author: GETZENDANNER, District Judge:

text:
    E. Kingsley MULL, Plaintiff, v. ARCO DURETHENE PLASTICS, INC., Defendant.
    No. 80 C 3074.
    United States District Court, N.D. Illinois, E.D.
    Nov. 28, 1984.

      Roger L. Price, Philip C. Stahl, Michael A. Kahn, Reuben & Proctor, Chicago, 111., for plaintiff.
    Ronald Wilder, Marei Eistenstein, Patricia Dondanville, Schiff, Hardin & Waite, Chicago, 111., for defendant.
   MEMORANDUM OPINION AND ORDER

GETZENDANNER, District Judge:

On January 16, 1980, plaintiff E. Kingsley Mull instituted the present action under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 626, alleging that ARCO Polymers, defendant’s statutory predecessor, had demoted and forced him into early retirement on account of his age. As discovery progressed, ARCO learned that Mull had been involved in multi-million real estate ventures which had interfered with his performance while working for ARCO. Defendant also learned that Mull had carried on an extensive consulting business on the side with several of ARCO’s subcontractors from which he received over $300,000 in payments. ARCO’s discovery of these matters led not only to counterclaims against Mull and the subcontractors, but also to Mull’s filing for personal bankruptcy and a federal indictment to which Mull pled nolo contendere and accepted three years probation. The matter is now before the court on the motion of the defendant for summary judgment. For the reasons stated below, the motion is granted.

I

This summary judgment motion, consistent with the litigation that spawned it, has a protracted history. On July 7, 1981, ARCO filed a motion for partial summary judgment on the ground that plaintiffs claims relating to his demotion were time-barred for failure to file with the EEOC within 180 days of learning about his demotion. See 29 U.S.C. § 626(d). For discovery-related reasons, the motion did not become fully briefed until August 23, 1982, at which time ARCO filed for full summary judgment in light of new deposition testimony indicating that Mull knew of his impending termination more than 180 days before the date of his EEOC filing.

Because of the plaintiffs subsequent bankruptcy filing, a briefing schedule was not set on the motion until December, and the original briefing schedule went unobserved. On September 21, 1983, the trustee in bankruptcy informed the court of his intent to prosecute the case, and a new briefing schedule was established a short while thereafter. Again, however, plaintiff failed to adhere to the schedule, and the court on April 10, 1984 ordered the trustee ' to respond by June 11, 1984. The trustee filed his response on June 22, 1984, and the matter finally became fully briefed on July 20, 1984.

II

In contrast to the proceedings which it occasioned, the facts underlying ARCO’s summary judgment motion are relatively straightforward. On April 19, 1979, plaintiff was informed by Robert Kauffman, his supervisor, that he was to be removed from his position as Business Manager of ARCO’s Chicago Plant, effective May 14, 1979. Kauffman at that time presented Mull with two options: either accept a coordinator’s job in Philadelphia or take early retirement. On April 24, 1979, William K. Allshouse, Manager of Headquarters Employee Relations, sent plaintiff a letter enclosing retirement figures calculated on the basis of a June 1, 1979 retirement date.

On April 27, 1979, plaintiff wrote a memorandum to Kauffman requesting reconsideration of the latter’s decision. Kauffman never responded in writing. However, on May 2, Kauffman and Allshouse met with plaintiff. At this meeting, Mull explored with Kauffman and Allshouse the possibility of remaining in Chicago to perform the coordinator’s job. Kauffman, however, insisted that the job could only be done in Philadelphia. Mull agreed to review that Philadelphia decision as soon as his wife could make a trip to Philadelphia with him. In the meantime, Mull would be put on special assignment in Chicago after his removal from the business manager’s job.

At his first deposition, Mull denied any discussion as to how long this special assignment would continue (First Deposition at 84-85). At his second deposition, however, Mull admitted that the assignment was temporary — only to last to the end of the year or until such time as he accepted the Philadelphia offer — and that his only option for a permanent job with ARCO was to move to Philadelphia (Second Deposition at 1421, 1430, 1441).

On May 11, 1979, Kauffman circulated a memorandum announcing that, effective May 14, Mull would cease to be Business Manager and would be reporting to Kauffman on special assignment. The same memo announced that Mr. Carl Gomes was “temporarily” assigned to the position of Acting Business Manager. In his second deposition, plaintiff testified that he understood this memorandum to distinguish between the “temporary” assignment given Gomes and the “special” assignment which he had received, and that he assumed his new assignment to be, if not of indefinite duration, at least a stepping stone to a permanent job. Mull testified that he knew of several people who had gone on from special assignments to permanent jobs, but that he knew of no one who was retained on special assignment indefinitely (p. 1498). Mull admitted, however, that he never discussed the duration of the new assignment with either Kauffman or Allshouse (p. 1436, 1495-96), and that his current understanding of his prospects for continued employment was “optimistic” given what had had been told at the May 2 meeting (p. 1442).

In June 1979, plaintiff decided not to move to Philadelphia and informed Allshouse of this fact. Plaintiff received further special assignments from Kauffman, several of which involved long-range projects. Given the nature of his work, plaintiff continued to assume that he would remain with ARCO on a permanent basis, but did not discuss this fact with either Kauffman or Allshouse.

On November 28, 1979, plaintiff was called to Allshouse’s office to discuss his retirement sign-up. Plaintiff argued that he was not prepared to retire, and would have to review these things with his attorney. On December 6, 1979, the defendant sent plaintiff written notification that he would be terminated on December 31. Such written notice of discharge was standard company policy. Plaintiffs last day of work was December 31, 1979. On January 16, 1980, he filed both his EEOC charges and also a charge with the Attorney General of the State of Illinois.

Ill

An age discrimination suit may not be filed in district court unless the plaintiff has filed a charge with the EEOC within 180 days from the date the alleged discriminatory act occurred. 29 U.S.C. § 262(d)(1). In Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980), the Supreme Court held that the similar 180 day period under Title VII begins to run on the date the employer’s discriminatory decision is made and communicated to the plaintiff, not when the consequences of the decision become final. In Ricks, a college professor claimed he had been discriminatorily denied tenure. No EEOC complaint was filed, however, until after the professor’s one year “terminal” contract had run out, well over 180 days from the time his tenure was denied. The Court held that the complaint was time-barred, since the only discriminatory act alleged was the tenure decision: “[mjere continuity of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination.” Id. at 257, 101 S.Ct. at 504.

In Chardon v. Fernandez, 454 U.S. 6, 102. S.Ct. 28, 70 L.Ed.2d 6 (1982), the Court followed Ricks to hold that a § 1983 suit challenging politically motivated firings was time-barred for failure to file within the applicable limitations period of one year. Again, the Court measured the period from the time notice of termination was given, and not when employment had ceased. The Court noted that the plaintiffs had alleged no “illegal acts subsequent to the date on which the decisions to terminate were made,” thereby suggesting that plaintiffs could not circumvent the rule of Ricks simply by claiming that the termination itself was unlawful. Id. at 8, 102 S.Ct. at 29. As it had in Ricks, the Court stressed that the “proper focus is on the time of the discriminatory act, not the point at which the consequences of the act become painful.” Id. (emphasis in original). The Court also noted that the plaintiffs “were afforded reasonable notice” of their termination and therefore could not argue for an extension of the filing date. Id.

In the present case, plaintiff was notified of his demotion on April 19, 1979, and was unequivocally told on May 2, 1979 that he would be discharged as of the end of 1979 unless he chose to move to Philadelphia. Although plaintiff has • equivocated and contradicted himself at times as to whether the termination date was mentioned, the court finds no genuine issue of material fact as to what was actually said at the meeting. Under the Ricks decision, the 180 day period of § 626(d)(1) would therefore begin to run on April 18 for the demotion claims and no later than May 2, the date on which Mull received notice of his impending termination, for the discharge-related claims. Since Mull did not file until January 1980, it follows that his claims are time-barred under a strict adherence to Ricks and Chardon.

The Ricks decision has been applied to ADEA cases, see, e.g., Price v. Litton Business Systems, Inc., 694 F.2d 963 (4th Cir.1983), and plaintiff does not argue otherwise. The plaintiff does argue, however, that the Ricks decision is inapplicable to the present case because the oral notice given Mull in the spring of 1979 was not in accordance with standard ARCO policy requiring written notice. Second, plaintiff contends that Ricks represents a new rule of law which should not be given retroactive effect. Finally, plaintiff argues that even if Ricks applies, he has made an adequate showing to justify equitable tolling of the limitations period. The court will address all three of these arguments.

Mull’s first argument — that the limitations period should run from the date of written rather than oral notice in this case — is without merit. Ricks requires only “reasonable” notice, not written notice. That ARCO generally utlizes written termination notices does not render the oral notice given Mull per se unreasonable nor does it somehow render that earlier notice equivocal. Mull’s filing, of course, would be timely if the November notice constituted a new act of discrimination sufficient to re-trigger the limitations period, but Mull does not press this point. Rather, Mull contends that the events from spring until December constitute an ongoing ADEA violation which culminated in his termination. It is settled law, however, that the continuing impact of a discriminatory decision cannot form the basis for starting the filing period anew unless the plaintiff alleges a “present violation” which would bring his claim within the limitations period. United Airlines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977); Tobin v. Trans Union Systems Corp., 488 F.Supp. 622, 629 (E.D.Pa.1980). Even resolving all disputed facts in Mull’s favor, the court can find no evidence to suggest that the December notice was anything other than a written formalization of decision reached back in May.

Mull’s second argument — that Ricks should be denied retroactive effect — is of more moment. In Elliott v. Group Medical and Surgical Service, 714 F.2d 556, 563 (5th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 2658, 81 L.Ed.2d 364 (1984), the Fifth Circuit cited Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971) as authority for the general proposition that “new judge-made rules on limitations” should not be applied retroactively, and declined to apply Ricks or Chardon to an action which was timely under that circuit’s previous interpretation of § 626. Plaintiff argues that Mull’s complaint would have been timely under the law of this circuit prior to Ricks, and that Elliott therefore compels denial of the defendant’s motion.

While the question plaintiff poses is not beyond debate, the court disagrees. Chevron ' nowhere states the proposition for which it is cited in Elliott, but instead sets forth three factors used to determine if retroactive application in a given case might be inappropriate:

First, the decision to be applied retroactively must establish a new principle of law either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed. Second, it has been stressed that “we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” Finally, we have weighed the inequity imposed by retroactive application, for “[w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our case for avoiding the ‘injustice or hardship’ by a holding of nonretroactivity.”

404 U.S. at 106-07, 92 S.Ct. at 355-56 (citations omitted).

With respect to the first factor, plaintiff has not made any showing that the court in Ricks or Chardon abruptly overruled clear past precedent or decided an issue whose resolution was not clearly foreshadowed. Prior to Ricks, the definition of when a discriminatory act occurred for limitations purposes was a subject of dispute. Compare Bonham v. Dresser Industries, Inc., 569 F.2d 187, 192 (3d Cir.1977), cert. denied, 439 U.S. 821, 99 S.Ct. 87, 58 L.Ed.2d 113 (1978) (unequivocal notice plus cessation of services) with Moses v. Falstaff Brewing Corp., 525 F.2d 92, 94 (8th Cir. 1975) (date of official termination). While the Court’s eventual resolution was at odds with what the majority of circuits had held, see Chardon, 454 U.S. at 10, 102 S.Ct. at 30 (Stevens, J., dissenting), prior precedent was not so “clear” that plaintiff can now claim to have justifiably relied on it. Ricks, after all, did not concern a new statute of limitations for ADEA claims; the Court merely resolved the time at which a discriminatory act occurs within the meaning of the Title VII filing requirements, and relied on past precedent — both its own and that of lower courts — in reaching its conclusion. See 449 U.S. at 258, 260, 101 S.Ct. at 505. The plaintiff’s claim that Ricks abruptly overturned prior law is overstated. Moreover, the present case reveals no reliance on prior case law which would justify solely prospective application of Ricks: Mull’s failure to file with the EEOC before January is traceable mostly to his not contacting a lawyer before November, and not to any reliance on prior case law.

The second Chevron factor is also not met, insofar as giving retroactive effect to the rule in Chardon and Ricks would clearly further its purpose. In Ricks, the Court noted that the limitations provisions of Title VII, “while guaranteeing the protection of the civil rights laws to those who promptly assert their rights, also protect employers from the burden of defending claims arising from employment decisions that are long past.” 449 U.S. at 256-57, 101 S.Ct. at 503-04. The court noted that limitations periods generally reflect a “value judgment” as to the point where the interests in prohibiting stale claims outweigh the interests in protecting valid ones. Id. at 260, 101 S.Ct. at 505 (quoting Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 463-64, 95 S.Ct. 1716, 1721-22, 44 L.Ed.2d 295 (1975)). To deny retroactive application of Ricks would upset this value judgment by requiring employer-defendants to litigate stale claims, and by allowing Title VII or ADEA plaintiffs who filed suit prior to December 1980 (the date of Ricks) to proceed despite having failed to assert their rights promptly.

Finally, the court finds no inequity which would justify denying retroactive application of the Ricks case to Mull. In both Ricks and Chardon the Supreme Court gave retroactive effect to its ruling by dismissing the complaints as time-barred. Most federal courts following Ricks have applied its holding to pre-1981 filings without discussion: see, e.g., Berry v. Board of Supervisors, 715 F.2d 971, 980 (5th Cir. 1983); Herman v. National Broadcasting Co., Inc., 569 F.Supp. 282, 285 n. 4 (N.D.Ill. 1983); Ka Nam Kuan v. City of Chicago, 563 F.Supp. 255, 256-57 (N.D.Ill.1983). The court fails to see why plaintiff should be treated otherwise. Moreover, because the filing requirements of the ADEA are not jurisdictional in nature and may be tolled for equitable reasons, Kephart v. Institute of Gas Technology, 581 F.2d 1287, 1289 (7th Cir.1978), any hardship resulting from retroactive application of Ricks-can best be dealt with on a case-by-case basis. Therefore, plaintiffs arguments against retroactive application must fail.

IV

Having decided that the plaintiffs EEOC filing was untimely, the court must now address whether any circumstances exist to justify tolling of the limitations period. In Vaught v. R.R. Donnelley & Sons, 745 F.2d 407 (7th Cir.1984), the Seventh Circuit noted that failure to file a timely charge will bar an ADEA action “unless the plaintiff satisfies the .court that the filing deadline was tolled on equitable grounds.” The court cited Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924, 931 (5th Cir. 1975), for the standard that the filing period may be tolled up to the time when “facts that would support a charge of discrimination ... were apparent or should have been apparent to a person with a reasonably prudent regard for his rights similarly situated to the plaintiff.” The court then held that an ADEA plaintiff between the ages of forty and seventy who knew that he was qualified to continue his job but was demoted, and whose employer sought somebody to replace him, had sufficient notice that his rights might have been violated to activate the filing period.

In the present case, Mull knew no later than May 2, 1979, that he was being demoted and urged to take early retirement, and that ARCO was seeking someone else to take over the business manager position. Under Vaught, these facts are sufficient to trigger the limitations period. Therefore, absent allegations that ARCO somehow induced Mull to sleep on his rights, say by intimidation or misrepresentation, no grounds for equitable tolling will lie. See Price v. Litton Business Systems, Inc., 694 F.2d 963, 965-66 (4th Cir.1982).

In Price, the Fourth Circuit upheld summary judgment for the defendant in an ADEA case under circumstances similar to those alleged by Mull. Price was employed as a branch manager. On February 5, 1980, he was informed that he would be removed from that position effective February 8, 1980. Price was retained in a sales position for the balance of February, and was then placed on a three-month personal leave of absence during which he performed no work for the company and received no compensation other than accrued benefits and back pay. During the interim period, Price was informed that Litton was making efforts to find him another opportunity within the company, but that in any event his leave of absence would end on May 30. 694 F.2d at 964-65.

Noting that Price alleged only his removal from the branch manager position as a discriminatory act, the court found the complaint time-barred under Ricks, using February 5 as the triggering date, and held that Litton could not be equitably estopped from raising the statute of limitations solely due to its efforts to ameliorate the harshness of Price’s termination. Id. at 965. See also Lawson v. Burlington Industries, Inc., 683 F.2d 862, 864 (4th Cir.), cert. denied, 459 U.S. 944, 103 S.Ct. 257, 74 L.Ed.2d 201 (1982) (same). The court stressed that Price had alleged no employer conduct likely to mislead him into sleeping on his rights, and that Litton could not be estopped on the basis of Price’s hopes and expectations for continued employment. 694 F.2d at 965-66.

Similarly, in Wagner v. Sperry Univac, 458 F.Supp. 505, 515-16 (E.D.Pa.1978), aff'd mem., 624 F.2d 1092 (3d Cir.1980), the court found that placement efforts to lessen the harshness of an employee’s termination would not suffice to toll the filing deadline of the ADEA absent “misrepresentations ... as to the likelihood of future re-employment” or other action likely to mislead an employee into delaying assertion of his rights. The court recognized that this resolution puts discharged employees in the difficult situation of having to jeopardize ongoing reinstatement discussions in order not to lose their ADEA rights, but reasoned that this objection could apply with equal force to almost any statute of limitations. Id. at 516. The court therefore held that the employee’s reasonable belief as to the uncertainty of his employment status and hope for reinstatement could not toll the filing period when the employer had not engaged in any deceitful or manipulative conduct.

The present case is in most respects indistinguishable from Price and Wagner. Mull was told as early as April 1979, that he was to lose the business manager job, and would have to move to Philadelphia to avoid early retirement. At the May 2 meeting, the early retirement date was postponed in order to give Mull more time to decide about accepting the Philadelphia job. Once Mull decided not to accept this job, there were no further discussions about permanent employment. Under these circumstances, the court finds even less justification for tolling than that existing in Price and Wagner, since there were no informal settlement discussions which Mull would jeopardize by an EEOC filing.

Plaintiff argues, based on Kephart v. Institute of Gas Technology, 581 F.2d 1287 (7th Cir.1978), that the Seventh Circuit, following a more liberal standard for tolling than that adopted in Price, will not begin to compute the filing period until the “employee either retains an attorney or acquires actual knowledge of his rights under the ADEA.” 581 F.2d at 1289. That language, however, addresses only the narrow situation where an employer has failed to post notices informing employees of their ADEA rights, as required under 29 U.S.C. § 627. As the recent case of Vaught demonstrates, the Seventh Circuit has not followed Kephart as a general proposition. This court must therefore determine whether Mull has presented any material facts which could justifiably estop ARCO from invoking the deadline.

Mull presents three arguments for tolling the filing deadline on equitable grounds: 1) that he reasonably relied on ARCO’s standard policy of issuing written termination notices in considering his oral notice less than final; 2) that he reasonably construed the May 11 memo’s distinction between the “temporary” assignment given Carl Gomes and the “special” assignment given him to mean that his own assignment was permanent; and 3) that ARCO induced him to believe these facts by not pressing him to take early retirement until after the 180 day period had run. None of these arguments is persuasive.

Regarding Mull’s first argument, the court does not see why a company’s failure to follow its standard procedures in discharging an employee should entitle that party to disregard an unequivocal notice of discharge and unilaterally assume that he will be reinstated. If anything, ARCO’s failure to issue a formal written notice should have alerted Mull to the possibility that he was being treated discriminatorily. Mull admitted being told on May 2, 1979 that his only prospect for a permanent job was to move to Philadelphia. When he chose not to exercise that option, he informed Allshouse of that fact and then assiduously avoided the subject with either Kauffman or anyone else above him. Under these circumstances, ARCO's failure to issue a formal notice , prior to December does not comprise employer conduct which would foreseeably lead Mull to delay his EEOC filing. not fairly be invoked to estop ARCO from asserting the untimely filing as a defense.

Mull’s final argument — that Kauffman induced him into thinking he had a permanent job — must also fail. Mull has testified that Kauffman never brought up the subject of early retirement and gave Mull assignments relating to long-term projects. Mull also testified, however, that he received no compensation review nor wage increase during that period. Kauffman’s conduct is more consistent with an effort to avoid humiliating Mull than it is with an effort to mislead him into expecting future employment. Such conduct falls far short of the affirmative misrepresentation most courts have required before they will toll the statute on equitable grounds.

Regarding Mull’s second argument, the court finds Mull’s overly optimistic construction of the May 11 memorandum insufficiently reasonable to justify tolling the filing deadline. See Naton v. Bank of California, 649 F.2d 691, 696 (9th Cir.1981) (finding of estoppel requires both “actual and reasonable reliance” on the employer’s conduct). Mull admitted that he knew of no one who had been retained on special assignment indefinitely, but nonetheless construed the term “special” assignment to imply a promise of permanence simply by contrast to the “temporary” assignment given Gomes. Mull also argued that he knew of many employees who had moved from special assignments to permanent positions so as to justify his construction. That Mull knew this latter fact, however, only confirms the point that “special” assignments were by their very nature temporary. Thus, while the upward mobility of most employees on special assignment lent a rational basis to Mull’s hope for permanent reinstatement, it does not justify interpreting the May 11 memorandum as foreseeably incorporating such a promise. Mull admittedly never discussed his expectation of a permanent job with his superiors. Any expectation of a permanent job based on the kíay 11 memo was therefore unilateral on his part, contradictory to what he had been told on May 2, and can-

In sum, then, Mull has shown no material facts, either in his affidavit or deposition testimony, which could support a finding that his January 1980 filing was timely. The defendant’s motion for summary judgment is therefore granted.

It is so ordered.

      . In "deferral" states which have agencies authorized to remedy age discrimination the 300-day filing period of § 626(d)(2) will often govern. Illinois was not a deferral state when the alleged discrimination in this case occurred. See Willis v. Berger Transfer & Storage, Inc., 529 F.Supp. 279, 281 (N.D.Ill.1981). The parties have briefed this motion on the assumption that the applicable time limit is 180 days.

      . The trustee has argued, in reliance on Mull’s First Deposition testimony, that there is a factual dispute as to whether Mull was told in May that his assignment would only be temporary. The court notes that a factual dispute cannot be created simply because the plaintiff contradicts himself. Even giving full credit to the plaintiff’s first deposition, however, Mull’s later deposition testimony as to what was said at the May meeting merely augments, without contradicting, his prior testimony in which he could not recall the substance of the meeting. Exactly what Mull understood his employment status to be is, of course, a separate matter from what was said to him.

      . The defendant has argued that, even if Mull’s termination claims were independent and therefore timely, summary judgment would still be proper, since plaintiff has failed to show that the defendant sought to replace him in the special assignment position by a member of a non-protected group. Replacement by a member outside the protected age group, however, is not an essential element of a prima facie case under the ADEA, so long as the plaintiff offers some evidence from which an intent to discriminate can be inferred. Defendant does not address whether the plaintiff has otherwise failed to establish a prima facie case, and this court will not decide the matter on its own initiative.

      . The court is confirmed in this conclusion by noting that the Seventh Circuit recently gave retroactive effect to the limitations period announced in DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). See Landahl v. PPG

        Industries, Inc., 746 F.2d 1312 (7th Cir.1984). In DelCostello, the Supreme Court held that the six-month statute of limitations prescribed in section 10(b) of the Labor Management Relations Act, 29 U.S.C. § 160(b), governed employment discharge cases alleging union breaches of the duty of fair representation and employer breaches of a collective bargaining agreement. As had the First, Third, Fourth, Fifth, Sixth, Eighth, and Eleventh Circuits before it, the Seventh Circuit in Landahl applied the Chevron factors to conclude that giving retroactive effect to the six-month limitations period would further its operation. At 1315. In light of this overwhelming case law, the court finds unpersuasive Elliott's statement that "As a general proposition, new judge-made rules on limitations are- not to be applied retroactively.” 714 F.2d 563.


source: Caselaw Access Project

author: MYRON H. THOMPSON, District Judge.

license: Public Domain

text:
    S. Thomas BURNETT, Petitioner, v. Thomas R. KINDT, Respondent.
    Civ. A. No. 84-T-1255-N.
    United States District Court, M.D. Alabama, N.D.
    Nov. 29, 1984.

      Penny Harrington, Nashville, Tenn., for petitioner.
    John Bell, U.S. Atty., and D. Broward Segrest, Asst. U.S. Atty., Montgomery, Ala., for respondent.
   ORDER

MYRON H. THOMPSON, District Judge.

This cause is before the court on the November 9, 1984, report and recommendation of the magistrate and the November 26, 1984, objections thereto, filed by the respondent, Thomas R. Kindt. For reasons that follow, the court is of the opinion that the objections are due to be overruled and the report and recommendation adopted.

I.

18 U.S.C.A. § 4161 provides in part that “[wjhen two or more consecutive sentences are to be served, the aggregate of the several sentences shall be the basis upon which the deduction [of good time] shall be computed.” This policy of aggregating consecutive sentences is equally applicable to the calculation of parole eligibility. See Young v. .U.S. Parole Commission, 682 F.2d 1105, 1111 (5th Cir.1982); Newcombe v. Carter, 291 F.2d 202, 202 (5th Cir.1961); Brown v. U.S., 256 F.2d 151, 152 (5th Cir.1958). Kindt does not dispute that this is the general policy, nor does he dispute that the petitioner, S. Thomas Burnett, is serving consecutive sentences. Thus, according to the general policy, Burnett’s sentences should be aggregated for purposes of calculating parole eligibility.

What Kindt objects to is the application of the general policy of aggregating consecutive sentences to Burnett’s so-called split sentence. Kindt relies on a Bureau of Prison rule that provides an exception against aggregating split sentences with any other sentences. All agree that Burnett’s sentence of five months and twenty-nine days imprisonment with execution of the remainder of one year suspended is a split sentence. It is also clearly permissible for such a split sentence to be imposed along with another sentence in a multicount conviction, U.S. v. Entrekin, 675 F.2d 759, 762 (5th Cir.1982), such as here where Burnett also received a sentence of one year imprisonment on the other count of his two-count conviction.

What is unclear is why there should be an exception from the general policy of aggregating consecutive sentences when a split sentence is concerned. Kindt has shown no rationale for such an exception, nor identified any statutory authority for making an exception. Indeed, it appears that the purported exception, on which Kindt relies, is not applied in every case, and on at least one occasion the government has “consolidated the detention part of both sentences, as a purported matter of grace to give him early parole.” U.S. v. Fortner, 549 F.Supp. 657, 660 (D.S.C.1982). On this basis, Burnett appears entitled to have his consecutive sentences aggregated for purposes of calculating his parole eligibility, according to the general policy.

II.

There is an additional ground for rejecting Kindt’s contention that Burnett’s sentences should not be aggregated. The consequence of this contention would be that Burnett must serve a total of seventeen months and twenty-nine days before becoming eligible for parole. This period exceeds what Burnett would have had to serve to be eligible for parole had he been given the maximum sentence available for his conviction.

Violation of 26 U.S.C.A. § 7203 carries a maximum term of imprisonment of one year. Convicted of two counts of such a violation, Burnett was liable for a maximum term of imprisonment of two years, that is one year on each count to be served consecutively. With such a two-year term, Burnett would have been eligible for parole after serving eight months in prison.

In fact, Burnett received a two-year sentence of exactly this kind; however, all but five months and twenty-nine days of one year was suspended. Kindt would now have it that this suspension of part of Burnett’s sentence increased the term he must serve. Such a consequence violates not only common sense but the apparent intent of the split-sentence option “to enable a judge to impose a short sentence, not exceeding six months, followed by probation----” U.S. v. Cohen, 617 F.2d 56, 59 (4th Cir.1980). Kindt would have it that the sentencing court imposed a sentence with parole eligibility in excess of that provided for the maximum available term. It is axiomatic that a court may not impose a sentence in excess of the statutory maximum.

Accordingly, it is ORDERED:

(1) That respondent Kindt’s November 26, 1984, objections, etc., be and they are hereby overruled;

(2) That the November 9, 1984, report and recommendation of the magistrate be and it is hereby adopted; and

(3) That the respondent Kindt and the United States Parole Commission: (a) afford the petitioner a parole hearing on November 30, 1984; (b) notify this court no later than December 5, 1984, whether they afforded the petitioner a parole hearing on November 30, 1984; and (c) immediately release the petitioner if they have not afforded him a parole hearing on November 30, 1984.

REPORT AND RECOMMENDATION OF THE MAGISTRATE

November 9, 1984

JOEL F. DUBINA, United States Magistrate.

Petitioner, a federal prison inmate, filed an application in this court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, claiming that he is being unlawfully restrained of his liberty by the United States Bureau of Prisons, and is now in custody of the respondent, Thomas R. Kindt, Superintendent of Maxwell Prison Camp in Montgomery, Alabama.

On November 2, 1984, the Magistrate ■conducted an evidentiary hearing in this cause. Petitioner appeared with retained counsel and the respondent was represented by counsel. Based upon the evidence presented at the evidentiary hearing, the Magistrate makes the following findings:

The facts in this case are basically not in dispute. Petitioner entered a plea of guilty to two counts of failure to file federal income tax returns for the years 1979 and 1980 (26 U.S.C. § 7203). The Judgment and Probation/Commitment Order from the United States District Court for the Middle District of Tennessee ordered petitioner committed to the custody of the Attorney General of the United States for imprisonment as follows:

(1) ONE YEAR on Count Two.
On Count Three, the defendant is hereby committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of ONE (1) YEAR. The execution of said term of imprisonment on Count Three is suspended except for FIVE (5) MONTHS and TWENTY-NINE (29) DAYS, which shall be served in a jail-type institution. Said term of imprisonment shall run consecutively with the term of imprisonment imposed on Count Two.
The defendant is . placed on supervised probation for a period of THREE (3) YEARS. Such period of probation is to commence upon the defendant’s release from prison by the United States Parole Commission.
It is further ORDERED that the defendant shall report to the United States Marshal, Nashville, Tennessee, or such other place as may be designated by the United States Marshal, on Monday, August 30, 1982, at 9:00 A.M., to begin service of his sentence.

Petitioner began serving his sentence on March 4, 1984. The Bureau of Prisons has taken the position, not just in the instant case but in all similar cases, that “split sentences” should not be aggregated with other sentences. Consequently, the Bureau of Prisons has refused to aggregate the split sentence imposed under 18 U.S.C. § 3651 on Count Three with the sentence imposed on Count Two. As a result of this refusal, petitioner claims that he is being denied the right to request a hearing before the United States Parole Commission which constitutes unlawful restraint.

The result of the Bureau of Prisons’ interpretation of 18 U.S.C. § 4205 and 18 U.S.C. § 3651 is that petitioner is now serving one year on Count Two of the Information. At the conclusion of that sentence, less good and honor time, petitioner will commence serving the five (5) months and twenty-nine (29) days incarceration imposed on Count Three. The consecutive sentences imposed on Counts Two and Three have not been aggregated by the Bureau of Prisons. Because the length of the first sentence is one year or less, petitioner is not eligible under 18 U.S.C. § 4205 for a parole hearing. Because the length of the second sentence is likewise less than one year, petitioner will subsequently again be denied the opportunity for a parole hearing. If the Bureau of Prisons were to aggregate the two sentences, seventeen (17) months and twenty-nine (29) days would be the basis for computation of the time required to be served prior to parole eligibility.

The instant petition for writ of habeas corpus is filed under 28 U.S.C. § 2241. Petitioner’s sole ground for relief is the refusal of the Bureau of Prisons to aggregate the consecutive sentences imposed by the sentencing court. The proper method of attacking execution of a sentence is by a writ of habeas corpus and not in a post-conviction proceeding for vacation of a sentence or judgment. Brown v. United States, 610 F.2d 672 (9th Cir.1980). Where a federal prisoner is attacking not the sentences imposed but rather the execution of that sentence by the Parole Commission’s interpretation of its guidelines, to that extent the complaint is cognizable only in a proceeding under § 2241 commenced in the district court having territorial jurisdiction over the petitioner’s custodian. Wright v. United States Board of Parole, 557 F.2d 74 (6th Cir.1977); Freeman v. United States, 254 F.2d 352 (D.C.Cir.1958); Cohen v. United States, 593 F.2d 766 (6th Cir. 1979).

The Bureau of Prisons is requiring the petitioner to serve all of the one-year sentence imposed on Count Two, less good and honor time. He will only then begin , to serve the five (5) months and twenty-nine (29)-day period of incarceration imposed for Count Three by the authority of 18 U.S.C. § 3651. Because petitioner is required to serve each sentence independently, his sentence will never be the year and a day required to be eligible for a hearing before the United States Parole Commission. The relevant statute, 18 U.S.C. § 4205(a) provides as follows:

Whenever confined and serving a definite term or terms of more than one year, a prisoner shall be eligible for release on parole after serving one-third of such term or terms or after serving 10 years of a life sentence or of a sentence over 30 years, except to the extent otherwise provided by law.

18 U.S.C. § 3651 does not discuss the question of aggregation of a sentence under that statute with a straight sentence. It appears to the Magistrate, however, that the petitioner in the instant case is serving definite terms of more than one year and should be eligible for release on parole after serving one-third of those terms. Therefore, the split sentencing statute itself does not bring petitioner’s sentence into the exception of subsection (a).

On September 12, 1984, petitioner's counsel received a letter from Clair A. Cripe, General Counsel, Bureau of Prisons, United States Department of Justice, Washington, D.C. In his letter, Mr. Cripe sets forth the Bureau of Prisons' construction of 18 U.S.C. § 3651. Mr. Cripe stated in pertinent part as follows:

Since you are aware of the facts in this case, we will not reiterate them here. We will, however, explain why we do not aggregate (combine) “split sentences” under 18 U.S.C. 3651 with other sen-, tences.
Public Law 85-741 (August 23, 1958), as codified in U.S.C. 3651, was enacted because a number of federal courts wanted the flexibility to impose confinement plus probation for a one-count indictment. In some cases, courts found that a short period of confinement followed by probation has a salutary effect upon an offender and is conducive to his rehabilitation. As a result, the Bureau of Prisons has always held the opinion that the initial confinement portion of a one-count “split sentence” is a separate and distinct entity for sentence computation purposes, since only a portion of the actual sentence imposed is being served, with the remainder being suspended pending the outcome of a period of probation. Because of this, we do not believe that “split sentences” should be aggregated with other sentences.

The Magistrate agrees with the general counsel’s characterization of a short period of confinement coupled with probation as salutary; however, the Magistrate finds a logical inconsistency in interpreting the purpose of the split sentencing law this way and in using that interpretation to greatly expand the time which a person sentenced under it must serve. In the instant case, requiring the petitioner to serve the entire seventeen (17) months and twenty-nine (29) days is inconsistent with the Bureau’s own interpretation of legislative intent in this case. The primary purpose of the split sentencing provision of 18 U.S.C. § 3651 is to enable the court to impose short sentences followed by probation. US. v. Cohen, 617 F.2d 56 (4th Cir.1980). There is no indication either in the statute, when construed by a plain meaning canon of construction, nor in reported cases, that the intent of Congress was to require that a split sentence be a “separate and distinct entity for sentence computation purposes.” Such an intent would be contrary to the basic purpose for the passage of the legislation in the first instance.

Able counsel for the petitioner and for the respondent informed the Magistrate in open court that there is no reported case on point with the issue presented in this case. The Magistrate has also made an independent search of the law in this area and is unable to find a reported case directly on point. Consequently, the instant case appears to be one of first impression.

Federal appellate courts have held that it is proper to aggregate consecutive sentences for the purpose of determining parole eligibility. In Brown v. United States, 256 F.2d 151 (5th Cir.1958), the question arose as to whether a six-month sentence for contempt should be aggregated with the terms the prisoner was already serving. The court held that the contempt sentence was to be aggregated with the other sentences in determining defendant’s eligibility for parole. Once again the court found the question of aggregation of consecutive sentences to be well-settled. Citing numerous cases, the court found that there was no reason for a different rule where one of the sentences was for contempt. The court held that the aggregation rule applies even where the sentences are imposed at different times and for different offenses.

In the instant case, the sentences were imposed for precisely the same offense at precisely the same time by the same sentencing judge. Arguably, one could apply the same logic as the court’s holding in Brown that there is no reason that the two sentences should not be aggregated for the purpose of determining parole eligibility.

In a later Fifth Circuit case, the court once again held that it is proper to aggregate consecutive sentences for the purpose of determining parole eligibility. See Young v. United. States Parole Commission, 682 F.2d 1105 (5th Cir.1982). These rulings are consistent with the underlying purpose that sentences should be aggregated in order to bring about greater uniformity in the time actually served by persons receiving similar sentences.

In Goode v. Markley, 603 F.2d 973 (D.C. Cir.1979), cert. denied 444 U.S. 1083, 62 L.Ed.2d 768, 100 S.Ct. 1039, the court held that it is well-settled that it is proper for the United States Parole Commission to aggregate consecutive sentences for the purpose of determining parole eligibility.

In McCray v. United States Board of Paroles, 542 F.2d 558 at 560, the court said “there is no authority for the proposition that consecutive sentences expire independently of one another. The argument that consecutive sentences have separate mandatory release dates and that as each sentence reaches that date the next sentence begins has been made before and summarily rejected.” Quoting Brown v. Kearney, 302 F.2d 22 (5th Cir.1962); United States ex rel. Klein v. Kenton, 327 F.2d 229 (2d Cir.1964); Briest v. United States Bureau of Prisons, 459 F.2d 284 (8th Cir.1972); and Grant v. Hunter, 166 F.2d 673 (10th Cir. 1948).

In his excellent briefs filed in this cause, petitioner anticipates a question which could arise in this case, that being, whether the fact that the offenses were misdemeanors has any effect upon the requirement of aggregation. For this proposition, petitioner cites Abrahams v. United States, 465 F.Supp. 610 (D.C.N.H.1979). Abrahams was also before the district court on a request for habeas corpus pursuant to 28 U.S.C. § 2241. In 1978, Abrahams was sentenced to serve thirty (30) months by a court of the Southern District of New York for a violation of probation. Later that year he was sentenced by a court of the Western District of Michigan to serve a six (6) month sentence consecutive to the sentence imposed by the New York court. In October of that year, he was sentenced by a court of the Western District of Texas to a forty (40) month sentence which was to run concurrently with his other federal sentences. In Abrahams the court held that it was proper that the six (6) month consecutive sentence be aggregated with the other sentences, citing the following cases: Brown v. U.S., supra; Newcombe v. Carter, 291 F.2d 202 (5th Cir.1961); United States v. Franklin, 313 F.Supp. 43 (S.D. Ind.1970).

Petitioner has been informed that he will be required to serve fourteen (14) months, including good and honor time on his sentence of seventeen (17) months and twenty-nine (29) days before he will be eligible for parole consideration. A person convicted of a felony and sentenced to three years would be eligible to appear before the Parole Commission two months prior to the time petitioner would be eligible for release with the deduction of his good and honor time.

This court has an obligation, in considering the issue presented in this case, to balance the rights of the petitioner, which might be prejudiced, and any foreseeable harm which might result to the respondent and/or Parole Commission. As the Magistrate understands the prayer for relief contained in the petition, petitioner is simply requesting an opportunity to be afforded a hearing before the Parole Commission. If petitioner is unsuccessful in the hearing on the merits, the application for parole is vitiated. Thus, the Magistrate fails to see where any harm could result to the respondent and/or Parole Commission by affording the petitioner a hearing on an application for parole. While the Parole Commission may be inconvenienced in having to process an additional application, that burden is greatly outweighed by the petitioner’s right to be afforded a parole hearing.

In conclusion, the Magistrate finds that the Bureau of Prisons’ policy of not aggregating “split sentences” under 18 U.S.C. § 3651 with other sentences to be an incorrect interpretation of the statute. Accordingly, it is the RECOMMENDATION of the Magistrate that the petition for writ of habeas corpus be conditionally GRANTED in the following respects:

1. That the Parole Commission afford the petitioner a parole hearing on November 30, 1984;

2. That the Parole Commission notify this court not later than December 5, 1984, whether or not the petitioner was afforded a parole hearing;

3. That in the event petitioner is afforded a parole hearing on November 30, 1984, the petition for writ of habeas corpus should then be DENIED and this cause DISMISSED.

4. That in the event petitioner is not afforded a parole hearing on November 30, 1984, the petition for writ of habeas corpus should then' be GRANTED unconditionally and the petitioner should be ordered released from custody.


author: VINING, District Judge.

text:
    Nancy P. COOPER, individually and as administratrix of the estate of Ronald W. Cooper, Plaintiff, v. FIRESTONE TIRE AND RUBBER COMPANY, et al., Defendants.
    Civ. A. No. CV282-19.
    United States District Court, S.D. Georgia, Brunswick Division.
    Nov. 29, 1984.

      Randall A. Jordan, Brunswick, Ga., Austin Catts, Atlanta, Ga., for plaintiff.
    Gary W. Hatch, Atlanta, Ga., for Firestone Tire and Rubber Co.
    Ron Reemsnyder, Atlanta, Ga., for The Coats Co.
    Wallace E. Harrell, Brunswick, Ga., for Volkswagen of America.
    Albert Fendig, Brunswick, Ga., for Champion Pneumatic Machinery Co.
    Joseph H. Ferrier, Brunswick, Ga., for John Huskey.
   ORDER

VINING, District Judge.

On March 19, 1983, The Coats Company moved to dismiss the plaintiff’s claims against it on the basis that agreements entered into between the plaintiff and certain other defendants constituted releases and that by entering into such releases, the plaintiff had also released Coats. Defendant John Huskey also joined in the motion. Over the next few days the court heard argument from counsel and in an oral statement indicated that it would grant the motion but would delay entering a written order until such time as counsel had been given an opportunity to further brief the issues involved. The court heard additional argument in Atlanta on April 20 with respect to the motion. Although the court had indicated that it was inclined to grant the motion, no final ruling or written order has been entered, and this order will constitute the court’s ruling with respect to Coats’ and Huskey’s motion to dismiss.

I. FACTUAL BACKGROUND

This is a wrongful death action brought by Nancy Cooper, the widow of Ronald Cooper, who was killed at the Federal Law Enforcement Training Center in Brunswick, Georgia, on June 9, 1981. The plaintiff alleges that John Huskey had mounted a Firestone tire on a Volkswagen rim through the use of a Coats 1010 Super Powerman tire mounting machine, which was fed by an Ingersoll-Rand air compressor. The tire later blew off the mounting machine, striking Mr. Cooper in the face and killing him.

Shortly before trial, the plaintiff settled her claims against Ingersoll-Rand pursuant to an agreement reached between her counsel and its counsel. The material terms of the agreement were that the plaintiff would execute a covenant not to sue in favor of Ingersoll-Rand, that she' would be free to continue to pursue her cause of action against the remaining defendants, that she would accept the sum of $15,000 in consideration of her execution of the covenant, that she would indemnify IngersollRand to the extent of the amount paid to her, and that she would discontinue her action against Ingersoll-Rand. The plaintiff’s counsel prepared a draft of the covenant not to sue and sent a copy to counsel for Ingersoll-Rand. The agreement was not immediately executed, since both parties agreed that the language needed to be refined.

On the Friday evening before trial was to begin the following Monday, the plaintiff reached similar agreements with Firestone and Volkswagen. The court was informed on Saturday of the settlements, and phone calls were made to the remaining defendants informing them that the plaintiff had settled her claims with Ingersoll-Rand, Volkswagen, and Firestone. On Monday morning the court met with counsel in chambers and discussed the settlements and how the case would proceed to trial. The court cautioned counsel to be sure that the documents drawn were covenants not to sue, not releases, so that the plaintiff would be able to proceed with her claim against the remaining alleged joint tortfeasors. The court directed counsel to produce the documents to counsel to Coats and Mr. Huskey later that day. After reviewing the documents, Coats moved to dismiss the plaintiffs’ claims against it on the ground that the documents were releases, not covenants, and that the dismissal with prejudice of the plaintiff’s claims against Ingersoll-Rand, Firestone, and Volkswagen operated as a bar to the plaintiff’s claims against Coats; counsel for Mr. Huskey joined in this motion. All of the documents are substantially the same, the only difference being that different monetary amounts are recited and, of course, different defendants are mentioned in each of the documents.

In stating that it was inclined to believe the documents as drawn were releases, not covenants not to sue, the court recognized that the documents were denominated as covenants not to sue and contained the language, “It is expressly agreed and understood by the parties hereto that this Agreement IS NOT A RELEASE, is not intended by them to be a RELEASE, and shall not operate to release any alleged tort feasor in this claim. This Agreement is to be construed under the Laws of Georgia and of the United States as they apply to covenants not to sue.” Nevertheless, the court was concerned with the language in the documents wherein the parties agree that in consideration of the payment of certain funds “to the claimant for the wrongful death, funeral expenses, burial expenses, and all other claims or expenses arising from, after, and prior to the death of Ronald W. Cooper,” the plaintiff did “covenant and agree that she will not individually or jointly institute any further proceedings of any kind against” the settling defendants; the documents further provided that the plaintiff “specifically covenants and agrees to voluntarily dismiss with prejudice her pending claim against” the settling defendants.

II. LEGAL ANALYSIS

It is basic to tort law that a plaintiff is entitled to only one satisfaction; consequently, if the plaintiff obtains a judgment against several tortfeasors, he may proceed to collect that judgment against one or all of the joint tortfeasors. However, if he chooses to obtain full satisfaction from one of the joint tortfeasors, he may not proceed to collect additional funds from the other joint tortfeasors. This principal and the rationale for it was set out in Donaldson v. Carmichael, 102 Ga. 40, 42, 29 S.E. 135 (1897):

The universal and cardinal principal is, that the person injured shall receive a compensation commensurate with his loss or injury, and no more____ The cause of action is the damage occasioned by the wrongful or negligent act of the defendant; if the act be done without damage, there is no injury to compensate; hence there can be no recovery. If there was damage by such act and the amount of such damage has been agreed on and paid, then it has been compensated. Although one be damaged by the joint act of two persons, there is but one injury; and if that is satisfied, the party injured is placed in as near as his normal condition as the law can place him. There can be no double recovery of the amount of damage which one has sustained. It would be as reasonable to ask to recover from one defendant twice the amount of the damage sustained, as it is to ask for each of two defendants payment of the full amount of such damage even when the cause of action is good against both. The plaintiff is entitled to only satisfaction; and if the manner of releasing one involves satisfaction in whole or in part of the claim, it will enure to the discharge, pro tanto, of all who are liable...; and if a party injured accepts satisfaction from one of several joint tort-feasors, that is a bar as to all.

This principle was strictly applied and was interpreted to mean that even though the plaintiff may not have received full compensation for his injury if he fully settled his claim against one joint tortfeasor, the claim was extinguished as to the other joint tortfeasor. Griffin Hoisery Mills v. United Hoisery Mills, 31 Ga.App. 450, 120 S.E. 789 (1923).

To relieve the harsh strictures of this principle, the courts began to give effect to covenants not to sue. The courts began to modify their strict application of the release principle and held that if a plaintiff sought to settle his claim against one joint tortfeasor by accepting less than full satisfaction for his injury, he could still proceed against the other joint tortfeasors by entering into a covenant not to sue the settling joint tortfeasor; by covenanting not to sue, the plaintiff did not actually release his claim against that joint tortfeasor, which release would have meant a release of the other joint tortfeasors.

The primary consideration in the construction of such instruments is whether they show an intention on the part of the injured party to acknowledge a full satisfaction of his damage and injury, and so to relinquish the cause of action and extinguish the liability of all the persons involved in causing the damage, or whether they show an intention only to accept a satisfaction of a part of the claim. And the intention of the parties, as shown by the instrument, will be given effect regardless of what the parties may call the instrument.
Harmon v. Givens, 88 Ga.App. 629, 634, 77 S.E.2d 223 (1953).

Although the Georgia courts routinely spoke about giving effect to “the intent of the parties,” it was not the subjective intent of the parties, but the objective intent as derived from the documents themselves, that the courts looked to. Consequently, even though a document may have been denominated a release, if it appeared from the language contained in the document that the parties intended it to be a covenant not to sue, discharging only one tortfeasor, the court would interpret the document as being a covenant not to sue instead of being a release. Smallwood v. Bickers, 139 Ga.App. 720, 229 S.E.2d 525 (1976). However, this court has found no case, wherein a document described by its terms to be a covenant not to sue was treated as a release. Weems v. Freeman, 234 Ga. 575, 216 S.E.2d 774 (1975) is not such a case since Weems involved a covenant not to enforce judgment, which is different from a covenant not to sue. In Weems the court simply held that a plaintiff could not enter into an oral agreement with some of the defendants during trial, which they termed a covenant not to sue, wherein the parties agreed that the suit would continue and that if a verdict were rendered against all defendants, the defendants who had not settled would be liable for only one-third of the damages. The court held that it was “a nonsequitur to claim that there is a covenant not to sue and yet at the same time continue the action against those who are parties to the agreement. This type settlement is in reality an agreement not to enforce the judgment against any defendant who is a party to the agreement.” 234 Ga. at 576-77, 216 S.E.2d 774. The court simply applied the long standing law: “Where there is a covenant not to sue, it is important that the parties to the covenant not be sued in fact or in fiction after the agreement has been executed. Otherwise, the substance of the agreement will be construed to be a release from judgment and will act to release all joint tortfeasors.” 234 Ga. at 577, 216 S.E.2d 774.

A review of the numerous cases wherein the courts are asked to decide whether a particular document is a release or a covenant, shows a clear propinsity on the part of the Georgia appellate courts to modify the harsh principle set forth in Powell v. Davis, 60 Ga. 70 (1878), and Donaldson v. Carmichael, 102 Ga. 40, 29 S.E. 135 (1897), and to treat a document as a covenant not to sue instead of a release whenever possible. Smallwood v. Bickers, 139 Ga.App. 720, 229 S.E.2d 525 (1976); Doster v. C.V. Nalley, Inc., 95 Ga.App. 862, 99 S.E.2d 432 (1957) (involving a “release” of future or contingent claims).

To permit a plaintiff to settle with one tortfeasor without extinguishing his claim against the other tortfeasors, the Georgia courts have subdivided joint tortfeasors into two categories: concurrent joint tortfeasors and successive joint tortfeasors. In the first category, the release of one joint tortfeasor releases the others as well; however, in the case of successive tortfeasors, a plaintiff may execute a general release as to the original tortfeasor- but still sue for injuries sustained because of the conduct of the successive tortfeasor. Williams v. Physicians and Surgeons Community Hospital, Inc., 249 Ga. 588, 589, 292 S.E.2d 705 (1982), overruling Maxey v. Hospital Authority of Gwinnett County, 245 Ga. 480, 265 S.E.2d 779 (1980) and Knight v. Lowery, 228 Ga. 452, 185 S.E.2d 915 (1971).

In Williams the court also held that parol evidence could be used to ascertain the true intention of the parties to the release with regard to those persons who were to be bound or covered by the release, overruling a contrary holding in Maxey. See also Sims v. Bryan, 140 Ga.App. 69, 230 S.E.2d 39 (1976). By this ruling the Georgia Supreme Court retreated from its earlier rulings that the objective, not subjective, intent of the parties was controlling and that such intent should be inferred from the four corners of the document whenever possible.

Perhaps the best example of how far the Georgia Court of Appeals will go in giving effect to the subjective intent of the parties not to release joint tortfeasors by settling with one joint tortfeasor is Smallwood v. Bickers, 139 Ga.App. 720, 229 S.E.2d 525 (1976). This court has reviewed the settlement document in that case and notes that it was denominated as a “release and settlement agreement.” That document specifically stated:

It is hereby expressly understood and covenanted that this instrument is intended to release and discharge the afore-named releasees from any and all claims, actions, or causes of action of any sort or description of which the undersigned, or Isaac Littleton Small-wood, or this estate or Isaac Littleton Smallwood or any or all of them may - have against the afore-referenced releases, but expressly does not release any other persons, firms, corporations or other legal entities except those expressly referred to herein____ (Emphasis added.)

That document also stated, “The parties do acknowledge, however, that payment in full for all damages caused by the named releases has been made by this settlement.” Practically ignoring this language, which released the settling defendants and acknowledged payment in full for all damages caused by the releasees (which had to be a settlement of the full claim, since the defendants were concurrent joint tortfeasors, not successive tortfeasors), the court instead focused on the language contained in the agreement to the effect that the plaintiff did not intend to release non-settling defendants. The court focused upon the following sentence, which immediately preceded the sentence quoted above regarding full settlement:

By entering into this Agreement, the parties acknowledge that all damages suffered by the undersigned, and by the estate of the deceased, have not been paid in full, but that this Agreement constitutes the settlement and resolution of a doubtful claim against the within named releasees only in regard to the injuries and death of Isaac Littleton Smallwood as such may have been caused by the named releasees.

Instead of seeking to harmonize the language which acknowledged “payment in full for all damages” with the language stating that the damages suffered by the plaintiff “have not been paid in full,” the court simply ignored the former and emphasized the latter.

Bevill v. North Brothers Company, 168 Ga.App. 97, 308 S.E.2d 215 (1983), provides a good discussion of the difference between a covenant not to sue and a covenant not to enforce judgment. The Bevill court noted:

If a defendant has secured an agreement whereby he is not to be sued, he certainly should not thereafter be sued to judgment. If he is sued to judgment, then regardless of what it is denominated, the agreement definitely cannot be a covenant “not to sue.” It must instead be an agreement “not to enforce the judgment” which is subsequently rendered in the case. If the agreement is one “not to enforce a judgment” rather than a covenant “not to sue, ” all defendants who would otherwise be jointly liable on the judgment are released thereby. 168 Ga.App. at 100, 308 S.E.2d 215 (emphasis added).

However, apparently because it desperately wanted to find a covenant not to sue rather than a release, the Smallwood v. Bickers court chose not to utilize this analysis of the effects of a covenant not to enforce judgment, for the document in Smallwood expressly provided:

This instrument shall be interpreted as a covenant not to sue and a covenant not to enforce judgment with respect to all claims for the full value of the life of Isaac Littleton Smallwood and for all actions for funeral expenses, aggravation by third party of original injuries sustained by said deceased, and for all claims of loss of consortium after the death of said Isaac Littleton Smallwood against such named releasees.

The court interprets the above cases to mean that whenever possible the Georgia appellate courts will treat a settling document as a covenant not to sue if there is language in the document which the court can interpret to show an intention on the parties to release only one joint tortfeasor and not the remaining joint tortfeasors. In the case sub judice, there are repeated references to the fact that the parties intend for the document to be a covenant not to sue and that the parties intend to release only the settling defendants and to pursue their cause of action against the non-settling defendants. Consequently, this court will treat the document as a covenant not to sue, not a release.

The fact that the covenant not to sue was accompanied with a dismissal with prejudice of the plaintiffs cause of action against the settling defendant does not convert the covenant not to sue into a release that would release the non-settling defendants. “The dismissal of an action against a defendant with prejudice even when a consideration is paid by such defendant to the dismissing party, does not, as a matter of law, adjudicate all issues in the case. Such a dismissal merely means that the same plaintiff cannot sue the same defendant on that same cause of action. The dismissal of an action with prejudice against a defendant adjudicates only the non-liability of that defendant to the plaintiff____ A dismissal with one defendant does not preclude the same defendant from bringing the same cause of action against another defendant.” Rowland v. Vickers, 233 Ga. 67, 68, 209 S.E.2d 592 (1974). Although Rowland did not involve joint tortfeasors, the language is instructive, since it holds that a dismissal with prejudice is simply an adjudication of non-liability of the dismissed defendant and is not an adjudication that a plaintiff has received full compensation for his injury. Smith v. McLendon, 142 Ga.App. 608, 236 S.E.2d 692 (1977) and Cline v. Aetna Casualty & Surety Co., 137 Ga.App. 76, 223 S.E.2d 14 (1975), do not require a contrary result, since there is nothing in those two cases to reflect that the compensation received was not intended to be a full satisfaction of the claims. This court does not hold that the settling of a claim with one joint tortfeasor accompanied with a dismissal with prejudice will never work to release the non-settling joint tortfeasor; this court simply holds that a dismissal with prejudice accompanied by a covenant not to sue, which clearly shows the intention of the parties not to release the non-settling joint tortfeasors, will not operate to extinguish the plaintiffs claims against the non-settling joint tortfeasors.

For the foregoing reasons the motion of the Coats Company and John Huskey to dismiss the plaintiffs claims against them is DENIED.


author: RAMBO, District Judge.

text:
    Cataldo GIORDANO, Plaintiff, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.
    Civ. A. No. 83-0617.
    United States District Court, M.D. Pennsylvania.
    Nov. 29, 1984.
    Peter B. Macky, Susquehanna Legal Services, Sunbury, Pa., for plaintiff.
    Harry Nagle, Asst. U.S. Atty., Lewis-burg, Pa., for defendant.
   MEMORANDUM

RAMBO, District Judge.

On July 9, 1984, pursuant to the report and recommendation of Magistrate Smyser dated June 7, 1984, this court directed that the Clerk of the Court enter judgment for the plaintiff in the captioned matter. On July 20, 1984, the plaintiff’s counsel filed an application for attorney’s fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d). The matter is now ripe for decision.

The issue involved is whether the position of the defendant was substantially justified. Under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d)(1)(A)

a court shall award to a prevailing party ... fees and other expenses ... incurred by that party in any civil action ... brought by or against the United States ... unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust. (Emphasis added)

The Government has the burden of making a “strong showing” that its position was substantially justified. NRDC v. EPA, 703 F.2d 700, 712 (3d Cir.1983). In Dougherty v. Lehman, 711 F.2d 555, 563 (3d Cir.1983), the court set out a three-part test which the Government “must” satisfy in order to sustain its burden of proving substantial justification, i.e., that its position had a reasonable basis in both law and fact. It must show:

First, ... that there is a reasonable basis in truth for the facts alleged ... Second ... that there exists a reasonable basis in law for the theory which it propounds ... Finally, that the facts alleged will reasonably support the legal theory advanced.

Dougherty at 711 F.2d 564

This instant social security case involves a termination of the plaintiffs benefits and requires an analysis under Kuzmin v. Schweiker, 714 F.2d 1233 (3d Cir. 1983). Under the Kuzmin decision, upon the presentation by a social security disability benefits recipient of evidence that the condition which caused the Secretary to initially award benefits has not improved or has become worse, a presumption arises that the claimant continues to be disabled. Therefore, in such a case, it follows that the Secretary’s analysis of the claim must address the question of improvement in the claimant’s condition between the time of the initial grant and the time of the subsequent review of the claimant’s case. The Secretary must, in other words, conduct a comparative analysis and, if it is determined that the claimant is no longer disabled, the Secretary’s decision must necessarily point to some factor(s) demonstrating improvement in the claimant’s condition. Furthermore, it is self-apparent that the improvement must be shown by the Secretary to be of such a nature or degree that the claimant, although previously found to be unable to, now can perform substantial gainful activity.

In this case, the administrative law judge who heard the testimony of the plaintiff, the plaintiff’s wife, a mental health clinical counsellor and a clinical psychologist vocational expert, concluded by Decision of November 2, 1982 that the plaintiff, who was found in 1977 to be disabled because of a severe anxiety phobia, continued to be disabled (Tr. 14-16). In a Decision on April 25, 1983, the Secretary’s Appeals Council reversed the decision of the administrative law judge (Tr. 5-11). The Decision of the Appeals Council does not contain an analysis of the plaintiff’s case which adheres to the standards set forth in Kuzmin. The Magistrate noted that the Appeals Council’s Decision preceded the Kuzmin decision. He recognized that a remand of the case to the Secretary for reconsideration in view of Kuzmin would be appropriate if the record contained any substantial evidence that the plaintiff can work and if the Decision of the Appeals Council were not otherwise in error. However, the Magistrate found that the Decision of the Appeals Council contained other significant error and the record did not contain evidence which, viewed under applicable legal standards, might support a conclusion that the plaintiff can work.

First, the Appeals Council rejected the credibility of the plaintiff without making any express findings. The Secretary’s findings were noticeably deficient when measured against the evidence of continuing disability presented by the Secretary’s own medical advisor, the Secretary’s own vocational expert, the Secretary’s own consulting psychiatrist and the Secretary’s own consultative psychologist. The Secretary failed to accord controlling weight to the uncontradicted opinion of plaintiff’s treating psychologist in contravention of the case law of this circuit. Cotter v. Harris, 642 F.2d 700 (3d Cir.1981).

The position of the federal defendant was inconsistent with established precedent and fell short of being substantially justified. Plaintiff is justified in receiving a fee award.

This court has reviewed the hours and work performed by counsel and is satisfied that the hours are reasonable and justified. The court further finds that the hourly rate for this counsel of $75.00 per hour is reasonable. An appropriate order will be entered.


author: JAMES R. MILLER, Jr., District Judge.

text:
    Vicki HARDING v. RAMSAY, SCARLETT & COMPANY, INC.
    Civ. A. No. M-84-1371.
    United States District Court, D. Maryland.
    Nov. 30, 1984.

      Norris C. Ramsey, Baltimore, Md., for plaintiff.
    Barrett W. Freedlander, Alan Betten, and Niles, Barton & Wilmer, Baltimore, Md., for defendant.
   MEMORANDUM AND ORDER

JAMES R. MILLER, Jr., District Judge.

The plaintiff, Vicki Harding, filed a complaint pursuant to 42 U.S.C. §§ 2000e, et seq., and 42 U.S.C. § 1981 alleging that the defendant, Ramsay, Scarlett & Company, Inc., terminated her solely because of her race and in retaliation for filing a charge of discrimination with the EEOC against the defendant (Paper No. 1). The defendant has moved to dismiss or for summary judgment on the ground that the plaintiff is collaterally estopped from pressing her discrimination claim in this court (Paper Nos. 8 & 11). The plaintiff has responded (Paper No. 10). No hearing is necessary to decide the issue (Local Rule 6).

Factual Background

Vicki Harding, a black female, was employed by Ramsay, Scarlett in April, 1981, as a billing clerk. On April 15, 1982, she was placed on probation for seventy five days due to her record of absenteeism. Subsequently in June, 1982, Ms. Harding filed a charge with the EEOC alleging that she had not been absent an excessive number of days and that a white employee with a worse absentee record was not placed on probation. The charge was referred to the Baltimore Community Relations Commission (BCRC).

On July 23, 1982, the charge was settled by agreement of the parties. Under the agreement, no determination was made that Ramsay, Scarlett had discriminated against Ms. Harding, but Ramsay, Scarlett, in essence, agreed to treat Ms. Harding in the same way it would treat other employees (Paper No. 8, Ex. 1).

The plaintiff satisfactorily completed her probationary period, but she allegedly began again to incur a number of absences from work. She was told on November 8, 1982 that no additional absences would be permitted through the end of 1982. Her absences allegedly continued, and she was terminated on December 10, 1982.

On December 13, 1982, Ms. Harding filed a charge with the EEOC claiming racial discrimination and retaliation with regard to her termination (Paper No. 11, Ex. 1). She ultimately received a right to sue letter from the EEOC (Paper No. 11, Ex. 2).

On December 23, 1982, Ms. Harding filed for unemployment compensation with the Employment Security Administration of Maryland (ESA) (Paper No. 10, Ex. 2). The claims examiner concluded that Ms. Harding had been discharged from work as a disciplinary measure because her absenteeism without excuse constituted misconduct under Maryland Employment Insurance law. Unemployment insurance benefits were denied (Paper No. 10, Ex. 3).

Ms. Harding filed a request for appeal on January 7, 1983, asserting that “what the company fired me for isn’t a written rule or company policy, he, Dennis Shoemaker, was out to get me because I filed [a] charge against him prior to this.” (Paper No. 10, Ex. 4). A de novo hearing was held before Appeal Referee Gerald E. As-kin. Ms. Harding was not represented by counsel at the hearing.

Responding to questions of the Appeal Referee, Ms. Harding testified that she had filed a charge and that the Baltimore Community Relations Commission had investigated (Paper No. 10, Ex. 5 at 25). She explained that the BCRC had been brought in because she “had been harassed” by her immediate supervisor, Mr. Sasso, and because she did not agree to the 75 day probation (id.). She also explained the reasons for her absences (Paper No. 10, Ex. 5 at 26-27).

Ms. Harding introduced into evidence a copy of the signed agreement settling her first racial discrimination charge (Paper No. 10, Ex. 5 at 27). She argued that she could not be terminated, under that agreement, unless the termination complied with established company policy (id. at 28).

Ms. Harding also testified that Dennis Shoemaker, her supervisor at the time of her termination, had orally harassed her when he “hollered and screamed across the room to me, ‘Did you sent out that telex?’ ” (id. at 29).

Finally, she testified that on October 22, 1982, she was four minutes late, and was told by Mr. Shoemaker that she had to make up the four minutes. She argued with him that, for lateness of four minutes or under, the company policy was that there was no need to make up the time (id. at 31).

The Appeal Referee issued his decision on February 10, 1983. He found that Ms. Harding “was discharged after having been placed on probation for a second time, and [after] having been warned that any further absence would result in her termination____ In the year 1982, the claimant was absent twenty-three days for either her own sickness or sickness of a member of her family. Two of the twenty-three days were excused by the employer.” (Paper No. 10, Ex. 6). The Appeals Referee also noted that Ms. Harding had filed a discrimination charge against her employer, but that the charge had been settled.

The Appeals Referee concluded that Ms. Harding was discharged for misconduct, but felt that “because of extenuating circumstances involved, [the] period of disqualification [from benefits] warrants mitigation.” (Id.). He did not explain what the “extenuating circumstances” were.

The plaintiff appealed that decision of the Board of Appeals of the ESA which concluded that the Appeal Referee’s decision was in conformity with Maryland law and thus denied her petition for review (Paper No. 10, Ex. 7).

Ms. Harding subsequently appealed the decision of the Board of Appeals to the Circuit Court for Baltimore City. Ms. Harding was not represented by counsel at the hearing held on March 1, 1984.

Judge Mary Arabian, who presided at the hearing, explained to Ms. Harding that she could not offer new evidence at the hearing and that “[t]he only issue was, was there sufficient substantial evidence before the Board and the Department for this court to affirm that decision____” (Paper No. 10, Ex. 8 at 3). Ms. Harding then argued that there was not substantial evidence to discharge her because she had not violated company policy (Paper No. 10, Ex. 8 at 4). In addition, she argued that another employee had been docked for absences, but that she had been terminated. The court indicated that “that would be irrelevant, what somebody else did.” {Id. at 5).

Ms. Harding also argued that under the settlement agreement she could be terminated only if she violated written company policy. She asserted, in effect, that the company breached that agreement {id. at 6). The judge indicated that she had read the agreement and that Ms. Harding had violated that agreement by continued absences {id. at 11). Judge Arabian affirmed the decision of the Board of Appeals (Paper No. 10, Ex. 9).

Ms. Harding then initiated suit in this court alleging that the defendant terminated her because of her race and in retaliation for filing an EEOC charge.

Legal Analysis

To decide whether res judicata or collateral estoppel principles will bar litigation in federal court, the court must look to the law of the state in which the judgment was entered. Kremer v. Chemical Construction Corp., 456 U.S. 461, 481-82, 102 S.Ct. 1883, 1897, 72 L.Ed.2d 262 (1982). In Maryland, res judicata bars litigation of another suit upon the same cause of action as to all matters which were, or could have been, litigated. See MPC, Inc. v. Kenny, 279 Md. 29, 32-33, 367 A.2d 486 (1977). Collateral estoppel applies in a second suit, even though the cause of action is different, to any determination of fact which was litigated in the first case. Id.

Maryland law is clear that res judicata and/or collateral estoppel will apply where there has been a final judgment of a court on the merits in a previous proceeding. See, e.g., Institutional Management v. Cutler Computer, 294 Md. 626, 633, 451 A.2d 1224 (1982); Surrey Inn, Inc. v. Jennings, 215 Md. 446, 454-55, 138 A.2d 658 (1958). Maryland law requires a court to look to whether a party against whom res judicata or collateral estoppel is asserted has been given a “fair opportunity to be heard on the issue.” Washington Suburban Sanitary Commission v. TKU Associates, 281 Md. 1, 19, 376 A.2d 505 (1977).

The doctrines of res judicata or collateral estoppel may be applied in a Title VII case when a state court has considered and decided the issue of discrimination. In Kremer v. Chemical Construction Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982), the Supreme Court held that a federal court in a Title VII case should give preclusive effect to a decision of a state court upholding a state administrative agency’s rejection of an employment discrimination claim when the state court’s decision would be res judicata in the State’s own courts. Id. at 466 & 485. In this district, Judge Harvey in Ross v. Comsat, 34 FEP 260 (D.Md.1984), applied Kremer in a Title VII case in which the plaintiff’s claim of discrimination had been litigated as part of the administrative proceeding before the Employment Security Administration when the plaintiff applied for unemployment compensation. Id. at 263.

The procedural posture of the Ross case is similar to that of the case at bar. In Ross, the plaintiff had filed a discrimination charge with the EEOC, and, like the plaintiff herein, had filed for unemployment compensation with the ESA. His claim before the ESA stated that he had been discharged because he had filed charges with the EEOC. 34 FEP at 261-62. Ross’ unemployment compensation claim was investigated by the claims examiner who concluded that Ross had been discharged for misconduct. The plaintiff appealed that decision and at a de novo hearing the Appeals Referee concluded that Ross had not been discriminatorily discharged but had been discharged for misconduct. Ross appealed to the ESA Board of Appeals which denied his petition. Thereafter, he appealed to the Circuit Court of Baltimore City which affirmed the decision of the Board of Appeals. Id. at 262-63.

In two ways, though, Ross is dissimilar' from the instant action. First, Ross was represented by counsel at all stages of the ESA litigation. Id. at 262-63. Ms. Harding was not. Second, the Appeals Referee in Boss specifically found that Ross’ discharge was not discriminatory or in retaliation for filing an EEOC charge. Id. The Appeals Referee in Ms. Harding’s case, although he noted that she previously had filed a discrimination charge which was settled, did not allude to the racial discrimination issue in his decision. He found only that she had been discharged for misconduct. Further, on appeal before the Circuit Court for Baltimore City, Ms. Harding attempted to argue that she had been treated differently from another employee with absences, but she was told by Judge Arabian that that was irrelevant.

It appears, from the records of the proceedings before the Appeals Referee and before the Circuit Court, that the issue of discriminatory discharge to some extent was placed before the Appeals Referee. He heard testimony from Ms. Harding regarding her discrimination charge. This court notes, however, that Ms. Harding was a pro se litigant in that proceeding and that her testimony concerning the relationship between the alleged discrimination, her absences, and her ultimate discharge was confusing at best. In addition, although the Appeals Referee noted that a discrimination charge, the nature of which he did not characterize, had been filed, he did not directly state in his opinion whether or not racial discrimination had occurred.

Because this court has some question about the extent to which the racial discrimination issue was litigated at the administrative hearing and because Ms. Harding was a pro se litigant at that time, the doctrine of collateral estoppel will not bar the litigation of the racial discrimination issue in this federal forum.

The doctrine of collateral estoppel, however, does bar the re-litigation of the misconduct issue. A factual determination was made in the ESA proceedings that Ms. Harding was absent for 23 days in 1982, only two of which were excused. That fact formed the basis of the finding that Ms. Harding was discharged for misconduct. It is clear from the record that Ms. Harding had a full and fair opportunity to litigate that issue on the State administrative and judicial level.

The case before this court is, as to count I, a disparate treatment case. The plaintiff alleges in count I that she was terminated but that white employees guilty of the same conduct were not (Paper No. 1 at 3). In count II she alleges that she was terminated because she had filed a discrimination charge against her employer.

In discrimination cases the burden of “persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with 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).

To prove discriminatory intent, it is not necessary for the plaintiff to prove “that the challenged action rested solely on racially discriminatory purposes.” Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977); see also Dowdell v. City of Apopka, 698 F.2d 1181, 1185 (11th Cir.1983). But even if the plaintiff proves that the challenged action was motivated in part by a racially discriminatory purpose, the defendant’s decision is not invalidated automatically. Such proof shifts the burden to the defendant to show that the same decision would have been made even if the impermissible purpose had not been considered. Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977); Arlington Heights, 429 U.S. at 270 n. 21, 97 S.Ct. at 566 n. 21. If the defendant meets that burden, “the complaining party ... no longer fairly could attribute the injury complained of to improper consideration of a discriminatory purpose.” Arlington Heights, 429 U.S. at 270 n. 21, 97 S.Ct. at 566 n. 21. See also Lewis v. Bethlehem Steel, 440 F.Supp. 949, 966 (D.Md.1977).

In the instant action, assuming the plaintiff could establish that the defendant’s decision in part was racially motivated, the defendant has come forward, through the operation of collateral estoppel, with sufficient evidence to prove that the plaintiff would have been discharged even if the impermissible purpose had not been considered.

In effect, the plaintiff, because she is collaterally estopped by the state administrative agency and judicial ruling, cannot “by the process of eliminating the legitimate reason [for her discharge show] that the decision was governed by an illegitimate one.” Banerjee v. Board of Trustees, 648 F.2d 61, 63 (1st Cir.1981), cert. denied, 454 U.S. 1098, 102 S.Ct. 671, 70 L.Ed.2d 639 (1981). See also Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978). The state proceedings stand as a bar to such an assertion.

Accordingly, it is this 30th day of November, 1984, by the United States District Court for the District of Maryland, ORDERED:

1) That the defendant’s motion to dismiss or for summary judgment be, and is hereby, GRANTED.

2) That Judgment shall be entered for defendant with costs.

3) That the Clerk shall mail a copy of this Memorandum and Order to counsel for the parties.

      . The defendant also has moved to strike the plaintiffs demand for a jury trial under Title VII and to dismiss her cláims for compensatory, punitive, or treble damages under Title VII (Paper No. 8). The plaintiff has conceded that she is not entitled to either a jury trial or punitive damages under Title VII (Paper No. 10).

      . It is clear from the Ross decision that the discrimination claim could have been litigated before the ESA, but the principles of res judicata are not applicable in this Title VII action, which presents a cause of action different from the one presented to the ESA.