text:
    James SANTILLO and Josephine Santillo v. CHAMBERSBURG ENGINEERING COMPANY, Westinghouse Electric Corporation, Crowder Jr. Company and National Loss Control Services Corporation.
    Civ. A. No. 83-3829.
    United States District Court, E.D. Pennsylvania.
    Feb. 6, 1985.

      Joseph Lurie, Philadelphia, Pa., for plaintiff.
    Lowell A. Reed, Jr., Philadelphia, Pa., for Crowder Jr. Co.
    Philip Kircher, Philadelphia, Pa., for Westinghouse Elec. Corp.
    Richard A. Kramer, Philadelphia, Pa., for Chambersburg Engineering Co.
   MEMORANDUM AND ORDER

HUYETT, District Judge.

Presently before me in this products liability suit is defendant National Loss Control Services Corporation’s (“NATLCO’s”) motion for summary judgment. For the reasons set forth below this motion will be denied.

Background

This is a rather complicated products liability case. Plaintiff, who was employed as a plant manager by non-party Phoenix Forging Company (“Phoenix”) was injured at work. The precise circumstances surrounding this injury are hotly contested, but it is undisputed that plaintiff somehow activated a foot-switch connected to a drop-hammer forging machine causing the ram of the machine to descend on plaintiffs hand. Plaintiff was severely injured as a result.

Plaintiff sued the manufacturer of the forging machine in question, the manufacturer of the foot switch in question, and the supplier of the foot switch under a strict liability theory premised upon Section 402A of the Restatement (Second) of Torts. Plaintiff also sued NATLCO under a negligence theory. He alleges that NATLCO undertook to perform safety inspections of the Phoenix plant, that it did not exercise reasonable care in the performance of those inspections, and that-he suffered injuries as a result of that negligence.

It is uncontested that NATLCO did, in fact, enter into some form of contract with the parent corporation of Phoenix. It is also uncontested that pursuant to this contract, NATLCO conducted a number of inspections of the Phoenix plant and made recommendations concerning safety improvements. The parties dispute most of the other aspects of NATLCO’s relationship to Phoenix.

The question presented in the present motion is whether plaintiff can proceed against NATLCO under Section 324A of the Restatement (Second) of Torts given the undisputed facts of this case. All parties apparently agree that Pennsylvania law should govern.

Under the Federal Rules of Civil Procedure, summary judgment is appropriate only where there exists no genuine issue of material fact and the movant is entitled to judgment as a matter of law. The burden is on the party seeking summary judgment to prove that no genuine issue of fact exists. For the purposes of considering such a motion, all questions of fact are resolved against the movant.

Discussion

Plaintiff is relying on what is sometimes known as the “good Samaritan rule” in his action against NATLCO. The foundation of the rule is that the defendant specifically has undertaken to perform the task that he or she is charged with having performed negligently. Patentas v. United States, 687 F.2d 707, 716 (3rd Cir.1982). Pennsylvania courts have recently adopted the statement of this rule contained in section 324A of the Restatement (Second) of Torts, Cantwell v. Allegheny County, Pa., 483 A.2d 1350 (1984), although it was clear that the rule was part of the law of the Commonwealth long before that. See Evans v. Otis Elevator Co., 403 Pa. 13, 168 A.2d 573 (1961). Section 324A provides:

§ 324A. Liability to Third Person for Negligent Performance of Undertaking
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increased the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

NATLCO argues in this motion that plaintiff cannot prove any of the prerequisites for recovery under Section 324A. Specifically, it argues that the services it performed were not sufficient to bring its activities within this section and that, in any event, it performed its duty with reasonable care. NATLCO also argues that none of the requisite elements of Section 324A(a) through (c) are present.

The threshold issue under § 324A is “whether the party charged undertook a duty to the person for whom the services were performed or to an injured third party.” Blalock v. Syracuse Stamping Co., Inc., 584 F.Supp. 454, 456 (E.D.Pa.1984) (quoting Evans v. Liberty Mutual Ins. Co., 398 F.2d 665 (1968)). It is undisputed that NATLCO performed some services for Phoenix, the question is really whether NATLCO has shown that there are no facts sufficient to establish that “the defendant has undertaken ‘to render services to another which he should recognize as necessary for the protection of a third person’.” Cantwell, 483 A.2d at 1353-54. “This is essentially a requirement of foreseeability.” Id. The extent of an undertaking is a question of fact. Blessing v. United States, 447 F.Supp. 1160, 1188-89 (E.D.Pa. 1978). I have reviewed the existing record in this case carefully. It appears that there exist genuine issues of fact bearing on the nature of the services which preclude the entry of summary judgment. In his deposition, a NATLCO safety inspector stated that his firm was retained to “essentially evaluate the safety program, and identify both strong and weak points in that program and really try to help and assist management in developing a more effective safety program.” Santella Deposition at 23-24. This evaluation involved a physical inspection of the plant area. Id. at 24.

Thus, it appears that NATLCO undertook to provide services which were recognized as involving safety concerns. Safety concerns, by their nature involve consideration of the well-being and protection of third parties: the employees. It would be disingenous to conclude, as NATLCO suggests, that the performance of a safety evaluation would not foreseeably give rise to concerns regarding the safety and protection of third parties. See Cantwell, 483 A.2d at 1353-54.

NATLCO also contends that it is entitled to judgment as a matter of law because it exercised reasonable care in performing its services. Obviously, the scope of the undertaking defines the requisite standard of care. Patentas, 687 F.2d at 716. There is evidence on the present record from which a jury could conclude that the alleged negligence of NATLCO was a proximate cause of plaintiff’s injury. In his deposition Santella stated that he inspected the machines in question. He also stated that he looked for and observed guards on the foot switches that operated the forging machines. Santella Deposition at 50-54. It therefore appears that there exists enough material in the record to allow a jury to conclude that NATLCO’s negligence in identifying the dangerous foot switches could have been a proximate cause of plaintiff’s injury.

In order to prevail under § 324A, a plaintiff must establish more than the fact that a defendant negligently performed a duty owed to another which he or she should have forseen as necessary to the safety of another. The plaintiff must also show that the requirements of one of the subsections of § 324A have been met. NATLCO argues that plaintiff cannot proceed under any of these provisions.

Subsection (a) requires that the activities of the defendant must have somehow increased the risk of harm to the plaintiff. It is well-settled that under § 324A negligent inspection does not meet the requirements of § 324A(a). See e.g. Canipe v. National Loss Control Service Corp., 736 F.2d 1055, 1062 (5th Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 965, 83 L.Ed.2d 969 (1985); Patentas, 687 F.2d at 717; Raymer v. United States, 660 F.2d 1136, 1143 (6th Cir.1981); Davis v. Liberty Mutual Insurance Co., 525 F.2d 1204, 1207 (5th Cir.1976).

NATLCO argues forcefully that it did not undertake to perform any duty owed to plaintiff by Phoenix which is the touchstone of liability under subsection (b) of § 324A. See Rutter Affidavit 117; Walsh Affidavit 117. Defendant’s contention in this regard is essentially that because Phoenix did not relinquish its own in-house safety programs, the requirements of § 324A(b) have not been met. Although the factual predicates of the argument are undisputed — Phoenix did not abandon its own safety efforts after retaining NATLCO — the argument made by NATLCO presents a close question of law over which the courts have divided.

There are a number of cases which accept the argument advanced by defendant herein. These cases read subsection (b) as requiring that a defendant undertake “not merely to supplement the employers’ own safety inspections, but rather to supplant those inspections,” Blessing, 447 F.Supp. at 1194 (emphasis in original). Under this reading of subsection (b), a defendant would have to “perform tasks on behalf of another and in lieu of that other” in order to be liable. Id. (emphasis in original). Accord Davis v. Liberty Mutual Ins. Co., 525 F.2d 1204 (5th Cir.1976); Tillman v. Travelers Indemnity Co., 506 F.2d 917 (5th Cir.1975).

There are, however, a number of cases which adopt an alternate interpretation of subsection (b). These cases hold that the requirements of this subsection have been met when “the party who owes the plaintiff a duty of care has delegated to the defendant any particular part of that duty.” Canipe, 736 F.2d at 1062-63. See also Evans v. Otis Elevator Co., 403 Pa. 13, 168 A.2d 573 (1961).

The correct approach to this issue seems to lie between these two positions. The touchstone of § 324A is that the defendant has undertaken some service for another party which is of a nature to give rise to a duty on the part of the actor to use reasonable care. See Evans v. Otis Elevator Co., 168 A.2d at 575-76. In order for such a duty to arise, one does not have to assume the entire responsibility of another party. Employers have the duty to provide safe workplaces for their employees. This duty includes providing light, air, and heat for their workers. It also includes providing a workplace that is not dangerous and the provision of safe tools. This duty could never, in reality, be fully delegated and assumed by another party; the duty is too broad. To accept the interpretation of subsection (b) urged by NATLCO would be tantamount to holding that liability for an on-the-job injury could never be imposed on a non-employer based on § 324A.

I do not imply, however, that any type of contractual relationship could form the basis of liability under § 324A. In order for subsection (b) to apply to any given situation, the relationship involved must be one that has given rise to a duty to use reasonable care. In the instant case, Phoenix retained NATLCO to perform safety evaluations and to advise it on safety-related matters. In performing its functions, NATLCO inspected the plant and its machinery in light of various applicable safety standards. Santella Deposition at 27, 28. It then recommended certain changes in the plant and its operation. Phoenix apparently implemented at least some of those changes. It would be difficult to interpret the relationship between Phoenix and NATLCO as not giving rise to a duty on NATLCO’s part to exercise reasonable care. Phoenix did, in fact, delegate some portion of their concern for safety to NATLCO; to conclude otherwise would force the conclusion that Phoenix paid for services for which it had no need and which it did not use. I refuse to reach this conclusion. Based on the available record, I cannot say that plaintiff cannot prove that NATLCO is liable under subsection (b) as a matter of law.

Because I have concluded that plaintiff has stated a valid claim under subsection (b), I need not address defendant’s arguments regarding plaintiff’s claim under subsection (c).

Defendant has placed great reliance on Blalock v. Syracuse Stamping, 584 F.Supp. 454 (E.D.Pa.1984). I think, however, that the facts of that case render it inapplicable to the case presently before me. In Blalock, plaintiff sued his employ-, er’s fire insurance carrier alleging that the periodic inspections it conducted were remiss in failing to recommend that the employer limit the amount of a flammable solvent stored in the plant. The insurer did not, however, undertake these inspections for the benefit of the employer, but rather did so in order to attempt to inform its own loss control practices and estimates. Id. at 456. The insurer was retained by the employer, not for evaluation of fire and other workplace hazards, but to provide fire insurance. As a result of its inspections, the insurer would occasionally pass-on various recommendations which would be adopted by the employer. Id. at 458. The relationship between the employer and the insurer in Blalock is, however, very different from that present between Phoenix and NATLCO. Phoenix hired NATLCO explicitly to provide safety and loss control advice and recommendations. These recommendations, and NATLCO’s services in general were made in reference to national guidelines and standards, at least some of which had the force of law. See Santella deposition at 27, 28.

For the reasons I have stated, I find that plaintiff has raised a genuine issue of material fact sufficient to avoid summary judgment. At the present time, I cannot say that defendant is entitled to judgment as a matter of law.

      . It is interesting to note that both Blessing and Canipe rely on the same cases in order to reach diametrically opposed conclusions. Both rely on Davis v. Liberty Mutual Ins. Co., 525 F.2d 1204 (5th Cir.1976) and Tillman v. Travelers Indemnity Co., 506 F.2d 917 (5th Cir.1975). Both Davis and Tillman are Fifth Circuit cases which predate Canipe, another Fifth Circuit case. I have concluded based on my reading of Davis and Tillman that Canipe's reading of them is more clearly correct. Moreover, Canipe could be interpreted as repudiating the basis of both Davis and Tillman, if one assumes the correctness of the Blessing reading.

        Blessing also involved a factual situation very different than that presented here in that the plaintiff therein sought to impose liability upon the United States based on an allegedly negligent inspection conducted by members of the Occupational Safety and Health Administration.


source: Caselaw Access Project

author: SWEET, District Judge.

license: Public Domain

text:
    John J. FOX, Plaintiff, v. Alfred G. BOUCHER, Defendant.
    No. 84 Civ. 8223(RWS).
    United States District Court, S.D. New York.
    Feb. 6, 1985.

      John J. Fox, Pearl River, N.Y., pro se.
    Edwards & Angelí, New York City, for defendant; David M. Olasov, New York City, of counsel.
   OPINION

SWEET, District Judge.

Defendant Alfred G. Boucher (“Boucher”) moved on December 13, 1984 to dismiss this action and for summary judgment. Plaintiff John J. Fox (“Fox”) by his then counsel wrote the court on December 11, 1984 a letter received on December 14 requesting that this action, removed from Supreme Court, Rockland County, be designated a White Plains action and transferred to that court. Upon the following findings and conclusions, summary judgment will be granted to Boucher, rendering the transfer motion moot.

The Parties

Fox is a New York State resident and lawyer and owns 1 St. Paul Street, in Blackstone, Massachusetts. Boucher is a resident of Bellingham, Massachusetts. He is the father of Janice C. Hogge. He has no business, residence or other connection with New York State.

Prior Proceedings

Boucher’s daughter and her husband were month-to-month tenants in Fox’s building in May, 1984. On May 15, 1984 Boucher’s son-in-law was injured in a motorcycle accident, remained in a coma for five days and then died. Boucher’s daughter and her husband were only twenty-three years old at the time of the husband’s death, and had been married for less than two years.

Boucher’s daughter moved out of the apartment by June 1, 1984 and moved back in with her family. Fox refused to return to Janice Hogge her security deposit on the apartment in the amount of $250 and suggested that her husband’s death must have provided ample funds:

I know you are going to say this is none of my G-D business, but I know your husband just died and I’m sure he must have had insurance.

Janice Hogge was unable to continue the conversation, Boucher picked up the phone, a conversation ensued. Fox refused the demand for the security deposit and Boucher ended the conversation by hanging up the phone.

Janice Hogge, acting pro se, filed a “Statement of Small Claim and Notice of Trial” against Fox in the Trial Court of Massachusetts, Small Claims Session, at the Uxbridge District Court. Fox served an answer and counterclaims containing an eighth affirmative defense and fourth counterclaim:

AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE AND A FOURTH COUNTERCLAIM
31. On July 2, 1984 the plaintiff called the defendant, JOHN J. FOX, by telephone requesting the return of her security.
32. Defendant explained to plaintiff the substance of paragraphs “19,” “21,” “24,” “25,” and “26” [containing Fox’s purported “defenses” which the court ultimately rejected] aforesaid.
33. Plaintiff’s father then spoke on the telephone with said defendant who explained the substance of paragraphs “19,” “21,” “24,” “25” and “26” aforesaid to him.
34. Both the plaintiff and her father stated to said defendant that he should pay the plaintiff since JOHN J. FOX is wealthy and is an attorney.
35. Despite said explanations by said defendant, plaintiff instituted the within lawsuit.
36. Plaintiff knew or should have known after July 2, 1984 that she had no basis for the instant litigation and that her claim was meritless and baseless.
37. Plaintiff instituted this litigation intentionally in a conspiracy with her father against the defendant, JOHN J. FOX.
38. Said act constituted a wrongful, prima facie tort.
39. The act of the plaintiff was done in an attempt to achieve a collateral advantage of blackmail and retribution against said defendant.
40. The act of the plaintiff was done in an attempt to have said defendant capitulate to avoid the harassment of traveling from New York to Massachusetts and to avoid the embarrassment of an attorney being a defendant.
41. The acts of the plaintiff violated the Criminal and Penal Law is a form of extortion.
42. As a result of the actions of said plaintiff, said defendant became tense, nervous, irritable, suffered great mental anguish, became excited, stopped enjoying life, was unable to sleep, was made to suffer and endure severe mental and physical suffering and still suffers the same and incurred special drug expenses.
43. The plaintiff in acting as she did, acted wilfully, wantonly, recklessly and maliciously.
44. Defendant, JOHN J. FOX, has been damaged in the sum of $5,000.00.
45. Defendant demands punitive damages.

On September 12, 1984 Janice Hogge’s case against Fox was tried to the Trial Court of Massachusetts. At the conclusion of the trial, the presiding justice entered written findings and judgment and granted Boucher’s daughter her security deposit, awarded treble damages against Fox in the amount of $809.25 and dismissed all of Fox’s counterclaims, including the fourth counterclaim quoted above.

Upon leaving the courthouse Boucher had a brief exchange of words with Fox. Fox said to Boucher: “I’m going to get you for this.” Boucher asked Fox if he was threatening him. Fox replied: “I’m going to get you in court.”

Counsel for Fox on September 13, 1984 wrote to Boucher stating:

September 13, 1984
Mr. Alfred Boucher
887 South Main Street
Bellingham, Massachusetts 02019
Re: Fox v. Boucher
Dear Mr. Boucher:
I have been retained by Mr. John J. Fox to prosecute a New York State action against you for what appears to be a prima facie tort.
Under New York State’s “long-arm” statutes, it is my opinion that you can be sued in the New York State Courts for the alleged improper telephone call to my client at his local office.
If you are insured, I suggest that you turn this letter over to your insurance carrier. If you are not insured, I strongly recommend that you have an attorney contact me on your behalf or that you call me to see if an amicable disposition of this matter can be reached.
If I do not hear from you within one (1) week from the date of this letter, I shall have no alternative but to take such action as may be necessary to protect my client’s interests, without further notice to you.
Very truly yours,
/s/
Morton Lieb

On or about October 9, 1984 Boucher received by mail a summons with notice that he was being sued for “prima facie tort and punitive damages” in the amount of $100,000. On November 8, 1984 Boucher removed the action to this court.

Fox served his verified complaint upon Boucher on or about November 29, 1984. The verified complaint contains a single cause of action which is repeated here in full:

CAUSE OF ACTION
4. On or about July 2, 1984, via the telephone from the State of Massachusetts to the State of New York, the defendant stated to the plaintiff that because plaintiff was rich and was a lawyer, plaintiff should return a security deposit allegedly held by the plaintiff.
5. Defendant further stated that because plaintiff was rich and was a lawyer, defendant would have a law suit brought against him in the State of Massachusetts.
6. As a result of the actions of said defendant herein, the plaintiff became tense, nervous, irritable, suffered great mental anguish, became excited, stopped enjoying life, was unable to sleep, was made to suffer and endure severe mental, emotional and physical suffering and still suffers the same and incurred physician’s and drug expenses.
7. The defendant in acting as he did, acted wilfully, wantonly, recklessly and maliciously.
8. Plaintiff demands punitive damages.

The only factual dispute gleaned from the affidavits is whether or not it was Boucher or his daughter who stated in the July 2,1984 conversation that Fox was rich and a lawyer and should return the security deposit. Boucher asserts it was his daughter’s statement but this issue for the purposes of this motion will be resolved against him as the moving party.

Jurisdiction

While diversity jurisdiction has been established, personal jurisdiction has not. Fox seeks to invoke New York’s long-arm statute, CPLR § 302, claiming that the telephone call into New York during which Boucher called Fox a rich lawyer constituted a prima facie tort giving rise to jurisdiction. No cases are cited to support the proposition. A telephone call to New York from another state failed to establish New York jurisdiction in Sterling Nat. Bank v. Southern Scrap Export Co., 468 F.Supp. 1100, 1106 (S.D.N.Y.1979); Rainbow Ind. Products v. Haybuster Mfg., Inc., 419 F.Supp. 543, 546 (E.D.N.Y.1976); and Concrete Detailing Services, Inc. v. Thomsson Steel Co., Inc., 411 F.Supp. 1021, 1022-23 (S.D.N.Y.1976). Moreover, the circumstances under which Boucher spoke for a few moments on the phone to Fox clearly would not satisfy the “minimum contacts” test for a jurisdiction under the due process clause of the Constitution. See International Shoe Co. v. Washington, 326 U.S. 310, 316-17, 66 S.Ct. 154, 158-159, 90 L.Ed. 95 (1945). Accordingly, this court has no jurisdiction over defendant Boucher.

Collateral Estoppel

“The doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunal or causes of action are the same.” Ryan v. New York Telephone Co., 62 N.Y.2d 494, 478 N.Y. S.2d 823, 826, 467 N.E.2d 487, 490 (Ct.App. 1984); Temple v. New York, (slip op. August 9, 1984, 83 Civ. 7116, S.D.N.Y.).

Plaintiffs verified complaint purportedly alleges that Boucher has committed a prima facie tort under New York law by calling Fox a rich lawyer (though any words to this effect were said by Boucher’s daughter). The New York Court of Appeals has very recently restated the rule that “prima facie tort should not become a ‘catch-all’ alternative for every cause of action which cannot stand on its own legs.” Curiano v. Suozzi, 63 N.Y.2d 113, 480 N.Y.S.2d 466, 470, 469 N.E.2d 1324 (Ct. App.1984), quoting, Belsky v. Lowenthal, 62 A.D.2d 319, 405 N.Y.S.2d 62 (1st Dept. 1978), affd, 47 N.Y.2d 820, 418 N.Y.S.2d 573, 392 N.E.2d 560 (1979).

Not every statement that wounds is tortious. Although Fox seeks to validate his prima facie tort cause by setting forth special damages to comply with ATI, Inc. v. Ruder & Finn, Inc., 42 N.Y.2d 454, 398 N.Y.S.2d 864, 368 N.E.2d 1230 (Ct.App. 1977), the damages claimed are for cough syrup on August 7, eyedrops on October 8 and a decongestant on November 17, for a grand total of $10.40. That constitutes sham.

Judgment will be entered dismissing the complaint with costs to Boucher. Pursuant to Rule 11 as an appropriate sanction, reasonable attorney’s fees in the amount of $3,000 will also be assessed.

IT IS SO ORDERED.

      . Counsel for Fox withdrew on December 19, 1984 and that consent is hereby approved. Fox is an attorney, formerly the Town Attorney of Orangetown, and he submitted his affidavit in opposition to Boucher’s motion on December 21.


author: GRADY, District Judge.

text:
    Rev. Timothy A. HOLLY, Plaintiff, v. CITY OF NAPERVILLE, et al., Defendants.
    No. 82 C 6981.
    United States District Court, N.D. Illinois, E.D.
    Feb. 7, 1985.

      Timothy A. Holly, pro se.
    Marvin Glink, Peter D. Coblentz, John B. Murphey, Ancel, Glink, Diamond, Murphy & Cope, Chicago, 111., for defendants.
   MEMORANDUM OPINION

GRADY, District Judge.

This is an age, race and handicap discrimination action brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., and the Civil War statutes, 42 U.S.C. §§ 1981 and 1983. Defendants have brought a motion for summary judgment on some parts of the complaint. We grant that motion in part and deny it in part.

FACTS

Plaintiff is a black person and is blind in one eye. At the time his complaint was filed, he was 50 years of age. Plaintiff was an employee of the City of Naperville, Illinois (the “City”), from July 1978 to August 1981, when he was discharged. Plaintiff alleges that his termination was motivated by his age, race and handicap, and that he was denied due process when not granted a hearing by the City’s Personnel Board to review his discharge.

Plaintiff was hired as Data Processing Manager. He was interviewed by the City’s Personnel Officer, who, according to plaintiff, informed plaintiff that if he were hired, his job would be protected by the City’s Administrative Directive No. 29 (“AD. 29”), which he was told prevented discharge without cause and allowed a hearing designed to ensure him of job security. Holly Dep. at 19-20, 26-27. Greg Bielawekski, acting City Manager, was also present at this interview. Id. at 18.

Plaintiff accepted the position and received positive job evaluations with pay raises covering the period of July 1978 to January 1981. Plaintiff’s Memorandum Urging Denial of Defendants’ Motion for Partial Summary Judgment, Exhs. C(1)-(17). Originally, he was supervised by Bielawekski. Holly Dep. at 21-22, 60-61. When Bielawekski left the City’s employ sometime in early 1980, plaintiff was then supervised by the new City Manager, defendant George Smith. Id. at 61.

According to plaintiff, the City’s Finance Officer, defendant John Lawlor, began to interfere with plaintiff’s Data Processing Office because Lawlor did not want an in-house processing office. Id. at 46-50. Plaintiff states that Lawlor also expressed a racial animus toward plaintiff and made several disparaging racial remarks to him. Id. at 56.

In 1980, when Bielawekski was in the process of leaving, the Financial Advisory Board, created by the City Council, recommended formation of a “Users’ Group,” a committee designed to advise on use of the City’s computer system. Lawlor was a member of this Group, and plaintiff believed that formation of the Group was a removal of his authority as Data Processing Manager, and motivated by Lawlor’s racial bias, since no other office was subject to such monitoring. Id. at 72, 77, 80, 83, 87, 103. Throughout 1980, plaintiff continued as Data Processing Manager, directly reporting to Smith and subject to the Users’ Group supervision.

In December 1980, plaintiff visited cousins in California on his vacation. These cousins had formed a computer company and were working with the town of Fair-field, California. Plaintiff accompanied his cousins, to a meeting with the Fairfield City Manager, at which the best systems for a city’s data processing needs were discussed. Plaintiff informed Smith of this meeting. According to plaintiff, Lawlor learned of this meeting and accused plaintiff of trying to sell the City’s computer programs to Fairfield. Holly Dep. at 166. Plaintiff believed that Smith became influenced by Lawlor’s accusation and began to question plaintiff’s integrity. Id. at 167.

Smith fired plaintiff in a meeting on August 5, 1981. Plaintiff asked Smith the reasons for his discharge and was not told. Id. at 272. During this meeting, Smith stated that he preferred having plaintiff resign rather than being fired because his chances of getting another job would be limited by his age, handicap and race. Id. at 273, 296.

According to plaintiff, he then told Smith that he wished his discharge to be reviewed by the City’s Personnel Board, in accordance with AD. 29. Id. at 276. Plaintiff never spoke directly to the Board. Id. at 277. Plaintiff alleges that Smith told him such a hearing would be useless, since Smith’s word would be final. Id. Plaintiff then requested a hearing from defendant Chester Rybicki, Mayor of the City. Id. at 280. Plaintiff states that Rybicki informed him that his discharge was a matter between plaintiff and Smith and that Rybicki did not want to become involved. Id. at 281.

Plaintiff was replaced by a white male, thirty-seven years old, with no handicap. Defendants’ Answer to Plaintiff’s Revised Interrogatory # 10.

DISCUSSION

I. DUE PROCESS CLAIMS

Plaintiff alleges that his due process rights were violated because he was not given a hearing by the Personnel Board concerning his discharge. He bases his right to a hearing on two separate interests: (1) a property interest in continued employment with the City, and (2) a liberty interest in his good reputation. We deal with each in turn.

A. Property Interest

The requirements of due process apply to property interests created and defined by sources independent of the Constitution itself, such as state law. See Board of Regents v. Roth, 408 U.S. 564, 569-70, 577, 92 S.Ct. 2701, 2705, 2709, 33 L.Ed.2d 548 (1972). Plaintiff here claims AD. 29 to be the source of a property interest in his continued employment. AD. 29 lists reasons for disciplinary action against an employee of the City. The directive also states that when action is taken against an employee, “the employee shall be advised in writing that he or she may appeal the action to the Personnel Board as provided in the City Code.” Defendants’ Memorandum in Support of Motion for Partial Summary Judgment, Ex. A.

Section 7.105(b) of the City Code states: Powers. The personnel board shall hear appeals submitted by any regular employee relative to any suspension, demotion or dismissal. The personnel board shall also consider any personnel matter referred to it by the city manager for its recommendation. The personnel board shall submit a written statement of facts, findings, and recommendations to the city manager. When the Board finds the action appealed as been the result of political, religious or racial prejudice, its findings shall be final, and the city manager shall reinstate the employee in his position. In all other cases, the board’s recommendations shall be advisory only, and the action taken by the city manager shall be final and conclusive. Any hearing conducted by the personnel board relating to an employee shall be open to the public if requested by the employee.

Id. at Ex. C.

Defendants argue that plaintiff has no property right in continued employment because plaintiff was a department head, and AD. 29 does not apply to department heads. Moreover, even if AD. 29 did apply to plaintiff, plaintiff failed to request an appeal before the Personnel Board.

Section 7.102 of the City Code states:

Coverage ... The following persons within the classified service are exempt from those personnel rules pertaining to appointment and removal: department heads, assistant department heads, division heads, and administrative secretaries and assistants in the city manager’s office.

Id.

Defendants claim that plaintiff comes within the ambit of this exclusionary provision, and that, since AD. 29 cannot and does not purport to supersede § 7.102, plaintiff as a Department Head, cannot claim a property interest arising from the directive.

In support of their claim that plaintiff was a department head, defendants point to the following exchange in plaintiff’s deposition:

Q: Was the Data Processing Department in effect its own department?
A: Yes.
Q: And you were the department head of that department?
A: In that department, head of that department.

Holly Dep. at 31. Plaintiff also calls himself a “department head” at various other times, e.g. Plaintiff’s Answer to Defendants’ Interrogatory # 6; Holly Dep. at 138, 282. Defendants also argue that plaintiff's main evidence of discrimination is alleged interference by the Financial Advisory Board in his department, an interference that plaintiff asserts did not occur in other departments. This accusation of interference, defendants claim, flies in the face of plaintiff’s argument that he was not a department head. Defendants’ Reply Memorandum in Support of Motion for Partial Summary Judgment.

While we find this to be strong evidence in support of defendants’ argument, we believe that an issue of material fact still exists as to whether plaintiff was in fact a department head to be excluded from AD. 29’s protections. Plaintiff has stated that he was told by the Personnel Officer, in the presence of the City Manager, that plaintiff would be covered by AD. 29. This suggests that both the City Manager and Personnel Officer did not believe that they were hiring plaintiff as an exempt department head. Moreover, defendants, in a report filed with the EEOC in response to plaintiff’s charges, admitted that “Mr. Holly had a right to appeal his discharge to the Personnel Board.” Plaintiff’s Memo. Urging Denial, Ex. A(6) at 115. The interference of which plaintiff complains suggests that his department was not treated like other departments, a situation that could indicate that the department was not to be treated as a separate department or division under § 7.102. Finally, a city chart that delineates the various departments does not label the Data Processing Office a “department,” unlike the eight other departments, such as the “Finance Department,” and the “Legal Department.” Id. at Ex. J(20). Instead, the Data Processing Office is listed under the “Assistant City Manager for Auxiliary Services,” along with the Personnel Office and other separate entities not labeled “Departments” or “Divisions.” Conceivably, under this chart, the Data Processing Office could be considered neither a department nor a division for the purposes of application of § 7.102.

Defendants’ argument that even if plaintiff had not been a department head, he failed to ask for a hearing, is not tenable. Plaintiff states that he asked Smith for a hearing, and was told by Smith that such an oral request effectively invoked his right to a hearing, but that such a hearing would be useless. Holly Dep. at 277. Later, plaintiff also requested a hearing from the Mayor. Section 7.105(b) does not indicate how an employee is to go about requesting a hearing. In the absence of a specific application procedure, we believe that a request to the City Manager and the Mayor sufficiently put the City on notice that plaintiff was invoking his right. Moreover, under AD. 29, it was the City’s duty to advise plaintiff in writing of his right to appeal, which it failed to do. Therefore, we deny defendants’ motion for summary judgment insofar as it calls for dismissal of plaintiff’s property interest due process claim.

B. Liberty Right Interest

Plaintiff also alleges that he had a right to a due process hearing because defendants made statements that resulted in stigma to his reputation.

The concept of liberty recognizes two particular interests of a public employee: “1) the protection of his good name, reputation, honor and integrity and 2) his freedom to take advantage of other employment opportunities.” Hadley v. City of DuPage, 715 F.2d 1238, 1244 (7th Cir. 1983), cert. denied, — U.S. —, 104 S.Ct. 1000, 79 L.Ed.2d 232 (1984). See Munson v. Friske, 754 F.2d 683, 693-694 (7th Cir. Jan. 29, 1985). The Seventh Circuit has interpreted this recognition to mean that an employee is entitled to a due process hearing if a government official makes charges against the employee that “might seriously damage his standing and associations in his community.” Munson, at 693; Hadley, 715 F.2d at 1245.

Plaintiff claims the following to be such charges:

(1) Statements attributed to Smith in a newspaper article concerning plaintiff’s discharge;

(2) The content of defendants’ EEOC response as it was disseminated among city employees;

(3) Plaintiff’s repetition of the EEOC response’s content when interviewing for employment; and

(4) Submission of the EEOC response by defendants’ attorney to plaintiff’s prospective attorney.

As a matter of law, none of these statements entitled plaintiff to a hearing.

The Newspaper Article

In an article appearing in a Naperville newspaper shortly after plaintiff’s discharge, Smith is quoted as firing plaintiff because his “management of the data processing office was less than satisfactory.” An unattributed source is quoted as stating that “utility accounts have been ‘dropping out’ of the city’s billing system, only to be discovered and reinserted in the system later, and ... there have been other data processing problems as well.” The article also quotes Smith commenting that plaintiff took a trip to California around Christmas, without further discussion, and that the City had “a number of problems for a long period of time” with the billing system.

None of these remarks is stigmatizing. The charges quoted suggest that plaintiff was incompetent or mismanaged the office. The Seventh Circuit has held that such charges are not enough to give rise to a liberty interest requiring a hearing. Munson, at 693; Hadley, 715 F.2d at 1245. Instead, the charges must have “impugned his moral character” and relate to characteristics such as “dishonesty or other job-related moral turpitude.” Lawson v. Sheriff of Tippecanoe County, Indiana, 725 F.2d 1136, 1138-39 (7th Cir.1984). Otherwise, the statements are not so likely to make the employee unemployable in the future as to “formally exclud[e]” him from his occupation and strip him of his liberty interest in future employment opportunities. Id. at 1139.

Plaintiff claims that the remark concerning utility accounts “dropping out” amounts to a charge of embezzlement and dishonesty. We find this interpretation unreasonably strained. By “dropping out,” the speaker was obviously complaining of a technical deficiency, within the category of the “other data processing problems” that he was discussing at the time. Moreover, this speaker is not identified to be even a City official. Hence, no statement quoted in the article rises to the level of stigma by the government body, and plaintiff was not deprived of a liberty interest as a matter of law.

EEOC Comments

After plaintiff was fired, he filed charges against the City with the EEOC. The City then filed its response to plaintiff’s claim “several months” after plaintiff’s discharge. In the course of preparing the response, plaintiff states that publication of the content of the response occurred when defendants consulted with their employees. Plaintiff also complains of publication when plaintiff was forced to report the content of the response to prospective employers in his search for employment and when defendants sent a letter containing portions of the response to plaintiff’s prospective counsel on June 25, 1982.

In the EEOC response, possibly two remarks could be viewed as impugning plaintiff’s moral character or honesty:

(1) ¶ 8.14. Mr. Holly’s conduct was inappropriate occasionally in dealing with female employees. This hampered his ability to work effectively with them. He made off-color comments to Jeanne Wisniewski and Kathy Redding and others. This writer once heard him address one of his staff members in the following manner. ‘Debbie (Perkolup), get your butt over here, sweetheart.’ Mr. Holly was advised by the City Manager that it was inappropriate to address women as ‘sweetheart;’ however, he continued to do so. The respect he demanded for himself was strangely lacking in his dealings with women. This conduct did little to promote good working relationships with them.
(2) 118.18. Mr. Holly’s visit to Fairfield, California gave Mr. Smith and Mr. Lawlor the impression that he was trying to sell City of Naperville programs to Fairfield, California. It seems likely that Naperville programs would be of far more interest to Fairfield than programs developed for General Motors. This incident created some doubt about Mr. Holly’s integrity.

Elsewhere in the EEOC response the City again refers to this California visit: “¶ .5. Mr. Holly was discharged August 6, 1981, for ... attempted conversion and sale of City property.” Plaintiff’s Memo. Urging Denial, Ex. A(6), (15), (16). Conceivably, ¶ 8.14 accuses plaintiff of sexual harassment, and ¶¶ 8.18 and 5. accuse him of theft.

However, while the content of these comments may impugn plaintiff’s integrity, their publication is too attenuated from his discharge to implicate plaintiff’s liberty interest. It is not sufficient to establish a due process claim that a government official simply defame the plaintiff. The defamation must occur “in the course of the termination of the employment,” Hadley, 715 F.2d at 1246, citing Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), or “in conjunction with” discharge or failure to rehire. See Colaizzi v. Walker, 542 F.2d 969, 973 (7th Cir. 1976), cert. denied, 430 U.S. 960, 97 S.Ct. 1610, 51 L.Ed.2d 811 (1977). This is known as the “stigma-plus” test: “stigma” “plus” proximity to discharge.

In an earlier opinion in this case, we refused to dismiss plaintiff’s liberty interest claim because it was not clear at that point in the pleadings how long after discharge defendants allegedly made defaming statements. Holly v. Naperville, 571 F.Supp. 668 (N.D.Ill.1983). There, we stated that the “in the course of” or “in conjunction with” test can be met “even though some period of time passes between the termination and the publication of the defamatory remarks.” Id. at 676. We added:

On a motion to dismiss a pro se complaint, we will not require that the time span be pled. If it develops that the time between the termination and the defamation was so long as to attenuate any link between the two, we can dispose of that issue on a motion for summary judgment.

Id.

The time between termination and defamation now has been established as “several months;” the defamations, aside from those alleged in the newspaper article, supra, have all been traced to defendants’ EEOC response. Therefore, no defamation preceded plaintiff’s instigation of an administrative proceeding designed to address plaintiff’s claim of unlawful discharge. Under such circumstances, we are compelled to follow the Court’s controlling decision in Bishop v. Wood, 426 U.S. 341, 348, 96 S.Ct. 2074, 2079, 48 L.Ed.2d 684 (1976).

In Bishop, the plaintiff complained of statements made by the defendant in answer to interrogatories submitted by the plaintiff in the course of litigation of plaintiff’s suit against the defendant for unlawful discharge. The Court held that these statements could not form the basis of a liberty interest claim:

Since the ... communication was made in the course of a judicial proceeding which did not commence until after petitioner had suffered the injury for which he seeks redress, it surely cannot provide retroactive support for his claim. A contrary evaluation ... would penalize forthright and truthful communication between ... litigants.

Id. at 348-49, 96 S.Ct. at 2079-80.

Similarly, statements made in two letters sent to the Department of Labor in objection to a plaintiff’s claim for unemployment compensation benefits were held not to be made “in conjunction with” dismissal. Albamonte v. Bickley, 573 F.Supp. 77, 81 (N.D.Ill.1983).

Even if Bishop does not hold that all employer statements made in a legal proceeding concerning an employee’s discharge are too attenuated in time from the discharge to support a constitutional defamation claim, plaintiff’s claim here still fails. The Court in Bishop voiced its desire not to discourage candid discussion between litigants. To rule that the EEOC response could be used to raise a constitutional defamation claim would result in a chilling effect equal to that found unacceptable in Bishop. Plaintiff admits that he cannot object to the EEOC response itself, and limits his claim to publications surrounding the response. Plaintiff’s Memo. Urging Denial at 9. But one of the publications of which plaintiff complains, statements made to City employees in preparation of the response, is so closely integrated with the response itself, that use of these statements would also violate the principle announced in Bishop.

The second publication of which plaintiff complains, his own repetition of the response’s content, is also not actionable. Plaintiff claims that he is forced to repeat the stigmatizing statements made in the EEOC response when he seeks employment: prospective employers ask why he was discharged, and he feels compelled to reveal the contents of the response. But plaintiff is not compelled to reveal the contents of the response. This is not a situation in which prospective employers have access to stigmatizing statements placed in the employee’s personnel file, e.g., Velger v. Cawley, 525 F.2d 334, 337 (2d Cir.1975), reversed, on other grounds, 429 U.S. 624, 97 S.Ct. 882, 51 L.Ed.2d 92 (1976); Giordano v. Roudebush, 448 F.Supp. 899, 905 (S.D.Iowa 1978). Because plaintiff “can control the kind and amount of information that is released” to employers, he cannot claim his statements to be the basis of a claim. See Green v. Board of School Commissioners of City of Indianapolis, 716 F.2d 1191, 1193 (7th Cir.1983).

Finally, plaintiff complains that defendants released portions of the EEOC response to an attorney whom plaintiff hoped to retain as his counsel in this case. This is not a release to the public damaging plaintiff’s reputation or chances for future employment. Plaintiff sought to employ the attorney, not be employed by him, and unless a stigmatizing statement is made public or hinders plaintiff’s opportunity to be employed in the future, it has no impact upon his liberty interest. See Munson, at 694. Moreover, these statements were made almost eleven months after plaintiff’s discharge; clearly, any possible connection with the discharge is too attenuated to give rise to a due process claim.

Because the statements of which plaintiff complains either do not impugn his moral character, or are too remote in time to have been made “in conjunction with” his discharge, we grant summary judgment for defendants as to plaintiff’s due process liberty interest claim, and dismiss Count II of plaintiff’s complaint.

II. AGE AND REHABILITATION ACT CLAIMS

Plaintiff claims that he was discharged because of his age and handicap, and that his discharge amounts to a violation of the Rehabilitation Act and the ADEA. Defendants move for summary judgment on the ground that plaintiff has offered no evidence to suggest that either his handicap or age was a motivating factor in his discharge. We agree with defendants and dismiss plaintiffs age and handicap claims.

A. Rehabilitation Act Claim

Section 504 of the Rehabilitation Act provides that:

No otherwise qualified handicapped individual ... shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

29 U.S.C. § 794.

In order to make out a case under § 504, plaintiff must meet a four-prong test: (1) he is a “handicapped individual” under the Act; (2) he is “otherwise qualified” for the position sought; (3) he was excluded from the position sought solely by reason of his handicap; and (4) the position he seeks exists as part of a program or activity receiving Federal financial assistance. Plummer by Plummer v. Branstad, 731 F.2d 574, 577 (8th Cir.1984); Strathie v. Department of Transportation, 716 F.2d 227, 230 (3d Cir.1983); Joyner by Lowry v. Dumpson, 712 F.2d 770, 774 (2d Cir.1983); Doe v. New York University, 666 F.2d 761 (2d Cir.1981). Since the first and last of these elements are not questioned, we turn to the proof offered in relation to the second and third elements.

Plaintiff has offered job evaluations and comments made by his superiors concerning their requests for plaintiffs pay raises as evidence that he was a qualified Data Processing Manager. Plaintiff’s Memo. Urging Denial, Ex. C(l)-(17). We agree that this evidence raises a question of material fact as to the second element. Therefore, the only issue remaining is whether plaintiff was fired due “solely by reason of his handicap.” Defendants claim that plaintiff has not met his burden of proof on this point.

Plaintiff has offered no evidence to suggest that his handicap was a motivating factor in his discharge. Throughout his deposition, plaintiff repeatedly admits that his handicap played no part in any actions taken against him. Holly Dep. at 81, 142, 157. The only piece of evidence that plaintiff points to in support of his handicap claim is the statement Smith allegedly made when discharging plaintiff: “You are going to have difficulty in getting a job because of your handicap.” Id. at 296.

This statement fails to meet a plaintiff’s burden of proof. While it is well settled that the burden initially is on the movant to demonstrate that no genuine issue as to any material fact exists, and that any doubt as to the existence of a genuine issue of material fact will be resolved against the movant (above all in pro se cases), once the movant demonstrates that no competent evidence exists to support a judgment for plaintiff if the case went to trial, the burden then shifts to the non-movant to present competent evidence in opposition to the motion for summary judgment. See Posey v. Skyline Corp., 702 F.2d 102, 106 (7th Cir.), cert. denied, — U.S. —, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983). Smith’s statement does not constitute such evidence.

On its face, Smith’s statement is neutral. It merely states what Smith could believe to be a fact of life. The comment does not indicate that plaintiff was being discharged because of his handicap or that he was considered an inferior worker, except if one applies an unreasonably strained interpretation to Smith’s words. Even in discrimination cases, where we are attempting to discern a defendant’s intent, the court is “not required to evaluate every conceivable inference which can be drawn from evidentiary matter, but only reasonable ones.” Parker v. Federal National Mortgage Association, 741 F.2d 975, 980 (7th Cir.1984) (emphasis in original) (ADEA claim). Because this statement, if the only evidence presented at trial, would result in a directed verdict for the defendant, it fails to meet plaintiff’s burden of proof. Id. Defendants’ motion for summary judgment on plaintiff’s Rehabilitation Act claim is granted.

B. ADEA Claim

We analyze plaintiff’s age discrimination claim applying the test announced in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and clarified in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). First, the plaintiff must prove a prima facie case of discrimination by showing that (1) he was in the protected class; (2) he was doing his job well enough to meet his employer’s legitimate expectations; (3) in spite of his performance he was discharged; and (4) he was replaced by a younger person outside the protected age group. See Trembath v. St. Regis Paper Co., 753 F.2d 603 (7th Cir.1985). Once the plaintiff has proved these four elements, the burden of production then shifts to the defendant to articulate lawful reasons for discharge. La Montagne, at 1409. If the defendant successfully produces such evidence, the burden then shifts back to the plaintiff to prove that his proffered reasons are pretextual, “by showing either that a discriminatory reason more than likely motivated the employer or that the employer’s proffered explanation is unworthy of credence.” Id.; Golomb v. Prudential Insurance Co. of America, 688 F.2d 547, 550 (7th Cir.1982).

No dispute exists as to elements one, three and four. Defendants focus on the second element, and state that they fired defendant because of unsatisfactory management performance; they point to their EEOC response for specific performance deficiencies. Defendants’ Answer to Plaintiff’s Revised Interrogatory # 14.

Previous decisions are somewhat contradictory as to whether defendants’ explanation of poor performance should be considered in determining whether a prima facie case has been presented, e.g., Hugh v. Koehring Co., 718 F.2d 239 (7th Cir.1983); Kephart v. Institute of Gas Technology, 630 F.2d 1217, 1220 (7th Cir.1980), cert. denied, 450 U.S. 959, 101 S.Ct. 1418, 67 L.Ed.2d 383 (1981), or whether defendants have articulated a legitimate reason for discharge, e.g., Parker, 741 F.2d at 978. Resolving this point in favor of the plaintiff, we assume that he can meet his burden in proving a prima facie case and that defendants are asserting a legitimate reason for discharge. The burden then rests on plaintiff to offer evidence to demonstrate that defendants’ reason is pretextual.

Plaintiff offers four pieces of evidence to show pretext: (1) Smith’s statement at discharge urging resignation; (2) plaintiff’s dismissal without cause or warning and replacement by a younger worker; (3) denial of a Personnel Board hearing; and (4) defendants’ discharge of another employee in the protected age group. Plaintiff’s Memo. Urging Denial at 15; Holly Dep. at 273, 290, 292.

The first piece of evidence has no weight for the same reasons articulated above concerning plaintiff’s Rehabilitation Act claim. See supra at 16-17. Replacement by a younger worker also does not permit an inference of discrimination; that evidence is merely repetition of the prima facie case. See La Montagne, at 1413. Plaintiff’s reassertion that he was fired without cause is also redundant. Id. at 1414. Finally, the fact that plaintiff was not warned of his looming termination also does not demonstrate pretext. Pierce v. New Process Co., 580 F.Supp. 1543, 1545 (W.D.Pa.1984).

This leaves points three and four— the fact that plaintiff was given no hearing, and defendants’ treatment of a City purchasing agent, Hal Leiman. Defendants’ treatment of Mr. Leiman is not relevant. Apparently, Mr. Leiman was fired, at the approximate age of 65. Plaintiff has attached some interoffice memoranda in which Mr. Leiman accuses the City of firing him because of his age, and the City responds with criticism of Mr. Leiman’s work performance. On their face, the memoranda do not indicate discrimination toward Mr. Leiman, and we are left with merely the fact that another employee in the protected age group was fired. This fact hardly meets the requirements for statistical evidence of discriminatory intent. See Parker, 741 F.2d at 980. Absent evidence of discrimination against other employees (rather than blanket assertions), the fact that another employee “received adverse treatment from [the employer] at the same period has little relevance under the facts sub judice.” Erwin v. Bank of Mississippi, 512 F.Supp. 545, 554 (N.D. Miss.1981).

Finally, plaintiff claims that Smith’s refusal to give him a hearing somehow proves a discriminatory intent in plaintiff’s discharge. Under § 7.105(b) of the City Code, the Personnel Board reviews terminations upon appeal by the employee. If the Board finds that the termination was due to “political religious or racial prejudice,” it can overturn Smith’s decision; otherwise, its “recommendations shall be advisory only, and the action taken by the city manager [Smith] shall be final and conclusive.” According to plaintiff’s theory, Smith’s statements either discouraging or refusing a hearing were made in an effort to keep the Board from reversing his decision. Plaintiff states that Smith attempted to keep him from the Board “when the personnel board would have the final say on race and age and [Smith] said that he had the final say and it was not true.” Holly Dep. at 294.

However, Smith’s quoted statement is true; as City Manager he did have the “final say.” Contrary to plaintiff’s belief, the Board did not have the authority to reverse decisions based upon age, but only those based upon political and religious beliefs or race. If Smith had harbored discriminatory intent based upon age, he had no motivation to prevent plaintiff from access to the Board, aside perhaps from possible embarrassment from Board recommendations. This possibility is outweighed by the fact that plaintiff could have appealed directly to the Board at any time, and Smith knew that plaintiff could so appeal. While a request to Smith and Mayor Rybicki could put the City on notice for due process purposes, see supra at 7, in terms of evidence of discriminatory intent, Smith’s statement to plaintiff that appeal would be useless, and the Mayor’s refusal to become involved do not demonstrate pretext.

Ultimately, in an ADEA case, the plaintiff bears the burden of proving discrimination because of age. United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983); Burdine, 450 U.S. at 252, 101 S.Ct. at 1093; Hugh, 718 F.2d at 242, 243. Plaintiff has admitted that he had no reason to believe that age motivated the defendants up until the moment of his discharge. Holly Dep. at 290 (“Up to the date of my termination, I did not think age had anything to do with it at that point”). Basically, plaintiff claims age discrimination based upon a process of elimination: plaintiff believes that he was performing adequately, so his discharge must have been based upon a different factor; he has chosen to believe that age was that factor. Such conjecture will not survive a summary judgment motion, absent concrete evidence to rebut defendants’ legitimate reason for discharge. See Locke v. Commercial Union Insurance Co., 676 F.2d 205, 206 (6th Cir.1982); Simmons v. McGuffey Nursing Home, Inc., 619 F.2d 369, 371 (5th Cir.1980). Every piece of evidence plaintiff has produced tends to prove race discrimination. Because plaintiff has not presented evidence from which a trier of fact could reasonably infer that age was a determining factor in defendants’ employment decision, summary judgment is granted for the defendants as to plaintiff’s age discrimination claim.

CONCLUSION

For the reasons discussed above, summary judgment for defendants is granted as to plaintiff’s due process liberty interest claim, Rehabilitation Act claim and ADEA claim. Summary judgment is denied as to plaintiff’s due process property interest claim. To summarize, this leaves plaintiff’s claims based upon race discrimination and his due process property interest to be tried. Plaintiff has until March 1, 1985, to amend his complaint to add a defamation claim if he so desires. Defendants are given until March 20, 1985, to answer or otherwise plead to plaintiff’s claim, if added. A status hearing is set for March 26, 1985, at 9:30 a.m.

      . While the accusation made in the response seems mild, we note that aside from his jobs in the area of data processing, plaintiff is also and was known by defendants to be an ordained minister. Thus, attacks however mild upon his moral integrity could have an impact upon his employment as a minister.

      . In a memorandum of law, plaintiff states that the comments of which he complains in Count II would constitute libel per se under Illinois law and "[i]f plaintiffs claim is found not to rise to the level of a constitutional tort then the court should exercise its discretion by trying plaintiffs claim under its pendant [sic] claim jurisdiction.” Plaintiffs Memo. Urging Denial at 10. If plaintiff is indicating that he wishes to add a libel or slander count to his complaint, he must follow Fed.R.Civ.P. 15 and seek leave to amend his complaint accordingly. However, we note at this point that if plaintiff grounds his state law defamation claim on the same comments upon which his liberty interest claim was based, the comments are probably privileged under state law. See Thomas v. Petrulis, 125 App.3d 415, 80 Ill.Dec. 713, 465 N.E.2d 1059 (2d Dist.1984).

      . McDonnell was a racial discrimination claim brought under Title VII of the Civil Rights Act of 1964. However, its test is uniformly applied to age discrimination cases as well. See La Montagne v. American Convenience Products, 750 F.2d 1405, 1409 n. 1 (7th Cir. Dec. 27, 1984), slip op. at 5 n. 1.

      . We find this situation somewhat perplexing. The court in La Montagne states that a plaintiff can demonstrate pretext “by showing that the employer's proffered explanation is unworthy of credence,” yet the court also states that proof of capable performance does not demonstrate that the employer’s explanation of lack of deficient performance is pretextual. See La Montagne, at 1409, 1414. Aside from direct evidence of discrimination, we do not see how else an employee can prove that his employer's defense of deficient performance is "unworthy of credence;” yet, courts repeatedly state that the McDonnell test was designed to prevent a plaintiff from having to produce direct evidence. See La Montagne, at 1409.
      But the court in La Montagne is not alone in ruling that an employee cannot rely on his protestations of capable performance to defeat a motion for summary judgment. Courts have repeatedly rejected a discrimination claim when the employee’s proof is based upon a process of elimination, that is, the argument that plaintiff must have been fired because of age, because he was performing capably, and no other reason was given for discharge. Locke v. Commercial Union Insurance Co., 676 F.2d 205, 206 (6th Cir.1980); Simmons v. McGuffey Nursing Home, 619 F.2d 369, 371 (5th Cir.1980); Bobbitt v. PBA, Inc., 31 F.E.P. Cases 366 (D.C.Minn.1983); Oritz v. Ciba-Geigy Corp., 87 F.R.D. 723 (N.D.Ill.1980) Title VIII).
      The burden of proof rests upon the plaintiff at all times to prove discrimination because of age. Burdine, 450 U.S. at 252, 101 S.Ct. 1093. Therefore, somewhere in his case, the plaintiff must offer some proof of motive and intent to discriminate because of age. See Kephart, 630 F.2d at 1218. We believe that when courts state that reptition of evidence of capable performance cannot prove pretext, they are indicating that such evidence does not meet plaintiff s burden as to the ultimate issue, discrimination.
      "Pretext” for the purposes of the McDonnell test is not the equivalent of false. See Golomb, 688 F.2d at 550. While falsity may prove a pretext for something, "pretext” for McDonnell purposes means pretext of non-discrimination. See id. ("pretext” means that age was a motivating factor in the employee’s discharge). While evidence of capable performance may prove that the employer's proffered reason is false, it does not directly follow that the employer is attempting to cover up discrimination. He may be covering up something else — e.g., nepotism or a simple ill will. By ruling that evidence of capable performance does not prove pretext in ADEA claims, we believe that courts are indicating that such evidence is insufficient to prove pretext of age discrimination.

      Thus, the plaintiff in an ADEA claim must produce some evidence, such as employer statements, statistics or a pattern and practice of discrimination in order to survive a summary judgment motion. To the extent that this situation contradicts courts’ comments to the effect that the McDonnell test demands no evidence other than that necessary to make out the three-step test, we believe that rulings subsequent to adoption of the McDonnell test in ADEA claims indicate that such evidence is now necessary. Once the employer has offered an explanation of the prima facie showing of discrimination, the employee must offer additional evidence— either direct or circumstantial — which tends to show the particular kind of discriminatory nature alleged.


author: LEIGHTON, District Judge.

text:
    David BARANSKI, et al., Plaintiffs, v. Robert B. SERHANT, et al., Defendants.
    No. 82 C 6611.
    United States District Court, N.D. Illinois, E.D.
    Feb. 8, 1985.

      See also, D.C., 602 F.Supp. 33.
    George B. Collins, Collins & Uscian, Dennis P. Kyros, Chicago, 111., for defendant Nicholas Kyros.
    William J. Harte, William T. Rodeghier, Chicago, 111., for defendant Del Monico.
    Glynna Freeman, Jerrold E. Salzman, Daniel A. Clune, Freeman, Freeman & Salzman, P.C., Chicago, 111., for defendant Chicago Mercantile Exchange.
    Robert A. Vanasco, Siegel, Denberg, Vanasco, Shukovsky, Moses & Schoenstadt, Chicago, 111., for defendant Estate of Nash.
    Janet Reed, Mayer, Brown & Platt, Chicago, 111., for defendants Berwyn National Bank, Mr. Charles F. Krcilek and Mr. John T. Hartley.
    Joseph E. Coughlin, Lord, Bissel & Brook, Chicago, III, for defendant LaGrotteria.
    Robert L. Byman, Jenner & Block, Chicago, 111., for defendant Saul Stone.
    Philip M. Bloom, Bloom & Eilen, Chicago, 111., for defendant Sinclair Global.
    Robert J. Yollen, William D. Kelly, Schwartz & Freeman, Chicago, 111., for defendant Ness.
    Edward J. Burke, C. Philip Curley, Burke & Smith, Steven B. Diamond, Margaret M. Fahrenbach, Beeler, Schad & Diamond, Karla Wright, Ron A. Cohen, Cohen & Lau, Donald C. Shine, Chicago, 111., for class plaintiff.
    Robert B. Serhant, Chicago, 111., for defendant.
    Mary Anne Spellman Gerstner, William T. Dwyer, Jr., Burke, Griffin, Chomicz & Wienke, P.C., Chicago, 111., for defendant Schaumburg Bank.

      William M. Phelan, Bernard F. Doyle, Phelan & Doyle, Ltd., Chicago, 111., for defendant Donald Judy.
    Lawrence H. Eiger, Much, Shelist, Freed, Ament & Eiger, Chicago, 111., for plaintiff Baranski.
    Robert Hahn, Katten, Muchin, Zavis Pearl & Galler, Chicago, 111., for defendant Schiller.
    James W. Hathaway, James W. Hathaway & Associates, Chicago, 111., for defendant Anthony Vaccariello.
    Paul J. Sussman, Sussman & Samson, Chicago, 111., for plaintiff Bosco.
    Leroy G. Inskeep, Rudnick & Wolfe, Chicago, 111., trustee for Financial Partners, Inc.
   Memorandum

LEIGHTON, District Judge.

This cause is before the court on the motion of defendant, First Bank of Schaumburg (“First Bank”), pursuant to Fed.R.Civ.P. 12(b)(6), to strike and dismiss plaintiffs’ third amended complaint. That complaint purports to hold First Bank liable as either a co-conspirator or as an aider and abettor in an alleged overall scheme and conspiracy of Robert Serhant and other defendants to defraud plaintiffs. Liability is premised on the fact that First Bank allegedly acted in concert with Serhant, a bank director, and Ward Weaver, President of First Bank, at the time of the scheme, when they allegedly induced certain plaintiffs to invest in Financial Partners by promising to loan them money from First Bank for the express purpose of investing in that venture.

It is true that a person or entity may be secondarily liable under federal securities laws as an aider and abettor, a conspirator, or a substantial participant in fraud perpetrated by others. Lanza v. Drexel & Co., 479 F.2d 1277 (2d Cir.1973). However, certain minimum allegations must be made in order to sustain these claims, even under the liberal pleading requirements of the federal rules. First Bank contends that these minimum standards are not met in this case.

According to defendant, the complaint fails to state a claim against it as a co-conspirator because no liability can be imputed to it for the alleged misconduct of its president. While Weaver, as President of First Bank, made and approved loans to plaintiffs, the making of such loans by First Bank was not an unlawful act. Indeed, making loans is the ordinary business of a bank. The unlawful acts complained of here came as a result of Weaver’s individual conduct, i.e., his alleged involvement with Serhant, and their alleged inducement of certain individuals to invest the proceeds of First Bank’s loans with Financial Partners. A review of plaintiffs’ complaint reveals no connection between Financial Partners and First Bank which would substantiate plaintiffs’ claim that Weaver and/or Serhant were acting on behalf of First Bank while perpetrating the alleged fraud. The court therefore concludes that plaintiffs’ co-conspiracy theory is plainly insufficient to furnish a basis of liability on the part of First Bank.

Additionally, First Bank challenges the sufficiency of the aiding and abetting claim. The parties agree that, in order to state a claim for such liability under federal securities law and the common, law, the complaint must allege the existence of an independent fraudulent conduct, knowledge of the fraudulent conduct, intent to further that fraud (scienter), and the giving of substantial assistance to the primary wrongdoer. Brick v. Dominion Mortgage & Realty Trust, 442 F.Supp. 283, 307 (W.D.N.Y.1977). The court finds that the complaint is defective in that it fails to allege scienter and substantial assistance in the fraud, essential elements of the claim. Furthermore, plaintiffs have not alleged that defendant knew or should have known of the fraud. What is alleged is that First Bank knew or should have known of the material facts showing existence of the scheme. Such an allegation will not suffice to hold a defendant under an aiding and abetting theory. Stern v. American Bankshares Corporation, 429 F.Supp. 818, 826 (E.D.Wis.1977).

The court therefore concludes that plaintiffs’ allegations are insufficient to hold First Bank liable for the actions of its president in approving loans which were then invested by plaintiffs in an allegedly fraudulent scheme. This result comports with relevant law, and with common sense. Any other standard would open banks to wholesale liability for ill-advised investments of its customers. Accordingly, the motion of defendant to strike and dismiss plaintiffs’ third amended complaint is granted.

So ordered.


author: HAROLD H. GREENE, District Judge.

text:
    The WASHINGTON POST COMPANY, Plaintiff, v. U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant.
    Civ. A. No. 80-1681.
    United States District Court, District of Columbia.
    Feb. 8, 1985.
    Boisfeuillet Jones, Jr., Carol D. Melamed, Janet D. Milne, Washington, D.C., for plaintiff.
    Mitchell R. Berger, Asst. U.S. Atty., Washington, D.C., for defendant.
   MEMORANDUM

HAROLD H. GREENE, District Judge.

The Washington Post Company brought this action under the Freedom of Information Act, 5 U.S.C. § 552, seeking an order compelling defendants to produce for inspection and copying “Confidential Statement of Employment and Financial Interest” (HEW Form 474) filed by members of the advisory boards and committees of the National Cancer Institute, a division of the National Institute of Health. Each consultant who applies for a special government position, such as the peer review system at NCI, and who is not required to file public financial disclosure reports under the Ethics in Government Act, must complete a Form 474. Part I of this form requires each consultant to disclose all other federal and non-federal employment and to list “all organizations in which you, your spouse, minor child, partner, or an organization with which you are connected have financial interests which relate directly or indirectly to your consultancy duties.” The agency then reviews these statements to determine whether a conflict of interest exists.

Consultants who complete a Form 474 are given a limited pledge of confidentiality as follows:

Information to Appointee: Completion of this form is required for all experts and consultants and for other persons who work 130 days or less a year identified by the head of the principal operating component. The information to be furnished on this form is required by Executive Order 11222 and the regulations issued thereunder. The information you disclose will be used to determine whether a conflict exists between your employment and financial interests and the performance of your services for the Government. The information will be held in confidence and will not be disclosed except as the Chairman of the Civil Service Commission or the head of the principal operating component or designee may determine for good cause ... Unless you provide the information requested on this form, the organization will not be able to utilize your services.

After this FOIA action was filed, the government agreed to release to the Washington Post the names of NCI. consultants, their other federal employment, the results of HHS’s review of the Forms (i.e., whether HHS found a conflict of interest in an individual case), and the name of the reviewing official. HHS refused, however, to disclose the consultants’ non-federal employment and the lists of their financial interests relating to their consulting duties. On December 4, 1980, this Court granted the government’s motion for summary judgment, holding that the disclosure of the remaining information would constitute a clearly unwarranted invasion of personal privacy and was therefore protected from disclosure under Exemption 6, 5 U.S.C. § 552(b)(6). In reaching that decision, the Court relied on Association for Women in Science v. Califano, 566 F.2d 339 (D.C.Cir. 1977), in which the Court of Appeals held the same Forms 474 to be privileged from discovery under Rule 26(b)(1) of the Federal Rules of Civil Procedure.

The Washington Post appealed and the Court of Appeals reversed, stating that discovery of information under the Federal Rules and disclosure under Exemption 6 of the FOIA involve different issues, and that, although the conflict of interest information was not discoverable under the Federal Rules, it was not exempt from disclosure under Exemption 6. Washington Post Co. v. United States Department of Health & Human Services, 690 F.2d 252, 255 (D.C. Cir.1982). The court went on to hold, however, that the list of consultants’ financial interests is “financial” information within the meaning of Exemption 4, and on that basis it remanded the case to this Court for a determination whether disclosure of this information was likely to impair the government’s ability to obtain similar information in the future.

After the instant case was remanded, the Supreme Court issued its decision in United States v. Weber Aircraft Corp., — U.S. —, 104 S.Ct. 1488, 79 L.Ed.2d 814 (1984). In that case, the Supreme Court decided that confidential witness statements made to air crash safety investigators — which the Court of Appeals for this Circuit had previously held were privileged with respect to pretrial discovery in Machin v. Zuckert, 316 F.2d 336 (D.C.Cir. 1963) — are also protected from disclosure under Exemption 5 of the FOIA. The Court reasoned that if litigants could obtain through the FOIA material that is normally privileged, it would produce the anomalous result that the FOIA could be used to supplement civil discovery — a construction of the FOIA which, it stated, it had previously rejected. 104 S.Ct. at 1494.

The government now argues on the basis of Weber, that the confidential report privilege which protects Forms 474 from discovery also protects them from disclosure under the FOIA. This Court agrees.

Exemption 4 of the FOIA protects from disclosure financial information which is “privileged or confidential.” The Court of Appeals indicated in this case that, in light of the legislative history’s explicit reference to particular privileges, the two words should not be treated as synonymous. Washington Post Co., supra, 690 F.2d at 267 n. 50. Thus, information which is not confidential under the test in National Parks & Conservation Association v. Morton, 498 F.2d 765, 770 (D.C.Cir.1974), may nevertheless be privileged and exempt from disclosure under the FOIA. However, the Court of Appeals went on to warn that not every privilege recognized in civil discovery is necessarily to be applied as an absolute under FOIA, but the discovery rules should be applied only “by way of rough analogies.” EPA v. Mink, 410 U.S. 73, 86, 93 S.Ct. 827, 835, 35 L.Ed.2d 119 (1976). That reasoning seems to have been rejected in Weber, and this Court, of course, is obliged to follow the later Weber decision.

In Association for Women in Science v. Califano, supra, the court held that the “confidential report privilege” protects from discovery the same information that the Washington Post seeks in this FOIA action — information concerning potential conflicts of interests provided by government consultants on Forms 474. The confidential report privilege, which has also been referred to as the required reports privilege and the official information privilege, may be claimed only by the government and is based on the governmental interest in protecting the flow of information concerning the subject of the report in question. 566 F.2d at 343. This executive privilege, like the one at issue in Weber, is not novel nor has it ever been seriously challenged.

To be sure, the confidential report privilege is not specifically mentioned in the legislative history of the FOIA. However, it is clear, in light of Weber, that a FOIA exemption can incorporate other specific discovery privileges even though they are not explicitly identified by the Congress. Weber, supra, 104 S.Ct. at 1493-94. In fact, the legislative history of the FOIA indicates that Congress intended to incorporate governmental privileges where, as here, “confidentiality is necessary to ensure frank and open discussion and hence efficient governmental operations.” Id. at 1495. The Women in Science court found that the disclosure of the Forms 474 very likely would impair the government’s ability to acquire this information in the future. 566 F.2d at 346. For the reasons stated in Weber, the policies underlying this discovery privilege would be thwarted if a party could obtain through the FOIA information not discoverable under the Federal Rules.

This conclusion is bolstered by the Ethics in Government Act, 5 U.S.C.App. §§ 201 et seq., which specifically exempts from its financial disclosure requirements, any part-time “special” government employee who is “not reasonably expected to perform the duties of his office or position for more than sixty days in a calendar year.” 5 U.S.C.App. I § 201(h). The House Judiciary Committee explained the reason for this exclusion as follows:

The committee has been advised that this amendment has direct relevance to the operations of the Government. Several candidates for nomination to important Governmental advisory boards, who serve purely in a part-time capacity, requested that their nominations be withdrawn because of the public disclosure provisions. It was intended that no public disclosure be required in the case of these short term employees, and this amendment assures that this intent is implemented.

H.R.Rep. No. 96-114(II), 96th Cong. 1st Sess. 10 (1979), reprinted in 1 U.S.Code Cong. & Ad.News 1979, p. 144, at 160. Disclosure of the financial affairs of these short-term advisory committees would contravene the intent of Congress to shield this information from public dissemination.

For the reasons stated, it is the Court’s conclusion that, in view of Weber Aircraft, Women in Science, and the Ethics in Government Act, the documents at issue are privileged and exempt from disclosure under Exemption 4. Summary Judgment will therefore be granted to the government.

      . Form 474 requests the following financial information: the name of the organization, the kind of organization, the nature of the interest, and the name of the individual in whose name the investment is held. Consultants are not required to state the precise amount or monetary value of their interest.

      . Exemption 6 protects from disclosure "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6).

      . The court further found that the consultants’ non-federal employment was not “commercial or financial” information within the meaning of Exemption 4 and therefore not protected from disclosure. On March 9, 1983, the government provided the Washington Post with copies of all Forms 474 for NCI advisory committee consultants omitting only the list of financial interests.

      . Exemption 5 applies to documents that are "inter-agency or intra-agency memorand[a] or letters which would not be available by law to a party other than an agency in litigation with the agency.”

      . Indeed, the Court expressed its disbelief that "Congress could have intended that the weighty policies underlying discovery privileges could be so easily circumvented.” 104 S.Ct. at 1494.

      . Plaintiffs contend that the government has waived the issue of privilege under Exemption 4 because it failed to raise it initially. Ryan v. Department of Justice, 617 F.2d 781, 792 (D.C. Cir.1980). However, it appears that the Court of Appeals remanded this case for consideration of this theory of nondisclosure if the defendants raised the issue, which they did. See 690 F.2d at 267-68.
      In any event, an agency may properly invoke an exemption for the first time on appeal or on remand because of a substantial change in the factual context of the case or because of an interim development in applicable legal doctrine. Jordan v. United States Department of Justice, 591 F.2d 753, 780 (D.C.Cir.1978); see also British Airports Authority v. United States Department of Justice, 530 F.Supp. 46, 49-50 (D.D.C.1981). In light of the Supreme Court’s decision in Weber Aircraft, the interests of justice are best served if the government is allowed to argue pn remand that the information is exempt from disclosure under Exemption 4 of the FOIA because it is "privileged”.

      . The Senate Report accompanying Exemption 4 states that
      [Exemption 4] is necessary to protect the confidentiality of information which is obtained by the Government through questionnaires or other inquiries, but which would customarily not be released to the public by the person from whom it was obtained.
      S.Rep. No. 813, 89th Cong., 1st Sess. 9 (1965). Similarly, the House Report observes that the exemption
      would assure the confidentiality of information obtained by the Government through questionnaires or through material submitted and disclosures made in procedures such as the mediation of labor-management controversies. It exempts such material if it would not customarily be made public by the person from whom it was obtained by the Government ... It would include information customarily subject to the doctor-patient, lawyer-client, or lender-borrower privileges such as technical or financial data submitted by an applicant to a Government lending or loan guarantee agency. It would also include information which is given to an agency in confidence, since a citizen must be able to confide in his Government. Moreover, where the Government has obligated itself in good faith not to disclose documents or information which it receives, it should be able to honor such obligations.
      H.R.Rep. No. 1497, 89th Cong., 2d Sess. 10, U.S.Code Cong. & Ad.News 2418, at 2427 (1966).
      These portions of the legislative history discussing privileges, however, relate to an early version of Exemption 4 which applied to "other information", rather than "commercial and financial” information only. Therefore, the citations to medical privileges and the attorney-client privilege, which are obviously not limited to commercial or financial information, more properly refer to factors that should be considered under other exemptions of the FOIA, e.g., Exemption 6. See Board of Trade of the City of Chicago v. Commodity Futures Trading Commission, 627 F.2d 392 (D.C.Cir.1980); Brockway v. Department of Air Force, 518 F.2d 1184 (8th Cir.1975).

      . Most Exemption 4 litigation has focused on the meaning of the word “confidential,” and the word "privilege” has not generally been read to add much to the scope of Exemption 4. See Freedom of Information Case List (September 1984 Edition) at 266, J. O’Reilly, Federal Information Disclosure § 14.09. This Court has been unable to find any cases where documents which were held to be privileged, but not confidential, were exempted from disclosure under Exemption 4. However, at least two District Courts have made alternative holdings that information which was confidential was also privileged under the attorney work-product doctrine and the attorney-client privilege and thus protected from disclosure under Exemption 4. Indian Law Resource Center v. Department of the Interior, 477 F.Supp. 144, 148-49 (D.D.C.1979), and Miller, Anderson, Nash, Yerke & Wiener v. United States Department of Energy, 499 F.Supp. 767, 771-72 (D.Or.1980), respectively.

      . Indeed, the Court of Appeals cautioned this Court that if the issue were raised on remand, it should not automatically assume that because Form 474 is privileged under Rule 26(b)(1), it is also privileged under Exemption 4. 690 F.2d at 267. The court relied upon two earlier Supreme Court cases — EPA v. Mink, 410 U.S. 73, 78, 93 S.Ct. 827, 831, 35 L.Ed.2d 119 (1976), and Federal Open Market Committee v. Merrill, 443 U.S. 340, 99 S.Ct. 2800, 61 L.Ed.2d 587 (1979). The Supreme Court’s more recent discussion of the relationship between the discovery rules and the FOIA exemptions in Weber has guided this Court’s analysis.

      . Congress expressly included evidentiary privileges in Exemption 4 as well as in Exemption 5. Washington Post Co., supra, 690 F.2d at 258. Although EPA v. Mink, supra, and Weber Aircraft, supra, are both Exemption 5 cases, plaintiff concedes that the Supreme Court’s analytical approach to the incorporation of discovery privileges into Exemption 5 applies equally in the Exemption 4 context. Plaintiffs Reply Brief at 6-8.

      . Association for Women in Science v. Califano, supra, 566 F.2d at 343. See also Note, The Required Reports Privilege, 56 Nw.L.Rev. 283 (1961), and Note, Discovery of Government Documents and The Official Information Privilege, 76 Columbia L.Rev. 142, 149-52 (1976).

      . The respondents in Weber relied upon dictum in an earlier Supreme Court case, Federal

        Open Market Committee v. Merrill, 443 U.S. 340, 99 S.Ct. 2800, 61 L.Ed.2d 587 (1979), in which the court stated "that it is not clear that Exemption 5 was intended to incorporate every privilege known to civil discovery.” The Court found that this statement provided little aid to respondents since it had concluded only that "a claim of privilege other than executive privilege or the attorney-client privilege is covered by Exemption 5 must be viewed with caution.” Weber, supra, 104 S.Ct. at 1494, quoting Merrill, supra, 443 U.S. at 355, 99 S.Ct. at 2809. Here, as in Weber, the claim of privilege has been denominated one of executive privilege.

      . The NCI Committee consultants who are required to fill out a Form 474 perform approximately nine days of paid service annually.