employment as a computer operator at Cooper, Rosemond completed an employment application on which Rosemond stated that in addition to the job of computer operator, she was interested in performing the jobs of typist, key punch operator, accounting clerk, or secretary. Rosemond’s skills and background qualified her for those other positions as well as qualifying her for the position of computer operator at Cooper.

Rosemond’s first day of work was December 27, 1982. Rosemond’s first day of work was Margaret McCorkle’s last day at work. Rosemond replaced McCorkle as one of the three computer operators employed at Cooper. McCorkle had trained six or seven people in the job of computer operator at Cooper during her employment, both before and after job manuals were developed by Aldrich. It was customary that the outgoing computer operator would train the incoming computer operator in the specifics of the computer, operator position at Cooper. Although McCorkle believed that she would have had the opportunity to train Rosemond had she not become ill, Aldrich did not contemplate such training because Aldrich requested, in the October personnel requisition, that someone be hired as a computer operator to replace McCorkle as of McCorkle’s retirement date: December 27, 1982. The off-line duties at Cooper involve many different jobs and many different tasks, some of which are quite complicated.

Cooper makes available to its computer operators a set of guidelines for operation of the Cooper system using Cooper’s documentation. This documentation consists of processing guidelines, balance guidelines and distribution guidelines for each job processed. These job manuals are meant to be the primary means of training persons employed as computer operators at Cooper. Aldrich presented Rosemond with the location of these job manuals and the specific job manuals needed for the various jobs Aldrich expected Rosemond to perform. Aldrich meant for the job manuals to provide to Rosemond all the training and guidance Rosemond needed to perform adequately the job of computer operator at Cooper. Some of the job manuals meant to be utilized by Rosemond in performing her job were outdated or contained wrong information which caused various jobs to be incorrectly performed by Rosemond. The job manuals themselves were often hard to understand or to read as the job manuals were handwritten and sometimes somewhat cryptic. Aldrich managed by exception, not by personal supervision. Aldrich wanted to be notified only when there was a problem and did not want to be contacted to explain various jobs Aldrich expected Rosemond to perform.

One of Rosemond’s co-workers, Cathy Smith, could not remember any amount of assistance being given to Rosemond on her first day with the exception of Aldrich explaining the first job to Rosemond. Aldrich’s explanation consisted of Aldrich showing Rosemond the location of the manuals, the specific manual needed for the first job and the source documents or data Rosemond needed in order to perform her first job. Rosemond’s co-workers, particularly Cathy Smith, did, at first, answer questions Rosemond poised, but each coworker had a full time job to perform and did not always have the time to answer Rosemond or to assist Rosemond. Computer operators at Cooper operate under time pressures and schedules. Aldrich assigned Rosemond to actual production jobs immediately upon her arrival; Rosemond was given no opportunity to practice or observe other computer operators performing actual production jobs.

Computer operators working at Cooper basically learned their job by doing, by trial and error. Aldrich specifically informed Rosemond that she did not want nor welcome repetitious questions. Aldrich believed all the jobs were interrelated such that questions on different jobs were defined by her as repetitious if she felt the questions related to similar phases of the different jobs. All of the computer operators at Cooper had problems at some time in performing correctly the various jobs required of them.

Rosemond initially experienced difficulties in performing the various jobs required of her as a computer operator at Cooper. At the end of February 1983 Aldrich determined that something needed to be done to improve Rosemond’s job performance. On March 7,1983, Aldrich conducted a meeting with Rosemond concerning the problems Aldrich felt Rosemond had in performing her job. At that March 7, 1983, meeting, Aldrich detailed for Rosemond some of what Aldrich found to be Rosemond’s processing errors and performance problems. A written summary was prepared of the March 7, 1983, meeting and presented to Rosemond on March 8, 1983. The written summary of March 8, 1983, indicates that Aldrich was going to begin to keep a log of all questions asked by Rosemond in order to determine if Rosemond’s questions were repetitious. Neither the discussion of March 7, 1983, nor the written summary of March 8, 1983, indicates that Aldrich planned on keeping any kind of log of errors committed by Rosemond from that time period forward.

In fact, beginning on March 8, 1983 and continuing through Rosemond’s termination date of August 26, 1983, Aldrich compiled a listing, a log, of errors committed by Rosemond on the job. This log of errors was not a part of Rosemond’s personnel file; Rosemond was never told of the existence of the log because Aldrich thought it was not relevant to inform Rosemond. Aldrich did not keep a log of performance errors on the other employees under her supervision during Rosemond’s tenure. Aldrich never kept a log of a similar nature on any other employee under her supervision, even those employees, two in number, who were previously terminated by Aldrich for poor job performance, the ostensible reason articulated by Aldrich and Cooper for Rosemond’s termination.

Although Aldrich noted a few errors of some of the other computer operators in the log, the purpose of the log was to document Rosemond’s errors and the log itself contains nothing indicating anything Rosemond did well in the performance of her job, only those errors Aldrich determined Rosemond committed. Aldrich felt that from March of 1983 through August of 1983 ninety to ninety-five percent of all errors committed in the Data Processing Department by the three computer operators employed by Cooper were committed solely by Rosemond.

Aldrich continued being concerned about Rosemond’s performance and consulted Pat Krick, the Personnel Director at Cooper, regarding what steps Aldrich should undertake. Krick recommended that a special performance appraisal review be performed on Rosemond in advance of her six month date. Such a special review was performed and covered the time period of December 27, 1982, through April 30, 1983. That performance appraisal was presented to Rosemond on May 17,1983, along with a two page memo placing Rosemond on a three month probation. The performance appraisal provides that both the supervisor and the employee will conduct the performance appraisal and will rate the employee and make remarks.

In this special review Aldrich rated Rosemond in almost every category as unsatisfactory or meeting minimum requirements. In several categories, including enthusiasm toward job, attendance, attitude toward supervision, neatness, originality and written communications, Aldrich rated Rosemond as satisfactorily meeting the requirements of the job. Rosemond rated herself as satisfactorily meeting the requirements of the job or better. Rosemond made several comments on the special review which indicate Rosemond’s desire to learn and to perform her job with efficiency and skill. Aldrich noted her belief that Rosemond did not logically think the processing through.

In the written memo, also presented to Rosemond along with her special review on May 17, 1983, Aldrich indicated that some improvement had been made on the problems articulated to Rosemond in the March 7, 1983, meeting, but that more improve.ment was needed. Aldrich again stated her expectation that Rosemond’s basic skills should be better. The written memo of May 17, 1983, informs Rosemond that Aldrich does not believe that Rosemond meets the minimum requirements of the off-line computer operator position and that Aldrich will not consider training Rosemond to perform on-line duties until Rosemond has shown more improvement with off-line duties. Aldrich placed Rosemond on a three month probation period, indicating that a monthly review would be performed and that improvement in the following areas was required: (1) better knowledge of the flow of the data; (2) better understanding of the schedule; (3) improvement using the sorter; (4) improvement using the collater; and (5) improvement in following the instruction manuals. At no time during the May 17, 1983, meeting, did Aldrich inform Rosemond that the three month probation period led to termination if Rosemond did not improve to the level Aldrich expected. Rosemond was never informed that she was in danger of being terminated for unsatisfactory job performance.

Upon receiving-the May 17, 1983, memo and the special review, Rosemond went to see Krick regarding the situation. Rosemond related to Krick the various problems she believed she was experiencing in performing her duties, including the problem of the lack of personal communication between Rosemond and Aldrich. Co-workers noted the lack of personal communication between Rosemond and Aldrich. Suffice it to say that the two simply did not get along on a personal level. Almost no communication passed between Rosemond and Aldrich excepting when Aldrich articulated a specific error to Rosemond. Rosemond’s performance of her job was made more difficult by the lack of communication and guidance given to her by Aldrich. Aldrich was not always available to answer Rosemond’s questions. After the May 17, 1983, discussion, Aldrich instructed Rosemond and the other computer operators that all of Rosemond’s questions were to be directed to Aldrich and the other operators were not to answer her questions. Such an instruction compounded Rosemond’s problems, such as they were, because Aldrich was not always available to answer questions and Aldrich’s style of management did not include direct supervision.

During Rosemond’s meeting with Krick, Krick told Rosemond of several job openings at the Cooper plant for which Rosemond could apply and interview. Such a process was not unfamiliar to Rosemond as the process of applying and interviewing is basically the same process Rosemond used while an employee at International Harvester. At International Harvester, no job is filled without a separate application and interview by the employee seeking that job. Rosemond was personally very familiar with the process because that process was how she obtained, on two separate occasions, the job of computer operator at International Harvester and because during the several year close down of International Harvester in Fort Wayne, Indiana, in order to remain employed at International Harvester, Rosemond continually had to apply and be interviewed for further positions.

At the time of Rosemond’s meeting with Krick, Rosemond was somewhat open to the idea of transferring to another job in the Cooper plant, but informed Krick that she wanted a week to think about transferring and to think about her job in the computer department. Approximately one week later, Krick contacted Rosemond regarding transfer; Rosemond informed Krick that she felt she was doing better in her current job and would remain in the department. At no time was Rosemond offered a transfer as an alternative to termination nor was Rosemond kept personally or specifically informed of further openings at the Cooper plant for which Rosemond was potentially qualified. Rosemond’s office skills were such that there were several jobs at the Cooper plant for which Rosemond was qualified and which Rosemond could have performed.

A monthly review of Rosemond’s performance during the probationary period was not performed. A six month review was completed, covering the period December 27, 1982 through June 27, 1983. The appraisal was reviewed by Aldrich and Rosemond on June 24, 1983. At that time Aldrich rated Rosemond in the various categories as unsatisfactory, meeting minimum requirements, and satisfactorily meeting requirements of job. A comparison of the special appraisal, reviewed May 17, 1983, and the six month review, reviewed June 24, 1983, shows improvement in almost every category of Rosemond’s performance in Aldrich’s opinion. The majority of Rosemond’s ratings by Aldrich on the six month review are in the minimum requirement category and most of the ratings in the unsatisfactory category have plusses following the unsatisfactory rating. In particular, Aldrich rated Rosemond as satisfactorily meeting the requirements of the job in the categories of composure and stability, self-confidence, enthusiasm, job perspective, attendance, attitude toward supervision, personal goals established, and most importantly, self-improvement program. Aldrich rated Rosemond’s attitude towards others as often going beyond job requirements. Aldrich’s overall job attitude rating of Rosemond was in the category of satisfactorily meeting the requirements of the job with a plus.

Aldrich’s overall performance rating of Rosemond was that of meeting minimum requirements with a minus. Such a rating is, at least arguably, an improvement from the overall performance rating of May 17, 1983 by Aldrich which was unsatisfactory with a plus. In any event, from the June 1983 rating, it is obvious that Rosemond met at least the minimum requirements for the performance of the job. Aldrich noted in the June review that it was not Rose- - mond’s actual actions which concerned her, but Rosemond’s inability, in Aldrich’s opin-. ion, to handle the job logically. Both of the reviews show the extreme difference in Rosemond’s and Aldrich’s respective opinions of Rosemond’s performance on the job. The two opinions rarely coincide regarding Rosemond’s performances and Aldrich consistently rates Rosemond lower.

Rosemond’s performance improved during the period of her employment at Cooper. Aldrich believed that Rosemond’s performance never improved and that Rosemond did not possess the basic skills or capabilities to perform basic data processing functions and further, that Rosemond did not possess the skills to learn and perform the specific requirements of the Cooper system. Rosemond’s co-workers saw that Rosemond’s work did improve while she was there and that Rosemond tried hard to perform her job satisfactorily. Rosemond possessed the basic skills to perform the job of computer operator and further possessed the skills to perform the specific duties required in operating the Cooper system.

A computer seminar was scheduled to be held for office employees of Cooper on several dates, including August 25 and August 26, 1983. Rosemond was originally scheduled to attend the computer seminar on August 25, 1983, by Krick’s office. Computer operators are often rescheduled for such seminars due to the work load of the department. Aldrich determined that the work load was such on August 25, 1983, that Rosemond could not attend the seminar. Aldrich had already made the decision, as of August 25, 1983, that Rosemond was to be terminated at the end of her probationary period. In fact, Aldrich wanted to terminate Rosemond as of May 17, 1983, but, because of Rosemond’s minority status, Krick instructed Aldrich to “go that extra mile,” and give Rosemond a three month probationary period. The normal probationary period at Cooper is thirty days. Rosemond was never informed that extra time was being given to her to improve her job performance due to her minority status.

' On August 26, 1983, a meeting was held at Cooper. Present at that meeting were George Marks, Aldrich’s superior, Pat Krick, Alice Aldrich, and Mary Rosemond. Rosemond was informed that she was terminated for unsatisfactory job performance. The decision to terminate her had been made prior to the meeting. Rosemond was given two weeks’ severance pay, asked to turn in her personal notebook regarding Cooper processes, gather her belongings and leave early. Rosemond was not given the option of attempting to transfer to another department, an option customarily given to employees at Cooper facing termination in a particular job. Cooper terminated Rosemond as of August 26, 1983. Rosemond’s position remained open until filled by a white female.

Rosemond did feel, during her employment, that she was being discriminated against because of her race, but, on the whole, Rosemond enjoyed her job, enjoyed the people around her, and wished to remain as an employee at Cooper. Rosemond did feel singled out, to a degree, and did feel that social amenities were not extended to her on the same basis that they would have been extended had Rosemond been white. Rosemond experienced feelings of isolation. Rosemond did not have any racially derogatory remarks made to her nor did she overhear any remarks during her employment.

The parties have entered into two stipulations on the matters of damages for back pay, lost fringe benefits and plaintiffs attorney fees, should plaintiff prevail.

Conclusions of Law

The court has jurisdiction over the subject matter of this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and under § 1981 of the Civil Rights Act of 1866, 42 U.S.C. § 1981. The court has jurisdiction over the parties. Defendant Cooper, is an employer within the meaning of Title VII of the Civil Rights Act of 1964.

This is a claim under Title VII of the Civil Rights Act of 1964 for employment discrimination on the basis of race and a claim under § 1981 of the Civil Rights Act of 1866 for discrimination on the basis of race. The plaintiff Rosemond is a black female person. This is a disparate treatment case.

Rosemond has the “ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff[.]” Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). The framework of analysis of Title VII claims is well established.

First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant “to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.

Burdine, 450 U.S. at 252-53, 101 S.Ct. at 1093 (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973)). Accord United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983).

With regard to the prima facie showing, the plaintiff burden at the prima facie phase of analysis is to prove the relative objective qualifications of the job at issue. Jayasinghe v. Bethlehem Steel Corp., 760 F.2d 132, 135 (7th Cir.1985). “By removing subjective job requirements from the prima facie phase of analysis, the plaintiff may create a rebuttable presumption of discrimination without direct proof of subjective intent.” Id. In the second phase of analysis, the defendant is given the opportunity to articulate some legitimate, nondiscriminatory reason for its employment action. “The purpose of this evidence is to ‘allow the trier of fact rationally to conclude that the employment decision [was not] motivated by discriminatory animus.’ ” Coates v. Johnson & Johnson, 756 F.2d 524, 531 (7th Cir.1985) (quoting Burdine, 450 U.S. at 257, 101 S.Ct. at 1096). See also Nellis v. Brown County, 722 F.2d 853, 857-58 (7th Cir.1983). The third phase of analysis, if reached, requires that the plaintiff attempt to persuade the court that the defendant’s explanation is “unworthy of credence” or that “a discriminatory reason more likely motivated” the defendant. Burdine, 450 U.S. at 256, 101 S.Ct. at 1095. The plaintiff always retains the ultimate burden of persuasion. Id.

“[C]ourts often must rely on circumstantial evidence of employer motivation in employment discrimination cases.” Hearn v. R.R. Donnelley & Sons Co., 739 F.2d 304, 306 (7th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 1214, 84 L.Ed.2d 356 (1985). A district court cannot require a plaintiff to submit direct evidence of discriminatory intent. Aikens, 460 U.S. at 714, n. 3, 103 S.Ct. at 1481, n. 3 (quoting International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358 n. 44, 97 S.Ct. 1843, 1866 n. 44, 52 L.Ed.2d 396 (1977)). See also Burdine, 450 U.S. at 256, 101 S.Ct. at 1095 (“The plaintiff retains the burden of persuasion. [H]e may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.”). The question to be decided in a Title VII case is the “ultimate question of discrimination vel non.” Aikens, 460 U.S. at 714, 103 S.Ct. at 1481. “The factual inquiry in a Title VII case is whether the defendant intentionally discriminated against the plaintiff. The district court must decide which party’s explanation of the employer’s motivation it believes.” Graham v. Bendix Corp., 585 F.Supp. 1036, 1038 (N.D.Ind.1984) (citing Aikens, 460 U.S. at 715, 103 S.Ct. at 1482).

Aikens directs that a district court should reach the central focus of a Title VII case and decide the discrimination issue on the merits. “The central focus of the inquiry in a case such as this is always whether the employer is treating ‘some people less favorably thap others because of their race, color, religion, sex, or national origin.’ ” Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978) (quoting Teamsters, 431 U.S. at 335 n. 15, 97 S.Ct. at 1854 n. 15). See Aikens, 460 U.S. at 715, 103 S.Ct. at 1482; Graham, 585 F.Supp. at 1038-39.

Where the district court has heard and received all of the evidence in a case, there is no reason to determine whether plaintiff has actually made a prima facie case of discrimination. Aikens, 460 U.S. at 714-15, 103 S.Ct. at 1482; Suson v. Zenith Radio Corp., 763 F.2d 304, 307 (7th Cir.1985). Cooper has articulated a legitimate nondiscriminatory reason for Rosemond’s discharge. The resolution of this case turns on the determination by this court of whether Rosemond has shown that the reason given was merely pretextual. Rosemond can counter Cooper’s defense in one of several ways: she can show that others were not fired for a similar reason or she can show that the “reason was simply not worthy of belief.” Suson, at 308.

As a matter aside, the court concludes that Rosemond has indeed satisfied the criteria of a prima facie case as articulated in cases involving race discrimination suits arising out of termination. Rosemond is a member of a protected group; she is extremely qualified by education and experience for the job of computer operator at Cooper; she satisfied the normal requirements of her job such that her performance was of sufficient quality to merit continued employment; Rosemond’s employment was terminated by Cooper; and, the position of computer operator remained open after Rosemond’s termination and was filled by a white female. Rosemond carried her initial burden of proof in establishing, by objective criteria, a prima facie case, thereby creating a rebuttable presumption that Cooper unlawfully discriminated against her. Again, the court notes that its conclusion of whether Rosemond established a prima facie case is irrelevant to the ultimate question of discrimination vel non in this case. Aikens, 460 U.S. at 714-15, 103 S.Ct. at 1482.

Cooper articulated what it felt was a legitimate nondiscriminatory reason for its decision to terminate Rosemond. That ostensible legitimate nondiscriminatory reason was plaintiff’s poor work performance. Cooper articulated that reason more specifically as Rosemond’s absolute inability to perform basic skills, such as operating a collator machine or a sorter machine. Cooper stated that Rosemond was unable to grasp the minimum basic thought processes associated with the computer operator position at Cooper. To support its articulated reason for its decision to terminate Rosemond, Cooper relied on the personal private log of errors compiled by Alice Aldrich on Mary Rosemond, covering the time period of March of 1983 through August of 1983. Cooper also noted that two other persons, both white, had been terminated by Cooper in the identical position Rosemond held for the identical articulated reason of poor job performance. Cooper also pointed to the two performance appraisals conducted regarding Rosemond’s work, both of which were subjective appraisals, completed by her immediate supervisor with no independent check of Rosemond’s performance on the job. Finally, Cooper noted that ample opportunity and time had been given to Rosemond to improve her job performance and that Rosemond’s probationary period had been lengthened in order to “go that extra mile,” because Rosemond was a minority.

Rosemond presented much evidence at trial to prove to this court that the articulated ostensible legitimate nondiscriminatory reason of Cooper was a mere pretext for race discrimination. Cooper’s articulated reason is simply not worthy of belief. The evidence is ample and clear that Rosemond possessed not only the basic skills of an entry level computer operator regarding the performance on machines such as the collator and sorter, but also that Rosemond possessed advanced skills. Rosemond acquired the extensive skills she holds as a computer operator both through education and experience. Rosemond had performed exemplarily at every job she had held prior to her employment at Cooper. Rosemond was industrious and hard working. Rosemond was honest with Cooper that she had been away from the computer area for several years, but demonstrated to Cooper that she was very willing to learn.

The evidence demonstrates that Rosemond did not perform her duties as a computer operator at Cooper as a perfect operator or even as an above average operator. It is further true that Rosemond made errors in the performance of her duties. These errors were largely caused by the virtual lack of training given Rosemond. The manuals presented to Rosemond as her guide were often outdated and, being hand written, often hard to read. The manuals were often wrong. Cooper credited Rosemond with errors caused by the fact that the Cooper manuals given Rosemond were wrong. Rosemond improved her work performance as the months went by. Rosemond’s supervisor testified that Rosemond never made any improvement while at Cooper, but Aldrich’s own marks on Rosemond’s performance appraisals indicate that Aldrich concluded that Rosemond did improve and was trying hard.

The performance appraisals done on Rosemond show that Rosemond was meeting, at least as of June 24, 1983, the minimum requirements of the computer operator job at Cooper. She was not performing the job perfectly or even averagely, but Rosemond was performing the job up to the minimum requirements of the job. Rosemond’s co-workers confirm Rosemond’s position that she did improve and that she was basically performing the job in the months prior to her termination.

The Seventh Circuit has stated with regard to the reason of termination for unsatisfactory or unworkmanlike performance that

The plaintiff need not show perfect performance or even average performance to satisfy [the element of satisfying the normal requirements of a job], [The plaintiff] need only show that [her] performance was of sufficient quality to merit continued employment, thereby raising an inference that some other factor was involved in the decision to discharge [her].

Flowers v. Crouch-Walker Corp., 552 F.2d 1277, 1283 (7th Cir.1977). Accord Graham, 585 F.Supp. at 1044. “But Flowers holds that where, as here, an employee under work criticism makes a satisfactory rating and shortly thereafter is fired, an inference arises that factors other than pri- or unsatisfactory performance—factors forbidden by Title VII—were involved____ This case is within the Flowers principle^]” Graham, 585 F.Supp. at 1044. The evidence in this case demonstrates to this court that other factors, specifically the factor of race discrimination, were involved in the decision to terminate Rosemond.

In the appraisals done of plaintiff, plaintiff was not compared with other employees in the Data Processing Department by any objective or blind formula for performance. Plaintiff was not rated independently by supervisors other than her immediate supervisor, a person with whom Rosemond had personal difficulties in communication and who was not very forthcoming in her communications, guidance or aid to Rosemond. Such rating systems have been identified “as seriously suspect factors in considering indirect evidence of forbidden bias in employment practices and decisions.” Graham, 585 F.Supp. at 1040. The most disquieting aspect of the rating system used to terminate Rosemond is the private log of Rosemond errors compiled by Aldrich without Rosemond’s knowledge or consent. This log was not made known to Rosemond and was not a part of Rosemond’s official personnel file. It was a document created for use in Rosemond’s specific instance. Aldrich has not kept such a log on any employee in her department either before or after Rosemond. The evidence shows that Rosemond was treated more severely in terms of the records kept regarding Rosemond’s performance. See Brown v. A.J. Gerrard Mfg. Co., 643 F.2d 273 (5th Cir.1981), aff'd on reh., 695 F.2d 1290, 1293 (1983) (en banc). See also Graham, 585 F.Supp. at 1039. The more severe treatment of a plaintiff than other employees is competent evidence that the employer’s stated reasons for penalty to or discharge of the employee are pretextual attempts to put an acceptable face on the practice of discrimination. McDonnell Douglas, 411 U.S. at 804-05, 93 S.Ct. at 1825.

Other employees at Cooper were given opportunities to transfer when they encountered difficulties of job performance. Although Rosemond was told of the opportunity to transfer, Rosemond was never informed that she was in danger of being terminated and that she should consider transfer in lieu of termination. Rosemond would have considered transfer in lieu of termination and was more than adequately qualified for several other jobs available at Cooper. Cooper meted out different treatment to Rosemond than the treatment given all other employees in the department in which Rosemond worked and in other areas of Cooper employment. Cf. Burdette v. FMC Corp., 566 F.Supp. 808, 817 (S.D.W.Va.1983) (discrimination inferred where different treatment meted out by employer). Another way of putting the treatment received by Rosemond is that Cooper was not dealing squarely with Rosemond and such fact outweighs “the expectable post hoc explanations as to why white employees were treated better.” Graham, 585 F.Supp. at 1045 (citing Lindsey v. Angelica Corp. et al., 508 F.Supp. 363, 366 (E.D.Mo.1981)).

The bottom line in this case is that the reason articulated by Cooper for its decision to terminate Rosemond is not a legitimate nondiscriminatory reason because it is a reason simply not believable. Cooper intentionally discriminated against Rosemond. This court concludes that it believes Rosemond’s explanation of Cooper’s motivation; the evidence adduced supports her explanation. Rosemond was a wholly and highly credible witness, straightforward and forthright in her bearing, demeanor and answers. In contrast, Aldrich was defensive and not as apparently forthright or candid in her testimony.

Rosemond was given no opportunity to perform all of the job duties which comprised the position of computer operator. Rosemond was a skilled computer operator and was never allowed to work on the computer at Cooper. Cooper gave Rosemond no opportunity to demonstrate her skills as an on-line computer operator. Cooper gave Rosemond virtually no training and discouraged Rosemond’s questions from the outset of Rosemond’s employment. Rosemond was the only person ever employed by Aldrich who remained an offline computer operator during her entire tenure of employment. Rosemond was never trained pursuant to the custom existent at Cooper.

Cooper subjected Rosemond to an inordinate and unusual amount of documentation of errors, the most damaging document of which was not made a part of plaintiff’s file and was never disclosed to the plaintiff. Cooper placed Rosemond on probation, never informing Rosemond that the probation was leading to termination if her immediate supervisor did not subjectively determine that Rosemond had improved her performance to Aldrich’s set level. Cooper did not assist Rosemond in improving her performance because Rosemond’s supervisor did not give assistance as part of her supervision technique. Cooper did not present Rosemond with the opportunity given other employees at Cooper to transfer to another position in lieu of termination. Rosemond was the only black office employee at Cooper and the only black employee Aldrich had ever had.

Cooper treated Rosemond differently and disparately because Rosemond was black. Such treatment is forbidden by Title VII of the Civil Rights Act of 1964. Cooper discriminated against Rosemond on the basis of her race in violation of Title VII of the Civil Rights Act of 1964. Cf. Loiseau v. Dept. of Human Resources, 567 F.Supp. 1211 (D.Ore.1983) (disparate treatment proven where employee given no opportunity to demonstrate skills, employee discouraged from asking questions, and employee given duties to perform with no training).

Plaintiff has proven a violation of Title VII and is entitled to recover damages. As the prevailing party in a Title VII claim, plaintiff is further entitled to recover attorney fees. Per the stipulation of the parties, plaintiff is entitled to recover back pay in the amount of $6,293.16 and fringe benefits in the amount of $2,256.86. Plaintiff is further entitled to recover costs and attorney fees in the amount of $6,575.18. Plaintiff requests front pay in lieu of reinstatement to her position as computer operator at Cooper.

The court concludes that front pay is not warranted in this case. “Front pay is the term used to describe damages paid as compensation for training or relocating to another position. An award of front pay is made in lieu of reinstatement when the antagonism between employer and employee is so great that reinstatement is not appropriate.” Fadhl v. City and County of San Francisco, 741 F.2d 1163, 1167 (9th Cir.1984). There is a lack of evidence in the record that Rosemond is attempting to gain further training or to relocate to another position as a computer operator. The court concludes that it would be speculative to award front pay as front pay is an equitable award designed to make whole a plaintiff “for a reasonable future period required for the victim to reestablish her rightful place in the job market.” Goss v. Exxon Office Systems Co., 747 F.2d 885, 889 (3d Cir.1984). The court simply has before it no evidence from which it could determine an appropriate award of front pay for a reasonable future period. An award of front pay is discretionary with the trial court, Dillon v. Coles, 746 F.2d 998, 1006 (3d Cir.1984); the court chooses not to exercise its discretion in this case to award front pay. The court concludes that the plaintiff will be made whole by an award of back pay and fringe benefits.

Rosemond also raised a claim of a violation of § 1981. The parties agree and this court concurs that the legal elements of a § 1981 claim are satisfied if a plaintiff successfully proves the legal elements amounting to a violation of Title VII. “When, as in this case, the plaintiff predicates liability under Title VII on disparate treatment, the legal elements of the claim are identical to those of a claim under § 1981. A plaintiff asserting either claim must prove intentional discrimination.” Lincoln v. Board of Regents of University System, 697 F.2d 928, 935 n. 6 (11th Cir. 1983) (citations omitted). Rosemond has prevailed on her Title VII claim. Rosemond has proven that Cooper intentionally discriminated against her on the basis of her race. She is entitled to recover damages under § 1981.

The Seventh Circuit recently stated:

Section 1981 ... is aimed at rectifying individual acts of discrimination against racial and ethnic minorities in a myriad of situations, and it clearly lacks a “make-whole” purpose [the purpose of Title VII]. Section 1981’s emphasis on eradicating direct personal discrimination and on making victims of such discrimination more than “whole” is mirrored by the fact that, in order to recover, a plaintiff must always prove that the defendant intentionally discriminated against him and by the remedies available to an injured plaintiff, i.e., punitive damages and compensatory damages for physical and mental humiliation and emotional harm.

Musikiwamba v. ESSI, Inc., 760 F.2d 740, 748 (7th Cir.1985) (citation omitted). Plaintiff has proven a violation of § 1981 and can recover proven damages for physical and mental humiliation and emotional harm suffered by her.

There is not much evidence in the record of any significant mental humiliation or emotional harm suffered by the plaintiff during her nine month tenure of employment at Cooper. There is no evidence of physical humiliation or harm. Plaintiff did suffer some mental humiliation and some emotional harm from her experience at Cooper, largely in the form of her feelings of isolation and feelings of discrimination. However, plaintiff did testify that she did enjoy her job and enjoyed her co-workers and that no racial comments were ever made to her or around her such that she heard them. The court concludes that plaintiff did suffer mental humiliation and emotional harm, but not to a serious extent. The court concludes that plaintiff is entitled to an award of damages for her § 1981 claim in the amount of $500.00. Such an award adequately compensates plaintiff for the mental humiliation and emotional harm proven at trial.

Plaintiff has also requested, as part of her Title VII request for relief, the expungement of her employment records at Cooper, including, but not limited to her performance appraisals and any and all written memoranda. Plaintiff is clearly entitled to such relief. This court will order the expungement of plaintiff’s employment records with the defendant, including plaintiff’s performance appraisals, any and all written memoranda in plaintiff’s official personnel file and the private log of errors kept by Aldrich regarding Rosemond.

This memorandum of decision contains the court’s Findings of Fact and Conclusions of Law pursuant to Rule 52 of the Federal Rules of Civil Procedure. See Rucker v. Higher Educational Aids Board, 669 F.2d 1179, 1183-84 (7th Cir.1982).

Conclusion

Plaintiff has established by a preponderance of the evidence that a violation of Title VII has occurred, thus entitling the plaintiff to recover.

To remedy the violation, the court ORDERS the following. Rosemond is awarded back pay in the amount of $6,293.16 and fringe benefits in the amount of $2,256.86. Defendant Cooper is hereby ORDERED to expunge Rosemond’s employment records including Rosemond’s performance appraisals, any and all written memoranda in Rosemond’s official personnel file and the private log of errors compiled by Aldrich. Plaintiff is awarded attorney fees in the amount of $6,575.18. Finally, a violation of § 1981 has been shown, thus entitling plaintiff to recover. The court awards plaintiff compensatory damages in the amount of $500.00.


author: SHADUR, District Judge.

text:
    John A. ALEXANDER, Plaintiff, v. WESTINGHOUSE HITTMAN NUCLEAR INCORPORATED, Defendant.
    No. 85 C 5333.
    United States District Court, N.D. Illinois, E.D.
    July 9, 1985.

      John Thomas Moran, Chicago, 111., for plaintiff.
    Martin K. Denis, Lawrence M. Cohen, Robert S. Letchinger, Fox & Grove, Chtd., Chicago, 111., for defendant.
   MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

John Alexander (“Alexander”) initially sued his former employer Westinghouse Hittman Nuclear Incorporated (“Westinghouse”) in the Circuit Court of Cook County, charging his firing was in retaliation for his having exercised rights under the Illinois Workers’ Compensation Act (the “Act”), Ill.Rev.Stat. ch. 48, 1HI 138.1 to 138.-30. Westinghouse removed the action to this District Court on diversity of citizenship grounds (Alexander is an Illinois citizen, while Westinghouse is a citizen of both Delaware [its state of incorporation] and Maryland [the location of its principal place of business]).

Alexander has moved to remand in reliance on 28 U.S.C. § 1445(c):

A civil action in any State court arising under the workmen’s compensation laws of such State may not be removed to any district court of the United States.

In response to that motion and Alexander’s supporting memorandum, Westinghouse has filed a memorandum arguing Alexander’s retaliatory-discharge lawsuit does not “aris[e] under” the Act. For the reasons stated in this memorandum opinion and order, Alexander’s motion is granted.

This Court does not write on a clean slate. Precisely the same issue has been posed to three district judges, all of whom have reached the same conclusion: remand. Thomas v. Kroger Co., 583 F.Supp. 1031, 1036-37 (S.D.W.Va.1984); Kemp v. Dayton & Rubber Co., 435 F.Supp. 1062, 1063 (W.D.Okla.1977); Fernandez v. Reynolds Metal Co., 384 F.Supp. 1281, 1283 (S.D.Tex.1974).

Westinghouse urges the result here should be different, though, because of:

1. the decision in Rubenstein Lumber Co. v. Aetna Life and Casualty Co., 122 Ill.App.3d 717, 78 Ill.Dec. 541, 462 N.E.2d 660 (1st Dist.1984); and
2. the fact the Texas workers’ compensation law (involved in Fernandez) and the Oklahoma workers’ compensation law (involved in Kemp) specifically created a private cause of action for the worker retaliated against, while the corresponding Illinois cause of action was judicially created.

But it is plain Westinghouse’s arguments do not tell the whole story.

True enough, Section 138.4(h) simply creates a prohibition against an employer’s retaliatory conduct:

It shall be unlawful for any employer, insurance company or service or adjustment company to interfere with, restrain or coerce an employee in any manner whatsoever in the exercise of the rights or remedies granted to him or her by this Act or to discriminate, attempt to discriminate, or threaten to discriminate against an employee in any way because of his or her exercise of the rights or remedies granted to him or her by this Act.

Illinois’ General Assembly did not go on in terms (as did the Texas and Oklahoma legislatures) to specify a private damage claim for the employee injured by violation of that statute. Instead it fell to the Illinois Supreme Court in Kelsay v. Motorola, Inc., 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353 (1978) to recognize a tort claim for the illegally discharged employee on public policy grounds.

That however is exactly parallel to the West Virginia situation. There the legislature enacted a 1978 amendment to the workmen’s compensation statute, W.Va. Code § 23-5A-1:

No employer shall discriminate in any manner against any of his present or former employees because of such present or former employee’s receipt of or attempt to receive benefits under this chapter.

Like the Illinois Supreme Court in Kelsay, the West Virginia Supreme Court implied a private cause of action where the legislature had not created one. Shanholtz v. Monongahela Power Co., 270 S.E.2d 178 (W.Va.1980) (specifically labeling the action one in tort, consequent on the employer’s “contravention of public policy,” id. at 183).

Against that background Chief District Judge Haden, in his thoughtful Thomas opinion, specifically elected to follow the Fernandez and Kemp cases in ordering remand. Much of what Judge Haden said could well have been written for this case (in illustration of which the following quotation, 583 F.Supp. at 1037, has been adapted to the Illinois situation by substituting the bracketed language for its West Virginia counterparts):

Finding its rule of decision in the Fernandez and Kemp cases, this Court concludes that [Section 138.4(h)] is a law arising under the workmen’s compensation laws of [Illinois] and Plaintiff’s instant action, founded upon this statute and the [Illinois] Supreme Court’s opinion in [Kelsay], is barred from removal to federal court by 28 U.S.C. § 1445(c). In reaching this conclusion the Court is persuaded not only by the fact that [Section 138.4(h)] is codified as part of the [Illinois] Workmen’s Compensation laws (collected at [Section 138.4 of chapter 38 of the Illinois statutes]) but also by the fact that it is an integral, even essential, component of the legislatively created workmen’s compensation scheme. The elaborate workmen’s compensation plan established by the legislature would be nullified if workers refrained from filing claims for benefits or otherwise refused to participate in workmen’s compensation proceedings, for fear that they would be terminated because of their action. The protection afforded workers pursuant to the provisions of [Section 138.4(h) ], then, demarcates it as an important part of [Illinois’] workmen’s compensation laws. Any civil action brought by an employee to seek redress for an employer’s alleged violation of this statute is an equally important aspect of the legislative scheme since a private action brought by an aggrieved employee is the only method to enforce the prohibition against retaliatory conduct set forth in [Section 138.4(h) ]. Therefore, a worker's private action, such as Plaintiff’s, must be considered as an action “arising under the workmen’s compensation laws” of [Illinois].

It remains only to consider whether Rubenstein makes any difference. Here too Westinghouse has not told us everything. It is not true (as Westinghouse claims) that Rubenstein “expressly rejected” (Westinghouse Mem. 2):

[t]he argument that a complaint alleging that the plaintiff was discharged for filing a workers’ compensation claim arises under the Illinois Workers’ Compensation Act____

What was at issue in Rubenstein was whether a workers’ compensation insurer was required by the policy terms to defend and indemnify an employer defendant in a retaliatory discharge action. What the policy required of the insurer was to defend the employer (the “Insured”) in “any proceeding against the Insured seeking such benefits____” In turn, “benefits” referred back to the policy’s coverage provision extending to “all compensation and other benefits required of the Insured by the workmen’s compensation law.”

Of course the Illinois Appellate Court rejected the employer’s contention (122 Ill.App.3d at 719, 78 Ill.Dec. at 543, 462 N.E.2d at 662):

Therefore, we believe that a tort action seeking compensatory damages as a result of a retaliatory discharge is not a proceeding seeking compensation and other benefits required of the employer by the Workers’ Compensation Act.

It found the employer had mischaracterized the employee’s claims, in terms of policy coverage, by its argument “that the retaliatory discharge action, though a common law action, arises out of the Workers’ Compensation Act and is therefore a proceeding within the meaning of the policy” (id. at 718, 78 Ill.Dec. at 542, 462 N.E.2d at 661). As the Appellate Court pointed out, “the pertinent provision in the policy does not end with the word ‘proceeding’ ” (id.).

Thus Rubenstein decided a retaliatory-discharge lawsuit was not for “compensation and other benefits required of the [employer] by the workmen’s compensation law.” But that is a far different question from the one presented here and dealt with in Thomas in the language quoted earlier: whether such a lawsuit “arises under” the Act. As Chief Judge Haden said on that score, 583 F.Supp. at 1037 n. 10 (again adapted to the Illinois situation, but with emphasis in the original):

It is important to note that it is the statute itself which creates Plaintiff’s cause of action for retaliatory discharge. The [Illinois] Supreme Court’s opinion in [.Kelsay ] merely recognizes the cause of action created by the statute.

Accordingly this Court adheres to the same analysis as Thomas. It also finds persuasive, as did Chief Judge Haden, the special consideration applicable where (as here) jurisdictional considerations are present. Without ascribing any sandbagging motive to Westinghouse, this Court is mindful of the possibility that a court's mistaken decision in favor of retention of a remandable case could result in a judgment subject to later attack for want of subject matter jurisdiction. See, e.g., Ross v. Inter-Ocean Insurance Co., 693 F.2d 659, 663 (7th Cir.1982). Conversely remand can pose no such risk of judicial (and litigants’) diseconomy. As Judge Schwarzer put it in Rosack v. Volvo of America Corp., 421 F.Supp. 933, 937 (N.D.Cal.1976):

Even if there were reason to doubt the correctness of this disposition, any doubt should be resolved in favor of remand to spare the parties proceedings which might later be nullified should jurisdiction be found to be lacking.

That approach is wholly consistent with the concept that “the policy of the successive acts of Congress regulating the jurisdiction of federal courts is one calling for the strict construction of [removal] legislation.” Shamrock Oil Corp. v. Sheets, 313 U.S. 100, 108, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941).

This Court therefore finds Section 1445(c) applies, so “that the case was removed improvidently and without jurisdiction” (Section 1447(c)). This action is remanded to the Circuit Court of Cook County-

      . Citations to the provision of the Act relevant here will simply take the form "Section 138.-4(h).”

      . Citations to applicable provisions of Title 28 of the United States Code will also take the form "Section—.” Because there is no numerical similarity at all between those sections and the provision of the Act referred to in n. 1, no confusion should result.

      . Indeed the parallel between Kelsay and the corresponding West Virginia decision in Shanholtz (cited later in this paragraph of the text) is even more striking than the courts’ identical conclusions would alone suggest. Each of those decisions also specifically cited and elected to follow the same cases: Frampton v. Central Indiana Gas Co., 260 Ind. 249, 297 N.E.2d 425 (1973) and Sventko v. Kroger Co., 69 Mich.App. 644, 245 N.W.2d 151 (1976).

      . Though Westinghouse's memorandum may not contain any outright misrepresentations, it must be viewed as a bit disingenuous in its handling of this issue. Westinghouse Mem. 2 n. 2 says:
      In those cases where removal has been deemed improper (see Kemp v. Dayton Tire and Rubber Co., 435 F.Supp. [1062] 1063 (W.D.Okla.1977), and Fernandez v. Reynolds Metals Co., 384 F.Supp. 1281 (S.D.Tex.1974), which are cited in Alexander’s brief (pp. 2-3)), a State statute provided a civil remedy for violating the statute. In contrast, Illinois’ statute is, as Alexander concedes, merely "a penal statute” (Plaintiffs br., p. 4), and no statutorily prescribed civil remedy is provided. Rather, any cause of action that Alexander might have for retaliatory discharge is predicated on a common law tort theory. Accord, Rubenstein Lumber, 78 Ill.Dec. at 543, 462 N.E.2d at 662.
      Were Westinghouse's memorandum a securities prospectus, its reference to "those cases” and the contrast with the Illinois situation—while at the same time remaining wholly silent on the West Virginia case, which reads on all fours with the Illinois situation and is not distinguishable on the basis suggested—would not pass SEC Rule 10b-5 scrutiny (including its stricture against misleading omissions). It would have been far more forthright for Westinghouse to acknowledge the parallel between the West Virginia and Illinois statutes and then argue Thomas should nonetheless not be followed by this Court.

      . [Footnote by this Court] Act § 138.26 makes any violation a "petty offense,” while there appears to be no corresponding provision in the West Virginia statute. That however does not vitiate the force of the Thomas analysis, for the employee’s private right of action is obviously the only truly effective means of implementing the prohibition against an employer’s retaliatory conduct.