source: Caselaw Access Project

author: RAFEEDIE, District Judge.

license: Public Domain

text:
    William TUDYMAN, Plaintiff, v. UNITED AIRLINES, Defendant.
    No. CV 84-4463-ER.
    United States District Court, C.D. California.
    Dec. 26, 1984.

      Richard Grey, Barnett & Grey, Beverly Hills, Cal., for plaintiff.
    N. Morrison Torrey, United Air Lines, Inc., Elk Grove Village, Ill., for defendant.
   MEMORANDUM OPINION

RAFEEDIE, District Judge.

Defendant’s motion for summary judgment came on for hearing during normal motion calendar October 22, 1984. This Court, having considered the memorandum and declarations filed by both parties, the oral argument, and the file in this matter, grants defendant’s motion. This decision is based on undisputed facts viewed in the light most favorable to the plaintiff.

FACTS

Plaintiff filed this action June 14, 1984, alleging violation of section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. Plaintiff had applied for a position as a flight attendant with defendant, United Airlines on December 1, 1983. The rejection letter does not give any reason for the rejection, except that other candidates were better qualified. All parties admit, however, that the reason was that plaintiff’s weight exceeded the amount that defendant's weight program for flight attendants established as the maximum weight for a man of his height (5’ 7½”). Under the program’s schedule, plaintiff could weigh no more than 163 pounds. At the time plaintiff applied for the position as flight attendant, he weighed 178 pounds — 15 pounds over his maximum.

Plaintiff had previously worked for defendant as a flight attendant, beginning in June 1973. He was terminated on October 9, 1980, because of his weight. Plaintiff took his termination to arbitration, which upheld the termination. Although he did not appeal this decision, his attorney wrote to defendant in June 1982, seeking reinstatement. The request was denied.

Defendant’s weight program appears to be motivated by a desire to assure the neat and pleasing appearance of its flight attendants, who have considerable contact with/ customers. The weight program, as set out in part in Exhibit A to plaintiff’s complaint, establishes a maximum weight according to an individual’s height, weight, and sex. A two pound “buffer” is also allowed. The program establishes a procedure for those who exceed the maximum weight to try to reduce their weight, and includes the option of termination for those who are unable to do so and who also refuse to transfer or resign. Finally, the program provides that “weight exceptions may only be approved through the local M.D. department” (italics in original).

While plaintiff exceeds the maximum weight for his height, this violation does not mean he is in poor shape. Indeed, his weight appears to result from plaintiff’s avid body building, and resulting low percentage of body fat and high percentage of muscle. Before 1980, plaintiff had received medical exemptions from the weight maximum. In June 1979, however, Judge Pratt issued an opinion in a case concerning defendant’s then existing weight program. See Alpha v. United Air Lines, 26 Fair Empl. Prac. Case 607 (S.D.N.Y.1979). While he found that the weight máximums did not violate Title VII of the Civil Rights of 1964, 42 U.S.C. § 2000e-5, he found that United’s disciplinary actions enforcing the policy discriminated on the basis of sex, as did its practice and policy of giving exceptions. Judge Pratt found the latter was justified because most of the exceptions were given to men on the Hawaii flight who had been hired to give the flight a vacation flavor. 26 F.E.P. at 621-22. After this decision, the medical staff declined to provide plaintiff with a medical exception as his condition was voluntary and self-imposed.

ISSUES PRESENTED

Defendant asserts that summary judgment must be granted on three grounds. First, defendant contends that it is not subject to section 504’s anti-discrimination strictures because its “employment program” does not receive any financial assistance. Second, defendant contends that plaintiff is not protected by section 504 as he is not a handicapped individual. Finally, defendant claims that the statute of limitations bars plaintiff’s claim as the Court should consider the date plaintiff was originally terminated, rather than the date his most recent application was refused. The Court will look at each of these questions in turn.

Rehabilitation Act ... Federal Financial Assistance

Section 504 of the Rehabilitation Act provides:

No otherwise qualified handicapped individual in the United States, as defined in section 706(7) of this title, shall, solely by reason of his handicap, be excluded from 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.

To prove a violation of the Rehabilitation Act, plaintiff must show that he is a “handicapped” person under the Act, see 29 U.S.C. § 706(7) (1982); that he is “otherwise qualified” as a flight attendant, see 29 U.S.C. § 794 (1982); the existence of a relevant federally funded program; and that the weight program is discriminatory. See Bentivegna v. United States Department of Labor, 694 F.2d 619, 621 (9th Cir.1982) (outlining elements to be proved). Defendant disputes the first and third elements.

The Supreme Court has recently affirmed that § 504's ban on discrimination is limited to specific programs or activities receiving federal financial assistance. Consolidated Rail Corp. v. Darrone, — U.S. -, 104 S.Ct. 1248, 1255, 79 L.Ed.2d 568 (1984); see also Grove City College v. Bell, 465 U.S. 555, 104 S.Ct. 1211, 79 L.Ed.2d 516 (1984) (Title IX ease). Defendant presents a declaration stating that its “employment program” receives no federal financial assistance. Defendant impliedly asserts that this is the only relevant “program” and that since it receives no funding, this requirement has not been met. Defendant, however, does not deny that it receives any federal money, it merely denies that its “employment program” receives any assistance. But defendant does not provide any information that would allow this Court to determine that the assistance it does receive is unrelated to plaintiff.

Defining the appropriate program or activity is not an easy task. The higher courts have provided little guidance. In Consolidated Rail, — U.S. -, 104 S.Ct. at 1256, the Supreme Court did not reach the question, but rather remanded the case for further findings. Similarly, in Meyerson v. State of Arizona, 709 F.2d 1235, 1237-38 n. 1 (9th Cir.1983), vacated - U.S. -, 104 S.Ct. 1584, 80 L.Ed.2d 118 (1984) (for reconsideration in light of Consolidated Rail), the Ninth Circuit only stated that it had not decided the extent of nexus required between the program receiving the assistance and the plaintiff. Thus, no binding precedent instructs this Court how to define the appropriate program or activity which must receive financial assistance if plaintiff is to meet the § 504 requirement of program specificity. But this Court is aware that “the issue of program specificity cannot be properly analyzed in the abstract, but instead requires a concrete set of facts.” United States v. University Hospital, 729 F.2d 144, 151 (2nd Cir.1984). Because such facts are entirely lacking at this point, the Court refuses to grant summary on this ground. Before this Court could grant summary judgment on this ground, it must be assured that defendant receives no federal financial assistance, that the assistance is provided for a function or purpose which is entirely unrelated to plaintiff and any or all programs or activities in which plaintiff is involved, or that plaintiff has had a sufficient opportunity to conduct discovery and has not uncovered either the existence of any federal assistance or of a connection between these funds and the plaintiff.

Defendant seems to argue that it is not necessary to know what other federal assistance is received, so long as the “employment program” receives no assistance. It bases this argument on its conclusion that Grove City “specifically rejected this theory of ‘institution-wide’ coverage.” Reply Memorandum at 3. Defendant’s argument is wrong at three levels.

This Court is unable and unwilling to make any determination that the funding requirement is not met when defendant has not provided the faintest hint as to what exactly it means when it states that the “employment program” receives no funding. Defendant has never defined “employment program” and the term is extremely ambiguous.

Defendant is confused about the meaning of institution-wide coverage. Assistance provided for one function may overlap and sufficiently affect plaintiff that the trigger may be met, even though plaintiff is not directly involved with that function. For example, if defendant received financial assistance for its health and/or fitness programs, that might provide the necessary nexus. This inquiry does not mean that the whole institution is captured because of the receipt of federal funds by one small section of it. Rather, it is merely a recognition that defining the relevant program is difficult and that the plaintiff may be part of several programs. Here it is important to recall that while the shorthand phrase is “program specificity,” the Supreme Court itself spoke of “a program or activity receiving financial assistance.”

Finally, defendant’s interpretation of § 504’s program specificity requirement after Grove City is far too narrow. Grove City provides primarily an expansive reading of when the federal assistance requirement is met. Grove City held that indirect assistance in the form of grants to students, rather than grants to the college itself, could trigger Title IX coverage. — U.S. -, 104 S.Ct. at 1220. The Supreme Court then determined that the correct program in that case was the student financial aid program. Id. at -, 104 S.Ct. at 1221. In so doing, the Supreme Court rejected the Court of Appeal’s holding that the student grants constituted aid to the entire institution. But importantly, the Supreme Court did not reject the possibility that federal aid could in some situations result in Title IX (or § 504) covering the entire institution — the Supreme Court only decided that federal student grants did not have this effect. As the Supreme Court stated in Grove City, Id., and repeated in Consolidated Rail, — U.S. -, 104 S.Ct. at 1221. “[sjtudent financial aid programs ... are sui generis.” Thus, the only holding of Grove City that is relevant to this case, or to most § 504 cases, is that indirect funding is sufficient to trigger § 504’s coverage, but that the effect of the federal assistance oh plaintiff must be more than merely “freeing up” defendant’s own resources for use elsewhere. Grove City, therefore, neither compels nor argues for granting summary judgment on the basis of financial assistance.

Indeed, this Court finds defendant’s argument to be similar to that rejected by the Supreme Court in Consolidated Rail. In that case, defendant received federal assistance by the government purchasing stock, as well as funds for retraining programs and termination programs. None of this money went “primarily” for employment, and therefore defendant argued that § 504 did not apply. The Court rejected this argument, because § 504’s “bar on employment discrimination should not be limited to programs that receive federal aid the primary purpose of which is to promote employment.” — U.S. -, 104 S.Ct. at 1254.

Rehabilitation Act of 1973 — Handicapped Person

Defendant’s argument that, even if it is covered by § 504, plaintiff is not protected by the Rehabilitation Act as he is not a handicapped individual, is more successful. Again, this Court begins its inquiry by looking at the statute. Section 706(7)(B) of the Act states:

The term “handicapped individual” means for purposes of subchapter IV and V of this chapter, any person who (i) has a physical or mental impairment which successfully limits one or more of such person’s major life activities, (ii) is regarded as having such an impairment. For purposes of sections 793 and 794 of this title, as such sections relate to employment, such term does not include any individual whose current use of alcohol or drugs prevents such individual from performing the duties of the job in question or whose employment, by reason of such current alcohol or drug abuse, would constitute a direct threat to property or the safety of others.

29 U.S.C. § 706(7)(B); accord 45 C.F.R. § 84.8(j).

While the statute does not define any of the terms used in its definition, the regulations by the Department of Health and Human Services elaborate:

(i) “Physical or mental impairment” means (A) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive, genito-urinary; hemic and lymphatic; skin; and endocrine; or (B) any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.
(ii) “Major life activities” means functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.
(iii) “Has a record of such an impairment” means has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.
(iv) “Is regarded as having an impairment” means (A) has a physical or mental impairment that does not substantially limit major life activities but that is treated by a recipient as constituting such a limitation; (B) has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or (C) has none of the impairments defined in paragraph (j)(2)(i) of this section but is treated by a recipient as having such an impairment.

45 C.F.R. § 84.3(j)(2).

Thus, there are three possible types of people who are considered handicapped: those who presently have some impairment substantially limiting a major life activity, those who have been so limited in the past, and those who are regarded by others as being so. Defendant argues that plaintiff has no such limitation or impairment and that it does not so regard plaintiff. It only regards plaintiff as not meeting the weight restriction. Plaintiff urges a broad interpretation of the term “handicapped” to include a person who is not “within the ordinary definition of that term” but “is perceived as such by an employer who has acted in a manner which precludes plaintiff from obtaining employment, notwithstanding the fact that he is in all other respects qualified to perform the requirements of the job.” Plaintiff’s opposition to Summary Judgment, 7-8.

Neither party cited any case dealing with the question of who is a handicapped person. Very few cases spend much time on the issue, as the issue usually requires little analysis. See, e.g., Longoria v. Harris, 554 F.Supp. 102 (S.D.Tex.1982) (amputee); Grube v. Bethlehem Area School District, 550 F.Supp. 418 (E.D.Pa.1982) (football player with kidney removed); Vickers v. Veterans Administration, 549 F.Supp. 85 (W.D.Wash.1982) (hypersensitivity to tobacco smoke required plaintiff to work in smoke-free environment); Bey v. Bolger, 540 F.Supp. 910 (E.D.Pa.1982) (hypertensive cardiovascular disease).

In defining who is a handicapped individual, § 504’s “Catch 22” aspect appears: the plaintiff must first show that he or she has some impairment which substantially limits a major life activity, but this same plaintiff must show that he or she is not so handicapped as to be unable to perform the job. See Doe v. Region 13 Mental Health-Mental Retardation Commission, 704 F.2d 1402, 1408 n. 6 (5th Cir.1983); Doe v. New York University, 666 F.2d 761, 775 (2nd Cir.1981). This plaintiff, however, seeks to turn this difficulty on its head. He argues that because the weight restriction prevents him from obtaining a job, for which he would otherwise be qualified, the requirement transforms him into a handicapped individual as it is his body composition that prevents him from meeting this requirement. Plaintiff does not specify whether this constitutes a handicap under 706(7)(B)(i) or (ii).

There is, however, no authority for the proposition that failure to qualify for a single job because of some impairment that a plaintiff would otherwise be qualified to perform constitutes being limited in a major life activity. The regulations define major life activity as, inter alia “working,” 45 CFR § 84.3(j)(2)(ii), but not “working at the specific job of plaintiff’s choice.” No court requires that an employee be prevented from all employment in order to be considered handicapped, and some courts are willing to define “major life activity” so that it is easily met. E.g., Doe v. New York University, 666 F.2d at 775 (major life activity limited when plaintiff unable “to handle stressful situations of the type faced in a medical training milieu”) (court, nonetheless, reversed preliminary injunction); Vickers v. Veterans Administration, 549 F.Supp. at 87 (major life activity “capacity to work in environment which is not completely smoke free”).

The only court to analyze the definition of handicapped status at any length is E.E. Black, Ltd. v. Marshall, 497 F.Supp. 1088 (D.Haw.1980), vacated and remanded to administrative law judge for further findings, Empl.Prac.Dec. ¶ 32,199, 26 Fair Empl.Prac.Cas. 1183 (D.Haw.1981). That court rejected the proposition that § 504 protects those capable of performing a particular job who is rejected because of a real or perceived physical or mental impairment. 497 F.Supp. at 1099. The court reasoned that that was not what Congress sought to accomplish with § 504 because “[i]f it were, Congress would not have used the terms substantial handicap or substantially limits — they (sic) would have said “any handicap to employment” or “in any way limits one or more such person’s major life activities.” Id. (emphasis in original). This court agrees with the portion of the Black court’s decision that the inability to obtain a single job does not render one “handicapped.”

While aware that only one court has found a plaintiff not to be handicapped, see GASP v. Mecklenburg County, 42 N.C. App. 225, 256 S.E.2d 477 (1979) (nonsmokers harmed by tobacco smoke not handicapped) and cognizant that the definitions are generally to be read broadly, see Doe v. New York University, 666 F.2d at 775, this Court believes that there are limits to who can be considered handicapped and that these limits were exceeded by this case. A person who exceeded the maximum weight for a United flight attendant because he is an avid body builder is not limited in a major life activity — he is only prevented from having a single job.

Furthermore, plaintiffs “unique musculo-skelital system and body composition,” as his motion papers describe his condition, are not the result of “physiological disorders,” “cosmetic disfigurement,” and “anatomical loss,” 45 C.F.R. § 84.3(j)(2)(i). His weight and low fat content are self-imposed and voluntary. This distinguishes the present case from one in which the plaintiffs weight was involuntary — e.g., the result of a glandular problem. Only one court has considered whether § 504 protects an individual who is “voluntarily” handicapped. In Davis v. Bucher, 451 F.Supp. 791 (E.D.Pa.1978), the court held past drug users to be handicapped and that a city could not automatically disqualify them for past use. It recognized that the condition was voluntary, but held that such persons were still covered by § 504 because the Department of Health, Education and Welfare’s analysis of the question argued that drug addiction was an impairment. Id. at 796. Therefore, the court did not proceed to analyze the effect of voluntariness, but only mentioned it as a factor which would otherwise have been relevant. The Davis court also noted that drug addiction was a serious problem and that Congress would want to assist those attempting to overcome their problem. Id. The only other court to touch upon the question of voluntariness found that where a person very sensitive to tobacco smoke may be handicapped, there was no discrimination where the plaintiff refused to either move his desk or close his office door. See Vickers, 549 F.Supp. at 89-90.

No such factors balance this plaintiff’s choice to be a champion body builder. While good health is certainly a laudable goal, there is no indication that Congress intended to confer special protection upon body builders when it passed the Rehabilitation Act to protect the handicapped. The 1978 amendment to the Act gives additional indication that § 504 was not intended to protect those with voluntary “impairments” from employment discrimination as it specifically excepted some present drug and alcohol abusers from the definition of handicapped individual. See 29 U.S.C. § 706(7)(B). What plaintiff is really suing for is his right to be both a body builder and a flight attendant, a right that § 504 was not intended to protect.

Thus, this Court concludes that as a matter of law plaintiff is not a handicapped individual under § 504. Plaintiff has no physical impairment and is not substantially limited in any major life activity. Nor does defendant perceive plaintiff to have a physical impairment which limits his activities. Defendant merely regards plaintiff as not being under a certain weight. For the same reason that the failure to qualify for a single job does not constitute a limitation on a major life activity, refusal to hire someone for a single job does not in and of itself constitute perceiving the plaintiff as a handicapped individual. If this were the case, then anyone who failed to obtain a job because of a single requirement which may not be essential to the job would become a handicapped individual because the employer would thus be viewing the applicant’s failure as a handicap. This Court refuses to make the term handicapped a meaningless phrase.

Lastly, it must be observed that the fact that there may be no good, logical or medical justification for the defendant’s weight program, as plaintiff contends, does not affect the analysis at all. For good or evil, private employers are generally free to be arbitrary and even capricious in determining whom to hire, unless the employer somehow discriminates on the basis of race, national origin, alienage, age, sex, or handicap status, considerations which Congress has determined to be prohibited. But it is only after the employment qualification or policy has been found to have some impact upon a member of a protected group that the defendant is required to justify that requirement or policy.

Rehabilitation Act of 1973 — Statute of Limitations

Defendant contends that a three-year statute of limitations applies to § 504 suits, adopting California’s three-year limitations statute prescribed for actions founded upon a liability created by statute. See Cal.Civ.Pro.Code § 338. Plaintiff concurs. Defendant, however, argues that plaintiff’s cause of action accrued on October 9, 1980 when he was originally discharged for being overweight. Plaintiff argues that the limitations period does not begin to run until he applied and was rejected in December 1983, and thus is within the period.

As the Court has determined that plaintiff is not included within § 504’s ambit, it does not reach the question whether a plaintiff who has reapplied for a job from which he was originally fired has a new cause of action that may be within the limitations period, even if the termination is barred. This Court notes, however, that the case upon which defendant principally relies actually distinguishes between a request for reinstatement and an application for employment. See Collins v. United Air Lines, 514 F.2d 594, 596-97 (9th Cir.1975) (quoting NLRB v. Textile Machine Works, 214 F.2d 929, 932 (3d Cir.1954). While a request for reinstatement is not a new and separate violation, application for employment which is refused is a separate and distinct act. Id. The Ninth Circuit, however, has only applied Collins in cases concerning requests for reinstatements, rather than cases in which termination has been followed by a new application.

CONCLUSION

There is no material fact at issue. Defendant is entitled to summary judgment as a matter of law as plaintiff is not a handicapped individual protected by § 504. Accordingly, this Court orders that summary judgment be granted in favor of defendant, that judgment in its favor be entered, and that defendant recover of plaintiff its costs of action.

      . Plaintiff’s application stated that his lowest weight in the preceding twelve months was 170 pounds.

      . The weight program at issue in this case appears to be a different, and more lenient, program than that approved by the district court in Alpa, arrived at by settlement between the parties in Alpa. For example, this program differentiates by age. While defendant attempts to intimate that the weight program is mandated by the district court's decision, that decision only requires that the program, if it does exist, be administered or enforced in nondiscriminatory fashion. Air Line Pilots Ass’n., Intern. v. United Air Lines, 480 F.Supp. 1107, 1112 (E.D.N.Y.1979).

      . This Court is not shifting the burden of meeting § 504's requirements from plaintiff to defendant. If this case were to come to trial, plaintiff must, of course, prove these elements. But when the defendant requests this Court to grant summary judgment, and the information needed to prove this requirement is in defendant's possession, defendant must persuade the Court that no such information exists. See Chaplin v. Consolidated Edison Co., 579 F.Supp. 1470, 1475 (D.C.N.Y.1984) ("Plaintiffs are entitled to obtain as complete a record as possible before being required to respond to the argument that they have demonstrated an insufficient nexus between the funding received by [defendant] and the position for which [plaintiff] was rejected.”).

      . Title IX has been interpreted to have the same "program specific” funding requirement as § 504. The Supreme Court cited both Grove City and North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 102 S.Ct. 1912, 72 L.Ed.2d 299 (1982) (also dealing with Title IX) in deciding Consolidated Rail.

      . The Court itself noted that Title IX was not limited to only the administration of the federal student aid, as the College contended, but prevented discrimination in the administration of all student financial aid distributed by the College. 104 S.Ct. at 1221 n. 21.

      . Black settled upon the test that a substantial handicap existed if the individual was disqualified from the same or similar jobs offered throughout the area to which the individual had reasonable access. 497 F.Supp. at 1101. Further, the court held that "In evaluating whether there is a substantial handicap to employment, it must be assumed that all employers offering the same job or similar jobs would use the same requirement or screening process.” Id. at 1100.
      The reason for this is that an employer with some aberrational type of job qualification (people with straight hair are inferior, and thus I require all job applicants to have curly hair) that screens out impaired individuals who are capable of performing a particular job, should not be able to say: “No one else has this job requirement, so the impairment does not constitute a substantial handicap to employment, and the applicant is not a qualified handicapped individual." If such an approach were allowable, an employer discriminating against a qualified handicapped individual would be rewarded if his reason for rejecting the applicant were ridiculous enough.

        Id.

      This Court must respectfully disagree with its sister court on this point. Only if the employer’s restriction or requirement discriminates against handicapped persons is it illegal, no matter how stupid or objectionable the restriction or requirement might be in general. Using the curly hair/straight hair example, unless plaintiff can demonstrate that curly hair is a common job requirement or that straight haired individuals are generally perceived as limited in some way, so that the plaintiff is handicapped, the curly hair requirement is not prohibited. Therefore, defendant is not evading § 504 by selecting ridiculous or arbitrary qualifications, and there is no need or justification for the Black court’s decision to assume that all employers have the same arbitrary job requirements unless that is shown to be true. In the present case, plaintiff has not shown that he is barred from any job other than the job of United flight attendant.

      . As Judge Pratt found in Alpa:

      [D]etermination of the specific amount of an exception to be granted a flight attendant is, from a medical standpoint, arbitrary and without solid medical basis____ Because the “exception” policy was without solid medical foundation, United’s medical director directed that information from a private physician supporting a requested exception be elicited from a lay person rather than by the United medical director, "in order to keep me from appearing medically stupid to my peers."
      26 Fair Emp.Prac.Cases at 615.


author: ROBERT D. POTTER, Chief Judge.

text:
    The KNIGHT PUBLISHING COMPANY, d/b/a The Charlotte Observer and The Charlotte News; and William “Skip” Hidlay, Plaintiffs, v. The UNITED STATES DEPARTMENT OF JUSTICE, Defendant.
    No. C-C-84-510-P.
    United States District Court, W.D. North Carolina.
    Dec. 26, 1984.

      Jonathan E. Buchan, H. Landis Wade, Jr., Helms, Mulliss & Johnston, Charlotte, N.C., for plaintiff.
    Barbara Gordon, Keith Fischler, Dept. of Justice, Civ. Div., Washington, D.C., for defendant.
   ORDER

ROBERT D. POTTER, Chief Judge.

THIS MATTER is before the Court on Plaintiff’s motion to compel preparation of a Vaughn index, Plaintiff’s motion for attorneys’ fees, Defendant’s motion for a protective order and Defendant’s motion to dismiss or in the alternative for an enlargement of time.

A. Motion to Dismiss

The Defendant moves to dismiss the Complaint for lack of jurisdiction over the subject matter and for failure to state a claim upon which relief can be granted. The statutory language of the Freedom of Information Act (the Act) conferring jurisdiction on the courts provides as follows:

On complaint, the District Court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, or in the District of Columbia, has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant. In such a case the Court shall determine the matter de novo ... and the burden is on the agency to sustain its action.

5 U.S.C. § 552(a)(4)(B). The Supreme Court accordingly has held that jurisdiction is dependent upon a showing that an agency has (1) “improperly”; (2) “withheld”; (3) “agency records”. Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 150, 100 S.Ct. 960, 968, 63 L.Ed.2d 267 (1980).

In the instant ease the Complaint clearly alleges that agency records were improperly withheld from the Plaintiff. Furthermore, the parties appear to agree that agency records have been withheld. The Defendant’s sole basis for the dismissal, either for lack of subject-matter jurisdiction or failure to state a claim, is its unsupported bare bones conclusory assertion that records have not been “improperly withheld”. In support of the motion to dismiss the Defendant filed three affidavits, which affidavits evidently are offered to show that records have not been improperly withheld. The affidavits, however, only set forth the circumstances of processing the Plaintiffs FOIA requests and assert that the requests were processed under Defendant’s standard operating procedure in the normal course of business. The affidavits completely fail to address the circumstances surrounding the agency’s decision not to disclose. Except for submitting the correspondence between the Plaintiff and the Defendant, there is not one iota of substantive information about the withheld materials and the circumstances justifying the nondisclosure or the basis for the exemption. Processing a request through a routine procedure has absolutely no bearing on whether the agency’s ultimate decision to withhold the document was proper or improper. The Court is, therefore, of the opinion that the motion to dismiss should be denied in that Defendant’s bare bones assertion that it has not improperly withheld requested records does not divest the Court of subject matter jurisdiction or establish that the Plaintiff has failed to state a claim upon which relief can be granted. 5 U.S.C. § 552(a)(4)(B).

B. Motion to Compel Preparation of a Vaughn Index

On September 11, 1984 the Plaintiff filed a motion to compel preparation of a Vaughn index and the Plaintiff attached a proposed order covering the matters sought in the Vaughn index. The motion encompasses FOIA requests made by the Plaintiff to the Drug Enforcement Administration (“DEA”), the Federal Bureau of Investigation (“FBI”) and the Executive Office for the United States Attorneys (“EOUSA”). The Defendant initially objected to preparation of a Vaughn index as to all three agencies. The Defendant, however, subsequently informed the Court that there is no objection to preparation of the Vaughn index as set forth in the Plaintiff’s proposed order with respect to the FBI and the DEA. The Defendant does object to the preparation of a Vaughn index relating to the FOIA request to EOUSA.

Prior to bringing this action, the DEA and the FBI made an “initial determination” denying the Plaintiff’s FOIA requests. Although the EOUSA received the FOIA requests on December 27, 1983 it has completely failed to make an “initial determination.” Since the EOUSA never made a determination, the Defendant argues that preparation of a Vaughn index, which index details in an organized manner the agency’s justifications for its decisions, is premature.

The Court is inclined to agree with the Defendant that the indexing request as to EOUSA is untimely. The Court, however, is further of the opinion that although preparation of the index may be premature, EOUSA is not forever exempt from the requirement of compiling a Vaughn index because it failed to timely respond to the Plaintiff’s FOIA request. There is not any dispute that the Plaintiff exhausted its administrative remedies under FOIA with respect to EOUSA. EOU-SA received the Plaintiff’s first FOIA request on December 27, 1983 and almost a year has passed and EOUSA has still not responded to this request. It would be absurd to allow EOUSA to avoid filing a Vaughn index on the basis that it failed to respond to the FOIA requests in accordance with the Act in the first place. The Court is, therefore, of the opinion that EOUSA should be ordered to issue its response to the request and if the request is denied the Defendant is on notice that it will have to timely submit a Vaughn index.

C. Motion for Protective Order

On September 11, 1984 the Defendant received the Plaintiff’s first set of interrogatories and requests for production of documents. The Defendant filed a motion for a protective order asking that it be relieved from having to answer, object, or respond to any of the requested discovery. The Defendant sets forth two grounds for its motion. One, the Court should postpone discovery until the motion to dismiss is resolved. Two, “the Plaintiff through his interrogatories seeks to discover information outside the purview of his request for records and clearly beyond that which he would receive if ultimately successful in this lawsuit.”

As the Court has denied the Defendant’s motion to dismiss it is no longer an arguable justification for a blanket postponement of discovery. Further, although the Defendant conclusorily asserts that the requested discovery is “outside the purview” of the Plaintiff’s FOIA requests, the Defendant completely fails to state how or why the discovery is too broad, which questions, if any, are too broad, or to set forth any specifics as to the “objectionable” nature of the discovery request. In addition, the Court has reviewed the discovery request and the interrogatories to cover the factual circumstances pertinent to the agency withholding of the records. The Court is, therefore, of the opinion that the Defendant’s motion for a protective order should be denied.

D. Attorneys’ Fees

The Plaintiff requests that it be awarded attorneys’ fees for the discovery motion because it is readily apparent that the requested discovery was appropriate. The Court, however, is of the opinion that in light of the pending motion to dismiss, the Defendant’s motion for a protective order was substantially justified. Accordingly, the Plaintiff’s motion for attorneys’ fees should be denied.

E. Extensions of Time

The Defendant is apparently requesting an extension of time in which to prepare a Vaughn index, an extension of time in which the EOUSA may respond to the Plaintiff’s FOIA requests and a second extension of time in which to file its Answer. The Defendant relies heavily on Open America v. Watergate Special Prosecution Force, 547 F.2d 605 (D.C.Cir.1976) in support of all its motions for extensions of time.

Open America deals with the issue of how much time an agency should be given to make a determination with respect to an FOIA request when it has failed to respond within the statutory ten-day and twenty-day periods of 5 U.S.C. § 552(a)(6)(A), (B). Specifically, Open America addresses what actions by an agency constitute “exceptional circumstances” and “due diligence” within the meaning of 5 U.S.C. § 552(a)(6)(C). The exceptional circumstances/due diligence standard discussed in Open America and as set out on 5 U.S.C. § 552(a)(6)(C) does not have any relationship, bearing, or application as to whether a court should extend the time in which a party should answer a Complaint or provide discoverable information in the form of a Vaughn index.

The Court has carefully reviewed the file and is of the opinion that EOUSA has shown that exceptional circumstances existed justify some delay in responding to the Plaintiff’s FOIA requests. The circumstances, however, are not of such an abnormal, unusual or burdensome nature to justify more than a year’s delay of a twenty-day time limit. The Court is, therefore, of the opinion that as a year is more than a sufficient time in which to make an initial determination with respect to the Plaintiff’s FOIA request, EOUSA should have until December 31, 1984 in which to respond to the Plaintiff’s request.

The Complaint in this action was served on September 11, 1984. Under 5 U.S.C. § 552(a)(4)(C) the Answer was due within thirty days. The Defendant moved the Court to extend the time in which to Answer to November 2, 1984. The Court granted an extension to and including October 30, 1984 in which to file the Answer. On October 30, 1984 the Defendant did not file its Answer, instead filing its motion to dismiss and its second motion for an extension of time in which to Answer. As the Defendant has now had approximately three months with respect to a one month statutory deadline, the Court is of the opinion that a further extension is not warranted. The Defendant, therefore, should file its Answer within ten days from the filing of this Order.

The Defendant requests a six month extension of time in which to prepare the Vaughn index in order to re-review the processing of the Plaintiffs FOIA requests. Six months is longer than it originally took the agencies to process and deny the Plaintiffs FOIA requests. In addition, the filing by the Defendant of its various motions has already effectively given the Defendant three months in which to prepare the index. The Court is therefore, of the opinion that if it allows the Defendant one more month, that will constitute a total of four months, which is more than ample time in which to prepare the Vaughn index.

IT IS, THEREFORE, ORDERED that:

(1) The Defendant’s motion to dismiss is DENIED;
(2) The Defendant’s motion for a protective order is DENIED;
(3) The Plaintiff’s motion for attorneys’ fees is DENIED;
(4) The Plaintiff’s motion to compel the preparation of a Vaughn index is GRANTED IN PART AND DENIED IN PART;
(5) The Defendant’s motion for an extension of time is GRANTED IN PART AND DENIED IN PART:
(6) The Defendant is to prepare a Vaughn index as described in the Order filed simultaneously herewith, with respect to all of the Plaintiff’s FOIA requests which are the subject matter of this litigation, except as to the FOIA requests to EOUSA which have yet to be determined;
(7) The Defendant is to prepare and serve the Vaughn index on or before January 14, 1985;
(8) EOUSA is to make a determination concerning the Plaintiff’s FOIA requests that are the subject matter of this litigation on or before December 31, 1984;
(9) The parties are to inform the Court after EOUSA makes its determination regarding the Plaintiff’s FOIA requests, what action, if any, are sought with respect to EOUSA’s preparation of a Vaughn index;
(10) The Defendant is to file its Answer to the Plaintiff’s Complaint within ten (10) days from the filing of this Order; and
(11) The Defendant is to serve its responses to the Plaintiff’s interrogatories and request for production of documents within twenty (20) days from the filing of this Order.

      . The motion requests an extension of time to prepare a Vaughn index. The memorandum filed in support of the motion is captioned as an enlargement of time to file answer. The text of the memorandum and the affidavits deal with the exceptional circumstances and due diligence standard, which standard is applied when an agency has failed to respond to an FOIA request. This shifting grabbag approach of the Defendant, persistent throughout the litigation, often has made it difficult to ascertain the Defendant’s arguments.


author: GETZENDANNER, District Judge:

text:
    Judith E. WINTERS, Plaintiff, v. PRUDENTIAL-BACHE SECURITIES, INC., Defendant.
    No. 84 C 5228.
    United States District Court, N.D. Illinois, E.D.
    Dec. 31, 1984.

      Carrie E. Hewitt, Robert Burke, Chicago, Ill., for plaintiff.
    N.A. Giambalvo, Brian E. Martin, of Boodell, Sears, Giambalvo & Crowley, Chicago, Ill., for defendant.
   MEMORANDUM OPINION AND ORDER

GETZENDANNER, District Judge:

This employment discrimination action is before the court on the motion for full summary judgment of defendant Prudential-Bache Securities, Inc. Plaintiff Judith Winters has brought a three-count complaint charging defendant with sex and age discrimination in violation of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. (“Title VII”), the Equal Pay Act of the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq. (“EPA”), and the Age Discrimination in Employment Act, 29 U.S.C. §§ 621, et seq. (“ADEA”). For the reasons stated below, the motion is granted in part and denied in part.

Title VII

1. Scope of the EEOC Charge

Defendant argues that the Title VII allegations in Count I far exceed the scope of the EEOC charge filed in this case. Winters filed two charges before commencing the present action. The first contains a one-sentence description of the challenged incident. In it, Winters states, in part, that, “I believe I have been discriminated against ... in that I was denied a salary increase from May 1, 1983 until November 14, 1983 (when I resigned my position) by Terrence Brennan____” The second charge expands on the original allegation of salary discrimination, and adds that “[a]s a result of the discriminatory treatment I received I resigned my position on November 14, 1983.”

The present complaint alleges both a constructive discharge and a discriminatory denial of a salary increase. (While certain allegations appear to be attempting to state a sexual harassment claim, Winters explains in her responding memorandum that no such claim is being asserted.) The question before the court is whether the constructive discharge claim is sufficiently related to the EEOC charges to allow jurisdiction over it in this forum. Before examining this issue, the court notes that the constructive discharge claim rests not only on defendant’s failure to award Winters a salary increase, which alone could not state a claim for constructive discharge, Held v. Gulf Oil Co., 684 F.2d 427, 434 (6th Cir.1982), see also Geisler v. Folsom, 735 F.2d 991, 996 (6th Cir.1984), but also on defendant’s alleged demeaning attitude towards Winters based on her age and sex.

In examining the proper scope of the allegations of a Title VII civil complaint, the courts have allowed plaintiffs to expand the scope of the EEOC charge, so long as the allegations are reasonably related to the charge. The Fifth Circuit articulated this rule in Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir.1970), when it held that “the ‘scope’ of the judicial complaint is limited to the ‘scope’ of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.” The Seventh Circuit accepted this standard of construing EEOC charges and civil complaints. Jenkins v. Blue Cross Mutual Hospital Insurance, Inc., 538 F.2d 164, 167 (7th Cir.), cert. denied, 429 U.S. 986, 97 S.Ct. 506, 50 L.Ed.2d 598 (1976). In addition, the courts should be solicitous of plaintiffs who, while in district court are represented by counsel, completed the EEOC charge without legal aid. See Love v. Pullman Co., 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972).

Even construing broadly the two EEOC charges in this case, the court agrees with defendant that the constructive discharge allegations exceed the scope of Winters’ filings with the EEOC. In neither is there a hint that she had any complaint other than the denial of a salary increase. There is simply no allegation of the other discriminatory treatment of which she now complains. Winters does state in both charges that she “resigned.” And, in the second charge she states that the resignation was prompted by discriminatory treatment. However, in that charge the discriminatory treatment is described only as defendant’s refusal to give her a salary increase. No other discrimination, such as the demeaning attitude of her supervisor, Terrence Brennan, is included to warn the EEOC that circumstances other than a salary dispute were responsible for the resignation. While there may be incidents of salary discrimination so outrageous as to rise to the level of constructive discharge, the allegations and evidence here fall squarely within the holding of Held v. Gulf Oil Co., supra, and alone cannot support a constructive discharge claim. The EEOC, therefore, would not have known to investigate any incident of Winters’ employment besides that described in her two charges, namely, the single failure to obtain a salary increase. Carillo v. Illinois Bell Telephone Co., 538 F.Supp. 793 (N.D.Ill.1982). Moreover, Winters does not present any evidence that would suggest the EEOC did investigate beyond this one discrete incident.

This conclusion does not require a complainant to use legal terms in the charge or to make an exhaustive list of discriminatory acts. However, neither can a complainant set forth one act of discrimination and thereafter file a complaint alleging others not even suggested by the charge. Apart from failing to notify the employer of the type of discrimination charged, such a system would vitiate the EEOC’s attempts to resolve discrimination actions extra-judicially.

The court therefore finds that the allegations of the complaint regarding constructive discharge should be stricken. The court accepts Winters’ claim that the complaint does not attempt to state a sexual harassment claim (this would be beyond the EEOC charge in any case). Hence, Count I may state a claim only for the discriminatory denial of a salary increase. Of course, the allegations and evidence that Winters was treated in a demeaning way by her supervisor remain evidence in Winters’ claim of discrimination, although they are not actionable in themselves.

2. Statute of Limitations

Defendant next argues that the claim of salary discrimination is time-barred. The court agrees with defendant that the salary discrimination in this case cannot be termed a “continuing violation.” See Stewart v. CPC International, Inc., 679 F.2d 117, 120-21 (7th Cir.1982). The continuing violation cases cited by Winters, concerning unlawful salary differentials between women and men, are not on point. While Winters alleges such salary discrimination in her EPA count, it is certainly not alleged in Count I or the EEOC charge. Rather, as the allegations of this disparate treatment case clearly illustrate, Winters claims she was discriminatorily denied a salary increase at one point in time. Her Title VII allegations register no other complaint regarding her salary than this one event.

As a continuing violation theory is not applicable to this case, the court must determine the date on which defendant denied Winters a raise. This is the appropriate date from which to measure the period, as the limitations period “normally commence[s] when the employer’s decision is made.” Delaware State College v. Ricks, 449 U.S. 250, 261, 101 S.Ct. 498, 505, 66 L.Ed.2d 431 (1980). The period may be tolled to the date on which the “facts that would support a charge of discrimination under Title VII were apparent or should have been apparent to a person with a reasonably prudent regard for his rights similarly situated to plaintiff.” Wolfolk v. Rivera, 729 F.2d 1114, 1117 (7th Cir.1984) (quoted in Janowiak v. The Corporate City of South Bend, 750 F.2d 557 at 560 (7th Cir.1984).

In this case, the date of the discriminatory act is unclear. It is undisputed that defendant’s practice concerning salary increases was to review the employee’s performance annually on the date of the last promotion, which in Winters’- case was in May. (Brennan Aff. ¶¶ 4-5.) Her last salary increase was in May 1982. (Id. at ¶ 5.)

In support of defendant’s claim that the denial occurred in May 1983, Brennan states that he had several discussions with Winters concerning poor job performance in late 1982. (Brennan Aff. ¶ 13.) Winters does not deny this, although she claims that the contents of any specific complaint about her by co-workers were never brought to her attention. (Winters Aff. ¶ 14.) On March 24,1983, Brennan wrote a memo to Winters complaining of recent incidents of misconduct, warning that they could be the basis for a dismissal. (Brennan Aff. ¶ 13 & Exhibit A.) Winters agrees she received such a memo, but denies some of the facts recited therein. (Winters Aff. ¶¶ 32-33.)

In May 1983, Brennan claims that he discussed Winters’ conduct and attitude problems with her, indicating that he “was not going to recommend a salary increase because her performance did not warrant it.” (Brennan Aff. ¶ 14.) He also claims that he reviewed her performance as he would that of any other employee. Winters agrees that she had discussions with Brennan concerning her salary starting in May, but makes clear that no firm decision was made at that time. She explains:

My work and salary performance reviews were regularly conducted in late-April or early-May. Following my reviews, I always received a pay raise.
When Mr. Brennan failed to arrange my evaluation in 1983, I spoke with him on or about May 19, 1983 about my annual salary increase. He put me off, and I had to raise the matter with him on several subsequent occasions during the months of June, July, September and November 1983. I was never given a pay raise or a performance review during this period.

(Winters Aff. ¶¶ 11-12; see EEOC Charges filed December 13, 1983 and January 6, 1984.) According to Brennan, Winters again requested a salary increase in late June 1983. On July 15, 1983, Brennan sent Winters a memo in which he states “there will not be a raise.” (Id. at ¶ 15 & Exhibit B.)

There is a substantial amount of evidence supporting defendant’s claim that Winters knew in May 1983 that she might not receive a raise. Brennan claims that he told her he would not recommend she receive a raise. Winters does not deny this claim, although she does testify that Brennan kept her in the dark concerning her salary. Moreover, Winters agrees that Brennan was responsible for her reviews. (Winters Aff. ¶ 11.) If the denial took place any time in May, the present charges would have been filed more than 180 days after the discriminatory event.

Still, the evidence on this crucial point of time is not clear. First, while Brennan clearly had the power to recommend a salary increase, there is no evidence explaining the scope of his authority over this decision. If the decision was totally within his control or if his recommendations were always followed, the May 1983 conversation concerning his recommendation, if it in fact took place as Brennan relates, would be strong evidence that the denial occurred in that month. However, Brennan’s own Exhibit B suggests that such was not his authority. For example, he explains to Winters in that July 15, 1984 memo that, “In answer to your question, of a few weeks ago, regarding a raise, I see no reason for it. After consultation with my New York counter-parts, it has been decided that there will not be a raise.” This memo suggests that his May 1983 statement was not the last word on Winters’ raise. In addition, while Brennan describes this memo as a “reaffirmation” of some earlier denial, in fact it contains no indication that he had previously denied her a raise. These facts and omissions, coupled with Winters’ testimony that no review took place in May or later in 1983, obscure the actual date of the denial. Winters’ affidavit establishes that Brennan “put her off” about whether she would receive a raise, suggesting not that she was denied a raise from May to July but that she did not know whether she was going to get one.

The present facts suggest that Winters was kept in the dark over the status of her raise, and that the raise may not have been rejected until sometime in June or July. Since a June or July denial could result in a timely filing in this case, the court cannot resolve the disputed facts before it. Hence, the motion for summary judgment on the Title VII claim as time-barred is denied at the present time.

3. Merits of the Title VII Claim

Defendant next contends that summary judgment on the substantive issues in the Title VII count is appropriate. The court disagrees. It is true that the affidavits submitted by defendant support a nondiscriminatory reason for the denial of a salary increase. See McDonnell Douglas v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1972). However, Winters’ affidavits are sufficient to create a dispute of fact over whether this articulated reason was a mere pretext for unlawful discrimination. Contrary to defendant’s representations, Winters’ affidavit does not simply contain an assertion that she was discriminated against. See Lim v. Citizens Savings and Loan Association, 430 F.Supp. 802, 814 (N.D.Cal.1976) (plaintiff opposes employer’s affidavits by stating only, “I believe I was discriminatorily treated”). Rather, it includes her observations that Brennan favored male supervisors and treated her, the only female supervisor, in a demeaning way. Further, the change in her evaluations before and after Brennan became her supervisor is dramatic. This evidence may suggest merely that the two did not get along. However, the evidence may be interpreted as going further, and indicating that the motivating reason for the animosity was Brennan’s discriminatory attitude towards Winters as a woman employee with supervisory responsibilities, and that this animosity extended to his evaluation and refusal to recommend a raise. These issues of motive and intent are clearly presented by the Winters affidavit, and are not appropriate for resolution on this motion. Summary judgment is therefore denied.

4- Punitive and Compensatory Damages

Winters requests damages for emotional and physical pain and suffering engendered by the Title VII violation. The court follows the weight of authority in this district that such damages are not available under Title VII. Seidel v. Chicago Savings and Loan Association, 544 F.Supp. 508, 510 (N.D.Ill.1982); Goodman v. Board of Trustees of Community College District 524, 498 F.Supp. 1329, 1334 (N.D.Ill.1980); Plummer v. Chicago Plumber’s Local 130, 452 F.Supp. 1127, 1141 (N.D.Ill.1978), rev’d on other grounds, 657 F.2d 890 (7th Cir.1981). The motion to strike the prayer for compensatory and punitive damages in Count I is therefore granted in full.

Equal Pay Act

Summary judgment on the EPA claim is granted. In her EPA claim, Winters compares her job with that of John Hill. Under the EPA, the complainant must compare her salary with the salary obtained by a male in a job “substantially equal” to her own. Schultz v. Wheaton Glass Co., 421 F.2d 259 (3d Cir.), cert. denied, 398 U.S. 905, 90 S.Ct. 1696, 26 L.Ed.2d 64 (1970). To demonstrate substantial equality, the complainant must show that her lower-paid job actually entailed equal skill, effort, and responsibility, and was performed under similar working conditions. 29 C.F.R. § 800.125.

Defendant submits Hill’s affidavit as the primary evidence that his and Winters’ jobs differed. Hill was the Administrative Assistant to Brennan in the Chicago office’s Sales Department. As such, he had supervisory authority over sales aids and wire room operators, including Winters. (Hill Aff. ¶ 2.) (Winters disputes that Hill supervised her, Winters Aff. ¶ 18, but this is not relevant to the court’s determination.) Seventy-five percent of Hill’s time is spent making certain that deliveries to defendant’s customers are “effected in the proper manner,” a job that requires extensive client contact. (Hill Aff. ¶ 3.) About ten to fifteen percent of his time is spent in bookkeeping activities concerning delivery accounts. (Id.) Hill concludes that

The balance of my job duties involve [sic] supervision of sales aids and wire room employees; supervision of the processing of orders in the wire room, making certain office equipment and supplies are maintained, supervising maintenance and storage of office records, and in general, making certain that the office operates efficiently.

(Hill Aff. ¶ 3.) Hill spends no significant time operating the teletype machines and, in fact, was not even trained to operate one until he decided this knowledge would be helpful in emergency situations. (Id. at ¶ 4.) Hill also took over cashiering and monitoring daily business from Winters when he was transferred to the Sales Department, allegedly because it was handled incompetently by Winters. (Id. at ¶ 5.) According to Hill, he spends about twenty percent of his time, and Winters now spends about five percent of her time, doing this work. He claims that Winters has no client contact. (Id.)

Brennan describes Winters’ job as follows:

Basically, Ms. Winters’ job was to transmit and receive orders and confirmations, et cetera, to and from New York. In this capacity, she had supervision over an assistant wire room operator, but no other employees in the Sales Department. The bulk of the transmissions placed by Ms. Winters came from the Sales Department, although other departments such as the Municipal Bond Department would send orders to Ms. Winters in the wire room for transmission to New York.

(Brennan Aff. ¶ 6.) Winters has little or no client contact. (Id. at ¶ 8.) Hill, on the other hand, supervises all wire room and sales aid employees, reports to Brennan concerning hiring, discipline, and evaluation, and only infrequently operates the teletype machine. (Id. at ¶ 9.)

This evidence clearly establishes the substantial differences in the two jobs. Winters’ burden on this motion, therefore, is to demonstrate that these job descriptions are inaccurate, and that in fact the two jobs are equal. According to Winters, her job required supervising and training assistant teletype or wire operators working under her direction. (Winters Aff. ¶ 4.) Hill clearly does not conduct such training. In addition, Winters agrees that she had “limited customer contacts.” She does explain that with Hill, she carried out bookkeeping functions, although her affidavit is consistent with Hill’s assertion that he took over the bulk of these tasks. (Id. at ¶¶ 4, 35.) Winters would also “wire orders” and check delivery versus payment accounts to determine if securities were properly delivered and received. (Id. at ¶ 5.) Errors required contacting the salesperson involved. (Id.) About “half” of Winters’ time was spent “in performing operational business duties, including monitoring the bookkeeping of pay on settlement accounts.” (Id. at ¶ 6.)

Accepting all of Winters’ statements concerning her job as true, they do not demonstrate that her and Hill’s jobs were equal under the EPA. Hill supervised sales assistants. Moreover, his supervisory authority over the wire employees was different in kind from Winters’, which required training. Winters operated the teletype machines as part of her job, however, Hill did so only as an emergency gesture, and was not required to know how to work the machines. Most of Hill’s work required client contacts, and Winters admits that she had few such contacts. Furthermore, Winters’ description of her own job is confusing. She uses such terms as “operational business duties” to describe what comprised half of her time. In contrast, Hill’s description is detailed, and clearly illustrates at least that the jobs were not equal in responsibility and skill, and perhaps not in working conditions. The motion for summary judgment on the EPA claim is granted.

Age Discrimination

Defendant’s motion for summary judgment on this count is granted. Defendants have shown a nondiscriminatory reason for the denial of the salary increase. Unlike in the Title VII case, Winters has not presented a single piece of evidence tending to show that these reasons were a pretext for age discrimination. She once states in an affidavit that younger employees received salary increases, but there is no supporting evidence and no evidence tending to suggest that she is competent to testify to this fact.

Winters’ burden is to meet defendant’s evidence and demonstrate that facts exist justifying a trial. The court’s briefing schedule was liberal, allowing Winters plenty of time to marshall such evidence if it existed. Moreover, Rule 56 allows one defending against a motion for summary judgment to request additional time in which to gather evidence. Even with these liberal policies, however, evidence on the ADEA claim is totally lacking. The motion is therefore granted on the ADEA count.

Conclusion

The constructive discharge claim and prayers for punitive and compensatory damages in Count I are stricken. Summary judgment is denied regarding the Title VII claim in Count I. Summary judgment is granted as to the EPA and ADEA claims in Counts II and III.

It is so ordered.